Law360 Canada ( November 12, 2025, 11:02 AM EST) -- Appeal by FPS Food Process Solutions Corporation (FPS) from trial judge’s decision that reduced its set-off and dismissed its counterclaim. FPS entered a contract (the Contract) with XTL Inc. (XTL). XTL repudiated the Contract and brought an action to recover the partial payments it made to FPS. In its response to civil claim, FPS claimed for a set-off for costs it incurred prior to XTL’s repudiation and filed a counterclaim which sought damages for its anticipated lost profits on the Contract. The trial judge held that FPS could not recover all of the set-off costs it claimed because it incurred some of those costs when FPS was under a duty to mitigate its damages. The trial judge also dismissed FPS’s counterclaim, finding that FPS had to elect between a claim for reliance damages (the set-off amounts) and expectation damages (lost profits), and FPS failed to establish with accuracy the profits it would have earned. On appeal, FPS argued that the judge erred in finding that it had a duty to mitigate before the Contract ended. FPS argued that the judge erred in finding that it had to make an election between its claim for a set-off and lost profits, and in imposing a standard of accuracy in assessing the claim for lost profits....