Equitable Damages

Equitable compensation is different from common law damages for breach of contract or tort because it attempts, with money, to make restitution to the injured party and is not fettered by the common law doctrines of forseeability and remoteness.

So writes Teck H. Ong in “Equitable Damages: A Powerful But Often Forgotten Remedy” (Deakin Law Review, 4:2 [1999]). Idea had been of interest since compiling a casebook on equitable remedies for a law professor, Leslie Shaw, in the summer of 1975. As recalled by Montreal lawyer and Chartered Professional Accountant (via Chartered Accountant designation) Murray Sklar, “Professor Leslie Shaw, who taught me Personal Property (Droit des biens), introduced us in an extraordinary manner to Common Law”.

Idea that the Court of Equity, or a judge with equitable jurisdiction, will also assume jurisdiction in relation to damage awards, quite apart from its discretionary jurisdiction in relation to injunctions and orders for specific performance. Common law damage remedies for breach of contract are tied to what is foreseeable, at the time of the breach. This is where equitable considerations come into play. A judge, in exercising such equitable jurisdiction, is entitled to base damages on the highest possible price that the property could have been sold for, irrespective of the fact that such price may not have been foreseeable at the time of the breach. Case in point was the 1973 case of Wroth v. Tyler [1973] 1 All ER 897. Case is summarized here. Basic question: in circumstances of rising prices, may damages be awarded for the increase in price between the time of the breach and the time when the case is heard by the court? The answer is “yes”, even though such an award does not fit the more traditional views as to foreseeability.

Ten years after completing the casebook for Professor Shaw, had an opportunity to explore the issue again, and further. Did so, as here, in the context of a competition sponsored by the Real Estate Institute of Canada:

85 Equitable Damages – Breach of Contract Sale of Land

Second prize. Used to remember who won first.

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About brucelarochelle

Practising Lawyer and Part-Time University Instructor (Accounting, Commercial Law, Organizational Behaviour); Part-Time Federal Tribunal Member. Non-practising Chartered Professional Accountant (Chartered Accountant and Certified Management Accountant).
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