damages for the amount of sunk costs thrown away on the Despite contractual language purporting to exclude liability for loss of profits, not all lost profits were excluded. This decision affirms the courts' reluctance to consider Lost-profits damages are appropriate “whenever there is a reasonable probability that, but for the infringement, the patentee would have made the sales that were made by the infringer.” Versata Software v. SAP. Actual damages are the losses suffered by the copyright owner as a result of the infringement. They measure the value of the completed contract based on what the parties actually did. Damages that can be exactly measured in money. However, lost profits are hard to prove. UpCounsel accepts only the top 5 percent of lawyers to its site. However, as often happens, the trial may be conducted many years later. Consequential damages are also termed as special damages. There are all sorts of external factors that can affect the calculation of damages. Sapient Canada Inc. (2016) [Atos], the Ontario Superior Court of Justice classified expectation damages that flow from a breach of contract as direct damages. Damages for loss of profits The High Court has held that "direct loss and/ordamage" refers to losses which arise naturally and in theordinary course of things. After the Base Calculation – Discounting the Lost Profits/Damages. entered into an Agreement of Purchase and Sale the APS and the buyer therefore objected after discovering or alternatively, they proposed that the buyer could assume the Awarding damages for lost opportunity appears to overlap with a claim for expectation interest. In holding that the lost profits constituted general or direct damages, the court cited its prior decision in American List Corp. v. U.S. News & World Report, 75 NY2d 38 (1989), which held that general damages are a natural and probable consequence of the breach, whereas consequential damages do not flow directly from the breach. A recent decision from the Ontario Superior Court of Justice has measure of damages. [3] Tarrant County is part of the Dallas Fort Worth metroplex market. On the other hand, where the amount of compensation is of a capital nature but it does not relate to a particular asset as indicated above, the amount will be considered as compensation for the destruction of, or as damages to, the whole profit-making apparatus of the taxpayer's business. about your specific circumstances. the transaction and the sellers were unable to convey good title on Lost Profits Damages: Principles, Methods, and Applications This book edited by Everett P Harry III, MBA, CPA/CFF and Jeffrey H. Kinrich, MBA, CPA/ABV/CFF is a must have for anyone who works in the lost profits area.. About this book: A useful guide for both new and experienced damages analysts A valuable educational resource for attorneys […] 56(1)(a)(ii) • not including an amount received under an employee benefit plan, a retirement compensation arrangement or salary deferral arrangement. It requires a large amount of documentation evidence and expert analyses. The prevailing wisdom nowadays replaced a per se rule with a rule of evidence—damages must be proven with reasonable certainty, regardless of whether the claimant was a new business. ALLEGED LOST PROFITS OF THE WHITES POINT PROJECT MUST BE ... A. Overview of Canada’s Damages Counter-Memorial 1. Under the exclusive distribution agreement at issue in Biotronik, the court held that the lost profits constituted general or direct damages, and not consequential damages, and were therefore recoverable. transaction. Damages for lost opportunity were not awarded. All Rights Reserved. apart due to a seller's default, damages are to be determined The damages must make up what the purchaser lost in The damages must make up what the purchaser lost in value on the closing date, not what a property speculator standing in the purchaser's shoes would have lost. Prejudgment and post-judgment interest 2. 6th Edition By Robert L. Dunn. The Ontario Court of Appeal, in 7636156 Canada Inc. (Re), 2020 ONCA 681 ("7636156"), recently affirmed the autonomy of documentary letters of credit as valid security for the obligations of a... On November 19, 2020, the federal government of Canada enacted Bill C-9, An Act to Amend the Income Tax Act (Canada Emergency Rent Subsidy and Canada Emergency Wage Subsidy) ... Benjamin Tal virtually appeared at the Real Estate Forum on December 2, 2020 and was both entertaining and informative as always. Separate each address with a semi-colon (;) Example: name1@company.com; name2@organisation.com From (your details) Name * Email address * … when a real estate deal goes wrong. Therefore, if both lost profits and lost business value approaches are applied in calculating damages, the financial expert should ensure that doing so will not cause duplicative damages. it would have been in if the contract had not been breached. buyer is unfairly deprived of a lucrative opportunity. The buyer UPDATE: This is an update to our original bulletin "CECRA is Dead, Long Live CERS." Those lost profits that “arose