1. REMEDIES IN THE COMMON LAW Stephen A Smith McGill University 1

2. Definition A court order or judgment (hereafter ‘order’) - e.g., an order to perform a contract: ‘THIS COURT orders that the agreement dated Jan 1, 2009 referred to in the Particulars of Claim be specifically performed and carried into execution’. 2

3. Art. 1458 CCQ Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à elle, de manière à ne pas causer de préjudice à autrui. Elle est, lorsqu'elle est douée de raison et qu'elle manque à ce devoir, responsable du préjudice qu'elle cause par cette faute à autrui et tenue de réparer ce préjudice, qu'il soit corporel, moral ou matériel. 3

4. Art. 1458 CCQ Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. 4

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6. Breach (Defective Crane) 6

7. Breach (Defective Crane) Major Breach (Repudiatory) Minor Breach 7

8. Breach (Defective Crane) Major Breach (Repudiatory) Minor Breach Damages 8

9. Art. 1604 CCQ Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation. 9

10. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Accepts Crane Damages Minor Breach Damages 10

11. Art. 1604 CCQ Where the creditor does not avail himself of the right to force the specific performance of the contractual obligation of the debtor in cases which admit of it, he is entitled either to the resolution of the contract, or to its resiliation in the case of a contract of successive performance. However and notwithstanding any stipulation to the contrary, he is not entitled to resolution or resiliation of the contract if the default of the debtor is of minor importance, unless, in the case of an obligation of successive performance, the default occurs repeatedly, but he is then entitled to a proportional reduction of his correlative obligation. 11

12. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Accepts Crane Damages Minor Breach Damages 12

13. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee ‘Ends’ the Contract Lessee Accepts Crane Damages Minor Breach Damages 13

14. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee ‘Ends’ the Contract Damages Lessee Accepts Crane Damages Minor Breach Damages 14

15. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 15

16. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 16

17. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 17

18. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 18

19. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Damages Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 19

20. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessee Requests Specific Performance Damages Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 20

21. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessee Requests Specific Performance Specific Performance Granted; Damages May be Awarded in Addition Damages Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 21

22. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessee Requests Specific Performance Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu Damages Lessor Performs - Damages Lessee ‘Ends’ the Contract Restitution (Lessee Gets His Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 22

23. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessee Requests Specific Performance Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu Damages Lessor Performs - Damages Lessee ‘Ends’ Contract Restitution (Lessee Gets Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages 23

24. Damages 24

25. Damages Ordinary or ‘Compensatory’ Damages 25

26. Damages Ordinary or ‘Compensatory’ Damages Cost of Performance 26

27. Damages Ordinary or ‘Compensatory’ Damages Cost of Performance Consequential Loss (e.g., lost profits, out of pocket expenses, mental distress, property damage) 27

28. Damages Ordinary or ‘Compensatory’ Damages Cost of Performance Consequential Loss (e.g., lost profits, out of pocket expenses, mental distress, property damage) Nominal Damages 28

29. Damages Ordinary or ‘Compensatory’ Damages Cost of Performance Consequential Loss (e.g., lost profits, out of pocket expenses, mental distress, property damage) Nominal Damages Punitive Damages (Available in addition to any other award) 29

30. Damages Ordinary or ‘Compensatory’ Damages Cost of Performance Consequential Loss (e.g., lost profits, out of pocket expenses, mental distress, property damage) Nominal Damages (Common Law Only) Punitive Damages (Available in addition to any other award) ‘Restitutionary’ Damages or ‘Disgorgement’ ‘Doing the very thing she contracted not to do’ ‘Skimped Performance’ AG v Blake (2001)(H of L) 30

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33. Breach (Defective Crane) Major Breach (Repudiatory) Lessee Rejects Crane Lessee Keeps Contract Alive (Insists on Performance) Lessor Fails to Perform Lessee Requests Specific Performance Specific Performance Granted; Damages May be Awarded in Addition Specific Performance Refused; Damages May be Awarded in Lieu Damages Lessor Performs - Damages Lessee ‘Ends’ Contract Restitution (Lessee Gets Money Back) Damages Lessee Accepts Crane Damages Minor Breach Damages PLUS: possibility of... -Claim in tort (eg, for misrepresentation) - Claim for breach of fiduciary or other equitable duty - Claim under human rights legislation -Compensatory -Nominal -Punitive -Restitutionary The Law of Remedies: Good for Lawyers -Compensatory -Nominal -Punitive -Restitutionary -Compensatory -Nominal -Punitive -Restitutionary -Compensatory -Nominal -Punitive -Restitutionary -Compensatory -Nominal -Punitive -Restitutionary -Compensatory -Nominal -Punitive -Restitutionary -Compensatory -Nominal -Punitive -Restitutionary 33