An Osgoode Professional Development Critical Case Update
Tercon Contractors Ltd. v. British Columbia (Transportation and Highways): New Approach to Exclusion of Liability Clauses Set Out By The Supreme Court of Canada
Thursday, April 8, 2010 [12:00 p.m. – 1:15 p.m. EDT/EST]
Session Moderator
Roy Millen, Blake, Cassels & Graydon LLP, Vancouver
Panellists
Thomas G. Heintzman, Q.C., O.C., McCarthy Tétrault LLP, Toronto
Chris Armstrong, McLean & Armstrong LLP
West Vancouver (counsel for Tercon)
J. Edward (Ted) Gouge, Q.C., Ministry of the Attorney General
B.C. (counsel for B.C.)
Professor John D. McCamus, Osgoode Hall Law School
Fundamental Breach is dead – or so the Supreme Court of Canada has proclaimed (again). In its February 12th decision the SCC rendered what is perhaps the most significant statement on the enforcement of exclusion of liability clauses since Hunter v. Syncrude.
While the court split 5-4 on the result, it was unanimous in declaring that, “On this occasion we should again attempt to shut the coffin on the jargon associated with ‘fundamental breach’,” and proceeded to set out a new three-part test for determining when a party might escape the consequences of an exclusion clause.
Tercon has the potential to have an impact on both barristers’ and solicitors’ practice – from the way contract disputes are argued, to the way in which exclusion clauses are drafted. Find out more in this Osgoode teleseminar, which brings together counsel who argued the case with another leading practitioner and a renowned contracts scholar. The panel will explain the Court’s decision, provide context, and analyze how the case may affect the lower courts’ deliberations in contract disputes.
Get answers to key questions such as:
- How has the courts’ approach to exclusion clauses been altered?
- Should you change how you argue cases where exclusion causes are in play?
- Is fundamental breach really gone, or does it live on in another guise?
- What constitutes “public policy” grounds under the new test?
- What does this mean for drafting exclusion clauses?
- What was the truenexis of disagreement between the majority and minority, and what does it tell us about the way in which courts will interpret exclusion clauses?
OPD Program Lawyer
Ken Jepson
kjepson@osgoode.yorku.ca
Please note: This is a live event only. Sessions will not be captured or archived for future reference or sale. You must access the program at the scheduled time. Teleseminar materials are provided in PDF format only and will not be made available for sale after the program. Call-in information and link to the materials will be provided at least 24 hours before the start of the program. |
