REMEDIES IN THE COMMON LAW Stephen A Smith

REMEDIES IN THE COMMON LAW Stephen A Smith Mc. Gill University 1

Definition A court order or judgment (hereafter ‘order’) - e. g. , an order to perform a contract: ‘THIS COURT orders that the agreement dated Jan 1, 2009 referred to in the Particulars of Claim be specifically performed and carried into execution’. 2

Art. 1458 CCQ Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de préjudice à autrui. Elle est, lorsqu'elle est douée de raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu'il soit corporel, moral ou matériel. 3

Art. 1458 CCQ Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. 4

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Breach (Defective Crane) 6

Major Breach (Repudiatory) Breach (Defective Crane) Minor Breach 7

Major Breach (Repudiatory) Breach (Defective Crane) Minor Breach 8 Damages

Art. 1604 CCQ Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation. 9

Major Breach (Repudiatory) Breach (Defective Crane) Lessee Accepts Crane Minor Breach 10 Damages

Art. 1604 CCQ Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation. 11

Lessee Rejects Crane Major Breach (Repudiatory) Breach (Defective Crane) Lessee Accepts Crane Minor Breach 12 Damages

Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 13 Damages

Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 14 Damages

Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 15 Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 16 Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 17 Damages Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 18 Damages Lessor Fails to Perform Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 19 Damages Lessor Fails to Perform Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 20 Damages Lessor Fails to Perform Lessee Requests Specific Performance Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 21 Damages Lessor Fails to Perform Lessee Requests Specific Performance Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages Specific Performance Granted; Damages May be Awarded in Addition

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ the Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 22 Damages Lessor Fails to Perform Lessee Requests Specific Performance Lessor Performs Damages Restitution (Lessee Gets His Money Back) Damages Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu

Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 23 Damages Lessor Fails to Perform Lessee Requests Specific Performance Lessor Performs Damages Restitution (Lessee Gets Money Back) Damages Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu

Damages 24

Ordinary or ‘Compensatory’ Damages 25

Cost of Performance Ordinary or ‘Compensatory’ Damages 26

Cost of Performance Ordinary or ‘Compensatory’ Damages Consequential Loss (e. g. , lost profits, out of pocket expenses, mental distress, property damage) Damages 27

Cost of Performance Ordinary or ‘Compensatory’ Damages Nominal Damages 28 Consequential Loss (e. g. , lost profits, out of pocket expenses, mental distress, property damage)

Cost of Performance Ordinary or ‘Compensatory’ Damages Nominal Damages Punitive Damages (Available in addition to any other award) 29 Consequential Loss (e. g. , lost profits, out of pocket expenses, mental distress, property damage)

Cost of Performance Ordinary or ‘Compensatory’ Damages Nominal Damages (Common Law Only) Consequential Loss (e. g. , lost profits, out of pocket expenses, mental distress, property damage) Damages Punitive Damages (Available in addition to any other award) ‘Restitutionary’ Damages or ‘Disgorgement’ ‘Doing the very thing she contracted not to do’ ‘Skimped Performance’ AG v Blake (2001)(H of L) 30

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-Compensatory -Nominal -Punitive -Restitutionary The Law of Remedies: Good for Lawyers PLUS: possibility of. . . -Claim in tort (eg, for misrepresentation) - Claim for breach of fiduciary or other equitable duty - Claim under human rights legislation Lessee Keeps Contract Alive (Insists on Performance) Lessee Rejects Crane Major Breach (Repudiatory) Lessee ‘Ends’ Contract Breach (Defective Crane) Lessee Accepts Crane Minor Breach 33 Damages -Compensatory -Nominal -Punitive -Restitutionary Lessor Fails to Perform Lessee Requests Specific Performance Lessor Performs Damages Restitution (Lessee Gets Money Back) -Compensatory -Nominal -Punitive -Restitutionary Damages -Compensatory -Nominal -Punitive -Restitutionary Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu -Compensatory -Nominal -Punitive -Restitutionary