1. Contract Breaches and Remedies
Session 7
Build a contract
Breaches & Remedies

2. Build A Contract Contents of Contract Parties Date Terms
Signatures, Witnesses, Seals

3. Build A Contract
Harry Jones wants to hire Smith Concrete which is operated by John Smith to build a garage pad.
Smith quoted a price of $6,500 for the garage pad including all materials, labour and equipment.
Smith excluded cleanup
Smith wants payment 5 days after completion
Break into groups and draft a contract.
Make sure that you include all clauses that you think are needed (don’t worry about the detail – get the intent down)

4. Origins of Disputes Breach of Contract Tort Issues – Breach of “Duty”
Statutory – Competition Act

5. Nature of a breach
Major – going to basic value of contract to one party
Minor – insufficient to cause void of contract

6. Results of Breach
Fundamental Breach - Contract voidable by offended party
Breach of Warranty - Damages

7. Intent of damages
The idea of damages is to compensate with money for a non-monetary problem

8. Other remedies
Specific Performance

9. Where to go to get satisfaction
Courts
Alternative Dispute Resolution

10. Alternative Mechanism
Litigation
Alternative Dispute Resolution

11. Court Action – litigation
Provincial Court
Civil Claim
Dispute Note
Pre-trial Hearing / Compulsory Arbitration
Trial
Judgment
Enforcement through Court of Queen’s Bench

12. Court Action - Litigation
Court of Queen’s Bench
Statement of Claim
Statement of Defence
Affidavit of Records
Examinations for Discovery
Trial
Judgment
Enforcement

13. Alternative Mechanisms
Negotiation
Mediation
Arbitration

14. Negotiation Principled vs. Positional Negotiation Getting to Yes
Don’t Bargain over positions
Separate the people from the problem
Focus on interests not positions
Invent options for mutual gain
Insist on using objective criteria

15. Mediation Impartial Mediator – skill of mediator often overlooked
No decision unless by parties
Counsel there only as an advisor – parties do most of the work

16. Arbitration Arbitration Agreement Private Court
Sets the rules
Establishes the questions to be asked
Defines all the details: transcripts, costs, appeals
Private Court
Parties pick the judge – the arbitrator
Arbitration Act – gives judgment the weight of a decision of the Court of Queen’s Bench
Quicker and cheaper than trial
Less formal than trial

17. Best Way Depends on nature of dispute
If question is primarily one of law – court If fact-based and special knowledge needed – arbitration
If parties are still talking – negotiation or mediation