From: Jason W Neyers <jneyers@uwo.ca>

Sent: Thursday 22 January 2026 16:44

To: obligations

Subject: ODG: Interpretation and applicability of time-of-the-essence clauses

Dear Colleagues:

The SCC has given leave in Cold Ocean Salmon Inc. v. Nova Fish Farms Inc., 2025 NLCA 28 (42032) with the primary issue being the Interpretation and applicability of time-of-the-essence clauses in relation to other clauses of a contract which required the parties to take the necessary steps to obtain approval as promptly as practicable and to use commercially reasonable efforts to obtain approval before closing.

At trial, it was determined that the time is of the essence clause applied to the other terms of the agreement and as the defaulting party (the plaintiff) did not act promptly or use reasonable commercial efforts to obtain approval, the defendant was entitled to terminate the agreement (for breach of a timeliness condition). The N.S. C.A. allowed the appeal on the basis that although the plaintiff had breached the terms, these were merely breaches of warranties since the time is of the essence clause did not apply to them. Therefore the defendant was not entitled to terminate the agreement.

It will be interesting to see what the SCC comes up with!

Sincerely,

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)