Alberta's Top Court Splits On Damages For Economic Loss

Last month, in 644036 Alberta Ltd. v. Kay McVey Smith & Carlstrom LLP, 2018 ABCA 236 ("C.A. reasons"), the Court of Appeal of Alberta seemed to offer conflicting guidance on the assessment of damages for economic loss where a plaintiff has advanced concurrent claims in contract and tort. Upon examination, however, the Court of Appeal's judgment speaks to the fundamental coherence of the two doctrinal frameworks; regardless of which is applied, the same result should follow — in principle, at least.

But that is not what happened here. Instead, in this case, the majority and dissent differed fundamentally in how they understood the nature of the plaintiff's claim, and of the economic loss for which it was seeking damages. The lesson, in our view, is that the outcome of an economic loss case featuring concurrent causes of action is as likely to depend on how the claim is framed as on how the applicable law is argued.