All

I think we need to distinguish between damages for mental distress
(which perhaps may not be awarded to a corporation) and
aggravated/exemplary damages more generally which should be available
to a corporation as a matter of principle. My own view is that there
is no justification for ruling out the award of aggravated or
exemplary damages for breach of contract. To say this is not to
suggest that such damages become the norm. Far from it. I would
anticipate that they would have a limited role in the realm of
commercial law but there are a whole range of contracts where they are
appropriate, even necessary to keep people (and more commonly powerful
corporate interests) to their bargains.

I'm glad to note a recent and well reasoned first instance decision in
Ireland, in which the High Court was prepared to award modest
aggravated damages to an individual who had been badly and
deliberately mistreated by a "vulture fund". While the weight of
authority against such an award (Irish and foreign) does not seem to
have been sited to the Court and the decision might be read narrowly
(and wrongly) as turning on the conduct of the trial by the Defendant
(which is seen as a separate category permitting the award of
aggravated damages in certain cases), I hope this may be the beginning
of a trend in our law.

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/b4a377d43a7d70c7802582340052b105?OpenDocument

I do also agree with Heather that, interesting as I may find it, a
discussion of contractual damages flowing from a story such as this
really is a case of the tail wagging the pet pig.

Kind regards

Ger

On 2/27/18, Heather McLeod-Kilmurray
<Heather.Mcleod-Kilmurray@uottawa.ca> wrote:
> A much broader discussion on animal welfare, rights, cruelty, etc is
> warranted, on some other blog I guess. It seems how to calculate
> contractual damages is the least of the problems raised by this case.
>
> -----Original Message-----
> From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
> Sent: February-27-18 2:08 PM
> To: Heather McLeod-Kilmurray <Heather.Mcleod-Kilmurray@uottawa.ca>; Andrew
> Tettenborn <a.m.tettenborn@swansea.ac.uk>; Andrew Newcombe
> <newcombe@uvic.ca>; obligations@uwo.ca
> Subject: RE: Damages for killing a pig adopted from the SPCA
>
> Punitives in a pure breach of contract might be problematic.
>
> As for the criminal case that wouldn't benefit the RSPCA financially would
> it? Don't know about how fines are allocated. Where there is no cruelty then
> hard to see what the crime would be.
> -------------------------------------------
> Matthew P Harrington
> Professeur titulaire
> Faculté de droit
> Université de Montréal
> 3101 chemin de la Tour
> Montréal, Québec H3T 1J7
> 514.343.6106
> matthew.p.harrington@umontreal.ca
> -------------------------------------------
>
> From: Heather McLeod-Kilmurray<mailto:Heather.Mcleod-Kilmurray@uottawa.ca>
> Sent: February 27, 2018 1:15 PM
> To: Harrington Matthew P.<mailto:matthew.p.harrington@umontreal.ca>; Andrew
> Tettenborn<mailto:a.m.tettenborn@swansea.ac.uk>; Andrew
> Newcombe<mailto:newcombe@uvic.ca>;
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> Subject: RE: Damages for killing a pig adopted from the SPCA
>
> What about punitive damages to assist with deterrence? It would seem a
> criminal action would be appropriate too
>
> From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
> Sent: February-27-18 12:56 PM
> To: Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk>; Andrew Newcombe
> <newcombe@uvic.ca>; obligations@uwo.ca
> Subject: RE: Damages for killing a pig adopted from the SPCA
>
> I'm afraid I agree. I`m not sure a corporation can get damages for
> emotional distress. As for adding the employees as parties, the agency
> questions would be rather more complicated wouldn't they? On the one hand,
> making them parties to the contract would possibly open the door to allowing
> them to recover damages for emotional distress, but again quantum would be
> important. On the other hand, they would conceivably be liable for the
> RSPCA's faults as well. Can't have it both ways. If they want the benefits
> that come with a breach by the client, would they not also be liable for
> breaches by their own employer? In my own case, I suppose it might be fun
> to be able to share in damage awards that run in favour of the university
> but I don't think I`d like to be on the hook for liabilities caused to third
> parties by my colleagues.
>
> (Not that my colleagues they aren't all wonderful people, of course.)
>
> Matt Harrington
>
>
> De : Andrew Tettenborn [mailto:a.m.tettenborn@swansea.ac.uk]
> Envoyé : 27 février 2018 04:40
> À : Andrew Newcombe <newcombe@uvic.ca<mailto:newcombe@uvic.ca>>;
> obligations@uwo.ca<mailto:obligations@uwo.ca>
> Objet : Re: Damages for killing a pig adopted from the SPCA
>
>
> 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
>
> On 26/02/2018 22:31, Andrew Newcombe wrote:
> 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
>
> ------------------------------------
> Andrew Newcombe
> Associate Professor
> Faculty of Law, University of Victoria
> PO Box 1700, STN CSC
> Victoria, BC
> Canada V8W 2Y2
>
> email: newcombe@uvic.ca<mailto:newcombe@uvic.ca>
> tel: 250-721-8161
> fax: 250-721-8146
>
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>
> Faculty home page:
> http://law.uvic.ca/faculty_staff/faculty_directory/newcombe.php
>
>
>
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> Andrew Tettenborn
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>
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