From: St phane S rafin <Stephane.Serafin@uottawa.ca>
Sent: Friday 18 December 2020 23:52
To: John D McCamus; Jack Enman-Beech
Cc: Obligations list
Subject: RE: Duty of Honest Performance in the SCC
So from my perspective, the issue is not so much with the result (though
I think you re right, Jack, that there s something off about the damages
assessment), but, like Brown J., with the way that comparative law was used in
the case.
Kasirer J. is clearly drawing on the notion of abuse of right as it is
understood from cases like Houle v National Bank, even before he turns to
Quebec civil law. The discussion afterwards amounts in my view to an explicit
application (in a judicial decision!) of a functional approach to comparative
law, drawing directly on the equivalent notion of abuse of rights in Quebec
civil law to guide the development of the common law duty of honest
performance.
This is not surprising given my understanding of Kasirer J. s work as an
academic, and it s not to say that this kind of functional approach isn t
useful to scholarship (it can t be avoided at least to a certain extent). But
the weaknesses of this approach also become plain here because as applied in a
judicial decision, no consideration is given to the way in which the common law
itself might understand these concepts, and especially to how they interact
with other more established areas of doctrine (not the same as creating
uncertainty in my view).
Beyond potentially conflating two ideas of what honest performance
entails, as Brown J. points out, and beyond the further move away from the
common law s historical treatment of issues like these through separate tort
and equitable doctrines (a move with deep consequences for the common law
notion of contract itself), the problem also manifests in the realm of damages,
since the civil law doesn t have a notion of expectation damages or reliance
damages . Rather, the party who fails to honour his contractual undertakings is
simply liable for any bodily, moral or material injury he causes to the other
contracting party and is bound to make reparation for the injury (art 1458
CCQ), just as the author of a delict is liable for any injury he causes to
another by such fault and is bound to make reparation for the injury, whether
it be bodily, moral or material in nature (art 1457 CCQ).
St phane
From: John D McCamus <JMcCamus@osgoode.yorku.ca>
Sent: December 18, 2020 6:02 PM
To: Jack Enman-Beech <jenmanbeech@gmail.com>;
St phane S rafin <Stephane.Serafin@uottawa.ca>
Cc: Obligations list <obligations@uwo.ca>
Subject: Re: Duty of Honest Performance in the SCC
Attention : courriel externe | external email
Absolutely Stephane. It would be very helpful to have
your perspective on Kassirer J's opinion. Would you (or Quebec civil law) have
reached the same or a different conclusion? John McCamus
From: Jack Enman-Beech <jenmanbeech@gmail.com>
Sent: December 18, 2020 4:18 PM
To: St phane S rafin <Stephane.Serafin@uottawa.ca>
Cc: Obligations list <obligations@uwo.ca>
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 St phane S rafin <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,
St phane
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,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
