Assessing Exclusion Clauses: The Supreme Court of Canada's\nThree Issue Framework in Tercon Contractors Ltd v British Columbia\n(Transportation and Highways)
Bibliographic record
Abstract
The Supreme Court of Canada's 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should-of course-generally be bound by its terms, the majority and dissent followed significantly different paths for determining the scope of the agreement at bar. Justices LeBel, Deschamps, Fish, Charron, and Cromwell (in a majority decision delivered by Cromwell J.) approached the task of contractual interpretation by elevating the long-standing and judicially enforced values that specifically inform the tendering process2 including notions of integrity, transparency, and business efficacy. The dissent, per McLachlin C.J., Binnie, Abella, and Rothstein JJ., in a judgment delivered by Binnie J., emphasized another set of long-standing andjudicially enforced values, namely freedom of contract and fidelity to the legal principle that contracts are to be enforced according to their words. And third, the Supreme Court of Canada laid to rest the doctrine offundamental breach as it applies to exclusion clauses-or attempted to at least.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.039 | 0.062 |
| Meta-epidemiology (narrow) | 0.001 | 0.002 |
| Meta-epidemiology (broad) | 0.002 | 0.002 |
| Bibliometrics | 0.007 | 0.006 |
| Science and technology studies | 0.034 | 0.031 |
| Scholarly communication | 0.039 | 0.012 |
| Open science | 0.008 | 0.009 |
| Research integrity | 0.017 | 0.024 |
| Insufficient payload (model declined to judge) | 0.006 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".