Bass, Berry & Sims attorney Clint Hermes shared his insight in two articles for The Globe and Mail examining the COVID-19 vaccine rollout in Canada.
The first article, “Canada’s Missed Shots: How Ottawa’s COVID-19 Vaccine Promises Were Out of Step with Reality,” examines how Canada’s slow vaccination rollout compares to countries like the United States and other developed nations. One factor in the slower Canadian rollout might be attributed to the fact that Canada does not currently have any facilities that are manufacturing the vaccine. However, critics point to Britain’s faster rollout in comparison. “Britain,” Clint said, “was more successful at negotiating priority access – even though Britain, like Canada, does not manufacture the Pfizer-BioNTech vaccine itself.”
The second article, “Novavax Publishes COVID-19 Vaccine Contract with Canada,” examines the contract between Novavax and Canada that was signed on January 19 for 52 million doses of its COVID-19 vaccine. The agreement stipulates that Novavax will use “commercially reasonable efforts” to deliver the vaccine. In contrast, the agreement between AstraZeneca and the European Union specifies the company will make “best reasonable efforts” to meet the delivery schedule. These two phrases have important differences, said Clint. “Simplistically, ‘best efforts’ means that you have to do anything in your power to accomplish something that isn’t truly silly, and in the context of a company, would mean anything short of bankruptcy. On the other hand ‘commercially reasonable’ just means that you have to make some conscious effort to accomplish something, but if a step wouldn’t make economic sense for you to take, you weren’t obligated to take it.”
The articles were published by The Globe and Mail on March 4 and are available online (subscription required):