Last month, in 644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236 ("C.A. reasons"), the Court of Appeal of Alberta seemed to offer conflicting guidance on the assessment of damages for economic loss where a plaintiff has advanced concurrent claims in contract and tort. Upon examination, however, the Court of Appeal's judgment speaks to the fundamental coherence of the two doctrinal frameworks; regardless of which is applied, the same result should follow — in principle, at least.
But that is not what happened here. Instead, in this case, the majority and dissent differed fundamentally in how they understood the nature of the plaintiff's claim, and of the economic loss for which it was seeking damages. The lesson, in our view, is that the outcome of an economic loss case featuring concurrent causes of action is as likely to depend on how the claim is framed as on how the applicable law is argued.
644036 Alberta Ltd. ("644") had a plan. In 2003, it agreed to buy two parcels of land in Grand Prairie from 625494 Alberta Ltd. ("625") for $1.5 million. 644 intended to subdivide one of the parcels — the "Morgan Meadow Lands" — into mixed residential lots. To that end, 644 ultimately borrowed nearly $5 million from Morbank Financial Inc. ("Morbank"). 625 also granted a vendor take-back mortgage for just under $500,000.
Unfortunately, and due to a negligent oversight on the part of 644's solicitor, one of the two titles that comprised the Morgan Meadow Lands was not conveyed from 625 to 644. When the error came to light, 644's solicitor sought to correct it. She was unsuccessful. 644's subdivision plan proceeded, but with a strip of land missing from two of the subdivided lots.
Things deteriorated from there. 644 sold 11 lots. Morbank took 80 percent of the proceeds and partially discharged its mortgage. 625 similarly provided partial discharges with each of the 11 lot sales. But, before development could begin, 644 ran out of money. Morbank began foreclosure proceedings. 644 tried to sell additional lots to keep afloat — including the two lots that did not actually exist, because title never transferred from 625 to 644 — but 644 could not close the deals after 625 refused to provide further partial discharges of its vendor take-back mortgage. Morbank completed its foreclosure, and the lands were judicially sold.
644 brought claims in tort and contract against its (now former) lawyer. It succeeded at trial: 644036 Alberta Ltd. v. 625494 Alberta Ltd., 2016 ABQB 597 ("trial reasons"). In assessing damages, the trial judge took the original purchase price of $1.5 million and calculated the proportion thereof that could be attributed to the two lots that, due to the solicitor's negligence, were never entirely conveyed from 625 to 644. This produced a damages quantum of $67,500: 2017 ABQB 303.
Disappointed with the amount, 644 appealed. A majority of the Court of Appeal of Alberta (per Macdonald and Veldhuis JJ.A.) allowed the appeal and increased the trial judge's damages award to $755,207: C.A. reasons, at para. 51. Watson J.A. dissented; he would have let the trial judge's assessment stand: C.A. reasons, at para. 79.
The Court of Appeal majority
For Macdonald and Veldhuis JJ.A., this case was about remoteness — the principle that damages will not be recoverable where "the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable": Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 12. The trial judge erred, according to the majority, in determining damages based on the value of the un-conveyed lots at the time 644 purchased them. Instead, the proper measure was the sum of the lots' subdivided values. The parties agreed that these were $666,270 for one and $190,931 for the other: C.A. reasons, at para. 46.
The trial judge had held that "the time for assessing the loss suffered by the Plaintiff is the time of the failure to properly transfer the land" (trial reasons, at para. 40), because "market conditions, including economic, social and political factors, change rapidly and, on occasion, without warning": trial reasons, at para. 39. To the trial judge — as the Court of Appeal majority read his reasons — these market forces meant that 644 was not entitled to recover an amount that reflected the appreciation in value that had resulted from events that post-dated the solicitor's failure to convey the second land title. The loss to 644 that corresponded to this appreciation in value was, on the trial judge's reasoning, too remote from the solicitor's breach to hold the solicitor fairly liable.
For the Court of Appeal majority, this was unsatisfactory: "[644's solicitor] ought to have known at the time that if she failed to ensure that all the titles were transferred to , then  would not receive the full value of the subdivision": C.A. reasons, at para. 43. Since it was reasonably foreseeable to 644's lawyer that a negligent failure to convey the second title would result in a loss to 644 once the lands had been subdivided, the majority held, it was fair to hold the lawyer liable for the lost value at the time of subdivision, rather than at the time of purchase.
