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Remedies

Alexis Leray English

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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?

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Mind Map on Remedies, created by Alexis Leray on 04/03/2019.
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Alexis Leray
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