The document discusses the importance of using plain language in legal writing to ensure proper notice and understanding. It notes that notice requires both gaining attention and comprehension of the legal effects and consequences. The science of cognitive neuroscience and linguistics shows that true understanding requires using familiar words and expected information presented clearly without jargon, surprises or ambiguity. Recent court cases have found that merely making a notice noticeable is not sufficient to demonstrate legal notice and comprehension, especially if the notice contains complex language or is visually confusing. The duty to communicate clearly means using a quality standard of comprehensibility so that people can understand how to exercise their legal rights.
Principles of Roman Law: Law of ObligationPreeti Sikder
Roman law classified obligations into four main categories:
1) Obligations from contract - These included real contracts (formed by transfer of an object), verbal contracts (formed through spoken agreement), literal contracts (formed through a written document), and consensual contracts (formed through mutual consent).
2) Obligations from delict - These arose from wrongful acts like theft or damage to property.
3) Obligations from quasi-contract - These were obligations imposed by law without agreement, such as those arising from unjust enrichment.
4) Obligations from quasi-delict - These were similar to delicts but involved negligence rather than intentional misconduct.
For a contract to be valid under Roman law,
ICT and the transformation of the legal profession Oluwaseyi K. Oni
ICT is transforming the legal profession in several ways:
1. Technology is being leveraged to deliver legal services more efficiently through tools like video conferencing, online legal communities, e-libraries and case management systems.
2. The rise of e-commerce requires new approaches to legal documentation and dispute resolution, like online dispute resolution and smart contracts on blockchain.
3. Certain routine legal tasks like company formation and basic legal research may become automated, but complex legal work requiring judgment and nuance will still need human lawyers.
The future legal profession is uncertain but will likely see subscription pricing models, an emphasis on technology skills, and changing roles for legal professionals and tools.
This document provides an overview of contract law and tort law. It defines contract law as a legally binding agreement between two or more parties that creates rights and obligations. The fundamental elements of a contract are identified as offer, acceptance, consideration, intention to create legal relations, and capacity to contract. Tort law is defined as civil wrongs or behaviors that entitle a claimant to a remedy. Examples of torts covered include negligence, nuisance, trespass, and defamation. Negligence is specifically discussed and defined as the breach of a duty of care that results in undesired harm. The elements required to prove negligence in a breach of duty case are also outlined.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
The document discusses the objective test for determining whether parties have reached an agreement in contract law. It explains that the test examines what was communicated between the parties through words and conduct, rather than their subjective intentions. This objective approach promotes certainty in commercial agreements. Two exceptions are mentioned where subjective intentions may be considered - if the offeree knows the offeror has made a mistake, or if the offeree is at fault for failing to notice a mistake. The document analyzes several cases that apply the objective test, such as Smith v Hughes and Centrovincial Estates.
Principles of Roman Law: Law of ObligationPreeti Sikder
Roman law classified obligations into four main categories:
1) Obligations from contract - These included real contracts (formed by transfer of an object), verbal contracts (formed through spoken agreement), literal contracts (formed through a written document), and consensual contracts (formed through mutual consent).
2) Obligations from delict - These arose from wrongful acts like theft or damage to property.
3) Obligations from quasi-contract - These were obligations imposed by law without agreement, such as those arising from unjust enrichment.
4) Obligations from quasi-delict - These were similar to delicts but involved negligence rather than intentional misconduct.
For a contract to be valid under Roman law,
ICT and the transformation of the legal profession Oluwaseyi K. Oni
ICT is transforming the legal profession in several ways:
1. Technology is being leveraged to deliver legal services more efficiently through tools like video conferencing, online legal communities, e-libraries and case management systems.
2. The rise of e-commerce requires new approaches to legal documentation and dispute resolution, like online dispute resolution and smart contracts on blockchain.
3. Certain routine legal tasks like company formation and basic legal research may become automated, but complex legal work requiring judgment and nuance will still need human lawyers.
The future legal profession is uncertain but will likely see subscription pricing models, an emphasis on technology skills, and changing roles for legal professionals and tools.
