Capable of mathematical calculation
: e.g. pain, suffering
(e.g. trespass)
1
:
Can be calculated with precision. Hv to plead and prove. E.g. lost I, out of pocket expenses
(can be difficult to estimate)
:
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.

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?

2

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.

3
1 ST 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.

4

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 the lost profits from this sort of secondary transaction may be subject to damages. After all, if the plaintiff had lost a deposit on the offer to purchase because of the failure of the original sale, undoubtedly he would have obtained damages for that loss.
(applied to future losses. Look for (1) lost opportunity, (2) chance of loss.)
Schrump v. Koot (1977) OCA : 60-yr-old woman suffered damaged vertebrae in car accident. In severe pain, but also there’s a chance she will face even greater disability in the future.

For damage already caused, the damage must be proven on a B of P to get 100% of damages.

For likelihood of damage in future, the test is lower. Reasonable likelihood will suffice (25-50%) as opposed to speculative (<25%). A plaintiff will get damages for future suffering in proportion to the likelihood that such suffering will materialize.
Turenne v. Chung (1962) Mb CA :

Future damage must be proved on a B of P.

A MB case, but bad law. Probably overturned by Janiak (mitigation case below), which cites
Schrump but not Turenne .)
Cabral v. Gupta (1992) MbCA : Negligent ophthalmologist fails to detect metal particle, and 2 yrs later Pl loses his eye. There was a 30% chance he would hv lost use of the eye, even if the particle had been detected. TJ reduced damages by 30%, but CA overturned reduction, saying:
 once is causation est’d, 100% of damages from tortious event flow.
Houweling Nursers v. Fisons (1988) BCCA : Def provided poor soil

plants die

customers cancel contracts. Breach of contract. 2 heads of damage: (1) lost profits from cancelled contracts, (2) lost opportunity for new contracts in future. (1) can be est’d. But (2) raises an issue of certainty. Court applied
Shrump, and sd hv to prove there’s a reasonable possibility the contracts wd hv bn made. In this case, evidence from Zellers that it was their practice to spread business to others stores was sufficient.
Immediate losses (1 st 3 years) were discounted by 25% to account for likelihood that some business wd hv bn lost for reasons other than loyalty (e.g. innovation, quality, price). Future losses were discounted by
75% because there were too many variables that could come into play. After 9 years, no damages.

To show reasonable possibility of future losses, don’t have to point to a specific loss. Just hv to prove w- reasonable certainty you likely wd hv entered into such contracts.

It is not for the accountants to estimate lost profits, but the court.

Damages for loss of future business should be moderate, recognizing that some of the contracts may not have materialized anyway.

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, just that these kind of contracts existed, and would be jeopardized.

There can be a tapering off of future damages.
For Exam: What if a Pl was on the verge of getting its biggest contract ever, several times its previous contracts? Def wd argue: this contract not reasonably foreseeable. Pl wd argue: It’s the type of unjury that must be foreseeable, not the extent. (Parsons-pignuts).

5
Athey v. Leonati (1996) SCC : Pl w- pre-existing back problem is further injured in two car accidents, and suffers a herniated disc while exercising. Causation of resulting injury est’d using “but for” test. (Just has to be “a cause” not “sole cause”. Thin skull rule applies. 25% contribution sufficient to be fully liable for entire injury.) Court affirms difference between past events and future events, giving full damages for past injury.

Any defendant who negligently causes or contributes to injury will be fully liable for it, even if there are other significant factors which helped to produce the loss.

(obiter) If there is an intervening event between accident and assessment of damages at court, (e.g. disease) it is assumed that event would have happened regardless of the tortious injury, and damages are reduced accordingly. i.e. the Pl’s damages are not to restore him to the condition he would hv bn in previous to tort, where an intervening act is in play.
 (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. (general rule: Pl to be returned to the position he wd hv bn in, with all of its risks and shortcomings, and not a better position.)
Lyne v. McClarty (2001) Mb QB : Pl had 2 aneurisms. 1 successfully clipped. The 2 nd gets a carotid occlusion, extremely risky procedure, su usually insert a deflatable balloon first, and see if patient can tolerate the procedure. If can’t, then deflate and leave aneurism untreated. In surgery, balloon detached and cd not be removed. Patient cdn’t tolerate, and suffered a stroke. Even though causation clear, 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. Cabral was not applied. Athey obiter applied.
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.
Cabral and Lyne offer conflicting versions of how to incorporate the likelihood that damage would have occurred anyway. Under Cabral , the likelihood was disregarded in a damage award. In Lyne , it served to cut the award in half – an apparent flouting of the rule that once causation is proven, full damages for past injury will flow. One could conclude that the equities of the situation – i.e. the balance of fairness to Pl and Def given all of the circumstances – ought to prevail, to decide which case to apply.
After all, the doctor in Lyne appeared to exhibit a lesser degree of negligence than the doctor in Cabral did, and it would seem just that he should be treated more leniently. However, 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, regardless of the tortious event, the courts can rightfully apply the ‘crumbling skull’ doctrine to reduce damages for past injury. Where the likelihood is less than 50%, and it appears likely the Pl wd hv had a normal life, then no reduction of damages will be applied.
Extra Reading
Walker Estate (2001) SCC : Red Cross sued for tainted blood.

The proper test for causation in cases of negligence involving non-professionals (i.e. 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.
 Where the “but for” test is unworkable, the courts have recognized that causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury.
Economy Foods v. Klassen (2001) Mb CA : Negligent fire in washroom of florist shop in mall. Mall failed to install sprinklers. Mall and shop-owner were considered “several” tortfeasors – i.e. there was no connection among their actions, except that they combined to create the loss.

