What does "notwithstanding" mean?

“Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” 

This is section 33 of the Canadian Charter of Rights and Freedoms, commonly referred to as the “notwithstanding clause”. Do you know what notwithstanding means?

Notwithstanding A, B  → Means that B applies even though A is inconsistent with B 

Example 1 

1. Notwithstanding section 25 of this agreement, the seller shall deliver the bananas on Monday.

25. The seller shall deliver the fruit on Tuesday. → The Seller has to deliver the bananas on Monday, even though section 25 says that it has to deliver the fruit on Tuesday, and bananas are fruit.

Example 2

The provisions of this agreement apply notwithstanding anything to the contrary in any other agreement. → The provisions of this agreement apply even though other agreements may include inconsistent provisions.

So the “notwithstanding clause” in the Canadian Charter of Rights and Freedoms means that the Canadian Parliament or a provincial legislature may expressly declare that a law applies even though it is inconsistent with a specified Charter right. This clause has a fascinating constitutional history: look it up if you’re interested.

Now that you understand what notwithstanding means, should you use it?  As usual, my answer to this is “it depends”

Notwithstanding is very formal.  It is still commonly used in commercial agreements, but it’s not plain language. Plain language alternatives include despite and even though.

Be careful!

Contract drafting expert Ken Adams warns that this type of construction can create ambiguities.* This is because the notwithstanding language and the language it refers to may be in different documents or in different parts of the same document.

*Ken Adams, A Manual of Style for Contract Drafting, 4th ed., paras. 13.599-13.605  

Solution: Rephrase using except 

For example: 

1. Notwithstanding section 25 of this agreement, the seller shall deliver the bananas on Monday. 25. The seller shall deliver the fruit on Tuesday. →25. The Seller shall deliver the bananas on Monday, and all fruit except the bananas on Tuesday.