Law Times

Law Times • august 10, 2015 Page 13 www.lawtimesnews.com SUPREME COURT OF CANADA Sale of Land AGREEMENT OF PURCHASE AND SALE No agreement to sell immovable was concluded, brokerage enter- prise not entitled to commission Sellers signed standard form exclusive brokerage contract giving brokerage enterprise a mandate to sell their immov- able. Contract provided that obligation to pay brokerage en- terprise's commission would be triggered, inter alia, when "agreement to sell the immov- able" was concluded during term of contract or if "the seller voluntarily prevents the free performance of the contract". Promise to purchase initially accepted by sellers gave buyer a right to withdraw promise if not completely satisfied with due diligence results. When it was discovered that immovable might be affected by environ- mental contamination, buyer attempted to impose condition that sellers decontaminate im- movable at their expense. Sell- ers refused and sale did not go through. Sellers refused to pay commission to brokerage enter- prise. Superior Court dismissed brokerage enterprise's action but Court of Appeal allowed brokerage enterprise's appeal. Sellers appealed. Appeal al- lowed. Promise to purchase is binding on parties as soon as it is concluded but until it is pos- sible for one party to bring ac- tion to compel transfer of title, there is no "agreement to sell the immovable" within mean- ing of brokerage contract. Once environmental assessment dis- closed that soil was contami- nated, buyer clearly expressed intention not to conclude sale until property decontaminated at sellers' expense. Buyer there- fore repudiated initial prom- ise and submitted new offer to purchase. No agreement to sell immovable was concluded and brokerage enterprise not entitled to commission. Nor was payment of commission triggered by sellers voluntarily preventing free performance of brokerage contract. Under con- tract, sellers did not have obliga- tion to decontaminate property or renegotiate terms of initial promise to purchase. Although brokerage contract contained sellers' declaration that immov- able was in accordance with environmental protection laws and regulations, declaration could not, on its own and in ab- sence of bad faith, serve as basis to argue that sellers voluntarily prevented free performance of contract. Accepted promise to purchase is not a sale and does not produce any of effects of a sale. Sellers committed no fault in relation to obligations under promise to purchase or broker- age contract. Société en commandite Place Mullins c. Services immobiliers Diane Bisson inc. (Mar. 18, 2015, S.C.C., McLachlin C.J.C., Abel- la J., Rothstein J., Cromwell J., Wagner J., Gascon J., and Côté J., File No. 35461) Decision at 236 A.C.W.S. (3d) 779 was re- versed. 254 A.C.W.S. (3d) 87. FEDERAL COURT OF APPEAL Charter of Rights FUNDAMENTAL JUSTICE Merger provisions regard- ing youth and adult sentences did not offend Charter Accused was inmate who had committed offence as youth, was convicted for it, and re- ceived sentence under youth offenders' regime. Accused also committed offence as adult, was convicted for it, and received sentence to be served consecu- tively under adult offenders' re- gime. To ensure that offender is subject to only one regime, Par- liament had passed merger pro- visions. Together, two merger provisions converted remain- ing portion of youth sentence into adult sentence and merged two sentences together. When he was 17-and-half years old, accused committed second de- gree murder. Accused received seven-year youth sentence for murder: four years in custody with regular reviews, and three years in community under su- pervision. Roughly two-and- half years into custodial portion of his youth sentence, accused pleaded guilty to charge of con- spiracy to commit robbery and received four-year consecutive adult sentence. Sentence man- ager at Institution calculated accused's period of incarcera- tion and times when he was eligible for various forms of conditional release from prison. Accused sought judicial review of that decision, submitting that merger provisions offended his rights under Canadian Charter of Rights and Freedoms and, thus, were of no force or effect. Federal Court dismissed ac- cused's application for judicial review and accused appealed. Appeal dismissed. Merger pro- visions did not offend Charter. Merger provisions made ac- cused eligible for unescorted temporary absences from pris- on three weeks earlier than his release under supervision in community for youth sentence. To extent merger provisions disadvantaged accused, disad- vantage was triggered by his own misconduct as adult. Only most important, basic values rooted in our time-honoured practices and understandings can possibly qualify as prin- ciples of fundamental justice. Unfairness in colloquial sense, freestanding policy views, or generalized views of what is proper, all matters in eye of be- holder, cannot qualify as prin- ciples of fundamental justice, nor can they perform any part in their discernment or applica- tion. Today's merger provisions created certainty and order by applying one clear rule to all. Accused's seven-year sentence as youth offender remained at seven years. Only conditions of sentence changed and changes in conditions of sentence do not implicate principles of funda- mental justice. Merger provi- sions created certain disincen- tives, applying only when per- son commits offence as adult and is sentenced for it while serving youth sentence. In many circumstances mitigation may be possible at time of adult sentencing. Erasmo v. Canada (Attorney General) (May. 20, 2015, F.C.A., David Stratas J.A., A.F. Scott J.A., and Richard Boivin J.A., File No. A-518-14) Decision at 118 W.C.B. (2d) 549 was af- firmed. 122 W.C.B. (2d) 24. FEDERAL COURT Admiralty JURISDICTION Court had jurisdiction over port authority's denial of container truck licenses Respondent port authority was established pursuant to Canada Marine Act ("CMA"). Respon- dent created and implemented new Trucking Licensing System ("TLS") in response to recent work stoppages. Governments of British Columbia and Can- ada also introduced/amended legislation to regulate container trucking industry in response to turbulent history at port. Container Trucking Act (B.C.) contained licensing and rate re- gime for container trucks and s. 31.1 of Port Authorities Opera- tors Regulations (Can.) provid- ed respondent not permit truck to access port for transporting containers unless it was acting for person with authorization from respondent and provin- cial license. With advent of new scheme, respondent gave no- tice that all authorizations were terminated and those unsuc- cessful under new TLS process would no longer have access to port. Respondent published handbook with instructions on applying under TLS and crite- ria for assessment. Applicants received letters stating their ap- plications had been denied and applied for judicial review. Mo- tion by respondent to dismiss judicial review application on basis Federal Court lacked ju- risdiction and applications were out of time. Motion dismissed. Respondent was exercising its authority under s. 28(2)(a) of CMA, namely port activities re- lated to supply, transportation, handling and storage of goods. By denying or granting licenses, respondent was denying appli- cants access to port to transport goods in and out, so was act- ing as Federal Board, Tribunal or Commission within mean- ing of ss. 2, 18, 18.1 of Federal Courts Act (Can.). Letters sent to applicants stated applica- tions had been reviewed and rejected, which was sufficient to find reviewable decision had been made. Applicants were challenging decisions to deny licenses, and brought applica- tion for judicial review within 30 days of decisions; while de- cisions were based on earlier- issued handbook, applicants were not challenging handbook cASELAW CaseLaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada, and all Ontario courts. These cases may be found online in BestCase and other electronic resources from carswell.com. To subscribe, please call 1-800-387-5164. and it's available to you 24 hours a day. s available y availabl y legal expertise? Looking for Find exactly what you need at www.CanadianLawList.com Starting a business, making a will or buying a house? Declaring bankruptcy, dealing with a personal injury, insurance claim or job loss? 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