From: Paul
MacMahon <P.H.Macmahon@lse.ac.uk>
Sent: Thursday
17 July 2025 16:48
To: Matthew
Hoyle; Jason W Neyers; obligations
Subject: Re:
Contributory Fault in Contract Law at the SCC
Mark Gergen has written on the absorption of debt into damages in
the US, but concludes (I think) that it hasn't made a huge difference in
practice.
Most recently: Mark Gergen, 'Debt as a Contractual Type' in Mindy
Chen-Wishart & Prince Saprai (eds), Research Handbook on the Philosophy
of Contract Law (Elgar, 2025).
On the White & Carter issue: Mark Gergen, 'The
Right to Perform after Repudiation and Recover the Contract Price in
Anglo-American Law' in DiMatteo and Hogg (eds), Comparative Contract Law:
British and American Perspectives (Oxford, 2016).
From: Matthew
Hoyle <MHoyle@oeclaw.co.uk>
Sent: Thursday, July 17, 2025 16:27
To: Jason W Neyers <jneyers@uwo.ca>;
obligations <obligations@uwo.ca>
Subject: Re: Contributory Fault in Contract Law at the SCC
Well that would do it, but getting rid of a concept we ve had since before Glanville is fairly radical!
Matthew Hoyle
Barrister
One Essex Court
This message is confidential and may be privileged. If you believe you have received it in error please delete this email and immediately inform the sender.
Regulated by the Bar Standards Board.
From: Jason
W Neyers <jneyers@uwo.ca>
Sent: Thursday, July 17, 2025 4:11:04 PM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>;
obligations <obligations@uwo.ca>
Subject: RE: Contributory Fault in Contract Law at the SCC
Debt is just
not in most judge s armoury of legal ideas anymore on this side of the
Atlantic: as a result of Fuller and Perdue, the restitution, reliance, and
expectation interests and corresponding damages would be seen to occupy the
field.
In fact, I
never heard anything about actions for the agreed sum until I came across it in
English writings.
Jason Neyers
Professor
of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
From: Matthew Hoyle <MHoyle@oeclaw.co.uk>
Sent: July 17, 2025 11:07 AM
To: Jason W Neyers <jneyers@uwo.ca>;
obligations <obligations@uwo.ca>
Subject: RE: Contributory Fault in Contract Law at the SCC
Sorry to sound
like a broken record but even setting aside the conceptual problems with
contrib as a defence to a contract damages, isn t this a claim in debt (ONCA
Judgment references to invoices and a debt collection claim at [15]-[16],
[25])?
How do you
apply contributory fault to a debt claim?
Matthew Hoyle
Barrister
One
Essex Court
This message
is confidential and may be privileged. If you believe you have received it in
error please delete it immediately and inform the sender immediately.
Regulated by
the Bar Standards Board.
From: Jason W Neyers <jneyers@uwo.ca>
Sent: 17 July 2025 15:56
To: obligations <obligations@uwo.ca>
Subject: ODG: Contributory Fault in Contract Law at the SCC
Dear
Colleagues:
I just saw
that the SCC has given leave in Arcamm Electrical Services Ltd. v. Avison
Young Real Estate Management Services LP, 2024 ONCA 925 (41673) (https://www.canlii.org/en/on/onca/doc/2024/2024onca925/2024onca925.html?resultId=c952bd55b59b422f9511629b4d3cbdf1&searchId=2025-02-14T15:35:58:945/58a67fd92fcd4a88be658926cab6eeba)
to address the issue of whether damages in breach of contract actions can
be apportioned based on a defence of contributory fault in general and more
specifically in the context of a summary judgment motion. Hold on to your
hat!
Here are the
facts as prepared by the court:
4342
Queen St. Niagara Holdings Inc. owns commercial property and Avison Young Real
Estate Management Services LP is its property manager. Following a power outage
at the property, Arcamm Electrical Services Ltd. provided emergency services to
temporarily restore power and then further services to permanently restore
power. 4342 Queen St. Niagara Holdings Inc. paid Arcamm Electrical Services
Ltd. s invoices for the emergency services but refused to pay any further
invoices. Arcamm Electrical Services Ltd. commenced a claim for breach of
contract. 4342 Queen St. Niagara Holdings Inc. claimed contributory fault and
sought an apportionment of damages. Arcamm Electrical Services Ltd. was awarded
summary judgment without any apportionment. The Court of Appeal allowed an
appeal and set aside the summary judgment in part. It held the claim against
Queen St. Niagara Holdings Inc. should proceed to trial and Arcamm Electrical
Services Ltd. can seek apportionment based on the alleged contributory fault.
