Remedies

What is the principle of mitigation

Mitigation - provocation in intentional torts

Mitigation - Valuation of Chance Avoiding Loss

Mitigation - Valuation of chance avoiding loss

Janiak Ratio

What must the court consider in assessing refusal of treatment in a mitigation claim?

How do we evaluate how to discount recovery because of an avoidable loss?

Mitigation - Anticipatory Breach

D and P enter into publishing contract for 25 books. After delivery of 12, D advises P that it is cancelling order.

P had not yet purchased the remining volumes to be sent to D, but proceeded to do so.

Name rule.

Mitigation - Anticipatory Breach

D contracted with P for paving of his driveway, but did not fix a time for performance of K. D then canceled K with P. P paved D's driveway in his absence and sued for the price agreed to in K.

Name rule.

Mitigation - Avoided Loss

D wrongully withheld a supply of gas needed by Ps.
Ps reacted by constructing works for $60k to obtain gas in the alternative, which were later sold for $75k.

Name rule.

Mitigation - Avoided Loss

P was victim of wrongful dismissal by his employer when it went into liquidation.
Profiting from his knowledge of his employer's operations, P purchased assets of his employer at the liquidation sale and flipped them, netting 11k in profits.

P earned $5k/yr working of employer (in 1917).

P's claim for damages for wrongful dismissal was dismissed by the SCC because he avoided his loss by trading in his employer's assets.

Name rule.

Mitigation - Avoided Loss

P agreed to sell a certain amount of shares at a certain price to D as of a certain date.

On the date of transfer of the shares, D failed to provide P with the agreed purchase price.

P did not sell shares right away on the open market, but when he finished doing so, he in fact made a profit compared with the price he was to sell them to D on the date provided for.

P sues D for the difference between the agreed purchase price and the market price as of date of D's breach.

Name rule.

Mitigation - Avoided Loss

P delivered to D cloth which via counter-claim D sought damages as quality was substandard to what had been contracted.

Counter-claim was granted and P appealed on grounds that D had avoided his loss as he had sold the cloth at a higher price than what he had paid for it via sub-contracts.

Name rule.

Mitigation - Collateral Benefits

Qs in dispute answered by trilogy by SCC

Mitigation - Collateral Benefits

1. What is the insurance exception?

Mitigation - Collateral benefits

Should disability payments obtained pursuant to a collective agreement benefit from the insurance exception? Why?

Mitigation - Collateral benefits

What must be proven in the case of benefits which are not in the nature of insurance?

Mitigation - Collateral benefits

Are welfare benefits deductible from an award of damages?

Does the insurance exception apply to payments received from a contributory pension plan?

Are unemployment insurance benefits received deductible from an award in damages in the case of wrongful dismissal?

What obligation is linked to Time of assessment?

What is the general rule for time of assessment?

Why is it fair to allocate post-breach risks on Plaintiff's shoulders?

What is an example of a P not being subject to a duty to mitigate?

When is it reasonable to pursue a claim of specific performance?

How do courts react to claims in specific performance?

How is time value of money compensated?

Where P establishes a particular loss (i.e. P borrowed money to mitigate), how is the time value of money compensated?

In property cases where specific performance can still be validly awarded, what other options do courts have?

Are windfalls allowed at common law?

What are the 3 principal purposes pursued in awarding contract damages?

And who established these principles?

What is the purpose of compensation for breach of contract?

What does restitutio in integrum mean?

What is the purpose of compensation in a torts claim?

What is the interest protected in a tort claim?

What is the interest protected in a contract claim?

What is the measure of damages in sales of goods?

What is the difference in value rule?

In a sale of goods contract, how are damages measured where there is a loss of profit?

Ex. A enters into a contract with B, a car dealership, to purchase a car. A refuses to take delivery, and B sells the car to C at the same price.

When do damages to compensate for the reliance interest arise?

What will compensation be available for in the following case:

A contracts with B to deliver a piece of machinery, and a crucial part of that machine is manufactured by C. C fails to deliver the part on time, and B walks away from the contract with A. A however had started building the machine prior to C’s breach and could recover from C the cost of doing so.

What is the applicable principle for expenses?

Are expenses incurred prior to the conclusion of the contract recoverable?

When are reliance damages available in contract?

When are reliance damages not available?

Are reliance damages available when the Plaintiff has entered into an unprofitable bargain?

When are damages for the reliance interest available?

What is a compensation in reliance AND expectation interest intended to compensate?

In which situation does this apply?

Misappropriation of property is a concept derived from what facet of law?

What are the 3 tort elements discussed in misappropriation of property?

What is conversion?

What is the level of harm caused by trespass?

What is detinue?

What are the damages for misappropriation of property?

What are issues with damages measured by proceeds of the sale of misappropriated property?

What is the distinction with respect to detinue?

Where both detinue and conversion are available for the same wrong, how do we determine which to choose?

Cost of future care

What are damages intended to cover?

Are there restrictions on what costs are recoverable when it comes to future care?

What considerations with respect to the level of care must be taken into consideration when fixing an award for the cost of future care?

How are contingencies handled in the calculation of cost of future care?

