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In Atos IT Solutions v Sapient Canada Inc., the Court confirmed that the “minimum performance principle” places a common law limit on expectation damages for breach of contract. In cases where the defaulting party has alternative modes of performing the contract, damages are calculated on the basis of the mode of performance that is least burdensome to the defaulting party and least profitable to the non-breaching party. A termination for convenience clause therefore effectively defines the upper limit of expectation damages, even where the defaulting party did not terminate under that clause, but rather purported to terminate for cause.

Continue Reading ONTARIO COURT OF APPEAL SUMMARIES (APRIL 16 – APRIL 20, 2018 )