Geotechnical News September 2011
37
GEO-INTEREST
Don’t Rely On My Advice!:
A Practical Guide to Disclaimers
Neil Abbott
Are disclaimers worth
the paper they’re written
on, assuming they are
written at all?
Introduction
One definition of a professional is
that they are someone who is paid
to give advice. Years of schooling,
mountains of experience and natural
insight are the necessary ingredients
required to render a valuable opinion.
Every masterpiece however must
have an imperfection; a hallmark of
its human creator. It has been my
experience that an imperfection gets
magnified in reverse proportion to its
size; in other words, the smaller the
imperfection, the greater its impact
when the opinion comes into play. This
rule may be because obvious and large
imperfections in an opinion are often
quickly noticed when the opinion is
immediately acted upon, which affords
the professional time to re-evaluate
and issue a fresh opinion. The minor
imperfections such as the failure to
take an accurate measurement can
often be overlooked in the delivery of a
report but can have a great effect upon
completion of the project.
Therefore since no opinion is per-
fect, it is imperfect practice not to is-
sue a disclaimer with your opinion.
Disclaimers are ethical, appropriate,
acceptable, and all too often consti-
tute overlooked boilerplate. Having
a stale-dated disclaimer is sometimes
worse than having no disclaimer at all.
As will be discussed below contractual
provisions that are ambiguous will be
read against the party who drafted it.
In this presentation I will discuss
the purpose of disclaimers and the
overarching principle of disclaimer in-
terpretation contra proferentum. I will
then provide a “how to” for drafting an
enforceable disclaimer clause and will
provide examples of how certain dis-
claimer clauses have been interpreted
by various courts.
The Purpose of Disclaimers
A disclaimer is meant to delineate
the scope of rights and obligations
stemming from an opinion such as
rendered in a report. The question of
what to disclaim varies depending on
the purpose of the report, but the most
common disclaimer is to limit the scope
of the report to the site conditions on
the day of the inspection, and make no
guarantees as to the future condition of
what is inspected. For litigation reports
the most common disclaimer is to limit
the use of the report to counsel and/or
the party who has retained the expert
for court use only, not to be relied upon
for a future project or other party in the
litigation or the public at large.
Contra Proferentum
Whether the court will uphold a
disclaimer is just as much a question
of construction and conduct as what
is being disclaimed. The doctrine of
contra proferentum
is applied in the
case of disclaimers. In
Bauer v. Bank
of Montreal
(1980), McIntyre J., on
behalf of the Supreme Court of Canada,
stated:
In construing such a clause, the
Court shall see that the clause is
expressed clearly and that it is
limited in its effect to the narrow
meaning of the words employed
and it must clearly cover the ex-
act circumstances which have
arisen in order to afford protec-
tion to the party claiming benefit.
It is generally to be construed
against the party benefiting from
the ex-emption and this is par-
ticularly true where the clause is
found in a standard printed form
of contract, frequently termed
a contract of adhesion, which
is presented by one party to the
other as the basis of their trans-
action.
1
How to Draft an Enforceable
Disclaimer Clause
1. The onus is on the professional to
bring the disclaimer(s) to the at-
tention of the signing party.
The applicability of an exclusion or
limitation clause can be challenged
on the ground that the party seeking
its protection did not bring its exis-
tence and inclusion in the contract
sufficiently to the notice of the other
party at the time of, or prior to the
making of the contract, with the re-
sult that the latter cannot be taken to
have assented to the clause. If this
is so, then the clause will not be ef-
fectuated …
2
In Trigg v. MI Movers International
Transport Services Ltd.,
the Ontario
Court of Appeal held that the onus on
the party seeking to enforce the limita-
tion clause, is greater where a standard
form contract is used.
3
In various sample service agree-
ments and inspection agreements,
many disclaimer clauses have dis-
claimers in caps and others not. This
may cause confusion, leading a client
to assume that all the disclaimers are
in caps. Given the way in which contra
proferentum is applied in these cases,
a court may find that these disclaimers
hidden within the agreement and not in
caps should not be upheld. However,
in Salgado v. Tooth, many of the pro-
visions of the contract containing dis-
claimers were upheld while not in caps,
while the provision in caps and bolded
1
Bauer v. Bank of Montreal, [1980] S.C.J. No.
46.
2
G.H.L. Fridman, Law of Contracts in Canada,
2nd. ed. (Toronto:Carswell, 1986) at para.537.
3
Trigg v. MI Movers International Transport
Services Ltd.
, [1991] O.J. No. 1548 (C.A.)
