in the Hunter, the trial judge found that “no honest and fair man would expect in the circumstances of this case that [the exclusion clause] should be worked against the plaintiff company to limit its recovery to $890. To that extent it would be unconscionable to do so”. The Ontario Court of Appeal disagreed. Robins J.A. said:
With deference to the learned judge, I am unable to accept his conclusions. In my opinion, the breach in this case was not fundamental and, even if it were, the circumstances here are not such as to warrant striking down this limitation on liability clause. In the context of this commercial transaction, I see nothing unfair or unreasonable or, indeed, unconscionable in giving effect to this term of the agreement between the parties. If, as I understand it, a fundamental breach occurs when the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit of the contract, no such breach occurred here.
The Court of Appeal concluded that the mere fact that contracting parties have different bargaining powers does not in itself make an agreement unconscionable. In order to render such an agreement unenforceable, there must have been an abuse of that bargaining power. In Fraser Jewellers, there was no evidence of abuse of bargaining power. In fact, exclusion clauses such as the one in this case were found to be very common in the security industry. To void the exclusion clause would be to deem the defendant to be in effect an insurer, but with no ability to measure the risk or charge an appropriate provision. The defendant was therefore allowed to rely on the exclusion clause.
This decision by the Ontario Court of Appeal in Fraser Jewellers was discussed by the Ontario Divisional Court in the recent case of Newcourt Credit Group Inc. v. Hummel Pharmacy Limited. (1998), 38 O.R. (3d) 82 (Ont. Div. Ct.). In this case, Hummel had signed a short form lease agreement and there was no indication that the party was pressured into signing. The exclusion clause appeared in normal font on the