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Remedies Outline
Types of Damages Compensatory Pecuniary Capable of mathematical calculation NonPecuniary: e.g. pain, suffering Non-Compensatory Punitive Nominal (e.g. trespass)

Special Damages: Can be calculated with precision. Hv to plead and prove. E.g. lost I, out of pocket expenses

General (can be difficult to estimate)

Liquidated Damages: Parties agree in advance on amount. E.g. breach of restrictive covenant, which provided for specific penalty. Must be a true estimate of cost, not punitive.
Andrews trilogy: $$ can never truly compensate, but courts use $$ anyway. Four limitations on full recovery of damages: (1) Remoteness, preventing recovery for anything too “fanciful” (2) Certainty, usually applied to future losses, e.g. 15% chance of loss of vision, (3) Mitigation, referring to Pl’s responsibility to reasonably minimize damages, (4) Causation, a limitation on the “but for” test. “Choosing Remedies” article by Sheila Block: • Guard against the common problem of being overly-focussed on questions of liability, and be sure to properly assess the appropriate and likely remedies. • Thoroughly canvass who may be sued for relief, and weigh the pros and cons of naming each. • Assess possible venues for suit – e.g. disciplinary body, securities commission – in addition to court. Consider that courts are slow, and interventions more easily granted to others by administrative tribunals. Also: cost, timing, precedential value and privacy. • Consider contract vs tort claim. Which will yield greater damages? • Consider the value of pressure tactics – going for a more draconian remedy. • Consider PR value/damage from each remedy sought. • Consider effect on future business relations.

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• • • • • • • Would an injunction weaken your bargaining position, by depriving your client of potential of getting an accounting of profits from the defendant? Would refraining from seeking an injunction encourage quick settlement, because of the mounting uncertainty over a court award? A constitutional question in the suit slows down the process. Have you exhausted the required administrative remedies? Keep your options open: e.g. If you seek specific performance of a contract, do not seek return of the deposit. If a landlord wants unpaid rent, he shouldn’t change the locks thereby forfeiting the lease. Warn client that the choice of remedy affects the time it takes to get one. Time is also affected by the complexity of the claim and the number of parties. More modest requests are more conducive to summary judgment. Strategize: consider presenting court with options, or whether you are trying to win “too big”. With extraordinary or innovative relief, consider how practical your request is. Courts favour conventional monetary remedies. Interesting policy question here, and there is some controversy over this: see Holmes/Storey debate on p. 10 of CB. Holmes says breach of contract ought to mean payment of damages. Storey says it should not be up to the wrong-doer to choose whether to honour the contract, or simply opt out and pay damages. That favours the wrong-doer. This focus on the moral appropriateness of the remedy is further developed by Prof. Charles Fried (p.192) who says contracts should be equated with promises, and our moral ethic that people ought to honour their promises can be imported into the law of remedies. Professor Grant Hammond (author of article “Rethinking Remedies”) says there should be “greater neutrality between common law and equity remedies.” Madame Justice McLachlin in 1993 wrote that Canada does use equity “to modify the rigours of contract and tort.” But Hammond questions the very presumption that equitable remedies only apply when damages will not suffice, and says our courts should go further than they have. C.A. Wright, an American legal scholar, cited a hierarchy of factors that should determine awards: (1) prevention; (2) punishment if it will encourage deterrence; (3) giving the person wronged the choice rather of damages or equitable remedy than the wrongdoer; (4) if Pl elects $$, it should be based on the greater of the Pl’s loss or Def’s gain; and (5) any doubt about whether to use the plaintiff’s loss or the defendant’s gain as the proper measure of the award should be resolved against the wrongdoer. The law of remedies can be flexible, in refusing to grant the usual remedy. E.g. a hardship can be a bar to what would normally be an order for specific performance (e.g. sale of a house), where the hardship is extreme and compelling, and would amount to an injustice, (Patel v. Ali) or where there would be a great disparity between the benefit of the remedy and the damage to the defendant (Boomer v. Atlantic Cement – court refused to prevent factory from creating dirt, smoke and vibration in order to protect rights of neighbours.) Equitable relief was restricted to property disputes by Lord Eldon in Gee v. Pritchard (1818). This was abandoned for a time (see list on p. 190), but the imposition of unusual awards for equitable relief is considered to carry of the risk of harming the dignity and prestige of the courts (e.g. injunction against making rude faces). The author encourages the courts to use the Courts of Justice Act provisions for tort remedies as a model, and extend the use of “structured settlements” into areas such as commercial cases where a plaintiff needs an income stream. (p.190) Constructive trusts and specific performance provide plaintiffs with property rights  greater security than a monetary award, which makes the plaintiff no more than a creditor of the defendant. McLachlin C.J.J. recommends both “certainty” and “sufficient flexibility” to do justice in the individual case. See article.

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4 1) REMOTENESS
1ST Question: whether to frame the action in tort or contract. • Tort: what is the reasonable foreseeability of damages? • Contract: (a) what damages would ordinarily flow from breach? (b) what was the reasonable contemplation of the parties at the time of the contract? (Consider walmart/pro-photographer) Need a higher degree of probability in contract, b/c assumption that parties are equal. In tort, Pl had no opportunity to protect himself. Hadley v. Baxendale (1854) (mill shut down for 7 days instead of 2 when equipment delayed. New trial ordered.) Two-part test for remoteness 1) Objective: • What damages arise fairly, reasonably and naturally from the breach? • Damages must reflect the reasonable contemplation of the parties at the time of the contract. (Certainty not required, just that the parties were aware.) 2) Subjective: • If special circumstances were communicated and known to both parties, damages should reflect this. (It wd be unfair to hold a party liable for sp circumstances of which he was unaware, and might have provided for, e.g. with insurance, given the opportunity.) • What is the nature of the parties (e.g. in this case the shipper was just a shipper). • What is the relationship between the parties?” Parsons v. Uttley Ingham (1978) (mouldy pig nuts. Denning sympathizes w- Pl and his fine herd of 700 pigs. Scarman finds for Defendant.) Denning (dissent): • In loss of profit cases, the Def is only liable for losses that were contemplated as a serious possibility in the event of a breach of contract. • In physical damage cases, the Def is liable for any loss or expense which he reasonably ought to have foreseen at the time of the breach, even if it was only a slight possibility. Scarman: • The Def is only liable for losses that were contemplated as a serious possibility in the event of a breach of contract. • What matters it the type of injury (broad category), not the specific loss. • The test for remoteness is the same in contract and tort – reasonably foreseeable and contemplated by the parties at the time the contract was made. ... “the law is not so absurd as to differentiate between contract and tort save in situations where the agreement, or the factual relationship, of the parties with each other requires it in the interests of justice.” Asamera Oil (1979) SCC • the same principles of remoteness will apply to claims made in tort or contract subject only to special knowledge, understanding or relationship of the contracting parties or to any terms express or implied of the contractual arrangement relating to damages recoverable on breach. Kienzle v. Stringer (1981) OCA (negligent lawyer fails to convey farm property properly, resulting in the failure of its subsequent sale  (1) loss of profit b/c seller had let go of lease for neighbouring property in expectation sale, and (2) lost opportunity to benefit from increase in value of desired property. Court gives damages for (1) but not (2) because too remote.) • Potential profits made from secondary transactions are too remote. Not reasonably foreseeable. To argue this case is not good law: • The court ignores the obvious fact that lost opportunity to invest is entirely foreseeable.

saying: • once is causation est’d. (2) chance of loss. the test is lower. innovation. Court applied Shrump. even if the particle had been detected. Immediate losses (1st 3 years) were discounted by 25% to account for likelihood that some business wd hv bn lost for reasons other than loyalty (e. Turenne v. Houweling Nursers v.g. TJ reduced damages by 30%. • The Parsons test is objective: What could reasonably be supposed to have been in the contemplation of the parties as a serious possibility in the event of a breach? • The Def is not required to know of actual contracts that could be lost. For Exam: What if a Pl was on the verge of getting its biggest contract ever. but also there’s a chance she will face even greater disability in the future. Reasonable likelihood will suffice (25-50%) as opposed to speculative (<25%). but the court. (2) lost opportunity for new contracts in future. and would be jeopardized. After 9 years. Fisons (1988) BCCA: Def provided poor soil  plants die  customers cancel contracts. Look for (1) lost opportunity. quality. evidence from Zellers that it was their practice to spread business to others stores was sufficient. Probably overturned by Janiak (mitigation case below). if the plaintiff had lost a deposit on the offer to purchase because of the failure of the original sale. • For likelihood of damage in future. and the lost profits from this sort of secondary transaction may be subject to damages. Koot (1977) OCA: 60-yr-old woman suffered damaged vertebrae in car accident. (1) can be est’d. recognizing that some of the contracts may not have materialized anyway. In this case. (Parsons-pignuts).) Schrump v. There was a 30% chance he would hv lost use of the eye. not the extent. undoubtedly he would have obtained damages for that loss. Breach of contract. and 2 yrs later Pl loses his eye. In severe pain.5 • Dissent of Justice Wilson (the only member of the appeal court to go on to the Supreme Court): The sale of one piece of property to buy another is entirely foreseeable. and sd hv to prove there’s a reasonable possibility the contracts wd hv bn made. don’t have to point to a specific loss.) Cabral v. But (2) raises an issue of certainty.reasonable certainty you likely wd hv entered into such contracts. 2) CERTAINTY (applied to future losses. A plaintiff will get damages for future suffering in proportion to the likelihood that such suffering will materialize. Just hv to prove w. just that these kind of contracts existed. which cites Schrump but not Turenne. Pl wd argue: It’s the type of unjury that must be foreseeable. Chung (1962) Mb CA: • Future damage must be proved on a B of P. • There can be a tapering off of future damages. • It is not for the accountants to estimate lost profits. After all. the damage must be proven on a B of P to get 100% of damages. but bad law. price). . Future losses were discounted by 75% because there were too many variables that could come into play. 2 heads of damage: (1) lost profits from cancelled contracts. Gupta (1992) MbCA: Negligent ophthalmologist fails to detect metal particle. • For damage already caused. • A MB case. but CA overturned reduction. several times its previous contracts? Def wd argue: this contract not reasonably foreseeable. no damages. • Damages for loss of future business should be moderate. • To show reasonable possibility of future losses. 100% of damages from tortious event flow.

giving full damages for past injury.e. it served to cut the award in half – an apparent flouting of the rule that once causation is proven. Causation of resulting injury est’d using “but for” test. he may be subject to liability for 100% of damages. • Any defendant who negligently causes or contributes to injury will be fully liable for it.e. Economy Foods v. there was no connection among their actions.e. and it appears likely the Pl wd hv had a normal life. In surgery. disease) it is assumed that event would have happened regardless of the tortious injury. the courts can rightfully apply the ‘crumbling skull’ doctrine to reduce damages for past injury. Athey obiter applied. Under Cabral. balloon detached and cd not be removed. then deflate and leave aneurism untreated. McClarty (2001) Mb QB: Pl had 2 aneurisms. Cabral and Lyne offer conflicting versions of how to incorporate the likelihood that damage would have occurred anyway. Cabral was not applied. (Just has to be “a cause” not “sole cause”. and suffered a stroke. the balance of fairness to Pl and Def given all of the circumstances – ought to prevail. su usually insert a deflatable balloon first. One could conclude that the equities of the situation – i. and . The 2 nd gets a carotid occlusion. full damages for past injury will flow. Thin skull rule applies.6 3) CAUSATION Athey v. where an intervening act is in play. the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury. where there is no “learned intermediary” to give rise to a rebuttable presumption of causation as in Hollis) is whether the defendant’s negligence materially contributed to the occurrence of the injury. the doctor in Lyne appeared to exhibit a lesser degree of negligence than the doctor in Cabral did.g. Klassen (2001) Mb CA: Negligent fire in washroom of florist shop in mall. and suffers a herniated disc while exercising. 1 successfully clipped. the likelihood was disregarded in a damage award. and not a better position. Even though causation clear. to decide which case to apply. Mall and shop-owner were considered “several” tortfeasors – i. • Once causation is established against one tortfeasor. then no reduction of damages will be applied. the Pl’s damages are not to restore him to the condition he would hv bn in previous to tort. except that they combined to create the loss. Extra Reading Walker Estate (2001) SCC: Red Cross sued for tainted blood. a negative contingency of 50% was applied to the damages because w-out the surgery there would hv bn a real risk of stroke and damage. extremely risky procedure.e. Where the likelihood is less than 50%. In Lyne. regardless of the tortious event. After all. (e. • (further obiter) “crumbling skull” doctrine affirmed: The def need not compensate the Pl for any debilitating effects of the pre-existing condition which the Pl wd hv experienced anyway. with all of its risks and shortcomings.) Lyne v. Leonati (1996) SCC: Pl w. If can’t. and see if patient can tolerate the procedure. However. • Where the “but for” test is unworkable.) Court affirms difference between past events and future events. and damages are reduced accordingly. i. • The proper test for causation in cases of negligence involving non-professionals (i. and it would seem just that he should be treated more leniently. For exam: How to distinguish Cabral and Lyne There is some inconsistency in how the courts apply the rule in Shrump about past damage proven on a B of P. • (obiter) If there is an intervening event between accident and assessment of damages at court. however it is open to him to seek contribution from other tortfeasors. Mall failed to install sprinklers.pre-existing back problem is further injured in two car accidents. a more reasonable rationalization of the two cases could lead one to conclude that in situations where the Pl already faces a near certainty of future debilitating injury. 25% contribution sufficient to be fully liable for entire injury. (general rule: Pl to be returned to the position he wd hv bn in. Patient cdn’t tolerate. even if there are other significant factors which helped to produce the loss.