Having concluded that the appeal should be allowed on this basis, the Court of Appeal majority offered obiter commentary on the doctrine governing recovery in contract for loss of opportunity. 644 had pursued this line of argument on appeal. Relying on the Court of Appeal of Alberta's judgment in Strategic Acquisition Corp. v. Starke Capital Corp., 2017 ABCA 250, 644 argued that, had its lawyer not breached her contract with 644, the company would have acquired the missing land title and therefore had the opportunity to include it in their subdivision. Strategic teaches that, where the plaintiff has lost the chance to pursue a course of action that would have yielded positive returns, a defendant may be held liable for the amount of the unrealized gain, discounted by the probability that it would have materialized: see Strategic, at paras. 65, 68, and 70; C.A. reasons, at para. 48.
The Court of Appeal majority determined that, in this case, the loss of opportunity doctrine had no application, since "there was no evidence that the subdivision was uncertain or there was a chance that the subdivision may not happen": C.A. reasons, at para. 50. In other words, 644 was entitled to recover against its former solicitor not because it had lost the chance to subdivide the affected lots, but rather because it suffered a reasonably foreseeable loss as a consequence of being unable to capture the subdivided value. No speculation was necessary, and therefore no discount applied.
Watson J.A., dissenting
The dissenting judge in the Court of Appeal came to a different conclusion. Watson J.A. was satisfied that "the trial judge found that the loss of opportunity to profitably resell the land in the form of the reconfigured lots was not a result of the lawyer's negligence or breach of contract" (C.A. reasons, at para. 70), because "the lawyer's failings had no proven impact on the failure of the overall development.... [and] [t]he failure of the development was the real cause of any loss in lot values to ": C.A. reasons, at para. 74. In this regard, Watson J.A. accepted the lawyer's argument that:
 did not prove it was, or would realistically have been in 2004 or 2006, in a position to sell the proposed re-configured lots at the hoped price but for the breach. Also any chance in 2007 to sell the lots which were to be created from Lot 56 had no practical value to the land then as  could not discharge the Vendor Take Back Mortgage encumbrance for reasons again unrelated to the breach.
C.A. reasons, at para. 75 (emphasis added). Adopting the language of the lost opportunity cases, Watson J.A. concluded that the trial judge "was not persuaded that there had been a 'demonstration that the lost opportunity was sufficiently real and significant to rise above mere speculation'", such that 644 could recover more than the amount of the original purchase price attributable to the titles that its lawyer never conveyed: C.A. reasons, at para. 79, quoting Strategic, at paras. 76-77; see also Folland v. Reardon (2005), 74 O.R. (3d) 688 (C.A.), at paras. 73-74; Kipfinch Developments Ltd. v. Westwood Mall (Mississauga) Ltd. (2008), 50 B.L.R. (4th) 233 (Ont. S.C.), at para. 114.
6440036 Alberta Ltd. illustrates some of the hazards of hypothetical reasoning in concurrent tort and contract claims. Ultimately, the Alberta courts had to decide what, precisely, 644 had lost at the time of its solicitor's breach. The Court of Appeal majority determined that 644 had been deprived of the eventual subdivided value of the lots affected by the solicitor's failure to convey the second land title. According the trial judge and Watson J.A., by contrast, 644 had failed to prove that it ever actually would have pocketed the lots' subdivided value but for the solicitor's breach. Its damages were therefore limited to what would have been required to make it whole at the moment of the solicitor's breach — namely, that portion of the original purchase price that could be attributed to the affected lots.
What makes the case interesting is the concurrency of the tort and contract claims. 644's reliance on Strategic, and its assertion that its lawyer's breach had deprived it of the opportunity to benefit from the lots' subdivision, raised the possibility that the appropriate measure of damages could be different in tort than in contract. This is because, as the Court of Appeal for Ontario noted in Cassels Brock & Blackwell LLP v. Trillium Motor World Ltd., 2017 ONCA 544, "[t]he question whether an action for damages for a lost chance sounds in tort is unsettled under the current Canadian jurisprudence", while "the doctrine of lost chance in contract law has been expressly recognized both in Canada and England": at para. 261; see also Fraser Park South Estates Ltd. v. Lang Michener Lawrence & Shaw, 2001 BCCA 9, at paras. 45-46, per Southin J.A., dissenting. Where, as here, a plaintiff advances both tort and contract claims against a negligent solicitor, damages for loss of chance are available: Cassels Brock, at para. 263, citing Allied Maples Group Ltd. v. Simmons & Simmons (a firm),  EWCA Civ 17. But whether this is so by virtue of the contract claim only, or both the contract claim and the tort claim, is uncertain.
