The Supreme Court of Canada Moves the Law of Contract: The Principle of Good Faith and the Duty to Act Honestly
Posted in Contracts

On November 13, 2014, the Supreme Court of Canada released its much anticipated decision in Bhasin v. Hrynew, 2014 SCC 71.  In its decision, the Supreme Court of Canada for the first time expressly recognized “good faith” as an organizing principle in the operation of contract law in Canadian common law provinces.  This is a significant alteration to the law of contracts in the common law jurisdictions of Canada.  We expect that Bhasin will become known as one of the seminal decisions in Canada in relation to the performance of contractual obligations.

The Supreme Court of Canada’s alteration or what they called an “incremental step” to the law of contracts was to acknowledge good faith contractual performance as a general organizing principle of the common law of contract.  This principle “underpins and informs” the various contractual doctrines which govern contracts in Canadian law.   The Court differentiated an “organizing principle” from a specific legal doctrine.  An organizing principle is a standard which underlies legal doctrines and which may be used to determine how those doctrines operate.  It is flexible and may be given different weight in different situations.  The Court found that good faith was a standard by which existing legal documents should be interpreted and also that by recognizing good faith as an organizing principle, it would allow the common law of contract to be developed in a more coherent and principled manner.

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