Date: Wed, 28 Mar 2007 16:18

From: John Swan

Subject: The Golden Victory

The Supreme Court of Canada dealt some time ago with this point in Findlay v. Howard (1919), 58 S.C.R 516 at 544, 47 D.L.R. 441 at 457, Mignault J. said:

Where future damages are claimed, future conditions must necessarily be considered, and what better evidence of conditions, which were in the future at the date of breach, can be made than by shewing, at the date of trial, what has actually occurred since the breach of contract.

See also Morrison Lamothe Inc. v. Bedok (1986), 55 O.R. (2d) 129, 29 D.L.R. (4th) 255 (H.C.) and Alberta Sussex Insurance Agency Inc. v. Canada Broker-link Inc. (2006), 41 C.C.L.I. 28 at 65 (Alta. Q.B.).

John Swan

-----Original Message-----
From: Andrew Burrows
Sent: March 28, 2007 11:04 AM
Subject: ODG: The Golden Victory

I agree with Jason that the majority is correct on this. Had the owners reasonably tried to mitigate by going out into the market earlier that would have been different. But as they had not, their maximum loss should take into account what has actually happened. The principle is one of compensating for the actual loss as we can best assess it at the date of trial cut back where applicable (but not here) by the duty to mitigate, remoteness etc. The date of breach 'rule' is really just a reflection of the normal application of the duty to mitigate.

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