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DOCS-#1270489-V10-Sookman TCLG 2010 Year in Review

DOCS-#1270489-V10-Sookman TCLG 2010 Year in Review

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Published by: barry sookman on May 26, 2010
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The Year in Review: Developments inComputer, Internet andE-Commerce Law (2009-2010)
Toronto Computer Lawyers Group
Barry B. Sookman
May 26, 2010
Tercon Contractors Ltd. v. British Columbia,2010 SCC 4
Does fundamental breach vitiate a limitation of liability clause?“It is apparent from the decision that henceforth, parties seeking to avoidcontractual limitations of liability will have to find the clause inapplicable basedon its limited intended scope, or by pointing to some paramount considerationof public policy sufficient to override the public interest in freedom of contactthat would defeat what would otherwise be the contractual rights of theparties.”“As Duff C.J. recognized, freedom of contract will often, but not always, trumpother societal values. The residual power of a court to decline enforcementexists but, in the interest of certainty and stability of contractual relations, itwill rarely be exercised. Duff C.J. adopted the view that public policy “shouldbe invoked only in clear cases in which the harm to the public is substantiallyincontestable, and does not depend upon the idiosyncratic inferences of a fewjudicial minds” While he was referring to public policy considerations pertainingto the nature of the
entire contract
, I accept that there may be well-acceptedpublic policy considerations that relate directly to the nature of the
, andthus trigger the court’s narrow jurisdiction to give relief against an exclusionclause.”

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