Underneath the Golden Boy - Robson Hall Faculty of Law

Response to Consultation Paper on Franchise Law 327
1. Contract Termination
The issue under this heading is whether Manitoba ought to introduce
termination provisions limiting a franchisor’s right to terminate a contract only
to instances where there is good cause. However, prior to discussing whether
some form of legislation should be adopted, it is necessary to consider whether
Manitoba is in need of statutory termination provisions or if the common law has
addressed the issue sufficiently so that no legislation is needed.
Manitoba’s Court of Queen’s Bench has already addressed the issue of
termination in two instances. In John Deere Ltd. v. G.A.E.L. Inc. (1994), 107 the
Court stated that reasonable notice is required to terminate an agreement and
that termination rights must not be exercised on the basis of questionable and
flimsy grounds. Furthermore, Monnin J. found that the termination clause in the
dealer agreement must have “reasonableness” read into it. In Halligan v. Liberty
Tax Service Inc., 108 the Court found that the franchisor’s attempt to terminate
the contract was malicious and, thus, a breach of the duty of good faith. Overall,
Manitoba’s common law forces a franchisor to give reasonable notice upon
termination, to have reasonable grounds to do so and to act in good faith.
Although Manitoba’s Court of Queen’s Bench has established certain
requirements upon termination, several questions that arise upon termination
remain unanswered. First, there is no explanation as to what reasonable grounds
for termination may be and, second, there is nothing specific with regard to
providing notice. Should a franchisor allow the franchisee to cure the default
How much time should the franchisee be allotted to cure the default Should
there be exemptions to providing a franchisee with the right to cure Since
Manitoba’s common law does not address the issue of franchise termination, a
statutory provision should be introduced.
Iowa’s legislation should be considered as a model since it is recognized as
being the most comprehensive. 109 Iowa’s termination provisions begin by stating:
Except as otherwise provided by this chapter, a franchisor shall not terminate a franchise
prior to the expiration of its terms except for good cause. For the purposes of this section,
“good cause” is cause based upon a legitimate business reason. 110
The Iowa Act further states that “good cause” includes the failure of a
franchisee to comply with any material lawful requirement of the franchise
agreement, provided that the termination by the franchisor is not arbitrary or
107
96 Man. R. (2d) 295.
108
[2006] 8 W.W.R. 97, 202 Man. R. (2d) 268.
109
Manitoba Law Reform Commission, supra note 13 at 52.
110
1992 Franchises Act, Iowa Code § 523H.7.1.