Posted on: June 20, 2018
TRU Law professor Chris Hunt and alumnus Milad Javdan have co-authored “Apparitions of Doctrines Past? Fundamental Breach and Exculpatory Clauses in the Post Tercon Jurisprudence,” which has been published in the June 2018 issue of Canadian Business Law Journal (CBLJ), an academic forum for the analysis of developments in all branches of Canadian business law.
The paper examines a question that has long vexed Canadian courts—how should judges approach the enforceability of contractual clauses that purport to limit or exclude liability that would otherwise arise from the breach of a contract or the commission of a tortious wrong?
After decades of confusion, in which courts analyzed such clauses by using what is known as the doctrine of “fundamental breach,” the Supreme Court of Canada, in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways),  1 SCR 69, rejected that doctrine and propounded an new framework test. Hunt and Javdan evaluate the new approach and illustrate, through a comprehensive study of the subsequent case law, that the principles underpinning the doctrine of fundamental breach have continued to influence the analysis of exculpatory provisions, despite the Supreme Court’s attempt in Tercon to lay that troubled doctrine to rest.
Research for this paper began with Hunt supervising Javdan for a directed research project at TRU Law.
“Milad’s research was excellent,” said Hunt. “We decided that we would carry on working together on this paper after he graduated to turn it into an academic publication.”
“I was privileged to be able to collaborate with Dr. Hunt on this project,” said Javdan. “This publication allowed me to significantly hone my legal research skills and synthesize more than 50 cases that interpreted the Tercon decision.”
While the thrust of their paper is academic, it also has concrete implications for lawyers in drafting and interpreting exculpatory clauses, and for judges when analyzing their enforceability. Accordingly, Hunt and Javdan hope that their paper will influence this complex area of law well into the future.