g. v. but not lost profit. IN personal injury cases where the second event is tortious. • If subsequent events are tortious. Instead. also impairing his earning capacity. if it did not add to the Pl’s loss of profit. requiring a further six months at home. point out McL dissent. Sunrise (1991) SCC: One ship negligently causes damage to another. In either event. This holding is inconsistent with the personal injury cases (where the second non-tortious event is taken into account). Example What would happen if you had a Pl injured in a shooting incident. But remember: A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation (Schrump v. • Subsequent tortfeasors are only responsible for any increase in damage they may cause. Both say not responsible. the first defendant is liable for the entire damages. but note that it was based on the assumption that the second incident wd hv happened anyway. (On exam. not prospectively from the time of the injurious act. and reduce damages. def will be liable for cost of repairs. i. if there is a 30 percent chance that the plaintiff's injuries will worsen. • If subsequent events destroy the enterprise. and wrote that the amount of loss is to be determined at the time of trial. it will displace liability of the first Def to the degree that the effects of the first incident of injury have been overridden by the second. sink the boat) then 1 st def off the hook for diminution of loss after destruction.e. makes it clear that she was not intending in this ruling to affect the law in respect of personal injuries. • it makes no difference whether the second incident is tortious or non-tortious. then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk.) Hypothetical Events: What if Pl had 30% of full recovery and 1st injury. all of which was done within the 27 time it took to effect repairs because of the initial damage.) • Pro rata apportionment of damages is appropriate in such circumstances.personal injury cases. of bad debts and enemies. its effect will be given full consideration in damages. (e. While it was heading into port for repairs. Pl had a no. who required a month in hospital and six months at home. it will not serve to reduce damages. requiring 14 days to repair. Willoughby (1970) Appeal Cases 467: 1st Def hit Baker in a car accident leading to a leg/ankle injury and loss of earning capacity. • Where damage occurs subsequent to the tortious act. McLachlin (in dissent) assumed that the second incident would have happened regardless of the first. Koot). Baker. requiring 27 days to repair. but do not increase loss of profit.e. i. He then has a heart attack while at home. they are simply given weight according to their relative likelihood (also in Janiak).7 the court may apportion liability according to the proportion of causation found on the evidence. shot him in the leg.) Therefore: • intervening acts which serve to incapacitate a Pl may override the harm that would otherwise hv occurred. Def: causation not established. • Damages are to restore the Pl to the position he wd hv bn in but for the tortious conduct of the defendant – no less and no more (restitutio in integrum). Distinguish another case by showing some degree of connection between the first and second incidents of damage. the second incident might not have happened if the first had not. (Accepted as good law. • First in time rule: Only the first tortfeasor has to pay. it suffered further damage (non-tortious). “but for” or “material contribution” to loss following heart attack not met. but 2nd Def removed any chance of recovery? Malec (1990) Australian High Court: Hypothetical events (such as how the plaintiff's life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. For example. (consistent w. . and after accident one of them. the 2nd Def. and L'Heureux-Dubé J.

.8 To answer the above question. (CHECK THIS). given that the 1st Def’s damages could be reduced by 30% to reflect the possibility of full recovery (SOURCE??). then the subsequent event removing that chance would result in a restoration of that 30%. by assessing it against the 2nd Def.

due to some pre-existing psychological condition. Another way of putting it: where there is a failure to mitigate but a chance that the proposed operation will fail. previous rationality not a bar. On the other hand. • Reasonable steps to mitigate are required of a Pl. Accordingly. then he should be treated as falling within the thin-skull category and should not be made to bear the cost once it is established that he has been wrongfully injured. If that is the case. 226. and is in need of further refinement Elloway v. It is difficult to draw the line.J. would likely require fusion b/c Pl was severely overweight.9 4) MITIGATION Janiak v. adjust for percentage of risk). and having the capacity to make choices. De Meyer v. (1983). Def argues novus actus interveniens (refusal of surgery)  no damages. The court in Janiak speaks of what is rational. The test of “rationality” appears to imply a standard of being able to exercise judgment in a proper or sensible manner. National Trust (1995) M. but only if it was pre-existing. lying dormant. non-pathological but distinctive subjective attributes of the plaintiff's personality and mental composition are ignored in favour of an objective assessment of the reasonableness of his choice. It seems to me that the line must be drawn between those plaintiffs who are capable of making a rational decision regarding their own care and those who. For exam: The court must consider whether the basis for the Pl’s reasoning was so faulty that it qualified as a serious pre-existing psychological infirmity. Court accepted Def’s view. 313: Slip and fall case. p. . • If medical treatment with a high probability of success is recommended.” • You can consider psychological thin skull. 6th ed. and incorrectly placed the onus on the Pl to establish that her failure to lose weight was unreasonable. if due to some pre-existing psychological condition he is incapable of making a choice at all. Def argued she shd lose weight to mitigate her damages.predisposition to schizophrenia. it is unreasonable for a Pl to refuse. • A defendant is not liable for the loss that the plaintiff would have avoided by undergoing recommended treatment with a high probability of success. Serious ankle injury. but the Def bears the onus of proving failure to mitigate. as indications of whether a Pl will be exempt from the duty to mitigate. a plaintiff cannot by making an unreasonable decision in regard to his own medical treatment ''unload upon his defendant the consequences of his own stupidity or irrational scruples": Fleming. • The condition must render the Pl incapable of making a rational decision. The Law of Torts. • The Pl bears the onus of proving damages. but court finds proximate cause still the Def’s action. The Janiak test offers little practical guidance. • A psychological thin skull may be triggered by the tort. Active condition triggered by accident. Bloomer (no cite): person w. So long as he is capable of choice the assumption of tort damages theory must be that he himself assumes the cost of any unreasonable decision. Ippolito (1985) SCC: Crane operator totally disabled by back injury but refuses surgery with a 70% chance of complete success. As pointed out by Professor Fleming. therefore: • the failure to mitigate will lead to a reduction of damages. as compared with a mere pre-existing state of mind. but these will be in proportion to the chance of success of mitigating factors (as with Shrump. could be considered irrational – making it relatively easy for a Pl to opt out of the duty to mitigate. BUT recall thin skull rule: “It is evident that not every pre-existing state of mind can be said to amount to a psychological thin skull. such as an extreme fear of anaesthetic. are not capable of making such a decision. if one concurs with the Oxford dictionary definition of the term. and therefore mitigate damages. the court may allow a percentage of future loss of income • The test of what is reasonable is objective. In this case. a plaintiff is free to choose one and suffer a potential loss of damages for failure to mitigate. then almost any pre-existing fear of medical treatment. • If several courses of treatment are recommended.

Leisbosch v. • Generally.g. Why: A vulnerable plaintiff may be in a better position to anticipate and guard against special losses. . b/c of workplace insurance. damaged and sunk by Def’s negligence. e. and cdn’t afford to buy the replacement that was available. Def argued they failed to mitigate loss by getting FMV for their house. e. they had to sell this one. there will be no reduction of damages for failure to mitigate (Note: these are breach of contract cases. Criticism: Ordinarily the defendant is liable for all the harm caused. Bloomer (1990) SCC: (5-4 split.regard to statutory benefits. • One exception to double recovery is where Pl has private insurance. Court sd the Def was not responsible for the extra cost of renting over buying. it seems unfair to deny a Pl full compensation for his harm because of his poverty.000.10 5) IMPECUNIOSITY (economic thin skull) • General rule: the defendant is not liable for losses caused by the plaintiff's impecuniosity. • Wage benefits from employer insurance plan will not result in a reduction in damages. Tortious acts cd be distinguished. except w. and too remote from tort to be a ground for damages. Applied to financial vulnerability. where the benefit resulted from collective bargaining. Wheeler (1994) SCC (trilogy): (4-3 split) All 3 injured in car accidents and off work. • Evidence of benefit from collective bargaining? Evidence of trade-offs in the collective bargaining process. employer’s contribution listed on pay slip. or didn’t have time. if the Pl could not afford insurance. Disability income paid by department.) (Note: Scobie v. an exception may be made. or insurance was not the standard in the industry. • Ratych rule narrowed to situations where the Pl cannot prove he gave up income to receive insurance as a benefit. they might be reluctant to deal with them or would incur costly measures to avoid the special risks entailed. and that impecuniosity is caused by the Def. (obiter) (courts don’t like Leisbosch) Duchene (1989) NSSC: Pl agreed to sell home to defendants for $105.) 6) COLLATERAL BENEFITS General rule: no entitlement to double compensation.) Cop injured on duty. Blatant double recovery. Evidence of direct contribution by employee (need not bee 100%).000. • Where impecuniosity prevents mitigation of damages. (Note: In Leisbosch there was a conscious decision not to insure the dredger. but on day of sale. Cunningham v. Other cases can be distinguished. and this was a basis for the judgment. Assessed damages from date of accident until a substitute cd reasonably be available. Continued to receive wages. Ratych v. def’s refused to pay. Had to rent a dredger that was more expensive to operate. Veniot (1933) HL: (cited in Duchene below) Pl owned a dredger. Why should the Pl suffer personal hardship to invest money he cannot afford. so two weeks later they sold for $90. when he may not win his case in court? Policy: “In ordinary contract cases. regardless of pre-existing vulnerabilities. Wing: If you can’t afford to replace. but still sought full wages in damages for lost time. Since Pl’s were building another home. Evidence that benefit was part of the pay package. if suppliers were made liable for the additional risks of dealing with "impecunious" customers.” – Cassels text. • Impecuniosity is a separate cause of loss.g. wage benefits from employer will be deductible.

Deterrence (both of specific person and generally) 3. • This case could be interpreted to imply that where the employer is the sole contributor to the insurance plan. where there is evidence the employer benefit was negotiated. employed as a manager by BC gov’t. Or. Wrongdoer should not profit from a tort. The Court was worried about an intrusion into criminal law. Since he has set the bar so low for evidence of direct contribution (e. However. however.and long-term disability plans should not be considered contracts which are distinct from the employment contract. since unionized employees are covered. normally Ratych wd require the court to deduct the benefit. since in a non-unionized environment an employer can unilaterally withdraw a benefit. or expressly prohibited by statute. the short. 61. and no such intention can be inferred. Absent an intention by the parties to provide otherwise. there will be no double recovery. Parental leave not deductible.11 Non-unionized employees: Cory indicates rule cd be extended to non-unionized employees as well. a stronger case can be made for them. BC (1997) SCC: Pl.. Non-unionized employees/no negotiation for benefits: where there is no evidence the employee negotiated to receive the wage indemnification. Tracey v. that weirdly neither Cunningham nor Ratych was referred to. making their contract for benefits even more clearly a private contract. Also. parental leave subsidy) will not be deductible from damages for wrongful dismissal.g. OR. the employee could thus be seen not to have an entitlement via a private contract. On the other hand. Barnard (1964) (HL): Lord Devlin: Punitive damages should only flow when conduct of the Def. • This case could be narrowly framed as a wrongful dismissal exception to the Cunningham rule of no deduction for insurance payments. They give in return for services. Thus. 7) PUNITIVE AND AGGRAVATED DAMAGES (exemplary) Underlying principles: 1. it is akin to a situation of an overt contract. but rather as integral components of it. It is a logical inference that employers do not give insurance as a gift. it would be discriminatory and arbitrary to exclude non-unionized employees from the same treatment. Punishment (like a civil fine) 2. Deducting disability benefits ensures that all affected employees receive equal damages consisting of the salary the employee would have earned had the employee worked during the notice period. Rookes v. wrongfully terminated while on STD. an employee who is dismissed while not working but receiving disability benefits and an employee who is dismissed while working should be treated equally. An expression of the court’s outrage 4. It makes little sense to reward a tortfeasor for the fact that he happened to injure someone who did not overtly negotiate for a benefit that would ordinarily not result in reduced damages. simply because they lacked the foresight to explicitly demand the benefit. Pl on parental leave. since they negotiate directly with the employer instead of through an agent. consider whether there is a need for punishment and deterrence beyond general and aggravated damages. . WCB. it would be discriminatory to treat these employees differently from unionized employees. In this case. AECL (1997) Mb QB: Wrongful dismissal. benefit noted on pay slip) this should be almost automatic. • Statutory entitlements that are a consequence of the contract of employment (EI. Note. has been oppressive. Sylvester v. turns on the terms of the employment contract and the intention of the parties. • The case could be broadly interpreted as breathing new life in the Ratych principle prohibiting double recovery of replacement wage benefits. Punitive damages only when necessary. therefore. Also. and should be treated as such. In fact. This contract did not provide for the respondent to receive both disability benefits and damages for wrongful dismissal. Disability benefits are contractual and the question of their deductibility. calculated to make a profit.