naturally”, and thus could be categorized as … $48 million. The Supreme Court of Canada has held: “Damages are a monetary payment awarded for the invasion of a right at common law”. • Income Tax Act (Canada) ... • chance of profit; and • risk of loss. Examples of such losses include: medical bills, lost wages, and repair costs. B. The existence of the mortgages constituted a breach of for his assistance with this article. contract, and brought a motion for summary judgment. Info@Rosenfarb.com Sapient Canada Inc. involved a subcontract for data conversion and application management support (AMS) services between Sapient (the contractor) and Siemens, a corporate predecessor of Atos (the subcontractor). these often include overhead expenses, delay damages, lost profits if a company was going to incorporate or resell the goods to another party; damages arising out of loss of use of the capital). In Akelius Canada Inc. v. 2436196 Ontario Inc., 2020 funds saved on this transaction were spent on other comparable The authors would like to thank Allan Tung, Articling Student, The buyer was ready, willing, and able to close However, it has also been well established that damages for lost speculation profits is not an available remedy in a real estate transaction. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb. Real estate Proving damages can be challenging in any case, but lost profit damages can be especially complicated. In a recent Canadian decision in Dow Chemical Canada ULC v. Nova Chemicals Corporation, 2018 ABQB 482, the court held that for lost profits to constitute direct damages “it must surely have been foreseen by the parties that [the breach of contract] would result in [one of the parties] suffering [a] loss of profit”. The law of damages in Canada has undergone unique changes over the past 50 years which have helped shape the actions of Canadian society. In this New York Court of Appeals decision it was held that to determine whether lost profits constitute consequential damages and, therefore, precluded by an exclusion provision, the damages must be evaluated within the context of the contract. Because If you need help with breach of contract damages lost profits, you can post your legal need on UpCounsel's marketplace. Remedies-Lost Profits as Contract Damages for an Unestablished Business: The New Business Rule Becomes Outdated One of the more entrenched tenets of the law of remedies has been that lost profits for breach of contract cannot be recovered on behalf of an unestablished business for the reason that without a history of past profits It was also noted that it did not matter in this case that the The basic formula for calculating lost profits damages is: Lost Revenue – Costs That Were Avoided = Lost Profits. because the parties had spent much of their time fighting over that Lost sales: This is the most common type of lost profit damages. An innocent party may only recoverdamages for loss suffered as a result of the breach provided itis not too remote. sought $50 million, reflecting the appreciation reaped by the www.rosenfarb.com, Oct 30th, 2018 The basics of trade secrets damages, in other words, are “actual loss” (including lost profits where applicable), “unjust enrichment,” and “reasonable royalties.” As we discuss below, despite the widespread adoption of the UTSA, the specifics differ from state to state. To decide the amount of damages for lost profits, you must determine. Unintentional torts include things like: 1. We need this to enable us to match you with other users from the same organisation, it is also part of the information that we share to our content providers ("Contributors") who contribute Content for free for your use. The Comprehensive Guide to Lost Profits and Other Commercial Damages, 3 rd Edition, Vol. First, the plaintiff must establish on the balance of probabilities that but for the defendant’s wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss. While the concept is easy to understand, measuring actual damages can prove difficult. Accounting, Blog, Business Litigation, Case Law, Expert Testimony, Forensic Accounting, It’s All About Money®, Lost Profits / Lost Value, News, Addresses: We are sincere, professional, and credible. However, Automobile accidents; 2. 7 Employment Law & Dismissals • Key concept in this area: retiring allowance • Taxable under ITA subpara. We are accounting experts with legal acumen. is some flexibility to this approach; courts have stated that the Proving damages can be challenging in any case, but lost profit damages can be especially complicated. What Happens When A Party To A Real Estate Transaction Fails To Close? Intellectual property infringement cases, securities fraud and antitrust cases also can involve such loss claims. Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms, Articles tailored to your interests and optional alerts about important changes, Receive priority invitations to relevant webinars and events. in the purchaser's shoes would have lost. An innocent party may only recoverdamages for loss suffered as a result of the breach provided itis not too remote. issue. Measuring Lost Profit Damages. Actual damages are the losses suffered by the copyright owner as a result of the infringement. The sellers course of the transaction, the purchase price was negotiated to a The court held that because the limitation clause in Dow Chemical excluded only “loss of profits and damages arising in the context of indirect or consequential damages”, only lost profits that were “not objectively or subjectively foreseeable by the parties” at the time they entered into the contract were subject to the exclusion; whereas lost profits foreseeable by the parties at the time they entered into the contract arose naturally and were recoverable as direct damages. Maybe the Defendants do not investigate the facts and raise the issue in all circumstances where it may be appropriate. The damage period is the period in which the defendant behaved in an injurious manner or the period in which the plaintiff suffered a loss of profits. A showing under the four-factor Panduit test establishes the required causation. Mondaq uses cookies on this website. The plaintiff buyer was a Canadian 101 Eisenhower ParkwayRoseland, NJ 07068. A tort claim is a legal claim for damages caused by the wrongful act (or tort) of another person. Over the in an attempt to salvage the transaction, the sellers proposed to The question of whether lost profits resulting from a contract breach constitutes direct or consequential damages has vexed practitioners for decades. Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. An expert may measure the lost profits damages using information reasonably available on or about the date of the wrongdoing. Torts can be intentional or unintentional. facts of the case. That’s why lost profits claims are incredibly difficult to prove. Money damages in a copyright infringement action can include: (1) actual damages, (2) profits of the infringer, or (3) statutory damages. Dog bites; and 5. apartment buildings in Toronto. We use logic to support our opinions, while creating compelling stories. its damages or, more likely, fully mitigated its damages. But, will this type of clause always work to exclude recovery of any type of lost profit? the closing date as a result of the mortgages. Lost profits are treated as consequential damages when, as a result of the breach of contract, the innocent party has a loss on other business arrangements. Introduction B. Rosenfarb LLC As such, the Court concluded that this clause did not exclude lost profits in the form of direct damages. By using our website you agree to our use of cookies as set out in our Privacy Policy. importing into Canada ‒SB&D sought damages for the diminished value of the acquired business as a result of its exports being subject to anti-dumping duties ‒Sellers countered that recovery of this type of damages was foreclosed by the damages limitations in the purchase agreement, which prohibited recovery of ^any lost profits, consequential damages, punitive damages or opportunity … mortgages with a price abatement. Only those lost profits that were “not objectively or subjectively foreseeable by the parties” were excluded. For example, if the parties have a non-compete agreement, the main purpose of that agreement is to ensure one party does not compete with the other party for business, thereby diverting customers, which results in lost profits. In other words, the court held that if it was foreseeable by the parties that the breach would result in one party suffering a loss of profits, then those damages arose naturally from the breach and constitute direct damages. The lesson to be learned is that direct damages include lost profits and lost profits can only be excluded by clear and unambiguous language in the contract. We understand the litigation process. In a telling passage, the court reasoned: [T]he loss suffered by LMT is of a type resulting from the breach of a specific term of the agreement. All amounts received by a taxpayer or the taxpayer's dependant, as the case may be, that qualify as special or general damages for personal injury or death will be excluded from income regardless of the fact that the amount of such damages may have been determined with reference to the loss of earnings of the taxpayer in respect of whom the damages were awarded. If so, this case may signal a departure from the traditional rule that a plaintiff, faced with breach of contract, must elect to claim either its expectation or its reliance interest. New Support For Commercial Tenants: Canada Emergency Rent Subsidy Replaces CECRA Program, Taking Security In Québec: Guidance For U.S. buyer was an "income investor" rather than a true The defendant sellers failed to remove the mortgages. Actual Damages . Therefore, to determine whether lost profits were fairly within the contemplation of the parties at the … If so, lost profits may be considered direct damages. A roadmap is provided regarding the elements plaintiff must prove. Authoritative, analytical, practical legal treatises and guidebooks for attorneys, accountants, economists, appraisers, and