Bawitko Investments Ltd. v. Kernels Popcorn Ltd.,

• Jurisdiction: Ontario
• Judge: Robins, Tarnopolsky and Finlayson, JJ.A.
• Citation: (1991), 53 O.A.C. 314 (CA),1991 CanLII 2734 (NS CA),1991 CanLII 2734 (ON CA),79 DLR (4th) 97,[1991] CarswellOnt 836,[1991] OJ No 495 (QL),26 ACWS (3d) 350,53 OAC 314
• Court: Court of Appeal (Ontario)
• Date: 11 February 1991

Bawitko Inv. Ltd. v. Kernels Popcorn (1991), 53 O.A.C. 314 (CA)

MLB headnote and full text

Bawitko Investments Limited (plaintiff/respondent) v. Kernels Popcorn Limited (defendant/appellant)

(No. 434/88)

Indexed As: Bawitko Investments Ltd. v. Kernels Popcorn Ltd.

Ontario Court of Appeal

Robins, Tarnopolsky and Finlayson, JJ.A.

April 8, 1991.

Summary:

Bawitko Investments sued Kernels Popcorn for breach of an oral franchise agreement.

The Ontario High Court of Justice, per O'Driscoll, J., allowed the action. Kernels appealed.

The Ontario Court of Appeal allowed the appeal, set aside the decision of the trial judge and dismissed the action.

Contracts - Topic 1444

Formation of contract - Agreements which are not contracts - Agreements to agree - Kernels agreed orally to grant Bawitko a franchise to operate a popcorn store - Subsequently Kernels refused to execute a written franchise agreement - Bawitko sued for breach of contract - The Ontario Court of Appeal dismissed Bawitko's action, holding that the oral contract was not enforceable because there were terms to be settled and agreed upon later (i.e. there was no meeting of the minds - a lack of certainty.)

Franchises - Topic 2003

Franchise agreement - Formation - Con­sensus or agreement - [See Contracts - Topic 1444].

Cases Noticed:

Von Hatzfeld Wildenburg v. Alexander, [1912] 1 Ch. 284, refd to. [para. 21].

Canada Square Corp. Ltd. et al. v. Versa­food Services Ltd. et al. (1980), 25 O.R.(2d) 591 (H. Ct.), affd. (1981), 34 O.R. (2d) 250 (C.A.), refd to. [para. 21].

Bahamaconsult Ltd. v. Kellogg Salada Canada Ltd. (1976), 9 O.R.(2d) 630 (H. Ct.), revd. (1977), 15 O.R.(2d) 276 (C.A.), refd to. [para. 21].

Statutes Noticed:

Statute of Frauds, R.S.O. 1980, c. 481, sect. 4 [paras. 9, 10, 23].

Authors and Works Noticed:

Chitty on Contracts (26th Ed. 1990), pp. 79-91 [para. 21].

Corbin on Contracts (1963), vol. 1, paras. 29-30 [para. 21].

Treitel, Law of Contract (7th Ed. 1987), pp. 42-47 [para. 21].

Counsel:

R.J. Rolls, Q.C., and Peter A. Downard, for the appellant;

Tracy C. Warne, Q.C., for the respondent.

This appeal was heard on February 11, 1991, before Robins, Tarnopolsky and Finlayson, JJ.A., of the Ontario Court of Appeal. The decision of the Court was delivered by Robins, J.A., and released on April 8, 1991: