Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) is a British Columbia legal case which was resolved in the Supreme Court of Canada in 2010 on a majority decision, both the majority and the dissenting Justices agreeing that the legal doctrine of fundamental breach should be "laid to rest", or "donner le coup de grâce" in the French report,[1] in respect of the enforceability of exclusion clauses.
[2] However, Brentwood Enterprises Ltd., who had expressed interest, joined with another business, Emil Anderson Construction (EAC) to submit a bid.
At the initial trial, the judge found that Brentwood/EAC's bid was substantially a joint venture from an ineligible bidder, and awarded damages of $3,293,998 to Tercon.
The request for proposals issued by British Columbia (Transportation and Highways) stated that Except as expressly and specifically permitted in these Instructions to Proponents, no Proponent shall have any claim for any compensation of any kind whatsoever, as a result of participating in this RFP, and by submitting a proposal each proponent shall be deemed to have agreed that it has no claim.The case for Tercon was decided by a majority of five to four in favour but "both the majority and the dissenting Justices agreed that the doctrine of fundamental breach should be retired in respect of the enforceability of exclusion clauses".
The first step is to evaluate the exclusion clause in the factual context of each case to determine if it applies to the material circumstances.