Samuel Mosonyi and Amelia Briggs-Morris

In a recent Ontario Superior Court of Justice decision, Durham Sports Barn Inc. Bankruptcy Proposal, 2020 ONSC 5938,Justice Gilmore held that a commercial tenant could not rely on the force majeure clause in its lease to excuse non-payment of rent during Ontario’s shutdown of non-essential businesses in response to the COVID-19 pandemic.

A force majeure clause in a contract excuses a party from performing certain contractual obligations due to circumstances beyond its control rendering the performance of such obligations impossible, for example, due to a natural disaster, an act of terrorism or an epidemic.