Member Article

Each summer, I review judgments dealing withcontract law issues looking for decisions of relevance to commercial lawyersand business leaders.^[1]  Contract law principles typically do notchange overnight; rather, they are modified incrementally.  Where I find a case that illustrates anincremental change, I use it as a springboard for discussing the state of thelaw on the particular issue and how it affects commercial practice.

This paper is not meant to be acomprehensive review of Canadian contract law principles, but rather a snapshotof particular principles of interest that arose in case law over the past 12months.

This year, the topics I have chosen are:

• The implied duty of good faith performance and entire agreement clauses;
• The efficacy of arbitration clauses in terms of finality and certainty;
• The duty to mitigate where specific performance is sought as a remedy;
• Professionals relying on limitation of liability clauses;
• Contracting with First Nations under the Indian Act;
• Conditions precedent;
• Binding effect and enurement clauses; and
• Contractual obligations to negotiate in good faith.

If I have not covered a topic of interestto you in this year’s paper, I may have covered it in past papers (published in the materials for this seminar in prior years and on-line).

If I had to pick a single theme for thisyear’s paper it would be the number of contract-law-related cases that havebeen heard or will be heard by the Supreme Court of Canada in 2012 and2013.  I have ordered the topics in thispaper to deal with these cases (and the issues they raise) first.