The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

A Whale of a Fight!

A recent decision from the Ontario Superior Court[1] pits Marineland against Seaworld in a battle of contractual interpretation and the application of foreign law for possession of Ikaika, a killer whale. Ikaika was born in Orlando, Florida in 2002, but since 2006 has been residing in the Marineland facilities in Niagara Falls, Ontario, subject to a Breeding Loan Agreement. In December 2010, Seaworld gave written notice that they wanted their whale back. Marineland refused, so Seaworld launched an application seeking immediate possession.

Marineland fought back, arguing that the application should be converted to an action: central to the dispute was the correct interpretation of the termination clause of the agreement under Florida Law. Foreign law is a question of fact and must be pleaded and proved.[2] Both Marineland and Seaworld provided expert affidavits and both experts were cross-examined on those affidavits. Marineland argued that the testimony of witnesses was necessary to resolve any differences in the affidavit evidence. Ontario Superior Court Justice Lococo disagreed, stating: “where the terms of a written agreement are clear and unambiguous, the language of the agreement is controlling, and as a general rule parol evidence is inadmissible to contradict or add to the written terms of the agreement.”[3]

Further, Justice Lococo noted that while it may be interesting to hear the interpretations of the contract by foreign law experts, they are there only to provide evidence of foreign law. The effect of that law on the facts at hand is a “question of law to be decided by the Court as a matter of Ontario law.”[4]

Ultimately, the Breeding Loan Agreement was found by the court not to be ambiguous. Seaworld had correctly terminated the contract by providing 30 days written notice and was granted recovery of possession of Ikaika. Marineland was ordered to co-operate in the safe passage of Ikaika back home.

[1] Seaworld Parks & Entertainment LLC v Marineland of Canada Inc., 2011 ONSC 4084. http://www.canlii.org/en/on/onsc/doc/2011/2011onsc4084/2011onsc4084.html

[2] Castel & Walker, Canadian Conflict of Laws, 6th ed. (Markham: Lexis Nexis Canada, 2005) vol. 1 at 7-1.

[3] Supra note 1 at para. 24.

[4] Ibid at para. 29.

Brigid Wilkinson
Affleck Greene McMurtry LLP

Brigid Wilkinson

Brigid Wilkinson is a former associate of Affleck Greene McMurtry LLP

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