I don’t think that Canadian restitutionary law is now based in contract. I thought that the great achievement of the SCC in this area was ridding the doctrine of its quasi-contractual history that was a product of the old forms of action. Here, the problem is that money was extorted from A by B’s threatening an outcome that could not be compensated in damages (ruining a wedding). This seems to be a straightforward application of restitutionary principles. As a practising trial lawyer, that’s the claim I would advance. The court would have no hesitation in giving restitutionary relief here.

Kind regards,
David

Sent from my iPhone

> On Nov 2, 2019, at 12:30 PM, Harrington Matthew P. <matthew.p.harrington@umontreal.ca> wrote:
>
> I wondered if unjust enrichment might come up. I thought about it as well and discarded it because the basis of the action seems to lie in contract, at least in Canada.
>
> Haven’t the parties, therefore, provided for a reasonable allocation of risk? If so, why should the law step in and create a new regime that avoids the consequences of that allocation. See Lumbers, Pan Ocean Shipping, and Costello.
>
> Working on this problem now so would be very, very interested in hearing responses or criticisms of this. (Please do send me your articles or works on this subject if you would be willing.)
>
> Regard
> Harrington
>
> ------------------------------------------------
> Matthew P Harrington
> Professeur titulaire
> Directeur
> Programme de common law
> Faculté de droit
> Université de Montréal
>
>
>
> -------------------------------------------
>
> -----Original Message-----
> From: davidrwingfield@gmail.com <davidrwingfield@gmail.com>
> Sent: November 2, 2019 10:38 AM
> To: Gerard Sadlier <gerard.sadlier@gmail.com>
> Cc: Murphy, John (murphyjr) <j.murphy2@lancaster.ac.uk>; Moshood Abdussalam <moshood.abdussalam@aut.ac.nz>; Jason W Neyers <jneyers@uwo.ca>; Obligations <obligations@uwo.ca>
> Subject: Re: [External Sender] RE: 2-party Intimidation and Breach of Contract
>
> Can’t Jason’s fact pattern best be analysed under principles of restitution (no juristic reason for B to receive A’s $1500).
> Established principles of restitution wouldn’t allow A to claim in restitution for derivative economic loss from the unlawful wealth transfer. So the answer to Jason’s question would be no.
>
> Kind regards,
> David
>
> Sent from my iPhone
>
>> On Nov 2, 2019, at 10:03 AM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
>>
>> To me, the case seems a clear one of breach of contract and the
>> contractual test of remoteness should apply to determine the damages
>> to be recovered. I don't agree that some different measure should be
>> applicable because the wrong is said to have been deliberate,
>> malicious, or whatever other pejorative term one uses. The fact is
>> that contracts are deliberately breached every day, especially in
>> commercial law without additional damages being awarded on that
>> account.
>>
>> Kind regards
>>
>> Ger
>>
>>>> On 11/1/19, Murphy, John (murphyjr) <j.murphy2@lancaster.ac.uk> wrote:
>>> Dear All,
>>>
>>>
>>> Some interesting thoughts here. But I have certain worries about
>>> some of the things that have been said.
>>>
>>>
>>> In Jason's email there was talk of the threat being an "anticipatory
>>> repudiation". I have my doubts about this. In intimidation cases,
>>> the threats are of the "or else" variety. But when X commits an
>>> anticipatory breach, isn't the threat - effectively, "I'm telling you
>>> now that I won't perform my side of the bargain" - of a qualitatively
>>> different kind? The "or else" requirement in intimidation is key. It
>>> is what drives the person threatened to behave in a way that the person issuing the threat desires.
>>>
>>>
>>> In Andrew's email there was talk of an implied term that neither
>>> party will do anything deliberately designed to prevent the contract
>>> being performed as originally agreed. This could do the trick, but
>>> it would be difficult in practice - I dare say impossible - to devise
>>> such a term that didn't potentially threaten the well-established facility to vary contracts.
>>>
>>>
>>> In Ewan's email there was the suggestion that we should take a steer
>>> from the tort of deceit/fraud on the basis that fraud and
>>> intimidation involve deliberate and malicious wrongs. The role of
>>> malice in tort is always a prickly subject. Also, talk of deliberate
>>> wrongdoing in the context of deceit is an awkward beast. Classically
>>> a false statement will suffice if it were made (i) without belief in
>>> its truth, or (ii) recklessly, careless whether it be true or false.
>>>
>>>
>>> If the muddy waters of two-party intimidation are to be cleared, then
>>> it seems to me that we would do well to filter out thoughts such as
>>> those above given that they tend to obfuscate and complicate (rather
>>> than clarify and
>>> simplify) things.
>>>
>>>
>>> John Murphy
>>>
