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Contract - Subjects Table of Contents (A-G)
ADHESION CONTRACTS
Contract Cases - Adhesion Contracts
AGREEMENTS TO AGREE
Contract Cases - Agreements to Agree
ALTERNATIVE DISPUTE RESOLUTION CLAUSE
Contract Cases - Alternative Dispute Resolution (ADR)
ANNULMENT CLAUSE
Contract Cases - Annulment Clause
AMENDMENT
Contract Cases - Amendment
APPEAL
An appellate 'standard of review' (SOR) is an interpretative principle that applies to a legal review (ie. an appeal or a judicial review) of a prior legal procedure such as a trial or a hearing. For contract law it is presumed that the 'basic' contract is a 'custom' contract, that is - one negotiated in good faith between the parties - as opposed to a 'standard form' contract such as a car rental, a phone contract, a bank mortgage and similar. These latter are also called 'contracts of adhesion' and they are essentially 'take it or leave it' contracts.
For these basic, 'custom' contracts the appellate SOR is that of 'palpable and overriding error' (POE), which requires that fact-findings of the lower tribunal/court will be accepted as made unless they have been made with 'palpable and overriding error' (this is also call 'deference'). While POE is the basic SOR for contracts, exceptions do apply which allow a higher standard, that of 'correctness'. Correctness does not require deference to the lower body, but rather allows the reviewing body (typically a court) to decide the subject issue itself, using their own experience and knowledge. The two main 'correctness' exceptions are for standard form contracts or where there is an 'extricable error of law'.
General
Contract Cases - Appeals - SOR - General (Custom)
Exceptions
Contract Cases - Appeals - SOR - Exceptions - General
Contract Cases - Appeals - SOR - Exceptions - Standard Contracts
Contract Cases - Appeals - SOR - Exceptions - Extricable Legal Questions
Contract Cases - Appeals - SOR - Exceptions to Exceptions
Supreme Court of Canada
Contract Cases - Appeals - SOR - Corner Brook (SCC, 2021)
Contract Cases - Appeals - SOR - Earthco (SCC, 2024)
ARBITRATION CLAUSE
Contract Cases - Arbitration
ASSIGNMENT CLAUSE
Contract Cases - Assignment
BARTER
Contract Cases - Barter
COLLECTIVE AGREEMENTS
Contract Cases - Collective Agreements
CONDITIONS
Contract Cases - Conditions
CONSIDERATION
Contract Cases - Consideration
CONTRIBUTORY FAULT
Contract Cases - Contributory Fault
COURT-ORDERED CLAUSES
Contract Cases - Terms Conditional on Court Order
DISCLAIMERS
Contract Cases - Disclaimers
DISCRETIONARY TERMS CLAUSE
Contract Cases - Discretionary Terms
DURESS
Contract Cases - Duress
DUTY OF GOOD FAITH
The duty of good faith (DGF) is new at 2014 [Bhasin v Hrynew (SCC)]. It is not - apparently - a doctrine, but an 'organizing principle' [Bhasin (para 64)] which the court characterizes as stating "in general terms a requirement of justice from which more specific legal doctrines may be derived". As such, it comprises several (and we're expecting more) sub-categories (which I will refer to collectively as 'the duties'). Of these - the 'duty of honest performance' is the most prominent currently, which is the expectation that "parties generally must perform their contractual duties honestly and reasonably and not capriciously or arbitrarily" [Bhasin, para 63]. There are other 'duties' (see the 'other' DGF link), but they are weakly articulated at present.
The 'duty of good faith' was intentionally planted by the SCC to grow over time. Some present DGF features are:- the doctrine of good faith is a 'general doctrine of contract law', not an implied contractual term in each contractual situation [High Tower Homes Corporation v. Stevens (Ont CA, 2014)];
- not all contracts are subject to the duty of good faith [Atlantic Lottery Corp. Inc. v. Babstock (SCC, 2020), para 65];
- parties can 'contract-out' of the duties;
- 'bad faith' and 'good faith' are not mutually exclusive [Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan (SCC, 2024), para 110], and the relationship between is uncertain;
- fiduciary duties are 'higher' (ie. more onerous on the one who bears them) than the duty of good faith.
General
Contract Cases - Duty of Good Faith - General
Nature of the Duty of Good Faith
Contract Cases - Duty of Good Faith - Nature
Contract Cases - Duty of Good Faith versus Fiduciary Duty
The Individual 'Duties'
Contract Cases - Duty of Good Faith - Duty of Honesty
Contract Cases - Duty of Good Faith - Duty of Honest Discretion
Contract Cases - Duty of Good Faith - Other 'Duties'
Principles
Contract Cases - Duty of Good Faith - Discretion
Contract Cases - Duty of Good Faith - Negotiation
Contract Cases - Duty of Good Faith - Statutory
Remedy
Contract Cases - Duty of Good Faith - Remedy
Supreme Court of Canada
Contract Cases - Duty of Good Faith - Bhasin v Hrynew (SCC, 2014)
Contract Cases - Duty of Good Faith - CM Callow v Zollinger (SCC, 2020)
Contract Cases - Duty of Good Faith - Atlantic Lottery Corp. Inc. v. Babstock (SCC, 2020)
Contract Cases - Duty of Good Faith - Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District (SCC, 2021)
Contract Cases - Duty of Good Faith - Ponce v. Société d’investissements Rhéaume ltée (SCC, 2023)
Contract Cases - Duty of Good Faith - Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan (SCC, 2024)
ELECTIONS
Contract Cases - Elections
EMPLOYMENT
See the Employment topic.
ENTIRE AGREEMENT CLAUSE
Contract Cases - Entire Agreement Clause
FAIRNESS
Contract Cases - A Duty of Fairness?
FORCE MAJEURE CLAUSE
Contract Cases - Force Majeure
FORMATION
Contract Cases - Formation
FRUSTRATION
Contract Cases - Frustration
Frustrated Contracts Act (s.1-3)
FUNDAMENTAL BREACH
Contract Cases - Fundamental Breach
GUARANTEES
Terminology
'Guarantee': the contract.
'Guarantor' (also 'surety'): the party guaranteeing the debt or obligation.
'Obligor' (also 'debtor' or 'principal'): the party incurring the primary debt or obligation.
'Creditor' (also 'obligee'): the party granting/holding the primary debt or obligation.
General
Contract Cases - Guarantee - Nature
Contract Cases - Guarantee - Interpretation
Contract Cases - Guarantee - Contrasting Doctrine
Principles
Contract Cases - Guarantee - Change in Obligation
Contract Cases - Guarantee - Breach by Obligor
Contract Cases - Guarantee - Breach by Creditor
Contract Cases - Guarantee - Co-guarantors
Contract Cases - Guarantee - Termination
Contract Cases - Guarantee - Continuing Guarantee
Contract Cases - Guarantee - Subrogation
Contract Cases - Guarantee - Limitation
Remedy
Contract Cases - Guarantee - Remedy
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