Court may take account of ability to pay.6M. they are not all responsible for the punitive award. Church of Scientology (1995) SCC: Court order to seal documents. Wilton (1995) Alta CA: Bank foreclosed. Suitable when Defendant’s misconduct is “so malicious.” • Where there are joint and several tortfeasors. and high-handed that it offends the court’s sense of decency. . Only the one(s) found to have acted maliciously will pay. because actual malice is requried.000. • If punishment is achieved by general and special damages. These principles are less easily applied in negligence cases.12 MacDonald v Martin: Affirms Devlin’s view that damages should flow only when necessary.” • Deterrence a primary goal. Accounting of profits: $4.000 in general damages. distress. There must be a “rational purpose. Royal Bank v. just before Pl was about to complete a deal that would allow him to pay his debt. Released by mistake. asking: What is rationally required to be a real deterrent? • However. Martin (1994) Mb CA: Unethical lawyer. Jury awarded $25. Primary goal of tort law is compensation. Restraint is called for.non-pecuniary damages. this case is an exception to the functional approach normally taken w. Note also. Cassels text indicates that only cases of gross negligence will likely draw punitive damages. • Awards of punitive damages can be made for conduct amounting to an abuse of a position of trust and confidence or some abuse of power. • Punitive damages are non-compensatory.000 in punitive. related to intangibles such as mental suffering. Series of outrageous breaches of fiduciary duty. But note: this is an intentional tort. oppressive. AGGRAVATED AND PUNITIVE DAMAGES IN TORT Hill v. Punitive damages of $250. punitive damages are only warranted when general and aggravated damages are insufficient to achieve punishment and deterrence. MacDonald Estate v. humiliation. and $250. no need for double punishment. interfering with mortgage. Upheld. • Aggravated damages are compensatory.

• In breach of contract cases. In other cases. because the SCC takes the view they are not foreseeable at the time of the contract.) Conclusion: aggravated damages will be extremely difficult to get.performance. should place a responsibility on the employer to avoid creating foreseeable suffering. Posner. the costs of performance exceed the loss from breach). 4th ed. Aggravated damages. whereas w. as the standard of proof is lower than in criminal cases. See notes from Osborne’s class . such as anxiety. • Where the offensive conduct happens before dismissal. and cd only get a compensation package if he admitted he was fired for just cause. Nothing for injured feelings and mental distress. Duty (noting that Vorvis says okay in exceptional circumstances for negligence). b/c not foreseeable. • Aggravated damages apply to intangibles. given that if there has been a separate actionable tort.” AND. • In wrongful dismissal.) • Policy: the vulnerability of the Pl. Wilson dissent Aggravated damages: • Aggravated damages should be available for mental suffering in wrongful dismissal. starts to get harassed by dept. so long as the breaching party is able to compensate fully for any losses. They are compensatory.13 AGGRAVATED AND PUNITIVE DAMAGES IN CONTRACT Vorvis v.. • Disagrees that a separate actionable wrong is required. head. Court refused aggravated and punitive damages. where punishment is called for. (This is sensible. punitive damages are not recoverable unless the conduct constituting the breach is also a separate actionable wrong (the court seems to mean tort) • Great caution is called for. since they are compensatory. ICBC sd incompetent/just cause. an additional reason has been given for refusing punitive damages in contract. Re: punitive damages: • Only available where conduct is “harsh. Sometimes a contract will simply prove too expensive to perform (i. In both cases. The focus is on the Pl. (Problem with this: does foreseeability have to be at time contract made. Fired at age 54. (Addis affirmed) Re: aggravated damages: • Aggravated damages only available where conduct of employer was offensive and unjustifiable. [Note 91: R.) Punitive damages: • Conduct before and after the wrongful dismissal should be considered. distress.” “vindictive.e. individuals should be left free to breach contracts at will. where that suffering was foreseeable. Brown. based on the idea of economic efficiency. so long as full compensation can be made. • Apply remoteness test: could parties have seen mental suffering resulting. and it makes little sense to award damages for a tort that was not claimed. • (note: she rejected aggravated damages in this case. normally it would be at time contract is made. or at time of dismissal? In contract.” and “malicious. breaching the contract is the efficient thing to do.punitive damages the focus is on the Def. • Punitive damages will largely be restricted to intentional torts or breach of fid. Economic Analysis of Law. 1992). Pl entitled to damages for failure to give reasonable notice. (Boston: Little.] According to this theory. Requiring performance.” “reprehensible. in these cases would be uneconomic. are relevant to expectations and reasonable foreseeability. From Cassels text: More recently. ICBC (1989) SCC: Lawyer with ICBC for 8 years.A. not punitive. or punishing non. But he had been promoted and given merit raises. it is available to the Pl to sue under that separate head. the profits from breaching a contract (to pursue a different opportunity) exceed the losses from breach. and the nature of the employment relationship being one of trust. it will not be grounds for aggravated damages based on the nature of the dismissal.

BUT. it would be an imperceptible evolution of the law to make the duty of good faith in employment contracts an implied term in all situations. Gave false info to media. But adds: • Employers ought to be held to an obligation of good faith. it is not clear whether you could get both increased notice PLUS aggravated damages. then fired after 7 ½ mo’s. One basis on which to distinguish is that Wallace’s employer sd if he did the job he was hired for. But. Dismissed after 14 years at age 59. and damages for breach of good faith. (6-3 decision) Reaffirmed need for separate actionable conduct for agg’d and punitive. Spread allegations of dishonesty .000 in aggravated damages. and decreased to 15 mo’s. “there’s no reason he cdn’t stay to 65. she says the law has evolved to permit recognition of an implied duty of good faith as an implied term of the employment contract (which is sensible given that it would reflect the reasonable expectations of the parties at formation of contract). In addition.) Conundrum of majority decision: if there is egregiously malicious conduct that would warrant a separate tort. Wrongful dismissal and LTD benefits settled. TJ awarded 14 . Dixon v. Top salesperson. therefore no basis for claim of breach of gf. CA applied Vorvis. • Majority and minority all affirm underlying importance of the contract. Iaccobucci didn’t accept. OTOH. TJ gave 24 mo’s and $15. Wallace argued for “bad faith discharge” or that good faith is an implied term of the contract. BC Transit Commission (1995) BC: D hired away from senior management job to be CEO. Cdn’t do same job. could argue simply that the court has been moving in the direction of recognizing such conduct as warranting damages. • The court is showing a desire to give some form of compensation for bad faith dismissals. and that. and this can only be changed by the legislatures. which will be breached by untruthful. unless behaviour related to actual dismissal is blatantly hostile and malicious. • Bad faith dismissal can increase the required notice period. UGG sd incompetent. angry. since Wallace simply restored the TJ’s award of 24 mo’s. Other decisions based on Vorvis: Beaird v. Known as “Wallace damages” (amounting to a de facto form of aggravated damages). The court seems not to have considered this. or unduly insensitive treatment. Alleged just cause. in negative terms. in hope of avoiding need to pay one-year notice. as McLachlin points out. Sued for wrongful dismissal and LTD benefits. since it makes it harder for employee to recover and find a job. whether the minority or majority prevails in future. Relegated to trailer in parking lot. Attempt to distinguish exam scenario on the facts. b/c it was reasonably foreseeable he wd suffer. Westinghouse Canada (1999) OCA: Pl injured back at work. it did not affirm a positive intention of fair treatment.” Expressed. He became suicidal. as it was. Defamation and deceit constituted separate actionable wrongs. • Affirms Vorvis (no punitive damages for pain and suffering. Hamer Jackson v. depressed. and show that good faith was an implied term of the contract. OTOH. McCall Pontiac (1998) BC: Sales manager of 12 years forced out so son of owner could take over. UGG (1995) SCC: UGG pursued W. Employers can terminate for no cause. and there is a separate actionable wrong). court strained to find a separate actionable wrong.mo’s salary. SCC raised to 24 mo’s. • McLachlin (important dissent) sd manner of dismissal shd only be relevant if it does result in a longer time to find a job (in this she is consistent with her view in other areas of damages that they should be restricted to restitutio in integrum not giving the Pl a bonus b/c of the equities of the facts). who was concerned about job security. and aggravated and punitive damages. it would be a helpful development of the law for a court to lay out the basis for an award that recognizes bad faith in a dismissal.14 Wallace v. Terminated. but reaffirmed the view that reasonable notice is all that’s required in wrongful dismissal. which says reasonable foreseeability not sufficient. but denied agg’d damages. and promised him work until age 65.

Rationality is an entirely discretionary concept of little assistance in determining an appropriate award. A breach actively deprives the Pls of the very thing they most wanted. saying this was overkill. are exhortatory. the court discouraged reference to the net worth of the Def. courts do intervene to cap punitive damages at 4x the compensatory award. so use only in exceptional cases and with restraint. etc. it will now be difficult to attribute irrationality to punitive damages of less than $1M. while 1 agreed with the SCC. • Moderate awards are generally sufficient. • Proportionality: to blameworthiness. Pilot Insurance Co: Purposive approach to punitive damages: they must be “rational” (the lowest amount that would serve the purpose) and “proportional” (to misconduct). o degree of profit. it seems that reasonable people can hold vastly different opinions on this subject. 247 which relieved wrongdoer of profits. • No fixed cap. where compensatory damages insufficient for deterrence. indicating that perhaps such grounds are being found without an adequate analysis. What the cases show is that the requirement of a need for a separate basis of action does not lead to a detailed analysis of the separate action. • Can use punitive damages to disgorge a wrongdoer of profits. and added large punitive award. o cover-up. in these cases a tort. (But cautions about Lubrizol. 6 mo’s aggravated and punitive damages. • Punishment for criminal law. Consider: o planned deliberate action. In alternative. sd it wd be a 6-mo extension of notice b/c of bad faith. rather than coping with the more profitable but riskier life of working on contract. (But. o It is rational to assume that a lesser award would fail to achieve deterrence. Note also: • Time-honoured pejoratives of ‘high-handed’. (But notes that in US. • Assess the lowest award that would serve the purpose. o degree of intended harm. but not very helpful. However. and given that two OCA judges thought $1M was irrational. Whiten v. could use “peace of mind” exception in Whiten and apply it to employment contracts. since the choice of taking a permanent job is often about security and peace of mind. (Hill) • Relieve of wrongdoer of profits where compensatory damage would amount to a “license fee”. o motive. p. Non-financial effects such as humiliation and bad publicity are not acknowledged as factors which in many cases will serve to add to the punishment of the defendant. (Advocates Quarterly – case comment #1). o knowledge of deeply personal nature of the damage o level of vulnerability. o Financial means directly related to the misconduct. Note. since either the courts are not applying Vorvis in a sensible way. (Hill v.) • “Peace of mind” contracts are an exception to the need for a separate actionable wrong. o persistence.15 through car sales community. Suggests need for a change in the law.) We are left to speculate about what exactly achieve deterrence for a moneyed defendant. TJ gave 13 mo’s. or Vorvis is itself flawed and in need of refinement.) • . A more principled approach is desirable. Consider the financial means of the defendant if: o Def argues financial hardship. and offered little guidance about how to apply this third factor. o awareness of wrongdoing. Church of Sc) • Rationality: little guidance here. ‘oppressive’.

If you wanted to find punitive damages where there has been no separate actionable wrong. where a punitive award is available “to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case.16 Moderate awards are generally sufficient. Ireland. and no less. thereby lessening the need for higher non-compensatory awards which. where in truth only one exists.g. not the trilogy. Pl sought equitable remedy of rectification. whereas breach of contract cases generally do not result in such personal devastation and awards are more likely to be decided on a more rational bases. His conduct has been soundly denounced. Such exploitation is reprehensible. are arbitrary to start with. and deserving of punishment. because the simple act of dismissal is not sufficient to invoke punitive damages. • Court affirms exceptional nature of punitive awards. Sd. to argue in favour of the continued cap. and principle that compensatory damages can be sufficiently punitive. rather than to mete out punishment. $650 in compensatory damages sufficient for deterrence. but court denied punitive damages. this vulnerability ought not to be exploited. This would be consistent with other common-law jurisdictions. i. Such an interpretation would allow the courts to punish reprehensible conduct. you could argue that the courts ought to interpret Vorvis as standing only for the proposition that in wrongful dismissal cases there must be a separate actionable wrong. O'Connor now stigmatized with a judicial finding that he acted in a way that was "fraudulent. where the bare breach of contract was morally reprehensible. breach of contract. Binnie J. without performing elaborate legal acrobatics to find two oppressive and high-handed breaches. was required? Implications: • If $1M award is rational. Separate grounds exist for actionable wrong. The SCC found that breach of contractual duty of good faith is independent of and in addition to the breach of contractual duty to pay the loss – although it didn’t explain why this is so. the primary purpose of civil law is to compensate the wronged. not necessarily a separate tort (inc. It would be unfair and illogical for the court to use a different standard for non-pecuniary damages in cases of personal injury. one could note Dickson’s observation (he wrote the judgments for the first 2 of the trilogy) that compensatory awards for personal injury in Canada tend to be generous. Finally. and it could be argued that Whiten is the aberrant judgment. Court found Def trying to pull a fast one – deceit. • • . (case comments Advocates Quarterly article #2). dishonest and deceitful". If punitive damages are to be rational – how can it be that a person who was mistreated by an insurance company can be awarded $1M. • *** Whiten infuses greater flexibility into the principle in Vorvis: that a separate actionable wrong is required for punitive damages in breach of contract cases.” • Whiten can also be used to argue against the1978 trilogy (Andrews-Thornton-Arnold) that placed a cap on non-pecuniary damages for personal injury. Thus. suggests previous awards were out of touch with present day financial realities (Advocates Quarterly – case comment) • Where one party is particularly vulnerable to the greater power of the other party. and breach of fiduciary obligation).e. the court will remove the cap in this area of the law as well. it is likely that in a future case. Why? Commercial relationship between two businessmen. No abuse of a dominant osition. e. in that punishment is the dominant aspect of the damage award. $650 a lot of money for an individual to pay personally. while a person paralyzed from the neck down gets a maximum of $280. In addition. said the absence of a cap would allow the law to keep “in touch with evolving realities”. Performance Industries (2002) SCC (companion to Whiten): Parties agreed Pl would have option to develop land that was 100 yards long at a certain point. by definition. Standard of review: could a properly instructed jury find that this amount. breach of duty of good faith. Whiten held that the plaintiff must only establish an actionable wrong. juries and even judges may be liable to more emotional and extreme reactions when faced with a plaintiff suffering from serious and permanent injury. Def wrote 100 ft into the contract.000? However.

