694 THE ADVOCATE
VOL. 78 PART 5 SEPTEMBER 2020
that frustration was arguably self-inflicted. In more complex cases, expert
evidence may be required for courts to make findings as to the manner in
which the consequences of COVID-19 impacted the parties and their economic
For contracts entered into after COVID-19 was declared a pandemic, parties
are unlikely to obtain the benefit of the doctrine of frustration given
that the circumstances were or should have been known to them such that
they are not unforeseeable. On a related point, given that COVID-19 represents
only one of a number of pandemics that have arisen over past
decades, it may become more difficult for parties to rely on the doctrine of
frustration in the event of future pandemics. Rather, courts may for some
time into the future treat pandemics as events that should have been foreseen
by parties. As a result, parties should consider including well-drafted
force majeure clauses in their contracts that specify the outcome in the
event that a future pandemic impacts the contractual relationship. By doing
so, parties may achieve greater contractual certainty and avoid a potentially
1. GHL Fridman, The Law of Contract in Canada, 5th
ed (Toronto: Carswell, 2006).
2. (1903), 2 KB 740 (EWCA) Krell.
3. (1863), 122 ER 309 (EWHC).
4. (1961), 2 All ER 179 (UKHL).
5. See Paradine v Jane, 1647 82 ER 897, where the
court expressed the view that contracts are
“absolute” in the sense that impossibility is never an
excuse unless expressly provided for in the contract.
6. 1981 2 WLR 45 (UKHL) Panalpina.
7. Ibid at 57.
8. (1922), 64 SCR 106.
9. 2001 SCC 58.
10. (1975), 61 DLR (3d) 385 (Ont CA).
11. 2000 BCCA 295.
12. 2007 BCCA 246.
13. Ibid at para 39.
14. See e.g. Delta Food Processors Ltd v East Pac Enterprises
Ltd (1979), 16 BCLR 13 (SC).
15. Supra note 1.
16. See e.g. Polia v Trelinski (1997), 36 BLR (2d) 108
17. See e.g. Maritime National Fish Co v Ocean
Trawlers Ltd, 1935 AC 524 (PC).
18. See e.g. Comm’r of Agricultural Loans v Irwin,
1942 SCR 196.
19. See e.g. Atlantic Paper Stock Ltd v St Anne-Nackawic
Pulp & Paper Co, 1976 1 SCR 580 Atlantic
Paper, which involved a ten-year supply contract for
the supply of waste paper utilized in the production
of corrugation. Approximately one year into performance
of the contract, the customer advised the
supplier that it would no longer accept delivery of the
waste paper. The Supreme Court held that the primary
cause of the customer’s failure to perform its
obligations was its lack of an effective marketing
plan for its product. Although the case is a force
majeure case rather than a frustration case, the same
reasoning would presumably apply if there were no
force majeure clause and the party had pled frustration
20. Ottawa Electric Co v Ottawa (City), 1903 OJ No
520 (CA); Dover Corp (Canada) Ltd v Maison Holdings
Ltd, 1976 AJ No 607 (CA).
21. Atlantic Paper, supra note 19.
22. Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe
Barbour Ltd, 1943 AC 32 (HL) Fibrosa.
23. Appleby v Myers (1867), LR 2 CP 651 (Ex Ch)
24. Ibid; St Catharines (City) v Ontario Hydro-Electric
Power Commission (1927), 61 OLR 465 (HC), aff’d
1928 62 OLR 301 (CA).
25. Fibrosa, supra note 22.
26. Witwicki v Midgley, 1979 CarswellMan 100 at para
10 (CA), rev’ing 1976 CarswellMan 63 (QB).
27. RSBC 1996, c 166.
28. RSA 2000, c F-27; CCSM c F190; RSNB 2011, c
164; RSNL 1990, c F-26; RSNWT 1988, c F-12;
RSNWT (Nu) 1988, c F-12; RSO 1990, c F.34; RSPEI
1988, c F-16; SS 1994, c F-22.2; RSY 2002, c 96.
29. Debates of the Legislative Assembly (18 March
1974) at 1299–1300.
30. For the more notable of the reported decisions, see
e.g. Pure v BC-Alta, 2019 BCSC 390 at paras 81–
84 Pure; Fort St John Aircraft Maintenance Ltd v
Canadian Indemnity Co, 1983 CarswellBC 1366 at