Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R.

661; 2008
SCC 20
Held: appeal dismissed
Ratio: when employee ended employment contract without notice,
employer required to pay damages in lieu of notice, BUT
requirement is subject to employee making a reasonable effort to
mitigate damages by seeking alternate source of income.
Employer bears onus of demonstrating both that employee has failed
to make reasonable efforts to find work and that work could have Mitigation Ch.1(IV)(A)
been found. Would a reasonable person take the job? Relevant
factors include salary offered is the same, working conditions,
critical element that employee not obliged to work in atmosphere of
embarrassment

Duty of employee claiming wrongful dismissal to mitigate his

damages by accepting a job offer made by the same employer who
originally dismissed the employee
Bowes v. Goss Power Products Ltd. (2012), 293 O.A.C. 1; 2012
ONCA 425
Held: appeal allowed, decision set aside, P entitled to amount of
salary specified in employment contract notwithstanding new
employer
Ratio: if employment contract stipulates fixed term of notice or
Mitigation Ch.1(IV)(D)
payment in lieu of was to be treated as fixing liquidated damages or
contractual amount. No obligation on employee to mitigate damages
If parties who entered in employment agreement specifying fixed
amount of damages intended for mitigation to apply upon
termination without cause, have to do it in clear and specific
language in contract, not stay silent
Brake v. PJ-M2R Restaurant Inc. (2017) 135 O.R. (3d) 561, 2017
ONCA 402
Held: appeal dismissed
Ratio: Brake’s refusal to accept demotion did not constitute a failure
to mitigate and does not disentitle her to compensation for wrongful Mitigation Ch.1(IV)(D)
dismissal. Brake made reasonable efforts to mitigate damages by
increasing work hours and seeking other work. Earnings did not have
to be deducted from damages award, not considered substitute for
what Brake would have earned under contract
John Hallam Ltd. v. Bainton [1920] 54 D.L.R. 537, 60 S.C.R. 325
Facts: acceptance of goods refused, vendors wouldn’t take it back,
resold over contract price
Held: appeal dismissed
Mitigation Ch.1(IV)(E)
Ratio: where on a sale according to sample, goods delivered are of
quality inferior to that warranted the purchaser is entitled to recover
as damages the difference between market value of goods received
and those which should have been supplied
Resale by purchaser at price less than difference does not debar him
from recovering full amount but affords some evidence of market
value
Williams Brothers v Agius [1914]: the law does not take into account
in estimating the damages anything that is accidental as between P
and D (such as in a contract entered into by P with 3rd party)
Wertheim: should not be compensated for loss not suffered and be
put in a much better position
Nesi Energy Marketing Canada v. NGL Supply Co. (2001), 94 Alta.
L.R. (3d) 216, 2001 ABCA 168 (paras. 38-46)
Held: appeal is allowed, no reduction of NGL’s claims for buy losses
by deducting sell gains.
Innocent party entitled to benefit of its contracts individually, “but
for” analysis fails because sell side gains would have occurred even
if NESI had not breached buy side contracts, NESI not entitled to
benefit from P’s gas marketing successes because it became
bankrupt. No entitlement to benefit from P’s mitigative conduct with
respect to another contract.
Ratio: rule as to avoided loss provides that benefit or profit will be
taken into consideration to diminish damages owing to a party in
respect of particular breach if benefit stems from steps taken to
mitigate the loss consequent on that breach British Westinghouse
Electic & Mfg Co v Underground Electric Railways Co of London,
“he who has suffered breach to be placed as far as money can do it,
Mitigation Ch.1(IV)(E)
in as good a situation as if contract had been performed. 1.
Compensation for pecuniary loss naturally flowing from breach, but
qualified by 2. which imposes P the duty of taking all reasonable
steps to mitigate loss consequent on breach, debars him from
claiming part of damage which is due to negligent to take such steps.
No obligation for P to take step that reasonable man would not take
in course of business, but when in the course of business he has
taken action arising out of transaction, which action diminished loss,
effect in actual diminution of loss he has suffered may be taken into
account even though there was no duty on him to act”
Application of this rule to avoided loss limited to cases where benefit
arose as a result of mitigative conduct undertaken in consequence of
breach—one arising out of consequences of breach and in the
ordinary course of business. But for the breach, the benefit would not
have occurred.

