On 27 Feb 2018, at 09:18, Tamblyn, Nathan <N.Tamblyn@exeter.ac.uk> wrote:

Very interesting. I would have thought that liquidated damages would be a sensible way to go; the case law does talk about their appropriateness in cases where quantifying damages would otherwise be very difficult. Of course, the figure has to be a genuine attempt at estimating damages. Perhaps it might include a small sum to reflect staff distress. Better yet, perhaps also the wasted costs of the SPCA preparing the animal for adoption (bringing it back to health, vaccination, admin costs etc).

N

Nathan Tamblyn

MA (Oxford) LLM PhD (Cambridge) Barrister FHEA

Associate Professor of the Common Law

University of Exeter Law School

For office hours and to book an appointment, please visit: https://calendly.com/n-tamblyn

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From: Andrew Newcombe <newcombe@uvic.ca>
Sent: 26 February 2018 22:31:52
To: obligations@uwo.ca
Subject: Damages for killing a pig adopted from the SPCA

 

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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