Cameron v. National Bank of Canada

Cameron v. National Bank of Canada

Para.24 of the share purchase agreement does not operate as a condition precedent to the appellants' obligations but as a limit on claims; alternatively, even if it could be read as a condition precedent, appellants failed to prove that more than $2,000,000 was required to obtain a release, so they cannot avoid their obligations; KJS validly took assignment and recovered the shortfall and the Counsel agreement does not amount to acceptance of mitigation that would alter allocation, which must follow the Bank's debt instruments.

Citation
2009 ONCA 707
Parties
Plaintiff (appellant): John Cameron; Plaintiff (appellant): John Johnstone; Plaintiff (appellant); Defendant (appellant in Counterclaim): Cameron & Johnstone Limited; Defendant (respondent): National Bank of Canada; Defendant (respondent); Plaintiff by Counterclaim (respondent): KJS Investment Holdings Inc.; Defendant by Counterclaim (appellant): 725 Coronation Boulevard Ltd.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
8 October 2009
Procedural Posture
Civil / Appeal to Court of Appeal From Superior Court Trial Judgment
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
Assignment of Debt, Enforceability of Security, Condition Precedent, Mitigation of Damages, Allocation of Realization Proceeds, Costs
Source Language
English
Contract Law Commercial Law Secured Transactions Civil Procedure Remedies and Damages Assignment of Debt Enforceability of Security Condition Precedent +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 1 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

John Cameron

Plaintiff (appellant)

John Johnstone

Plaintiff (appellant)

Cameron & Johnstone Limited

Plaintiff (appellant); Defendant (appellant in Counterclaim)

National Bank of Canada

Defendant (respondent)

KJS Investment Holdings Inc.

Defendant (respondent); Plaintiff by Counterclaim (respondent)

725 Coronation Boulevard Ltd.

Defendant by Counterclaim (appellant)

Procedural Posture

Civil / Appeal to Court of Appeal From Superior Court Trial Judgment

Legal Issues

  1. 1 Whether paragraph 24 of the share purchase agreement is a condition precedent to the appellants' obligation
  2. 2 Whether KJS was entitled to take an assignment of the Bank's debt and security and to realize on security provided by the appellants
  3. 3 Whether appellants proved that more than $2,000,000 was required to obtain a release of the KJS security

Ratio Decidendi

Para.24 of the share purchase agreement does not operate as a condition precedent to the appellants' obligations but as a limit on claims; alternatively, even if it could be read as a condition precedent, appellants failed to prove that more than $2,000,000 was required to obtain a release, so they cannot avoid their obligations; KJS validly took assignment and recovered the shortfall and the Counsel agreement does not amount to acceptance of mitigation that would alter allocation, which must follow the Bank's debt instruments.

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • Vary damage calculation in accordance with reasons of the Court of Appeal
  • If parties cannot agree on allocation of realization proceeds under the Bank's debt instruments within 14 days, appellants to file written submissions within 7 days and KJS to respond within 7 days