REMEDIES

PART I MONETARY RELIEF

I.

REMEDIAL CHOICE: INTERESTS AND PURPOSES

A. Introduction
Fuller and Purdue, The Reliance Interest 1 • Why expectation damages? 1) advanced capitalist economy: allows you to treat future expectations as present value 2) juristic: sophisticated form of reliance damages 3) economic explanation: encourage performance of K’s when it is efficient and breach when it is not

2. Expectation Damages: Special Issues
Beal, Remedies for Breach 2 • the lost opportunity is assumed • in order to encourage performance of a contract when that will produce the most “efficient” use of resources, it is necessary to award full loss of expectation damages even if there has been no reliance on the K by either party Vernon, Expectancy Damages 2 • enormous amounts of assumptions: all losses are quantifiable and the parties have full info. • no deterrent against “efficient breach” b/c of cost of litigation, the aggrieved party may settle for less than expectancy R.G. McLean v. Canadian Vickers 1971 OnCA 3-4 Problems with expectation damages/double recovery • Fundamental Breach and Exclusion clauses • Purchase Price must be a debit against pl. • Future Profit no duplication btwn special damages and lost profit (use net) • Mitigation take resp. for damages incurred by failing to mitigate Baer, The Assessment of Damages (re: McLean v. Vickers) 4 • machine’s life expectancy should have been taken into account (longer than 2 years) • gross v.s. net profits! • “best case scenerio” wrt gross profits was wrong Toronto Industrial Leaseholds v. Posesorski 4b • pl. never would have got land (without encumbrance) for what he paid; he expected a piece of land worth $325,000, so give him the diff. btwn that and what he got ($225,000) • sued his lawyer b/c he promised unencumbered land Messeneo v. Beale 4b • pl. bought land and thought that it included “Merches Point” • lawyer never promised MP, just did a title search

3. Reliance Damages 5
When are reliance damages awarded instead of expectancy? (1) when ex. dam. are too uncertain (McRae) (2) when ex. dam. are too great /small; (3) tort claims

What is included (1) only wasted expenses; (2) not expenses where pl. derives benefit (3) pre-K expenditure in special cases (Anglia TV) Can Reliance Dam. exceed Ex? NO (Bowlay Logging) bad bargain is the pl’s problem Ogus, The Law of Damages 5 • losses other than expenses are recoverable (property/service) • overlaps with restitution interest • remoteness and forseeability are factors (time and purpose of expenses) incidental expenses—must be forseeable expenses after breach—mitigate exp. incurred bf K—reasonably foreseeable? (Anglia TV) “perhaps the best solution would be for the reliance interest award to incl. those expenses incurred from after the time when there was substantial agreement btwn the parties” • reliance damages may be the pl’s only claimable damages (profit too remote; exp. too speculative) Bowlay Logging v. Domtar LOSS EXCEEDS GAIN 5b-6 • expectation damages are a cap on reliance damages; only nominal damages awarded; real source of loss was from the bad bargain; reliance damages will not be awarded to put the pl in a better position than if the K had been performed • presumption: entire amount assoc. with performing the K is awarded unless the df. can rebut this; the onus is on the df. to prove the quantum of the pl’s expenditure (capital costs for eg.) Sunshine Vacation v. The Bay CONTRACT PROFITABLE FOR PLAINTIFF 5b-6 • same as Bowlay except df. was unable to prove losses would’ve been suffered • pl must claim either reliance (working capital) or expectancy (lost profit) damages (they are alternatives) • working capital is recoverable b/c there is a presumption that the business would’ve at least broke even Burrows, Remedies • the pl is always free to claim protection of his reliance interest (wasted expenditures) or lost profits Cullinane v. British Rema Manuf. Co. Lt.; Anglia TV ; CCC Films (London) Ltd. v. Impact Quadrant Films Ltd [1984]: “the pl has an unfettered choice” • but, this will not allow the pl to escape a bad bargain Bowlay Logging • the burden of proving that the pl has made a bad bargain is on the df CCC Films • the standard of proof is the balance of probabilities Commonwealth of Aust. v. Amann Aviation Pty Ltd 1991 Contract and Tort contract: give the pl. the benefit of the bargain tort: restore the pl to the position they would have been if the tort hadn’t occurred NEGLIGENT MISREPRESENTATION Beaver Lumber v. Mclenaghan 7 • reliance based damages for neg. misr (tort) “man for the job”—casual conversation • damages must be direct and foreseeable; opportunity costs can be included • consequential losses: the total amount spent – the acv Esso Petroleum v. Marsden 6b • gas locale problem • opportunity costs = living wage • out of pocket expenses were recoverable

