Hucul v. GN Ventures Ltd.
Page 35
(d) whether the requirements of a binding contract are met must be
determined from the perspective of an objective reasonable bystander, not
the subjective intentions of the parties; and
(e) the determination is contextual and must take into account all material
facts, including the communications between the parties and the conduct of
the parties both before and after the agreement is made.
[133] A contract does not need to be written or signed to be binding, even
in complicated commercial contexts: Crosse Estate (Re), 2012 BCSC 26
[Crosse Estate] at para. 29.
[134] Justice Dickson (as she then was) in Le Soleil Hotel & Suites Ltd. v. Le Soleil
Management Inc., 2009 BCSC 1303 [Le Soleil] provides further guidance on how to
interpret oral contracts:
[328] The interpretation of oral contracts turns on the same essential
principles [as a written contract]…. If the alleged agreement has not been
reduced to writing, the Court must consider what the parties said and did and
assess objectively whether, in context, their words and actions establish an
intention to be bound…. The genesis and aim of the transaction is an aspect
of the relevant context for consideration…. The credibility of witnesses will be
particularly important and differing versions of events will increase the
difficulty of establishing that an enforceable bargain was made . . .
[Citations omitted.]
[135] With respect to how to consider subsequent negotiations as part of contract
formation, Le Soleil provides the following guidance:
[335] In The Law of Contract, 11th ed. (London: Sweet & Maxwell, 2003)
Sir Guenther Treitel described the analytical approach to be adopted where
subsequent negotiations form part of the relevant factual matrix. He wrote:
When parties carry on lengthy negotiations, it may be hard to say
exactly when an offer had been made and accepted. As negotiations
progress, each party may make concessions or new demands and the
parties may in the end disagree as to whether they had ever agreed at
all. The court must then look at the whole correspondence and decide
whether, on its true construction, the parties had agreed to the same
terms ... the Court will be particularly anxious to reach such a
conclusion where the performance which was the subject-matter of
the negotiations has actually been rendered...
Business men do not, any more than the courts, find it easy to say
precisely when they have reached agreement, and may continue to
negotiate after they appear to have agreed to the same terms. The
court will then look at the entire course of the negotiations to decide