In The Economic Approach to Law, Judge Richard Posner wrote,
Tort cases can be translated into contract cases by recharacterizing the tort issue as finding the implied pre-accident contract that the parties would have chosen had transaction costs not been prohibitive, and contract cases can be translated into tort cases by asking what remedy if any would maximise the expected benefits of the contractual undertaking considered ex ante. [emphasis mine]”
please, can someone simplify the emphasized phrase? and explain in layman terms? it stumps me.
To explain my bewilderment, I cite these damages for mental distress in breach of contract cases. Wouldn’t the tortious remedy just be the award of non-pecuniary damages for inconvenience? But then the tortious remedy would be the same as the contractual remedy - that is, the amount of the non-pecuniary damages? I feel like I mixed something up, and I'm failing to distinguish something!
Chamberlain v. Pro Star Mechanical Technologies Ltd., 2014 BCSC 1931 (CanLII), para 64.
[64] In addition to the other relief sought in this action, the plaintiffs seek an award of non-pecuniary damages for the emotional distress and the loss of enjoyment of life they have suffered as a result of Pro Star’s breach of the Contract.
Hickey's Building Supplies Limited v. Sheppard, 2014 NLCA 43 (CanLII), para 66.
[66] The law respecting awards of general, non-pecuniary damages for mental distress in breach of contract cases is set out in Fidler, where the plaintiff was awarded damages for mental distress found to have foreseeably resulted from an insurer’s breach of her disability insurance contract.
Peters v. Home Depot of Canada Inc., 2023 BCCRT 992 (CanLII), para 32.
Mr. Peters also argues he is entitled to damages under Fidler v. Sun Life Assurance of Canada, 2006 SCC 30. This case addresses “peace of mind contracts,” such as vacations, wedding services, and luxury chattels. When such contracts are breached, a party may have a claim for damages for disappointment or inconvenience. So, I find Mr. Peters is advancing an alternate claim for inconvenience or disappointment.
Shahsavaripour v. Echelon Repairs Ltd., 2024 BCCRT 1269 (CanLII), at para 38.
- Mental distress damages are generally not available for breach of contract. There are two exceptions. First, a party may get significant compensation when the contract’s main purpose was to provide “peace of mind”, such as vacations or wedding photography. Second, a party may get more modest compensation where part of the contract’s purpose was for a “psychological benefit”. In these cases, the party may be compensated for inconvenience and discomfort that goes beyond mere frustration or disappointment (see Fidler v. Sun Life Assurance of Canada, 2006 SCC 30).
Nordberg v 2 Burley Men, 2025 ABCJ 108 (CanLII), at para 163.
[163] As noted by the Court of Appeal in Ruel v Rebonne:[68]
To make an award for mental distress damages for breach of contract a court must be satisfied that (1) an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation: Fidler v. Sun Life Assurance of Canada, 2006 SCC 30 at para 47. Mental security need not be the “dominant aspect” or “very essence” of the bargain: Fidler at para 48.
