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paras 10–12 (SC); and British Columbia v Cressey
Development Corp, 1992 CarswellBC 1133 at paras
9–13 (SC) Cressey.
31. Pure, supra note 30 at paras 81–84.
32. Moulton Contracting Ltd v British Columbia, 2015
BCCA 89 at para 53.
33. Prior to the enactment of the Act, the common law
permitted recovery on the basis of a total failure of
consideration, which is a quasi-contractual concept
more grounded in restitutionary principles. See e.g.
the decision of the House of Lords in Fibrosa, supra
note 22, which held that in situations involving a total
failure of consideration, there could be recovery
essentially on the basis of restitutionary principles.
34. Cassidy v Can Publishing Corp (1989), 41 BLR 223
35. Cressey, supra note 30 at paras 9–13.
36. There is some support for this concept in the comments
of Kerans JA of the Alberta Court of Appeal in
Atco Ltd v Continental Energy Marketing Ltd, 1996
6 WWR 274 (ABCA), where a distinction was drawn
between the alleged supervening event and the
“proximate cause” of the interruption of the supply
arrangement, which was the supplier’s decision to
cut off supply to the buyer. Kerans JA emphasized
that a force majeure clause is not just about the
occurrence of an event, but about the effect of that
event on the party seeking its protection. Arguably
the same analysis ought to apply in frustration cases.
37. One interesting question is whether governments
may obtain the benefit of the doctrine of frustration
where it was in fact their decisions that resulted in the
supervening event. Previous case law suggests that
the doctrine will not be available in such circumstances:
see e.g. Wells v Newfoundland, 1999 3