was it worth it to breach? • court didn’t see them as “bad guys” (unlike Townsview) Note on Surrey County v Bredero • df built 77 rather than the permitted 72. Parkside Homes Ltd. patent belongs to the df (not what the df saved. did not prove that pl would still have entered K even w/out neg. (fair value) rent for the period of wrongful detention of the portable switchboards Wrothman 8 • destruction of houses refused as this would be waste. 8 • houses not torn down…. Mason v. Bank of Nova Scotia 7 • bank gave express assurance re: financing • reliance + lost profits awarded as Mason would have made profit elsewhere (ct did not want to call it expectancy…. D.N. look at proportion of losses caused by neg. not been relied upon • dissent must be causal link for damages. 8 • df.R. v. but df saved 750. misr. misr. misr. argument that the pl’s bargaining opportunity was lost was rejected by the court and nominal damages only were awarded .K.) Rainbow Caterers v. should have disgorged entire profit if it is a fact that they would have been making very similar product without the info (diff from Seager where the info stolen was special) (b) Apportionment Edward 8b • 30% of df profits given to pl b/c pl owned 30% of the property that df’s tourist attraction was situated on (c) Savings Whitman 8 • damages were measured by what the df saved by trespassing and dumping soil on the pl’s land (only 200 in damage to land.V. what the pl would have charged…is there a diff?) (e) Punitive Whitwham v. on b’of p’ what position s/he would have been in had the neg. so award was 950) (d) Opportunity Costs Strand 9 • damages were the reas. Dam (a) Net Profit Peter Pan 9 • misappropriation of confidential bra trade secret • pl was granted the df’s net profit (revenue of sales – material/ labour costs) • not obvious that df. so damages assessed at the reas. and would have still lost money (sloppy business practices) • onus is on pl to est. C. Westminster Brymbo Coal and Coke Company 8 • df had to pay for what he saved for dumping soil…pl received windfall Wrotham Park Estate Co. Restitutionary Damages 7b Remedies for Restitutionary Damages recission K is over quantum meriut “for what it’s worth” benefit in nature of goods/services…what are they worth? accounting constructive trust restitution disgorge benefit Issues in Res. amount the pl would have demanded for relaxing the covenant (% of profit) Seager 9 • value of trade secret (invisigrip carpet grips) considered what a willing buyer desirous of obtaining the info would pay for it…once paid.

10 • df saved $7-11. but rent had to be paid • the df only had to pay rent…was this fair? is it merely a licensing fee? Peter Pan Manufacturing v. 000 that the df saved for unauthorized trespass on the pl property to anchor rebar and complete construction project…but this is restitutionary as it still makes sense to do it again. dam are still compensatory whereas punitive or ex. 9 • pl was entitled to all the df’s profit Seager v. Brisford Entertainments Ltd. v. are not linked with compensation. is malicious and motivated by profit (2) if the df acts in a bad way that aggravates the injury. Exemplary /Punitive Damages • a) b) c) Concerns re: Punitive Damages Cassell & Co Ltd v. they are available when the df.• distinguished Wrotham and said that the present case was a K case. “end run” around Criminal Code’s statement that there are no more CL offences Wallace v. after pl has been fully compensated (fines for criminal conduct go to the state) d) no specific amounts (unlike crimes) e) retroactivity f) rule of law concern people know what/when an offence has occurred. coach made him • coaches actions were so high-handed and arrogant with such a disregard for his duty of care that punitive damages were awarded --Grimshaw FORD pinto case --Doctor recommending unnecessary surgery just because s/he was interested in it (c) contract virtually unavailable. United Grain Growers 10-11 • DISTINCTION BTWN AGGRAVATED AND EXEMPLARY DAMAGES (1) agg.33 for special damages (soil testing) and $5500 for punitive (inexcusable and unwarranted trespass on the p’s property) • Cassels says that it is a mistake to call the damages punitive b/c there was no element that was compensatory…but since judges call them punitive. Ltd. unless special notice has been given that the pl attaches special value to the subject matter . unless it is so highhanded . (a) tort: any one that is “way over the top” and intentional torts (b) negligence not usually available b/c moral attitudes are involved. that would be the same as Peter Pan Tonwsview Properties v. later Eng. they only lost what they saved Valuation Issues in Restitution (Unpaid Work and Civil Litigation) reserve E.is this punitive? maybe if they had made use of the info. then aggravated damages are appropriate (3) punitive damages go way beyond compensation. go with it • unspoken variable: how courts view wrongdoing: court saw them as “bad guys” (unlike Wrothman) Austin v. not resitutionary principles Strand Electric Co. Rescon • damages were assessed as the $30. Vancouver Canucks 10b • hockey player who said he was too hurt to play.2) 9 • df got to keep the patent…. dam. 9 • no damage done. (No.000. CA held that Wrotham was right and was decided on compensatory. Corsets Silhouette Ltd. so without regard for pl’s welfare that neg. is morally blameworthy --Robitaille v. Broome 9b lack of due process evidentiary/Charter provisions do not apply social purpose is to punish and express outrage. therefore no loss. Ltd. award was characterized as $479. not a case dealing with resitutionary damages. Copydex. Sun Construction Co.

df knew that she was banking everything on the condo purchase EMPLOYMENT CONTRACTS Wallace SCC 11b 1) no non-pecuniary damages for wrongful dismissal as em’ee em’or relationships are purely economical and impersonal (Addis) unless the dismissal is independently actionable (Vorvis) 2) good faith/fair dealing are not implied terms of employment K’s. Hawthstone Manor 10b total disruption of life style. piece of mind is not K’d for 3) bad faith dismissal may give rise to an increased notice requirement -is this “category confusion”? sounds like punitive damages -is this fair? is “executive mental distress” more valuable -is dignity measured by salary should it be confined? (a) confuses function of civil law with criminal law (b) assessment by juries who are easily swayed by emotions (c) more than one def .--Kempling v.

