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front of the document. There was no evidence of any abuse of bargaining power. The Divisional Court in Newcourt Credit, like the Court of Appeal in Fraser Jewellers, expressly adopted the suggestion of Professor Waddams in The Law of Contract that in close analysis the difference between the positions put forward by Dickson C.J.C. and Wilson J. in Hunter was indeed small. To sum up, Courts will enforce exclusion clauses where it is established that “the foundation of the contract has been undermined, where the very thing bargained for has not been provided”, or where it would be manifestly unconscionable to allow a party to abuse an exclusionary clause that had otherwise been bargained for. There now seems to be a general acceptance, even at the trial level, that a well drafted exclusion clause generally means what it says.

For a trial decision to the same effect, see Summitville Consolidated Mining Co. v. Klohn Leonoff Ltd. (1989), 21 C.L.R. (2d) 128 (B.C. S.C.) and see, for example, Toronto Truck Centre Ltd. v. Volvo Trucks Canada Inc. (1998), 163 D.L.R. (4th) 740 (Ont. Gen. Div.).  

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