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Contracts - Damages. Will v. Geo. A. Kelson Company Limited
In Will v. Geo. A. Kelson Company Limited (Ont CA, 2023) the Court of Appeal supported a lower court remedy of ordering the defendant to continue to fulfil their duties under a contract, rather than a lump sum compensation award:[33] Given her finding on repudiation, and Kelson’s undertaking to pay the interest, it was proper for the application judge to order Kelson to continue to perform the remainder of the contract. Damages are intended to put a party back in the position they would have been in had the breach had not occurred: Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3. Ordering the payment of the overdue interest achieved this goal. . Bank of America Canada v. Mutual Trust Co.
In Bank of America Canada v. Mutual Trust Co. (SCC, 2023) the Supreme Court of Canada set out the principle that damages for breach of contract are normally calculated on an 'expectation' basis:(2) Contract Damages
25 Contract damages are determined in one of two ways. Expectation damages, the usual measure of contract damages, focus on the value which the plaintiff would have received if the contract had been performed. Restitution damages, which are infrequently employed, focus on the advantage gained by the defendant as a result of his or her breach of contract.
(a) Expectation Damages
26 Generally, courts employ expectation damages where, if breach is proved, the plaintiff will be entitled to the value of the promised performance (S. M. Waddams, The Law of Damages (3rd ed. 1997), at p. 267).
27 See Haack v. Martin, 1927 CanLII 57 (SCC), [1927] S.C.R. 413, per Rinfret J., at p. 416:The case is governed by the general rule applicable to all breaches of contract, and laid down as follows by Parke B. in Robinson v. Harman (1848) [1 Ex. 850, at p. 855]. The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.
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