“Remoteness of Damages” 13 FACTORS TO CONSIDER wrt REMOTENESS a) how likely is the action to cause the harm? b) are there intervening factors? c) what is the nature of the damage d) how blameworthy is the df? was it deliberate? e) did the df have a reas. Hicks 13b • pl lost her 1/12 chance of winning a beauty pagaent b. pig food got moldy. Remoteness LIMITING PRINCIPLES H. tha the party has suffered the damage. man at the time the tort was committed? (lower for tort) • economic loss time of the K • physical damage time of breach Kienzle v. unless disclosed Cooke.c she was not informed that she was a finalist. pigs got sick) • Breach of K were the consequences within the contemplation of a reasonable man at the time the K was made? • Tort were the consequences reasonably foreseeable by a reas. foreseeable and caused directly by the df’s actions • policy concerns are an obvious consideration in whether the ct will determine whether something is foreseeable • secondary transactions are too remote. • not necessary to have a positive medical opinion to support a finding of causation • scientific precision is not the standard. you’ve proven the tort. this is not enough. on the balance of probabilities. Snell 14 • the onus is on the plaintiff to prove causation and the degree of certainty • shifting the burden to the party with more knowledge (doctor) is not justified. chance of such loss or damage Farrell v. balance of probabilities is. Stringer 13 • causes which are reas.II. Lawson 15 • no damages recoverable for lost chance b/c the lost chance had no concrete value/benefit (she would die of cancer in any event) • got damages for psyc. v. Smith 13b • pl compensated fo lost chance (as lost earnings) of becoming a commercial airline pilot Laferriere v. but she did lose her chance of winning and this has value Conklin v. Certainty and Causation Schrump v. but you must prove on a balance of probabilities that a future event will occur • causation is proven on the balance of probabilities • assessment of damages: only necessary to prove that there is a reas. suffering and quality of life . LOST CHANCES—The problem with contingencies Chaplin v. Parsons (Livestock) Ltd. Koot 13b-14 • once you have est. Uttley Ingham 12 • “common sense” was all that was needed to see that damage was foreseeable (ventilator not open. the legal or ultimate burden remains with the pl. A. opportunity to limit his liability on an agreed term? B.

7 days for each of the 14 days required in dry dock for the second incident Bhopal.Safefurt v. cancer…) probabalistic damages tools: if you can prove a 40% chance. Burnaby Hosp 14b • damages awarded to compensate for pl’s lost chance of avoiding surgery Sunrise Co. the 14 days that the 2nd incident caused made no difference and did not add to the time docked. • dissent: apportionment should be used. The “Lake Winnipeg” 14b-15 • no damages b/c the boat was already on its way to the dry dock for 27 days. give 40% damages • economists like this b/c it gets the numbers right and acts as a deterrent • moral theorists don’t as it does not do individualistic corrective justice as you may pay for damages that you haven’t caused . Materials on Causation 14b eg: exposure to toxic chemicals…how do you prove causation when there lots of intervening factos (smoking. v.

17 • pl wrongfully dismissed and flipped co. for worsening his condition b/c his psychosis (schizophrenia brought on by the accident.C. then normal rules of causation apply) (b) nature of the pre-existing psychological infirmity • If there is conflicting medical opinion no duty to mitigate by consenting to treatment McGrath v Excelsior Life Ins Co • the def. so expected to enter marked @ first reasonable opportunity seller: diff in price at time of breach v. if yes. so damages awarded and pl gets to keep profits from sub. Boomars: pl not resp. time K entered into (only when it is possible to sell the goods) Defining Avoided Loss Erie County Natural Gas v. Ippolito 16 • apportionment as pl had an unreasonable extrodinary fear of surgery and should have mitigated by having the 70% success rate surgery (not complete bar as this is “thin skull” stuff) • Once it is est. Carroll 17 • only nominal damages awarded as pl secured other gas supply and did not suffer loss • “but for” the behaviour of the dfs would the pl have entered into the subsequent transaction? if no. bears the burden of proving that the pl should have mitigated Elloway v. that there is a pre-existing condition THIN SKULL (threshold) (a) timing (if not pre-existing. Moolla Dawood Sons & Co. goods price calculated at time of breach. then Apco applies and you get damages + you get to keep your profits Apco v.s. Mitigation Valuation of Chance of Avoiding Loss Janiak v. but pre-existing disposition) was a factur in his refusal and failure to mitigate MITIGATION APPLIED 16b property damage: repair quickly. no payment for reas. Trusts & Guarantee Co. transaction Cockburn v. then you should be able to show causation. Windmill Place 17 • not mitigation if the seller has the capacity to do subsequent transactions as well as the K that was breached. • profits realized arose out of the pl’s relations with the df and therefore only nominal damages were awarded since the pl suffered no loss. avoided losses wrongful dismissal: get a job sale of goods: buyer: diff in price. so the pl went beyond what was expected and this success was held against him Jamal v. 18 . assets and made a profit.

