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INTERPRETATION - General principles - Context

Monday, June 15, 2020 @ 5:51 AM  


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Appeal by the plaintiff from trial judgment dismissing his claim for breach of contract. The appellant, a history professor, agreed to collaborate with the respondent newspaper publisher by providing research regarding Winnipeg’s architecture. During negotiations, the appellant was advised that the respondent would not be publishing a book for profit, and there would be no royalties. The respondent also rejected the idea that the appellant would write or have any editorial control on the project. The respondent then published three articles in which the appellant’s contributions were acknowledged. After the articles were published, the Manitoba Association of Architects approached the respondent and requested that they be republished into a book to assist in the commemoration of the Association’s 100th anniversary. When the Association agreed to provide $35,000 to assist in underwriting the costs of publishing the book, the respondent agreed to publish a book. The book was published without the prior knowledge of the plaintiff. The trial judge found that the text of the book was virtually identical to the three articles previously published. The respondent received no profits from the sale of the book and had losses for its publication. The appellant described the book as an abomination and stated that he did not want to be associated with it. The appellant argued the trial judge erred in finding that it was not a term of the contract that the respondent was prohibited from republishing any articles written with the assistance of the plaintiff in book form and that the respondent performed the contract in good faith.

HELD: Appeal dismissed. The trial judge did not err in finding that the nature of the contract between the parties was not a limited licence. He intelligibly analyzed and weighed the evidence in coming to that decision. In the e-mails exchanged, the words the respondent used made it clear that there would be no royalties from the project. There was ample evidence for the judge to find that the factual matrix at the time the contract was agreed upon was that the project was not yet defined, other than a book and royalties would not follow from it. The judge made no palpable and overriding error in rejecting the argument that the appellant’s statement regarding royalties in an e-mail was a counteroffer that, while not accepted expressly, was accepted by the respondent’s conduct. The respondent did not act contrary to its duty of honest performance. It did not lie to or mislead the appellant during the performance of the contract contrary to the duty of honest performance by its non-response to the appellant’s royalty statement and its failure to tell the appellant about the book deal. There was evidence before the judge that the book based on the articles was only published because of a coincidence that occurred after the contract had been performed and not because of some earlier duplicity designed to prejudice the appellant’s interests.

Albo v. Winnipeg Free Press a Division of FP Canadian Newspapers Limited Partnership, [2020] M.J. No. 113, Manitoba Court of Appeal, C.J. Mainella, J. leMaistre and L.T. Spivak JJ.A., May 12, 2020. Digest No. TLD-June152020001