par
Sarah D. Pinsonnault
Articles du même auteur
16 Déc 2014

Obligation of Means: Reasonable Efforts vs. Best Efforts

Par Sarah D. Pinsonnault, avocate

By Sarah D. Pinsonnault

Under Quebec Civil Law, a debtor
of an obligation of means will be found to have performed its obligation if it
proves that it acted prudently and diligently and used all reasonable means to strive
to achieve the contractually agreed upon result, regardless of whether or not the
latter is actually obtained. In Cemar
Electro inc.
c. Grob Textile, a.g.,
2014 QCCS 5814, the Defendant was held to an obligation of means, whereby it had
to use its “best efforts” to advertise and promote the sale of the Plaintiff’s
products. With time, the Plaintiff however found that the Defendant did not meet
the standard that was expected of it pursuant to the exclusive distribution
contract entered into between the parties. Consequently, the Plaintiff sued the
Defendant for alleged lost revenues on anticipated sales and loss of the market
value of its product. In order to determine whether the Defendant fulfilled its
contractual obligations, the Court had to first determine the meaning of the term “best efforts”.

Firstly, it is important to note
that Quebec Civil Law, unlike Common Law, does not provide for different
standards of “effort” in connection with an obligation of means. In fact, Common
Law judges have often used the “leave no stone unturned” analogy to exemplify
the intensity of a “best efforts” obligation. 

Quebec courts have nevertheless addressed
this question in the past, which fortunately provided guidance on the interpretation
and application of the notion of “best efforts” in the case at bar:

“[42]
The obligation of « means » entails [… using] reasonable or best efforts to
achieve the goal sought by both participants to a contract. Quebec law does not
make a difference, as is done under Common Law, between « reasonable » and «
best » efforts, although some decisions by judges here have ventured to
consider the latter to be more onerous on the party having promised those best
efforts to achieve the desired result than normally would be the case.”
(references omitted)
With this in mind, the Court found that the Defendant “promised to do more than take reasonable means” to
sell the Plaintiff’s products. A detailed review of the evidence persuaded the Court to conclude that the efforts employed by the Defendant “were not the best [it] could
and should have done and that [the sales] rapidly fell below what was expected”.
On this issue, the Court then went on to state the following:

“[63] In fact, the evidence at trial
shows, and at best, tepid efforts on the part of Grob, to actively promote the
sales of loom lasers after the first show and demonstration at the 2003
I.T.M.A. fair in Birmingham, U.K.  Except
for a page on the back part of their annual catalog/sales manual after 2004
(D-4, D-5), there seems to have been little done to demonstrate or promote the
Cemar lasers where they should or could have been shown in action to clients
other than those already equipped with them.”
The burden of proof nevertheless
fell on the Plaintiff to prove that the Defendant was in breach of contract for
having failed to make the appropriate efforts in its execution. The Court found that the Plaintiff only succeeded in proving this in part due to the fact
that, while the number of sales had dropped and been stagnant for quite some time,
it waiting five years before taking action. As a result, the percentage of responsibility
between the two parties was divided as follows:

“[84] The court concludes that both
parties are  responsible for the lack of
acceptable sales of the product : Grob for not actively giving it’s [sic] « best efforts » to promote and
sell the product, and Cemar for standing by and not complaining or reacting in
any measurable fashion, although it’s responsibility is much less than that of
Grob. For these purposes, the court attributes responsibility for damages 75 %
to Grob and 25 % to Cemar.”
The Plaintiff’s action was
therefore granted, but only in part.

To read this decision in its
entirety and other elements discussed therein, click here.

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