but said criminal sanctions are just one factor to consider.000 general.000 in punitive (1000x). Surgeoner (1993) Ont: Domestic assault. v.g. Sets down factors for a reasonable award: • Degree of reprehensibility • Ratio of punitive award to compensatory award.000. BMW (1996) USSC: buyer of new car discovers it was repainted.) (Note: in criminal law. CRIMINAL BEHAVIOR? Surgeoner v. for the same behaviour?) The insurance cases provide a basis to argue bad-faith cases should be expanded to other areas of contract. (special importance of deterrence of anti-social behaviour in such instances.F.) C.) • Necessity for deterrence (i. Yodelling atrocious.F. fines. e. Judge allowed a punitive award (perhaps because the punishment appeared lenient).000 aggravated. $50. e. Civil award: $200.000. Gore v. looking at the individual. and (b) the conduct of the defendant is morally repugnant.g. Jury awards $4000 in compensation. Reduced to $50. Unconstitutional.e.. where (a) the contract is of a personal nature. the court considers public interest. and two mo’s for assaults on daughter. In civil law. and received a suspended sentence w. are there statutory penalties. then tells her she’s lucky it wasn’t worse. There should be a reasonable relationship. Swan Tours (1973) 1 QB 233 (Denning): J went on ski trip in the Alps.17 Other peace of mind contracts: Jarvis v. Great West Life (1996) BCCA: • Disability contract includes “peace of mind” as a term. marriage. $4. USSC says $2M grossly excessive. Husband viciously assaults wife. • Loss of enjoyment is analogous to peace of mind as the subject-matter of a contract. • Loss of enjoyment can be included in compensatory damages. Court affirmed the rule against double punishment where there has been a criminal conviction.000 punitive.: 38 years of sexual and physical abuse of wife and daughter  3 concurrent sentences of 6 mo’s probation.S. J. CA reduces to $2M. (This case suggests 12x the compensation as an upper limit. Warrington v. .one year of probation. Convicted of assault. • punitive damages may be awarded where there is a special relationship of trust between the parties. $50. profoundly affecting a plaintiff's well-being. Complete disaster.

Moreover.18 8) LIQUIDATED DAMAGES Definition: The damages to be paid on breach of contract. whereas the actual loss to the Pl was $92. to restrict the plaintiff only to loss of net profits fails to compensate him for intangibles. Courts should simply apply well-developed principles of unconscionability to determine whether the clause is unfair or oppressive. OR up to the ceiling provided by the penalty clause. (Pl shdn’t benefit from intimidating force of a penalty clause. Clark Ltd v. • Test: Is the clause is a fair and reasonable attempt to estimate damages in advance? • where the amount stipulated as damages is necessarily and substantially beyond the actual loss that could be suffered by the plaintiff. But. and the Pl gets an injunction to force compliance. court will allow damages up to the point of the breach. and employed Def for 17 yrs who then set up his own business in contravention of contract. (wrote decision in Elsley below) Criticism (Cassels): No evidence of inequality of bargaining power or unconscionability. The key should be relief from oppression – is the penalty as a way to force compliance w. Penalty provisions are not. • Where the contract contains a restrictive covenant with a penalty clause. • Consider relative vulnerability of the parties..contract. interference with liquidated damages is blatant interference with freedom of contract. that amount will be regarded as a penalty • If liquidated damages are set aside. The parties were equals. This turned out to be $200. if punitive. QB Act s. whether each received legal advice. 35: Court has the power to relieve against penalties in a contract.000. Elsley can be seen as an important development in the law related to liquidated damages. • where there is no oppression or unconscionable effect. then ignore it when it’s convenient). citing blatant interference w. The "net profit" standard rewards the Def for expenses related to defeating the Pl in the market. • Consider: What was the provable loss at the time of trial? What was the estimated loss in the contract? • Liquidated damages clauses are enforceable. Dickson dissented.freedom of contract. since they are deducted from profit. Thermidaire (1976) SCC: The specified penalty = gross trading profit of sale of the competitor’s products. Court found the difference extravagant and unconscionable. (Note: Clark probably would not have been decided the same way if it followed Elsley. instead of preceding it. courts won’t recognize.000. • A penalty clause obtained for good consideration is a valid contract. actual damages are awarded.) . such as loss of market share. (Waddams) Elsley (1978) SCC: Pl bought an insurance agency from Def. No duty to mitigate damage when damages specified. • Dickson dissented.

2. Recognize gender gap narrowing. (b) early retirement. cheaper for def. 2. C/L has to conform w.. Standard of care: must be reas. home care preferable to institutional care.long-time employed adult.. Tax free. (C) Discount rate: difference between inflation and ROI. Consider 1. Duration: life expectancy.. (same with non-pecuniary damages). 5. rather than post-accident state.19 9) PERSONAL INJURY a. Contingencies: may be deducted. They reflect reality. (a) non-participation in workforce. (B) Loss of future earning capacity: (1) Base level: Easy w. Either party may apply.  reduction for time out. in the absence of supporting evidence. but paternalistic. (no cases on pensions) (3) Reduced to disposable income: since Pl wd hv had to pay for necessities anyway. Includes: basic nec. sd she wanted to hv 4 kids. and split the difference. courts tend to take off about 10-20% for above contingencies. (53% reduction in Andrews) (4) Contingency reduction: for. Male table should apply to both. modifications to home. S. Must hv evidentiary foundation.) (here 20% reduction) This is criticized by commentators as a general practice. promotions. no gross-up for taxes. more difficult for child. drugs.) (In Watkins. unless inst care wd be better for Pl. PECUNIARY AWARD Andrews Trilogy: Established principles for horrific life-long injuries. higher ROR than DR. 83 fixes it at 3%. QB Act S. Note: McCabe: case of 16-yr-old quadriplegic who had planned career in a unionized (nondiscriminatory) field. (In Teno: looked at mother’s income. 3. (c) time off to raise kids. and on early death Def may benefit depending on order of the court. ward of state income.) (2) Duration of Work: (work expectancy) Based on pre-accident state. Use tables as they are. 4. on the assumption that it is possible the Pl may not incur all of the projected expenses (e. unless there is a choice between two acceptable alternatives for care. Does not apply to periodic payments. negative contingency for men. Costs to society: may not to be a factor. devices. Tax gross-up: allowed. • Must itemize award for damage to ensure it conforms to the evidence. ed’n for higher paying job. But. Note: discrimination in actuarial tables (against women).g.. so add a positive contingency for women. may be in hospital for a long period. 3. (d) unemployment. (D) Possibility of periodic payments: Allowed in Mb by QB Act. Nonetheless. (e) part-time option. Requires actuarial evidence.g. it’s possible Pl wd hv received raises. e. Assessments cannot reflect historic wage inequities. past spotty employment record lessened award. (A) Cost of future care. TOTAL AWARD = . 88. Appropriate reflection of reality or perpetuation of inequality? Options: 1.Charter values. Usually an annuity purchased from an insurance company. (E) Non-pecuniary damages: See Lindal below.

). care and companionship of a spouse. . (2) developing a specific plan. but on its ability to provide “reasonable solace”. Lindal (1981) SCC. • the plaintiff has no duty to "mitigate" damages in the sense of accepting less than full compensation. NON-PECUNIARY DAMAGES Intangibles. Problem w. If the courts reduce expected income because of the likelihood that the woman would have had children. without introducing uncertainty.000). b. • Cap on award will grow with inflation.deduction for child-raising: If a woman is less likely to have children because of her injuries. The SCC decision of Gordon Estate helps to make this argument. she is penalized 2X – no kids. 88: periodic payments permissible. That is an objective measure of what the opportunity to have children was worth to her. I would argue that the pecuniary award for lost chance of child-bearing shd be based on whatever income the woman would hav had to give up. such as loss of companionship/mental and physical pain/ amenities of life (simple enjoyment)/loss of life expectancy. • Fairness to both parties is achieved with a reasonable and justifiable award. The advantages for Pl: receiving payments for life. parent or child. and would introduce a greater degree of fairness and equity into the compensatory award. receiving payments that were tax-free. ( current level of $270. and Andrews Trilogy: • The functional approach is used to compensate for the loss of intangibles. QB Act S. Olafson (1989) SCC: MbCA sd institutional care good enough. • “exceptional circumstances” to raise ceiling not ruled out. (permanently unconscious = no capacity for solace) • The Pl must demonstrate the “reasonable” functions that the money claimed will serve. Concordia Hospital [1997] Mb QB: an award of periodic payments under QB Act S. in order to have children. as it noted that “contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lost the guidance. 88 involves a two-stage analysis: (1) verifying the desirability and feasibility of periodic payments in the particular circumstances. • While the award must be "fair to both parties.20 [(BASE – Contingencies) + (COST – Contingencies)] X Work Expectancy + Discount Rate. Watkins v. Lusignan v. Compensation is not dependent on the seriousness of the injury. • Severity of injury does not rule award (but prof says a good place to start). no income. Lindal v. SCC sd home care. While it can be accepted that the courts are to attempt to re-create the woman’s pre-accident earning potential. • Avoid simply looking at previous award for similar situations. and are subject to the same cap for men and women (thus obviating the chance to adequately compensate a catastrophically injured woman for loss of child-bearing capacity in this category as well. and incurring less expense for investment needs. they should also give her a a counter-balancing payment under pecuniary losses to reflect the loss of those future children. b/c awards for non-pecuniary damages tend to be modest." the means of the defendant are irrelevant • The plaintiff is entitled to all expenses that can be justified as expenditures that would be incurred by a reasonable person in the plaintiff's circumstances. it is also true that little value is placed on the loss of the opportunity to have children. but will be rare.

3: Claim limited to the benefit of immediate family. BC: Sexual assault exception. FATAL INJURIES s. The policy reason underpinning the cap is now weakened by these precedents. if invested. C. anguish). FGC) Why? not covered by insurance. Khan: injury at childbirth  brain damage. premiums. then deduct personal necessities and other personal expenditures deceased wd have made on himself. which is usually substantial. there must be an evidentiary basis. in that if each person is considered to spend 30% on personal needs. Defamation and breach of good faith  much higher damages.. (SY v. Lawrence (MbCA): • Joint income: when one dies. 53 of the Mb Trustee Act: allows action by or against the personal representatives of the deceased. work in a high-risk occupation). Keizer v. persistent vegetative state. S. car. • Unemployment? Evidence. Fatal Accidents Act: S. accounting for both negative and positive contingencies. and wrongly decided.g. Allows: Pecuniary (loss of future income. • For a reduction to account for potential of re-marriage. If executor doesn’t bring action in 6 mo’s. Received little for non-pecuniary damages b/c cognitively gone. o However. they can. which is ridiculous. Hanna (1978) SCC: The proper method of calculating the amount of a damage award under The Fatal Accidents Act is similar to that used in calculating the amount of an award for loss of future earnings. since she was already 55. or for future care. e.g. in cases of serious personal injury. etc. • The present value of a lump sum which. primary concern is compensation and future care. Policy: if main or sole breadwinner killed. existing attachment to another person. Gets 72% of cap. 4: Court may reduce award for contributory negligence. Exceptions to cap? Pittman Estate: cap upheld. or put one in place for these other awards. • Consider what is fair and adequate. No social burden. danger of awards getting out of control  increased ins.21 Arguments against removal of the cap: No limit on the things that could provide solace. children. Ter Neuzen: cap upheld in case of HIV infection through AI. Can’t just speculate. saying leave it to the legislatures). extinguishing the fund in the process • Take after tax income (different from personal injury where courts decline to consider it. woman gets HIV from husband b/c dr didn’t warn. would provide payments of the appropriate size over a given number of years in the future. mental suffering. and they are covered in many instances by insurance. deduct a portion of the couple’s joint income to reflect the personal expenses of the deceased. 2: Pl stands in place of the deceased. Cd he hv proven negligence and damages? S. thinking they didn’t have sex any more. this case’s 30% reduction is probably a bad precedent. . funeral) and Non-Pecuniary (loss of companionship. certainty. Intentional torts: Intentional torts involving criminal behaviour are an exception. dependents could become dependent on the state. so it is timely either to reconsider the cap on catastrophic personal injury. then than leaves only 40% of total income for joint expenses of housing. • Possibility of early death of either spouse must be based on evidence (e.

