When it comes to postponing or cancelling a wedding, it is easy to get tied up in legalities. With so much uncertainty when it comes to planning in a pandemic, it is important to work with your vendors to have proper contracts. And if you do have to cancel, your best option is to be in constant communication with your venue to try to work on a compromise that will work for everyone. Most venues are reasonable and hope to work with you to find acceptable solutions for both parties.
Michelle Cook is a commercial litigation lawyer with the law firm Devry Smith Frank LLP who has been handling wedding litigation for over three years. We asked her a few questions facing brides who are dealing with potential COVID-19 wedding cancellations in 2021.
What are a bride’s rights if a wedding has been cancelled due to COVID-19? Can brides get their deposit back?
On March 11, 2020, the World Health Organization declared COVID-19 a pandemic and weddings have been unable to proceed normally since.
Most, if not all, bridal contracts have provisions indicating that the deposit is non-refundable. If this clause does not exist, a bride is entitled to the return of her deposit upon request.
If such a clause does exist, there may still be a way to get the deposit back. While Ontario courts have yet to adjudicate the matter, COVID-19 may rise to the level of frustrating a contract, relieving all parties from their obligations under the contract, and as a such, all deposits paid must be returned. However, this issue has not yet been addressed in Ontario and is legally risky to litigate – therefore may not be a solid option.
A contract is “frustrated” when an unforeseeable event occurs which:
- is the fault of neither party;
- for which neither party made provision; and
- makes the performance of the contract impossible or radically different from that which was originally agreed.
The unforeseen circumstance must destroy a fundamental aspect or purpose of the contract; it is not enough that the performance of the contract be rendered inconvenient or a party be subject to undue hardship to perform it. If frustration is established, the contract is void ab initio, i.e. from the beginning.
Either party (the bride or the venue) can rely on the doctrine of frustration of contract.
1. The Fault of Neither Party
It is undisputed that the COVID-19 pandemic and government restrictions were unforeseeable before March 2020 and were the fault of neither party.
2. Contractual Provisions Dealing with a Pandemic
Many contracts contain a “force majeure” clause that may be interpreted as a contractual provision dealing with a pandemic. Legal advice should be sought whether the clause is enforceable.
If the contract does not deal with how a pandemic is to be addressed by the parties or the force majeure clause is not valid, the contract may be deemed “frustrated.”
3. Performance of the Contract being Impossible or Radically Different
However, the main dispute is over whether COVID-19 has rendered weddings “impossible” to be performed. Not only have Ontario government COVID-19 restrictions altered guest counts, they have also prevented singing, dancing, buffets, certain performances, alcohol consumption after a certain hour, etc., which arguably make up the core elements of a wedding.
However, recent decisions from British Columbia’s Civil Resolution Tribunal (“BCCRT”)(akin to Ontario’s Small Claims Court) expose a different view, finding that government restrictions do not radically change parties’ original wedding agreements. The BCCRT has determined that the wedding date or guest counts are not fundamental terms of a wedding contract and therefore, so long as a wedding venue remains willing to host the function on the contractual date with a lower guest count or on a later date, the contract will not be deemed “impossible to perform.” The BCCRT has even determined that a large 80th birthday party was not frustrated when it could not be performed on the date of the birthday because, while “undesirable” to hold a birthday party on a different date, it was not “impossible.”
Decisions from British Columbia’s BCCRT are not binding on Ontario judges, however, they may be used as a guide for how Ontario judges should reach a decision.The BCCRT has not been presented with arguments regarding restrictions on singing, dancing, buffets, etc. as well as masking requirements nor has it dealt with situations where a venue is refusing to change the wedding date on the same terms or reasonably accommodate a bride. The legal decision ultimately turns on a judge’s determination of what are the essential elements of a wedding contract. While I respectfully disagree with the decisions from the BCCRT, the decisions increase the legal risk that an Ontario bride may lose her deposit if she refuses to agree to a smaller ceremony or reschedule her wedding. As trials before the Ontario Small Claims Court are presently suspended, it may be over a year before we get decisions under Ontario law.
My wedding was cancelled in 2020 due to COVID-19 so I rebooked it to 2021. Now it looks like my wedding may not be going forward in 2021 – what do I do?
Based on the current announcements of the Canadian government, it does not appear that all Canadians will be fully vaccinated until at least September 2021. As Canada becomes closer to herd immunity, I suspect restrictions will lessen although new variants raise concerns about the pace and extent of reopening. Several 2020 weddings were moved to mid 2021 on the expectation that Canada would be vaccinated or fully open at that time. Communicate your needs to your venue and try to reach a solution.
When it becomes clear that the wedding will not be able to proceed, a bride has three options:
- Advise the wedding venue that the contract will be unable to be performed on the date, request a return of the deposit, and refuse to rebook or change the booking; or
- Work with the venue to reschedule a new date; or
- Go forward with a smaller function on the contractual date if allowed to do so pursuant to government regulations.
Given the legal uncertainty discussed above, if a bride elects to choose option a), there is a risk the request may be deemed an anticipatory breach of contract by the bride. If upheld by a court, this may disqualify a bride from receiving his or her deposit. If the wedding cannot proceed on the scheduled date, the contract has either been a) frustrated, b) breached by the wedding venue as they could not provide the wedding on the date as contracted for, c) breached by the bride for not agreeing to postpone the date.
Many venues required brides to sign new contracts to move their wedding to a 2021 date. Several of these contracts contain provisions that waive any liability for prior breaches (or frustrations) of contract or seek to limit a bride’s ability to get a refund of her deposit. Not all of these contracts are enforceable. If you have signed one of these contracts, it is recommended that you seek legal advice on the enforceability of these clauses as enforceability is determined on a case by case basis.
So, what would you recommend?
The best option is usually the least risky one, but if you have your heart set on a certain venue, sit down with your planner and venue and try to work something out.
On the whole, the least legally risky option would be to agree to host a smaller ceremony or reschedule the wedding date to a new date with all the other terms of the initial contract remaining the same (price, guest count, etc.). This is a negotiation with the venue. Many venues will feel your pain and be willing to negotiate a new plan. However, if they refuse to act reasonably you may have a claim for breach of contract against the venue for failing to provide a smaller event or postpone it, as per my prior comments on frustration of contract.
It is important to note that venues are facing severe losses right now – not only do they have minimal income coming in, they may have pre-paid wedding consultants, DJs, caterers, photographers, etc. They are struggling too! Coming up with a compromise is beneficial for everyone. Many venues are open to applying the deposit to a small (e.g. 10 person) wedding at a low cost in exchange for the bride signing a new contract for a large “vow renewal” in 2022, with new deposits for the vow renewal due in late 2021 or 2022. This is a win/win for the bride and the venue! Not only does this allow for a more enjoyable wedding experience for guests, it allows the bride and groom to get married and make jokes about COVID-19, being married, etc. at the vow renewal. I am sure everyone is looking forward to a great party after COVID-19 is over.
If you have legal questions about your wedding, you can contact Michelle at firstname.lastname@example.org or (416) 446-3304.
This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.