Authors: Michael P Theroux, April D Grosse
Force majeure clauses are intended to allocate risk for future events that, if they occur, will affect the ability of one party to perform its obligations under the contract. This article undertakes a comprehensive review of the Canadian law of force majeure and its application in the energy sector. The article begins by examining the legal foundations of force majeure found in the common law, Canadian jurisprudence, and other legal regimes. It then describes the operation of a force majeure clause and analyzes how such a clause is likely to be interpreted by the courts. Along with analyzing specific aspects of force majeure, such as triggering events, foreseeability and control, and issues relating to impact and causation, the authors incorporate many practical suggestions that will be useful to drafters of force majeure clauses.