Curriculum Proposal
LAW 515: Canadian Private Law: Contractual Obligations & Remedies
Supporting Material
1. Learning objectives/expected learning outcomes
Students who successfully complete this course will understand Canadian common law
private law principles relating to contracts and remedies.
With regard to contracts, students will:
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Understand the requisite elements in the formation of the contract. Students will
be well equipped to discern the difference between an offer and invitation to treat,
the requirement that an offer be communicated, acceptance, the valid
communication of acceptance, the need for certainty of terms, and the intention to
create legal obligations.
Appreciate the concept of acceptance in the law of contract. Graduates of the
program will know the importance of the valid communication of acceptance,
including acceptance through electronic means and related issues and be able to
apply these concepts to factual situations in practice.
Know different ways a contract may be terminated. Recognizing that contracts
may be terminated by revocation, lapse of time, rejection and counter offer, and
the issues relating to unilateral contracts equips graduates to pursue not only legal
careers, but positions in management or administration in the industry or other
sectors.
Think critically about the concept of consideration in the formation of contracts
and understand the concepts of past consideration, forbearance, and pre-existing
legal duties. In addition, students will understand how contracts can be
discharged by performance or breach (including fundamental breach) and excuses
for the non performance of contracts. After graduation, students will be well
prepared to apply these concepts to factual situations and use the knowledge to
draft contracts or think analytically about the validity of a written agreement.
Appreciate special issues relating to misrepresentation and rescission of contracts.
Students will be equipped to apply the distinctions between representations and
terms or a contract, the parol evidence rule, the classification of terms, standard
form contracts and exclusion clauses in their careers after graduating from the
program.
With regard to remedies for breach of contract, students will:
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Understand the legal concept of damages for breach of contract. Students will
acquire a knowledge of what damages are, the types of damages that might be
awarded, what interests are protected, measures of damages (expectation,
reliance, restitution), and the quantification of damages. In practice, working
knowledge of all of these concepts will be used by graduates of the program when
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assessing the value of a client’s claim for breach of contract and determining the
whether any claim is worth pursuing through litigation.
Be able to apply equitable concepts to the resolution of contractual disputes.
Developing a comprehensive knowledge of the concepts underlying equity and its
role in the resolution of disputes will allow students to think critically about when
equitable remedies such as injunctions or specific performance may be awarded in
conjunction with damages, or when remedies or provide a preferable route to
compensating those harmed by a breach of contract.
Students will be able to apply these concepts and understand how the law of contract is
used to fortify obligations between private actors, the rights associated with the
formalization of an understanding between individuals, and the remedies that might be
awarded in the event of breach.
In addition, throughout the course students will be invited to think comparatively and
critically about how the common law approach to the formation of binding agreements
between private actors and the consequences of entering into a binding agreement differs
from that in their own country or origin.
2. Course structure
This course will be taught by a single instructor as an intensive seminar-style course with
two 2.7 hour classes each week over a 12-week term.
3. Course context
This course is a graduate level introduction to Canadian private law, designed for
students registered in the LL.M. (CL) program. The class is not open to students enrolled
in the J.D. program at UBC.
4. Evaluation & Grading
The evaluation method is by examination and written assignment.
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One mid-term exam worth 10%.
One open book final exam worth 70%.
One 10-page written assignment involving a comparative analysis of a discreet
area of legal doctrine in Canada and another jurisdiction.
The course will be graded according to the Faculty of Law and Faculty of Graduate
Studies grading rules. For LLM CL students, the passing grade in any single course is
68%, with an overall average of 70% required to receive the degree. Comprehensive
grading criteria will be provided to students with each assignment.
5. Assessment strategies linked to learning objectives with mark breakdown
Evaluation for this course is based 80% on examinations and 20% on a written
assignment.
The exams will consist of short answer questions, short essay questions, and problem
questions. Short answer questions test candidates’ ability to succinctly and correctly
evaluate statements about materials listed in the syllabus. Short essay questions test
whether candidates’ have critically engaged with the material listed in the syllabus and
have started to form their own opinions about the strengths and weaknesses of basic
doctrines. A typical problem question will describe an actual or fictional fact situation
and ask candidates to apply to doctrines learned in the class to those facts to determine
the legal issues and merits of any possible argument that might be made. Problem
questions test candidates’ ability to identify issues, accurately state the applicable legal
rules, apply those rules to novel situations, and draw conclusions supported by analysis.
In other words, problem questions require the exercise of independent judgment
grounded in the application of general rules to specific fact situations.
