'first brought about the alteration in their relationship which led to an alleged actionable breach' vs 'actionable breach'

Question

Source: Civil Litigation (Feb. 2010). pp. 236-237 Bottom. Footnote 37.

Above note 1 at 2.550—70. See also Canadian Broadcasting Corp. v. CKPG Tele- vision, [1992) 3 W.W.R 279 (B.C.C.A.), a case involving breach of a television broadcasting agreement, in which the British Columbia Court of Appeal sets out a much more detailed analysis of the status quo: "[Tlhere are at least three separate aspects to the consideration of the status quo. I think that all three are conceptually important but that their respective importance to the assessment of the balance of convenience in any particular case will vary with the circum-

stances. The first aspect involves a consideration of which [37.1] party took the step which first brought about the alteration in their relationship which led to an alleged actionable breach of the rights of one of the parties [End of 37.1]; the second aspect involves a consideration of which [37.2] party took the action which is said to be an actionable breach of the rights of the other party [End of 37.2]; and the third aspect involves a consideration of the nature of the conduct which is said to be wrongful and which is being carried on at the time that the application for the interim injunc- tion is brought" (at para. 26).

Mustn't the parties in 37.1 and 37.2 be the same?

If not, I'm overlooking the distinction: how can these 2 parties differ?

Answer 1

The parties can definitely differ. Here is one example.

Suppose that Fox Television network has a five year agreement with station CKYK in Yellowknife, Canada (which serves 7,000 households with a total population of under 20,000 people) which is owned by Yellowknife Waldorf School (which has 500 students from preschool through high school) that says that CKYK and any other television stations owned by Yellowknife Waldorf School can broadcast all of the Fox Television network programming it wants for $500 (Canadian) per year.

Then, one year after entering into this agreement, Yellowknife Waldorf School buys CBLT 20 in Toronto, one of the biggest broadcast TV stations in Canada which serves a population in its broadcast area of roughly 6.4 million people, on a four year payment plan under which the seller gets all of the profits except $1,000,000 (Canadian) a year and the newly incorporated Toronto station operator owed by most of the same people as CBLT 20 used to be owned by has the right to buy the station back after four years for $100 (Canadian). Yellowknife Waldorf School begins making broadcasts of Fox Television programming on CBLT 20 through its local station operator that start immediately once the ink on the purchase contract is dry.

Fox Television, recognizing that it was outfoxed, exercises self-help and immediately shuts down all programming it supplies to both CKYK and CBLT.

Yellowknife Waldorf School then rushes into court seeking a mandatory injunction against Fox Television requiring it to reinstate television programming for CKYK and CBLT immediately, arguing that it is breaching its contract by declining to provide programming for $500 a year to all television stations that Yellowknife Waldorf School owns as required by the contract between Yellowknife Waldorf School and Fox Television.

In this scenario, the 37.1 party that first changes the status quo situation in a manner that leads to the dispute is Yellowknife Waldorf School, and the 37.2 party who has allegedly breached the contract is Fox Television.

This may seem rather elaborate and obscure, but honestly, in big ticket commercial litigation scenarios like the one I've sketched here, situations like this aren't really all that uncommon.