Maritime law is under federal jurisdiction.22 • Gross-up for taxation? There will be taxes on the income from a lump sum settlement. for funeral expenses if the amount of those expenses has been recovered. Definitions re loss of companionship 3. • Actuarial tables useful. Grail (1998) SCC: Shipping accident. Lewis v. except for 2 limited circumstances: loss of services of child or spouse (abolished by equality of status act) or loss of consortium. in an action brought under The Trustee Act. parent or child. under this subsection. (Doesn’t apply in Mb. Act) • At common/law. amount can be reduced to reflect loss of salary. but may be varied according to evidence that either the class of Pl varied from the average. Duration of benefits: Spouse: have to look at joint life-expectancy of both spouses together. Work life of deceased relevant. was under the age of 18 years. was 18 years of age or over.” • It is important to keep (maritime) damages “in step with modern understandings of fairness and justice. death created loss. then gave a lesser amount thereafter. (b) a step-son or step-daughter of the deceased. or is claimed. Trott (1996) Court refused to extend the common law.e. The Fatal Accidents Act Amount of damages 3(2) Subject to subsection (3). but nothing is recoverable. there is no claim at law for dependants. If shorter than joint life-expectancy of the couple. in every such action such damages as are proportional to the pecuniary loss resulting from the death shall be awarded to the persons respectively for whose benefit the action is brought. Gordon Estate v. Homemaker killed? Look at the process used in Laurence (joint income). • No justification for an automatic contingency deduction. Propaczy v. or a person who stood in loco parentis to the deceased. so 15% is appropriate. and both the statute and common law are silent on compensation for loss of care guidance and companionship. (Laurence) Child: look at period of dependency. b/c of Fat. • Claims for loss of guidance. Great quotes to apply to other aspects of damages: • “Contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lose the guidance. "child" means a son or daughter of the deceased who. and subsequent lower pension. at the time of the death of the deceased. as well as with the dynamic and evolving fabric of our society. (c) a step-mother or step-father of the deceased. Todd (1980) SCC: Anticipated employment income up to age 65. care and companionship are pecuniary claims (but must be proven). at the time of the death of the deceased. care and companionship of a spouse. Funeral expenses 3(3) Where an action has been brought under this Act there may be included in the damages awarded an amount sufficient to cover the reasonable expenses of the funeral and the disposal of the body of the deceased if those expenses were incurred by any of the persons by whom or for whose benefit the action is brought. and . or the actual Pl had personal characteristics that called use of the average into question.” Apply this case to an argument that some intangibles should be moved out of the non-pecuniary award and into pecuniary damages. Court must assess likelihood of occurrence of stated contingency. MacArtney v. Warner (2000) OCA: (mom witnessed death of son) • Must be able to prove causation – i. (« enfant ») "family member" means (a) a son or daughter of the deceased who.1(1) In this section. or a person to whom the deceased stood in loco parentis.

Pre-judgment interest is not allowed on non-pecuniary awards. the damages that would otherwise be awarded for his benefit shall be reduced in proportion to the degree in which the court finds that his wrongful act. The award for future damages should. s81(1)(c) . or default contributed to the cause of the death of the deceased.000 sum is . care and companionship of the deceased in the following amounts: (a) $30. (b) $10. but the court may make allowances for loss of opportunity to invest. a total of $70. or there being an executor or administrator no action is brought by him within six months after the death of the deceased.1(4) An award of damages under this section shall be made without reference to any other damages that may be awarded and without evidence of damage.272. the common-law partner of the deceased and the support recipient of the deceased and to each parent and child of the deceased.5797. sister. Adjustment for inflation 3. and in the name or names of. or default contributed to the cause of his death. the court shall award damages for the loss of guidance.000.SCC • No compensation is provided for inflation up to the time of trial. Award: $75. any one or more of the persons for whose benefit the action would have been brought if it had been brought by the executor or administrator. neglect. Sibley (1993) MbQB: Discount rate is not just a reduction of 3%.069.Allows court to use discretion to alter time period in section 80(1). and. an action may be brought under this Act is a tortfeasor.” Watkins . “The parties are agreed that the factor to be applied for a discount rate of 3% in respect of $10. with $25.9707. or default of the deceased contributed to the cause of his death.000 per year for a period of five years is 4.000. and the factor for the $25.interest on un-liquidated damages is payable from the date successful party gives written notice of the claim to the date the order is made. neglect. grandfather or grandmother of the deceased. No need to establish damages 3. (« membre de la famille ») "parent" means a mother or father of the deceased. 10) INTEREST Part 14 of the QB Act (CB at 334) Section 83 – Discount Rate of 3% for future damages.797 and $24. Applicable Queen=s Bench Act sections: s80(1)(a) . ii) pre-judgment interest: Liquidated damages are a pre-estimate of damages.000 per year for 5 years. Contributory negligence of deceased 4(2) Where the wrongful act. therefore.000 for relocation costs. alone or with others.000 for future loss of earnings of $10.23 (d) a brother. grandson.1(2) Subject to section 4. be $45. granddaughter. to each family member of the deceased. s80 (3) . (« parent ») Damages for loss of companionship 3. neglect. the damages that would otherwise be awarded under this Act shall be reduced in proportion to the degree in which the court finds that his wrongful act. it’s an annual compounding rate applied to the present value of future damages. to each of the husband or wife of the deceased. They are any ascertainable fixed sum.1(5) In making an award under this section. from the date the claim arose through the date of judgment. • Interest gives the true rate. Contributory negligence of beneficiary reduces his damage 4(1) Where a person for whose benefit.interest on liquidated damages is payable at the pre-judgment rate. the court shall adjust the amounts set out in subsection (2) to take into account inflation after 2002. If both interest and inflation were given you would receive a double benefit. Bringing of action where no executor or administrator 5(1) Where there is no executor or administrator of the estate of the deceased. an action may be brought by. s80(1)(b) . . Reasoning behind this is: • Interest takes inflation into account.

Wallace • Damages for loss of income in a wrongful dismissal case are special damages for purposes of prejudgment interest. therefore not special damages. exemplary damages and costs. S.000. • The discount rate will be applied to whatever percentage the court deems reasonable. Gerard • Lost profit is speculative. no extras. 80(3) . old 5. • Loss of opportunity return is calculated using the discount rate (3%) as a guide. National Containers v.no award of pre-judgment interest on non-pecuniary damages but court may make allowances for a loss off opportunity to invest. iv) Interest on non-pecuniary damages: s. • General rule is that no pre-judgment interest is allowed on non-pecuniary damages.24 s78 . New bldg 2 storeys.principle amount is based on the ascertainable amount and does not include interest. • Where no substitute for the damaged property is available. 84(1) Post-judgment interest includes costs and is calculated from the pronouncement of an order.A. 84(1) Post-judgment interest is allowed on punitive damages because the money is now owing. DESTRUCTION OF PROPERTY (Is replacement reasonable? Should improvement be accounted for? Is it a case of forced modernization?) Harbutt’s “Plasticine” Ltd (1970) C. No deduction for betterment. Value of old: L45. non-pecuniary damages. Baud Corporation v. Pl will get replacement cost. Laufer v. Only upgrades were those required by code. • Lost profit is not a special damage. Pl got full replacement b/c reasonable to mitigate lost profit.000. iii) Post-judgment interest: s. Brook (1979) SCC The court has discretion to vary both the interest rate and the time for which it is payable.: factory burnt down b/c of negligence. Bucklaschuk: MbCA overturned TJ’s decidion to award 3%on punitive damages for loss of opportunity to invest (pursuant to s80(3)). Was replacement reasonable? No alternative to keep business viable. and there is no realistic alternative. v) Interest on Punitive Damages: No pre-judgment interest awarded on punitive damages because they are an expression of the courts disapproval for conduct and not assessed prior to judgment. 11) DAMAGES FOR PROPERTY LOSSES Pay attention to how the concept of how “the market” is defined and used. new: L68. Melnychuk MBCA: Non-pecuniary damages awarded already consider inflation between the loss and date of judgment. special damages. • The 3% is not awarded on entire non-pecuniary damages. . capacity the same. not withstanding a stay or appeal of that order.

• Where contract fails to fulfill promise. Recommended waterproofing. New building had extra capacity.775. Improvements that are required to fulfill building code requirements should not result in a deduction from the damage award. DAMAGE TO PROPERTY . 30% chance of reopening? Then 30% assessment of value upon reopening. • Onus to show not reasonable is on the Defendant. so assessed on that basis. • Where possibility of acquiring value is <50%.800 to get proper repair done. or compensate for value of loss. minus an amount for any betterment that may have resulted from the contract. • Assess loss as of date of loss. Abalon (1996) MbCA: What happens when contract fails to fulfil promise? Ab hired to fix leak in basement. (obiter) Substantially different design okay if net result is not an overall improvement. Mannix (1986) BCCA: Pl lived in uninhabitable house polluted by crude oil pipeline break for four years after damage b/c had business on adjacent property. • Arbitrary unproven figure chosen for cleanup cost. Held: The contract was not a guarantee of a dry basement.860. Cost of repair of the basement at $10. Pl gets her money back. Did the work for $8. • Enhancements to building will normally be deducted. • W. look to the future to decide on likelihood property will acquire value. Tj awarded replacement costs at 1977 values. b/c location crucial to business. Amisk Drilling (1993) MbCA: If FMV zero. but then give the Pl interest on the cost of borrowing to finance the improvement. and then deduct for the contingency that it might not. Jens v. Pl wanted $10. • Consider whether it is reasonable to replace. Sd intended to rebuild but hadn’t yet. Patson v. less $1. CA overturned date of assessment and deducted for depreciation from that date. Ziehlke v. (obiter) Waddams’ alternative: deduct benefit. • Where no replacement. The appropriate remedy was restitution. cost of compliance with building codes will not be deducted. how do you measure damages? (Fire destroys building at non-functioning gold mine. • Onus on defendant. Pl entitled to refund of payment. Leisbosch: (lost dredger case) • If replacement value less than rental. court may deduct for depreciation between date of damage and date of trial. Later discovered leakage was due to another problem. Hardware (1987) Ont CA: Pl rebuilt. So. Shrump would allow uncertainty about future to simply result in an award that is based on the probability. Pl shd not hv to borrow to modernize. damage will be the value of what was lost.evidence.. but arbitrary unproven figure chosen for betterment.) • Where FMV zero. even though accident in 1973. in event no reopening. not payment for work to give a dry basement. Applied same principles as in Shrump (not mentioned) and deducted for contingency mine might not reopen. replacement value will be given.200 for improvement to home.25 • • • Added improvements result in a deduction from replacement cost equal to cost of such improvements. • If the Pl has not shown a manifest intention to improve. • Loss of profits for reasonable replacement time are calculated from the time of loss to when the property could reasonably have been replaced. TJ sd 75% chance wd be operational. Deduction of 10% for improvements. James St. • In cases of forced modernization.

has an obligation to minimize damages. Darbishire v. • Only reasonable extra expenses will be covered (e. Court used normal rule. which multiplied in value. Choice of tort affects assessment of damage. repair that costs more than replacement will not be reasonable. less any salvage. import duties.325 for replanting. Judges indulged him. and/or litigate promptly.e. enjoying the trees. etc. • Where Pl has no special need for which this piece of property. Def can end the action by delivering the goods before trial. Pl. Repair not reasonable.500 for the loss of aesthetic value. Wing (1992) BCCA: What happens when there’s a rapid increase in replacement cost from time of accident to time of trial. alone. Value: as of time of trial. here the Pl were not expected to spend time on the land. to find replacement. It can be affected by the conduct of the Pl. repair is reasonable.) • Normal rule for loss of chattel: FMV at time damage occurred. an exception may be made. Pl awarded $2. .) • Pl must act reasonably in choosing to repair. (Pl did extensive work to ’62 Jaguar to bring it to show standard. B sued in detinue. Scobie v.) MISAPPROPRIATION OF PROPERTY Two types of torts: conversion. FMV unchanged. Act continues. • The diminution of land value approach in assessing loss is not always adequate. replacement value) Pl must make prompt efforts to replace. • If no similar alternative available. Asamera Oil v. Totalled. Pl can sue for return of property. $7. A single act. • To get an exception to the rule for a unique or collectable object.26 O’Grady v. detinue. even if that cost has risen substantially since the accident. • Reasonable travel. • A Pl who moves “with dispatch” will be entitled to full replacement cost. Warran (1963) CA: “uniqueness” of the car less obvious. may be added to replacement cost. (obiter) (courts don’t like Leisbosch) Leisbosch: (lost dredger case) • If you can’t afford to replace. • Aesthetics may be taken into account. (i. • A Pl claiming detinue is under the general duty to mitigate his losses. Barati (1982) Ont HC: What if there is no market for the lost object? Here grove of trees on land worth $69. would be suitable. Choice to rent quashes ability to get replacement. The onus on Def to show otherwise. SCC assessed at time of trial. Chappell v. Baud (1978) SCC: Baud loaned shares to the CEO of Asamera. Westminster Scaffolding (1962) QB: Evidence of unique characteristics? You may be able to get repair instead of replacement. The CEO refused to return shares. but then deducted for failure to mitigate. • Ask whether the Pl acted reasonably as between himself and the Def. • Conversion: to deal with property in a manner inconsistent with the owner’s rights. Value assessed at date of conversion. it will usually be considered reasonable. TJ assessed as of date of breach. on a particular date. on condition they be returned on a specific date.g.) (John Irvine says simply attempt to do justice between the parties. But won’t pay for car rental in meantime b/c he took 11 weeks to start repairs. or damages and consequential damages. taxes. (Note. • If you can’t afford to replace. car rental) • If Pl chooses repair. • The ordinary rule of assessment date at trial for tort of detinue is not absolute. too bad.000 destroyed by fire. (Pl loved his car “Hortensia”. Four years later had not replaced. • Detinue: wrongful detention. Nothing like it available.