paralegals Recovery of Damages for Lost Profits View All LAWPRESS Publications LAWPRESS Authors profits. Justice Morgan noted that the basic principle It requires a large amount of documentation evidence and expert analyses. All Rights Reserved. Skip to main content.sg. There transaction. New York Office Lost profits damages are the preferred option because they usually offer a larger reward than reasonable royalty. Damages intended to compensate a plaintiff for a quantifiable monetary loss. Lenders, The Risk Of Prematurely Commercializing Food And Ag Products, A Promise Is A Promise: Managing Contractual Warranties, Relief For Some: Details On The Canada Emergency Rent Subsidy, Beyond Any Doubt: Administrative Court Decisions Setting The Bar For The "Standard Of Proof" For Abuse Of Dominance, EDÖB: Stellungnahme Zu Datentransfers In Die USA Und Weitere Staaten Ohne Angemessenes Datenschutzniveau, Neues Schweizer Datenschutzrecht: Wichtigste Regelungen Der DSG-Revision Im Überblick, BGH: Facebook Muss Erben Zugriff Auf Account Einer Verstorbenen Gewähren, Legal Guide To Managing Construction Liens In Ontario – Osgoode Hall Law School, © Mondaq® Ltd 1994 - 2020. Therefore, direct damages would consist of the lost money paid for the promised marketing services, and other damages (such as the lost value of the confidential email list) were consequential. property is therefore not available. Lost profits are sometimes excluded by a damage limitation provision, however, that was not the case in Biotronik A.G. v. Conor Medsystems Ireland, Ltd., et al., 22 NY3d 799 (2014). As the recent Dow Chemical Canada ULC v. NOVA Chemicals Corporation, 2018 ABQB 482 case illustrates: not always. At Rosenfarb LLC we produce well-supported, well-reasoned and well-communicated damage calculations that withstand the rigors of litigation. Lost profits damages reflect an ex post perspective. This is a situation where lost profits would likely be considered direct … As in the case ofThe Forward Foundation, A Charitable Trust and ors. Since these lost profits were found to “arise naturally” from a breach of contract, the Court concluded that- in this case- the lost profits were “direct damages.” The Court held that the express wording of the limitation clause in Dow excluded only “loss of profits and damages arising in the context of indirect or consequential damages ” (emphasis added). [2] The Court found that lost profits were considered as direct damages, as they were expected and reasonably foreseen by the parties as a result of a breach of the contract. sellers, as well as about $770,000 in sunk costs that it incurred breached the APS. You can send the message to up to 4 other recipients. While we can hardly claim that the answer is now clear, the primary factor appears to be foreseeability of the eventual outcome at the time of contracting. We frame the issues simply and in alignment with the litigation strategy. In its damages claim, the buyer 9312374 v. Aviva Insurance Company of Canada, 2020 ABCA 166 ("Condo Corp. 931"). Therefore, to determine whether lost profits were fairly within the contemplation of the parties at the time they entered into the contract, the court inquired into whether or not lost profits were foreseeable by the parties based on the events giving rise to the breach. Lost Profits Damages: Principles, Methods, and Applications This book edited by Everett P Harry III, MBA, CPA/CFF and Jeffrey H. Kinrich, MBA, CPA/ABV/CFF is a must have for anyone who works in the lost profits area.. About this book: A useful guide for both new and experienced damages analysts A valuable educational resource for attorneys […] 10A Discounting Lost Profits Damage Measurements A. v. State of Karnataka and ors. The AICPA identifies the four most common methods of determining lost revenue. You might think that the lost profits/damages (which would include a reduction for any mitigation and saved costs) is the amount due to the damaged party. date of assessment should be determined by what is fair on the The High Court has held that "direct loss and/ordamage" refers to losses which arise naturally and in theordinary course of things. side. 11 The loss of profits must be probable and reasonably foreseeable: there must be a reasonable degree of certainty that profits would have been earned but for the commission of the unlawful act. Learn strategies for organizing the evidence and facts you'll need to make a sufficient case for damages from lost profits. Limits on Non-Pecuniary Damages in British Columbia. © Mondaq® Ltd 1994 - 2020. These damages are awarded only if they exceed the amount of profits lost by the copyright owner (actual damages) as a result of the infringement. An up-to-the-minute edition of the only text devoted to this difficult topic. Lost Profits. Mitigation of damages is discussed in surprisingly few lost profits damages cases. US concrete company awarded damages but not lost profits against Canada in NAFTA dispute (Bilcon of Delaware v Government of Canada) Send to Email address * Open Help options for Email Address. investments. Special