514953 B.C. Ltd. (Gold Key Construction) v. Leung (2007), 64

B.C.L.R. (4th) 76, 2007 BCCA 114
Held: appeal dismissed, Gold Key entitled to 58k Contract
Ch.1(VI)
Ratio: judge permitted to draw inference that appellant had no Damages
present intention of remedying the alleged deficiencies, appropriate
for judge to determine that necessary test to adopt was diminution in
value and, no such diminution being proved, no award of damages
could properly be made under that head
McGarry v Richards, Ackroyd & Gall Ltd [1954]: that the measure
of damages for breach by D of contract to perform work on P’s land
is actual pecuniary loss sustained by P as a result of such breach
(difference between what would have been value of premise had
work constructed for been done and value with it unperformed) cases
may arise where damages for default should be measured by cost
making good the default. This will be so if cost of performing work
or making good defect is less than diminution in value of property
caused by default. In such cases it is P’s duty to take reasonable
steps to mitigate his damage by doing what is required. Cost of
reinstatement not proper measure of damages where owner does not
intent to rectify defective work, or where he would be acting
unreasonably in doing so

Westinghouse Electric and Manufacturing Co v Underground

Electric Railways Co: in assessing damages for physical injury to
land or buildings, no doubt a useful prima facie measure of the
plaintiff's loss will be the amount by which the injury has diminished
the value of the land as a commodity. But that is by no means
universal and the question of the appropriate measure cannot be
divorced from the plaintiff's personal position and obligations, both
legal and moral, or from what the plaintiff ought reasonably to do by
way of mitigation. If, for instance, the building is his family
dwelling-house (as in Hollebone v. Midhurst & Fernhurst Builders)
[1968] 1 Lloyd's Rep. 38, or the factory where he carries on business
(as in Harbutt's Plasticine Ltd. v. Wayne Tank & Pump Co. Ltd.)
[1969] 1 Q.B. 447, there may be grounds for adopting as the
appropriate measure the cost of reconstruction. As it was put by
Denning J. in Duke of Westminster v. Swinton: The real question in
each case is: What damage has the plaintiff really suffered from the
breach?', In building cases, the pecuniary loss is almost always
measured in one of two ways; either the difference in value of the
work done or the cost of reinstatement. Where the cost of
reinstatement is less than the difference in value, the measure of
damages will invariably be the cost of reinstatement. By claiming the
difference in value the plaintiff would be failing to take reasonable
steps to mitigate his loss. In many ordinary cases, too, where
reinstatement presents no special problem, the cost of reinstatement
will be the obvious measure of damages, even where there is little or
no difference in value, or where the difference in value is hard to
assess. This is why it is often said that the cost of reinstatement is the
ordinary measure of damages for defective performance under a
building contract.
Ruxley Electronics and Constructive v Forsyth: pool was perfectly
safe and no evidence that it decreased value of pool, unreasonable
for householding to take course of action, damages for loss of
amenity vs demolition, merely lack of depth, substantial gratuitous
benefit.

Hamilton v. Open Window Bakery Ltd. [2004] 1 S.C.R. 303, 2004

SCC 9
Held: appeal dismissed on issue of damages and allowed only on
issue on costs
Ratio: where a contract might be performed several ways, mode
which is the least profitable to P, and the least burdensome to D, is Alternative
Ch.3(III)
adopted Performance
Test is not how D would likely have performed his or her obligations
under the contract but for his or her repudiation. Non-breaching
party need not be restored to position it would likely have been in
but for the repudiation BUT rather the position it would have been in
had the contract been performed
Isfeld v. Petersen Pontiac Buick GMC Inc. (2013), 556 A.R. 118,
2013 ABCA 251
Facts: Campbell, solicitor for Isfeld failed to include easement
discharge condition in agreement, Petersen aware of omission but
did not bring it to Campbell’s attention. Considered Campbell’s
liability secondary to Petersen’s in err
Held: appeal allowed, equal apportionment is fair outcome
Ratio: judgment amended to allow Campbell or Petersen to recover
50% of the amount paid to Isfeld from the other. Parties not acting in
concert in furtherance of common purpose, liability to Isfeld was
several, not joint, nothing in the reasons suggested one party was
more or less to blame than the other, equal apportionment of liability
warranted
Contributory
Where the court was asked whether liability could be apportioned Ch.3(V)(C)
Fault
between two parties who had separately breached different contracts
causing the same damages. Upholding the trial judge's decision that
the parties should be severally liable, the court agreed that that
causes of action against the two defendants were "separate and
distinct" and "their promises to the plaintiffs were several, not joint".
Dominion Chain Co v Eastern Construction Co [1978]: I am
prepared to assume, for the purposes of this case, that where there
are two contractors, each of which has a separate contract with a
plaintiff who suffers the same damage from concurrent breaches of
those contracts, it would be inequitable that one of the contractors
bear the entire brunt of the plaintiff's loss, even where the plaintiff
chooses to sue only that one and not both as in this case.

