Canadian Contract Law: Essential Updates and Practical Analysis 2022

Andrew Bernstein
Torys LLP

Audrey Boctor
IMK s.e.n.c.r.l./LLP

Andrea Lee
Glaholt Bowles LLP

Exclusion and limitation of liability clauses are crucial tools for parties to place boundaries around the damages they will be responsible for. However, context is playing a greater role in the interpretation of these limits. An experienced panel will provide their views on recent developments, including:

• The circumstances in which non‑liability clauses will stand in the face of a fundamental breach (6362222 Canada inc. v. Prelco Inc)
• Will a court’s interpretation of a clause, hinge on whether it is found in a standard form contract? (Intact Insurance Company v Clauson Cold & Cooler Ltd)

10:10 a.m.
Break

Professor Marina Pavlović
University of Ottawa, Faculty of Law

Angela Swan, O.C.
Aird Berlis LLP

Michael Wright
Wright Henry LLP

This expert panel will explore how the power imbalance between contracting parties is playing an increasing role in the unwillingness of courts to uphold onerous terms.

• What is the impact of the SCC’s decision in Uber Technologies Inc. v. Heller?
• Standard form/click through contracts – how has the decision in Pearce v 4 Pillars Consulting Group Inc. been interpreted by the courts?

11:25 a.m.
Lunch

Ellen Snow
Clyde & Co LLP

The pandemic has resulted in huge losses due to unforeseen resource shortages, rising costs, and illness among workforces. This issue is playing out across a wide variety of sectors from residential construction to infrastructure development, from manufacturing to shipping. Parties are seeking to mitigate those losses.

Get the latest on the enforceability of contracts in the face of unexpected delays, including an analysis of how business interruption clauses will stand up in the context of the recent COVID‑19 pandemic.

Paul Blyschak
Counsel, Fasken, Author of “M&A Agreements in Canada: Transactions & Litigation”

Danielle Royal
Stikeman Elliott LLP

Unpredictability and uncertainty have thrown the future of a host of mergers and acquisitions into doubt. As parties reconsider their options, they need to be aware of how courts will interpret their material adverse event clauses. Referencing recent jurisprudence, you will learn:

• How the analysis of material adverse event clauses in Cineplex v. Cineworld is being interpreted and applied to radically altered business valuations and available purchase resources
• How to manage the challenges resulting from the analysis of material adverse events (MAE) in Fairstone Financial Holdings Inc. v Duo Bank of Canada

2:25 p.m.
Break

Brian Kolenda
Lenczner Slaght LLP

Professor John McCamus
Osgoode Hall Law School, York University

The conduct of parties plays an increasingly critical role in the interpretation of contractual terms. Leading experts will discuss recent developments in the principles of good faith in a post‑Bhasin landscape, including the following:

• Will the termination of contracts due to mistaken belief constitute bad faith as in Tokyo Smoke?
• How does the duty of honesty impact the application of termination clauses, as determined in C.M. Callow Inc. v. Zollinger?

The Hon. David M. Brown
Court of Appeal for Ontario

Geoff Hall
McCarthy Tétrault LLP

Julia Shin Doi
General Counsel, Secretary of the Board of Governors, and University Privacy Officer, Toronto Metropolitan University

Courts are pushing back at inscrutable boilerplate language and vague terms, looking to context to help interpret contracts. Legal professionals must be aware of how this will impact the application of everything from standard‑form consumer contracts to acquisition agreements.

This dynamic session will give you the chance to review and critique various examples of the types of contract interpretation disputes where the parties failed to express clearly the allocation and assignment of risks and costs, in addition to reviewing:

• Sample releases – drafting tips post‑Corner Brook (City) v. Bailey where the broader context of the agreement played a distinct role in interpretation
• Judicial expectations of plain language drafting and how these may be affected by power imbalances and other contextual factors. How will this impact M&A agreement formation?

You will hear directly from the decision maker, what works, and what doesn’t and take away valuable, practical tips you can immediately use when drafting, reviewing or editing your next contract.

5:00 p.m.
Program Ends