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Notably, the driver was not permitted to use the rental vehicles for any other purpose than to make deliveries for his employer.
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Pursuant to s. Specifically, s. The application judge found that the driver was the lessee but left the determination as to whether the driver was an employee or an independent contractor for trial in the main action. Aviva appealed. The application judge erred in law when he determined the identity of the lessee by restricting himself to the face of the two-page rental agreement. In doing so, the application judge failed to grapple with whether the driver was acting as an authorized representative or agent of his employer when he signed the rental agreement.
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Taking agency principles into account, the court found that the lessee was the employer. Accordingly, the court reversed the order of the application judge. In making its determination, the court found that both cases relied on by the insurers supported the finding that the employer was the lessee. The employer ultimately reimbursed the employee for the cost. Instead, he found that the identity of the lessee could be determined by asking who the lessor could sue to enforce the car rental agreement.
In that case, the answer was the employee. Ultimately, the court found Intact was distinguishable from the instant case, because apart from its policy of reimbursing employees who rented vehicles for work-related purposes, there were no facts to suggest that the employer had authorized the employee to contract with the rental agency on its behalf.
While Penny J adopted the same test for determining the identity of a lessor as that set out in Intact , the facts before him required a more expansive approach based on agency. Penny J thus had to look beyond the four corners of the agreement for factors that would indicate whether the employee was acting as an agent of her employer when she signed the rental agreement. In the instant case, the court found that like Lloyds , the surrounding circumstances indicated that the driver was signing the rental agreement and renting the car on behalf of the employer.
However, given that the Wawanesa policy was not evidence, the nature of the relief sought on the motion, and the factual issues to be determined as to whether the driver was an employee or independent contractor, it was not appropriate to declare at this time that Wawanesa is the first loss insurer. Joseph and K. The mother cross-appeals from his order awarding the father spousal support, arguing that the Agreement should be honoured in its entirety.
First, the trial judge correctly determined that the mother did not improperly fail to disclose certain assets to the father when the Agreement was made. Second, the trial judge did not err in law by failing to engage in the disjunctive analysis required by s 56 4 b of the FLA to consider whether the father did not understand either the nature or the consequences of the agreement.
The trial judge correctly applied the two-stage Miglin test to determine that the spousal support waiver in the Agreement did not comply with the DA.
The first stage of the Miglin inquiry requires the judge to a consider whether the circumstances in which the agreement was negotiated and executed warrant any reason to discount it, and b whether the substance of the agreement complies with the objectives of the DA. At the second stage of the Miglin inquiry, the trial judge correctly found that there was a change in the circumstances of the parties from the time of execution of the Agreement to the time of Application, namely that the father had not been able to become self-sufficient after being terminated by his employer and the associated hit to his reputation as a licenced investment dealer.
An appellate court is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v Hickey at para Proceedings were commenced in July , and therefore statute-barred. The action was under the simplified procedure, which has a limited monetary ceiling that translated into reduced costs orders. The court found that CIBC should have contemplated that its costs, if successful, would be limited, and that it was therefore required to exercise restraint.
The motion judge failed to advert to these factors. Adam D.
Chisholm and Holly Sherlock, for the appellants Jason W. Woycheshyn and Joseph N. Blinick, for the respondent. This is an appeal by AgriMarine Holdings Inc. After some months, the transaction had not closed and Akvatech demanded repayment. The application judge held that neither party breached the Letter Agreement, and that Akvatech was entitled to take the steps it did under the Letter Agreement.
The application judge found that the essential terms of the license were defined with sufficient particularity and that the license was enforceable.
Akvatech did not take advantage of its own breach of contract. It is a principle of law that a party should not be able to take advantage of its own contractual breach in order to claim a contractual benefit or remedy. The Court agreed with the application judge that this is not a case about the exercise of rights and remedies following a breach of contract.
The application judge concluded that neither party was in breach of the Letter Agreement. Rather, he found that the parties, through their conduct, agreed to terminate the Letter Agreement. The parties had agreed that once the Letter Agreement was terminated, the Pre-payment Amount would be demanded, and a default notice would issue. AgriMarine could have avoided the transfer of the license by repaying the Pre-payment Amount upon demand. The Court held it was a reasonable interpretation of the Letter Agreement that it was meant to provide security for the refund of the Pre-payment Amount.
The application judge considered all the relevant factors, including the terms of the license, and of the Letter Agreement as a whole, and the fact that the parties had agreed to this provision while represented by legal counsel. This case has a long history of litigation involving competing guardianship applications by two pairs of siblings in respect of the personal care and property of their mother, arising out of her incapacity.
The appeals of these applications were dismissed by the Court in Childs v. The present issue involved a motion brought by PC pursuant to Rule PC and those he named as respondents to the motion were given notice of the proposed making of an order staying or dismissing the motion under as being frivolous, vexatious or an abuse of process under Rule 2.