GETTING PAID PART II

Last month we looked at getting paid for unpaid accounts, and touched briefly on an example of contract damages. This month, we look more closely at how you prove your damages in other claims.

Calculating and proving damages can be a complex exercise.

Here are a few of the issues that might arise:

1 The Plaintiff always bears the onus of proving their loss on a balance of credible evidence. Evidence may be unavailable due to the absence of witnesses, destruction of documents or other factors.

2 The defendant is generally only responsible for damages arising fairly and reasonably (or naturally) from the breach, within the “reasonable contemplation” of the parties at the time.

3 What is reasonably contemplated? The court considers whether: · “If they had considered the question, they would have, as reasonable people, have concluded that the loss would occur.”

· What knowledge does each party have of the other’s circumstancesespecially their needs?

· What is the subject matter of the contract?

· Risk Allocation indicators

Who could have taken steps to prevent more easily? More economically?

Did the defendant receive a premium price indicating an implied promise of safeguards?

OR was it at a low cost, suggesting the Plaintiff accepted the risk?

4 In many cases, mathematical certainty is impossible. The courts will still award damages, but you must lead some evidence to suggest what the damages are, or risk being awarded nothing.

5 A “flexible and imaginative approach” to the assessment of the damages will be used where required.

6 No one has a crystal ball for the future. You may recover where there was a real possibility of the future events occurring.

7 You are only entitled to the loss caused by the breach.

8 You gave an obligation to take reasonable steps to avoid or reduce the amount of damages.

9 You may not recover twice for the same loss.

10. Contracts often contain clauses which fix or limit damages- read the fine print. Courts will sometimes ignore such clauses if they are extravagant or unconscionable, but uphold a genuine pre-estimate of damages. They are ignored more often in consumer contracts, less so in negotiated commercial agreements involving sophisticated parties.

Working closely with your Weilers Law lawyer early will increase your chances of preserving the evidence needed to maximize your recovery.

(for a more detailed explanation, see Damages 101 on the Weilers Law website, weilers.ca)