The Reception of Photo Production Ltd v. Securicor
Transport Ltd in Canada: Nec Tamen
Consumebatur
M.H. Ogilvie*
Introduction
It is arguable that the doctrine of freedom of contract has been all but
toppled from its throne as the ruling philosophical principle of the law of
contract. No longer need the law link arms with nineteenth century laissez-
faire economics to facilitate and protect the growth of industrialization and
capitalism. No longer should the law secure the grand purpose of ensuring
the survival of the financially fittest who in turn would provide the barest
necessities for those who must toil in their factories and subsist on their
charity. Instead, some would suggest that the guiding principle of contract
law should be to redress the balance of contractual bargaining power so
that the powerful are no longer favoured -especially
those enjoying
monopolistic or near-monopolistic positions within the marketplace.
Rather, legal controls should be created to encourage the good stewardship
of economic wealth and power so as to provide for the common good and
individual good as far as possible. It is trite to state that the concept of
favouring the many rather than the privileged few is seeping into many legal
nooks and crannies today. Thus in tort law, for example, there has been a
steady expansion of the notion of negligence, and in contract, judicial and
legislative protections for consumers and other parties of lesser bargaining
power have developed, especially in the last decade. Nowhere have these
basic policy issues been more apparent than in regard to the attempts, such
as those of the Master of the Rolls, to underpin the modern law of contract
with the foundation of reasonableness and fairness once associated with the
simple equitable notion of doing justice on the facts of the case. And
nowhere has this attempted judicial revolution been more evident and,
indeed, perhaps at its most significant, than in respect to the widespread use
of that legal inheritance of nineteenth century freedom of contract, the
standard-form contract, with its exclusion clauses, which is the legal com-
panion of the mass provision of goods and services.’
* Of the Department of Law, Carleton University. This paper was delivered at the
Eleventh Annual Workshop on Commercial and Consumer Law held at the Faculty of Law,
University of Toronto, 22-3 October 1981.
I A superb analysis of the trends in the modern law of obligations is found in P.S. Atiyah,
The Rise and Fall of Freedom of Contract (1979). See also P.S. Atiyah, From Principles to
Pragmatism, Inaugural Lecture delivered before the University of Oxford on 17 February
1978, and Reiter, The Control on Contract Power (1981) 1 Oxford J. of Legal Studies 347
and the references cited therein.
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RECEPTION OF PHOTO PRODUCTION LTD
The express espousal of a public policy of redressing bargaining imbal-
ances was not made in the past by judges who nevertheless implicitly
adopted the principle when applying the construction rules, the contra
proferentem rule or the doctrine of fundamental breach of contract. How-
ever, Lord Denning M.R. has been less reticent in explicitly advocating a
judicial role in redressing grievances arising from marketplace inequalities.
Other judges have increasingly proved willing to adopt expressly the rubric
of inequality of bargaining power without expressly searching too deeply
into its meaning in written decisions on the facts before them. It is widely
accepted that judicial pronouncements should not be in the vanguard of
social engineering, and with few exceptions judges subscribe to the view that
the law ought to reflect rather than shape socio-economic changes. Yet it
seems clear that the willingness of the judiciary to acknowledge, if hesitantly,
that the law should play a role in the protection of the less powerful in the
marketplace, indicates judicial perception that the time has come for the
assessment of contractual relationships in terms of basic fairness and justice
in the use of socio-economic advantages, rather than in terms of a systematic
complex of rules founded upon the principle of freedom of contract, too
often enjoyed by one party only. In any case, the legislators have now given
the required lead.
Pastjudicial equivocation in acknowledging the “rise and fall of freedom
of contract” is perhaps best exemplified in the two steps forward and one
step back routine of Karsales (Harrow) Ltd v. Wallis,2 Suisse Atlantique
Socitj d ‘Armement Maritime S.A. v. N. V. Rotterdamsche Kolen Centra-
le,3 Harbutt s “Plasticine ” Ltd v. Wayne Tank and Pump Co.4 and Photo
Production Ltd v. Securicor Transport Ltd,5 as well as in the Canadian
responses to those decisions which have paid lip service to one principle
while applying the other without acknowledgement. 6 The effect of the
2[1956] I W.L.R. 936 (C.A.).
3[1967] I A.C. 361 (H.L.).
4[1970] 1 Q.B. 447 (C.A.).
5[1980] A.C. 827 (H.L.), rev’g [1978] 1 W.L.R. 856 (C.A.).
6The Supreme Court of Canada approved the rule of construction approach of Suisse
Atlantique in B.G. Linton Construction Ltdv. C.N.R. Co. [1975] 2 S.C.R. 678. However,
other courts have been unwilling to uphold exclusion clauses on construction if they were
unfair; see, e.g., Lightburn v. Belmont Sales Ltd (1969) 6 D.L.R. (3d) 692 (B.C.S.C.); R. G.
McLean Ltd v. Canadian Vickers Ltd [1971] 1 O.R. 207 (C.A.); Canso Chemicals Ltd v.
Canadian Westinghouse Co. (1975) 10 N.S.R. (2d) (S.C., App. Div.). See also the comments
of S. Waddams, The Law of Contracts (1977), 285 et seq., and Ziegel, Comment (1979) 57
Can. Bar Rev. 105, 109, where he notes that the Canadian lower courts have “paid lip service
to the House of Lords’ constructional rule but, with surprising ease, almost unfailingly
managed to find that the parties could not have intended the clause to apply to a
fundamental breach. Suisse At/antique changed the form of judicial reaction to disclaimer
clauses but not its substance.”
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(Vol. 27
House of Lords’ decision in Photo Production and Canadian judicial
reaction to that decision bears out the view that whatever else Photo
Production may have decided, it did not, despite its express restatement of
the freedom of contract principle within certain defined limits, reinstate the
principle as the broad basis on which the modern law of contract is to be
founded. But having said that, one has said little, and the question of
assessing Photo Production and its Canadian significance remains.
The following discussion will proceed in three stages: (I) a brief assess-
ment of Photo Production; (2) an assessment of several Canadian decisions
in which Photo Production was applied or considered; and (3) a restatement
of the issue derived from the case discussions.
I. What Photo Production Ltd v. Securicor Transport Ltd Decided
The facts of Photo Production7 were pleasingly simple. The plaintiff
manufactured Christmas cards and kept large quantities of paper and
cardboard stored at its factory. The defendant provided security services for
a sum of8 15s per week and was required to make a total of 34 visits per
week at a cost of 26p per visit. On the night of 18-9 October 1973, the security
guard, one Musgrove, a 23 year old employee on the job for three months
and with satisfactory references, deliberately threw a match into some
cardboard. No explanation was provided for this odd behaviour although
Musgrove alleged that he had intended only to start a small fire and not to
destroy the factory, which was damaged together with the stock to an agreed
sum of615,000. Musgrove was charged with arson, convicted of malicious
damage and sentenced to three years imprisonment. No findings were
made that Securicor was negligent in hiring the hapless Musgrove, nor that it
should have anticipated his criminal behaviour. In the litigation which
followed Securicor sought to rely on several exclusion clauses, in particular
condition (I) of the contract:
Under no circumstances shall the Company [Securicor] be responsible for any inju-
rious act or default by any employee of the Company unless such act or default could
have been foreseen and avoided by the exercise of due diligence on the part of the
Company as his employer; nor, in any event, shall the Company be responsible for:
(a) Any loss suffered by the customer through burglary, theft, fire or any other cause,
except insofar as such loss is solely attributable to the negligence of the Company’s
employees acting. within the course of their employment. 8
7 Supra, note 5. The decision has provoked a number of comments including Samuel,
Note (1979) 95 L.Q.R. 25; Sealy, Contract – Farewell to the Doctrine of Fundamental
Breach (1980) 39 Cambridge L.J. 252; Melville, The Nature of Fundamental Breach (1980)
130 New L.J. 307; Ogilvie, Suisse Atlantique Revindicated: How Long, 0 Lords, How
Long? (1981) 5 Can. Bus. L.J. 100; Ziegel, The House of Lords Overrules Harbutt’s
Plasticine (1980)30 U. T. L.J. 421; Palmer & Evans, Comment (1980) 58 Can. Bar Rev. 773;
Palmer & Yates, The Future of Unfair Contract Terms Act, 1977 (1981) 40 Cambridge L.J.
108; Hetherington, Contracting Out of Discharge for Breach (1980) 3 U.N.S.W.L.J. 233;
Atkin, Fundamental Breach and the Nature of Exclusion Clauses (1981) 9 Sydney L.R. 434,
8 Ibid., 830 (H.L.).
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At first instance, McKenna J. held that the clause covered the
circumstances and dismissed the action without any finding of fundamental
breach. The Court of Appeal, led by Lord Denning, (Shaw and Waller
LL.J. concurring) unanimously reversed this decision on the grounds that
the destruction of the factory constituted a fundamental breach of contract
which discharged the contract including the exclusion clause, and that it was
the presumed intention of the parties that the clause should not apply in the
events which had occurred. The House of Lords restored the trial judge’s
decision and found that Securicor was not liable on construction of the
clause. The leading judgment was delivered by Lord Wilberforce with
whom Lord Scarman and Lord Keith of Kinkel concurred. Lord Diplock
and Lord Salmon delivered separate judgments in which they too agreed
with Lord Wilberforce. It would be useful to enumerate the questions
resolved by the Law Lords and also to state the problems which remain
unresolved now that the dust has settled around Photo Production.
