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Cases under the Frustrated Contracts Acts are pretty rare. There is a recent one from New Brunswick, Doucette v Jones (2006) 24 Estates and Trusts Reports 167 (N.B.C.A.). It involved the sale of a crab fishing business. The fishing licence was not directly transferable so the defendant seller Jones promised to 'make all efforts' to secure its transfer to the plaintiff buyer Doucette. In the meantime, Jones was to hold the licence on trust for Doucette. Doucette ran the business for a couple of years. The Department of Fisheries and Oceans got wind of the arrangement and expressed its views that licences are privileges and cannot be transferred by licence holders.

Holders can make recommendations regarding to whom surrendered licences should be re-issued; but the DFO told Jones that he was no longer running the business and was not eligible to make such a recommendation. In the end, the DFO told Jones that if he did not cancel his agreement to transfer the licence, it would be revoked. Jones wanted to refund Doucette's money, but Doucette brought an action for specific performance.

Held, that the trust was lawful as between D & J but could not have any effect on the DFO, and so the claim for specific enforcement was denied. The contract was frustrated. Since an earlier order had separated the questions of liability from 'damages', the effects under the FCA were to be set down for later hearing. À suivre.

Lionel