The written assignment will involve a comparative analysis of a discreet area of Canadian
doctrine covered in the course and the equivalent body of law in another jurisdiction. It
will require students to think analytically and comparatively about the different ways in
which different legal systems address a similar legal problem.
6. Consultation
Members of the Law Faculty teaching and researching in the area
Law Faculty – Graduate Committee
National Committee on Accreditation
7. Course outline and assigned reading
The assigned material on which candidates will be examined comprises a substantial portion of
Ben Ishai & Percy, Contracts: cases and Commentaries, 8th ed. (Toronto: Carswell, 2009), as well
as supplementary materials that may be provided by the instructor either online or through a
course pack.
8. Syllabus
Class
Topic
Introduction to the law of contract
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Offer
Communication of Offer
Readings:
- Ben Ishai Chapter I: An Introduction to the Study of the Law of Contracts
- Canadian Dyers Ass. Ltd. v. Burton (1920), 47 O.L.R. 259 (H.L.)
- Pharmaceutical Society v. Boots, [1953] 1 Q.B. 401, [1953] All E.R. 482
(C.A.)
- Goldthorpe v. Logan, [1943] W.N. 215, [1943] 2 D.L.R. 519 (C.A.)
- Harvela Investments Ltd. v. Royal Trust Co of Canada, [1986] A.C. 207
- R. v. Ron Engineering & Construction (Eastern) Ltd., [1981] 1 S.C.R. 111
- M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. (1999), 170
D.L.R. (4th) 577 (S.C.C.)
- Double N Earthmovers Ltd. v. City of Edmonton, 2007 SCC 3
- Carlill v. Carbolic Smoke Ball Co., [1893] 1 W.B. 256 (CA)
- Williams v. Carwardine (1833) 4K&Ad. 621
- R. v. Clarke (1927) 40 C.L.R. 227 (Aust. H.C.)
Acceptance
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General
Communication of Acceptance
Electronic Contract Formation and Related Problems
Readings:
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Livingstone v. Evans, [1925] 3 W.W.R. 453 (Alta. S.C.)
Butler Machine Tool v. Excell-o Corp., [1979] 1 W.L.R. 401 (CA)
Felthouse v. Bindley (1892), 11 C.B. (N.S.) 869 (Ex. Ch.)
Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q.B. 256 (C.A.)
Household Fire v. Grant (1879), 4 Ex. D. 216 (CA)
Holwell Securities v. Hughes [1974] 1 W.L.R. 155 (CA)
Brinkibon v. Stahag Stahl, [1983] 2 A.C. 34 (H.L.)
International Convention on Sale of Goods Art. 18(2)(3) and 24
Rudder v. Microsoft Corp., (199) 2 C.P.R. (4th) 474 (Ont. S.C.J.)
Kanitz v. Rogers Cable Inc. (2002), 58 O.R. (3d) 299
Termination of Offer
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Revocation
Unilateral contracts
Rejection and counter-offer
Lapse of time
Readings:
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Dickinson v. Dodds (1876), 2 Ch. D. 463 (CA)
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Byrne v. Van Tienhoven (1880) C.P.D. 344
Errington v. Errington and Woods, [1952] 1 K.B. 290 (C.A.)
Dawson v. Helicopter Exploration Co. Ltd., [1955] S.C.R. 868
Barrick v. Clark, [1951] S.C.R. 177
Certainty of Terms
 Certainty of Terms
 Intention to Create Legal Obligations
Readings:
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R. v. CAE Industries Ltd, [1986] 1 F.C. 129
May and Butcher v. R., [1934] 2 K.B. 17 (H.L.)
Hillas v. Acros (1932), 147 L.T. 503 (H.L.)
Foley v. Classique Coaches, [1934] 2 K.B. 1 (C.A.)
Sale of Goods Act. Ss. 12 & 13
Empress v. Bank of Nova Scotia, [1991] 1 W.W.R. 537
Mannpar Enterprises Ltd. v. Canada, [1997] 33 B.C.L.R. (3d) 203 (S.C.)
Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991), 79 D.L.R. (4th)
97 (Ont. C.A.)
Balfour v. Balfour, [1919] 2 K.B. 571
Rose and Frank v. J.R. Crompton Bros., [1923] 2 K.B. 261 (CA)
TD Bank v. Leigh Instruments Ltd. (1999), 178 D.L.R. (4th) 634 (Ont. CA)
Wallace v. Allen, 2009 ONCA 36;93 O.R. (3d) 723.