thus the K price was not a factor. not merely mitagatory Karas v. the pl were already financially maxed out and they were maintaining a legitimate claim for s. Canterbury City Council 21 • no obligation to mitigate as long as the def. v. Apeco v. Tyler 21 • pl were not required to mitigate at time of breach b/c house was not replaceable. Rowlatt 19 Jamal applies to damages= diff D. Moolla 18. is denying liability. subsequent tenant could’ve rented other space (other than the df’s K’d space) • subsequent transactions are only considered avoided loss where demand exceeds supply. the subsequent transaction would’ve been additional revenue. and lost he diff in the two values. and “it seems to me immaterial that by some good fortune with which the pl’s have nothing to do. Time of Assessment Jamal v. from a commercial point of view. Barnett Trading Co 18 • sale of goods cases if there is a marker for the sale of such goods • btwn K price and price at date of breach . Sea Oil & General Corp et al 20 • pl had a duty to mitigate as soon as was reasonable for him. financial stringency: pl couldn’t afford to mitigate if they couldn’t be assured the def. rapid drop in shares. 19b • time of assessment is time of breach • policy decision based on fair risk allocation (the pl bears the risk of post-breach price fluctuations) Asamera Oil Ltd. . existence of the injunction) • specific performance not granted b/c shares are fungible Dodd Properties v. to do so • unreasonable to expect him to mitigate at time of breach (adversarial rel’p with df. would pay for it doesn’t this absolve mitigation??? Wroth v. Windmill Place 19 • wharehouse was not fully occupied. he has been able to recoup himself what he paid for the goods.p. Hoyle & Smith Ltd.• the time of valuation of shares is the time of the breach. 66 of text book • sale of goods case—cotton • purchaser received inferior goods. any decision to hold on to the shares after this is at the risk of the seller • the second sale was not a mitigating transaction…may have done this anyway Campbell Mostyn Ltd v. Slater v.

no attachment by pl. Is specific performance available? Claimed by the plaintiff? [Evidence of intention] 6. 23 • full cost of repairs granted b/c this was a unique car with sentimental value. Williamson. (1977) . the greater the chance of getting reinstatement. Economic waste? would performance require demolition of work already completed? Damage to Chattels: cts generally deny repair costs that exceed the value of such fungibles CAR Dewess v. Hepworths Ltd. Westminster Scaffolding Ltd.Semelhago v. Morrow 23 • the pl was entititled to the fair value of the car just b4 it was damaged O’Grady v. Mannix Co. Parmadevan 22 • duty to mitigate at time of breach with real estate purchases…. (1978) 2. Hepworths Ltd. Availability and adequacy of substitute (chattels) 4. he could not replace it.R. Taylor Ltd. Nature of the plaintiff's interest in the property . 3. Taylor (Wholesale) Ltd. Mannix Sarah’s notes • full cost of repair to time of breach b/c court does not want to award increased cost o repairs due to delay (even though waiting to see if the smell went away might have been reas. Mannix Co.for consumer use? consumer surplus? Jens v. Relative economic benefit and reasonableness: the smaller the difference between reinstatement and diminution. no intent to spend own money Jens v. he had already spent some of his own money on repairs • consequential loss rent a replacement car…but he rented it for too long and this was a mitigation issue Darbishire v. v. b/c the billiard hall was on a development site • factors: commercial property.homes are now considered “fungible” (cookie cutter) Jens v. pl. Measurement Issues: Reinstatement or Diminution Summary of Factors 1. v. unreasonable to pay for cost of repairs Real Property Damage: cost of repairs awarded b/c property is not really fungible (commercial uniqueness.) E. 24 • house saturated with crude oil.R. and could not afford a residential lot large enough to accommodate a house and their “car museum” . Has work already been paid for by plaintiff? Evidence of what it was worth to the plaintiff 7. given full cost of repairs (up until time of breach as delay was unwarranted –could argue that waiting to see if the smell went away was a good ide) b/c they had lived on the lot for many years. 24 • minimal diminution value b/c pl had no intention to even rent out property. objective value) C.commercial investment? C. subjective attachment. Warran 23 • b/c this was not a special car. the fire put him in a better position. Intention of plaintiff to devote funds awarded to replacement/repairs/substitute performance? undertaking? 5. it was meticulously maintained • no danger that he would pocket the money.

Economic Analysis of Law 29 EFFICIENT BREACH: in some situations. thus diminution should be the value Miles v. df promised to build stone wall as part of purchase piece of property on pl’s land • pl suffered no financial loss. Marshall 169 text book • claim by landlord for damages for breach of a tenant’s obligation to surrender the premises in good repair • damages were limited to the actual loss sustained by the landlord. but courts don’t want to get into supervision of slavery) Betterment repairs increase the value of the chattel Harbutt’s Plasticine v. John Wunder Co. the pl was given the cost of getting what he bargained for. but cost to reinstate (like sized trees) $200. and betterment should not be deducted b/c the new design did not go beyond the cost of replacing the old factory (Denning) and this can not be credited to the df’s b/c this would be forcing the pl’s to pay for modernization that they might not have intended or required but for the df’s negligence (Widgery) James St. Wayne Tank 26 • cost of replacement b/c pl had no choice but to rebuild the factory right away (keep their business going). • to require the df to only pay diminution would encourage willful breach • dissent: purpose of damages is to compensate for loss. (even though impecuniocity is generally not a factor —people should have insurance) Kates v. awarding the cost of performance encourages the wasteful completion of K’s Radford v. it is more efficient to breach. Hall • df cut down 13 trees diminution almost zero. not to punish for breach. DeFroberville 28 • pl awarded cost of building wall as. pl does have reasons for valuing trees • $2.• factors: pl was old. but allowing df to get away without building wall is like allowing the df to steal the price of building it unjust enrichment • pl bears burden of proving value of loss Groves v. Hardware v.00/tree in punitive damages (tempting to make df plant trees. but add back on sum representing opportunity costs of capital deduction/investment df’s actions forced the pl to make Breach of Contract concern re: unjust enrichment Posner.000. thus. diminution of the value of the property by reason of the non-repair Ruxley Electronics v. Forsyth 28b . Spizzirii 27 • take betterment into account by deducting from damage award any windfall portion/increase in value of goods. (MinnSC-not followed in Okla) 28 • cost of performance is available for commercial/industrial property (level the sand quarry).000. poor and df was big oil co.

and cash in pocket? • factors df did not benefit from unjust enrichment and if df were forced to pay the entire amount of having the pool redone then the pl would have a windfall gain (really?) .• damages: how much money would it take to make the pl indifferent between a pool that is 9 inches too shallow.

