Damages (Breach of Contract)

Gladu v Robineau, 2017 ONSC 37 (CanLII)

[297] Damages for breach of contract are compensatory in nature, based on the value of the contractual right. Essentially, the “contract breaker is bound to make good the loss caused by the breach, a loss measured by the value of the performance promised”: see S.M. Waddams, The Law of Damages, loose-leaf (consulted on 8 December 2016), (Toronto: Canada Law Book, 2015), at p. 5-1; and Simpson v. Hatzipetrakos, [2009] O.J. No. 3728, at para. 24.

[298] This differs from damages for the tort of fraudulent misrepresentation, which seek to put the plaintiff in the position it would have been in had the misrepresentation not been made; see Waddams, at p. 5-19.

[299] A court will not award more than “a nominal sum of damages for the loss of a mere chance of possible benefit except upon evidence proving that there was some reasonable probability of the plaintiff realizing therefrom an advantage of some real substantial monetary value”: see Kinkel v. Hyman, 1939 CanLII 7 (SCC), (1939) S.C.R. 364, at p. 383.

[300] The general rule is that the breach must cause the loss. “[T]he burden is on the plaintiff to establish on the balance of probabilities that as a reasonable and probable consequence of the breach of contract, the plaintiff suffered the damages claimed: see Eastwalsh Homes Ltd. v. Anatal Developments Ltd., 1993 CanLII 3431 (ON CA), 12 O.R. (3d) 675 (C.A.), at p. 687.