As you know, I’m a trial lawyer. And as I intimated below, I wouldn’t bother trying to fit this case into a breach of contract claim. It’s a case of extortion. That’s how a judge would see it. The easiest way for A get his $1500 back is to seek a remedy that will order B to repay the money. That’s a restitutionary remedy, not a contractual one. The courts are practical. This is the most practical way of getting the remedy.

Kind regards,
David

Sent from my iPhone

> On Nov 2, 2019, at 1:04 PM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
>
> David
>
> Do you say that this is not a breach of contract? If so, why is it not
> a breach of contract?
>
> I accept there may well also be a restitutionary claim but that would
> seem to be an alternative claim surely? The contractual and
> restitutionary claims are not mutually exclusive but alternatives, I
> would have thought.
>
> Kind regards
>
> Ger
>
>> On 11/2/19, davidrwingfield@gmail.com <davidrwingfield@gmail.com> wrote:
>> 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)
>>>>>
>>>>>
>>>>>
>>