Defining a Tenant (Minor Child)

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Date Retrieved:	2024-09-28
CLNP Page ID:	2294
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB), Contract Law
Citation:	Defining a Tenant (Minor Child), CLNP 2294, <>, retrieved on 2024-09-28
Editor:	Sharvey
Last Updated:	2023/10/23

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Toronto Marlboro Major Junior A Hockey Club et al. v. Tonelli et al., 1979 CanLII 1969 (ON CA)

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Lying at the centre of this action is the question whether or not the agreement made between the 17-year-old John Tonelli and the Toronto Marlboros is enforceable.

Generally, the law will not allow an infant to bind himself in contract. Most of the contracts entered into by an infant are either voidable at the option of the infant or void. There is, however, an exceptional and narrow range of infant's contracts the law will enforce.

In Doyle v. White City Stadium Ltd., [1935] 1 K.B. 110, Slesser, L.J., stated at p. 131:

The origin so far as we know of the definition of the class of contract binding upon infants on which Serjeant Sullivan relies (and nothing earlier has been suggested) is to be found in Coke upon Littleton, p. 172a, where he says: "An infant may bind himself to pay for his necessary meat, drink, apparell, necessary physicke, and such other necessaries, and likewise for his good teaching or instruction, whereby he may profit himselfe afterwards", and to that has been added in the course of years contracts of service which are to his benefit.

It is now a matter of some debate as to whether an infant's obligation to pay for necessaries supplied rests on his contractual liability or is founded in quasi contract. This problem, however, does not require resolution in this case. The plaintiffs seek to uphold the agreement between them and the defendant Tonelli as a contract of service which is to the benefit of the infant.

In a recent study published in the Canadian Bar Review, Mr. David R. Percy concludes:

... it is clear that an infant may be bound by a class of contracts generally described as contracts of service, which permit him to earn his livelihood or to be trained for some trade or profession. As indicated earlier, such contracts appear to be only a species of contracts for necessaries, the only significant difference being that they clearly bind the infant regardless of whether they are executory or executed.

As with contracts for necessaries, contracts of service bind the infant only if, on construction of the whole contract, they are beneficial in the opinion of the court. Because of the wide scope of this test, it is settled that the contract does not cease to be binding merely because some clauses are not to the infant's benefit.

(See Percy, "The Present Law of Infants' Contracts", 53 Can. Bar Rev. 1 (1975), at p. 9.)

It is clear that the burden rests on the plaintiffs to prove that the contract in this case was beneficial to the defendant Tonelli. In approaching the issue of whether or not the contract was to Tonelli's benefit, I subscribe to the words of Fry, L.J., in De Francesco v. Barnum (1890), 45 Ch.D. 430 at p. 439:

Now I approach this subject with the observation that it appears to me that the question is this, Is the contract for the benefit of the infant? Not, Is any one particular stipulation for the benefit of the infant? Because it is obvious that the contract of apprenticeship or the contract of labour must, like any other contract, contain some stipulations for the benefit of the one contracting party, and some for the benefit of the other. It is not because you can lay your hand on a particular stipulation which you may say is against the infant's benefit, that therefore the whole contract is not for the benefit of the infant. The Court must look at the whole contract, having regard to the circumstances of the case, and determine, subject to any principles of law which may be ascertained by the cases, whether the contract is or is not beneficial.

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