Issue: Can P recover damages for result that D not unlikely to know could arise? Reasonable foreseeability higher than Confirms Hadley test not Victoria – Ratio: D should, or reasonable person in their position, realized that loss was sufficiently likely to result from breach of K loss flowed naturally from breach or within – contemplation Higher than torts b/c can direct attention to other party to protect from risk Duty to Mitigate P can’t recover losses he could’ve avoided had he acted reasonably May include steps to mitigate Don’t need to act perfectly If asking for remedy of SP, no duty to mitigate Southcott v Toronto Catholic School Board Corporation formed specifically for purchase of specific building. Didn’t sell due to breach of School Board. Sued for specific performance. Only wanted that one building, so didn’t mitigate. There is a duty to mitigate commercial transaction – Courts decide not to order SP of real estate transaction of commercial nature Property not automatically considered unique Ratio: D has onus of proving that P failed to mitigate loss. BOP, must show: Opportunities to mitigate loss were available to P and P unreasonably failed to pursue opportunities Reasons for failure to mitigate fair, real, substantial justification for claiming SP, lack of – finances Factors for determining uniqueness and availability of SP remedy of damages is – inadequate to do justice + P has fair justification for SP Time for Calculating Damages General rule time of breach is time for calculating damages (Asamera) – Semelhago v Parmadevan Facts: 2 private parties, negotiating sale of house. Buyer not able to get property insists on – SP, or damages in lieu of. His property improved, plus that property. When should damages be assessed? If courts doesn’t award SP awards damages in lieu of SP equitable damages – – Like enforcing the K pushes assessment of damages to time of – Ratio: SP property must be unique substitute no readily available – – vendor reneges in anticipatory breach, innocent party has 2 options: accept repudiation and commence action for damages, or insist on performance. Claim for SP – postpones date of breach so assess damages at date of trial. – Asamera Oil v Sea Oil & General Loan of shares in oil exploration company. Stock price significantly fluctuate. What is value of loss?
Issue: Can P recover damages for result that D not unlikely to know could arise? Reasonable foreseeability higher than Confirms Hadley test – not Victoria Ratio: D should, or reasonable person in their position, realized that loss was sufficiently likely to result from breach of K – loss flowed naturally from breach or within contemplation Higher than torts b/c can direct attention to other party to protect from risk Duty to Mitigate P can’t recover losses he could’ve avoided had he acted reasonably May include steps to mitigate Don’t need to act perfectly If asking for remedy of SP, no duty to mitigate Southcott v Toronto Catholic School Board Corporation formed specifically for purchase of specific building. Didn’t sell due to breach of School Board. Sued for specific performance. Only wanted that one building, so didn’t mitigate. There is a duty to mitigate – commercial transaction Courts decide not to order SP of real estate transaction of commercial nature Property not automatically considered unique Ratio: D has onus of proving that P failed to mitigate loss. BOP, must show: Opportunities to mitigate loss were available to P and P unreasonably failed to pursue opportunities Reasons for failure to mitigate – fair, real, substantial justification for claiming SP, lack of finances Factors for determining uniqueness and availability of SP – remedy of damages is inadequate to do justice + P has fair justification for SP Time for Calculating Damages General rule – time of breach is time for calculating damages (Asamera) Semelhago v Parmadevan Facts: 2 private parties, negotiating sale of house. Buyer not able to get property – insists on SP, or damages in lieu of. His property improved, plus that property. When should damages be assessed? If courts doesn’t award SP – awards damages in lieu of SP – equitable damages Like enforcing the K – pushes assessment of damages to time of Ratio: SP – property must be unique – substitute no readily available vendor reneges in anticipatory breach, innocent party has 2 options: accept repudiation and commence action for damages, or insist on performance. Claim for SP – postpones date of breach – so assess damages at date of trial. Asamera Oil v Sea Oil & General Loan of shares in oil exploration company. Stock price significantly fluctuate. What is value of loss?
Biukovic_58_Full_2013_Kellan_McKeen.docx