>>> From: Moshood Abdussalam <moshood.abdussalam@aut.ac.nz>
>>> Sent: 01 November 2019 00:00:13
>>> To: Jason W Neyers <jneyers@uwo.ca>; Obligations <obligations@uwo.ca>
>>> Subject: [External Sender] RE: 2-party Intimidation and Breach of
>>> Contract
>>>
>>>
>>> This email originated from outside of the University. Do not click
>>> links or open attachments unless you recognise the sender and know
>>> the content is safe.
>>>
>>> Hello Prof Neyers,
>>>
>>>
>>>
>>> I agree with the Supreme Court that a case of two-party intimidation
>>> (as opposed to one of three-party intimidation) is simply a
>>> contractual holdup, and, therefore, a breach of contract. Why should
>>> a breach of contract be treated as an economic tort when unaccompanied by exceptional factors (e.g.
>>> public interest concerns--as in the case of professional impropriety
>>> or misconduct by one’s lawyer)?
>>>
>>>
>>>
>>> The scenario presented is surely an interesting one and arouses
>>> sympathy for the victim in the issue who has lost an opportunity to earn $10,000.
>>> However, in my opinion, the case calls for a bit of rethinking of
>>> Hadley v Baxendale/ the remoteness rule in contract law. As I can
>>> glean from the facts presented, the parties had a one-off
>>> transaction, and as such, going by Hadley, the victim should have
>>> intimated the ‘intimidator’ of his exposure to economic losses should
>>> a breach arise. Notice to the intimidator concerning the victim’s
>>> business affairs would be a fair requirement in that situation.
>>> However, if the parties have had a course of dealing over time with
>>> both parties knowing each other’s business practices quite well—for
>>> example, that the victim is a businessperson—then the context of
>>> dealing should govern. In other words, the victim does not have to
>>> expressly or implicitly bring notice to the intimidator (i.e. the
>>> promisor) of his likely exposure to loss. If it would be apparent
>>> that the intimidator, at the time of (contemplating) breach, should
>>> have been aware that a breach would expose the victim to economic loss, then that should be enough to impose liability on the intimidator for the ensuing economic loss.
>>>
>>>
>>>
>>> The remoteness rule should not be rigidly tied down to the
>>> requirement that a promisee must intimate the promisor of his
>>> exposure to loss. Such a requirement in ‘repeat contracting’ creates
>>> a risk of weakening the bargaining position of promisees,
>>> particularly as they have to disclose their affairs, and possibly
>>> trade secrets, to promisors. A course of dealing between the parties,
>>> if established, should be considered as a sufficient information
>>> resource available to the promisor to fix him with knowledge or awareness of his victim’s likely exposure to economic loss.
>>>
>>>
>>>
>>> Regards
>>>
>>>
>>>
>>> Moshood.
>>>
>>>
>>>
>>>
>>>
>>> From: Jason W Neyers <jneyers@uwo.ca>
>>> Sent: Friday, 1 November 2019 2:57 AM
>>> To: Obligations <obligations@uwo.ca>
>>> Subject: {Spam?} 2-party Intimidation and Breach of Contract
>>>
>>>
>>>
>>> Dear Colleagues:
>>>
>>>
>>>
>>> Assume that A and B have a contract for the rental of a venue for a
>>> wedding reception. Hours before the reception, B threatens to lock A
>>> out unless A makes an additional payment of $1500. A makes the
>>> payment, but in so doing is rendered unable to invest in a valuable
>>> business opportunity that turns out to be wildly successful (ie
>>> losing a profit of $10,000). Is there a way for A to recover the $10,000?
>>>
>>>
>>>
>>> An action for duress would only led to a return of the $1500.
>>>
>>>
>>>
>>> An action for breach of contract would seemingly fail as the contract
>>> was not actually breached (the venue was provided) and the
>>> anticipatory repudiation was not accepted by A (for good reason).
>>> Even if one could argue that there was a breach of some duty imposed
>>> by Bhasin v Hrynew it seems likely that the damages would run afoul
>>> of the Hadley v Baxendale remoteness rule.
>>>
>>>
>>>
>>> A claim in 2-party intimidation would arguably fail, at least in
>>> Canada, since our Supreme Court has intimated that a threatened
>>> breach of contract is not unlawful means for the tort of
>>> intimidation. Instead the court stated that A should sue for breach
>>> of contract instead which would lead to no recovery (see above).
>>>
>>>
>>>
>>> Does this seem right? If this is correct, and one thinks that there
>>> should be recovery, what is the means of recovery? I am leaning
>>> towards thinking that the SCC was wrong to suggest that breaches of
>>> contract can never be unlawful means for two-party intimidation, but
>>> am very interested in your thoughts.
>>>
>>>
>>>
>>> Sincerely,
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> [esig-law]
>>>
>>> Jason Neyers
>>> Professor of Law
>>> Faculty of Law
>>> Western University
>>> Law Building Rm 26
>>> e. jneyers@uwo.ca<mailto:jneyers@uwo.ca>
>>> t. 519.661.2111 (x88435)
>>>
>>>
>>>