Lessons learned from the “good faith” trilogy

In an episode of The Advocates’ Society’s Friends Who Argue podcast, Torys associate Winston Gee discussed the Supreme Court of Canada's decisions in the “good faith” trilogy which include: David Matthews v. Ocean Nutrition Canada Limited, C.M. Callow Inc. v. Zollinger and Wastech Services v. Greater Vancouver Sewerage and Drainage District.

When asked about his thoughts on the implications of these decisions, he emphasized that “it changes the way individuals and businesses need to think about how they communicate about contracts.”

One of the key takeaways from the Callow case, as narrated by Winston, is making sure that what is being communicated is not done so in a way that’s going to give rise to any misapprehensions.

“The duty of honest performance is not limited to just outright lies, but can include half-truths, omissions and even silence in certain circumstances,” he explained.

Read: Supreme trash talk: The duty of good faith in contractual discretion clarified in Wastech

Reflecting on Wastech, Winston said that the decision has created implications in the drafting of contracts.

“What this means in practice is: the less clear you are about the scope of a discretionary power, the more room there is for judges to come in and decide what the purpose is based on arguments put forth by parties in litigation,” he noted. 

Winston represented the Canadian Chamber of Commerce intervener in both Callow and Wastech.

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