First, the House of Lords unanimously overruled the principle advo-
cated by the Master of the Rolls in Karsales9 and Harbutt ‘s, 10 and adopted
subsequently in other English cases,”I that there was a rule of law which
could be invoked by a court to deprive a defendant of the benefit of an
exclusion clause where a fundamental breach of contract has occurred.
Rather, in all cases the exclusion clause is subject to construction and will
protect the defendant if construed to cover the events which have occurred.
If the English defendant cannot invoke the Unfair Contract Terms Act,
197712 on his own behalf, then he will be bound by the construction of the
contract made by the court.
Second, the House of Lords disapproved of the corollary notion that a
fundamental breach brought the contract to an end either ab initio or from
the date of the breach. Instead, the effect of a breach going to the root of the
contract is to discharge the parties from the performance of further obliga-
tions under the contract; however, the contract survives and may determine
the remedies available to the innocent party. The heresy that a contract dies
with a fundamental breach had been said in Harbutt’s to be derived from
dicta of Lord Reid and Lord Upjohn in Suisse Atlantique. In Photo
Production, Lord Wilberforce conceded that there was a “note of ambi-
guity or perhaps even inconsistency “,13 especially in Lord Reid ‘sjudgment,
9 Supra, note 2.
10 Supra, note 4.
1 Charterhouse Credit Co. v. Tolly [1963] 2 Q.B. 683 (C.A.); Kenyon, Son and Craven
Ltdv. Baxter Hoare and Co. [1971] 1 W.L.R. 519 (Q.B.); Wathes (Western) Ltdv. Austin’s
(Menswear) Ltd [1976] 1 Lloyd’s Rep. 14 (C.A.), were all overruled.
12 Chapter 50.
13 Supra, note 5, 842 (H.L.). In Suisse Atlantique Lord Reid stated, supra, note 3, 398: “I
do not think that there is generally much difficulty where the innocent party has elected to
treat the breach as a repudiation, bringing the contract to an end and sue for damages. Then
Mc GILL LAW JOURNAL
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but suggested that Lord Reid was referring to the recovery of future losses
arising after the repudiation, not to immediate losses resulting from past
events. Putting aside the points that Lord Reid’s statement is less than clear,
and that it is undesirable for Lord Wilberforce to introduce an unwarranted
distinction here between future and immediate losses, it is still arguable,
paradoxically, that Lord Reid is advocating a rule of law approach to future
losses which is incompatible with the rule of construction approach to
immediate losses.’ 4 If a contract contained an exclusion clause excluding
liability for future losses, such as lost profits- even when a fundamental
then according to Lord Reid the clause
breach of contract has occurred –
cannot be relied upon in case of a breach, although on construction it
effectively excluded liability. Whatever the correct interpretation of Lord
Reid’s statement might be, however, the House of Lords in Photo Produc-
tion decided that Lord Porter’s statement in Heyman v. Darwins Ld 5 –
that the contract is not thereby rescinded-
is the correct approach.
The fate of a contract where there is a breach going to the root was
described by Lord Diplock in terms borrowed from the civil law of obliga-
tions when he distinguished primary and secondary obligations. 6 Primary
obligations consist of the parties’ reciprocal duties to perform; secondary
obligations are said to arise in the event of non-performance and include the
obligation to compensate an innocent party for breach of a primary obliga-
tion. Secondary obligations are as much a part of the contract as primary
obligations and they survive a breach. Exclusion clauses modify primary
and secondary obligations, often the secondary obligation to pay damages
in the event of a breach of a primary obligation to perform. Although Lord
Diplock’s analysis clarifies the nature of the status of contractual obliga-
tions, it is neither innovative, 7 nor does it add anything to the more conven-
tionally worded analysis of Lord Wilberforce. Clarification is often useful,
however, and Lord Diplock’s analysis does clarify the point that secondary
obligations and their modifying exclusion clauses are as much obligations as
the duty to perform and are as much terms of the contract imposing
contractual duties as any positively worded contractual duty. They are, in
the whole contract has ceased to exist including the exclusion clause, and I do not see how
that clause can then be used to exclude an action for loss which will be suffered by the
innocent party after it has ceased to exist, such as loss of profit which would have accrued if
the contract had run its full term.”
14Atkin, supra, note 7, 437-8, 442.
15[1942] A.C. 356, 399 (H.L.): “Strictly speaking, to say that on acceptance of the
renunciation of a contract the contract is rescinded is incorrect. In such a case the injured
party may accept the renunciation as a breach going to the root of the whole consideration.
By that acceptance he is discharged from further performance and may bring an action for
damages, but the contract itself is not rescinded.”
16 Supra, note 5, 848-9 (H.L.).
7 See C. Czarnikow Ltd v.Koufos [ 1966] 2 Q.B. 695, 725 (C.A.) per Diplock L.J., and
1
Moschi v. Lep Air Services Ltd [1973] A.C. 331, 350 (H.L.) per Lord Diplock.
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RECEPTION OF PHOTO PRODUCTION LTD
the words of Kitto J., “part and parcel of the bargain”, 8 and as such merit
different consideration than they did under the doctrine of fundamental
breach, as we shall discuss later.
Third, the role of the term “fundamental breach” in the sense of breach
of a fundamental term or “condition” was clarified by Photo Production in
that both Lord Wilberforce and Lord Diplock impliedly limit its use to
failure to perform a contractual obligation which is of the essence of the
contract or is at the root of the contract. Such a failure would amount to a
total failure of consideration, or as Lord Diplock says, it is a situation,
“where the event resulting from the failure by one party to perform a
primary obligation has the effect of depriving the other party of substantially
the whole benefit which it was the intention of the parties that he should
obtain from the contract. “‘9 Both Lord Wilberforce and Lord Diplock state
that the ratio of Photo Production applies as much to breach of a fundamen-
tal term as to fundamental breach. But Lord Diplock also suggests that if
the exclusion clause modified the primary obligation so as to relieve the
party in breach of any obligation to perform in the first place, the agreement
no longer “retains the legal characteristics of a contract “.20 This seems to
contradict the view that the effect of fundamental breaches and breaches of
fundamental terms should be considered in the light of the construction of an
exclusion clause. Exclusion clauses are likely to contradict positive primary
obligations in most contracts and must either be thrown out because of
repugnancy or be accepted and construed as implied by the general
approach espoused in Photo Production. Some further clarification of Lord
Diplock’s anomalous statement is required.
Fourth, Lord Wilberforce stated that the deviation cases in shipping law
survive as a body of law suigeneris with special rules derived from historical
and commercial reasons unaffected by the rise and fall of the doctrine of
fundamental breach in contract law generally. In shipping cases, an exemp-
tion clause ceases to apply when a ship deviates from the contractually
prescribed route. The rationale is said to be that marine insurance policies
cease to operate as soon as the ship deviates from its route.21
Four major questions remain unresolved after Photo Production. First,
it seems that Lord Denning’s view that reasonableness is a substantive test
I Sydney City Councilv. West (1966) 114 C.L.R. 481,495 (H.C. Aust.); see Atkin, supra,
note 7, 443, and Australian cases cited therein which show that the doctrine of fundamental
breach was never accepted in Australia.
19 Supra, note 5, 849 (H.L.).
20 Ibid., 850 per Lord Diplock.
21 Lavabrev. Wilson (1779) 1 Doug. 284, 291, 99E.R. 185, 189 (K.B.)per Lord Mansfield.
See also Hain Steamship Co. v. Tate and Lyle Ltd(1936) Com. Cas 350,354 (H.L.),per Lord
Atkin and American criticisms in Farrv. Hain S.S. Co. 121 F. 2d 940,944 (2d Cir. 1941)per
Learned Hand J.
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for the validity of exclusion clauses may have survived because only Lord
Diplock expressly disapproves of it, when he states that a court is not
entitled “to reject the exclusion clause, however unreasonable the court itself
may think it is, if the words are clear and fairly susceptible to one meaning
only.” 22 If it does survive then it would appear to operate where the parties
are of unequal bargaining power or where they cannot evoke the statutory
reasonableness provided by the Unfair Contract Terms Act, 1977. The
statements by both Lord Wilberforce and Lord Diplock that commercial
men bargaining on equal terms should be free to establish their own quidpro
quo and to apportion their losses serve to cut down the number of situations
in which exclusion clauses would be subjected to a reasonableness test.23 If
reasonableness has indeed survived, then the longer effect of Photo Produc-
tion may be to replace fundamental breach as a legal technique for the
control of exclusion clauses with a doctrine of unconscionability. This
aspect of the case will be particularly important in jurisdictions lacking
unconscionability legislation or legislation restricting the application of
unconscionability to certain categories of contracts, such as consumer con-
tracts. 24 At present the survival of reasonableness is less important in
England than in Canada where most provincial legislation ignores exclusion
clauses in standard-form contracts.
Second, if the correct judicial approach to exclusion clauses arising in a
free bargaining context is simply one of construction, the House of Lords
provided little guidance to the construction process itself. To say that clear
exclusion clauses are to be enforced ignores the fact that problems arise
because clauses are not clear. The courts have neutralized the simple clear
construction rule by the development of other construction principles such
as the contraproferentem rule, the rule that business efficacy should be given
to the contract, or the rule that exclusion clauses should not be construed so
as to reduce the primary obligations to mere declarations of intent. 25 The
manner in which the House of Lords construed the disputed clause itself
provides an illustration, in that little discussion was directed to the words in
the clause which clearly stated that Securicor was liable for losses resulting
solely from the negligence of its employees acting within the course of their
employment. Perhaps Lord Wilberforce’s handling of the question of
whether negligence included deliberate acts and his invocation of the contra
proferentem rule to conclude that deliberate acts were included are indicative
of future difficulties.26 Since there had never been a finding that Musgrove
are found in Suisse Ailantique, supra, note 3, 406 per Lord Reid.
