I certainly can't see any reason whatever for giving corporations damages for distress they can't suffer. Modest sums by way of liquidated damages seem the best way forward. $2500 seems well OTT; in England, even after Makdessi, I'm not sure I can see a court allowing a liq dams agreement for 50 times the value of the beast. Get real: this is only a guinea-pig.

Andrew

Dear colleagues

Some of you may have seen this story:   https://globalnews.ca/news/4042125/pig-adopted-bc-spca-killed-eaten-owners/

One of my students adopted a guinea pig from the SPCA over Christmas (which he and his girlfriend have named Estoppel) and his SPCA adoption contract provides as follows: ""If during the first year of ownership I am unable to keep or otherwise provide for this animal I will return it to the BC SPCA and will neither give it away nor have it destroyed except on the advice of a veterinarian.”  

Assuming the same provision applies and was breached, what damages, if any, could the SPCA claim for breach of the provision to return the pig.  While there could be a restitutionary claim for the value of the pig (or disengorgement of the benefit of the BBQ …), I am more interested in a claim for other types of damages.  Courts have granted mental distress damages for breaches of pet adoption agreements (in Weinberg v. Connors, a court found a breach of a cat adoption contract, where the person adopting the cat failed to advise the plaintiff of the location of the cat (https://www.canlii.org/en/on/onsc/doc/1994/1994canlii7337/1994canlii7337.html?autocompleteStr=WEINBERG%20V%20CONNORS%20%20%20&autocompletePos=1).  The problem is that the “pet” cases where mental distress damages have been granted have involved natural persons.  Is there any authority for the proposition that an organization like the SPCA could maintain a claim for mental distress damages?  Do you think in this situation, the SPCA could claim under another head of damages, perhaps for loss of reputation?

If the SPCA were to contract on its own behalf, as well as its staff, do you think it could claim damages for the mental distress suffered by its staff?  

What about having a liquidated damages clause of say $2500 for breach of the return obligation to compensate for loss of reputation and emotional distress to SPCA staff and members?  Would this ever stand up to court scrutiny?

I would be most interested in your views.

Best regards

Andrew

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Andrew Newcombe
Associate Professor
Faculty of Law, University of Victoria
PO Box 1700, STN CSC

Victoria, BC
Canada  V8W 2Y2

email: newcombe@uvic.ca
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