Good Faith in Contract Performance |

Good Faith in Contract Performance

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Substantive: 2.0
2 hours
Thomas Cromwell
Mark Gannage
Brandon Kain
John McCamus
Toronto Lawyers Association (TLA)
2 hours
$149.00 plus tax
Includes Handouts

This timely practical program will interest litigators in diverse areas of practice as well as solicitors who negotiate and draft contracts.

Hear about the recent trilogy of Supreme Court of Canada cases; specifically, Matthews v. Ocean Nutrition Canada Ltd. (2020); C.M. Callow Inc. v. Zollinger (2020); and Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District (2021).

Topics include:

  1. What guidance about good faith duties do these rulings provide?
  2. How have lower courts applied these decisions and the earlier ground-breaking one in Bhasin v Hrynew (2014)?
  3. What is the significance of the trilogy for contractual negotiations?
  4. What are the recognised remedies for conduct that violates duties of good faith?
  5. What unanswered questions about the organizing principle of good faith remain?

Our panel of experts consists of the Honourable Tom Cromwell, the former SCC justice who penned Bhasin, Brandon Kain, who has been counsel in most of these SCC decisions, and John McCamus, the author of a leading contracts text and a seasoned practitioner.


Justice Thomas Cromwell

The Honourable Thomas Albert Cromwell is counsel in our Ottawa and Vancouver offices. As a member of the judiciary, Thomas sat on the Supreme Court of Canada ("SCC") from December 2008 to September 2016 and on the Nova Scotia Court of Appeal from 1997 to 2008. Prior to his appointment to the bench, Mr. Cromwell was executive legal officer to Chief Justice Antonio Lamer from 1992 to 1995. He began his career practising law in Kingston and Toronto, and has taught in the Faculty of Law at Dalhousie University.

During his time at Dalhousie, he was active as a labour arbitrator and served as Vicechair of the Nova Scotia Labour Relations Board. He was the first recipient of the Louis St Laurent Award of Excellence from the Canadian Bar Association, is the recipient of four honorary doctorates in law and is an honorary fellow of Exeter College Oxford and the American College of Trial Lawyers. An award in his name, The Honourable Thomas Cromwell Award for Public Service, has been established by the Queen's law faculty. He retired from the Supreme Court of Canada on September 1, 2016. He serves as the Chair of the Action Committee on Access to Justice in Civil and Family Matters and is a Trudeau Foundation mentor.

Mark Gannage

Mark Gannage, previously of Goodmans, McCarthy Tétrault, Stikeman Elliott, and Torys, is a deputy judge, certified adjudicator and mediator. He is the author of Gannage’s Ontario Civil Litigation Commentary and Checklist (Thomson Reuters), three chapters in Bullen & Leake & Jacob's Canadian Precedents of Pleadings (Thomson Reuters), published articles in the Annual Review of Civil Litigation, The Advocates’ Quarterly and elsewhere, and two federal law reform works. He is a Contributing Editor of the Toronto Law Journal. A former full time and adjunct law professor, Mr. Gannage conceived, designed and taught U of T Law School’s first course in Advance Legal Research, Analysis and Writing. Mr. Gannage was the first (and last!) Head of Legal Research and Analysis of the now deceased Bar Admission Course.

Brandon Kain

Brandon Kain is a partner in our Litigation Group in Toronto. His practice focuses on appellate litigation, administrative and regulatory law, commercial litigation and class actions. He has successfully acted for a wide variety of clients in major litigation, including AstraZeneca Pharmaceuticals, Bell Canada, Cathay Pacific Airways, Chrysler, HSBC Holdings, Lundbeck, the Ontario Lottery and Gaming Corporation and Syngenta.

He has extensive experience in appellate advocacy, having acted in 16 appeals before the Supreme Court of Canada, as well as cases in the Federal, British Columbia and Ontario Courts of Appeal. Seven of his cases have been included in Lexpert Magazine’s annual list of the Top 10 Business Decisions in Canada, with three ranked #1. He is co-founder of our National Appellate Litigation Group and editor-in-chief of its award-winning blog, Canadian Appeals Monitor. Brandon frequently acts in judicial reviews and administrative appeals. He delivered the oral argument for Bell Canada and the National Football League on the standard of review in the Supreme Court of Canada’s administrative law trilogy, heard December 4- 6, 2018. He has also acted in several other leading administrative law cases, including: Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40; Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54; Green v. Law Society of Manitoba, 2017 SCC 20; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34; and Air Canada v. Toronto Port Authority, 2011 FCA 347.

Brandon is a regular writer and speaker on legal issues. He has written or co-written articles in the Advocates’ Quarterly, Alberta Law Review, Annual Review of Civil Litigation, Banking and Finance Law Review, Canadian Bar Review, Canadian Business Law Journal and Supreme Court Law Review. His publications have been cited in 14 cases by the Supreme Court of Canada and the Alberta, British Columbia, Manitoba, Ontario and Quebec courts. In addition, he has presented for the Canadian Bar Association, the Canadian Centre for Ethics & Corporate Policy, Canadian Defence Lawyers, the Canadian Energy Law Foundation, the Canadian Institute, the Commons Institute, the Law Society of Upper Canada, Osgoode Professional Development, the Prospectors and Developers Association of Canada and the University of Toronto Faculty of Law.

Brandon obtained his LL.B. (Honours) from the University of Toronto in 2003, where he received the Fasken Martineau DuMoulin LLP Award for Academic Excellence in first year, and graduated with Honours Standing. He also obtained his MA in philosophy from the University of Toronto in 1999 and his BA (First Class Honours) in philosophy from Queen's University in 1998.

John McCamus

John brings more than 40 years of legal experience to our clients’ complex private law issues. He advises on a broad range of transactions and litigation matters. Clients value his practical and thoughtful solutions. A former dean of Osgoode Hall Law School, John is known globally for his extensive research and creative teaching. He has specific expertise in restitution law, contract law, commercial law and information practices law.

Before joining the faculty at Osgoode, John articled with a Toronto firm and served as a law clerk at the Supreme Court of Canada for Chief Justice Laskin. Clients rely on John as an expert witness in Ontario law in cases in Canada, Europe and the U.S. He acts for clients at various levels of court in Ontario and at the Supreme Court of Canada. In addition, John has significant experience as an adjudicator in human rights and labour disputes and as an arbitrator in commercial disputes. John is a professor of law at Osgoode Hall Law School. He was also the dean of Osgoode Hall Law School.

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