Consideration
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Nature of consideration
Past consideration
Forbearance
Pre-existing legal duty
Promises to accept less
Promissory estoppel
Readings:
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Thomas v. Thomas (1842) 2 W.B. 851
Eastwood v. Kenyon (1840) 11 Ad. & E 438
Lampleigh v. Brathwait (1615) Hobart 105, 80 E.R. 255 (K.B.)
Callisher v. Bischoffsheim (1870) 2 QB 449
Pao On v. Lau Yiu Long, [1980] A.C. 614 (P.C.)
Gilbert Steel v. University Construction Ltd. (1976), 12 O.R. (2nd) 19 (CA)
Williams v. Roffey Bros., [1990] 1 All E.R. 512 (C.A.)
Greater Fredericton Airport Authority Inc. v. NAV Canada, 2008 NBCA
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Foakes v. Beer (1884), 9 App. Cas. 605 (HL)
Re: Selectmove, [1995] 2 All E.R. 531 (C.A.)
Foot v. Rawlings, [1963] S.C.R. 197
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 43
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Hughes v. Metropolitan Railway Company, (1876) 1 CPD 120
Central London Property v. High Trees House, [1947] 1 K.B. 130
John Burrows v. Subsurface Surveys, [1968] S.C.R. 607
Privity of Contract
Readings:
- Tweedle v. Atkinson (1861) 1 B&S 393
- Dunlop Pneumatic Tyre Co. v. Selfridge & Co. Ltd., [1915] A.C. 847
(H.L.)
- London Drugs Ltd. v. Kuehne Nagel International Ltd., [1992] 3 S.C.R.
299
- Fraser River Pile and Dredge Ltd. v. Can-Dive Services, [1999] 3 S.C.R.
108
Misrepresentation and Rescission
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Misrepresentation and Rescission
Representations and Terms
Parol Evidence Rule
Classification of Terms
Readings:
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Redgrave v. Hurd (1881) 20 Ch.D. 1 (C.A.)
Smith v. Land & House Property Corporation (1884) 28 Eh.D. 7 (C.A.)
Kupchuak v. Dayson Hordings (1965), 53 W.W.R. 65 (B.C.C.A.)
Esso Petroleum v. Mardon, [1976] Q.B. 801 (CA)
Sodd Corp. v. N. Tessis (1977), 17 O.R. (2d) 158
B.C. Checo Int’l Ltd. v. B.C. Hydro, [1993] 1 S.C.R. 12
Hielbut, Symons & Co. v. Buckleton, [1913] A.C. 30 (H.L.)
Leaf v. International Galleries, [1950] 2 K.B. 86 (C.A).
Gallen v. Butterley (1984), 53 B.C.L.R. 38 (C.A.)
Hong Kong Fir v. Kawasaki Kisen Kaisha Ltd., [1962] 2 W.B. 26 (C.A)
Wickman v. Schuler, [1974] A.C. 235 (H.L.)
Termination of the Contract
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Discharge by performance or breach
Standard form clauses and exclusion
Entire Agreement Clauses and negligent misrepresentation
Unsigned Documents
Signed Documents
Standard E-contracts
Readings:
- Jedfro Investments (U.S.A.) Ltd. v. Jacyk, [2007] 3 S.C.R. 679; 2007 SCC
55
- Fairbanks v. Sheppard, [1953] 1 S.C.R. 314
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Sumpter v. Hedges, [1898] 1 Q.B. 673 (C.A.)
Howe v. Smith (1884) 27 Ch.D. 89 (C.A.)
Stevenson v. Colonial Homes Ltd., [1961] O.R. 407 (C.A.)
Machtinger v. Hoj Industries Ltd., [1992] 1 S.C.R. 986
No. 2002 Taurus VenturesLtd. v. Intrawest Corp.,2007 BCCA 228; 281
D.L.R. (4th) 420.
Parker v. South Eastern R.Y. co. (1877), 2 C.P.D. 416 (CA)
Thornton v. Shoe Lane Parking Ltd., [1971] 2 W.B. 163 (CA)
McCutcheon v. David MacBrayene Ltd., [1964] 1 W.L.R. 125 (H.L.)
Interphoto Picture Library Ltd. v. Stiletto Visual Programmes Ltd., [1989]
Q.B. 433 (C.A.)
Tilden Rent-A-Car Co. v. Clendenning (1978), 4 B.L.R. 50 (C.A.)
