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Contracts - Suing in Contract and Tort Concurrently. De Rita v. 1266078 Ontario Inc.
In De Rita v. 1266078 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal of a successful negligence judgment, here where the fault was breach of a "contractual obligation to timely discharge a mortgage":[2] The application judge found that the delay in discharging the mortgage deprived the respondent of the opportunity to use the Ouellette property to obtain financing to fund the purchase of a property on Bruce Avenue in Windsor, which he had contracted to do at an extremely favourable price. By the time the respondent obtained a discharge by court order, the Bruce Avenue purchase agreement had lapsed. The application judge awarded damages based on the difference between the purchase price of the Bruce Avenue property and her estimate of what the property was worth when the respondent was able to re-enter the market, less certain deductions and adjusted for certain contingencies. . Beer v. Townsgate I Ltd.
In Beer v. Townsgate I Ltd. (Ont CA, 1997) the Court of Appeal stated as follows regarding actions commenced in both contract and tort:The existence of a contractual relationship between the parties does not preclude a claim in tort: see Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481. In BG Checo International Ltd. v. British Columbia Hydro & Power Authority, 1993 CanLII 145 (SCC), [1993] 1 S.C.R. 12, [1993] 2 W.W.R. 321, the Supreme Court of Canada addressed the issue of concurrent liability in tort where a clause in the contract may exclude or limit such liability. In that case, the court held that the contract did not negate or limit the defendant's common law duty not to negligently misrepresent certain facts, nor did it negate or limit the plaintiff's right to sue in tort. As to whether the right to sue in tort was precluded, the court said at p. 27 S.C.R., p. 331 W.W.R.:
The rule is not that one cannot sue concurrently in contract and tort where the contract limits or contradicts the tort duty. It is rather that the tort duty, a general duty imputed by the law in all the relevant circumstances, must yield to the parties' superior right to arrange their rights and duties in a different way. In so far as the tort duty is not contradicted by the contract, it remains intact and may be sued upon.
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