Date: 19990412
Docket: A-232-95
CORAM: STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
HUGH WILLIAMS
Appellant
(Plaintiff)
- and -
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on
Monday, April 12, 1999)
ROBERTSON J.A.:
[1] Because of the terms of a consent order which had issued early on in the proceedings, the appellant can succeed only if he is able to establish that the agreement in question is subject to the doctrine of frustration. Moreover, according to that order he must establish that in fact and law the agreement was frustrated. For this reason, we asked the parties to deal initially with the argument relating to the applicability of the doctrine of frustration in the circumstances of the present case.
[2] Essentially, the agreement in question provides for a panel of physicians to make a determination as to whether the appellant had become disabled and, therefore, entitled to certain benefits. The panel reached a unanimous decision, but one contrary to the appellant's best interests. Ultimately, the matter was heard by Justice MacKay of the trial division who ruled against the appellant. In our respectful opinion the appeal must be dismissed. In light of his comprehensive review of the facts, issues and law it is unnecessary to revisit these matters in detail.
[3] In written argument, the appellant challenged the decision of the medical panel on grounds that it erred in assessing the evidence, which was before it. In oral argument the appellant refined his argument to allege that the panel did not perform its task in accordance with article 3 of the agreement.
[4] Irrespective of whether the agreement provides for a "valuation", as found by Justice MacKay, rather than an "arbitration", it is clear in our view that the doctrine of frustration is of no assistance to the appellant.
[5] Loosely stated, the doctrine of frustration provides that a contract may be discharged if after its formation events occur making its performance impossible, impractical or illegal. The doctrine developed as an expedient to escape from injustices which would result from enforcing the literal terms of a contract. It does so by freeing "innocent parties" from their contractual obligations and, thus, liability for damages. In the present case, had the panel failed to produce the required report then arguably the doctrine would have been available to all of the parties. But those are not the facts before us. Here there is no intervening act which makes performance, by the appellant, of the agreement impossible or impractical. For all intents and purposes the agreement was fully performed once the medical panel submitted its negative report.
[6] In reality, the appellant does not seek to be relieved of his liability for non-performance under the agreement. What he seeks is a remedy for the alleged misperformance by a third party, namely the panel of physicans. If the appellant was entitled to any relief, it lay in having the panel's report set aside, not the agreement. In this regard, the doctrine of frustration is of no assistance.
[7] For these reasons the appeal must be dismissed, but without costs.
"J.T. Robertson"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-232-95
| STYLE OF CAUSE: HUGH WILLIAMS |
(Plaintiff)
- and -
(Defendant)
DATE OF HEARING: MONDAY, APRIL 12, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: ROBERTSON J.A.
Delivered at Toronto, Ontario
on Monday, April 12, 1999
APPEARANCES: Mr. Hubert E. Mantha
| For the Appellant (Plaintiff) |
Mr. Dogan D. Akman
For the Respondent (Defendant)
| SOLICITORS OF RECORD: Hubert E. Mantha |
Barrister & Solicitor
215 College Street, Suite 216
Toronto, Ontario
M5T 1R1
| For the Appellant (Plaintiff) |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent (Defendant)
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