Nan v. Black Pine Manufacturing Ltd. (1991), 55 B.C.L.R. (2d) 241, Betterment Ch.4(II),(III)
[1991] B.C.J. No. 910
Facts: negligent destruction of property, issue was proper measure of
damages, D didn’t prove that property replacement would be a
betterment
Held: appeal dismissed
Ratio: reinstatement was the beginning of an assessment of damages
and judge not wrong on facts in concluding it was the end as well,
without any deduction for pre-loss depreciation or post-reinstatement
betterment
They lost their family home, which is the nature of their damage and
not some diminution in the value of their land. Fair compensation
requires that they be given back what they had before (the only way
is to award sum reasonably necessary to restore property to condition
in which it was before D effectively destroyed it)
Jamieson Laboratories Ltd. v. Reckitt Benckiser (2015), 130 C.P.R.
(4th) 414, 2015 FCA 104
Facts: Jamieson prohibited with injunction from using word
OMERGARED and recall of products and materials using the word.
Held: appeal dismissed
Ratio: Reckitt at risk of irreparable harm if injunction not issued to
prohibit Jamieson potential infringing behaviour, balance of
Interlocutory
convenience favoured Reckitt, Jmieson engaged in re-branding well Ch.8(V)
Injunctions
aware that Reckitt might take legal action against it.
Reckitt made serious issue of potential trademark infringement.
Potential harm would be impossible to quantify if Jamieson was
permitted to continue to undermine market position in Canada. To
avoid potential damage to its reputation, Jamieson granted variation
to injunction to remove the word and replace it within 30 day period
for complying with injunction
Potash Corp. of Saskatchewan Inc. v. Barton (2013), 427 Sask. R.
206, 2013 SKCA 141
Facts: Barton agreed to provide info on antitrust pricing activities to
private law firms engaged with PCS, PCS sued Barton and obtained
interlocutory injunction, injunction set aside and PCS discontinued
action. After injunction P did not work as lawyer again, sought
damages for loss of income and mental distress (psychological
stress), reimburse for solicitor fees because injunction resulted in
Interlocutory
Barton needing legal assistance Ch.8(XI)
Injunctions
Held: appeal allowed in part, cross appeal dismissed
Ratio: award for mental distress should be increased (to 50k), Barton
entitled to damages for loss of income and pension benefits
Appeal from refusal to award punitive damages dismissed
Injunction prevented Barton from obtaining work and made serious
allegations that called reputation into question, entitled to damages
for loss of income and pension benefits until 65, damages calculated
based on base income of 109k
PCS’s actions high handed and vindictive but did not amount to
abuse of process and therefore no basis to award punitive damages
Sibley & Associates LP v. Ross (2011), 106 O.R. (3d) 494; 2011
ONSC 2951
Facts: P brought up action against former employee and mother for
damages for conversion and fraud, applied for interim Mareva
injunction
Held: application granted in part
Ratio: In cases of fraud, Mareva requirement that there be risk of
Mareva
removal or dissipation can be established by inference, as opposed to Ch.8(XI)(B)
Injunctions
direct evidence. Inference can arise from circumstances of fraud
itself
Evidence of fraud was so strong in this case that coupled with
surrounding circumstances, gave rise to inference that there was real
risk that D would attempt to dissipate or hide assets or remove them
from jurisdiction. Appropriate to grant Mareva order freezing D’s
bank accounts
Carey v. Laiken, [2015] 2 S.C.R. 79, 2015 SCC 17
Facts: contempt proceedings against C alleging breach of terms of
Mareva by returning 400k to S for whom holding it in trust.
Injunction enjoined any person with knowledge of order from
disposing of or dealing with assets of various parties (such as S)
Held: appeal dismissed, in contempt. Mareva injunction prohibited
dealing with money held in trust and C’s conduct showed he
understood that.
Ratio: all that is required to establish civil contempt is proof beyond
reasonable doubt of intentional act or omission that is in breach of a
clear order of which alleged contemnor has notice. Even assuming
existence of funds protected by solicitor-client privilege at the time Mareva
Ch.8(XI)(B)
of transfer, C’s assumed duty to guard privilege did not conflict with Injunctions
duty to comply with order.
Contempt proceedings: liability phase (where case on liability
proceeds and defence is offered), and if liability is established, a
penalty phase. Once contempt has been found, finding is usually
final and may only be revisited in certain circumstances (if they
comply with their order, purges contempt, new facts or evidence
come to light). Evidence here should have been filed in the first
hearing.
Party faced with contempt motion is not entitled to present partial
defence at liability stage and then have a second “bite at the cherry”
at penalty stage. Would defeat the purpose of the first hearing.
Mountain v. Mountain Estate (2012), 112 O.R. (3d) 721, 2012
ONCA 806
Specific
Facts: G claimed oral agreement with parents if he stayed on farm Ch.9(IV)
Performance
and farmed with them, would receive farmland and assets if his
parents stopped farming. Died and no assets transferred to G before
death. H (wife) and L (daughter) as D, L filed counterclaim, H died
before trial.
Held: appeal allowed, new trial required
Ratio: trial judge erred in concluding that because there were no
signed documents, no oral agreement.
Valid and binding oral agreement doesn't depend on existence of
formal written document but terms for the purchase and sale of real
property are the parties, property and price. If those are agreed on
then contract may be found without need for evidence of written
agreement.
Also erred in application of doctrine of part performance. Doctrine
of part performance not limited to consideration of acts of P and
need not be consistent only to alleged contract
McConnell v. Huxtable (2014), 118 O.R. (3d) 561, 2014 ONCA 86
Facts: action brought for unjust enrichment seeking remedial
constructive trust in real property owed by respondent, sought
monetary reward. Respondent brought motion for summary
judgment dismissing action as statute-barred as not brought within 2
year limitation period in Limitations Act 2002. Motion judge found
10 year limitation in Real Property Limitations Act applied. No
legislative gap and no limitation period for action
Laches Ch.11(V)
Held: appeal dismissed, 10 year limitation
Ratio: claim for unjust enrichment in which claimant seeks remedial
constructive trust in another’s property is an action to recover land
within Real Property Limitations Act. “Recover” means to obtain
land by judgment of court, and seeking equitable interest in land
through imposition of constructive trust. 10 year limitation applied,
P’s alternative claim for monetary award sheltered under s4.
Limitations Act applied to equitable claims
Tang v. Zhang (2013), 41 B.C.L.R. (5th) 69, 2013 BCCA 52
Facts: deposit “on account of damages” and because vendors able to
sell property for higher price, no damages suffered and not entitled
to deposit
Held: appeal allowed, deposit forfeited
Ratio: Agnosti v Winter wrongly decided, no longer good law. In
light of purchaser’s failure to complete purchase, deposit forfeited to
vendors. Deposit generally forfeited by buyer who repudiated
Remedy
contract and such forfeiture not dependent on proof of damages. Ch.11(IX)
Stipulation
Contractul term forfeiting deposit “on account of damages” did not
alter nature of deposit