Since proof of damage is "part of the liability inquiry" in tort but not contract (Cassels Brock, at para. 262), one may argue that a tort plaintiff who proves an injury that "depend[s] on someone or something other than the plaintiff himself or herself" (Folland, at para. 73) has not discharged the plaintiff's burden of establishing damages on a balance of probabilities. In contract, by contrast, "the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages for his breach of contract": Webb & Knapp (Canada) Limited et al. v. City of Edmonton,  S.C.R. 588, at p. 600, quoting Chaplin v. Hicks,  2 K.B. 786 (C.A.), at p. 792, per Vaughan Williams L.J.
Here, the Court of Appeal majority and dissent approached the same underlying factual question — but for the solicitor's breach, would 644 have received the subdivided value of the lots? — through these different analytical frameworks. Macdonald and Veldhuis JJ.A. approached the issue as a matter of tort law. They applied the principle of remoteness, and asked whether the claimed loss (i.e., the lots' subdivided value, less 644's share of the foreclosure proceeds) flowed from the solicitor's breach, rather than from subsequent decisions and circumstances: C.A. reasons, at para. 43; see Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, at para. 141, per McLachlin C.J., dissenting but not on this point. Watson J.A., by contrast, applied contract law principles. He considered the question in terms of whether 644 had been denied a "sufficiently real and significant" opportunity to benefit from the subdivision of the lots, such that it could recover in contract for the value of that lost opportunity: C.A. reasons, at para. 76-79; see Strategic, at paras. 76-77. They came to opposite answers; the majority held that, on the evidence, 644's loss of the subdivided value of the lots was reasonably foreseeable and thus recoverable, while Watson J.A. bound himself to the trial judge's finding that the same loss was too speculative to constitute a compensable lost opportunity.
Though they differ in principle, the rival approaches applied by the Court of Appeal majority and Watson J.A., respectively, should produce the same result in practice. A loss that is too remote to support liability in tort should also be too speculative to support contract damages for loss of chance, and vice versa: see B.D.C. Ltd. v. Hofstrand Farms Ltd.,  1 S.C.R. 228, at pp. 243-44, citing Asamera Oil Corp. v. Sea Oil & General Corp.,  1 S.C.R. 633. Consider the "commendably Albertan example" (Deloitte & Touche, at para. 90) offered by Lord Hoffmann in South Australia Asset Management Corp. v. York Montague Ltd.,  UKHL 10 ("SAAMCO"), at para. 19:
A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.
If the hiker were to bring concurrent tort and contract claims against the doctor, neither would succeed. In tort, the climber's injury would be deemed too remote to justify recovery; it would be attributed to his choice to go hiking, not to the doctor's misdiagnosis. In contract, the mountaineer would not be compensated for having lost the opportunity to avoid the injury, since his independent choice to risk the hazards of hiking would make it impossible for him to "demonstrate that the outcome ... depended on someone or something other than the plaintiff himself or herself": Folland, at para. 73.
The "SAAMCO principle", as it has been developed and applied in the U.K. courts, reflects this insight, which is reflected both in tort doctrine and in contract law. It requires a court to differentiate the full panoply of but-for consequences of a professional's negligence from the loss flowing from the professional's breach — i.e., the loss against which the professional undertook to protect the plaintiff. Economic loss will only be compensable when it "flowed from the right thing, i.e. from the particular feature of the defendant's conduct which made it wrongful": Hughes-Holland v. BPE Solicitors,  UKSC 21, at para. 38, per Lord Sumption; see also SAMMCO, at para. 18, per Lord Hoffmann; The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2016 BCCA 371, at para. 106; Hogarth v. Rocky Mountain Slate Inc., 2013 ABCA 57, at para. 38, per Slatter J.A. Otherwise, the loss will be too remote, i.e., beyond the scope of the defendant's duty of care: see BPE, at para. 38, per Lord Sumption; Deloitte & Touche, at paras. 139-40, per McLachlin C.J., dissenting.