Canada has increased wrt to “patient’s and prinsoners’ rights”as a direct result of litigation. then no compensation is granted (58 yr old milkman who couldn’t even pay to have someone turn him over a few times a day). it is uncertain and unpredictible.’s do. Approaches to Compensation Introduction Ontario Task Force on Insurance 486 CB • the “Insurance-Deterrence Dilemma”—modern liability insurance. Personal Injury 515 CB most accident victims are not compensated • • . somewhat like a “lottery” (whether one is lucky enough to be injured by someone whose conduct or product can be proved faulty. DAMAGES FOR PERSONAL INJURY OR DEATH A. availabililty of additional income replacement benefits. to recognize new needs. has been abolished and fixed entitlements have taken their place. there is enormous delay (2-13 years. finally the expense: a laarge portion of every premium dollar is eaten up by the transaction costs of the tort-insurance system • No-tort v. whether one is lucky enough to retain a lawyer who can exploit all the vairables before an impressionable judge or jury. and swept away the CL action for damages and instituted the Worker’s Compensation scheme. their insurance co. Canadian’s appreciated that the problem of industrial injuries involved not legal but social issues. the accident compensation bureaucracy. premiums just go up years later • Torts and Compensation: if no fault is found. it takes forever when you do.s No-fault: compensation is no fault. and to recognize new economic realities. for all injury • • Klar “New Zealand’s Accident Scheme” 495 CB the legislated program. to set new standards. courts have ben able to expand and contract liability. inj. injuries not surprising that provinces have legislated some form of no-fault benefits (Quebec:right to sue in tort for pers. Ont: partial no-fault scheme: right to sue is reserved for very serious injuries) and compulsory liability insurance Law Commission. limits are sufficient to pay. there is no rel’p btwn the severity of the sanction (damages award) and athe degree of “fault”. the wrongdoers do not pay. whether one’s own innocence or faulty conduct can be proved. whether the party’s ins. for all accidents. This state monopoly ensures that there is an optimum rel’p of cost to benefits and a compensation function with a regulatory system to deter some types of hazardous workplace behaviour Weiler. but penalty rating and premium pricing will be dependent on fault. Teno v.III. only 1/3 to ½ of accident victims are compensated. are we subsidizing dangerous behaviour • judges may try to find fault where none exists just to ensure that injured people are looked after • why is it not a deterrent? most injured people do not sue. Reshaping Worker’s Compensation 498 CB * • • Automobile Insurance 510 CB MVA account for 25-30% of all pers. including graphically portraying whatever pain one has suffered). Arnold took 9 years!). Woodhouse “A Challenge to the Law” 497 CB more than 60 years ago. has become inflexible and insensitive and too insurance oriented—and reform has been taken away from the courts and put in the hands of politicians and bureaucrats.

cannot successfully achieve all the goals claimed for it the tort system performs so poorly in compensating most victims of pers. Prince George Duration and the Problem of Lost Years Semenoff v.• • • • • • • • • • • • • • delay in the litigation process (financial effects of this) rel’p btwn injury effects and damages…not consistent or rational the failure to return to work and adequacy of damages: few victims realize how little they have received to compensate for lost income. so its scope should be restricted to situations where its effect seems likely to justify its high cost the regulatory system has achieved varying success in reducing per. inj. damages. Exploring Accident Law 519 CB emperical evidence has convinced us that a single instrument. inj. deductibles for short-term pecuniary loss. in dump it where it doesn’t work. Trebilcock. Solowan and Public Trustees . Arnold Andrews v. the tort system. Notes Non-Pecuniary Losses Lindal v. wage loss replacement. Overlap and Contingencies Notes Penso v. expand where it does compensation systems can create substantial deterrent incentives through risk rating of premiums and through the design of benefits to reduce moral hazard problems accident costs should be internalized to classes of activities and to individual actors compensation in MV and medical malpractice should be dealt with by no-fault: risk –rating of premiums. Lindal Notes and Questions Loss of Earning Capacity Teno v. Grand and Toy Thornton v. elimination of non-pec. that we should abandon tort as a means of pursuing this compensation objective the tort system performs unevenly in deterring the causes of pers. the need for independent financial advise the burden of unpaid care “in-kind services” Dewees. Grand and Toy Alberta Ltd. Duff. Kokan Future Care. medical and rehab costs workers comp should be retained for workplace injuries but lose product liability suits B. Personal Injury Damages Assessment Introduction Andrews v.

