Date: Thu, 19 Feb 2004 13:42:40 -0500

From: Jason Neyers

Subject: SCC and Contract Damages

Dear Colleagues,

The SCC has just released Hamilton v. Open Window Bakery Ltd. (http://www.lexum.umontreal.ca/csc-scc/ en/rec/html/2004scc009.wpd.html) dealing with damages for breach of contract. The SCC held that where a contract might be performed in several ways, the mode which is the least profitable to the plaintiff, and the least burdensome to the defendant, is adopted as the correct measure of damages for repudiation. The test is not how the defendant would likely have performed his or her obligations under the contract but for his or her repudiation. The non-breaching party need not be restored to the position it would likely have been in but for the repudiation but rather to the position it would have been in had the contract been performed. A factual inquiry to determine an estimated cost of the various means of performance may be required but was not necessary here.

Happy reading!

--
Jason Neyers
January Term Director
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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