Contract Law

Essay:  Do not quote essays and books that you’ve never read – quoting quotes.
In order to cite quotes within quotes, cite properly [“…as quoted in…”].

J. Nunes Diamonds v. Dominion Electric Protection Co.  page 725
•    There was a contract between the diamond store and the alarm company for an alarm system.
•    P called D to ask if the alarm was sound in a certain respect.  Was assured that it was.
•    turned out to be negligent, but it was not sound in that certain respect.
•    The store was robbed.
•    Was defended on the basis that as the merch. had a contract with the alarm co., the rights and liabilities had to be ascertianed in reference only to the contract.
•    Alleged that could not sue for tort of negligence outside of the contract.
•    Undoubtedly, there was a limitiation of liability clause within the contract.
•    SCC – for the tort of neg. misrepresentation to be actionable the tort has to be “independent” of the contract.
•    A tort may be “independent” in at least 2 ways:
•    i)  The representation may have been made to a party who was not a party to the contract
•    ii)  the duty owed by the D may be unaffected by the contract.

Central Trust Co. v. Rafuse
•    Lawyer hired to oversee a mortgage and sale of property
•    missearched the title
•    Rafuse had committed the negligence, years later the problem was discovered.  Central trust suing their old lawyer for negligent conduct.
•    Problem:  By the time Central Trust was suing, more than 6 years had passed, so it was too late to sue for breach of contract.
•    sued for negligence in tort.
•    In tort, the limitation period doesn’t begin until the alleged negligence is discovered.
•    SCC said that in context of suing a lawyer, can sue in either contract or tort.
•    Easier in the lawyer context, because rarely have a contract with their lawyers.
•    Have rarely signed away rights via a limitation of liability clause.
Queen v. Cognos page 726
•    SCC does a 180º turn from Nunes Diamonds
•    Can sue concurrently in contract and torts.
•    Begin from proposition that liability is concurrent.
•    Contract does not oust tort.
•    Pre-contractual utterance inducing contract
•    Hired to do a major project.
•    Co. had not yet decided to actually do the project, and then decided not to.
•    P had moved his family from Calgary to Ottawa
•    Company let him go
•    Did not breach contract, as gave the one-month severance that was due.
•    Suing, saying he would not have accepted the position had he been told the truth.
•    On one hand, covers what he was suing on: [employment:  Hiring, course of employment, end of employment]
•    On the other hand, it does not.
•    Say that if Pigeon was right in Nunes Diamonds, then this is one of the exceptions.
•    Iaccobucci ¶3 –  Two different legal questions re. contract and tort.
•    addressses the Pigeon question:  Tackles the issue of having a contract with the other side and suing in tort under that subject matter – Pigeon said no.  Cannot.  Ever  – Iaccobucci is about to say he can.
•    Addresses issue of what if you had signed a contract saying that you will not sue in tort.
•    Subsequent contract may play an imp. role in whether one can succeed in tort.
•    fact that one has a contract does not necessarily preclude sueing in tort, though may play this important role.
•    However, even if the tort claim is not barred altogether by the contract, the duty of liability of the D with respect to neg. misrep. may be limited or excluded by a term of the subsequent contract so as to diminish or extinguish the P’s remedy in tort.
•    So even if the fact that a contract does not oust all duties of error, the wording of the contract may extinguish the ability to sue in tort.
•    Must also ask whether the tort duty was written right into the contract.
•    In this case, say that clauses 13 & 14 does not support an interpretaiont that would protect the respondent from te breach of a duty of care – let alone the breach of the particular duty invoked by the appelland in his action for engligent misrepresentation.

•    Cannot sue in tort merely to escape the fact that one signed away all one’s rights in contract.

First class after break – print provisions of something or other.
Vertical privity
Horizontal privity
Read up to Bow Valley Husky (Bermuda) v. Saint John Shipbuilding 687-701