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Things to know

  • Certain provisions in a commercial agreement drafted for use in other jurisdictions will not be enforceable, or will be interpreted differently, in Canada.
    • In the business-to-business context, examples include non-competition provisions, copyright and trade-mark licensing and assignment provisions, and third-party beneficiary clauses.
    • In the business-to-consumer context, provincial statutes and case law will impact what can and cannot be included in the agreement.
  • Certain provisions and waivers should be added to address requirements or restrictions in legislation and case law.
  • The Civil Code of Québec imposes unique obligations and restrictions not found in common-law jurisdictions.
  • Certain types of consumer agreement require pre-contract disclosure to be provided to the consumer, and require that the disclosure form part of the consumer agreement.

Things to do

  • Be aware of the differences between the Canadian and foreign legislative landscape and applicable case law that would impact the interpretation or enforcement of a commercial agreement.
  • Revise the agreement to replace foreign legislative references with Canadian-specific legislation, if available, and amend potentially problematic provisions to increase the likelihood of enforcement.
  • Consider if the manner of sale of products or services to consumers (e.g., door-to-door, online, telephone), or the nature of the products or services themselves (e.g., gym memberships, water heaters, matchmaking services) trigger additional restrictions or requirements for the drafting of the consumer agreement.
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