How do we avoid overlap with the award for lost income (cost of future care)?

Penso v. Solowan and Public Trustee

What is the ratio of this case?

Discuss collateral benefits

Do awards for cost of care account for tax consequences?

How are tax gross-ups calculated in cost of future care cases?

What is the ratio in Queen in Right of Ontario v. Jennings

Why do we discount to present value?

What are the relevant factors that justify discounting to present value?

What is a "real rate of return"?

What is the rule concerning a discount to account for interest

(Lewis v. Todd)

Should management fees be accounted for and why?

What evidence is required for management fees to be awarded?

In what manner are management fees provided when they are awarded?

What is the traditional rule with respect to compensation for death?

How has the law evolved with respect to compensation for death?

Can the family of a deceased claim any compensation and if so, which relatives can do so and on what grounds?

What is the objective of family compensation actions?

How is an award for family compensation calculated?

What are the limitations to pecuniary losses in family compensation actions?

How is lost monetary support calculated?

How are contingencies treated in family compensation actions?

Does income earned illegally by the deceased affect the survivor claims?

Family compensation actions

Under what circumstances can the scope of pecuniary losses be expanded in family compensation actions?

In family compensation actions, are aggravated, punitive damages compensable?

What about pain and suffering?

Aside from actions in family compensation, can family members make any other claims?

How is the loss of homemaking services by the deceased calculated?

In family compensation actions, what compensation is usually awarded to children and which elements must be present?

What must claimants prove to obtain an award in loss, guidance and companionship?

What is the maximum amount that can be awarded for loss of guidance, care and companionship?

What is required for an adult to assert a claim for loss of guidance, care and companionship?

Where children die, can the parents make a claim and if so, what type of claim can they make and under what conditions?

What is the definition of nuisance?

How is nuisance different from trespass?

What is the remedy to an action in nuisance?

When are damages for nuisance appropriate?

When assessing a request for injunctive relief for nuisance, what can the courts look in making their determination?

Can the courts consider the public interest in a request for injunctive relief for nuisance?

Are injunctions appropriate where nuisance is widespread? Why?

Why would an injunction be granted then suspended?

How can injunctions be subject to a contingency?

Is a nuisance injunction always available as a remedy (where the conditions are met)?

What is the Coase theorem on nuisance injunctions?

Is there any criticism on the Coase theorem on nuisance injunctions?

What are the requirements of irreparable harm?

What is the classic definition of "irreparable"?

When is magnitude of harm a relevant consideration?

What are some examples of accepted "irreparable harms" that can be quantified by experts:

What does a mareva injunction seek to achieve?

When is a mareva injunction useful?

How does a mareva injunction differ from existing mechanisms for the preservation of assets pending trial?

Compare and contrast UK vs. Canadian jurisdiction with respect to mareva injunctions.

In a request for a mareva injunction, what must P establish in addition to establishing a prima facie or strong prima facie case?

How can Plaintiff establish a real risk that D will dissipate his assets prior to judgement?

What type of remedy is a mareva injunction and what does it aim to do?

What are other relevant factors that will be considered in granting a Mareva injunction?

What distinguishes a Mareva injunction from remedies available under insolvency legislation?

In a Mareva injunction, who bears the costs of 3rd party compliance?

What legislation allows Mareva Injunctions in aid of the criminal law?

What must the Attorney General do to obtain a Mareva Injunction?

The granting of a mareva injunction in criminal law will be issued subject to which conditions?

What are other circumstances in which certain jurisdictions have allowed for Mareva Injunctions to be issued?

What is the general principle regarding extra-territoriality in Mareva Injunctions?

What happens if the Defendant deals with assets outside of the jurisdiction of the Mareva Injunction order?

True or False

The Mareva Injunction only prohibits transfer of assets within its jurisdiction.

What factors must be considered when deciding whether to grant a Mareva injunction having extra-territorial effect?

Can Mareva Injunctions be binding on any third party?

If a multi-national corporation has offices or a subsidiary in the Court's jurisdiction, can it be held liable for the actions of a related entity in another jurisdiction?

What two conditions are necessary to give rise to a successful defence of laches:

At equity, delay in the institution of proceedings (laches) can result in the total denial of equitable relief, where:

What is an unreasonable delay with respect to laches?

Where is the prejudice to D sufficient to refuse the relief with respect to laches?

What is an anti-suit injunction?

What is the aim of an anti-suit injunction?

What is the TEST for an anti-suit injunction?

Which provinces have codified the Amchem test and what is the name of the law?

What requirement from the Amchem test was modified in a later Ontario Divisional Court case?

What requirement did the House of Lords affirm with respect to Anti-Suit Injunctions?

Traditionally, was specific performance granted with respect to personal service contracts? Why or why not?

Name the test which applies a more modern approach to specific performance in personal service contracts?

What does the "sufficiency of confidence" test seek to determine with respect to specific performance in personal service contracts?

Can specific performance be granted in an employment context?

What special circumstances can give rise to granting specific performance in an employment context?

What is the purpose of an award in damages for restitution interest?

What is the purpose of an award in damages for reliance interest?

What is the purpose of an award in damages for expectation interest?