Beruflich Dokumente
Kultur Dokumente
Messeneo v. Beale 4b
• pl. bought land and thought that it included “Merches Point”
• lawyer never promised MP, just did a title search
3. Reliance Damages 5
When are reliance damages awarded instead of expectancy? (1) when ex. dam. are too
uncertain (McRae) (2) when ex. dam. are too great /small; (3) tort claims
What is included (1) only wasted expenses; (2) not expenses where pl. derives benefit (3) pre-K
expenditure in special cases (Anglia TV)
Can Reliance Dam. exceed Ex? NO (Bowlay Logging) bad bargain is the pl’s problem
NEGLIGENT MISREPRESENTATION
Beaver Lumber v. Mclenaghan 7
• reliance based damages for neg. misr (tort) “man for the job”—casual conversation
• damages must be direct and foreseeable; opportunity costs can be included
• consequential losses: the total amount spent – the acv
Esso Petroleum v. Marsden 6b
• gas locale problem
• opportunity costs = living wage
• out of pocket expenses were recoverable
V.K. Mason v. Bank of Nova Scotia 7
• bank gave express assurance re: financing
• reliance + lost profits awarded as Mason would have made profit elsewhere (ct did not want
to call it expectancy….)
D. Restitutionary Damages 7b
Remedies for Restitutionary Damages
recission K is over
quantum meriut “for what it’s worth” benefit in nature of goods/services…what are they worth?
accounting
constructive trust
restitution disgorge benefit
Kienzle v. Stringer 13
• causes which are reas. foreseeable and caused directly by the df’s actions
• policy concerns are an obvious consideration in whether the ct will determine whether
something is foreseeable
• secondary transactions are too remote, unless disclosed
Farrell v. Snell 14
• the onus is on the plaintiff to prove causation and the degree of certainty
• shifting the burden to the party with more knowledge (doctor) is not justified; the legal or
ultimate burden remains with the pl.
• not necessary to have a positive medical opinion to support a finding of causation
• scientific precision is not the standard, balance of probabilities is.
Elloway v. Boomars: pl not resp. for worsening his condition b/c his psychosis
(schizophrenia brought on by the accident, but pre-existing disposition) was a factur in
his refusal and failure to mitigate
.
Slater v. Hoyle & Smith Ltd. 66 of text book
• sale of goods
case—cotton
• purchaser
received inferior goods, and lost he diff in the two values, and “it seems to me
immaterial that by some good fortune with which the pl’s have nothing to do, he has
been able to recoup himself what he paid for the goods, thus the K price was not a
factor.
Karas v. Rowlatt 19
D. Time of Assessment
Jamal v. Moolla 18, 19b
• time of assessment is time of breach
• policy decision based on fair risk allocation (the pl bears the risk of post-breach price
fluctuations)
Wroth v. Tyler 21
• pl were not required to mitigate at time of breach b/c house was not replaceable, the pl were
already financially maxed out and they were maintaining a legitimate claim for s.p.
