Investigating Performance Bond Claims: Lessons Learned From Graphic Packaging v. 2477621 Ontario Inc.

The recent case of Graphic Packaging International Canada, ULC v. 2477621 Ontario Inc. et al.¹ (Graphic Packaging) was described by the Ontario Superior Court as “fundamentally a straightforward construction case”. However, the case, which involved the interpretation of a bespoke form of performance bond not typically used in Canada, resulted in a less than a straightforward decision. Respectfully, the Court made generalized statements regarding certain principles of surety law with only limited analysis of the underlying facts and issues, and without reference to the applicable jurisprudence. Therefore, while it is important to consider the fundamental issues of surety law discussed in the case, the outcome of the case was largely driven by its unique facts, such that its application should be limited accordingly.