must prove these losses. they are not recoverable or else this would be double recovery • wages paid pursuant to a contract of employment are not = to private insurance proceeds and are not an exception • if pl. Flannigan • pl receiving welfare while unemployed as a result of a MVA • held: welfare payments are benefits provided to persons in need…there is no difference between welfare payments and private or public benevolence • employment insurance is also not deductible • collateral benefits pursuant to collective bargaining agreements or private contracts of employment are also not deductible as they are = to private insurance (Raclos et al.see children’s section ) Discount Rates Lewis v. and the ins. v. Grand and Toy 20% Thornton v. Habib • MVA resulting in the pl’s whiplash (“pl was highly susceptible to pain”—nice thing to say!). Smith 20% City of Calgary v. Gray • MVA. Notes Collateral Benefits Intro Boarelli v. Wyatt) Carde v. has given up a benefit in exchange for the wages Nanji v. situtation might be different if the pl. Neumann was not approved where sickness and accident benefits were deducted Ratych v. Todd 0% Conklin v. if no actual wages are lost. ins. co.• 20% . Prince George 10% Lewis v. she received disability payments and therefore suffered no wage loss • she paid ½ of the premium and her employer paid the other ½ • distinguished Ratych and said that disability benefits were like insurance and therefore not deductible (applied Davis v. Jennings • life expectancy reduced from 22 to 5 years. permanent hospitalization and unconscious • no deduction for income tax because to assess the incidence of income tax would unduly preference the def. pays for the policy. Houle CA: future earnings reduced by 20% contingency: pl might take advanced education and get paid more because of his inability to do most types of manual labour (which is all the “poor white trash” kid had a hope of doing before the accident----. it is like priv. Todd Taxation The Queen in Right of Ont. An injured party is entitled to receive full & fair compensation. and the pl. pl was off work for several mos. • as a gov’t employee.any more requires “unusual factors” Andrews v. pl was paid 19 weeks of sick pay and 3 weeks of holiday pay . Bloomer • cop hit by an impaired driver receives wages for 3 ½ months while he was off work (pursuant to a collective bargaining agreement) • compensation is the underlying principle in the law of damages. calculated to place him in the same position as he would have been had the tort not been committed • actual losses are recoverable. v..

short-term weekly indemnity benefits received from the Employees Benefit Assoc. but at the time of the accident had logged 40 flight hours. no deductions from pay. had formidable hurdles to overcome in order to obtain a commercial license & although it was unlikely that he would . (the fund consisted of deductions from wages rather than existing as a scheme of ins. suffered the loss of a future right to sick benefits and was not on a holiday when he received his holiday pay • referred to Ratych and concluded that McLaughlin intended a further exception to the gen’l “double recovery rule”: if an employee can est. had health qualifications and therefore had a reasonable probability of becoming a commercial air line pilot Hearndon v. but made up part of hourly wages Cun’hm:long term disability benefits—sub. wanted to be a commercial airline pilot  Trial: $65. Cunningham v. Smith  MVA. Was a sawmill worker. Rondeau  MVA resulting in pl suffering brain damage.000. This was insurance. caused headaches.) • held: deductions were to be made to prevetnt double compensation. Hanna Mason v. they should be compensated Carano v. CA: reduced to $2. McNee Cooper: disability benefits pursuant to a collective agreement. Miller.  $200. ins. policy Fatal Injuries and Third Parties Keizer v. lost chance of becoming a commercial helicopter pilot. Peters Notes and Questions Capacity or Wage Loss (a) lost chances Conklin v. co. Wheeler. Cooper v.• benefits were not deductible as the pl. no payroll deduction Shanks: short/long term benefits provided by collective agreement—30% payd by employee (payroll deduction) 70% paid by employer • Cooper and Cunningham appeals allowed and Shanks appeal denied because the benefits were seen as a private insurance policy. which impaired his memory. pl loses leg. em’ee and em’er paid premium short term disability benefits—no sub. that s/he has suffered a loss in exchange for wages. had the same subrogation rights as that of an ins. Shanks v. the assoc.000. Brooks • MVA. had the right to be repaid and therefore the assoc. clause. depression and mood changes.clause.00 for lost chance—although the pl.500 b/c he may not have made it as a pilot  SCC: restored TJ’s amount as pl had shown academic excellence bf and after the accident. Collective agreement benefits are not deducted because they are bargained for and were obtained by a decrease in the hourly pay • deductions from hourly wage will result in a finding that the benefits were in the nature of a priv.

Chung  pl. so $360. the teaching nun. so. would have worked most of the time…. 20% contingency and deductions for poss.$410. ½ way through teaching cert.have achieved his goals. but dismissed against landowner (had no control over the situation)  the principle “no duty to a trespasser” does note apply to an alluring and dangerous activity (alluring ferns?). gave all her money back to the poor poor church (how much money does the Vatican have?…why is it that the women have a “vow of poverty” (I thought that just came with the ovaries…)  held: it is basic that a person could do. Thus.00 awarded Turenne v. the Ct concluded that the pl would’ve been in an unskilled occupation. Patterson  female pl.00  CA: contingency: pl might take advanced education and get paid more because of his inability to do most types of manual labour.00 awarded for lost wages. now permanently unemployable  TJ: $41. came from a broken home with a low family income and a large # of siblings. but deductions were too much. loss of future earnings reduced by 20% (“poor white trash” kid…. intelligence and experience.000 was too high.see the section on children to see why I would write this) (c) Voluntary Underemployment Blackstock v.000. City of Calgary  child climbed over fence and into electrical transformer & suffered severe electrical burns and lost arm below elbow(transformer was in a residential area. child was not contributorily negligent b/c he was acting like a child of like age. Rail (d) Depressed Awards Due to Gender and Race (i) gendered and racialized assumptions: level of earnings .272. what he or she wished to.00 for future income Wipfli v. of marriage and other reasons she might not work  CA: TJ duplicated several contingency factors and deducted money for the probability of marriage even though there was no statistical evidence to support such a deduction and made other deductions that were not applicable considering his finding that the pl.  considering that he pl.000. (b) Children Teno v. Arnold  infant pl: $54. with his or her earnings Varkonyi v. 353. there was not conclusive reason why he would not have achieved his goal .. Britten Houle v.P. Difference between what he would have made and is now going to make $96. close to a school and now obselete)  action allowed against city (noticed problem in 1975 but did nothing). C.

