11F232 Breach of Contract: Generally—Notice of Civil Claim

British Columbia Court Forms, 2nd Ed.

British Columbia Court Forms > CHAPTER 11 - PLEADINGS > Forms and Notes > Precedents:
Contract

CHAPTER 11 - PLEADINGS

Forms and Notes

Precedents: Contract

11F232 Breach of Contract: Generally—Notice of Civil Claim

[Style of Proceeding]

NOTICE OF CIVIL CLAIM

This action has been started by the plaintiff for the relief set out in Part 2 below.

If you intend to respond to this action, you or your lawyer must

(a) file a response to civil claim in Form 2 in the above-named registry of this court within the time for response
to civil claim described below, and
(b) serve a copy of the filed response to civil claim on the plaintiff.

If you intend to make a counterclaim, you or your lawyer must

(a) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this
court within the time for response to civil claim described below, and
(b) serve a copy of the filed response to civil claim and counterclaim on the plaintiff and on any new parties
named in the counterclaim.

JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the
time for response to civil claim described below.

Time for response to civil claim

A response to civil claim must be filed and served on the plaintiff,

(a) if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service,
(b) if you were served with the notice of civil claim anywhere in the United States of America, within 35 days
after that service,
(c) if you were served with the notice of civil claim anywhere else, within 49 days after that service, or
(d) if the time for response to civil claim has been set by order of the court, within that time.

Claim of the Plaintiff

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11F232 Breach of Contract: Generally—Notice of Civil Claim

Part 1: STATEMENT OF FACTS

1. [Set out preliminary averments.]1

[Particulars of contract; claim based on agreement in writing:]

2. The Plaintiff and the Defendant entered into an agreement in writing dated [day/month/year] at [state place] for
[state purpose of agreement].

[Particulars of contract; claim based on agreement contained in several documents:]

2. The Plaintiff and the Defendant entered into an agreement in writing for [state purpose of agreement]. The
agreement is contained in the following documents:
(a) [Set out, in separate sub-paragraphs, the documents which constitute the contract, including: dates,
parties and other material particulars.]2

[Particulars of contract; claim based on oral agreement:]

2. On or about [day/month/year] at [state place] the Plaintiff and the Defendant entered into an oral agreement for
[state purpose of agreement]. The agreement arises from the following interviews [or discussions] between the
Parties:
(a) [Set out, in separate paragraphs, the conversations constituting the contract, including: dates, parties,
places where the interviews or discussions took place and the purport of the discussions.]3

[Particulars of contract; claim based on agreement made partly orally, partly in writing and partly by conduct:]

2. The Plaintiff and the Defendant entered into an agreement for [set out purpose of contract]. The agreement was
made partly orally, partly in writing and partly by conduct, particulars of which are as follows:
(a) Insofar as the agreement was made orally, the agreement was made in the following interviews [or
discussions]:
(i) [Set out, in separate sub-paragraphs, the discussions, including: dates, parties, places where inter
views or discussions took place and the purport of the discussions.]4
(b) Insofar as the agreement was made in writing, the agreement is contained in or is to be inferred from the
following documents:
(i) [Set out, in separate sub-paragraphs, the documents including: dates, parties and other material
particulars.]
(c) Insofar as the agreement arises from the conduct of the parties, that conduct consists of the following:
(i) [Set out, in separate sub-paragraphs, particulars of conduct relied on.]

3. [Set out material terms of the contract, showing consideration.]

[Where breach of the implied term of contractual good faith alleged:]

4. It was an implied term of the agreement that the Defendant would act in good faith in relation to [set out
contractual conduct to which duty is alleged to attach, typically involving acts requiring co-operation of the parties in
order to achieve the objects of the contract; the exercise of a discretionary power by the defendant under the
contract, or a provision by which the defendant sought to evade contractual duties] and to not act in an honest,
candid, forthright or reasonable manner in in relation to those aspects of contractual performance.5
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11F232 Breach of Contract: Generally—Notice of Civil Claim

5. [Set out acts or conduct constituting breach of contract, including where alleged, breach of the conduct that
shows that the defendant did not act in a candid, forthright, or reasonable manner.]6

6. As a result of the Defendant’s breach of contract, the Plaintiff has suffered [and continues to suffer] loss and
damage, particulars of which are as follows:
(a) [Set out, in as many sub-paragraphs as necessary, particulars of damages claimed including, where
special damages are claimed, both the amount of loss and damage suffered and how that amount is made
up and calculated.]7

Part 2: RELIEF SOUGHT

1. The Plaintiff claims general damages.8

2. The Plaintiff claims special damages.9

3. The Plaintiff claims interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.

4. The Plaintiff claims costs.

5. [Set out other relief claimed].10

Part 3: LEGAL BASIS

1. The Defendant breached a contract with the Plaintiff.

Plaintiff’s address for service: [Set out the street address of the address for service. One or both of a fax number
and an email address may be given as additional addresses for service.]