Here is what
the ONCA said on this issue:
I
understand this submission to rest on the assumption that contributory fault
cannot be raised as a defence to a claim in contract.
[41] I reject this submission
and the assumption which underlies it. There has been a long-standing debate
about whether the courts can apportion damages in a breach of contract case
based on a consideration of the contributory negligence of the parties. While
recognizing that the Negligence Act, R. S.O. 1990, c. N.1 does not apply
to actions in contract, a number of first instance decisions in Ontario,
beginning with Tompkins Hardware Ltd. v. North Western Flying Services Ltd. (1982),
1982 CanLII 3160 (ON SC),
139 D.L.R. (3d) 329, 22 C.C.L.T. 1 (Ont. H.C.J.), have applied the principle
that damages in contract can be apportioned based on the degree of fault of the
plaintiff and defendant. See, for example, Ribic v. Weinstein (1982),
1982 CanLII 3170 (ON SC),
140 D.L.R. (3d) 258 (Ont. H.C.), aff d (1984), 1984 CanLII 1869 (ON CA),
47 O.R. (2d) 126 (C.A.); Treaty Group Inc. v. Drake International Inc. (2005),
2005 CanLII 45406 (ON SC),
36 C.C.L.T. (3d) 265, 15 B.L.R. (4th) 83 (Ont. S.C.), aff d on other grounds, 2007 ONCA 450[2]; K-Line Maintenance &
Construction Ltd. v. Scepter Corp., 2009 CarswellOnt 7398, 91 C.L.R.
(3d) 73 (Ont. S.C.), at para. 161; Atos v. Sapient, 2016 ONSC 6852,
at para. 389;
and Parkhill Excavating Limited v. Robert E. Young Construction Limited,
2017 ONSC 6903,
at para. 212. Appellate
courts elsewhere in Canada have similarly held that damages in contract cases
can be apportioned based on fault. See, for example, Coopers & Lybrand
v. H.E. Kane Agencies Ltd. (1985), 1985 CanLII 125 (NB CA),
62 N.B.R. (2d) 1, (N.B. C.A.), at pp. 707-708; and Doiron v. Caisse
populaire d'Inkerman Lt e (1985), 1985 CanLII 95 (NB CA),
17 D.L.R. (4th) 660, 61 N.B.R. (2d) 123 (N.B. C.A.), at p. 273.
[42] In Tompkins,
Saunders J. gave compelling reasons for holding that the courts should allow
for the apportionment of contract damages. He said that negligence on the part
of a plaintiff should have the same effect in reducing damages regardless of
whether the claim is brought in tort or contract. In his view, the principle in
tort cases that where a person is part author of their own injury, the person
cannot call upon the other party to compensate them in full, applies equally in
contract cases: at para. 34.
[43] In Treaty Group,
Ducharme J. thoroughly canvassed the caselaw and academic writing on the
subject and applied the reasoning in Tompkins. At para. 70 of Treaty
Group, Ducharme J. concluded that not only could he apportion damages in a
contract action to recognize conduct on the part of the plaintiff that had
increased their damages but, in appropriate cases, apportionment was required
by fairness, equity and justice . I agree.
[44] Finally, I note that in Cosyns
v. Smith (1983), 1983 CanLII 1750 (ON CA),
146 D.L.R. (3d) 622, 25 C.C.L.T. 54 (Ont. C.A.) Lacourciere J.A., writing for
this court, considered the contributory fault defence, describing it as
analogous to contributory negligence but where the Court holds the basis of
recovery against the defendants to be contract, not tort: at para. 1. He
reviewed the reasoning of Saunders J. in Tompkins, but concluded that it
was not necessary to pronounce on the attractive conclusion that Saunders J.
had reached because the plaintiff s conduct did not amount to contributory
negligence.
[45] I agree with the Ontario
first instance courts that damages in contract cases can be apportioned based
on fault. Accordingly, in my view, Queen was entitled to defend the Arcamm
Action on the basis of contributory fault, and to seek to have the contractual
damages Arcamm claimed reduced to recognize Arcamm s alleged conduct in
increasing those damages.
Sincerely,
Jason Neyers
Professor
of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
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