FM is recognized in the Civil Code of Québec (CCQ). The CCQ applies FM principles (or "superior force") to contracts even in the absence of an FM clause. However, the scope can be modified by contract.

In the rest of Canada, FM is a contractual remedy and is not included by statute.

Yes, excluding Québec. FM is a creation of contract and its application is purely a function of the terms of the contract (including the manner and effect of invoking FM).

In Québec, FM exists as a matter of law, although parties may define FM more broadly or narrowly than the CCQ default provisions.

Yes. Outside of Quebec, a party that seeks to rely on a FM provision must adhere to the terms of the clause. In general, a party must establish:

(i) The event is captured within the FM provision;

(ii) The event itself was the cause of the non-performance; and

(iii) Reasonable efforts to mitigate the losses suffered were taken.

FM clauses typically contain written notice provisions. Failure by the impacted party to provide notice within this time period will void the party’s FM rights. When proper notice is given within the relevant time frame, the FM rights will be deemed to have commenced retroactively from the start of the FM event.

In Québec, to invoke FM, the debtor must establish:

(i) The unforeseeability of the event;

(ii) Irresistibility (performance must be impossible, impracticability is will not satisfy the condition); and

(iii) Exteriority (the event must have occurred independently of the non-performing party.

Yes. FM clauses also typically include an express duty to mitigate on the part of the impacted party, so far as possible, and remedy the situation in good faith, with due diligence or with all reasonable dispatch.

Outside of Quebec, the initial effect of invoking a FM clause is typically only to delays performance by the impacted party for the duration of the FM event. Often, the contract will set out a much longer period before either party has the right to terminate the contract entirely.

In Québec, the effect of invoking FM is to relieve a party of its duty to perform (temporarily or permanently) and also has the effect of discharging contractual obligations, including the duty to pay compensatory damages.

The contract law doctrine of frustration allows for the relief from performance in circumstances outside a supplier’s control absent a FM clause.

Frustration arises where an event occurs, without the fault of either party, which radically transforms the circumstances governing performance under the contract, which significantly changes the nature of the parties’ rights or obligations from what they could have reasonably contemplated at the time of contract execution.