Compensation for Harm to Property Interests

• Author: Jamie Cassels
• Pages: 73-125

73

CHA PTER 3

COMPENSATION

FOR HARM TO

PROPERT Y INTER ESTS

A. INTRODUC TION

An interest in property m ay be harmed in a variety of ways. The prop-

erty may be stolen, damaged, or destroyed by the wrongful act of the

defendant. In these cases the cause of action will be in tort (e.g., negli-

gence, nuisance, trespass, conversion, and detinue). Alternatively, the

plaintiff may be kept out of possession of property by a bailee, or by a

vendor who fails to live up to a contract to sell the property; or a con-

tractor may breach their contract to improve or preserve property.

In these case s the cause of action will be in contract. This chapter out-

lines the basic pr inciples of damages a ssessment in relation to property

interests, in both contract and tort.

The f‌irst principle in respect of compensation of property interests

is restitut io in integrum. The owner of property i s entitled to be put in

the position as though the wrong had not been done. The damages will

be measured by the loss i n value of the property to the owner, often,

along with any consequential losses.

Where the wrong is a breach of contract (e.g., a failure to deliver

property that the plai ntiff has purchased from the defendant, or a

breach of contract to improve property), the plaintiff is entitled to

expectation dam ages. These will be measured by the value that the

property would have had to the plainti ff had the contract been per-

formed. The same basic principle applies in tort cases. When property

is damaged or destroyed, the pla intiff is entitled to full restoration, th at

REMEDIES: THE L AW OF DAMAGES74

is, to be put in the position as though the w rong had not been done.

This means that where property is d estro yed, the owner is ent itled to

the actual value th at the property had to her at the time of the w rong.

Where the property is “fung ible” and available for purchase on the mar-

ket, the damages wi ll be assessed by the cost of acquiring a substitute.

Where the property is not easily replaced, courts must engage in more

complex calculations to determine its value to the owner. The method

is explained in t he f‌irst part of this ch apter.

Where the property is damaged, the ow ner is also entitled to be

made whole. Typically, damages w ill be assessed by the rea sonable cost

of repairing or replacing the propert y. The most signif‌icant problems

arise when the cost of repair ing the property is out of proportion to

the market value of the property. This problem is discussed in depth in

Section D, below.

In addition to the value of the property itself, the plaintiff is en-

titled to compensation for consequential losses, subject to the rules

of remoteness and the duty to mitigate. For example, the purchas er

of goods, or the owner, may have been intending to resell the goods

or to use them in some enterprise. The breach of duty by the defend-

ant (whether a breach of contract to deliver the goods, or a tort that

damages them) may result in a n additional loss of prof‌it. Where sub-

stitute property can be im mediately procured, or the property can be

immediately repaired, d amages will be li mited to the cost of doing so

since there will be no lost prof‌its. However, in the case of ma ny prof‌it-

earning ch attels such as heavy machinery or ships, t here will inevitably

be a period of delay, as there will be in c ases involving non-delivery of

certain goods and re al property. In these cases, the plaintiff is entitled

to consequential losse s, including lost prof‌its, subject to the limitations

imposed by the rules of remoteness and mitigation. Even where the

property is not intended to be used for prof‌it, the owner wi ll have been

deprived of its use and may have a claim for the loss of use.

B. NON-DELIVERY OF PROPERTY

Chapter 2 addressed the basic principles regarding the recovery of

damages for a breach of contract. Those general principles apply to

contracts to sell both rea l and personal property, and that chapter con-

sidered the law with respect to the sale of goods. The following section

deals with contract s in respect of land.

Compensation for Ha rm to Property Interes ts 75

1) Breach of Contract to Buy and Sell Real Estate

a) General Pr inciples

Historically, the primar y remedy for breach of a contract to sell land

was specif‌ic perform ance — an order to the vendor actually to deliver

the land. Land, especially residential re al estate, has been considered

unique and damages are presumptively inadequate. However, the as-

sumption that land is unique is no longer the starting point for courts.

In order to be awarded specif‌ic perform ance, a plaintiff must now prove

that the property is s uff‌iciently unique, such that damages would be an

inadequate re medy.1 Expectation damages are a lso an available remedy;

and with the dim inishing availabil ity of specif‌ic performance for the

sale of land, damages are becoming a more important remedy.2

Expectation dam ages in real estate cas es will be the di fference be-

tween the contract price and the market price of the land.3 For ex-

ample, if the vendor refuses to deliver the property at a contract price

of $100,000, and its value has incre ased to $110,000 at the time of the

breach, the vendor will be liable for $10,000 (and the buyer will be

entitled to the return of any deposit paid). Likewis e, if the buyer is in

breach, and the land ha s decreased in va lue, the vendor will be entitled

to the loss.

If the buyer has incurred legal fees or other expenses in a nticipa-

tion of closing, these are not recoverable since they would have been

incurred in any event had the contract gone through. And if the plain-

tiff has saved such expenses, they must be deducted from the damages

for the lost value of the land since, had the contract been per formed,

these expen ses would have been incurred in order to earn that value.4

b) Time of Assessment

Ordinari ly, in determining compensation for breach of contract, dam-

ages are assess ed at the date of the breach. This is a corollar y of the

rule of mitigation since it assumes that at the time of the breach the

1 Semelhago v Paramadevan, [1996] 2 SCR 415; Hunter’s Square Developments Inc

v 351658 Ontario Ltd (2002), 60 OR (3d) 264 (SCJ), aff’d (2002), 62 OR (3d) 302

(CA) ; John E Dodge Holdings Ltd v 805062 Ontario Ltd (2001), 56 OR (3d) 341

(SCJ), aff’d (2003), 63 OR (3d) 304 (CA), leave to appeal to SCC refused, [2003]

SCCA No 145; Erie Sand & Gravel Ltd v Seres’ Farms Ltd, 2009 ONCA 709 at

para 118; Southcott Estates Inc v Toronto Catholic Dist rict School Board, 2012 SCC

51; Beier v Proper Ca t Construction Ltd, 2013 ABQB 351.

2 See Lalani v Wenn Estate, 2011 BCCA 499 [Lalani].

3 Pitcher v Shoebottom (1970), [1971] 1 OR 106 (HCJ) [Pitcher]. See also Lal ani,

ibid.

4 Pitcher, ibid.