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ARTICLE · 01 JUNE 2023

Force Majeure Clauses: An Important Reminder That The Clause Is Only As Strong As The Language Contained Within It

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The impacts of the COVID-19 pandemic as it relates to force majeure clauses in contracts is continuing to be felt by parties as Ontario courts are working through the backlog of cases.

CanadaReal Estate and Construction
Sahil Shoor
Sahil Shoor
Michael Piaseczny
Michael Piaseczny
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The impacts of the COVID-19 pandemic as it relates to force majeure clauses in contracts is continuing to be felt by parties as Ontario courts are working through the backlog of cases. In late 2022, the Ontario Superior Court released a decision in Porter Airlines Inc. v. Nieuport Aviation Infrastructure Partners GP, 2022 ONSC 5922 ("Porter Airlines") holding that despite there being an event beyond the control of the contracting parties (i.e., COVID-19) they may still be required to fulfil their obligations, even if doing so would be commercially undesirable.

Most recently, the Ontario Court of Appeal in Niagara Falls Shopping Centre Inc. v. LAF Canada Company, 2023 ONCA 159 ("Niagara Falls") also dealt with a force majeure clause in the context of COVID-19. Notably, this case did not concern whether a force majeure event occurred (the parties agreed COVID-19 constituted such an event under the clause), rather the issue before the court related to the contractual

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