there should be an allowance of a reasonable time to permit the organization of the finances for prudent acquisition. • Hardship subsequent to formation of contract generally not grounds to set aside specific performance. In meantime. and where there is conflict. p.) • When do you get Specific Performance? Specific performance should not be granted as a matter of course unless there is evidence that the property is unique. 1. Court sd Pl entitled to full value of increase on home he didn’t get. but there may be exceptions where hardship is extraordinary. postpones assessment until date of judgment. EQUITABLE REMEDIES QB Act s. Value of shares consistently fell until they reached zero. or in substitution for. Resisted on basis of hardship. dependent on neighbours and relatives nearby. he kept his own home. Fry v.) R. The difference in the increase in value as between the homes was $10. Ali (1984) QB: Def contracted to sell house in ’79. 33(3): The courts shall administer all rules of Equity and the Common Law. (note: this is for breach of contract of sale of goods. 36: The court may award damages in addition to. 4 years later Pl wants specific performance. • Don’t have to mitigate damages in a falling market. If it was desired for investment purposes. husband bankrupt and ill. Equity prevails. Rules: • Equitable Remedies are discretionary. then not automatic. perf. • Where property with a volatile price is involved. • Assessing damages as of date of the conversion should be applied in a falling market. Allowed. After contract. • Courts tend to prefer damages.000 and Def claimed that is what Pl was entitled to. • Equity acts “in personam” -. • The excuse that one does not want to buy property of one’s adversary is no excuse. and it increased in value substantially. had two more kids. and def. lost leg. • Damages in lieu of specific performance thus also assessed at time of judgment. See Maxims of Equity.27 An injunction restraining the sale of the objects claimed by the Pl does not relieve a Pl of this duty interminably. an injunction or specific performance Semelhago: Pl sought specific performance for home purchase. • Time of assessment: A claim for spec. Cd put up $$ for damage award. .against the person. (The duty to mitigate can be onerous. Reimer (1993) BCCA: Pl’s shares wrongfully sold. • 12) EQUITABLE DAMAGES QB Act S. casebook. developed cancer. • A Pl may elect damages in lieu of specific performance. so Pl must establish that damages would be insufficient. unless there are compelling reasons to depart from the rule. • Pl not expected to take on undue risk. Patel v.F.

• Enhancing a bargaining position is not a proper use of an equitable remedy. But court ordered specific performance. This was not a proper purpose for granting equitable relief. • For a company to sue for an accounting of profits. as the mall was virtually deserted. even though the shares in the two corporations are held by the same persons. Pl had 4 kids and limited $$. (Note: in a case where Def could not put up damages. v. . Kurian (1986) MbCA: Joint venture re lumber activity. this might not be the result. MbCA overturned injunctions enforcing leases. RRC was the victim). and Red River Co. and would not cooperate with discovery re: a particular license. he should not be penalized. given the complexity of discovery on the license. Mardynalka v. judge can decide to refer the issue of an accounting to a Master. WFC wanted it disgorged.) Stewart v. Sent to prison. Denied. Any harm caused to the tenants could have been compensated with damages. Court agreed that discovery should be deferred until after determination of liability. • 13) ACCOUNTING OF PROFITS Meant to deprive a Def of unjust enrichment by disgorging him of his unfairly gained profits. as it was an equitable and discretionary remedy. #1’s husband committed suicide after sale. sued for return of money. Tasker (1979) T was a director of Pl company WFC. • The fiduciary duty owed by a director to a corporation does not extend to the corporation's creditors. Def denied extent of joint venture. making L20. and she was left with 6 kids. • “Thus. (Here. Certainty of contract should be respected.” Reading (UK case): Enterprising sergeant in British Army aided those who transported illegal booze. The tenants sought the injunction merely to improve their bargaining position with Unicity. A continuation of the tenancies served no purpose.000 in the process. Hardships were roughly equal between the parties. • The principle that specific performance prevails in real estate cases is difficult to dislodge. • 4 years to time of trial (no fault) worked in Def’s favour. It wished to demolish the centre and build separate retail outlets. When released. But also wdn’t let mall forcibly remove tenant. Sued for an account. Unicity (1999) Mb QB: Unicity owned a large shopping centre. • (Applies to fiduciary duty as well. Western Finance Co. it must have been the victim of the Def’s actions. where a director of one corporation makes a profit out of dealings with that corporation he cannot be compelled to account for those profits at the suit of another corporation that is a creditor of the first corporation.02 In a jury trial. Most of the tenants of the existing mall had agreed to vacate or had already vacated the premises. • Allowing discovery before trial on issues related to accounting is at discretion of the court.28 Where Pl not responsible for hardship. Relied on friends and relatives in neighbourhood. WFC a creditor of RRC. T wrongfully made a profit from dealing with RRC. Rivard v. Didn’t find her credible. and the director is also a director of the creditor corporation.) QB Rule 54. • Abuse of a position of trust can result in a disgorgement of the profits that resulted from that abuse. Abrosina (1999) Mb QB: Widow #1 sold home to widow #1.

and advice of lawyers saying it was in breach. (Here. but for a specific period of time. and breached. Pl can access def’s property. and breach. saying in a civil case Enforcement is primary. General considerations: • • • • Establish proof of a legal wrong. Discretionary and subject to equitable defences. (up to10 days: s. • If an order is made. • There can be a further order to do or refrain from doing something. o Charleswood Homeowners Assn: tried to get mandatory injunction to force city to repair roads.” 2) Interlocutory: An order prohibiting or requiring certain action until case gets to trial. E. Harder to get. o Look at balance of convenience. court can: • stay a proceeding. • Def must take adequate and reasonable steps to comply with order. 1 month. 40) 5) Mareva: to freeze assets controlled by defendant. 3) Interim: same as interlocutory. • Def has to be proven to have actual knowledge of court order. Novo guilty of contempt. Supervision an issue w. • Costs can be awarded. Novo concealed documents. Damages inadequate. until Def can present its arguments in court. e. 55: authorizes restrictive or mandatory interlocutory injunction. You can’t get an injunction where there’s an adequate C/L remedy. • CA reduced huge penalty of TJ. Apotex v. and seize evidence. where it appears just or convenient to do so. to avoid confusion and inability to find contempt. 1) Quia Timet: “Because you fear. TYPES OF INJUNCTIONS QB Act S.g. Apo alleged that ex-employee shared confidential info with Novo. . Def may not re-create nuisance.) (Note: important to ensure orders clear and precise. but court sd “what does good repair mean?” Nature of injunction requested made it undesirable for the court. Got an injunction ordering all documents to be turned over related to the drug.000 fine sufficient.) QB Rule 60.. $110.10: Contempt of court power. • dismiss a claim. • Breach must be deliberate and wilful. 1st wd win a billion-dollar market and R of $60M annually. inspect documents.mandatory orders. and such an order may include such terms as are considered just. 4) Ex Parte: always interim. Specific performance is an example of a mandatory injunction. court can fine and/or imprison. and that Novo refrain from further research. especially important where liability in question.g. if successful. (interlocutory and w-out notice. Penalty is secondary.11: Enforcement of interlocutory orders. • Standard of proof in a contempt proceeding is proof BRD. No claimed breach applied to US market. In addition to any other sanction. 7) Permanent: Post trial. (interlocutory and w-out notice) 6) Anton Pillar: likened to a civil search warrant. or threatened legal wrong.29 14) INJUNCTIONS GENERALLY QB Rule 60. o Must show irreparable harm. Novopharm (1998) MbCA: 2 drug companies racing to market with same drug.) All of the above can be either mandatory or prohibitive. or • take any other action.

• Def’s inability to maintain status quo a factor. 1. When can you enforce an order against a non party? Griffin Steel: • Non-party who’s aware of order and knowingly assists party in breach can be found in contempt of court. Pl argued danger of irreparable harm (although their own expert denied this). Oliphant pointed to guidelines on running a disposal site in legislation. the affected person may invoke the equitable jurisdiction of the court to obtain a prohibitory injunction. Balance of convenience? Resuscitating Sawatzky did not require onerous steps on the part of Riverview. Est’d test for interlocutory injunction (affirmed in RJR Macdonald). Serious issue to be tried. Def’s use  permanent loss of market share for Pl. Big Def. Riverview Health Centre: Pl wanted to remove a “do not resuscitate” order. Enforcment against non-party? MacMillan Bloedel v. (here not proven) • Pl must show: imminent danger of substantial harm. Rule 60. can’t get an order against parties unknown. 3. She was successful on all three grounds. file a John and Jane Doe order. Simpson (1993) SCC: • A non-party is bound by an injunction order. But where impossible to obtain names. • Normally.) 3. they are bound to obey. . (2) irreparable harm. • Who wd suffer more from an unfavourable judgment? • Would an injunction decide the case? Examples: Sawatzky v. (no need for prima facie case) 2. but they must be aware of its existence before a contempt order can be enforced. and thus damages would be impossible to obtain. Sd Pl cd sue if there was damage.30 15) QUIA TIMET INJUNCTIONS Hipwell v. • Must prove damages won’t suffice. 2. Wallace RM (1987) MbQB: Farmers owned land near proposed waste disposal site. 1. Pl had patent. thus meritorious issues to be tried and the application was neither frivolous nor vexations. Damages would not be adequate to compensate the wife if Sawatzky died. Balance of convenience. • Assumption: parties will comply with the law. Risk of irreparable harm to Pl? (May consider whether Def. A strong case of probability of harm (almost a moral certainty. Injunction would preserve status quo. b/c Def’s product not yet on market. The courts had never considered such orders in the context of the Charter. impecunious. 16) INTERLOCUTORY INJUNCTIONS Based on: (1) strength of case. Little Pl. (3) balance of convenience.06(2) An order that can be enforced on a non-party may be enforced as if that person were a party. • where criminal conduct affects property rights. If they have notice of the order. American Cyanamid: (battle over sutures.

inadequacy of damages always a separate pre-condition. • Where factual record is settled and agreed to. Difference between private party and gov’t. must show a substantial public interest. need a higher threshold for serious issue to be tried.. MbCa rejected. Moxies an innocent 3rd party. N sought a variation. • Court said American Cyanamid not step-by-step. • Re: Balance of convenience. so granted injunction. Court sd rent to daughter cd compensate. (RJR MacDonald: It’s not the quantum. and potential for permanent loss of market share. • • Where result will be a final determination. Where an injunction will settle the issue: Griffin Steel (Mb QB): secondary picketing at places that do business with employer. and interim order of exclusive occupancy. Granted injunction. Balance of convenience favours Moxies. What is message to/effect on public. the person affected by an injunction order should be a party to the action. since complexity of drug regime meant it would be 3-4 years after trial before they would be able to sell the drug. (Don’t come to court saying “not frivolous or vexatious. Sharing confidential info a permanent harm Apotex v.mall. Strength of case weak b/c Moxies didn’t know about restrictive covenant w. this will greatly outweigh inconvenience to party. given late application. which is difficult to quantify. just one part of the test). Order wd give employer an unfair advantage in bargaining. but nature of the harm that matters. a non-party may be held in contempt if she breaches an existing injunction or knowingly assists a defendant in breaching.”) Don’t forget public interest argument with charter cases. that may be sufficient for an injunction. higher test for “serious issue to be tried” will apply. b/c of enormous cost. Normally. court assumes potential for irreparable harm (but not decisive. Novopharm : A got injunction preventing N from doing research on its technology. No irreparable harm demonstrated by Perkins. (renovations complete. Smith (1993) MbCA: Family can’t get along in same house after mom puts daughter’s name on title. Charter case Hall v.31 Weak case Perkins v. factor of “serious issue to be tried” must have a higher threshold. Mom claimed duress. • However. o To get a stay on application of legislation. therefore no need for injunction. but global assessment of case. saying: • fact of sharing information causes harm. • Once the 3-part case made out there’s a heavy burden on the Defendant to show there would be no irreparable harm without injunction. Pl has to agree to pay damages upon loss of case.) RJR MacDonald: wanted a stay of Que CA judgment re labels. but here that was waived. • Generally. Moxies (1994) MbCA:application to close moxies failed. • With charter cases.) Also. Example of 1) mandatory injunction 2) inadequacy of damages Perreira v. and intent to appeal. Wanted conveyance of property to her alone. (applied consistenly in Canada. and gives $$ to daughter on condition she pay mortgage and renovate. Daigle: order to prohibit abortion wd decide the case. • But. . Where public health at risk. • Status quo should not carry much weight. Def wanted partition and sale. Some things cannot be quantified) (Apotex: where quantification difficult. Tremblay v. Powers (2002) Ont SCJ: Openly gay student wants to attend grad with boyfriend. • Test for a stay same as for interlocutory injunction. o Presumption: laws passed in public interest. • Where issue would be settled.