General principles for real estate deposits: 1st question of whether

deposit or payment made to seller in advance of completion of
purchase forfeited to seller upon buyer’s repudiation of contract was
a matter of contractual intention. 2nd where parties used word deposit
to describe payment, that word was to be given its normal meaning
in law. 3rd true deposit ancient invention of the law designed to
motivate contracting parties to carry out bargains. Deposit generally
forfeited by buyer who repudiated contract, not dependent on proof
of damages by other party.
4th deposit constituted an exception to usual rule (sum subject to
forfeiture on breach of contract unlawful penalty unless it
represented genuine pre estimate of damages). Finally, contractual
term that deposit to be forfeited on account of damages on buyer’s
failure to complete did not alter nature of deposit but could be
construed to mean that if damages were proven the deposit would be
applied against them. If no damages shown, deposit still nevertheless
forfeitable, subject to expression of contrary intention.
Redstone Enterprises Ltd. v. Simple Technology Inc. (2017), 137
O.R. (3d) 374, 2017 ONCA 282
Facts: purchase and sale of warehouse for 10,225,000. Agreement
was for deposit of 300k, paid additional deposit of 450k to obtain 6
month extension for time of closing. Failed to obtain paperwork, P
entitled to be paid 750k which was being held in trust
Held: appeal allowed, deposit forfeited
Ratio: fact that applicant suffered no damages did not itself render
forfeiture of entire deposit unconscionable. Finding of
unconscionability must be exceptional one, strongly compelled on Remedy
Ch.11(IX)
facts of case. While in some cases a large deposit (without anything Stipulation
else) could be found unconscionable, deposit in this case not grossly
disproportionate.
This was straightforward commercial real estate transaction
undertaken in expectation of profit by both sides and no inequality of
bargaining power between them. No fiduciary relationship, both
parties sophisticated. Nothing to suggest applicant unconscionably
abused bargaining power in asking for additional deposit of 450k to
grant requested extention.
Amount of forfeiture increased to contractual amount of 750k
Ottawa Community Housing Corp. v. Foustanellas (2015), 125 O.R.
(3d) 539, ONCA 276
Held: appeal allowed in part
Ratio: D participated in defraud public housing corporation and
falsified more than 1000 invoices for carpet installation. 250k for
punitive damages appropriate but trial judge erred in holding all Ds Remedy
Ch.11(IX)
liable on joint and several basis and in awarding punitive damages Stipulation
against estate of one D. Joint and several responsibility cannot be
imposed for punitive damages.

Punitive damages are intended to achieve objectives of retribution,

specific and general deterrence and denunciation.