Force Majeure Clauses in Ontario Contracts: When They Excuse Non-Performance

A supplier can’t deliver because a factory shut down. A contractor can’t finish because a key material is unavailable. A tenant can’t operate because of a government order. In each case, someone is asking the same question: does the contract still have to be performed, or does something excuse the delay?

The answer usually turns on a force majeure clause — and, if the contract doesn’t have one, on a much narrower common-law doctrine. Neither works the way most people assume.

What a Force Majeure Clause Actually Does

A force majeure clause is a term the parties wrote into their own contract. It doesn’t come from a statute, and Ontario law doesn’t imply one into a contract that lacks it. The clause typically does three things:

• Lists (or generally describes) the kinds of events that qualify — often things like natural disasters, war, government orders, labour disruptions, or other events "beyond the reasonable control" of the affected party
• Sets out what happens once a qualifying event occurs — usually suspension of the affected obligations, sometimes a right to terminate if the event drags on
• Requires the affected party to give notice, and often to show it took reasonable steps to work around the problem

Because it’s a creature of contract, the exact wording controls everything. Two contracts with the phrase "force majeure" in them can produce completely different outcomes depending on how the clause is drafted.

How Ontario Courts Read These Clauses

Courts in Ontario generally interpret force majeure clauses narrowly and in light of their specific wording, not as a general "unfair circumstances" excuse. A few recurring principles:

• The event has to fit the listed categories (or the general language used) — a party can’t stretch "acts of God" to cover ordinary business difficulties like a cash flow problem or a bad deal.
• The event has to actually prevent performance, not just make it more expensive or less convenient. Rising costs or a supplier’s own poor planning usually won’t qualify.
• Foreseeability matters. An event the parties could have anticipated and addressed in the contract is harder to excuse after the fact.
• The party invoking the clause carries the burden of showing the event occurred, that it caused the non-performance, and that any notice or mitigation requirements in the clause were met.

A poorly drafted or overly narrow clause can end up covering almost nothing — which is why these clauses deserve real drafting attention, not boilerplate.

If the Contract Has No Force Majeure Clause

Many Ontario contracts — especially older ones, simple service agreements, and informal arrangements — don’t have a force majeure clause at all. Without one, a party who can’t perform generally cannot simply point to an outside event and walk away.

The narrow fallback is the common-law doctrine of frustration: a contract may be treated as at an end if, without either party’s fault, something happens that makes performance radically different from what was originally agreed — not just harder, slower, or more expensive. Frustration is a high bar and courts apply it sparingly. It’s a doctrine for genuinely transformed circumstances, not for a bad bargain or an inconvenient turn of events.

Practically, this means the absence of a force majeure clause is a real risk. A party facing an outside disruption may simply be in breach, with liability for damages, unless the strict frustration test is met.

What to Do If You’re Facing a Force Majeure Situation

Disputes over whether a force majeure clause applies are, at bottom, ordinary contract disputes — they get resolved the way most contract claims in Ontario do, through negotiation, or if that fails, through a claim in the appropriate court based on the amount and complexity involved. Ontario’s general limitation period for starting a civil claim runs from when the claim is discovered, not necessarily from the date of the disputed event — so waiting to "see how things shake out" can quietly use up time you didn’t realize was running.

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