22Supra, note 5, 851 (H.L.).
2Ibid., 844 and 851 respectively; some limits of the necessity for a test of reasonableness
24 Ogilvie, supra, note 7, 113-4; Ziegel, supra, note 7, 430-3.
25 See Ziegel, supra, note 7, 433-8.
26 Supra, note 5, 846 (H.L.): “Whether in addition in negligence, [the clause] covers other,
e.g., deliberate acts, remains a matter of construction requiring, of course, clear words. I am
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RECEPTION OF PHOTO PRODUCTION LTD
deliberately intended to destroy the factory, Securicor could not be made
liable. First year tort students mindful of the standard definition of
negligence given by Winfield and Jolowicz27 would find Lord Wilberforce’s
liberal interpretation puzzling. Further difficulties seem to arise with respect
to whether Musgrove’s actions were within the scope of his employment.
Lord Denning was adamant that they were not, yet the House of Lords
apparently assumed that, but for the exclusion clause, Securicor was liable
for its employees. Definition of what constitutes “within the scope of
employment” would have been useful here. If the learned Law Lord’s efforts
are indicative of clear contractual construction, then lamentably they leave
much to be desired and provide little, if any, guidance for future courts,
dependent as they are on Lord Wilberforce’s reading into the clause of
concepts which arguably are not there.
Third, the House of Lords was divided as to the nature of Securicor’s
original liability. Lord Diplock held that the source of its liability was
contractual, arising from the promise that its employees would exercise
reasonable skill and care. The other four Law Lords held that although one
source of liability was contractual, had it not been for the exclusion clause,
Securicor would also have been vicariously liable in tort for Musgrove’s
actions on the strength of Morris v. C. W. Martin and Sons Ltd. 28 The
majority assumption was that Musgrove’s deliberate throwing of the match,
regardless of the final outcome of that act, was within the scope of his
employment thereby making Securicor vicariously liable, despite the fact
that he had deliberately departed from the exercise of reasonable skill and
care in guarding the factory. The majority apparently implied a primary
obligation that Securicor would exercise reasonable skill and care in patrol-
ling the factory whereas the actual contractual obligation was the somewhat
less onerous one of using due diligence in employing persons who would use
reasonable skill and care; that primary obligation was not breached so that,
but for the exclusion clause, Securicor would have been liable. Lord Wilber-
force stated that there was indeed an implied obligation, although the precise
nature of that obligation was not expressed. 29 However, such an implied
of the opinion that it does, and being free to construe and apply the clause, I must hold that
liability is excluded.”
27 W. Rogers, Winfield and Jolowicz on Tort, 1 Ith ed. (1979), 66: “Negligence as a tort is
the breach of a legal duty to take care which results in damage, undesired by the defendant,
to the plaintiff.”
28[1966] I Q.B. 716 (C.A.). In Photo Production, Lord Salmon’s words could be
construed to support vicarious liability only when he says, supra, note 5,852 (H.L.): “There
can be no doubt that but for the clause in the contract which I have recited, Securicor would
have been liable for the damage which was caused by their servant, Musgrove, whilst
indubitably acting in the course of his employment [ See Morris v. C. W. Martin & Sons Ltd
[1966] I Q.B. 716 (C.A.)].”
29 Supra, note 5, 846 (H.L.).
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term would be repugnant to the express obligation contained in clause (1)
which would, if analyzed according to Professor Coote’s approach, 30 be
viewed not solely as an exclusion clause but also as a primary obligation, i.e.,
to exercise due diligence. If one accepts that Securicor was obliged by the
express words of the contract to exercise due diligence in its capacity as
employee and decides that it did indeed do so, then there was never any
breach of contract in the first place, as McKenna J. held. If there was no
breach, then, of course, there was no liability and no need to invoke the
exclusibn clause as a defensive shield. Securicor was not liable for the
independent acts of Musgrove performed outside the scope of his duty. No
question of vicarious liability in tort would arise because condition (I)
established a positive contractual standard of care, thereby precluding the
imputation of a legal standard of care required by tort.3’
This point was taken only by Lord Diplock who sought to limit the
concept of vicarious liability to tort when a contractual relationship was
“in the interests of clarity ” 32 only, which is a ques-
involved -apparently
tionable justification. He noted that apart from the exclusion clause the
primary obligation of Securicor was an absolute duty to exercise reasonable
skill and care for the safety of the factory, but that the exclusion clause
modified this to a duty of due diligence in selecting employees who would
exercise reasonable skill and care in guarding the factory. Lord Diplock did
not draw the conclusion that there was no breach by Securicor in the first
place. Indeed, earlier in his judgment he had asserted contradictorily
that there was a breach, perhaps not fully comprehending the significance of
his analysis of the exclusion clause as modifying the scope of Securicor’s
duty rather than merely establishing its measure of liability.
If the majority view is accepted as the correct approach, then concurrent
liability in contract and tort can arise on the basis of an implied term or legal
duty at variance with an express term of the contract. This seems proble-
matic according to the Coote-Diplock approach. Furthermore, it appar-
ently contradicts the rule of construction which the House of Lords rein-
stated in Photo Production insofar as it reintroduced judicial discretion to
deal with a contract between parties of equal bargaining power as the court
sees fit. A court may ignore an express exclusion clause in determining the
scope of a contractual duty and imply a duty which seems suitable to it but
which may be repugnant to the express terms agreed to by the parties. The
question of whether or not a concurrent liability in contract and tort can
arise where exclusion clauses are contained in a contract is, then, the third
unresolved problem bequeathed by Photo P-oduction.33
30B. Coote, Exception Clauses (1964).
31 Palmer & Yates, supra, note 7, 118-23.
32Supra, note 5, 849 (H.L.).
33 For an excellent discussion of concurrent liability generally, see Morgan, The Negligent
Contract-Breaker (1980) 58 Can. Bar Rev. 299.
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Fourth, the primary issue of the role of an exclusion clause generally is
also raised in Photo Production in the light of Lord Diplock’s analysis just
outlined. While only one Law Lord apparently espoused the view advocated
by Professor Coote in 1964, 34 the question of whether this constitutes an
important breakthrough arises. English academic commentators, such as
Yates and Palmer,35 have adopted this view as has Kerr J.36 In Australia,
where the doctrine of fundamental breach never gained acceptance, the idea
that exclusion clauses could modify primary obligations has also found
judicial approval.37
The conventional view that exclusion clauses are not contractual terms
in the sense that they impose obligations meant that judges interpreted their
role in the contract as defensive only, to provide a shield behind which the
defendant could hide and escape the responsibilities which would normally
flow from his breach of contract. Judicial technique in dealing with exclu-
sion clauses was summed up by Denning L.J. (as he then was) in Karsales
thus: “The thing to do is to look at the contract apart from the exempting
clauses to see what are the terms, express or implied, which impose an
obligation on the party.”38 Judicial adoption of a procedural rather than a
substantive approach to exclusion clauses was attacked by Professor Coote
on the ground that, taken to its logical conclusion, the parties were being
permitted to create valid contractual rights and duties and at the same time
also permitted to make their contractual undertakings unenforceable. The
creation of unenforceable rights has often been said to be contrary to the
spirit of the common law,39 and as Devlin J. has said, is not to create a
contract at all.40 Where they are appropriate then, exclusion clauses may
34Supra, note 30. It is, perhaps, not insignificant that Coote divides contractual
obligations into primary and secondary rights in the first chapter of his book.
35 D. Yates, Exclusion Clauses in Contracts (1978); Palmer & Yates, supra, note 7.
36 Trade and Transport Inc. v. ino Kaiun Kaisha Ltd (The Angelia) [1973] 1 W.L.R. 210,
230 (Q.B.); Lord Wilberforce’s decision in Port Jackson Stevedoring Pty Ltd v. Salmond &
Spraggon (Australia) Pty Ltd (The New York Star) [1980] 3 All E.R. 257, 259 (P.C.)
suggests some ambiguity as to whether Lord Diplock’s analysis has found support from the
Privy Council.
37 The Council of the City ofSydneyv. West (1966) 114 C.L.R. 481,495 (H.C. Aust.)per
Kitto J.; State Government Insurance Office (Queensland) v. Brisbane Stevedoring Pty Ltd
(1969) 123 C.L.R. 228, 243 (H.C. Aust.) per Barwick C.J.
38 Supra, note 2, 940; see also Istros v. Dahlstroem [1931] 1 K.B. 247,252-3per Wright J.
which was cited with approval in G.H. Renton & Co. v. Palmyra Trading Corp. [ 1956] 1
Q.B. 462, 507 (C.A.) per Hodson L.J.
39 F. Bohnen, Studies in the Law of Torts(1926), 445, cited by Coote, supra, note 30,7; see
also p. 5, fn. 23 of Coote’s text, for a list of English cases on the issue.
40 Firestone Tyre Co. v. Vokins & Co. [1951] 1 Lloyd’s Rep. 32, 38 (K.B.): “The position
then would be that the lightermen have said: ‘We will deliver your goods; we promise to
deliver your goods at such and such a place, and in the condition in which we receive them;
but we are not liable if they are lost or damaged from any cause whatsoever.’ That is not in
law a contract at all. It is illusory to say: ‘We promise to do a thing, but we are not liable if we
do not do it.’ If the matter rested there, there would be nothing in the contract.”