924.00 a year….Toews v. Evidence was that in Victoria. Sollowan • loss of future income for woman with short and inconsistent work record. Further. communication problems. he was going to get her a job at Canada Post (nepotism is a beautiful thing). left without the use of her arms. unable to work or enjoy social life. muscular spasms…could only walk with difficulty in a crouched position • held: her gen’l damages should not be calculate on the basis of her futuer income as an x-ray tech as. Arnold • 4 ½ year old pl would make above poverty line…but 20% contingency b/c the pl may have sought to live on welfare or marry. hands or legs. 608 was for loss of earnings (…. • pl was employed as an x-ray tech. needs constant personal care. her pre-existing back problems would prevent such long-term employment ($75. that’s $221. gait and balance were poor • TJ: prior to accident.she would likely not work till 65 b/c she would want to be with her family and husband. McKenzie • female pl in MVA. Penso v. sounds like the lady was really suffering!) • only other job that she had held was helping out at the hardware store that her hubby operated. and was permanently disabled as the result of spinal injury. Nicholls • MVA. Maple Lodge Farms Ltd. she was supported by her male CL spouses. there is a never-ending need for casual help.000. 70% contingency deducted from future earnings as ct thought she only needed to live at the poverty level • CA: in the absence of unusual factors. only $10.she was 17.00 in damages. had she not been injured. severe head injury resulting in defective IQ. she would probably have married and ceased working Quick v. • held: she does not have a proven track record of continuous employment outsinde the home…. 242)) . life expectancy was reduced from 50 yrs to 35-40 yrs. not contributory negligent as the driver was “dominant” over her and she was under compulsions to be in the car (even though he was a speeding drunk) • of the $431.12⊄ an hour for the rest of her life…nice!) Teno v.00 awarded (she wanted $137. sevre pain. coordination. female plaintiff suffered severe whiplash and arm pain (although doctors couldn’t explain why she was in so much pain. depression. no more than 20% should be deducted for contingencies (ii) duration: contingency that pl would have married Caco v.

was unable to perform physical work for the next 45 years • $75.Lang v. Burnaby • doctor negligently cut off oxygen supply to infant during birth resulting in severe brain injury • life expectancy is now 18 years. Hawthornthwaite • the pl’s future earnings will be modest and will be made in a “sheltered environment” Tucker v. working as a labourer. Sollowan Clarke v. so all income earning years were lost years • estimate of present value of a stream of income from 19 – 65 years old for a . Groedecke the inability of the pl to show a past history of employment did not preclude her from claiming compensation for loss of future earning capacity • (ii) Lost family income Blackstock v. Johnson Estate Olah v. Asleson Toneguzzo-Norvell v. Porter • pedestrian MVA. Messervey Newell v.00 awarded (what about the probability of him getting married??… plumbers do marry rich female lawyers you know) (iii) duration: contingency that pl. will still marry Penso v. pl was 20 years old with limited education. Patterson Reekie v. Clarke (iv) duration: early retirement Boughey v. b/c of accident.000. Rogers (v) systemic discrimination (A) gendered statistics (B) racialized statistics (e) Countering Bias (i) positive assumptions as contingencies Oppen v.

Westlock PART II: EQUITABLE REMEDIES IV. required extra help b/c her child was hyperactive. v. B. Fedor • pl. H. Ferries Fobel v.woman with post secondary non-university education (but reduced by ½ for expenditures) (iii) Lost Household production (A) enhanced awards for cost of care Waterhouse v.C. INJUNCTIONS A. Connors (B) express valuation of non-market capacity Quick v. also required • evidence that marriage would break up and there fore would need extra cost of homemaker • $100. Asleson MacCabe v. (ii) gender and race-neutral statistics Tucker v. Bealy Palmer v.000 for lost future earnings. Introduction B. Nova Scotia Forest Ind. Rodgers Notes and Questions . counseling. companion services. Nicholls Kwok v. Dean (f) Countering Systemic discrimination (i) improved earnings as a positive contingency B. cost of psych. homemaker services. Hooper v. Quia Timet Injunctions and the Problem of Ripeness Fletcher v. even though she had limited work experience and had stayed at home—there was a reasonable possibility that she would have been able to earn income in the future Busche v.

