Legal news and trends for Canadian in-house counsel and c-suite executives
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SEPTEMBER 2015 8 INHOUSE News Roundup Decision suggests greater freedom for trial judges in contract law cases E li Lederman, a partner at Lenczner Slaght Royce Smith Griffi n LLP, says a recent Court of Appeal deci- sion in Ontario adds to a growing trend that suggests trial judges may have greater free- dom to determine whether parties are living up to their contractual obligations. In Energy Fundamentals Group Inc. v. Veresen Inc., the case involved implied terms in contracts. When can a court imply terms into a commercial contract upon which the parties have not expressly agreed? Veresen Inc. appealed the decision of an application judge implying a contractual obligation on its part to disclose information to enable the Energy Fundamentals Group to determine whether to exercise an option to acquire up to 20 per cent of a limited partnership, the Jordan Cove energy project. Energy Fundamentals, an investment bank, introduced Veresen to the project, which involved the development of a liquid natural gas terminal on the coast of Oregon. Veresen argued the application judge should not have implied terms requiring value and price disclosure. On July 8, the court dismissed the ap- peal with costs to Energy Fundamentals of $50,000. "I think this case signals that the law and the courts are moving in a direction where they are giving greater freedom to trial judges in contract cases to interpret agree- ments in such a way that could effectively al- low for contractual parties to improve their bargains," says Eli Lederman, a partner at Lencnzer Slaght Royce Smith Griffi n LLP. "What we're seeing is even the application of contract law is trending toward greater room for implication of terms and trying to do justice by the parties regardless of what the strict terms of the agreement say." WeirFoulds LLP partner Jeff Cowan says the decision is consistent with the Supreme Court decision in Bhasin v. Hrynew. "The Court of Appeal found Justice [Mi- chael] Penny properly applied the necessity and business effi cacy tests for implying a disclosure requirement," says Cowan. "Having done that, referring to the com- mon doctrinal underpinning of good faith was not an error. I don't believe they found that doctrine of good faith on its own can be used to imply terms. It is a device for supple- menting the terms to deal with aspects of the relationship that have not been specifi - cally dealt with by the parties." Lederman agrees the case follows Bhasin Cloud 2.0 is here and as customers grow more sophisticated, Cloud computing agreements are evolving to meet regulatory and legal environments and increasing customer needs. However, as the cloud market matures, not all Cloud computing agreements are created equal. Using a balanced approach, we will teach you to understand Cloud agreements, separating the "buzz" from the Cloud. We will offer you practical guidance to drafting and negotiating effective Cloud computing agreements, taking into account the technological, business and legal considerations of your organization's use of Cloud computing technologies and Cloud providers. COURSE LEADER Lisa R. Lifshitz Partner, Torkin Manes LLP COURSE HIGHLIGHTS • Cloud 2.0 – Evolving Cloud Agreements and Current Contract Trends • Drafting Balanced Representations and Warranties/ Indemnities • Demystifying Service Level Agreements - Avoiding the "Gotchyas" • Best practices for Privacy and Data Security • Negotiating the Exit – Ensuring Successful Transition • Clouds for Financial Service Providers • Clouds for Healthcare Providers/Pharma DATE & LOCATION October 6, 2015 St. Andrews Club and Conference Centre 150 King St West, 27th Floor Toronto, ON M5H 1J9 Webinar also available. Register online at www.lexpert.ca/cpdcentre For more information, please contact Lexpert® Events at 1-877-298-5868 CLOUD 2.0 – DRAFTING AND NEGOTIATING EFFECTIVE CLOUD COMPUTING AGREEMENTS EARLY BIRD ENDS SEPT 4