S. ensure total honesty. 39. Must act as fair and honest officer of the court. but it is possible. • 18) PUBLIC INTEREST STANDING . • • • • • File Statement of claim. 39.) (Note: this does not appear in the rules online. file Application File affidavit. Applicant can obtain injunction w-out Statement of Claim in a situation of urgency. the communication by a person on a public thoroughfare of information by true statements. 57(2) For the purposes of this section.) Affidavit evidence Rule 39. upon an undertaking to commence action forthwith. But. St. nor Notice of Motion Without Notice. (Griffin Steel) 17) PROCEDURE FOR OBTAINING INJUNCTIONS Rule 40. file a John and Jane Doe and Persons Unknown Order (MacMillan Bloedel) (if they have notice of the order. 40. seeking declaration. they are bound to obey it.03: Moving party has to undertake to pay Def’s damages if Pl loses at trial. the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech. the moving party . Rule 40.32 Personal Services S. Trnka: lack of complete disclosure resulted in costs on a solicitor and client basis. Exception: where injunction obtained by ancillary relief. Court may not require. despite the merits of the case.undertaking for statement. can proceed by notice of application. Question: the rules do not seem to include any reference to a statement of claim. Rule 40. "Exercise right to freedom of speech" S.01 Interlocutory injunction may be obtained by Notice of Motion by party to a proceeding. but if urgent. 56(1) The court shall not grant an injunction which requires a person to work or perform personal services for an employer. Griffin: affidavit sworn by Pl employer sd he had spoken to deputy chief of police. either orally or through printed material or through any other means.05 (3): Where you claim an injunction. is an exercise of the right to freedom of speech.01(6) Where parties names are unknown. w. neglect or failure of the person to work or perform personal services for an employer. A failure is sufficient to set aside the injunction. lawyer had spoken. 57(1) Subject to subsection (3). No contempt re personal services S. Court makes a distinction between restraining violent conduct and restraining freedom of speech. Undertaking re: Damages Rule 40. Affidavit set aside. Must disclose source accurately.05 IF seeking a declaration.01(6): for injunction w-out notice. 56(2) No person shall be held in contempt of court by reason only of a refusal. But. but want injunction also. (e.must make full and fair disclosure of all material facts. No injunction re freedom of speech S. Vital School Division v. proceedings commence by Statement of Claim. File Notice of Motion.g.

• Persistent flouting of law in the face of convictions. or to force a public duty to be performed.) Exceptions re: public interest standing Borowski. since AG has power to increase penalties. (e. The Attorney General must grant consent to an individual for a relator action. • Blatant flouting of the law constitutes a harm to the public interest where (a) profit is earned from breaking the law. • Urgent matters. so likely wouldn’t get an injunction. Attorney General v. or that a public wrong will inflict some special private suffering or damage to the plaintiff. • If an Attorney General is unable to obtain the injunction. Reasonable Accommodation: >Public= property owners must accommodate disabilities to the point of preventing undue hardship. AG can step in at any time and stay proceedings. BUT • General rule. Arises most often when AG refuses to enforce legislation. • Noted trend of liberalizing rules of standing. League for Life v. (although this was a case of private property rights. Merchants argued laughing at the law. Morg. It is unlikely there will be a finding of guilt) • If the law is a sufficient deterrent. • To get standing. (This case is akin to a >public interest-quia timet= injunction as the plaintiff assumed the defendant would resume performing abortions) • An Attorney General may seek an injunction to help uphold the law if the purpose of the law is the protection of health and safety. unlike Harris. handicap parking. and (b) penalties are not a deterrent.g: skywalk).33 Principle of Dedication: Where it is possible to show that an owner has intended private property be used for a public purpose (e. Most people can get it w. Never convicted. a plaintiff must demonstrate a violation of a private right. party has to be directly affected. Def sd trivial. Gouriet v. • The civil courts should be slow to make incursions into criminal law. no injunction (b/c no purpose). (Here. • It is up to Attorney General to bring an action in the public interest to stop public mischief. Morgentaler (1985) MbCA: Plaintiff sought a relator action to prevent what it deemed to be a flouting of the law by the defendant. it essentially transforms the private property into public property. The accumulated fines totalled less than licence fee would have cost to purchase. Individual enforces law Relator action. and normally wd have to charge (raising standard of proof to BRD). MacMillan Bloedel: • the mere fact conduct may be characterized as criminal does not deprive a person whose private rights are affected from seeking relief in civil courts. leaving no time to change the law.questions of constitutionality of a law. Harris (1961) Eng CA: Defendant was charged 237 times for violation of a licensing by-law. skywalk access) When will state use injunctions • Only allowed in exceptional circumstances.g. AG refused to take action. where an individual seeks an injunction to protect a public right. Union of the Post Office: failed to force post office to handle mail to/from South Africa. McNeil and Thorson trilogy (SCC): (1) Serious issue as to the constitutional validity of the legislation in question (2) Must demonstrate that the plaintiff is directly affected by the legislation or has a genuine interest in its validity . AG’s case already set for trial that had been lost in other jurisdictions. a private group is enjoined from attempting to do so.

but guidance given. 34: Courts have ability to make declarations w-out other relief. Obtained standing. Harris. • Interlocutory declarations are not available against the Crown unless there is some evidence of a deliberate flouting of established law by the governmental authority. Rule 14. • Must have an opposing party to argue against in court. Requirements: 1. The court wants to ensure the rule of law. Harris v. • Both sides must agree in advance to abide by ruling. Don’t require cause of action. which the government will respect. Solosky v. Issue involves clarification of present rights 3. Administrative action subject to same principles. PUBLIC LAW Crown immune from injunctions. Only as a final determination. • Can’t get an injunction for personal services. PRIVATE LAW Wpg Jets v. Application for declaration denied. or backing a challenge.34 (3) No other reasonable and effective way to bring the issue before the court McNeil v. Olaufsen: dispute over O’s contract. . Serious issue to be resolved. 19) DECLARATIONS QB Act S. Refused. Ontario (1993) Ont CA: The plaintiffs were students whose courses were cancelled due to funding constraints. • A mandatory injunction for specific performance flouts Crown immunity. McNeil not directly affected. declaratory relief not available as an interim measure. may grant a declaration. NAPO v.05(2)(c)(iv) adds: where material facts are unlikely to be in dispute. no direct interest. Canada (2000) FTC: Pl sought declaration that Minister should enforce his duty in accordance with the act. • Who else would challenge? Not minister or family.05((3) if the declaration is secondary or ancillary to a main cause of action. Wanted declaration of binding contract. or violation of rights. • Seriousness? Not constitutionality. 2. but whether officials had performed their responsibility. • Declaration avoid need to wait for breach and sue for damages. the Queen (1979) SCC: Prison policy to open mail. Rule 14. NAPO (panhandling): • If you can put forward evidence that group affected is incapable of instructing counsel. including letters from lawyer. Winnipeg – reiterate exceptions to standing principle in Manitoba. Nova Scotia Board of Censors (1976) SCC: Last Tango in Paris banned. • Discretionary: if useful and would settle issue. Can be an advance ruling or interpretation. but can use S. • Application of declaration re future rights no bar to action. However. On editorial staff of newspaper. 42 Proceedings against the Crown Act to get a declaration in lieu of injunction. then public standing available to other representatives. and will not be granted. Interlocutory declaration Loomis v. the courts may grant it. Doesn’t want to immunize administrative action from judicial scrutiny. • Interest? As a citizen.

(Note Otten: Crown immunity does not apply to Charter challenges.) .35 • Declarations against government available only at end of trial.

• Must have clear evidence of incriminating documents. SafeSoft Systems Inc. can refuse entry and the Pl must then leave. Pulse Microsystems Ltd v. even if the reason was to fight in court. Reputation at stake • Damages from AP order must be proven. Safeguards: • Pl lawyer an officer of the court and should supervise. (Mb QB) AP order given. etc. 55: Court has the power to issue AP orders.36 20) ANTON PILLER ORDER QB Act S. Allows a Pl to enter the premises of the Def. is present. an order against the defendant personally. this was another case of misconduct of Pl – failure to disclose cooperative attitude of Def. (and or lawyer(s)) to determine whether evidence of fraud. no lawyer) • Keep detailed record. • A Def. if scope of order exceeded. • Return goods ASAP. • AP order cannot be enforced if defendant refuses. • If Pl must have access to the material. keep with neutral 3rd party. must be shown by Pl for a successful Anton Piller order. however the Def can later be found in contempt of court. (Columbia Pictures). • Utmost good faith. • Obligation to comply is immediate and ongoing • This remedy should be used only in the most exceptional circumstances. SafeSoft was also awarded solicitor and client costs and the value of the seized property. Set aside. to permit the plaintiffs entering. but then new evidence indicated that SafeSoft was not a fly-by-night operator against whom Anton Piller orders were normally sought. It appears that the real test may be whether there is evidence of deceitful practices – from which it intent can be inferred.. But. A “civil search warrant”.. . Consequences of refusal: • Contempt of court • Adverse inference of fact. and ultimate penalty may be higher so the pressure to comply is heavy. there can be aggravated and punitive damages against him personally. • Def has to be given opportunity to consult order and move to set it aside. if entry is refused defendant is subject to a contempt order and an adverse inference may brought forward as evidence at the subsequent trial Columbia Pictures v. (unfair. in the form of full disclosure of all evidence. Very damaging at trial Features: • Usually is an ex parte order • Rarely granted due to its intrusive nature • It is an order in personam . in Def’s possession. Plaintiffs did not comply with their obligation to provide material disclosure. • Potential for actual damage from loss of property must be very serious.that is. there was no such “clear evidence” in Anton Piller.) • Lack of cooperation is contempt. Award of costs on a solicitor-client scale. • Order covers minimum items necessary. Robinson (1986) (Denning): video black market. • Pl to give undertaking re damages. Requirements: • there must be an extremely strong prima facie case that Def will destroy evidence if warned. objects. • Can’t ask Defendant for more than what is in order. • If lawyer exceeds order personally. • AP orders generally issued against companies of dubious reputation.

St. Vital School Division v. (Recall Rule 39. Affidavit set aside. lawyer had spoken. however.) JURISDICTION A remedy in personam. Must disclose source accurately. to be safe seek in jurisdictions where required. Trnka: lack of complete disclosure resulted in costs on a solicitor and client basis.01(6) re injunctions: the moving party must make full and fair disclosure of all material facts. Griffin: affidavit sworn by Pl employer sd he had spoken to deputy chief of police. But. .37 • Costs on a solicitor-client basis are available as a penalty.

these must be specified. if the plaintiff obtains further information indicating assets are held by other parties. Same applies to any specific asset held by the person or Co. or face contempt of court. and her agents and servants. In addition: • Pl must pay for any costs to the innocent third party. • Precision in the notice is required • If precision is unachievable. where Defendant refuses to cooperate. • Def has to pay for examiner. Stubbs). The judge held that there was a relative deficiency of assets held by the plaintiff in the province and that there was a real risk of his transferring or concealing significant assets elsewhere. • Pl shall give undertakings in damages to the Def. Pl is not entitled to know details • Once an injunction is obtained with regard to certain banks (and other parties). Balances two competing interests: (1) that the assets of a Def. then Pl can ask for a search. • • Aetna Financial (SCC): Established Requirements under Mareva (assets in Canada): • Strong prima facie case of risk of removal • Evidence of dishonesty. • Real risk includes destruction or dissipation. are sacrosanct until judgment (Lister v. Payment under letter of credit or bank guarantee not prevented. MacIver: • Court can appoint an examiner to support enforcement. Court may require a bond or other security. Solicitor-client costs as well. however. BUT. COOPERATION OF THIRD PARTIES Z.000 into several bank accounts used to acquire fixed assets for the Def. for which he must pay. • As soon as a company or person is given notice of a Mareva injunction. but can debit these payments against the Def’s account. Mooney v. no Mareva. Credit card debts must be honoured by the bank. • Def should be given the earliest opportunity to challenge the injunction. those parties may be given notice under the injunction. Accounts discovered will be frozen. • Joint accounts can be included. Vlassie (1989) MbCA: Order scaled back because too broad. • Evidence that removal of assets will render future judgment futile. Ltd (1982) CA:. Often obtained with anton piller order.000. • Exceptional remedy. • If a Def claims to have ample assets to satisfy the claim. • Full and frank disclosure. Scaletta v.little domestic income avoids debt. • If assets remains in Canada. The injunction may be limited to a few days. • Orders must be as specific as possible. Orr (1994) BCSC (assets outside of Canada) High flyer w.38 21) THE MAREVA INJUNCTION • • An interlocutory injunction preventing the transfer of assets from the jurisdiction of the court. • Def allowed access to funds for living expenses. and freeze no more than necessary. Fraud involving transfer of $2. The injunction is “in personam” against the Def. Disregard of the injunction can lead to contempt of court proceedings (and possible jail). (2) the need to prevent the Def from removing assets in an effort to thwart a legitimate claim of the Pl. • The court may fix a maximum amount to be restrained. it/he must freeze the Def’s bank account. The evidence was that the plaintiff had the capacity to invest in substantial enterprises and had a history of carrying on business .

specific performance is available. 56: Court will not require a person to work or perform personal services. No personal services. the status of mutuality changes. but not a freeze as per Mareva. so lack of mutuality bars specific performance. Evidence of assets ex juris 3. so he couldn’t get it against them.) R. PERSONAL SERVICES QB Act S. But. But where one party has fulfilled his terms. See Practice Direction at page 206 22) SPECIFIC PERFORMANCE Damages must be inadequate. v. or Consolidated. Can get disclosure. No obligation to mitigate if specific performance is awarded. preventing Def from doing similar work in same area. • Contract with a minor is voidable. . Can argue Aetna is the law. • Lack of Mutuality is usually a bar (nephew couldn’t sue uncle for specific performance). Lumley v. (3) Removal would be for malicious or improper purpose Practical matters: See notice of motion page 203 of casebook for list of grounds for Mareva order. Wagner Promise not to sing anywhere else while on 3-month contract • If courts find a valid restrictive covenant in a contract. the less likely you are to get this remedy. (and not to avoid THIS judgment) can’t gather them up for Plaintiff. Conditions: (1) Strong prima facie case of imminent removal. Injunction granted. A good arguable case (instead of strong prima facie case) Lower standard. MUTUALITY A REQUIREMENT Beswick (1968) All ER: • Where damages would fail to address an unconscionable breach of good faith. BUT • If you fail to disclose your world-wide assets you may be held in contempt. (Note: may or may not be the law in Mb. Gretsky v. The more coercion required. Trial judgment. • Three conditions: 1. • Where assets were offshore as a matter of course. Court ordered disclosure of world-wide assets. 2. out of reach of his judgment creditors.8M. Consolidated FastRate (1995) Ont CA: Crown feared co would transfer assets to avoid fine of $6. they can grant a restrictive injunction rather than specific performance. (2) Imminent removal or dissipation would render judgment nugatory.39 offshore. (Asamera the exception) Not preferred where there may be a need for supervision. Critical: Court unhappy with Mooney for using courts in an illegitimate way against others. Ontario Minor Hockey Assn (1976) Ont: league couldn’t get specific performance against Gretsky. the courts will enforce a negative covenant with a restrictive or prohibitory injunction. The assets he acknowledged were not sufficient to support his lifestyle and his manner of doing business revealed by the evidence. A real risk of remove or dissipation of assets to avoid judgment.

