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A Whale’s Tale: SeaWorld Parks & Entertainment LLC vs. Marineland of Canada Inc. 2011 ONCA 616

Opinion

By Greg Van Gompel

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This relationship was placed in writing when the parties entered a Mammal Support and Interchange Agreement in November 2005.   This Agreement recognized that the two parties would collaborate in future projects with each of these projects having its own separate agreements.  One of these projects involved a male killer whale named Ikaika, son of Tillikum, who was owned by SeaWorld.

SeaWorld agreed to loan Ikaika to Marineland pursuant to a separate Breeding Loan Agreement signed on November 16, 2006. When SeaWorld gave written notice to Marineland of its intention to terminate this agreement when it expired on December 31, 2010, Marineland declined to return the killer whale.

The Ontario Court of Appeals, in a decision released on September 28th, affirmed the July 5, 2011 ruling of the application judge.  It said that the Breeding Loan Agreement wakiller whales at seaworld theme parks clear and explicit and that its termination provision of the Agreement was unambiguous.

Marineland argued that to terminate the Agreement at any time without the need to provide a reason would, it says, be commercially unreasonable and would make no sense due to the investment that the party receiving a loaned animal would inevitably make to accommodate an animal.  The Court disagreed with Marineland and stated that the maximum term of the loan of Ikaika was only four years and thereafter only a year at a time.  No mention was made in the agreement concerning the amount of capital investment being undertaken by the receiving party in reliance on the length of the agreement. According to the agreement, both parties have the right to terminate it at any time. This Agreement was not a guaranteed long term relationship.

In bringing the action and successful in its application, SeaWorld was awarded costs on a partial indemnity basis of $240, 000 for application plus another $15, 000 for appeals court costs. 

In a statement, Marineland’s owner, John Holer said “It is extremely disappointing that SeaWorld is now unwilling to continue to honour our long term friendship and understanding.”  Marineland is now considering its options. 

 

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