Fax number address for service (if any): [fax number]

E-mail address for service (if any): [email address]

Place of trial: [place name]

The address of the registry is: [address]

Date: [day/month/year]

______________________

Signature of

[ ] Plaintiff [ ] lawyer for Plaintiff

[type or print name]

Rule 7-1 (1) of the Supreme Court Civil Rules states:

(1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within
35 days after the end of the pleading period,
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11F232 Breach of Contract: Generally—Notice of Civil Claim

(a) prepare a list of documents in Form 22 that lists

(i) all documents that are or have been in the party’s possession or control and that could, if available, be used by
any party at trial to prove or disprove a material fact, and

(ii) all other documents to which the party intends to refer at trial, and

(b) serve the list on all parties of record.

[The following information is provided for data collection purposes only and is of no legal effect.]

Appendix

Part 1: CONCISE SUMMARY OF NATURE OF CLAIM:

The Plaintiff’s claim is against the Defendant for damages for breach of contract.

Part 2: THIS CLAIM ARISES FROM THE FOLLOWING:

[Check one box below for the case type that best describes this case.]

A personal injury arising out of:

[] a motor vehicle accident
[] medical malpractice
[] another cause

A dispute concerning:
[] contaminated sites
[] construction defects
[] real property (real estate)
[] personal property
[] the provision of goods or services or other general commercial matters
[] investment losses
[] the lending of money
[] an employment relationship
[] a will or other issues concerning the probate of an estate
[] a matter not listed here

Part 3: THIS CLAIM INVOLVES:

[Check all boxes below that apply to this case]

[] a class action
[] maritime law
[] aboriginal law
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11F232 Breach of Contract: Generally—Notice of Civil Claim

[] constitutional law
[] conflict of laws
[] none of the above
[] do not know

The Court Order Interest Act, R.S.B.C. 1996, c. 79.

GENERAL NOTES

1. The following rules of pleading apply to an action for breach of contract:

(a) The formation of the contract:
(i) The pleadings should state the material facts relating to the formation of the contract including: the
parties, the date, the place where the contract was made (if relevant), and how the contract was
made, orally, in writing, under seal or otherwise;
(ii) Documents should be identified. Where the contract was made orally, or is to be inferred by conduct,
the contract should be alleged as a fact followed by particulars of the conversations or conduct relied
upon;
(iii) Where the contract is contained in a document or conversation the effect of the document or the
purport of the conversation should be stated but the precise words should not be set out unless
material: Rule 3-7(2);
(iv) If the contract was not made under seal, the consideration should be stated;
(v) Performance of a condition precedent is implied under Rule 19(4). Where the plaintiff has not
performed a condition precedent and has a good reason for not doing so, he should plead the
condition precedent, its non-performance, and the facts justifying the non-performance. Although this
may appear to anticipate the defence, if the plaintiff does not plead the non-performance, due
performance will be implied by Rule 3-7(4) and a false issue raised;
(b) The material terms of the contract:
(i) Only the material terms or covenants of the contract should be pleaded. Where there are several
terms, some of which have been breached and others not, the plaintiff should refer only to the terms
breached by the defendant;
(ii) If the terms of the contract which have been breached contain exceptions or provisos which qualify
the defendant’s liability, they should be pleaded. It is bad pleading to imply that the contract is
absolute when it is not;
(c) The breach:
(i) Whenever possible, the breach should be alleged using the words of the contract. As a rule, the
words “and” and “all” in the contract should be changed to “or” and “any.” For example, the breach of
condition that the defendant “repair and deliver” the plaintiff’s motor vehicle would be alleged as
follows: the defendant failed to repair or deliver the motor vehicle. The breach of a term that a
defendant failed to deliver certain goods would be alleged: the defendant failed to delivery any of the
goods. Generally, the rules applying to traversing in a statement of defence apply to pleading a breach
of contract. See Denials at 11F50 and 11F51;
(ii) If the contract requires the defendant to do more than one thing, or to do one or other of two things,
the plaintiff must state expressly that the defendant has done none of them or state precisely what and
how much he has done. For example, if the contract provides that the defendant pay to the plaintiff
$1,000, the plaintiff must allege that the defendant has not paid the $1,000 or any part thereof;
(iii) Full particulars of the breach should be pleaded;
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11F232 Breach of Contract: Generally—Notice of Civil Claim

