Remedies

Remedies

1. Given the situation of the parties at the time of the contract or when the tort was committed, was the loss of profit, or market, a serious possibility, something that would have been in their minds had they contemplated breach? H Parsons

   • No - damages are too remote, not entitled to recover.
   • Yes
     • Are we dealing with a secondary transaction?
       • No.
       • Yes
         • Unless it was clear to the parties that this secondary transaction was happening, not entitled to recover. Too uncertain. Kienzle v Stringer
           • Was the loss foreseeable based on the type of trade the parties were engaged in? The Achilleas; Saipol SA v Inerco SA
             • Yes .Entitled to recover for the loss contract.
             • No.
               • Cannot recover for the loss of the secondary contract
     • Are we dealing with a personal injury case?
       • Yes
         • Can the plaintiff receive damages for future issues related to their injury?
           • Schrump v Koot; Currie: it is not necessary to prove on the balance of probabilities that future loss or damage will occur, but only that there is a reasonable chance of such loss or damage occurring.
             • Did the plaintiff failed to avoid a loss by refusing to undergo treatment OR was it reasonable to not undergo treatment? Janiak
               • The defendant may be entitled to a mitigation of the damages
         • The plaintiff has proved that they suffered an injury caused on by the defendant on the balance of probabilities - but for test; Lafferrière; Cottrelle (ON); Resurfice Corp v Hanke
           • Yes. Entitled to recover.
             • Is is an intentional tort?
               • Yes. Is the provocation defense available? Landry v Patterson, careful, must look at the province and the type of damages
                 • Yes. The damages must be adjusted.
                 • No. The plaintiff may recover for its loss.
               • No.
           • No. Is it the type of cases where the material contribution test is applicable? See requirements from Hanke
             • Yes. Did the plaintiff proved prima facie that the defendant caused the injury? Snell; Cook v Lewis
               • No
               • Yes
             • No
               • The plaintiff can't recover
     • In a loss of profit case, was the profit making-entreprise stopped by the breach of the defendant? Lake Winnipeg
       • No. The defendant is not liable
       • Yes. The defendant is liable for the loss of profit.
         • Was the plaintiff bound to mitigate its losses? Sells Ltf; Finelli
           • If yes, the defendant can obtain reduction of the damages owed.
           • Has the plaintiff mitigated his losses to the point where he has avoided all losses?