Hyperlawhypertext legal database Elsley v. J.G. Collins Ins. Agencies [1978] 2 SCR 916

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Elsley v. J.G. Collins Ins. Agencies

[1978] 2 SCR 916 Court SCC Decision date 1978-03-07 English

PartiesLorna P. Elsley, Executrix of the Estate of Donald Champion Elsley (Defendant) Appellant·J.G. Collins Insurance Agencies Limited (Plaintiff) Respondent

Counsel (4)
G.J. Smith, Q.C., for the appellant.
R.A. O’Donnell and R.F.L. Rose, for the respondent.
Solicitors for the appellant: Weir & Faulds, Toronto.
Solicitors for the respondent: Fitzpatrick, O’Donnell & Poss, Toronto.

Judges Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Pratte, Yves

Delivered by Judgment of the Court

On appeal from Ontario

Subjects Contract

Contents

Judgment of the Court

The judgment of the Court was delivered by

Where a fixed sum is stipulated as and for liquidated damages upon a breach, the covenantee must elect with respect to that breach between these liquidated damages and an injunction.
If he elects to take the liquidated damages stipulated he may recover that sum irrespective of his actual loss.
Where the stipulated sum is a penalty he may only recover such damages as he can prove, but the amount recoverable may not exceed the sum stipulated.
If he elects to take an injunction and not the liquidated sum stipulated, he may recover damages in equity for the actual loss sustained up to the date of the injunction or, if tardy, up to the date upon which he should have sought the injunction, but in either case, not exceeding the amount stipulated as payable upon a breach.
Where a liquidated damages sum is stipulated as payable for each and every breach, the covenantee may recover this sum in respect of distinct breaches which have occurred and he may also be granted an injunction to restrain future breaches.

Footnotes

  1. [1] (1976), 13 O.R. (2d) 177
  2. [2] (1974), 18 C.P.R. (2d) 1187.
  3. [3] [1916] 1 A.C. 688.
  4. [4] [1974] 1 All E.R. 117.
  5. [5] [1935] S.C.R. 412.
  6. [6] [1894] A.C. 535.
  7. [7] [1913] A.C. 724.
  8. [8] [1920] 3 K.B. 571.
  9. [9] [1966] 3 All E.R. 347.
  10. [10] [1965] 1 W.L.R. 1366.
  11. [11] (1969), 113 Sol. J. 563.
  12. [12] [1921] 2 A.C. 158.
  13. [13] [1972] 1 W.L.R. 1423.
  14. [14] [1963] 2 O.R. 62.
  15. [15] [1954] 2 D.L.R. 170.
  16. [16] [1927] 1 K.B. 637.
  17. [17] (1877), 4 Ch.D. 636.
  18. [18] (1888), 40 Ch.D. 112.
  19. [19] (1900), 27 O.L.R. 339.
  20. [20] [1902] 1 K.B. 377.
  21. [21] [1976] 1 S.C.R. 319.
  22. [22] [1933] A.C. 20.
  23. [23] (1807), 1 Camp. 78.
  24. [24] [1936] 2 All E.R. 515.