This document provides an overview of contract law and tort law. It defines contract law as a legally binding agreement between two or more parties that creates rights and obligations. The fundamental elements of a contract are identified as offer, acceptance, consideration, intention to create legal relations, and capacity to contract. Tort law is defined as civil wrongs or behaviors that entitle a claimant to a remedy. Examples of torts covered include negligence, nuisance, trespass, and defamation. Negligence is specifically discussed and defined as the breach of a duty of care that results in undesired harm. The elements required to prove negligence in a breach of duty case are also outlined.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
This document provides an overview of alternative dispute resolution and litigation for business executives. It discusses three key points:
1. Uncertainty from disputes can damage a company in many ways such as making lenders less likely to lend. It is difficult for executives to separate disputes from their personal and professional roles.
2. Most civil lawsuits settle before or during trial to avoid high costs and uncertainty. Effective pre-trial discovery is important for determining settlement parameters.
3. Studies show that plaintiffs who reject settlement offers usually fare worse financially at trial, while defendants who reject offers risk much larger losses if they receive an unfavorable verdict. Trials are high-risk gambles for both sides.
The document discusses the objective test for determining whether parties have reached an agreement in contract law. It explains that the test examines what was communicated between the parties through words and conduct, rather than their subjective intentions. This objective approach promotes certainty in commercial agreements. Two exceptions are mentioned where subjective intentions may be considered - if the offeree knows the offeror has made a mistake, or if the offeree is at fault for failing to notice a mistake. The document analyzes several cases that apply the objective test, such as Smith v Hughes and Centrovincial Estates.
This document discusses the history and relevance of arbitration as a tool for dispute resolution in Nigeria. It provides the following key points:
1. Arbitration has existed since ancient times as a more informal way for parties to settle disputes without the formality and expense of courts. It originally involved parties agreeing to accept the decision of a third party to resolve their conflict.
2. Arbitration was used in Nigeria prior to colonialism through various customary dispute resolution methods. The British then introduced a formal arbitration system through ordinances in 1914 based on English law.
3. Today, arbitration is governed by the Arbitration and Conciliation Act and is an important alternative dispute resolution mechanism in Nigeria. It allows
A 1+ hour presentation on contract drafting basics under English law, given at Moscow State Law University for Lexis Nexis. Contains speakers notes with applicable cases.
My Client has been Sued in the United States--Now What?Scueto77
This document provides an overview of what a foreign company or individual can expect when facing a lawsuit in the United States. It discusses informing clients about differences from their own legal system, managing clients' fears, accurately explaining the issues in the client's native language, and addressing threshold questions of jurisdiction and the possibility of moving the case abroad. The key recommendations are to develop a simple written summary of the basic facts for clients in their own language, explain differences from their legal system, address fears about unfamiliar aspects like juries, and determine if the court has jurisdiction and if moving the case to another forum is possible.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
This document discusses trade secret mediation from the perspective of a mediator. It begins by explaining that trade secret litigation often involves high levels of distrust between parties due to allegations of theft. This can make reaching a settlement difficult. However, mediation can still be successful if the parties overcome these issues. The document then provides tips for counsel, such as understanding the legal definition of a trade secret, developing trust, conducting thorough discovery, and knowing when to limit expert reports. The goal is to assist counsel in successfully mediating trade secret disputes.
Presentation materials for my talk on the basics of contract law given to the Canadian-Chinese Professional Accountants Association. It covers some of the basic concepts, and some common terms. I discussed common errors and misunderstandings, and elaborated on different negotiation strategies as well.
The document provides information on best practices for alternative dispute resolution (ADR). It discusses that ADR can help support court reform by providing alternatives to full legal proceedings. Different ADR options are described from facilitated negotiations to arbitration that resembles a courtroom process. The document also discusses how ADR methods like dispute boards have been incorporated into FIDIC construction contracts to allow for binding decisions on disputes prior to formal legal proceedings. Key aspects of employing dispute boards and their increasing focus on dispute avoidance are covered.
This document discusses different types of agreements under contract law including void, unenforceable, and illegal agreements. It provides examples of situations that would make agreements void or illegal, such as lack of capacity, unlawful consideration, or agreements that restrain trade. The document also discusses the concepts of fraud, unilateral mistake, mutual mistake, and when a minor can disaffirm a voidable contract.
