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In a precedent-setting decision released on November 13, 2014, the Supreme Court of Canada recognized a new common law duty: the “honest performance” of contractual obligations. Pursuant to this new duty, “parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of a contract” (para. 73). The Court does not see this as imposing a positive duty of disclosure: it distinguishes between “active dishonesty”, which is not permitted, and failure to disclose a material fact, which appears to be.

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