Necessity to elect among remedies

Landmark II Inc. v. 1535709 Ontario Limited, 2011 ONCA 567 is a construction lien case that deals with a number of issues including the need formally to elect among remedies. The Court holds:


[13]         Landmark, thus had a right to alternative remedies: a right to quantum meruit and a right to damages.  However, and this is the important point, Landmark was required to elect between these alternative remedies, at the latest by the time of judgment: see GNC Realty Products Ltd. v. Welglen Ltd. at paras. 52-61.

[14]         The problem for Landmark is that it never elected damages for breach of contract. Indeed, it never indicated that it was pursuing alternative remedies with the intention of making an election at some later point before judgment.  Instead, the only claim that it maintained and the only remedy that it sought – in its pleading, in the way it presented its case, and in its evidence – was quantum meruit for the value of the work it performed.

[15]         Landmark submits that the trial judge ought to have provided for an election herself, but that is not right. If Landmark was seeking damages for breach of contract, it was required to so elect.  It did not do so.  Its claim for damages must therefore fail.  I would not give effect to this ground of appeal.