This document provides guidance on writing for readability and neurocognitive ease. It discusses three key stages of the reading process - lexical, syntactic, and inference building. To aid comprehension, assimilation and recall, writers should use familiar words, clear subject-verb-object sentence structures, chronological order, and continuity between ideas. Focusing on speed, efficiency and accuracy of recall, the document recommends techniques like priming content, hierarchy of information, and placing positives before negatives. The overall goal is to make written content feel easy to understand and mentally effortless for readers.
1. The reasonable person standard is based on the average or ordinary person rather than an exceptionally intelligent or skilled individual.
2. This standard entered law in the 19th century to provide a behavioral measure against which to judge conduct.
3. However, the traditional standard does not fully consider individual characteristics like intelligence or limitations, though it does consider circumstances.
1. The document discusses the evolution of the "reasonable person" standard from referring to an ordinary, average man to a more inclusive definition that considers various hidden characteristics and limitations.
2. These include physical, cognitive, and social factors like disabilities, mental health issues, literacy levels, and cultural backgrounds.
3. The reasonable person standard is now viewed as applying to a range of ordinary individuals in similar circumstances and under the same limitations or disabilities, rather than an average person without such factors.
This document outlines Cheryl Stephens' plain language project cycling plan. The plan involves 5 phases: discover, define, design, develop, and deploy. In the discover phase, stakeholders are identified and the problem is explored. In define, goals and tasks are outlined. Design creates a strategy, develop writes content, and deploy tests with users. Evaluation and feedback are critical before learning from the experience and developing a proprietary system. The cycling plan provides a structured process for plain language projects.
The document discusses guidelines for writing in plain language. It recommends focusing content on the reader, being brief, using an active voice and positive language, organizing information logically, and designing documents for easy reading. Specific tips include using short sentences and paragraphs, defining technical terms, and avoiding nominalizations and negative constructions. Proper organization, transitions, formatting and visual elements can also improve understandability. The goal is to communicate complex information simply and clearly.
This document discusses the issue of language barriers in the criminal justice system. It notes that only 1 in 8 Americans has the level of language ability needed to understand legal procedures and processes. Even minor convictions can have major consequences on people's lives by affecting things like professional licenses, student loans, child custody, health care, food stamps, immigration status, public housing, and more. Many people suffer due to language barriers, including victims, the accused, witnesses, families, and communities. The document outlines some of the communication hurdles people face, including situational, short-term, and long-term barriers. It also discusses sources of cognitive deficiencies and gaps between people's cognitive ability levels and the demands of the legal system.
The document discusses the right to access quality information. It argues that access to information is needed to exercise other human rights, placing a duty on governments to provide usable information. It outlines how several international agreements and courts have recognized access to information as a fundamental human right. It also discusses how disability and anti-discrimination laws in countries like the US and Canada require information to be provided in an accessible and understandable manner for all people, including those with low literacy skills or disabilities.
Hochhauser: How Do Our Readers Really Think, Understand, and Decide-- Despite...Cheryl Stephens
1. Reading comprehension is affected by individual brain functioning and differs between people based on factors like aging, learning disabilities, health issues, and more.
2. The brain has limited working memory and processing capabilities, so when cognitively overloaded people rely on mental shortcuts and intuition to make decisions.
3. Plain language may help some but not all, as individual brain differences and decision-making strategies can overcome or resist even very clear communication.
Does it seem that the lawyer or legal department is always blocking your efforts to use plain language for better client service. Cheryl explain how to win them over. Based on an article in Clarity, journal on plain legal writing.
Right to Understand --2009rt2info powerpoint c-stephensCheryl Stephens
I'm starting a conversation about right to understandable information from those who are obliged by law to provide us information or disclosure. I assert that this right already exists.
This document discusses the history and relevance of arbitration as a tool for dispute resolution in Nigeria. It provides the following key points:
1. Arbitration has existed since ancient times as a more informal way for parties to settle disputes without the formality and expense of courts. It originally involved parties agreeing to accept the decision of a third party to resolve their conflict.
2. Arbitration was used in Nigeria prior to colonialism through various customary dispute resolution methods. The British then introduced a formal arbitration system through ordinances in 1914 based on English law.
