HELD. Appeal allowed in part. There was uncontradicted evidence that some level of fishing on the creek could have been permitted and conservation goals still achieved, which suggested the variation order might have been overboard. The government did have a clear duty to consult on issues affecting Aboriginal rights. However, this was a collective duty owed to the Band, not a duty owed specifically to the appellant. The duty was outlined in Mikisew Cree First Nation v. Canada, which the trial judge did misapply by finding that Xxxxxxx only applied to taking of land. However, this error did not have an effect on the end result. While the government may not have met its duty to consult before passing the variation, the first step of analysis under X. x. Xxxxxxx was whether or not there had been a prima facie infringement of the appellant's Treaty rights. Since the appellant did not have a personal right to consultation, if any of his rights were infringed upon, it was his right to fish for food. Therefore, a breach of the duty to consult could not go to establishing a prima facie infringement, though it would be relevant in the second stage of analysis on the justification for the infringement. The trial judge did commit a reversible error in finding that the appellant could have easily fished elsewhere. The creek was on reserve lands with readily available pickerel, the appellant's preferred catch, and was within five minutes of his home. The only other fishing location within half an hour was a lake. However, to reach readily available fish on the lake, one required a boat, which the appellant did not have. The appellant did not have easily accessible fishing for food at another location, so he had established prima facie infringement. Since the trial judge did not find infringement, he never considered the issue of justification. The conviction was set aside and the parties were directed to re-attend to argue justification. Statutes, Regulations and Rules Cited: Alberta Fishing Regulations, 1998, SOR/98-246, Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, Constitution Act, 1930, s. 35(1) Fisheries Act, R.S.C. 1985, c. F-14, Natural Resources Transfer Agreement, S.A. 1930, c. 21, s. 12 Counsel: Xxxxx Xxxxx, Q.C., for the Respondent. Xxxxxxx X.X. Xxxx, Xxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxx and Company, for the Appellant. [Editor's note: A corrigendum was released by the Court on August 19, 2010; the corrections have been made...
HELD. The Court held that:
HELD. Reference to Section 14 of the Act was made, which deals with, inter alia, prescription being interrupted by an acknowledgement of liability by the defendant (that is, where the Defendant makes part payment of the debt). For purposes of trial and determining whether prescription had arisen, the parties agreed that the period for prescription would be 3 years. In Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd [2017] ZACC 32, it was held that a creditor has exclusive power to demand that performance be made when he so chooses, which has given rise to the general rule applying to loans ‘payable on demand’, “namely that prescription begins to run when the debt arises, unless there is a clear indication to the contrary”. The circumstances under which the agreement was concluded and the material terms of the agreement should be taken into account, in deciding whether the debtor would be liable for payment from date when he makes part payment or when demand for payment is made. In this case, taking into account the circumstances and terms of the oral agreement it was held that the parties intended for prescription to start running from the date that demand was made. In an affidavit by the Defendant (resisting summary judgment), he alleged that payment would only be due upon demand by the Plaintiff. In addition to the above, the Defendant alleged in his plea that absent of any demand by the Plaintiff of any payment, he was not liable to make any payment. In essence, the debt was neither due or payable until demand was made. Accordingly, it was held that prescription started running from the date that the letter of demand was despatched, being on 14 June 2017. In the circumstances, the court held that the Plaintiff’s claim had not prescribed and dismissed the Defendant’s special plea. VALUE Circumstances under which an agreement was concluded should be considered when determining whether a claim that arises from such agreement has prescribed. In this case, the surrounding circumstances demanded a deviation from the rules of prescription as codified. In essence, there was no debt for which prescription could run over until demand was made.
HELD. The court, referring to clause 3.2 of the MRA, stated that, as per the party’s consensus, the agreement would terminate upon the expiry of the specified rental period. The agreement provided for a minimum rental period of 12 quarters, commencing on 3 December 2013 and terminating on 30 November 2016 (or, at the latest, 2 December 2016). If the court had given effect to the applicant’s contention, then the minimum rental period would have been extended for a further 3 months and terminate on 28 February 2017, thereby constituting almost 13 quarters, as opposed to the agreed 12 quarters. The court stated that giving effect to the applicant’s contention would lead to absurdity. The MRA contained an express provision to the effect that the agreement would terminate after 12 quarters. The court therefore rejected the applicant’s contention that the agreement should constitute almost 13 quarters as this was not the intention of the parties when entering into the agreement. The applicant, in responding to the court’s submissions, argued that the contract period would still be for express 12 quarters and that the interregnum period would be in addition thereto. The court disagreed with the applicant, stating that the applicant’s interpretation of the agreement would lead to an outcome whereby the interregnum rental would be treated as extraneous to the quarterly payments, the effect of which would be to ignore the express wording of clause 3.2, specifying that the rental period would be for 12 quarters commencing on the commencement date. The court, in agreeing with counsel for the respondent, stated that the first payment made by the respondent constituted a quarterly payment, but was adjusted as the period involved was shorter than a quarter. This interpretation was held to be consistent with clause 4.1 of the agreement, which did not distinguish between the first rental payable on the commencement date and the subsequent rentals payable on the rental due date. The applicant responded to the courts averments by arguing that it would lead to absurdity if the commencement date was a matter of days before the rental due date, thus shortening the minimum rental period to just over 11 quarters. The agreement made no provisions for a shortfall of the rental period of 12 quarters. The court suggested that a tacit term be inserted, to the effect that the rental period be extended in order to make up any shortfall, and that a proportionate rental be calculated and paid a...
