I agree. Restitution won’t get the plaintiff $10k. Would all those other claims be pleaded? Maybe. I wouldn’t do so, however. I would want the simplest route to the best outcome. In my experience, the more causes of action that are pleaded the weaker the case becomes. The central idea gets denuded by analysing it in too many different ways. So the attempt to get $10k will undermine the claim for the return of $1,500 plus punishment damages. Part of pitching cases is knowing what to give up. If the fact pattern were less egregious and less amendable to a restitutionary remedy then I accept your point about seeking contract damages and figuring out how to avoid the remoteness issue.


Kind regards,
D
Sent from my iPhone

> On Nov 2, 2019, at 1:38 PM, Gerard Sadlier <gerard.sadlier@gmail.com> wrote:
>
> Dear David
>
> I quite agree with you that a restitutionary remedy would be available
> for recovery of the C$1,500. I do not think though that a
> restitutionary claim for the $10,000 could ever succeed. I do think
> that there are cases in which that claim would succeed if brought in
> contract, if remoteness was not an issue (because say the claimant's
> solicitors had written expressly notifying the party in breach of the
> loss that would be suffered and calling on them to honour their
> contract and the party in breach had declined). I therefore
> respectfully disagree with your view that the Courts would never make
> an award of the $10,000, though the facts would need to be strong and
> I accept remoteness is an issue that would have to be addressed.
> I completely agree with you that the Courts are practical and that the
> judge will see this as a case of extortion. In a proper case the
> Court may well be anxious to award the $10,000, if it can find a
> legally sound means of doing so.
>
> I have to say that in this jurisdiction, at least, I think this case
> would be pleaded to include alternative claims, in tort, contract and
> restitution and that it would probably be run as a breach of contract
> claim, to maximize pressure on the other side, since they will not be
> advised that the Court is simply not going to award the $10,000 as
> damages. Matters may of course be different in Canada or indeed in its
> different provinces, I suppose.
>
> Kind regards
>
> Ger