3. Today, arbitration is governed by the Arbitration and Conciliation Act and is an important alternative dispute resolution mechanism in Nigeria. It allows
A 1+ hour presentation on contract drafting basics under English law, given at Moscow State Law University for Lexis Nexis. Contains speakers notes with applicable cases.
My Client has been Sued in the United States--Now What?Scueto77
This document provides an overview of what a foreign company or individual can expect when facing a lawsuit in the United States. It discusses informing clients about differences from their own legal system, managing clients' fears, accurately explaining the issues in the client's native language, and addressing threshold questions of jurisdiction and the possibility of moving the case abroad. The key recommendations are to develop a simple written summary of the basic facts for clients in their own language, explain differences from their legal system, address fears about unfamiliar aspects like juries, and determine if the court has jurisdiction and if moving the case to another forum is possible.
Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Rejecting a settlement offer carries risks, as plaintiffs who turn down offers often receive less at trial. Plaintiffs were more likely to make poor choices about rejecting offers in contingency fee cases.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions. Developing rapport and trust between parties can help reach a mutually agreeable solution.
April 2011 Part Ii What Every Executive Should Know About Dispute ResolutionRBCG1
1) Litigation is costly for businesses and most cases settle before going to trial. During the litigation process, discovery allows both sides to determine boundaries for settlement negotiations.
2) Plaintiffs who reject settlement offers often fare worse at trial, receiving smaller awards than the rejected offers. Defendants who reject settlement offers also often lose more by going to trial when they could have settled for less.
3) Negotiation is an important alternative to litigation for resolving disputes and should focus on interests rather than positions to find mutually agreeable solutions. Building rapport and trust between parties can help resolve current and future conflicts.
This document discusses trade secret mediation from the perspective of a mediator. It begins by explaining that trade secret litigation often involves high levels of distrust between parties due to allegations of theft. This can make reaching a settlement difficult. However, mediation can still be successful if the parties overcome these issues. The document then provides tips for counsel, such as understanding the legal definition of a trade secret, developing trust, conducting thorough discovery, and knowing when to limit expert reports. The goal is to assist counsel in successfully mediating trade secret disputes.
Presentation materials for my talk on the basics of contract law given to the Canadian-Chinese Professional Accountants Association. It covers some of the basic concepts, and some common terms. I discussed common errors and misunderstandings, and elaborated on different negotiation strategies as well.
The document provides information on best practices for alternative dispute resolution (ADR). It discusses that ADR can help support court reform by providing alternatives to full legal proceedings. Different ADR options are described from facilitated negotiations to arbitration that resembles a courtroom process. The document also discusses how ADR methods like dispute boards have been incorporated into FIDIC construction contracts to allow for binding decisions on disputes prior to formal legal proceedings. Key aspects of employing dispute boards and their increasing focus on dispute avoidance are covered.
This document discusses different types of agreements under contract law including void, unenforceable, and illegal agreements. It provides examples of situations that would make agreements void or illegal, such as lack of capacity, unlawful consideration, or agreements that restrain trade. The document also discusses the concepts of fraud, unilateral mistake, mutual mistake, and when a minor can disaffirm a voidable contract.
This document provides guidance on writing for readability and neurocognitive ease. It discusses three key stages of the reading process - lexical, syntactic, and inference building. To aid comprehension, assimilation and recall, writers should use familiar words, clear subject-verb-object sentence structures, chronological order, and continuity between ideas. Focusing on speed, efficiency and accuracy of recall, the document recommends techniques like priming content, hierarchy of information, and placing positives before negatives. The overall goal is to make written content feel easy to understand and mentally effortless for readers.
1. The reasonable person standard is based on the average or ordinary person rather than an exceptionally intelligent or skilled individual.
2. This standard entered law in the 19th century to provide a behavioral measure against which to judge conduct.
3. However, the traditional standard does not fully consider individual characteristics like intelligence or limitations, though it does consider circumstances.
1. The document discusses the evolution of the "reasonable person" standard from referring to an ordinary, average man to a more inclusive definition that considers various hidden characteristics and limitations.
2. These include physical, cognitive, and social factors like disabilities, mental health issues, literacy levels, and cultural backgrounds.