The way to draw the distinction contemplated in SAAMCO is to measure the difference between the loss suffered in reliance on the professional's undertaking and the loss that would have been sustained if defendant had not breached its duty to the plaintiff: see Aneco Reinsurance Underwriting Limited v. Johnson & Higgins Ltd.,  UKHL 51, at para. 66, per Lord Millett, dissenting but not on this point. Doing so allows the court to strip out loss that is attributable not to the defendant's breach but to "alternate and unrelated sources", such as a fall in the market: Deloitte & Touche, at para. 90; see also SAAMCO, at para. 32, per Lord Hoffmann. This ensures that a defendant is not held liable for economic loss that would have arisen even if it had satisfied its duty to the plaintiff: see Nykredit Mortgage Bank plc v. Edward Erdman Group Ltd.,  1 W.L.R. 1627 (H.L.), at p. 1631, per Lord Nicholls.
In this case, the question is what loss 644 would have suffered even if its solicitor had conveyed the two missing titles. The trial judge made findings in this regard, at para. 33 of his reasons:
Although the lands were originally obtained by the Plaintiff to develop, the failure to transfer the two lots did not cause the failure of the development contemplated by . Any suggestion that it was is merely speculative. There were a number of reasons that caused this development to fail. An inability to obtain proper financing appears to have been the primary reason. This in no way was connected to the negligent action. [644's former president] was clear in his answers when discovered that the failure to transfer the two lots did not cause the development to fail.
Put differently, 644 lost money not because its solicitor failed to convey the titles, but because 644's own plan to subdivide the Morgan Meadows Lands failed. Recall how the project ended. 644 ran out of financing. Morbank called its loan. 625 refused to provide the partial discharges of its vendor take-back mortgage that would have allowed 644 to sell additional lots for cash: see trial reasons, at paras. 72-75. Hence the solicitor's submissions, on appeal, that "the claim for loss of opportunity was inconsistent with the evidence as  did not and could not market the land on the date of subdivision or sell the effected lots for unrelated reasons", and that "awarding damages for loss of opportunity would put  in a superior position than it would have been absent the breach (and given the failed development)": C.A. reasons, at para. 32.
The Court of Appeal majority and Watson J.A. parted company over how these facts mattered. Though he framed his reasons in the language of the loss-of-opportunity doctrine, Watson J.A. effectively applied a variation on the SAAMCO principle. At para. 74, he said:
The trial judge found that the lawyer's failings had no proven impact on the failure of the overall development. There is no palpable and overriding error in this. The failure of the development was the real cause of any loss in lot values to . The question of whether, nonetheless, the loss could probably have been avoided by  but for the lawyer's fault and prior to the failure of the development is central to the debate here.
For Macdonald and Veldhuis JJ.A., however, 644 "[did] not need ... to establish that it was reasonably foreseeable in November 2004 that [it] would sell the land at the time of subdivision or at any other particular time", since "[i]t [was] not the sale, but the subdivision itself that materially increased the value of the land": at para. 44.
These lines of reasoning are ships passing in the night. Watson J.A. took 644's claim — framed as one for loss of opportunity — as seeking damages for what it lost when the Morgan Meadow Lands development failed. The majority, meanwhile, took 644 to be claiming the value of what it would have owned, prior to the foreclosure sale, but for its solicitor's negligence, namely, the subdivided value of the two affected lots.
SAAMCO can support either of these mutually exclusive outcomes. What matters is how one characterizes the economic loss that 644 was seeking to recover. If 644 was claiming the loss caused by the failure of the project, then Watson J.A. was correct; neither tort law nor contract law would permit the attribution of the losses claimed to the solicitor's breach. But if, instead, 644 was claiming the value of what it would have owned but for the solicitor's failure to convey the titles, then the majority was right to bring the full value of the subdivided lots into the equation.
On the majority's view, then, 644 should have held title to the entirety of the two lots upon subdivision — and would have, but for its solicitor's breach. If title had, in fact, been conveyed, the amount that would have been credited to 644 upon foreclosure in respect of the two lots would have been $857,201: C.A. reasons, at para. 46. Instead, 644 was credited with $102,000: ibid. The full difference of $755,207 was attributable to the fact that title had not transferred, i.e., to the solicitor's breach. Awarding this amount to 644 in damages, as Macdonald and Veldhuis JJ.A. did, was thus consistent with SAAMCO.
644036 Alberta Ltd. teaches that, in seeking to recover economic loss in tort or in contract, a plaintiff must be precise in how it characterizes the loss at issue. Despite appearances, this appeal did not come out the way because the majority relied on the tort principles of reasonable foreseeability and remoteness while the dissent depended on the contract law approach to lost opportunity. Rather, 644 prevailed because neither Macdonald or Veldhuis JJ.A. joined Watson J.A. in viewing 644's claim as being for the amount it lost on the subdivision project, instead of for the loss of land value it suffered upon subdivision.
