https://www5.fsco.gov.on.ca/AD/4943
Instead, the Supreme Court has specifically accepted that exclusion clauses can remain valid even in the face of breach of the underlying contract and has created a three-step test to evaluate the application of exclusion clauses. The first step is to evaluate the exclusion clause in the factual context of each case to determine if it applies to the material circumstances. The second step is to evaluate if the exclusion clause was unconscionable at the time of incorporation. The final step is to evaluate whether the exclusion clause should not be enforced on public policy grounds.