Karroll v. Silver Star Mountain Resorts Ltd., [1988] B.C.J. No. 2266 (S.C.)
Zhu v. Merrill Lynch, [2002] B.C.J. No. 2883
Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34
Fundamental Breach
Readings:
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Karsales v. Wallis, [1956] 1 W.L.R. 936 (C.A.)
Photo Production v. Securicor Transport Ltd., [1980] A.C. 827 (H.L.)
Hunter Engineering v. Syncrude Canada Ltd., [1989] 1 S.C.R. 426
Fraser Jewellers (1982) Ltd. v. Dominion Electric Protection Co. (1997),
148 D.L.R. (4th) 496 (Ont. C.A.)
Sale of Goods Act (BC), s. 20
Solway v. Davis Moving & Storage Inc. (2002) 62 O.R. (3d) 522 (C.A.)
Plas Tex Canada Ltd.v. Dow Chemical of Canada Ltd., 2004 ABCA 309
Excuses for Non-Performance
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Duress
Undue Influence
Unconscionability
Illegality
Readings:
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Pao On v. Lau Yiu Long, [1980] A.C. 614 (P.C.)
NAV Canada v. Greter Fredericton Airport Authority Inc. (2008), 290
D.L.R. (4th) 405
Geffen v. Goodman Estate, [1991] 2 S.C.R. 353
Royal Bank of Scotland Plc. V. Etridge (no. 2), [2001] 3 W.L.R. 1021
Morrison v. Coast Finance Ltd. (1965), 54 W.W.R. 257 (B.C.C.A.)
Marshall v. Can Permanent Trust Co. (1968), 69 D.L.R. (2d) 260 (Alta.
S.C.)
Harry v. Kreutziger (1978), 9 B.C.L.R. 166 (C.A.)
Business Practices and Consumer Protection Act (S.B.C. 2004 c. 2) ss. 4 –
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Still v. Minister of National Revenue, [1998] 1 F.C. 549 (C.A.)
Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6
Remedies
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The interests protected
The expectation, reliance, and restitution measures
Quantification
Cost of completion/difference in value
Certainty, causation and remoteness
Aggravated and Punitive Damages
Mitigation
Time of Measurement of Damages
Readings:
- McRae v. Commonwealth Disposals Commission (1951) 84 C.L.R. 377
(Aust H.C.)
- Sunshine Vacation Villas v. Hudson Bay Co. (1984) 58 B.C.L.R. 33 (C.A.)
- Attorney General v. Blake, [2001] 1 A.C. 268 (H.L.)
- Chaplin v. Hinks, [1911[ 2 K.B. 786 (C.A.)
- Groves v. John Wunder Co. (1939), 286 N.W. 235 (Minn. C.A.)
- Jarvis v. Swan Tours, [1973] 1 Q.B. 233 (C.A.)
- Hadley v. Baxendale (1854), 9 Exch. 341
- 514953 B.C. Ltd. (C.o.b. Gold Key Corporation) v. Leung, 2007 BCCA
114; 64 B.C.L.R. (4th) 76.
- Victoria Laundry v. Newman, [1949] 2 K.B. 528
- Koufos v. Czarnikow (The Heron II), [1969] 1 A.C. 350
- Vorvis v. ICBC [1989] 1 S.C.R. 1085
- Wallace v. United Grain Growers, [1997] 3 S.C.R. 701
- Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595
- Fidler v. Sun Life Assurance Co., [2006] 2 S.C.R. 3
- White and Carter (Councils) v. MacGregor, [1962] A.C. 413 (H.L.)
- Semelhago v. Paramadevan, [1996] 2 S.C.R. 415
Liquidated Damages and Equitable Remedies
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Liquidated Damages
Deposits
Forfeitures
Specific Performance
Injunctions
Restraint of Trade
Readings:
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Shatilla v. Feinstein, [1923] 1 W.W.R. 1474
H.R. Clarke Ltd. v. Thermadaire Corporation Ltd., [1976] 1 S.C.R. 319
J.G. Collins Insurance Agencies Ltd. v. Esley, [1978] 2 S.C.R. 916
Stockloser v. Johnson, [1954] All E.R. 630 (C.A.)
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John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 63 O.R. (3d)
304 (C.A.)
Warner Bros v. Nelson, [1937] 1 K.B. 209
Zipper Transportation v. Korstrom (1997) 122 Man R. (2d) 139 (Q.B.);
126 Man. R. (2d) 126 (C.A.)
Shafron v. KRG Insurance Brokers (Western Inc.), 2009 SCC 6