Return of the triage?

Those of you who know me from TBS know that during my first few months with the federal government, I became somewhat infamous around the office for my role in managing the regulatory "triaging system" of classifying proposals as low, medium, or high impact. On Tuesday, I had a taste of déja vu as I was once again thrust squarely into a triaging role, only this time, it was determining whether or not potential clients were eligible to take advantage of the Downtown Legal Services Clinic, where I worked my first shift. After 9 minutes of "training" (it was really hectic in the office that day, hence why there wasn't any more time to give us further instruction), two fellow 1L's and myself were answering phones, interviewing individuals with a wide assortment of legal problems and trying to figure out if we could help them out. In the course of roughly an hour, I spoke with persons with problems across several areas of law, including several criminal offences (fortunately minor ones like mischief), family issues (access/spousal support), immigration (permanent residency applications), and university-related issues (needing to get an application letter to a professional program legally notarized).

While it was a bit chaotic at first, the clinic provided us with some excellent resources including an e-template and a pile of manuals to help us screen the potential clients, and if we ever got over our heads, we were encouraged to press the "hold" button early and often to get guidance from our division leader. All in all, it went pretty well, but I was fortunate to have some past experience at a confidential helpline back in undergrad and as a result, I'm somewhat familiar with speaking to individuals who find themselves in difficult situations. After things settled down, we did get some more in-depth training on the clinic in general, and got to meet the lawyer who will be supervising my work (especially next term when I take on cases) and it seems like a really great environment; everyone's very passionate about what they're doing and eager to help, and after all, there's no better way of learning than by doing!

Well, on to the moment you've all been waiting for; what ever happened in Jacob and Youngs v. Kent? If you want to read the full judgment I've found it replicated online here, but to give you the gist - it was a split decision, but the majority of the court, including a very renowned justice named Cardozo, sided with Jacob & Youngs (the construction firm), and ordered Kent to pay the balance owing on the mansion.

Cardozo's rationale was that you essentially have to balance the idea of strict interpretation of a contract with the harm that's caused by forcing the "breaching" party to exactly adhere to the contract's terms. If the harm would be too excessive, the party that breached  the contract shoudl be able to pay the difference in value between what was used and what the contract called for, instead of the full replacement cost.  However, this can only be done if the breach of the contract is "trivial and innocent" (i.e., J&Y didn't maliciously try to frustrate Kent by using different pipe, and while the brand of pipe was specified in the contract, it arguably was a fairly minor provision in the big scheme of the overall agreement so it can be considered to be trivial). Cardozo reasoned that because the pipe used was exactly the same quality as Reading pipe, the difference in value in this case was zero, so J&Y didn't owe Kent anything, but Kent still owed the balance of the contract.

While Cardozo's opinion carried the day, another group of judges, led by McLaughlin, dissented. McLaughlin and his colleagues argued that because Kent specified "Reading pipe," he was entitled to that pipe, regardless of whether or not a substitute is arguably "just as good." J&Y presented no good explanation for why they had to substitute the pipe, nor did they contact Kent's architect to ask permission to substitute, as the contract specified. Therefore, J&Y's suit against Kent for the remaining balance owing on the mansion should be dismissed. Essentially, a deal is a deal, and it's not fair to Kent to have to settle for something he didn't order because of the negligence/ignorance/etc of the contractor.

Thanks Andrew and Nicole for posting your ideas/solutions - I think both are well-reasoned, with Nicole coming closer to Cardozo's judgment (though she would still allow Kent to keep the balance), and Andrew arguing McLaughlin's point. What interested me about this case and the judgment is how both judges really had to wrestle with a question judges face all the time with "tough cases" like these: do you err on the side of producing justice in a particular case between the parties in front of you, or do you also consider the precedent that your ruling might set on the behaviour of individuals in the future? Ruling in favour of J&Y, as Cardozo did, seems to be the just result for the parties in this case; after all, it would seem excessive to force them to absorb the cost of essentially rebuilding the mansion, just because the pipe has a "cohone" stamp on it instead of a "reading" one.

However, when you think about what this ruling means for future parties, the precedent might be a difficult one to manage. If we accept Cardozo's reasoning, we accept that "innocent and trivial" breaches of contracts are okay as long as the breaching party pays the "difference in value," but how do we decide what an innocent and trivial breach is? Even the concept of difference in value is more blurry than it seems on the surface; for example, let's assume that this case happened today in 2009 instead of in 1921. What if Kent wanted to buy Reading pipe not because of its quality or price, but because Reading is a "green" or "fair-trade" certified company that sources its products from sustainable sources, while other manufacturers don't respect those norms. What's the "difference in value" of that kind of a substitution, where what we need to put a price on is the well-reasoned and distinct personal preferences of the buyer?

And by siding with the contractor, are courts and judges making it easier for contractors to cut corners and potentially cheat homeowners? While in this case, Kent was a wealthy lawyer who could hire an architect to represent his interests and draw up a detailed contract, in many other instances, the construction firm will be the one with the most power in the relationship, as they know their business better than potential first-time homeowners (like me, who can still barely tell the difference between different types of lightbulbs, let alone drywall, insulation, or piping!) So for those reasons, while I understood where Cardozo was coming from, and despite the injustice it would have caused in the particular case, I would have probably found in favour of McLaughlin.

This ended up being a bit of a longer post than I thought, but I hoped you enjoyed it! Next week, I'll put up another case for you to think about, which I'm thinking will be a Constitutional law one (as I know many of you Ottawa-types just love federal-provincial jurisdiction arguments) :)

Until then, I'm going to be up to my ears with law review readings; I have about 5-6 academic papers to critically review over the course of this week, and for one of them, I'm required to do some fairly detailed independent legal research to determine whether or not the paper cites law that is still up-to-date and that it's considered fairly the existing legal academic literature and case law that's out there. Wish me luck, and have a great weekend!