of (a) a time and materials rate of $1450 per person (not to exceed
12 people) per day for each day of Data Conversion Services provided following the last completed milestone until the effective date of termination, plus a one time charge of $50,000 and (b) the amount due at the
next milestone, had the Data Conversion Services not been terminated.
Sapient submits that, given the termination date of June 29, 2009, the
amount that would be owing to Siemens in accordance with the formula set
out in Section 17.4 is $622,725.
In my view, the rule in Open Window does not apply to Sapient’s termination of the Subcontract having regard to its terms. Simply put, given Sapient’s intention to terminate the entire Subcontract pursuant to Section 17.2,
Section 17.4 is not an alternative mode of performance permitting Sapient
to terminate the entire Subcontract.
Section 17.2 of the Subcontract permitted Sapient to terminate the entire
Subcontract, including AMS. As I have found, that is exactly what Sapient
intended to do. It had no intention of terminating just the Data Conversion
portion of the Subcontract. On the other hand, Section 17.4, the termination
for convenience provision, applies only to the Data Conversion portion of the
Subcontract. Accordingly, termination for convenience is not an alternate
mode enabling Sapient to terminate the entire Subcontract. It follows that
because Sapient intended to terminate the entire Subcontract, it cannot rely
on the termination for convenience provision to limit Siemens’ Data Conversion damages.
The issue on appeal
 Sapient submits the trial judge erred in law by failing to
calculate damages for the DC services portion of the Subcontract
in accordance with the minimum performance principle. That
error attracts review on the correctness standard.
 Siemens argues the trial judge was “quite right” in his
conclusion that the minimum performance principle did not
apply. Since Sapient could not terminate the entire Subcontract
using the termination for convenience clause, the Subcontract
did not contain an alternative means of performance upon which
the minimum performance principle rests. Further, the reasons
in Open Window Bakery must be read in light of the decision of
the Supreme Court of Canada in Bhasin v. Hrynew, 
3 S.C.R. 494,  S.C.J. No. 71, 2014 SCC 71, which recognized an overarching duty of good faith and honest performance
of contracts. In the present case, bad faith characterized Sapient’s termination of the Subcontract. As a result, Siemens
argues, the minimum performance principle could not apply.
The minimum performance principle
 Compensatory damages are the usual measure of damages
for breach of contract. The expectancy principle governs the