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What businesses should watch for from the SCC in 2020

Author(s): Jacqueline Code, Mary Angela Rowe

Dec 13, 2019

In 2019, the Supreme Court of Canada (SCC) heard and/or granted leave to appeal in a number of cases that could have a significant impact on Canadian business. Three such cases will address the developing doctrine of good faith performance in contract. Other cases deal with arbitration clauses, insolvency restructurings, the application of the Canadian Charter of Rights and Freedoms to corporations and the enforceability of provisions that impose penalties on the insolvency of a contracting counterparty. 

Good faith trilogy

The SCC’s 2014 decision in Bhasin v. Hrynew, 2014 SCC 71 (Bhasin) recognized a duty of honest contractual performance, which was presented as an incremental change to the common law. The decision left considerable scope for further development in this area of law. The SCC has clearly determined that the time is ripe to advance the doctrine, as evidenced by theartic fact that no fewer than three cases are pending before the Court...