(d) Damages:
(i) On proof of a contract and breach of it, the plaintiff is entitled to a judgment for a nominal sum of
damages. It is sufficient to state generally that the plaintiff has suffered damage, and if general
damages are claimed their amount must not be pleaded: Rule 3-7(14);
(ii) If special damages are claimed, they should be specifically pleaded, with full particulars provided. The
distinction of damages between “general” and “special” is of less significance in a contract claim than
in a tort claim: Brown v. Hope, [1912] B.C.J. No. 48, 2 W.W.R. 153, 17 B.C.R. 220, 2 D.L.R. 615
(C.A.). What is important is that a claim for damages, to the extent that they can be calculated and
determined in advance of judgment, be particularized in the pleadings in such a way as to disclose
their quantum. In many cases, there may be conceptual issues concerning whether contract damages
which admit to pre-trial quantification are “general” or “special,” and that concern may be met by
particularizing the quantum of damages in the pleading, and claiming “general and special damages” in
the prayer for relief, leaving it to the adverse party to determine whether a particularized damage claim
is for general or special damages. The distinction between the two is of relevance only in the context of
prejudgment interest. What are, conceptually, general damages, may be treated as special damages
for purposes of an award of prejudgment interest under the Court Order Interest Act. For a further
explanation of this dichotomy, see note 3 to this precedent.

Footnote(s)

1 The preliminary averments identify the parties to the action and set out the circumstances giving rise to the cause of
action. For precedents see preliminary averments at 11F3 to 11F20.

2 The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated
briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are
themselves material: Rule 3-7(2).
3 The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated
briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are
themselves material: Rule 3-7(2).
4 The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated
briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are
themselves material: Rule 3-7(2).
5 The category of contracts that require good faith performance is no longer limited to contracts of employment,
insurance contracts, and franchise agreements. In Bhasin v. Hrynew, [2014] S.C.J. No. 71, [2014] 11 W.W.R. 641,
2014 SCC 71, at para. 33, Cromwell J., for a unanimous court, wrote:

In my view, it is time to take two incremental steps in order to make the common law less unsettled and
piecemeal, more coherent and more just. The first step is to acknowledge that good faith contractual performance
is a general organizing principle of the common law of contract which underpins and informs the various rules in
which the common law, in various situations and types of relationships, recognizes obligations of good faith
contractual performance. The second is to recognize, as a further manifestation of this organizing principle of good
faith, that there is a common law duty which applies to all contracts to act honestly in the performance of
contractual obligations.
In Bhasin v. Hrynew, supra, the court wrote at para. 47:

There have been many attempts to bring a measure of coherence to this piecemeal accretion of appeals to good
faith. ... By way of example, Professor McCamus [in J. D. McCamus The Law of Contracts (2nd ed. 2012)] has
identified three broad types of situations in which a duty of good faith performance of some kind has been found to
exist: (1) where the parties must cooperate in order to achieve the objects of the contract; (2) where one party
exercises a discretionary power under the contract; and (3) where one party seeks to evade contractual duties. ...
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11F232 Breach of Contract: Generally—Notice of Civil Claim

The duty of good faith may now be invoked “in widely varying contexts” and that “calls for a highly context-specific
understanding of what honesty and reasonableness in performance require so as to give appropriate consideration to
the legitimate interests of both contracting parties.” As an example, the general organizing principle of good faith
would likely have different implications in the context of a long-term contract of mutual co-operation than it would in a
more transactional exchange: Bhasin v. Hrynew, supra, at para. 69.
For a recent British Columbia decision that discusses the decision in Bhasin v. Hrynew, supra,; see 0856464 B.C. Ltd.
v. TimberWest Forest Corp., [2014] B.C.J. No. 3170, 2014 BCSC 2433, at paras. 161-169. This is followed by a useful
discussion of other cases that involve issues of good faith or the lack thereof:

