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Contracts - Uncertainity. Wright v. Wright
In Wright v. Wright (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, here brought against the dismissal (as unenforceable) of an application "seeking enforcement of the Agreement or alternative relief", where the '(Property Partnership) agreement' ostensibly provided the appellants' with an "an option to purchase a residential property".
Here the court considered an issue of contractual 'uncertainty' and 'severance':Governing legal principles
[57] A determination that a contractual clause is incomplete or uncertain does not automatically render the entire contract unenforceable. A contract will fail only where an impugned term is essential to the main purpose of the agreement: Woodstock Public Utility Comm. v. McKay, 1989 CarswellOnt 1471 (H.C.), at para. 40. The court must ask whether the term at issue is “so essential to the bargain that inability to enforce that promise strictly according to its terms would make it unfair to enforce the remainder of the agreement”: Canada Square Corp. et al. v. VS Services Ltd. et al. (1981), 1981 CanLII 1893 (ON CA), 34 O.R. (2d) 250 (C.A.), at p. 267, citing Samuel Williston, Williston on Contracts, 3rd ed., vol. 1 (Mount Kisco, N.Y.: Baker, Voorhis & Co., Inc., 1957), at pp. 156-157.
[58] Where an incomplete contractual term is minor, the court may enforce the parts of the agreement that are sufficiently certain and ignore or sever the rest: Stephen Waddams, The Law of Contracts, 8th ed. (Toronto: Thomson Reuters, 2022), at p. 35; Boult Ent. Ltd. v. Bissett (1985), 1985 CanLII 260 (BC CA), 67 B.C.L.R. 273 (C.A.), at pp. 281-283, leave to appeal refused, [1986] S.C.C.A. No. 33. In Hole v. Hole, 2016 ABCA 34, 27 Alta. L.R. (6th) 217, at para. 49, leave to appeal refused, [2016] S.C.C.A. No. 138, the Court of Appeal of Alberta held that “[u]ncertain terms that are not an essential part of the contract will not be fatal to its enforcement; uncertain or meaningless terms that are subsidiary may be severed from the contract”. More recently, in Monette Farms Ltd. v. Dutcyvich, 2026 BCCA 1, at para. 85, the Court of Appeal for British Columbia stated that “[t]he overarching question about certainty of terms is whether the parties agreed on all matters that are essential, vital, or fundamental to the arrangement. On the other hand, where absent or unclear terms are ancillary or non-essential, an otherwise enforceable contract is not void”.
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Section 13(d) is not an essential term and its uncertainty does not prevent the enforcement of the Agreement as a whole
[66] Given the main purpose of the Agreement, s. 13(d) was a non-essential or collateral aspect of it. The incompleteness or uncertainty of this term is not fatal. The balance of the Agreement is enforceable.
[67] There is no unfairness in enforcing the other terms of the Agreement. If either Tamara or Ron exercises their option to purchase, the property will be sold to them. If Tamara and Ron decline to exercise their option to purchase, Karin may still sell the property on the open market. Alternatively, if Karin retains the property until her death, under the terms of the Agreement, her will must provide that Tamara may acquire the property on payment to the estate of $150,000 from her share of the distribution (assuming she has not transferred this money to Karin during her lifetime) as set out in s. 16 of the Agreement.
[68] The severability clause contained in the Agreement further weighs in favour of enforcing the non-impugned provisions. In s. 20, the parties agreed that, if possible, the finding that one of the Agreement’s provisions was unenforceable would not preclude the enforcement of the balance of the Agreement:In case any one or more of the provisions of or a part of a provision contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision or part of a provision of this agreement, but this agreement shall be construed as if such invalid or illegal or unenforceable provision [or] part of a provision had never been contained herein.
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