9. What events of force majeure give rise to relief? Must they be unforeseeable and to whom? How far does the express or implied allocation of risk under the contract affect whether an event qualifies? Must the event have a permanent effect? Is impossibility in performing required or does a degree of difficulty suffice? Is relief available where only some obligations (eg, to make a single payment or carry out one aspect of the works) are affected or is a greater impact required? What relief is available and does it apply automatically? Can the rules be excluded by agreement?
A force majeure clause in a contract will typically include a list of specified “triggering events,” usually of an exceptional nature (such as earthquakes, floods or war), and may include a catch-all phrase designed to cover events not listed specifically in the clause.
Courts will uphold force majeure clauses, including any circumstances or conditions that the parties agree constitute force majeure (whether those circumstances are foreseeable or unforeseeable, and have permanent or temporary effects). In determining whether the factual scenario constitutes force majeure, the court will consider whether the issue is “so radical as to strike at the root of the contract” (Atlantic Paper Stock Ltd v St Anne-Nackawic Pulp & Paper Co  1 SCR 580). In other words, a party cannot rely upon force majeure if it has brought upon the condition itself.
For a force majeure clause to be effective, the “triggering event” must fall within the scope of the provision. In addition, other considerations often direct the proper operation of force majeure clauses. For example, the party seeking to rely upon the provision generally bears the burden of showing that the event has significantly affected its ability to perform its contractual obligations. Further, force majeure clauses generally pre-suppose and require that the “triggering event” not be caused by, or otherwise be within the control of, the party seeking to be excused from performance.
It may be more difficult for a party to invoke force majeure if the impact involves an inconvenience one would encounter in the ordinary course of business, such as higher operating costs or a recessionary market. Whether or not an event has affected the party’s ability to perform a contractual obligation as a force majeure will be a fact-dependent analysis, with consideration of (among other things) the nature of the contract, the wording of the provision, and the extent to which the “triggering event” has affected the locality of the invoking party. Any party attempting to invoke a force majeure clause should also strictly adhere to any required procedural steps set out in the relevant provision.
The common law doctrine of frustration may also apply in lieu of (or in addition to) a force majeure clause. Frustration occurs when a situation has arisen for which the parties made no provision in the contract and performance of the contract becomes “a thing radically different from that which was undertaken by the contract” (Naylor Group Inc v Ellis-Don Construction Ltd  2 SCR 943), and operates to release the parties of their obligations under the relevant contract.
Answer contributed by
Peter D. Banks,
Hugh Meighen and
Patricia (Trish) L Morrison
Borden Ladner Gervais LLP