[170] The need for a careful consideration of the facts was articulated in Gateway Realty Ltd v Arton Holdings,
[1991] N.S.J. 362 where Kelly J. said at paragraph 60:
60 What will constitute bad faith or breach of the conduct described above will depend on the terms of
contract and the circumstances of each case. In most cases, bad faith can be said to occur when one party,
without reasonable justification, acts in relation to the contracts in a manner where the result would be to
substantially nullify the bargained objective or benefit contracted for by the other, or to cause significant
harm to the other, contrary to the original purpose and expectation of the parties.
[171] In Zurich Insurance Co. v. Modern Marine Industries Ltd. (1996), 146 Nfld. & P.E.I.R. 91 (Nfld. C.A.), the
court discussed the relevance of subjective and objective factors to an analysis of good faith at paragraph 55:

I agree with the trial judge’s analysis of the law respecting good faith as that term is used in commercial
contracts. The state of mind of the person with the duty of performing in good faith is the determining factor
but as the trial judge recognized, in determining that state of mind elements of objectivity will generally be
part of such an assessment.
[172] In Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 SCR 369 the Supreme Court of
Canada discussed the duty to bargain in good faith in the context of a labour dispute, and Cory J. said at
paragraph 42:
Section 50(a) of the Canada Labour Code has two facets. Not only must the parties bargain in good faith, but
they must also make every reasonable effort to enter into a collective agreement. Both components are
equally important, and a party will be found in breach of the section if it does not comply with both of them.
There may well be exceptions but as a general rule the duty to enter into bargaining in good faith must be
measured on a subjective standard, while the making of a reasonable effort to bargain should be measured
by an objective standard which can be ascertained by a board looking to comparable standards and practices
within the particular industry. It is this latter part of the duty which prevents a party from hiding behind an
assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its
proposals are so far from the accepted norms of the industry that they must be unreasonable. [Emphasis
added.]
[173] Professor John D. McCamus, whose work was referenced by Cromwell J. in Bhasin, wrote in a paper
presented to the Ontario Bar Association entitled “Good Faith Obligating in Contract Law” (Continuing Legal
Education, October 1, 2007) that breaches of the duty to negotiate in good faith might include:
[B]argaining with no intention of reaching agreement or otherwise misleading the other party with respect to
one’s intentions, reneging on a promise given in the course of negotiations, refusal to make reasonable
efforts to reach agreement, breaking off negotiations in order to accept a more attractive proposal from a third
party, and so on.
[174] In Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.), the Court discussed the
content of a good faith duty by contrast to a fiduciary duty, and said this at paragraph 69:
There is at least one important difference between the duty of good faith and a fiduciary duty. If, for example,
A owes a fiduciary duty to B, A must act only in accordance with B’s interests when A exercises its powers or
exercises a discretion arising out of the relationship: see York Condominium Corp. No. 167 et al. v. Newrey
Holdings Ltd. et al. (1981), 122 D.L.R. (3d) 280 (Ont. C.A.) at 289, leave to appeal to the Supreme Court of
Canada refused [1981] 1 S.C.R. xi; Hodgkinson v. Simms, [1994] 3 S.C.R. 377. If, on the other hand, A owes
a duty of good faith to B, A must give consideration to B’s interests as well as to its own interests before
exercising its power. Thus, if A owes a duty of good faith to B, so long as A deals honestly and reasonably
with B, B’s interests are not necessarily paramount: see for example Mason v. Freedman, [1958] S.C.R. 483.
 Page 8 of 10
11F232 Breach of Contract: Generally—Notice of Civil Claim

[175] A decision that discusses bad faith where the conduct of the defendant defeats the very object of the
contract that the parties entered into is Barclays Bank v. Devonshire Trust , 2013 ONCA 494.