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[Vol. 27
operate to place substantive limitations or to define the primary obligations
found in other clauses in the contract and would prevent the right to use the
exclusion clause as a defence from accruing in the first place. Professor
Coote provides the following example:
Suppose, for example, that I sell a horse which I say is sound forjumping, but provide
in a written agreement that I accept no responsibility whatever if the horse should
prove unsound. What I am doing is to ensure that the purchaser has no primary
contractual right to call for a horse which is sound forjumping. I am not contracting
that the horse is sound and giving myself a shield in case of breach. I am simply refusing
to contract on the point at all. This is not to say that I am under no duty, but my duty is
a moral one binding in honour only. 41
The contract in Photo Production did not go so far as to create repug-
nancy between the primary obligation of providing security services and the
exclusion clause which established the degree of skill and care as one of due
diligence in hiring employees who were to exercise reasonable skill and care
in their duties. The effect of the exclusion clause was to modify what would
otherwise have been the implied term that Securicor was to exercise reaso-
nable skill and care. More accurately, according to Lord Diplock’s analysis,
the exclusion clause established by an express term the standard of care
contracted for by the parties, thereby precluding the implication of a stand-
ard. No breach of the express standard occurred: Securicor had investigated
Musgrove’s background sufficiently. Adoption of the Coote thesis on the
facts of Photo Production would mean that the express terms of the contract
were enforced, and more significantly, that the doctrine of freedom of
contract was upheld. It is no wonder that Lord Diplock was the only judge
to overrule expressly a substantive test of reasonableness; his judgment is all
of a piece. But the same conclusion holds true for illusory contracts where
the clauses are totally repugnant. If there is no contract to enforce in the first
place, the right to rely on the exclusion clause as a defence does not accrue.
Therefore, there is no need for a doctrine of fundamental breach nor a
substantive test of reasonableness to cope with situations thought to be
inherently unfair. Restitution is sufficient. Ironically, then, the only situa-
tions in which a substantive doctrine of reasonableness or unconscionability
might serve the ends ofjustice would be where the express terms interpreted
ii la Coote-Diplock create contractual obligations which may indeed be
repugnant to commonly held views as to what is permissible public conduct
in the making of contracts. Thus, if there is a role for unconscionability it will
operate, despite the implied intention of the Coote thesis to eliminate it, as a
branch of the doctrine of illegality; it is against public policy or morality to
permit parties to contract on such terms, whether they are of equal bargain-
ing power or not. There is no need, then, to enact sophisticated unconscion-
ability tests. Rather, a simple statement of the existence of the legal concept
4 1Coote, supra, note 30, 7.
1982]
RECEPTION OF PHOTO PRODUCTION LTD
is enough, and the courts will once again have to apply it in a pragmatic case
by case fashion. Sometimes the express contractual obligations including
the exclusion clause will be upheld, and sometimes they will not.42
The fourth unresolved question remaining after Photo Production is
whether or not Lord Diplock’s adoption of the Coote thesis will attract
judicial and academic converts. Although, if my analysis is correct, it does
not resolve the fundamental policy issues relating to the conflict of the
doctrine of freedom of contract with judicial intervention on behalf of
plaintiffs perceived as being unfairly treated, it does at least have the merit of
encouraging the ascertainment of the entire corpus of contractual rights and
duties, rather than ignoring some clauses in favour of others. One step in the
right direction is better than none at all, although one step need not result in
reaching the final destination. It does, at any rate, afford an improved
perspective on the real issues.
II. The Reception of Photo Production in Canada
Within the past year, several Canadian courts have considered or pur-
portedly adopted the ruling of the House of Lords in Photo Production.
However, the reasoning of these courts, in particular, the Supreme Court of
Canada, leaves much to be desired in that it would appear that some
misunderstanding has already crept into Canadian judicial comprehension
–
even of the points of law which were resolved in Photo Production.
Judicial capacity to imagine the existence of unresolved issues might be
doubted. Several recent Canadian decisions should be examined, beginning
with that of the Supreme Court of Canada in Beaufort Realties (1964) Inc.
and Belcourt Construction (Ottawa) Ltd v. Chomedey Aluminium Co.43
Beaufort was a mechanics’ lien action which concerned a waiver of lien
clause in a contract to supply and install aluminium windows during the
construction of the Lord Mountbatten Apartments in Ottawa. The main
construction contract was between Beaufort Realties and Belcourt
Construction which subcontracted
the glazing project to Chomedey.
Displeased with the quality of Chomedey’s workmanship, Belcourt withheld
the monthly progress payments called for by the subcontract. Numerous
requests for payment went unheeded and Chomedey was forced to withdraw
from the project at the end of November 1974. Another glazier, Majestic,
42The inadequacies of the Unfair Contract Terms Act, 1977, have, in this regard, been
commented upon by Coote, Note (1978) 41 M.L.R. 312 and by Palmer & Yates, supra, note
7, 123.
43[1980] 2 S.C.R. 718, affg sub nom. Chomedey Aluminium Co. v. Belcourt
Construction (Ottawa) Ltd (1979) 24 O.R. (2d) 1 (C.A.). For comments on these decisions
see Ogilvie, Photo Production Ltd v. Securicor Transport Ltd.: An Inconclusive
Unscientific (Canadian) Postscript (1981) 5 Can. Bus. L.J. 368; Ziegel, supra, note 7, 438-40;
Waddams, Note (1981) 15 U.B.C. L. Rev. 189.
Mc GILL LAW JOURNAL
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completed the project in April 1975. Chomedey filed a mechanics’ lien
against Belcourt and sued to recover the sum of $51,553.32. Belcourt argued
that Chomedey had waived its lien rights under article (6) which provided in
part: “The subcontractor hereby waives, releases and renounces all privileges
of rights or privilege, and all lien or rights of lien now existing or that may
hereinafter exist for work done or materials furnished under this
Contract”.44
Fogarty Co. Ct J. found that Belcourt’s refusal to make the progress
payments amounted to a fundamental breach of contract which precluded
Belcourt’s right to rely on the waiver, purportedly by application of Suisse
Atlantique. Consequently, he awarded Chomedey a lien judgment. The
majority of the Divisional Court of Ontario, consisting of O’Leary and
Linden JJ., agreed that there had indeed been a fundamental breach of
contract, but that Chomedey had effectively waived its lien rights by
article (6). Dupont J. was not convinced that failure to pay amounted to a
fundamental breach although he concurred with his brother judges that a
personal judgment should be awarded against Belcourt.45 With the decisions
of the Ontario Court of Appeal delivered by Wilson J.A. (as she then was),
and of the Supreme Court of Canada delivered by Ritchie J., an otherwise
unremarkable case becomes more interesting.
The Court of Appeal proceeded on the assumption that the trial judge’s
finding of fact that the fundamental breach was indeed committed by
Belcourt was correct. However, that assumption might easily be questioned.
It seems more likely that if there was a fundamental breach which provoked
Belcourt’s refusal to pay it was constituted by Chomedey’s inadequate
44 The clause continues, ibid., 720-1: “upon the premises and upon the land on which the
same is situated, and upon any money or monies due to or to become due from any person or
persons to Contractor, and agrees to furnish a good and sufficient waiver of the privilege and
lien on said building, lands and monies from every person or corporation furnishing labour
or material under the Subcontractor.
In addition to the requirements as set forth hereinabove, the Subcontractor agrees to
waive to the extent of one hundred percent (100%) of the final contract amount, any
privilege, lien and right of preference which he may have or which he hereafter may have
upon the aforesaid building and/ or the land upon which it is constructed as a result of or in
connection with work to be done or materials to be supplied by him, and moreover, that he
holds and will hold the Owner and Contractor harmless and indemnified from and against a
registration against the said property of any privilege, lien or right of preference by or on
behalf of any person, firm or corporation performing work or supplying materials under
authority derived from him, and, if and when so required by the Contractor, he will obtain
and deliver to the said Contractor, releases from any such privileges, liens or right of
preference signed by such persons, firms or corporations.
Subcontractor also agrees to waive all liens and to execute any waiver of liens that may be
required by the mortgage company or mortgagee.”
45 Mechanics’ Lien Act, R.S.O. 1970, c. 267, s. 40; see also D. Micklem & D. Bristow,
Mechanics’ Liens in Canada, 3d ed. (1972), 9-10 and 378-81.
1982]
RECEPTION OF PHOTO PRODUCTION LTD
workmanship. If that was indeed the case, then the reason for including
article (6) in the contract is evident. While it is so all-embracing as to
preclude virtually any claim a subcontractor might make, its inclusion was
probably primarily designed to limit Chomedey’s remuneration in the event
that it tendered a defective contractual performance. To infer otherwise, as
one would if the logical conclusion of the higher court’s approach to
article (6) were accepted, would mean that Chomedey had waived all lien
rights even if it had properly installed the windows, which seems absurd
given the circumstances and the contract.46
On the assumption that Belcourt’s failure to pay was a fundamental
breach, however, the substantive issue was whether or not Belcourt could use
the clause as a shield against Chomedey’s claim. An ordinary reading of the
clause would suggest that it could, and that it would indeed be able to do so if
Wilson J.A. had honoured her formal affirmation of Suisse Atlantique as
the proper approach to the question.47 However, she added a gloss to the
constructional approach when she said:
Many exclusionary clauses (and I am now referring to clauses which are clear and
unambiguous and require no construction) which in isolation seem unfair and
unreasonable are not so when viewed in their contractual setting and may, indeed,
constitute part of the quidpro quo for benefits received through hard negotiation. It
seems to me, therefore, that what we are to ask ourselves is not whether the exclusionary
clause is fair and reasonable in its contractual setting (this is, indeed, to be assumed in a
contract between sophisticated parties) but whether it is fair and reasonable that it
survive the disintegration of its contractual setting. If it is, then presumably that is what
the parties must be taken to have intended. But if it is not, then such an intention is not
to be attributed to the parties. The question for the Court then becomes: is it fair and
reasonable in the context of this fundamental breach that the waiver of lien continue to
bind the appellant?48
Two observations are appropriate here. First, the unprecedented and
unjustified distinction between a “contract situation” which subsists and one
which disintegrates ignores the point that an exclusion clause as a secondary
obligation does not disintegrate; until the issues between the parties to the
contract have been resolved it is incorrect to speak of the disintegration of the
contractual setting at all. Second, to suggest that the Court has the discretion
to decide whether it is fair and reasonable that an exclusion clause be applied
in the disintegrated setting is to sanction judicial intervention in a contractual
relationship regardless of the parties’ expressed intentions. How this differs
from the policy function of fundamental breach as a rule of law or a
46 There is some indication that Wilson J.A. (as she then was) perceived this point when
she says in Chomedey Aluminium, supra, note 43, 10: “I think the appellant waived the
security of its lien .. on the basis that progress payments would be being made on a regular
basis by Belcourt …. The appellant had no reason to anticipate that as the work progressed
it would ever be out of pocket any substantial amount.”