Semelhago v. Parmadevan 22
• duty to mitigate at time of breach with real estate purchases….homes are now considered
“fungible” (cookie cutter)
Damage to Chattels: cts generally deny repair costs that exceed the value of such fungibles
CAR Dewess v. Morrow 23
• the pl was
entititled to the fair value of the car just b4 it was damaged
O’Grady v. Westminster Scaffolding Ltd. 23
• full cost of
repairs granted b/c this was a unique car with sentimental value, he could not replace
it, it was meticulously maintained
• no danger that he
would pocket the money, he had already spent some of his own money on repairs
• consequential
loss rent a replacement car…but he rented it for too long and this was a mitigation
issue
Darbishire v. Warran 23
• b/c this was not a
special car, unreasonable to pay for cost of repairs
Real Property Damage: cost of repairs awarded b/c property is not really fungible (commercial
uniqueness, subjective attachment, objective value)
C.R. Taylor Ltd. v. Hepworths Ltd. 24
• minimal
diminution value b/c pl had no intention to even rent out property, the fire put him in
a better position, b/c the billiard hall was on a development site
• factors:
commercial property; no attachment by pl; no intent to spend own money
Jens v. Mannix Co. 24
• house saturated
with crude oil; pl. given full cost of repairs (up until time of breach as delay was
unwarranted –could argue that waiting to see if the smell went away was a good ide)
b/c they had lived on the lot for many years, and could not afford a residential lot
large enough to accommodate a house and their “car museum”
• factors: pl was
old, poor and df was big oil co. (even though impecuniocity is generally not a factor
—people should have insurance)
Kates v. Hall
• df cut down 13
trees diminution almost zero, but cost to reinstate (like sized trees) $200,000; pl does
have reasons for valuing trees
• $2,000.00/tree in
punitive damages (tempting to make df plant trees, but courts don’t want to get into
supervision of slavery)
Betterment repairs increase the value of the chattel
Harbutt’s Plasticine v. Wayne Tank 26
• cost of
replacement b/c pl had no choice but to rebuild the factory right away (keep their
business going), and betterment should not be deducted b/c the new design did not
go beyond the cost of replacing the old factory (Denning) and this can not be
credited to the df’s b/c this would be forcing the pl’s to pay for modernization that
they might not have intended or required but for the df’s negligence (Widgery)
James St. Hardware v. Spizzirii 27
• take betterment
into account by deducting from damage award any windfall portion/increase in value
of goods, but add back on sum representing opportunity costs of capital
deduction/investment df’s actions forced the pl to make
• emperical evidence has convinced us that a single instrument, the tort system, cannot
successfully achieve all the goals claimed for it
• the tort system performs so poorly in compensating most victims of pers. inj. that we should
abandon tort as a means of pursuing this compensation objective
• the tort system performs unevenly in deterring the causes of pers. inj, so its scope should be
restricted to situations where its effect seems likely to justify its high cost
• the regulatory system has achieved varying success in reducing per. in dump it where it
doesn’t work, expand where it does
• compensation systems can create substantial deterrent incentives through risk rating of
premiums and through the design of benefits to reduce moral hazard problems
• accident costs should be internalized to classes of activities and to individual actors
• compensation in MV and medical malpractice should be dealt with by no-fault: risk –rating of
premiums, elimination of non-pec. damages, deductibles for short-term pecuniary loss, wage
loss replacement, medical and rehab costs
• workers comp should be retained for workplace injuries but lose product liability suits
Notes
Non-Pecuniary Losses
Lindal v. Lindal
Taxation
The Queen in Right of Ont. v. Jennings
• life expectancy reduced from 22 to 5 years; permanent hospitalization and
unconscious
• no deduction for income tax because to assess the incidence of income tax
would unduly preference the def. and the ins. co.
Notes
Collateral Benefits
Intro
Boarelli v. Flannigan
• pl receiving welfare while unemployed as a result of a MVA
• held: welfare payments are benefits provided to persons in need…there is no
difference between welfare payments and private or public benevolence
• employment insurance is also not deductible
• collateral benefits pursuant to collective bargaining agreements or private
contracts of employment are also not deductible as they are = to private insurance
(Raclos et al. v. Neumann was not approved where sickness and accident benefits
were deducted
Ratych v. Bloomer
• cop hit by an impaired driver receives wages for 3 ½ months while he was off
work (pursuant to a collective bargaining agreement)
• compensation is the underlying principle in the law of damages. An injured
party is entitled to receive full & fair compensation, calculated to place him in the
same position as he would have been had the tort not been committed
• actual losses are recoverable, and the pl. must prove these losses; if no actual
wages are lost, they are not recoverable or else this would be double recovery
• wages paid pursuant to a contract of employment are not = to private
insurance proceeds and are not an exception
• if pl. pays for the policy, it is like priv. ins.; situtation might be different if the
pl. has given up a benefit in exchange for the wages
Nanji v. Habib
• MVA resulting in the pl’s whiplash (“pl was highly susceptible to pain”—nice
thing to say!); pl was off work for several mos.
