Nick Morrow

The appellant purchased a condominium unit under an agreement of purchase and sale in a building that subsequently entered receivership.

The receiver sought to disclaim the purchase agreement to maximize asset recovery.

The appellant opposed the disclaimer, relying on a supplementary agreement with the developer and its president.

The motion judge found the supplementary agreement unenforceable due to an entire agreement clause in the subsequent purchase agreement and granted the disclaimer order.

The appellant appealed on three grounds: that the motion judge failed to apply the Tercon test for entire agreement clauses, failed to consider public policy, and erred in applying the disclaimer test regarding equities.

The Court of Appeal dismissed the appeal, finding the motion judge properly conducted the Tercon analysis, identified no overriding policy reason to override the contractual terms, and correctly applied the disclaimer test by considering all circumstances and concluding the equities did not support preferring the appellant's claim over other creditors.

The court considered whether the defences of anticipation and obviousness to a patent infringement claim should be struck as an abuse of process, given a prior Patent Re-Examination Board decision.

The court held that the issues before the Board (patentability) and the court (validity) are distinct, and that the Patent Act reserves validity determinations for the courts.

The motion to strike was dismissed, allowing the defences to proceed.

The court considered whether the Receiver could disclaim an agreement of purchase and sale for a condominium unit, where the purchaser (Berry) claimed entitlement to specific performance and an equitable interest in the unit.

The Receiver, supported by the senior secured creditor, sought to maximize recovery for creditors.

The court found that Berry had not paid the full purchase price, that the supplementary and "as is, where is" agreements were not enforceable, and that the equities did not support a preference for Berry over other creditors.

The Receiver was authorized to disclaim the agreements.

The plaintiff in a patent infringement action brought a motion to compel the defendants to produce additional financial information and records relating to the use of the allegedly infringing mine doors, and to make officers available for cross-examination.

The court dismissed the motion, finding that the statement of claim did not plead an accounting of profits against the co-defendant purchaser, and that the request against the manufacturer defendant was premature as the plaintiff had not yet conducted examinations for discovery to identify specific missing documents.