HELD. The court held that there can be no question that consent for the cession was never obtained (from any party) before the first invoice discounting facility agreement (“XXX”) was entered into. Accordingly, the Plaintiff and the Fourth Defendant entered into a cession agreement, which is valid between the two, however, cannot be enforced against the First Defendant. The court accordingly dismissed the Plaintiff’s claim with costs.
HELD. Xxxxxx Xxxx shall issue two separate checks for the penalty payment: (a) one check made payable to OEHHA in the amount of $1,500.00 representing 75% of the total penalty; and (b) one check to “The Chanler Group in Trust for Xxxxxxx X. Held” in the amount of $500.00 representing 25% of the total penalty. Two separate 1099s shall be issued for the above payments. The checks and 1099s shall be delivered to the addresses listed in Section 3.3 below.
HELD. The term “charge” is not defined in the Act. Nevertheless, taking into account the Act’s overall objectives of consumer protection against hidden costs, the parties are required to quantify the charge and specify the manner in which it is to be paid when they determine their contractual terms and conclude the credit agreement. However, the profit shares, as envisioned by the parties, had no fixed repayment date, were not guaranteed and ran the possibility of not eventuating. Furthermore, as the amount was to be determined by the Appellant at his sole discretion, the profit share also failed to meet the requirement of fixed quantification. Thus, said profit share did not qualify as a charge under the Act. As a result, the loans did not amount to credit agreements, in terms of Section 8(1) of the Act, as no charges were attached to them. As such, the Respondent was not required to register as a credit provider. The Court upheld the decision of the court a quo, holding that the cheques in repayment of a loan are exempted from the operation of the Act and that the Respondent was entitled to invoke the provisional sentence procedure to enforce his claims.
HELD. The SCA, in determining whether sureties who also bound themselves as co-principal debtors, such as the Respondent, became co-debtors with the principal debtor (ECE), rejected the Appellant’s contentions and held that a surety and co-principal debtor does not undertake a separate independent liability as a principal debtor. The addition of the words ‘co-principal debtor’ does not change such an agreement into any agreement other than one of Suretyship. The surety does not become a co-debtor with the principal debtor, nor does he become a co-debtor with any of the co-sureties and co-principal debtors, unless same has been agreed to by the respective parties. The SCA, in determining whether the service of a summons on any of the sureties interrupts the running of prescription in favor of the others, too rejected the Appellant’s argument in this regard, and held that if it were to extend the Justinian constitution, same would constitute a considerable departure from the common law principles on the law of suretyship, and there were no persuasive reasons for the SCA to have done so. Moreover, if the principal debt became prescribed, the surety’s debt, by virtue of same, had too prescribed. As such, the SCA dismissed the appeal with costs.
HELD. (1) Xxxxxx was acting as complete stranger to the contract between Xxxxxxxxx and Dew and thus on account of privity of contract couldn’t xxx Xxxxxxxxx for breach of its agreement with Dew. It was a mere beneficiary to it on account of Price Maintenance Clause.
HELD allowing the appeal and awarding costs to the appellant in the High Court and in the appeal: The parties made Article 4.3.2 of the agreement a condition precedent to arbitration. The question whether the Claim was time-barred and prescribed raised an issue of procedural arbitrability, which rule 8(a) of the Construction Industry Arbitration Rules of the American Arbitration Association puts within the purview of the arbitrator. Since the respondent, DCG Properties, unsuccessfully challenged the arbitrator’s assumption of jurisdiction in the dispute, and did not appeal the arbitrator’s decision through the arbitral appeal process, the High Court should not have entertained a case which DCG Properties brought on the same issue. That litigation occasioned the court to make a conflicting decision to that of the arbitrator on the same grounds as DCG Properties had unsuccessfully challenged the arbitration. Saint Lucia has a strong public policy in favour of arbitration which the Arbitration Act exemplifies. The court, in support of that policy, should cause parties to act in accordance with the processes provided by that Act. Xxxxx Xxxxxx v Xxxx Xxxxxx Xxxxxxxx Inc., 537 U.S. 79 (10 December 2002) Contec Corporation v Remote Solutions Co. Ltd., 398 F.3d 205 (2d Cir. 2005), adopted. JUDGMENT [1] XXXXXXX, X.X.: The outcome of this appeal hinges on the interpretation of certain clauses contained in a contract between the parties in this appeal, which relate to claims and arbitration. Contractual provisions [2] The grounds of appeal, which will be set out later in this judgment, mirror some of the provisions that the agreement between the parties contain, which counsel for White Construction urged us to consider in the appeal. Other provisions were referred to in the submissions by both counsel. I set out their contents at this juncture in order to put this appeal into the contractual context. [3] The contractual provisions to which counsel referred us are Articles 4.3.1, 4.3.2, 4.4.1, 4.4.2, 4.4.3, 4.6.1, 4.6.2, 4.6.3, 13.1.1, 13.3.1, 13.4.2 and 13.7.1.