• as a gov’t employee, she received disability payments and therefore suffered no
wage loss
• she paid ½ of the premium and her employer paid the other ½
• distinguished Ratych and said that disability benefits were like insurance and
therefore not deductible (applied Davis v. Wyatt)
Carde v. Gray
• MVA, pl was paid 19 weeks of sick pay and 3 weeks of holiday pay
• benefits were not deductible as the pl. suffered the loss of a future right to sick
benefits and was not on a holiday when he received his holiday pay
• referred to Ratych and concluded that McLaughlin intended a further exception
to the gen’l “double recovery rule”: if an employee can est. that s/he has suffered a
loss in exchange for wages, they should be compensated
Carano v. Brooks
• MVA, short-term weekly indemnity benefits received from the Employees
Benefit Assoc. (the fund consisted of deductions from wages rather than existing as
a scheme of ins.)
• held: deductions were to be made to prevetnt double compensation. This was
insurance, the assoc. had the right to be repaid and therefore the assoc. had the same
subrogation rights as that of an ins. co.
Cooper v. Miller; Cunningham v. Wheeler; Shanks v. McNee
Cooper: disability benefits pursuant to a collective agreement; no deductions from pay,
but made up part of hourly wages
Cun’hm:long term disability benefits—sub.clause; em’ee and em’er paid premium
short term disability benefits—no sub. clause; no payroll deduction
Shanks: short/long term benefits provided by collective agreement—30% payd by
employee (payroll deduction) 70% paid by employer
• Cooper and Cunningham appeals allowed and Shanks appeal denied because the
benefits were seen as a private insurance policy. Collective agreement benefits are
not deducted because they are bargained for and were obtained by a decrease in the
hourly pay
• deductions from hourly wage will result in a finding that the benefits were
in the nature of a priv. ins. policy
Mason v. Peters
Clarke v. Clarke
Olah v. Groedecke
• the inability of the pl to show a past history of employment did not preclude
her from claiming compensation for loss of future earning capacity
Reekie v. Messervey
Newell v. Hawthornthwaite
• the pl’s future
earnings will be modest and will be made in a “sheltered
environment”
Tucker v. Asleson
Toneguzzo-Norvell v. Burnaby
• doctor
negligently cut off oxygen supply to infant during birth resulting in
severe brain injury
• life expectancy is
now 18 years, so all income earning years were lost years
• estimate of
present value of a stream of income from 19 – 65 years old for a
woman with post secondary non-university education (but reduced by
½ for expenditures)
(iii) Lost Household production
(A) enhanced awards for cost of care
Waterhouse v. Fedor
• pl. required extra help b/c her child was hyperactive; cost of psych.
counseling, homemaker services, companion services, also required
• evidence that marriage would break up and there fore would need extra cost
of homemaker
• $100,000 for lost future earnings, even though she had limited work
experience and had stayed at home—there was a reasonable possibility that
she would have been able to earn income in the future
Busche v. Connors
Fobel v. Dean
MacCabe v. Westlock
IV. INJUNCTIONS
A. Introduction
B. Quia Timet Injunctions and the Problem of Ripeness
Fletcher v. Bealy
Hooper v. Rodgers
E. Nuisance
Miller v. jackson
V. INTERLOCUTORY INJUNCTIONS
A. Introduction
B. Accessibility Threshold
American Cyanmid v. Ethicion
C. Irreparable Harm
Mott-Trille v. Steed
Hunt v. Canada
D. Special Situations
Films Rover v. Cannon Film Sales
F. Mareva Injunctions
Development and General Principles
Mareva Compania v. International Bulkcarriers S.A.
4. Disclosure
Chitel v. Rothbart
5. Damages Undertaking
Allen v. Jambo Holdings Ltd
3. Location of Assets
Ashtiani v. Kashi
4. Priorities
Wagner v. Barnes
Derby v. Weldon
10) Interrogatories
Sekisui House Kabushiki Kaisha v. Nagashima
Equitable Considerations
Falcke v. Gray
D. Land Contracts
Semelhago v. Parmedavan
Inadequacy of Consideration
Hardship
Patel v. Ali
Stewart v. Amvrosina
Laches
Grauer Estate v. Government of Canada
Mutuality
Hanbury, Modern Equity