3. The reasonable person standard is now viewed as applying to a range of ordinary individuals in similar circumstances and under the same limitations or disabilities, rather than an average person without such factors.
This document outlines Cheryl Stephens' plain language project cycling plan. The plan involves 5 phases: discover, define, design, develop, and deploy. In the discover phase, stakeholders are identified and the problem is explored. In define, goals and tasks are outlined. Design creates a strategy, develop writes content, and deploy tests with users. Evaluation and feedback are critical before learning from the experience and developing a proprietary system. The cycling plan provides a structured process for plain language projects.
The document discusses guidelines for writing in plain language. It recommends focusing content on the reader, being brief, using an active voice and positive language, organizing information logically, and designing documents for easy reading. Specific tips include using short sentences and paragraphs, defining technical terms, and avoiding nominalizations and negative constructions. Proper organization, transitions, formatting and visual elements can also improve understandability. The goal is to communicate complex information simply and clearly.
This document discusses the issue of language barriers in the criminal justice system. It notes that only 1 in 8 Americans has the level of language ability needed to understand legal procedures and processes. Even minor convictions can have major consequences on people's lives by affecting things like professional licenses, student loans, child custody, health care, food stamps, immigration status, public housing, and more. Many people suffer due to language barriers, including victims, the accused, witnesses, families, and communities. The document outlines some of the communication hurdles people face, including situational, short-term, and long-term barriers. It also discusses sources of cognitive deficiencies and gaps between people's cognitive ability levels and the demands of the legal system.
The document discusses the right to access quality information. It argues that access to information is needed to exercise other human rights, placing a duty on governments to provide usable information. It outlines how several international agreements and courts have recognized access to information as a fundamental human right. It also discusses how disability and anti-discrimination laws in countries like the US and Canada require information to be provided in an accessible and understandable manner for all people, including those with low literacy skills or disabilities.
Hochhauser: How Do Our Readers Really Think, Understand, and Decide-- Despite...Cheryl Stephens
1. Reading comprehension is affected by individual brain functioning and differs between people based on factors like aging, learning disabilities, health issues, and more.
2. The brain has limited working memory and processing capabilities, so when cognitively overloaded people rely on mental shortcuts and intuition to make decisions.
3. Plain language may help some but not all, as individual brain differences and decision-making strategies can overcome or resist even very clear communication.
Does it seem that the lawyer or legal department is always blocking your efforts to use plain language for better client service. Cheryl explain how to win them over. Based on an article in Clarity, journal on plain legal writing.
Right to Understand --2009rt2info powerpoint c-stephensCheryl Stephens
I'm starting a conversation about right to understandable information from those who are obliged by law to provide us information or disclosure. I assert that this right already exists.
The presentation deals with the concept of Right to Default Bail laid down under Section 167 of the Code of Criminal Procedure 1973 and Section 187 of Bharatiya Nagarik Suraksha Sanhita 2023.
A Critical Study of ICC Prosecutor's Move on GAZA WarNilendra Kumar
ICC Prosecutor Karim Khan's proposal to its judges seeking permission to prosecute Israeli leaders and Hamas commanders for crimes against the law of war has serious ramifications and calls deep scrutiny.
सुप्रीम कोर्ट ने यह भी माना था कि मजिस्ट्रेट का यह कर्तव्य है कि वह सुनिश्चित करे कि अधिकारी पीएमएलए के तहत निर्धारित प्रक्रिया के साथ-साथ संवैधानिक सुरक्षा उपायों का भी उचित रूप से पालन करें।
2. What is it about notice?
Notice requires gaining attention from:
• legibility
• prominence
Understanding of effect and consequences
=comprehension
3. Lord Denning in the 1956 English case Spurling v
Bradshaw:
“some clauses I have seen would need to be
printed in red ink on the face of the
document with a red hand pointing to it
before the notice could be held to be
sufficient”
4. Notice must capture attention
• Prominence:
stands out from the wall of text
• Legibility:
legible, decipherable typography
• Readable:
capable of being read with ease
5. What amounts to good notice?
The Supreme Court of Canada says to be informed means to:
• know your rights affecting legal processes
• know which rights apply to what is happening
• understand those rights
• be able to make informed choices
• be able to use those rights to take action in what we each consider our
own best interests
Standard, reasonable effort should consider:
Physical, medical, mental disabilities, effect on cognition, memory, reading
6. What is the right to understand?
The right to understand is found by
international law:
• case law
• statutes
• international agreements and
covenants
The United Nations Convention on the Rights
of Persons with Disabilities:
When an institution is required to provide
information, it needs to be understandable.
