COVID-19 and Contract Frustration

In a previous blog post, COVID-19 and how the force majeure clause could apply to it was discussed.  For a force majeure clause to be activated, there has to be one in a contract.  Sometimes contracts are drafted without force majeure clauses.  Without the force majeure clause, are the parties bound to their agreement even if something arises that makes it impossible to perform the contract?  Contracts can be “frustrated” meaning subsequent to its formation, and without fault of either party, the contract becomes incapable of being performed due to an unforeseen events, resulting in the obligations under the contract being radically different from those contemplated by the parties to the contract.

The legal consequence of a contract that is found to have been frustrated is that the contract is automatically terminated at the point of frustration. The contract is not void ab initio (from the beginning), it is only void with regard to future obligations.

For frustration to operate, it is not sufficient that the performance of the contract is more onerous or unreasonably harsh. Instead, there must be a fundamental change in the circumstances governing performance.  The performance contemplated by the contract must become impracticable in a legal sense. The contract must become something drastically different from that which was initially contemplated by the parties.

Frustration is interpreted narrowly by the courts as there is a public interest in people being bound to the contracts they enter into.  COVID-19 could be grounds for deeming a contract frustrated but this is obviously context-specific.

Confidentiality of Medical Records

You have recently been injured due to another person’s negligence (the “Incident”). The injuries are ongoing and starting to affect your daily living. You are considering starting a lawsuit but are hesitant because of a story you heard from your friend when they started a lawsuit. The friend told you that all of their personal information was no longer private, even the conversations they had with their doctor.

The truth of the matter is that the legal process is both private/confidential as well as public. The confidential portion of the legal process is that information you share is only made available to your lawyer and the opposition’s lawyer. There are very strict rules controlling lawyers and how they deal with information provided to them by clients. The public aspect arises if a lawsuit goes to trial, the public is at liberty to watch the trial and read any decisions that a judge makes with regard to the lawsuit. Quite often, especially in cases involving personal injury, one’s medical information becomes relevant and therefore potentially available to the public.

When it comes to medical reports not all of one’s medical history is necessarily relevant. A lot depends on the nature of the lawsuit one brings. For example, if from the Incident you are claiming that an injury to your arm is affecting your livelihood, then medical records pre-dating the Incident that relate to your arm should be disclosed.

The reason your medical history is disclosed is because it is necessary during the legal process to determine how much the Incident actually contributed to your current ailments.

The courts will always try to balance the privacy interests of plaintiffs against necessary document disclosure to ensure a fair trial. Only medical records that are considered relevant should be disclosed.

Ever since 2015, when the Supreme Court of Canada decided in Carter v Canada (Attorney General) that a prohibition on physician-assisted suicide was unconstitutional, Canada has had to redefine what end of life care means and what rights individuals have at this time. This is an ongoing process that will likely continue for many years.

The Supreme Court declared that it violated an individual’s rights to life, liberty, and security of the person to be denied medical assistance in dying (“MAiD”) if the person consents, and if they had a grievous and irremediable medical condition that causes enduring and intolerable suffering. In response to Carter, the federal government passed a law that allowed an individual to receive MAiD, but only if they met the conditions in Carter and if their natural death had become reasonably foreseeable.

The new law has been the subject of another constitutional challenge by the BC Civil Liberties Association, which was one of the plaintiffs in the Carter decision in 2015. They argue that the current law is overly restrictive, and that it excludes people with multiple sclerosis, Huntington’s disease, and Parkinson’s disease that should be allowed to have access to MAiD.

The discussion around MAiD continues in the courts, Parliament, legislatures, and in our homes. If you or a loved one is considering MAiD, be sure to research and understand the legal and personal implications of this important decision.

If you need legal advice on medical assistance in dying, end of life planning, or any other law related inquiry, please contact us.