47 Chomedey Aluminium, ibid., 5-8.
48 Ibid., 8.
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[Vol. 27
substantive test of reasonableness as applied by the Master of the Rolls is
unclear. 49 At any rate, she concludes predictably that “it is not fair and
reasonable to attribute to the parties the intention that, if Belcourt were
deliberately to refuse to perform its basic obligations under the contract (as
the learned trial judge found), the appellant would nevertheless continue to
be bound by its waiver.”50
Wilson J.A.’s reason for this decision is quite clear. It would be unfair to
permit Belcourt to commit a fundamental breach of contract with impunity
and then to shelter behind the waiver clause which, if construed literally, did
indeed permit Belcourt to escape liability. The policy aim of the Court of
Appeal is clearly that of forbidding an outrageous transgression which, in
the doctrine of illegality, is controlled by the application of the maxim, ex
turpi causa non oritur actio. It is lamentable that the legal circumvention of
a substantive test of reasonableness is prised from its conventional context
to perform such a simple function, because it creates confusion as to the
nature of the Canadian response to Photo Production. More importantly, it
disguises the significant fact that the Court of Appeal is condemning a
transaction which offended its basic sense of morality without expressly
saying so. Judicial avoidance of explicit acknowledgement of the issues
involved in redressing unfair bargains can only delay the Utopian day when
only those contracts which are fair will be enforced.
That Wilson J.A. was not unaware that the real decisions must be policy
decisions in such cases is evident not only in the general tenor of her
judgment but also specifically in her discussion of ss. 4 and 5 of the
Mechanics’ Lien Act which, Belcourt argued, provided that a party can
contract out of a statutory lien by signing an express agreement to that
effect. 5′ In the companion case, Shill-Brand Inc. v. Belcourt Construction
49 Wilson J.A. later expressed her preference for the dissenting opinion of O’Leary J. in the
Beaufort companion case, Shill-Brand Inc. v. Belcourt Construction (Outawa) Ltd(1978) 19
O.R. (2d) 606 (H.C., Div. Ct) in which a rule of law approach was taken to an identical
waiver clause: see, ibid., 10.
50 Chomedey Aluminium, supra, note 43, 10.
514(l) Every agreement, oral or written, express or implied, on the part of any workman
that this Act does not apply to him or that the remedies provided by it are not available
for his benefit is void.
(2) Subsection 1 does not apply.
(a) to a manager, officer or foreman; or
(b) to any person whose wages are more than $50 a day.
(3) No agreement deprives any person otherwise entitled to a lien under this Act, who
is not a party to the agreement, of the benefit of the lien, but it attaches, notwithstanding
such agreement.
5(1) Unless he signs an express agreement to the contrary and in that case subject to
section 4, any person who does any work upon or in respect of, or places or furnishes any
materials to be used in, the making, constructing, erecting, fitting, altering, improving or
repairing of any land, building, structure of works or the appurtenances to any of them
19821
RECEPTION OF PHOTO PRODUCTION LTD
(Ottawa) Ltd, Linden J. in the Divisional Court, dealing with an identical
article (6) in the light of s. 5(1) held that once the parties had effectively
contracted out of the Act, then the lien was forever extinguished. He stated
that there was no inequality of bargaining power here and no need to invoke
the doctrine of fundamental breach. Indeed, he said that if waivers were
upset by a fundamental breach, “[t]hey could never be relied upon”.52 While
one might have thought that the legislature had expressed its intention to
permit contracting out of liens fairly clearly and that Linden J. had correctly
interpreted that intention, Wilson J.A. asserted that still clearer words were
required. She said, “[ilt seems to me that the Legislature could not have
intended to introduce such disparity into the position of the contracting
parties, i.e., that one party could be assured that, irrespective of the non-
performance by him of any of his contractual obligations, the other party’s
waiver of lien would continue to bind him.”53 Although mindful of the
desirability that waivers be reliable, Wilson J.A. surmised that had that been
the specific public interest in the mind of the legislature, it would have
prescribed a statutory waiver form rather than consigning the issue to the
contractual context and the vagaries of the common law of contract. To
expect that the legislators should be required to go to such lengths seems
unrealistic, if not ridiculous; indeed, as Linden J. suggested, it seems that
they could not have permitted a voluntary contracting out of a lien more
clearly. Linden J.’s approach acknowledged legislative intention to permit
Instead, she
freedom of contract whereas Wilson J.A.’s did not.
acknowledged the existence of a judicial discretion to assess legislative
intention in the light of good public policy as to judicial intervention in the
free bargaining contractual process. The conclusion that Wilson J.A. is a
tacit advocate of judicial intervention is inescapable.
More problematical and regrettable still is the too brief adoption of this
decision in the light of the subsequently decided Photo Production by the
Supreme Court of Canada. Ritchie J., for the Court, expressly adopted the
Court of Appears interpretation of s. 5(1) 54 and further, simply concurred
with “Madam Justice Wilson [who] adopted the same considerations as
for any owner, contractor or subcontractor by virtue thereof has a lien for the price of
the work or material upon the estate or interest of the owner in the land, building,
structure or works and appurtenances and the land occupied thereby or enjoyed
therewith or upon or in respect of which the work is done, or upon which the materials
are placed or furnished to be used, limited, however, in amount to the sum justly due to
the person entitled to the lien and to the sum justly owing, except as herein provided, by
the owner, and the placing or furnishing of the materials to be used upon the land or
such other place in the immediate vicinity of the land designated by the owner or his
agent is good and sufficient delivery for the purpose of this Act, but delivery on the
designated land does not make such land subject to a lien.
52 Supra, note 49, 609.
53 Chomedey Aluminium, supra, note 43, 10.
54 Beaufort Realties, ibid., 725-6.
McGILL LAW JOURNAL
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those which governed the House of Lords in the Photo case in holding that
the question of whether such a clause was applicable where there was a
fundamental breach was to be determined according to the true construction
of the contract.” 55 How the decision of the Court of Appeal in Beaufort and
the decision of the House of Lords in Photo Production can be so easily
reconciled is baffling!
Assessment of the decisions of Wilson J.A. and Ritchie J. in the light of
the four resolved and four unresolved issues after Photo Production, insofar
as they relate to Beaufort, reveals some confusion. With respect to the
resolved issues considered seriatim, the following observations may be
made. First, the concept of fundamental breach operating as a rule of law
undermines the Canadian judgments despite lip service to the principle that
the exclusion clause should be subjected to strict construction only. The
Canadian approach continues to be one of deciding first whether the events
constitute a fundamental breach of contract, whatever that might be, and
then of deciding whether the exclusion clause is relevant. In contrast, Photo
Production appears to suggest that it is not necessary to decide at all whether
there has been a fundamental breach of contract. Rather, it is enough to
construe the exclusion clause to decide whether or not it contemplated and
provided for the events which have occurred. There is no need to
denominate a fundamental breach at all, unless, of course, the exclusion
clause clearly operates where there has been a fundamental breach of
contract, so that one must determine whether the events constitute such a
breach. Beaufort, then, suggests a Canadian failure to understand that once
the concept of
the rule of construction approach has been adopted
fundamental breach is eliminated along with the rule of law concept. The
rule of construction operates like Occam’s razor.56
Second, while Wilson J.A. correctly stated that one effect of a
fundamental breach is to discharge the parties from further performance
of the primary obligations, she did not appreciate that the so-called
secondary obligations subsist and are to be applied, according to Photo
Production, to determine the final allocation of loss and damages between
the parties. Unlike even Lord Denning in Photo Production,57 she does not
anywhere in her judgment specifically construe the contract nor come close
to acknowledging what would appear to most reasonable people to be the
clear intention of article (6). Rather, after formal adoption of Suisse
Atlantique, she then proceeds to the reasonableness issue. The fundamental
perception that the exclusion clause is part and parcel of the bargain, is
lacking.
55 Ibid., 725.
56 Nunquam ponenda est pluralitas sine necessitate. 1 Sent. d. 27, q. 2k (1497).
57 Supra, note 5, 864 (C.A.).
1982]
RECEPTION OF PHOTO PRODUCTION LTD
Third, the restricted definition of “fundamental breach” as a breach of a
fundamental term or as a total failure of consideration is not acknowledged
at all by the Supreme Court- perhaps predictably, in the light of the first
point. Thus in Canada, at any rate, one must assume that the phrases
“fundamental breach”, “breach of a fundamental term”, “breach of a
condition” and so on, are still interchangeable and but inadequately defined.
