Thus . . . reliance can only be fully protected, at least in a commercial
context, by a rule that measures damages by the value of performance,
enabling the plaintiff to recover what has been called the “expectation”
interest or damages for “the loss of bargain.”
Further, there is no evidence surrounding the formation of the contract
that would support a finding that it was the intention of the parties at the
outset of the Subcontract that the limitation of liability clause would
apply to prevent the recovery of loss of profits in the event of a breach of
For the above reasons, therefore, I conclude as a matter of interpretation
that the limitation of liability clause in Section 18.6 of the Subcontract
does not apply to Siemens’ claim for loss of profits arising from Sapient’s
breach of the AMS portion of the Subcontract. The claim for lost profits is
a direct damage claim and does not come within the exclusion in Section
18.6.1 of the Subcontract. As a result of my conclusion, as noted above
by Justice Binnie in Tercon, there is no need to proceed further with the
 The trial judge awarded Siemens damages of $3,575,990
for Sapient’s breach of the AMS portion of the Subcontract.
B. Positions of the parties
 Sapient advances two main arguments in support of its
position that the trial judge erred in concluding s. 18.6.1 did not
exclude a claim for loss of profits: ( i) the proper interpretation of
this exclusion clause involves an extricable question of law to
which the correctness standard applies; or ( ii) alternatively, the
trial judge made a palpable and overriding error in light of the
unambiguous and unqualified language chosen by the parties in
s. 18.6 to exclude liability for loss of profits.
 Siemens contends the trial judge’s interpretation of the
limitation of liability provision is a question of mixed fact and
law, reviewable on a deferential standard. His interpretation
was a reasonable one.
The standard of review
 In support of its argument that the correctness standard
applies, Sapient points to this court’s decision in Biancaniello v.
DMCT LLP (2017), 138 O.R. (3d) 210,  O.J. No. 2468, 2017
ONCA 386. Sapient contends Biancaniello stands for the proposition that the interpretation of a contractual term that uses
language common to other contracts — such as “consequential”
or “indirect” damages — involves an extricable question of law to
which the correctness standard applies.
 I am not persuaded by this submission.