In recent years, appellate courts, both in the civilian jurisdiction of Québec and the common law jurisdictions in the rest of Canada, have grappled with the extent of the duty of good faith in contract performance. This paper examines this issue from the perspective of a judicial conversation on the subject occurring between judges belonging to both of Canada’s legal traditions. Interestingly, both common law and Québec judges are referring to each other’s decisions, sometimes with a view to bolstering a wider conception of good faith, as in the Supreme Court decision of Bhasin v Hrynew, but other times to justify a retreat from a more robust view of the doctrine, as in the Québec Court of Appeal decision in Churchill Falls v Hydro-Québec. This paper attempts to decipher the impact of this judicial dialogue and discusses the evolution of good faith in contract performance in Canada’s civilian and common law jurisdictions.
Jukier, Rosalie, Good Faith in Contract: A Judicial Dialogue Between Common Law Canada and Québec (September 9, 2019). (2019) 1 Journal of Commonwealth Law.