Index

January 4 , 2021

Urgent!


December 10, 2020

Traps and Confusion in Service Times


November 24, 2020

Don't Cut Corners


October 2 , 2020

Consent Orders


August 4 , 2020

Electronic Hearings


July 21, 2020

Ceasing to Act


June 29, 2020

Writing Skills


June 29, 2020

Keeping Up With the Law


June 22, 2020

Assets as a Test for Security for Costs


June 19, 2020

What is This Case About?


June 11, 2020

Cross-Examining Child Witnesses


May 20 , 2020

Formal Offers


May 13 , 2020

Vexatious or Self-Represented Litigants


January 7, 2020

G.S.T. and Costs


December 20 , 2019

Electronically Navigating the
Handbook


October 7 , 2019

Questioning is a Bad Word


July 29 , 2019

Dismissal for Delay


May 7 , 2019

Rule 4.31 Fallacies


March 18 , 2019

More Dangers in Oral Fee Agreements


February 11 , 2019

Weir-Jones Decisions


January 9 , 2019

Discouraging Settlements


November 30, 2018

European Court Helps You Twice?


November 23 , 2018

Courts Overruling Tribunals


November 16 , 2018

New Evidence on Appeal


October 30 , 2018

Schedule C's Role


July 17 , 2018

Loopholes in Enforcing Settlements


May 7 , 2018

Enforcement of Procedure Rules


April 16, 2018

Limping Lawsuits are Often
Doomed


April 3 , 2018

Court of Appeal Tips for
Summary Decisions


March 19, 2018

Serious Dangers in Chambers
Applications


February 13 , 2018

Court Backlog


December 18 , 2017

Lowering the Status of Courts


September 15 , 2017

Access to Court Decisions


July 4 , 2017

Strictissimi Juris


June 14 , 2017

Why Don't Your Clients Settle?


June 5 , 2017

Gap in Rules About Parties


June 5, 2017

Personal Costs Against
Solicitors


April 26, 2017

Clogged Courts


April 11, 2017

Dismissal for Want of
Prosecution


January 6, 2017

Incomplete Disclosure


December 15, 2016

Mediation


November 23, 2016

Is Contract Interpretation Law?

 

Welcome

Côté’s Commentaries

© 2016-2021 J.E. Côté

URGENT!

 

Huge changes have just hit the law of contract. You and every lawyer with whom you practice, at once must read C.M. Callow v. Zollinger 2020 SCC 45 (Dec 18).

Now no lawyer can negotiate, draft, interpret, or follow any kind of agreement without reading the decision. Note its big changes and possible corollaries or sequels. A lawyer must read it to advise any client about a dispute involving any contract. Many important aspects of contracts are now unreliable. Useful legal advice in some commercial or consumer matters now is probably impossible. Many situations offer no more than 70%, nor less than 30%, chance of success. Some are 50:50.

2014's “new philosophy” favoring summary disposition of lawsuits without a full trial, now is sometimes impossible. For example, the majority decision uses the word “reasonable”. Possible honesty or unreasonableness can prevent summary disposition and crawl through years of discovery. Coupled with court backlogs, enforcing many contracts may have become commercially impractical.

Firing an employee may now need slow preparation and careful advice at most steps.

It is now risky for your clients to deal with unknown customers. Especially difficult, unfriendly, or bureaucratic customers, whether as creditor or debtor. Maybe your first question to clients should be “How well do you know the other party?”

Options or one party’s contractual powers to grant or withhold or enforce rights, are much weaker now. Renewal or cancellation clauses can be traps. What used to be quick undoubted legal steps to help one party, now can be rickety muskets. They are apt to explode in your client’s face.

Contracts which make your client perform up front and then wait years to get repaid, can now be dangerous. All contracts’ security, and their default clauses, need rethinking. Clients should not put much reliance upon them. They sound good. But so do lottery tickets.

– Hon. J.E. Côté

 

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.