BEST EFFORTS
Federal
The Court adopts the law on “best efforts” as set out in another decision of the same Court as follows [at p. 267]:
Atmospheric Diving Systems Inc. v. International Hard Suits Inc. (1994),
89 B.C.L.R. (2d) 356 [, 1994 CarswellBC 158 (B.C. S.C.)], usefully
summarizes the law on “best efforts” (at p. 373):
2. “Best efforts” means taking, in good faith, all reasonable steps to
achieve the objective, carrying the process to its logical conclusion
and leaving no stone unturned.
3. “Best efforts” includes doing everything known to be usual, necessary and proper for ensuring the success of the endeavour.
4. The meaning of “best efforts” is “ not boundless. It must be
approached in light of the particular contract, the parties to it and
the contract's overall purpose as reflected in its language.
Royal Oak Mines Inc. v. C.A.W., Local 2304 (westlaw Canada)
1997 CarswellNat 3092 (Canada Arbitration) at para. 36 (Westlaw Canada)
Bird (Member)
... I would agree that it is a rather general term but our task here is
to discover ... what the parties intended by it. It was the view of the
learned trial Judge that it is an equivalent term to “best endeavours”
as interpreted in the case of Sheffield Dist. Ry. Co. v. Great Central
Ry. Co. (1911), 27 T.L.R. 451 where A.T. Lawrence J. ... stated (at p.
452) that, subject to certain qualifications, the term, broadly
speaking, meant “leave no stone unturned” ... the construction of the
term “best efforts” must be approached in the light of the contract
itself, the parties to it and its overall purpose as reflected in the
langauge it contains. It created a broad obligation to secure for the
respondent aircraft repair and overhaul work up to the limit it lays
down.
This did not mean ... that it required the government to disregard any
existing contractual obligation or, certainly, to neglect the public
interest. To the extent that that interest required work to be done by
persons other than the respondent, there could be no valid complaint
that the contract would thereby be breached.
CAE Industries Ltd. v. R. (westlaw Canada)
1985 CarswellNat 79 (Fed. C.A.) at para. 63, 64 (Westlaw Canada)
Stone J.
An equivalent term, “use their best endeavours”, was interpreted by A.
T. Lawrence J., sitting on the Railway and Canal Commission, in
Sheffield District Railway Company v. Great Central Railway Company
[(1911), T.L.R. 451 (Rail and Canal Com.)]:
... “best endeavours” means what the words say; they do not mean
second-best endeavours ... they cannot be construed to mean that the
[defendant] must give half or any specific proportion of its trade to
the [plaintiff]. They do not mean that the [defendant] must so conduct
its business as to offend its traders and drive them to competing
routes. They do not mean that the limits of reason must be overstepped
with regard to the cost of the service, but short of these
qualifications the words mean that the [defendant] must, broadly
speaking, leave no stone unturned to develop traffic on the
[plaintiff's] line.
CAE Industries Ltd. v. R. (westlaw Canada)
1982 CarswellNat 136F (Fed. T.D.) at para. 87 Westlaw Canada)
Collier J.
The arrangements ... negotiated ... was a “best efforts” underwriting
rather than a firm underwriting. It is my understanding of a “best
efforts” underwriting, that the underwriter does not purchase an
inventory of shares, but exercises his “best efforts” to place as many
shares as possible and when sufficient money is available to draw down
shares from the Treasury to satisfy orders.
Leveque v. Minister of National Revenue
1968 CarswellNat 274 (Can. Ex. Ct.) at para. 70
Cattanach J.
British Columbia
The plaintiff argues that he was required to take “reasonable steps” to
assist the defendant in acquiring the approval of the strata council to
alter the parkade and did so, thereby discharging his obligation under
the Lease. But the express language set out in Clause 1 of Rider A
clearly states that the plaintiff must use his “best efforts” to obtain
the strata council's approval ...
It is now well established in law that a party who contracts to use
their “best efforts” faces a more onerous obligation than a person who
contracts to use “reasonable efforts”. In [Atmospheric Diving Systems
Inc. v. International Hard Suits Inc., [1994] 5 W.W.R. 719, 89 B.C.L.R.