We make two concluding observations.
First, the Court of Appeal majority's math is suspect. At para. 27 of their reasons, Macdonald and Veldhuis JJ.A. stated that "[t]he parties agreed that the combined value of [the two lots] as of [the date of subdivision] was $857,207". Accordingly, at para. 30, the majority wrote that:
 claims damages in the amount of the net loss of $754,207, being the difference between the market value of [the two lots] on the date that the subdivision plan was approved, less the amount of $103,000 credited to  for those two lots upon foreclosure.
But, at para. 46, the majority concluded that:
The parties agreed that the subdivided value of [the two lots] was $666,270 and $190,931 respectively. After considering the amount that the appellant received from the foreclosure process ($102,000), the appellant is entitled to damages in the amount of $755,207.
These numbers do not match. There are two discrepancies. First, the combined value of the lots at subdivision, according to para. 46, was $857,201, not $857,207 as para. 27 suggests. Para. 46 is consistent with the trial judgment in this regard: see trial reasons, at paras. 58-59. Since the majority does not account for this $6 difference — which reappears in the final damages tabulation at the end of para. 46 — we assume that it is a typo. More significant, however, is the $1,000 difference between the amounts said to have been credited to 644 upon foreclosure at para. 30 ($103,000) and at para. 46 ($102,000). Neither figure appears in the trial judgment. Depending on which is correct, the majority either awarded 644 $1,007 too much or $993 too little.
Second, either Morbank or 644's guarantors may have a claim to the entire amount of 644's damages award. 644 presumably borrowed against the full value of the lands when it obtained nearly $5 million in financing from Morbank: see trial reasons, at para. 69. Morbank received 80 percent of the proceeds of the sale of the first 11 lots in the Morgan Meadow Lands (trial reasons, at para. 71), and then another $4.5 million when the remaining lands were judicially sold: trial reasons, at para. 81. It then obtained judgment for just over $1 million against 644's guarantors — an amount reflecting 644's residual indebtedness after the foreclosure proceeding.
The $755,201 to which 644 is entitled on the Court of Appeal majority's reasoning reflects the subdivided value of the lots — i.e., the value against which 644 borrowed funds from Morbank. 644 has already had the benefit of those borrowed funds. When Morbank foreclosed on the lands, however, it did not recoup the full subdivided value of the lots. 644 never held undivided title to the two lots in issue, so their combined value in foreclosure was either $102,000 or $103,000, not $857,201. It seems highly plausible that the difference of either $755,201 or $754,201 would have gone to Morbank, not to 644, after the judicial sale, though 644 would have been credited for that amount in addition to the $102,000 or $103,000 that it actually was. But, like the amount that it was, in fact, credited, the additional amount would not have been paid to 644 in cash; it would have been deducted from 644's outstanding debt obligation to Morbank, and thus reduced the deficiency for which Morbank ultimately obtained judgment against 644's guarantors.
It follows that, once 644 receives these funds from its former solicitor, Morbank will have an arguable claim to them, to satisfy part of the outstanding deficiency. And, if 644's guarantors have already paid Morbank for 644's outstanding indebtedness, then it is possible that the funds from 644's ex-lawyer should end up in the guarantors' hands, not Morbank's. Based on the information contained in the trial and appeal judgments, however, we are unable to be more definitive about whether this is so.
Why does all of this matter? Because the relative complexity of this post-foreclosure reconciliation may help to explain why the Court of Appeal majority and dissent saw this case differently. Macdonald and Veldhuis JJ.A. did not consider the effect of the foreclosure and judicial sale on who should ultimately end up with the $755,2017 they awarded to 644. Watson J.A., meanwhile, seems to have focused on the fact that the lots in question had been sold and the proceeds used to repay Morbank — which is why, unlike the majority, he considered the loss claimed by 644 to be what it lost when the project failed, i.e., what led to the foreclosure.
Again, the bottom line is clear. Where recovery for economic loss is concerned, doctrinal distinctions between tort and contract matter less than the framing of the claim does. Clarity about the nature of the loss for which compensation is sought can make all the difference.
Adam Goldenberg is a member of McCarthy Tétrault's National Appellate Litigation Group and an Adjunct Professor of Law at the University of Toronto, where he teaches appellate practice and procedure. Madeline Lisus is a J.D. candidate at the University of Toronto Faculty of Law and was a summer student at McCarthy Tétrault in 2018.
644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236
Date of Decision: June 29, 2018
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