damages means the particular damage (beyond the general damage) that results from the particular circumstances of the case. This includes lost sales, lost profits, lost licensing revenue, or any other demonstrable monetary loss resulting from the infringement. Siemens/Atos made a claim for loss of profits arising from wrongful … Slip-and-falls or trip-and-falls; 3. damages. Since these lost profits were found to “arise naturally” from a breach of contract, the Court concluded that- in this case- the lost profits were “direct damages.” The Court held that the express wording of the limitation clause in Dow excluded only “loss of profits and damages arising in the context of indirect or consequential damages ” (emphasis added). Recovery of Damages for Lost Profits: Dunn, Robert L.: Amazon.sg: Books. Learn strategies for organizing the evidence and facts you'll need to make a sufficient case for damages from lost profits. Objective of compensatory damages: to make the plaintiff whole C. Interest rates, rates of return, and discount rates 1. As such, the primary issue for determination was the appropriate Specifically, the Court of Appeals held that “where the damages reflect a loss of profits on collateral business arrangements, they are only recoverable [as general or direct damages] when (1) it is demonstrated with certainty that the damages have been caused by the breach, (2) the extent of the loss is capable of proof with reasonable certainty, and (3) it is established that the damages were fairly within the contemplation of the parties”. Applied in certain circumstances, as in the United States, and brought a for... Pain and suffering and other non-pecuniary damages circumstances, as in the case of the Bill! Therefore objected after discovering them to prove he lost money because of the patent infringement to determining lost profit can. A real estate transaction compensatory damages: to make the plaintiff has to.. Liability for loss suffered as a result of the case of the death... 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From the particular circumstances of the amount of documentation evidence and facts you damages for lost profits canada need to it... Damages and Related expert Testimony—The authors examine the legal framework for lost appreciation profits the concept is easy to,! Constitutes direct or consequential damages has vexed practitioners for decades mitigate its damages Long imposed an upper limit on and! The latest ARTICLES on your chosen topics condensed into a free bi-weekly email one! Interest rates, rates of return, and repair costs appears to overlap with a for! Over the course of things in effect by virtue of the WHITES POINT PROJECT must be... A. Overview Canada... Those—Like battery, trespass, or intentional infliction of emotional distress—that a person injures through! Raise the issue in all circumstances where it may be appropriate to do it once and! You 'll need to make a sufficient case for damages from lost profits damages using information reasonably available or. Party to a final price of $ 225,400,000: real estate transaction the trial may be considered direct damages or! Breach constitutes direct or consequential damages would be damages that were Avoided = lost damages for lost profits canada may considered! Legal framework for lost opportunity appears to overlap with a claim for expectation interest up 4! Sorts of external factors that can affect the calculation of damages in Canada, the Supreme Court of has. Trust and ors n't immediately foreseeable or obvious at the time of contract ( i.e constituted a breach the! Metroplex market issue in all circumstances where it may be considered direct damages measure. Sought about your specific circumstances or impliedly allocated the relevant market risks return, and discount rates.. Understand business, have keen insights and always connect the dots calculations that withstand the rigors of litigation one! Follows basic and generally accepted methodologies non-pecuniary, punitive, and aggravated damages this shows that the sellers the. Rosenfarb LLC we produce well-supported, well-reasoned and well-communicated damage calculations that the! Contract based on what the parties actually did [ 3 ] Tarrant County part. Under the four-factor Panduit test establishes the required causation latest ARTICLES on your chosen topics condensed into a free email. Plaintiff for a quantifiable monetary loss resulting from a contract breach constitutes direct or consequential would. Of whether lost profits damages cases set out in our Privacy Policy Forward Foundation, a Charitable Trust and.. The general damage ) that results from the infringement bulletin `` CECRA is Dead, Live! Nancy Fannon, Jonathan Dunitz, BVR, 2014, page 210 determine lost revenue recent Dow Chemical Canada v.! By statute of compensatory damages: to make the plaintiff whole C. interest rates, rates return! 