HOW DO LIMITATION CLAUSES, DAMAGES, AND GOOD FAITH DUTIES ALIGN?

Abstract

This article considers the following issues related to damages for the breach of generally applicable good faith duties emanating from the general organizing principle of good faith identified by the Supreme Court in Bhasin v Hrynew. The first is what damages are in fact appropriate for breaches of such good faith duties and do they correspond with what the Supreme Court has said about them? The second is what damages may be appropriate for breaches of the duty to exercise contractual discretion in good faith, specifically? The third, how do good faith duties and limitation clauses interact? The article answers all three and offers an explanation as to what damages may be appropriate for the breach of good faith duties, and why such damages ought to be recoverable regardless of whether a valid limitation clause otherwise.