The fourth point in respect of the deviation cases is irrelevant here.
With respect to the unresolved issues after Photo Production considered
seriatim, the following points may be made. First, the suspicion that a
substantive test of reasonableness has survived the House of Lords’ ruling in
Photo Production is confirmed, at least in Canada. It would, however, on
the facts of Beaufort, appear to be applicable to a wider range of contractual
situations than in England. Indeed, since there was apparently no inequality
of bargaining power in Beaufort, substantive reasonableness may be
judicially invoked in virtually all commercial and consumer transactions
other than those falling within the express orbit of consumer protection and
unfair trade practices legislation. It may well be that between the parties in
Beaufort there was inequality of bargaining power, as, of course, there can be
between commercial men dealing at arm’s length, or that the bargain may
indeed have been unfair in some ways perceived by the courts in Beaufort,
although not expressed in their judgments as it should have been. As
Professor Waddams has already noted, the tacit assumptions should have
been expressed by the Court of Appeal and the Supreme Court, otherwise
misunderstanding will arise.58 However, on the basis of the few facts
recorded in the written decisions at all curial levels in Beaufort, there would
that substantive
appear
reasonableness has been invoked to control a bargain between commercial
men of equal bargaining power. Therefore, even if it were right to consider
that Ritchie J.’s express adoption of Photo Production resulted in the
removal of fundamental breach as a rule of law from the Canadian legal
scene, it would also be correct to surmise that it has been replaced by a
substantive test of reasonableness which bestows on the courts at least as
much judicial discretion to intervene in contractual relationships as
fundamental breach ever did. Does Beaufort really differ from Harbutt’s?
to signify disapproval of
This comment should not be construed
reasonableness or of the development of an unconscionability doctrine;
rather, its aim is to clarify the logical confusion which characterizes the
reception of Photo Production in Canada as the first necessary step in the
process of defining an acceptable judicial role in the control of unfair
contracts.
to be no misunderstanding
in asserting
Second,
the absence of guidance from the Law Lords on the
construction process is reflected in the distortion mirror of Beaufort. The
58 Note, supra, note 43, 192-5.
REVUE DE DROIT DE McGILL
[Vol. 27
clear meaning of the waiver clause was overlooked by Wilson J.A. and
Ritchie J., which raises the question whether substantive reasonableness
should be interpreted as operating to neutralize the simple construction rule.
If reasonableness operated as a neutralizing factor, it is difficult to see how it
differs from Lord Denning’s presumed intention rule which effectively
negates the principle of construction & la Suisse.
The third unresolved issue relating to whether there was a concurrent
obligation in contract and tort is not relevant to Beaufort. However, the
fourth issue as to the status of the Coote thesis is. Wilson J.A. did not have
the advantage of having Lord Diplock’s decision in Photo Production
before her when rendering the judgment of the Court of Appeal in Beaufort.
Nonetheless, she shows familiarity with the thesis that exclusion clauses can
contain contractual obligations or modify rights and duties set down in the
primary obligations when she states that “[i]t is not, … one of those
exclusionary clauses which must be resorted to in order to determine
whether there has been a breach at all or the extent to which there has been a
breach. It does not modify the obligation or restrict the liability of the party
in default: it deprives the party not in default of an additional remedy.”59 In
view of the fact that Wilson J.A. does not elaborate upon this approach, it
would probably be wrong, or at least premature, to state that Lord Diplock’s
breakthrough has found judicial support in the Ontario Court of Appeal or
in the Supreme Court of Canada. Beaufort would not have been an
appropriate fact situation, in any case. However, it is comforting to note that
at least one Canadian judge perceives the significance of the Coote thesis.
in Ontario have raised Photo
Production issues although they have not inspired detailed jurisprudential
analysis. Woollatt Fuel and Lumber (London) Ltd v. Matthews Group
Ltd60 concerned a contract for the construction of a two-building apartment
complex in London, Ontario for the defendant Matthews, a local
development company. Woollatt had supplied materials
to Debuka
Enterprises which was doing the work and was not involved in the litigation
once its lien on the materials was discharged by Matthews. The substantive
issues arose between Debuka and Matthews. 6′ Debuka was a small,
successful one-man company which specialized in the installation of lathing
and acoustic tile ceilings. Prior to agreeing to supply and install lathing and
acoustic tile ceilings in the two apartments, Mr Slade, the owner of Debuka,
was shown a construction progress schedule which stipulated, inter alia, the
timing of the Debuka subproject. The schedule was posted in the site office.
The contract was concluded in early March 1973 with a contract price of
$152,000, and the work was to be completed in one building by 13 August
Two other construction contracts
59 Chomedy Aluminium, supra, note 43, 9.
60 (1979) 25 O.R. (2d) 730 (H.C., Div. Ct), rev’g in part (1978) 18 O.R. (2d) 454 (Co. Ct).
61(1978) 18 O.R. (2d) 454, 455 et seq.
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RECEPTION OF PHOTO PRODUCTION LTD
1973 and in the other building by 31 December 1973. Delays in completion
of the work to be done before Debuka began, as early as 5 June 1973,
prompted Slade to ask for an increase in the contract price to cover extra
work resulting from design changes and Matthews agreed to increase the
price to $155,349. Debuka started to work on 7 July 1973, behind schedule
because of incompetence on the part of a Matthews subsidiary company and
of the project manager who was later fired for his mismanagement of the
project. The delay of several months in starting meant that Debuka incurred
uncontemplated losses of about $15,000 due to shortages of materials and
failure by Matthews to provide a crew, thereby increasing Debuka’s labour
costs. However, Matthews proved unsympathetic to a request for a further
increase in the contract price and threatened to hire someone else to do the
job. Finally, on 4 January 1974, Slade withdrew his employees from the site
and sued for damages incurred due to Matthews’ fundamental breach of
contract. Several clauses in the contract were relevant:
3. The Sub-Contractor… shall commence, perform and complete the several portions
of the sub-contract work as directed by the Contractor in a prompt, diligent, good and
workmanlike manner … in accordance with the project schedule ….
[I]n the event of delay in performance of the sub-contract work caused by the act,
4.
neglect or default of the Contractor or by any damage caused by fire or other casualty at
the project site in no way caused by or related to an act or default on the part of the Sub-
Contractor or any other person, firm or corporation working on the sub-contract work,
or by any other cause beyond the Sub-Contractor’s control, then the time for the
completion of the sub-contract work shall be extended for a period equivalent to the
time lost by reason of all causes aforesaid, which extended period shall be determined
by the Contractor, but no such allowance shall be made unless written claim is
presented to the Contractor within 3 days from the beginning of such delay. Such
extension shall discharge the Contractor of any claims which the Sub-Contractor may
have on account of any of the aforesaid causes of delay.62
At the time of Debuka’s withdrawal from the contract it was two and
one-half months behind the adjusted schedule and five months behind the
original schedule. Matthews sought to shield behind clause (4), which Killeen
Co. Ct J. described as “a specific and unambiguous clause”;63 it purported
“to grant only the remedy of an extension time to the sub-contractor and its
last words are absolute in character”64 in discharging the contractor from any
claims which the subcontractor may have. The only question for the trial
judge then was whether or not Matthews’ delays constituted a fundamental
breach of contract precluding reliance on clause (4). After adopting the rule
of construction approach and citing the appropriate cases, 65 the learned
62Ibid., 461.
63 Ibid., 462.
64Ibid., 463.
65 Suisse Atlantique, supra, note 3; B.G. Linton Construction Ltd v. C.N.R. Co., supra,
note 6. See also Perini Pacific Ltd v. Greater Vancouver Sewerage and Drainage District
[1967] S.C.R. 189 which involved a similar clause.
Mc GILL LAW JOURNAL
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judge concluded, albeit “reluctantly”, 66 that clause (4) exonerated Matthews
for the losses suffered as a result of its own delays.
On appeal, Matthews conceded that it had committed a fundamental
breach of contract in light of the then recent Court of Appeal decision in
Beaufort: this entitled Debuka to elect to terminate the contract, and
Matthews’ claim for damages resulting from extra completion costs died.
The sole issue then was Debuka’s claim for damages for losses sustained as a
result of Matthews’ delay and whether clause (4) exonerated Matthews.
Robins J., for the Divisional Court, (O’Leary and Saunders JJ. concurring)
decided that the trial judge had correctly construed the contract.67 However,
the question was how the clause governed the situation. He decided that
clause (4) contemplated the probability – “hardly an unlikely one” –
that
delay would be caused by the contractor and provided the remedy of an
extension of time. 68 Debuka did not exercise the option to request an
extension of time and therefore had to suffer the penalty prescribed by
clause (4). That was the intention of the contract.
A clearer case of strict construction could hardly be hoped for. Yet on
closer examination of the reported facts, the absence ofjudicial techniques in
the face of application of precedent could be said to have produced an
offensive result. The trial judge, as noted above, was reluctant to render the
decision which he believed himself obliged to give, and some factual evidence
substantiating his reluctance is found in the reports in relation to Matthews’
conduct throughout the proceedings. The trial judge described Matthews’
evidence of the losses incurred in completion of the project after its
abandonment by Debuka as “difficult”, “high”, containing “curiosities”,
containing a “substantial mathematical error” and an “excess error”; they
were also described as “irreconcilable” and “unsatisfactory”. 69 Matthews’
reaction to Debuka’s request for an increased contract price to reflect losses
suffered as a result of Matthews’ delays was described as “totally
obdurate”.70 Matthews proved reluctant to admit to the existence of the
project schedule when it suited them, 71 then relied upon it in respect to the
three day extension option in clause (4). It is difficult to avoid the conclusion
that from start to finish Matthews was embarked on a well-defined pattern
of deceptive behaviour and that the trial judge was restrained by the
applicable legal principles from taking this into account in his decision.
