If you are logged in as a member or a registered academic, you will see a hyperlink to download the paper for Absolutely free. V. British Columbia Hydro and Power Authority, 1993 CanLII 145 (SCC), 1993 1 S.C.R. 12 and Cognos, that breach of pre-contractual representations may possibly be actionable as each a breach of contract and negligent misrepresentation, with clear exceptions arising from the express terms of the contract. This conclusion possessing been reached, one particular would expect that the quantum of damages in tort and contract would be comparable because the elements of the bargain unrelated to the misrepresentation are reintroduced.
Even though I would not question the conclusions reached in any of these judgments, I am of the view that inquiring into such matters as whether or not the defendant had expertise of the plaintiff (or class of plaintiffs) and whether or not the plaintiff applied the statements at situation for the unique transaction for which they have been provided is, in reality, nothing a lot more than a implies by which to circumscribe – for factors of policy – the scope of a representor’s potentially infinite liability.
Viewed therefore, the only limit on the right to select one’s action is the principle of primacy of private ordering – the appropriate of individuals to arrange their affairs and assume risks in a diverse way than would be carried out by the law of tort. The initial class of case arises where the contract stipulates a far more stringent obligation than the basic law of tort would impose.
The essential importance of this added criterion can clearly be seen when 1 considers that even if the particular identity or class of potential plaintiffs is identified to a defendant, use of the defendant’s statement for a goal or transaction other than that for which it was prepared could still lead to indeterminate liability. The second partnership is one particular in which the contract stipulates a reduced duty than that which would be imposed by the law of tort.
In our view, the basic rule emerging from this Court’s selection in Central Trust Co. v. Rafuse 1986 CanLII 29 (SCC), (1986), 31 D.L.R. (4th) 481, 1986 2 S.C.R. 147, 34 B.L.R. 187, is that exactly where a provided wrong prima facie supports an action in contract and in tort, the celebration could sue in either or both, except where the contract indicates that the parties intended to limit or adverse the right to sue in tort.