The convention includes plain language as
one of the "modes, means and formats of
communication.
9. Right to
information
Right to
understand
Duty to
communicate
Quality
standard
A right to access information means a right to
access quality information.
Information quality includes:
accuracy, completeness, currency, and
comprehensibility.
Comprehensibility: material is only informative
to a person if they can comprehend it.
10. The right to
information =
right to understand =
duty to communicate
clearly and simply
Legally informed means reasonable efforts
have been made to ensure a person has
understood the information given to them.
Only a person who is truly informed can be
expected to properly exercise a right.
• Tell the person of their rights in a way that
the person could understand.
• The person must actually understand and
appreciate the substance of the right, and the
extent of the jeopardy.
• They must understand consequences of
waiving the right.
Notice must be
understood
11. Notices: fairness, equity, conscionable
Supreme Court of Canada
• supports contractual fairness
• protects against unconscionability
• applies equity to consumer transactions
15. 20 years’ research in cognitive
neuroscience and linguistics shows how
complicated understanding is
16. Comprehension means
understanding effect and consequences
Science confirms requirements for understanding:
• familiar words
• default English sentence structure
• intuitive, ordinary, expected, predictable information
So,
• No jargon
• No surprises
• Not ambiguous or subject to interpretation
• Attention drawn to onerous terms requiring special,
focused attention
23. The Big White example:
McQuary v. Big White Ski Resort Limited. 1997
The 1997 court said the drafting, design,
and colour of the tickets and signs showed
the resort had alerted the skier who had a
reasonable opportunity to read the waiver
clause.
In 2019, a BC Court again endorsed the
decision in Big White on the basis that the
notice was noticeable.
The language has not been challenged.
The waiver is prominent but effectively
invisible. No expert witness was called.
Counsel said, “It's as ugly as one can
imagine, however the whole purpose of
the yellow, the black and the red is
again to emphasize to a skier ‘read
this’".
Nobody reads ugly; they look away.
24. Legal sufficiency of notice is a
practical question.
Insufficiency can be inferred from the circumstances
25. The sign at the ticket booth was difficult to
read… it is one long paragraph with many
commas and semi-colons
There was no emphasis given to the own-
negligence exclusion which was buried in small
print among many commas and semi-colons.
It is unrealistic to believe that a person
approaching the ticket booth would stop in
of the window to read the sign.
“a rental transaction was
typically concluded in a
hurried, informal manner”
• The exclusion provision on
the back of contract was in
small type and so faint
that it was not legible in the
customer’s copy
• The exclusion clause was
inconsistent with the
over-all purpose of
transaction
Examples of court assessments of circumstances
In Clendenning Battiston
26. “Something more should be done by the party
submitting the contract for signature than
merely handing it over to be signed…
“In modern commercial practice, many standard
form printed documents are signed without
being read or understood… in the absence of
such reasonable measures, it is not necessary
for the party denying knowledge of such terms
to prove either fraud, misrepresentation or non
est factum.”
Dubin in Clendenning is
quoted in MacQuarie
Equipment Finance Ltd.
27. We don’t expect a signing party will take time to read the
agreement.
The purport of particular provisions of the agreement will not
be understood by the signing party.
The signature does not dispense with the notice issue, but the
opportunities for imposing harsh and oppressive terms on an
unsuspecting party are as present with signed documents as
they with unsigned documents.
It is not surprising that the recent jurisprudence indicates that
notice requirements are migrating into the context of signed
agreements.
Quote from Battiston
Edited for brevity
Ontario Court of Appeal
28. Recent or relevant
cases and
commentary
Take a screenshot
or photo
In Machtinger v. HOJ Industries Ltd. 1992
CanLII 102 (SCC), [1992] 1 S.C.R. 986, para.
19
Battiston v. Microsoft Canada Inc., 2020
ONSC 4286 (CanLII)
MacQuarie Equipment Finance Ltd. v.
