IN CONTRACT - Breach of contract - Type of contract - Repairs or services

Law360 Canada (May 25, 2023, 5:59 AM EDT) -- Appeal by the plaintiff from the trial judge’s dismissal of its claim for damages for breach of contract, misrepresentation and breach of the duty of good faith in contractual performance. The claim arose from a Product Fulfillment Services Agreement for the provision of services by the plaintiff to the defendant for a three-year term (agreement). The agreement did not contain a clause providing for a minimum financial or volume guarantee on the part of the defendant. However, the plaintiff alleged that a memorandum dated November 24, 2014, prepared by the defendant’s in-house legal counsel for one of its negotiators of the agreement, formed part of the agreement and provided for a minimum financial guarantee (MFG) on the part of the defendant that was not honoured. The defendants maintained that the memorandum was inadvertently sent to the plaintiff and was not intended to form part of the agreement. The trial judge agreed with the defendants that the memorandum did not form part of the agreement or constitute a collateral agreement, and that the defendants had not made any misrepresentations that were relied upon by the plaintiff. He also concluded that there was no breach of the duty of good faith. Among other grounds of appeal, the plaintiff asserted that the trial judge erred by rejecting the evidence of the plaintiff’s witnesses about representations made by the defendant concerning a MFG and failing to consider the commitment it made as evidenced by those representations. Furthermore, the judge erred by failing to find that the memorandum formed part of the agreement, or a collateral contract, that provided for a MFG....
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