Ted Rogers School professor has law articles cited by Supreme Court

Prof. Daniele Bertolini’s work has the seal of approval from the highest court in the land.

In a recent Supreme Court of Canada (SCC) ruling involving a contractual dispute between a buyer and seller, three law articles by Law and Business Associate Professor Bertolini were cited in the decision.

“For a legal scholar, there isn't a higher approval of one's scholarly work than a citation in a SCC's majority opinion,” Bertolini says. 

The Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc. case concerned a dispute between a buyer and a seller of bulk topsoil of a specific composition. The sale agreement provided the buyer with a right to test and approve the topsoil before it was shipped but also contained an exclusion clause stating that the seller would not be responsible for the quality of the topsoil if the buyer waived its inspection right. Because the buyer was late on delivering their project, they declined to inspect the topsoil before it was shipped. When the buyer used the topsoil in their project, they discovered it included substantially more clay than was specified. The topsoil had to be removed, which added cost and delay to the buyer’s project and subjected them to damages. 

The buyer sued the seller for damages, alleging the seller breached a statutory condition under s. 14 of the Sale of Goods Act pursuant to which goods sold “by description” must correspond with their description. The seller relied on the contractual exclusion clause to deny liability for breach of the statutory implied condition.

The SCC majority granted the seller’s appeal and restored the trial judge's decision. It held that by agreeing to the exclusion clause, the buyer accepted the risk of any defects in the composition of the topsoil. The following three articles by Bertolini were cited in the SCC decision (external link, opens in new window) :

• Bertolini, Daniele. “Releasing the Unknown: Theoretical and Evidentiary Challenges in Interpreting the Release of Unanticipated Claims” (2023), 48:2 Queen’s L.J. 61.
  
• Bertolini, Daniele. “Unmixing the Mixed Questions: A Framework for Distinguishing Between Questions of Fact and Questions of Law in Contractual Interpretation” (2019), 52 U.B.C. L. Rev. 345.
• Bertolini, Daniele. “Unpacking Entire Agreement Clauses: On the (Elusive) Search for Contractually Induced Formalism in Contractual Adjudication” (2021), 66 McGill L.J. 465.