Case information

Contracts — Repudiation — Whether and when court can interpret party’s silence in face of purported repudiation of contract as acceptance of repudiation.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Toronto Wholesale Produce Association (“TWPA”) leased land upon which it owned a double-sided static billboard that can be seen from the Gardiner Expressway. In mid-2012, ID Inc. approached the TWPA with the idea of transforming the billboard into a digital sign. StrategyCorp became involved in those discussions. In March 2013, ID and the TWPA entered into a written sale and maintenance agreement (“SMA”) for the transformation of the sign into a single digital sign. It contained a “Permits” clause which required ID to obtain a permit for the digital sign within 360 days. The TWPA wanted StrategyCorp to be involved in transforming the billboard. When StrategyCorp advised that provincial approval was more beneficial than the municipal approval ID was planning to obtain, the TWPA, StrategyCorp and ID decided to pursue provincial approval, so the municipal application was withdrawn.

When StrategyCorp indicated a desire to receive a portion of the advertising fees generated by the digital signs, ID reluctantly agreed. In December 2013, that agreement was memorialized in a “Consulting Agreement” between ID and StrategyCorp. It provided that ID would pay StrategyCorp a fee “[p]rovided [ID] enters into a written agreement with the [TWPA] regarding the supply, installation and selling of advertising time for the [digital signs]”. By the time that it was determined that a provincial permit was not available, the relationships between ID and the others had deteriorated. On the understanding that the SMA had expired by its own terms because 360 days had passed without a permit, StrategyCorp sent a letter to ID repudiating the Consulting Agreement because it was dependent on the SMA, which had come to an end on its own terms. Neither ID nor its principle responded. With the help of another company, a municipal permit was received in July 2016.

ID commenced actions against the TWPA (SCC File No. 41695) and StrategyCorp (this file). There was a single trial but separate appeals. As against the TWPA, the trial judge Merritt J. allowed ID’s action. The trial judge dismissed the action against StrategyCorp. The appeal was dismissed.