particularly in the demestic situation.C. Spur Industries Inc. Injunctions to Protect Property Interests Introduction Goodson v. but hubby moved in after the couple separated without the wife’s consent. should have exclusive occupation Criminal Code s. with reasonable grounds.C.C. The court held that the presence of the df. that pl. 810: allows an information to be laid (no formal charge is required) before a justice of the peace by or on behalf of any individual who. Atlantic Cement Co. 77: a court may order that one spouse be given exclusive occupancy of the family residence s.C. Ltd. Family Relations Act s. fears another person will cause . Domestic Violence and the Family Home An important use of the injuction is to prevent violence. Hock (1995) B. 79: a court may restrict contact by ordering that one spouse shall not enter premises while the premises are occupied by the other spouse or a child in the custody of the other spouse Hock v. v.S. • in the situation where the husband is the legal owner of the houe. thus “bullyin her out of her rights” B. Richardson Wollerton and Wilson v. but not to exclude the husband unless he has been guilty of desertion and cruelty and is likely to drive her out of the home. John Trenberth Ltd. was so upsetting and traumatic to the children and the pl. the wife’s equitable interest confers upon her the right to stay in the home. jackson Sharpe. Duggan [1965] Ont. Nuisance Miller v. Nat. Richard Constain Ltd. Injunctions and Specific Performance Boomer v. wife. Webb F. Mandatory Injunctions: Definitions and Supervision Redland Bricks v. • no violence. Westminster Bank A Note of Post-Judgment Bargaining Alternatives to Injunctive Relief E. Duggan v. Del E. Morris Notes Questions and Problems D.

Irreparable Harm Mott-Trille v. Criminal Equity: Injunctions to Protect Public Rights The Role of Attorney General and the Courts Gouriet v. of Nova Scotia v.G. Alberta v. or to his or her child. the person will be ordered to enter into a recognizance to keep the peace and be of good behaviour and comply with other reasonable conditions G.G.G. A. British Columbia v.B. INTERLOCUTORY INJUNCTIONS A. Ethicion C. Special Situations Films Rover v. Beaver Public Rights Injunctions in Labour Matters The Role of the Individual: Standing Problem V. Accessibility Threshold American Cyanmid v. C. Steed Hunt v. Cannon Film Sales Cantol Ltd.C. Couillard A. v. Canada D. Brodi Chemicals Canada Metal Co. v.personal injury to him or her. Union of Post Office Workers A. Plantation Indoor Plants Ltd. Introduction B. .

v. Kelvin Gateway Village Inc. Strength of Applicant’s Case Chitel v. Undertakings Viewegar Construction v. Atkin Cdn Pacific Airlines v.A. v. Mareva Injunctions Development and General Principles Mareva Compania v. International Bulkcarriers S.E. Sybra Food Services 7) Obtaining a Mareva: Balancing 1. v. Industries Ltd.S. Rothbart 2. Risk of Lost Assets/Removal MacIsaak. Marc-Jay Investments Inc.F. v. v. Unimarine S.A. Aetna Financial Services Ltd. The Pythis 5) The Reception in Canada O. Clark & Co. v.. Feigelman 1) Introduction: The Established Rule 2) The Problems 3) Lord Denning to the Rescue: the Mareva is Born 4) Post Mareva Jurisprudence: English Developments The Siskina Third Chandris Shipping Corp. Hind 6) Post Aetna: Availability within Canada Bradley v. Liberty Nat’l Bank & Trust Co. Rush F. Koopmans .

v. Dunkeld Ranching Ltd. Gov’t Trading Corp of Iran 3. Rothbart 5. Perusahann Allen v.3. Jambo Holdings Ltd. Ζ Locating the Assets and Examining Def. Types of Property Rasu Maratima S. Doobay Banco Ambrosiano Holdings v. Priorities Wagner v. v. Ltd. Existence and Location of Assets Ashtiani v. Location of Assets Ashtiani v. The Order 9) The Rights and Liabilities of Third Parties and Extra-Territoriality Z. Kashi Zellers Inc. Domestic Defendants 2. Barnes 5. Weldon . 6. 4. Dunkeld Ranching Ltd. Ltd. Disclosure Chitel v. v. Derby v. Doobay Banco Ambrosiano Holdings v.A. 4. A-Z and AA-LL Ltd. v. v. Damages Undertaking Allen v. Northern Sales Co. Jambo Holdings Ltd 8) Recent Developments and Refinements 1. Kashi Zellers Inc.

Dominion Coal Dominion Iron & Steel Co.G. General Principles The Limited Availability of Specific Performance Farnsworth. B. Ltd.10) Interrogatories Sekisui House Kabushiki Kaisha v. “Anton Piller Orders” Procedural Safeguards and Implementation Bardeau (Ltd. v. Anton Piller Injunctions Anton Piller K. Gray Ryan v. v. W. B.C. Mutual Tontine Tanenbaum v. Berryman. Long Term and Relational Contracts Specific Performance Dominion Iron & Steel Co. “Economic Analysis of Law” Schwartz “Case for Specific Performance” Equitable Considerations Falcke v. “Legal Remedies” Posner. Crown Food Services H. Nagashima G. Manufacturing Process Ltd. Anti Suit Injunctions Amchem Products v.J. Dominion Coal (P.) .) v.C. Bell Paper Co. v.SPECIFIC PERFORMANCE A.

Britton D. Ali Stewart v. Ginder Thoma Borthwick Ltd. v. v. Personal Service Contracts Lumley v. Land Contracts Semelhago v.B. Klodt Laches . Discretionary Reasons for the Denial of Relief “Equity will not aid a volunteer” Riches v. Rowland Metropolitan Electric Supply Co. Management Ltd. Amvrosina The “Clean hands” doctrine Cerilli v. v. Nelson Detroit Football Co. Pictures Inc. Renard C. Ltd. Wabush Prairie Hospitality v. v. v. Parmedavan E.I. v. Burns Inadequacy of Consideration Hardship Patel v. Dublinski Page One Records Ltd. Wagner Waner Bros. South Otago Freezing S.Injunctions Fothergill v.

Government of Canada Mutuality Hanbury. Modern Equity .Grauer Estate v.

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