What is the test for material change in an agreement?
Ontario, Canada
The following excerpt is from Johnston v. Johnston, 2019 ONSC 5946 (CanLII):
The test for material change is not based on what one party knew or reasonably foresaw. Rather, the test is based on what the parties actually contemplated when they entered into the agreement: Dedes v. Dedes, 2015 BCCA 194, at para. 25. In other words, the change relied upon as being material is one that was not one considered, or taken into account, when the agreement was made. The court is to look back to consider what was previously taken into account.[19]
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