2326695 Ontario Ltd. (Durham Drug Store),
2020 ONCA 139
Tilden Rent-A-Car Co. v. Clendenning
(1976), 1978 (CanLII)
Professor John D. McCamus in The Law of
Contracts, 2nd ed. (Toronto: Irwin Law,
2012), at p. 1993-4
R. v. Ramsoondar, 2001
Editor's Notes
When there is a duty to notify, there is also an obligation to use clear communication.
Applies to parliament, federal government of Canada, federally-regulated private sector
Enforcing the Charter of Rights and Freedoms,
The Supreme Court of Canada says,
to be informed means to:
know rights affecting legal processes
know which rights apply to what is happening
understand them
be able to make informed choices
be able to use them to take action in what we each consider our own best interests
Standard should consider: Physical, medical, mental
disabilities , effect on cognition, memory, reading
Language, density, and length limit readability
Noticeable or attention getting are not the same as attending to, focusing on, reading, and understanding.
Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702
http://www.courts.gov.bc.ca/jdb-txt/sc/17/17/2017BCSC1702.htm
As a condition of use of the ski area and other facilities, the Ticket Holder assumes all risk of personal injury, death or property loss resulting from any cause whatsoever including but not limited to: the risks, dangers and hazards of skiing, snowboarding, tubing, skating, cycling, hiking and all other recreational activities; the use of ski lifts; collision or impact with natural or man-made objects or with skiers, snowboarders or other persons; travel within or beyond the ski area boundaries; or negligence, breach of contract, or breach of statutory duty of care on the part of Big White Ski Resort Ltd. and its directors, officers, employees, instructors, volunteers, agents, independent contractors, subcontractors, representatives, sponsors, successors and assigns (hereinafter collectively referred to as the “Ski Area Operator”). The Ticket Holder agrees that the Ski Area Operator shall not be liable for any such personal injury, death or property loss and releases the Ski Area Operator and waives all claims with respect thereto.
Clendenning., Dubin, quoted in MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139
Quoted in Battiston
“…even with a signed agreement, inadequate notice of a particularly unfair term may render that term unenforceable.”
Tilden Rent-A-Car Co. v. Clendenning was recently considered in
MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139, … the Ontario Court of Appeal
“I find that the termination provisions found in the Stock Award Agreements were harsh and oppressive as they precluded Battiston’s right to have unvested stock awards vest if he had been terminated without cause. I also accept Battiston’s evidence that he was unaware of these termination provisions and that these provisions were not brought to his attention by Microsoft. Microsoft’s email communication that accompanied the notice of the stock award each year does not amount to reasonable measures to draw the termination provisions to Battiston’s attention. Accordingly, the termination provisions in the Stock Award Agreements cannot be enforced against Battiston. Battiston is entitled to damages in lieu of the 1,057 shares awarded that remain unvested.
Battiston v. Microsoft Canada Inc., 2020 ONSC 4286 (CanLII)
Ontario Occupiers Liability Act
Reasonable steps to inform
(3) Where an occupier is free to restrict, modify or exclude the occupier’s duty of care or the occupier’s liability for breach thereof, the occupier shall take reasonable steps to bring such restriction, modification or exclusion to the attention of the person to whom the duty is owed. R.S.O. 1990, c. O.2, s. 5.
General, according to Gowling website
Whether exclusions or limitations of liability will be effective will depend on whether the clauses in question can be interpreted clearly and whether they can be deemed to be fair and reasonable.
Under the Consumer Rights Act 2015 (CRA) a term in a consumer contract which limits or excludes liability will not be binding unless it can be said to be fair. Likewise under the Unfair Contract Terms Act 1977 (UCTA) liability can only be limited or excluded in business to business contracts if the clause is fair and reasonable.
Ensure that clear and unambiguous wording is used - and if negligence is to be excluded, make sure the clause expressly says so;
If the clause is ambiguous and is open to interpretation, any doubt as to its meaning may be decided against the party seeking to rely on it;
Do not try to hide or bury exclusion or limitation clauses in a contract or standard terms - to give them the best chance of working they should be brought to the other party's attention;
You cannot exclude liability in negligence for death and personal injury - if you try to, that part of the clause will fail;