LOSS OF A CHANCE IN (AND BY) THE SUPREME COURT OF CANADA
AbstractIn Cohnstaedt v. University of Regina, the Supreme Court of Canada held the 'loss of chance' doctrine to be inapplicable to the quantification of the damages for lost future earnings recoverable by a wrongfully dismissed professor. Through a critique of the analysis adopted by the Court, the author explores some sources of conceptual confusion in the remedial treatment of contractual contingency. Particular attention is given to the so-called 'New Zealand Shipping principle' that 'a party shall not take advantage of his own wrong', and to the notion of 'fictional fulfilment'. In the concluding section, a sketch is offered of an approach on which the remedial outcome is determined, not on an a priori basis, but by a context-sensitive assessment of how the parties should be taken to have allocated the risks inherent in the relevant contingency .
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