The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice.
This has not been explicitly considered in Canadian jurisprudence, though one American author opines that "best efforts" and "reasonable best efforts" are likely similar in that 'reasonable' in the latter phrase is largely irrelevant.
Reasonable efforts does not mean best efforts which imports a higher obligation on persons to accomplish the required task.
The standard may be less onerous than "reasonable efforts" in that the true measure of the efforts required are those required to satisfy a market based on an independent commercial evaluation, and not "all reasonable and measured steps" required to achieve an objective.
Finally, "commercially reasonable efforts" is a standard that has received little judicial consideration and ought to be treated with caution. The underwriter does not guarantee that it will sell the entire IPO issue in a best-efforts agreement. As the defendant failed to show evidence of a clear marketing plan or an effort to implement a later proposed marketing plan, the court found that the defendant failed to undertake "commercially reasonable efforts" to satisfy its obligations under the agreement.
There was also no indication that ETE manipulated or interfered with outside counsel's decision. Given the jurisprudence surrounding "best efforts" and "reasonable efforts", the question to be considered is whether "commercially reasonable" implies a lower or higher standard from "reasonable efforts".
The meaning of "best efforts" is, however, not boundless. Falstaff Brewing Corp. Pradera Realty, a dispute arose over Pradera Realty's failure to submit an application to obtain a waiver required for the closing of an air rights sale.
Previously, courts required parties to include a clear set of guidelines in the contract that the court could use to determine whether a party had used "best efforts.