In Rovi Guides, Inc. v. Videotron Ltd. (Fed CA, 2024) the Federal Court of Appeal dismissed a patent infringement appeal, where the trial court dismissed the patent infringement claim and granted a "counterclaim for declarations of invalidity and non‑infringement".
Here the court considers (but does not decide) whether the common law contractual duty of good faith applies to pre-contractual negotiation:
[120] The Supreme Court of Canada has relatively recently confirmed that there is a duty of good faith in respect of contractual performance in the common law (see especially Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, [2021] 1 S.C.R. 32; C.M. Callow Inc. v. Zollinger, 2020 SCC 45, [2020] 3 S.C.R. 908; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494). However, that Court has not recognized a general pre‑contractual obligation to negotiate an agreement in good faith. The Supreme Court specifically left the question of whether such a duty exists unanswered until "“another time”" in Martel at paragraph 73.
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