6 The category of contracts that require good faith performance is no longer limited to contracts of employment,
insurance contracts, and franchise agreements. In Bhasin v. Hrynew, [2014] S.C.J. No. 71, [2014] 11 W.W.R. 641,
2014 SCC 71, at para. 33, Cromwell J., for a unanimous court, wrote:

In my view, it is time to take two incremental steps in order to make the common law less unsettled and
piecemeal, more coherent and more just. The first step is to acknowledge that good faith contractual performance
is a general organizing principle of the common law of contract which underpins and informs the various rules in
which the common law, in various situations and types of relationships, recognizes obligations of good faith
contractual performance. The second is to recognize, as a further manifestation of this organizing principle of good
faith, that there is a common law duty which applies to all contracts to act honestly in the performance of
contractual obligations.
In Bhasin v. Hrynew, supra, the court wrote at para. 47:

There have been many attempts to bring a measure of coherence to this piecemeal accretion of appeals to good
faith. ... By way of example, Professor McCamus [in J. D. McCamus The Law of Contracts (2nd ed. 2012)] has
identified three broad types of situations in which a duty of good faith performance of some kind has been found to
exist: (1) where the parties must cooperate in order to achieve the objects of the contract; (2) where one party
exercises a discretionary power under the contract; and (3) where one party seeks to evade contractual duties. ...
The duty of good faith may now be invoked “in widely varying contexts” and that “calls for a highly context-specific
understanding of what honesty and reasonableness in performance require so as to give appropriate consideration to
the legitimate interests of both contracting parties.” As an example, the general organizing principle of good faith
would likely have different implications in the context of a long-term contract of mutual co-operation than it would in a
more transactional exchange: Bhasin v. Hrynew, supra, at para. 69.
For a recent British Columbia decision that discusses the decision in Bhasin v. Hrynew, supra,; see 0856464 B.C. Ltd.
v. TimberWest Forest Corp., [2014] B.C.J. No. 3170, 2014 BCSC 2433, at paras. 161-169. This is followed by a useful
discussion of other cases that involve issues of good faith or the lack thereof:

[170] The need for a careful consideration of the facts was articulated in Gateway Realty Ltd v Arton Holdings,
[1991] N.S.J. 362 where Kelly J. said at paragraph 60:
60 What will constitute bad faith or breach of the conduct described above will depend on the terms of
contract and the circumstances of each case. In most cases, bad faith can be said to occur when one party,
without reasonable justification, acts in relation to the contracts in a manner where the result would be to
substantially nullify the bargained objective or benefit contracted for by the other, or to cause significant
harm to the other, contrary to the original purpose and expectation of the parties.
[171] In Zurich Insurance Co. v. Modern Marine Industries Ltd. (1996), 146 Nfld. & P.E.I.R. 91 (Nfld. C.A.), the
court discussed the relevance of subjective and objective factors to an analysis of good faith at paragraph 55:
I agree with the trial judge’s analysis of the law respecting good faith as that term is used in commercial
contracts. The state of mind of the person with the duty of performing in good faith is the determining factor
but as the trial judge recognized, in determining that state of mind elements of objectivity will generally be
part of such an assessment.
[172] In Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 SCR 369 the Supreme Court of
Canada discussed the duty to bargain in good faith in the context of a labour dispute, and Cory J. said at
paragraph 42:
Section 50(a) of the Canada Labour Code has two facets. Not only must the parties bargain in good faith, but
they must also make every reasonable effort to enter into a collective agreement. Both components are
equally important, and a party will be found in breach of the section if it does not comply with both of them.
There may well be exceptions but as a general rule the duty to enter into bargaining in good faith must be
measured on a subjective standard, while the making of a reasonable effort to bargain should be measured
by an objective standard which can be ascertained by a board looking to comparable standards and practices
 Page 9 of 10
11F232 Breach of Contract: Generally—Notice of Civil Claim

within the particular industry. It is this latter part of the duty which prevents a party from hiding behind an
assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its
proposals are so far from the accepted norms of the industry that they must be unreasonable. [Emphasis
added.]
[173] Professor John D. McCamus, whose work was referenced by Cromwell J. in Bhasin, wrote in a paper
presented to the Ontario Bar Association entitled “Good Faith Obligating in Contract Law” (Continuing Legal
Education, October 1, 2007) that breaches of the duty to negotiate in good faith might include:
[B]argaining with no intention of reaching agreement or otherwise misleading the other party with respect to
one’s intentions, reneging on a promise given in the course of negotiations, refusal to make reasonable
efforts to reach agreement, breaking off negotiations in order to accept a more attractive proposal from a third
party, and so on.
[174] In Shelanu Inc. v. Print Three Franchising Corp. (2003), 64 O.R. (3d) 533 (C.A.), the Court discussed the
content of a good faith duty by contrast to a fiduciary duty, and said this at paragraph 69:

There is at least one important difference between the duty of good faith and a fiduciary duty. If, for example,
A owes a fiduciary duty to B, A must act only in accordance with B’s interests when A exercises its powers or
exercises a discretion arising out of the relationship: see York Condominium Corp. No. 167 et al. v. Newrey
Holdings Ltd. et al. (1981), 122 D.L.R. (3d) 280 (Ont. C.A.) at 289, leave to appeal to the Supreme Court of
Canada refused [1981] 1 S.C.R. xi; Hodgkinson v. Simms, [1994] 3 S.C.R. 377. If, on the other hand, A owes
a duty of good faith to B, A must give consideration to B’s interests as well as to its own interests before
exercising its power. Thus, if A owes a duty of good faith to B, so long as A deals honestly and reasonably
with B, B’s interests are not necessarily paramount: see for example Mason v. Freedman, [1958] S.C.R. 483.
[175] A decision that discusses bad faith where the conduct of the defendant defeats the very object of the
contract that the parties entered into is Barclays Bank v. Devonshire Trust , 2013 ONCA 494.

7 If special damages are claimed they must be specifically pleaded. For precedents on pleading special damages; see
11F22.

8 The division of damages into “special” and “general” damages is more appropriate to cases of tort than to cases of
contract: Brown v. Hope, [1912] B.C.J. No. 48, 2 W.W.R. 153, 17 B.C.R. 220, 2 D.L.R. 615 (C.A.). In a number of
contract cases from other jurisdictions, the failure to plead and claim special contractual damages has not precluded
recovery of those damages; see for example, Brinker v. Grand Trunk Railway, [1923] S.C.J. No. 61, 25 O.W.N. 443
(S.C.C.), where the plaintiff was awarded special damages despite his failure to plead them because the plaintiff had
been fully examined on discovery concerning special damages, and the defendant went to trial fully prepared to meet
the claim for special damages. Where no claim is made for what properly fall within the category of “special damages,”
the prayer for relief in a contract claim should simply claim “damages” rather than “general damages”. It has been held
in the United Kingdom that damages for wrongful dismissal are in their nature, special damages (Monk v. Redwing
Aircraft Co., [1942] 1 All E.R. 133, 1 K.B. 182, 166 L.T. 42 (C.A.) and Hayward v. Pullinger & Partners Ltd., [1950] 1 All
E.R. 581, 94 Sol. Jo. 255, 66 T.L.R. 741 (K.B.)), and for that reason, it was held in Suttie v. Metro Transit Operating
Co., [1985] B.C.J. No. 1749, 2 B.C.L.R. (2d) 145, 9 C.C.E.L. 19, 28 D.L.R. (4th) 36 (C.A.), that for purposes of the
Court Order Interest Act, lost earnings to the date of trial resulting from a wrongful dismissal are to be treated as special
damages. In Neilson v. Vancouver Hockey Club Ltd., [1986] B.C.J. No. 876, 7 B.C.L.R. (2d) 155, 31 D.L.R. (4th) 475
(S.C.), the trial judge stated that although the policy of the Court Order Interest Act required treating lost income as
special damages for purposes of awarding prejudgment interest, he had “some doubt that it logically follows that
earnings lost through lack of notice” fit within the broader concept of special damages. Put in other terms, loss of
income arising from an unjust dismissal do not fall within the category of “special damages” except for purposes of
calculating prejudgment interest. This must be so, given that awarding damages for loss of income does not admit to
pre-calculation given that their quantum depends on the appropriate notice period as determined at trial (and also on
mitigation of damages and failure to mitigate damages). Expenditures paid after an unjust dismissal for, by way of
example, the services of a job-search firm, are, however, special damages and should be pled as such. Where the
plaintiff claims one head of damages which are arguably “general” and another head of damages which are arguably
“special”, and has properly particularized such damages as claimed in the pleadings, the plaintiff may properly claim
“general and special damages” in the prayer for relief, leaving it to the defendant to decide which damages are general
and which are special.

9 If special damages are claimed they must be specifically pleaded. For precedents on pleading special damages; see
11F22.
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11F232 Breach of Contract: Generally—Notice of Civil Claim

10 For precedents on pleading in a prayer for relief, see 11F27 to 11F45.

End of Document