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The following comment is typical of many that I have made on student papers:
When you cite a case, you should provide sufficient details so that a reader can assess its relevance. The discussion of the Hampshire Holdings case told me very little.
The assignment had been to draft a settlement release, and to discuss the reasons for substantive decisions made in the process. The case in question was Hampshire Holdings Ltd. v. Surrey (City), 1996 CanLII 3454 (BC S.C.), [1996] B.C.J. No. 2399, 1996 CarswellBC 2592, 67 A.C.W.S. (3d) 517, [1996] B.C.T.C. Uned. J02. The following comments, although to some extent a composite, and to some extent imaginary, are based on actual student papers that I have graded:
The precedent chosen to draft this particular release includes a very wide scope which is a very important point to consider when drafting a release. Specifically, the precedent used included the words " and forever discharge." Both in Hampshire Holdings Ltd. v. Surrey (City), and the precedent used for my clients, a reference to the past, present and future was included. The success of the mutual release in Hampshire Holdings Ltd. v. Surrey (City) illustrates that the scope of the mutual release for these clients is adequate to satisfy their needs.
In Hampshire Holdings Ltd. v. Surrey (City), Justice de Weerdt held that the parties were precluded from bringing or continuing the action by the release they had signed. Furthermore, the mutual releases were held to have the widest scope possible. The scope in this case included a specific reference to future liability which would in turn bar this action. Specifically the words "remise, release and forever discharge" were used. Furthermore, the release directed that both parties " have mutually agreed to compromise all claims that have arisen or may arise in the future by reason of or arising out of all concerning, or in any way connected with all their business dealings " Therefore this action was not allowed.
On reading this, I was left wondering what this case was actually authority for. Had the judge really commented in depth on the words "forever discharge", and on future causes of action? And if so, why was this important for purposes of our assignment? The student's discussion of the case did not answer the questions that readers such as myself tend to have, and did not inspire confidence. So I concluded that I had to read the case myself.
The following are the details of the case that I think would have been helpful in deciding its relevance: Hampshire Holdings Ltd. had sued South Surrey Hotel Ltd. asserting claims which arose out of a contract between them. The case was then settled. The settlement included a mutual release in which each party agreed not to sue anyone, in respect of the claims released, who might claim contribution or indemnity from the other. Notwithstanding the settlement, Hampshire Holdings sued the City of Surrey, which in turn third partied South Surrey Hotel. The court dismissed the action against the City of Surrey, upon the motion of South Surrey Hotel. It didn't matter, according to the court, that different damages had been claimed in the second action than in the first. The claims were included within the scope of the words of the release.
There was nothing in the decision specifically dealing with future causes of action. There was no emphasis on the words "forever discharge." The scope of the clause was indeed the central issue in the judge's mind. However, the judge's reasons were themselves so fuzzy as to the details of the claims asserted in the second action, and the reasons why they were included within that clause, that the case (as reported) wasn't very helpful on that point. Really, the most interesting thing about the case was that the City of Surrey and another third party benefitted from the agreement between Hampshire Holdings and South Surrey Hotel, even though they had not been privy to it. The Ontario courts have sometimes tried to avoid granting such a benefit in similar cases. Unfortunately, the judge did not provide reasons for that aspect of the decision.
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