Damages for Mental Distress and Other Intangible Loss in a Commercial Context

As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in a variety of circumstances by following one of three strategies to do so: permitting recovery when the contract is non-commercial; permitting recovery when the contract fits within a special or established category of exception to the general rule; and permitting recovery on the basis of foreseeability principles alone. There are a number of reasons to critique the general rule, particularly in light of the House of Lord\u27s much more expansive approach in Farley v. Skinner, [2001] 3 WL.R. 899. In short, an under-inclusive approach to this question results in contracts only being partially enforceable - a result contrary to the foundational principles that parties should be held to their bargain. Based on Farley, this paper offers a proposed restatement of the general rule. It also offers a way of clearly distinguishing between aggravated damages, on the one hand, and general damages for mental distress, on the othe

Assessing Exclusion Clauses: The Supreme Court of Canada\u27s Three Issue Framework in Tercon Contractors Ltd v British Columbia (Transportation and Highways)

The Supreme Court of Canada\u27s 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should-of course-generally be bound by its terms, the majority and dissent followed significantly different paths for determining the scope of the agreement at bar. Justices LeBel, Deschamps, Fish, Charron, and Cromwell (in a majority decision delivered by Cromwell J.) approached the task of contractual interpretation by elevating the long-standing and judicially enforced values that specifically inform the tendering process2 including notions of integrity, transparency, and business efficacy. The dissent, per McLachlin C.J., Binnie, Abella, and Rothstein JJ., in a judgment delivered by Binnie J., emphasized another set of long-standing andjudicially enforced values, namely freedom of contract and fidelity to the legal principle that contracts are to be enforced according to their words. And third, the Supreme Court of Canada laid to rest the doctrine offundamental breach as it applies to exclusion clauses-or attempted to at least

Public Power and Private Obligation: An Analysis of the Government Contract

This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government\u27s liability in contract. The paper\u27s overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or falls into descriptive inaccuracy, or generates false conclusions, the model ought to be replaced with a more competent one

Assessing Exclusion Clauses: The Supreme Court of Canada\u27s Three Issue Framework in Tercon Contractors Ltd v British Columbia (Transportation and Highways)

The Supreme Court of Canada\u27s 2010 decision in Tercon Contractors Ltd v British Columbia (Transportation and Highways) concerned the enforceability of a broadly drafted exclusion clause in the context of public procurement tendering. It is noteworthy for several reasons. First, the decision unanimously articulated a three-issue framework for determining the enforceability of exclusion clauses. Second, and on a more theoretical front, Tercon offered competing visions as to how contracts are to be interpreted. Though the Supreme Court was unanimous that parties to a contract should-of course-generally be bound by its terms, the majority and dissent followed significantly different paths for determining the scope of the agreement at bar. Justices LeBel, Deschamps, Fish, Charron, and Cromwell (in a majority decision delivered by Cromwell J.) approached the task of contractual interpretation by elevating the long-standing and judicially enforced values that specifically inform the tendering process2 including notions of integrity, transparency, and business efficacy. The dissent, per McLachlin C.J., Binnie, Abella, and Rothstein JJ., in a judgment delivered by Binnie J., emphasized another set of long-standing andjudicially enforced values, namely freedom of contract and fidelity to the legal principle that contracts are to be enforced according to their words. And third, the Supreme Court of Canada laid to rest the doctrine offundamental breach as it applies to exclusion clauses-or attempted to at least

Public Power and Private Obligation: An Analysis of the Government Contract

This paper analyzes contracts made by the Government in terms of political theory. From this perspective, it explores the assumptions, utility, and accuracy of the private law model which historically has governed the Government\u27s liability in contract. The paper\u27s overarching objective is to question the propriety of applying private law principles to a public entity, particularly within the context of liberal democratic values to which both the Canadian State and society are pledged. In accord with McAuslan, it regards theoretical inquiry as significant. It asserts that if the current model of State liability collides with fundamental Canadian political constructs, or falls into descriptive inaccuracy, or generates false conclusions, the model ought to be replaced with a more competent one