Scott Bower comments in Canadian Lawyer on the Alberta Court of Appeal's quashing of a labour arbitrator’s decision in a dispute concerning the admissible evidence of the surrounding circumstances of a contract—and the inadmissible evidence of the subjective intentions of contracting parties.
Scott says the decision is helpful in confirming that pre-contract negotiations are generally inadmissible in interpreting a contract and that subjective intentions are always inadmissible.
“It's quite tough for lawyers and judges to be able to draw the line between what surrounding circumstances, which you're allowed to do, and evidence of subjective intentions that you're not allowed to put in. And it does seem like there's a divergence, almost from judge to judge, on what that is,” says Bower, who did not act in the case.
Scott says the decision is helpful in confirming that pre-contract negotiations are generally inadmissible in interpreting a contract and that subjective intentions are always inadmissible.
“It's quite tough for lawyers and judges to be able to draw the line between what surrounding circumstances, which you're allowed to do, and evidence of subjective intentions that you're not allowed to put in. And it does seem like there's a divergence, almost from judge to judge, on what that is,” says Bower, who did not act in the case.
