True Conditions Precedent go back to a Supreme Court of Canada case in 1957. It was agreed that the Waiver would be inappropriate and would not work.
That’s why a Document like the Notice of Fulfillment was drafted. There were a number of different variations. That worked until 2018, until a case in the Ontario Superior Court where it was determined that the decision by the Third Party was the “trigger” for proceeding and the subsequent NOF was irrelevant.
Consider a True Condition Precedent relating to a severance. The condition runs until the end of this month. This Thursday, the Committee of Adjustments makes a decision permitting the severance. On Friday, the NOF is sent along.
The Court decided that the deal became unconditional on Thursday night when the decision was made (without paperwork between the parties), and any subsequent NOF was irrelevant and just a waste of time.
Brian Madigan LL.B., Broker