Perkins Business Management Ltd. v. Figueroa et al., 2015 NSSC 278

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 07, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 278;(2015), 365 N.S.R.(2d) 310 (SC)

Perkins Business Mgt. v. Figueroa (2015), 365 N.S.R.(2d) 310 (SC);

    1151 A.P.R. 310

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. OC.014

Perkins Business Management Ltd., carrying on business as Community Link Medical Clinic (plaintiff) v. Mayelin Figueroa and Dr. Mayelin Figueroa Perez Limited (defendants)

(Hfx. No. 333253; 2015 NSSC 278)

Indexed As: Perkins Business Management Ltd. v. Figueroa et al.

Nova Scotia Supreme Court

Moir, J.

October 7, 2015.

Summary:

Perkins Business Management Ltd. (plaintiff) entered into a contractual relationship with a doctor and her management company. Perkins was to supply premises, make renovations for a medical clinic and provide equipment and supplies. The doctor's management company would manage the clinic. The doctor was to practice in the clinic and pay 20% of her fees to Perkins. Perkins was to pay the doctor's management company 40% of the net profit generated by clinic operations. The term of the contract was 90 years. After the first month of operations, Perkins terminated the management company's part of the contract. A month later, the doctor terminated the other part and moved to another clinic. Perkins sued the doctor and her company for losses resulting from the move. At issue was whether the doctor was personally liable on the applicable contract, continued to be liable after Perkins' termination of the part of the contract against the management company and whether the abandonment by the doctor was a breach and if so, what were the damages.

The Nova Scotia Supreme Court dismissed that action against the defendants, except for the doctor's obligation to pay the balance owing up to the termination date. The court found as a fact that the doctor was personally liable under the terms of the contract. However, the termination of the contract with the doctor's management company terminated the liability of the doctor. The termination of the manager by Perkins was unlawful. Further, Perkins repudiated the contract with the doctor by conduct. The doctor was not in breach for moving.

Contracts - Topic 549

Parties - Joint and several liability - Where multiple contracts or parties - The Nova Scotia Supreme Court discussed the question of continuing liability under a multi-party contract terminated against one of the parties but not another - See paragraphs 137 to 147.

Contracts - Topic 549

Parties - Joint and several liability - Where multiple contracts or parties - [See Contracts - Topic 3523 ].

Contracts - Topic 3523

Performance or breach - Breach - What constitutes a breach - The plaintiff contracted with a doctor and the doctor's management company (defendants) respecting the operation of a medical clinic - The relationship soured - The plaintiff terminated the management company's part of the contract - A month later, the doctor terminated the other part and moved to another clinic - The plaintiff sued the defendants - The Nova Scotia Supreme Court dismissed the action - The correct interpretation of the contract was that the termination of the manager's rights and obligations terminated the doctor's obligations - It was impossible to sever the manager from the contract without doing violence to the doctor's interests under the contract - That is, the contract was substantially changed if the manager's services were terminated but the doctor was held to what remained - In any event, the termination of the manager was unlawful - Further, the plaintiff repudiated the contract by its conduct - The doctor was not in breach.

Contracts - Topic 3664

Performance or breach - Repudiation - What constitutes repudiation - [See Contracts - Topic 3523 ].

Cases Noticed:

Badesha et al. v. Snowland Sporting Goods Ltd. et al., [2015] B.C.T.C. Uned. 1229; 2015 BCSC 1229, refd to. [para. 137].

Baldwin v. Chalker and Pippy (1983), 43 Nfld. & P.E.I.R. 203; 127 A.P.R. 203 (Nfld. T.D.), refd to. [para. 141].

Kary Investment Corp. v. Tremblay (2005), 371 A.R. 339; 354 W.A.C. 339; 2005 ABCA 273, refd to. [para. 141].

J.H. Ashdown Hardware Co. v. Singer Ltd., [1953] 1 S.C.R. 252, refd to. [para. 142].

Transport North American Express Inc. v. New Solutions Financial Corp., [2004] 1 S.C.R. 249; 316 N.R. 84; 183 O.A.C. 342; 2004 SCC 7, refd to. [para. 143].

Lister (Ronald Elwyn) Ltd. et al. v. Dunlop Canada Ltd., [1982] 1 S.C.R. 726; 42 N.R. 181; 41 C.B.R.(N.S.) 272; 135 D.L.R.(3d) 1; 18 B.L.R. 1; 65 C.P.R.(2d) 1, refd to. [para. 162].

Bhasin v. Hrynew et al. (2014), 464 N.R. 254; 584 A.R. 6; 623 W.A.C. 6; 2014 SCC 71, refd to. [para. 162].

Potter v. Legal Aid Services Commission (N.B.) (2015), 468 N.R. 227; 432 N.B.R.(2d) 1; 1128 A.P.R. 1; 2015 SCC 10, refd to. [para. 169].

Hadley v. Baxendale (1854), 9 Exch. 341; 156 E.R. 145, refd to. [para. 173].

Authors and Works Noticed:

Fridman, G.H.L., The Law of Contract (6th Ed.), pp. 181 to 183 [para. 140].

Hall, Geoff, Canadian Contractual Interpretation Law (2nd Ed. 2012), generally [para. 145].

Counsel:

Matthew J.M. Gibbon, for the plaintiff;

Brian P. Casey, Q.C., and Geoff Franklin, for the defendants.

This matter was heard on February 2-5, 9 and 10, 2015, in Halifax, N.S., before Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on October 7, 2015.