Case information

Contracts — Breach — Best commercial efforts — Evidence — Fresh evidence — Whether motion judge erred by dismissing claim that respondent breached agreement by failing to make best commercial efforts to secure final zoning approval — Whether Court of Appeal erred in holding that proposed fresh evidence would not have affected outcome

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The applicant agreed to purchase a property for development. At the time, the zoning for the property was not suitable for the applicant’s purposes, so the purchase agreement was conditional on final zoning approval, and required the respondent to make its best commercial efforts to secure that approval. The applicant waived the condition, but when zoning approval was not in place on the closing date, the applicant refused to close on the basis that the respondent failed to make its best efforts to secure it. The respondent sued and moved for summary judgment.

The motion judge found that once the condition was waived, the respondent’s best commercial efforts were no longer relevant. He granted summary judgment on liability and ordered a trial on damages.

On appeal, the applicant sought to introduce fresh evidence of the respondent’s alleged lack of best commercial effort to secure zoning approval. The Court of Appeal dismissed the motion, holding that such evidence could not affect the result. It also dismissed the appeal, substantially for the reasons of the motion judge.