From: Angela
Swan <aswan@airdberlis.com>
Sent: Thursday
17 July 2025 17:09
To: Paul
MacMahon; Matthew Hoyle; Jason W Neyers; obligations
Subject: RE:
Contributory Fault in Contract Law at the SCC
I emphasize to
my students the significant differences between an action on a contract
for the price or amount of the debt and an action for damages for breach of
contract. I deal with the differences at several points in my
text. See, e.g., Swan, Adamski & Na, Canadian Contract Law,
4th ed. (Toronto: LexisNexis, 2018), Chapter 6, section 6.2.6.3.
The
differences are most obvious in the examination of mitigation or the operation
of the principle of avoidable harms.
Angela Swan
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From: Paul MacMahon <P.H.Macmahon@lse.ac.uk>
Sent: July 17, 2025 11:48 AM
To: Matthew Hoyle <MHoyle@oeclaw.co.uk>;
Jason W Neyers <jneyers@uwo.ca>;
obligations <obligations@uwo.ca>
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.
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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
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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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