Caveat Emptor: Modifying Implied Conditions In Ontario Sales Contracts

In a welcome decision for commercial sale transactions in Ontario, the Supreme Court of Canada ("SCC") has recently clarified the requirements for a valid and enforceable exclusion clause in a contract of sale to exempt the seller from an implied condition under the Ontario Sale of Goods Act (the "Act"): Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20.

The City of Toronto hired the plaintiff Pine Valley Enterprises Inc. ("Pine Valley") for a flooding remediation project, which included the removal and replacement of topsoil to improve drainage. Pine Valley contacted the defendant Earthco Soil Mixtures Inc. ("Earthco") to source topsoil containing a contractually specified composition. As part of the negotiations, Earthco provided laboratory results from different topsoil samples taken about six weeks prior, but specifically warned Pine Valley against purchasing topsoil without updated test results. Already having missed project deadlines and