Canadianizing commercial agreements

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.

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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