(2d) 356, 1994 CarswellBC 158 (B.C. S.C.)] at paras. 71-72, Madam
Justice Dorgan concisely summarizes the law on the meaning of “best
efforts”:
[71] In summary, the principles extracted from the cases on the issue of “best efforts” are:
1. “Best efforts” imposes a higher obligation than a “reasonable effort”.
2. “Best efforts” means taking, in good faith, all reasonable steps to
achieve the objective, carrying the process to its logical conclusion
and leaving no stone unturned.
3. “Best efforts” includes doing everything known to be usual, necessary and proper for ensuring the success of the endeavour.
4. The meaning of “best efforts” is, however, not boundless. It must be
approached in the light of the particular contract, the parties to it
and the contract's overall purpose as reflected in its language.
5. While “best efforts” of the defendant must be subject to such
overriding obligations as honesty and fair dealing, it is not necessary
for the plaintiff to prove that the defendant acted in bad faith.
6. Evidence of “inevitable failure” is relevant to the issue of
causation of damage but not to the issue of liability. The onus to show
that failure was inevitable regardless of whether the defendant made
“best efforts” rests on the defendant.
7. Evidence that the defendant, had it acted diligently, could have
satisfied the “best efforts” test, is relevant evidence that the
defendant did not use its best efforts.
[72] The “no stone unturned” test has been applied to contracts relating
to a wide variety of subject matter. Further, courts routinely imply a
term in contracts that the parties will make reasonable efforts to
fulfil their respective contractual obligations. Where the parties
include a “best efforts” clause in a contract, as they did in the case
at bar, they must surely intend that something more than “reasonable
efforts” be used.
[Emphasis added.]
As noted by Justice Dorgan, where a contract includes the term “best
efforts”, the court will impute intent to the parties that something
more than “reasonable efforts” was required ... the bar the plaintiff
was required to meet in discharging its obligation under the Lease was
higher than merely taking “reasonable steps” to assist the defendant in
obtaining the strata council's approval; rather, he had to make his best
efforts to do so. This is an onerous burden which required the
plaintiff to take all reasonable steps as well as to leave “no stone
unturned.” (Atmospheric Diving at para. 72)
Diamond Robinson Building Ltd. v. Conn
2010 CarswellBC 115 (B.C. S.C.) at para. 81, 82, 83
Brown J.
... the principles extracted from the cases on the issue of “best efforts” are:
1. “Best efforts” imposes a higher obligation than a “reasonable effort”.
2. “Best efforts” means taking, in good faith, all reasonable steps to
achieve the objective, carrying the process to its logical conclusion
and leaving no stone unturned.
3. “Best efforts” includes doing everything known to be usual, necessary and proper for ensuring the success of the endeavour.
4. The meaning of “best efforts” is ... not boundless. It must be
approached in the light of the particular contract, the parties to it
and the contract's overall purpose as reflected in its language.
5. While “best efforts” of the defendant must be subject to such
overriding obligations as honesty and fair dealing, it is not necessary
for the plaintiff to prove that the defendant acted in bad faith.
6. Evidence of “inevitable failure” is relevant to the issue of
causation of damage but not to the issue of liability. The onus to show
that failure was inevitable regardless of whether the defendant made
“best efforts” rests on the defendant.
7. Evidence that the defendant, had it acted diligently, could have
satisfied the “best efforts” test, is relevant evidence that the
defendant did not use its best efforts.
Atmospheric Diving Systems Inc. v. International Hard Suits
1994 CarswellBC 158 (B.C. S.C.) at para. 75
Dorgan J.
Best efforts [to obtain Court approval of an offer] must mean to proceed
to Court with dispatch and to ensure that everything, both procedural
and substantive, was done in order that the plaintiff's offer would be
approved by the Court.
No. 269 Sail View Ventures v. Angell
1994 CarswellBC 475 (B.C. C.A.) at para. 24
Cumming J.A.
New Brunswick
Insofar as the general definition [of “best efforts”] is concerned, each
case refers to best efforts as being first class efforts but not such
as to require the party making them to sacrifice its own economic
interest.