The role of the project schedule and of clause (4) in the judge’s analysis
raises questions as to whether the doctrine of rule of construction was
66 Supra, note 61, 465.
67 Supra, note 60, 732.
68 Ibid., 733.
69 Supra, note 61, 465-7 per Killeen Co. Ct J.
70 Ibid., 463.
71 Ibid., 455.
1982]
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appropriate. 72 If Matthews’ initial reluctance to admit to the importance of
the schedule reflected its importance within the contractual nexus, it may be
asked why Debuka should have taken seriously the three day period within
which to ask for an extension. Debuka admitted knowledge of the schedule
prior to signing the contract, yet it was not given a copy of the entire
schedule, or at least of the part pertaining to its work. Nor was there
evidence that Matthews gave it notice of the importance of keeping to the
schedule; indeed, Matthews’ own conduct would reinforce the conclusion
that the schedule only mattered to Matthews when it lost money, but not
when the subcontractors lost money as a result of Matthews’ incompetence
and dilatoriness. If the circumstances suggest the relative unimportance of
the project schedule, then the appropriateness of judicial enforcement of the
three day provision in clause (4) is also questionable. In relation to the
duration of the contract with Debuka, three days within which to request an
extension is an extremely short period of time. It might be difficult to decide
when a delay has begun given the complexities of a large and complex
construction project, and it will be equally difficult to determine whether the
delay will be of sufficient duration and manner to affect the project schedule
seriously. Therefore, it is difficult to justify the enforcement of such a clause
in the first place on grounds of its manifest absurdity. It is even more difficult
to justify in the light of the circumstances of Matthews’ performance of its
part of the bargain.
It is also interesting to speculate as to what might have happened had
Debuka not been forced by economic factors to withdraw from the contract,
but rather elected to complete the contract despite Matthews’ fundamental
breach. It seems more than likely that had it sued for increased costs due to
inflation, labour problems and materials shortages resulting from Matthews’
delays, the growing body of opinion that damages should be awarded in such
circumstances would have produced a result in Debuka’s favour. 73 The
development of the notion of economic duress might have served this end;
indeed, the invocation of economic duress may have been the better
argument for Debuka. 74 At any rate, it is submitted that it would be absurd
to permit Matthews’ blameworthy conduct to count when there was no
exclusion clause but not to count where there was one. The apartment
blocks had to be completed, no matter by whom, and one can be certain that
Matthews would have computed its increased costs into the rentals so that it
72 Ibid., 462-5.
73 Swan, Consideration and the Reasonfor Enforcing Contracts(1976) 15 U.W.O.L. Rev.
83; Reiter, Courts, Consideration and Common Sense (1977) 27 U.T.L.J. 493.
74 See the recent cases in England and Ontario discussed in Ogilvie, Economic Duress,
Inequality of Bargaining Power and Threatened Breach of Contract (1980) 26 McGill L.J.
Inequality of Bargaining Power – Quo
289 and Ogilvie, Contracts – Economic Duress –
Vadis? (1981) 59 Can. Bar Rev. 179; Dodson, The Atlantic Baron: Consideration, Econo-
mic Duress and Coerced Bargains (1980) 38 U.T. Fac. L. Rev. 223; Evans, Economic Duress
[1981] J.B.L. 188.
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was unlikely to be out of pocket whatever decision the Court reached in
respect to Debuka’s claim.
for damages
These criticisms are reducible to one conclusion: if ever there was a case
where a substantive test of reasonableness or a doctrine of unconscionability
was required to do justice, this was it. Moreover, it is interesting to note that
the Divisional Court dimly perceived the survival of such a test. In relation
to Matthews’ counterclaim
resulting from Debuka’s
withdrawal from the project, Robins J. noted that had that issue been
pressed (which it was not because Matthews conceded that they were in
fundamental breach) he would have had to decide whether the first
paragraph of clause (4) was fair and reasonable in light of Wilson J.A.’s
decision in Beaufort. That paragraph provided that where there was loss to
the contractor resulting from the subcontractor’s failure to perform his
contractual promises, the subcontractor was bound to indemnify the
contractor for his losses. Why would a substantive reasonableness test have
applied in respect to the first paragraph of clause (4) but not to the second
paragraph? It is, then, difficult to avoid the conclusion that although the
Divisional Court in Woollatt purported to apply the Beaufort decision in the
Court of Appeal, in fact it did not do so. Indeed, Woollatt is unlike the
customary Canadian approach to the entire issue of fundamental breach in
that the Court really did apply the rule of construction to the clause in
question, rather than pay lip service to it, and then decide what was the
fairest result in the case!
It would be unjustifiable to judge the decision in Woollatt in the light of
Photo Production since the House of Lords’ decision had not been reported
at the time of the Woollatt appeal in the Divisional Court. Nevertheless,
several conclusions may be drawn. First, there is confusion in the mind of
the Divisional Court as to the relationship of fundamental breach and the
rule of construction in that it would appear that had Matthews not conceded
that it had committed a fundamental breach, the Court apparently would
have proceeded by first determining whether there was such a breach, and
then as a second step deciding whether on construction clause (4) precluded
liability for such a breach. As suggested earlier, a separate finding of
fundamental breach is not required if Photo Production is followed; rather,
a court need merely decide whether or not the events which have taken place
preclude reliance on the exclusion clause. Second, the Court adopted too
narrow an interpretation of its role in the light of Beaufort in that it was
perfectly free to adopt a substantive test of reasonableness which, it is
submitted, would have done justice on the facts of the case.
A similar approach was taken in the post-Photo Production decision,
Uni-Form Builders Ltdv. City of Ottawa,75 a decision of Osler J. in the High
75(1980) 29 O.R. (2d) 266 (H.C.).
1982]
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Court of Ontario. The contract in that case provided that Uni-Form would
construct a building in the Byward market consisting of several levels of
parking space and a number of shops for the City of Ottawa. The builders
were suing to recover $157,362 as costs incurred beyond the contract price
due to delays in the performance of their contractual obligations occasioned
by various contractual breaches by the City including, inter alia, failure to
hand over the building site by the date called for in the contract, the issuance
of hold orders on parts of the job and over sixty change orders which
required Uni-Form to make tenders which had to be approved by the City
which spent a protracted period over each decision. Although the original
completion date was April 1975, Uni-Form employees were on the job until
February 1976. To avoid a lengthy trial, the parties agreed to certain facts.
The City admitted that the delays were substantial and that the change
orders, in particular, contributed to the delays. Since the determinative issue
would be the construction of an exclusion clause in the contract, they agreed
to proceed directly to the construction of clause (3.24.11):
Unless otherwise particularly provided in the contract, the contractor shall have no
claim or right of action against the Municipality for damages, costs, expenses, loss of
profits or otherwise howsoever because of or by reason of any delay in the fulfillment of
the contract within the time limited therefore occasioned by any cause or event within
or without the contractor’s control, and whether or not such delay may have resulted
from anything done or not done by the Municipality under this contract. 76
In addition, clause (3.24.7) provided for liquidated damages for the
municipality in the event that Uni-Form failed to complete on time; thus the
possibility that delay could occur was clearly contemplated and provided for
by the parties. After reviewing Suisse Atlantique, R.G. McLean Ltd v.
Canadian Vickers Ltd,77 Belcourt and Photo Production, the Court found
on construction that even if the City’s conduct constituted a fundamental
breach of contract, it could use clause (3.24.11) to shield itself from Uni-
Form’s claim for damages, although in the opinion of the Court there had
been no breach in the first place.78 As an exercise in strict construction of a
commercial contract between parties of equal bargaining power, the decision
is simple and faultless. Even if it were necessary to do so, it seems difficult to
argue that there was a fundamental breach because although the contract
was completed almost a year behind schedule, the claim was relatively small
in relation to the full contract price of $2.3 million plus additional agreed
sums.
However, one disconcerting fact arises in that when the judge was
dealing with costs in the action he decided not to award any, noting that
many of the difficulties arose because the City of Ottawa had requested that
the contract period be reduced from eighteen to thirteen months, or by about
76 1bid., 269.
77Supra, note 6.
78Supra, note 75, 272 per Osler J.
McGILL LAW JOURNAL
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28 per cent of the original time allotted. Perhaps too much should not be
made of that fact in the absence of more complete details because the parties
agreed to go straight to the construction issue. However, the question of
whether or not this too was a case for a substantive test of reasonableness
may be raised. 79
Prior to assessment of the impact of Photo Production generally, one
other recent Canadian case which deals with the issue of concurrent liability
in contract and tort must be examined. Canadian Western Natural Gas Co.
v. Pathfinder Surveys Ltd80 concerned a damage suit in respect to an error in
staking out an underground gas transmissions line. The gas company
contracted with the surveyor for the staking out of a pipeline to be laid along
a three mile route in Calgary. An error was made in the survey but the gas
company did not realize this until it was in the process of laying the pipeline.
Its employees improvised and as a result the line was significantly misplaced.
In an action for damages the Alberta Supreme Court, Trial Division held for
the gas company and the surveyors appealed. On appeal, the main issues
were the availability of an action in the tort of negligence and the gas
company’s duty to mitigate. The specific amount claimed was for
consequential loss in that the other parts of the pipeline could not be used
until the portion in question was properly placed. There was no exclusion
clause involved.
