Posts Tagged ‘Business’

Ontario Court: “fax transmission” rule applies to email contract formation

September 16, 2013

 

[25] The general rule of contract law is that a contract is made in the place that the offeror receives notice of the acceptance of the offer from the offeree. See Eastern Power Ltd. v. Azienda Communale Energia and Ambiente 1999 CanLII 3785 (ON CA), (1999), 50 B.L.R. (2d) 33 (Ont. C.A.) at para 22. In that case it was held that the place of acceptance of an offer by return fax was the place where the offeror received notice of the acceptance. For our purposes, an e-mail is no different than a fax. Both are instantaneous communications.Inukshuk Wireless Partnership v. NextWave Holdco LLC et al,2013 ONSC 5631 (CanLII), (Ont. S.C.J.) per Newbould J.  [emphasis added]

The court’s adoption of the “functional equivalence” approach reflects  The UNCITRAL Model Law on Electronic Commerce, 1996 (with additional article 5 bis as adopted in 1998)Resolution adopted by the General Assembly [on the report of the Sixth Committee (A/51/628)] 51/162 Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. [“Model Law”] (see Guide to Enactment, Articles 15-18).

It would have been useful for the court to have mentioned the Electronic Commerce Act, 2000, SO 2000, c 17, which adopts the Model Law in Ontario, and, in particular, the applicable contract formation provisions as follows:

Electronic Transactions and Electronic Agents

Formation and operation of electronic contracts

19. (1) An offer, the acceptance of an offer or any other matter that is material to the formation or operation of a contract may be expressed,

(a) by means of electronic information or an electronic document; or

(b) by an act that is intended to result in electronic communication, such as,

(i) touching or clicking on an appropriate icon or other place on a computer screen, or

(ii) speaking. 2000, c. 17, s. 19 (1).

Contracting out

(2) Subsection (1) applies unless the parties agree otherwise. 2000, c. 17, s. 19 (2).

Legal recognition of electronic contracts

(3) A contract is not invalid or unenforceable by reason only of being in electronic form. 2000, c. 17, s. 19 (3).

Involvement of electronic agents

20. A contract may be formed by the interaction of an electronic agent and an individual or by the interaction of electronic agents. 2000, c. 17, s. 20.

Errors, transactions with electronic agents

21. An electronic transaction between an individual and another person’s electronic agent is not enforceable by the other person if,

(a) the individual makes a material error in electronic information or an electronic document used in the transaction;

(b) the electronic agent does not give the individual an opportunity to prevent or correct the error;

(c) on becoming aware of the error, the individual promptly notifies the other person; and

(d) in a case where consideration is received as a result of the error, the individual,

(i) returns or destroys the consideration in accordance with the other person’s instructions or, if there are no instructions, deals with the consideration in a reasonable manner, and

(ii) does not benefit materially by receiving the consideration. 2000, c. 17, s. 21.

Time of sending of electronic information or document

22. (1) Electronic information or an electronic document is sent when it enters an information system outside the sender’s control or, if the sender and the addressee use the same information system, when it becomes capable of being retrieved and processed by the addressee. 2000, c. 17, s. 22 (1).

Contracting out

(2) Subsection (1) applies unless the parties agree otherwise. 2000, c. 17, s. 22 (2).

Presumption, time of receipt

(3) Electronic information or an electronic document is presumed to be received by the addressee,

(a) if the addressee has designated or uses an information system for the purpose of receiving information or documents of the type sent, when it enters that information system and becomes capable of being retrieved and processed by the addressee; or

(b) if the addressee has not designated or does not use an information system for the purpose of receiving information or documents of the type sent, when the addressee becomes aware of the information or document in the addressee’s information system and it becomes capable of being retrieved and processed by the addressee. 2000, c. 17, s. 22 (3).

Places of sending and receipt

(4) Electronic information or an electronic document is deemed to be sent from the sender’s place of business and received at the addressee’s place of business. 2000, c. 17, s. 22 (4).

Contracting out

(5) Subsection (4) applies unless the parties agree otherwise. 2000, c. 17, s. 22 (5).

Place of business

(6) If the sender or the addressee has more than one place of business, the place of business for the purposes of subsection (4) is the one with the closest relationship to the underlying transaction to which the electronic information or document relates or, if there is no underlying transaction, the person’s principal place of business. 2000, c. 17, s. 22 (6).

Habitual residence

(7) If the sender or the addressee does not have a place of business, the person’s place of habitual residence is deemed to be the place of business for the purposes of subsection (4). 2000, c. 17, s. 22 (7).

 

Ontario Court of Appeal: One-year statutory limitation period applies to business property loss claims

September 11, 2013

Here’s a wake-up call for those of you handling breach of insurance contract claims under commercial general liability (CGL) and other types of business insurance policies for clients. (more…)

Privacy, Shmrivacy

June 11, 2013

For those who slept in or don’t have internet access: You may have missed the media fire-storm surrounding Edward Snowden, a 29-year-old former NSA contractor, most recently employed by Booz Allen Hamilton, who shared hacked liberated divulged details on the agency’s call tracking program and another program called PRISM, which gathers Internet data on foreign citizens suspected of terror links.

Traitor or Patriot? The debate rages on. (more…)

Court of Appeal for Ontario finds restrictive covenants a bit too tight

February 5, 2013

Today’s decision of the Court of Appeal in Ontario in Martin v. ConCreate USL Limited Partnership, 2013 ONCA 72 (“ConCreate”) confirms that restrictive covenants in commercial agreements without a fixed term are unenforceable.

The tl;dr version: Restrictive covenants of indefinite duration and subject to consent of indeterminate third parties are unenforceable. (more…)

Using Social Media Tools in a Practical and Ethical Way

June 2, 2012

 I had the privilege of co-presenting with David Whelan, Manager, Legal Information, Law Society of Upper Canada (LSUC) at the LSUC’s 7th Annual Solo and Small Firm Conference and Expo (Two-Day Program) (View Program Agenda (PDF)).  We presented on the topic of  “Using Social Media Tools in a Practical and Ethical Way”.

See David Whelan’s Blog for a copy of his excellent Power Point slideshow and paper.

Here’s my Power Point slideshow:

Here’s a link to a pdf copy of my paper: Using Social Media Tools in a Practical and Ethical Way. Pribetic

Kudos to the Program Co-Chairs for organizing an informative and interesting conference:

Michele Allinotte, Allinotte Law Office (Blog: http://yourcornwalllawyer.com/category/blog/and

Daniel Pinnington, Vice President, Claims Prevention & Stakeholder RelationsLawyers’ Professional Indemnity Company (LawPro) (Blog: http://avoidaclaim.com/


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