LEXPERT MAGAZINE
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MARCH 2019 13
e significance of the Ammazzini deci-
sion lies in the willingness of the Saskatch-
ewan court to tackle the vexing problem
of overlapping class actions and to accept
a practical solution to the lack of a formal
process to resolve multidistrict class action
litigation in Canada. is decision is im-
portant to the class actions bar, as well as
to members of the judiciary who are called
upon to manage overlapping multijurisdic-
tional class actions in Canada.
Katherine L. Kay, Danielle Royal and
Sinziana Hennig of Stikeman Elliott
LLP represented the defendants, Anglo
American PLC and De Beers Canada Inc.
E. F. Anthony Merchant, QC, and Iqbal
Brar of Merchant Law Group LLP acted
for the Saskatchewan plaintiffs.
David G. A. Jones and Naomi J. Kovak
of Camp Fiorante Matthews Mogerman
LLP acted for Ontario plaintiff Kirk Brant.
BROCCOLINI LIMITED PARTNERSHIP
1 V. RESTAURANT LOUPY'S INC.,
2019 QCCA 297
DECISION DATE: JANUARY 29, 2019
A catering franchisee — Gilles Lupien,
a retired NHL player — was ultimately
successful in a multimillion-dollar lawsuit
against a real estate developer.
e developer had proposed that the
franchisee build and operate a restaurant
as part of a new commercial development
in west suburban Montréal, which was
to include a commercial mall and a hotel.
e contract between the franchisee and
the developer, signed in December 2007,
provided that the franchisee build the res-
taurant and then operate it under a lease
with the developer. e franchisee built the
restaurant as agreed, but neither the com-
mercial mall nor the hotel were developed.
In its December 2016 judgement, the
Québec Superior Court held that such
conduct by the developer was an of abuse of
rights and breach of the rules of good faith
in contractual matters.
is lawsuit also dealt with the applica-
tion (or non-application) of "entire agree-
ment" clauses generally contained in com-
mercial leases. In this case, the context for
the signing of the lease was important, as
representations had been made before and
aer signing that a commercial mall and a
hotel would be built. Ultimately, the Court
considered the wording of the lease am-
biguous given that certain of its provisions
could be read as if the mall and hotel had
been built. e "entire agreement" clause
was thus tossed aside by the Court, which
then applied the rules of interpretation and
considered the context, including precon-
tractual representations. e Court held
that the developer's conduct amounted to
misrepresentation and breach of its duty to
act in good faith. e lease was annulled
and the franchisee was ultimately awarded
$4.1 million in damages and interest.
e developer's appeal of the decision was
rejected by the Court of Appeal of Québec.
e plaintiff/respondent, Restaurant
Loupy's Inc., was represented by Frédéric
Paré, Maude Brouillette and Marjorie
Bouchard of Stikeman Elliott LLP.
Jacques S. Darche and Marie-Claude
Lassiseraye Mathieu of Borden Ladner
Gervais LLP acted for the defendants/ap-
pellants, Broccolini Limited Partnership 1
and 6750923 Canada Inc.
CHURCHILL FALLS (LABRADOR)
CORP. V. HYDRO- QUÉBEC,
2018 SCC 46
DECISION DATE: NOVEMBER 2, 2018
At the Supreme Court of Canada, Hydro-
Québec was successful in defeating a claim
brought by Churchill Falls (Labrador)
Corporation Limited (CFLCo) seek-
ing to increase the price paid by Hydro-
Québec for electricity purchased from the
Churchill Falls Power Plant pursuant to a
65-year contract entered into in 1969.
A judgment favourable to Hydro-Qué-
bec was rendered by the Québec Superior
Court in 2016. CFLCo's appeal before the
Court of Appeal of Québec was heard on
December 5, 2017. In a judgment rendered
in November, the Supreme Court of Cana-
da rejected CFLCo's attempt to reopen the
Power Contract, thereby confirming the
earlier rulings by the Québec Court of Ap-
peal and the Québec Superior Court.
e majority of the Supreme Court held
that the significant increase in the market
value of electricity since the Power Con-
tract was entered into did not impose on
Hydro-Québec an obligation to renegoti-
ate the agreement's pricing terms. In this
regard, the Court confirmed that Québec
civil law does not recognize the doctrine of
"unforeseeability" and noted, in any event,
that the Power Contract did not create a
situation of hardship for CFLCo.
Moreover, the majority of the Court
rejected CFLCo's argument that the civil
law concepts of contractual good faith and
equity required the Power Contract's rene-
gotiation. According to the majority, the
duty to cooperate with the other contract-
ing party does not mean that one must sac-
rifice one's own interests. In insisting that
the bargain reflected in the Power Con-
tract's pricing terms be respected, Hydro-
Québec was not acting unreasonably, the
Court found.
e Court further confirmed that the
interpretation and characterization of the
Power Contract were questions of mixed
fact and law and that the trial judge's find-
ings could not be overturned absent a pal-
pable and overriding error.
Finally, the Supreme Court of Canada
found that the Power Contract was neither
a joint venture — lacking the intent of the
parties to enter into a partnership or to
cooperate beyond the simple cooperation
required to perform their respective presta-
tions — nor a relational contract, lacking
flexible economic coordination and im-
portant undefined prestations. It does not
suffice that a contract be long-term and re-
quire some measure of collaboration to be
qualified as relational.
Norton Rose Fulbright Canada LLP
represented the respondent before the Qué-
bec Superior Court, the Québec Court of
Appeal and the Supreme Court of Canada.
e team was led by Pierre Bienvenu, AdE,
and included Sophie Melchers, Andres C.
Garin, Horia Bundaru, William Hesler,
QC, Vincent Rochette and Dominic Du-
poy. In-house counsel for Hydro-Québec
was Lucie Lalonde.
e appellant was represented by Doug-
las Mitchell and Audrey Boctor of IMK
LLP, and by Patrick Girard of Stikeman
Elliott LLP.
