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Difference between revisions of "Do You Have a Small Claim? (20:III)"
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Do You Have a Small Claim? (20:III) (view source)
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Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | Contract law governs voluntary relationships between parties. It is a complicated and nuanced area of the law and a person planning to bring a claim in contract should research what must be proven to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | ||
'''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (see ''Faraguna v Storoz'', [1993] BCJ No. 2114). However, ''Transport North American Express Inc. v New Solutions Financial Corp. | '''NOTE:''' Courts will generally not enforce illegal contracts or dishonest transactions (see ''[http://canlii.ca/t/1djfx Faraguna v Storoz]'', [1993] BCJ No. 2114). However, ''[http://canlii.ca/t/1gd53 Transport North American Express Inc. v New Solutions Financial Corp.]'', 2004 SCC 7 states that a court may enforce legal portions of a contract, thus effectively severing the illegal portion. A common example involves contracts purporting to charge interest rates prohibited under s 347 of the ''Criminal Code''. The court will not enforce a term in a contract purporting to charge such a rate. (However, section 347.1 exempts payday loans from criminal sanctions, if certain conditions are met; see [[Direct Sales, Future Performance, and Time Share Contracts (11:V)#G. Regulation of Payday Lenders and Criminal Rate of Interest | Section V.G: Regulation of Payday Lenders and Criminal Rate of Interest]] in Chapter 9: Consumer Protection). | ||
=== 3. Equity === | === 3. Equity === | ||
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=== 4. Restitution === | === 4. Restitution === | ||
The law of restitution (See ''Garland v Consumers' Gas Co.'', 2004 SCC 25; ''Kerr v Baranow'', 2011 SCC 10; ''Skibinski v Community Living British Columbia'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited. The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | The law of restitution (See ''[http://canlii.ca/t/1gzjn Garland v Consumers' Gas Co.]'', 2004 SCC 25; ''[http://canlii.ca/t/2fs3h Kerr v Baranow]'', 2011 SCC 10; ''[http://canlii.ca/t/fpm5g Skibinski v Community Living British Columbia]'', 2012 BCCA 17) applies to circumstances where a party has benefited, the other party has suffered a loss as a result, and there is no legal basis for the party to have benefited. The type of claim commonly pursued for a restitution remedy is referred to as “unjust enrichment” and is a complicated and evolving area of the law. A party planning to attain a restitution remedy should consult a lawyer, research what must be proved to be successful and which defences may be available to the defendant. Resources include CanLII.org, the courthouse library, and a practising lawyer. | ||
=== 5. Statute === | === 5. Statute === | ||
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=== 4. Debt === | === 4. Debt === | ||
Debt is a remedy for breach of contract. See: ''Busnex Business Exchange Ltd. v Canadian Medical Legacy Corp'', 1999 BCCA 78. At paragraph 8, the court addresses the requirements for establishing a debt or liquidated demand: | Debt is a remedy for breach of contract. See: ''[http://canlii.ca/t/5467 Busnex Business Exchange Ltd. v Canadian Medical Legacy Corp]'', 1999 BCCA 78. At paragraph 8, the court addresses the requirements for establishing a debt or liquidated demand: | ||
“A liquidated demand in the nature of a debt, i.e., a specific sum of money due and payable under or by virtue of a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation, beyond mere calculation, then the sum is not a ‘debt or liquidated demand,’ but constitutes ‘damages.’” | “A liquidated demand in the nature of a debt, i.e., a specific sum of money due and payable under or by virtue of a contract. Its amount must either be already ascertained or capable of being ascertained as a mere matter of arithmetic. If the ascertainment of a sum of money, even though it be specified or named as a definite figure, requires investigation, beyond mere calculation, then the sum is not a ‘debt or liquidated demand,’ but constitutes ‘damages.’” | ||
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Under this act, the limitation period depends on the type of claim and who the other party is. A claim may consist of several causes of action and each cause of action may have a separate limitation period. For example, if a claimant waits three years, they may be unable to bring a claim in negligence but may still be able to claim for breach of contract. Litigants should review the ''Old Limitation Act'' to determine which limitation period applies. | Under this act, the limitation period depends on the type of claim and who the other party is. A claim may consist of several causes of action and each cause of action may have a separate limitation period. For example, if a claimant waits three years, they may be unable to bring a claim in negligence but may still be able to claim for breach of contract. Litigants should review the ''Old Limitation Act'' to determine which limitation period applies. | ||
{{REVIEWED LSLAP | date= August 13, 2020}} | |||
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