Unexpected Things Learned From Dragons’ Den: Waivers Are Real

Last week, the Supreme Court of Canada declined to hear the appeal of a Montreal lawyer and his board game company. They had made an unsuccessful pitch on the CBC’s hit show, “Dragons’ Den”, and the video footage had been narrated in a manner that the plaintiff alleged was “gross and reckless negligence, intentional misconduct, malice, and bad faith.”

Prior to the dismissal of the application for leave to appeal to the Supreme Court of Canada, the Ontario Court of Appealin MHR Board Game Design Inc. and Marc Ribeiro v. Canadian Broadcasting Corporation had upheld the Defendant’s successful motion for summary judgment. The appeal court shared the lower court’s view that the waiver signed by the Plaintiffs was “express and unambiguous”, and affirmed the reasoning of an earlier ONCA case that held

…Canadian courts have not recognized a stand-alone duty of good faith that is independent from the terms expressed in a contract or from the objectives that emerge from those provisions.  The implication of a duty of good faith has not gone so far as to create new, unbargained-for, rights and obligations.  Nor has it been used to alter the express terms of the contract reached by the parties.  Rather, courts have implied a duty of good faith with a view to securing the performance and enforcement of the contract made by the parties, or as it is sometimes put, to ensure that the parties do not act in a way that eviscerates or defeats the objectives of the agreement that they have entered into.

This decision is therefore potentially useful in those insurance cases that involve waivers, and also underscores the relationship between contracts and the duty of good faith.