Friesen v. BUT • Onus always on employer to prove restrictive covenant reasonable. nature of restriction (e. • Worldwide competition. • If intent of enforcement of negative covenant is to punish. the employer has a proprietary interest in the preservation of those customers which merits protection. • Where the nature of employment is one of close personal contact with customers ( employee as the personification of the company). PENDING LITIGATION ORDER QB Act S. Kopar (1983) Ont CA: There had been a 6-month extension of the contract.g. QB Act S.g. noncompetition clause tougher than non-solicitation clause re: employers’ customers. Rule 42: done by motion. • Restrictive covenants always prima facie unenforceable. then it will not be upheld. Dublinski (1956) Ont: different countries. Can be sought ex parte. A lien and charge against the property. • There must be reasonableness of time period. so as to exploit his connection with former employer’s customers. E. • Delay coupled with hardship or prejudice to defendant are the only grounds to refuse specific performance for sale of land. • If the effect of enforcing a restrictive covenant is to force person to be “idle and starve”. 58(4): If you register a pending litigation order without a reasonable claim to an interest in the land. Presumption of specific performance of sale of land. court will not enforce it. • Injunction should go no further than necessary to protect employer’s interests. Special circumstances making protection of the business necessary. Semelhago (SCC): • Specific performance should not be granted as a matter of course unless there is evidence that the property is unique. Grounds include applicant does not have an interest in the land . (look at duration. but also from establishing his own business or working for others. If it was desired for investment purposes. then not automatic. Bette Davis: court didn’t care that her vocation was acting. Elsley (SCC): (insurance business sale) • the nature of employment may justify a covenant prohibiting an employee not only from soliciting customers. McKague (1992) MbCA: Steinbach veterinarian. so worldwide restrictive injunction. then Def reneged when value tripled. Rule 42. you can be liable for damages.02: owner can move to have order set aside. NEGATIVE COVENANT A negative covenant won’t be enforced if it is an unreasonable restraint on trade. but to impact of competition or continued work elsewhere by employee. 58: effective notice to 3rd parties that litigation being pursued against property. LAND AND SPECIFIC PERFORMANCE Bashir v.40 Warner Bro’s v. and force return of employee. geographic scope. Remedy to be connected not to loss of employer. geography. and what is to be restricted. • The employer must have a distinct interest beyond the positive covenant. Allowed restrictive injunction. any and all manner of involvement in the industry) Detroit Football v. Court noted equality of bargaining power. Pleadings must already be filed. no element of competition. and a copy must be filed with motion.

l. But it was losing millions. Co-op sought specific performance. • A pending litigation order can substitute for a Mareva injunction. • Need for supervision of order for specific performance will be a bar. Wants pending lit order on the land. • Damages are usually adequate as chattels may be easily replaced.) SPECIFIC PERFORMANCE IN THE SALE OF GOODS AND CHATTELS Falcke v. Grey (1859) ER: (sale of china) Spec perf. Wilcox (alcoholic persuaded to sell farm for 15% of its value. • Where the party has no claim to the land. No legal advice. Pace Homes (1994) MbCA: • It is an abuse of process to use pending lit.) Penner Construction v. refused. unless the plaintiff is able to show a uniqueness that demands specific performance. (should have tried injunction. (Note: the nature of the interest in land is not totally clear. Black v. 3rd party wd suffer. Argyle Stores (1995): A to keep safeway store open for 35 years according to lease. no order will be granted. order is an abuse of process. Co-op Insurance Society v. and serve to freeze real estate.) (consider a personal injury award. Kirkfield Park: Non profit ass’n challenges change to by-laws  development of property owned by school division. . order to stop foreclosure on one’s own property. • Inadequacy of price may be grounds to refuse specific performance (obiter).) • To set aside an agreement there must be: (1) gross inadequacy of consideration and (2) a gross inequality of bargaining power such that the court could intervene. 12 years left on lease. Ansel (1979): Def who owed debt to Pl conveyed property to wife.41 What is an interest in land? Marlo v. Cd circumvent tough requirements for Mareva. Denied. a p. Unconscionable. • Where owner of land not a party to the litigation.

A policy of qualified immunity would seem to make s. The wording of S. injunctions. 52. 24 REMEDIES Schacter (1992) SCC: Father wanted parental leave. (Note: this decision contradicts other Charter jurisprudence which says give a generous interpretation. the cases have indicated that S. Look at intent of legislation: function and purpose of tribunal. Consider a S. why should the Charter? Since Schacter. a tribunal might be a better place to get a Charter remedy. 52 AND S. Yet. etc. 24 a near nullity – at least with regard to discretionary implementation of legislation. Tribunals have remedies not available to the courts – so if an individual has a choice. 1997. the courts can also read in what is missing. Human dignity is central to s. But. . administration not. but effect suspended for one year. Compare this to the SCC’s attitude to defamation. Mills.) What are rare and exceptional circumstances? Argument: Whenever there is bad faith. enabling legislation. 2) general remedy of services for those in similar circumstances. 24 – The Remedial Clause. 52 – The Supremacy Clause. 15 interpretation. and the SCC appears willing to shield government from its effects. This latter approach is to be preferred. and their legal rights. re failure to provide interpretation services for the deaf. abuse of power. 24 in particular suggests that Parliament and the provinces intended a broad interpretation. improper conduct. Autistic children get benefits. the court affirmed a $1M. To do otherwise is to discourage citizens from pursuing justice. 24 Damages. 24 remedy can be awarded by any court of competent jurisdiction. S.42 23) CHARTER REMEDIES S. Adoptive parents could get it. it will not amend act (read in). 24 and s. 2 declarations: 1) Parents to get symbolic damages. If Equity will suffer no wrong to be without a remedy. Held: The offending provisions were struck down. But. 15 breach. 24 is used when you challenge state action. as noted in R. to be more generous. whenever Pl would walk away emptyhanded. If court not satisfied it can anticipate what Parliament would have done. OR. Types of Remedies under s. allows anyone whose rights have been violated to apply for any remedy the court considers just and appropriate in the circumstances. and there is no evidence that was ever intended to be an element of Charter application. v. and removed discrimination. S. Anything in conflict with the Charter is of no force or effect. except to provide protection of government coffers. because Act okay. Auton (2002) BCCA: (followed Eldridge . this can also include administrative tribunals – if the tribunal was given the authority to decide questions of law. • Only in rare and exceptional circumstances will a Pl get both a S. b/c of lack of evidence. Yet here. There is no apparent justification for the discrepancy. Human Rights Commission. Perhaps. 24 remedy. Court of competent jurisdiction S. which is also about human dignity.g. Feds conceded the breach  little evidence on which to found a remedy. 52 not in play. Since the SCC has endorsed the purposive approach with regard to most Charter litigation. He cited discrimination on basis of family status. consistency would require that it apply the same principle to s. THE TESTS FOR S. 52 is to be used whenever you challenge the legislation itself. or read down. Parliament later reduced benefits from 15 to 10 weeks. infringing a person’s dignity will not result in damages.) S. But. S. But damages are particularly difficult to get. E. Anything you can get in a civil context. stay of proceedings. which contravenes the very purpose of the Charter. malice. 52 and S. 24 now gets a narrow interpretation. since the Charter only applies to government. not certain there was discrimination.

• Damage awards are not generally available in addition to a declaration of invalidity.. a findng of an improper search will not automatically create grounds for damages. 24 damages. • Injunction not available where it would amount to a final determination of the action.) Chrispen v. abuse of police power amounting to a Charter breach can result in damages. Injunction obtained. 2. 52. direct the contracts and purchases. Implement: Set deadlines. Three phases: 1. • Where government officials act beyond their powers. but balanced against the damage caused. E. they are not entitled to protection of the Crown Liability Act. He gets $300 for doors. $500 against each of 6 officers.43 Mackin (2002) SCC Legislation declared unconstitutional under s. not punitive. • If police act in good faith. (See Declarations section.) Crossman v. abuse of power. (Why do the courts want to make it easy for officials who suspect they may be breaching the Charter? Why not encourage caution. RJR Macdonald. • The purpose of an interlocutory injunction is to preserve or restore the status quo. Unlawful search and seizure. denied access to lawyer. 24) STRUCTURAL INJUNCTIONS American remedy. Violation of 2(b). SCC: Injunction available in a Charter context. • Damage awards would deter officials from administering legislation. (This is just because it entitles the litigant to the fruits of the litigation. Van Mulligan v. Kalinowski (1997) 6 cops break into guy’s home on a bad tip. with the effect delayed. where a provision is struck down. in order to bring it into conformity with the constitution. Saskatchewan Housing Corporation: attempt to transfer outspoken Regina city councillor out of Regina. can give rise to s. FCA overturned. the litigant may be entitled to an exemption from the delay. Gould (1984) FCA: prisoners right to vote case. It’ll never happen here. (Robert Sharpe article) . • Damages will be compensatory. • Bad faith. A remedy of last resort. • Injunctions are available to restrain government from abusing Charter rights (notwithstanding the Proceedings Against the Crown Act. despite acting excessively and violently. etc. where a potential breach is possible?) • However. • Damages should be sufficiently punitive to be a deterrent. A declaration that the court will direct or manage the reconstruction of the social institution. 3. the Queen (1984): cop illegally interrogated. school to de-segregate schools. TJ issued mandatory injunction allowing Gould to vote. AG v. • Where no damage has been caused. But he was guilty. No damages. Does liability reside with the defendant? (Appeal then allowed) Hold hearings on the solution. not to give the plaintiff a remedy until trial.g.

Rule 45 applies to any property relevant to an issue – e. Doesn’t want to get sued by either side. Useful for neutral 3rd parties. Inspection Rule 32 – can order inspection of real or personal property. No possessory right required. the court can order the fund be paid into court. Manitoba Agricultural Credit Corporation: Cows used as security for a loan. RULE 45 CASES Manning v. even if property on the premises of an innocent 3rd party. Property never lawfully in possession of the plaintiff. Rule 45: Court can order interim preservation of any subject matter of proceeding. Neutral 3rd party protection Rule 43 – Interpleader. . claimant.g. • Money. No recovery. • Rule 44 will not allow someone to claim possession of property of which they never previously had possession. but there are important differences: Rule 59(4) Sheriff can forcibly enter premises. just an evidentiary link to the proceeding. • Once an item is sold. Can apply to money (sp fund-Manning). to preserve evidence. and you’ve alleged it was unlawfully taken. where necessary to make a proper determination in a proceeding. Rule 45. court can order interim recovery of possession of property. Chornovoy: Argument about a lottery ticket. • But.02 • A codified Mareva. where the right to a special fund is in question. Can authorize sheriff to enter property to recover. Need pre-existing possessory right. and it is possible to trace.) Blue Jays and John Doe: Scalped tickets.g. E. or proceeds of a bank account. Like Mareva or Anton Piller (see Manning below). or relevant to proceeding. McLeod Steadman: 3rd party. caught in the middle of a dispute between two other parties. The law avoids self-help remedies. E.01. RULE 44 CASES Heaman v. Company then protected from future action by adverse. neighbour won’t give lawn mower back. access for expert witness. Rule 44 restores.g. unlike Mareva and Anton Piller orders. Differences: Rule 44 relates only to subject of claim. Limited to chattels. owed money to someone. Can put it into the control of the court. 2 parties fighting over who it was. holding property that both sides want. the previous owner has no lawful right to possession under Rule 44. Pl wanted preservation of money in account until matter settled. is not property in a proceeding for purpose of rule 45.44 25) INTERIM RECOVERY OF PERSONAL PROPERTY Rule 44: Where there’s an action for recovery of personal property. or unlawfully detained. or losing. (Also the common law rule of replevin. Used rule 43 to put payment in the hands of the court.