Sinanan v. Woodyer, (1999) 176 N.S.R.(2d) 201 (CA)

• Judge: Glube, C.J.N.S., Roscoe and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 06, 1999
• Jurisdiction: Nova Scotia
• Citations: (1999), 176 N.S.R.(2d) 201 (CA)

Sinanan v. Woodyer (1999), 176 N.S.R.(2d) 201 (CA);

    538 A.P.R. 201

MLB headnote and full text

Temp. Cite: [1999] N.S.R.(2d) TBEd. JN.003

Peter J. Woodyer, Ronald Abrahams and Gerald Solomon (appellants) v. Mervyn E. Sinanan (respondent)

(C.A. No. 151745)

Indexed As: Sinanan v. Woodyer et al.

Nova Scotia Court of Appeal

Glube, C.J.N.S., Roscoe and Cromwell, JJ.A.

May 13, 1999.

Summary:

The plaintiff and defendants were veteri­narians who held joint interests in partner­ships and corporations that operated three veterinary clinics. The defendants voted to expel the plaintiff from the partnerships and corporations. The plaintiff sued the defend­ants for, inter alia, an order requiring them to purchase his interest at fair market value. Negotiations ensued. The defendants applied for an order to strike out the statement of claim on the basis that a settlement had been reached.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, dismissed the application. The defendants appealed.

The Nova Scotia Court of Appeal allowed the appeal.

Contracts - Topic 1205

Formation of contract - Offer - What constitutes an offer - The Nova Scotia Court of Appeal discussed counteroffers - The court stated that once the counteroffer has been communicated it operates like an offer - Unless otherwise noted, a counter­offer destroys and rejects any previous offers and is open for a reasonable length of time or until revoked - See paragraphs 22 to 24.

Contracts - Topic 1210

Formation of contract - Offer - Revoca­tion of offer - General - [See Contracts - Topic 1205 ].

Contracts - Topic 1303

Formation of contract - Acceptance - What constitutes - The defendants voted to expel the plaintiff from their partner­ships and corporations - The parties nego­tiated - The defendants alleged that a settlement had been reached - A Cham­bers judge disagreed - The defendants appealed - The Nova Scotia Court of Appeal allowed the appeal - The Cham­bers judge erred by implying a term that the parties would execute mutual releases as part of any settlement and that therefore the issues concerning the existence, amount or status of the capital account had to be dealt with before there was a settle­ment contract - The capital account issue was not an essential term in light of the pleadings and negotiations between the parties - Whether release of that obligation was an implied term of the settlement was a matter of completion, not formation of the contract.

Contracts - Topic 2070

Terms - Implied terms - For performance or completion - [See Contracts - Topic 1303 ].

Contracts - Topic 2070

Terms - Implied terms - For performance or completion - Defendants alleged that a settlement had been reached - A Cham­bers judge disagreed - The defendants appealed - The Nova Scotia Court of Appeal held that the Chambers judge erred by implying a term that the parties would execute mutual releases as part of any settlement - While it could easily be implied, based on custom and usage, that it should be a term of a settlement contract that the plaintiff would provide a release to the defendant upon receipt of funds set­tling a lawsuit, it was not the normal course of practice that the defendant also release the plaintiff - See paragraph 47.

Releases - Topic 3

General principles - When required - [See Contracts - Topic 1303 and second Con­tracts - Topic 2070 ].

Cases Noticed:

Hyde v. Wrench (1840), 3 Beav. 334; 4 Jur. 1106; 49 E.R. 132, refd to. [para. 23].

Barrick et al. v. Clark, [1950] 4 D.L.R. 529 (S.C.C.), refd to. [para. 24].

Marathon Realty Co. v. Toulon Construc­tion Corp. (1987), 80 N.S.R.(2d) 390; 200 A.P.R. 390 (T.D.), refd to. [para. 27].

Smith v. Hughes (1871), L.R. 6 Q.B. 597 (D.C.), refd to. [para. 28].

Saint John Tug Boat Co. v. Irving Refin­ing Ltd., [1964] S.C.R. 614, refd to. [para. 28].

Rossiter et al. v. Miller (1878), 3 App. Cas. 1124; [1874-80] All E.R. Rep. 465 (H.L.), refd to. [para. 33].

Bawitko Investments Ltd. v. Kernels Pop­corn Ltd. (1991), 53 O.A.C. 314; 79 D.L.R.(4th) 97 (C.A.), refd to. [para. 34].

Fieguth v. Acklands Ltd. (1989), 37 B.C.L.R.(2d) 62; 59 D.L.R.(4th) 114 (C.A.), refd to. [para. 34].

Canadian Tourism Human Resource Council v. Meadow Wood Communica­tion Group Inc., [1998] O.T.C. Uned. 96; 19 C.P.C.(4th) 124 (Gen. Div.), refd to. [para. 36].

Cellular Rental Systems Inc. v. Bell Mobility Cellular Inc., [1995] O.J. No. 721 (Gen. Div.), appld. [para. 38].

Canada Square Corp. et al. v. VS Services Ltd. et al. (1981), 34 O.R.(2d) 250 (C.A.), refd to. [para. 43].

Hunt River Camps/Air Northland Ltd. v. Canamera Geological Ltd. (1998), 168 Nfld. & P.E.I.R. 207; 517 A.P.R. 207 (Nfld. C.A.), refd to. [para. 43].

First City Investments Ltd. v. Fraser Arms Hotel Ltd. (1979), 13 B.C.L.R. 107; 104 D.L.R.(3d) 617 (C.A.), refd to. [para. 43].

Whitehall Holdings Ltd. v. Hawboldt Metal Fabricators Inc. and Calnova Resources Inc. (1987), 78 N.S.R.(2d) 346; 193 A.P.R. 346 (C.A.), leave to appeal dismissed (1988), 87 N.R. 399; 89 N.S.R.(2d) 180; 227 A.P.R. 180 (S.C.C.), refd to. [para. 47].

Authors and Works Noticed:

Cheshire, Fifoot and Furmston, The Law of Contract (11th Ed. 1986), p. 36 [para. 27].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (2nd Ed. 1986), pp. 19, 20 [para. 43]; 448, 449 [para. 47].

Halsbury's Laws of England (4th Ed.), vol. 9, para. 258 [para. 23].

Waddams, Stephen M., The Law of Con­tracts (3rd Ed. 1993), pp. 27 [para. 22]; 40, 41, 42 [para. 26].

Counsel:

S. Bruce Outhouse, Q.C., for the appel­lants;

Christopher C. Robinson, Q.C., for the respondent.

This appeal was heard by Glube, C.J.N.S., Roscoe and Cromwell, JJ.A., of the Nova Scotia Court of Appeal on April 6, 1999. On May 13, 1999, Roscoe, J.A., delivered the following judgment for the Court of Appeal.