656925 B.C. Ltd. v. Cullen Diesel Power Ltd.

This was a summary trial application by the defendant to dismiss the claim of the plaintiff on the basis that the contract of repair between the parties included an exclusion clause. The Court held there was insufficient evidence to grant a summary judgment and dismissed the application. However, in the course of its reasons the Court noted that exclusion clauses could be set aside “even in the context of a purely commercial relationship” where the enforcement of the clause would be unconscionable, unfair or unreasonable. The Court further noted that this could be assessed both at the time of breach as well as the time the contract was made.