Force Majeure Clauses in Ontario Contracts: What They Cover and What They Don't

A supplier can't deliver because a natural disaster shut down its factory. A venue is unusable because of a government-ordered closure. A shipment is stuck because of a labour strike at the port. In each case, someone reaches for the same phrase: force majeure. Whether that phrase actually excuses their non-performance depends entirely on what their contract says — this is one area of commercial law where the specific wording, not a general legal concept, controls the outcome.

Force majeure is not a background legal right that automatically applies to every Ontario contract. It exists only if, and only to the extent that, the parties wrote it into their agreement.

What a Force Majeure Clause Actually Does

A force majeure clause excuses a party from performing its obligations, or delays performance without penalty, when an event outside that party's reasonable control makes performance impossible, impracticable, or illegal. Without such a clause, a party that fails to perform is generally in breach regardless of the reason, even a genuinely unforeseeable event, unless a separate common-law doctrine happens to apply. This is why the clause itself matters so much: it is the parties defining, in advance, what will and won't count as an excuse.

Events Typically Covered

Force majeure clauses commonly list specific triggering events, such as:

• Natural disasters (floods, earthquakes, severe storms).
• War, terrorism, or civil unrest.
• Government action, including new laws, regulations, or orders that make performance illegal.
• Labour disputes or strikes, sometimes excluded if it's the affected party's own workforce.
• Widespread infrastructure failures — major utility, telecommunications, or transportation disruptions.

Some clauses list specific events exhaustively, so only what's listed counts; others use a general catch-all, such as "any event beyond the reasonable control of the affected party," often followed by examples. Which approach a contract uses significantly affects how far the clause reaches.

What Force Majeure Usually Does NOT Cover

• Ordinary business or financial hardship. A contract becoming more expensive or less profitable to perform is generally not a force majeure event — the clause excuses impossibility or illegality, not a bad deal.
• Foreseeable events the contract could have addressed. Some clauses exclude events the affected party knew about, or should have anticipated, at the time of signing.
• The affected party's own failures. If the real cause of non-performance is the party's own poor planning, financial mismanagement, or operational failure, dressing it up as force majeure generally won't hold up.
• Events not on the list, where the clause uses a specific, exhaustive list rather than general language.

Force Majeure vs. the Doctrine of Frustration

Where a contract has no force majeure clause at all, a party facing an extraordinary, unforeseen event may look to the separate common-law doctrine of frustration, which can, in narrow circumstances, bring a contract to an end where an unforeseen event makes performance radically different from what was originally agreed. Frustration is a high bar, is not simply force majeure by another name, and generally ends the contract altogether rather than just excusing a delay. A well-drafted force majeure clause is usually more predictable, and more favourable to the affected party, than relying on frustration after the fact.

Notice and Mitigation Obligations

Most force majeure clauses require the affected party to:

• Give prompt written notice that a force majeure event is affecting performance.
• Take reasonable steps to mitigate the impact and resume performance as soon as reasonably possible.
• Provide ongoing updates for as long as the event continues.

Failing to follow these procedural steps can undermine reliance on the clause even where the underlying event genuinely qualifies.

Drafting Considerations

• Decide between an exhaustive list and a general catch-all. A list is more predictable but may miss an event nobody anticipated; a catch-all is broader but invites more argument over what qualifies.
• Address the consequences clearly. Does the clause only extend deadlines, or does it allow outright termination if the event continues past a certain point?
• Consider payment obligations separately. A force majeure clause excusing delivery does not automatically excuse an already-due payment unless the clause says so.
• Match the clause to the actual risks of the deal. A supply contract with overseas manufacturing has very different real risks than a local services agreement.

Frequently asked questions