The surveyor pleaded that it could only be sued in the tort of negligence
in response to the gas company’s claim in contract, which raised the issue of
whether there could be concurrent claims in contract and tort. The majority
of the Court of Appeal, consisting of Prowse and Harradence B.A., thought
that there could indeed be concurrent claims, provided the claim in tort was
founded on an “independent tort”.8′ In reaching this decision, they cited not
only the well-known Canadian cases on the issue but also several recent
English cases, including Photo Production.82 However, only the Master of
the Rolls’ views on the matter were considered since the Alberta appeal was
decided prior to the House of Lords’ decision in Photo Production. It
should be recalled that while concurrent liability has been accepted in
England when the same duty arises in contract and tort, this rule is limited in
79 A potential revival of strict construction in other contexts, as prompted by the Canadian
adoption of Photo Production, is also seen in the bankruptcy case, Skyrotors Ltdv. Bank of
Montreal (1980) 34 C.B.R. (N.S.) 238, 241 (Ont. S.C.) per Osborne J.
80(1980) 21 A.R. 459 (Alta C.A.).
s Ibid., 474 per Prowse J.A. citing J. Nunes Diamonds Ltd v. Dominion Electric
Protection Co. [1972] 2 S.C.R. 769, 777-8per Pigeon J.; Rivtow Marine Ltdv. Washington
Iron Works [1974] S.C.R. 1189; Giffels Assoc. v. Eastern Construction Co. [1978] 2 S.C.R.
1346. See also Morgan, supra, note 33.
82 Esso Petroleum Co. v. Mardon [1976] 1 Q.B. 801 (C.A.); Anns v. Merton London
Borough Council [1978] A.C. 728 (H.L.); Batty v. Metropolitan Property Realizations Ltd
[1978] 1 Q.B. 554 (C.A.); Midland Bank Trust Co. v. Hett, Stubb and Kemp [1979] Ch. 384.
1982]
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449
Canada by the view that concurrent liability arises only when the tortious
action is somehow independent of the contract; that is, it merely occurs
within the general setting of the transaction. In view of the fact that the
Alberta Court of Appeal adopted the Nunes Diamond83 limitation rather
than the English precedents, and also in view of the fact that four of the Law
Lords found concurrent liability, albeit on the basis of an implied term
which imposed a heavier duty of care than the exclusion clause, one need
only note that Photo Production has had no effect to date on the concurrent
liability issue in Canada.
Conclusion
The Canadian reception of the House of Lords’ decision in Photo
Production ranges from confusion about the nature of the decision through
obfuscation of the policy issues underlying it to the superficial application of
one aspect of the decision in isolation from other issues. Photo Production
itself is far from satisfactory which, admittedly, does not help. In a nutshell,
the fundamental problem is judicial failure, both English and Canadian, to
acknowledge that the underlying issue is the propriety of judicial control of
the socio-economic realities underpinning the modern contractual nexus.
The courts, perhaps mindful of the legislative lead, could be said to be
backing unwillingly into the role of arbiters of unfair agreements.
The underlying paradox of the Photo Production decision exemplifies
the problem. The Law Lords expressly adopted the traditional rubric of
freedom of contract for commercial men dealing on terms of equality, yet
four out of five declined to overrule a substantive test of reasonableness to
assess the applicability of exclusion clauses. Translation of this conflict to
Canada has produced several reflections. At the Court of Appeal level in
Beaufort the traditional Canadian approach of express adoption of the
construction rule which honours contractual bargaining freedom is ridiculed
by the actual application of a substantive reasonableness test to exclude the
clause in question. It seems that Ritchie J., in the Supreme Court, did not
understand Photo Production to do more than re-establish the construction
rule so that while, ironically, he is in one sense correct in stating that the
Court of Appeal decision was in line with Photo Production, he was not
aware of how true that observation was. Homer had indeed nodded! But the
more serious consequences of Canadian failure to appreciate the ambit of
Photo Production are apparent in Woollatt where the Court felt constrained
to a simple, strict, superficial application of the construction rule although
the circumstances suggested its inappropriateness to the end of doing justice
between the parties. Uni-Form may also be a similar case, although
insufficient facts preclude any firm conclusion. The survival, then, of a
substantive reasonableness test in the face of strict construction, and
83 Supra, note 81.
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the application of reasonableness
especially,
to a contract between
commercial parties, apparently of equal bargaining power, means that
further judicial consideration must be given to the policy issues shirked in
this latest round of cases. The issue is clear, if hardly simple: should the
courts permit one party to contract out of his obligations –
even out of
liability in the event of his fundamental breach of contract – or should they
be prepared to state boldly (and sometimes wrongly) that certain contractual
promises offend commonly perceived
standards of fairness and
reasonableness and that a promisee should not be permitted to benefit from
his own blameworthy acts?
If the survival of substantive reasonableness raises unconscionability
issues, the restoration of the rule of construction creates other problems. To
assert that exclusion clauses should be clearly construed is all very well, but
past experience has shown the necessity for more specific rules to deal with
less than specific clauses. Photo Production suggests that the construction
process need no longer include a determination as to whether there was a
fundamental breach, only that the clause made no provision for the events
which have occurred. But does it not also suggest that where the clause
clearly excludes liability for fundamental breach, such a clause would be
honoured by the courts, even though its effect is to deprive the contract of
contractual content? Clear construction alone is unrealistic and past judicial
concoction of supplementary construction rules has, to a large extent, been
prompted by a desire to avoid unreasonable solutions. How long will it be
before a court is required to invoke the rule that contractual promises should
not be reduced to “mere declarations of intent” in order to circumvent an
exclusion clause excluding liability for fundamental breach? Indeed, such an
approach could have been taken in Beaufort in that it could be argued that
the clause which had the effect of depriving the innocent party of its right to
remuneration by the mechanics lien had the effect of invalidating the
contractor’s contractual duty to pay for work done so that that an
unenforceable legal duty had been created. In other words, there was no
contractual promise
to pay, merely a morally binding promise, and
restitution would follow. How much simpler to do what Wilson J.A. did and
determine that it was unreasonable to enforce the clause in the first place,
even if she did not fully acknowledge that that was what she was doing. The
proliferation of construction rules and such tortured legal argumentation
seems to be the corollary of Photo Production. Woollatt, and perhaps Uni-
Form, exemplify a different
type of difficulty, namely, that clear
construction of clearly drafted clauses judicially rubberstamps the possibly
offensive use of socio-economic bargaining superiority. Even when clear
construction is possible, it may not be enough to do justice, and may seduce
lazy judges into easy decisions and the avoidance of hard issues.
One particular construction issue is the extent to which individual
contract clauses are interrelated, or, to what extent the court should construe
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the entire “contract parcer’. In Photo Production only Lord Diplock
expressed the view that a clause which purported to exclude liability could
also establish contractual duties of performance. That the English courts
may prove reluctant to adopt that position or to expand it to equate
performance and remedy clauses is shown in the Privy Council decision
delivered by Lord Wilberforce in Port Jackson Stevedoring Pty Ltd v.
Salmond and Spraggon (Australia) Pty Ltd84 in which the goods’ owner
argued that the stevedores’ default was a repudiation of the contract entitling
him to be discharged from other terms of the contract, including one which
required an action upon a breach to be brought within one year. In other
words, the clause was a condition of the contract with which an innocent
party was obliged to comply. The Privy Council declined to accept this
argument which it said equated a clause intended to operate upon a breach
with clauses related to performance, and which are indistinguishable from
arbitration or forum clauses which survive a repudiatory breach. The clause
in question related to the modification of a secondary obligation to pay a
monetary compensation, not to a primary obligation of performance. While
little difficulty is experienced in the abstract categorization of contractual
terms into those relating to performance and those relating to remedies, the
distinction is arguably superficial. A clause precluding a remedy in the event
of a breach or of a delay in performance, whether immediately or after the
expiry of a stipulated period of time, could also be viewed as a clause which
modifies a primary obligation of performance that is a contractual duty to
pay or to perform on time. But if the duty to pay or to perform on time is
unenforceable, as argued above in respect to Beaufort, it may be questioned
whether a contractual duty arose in the first place. Rather, a mere moral
obligation to perform was created. The inextricable interrelationship of
rights and remedies lies at the basis of all promises which the law will enforce.
It is difficult, then, to distinguish when a particular clause pertains to
remedies only and when it pertains to rights and duties only. The hesitancy
of the Privy Council in fully embracing Lord Diplock’s analysis and Wilson
J.A.’s expressed view that the Coote approach was inappropriate to the
contract under consideration in Beaufort suggests the unlikelihood that the
Coote thesis will find judicial approval in Canada or England in the near
future.
In conclusion, the reception of Photo Production Ltd v. Securicor
Transport Ltd in Canada has been open and warm, if problematical and
puzzling. Purported applications of the decision have overlooked its
inherent difficulties to such an extent that its actual intellectual digestion by
84[ 1981 ]! W.L.R. 138 (P.C.) Not only did the Privy Council consist of Lord Scarman,
but also Lord Diplock, as well as Lords Fraser and Roskill.
Mc GILL LAW JO URNA L
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Canadian courts may be doubted. The Latin tag adopted by an English
commentator 85 over a decade ago to describe Harbutt’s applies, mutatis
mutandis, to the Canadian reception of Photo Production: nee tamen
consumebatur. The Canadian judiciary has partaken of Photo Production,
yet it has not consumed its significance.
85 Weir, Nec Tamen Consumebatur – Frustration and Limitation Clauses (1970) 28
Cambridge L.J. 189.
