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subcontract. e court agreed, citing the On-
tario Court of Appeal's decision in Charter
Building Company v. 1540957 Ontario Inc.,
2011 ONCA 487. In that case, the Court
concluded that the party making the election
was precluded from subsequently relying on
the course of action that was rejected.
Here, Sapient had two courses of action in
the face of the alleged Siemens breaches: to
terminate or affirm the subcontract. Sapient
had communicated its choice through its ac-
tions, by exhorting Siemens to continue its
work under the subcontract and clearly re-af-
firming the continuation of the subcontract
in May 2009. Under the doctrine of election
it could not subsequently rely on the same al-
leged breaches to terminate the contract.
Although Justice Pattillo found that Sie-
mens was not in material breach of the sub-
contract prior to termination in June 2009,
he concluded that Siemens was in breach of
the subcontract in respect of data conversion
deliverables in the fall of 2008 and again in
spring 2009.
Siemens was awarded over $6 million in
damages for Sapient's breach of contract. Sa-
pient sought to limit its damages by relying
on the principle in Hamilton v. Open Win-
dow Bakery Ltd., 2004 SCC 9: where there
are several ways in which a contract may be
performed, damages are awarded based on
the mode of performance that is least profit-
able to the plaintiff and least burdensome to
the defendant. Sapient sought to invoke this
reasoning in light of a termination for con-
venience clause in the subcontract, but the
court concluded that Sapient could not rely
on the termination for convenience to limit
Siemens' data conversion damages.
Part of Siemens' claim for damages was for
the wrongful termination of the AS Services
agreement, for which no breach had been al-
leged by Sapient prior to termination. Sapi-
ent argued that the limitation of liability pro-
vision in the subcontract excluded Siemens'
claim for lost profits arising from the termi-
nation of the AS Services Agreement. e
court relied on the Supreme Court of Can-
ada's decisions in Tercon Contractors Ltd. v.
British Columbia (Minister of Transportation
& Highways), 2010 SCC 4 and Sattva Capi-
tal Corp. v. Creaston Moly Corp., 2014 SCC
53 to conclude that, as a matter of interpreta-
tion, the limitation of liability clause in the
subcontract did not apply to Siemens' claim
for loss profits arising from Sapient's breach
of the AS Services portion of the subcontract.
Sapient counterclaimed for over $11 mil-
lion in damages for Siemens' alleged breaches
of the subcontract, but did not provide suffi-
cient evidence and was awarded $746,199.84.
Peter Griffin, Shara Roy, Paul-Erik Veel
and Laurel Hogg of Lenczner Slaght
Royce Smith Griffin LLP, with Kris Borg-
Olivier of Paliare Roland Rosenberg
Rothstein LLP and Julia Brown, acted for
the plaintiffs, Atos IT Solutions and Ser-
vices GMBH and Atos Inc.
Mark Gelowitz, Alex Cobb and Evan
omas of Osler, Hoskin & Harcourt
LLP acted for the defendant, Sapient Can-
ada Inc.
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