A little birdie told me about the opinion of the Quebec Superior Court in Cemar Electro Inc. v. Grob Textile, A.G., 2014 QCCS 5814. (Go here for a copy.)
In a contract with plaintiff Cemar, defendant Grob promised to “use its best efforts to advertise and promote the sale of the Products in the Territory and to make regular and sufficient contact with the present and potential customers of the DISTRIBUTOR.” Here’s what Quebec Superior Court Justice Richard Nadeau had to say about that (citations omitted):
The obligation of « means » entails, on the other hand, to use reasonable or best efforts to achieve the goal sought by both participants to a contract. Quebec law does not make a difference, as is done under Common Law, between « reasonable » and « best » efforts, although some decisions by judges here have ventured to consider the latter to be more onerous on the party having promised those best efforts to achieve the desired result than normally would be the case.
The undersigned is of the opinion that in this matter, Grob promised to do more than take reasonable means to make sales of Cemar’s loom lasers, but that these efforts were not the best Grob could and should have done and that they rapidly fell below what was expected.
So Justice Nadeau is of the opinion that best efforts imposes a more onerous standard than does reasonable efforts, but he feels no need to explain the basis for his opinion. Presumably he’s just going along with those previous opinions that apparently endorsed a distinction. Of course, that was the only option open to him, because no rational distinction is possible.
Justice Nadeau’s decision prompted this forelock-tugging analysis by Norton Rose Fulbright, which includes the following:
La distinction entre les notions de « meilleurs efforts » et d’« efforts raisonnables » (reasonable efforts) est bien établie par la jurisprudence provenant des autres provinces canadiennes.
Cette décision confirme qu’il existe bel et bien une distinction entre les notions de « meilleurs efforts » et d’« efforts raisonnables » en droit civil québécois. Le tribunal confirme également que l’obligation de déployer ses meilleurs efforts est plus onéreuse que celle de déployer des efforts raisonnables.
To which I say, Vous me faites rigoler! Go here for my article explaining why Canadian efforts caselaw is a farce. And you might want to go here for my article explaining why English caselaw on endeavours (equivalent to efforts) is a disgrace.
But wrongheaded decisions of this sort are of no significance to the active drafter, as distinct from the passive drafter. (See this post for more on that distinction.) Active drafters know that to avoid mischief, never use best efforts. Point final.