From:                                                       Jack Enman-Beech <jenmanbeech@gmail.com>

Sent:                                                         Friday 18 December 2020 21:19

To:                                                            Stéphane Sérafin

Cc:                                                             Obligations list

Subject:                                                   Re: Duty of Honest Performance in the SCC

 

Of course there's interest--let's hear it! The majority tried to close one open question by being explicit that the duty of honest performance, if breached, leads to expectation rather than reliance damages. But they left the real damages issue hanging--why is "as if the contract had been performed" giving early notice, rather than giving 10 days' notice without the dissemblements in the lead-up? The alternative performance rule in Hamilton v Open Window was not made for this.

 

Yours truly &c.,

Jack Enman-Beech

SJD Candidate, University of Toronto Faculty of Law

 

On Fri, Dec 18, 2020 at 4:08 PM Stéphane Sérafin <Stephane.Serafin@uottawa.ca> wrote:

I was wondering when this would be posted. Permit me to say, as the first to respond and as someone who can be perhaps rightly accused of approaching the common law through a civilian lens, that I find the majority’s approach here quite shocking, especially given that it didn’t need to go where it did at all.

 

Happy to elaborate on why if there’s interest.

 

Best,

 

Stéphane

 

From: Jason W Neyers <jneyers@uwo.ca>
Sent: December 18, 2020 3:25 PM
To: Obligations list <obligations@uwo.ca>
Subject: ODG: Duty of Honest Performance in the SCC

 

Attention : courriel externe | external email

Dear Colleagues:

 

Just in time for the holidays the SCC has released its decision in C.M. Callow Inc. v. Zollinger, 2020 SCC 45 applying its earlier jurisprudence in Bhasin v Hrynew.  According to a summary provided by the court, the SCC has decided (8-1) that “even when someone is allowed to put an end to a contract, this has to be done in an honest way”:  https://www.scc-csc.ca/case-dossier/cb/2020/38463-eng.aspx.

 

The full decision can be found here:  https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18613/index.do.  Although the decision is 8-1 there is some disagreement expressed in the concurring judgement as to the applicability of civil law concepts, such as abuse of rights, to the common law.

 

Happy Holidays everyone!

 

Sincerely,

 

 

esig-law

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)