Campobello Fisheries Ltd. v. Jackson Brothers Ltd.
1992 CarswellNB 192 (N.B. Q.B.) at para. 95
Jones J.
Nova Scotia
“Best efforts” is not an unusual term in business agreements. The term
was accepted to be sufficiently precise in CAE Industries Ltd. and CAE
Aircraft Ltd. v. The Queen [1983] 2 F.C. 616 (T.D.), where Collier J.,
equated it to using one's “best endeavours” and meaning “leave no stone
unturned”. The learned judge then referred to a number of other
authorities to support his interpretation ...
. . . . .
I accept these summaries of a “best efforts” standard applicable to these circumstances.
Gateway Realty Ltd. v. Arton Holdings Ltd.
1991 CarswellNS 320 (N.S. T.D.) at para. 85, 87
Kelly J.
Ontario
... best efforts or best endeavours are analogous to good faith. In
Bruce v. Waterloo Swim Club (1990), 1990 CarswellOnt 779 (Ont. H.C.),
Lane J. defined best efforts to mean “taking, in good faith, all
reasonable steps to achieve the objective, carrying the process to its
logical conclusion and leaving ‘no stone unturned’.”
It follows ... that an agreement to use best efforts to negotiate, like good faith, is similarly unenforceable.
Georgian Windpower Corp. v. Stelco Inc.
2012 CarswellOnt 16465 (Ont. S.C.J. [Commercial List]) at para. 170, 171
Pattillo J.
... best efforts means taking, in good faith, all reasonable steps to
achieve the objective, carrying the process to its logical conclusion,
and “leaving no stone unturned” ... A contract requiring “best
endeavours” imports a duty to do all that can be reasonably be done in
the circumstances ...
Bruce v. Waterloo Swim Club
1990 CarswellOnt 779 (Ont. H.C.) at para. 40
Lane J.
The agreement between [plaintiff] and [defendant], as stated, required
[the defendant] to use its “best efforts fully to satisfy” all
conditions and agreements leading to the registration of a plan of
subdivision by December 31, 1987, at the latest ...
The plaintiff contends that the phrase “best efforts” has been
authoritatively defined in CAE Industries Ltd. v. R., [1983] 2 F.C. 616
(T.D.) ... There, Mr. Justice Collier, at p. 639, defined “best efforts”
not to mean second-best efforts but to require the requisite party to
leave no reasonable stone unturned to discharge its duty. I accept that
definition, which, as I understand it, requires first-class, as opposed
to second-class, efforts. However, I qualify that duty as not requiring
the party to sacrifice itself totally to the economic interests of the
party to whom the duty is owed, although the interests of the other
party must predominate.
The plaintiff further contends that “best efforts” is an objective and
not a subjective standard, as contended by the defendant. I accept the
plaintiff's submission and find support for it in BEM Enterprises Ltd.
v. Campeau Corp. (1980), 24 B.C.L.R. 244 ... (S.C.), per Toy. J. ...
I also reject the defendant's submission that it discharged its best
efforts in pursuing the registration of the plan of subdivision by
hiring qualified experts to pursue that objective. That submission is
patently simplistic. The defendant is obviously responsible for the
conduct of its senior agents to whom it had delegated the task of
obtaining registration.
Eastwalsh Homes Ltd. v. Anatal Development Ltd.
1990 CarswellOnt 532 (Ont. H.C.) at para. 42, 43, 44, 45
Ewaschuk J.
The description of the undertaking as “best efforts” is a misnomer. The
plaintiff need only undertake reasonable efforts to obtain the clinical
notes. A letter of request to the doctor with a follow up letter or
phone call would be sufficient. If the notes are still not forthcoming,
the plaintiff should provide the defendant with details of his efforts
... thereby placing the defendant in a position to move under r. 30.10
[of the Ontario Rules of Civil Procedure] if so advised.
Schultz v. Galvin
1988 CarswellOnt 411 (Ont. H.C.) at para. 8
Kurisko L.J.S.C.