In common law jurisdictions like Canada (with the exception of the province of Quebec), a Force Majeure clause must be an express clause in a contract. Given the underlying principle of freedom of contract, parties are free not to include a Force Majeure clause in their agreements, or to structure any Force Majeure clause which they do include in the manner they see fit (subject to basic limitations on contractual freedom such as illegality, public policy, etc.). As a result, the application of any particular Force Majeure clause will depend on both the wording of the clause itself, and the circumstances in which it is invoked. Courts emphasize that “[w]hether a Force Majeure clause is triggered depends on a proper interpretation of the particular clause”.
The Supreme Court of Canada described the general function of Force Majeure clauses as follows:
An act of God clause or Force Majeure clause generally operates to discharge a contracting party when a supervening, sometimes supernatural, event, beyond the control of either party, makes performance impossible. The common thread is that of the unexpected, something beyond reasonable human foresight and skill. … Was the change so radical as to strike at the root of the contract? …
Such provisions share a common underlying structure and seek to address three principal issues:
- How broad should be the definition of triggering events?
- What impact must those events have on the party who invokes the clause?
- What effect should invocation have on the contractual obligation?
Most Force Majeure clauses also require that the event be: (a) unforeseeable; and (b) outside the control of the parties. To the extent that the clause does not specifically provide for this, courts may still be willing to read in such a requirement.
The notion of “unforeseeability” in this context can be the subject of contractual definition. Where the parties have not included such a definition, courts are inclined to use the notion of “something beyond reasonable human foresight and skill.” Importantly, the foreseeability analysis is conducted at the time of contract formation. Therefore, COVID-19 may not constitute a Force Majeure event for contracts that were entered into after the pandemic began or became reasonably predictable.
With respect to “lack of control”, the courts view this as requiring both that the event originate outside the control of the impacted party, and that it not have been avoidable with the exercise of reasonable diligence. If the reason for the impacted party’s difficulties are due to a cause which the impacted party itself brought about (e.g., lack of an effective business plan), it may be denied the ability to rely on the Force Majeure clause. This may be important in the context of COVID-19, insofar as some firms may have already been experiencing underlying problems that the disruption associated with the virus simply brought into prominence.
In the province of Quebec, the Civil Code of Quebec (“CCQ”) defines the Force Majeure defence (referred to as “superior force”):
- A person may free himself from his liability for injury caused to another by proving that the injury results form superior force, unless he has undertaking to make reparation for it.
Superior force is an unforeseeable and irresistible event, including external causes with the same characteristics.
It applies in contractual and extra-contractual matters, and allows the debtor to be freed from an obligation of means and of result. Pursuant to the provision, the concept of Force Majeure designates an event that is unforeseeable at the time of the conclusion of the contract, that cannot be resisted, and that prevents the performance of obligations. This concept also includes fortuitous events.
In brief, the primary characteristics of Force Majeure are unforeseeability, irresistibility, and externality. Furthermore, the event must result in the absolute impossibility of performing the obligation in question. This impossibility cannot be simply personal to the debtor; the event must be generalized and must make the performance impossible for all. Accordingly, the theory of hardship does not apply in Quebec.
 Domtar Inc. v. Univar Canada Ltd., 2011 BCSC 1776 at para. 78.
 Atlantic Paper Stock Ltd. v. St. Anne-Nackawic Pulp and Paper Company Limited,  1 SCR 580 at 583. [Atlantic Paper Stock]
 Atcor Ltd. v. Continental Energy Marketing Ltd., 1996 ABCA 40 at para. 12.
 Atlantic Paper Stock, supra note 2 at 583. See also: West Fraser Mills Ltd. v. Crown Zellerbach Canada Ltd., 1983 CarswellBC 541 (S.C.) at para. 26, aff’d 1985 CarswellBC 2168 (C.A.) where even though the economic downturn was reasonably foreseeable, the Court still held that the Force Majeure clause applied on the ground that it was outside the impacted party’s control.
 Atlantic Paper Stock, supra note 2 at 583.
 See e.g. Wal-Mart Canada Corp. v. Gerard Developments Ltd., 2010 ABCA 149, where the court held that the failure to obtain necessary permits by the date required was not a Force Majeure event because they could have been obtained with reasonable diligence.
 Atlantic Paper Stock, supra note 2 at 587.
 Vincent KARIM, Les obligations, vol. 1, 4e ed., Montreal, Wilson & Lafleur, 2015, n° 3223, 3225 and 3226.
 Id., n° 3247.
 Jean-Louis BAUDOIN and Yves RENAUD, Code civil du Québec annoté, 22e ed., Montreal, Wilson & Lafleur, 2019, art. 1470, n° 1470/2.