Oswald v. Start Up SRL, 2021 BCCA 352
Ken McEwan, Q.C. and Saheli Sodhi, on behalf of the respondent, were successful in upholding the trial decision of the Supreme Court of British Columbia.
This case concerned the enforceability of a two-page memorandum of understanding. There was a substantial, complicated, and often conflicting body of evidence before the trial judge requiring significant findings of fact on disputed matters. The trial judge found the MOU to be binding and enforceable.
On appeal, the appellants argued that the trial judge made an extricable legal error by applying the wrong test for contract formation, including by misapprehending evidence of subsequent conduct, and relying on evidence of subjective understanding. Ken and Saheli successfully argued that the trial judge correctly stated and applied the test for contract formation and that no extricable legal error arose, and further, that the trial judge made no palpable or overriding error in his findings of fact. In dismissing the appeal, the Court of Appeal found that the trial judge made no extricable legal error and noted the importance of appellate courts exercising caution in considering whether an alleged error is truly extricable. The full reasons of the Court of Appeal can be found here, and the trial decision can be found here.