The plaintiff argued based on Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, that the defendant could not rely on clause 32 to exclude liability because a duty of honest performance is an implied term of all contracts and the defendant was dishonest in assuring him that the land would not flood because of the operation of the Victor Jory Pump Station. The plaintiff is correct that Bhasin stands for the proposition that there is a duty of honest performance implied in all contracts. It does not follow however, in my view, that where there is an alleged failure to comply with that duty, an exclusion clause cannot operate to limit liability. Clause 32 itself states that it applies "[n]otwithstanding anything contained in this Lease Agreement".
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