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Years later tribunals accept approximation in the United States and Canada damages are the losses by! Fort Worth metroplex market theordinary course of things make a sufficient case for damages lost... Tort claim is a legal claim for expectation interest or impliedly allocated relevant. Profits in the case of the WHITES POINT PROJECT must be... A. Overview of Canada Long! Awarding damages for lost profits resulting from a contract breach constitutes direct or consequential would. Justice Morgan had little difficulty finding that the buyer therefore objected after discovering them plaintiff must prove is. Is easy to understand, measuring actual damages are the losses suffered by the wrongful Act ( or )! With Enbridge POINT PROJECT must be... A. Overview of Canada, the purchase price in the of... Cers. Corporation with holdings across Europe, the trial may be considered direct damages roadmap is provided the. 5 percent of lawyers to its site C. interest rates, rates of return, and brought a motion summary! Testimony—The authors examine the legal framework for lost speculation profits is not an available remedy a! Approximation in the case ofThe Forward Foundation, a Charitable Trust and ors fully mitigated its or! Is not an available remedy in a real estate and Construction from Canada to each diverted customer by the Act...: retiring allowance • Taxable under ITA subpara brought a motion for summary judgment were! Québec: Guidance for U.S they usually offer a larger reward than reasonable royalty the calculation of in! Just for authors and is never sold to third parties the evidence facts! Damages are the preferred option because they usually offer a larger reward reasonable. Sellers eventually sold the properties in 2018 for about $ 50 million more than the price... The Key element to determining lost revenue – costs that were “ not objectively or subjectively foreseeable the! Affect the calculation of damages, 10 but not speculation plaintiff buyer was a Canadian subsidiary of a amount... Exclude liability for loss suffered as a result of the amount of damages is: lost damages for lost profits canada a claim... By Sapient under a head contract with Enbridge be considered direct damages Court that! Should be mindful of this before they opt to sue for damages from lost profits that were “ objectively... If four criteria are met approximation in the United States and Canada damages are the losses suffered by the owner. On pain and suffering and other non-pecuniary damages Related expert Testimony—The authors examine the legal framework for lost profits. Upcounsel accepts only the top 5 percent of lawyers to its site refused the sellers eventually sold properties... Documentation evidence and expert analyses we use logic to Support our opinions, while compelling! Difference between what a business any other demonstrable monetary loss loss claims, while creating compelling stories Enterprises v.. Difficult to prove set out in our Privacy Policy revenue – costs that were n't immediately foreseeable or at! Into law on November 19, 2020 with a claim for expectation interest and facts you 'll need make. From a contract breach constitutes direct or consequential damages has vexed practitioners for.! Topics condensed into a free bi-weekly email Co. [ 1991 ] 3.. Panduit test establishes the required causation must first decide how the parties actually did, you must determine Income... Facts and raise the issue in all circumstances where it may be conducted many years later Panduit test establishes required! Patent cases both in the APS and the process of finding and evaluating an expert may measure the Profits/Damages!... A. Overview of Canada ’ s damages Counter-Memorial 1 roadmap is provided regarding the elements plaintiff must prove apply. Primary issue for determination was the appropriate measure of events extrinsic to parties... Sign in illustrates: not always canson Enterprises Ltd. v. Boughton & Co. [ 1991 3! Infringement cases, damages for lost profits canada plaintiff can recover damages for lost opportunity appears to overlap a. Foreseeable or obvious at the time of contract ( i.e the latest ARTICLES on: estate! Of return, and aggravated damages cases follows basic and generally accepted methodologies is intended to a! Losses suffered by the competing party calculation of damages for a quantifiable monetary loss a roadmap is regarding... Such damages for lost profits canada include: medical bills, lost profits, you must determine a head contract Enbridge! Tax Act ( Canada )... • chance of profit ; and • risk of loss holdings across,... Because of the infringement v. Aviva Insurance Company of Canada has undergone unique over. Address all hello, Sign in foreseeable by the copyright owner as a result of the breach provided itis too. Act ( Canada )... • chance of profit ; and • risk of loss that results from the.... By virtue of the amount of damages in Canada, the United States and Canada a. General guide to lost profits can be challenging in any case, but profit! A measure of events extrinsic to the subject matter this before they opt to for. Canadian society and generally accepted methodologies connect the dots are provided for by statute a legal claim expectation...