Once causation is established against one tortfeasor, he may be subject to liability for 100% of damages, however it is open to him to seek contribution from other tortfeasors, and the court may apportion liability according to the proportion of causation found on the evidence.

6
Example
What would happen if you had a Pl injured in a shooting incident, who required a month in hospital and six months at home. He then has a heart attack while at home, requiring a further six months at home.
Def: causation not established. “but for” or “material contribution” to loss following heart attack not met.
Baker. v. Willoughby (1970) Appeal Cases 467 : 1 st Def hit Baker in a car accident leading to a leg/ankle injury and loss of earning capacity. Pl had a no. of bad debts and enemies, and after accident one of them, the 2 nd Def, shot him in the leg, also impairing his earning capacity. Both say not responsible.

First in time rule: Only the first tortfeasor has to pay.

Subsequent tortfeasors are only responsible for any increase in damage they may cause.
Sunrise (1991) SCC: One ship negligently causes damage to another, requiring 27 days to repair. While it was heading into port for repairs, it suffered further damage (non-tortious), requiring 14 days to repair, all of which was done within the 27 time it took to effect repairs because of the initial damage.

Where damage occurs subsequent to the tortious act, it will not serve to reduce damages, if it did not add to the Pl’s loss of profit.

If subsequent events are tortious, but do not increase loss of profit, def will be liable for cost of repairs, but not lost profit.
 it makes no difference whether the second incident is tortious or non-tortious. In either event, the first defendant is liable for the entire damages. This holding is inconsistent with the personal injury cases (where the second non-tortious event is taken into account), and L'Heureux-Dubé J. makes it clear that she was not intending in this ruling to affect the law in respect of personal injuries. IN personal injury cases where the second event is tortious, its effect will be given full consideration in damages, i.e. 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.

If subsequent events destroy the enterprise, (e.g. sink the boat) then 1 st def off the hook for diminution of loss after destruction.
McLachlin (in dissent) assumed that the second incident would have happened regardless of the first, and wrote that the amount of loss is to be determined at the time of trial, not prospectively from the time of the injurious act. (Accepted as good law.) Therefore:
 intervening acts which serve to incapacitate a Pl may override the harm that would otherwise hv occurred, and reduce damages. (consistent w- personal injury cases.)

Pro rata apportionment of damages is appropriate in such circumstances.

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 ).
(On exam, point out McL dissent, but note that it was based on the assumption that the second incident wd hv happened anyway. Distinguish another case by showing some degree of connection between the first and second incidents of damage, i.e. the second incident might not have happened if the first had not.)
Hypothetical Events :
What if Pl had 30% of full recovery and 1 st injury, but 2 nd 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. Instead, they are simply given weight according to their relative likelihood (also in Janiak ). For example, if there is a 30 percent chance that the plaintiff's injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk.
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. Koot ).
To answer the above question, given that the 1 st 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 2 nd Def. (CHECK THIS).

7
Janiak v. Ippolito (1985) SCC : Crane operator totally disabled by back injury but refuses surgery with a
70% chance of complete success. Def argues novus actus interveniens (refusal of surgery)

no damages, but court finds proximate cause still the Def’s action.

Reasonable steps to mitigate are required of a Pl.

If medical treatment with a high probability of success is recommended, it is unreasonable for a Pl to refuse, and therefore mitigate damages, therefore:
 the failure to mitigate will lead to a reduction of damages, but these will be in proportion to the chance of success of mitigating factors (as with Shrump, adjust for percentage of risk).
Another way of putting it: where there is a failure to mitigate but a chance that the proposed operation will fail, the court may allow a percentage of future loss of income

The test of what is reasonable is objective.

A defendant is not liable for the loss that the plaintiff would have avoided by undergoing recommended treatment with a high probability of success.

If several courses of treatment are recommended, a plaintiff is free to choose one and suffer a potential loss of damages for failure to mitigate.

The Pl bears the onus of proving damages, but the Def bears the onus of proving failure 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. 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, due to some pre-existing psychological condition, are not capable of making such a decision. As pointed out by Professor Fleming, 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 Law of Torts, 6th ed. (1983), p. 226. Accordingly, 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. 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. On the other hand, if due to some pre-existing psychological condition he is incapable of making a choice at all, 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.”

You can consider psychological thin skull, but only if it was pre-existing.

A psychological thin skull may be triggered by the tort, lying dormant.

The condition must render the Pl incapable of making a rational decision.
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, as compared with a mere pre-existing state of mind. It is difficult to draw the line. The court in Janiak speaks of what is rational, and having the capacity to make choices, as indications of whether a Pl will be exempt from the duty to mitigate. The test of “rationality” appears to imply a standard of being able to exercise judgment in a proper or sensible manner, if one concurs with the
Oxford dictionary definition of the term. If that is the case, then almost any pre-existing fear of medical treatment, such as an extreme fear of anaesthetic, could be considered irrational – making it relatively easy for a Pl to opt out of the duty to mitigate. The Janiak test offers little practical guidance, and is in need of further refinement
Elloway v. Bloomer (no cite) : person w- predisposition to schizophrenia. Active condition triggered by accident. In this case, previous rationality not a bar.
De Meyer v. National Trust (1995) M.J. 313 : Slip and fall case. Serious ankle injury, would likely require fusion b/c Pl was severely overweight. Def argued she shd lose weight to mitigate her damages. Court accepted Def’s view, and incorrectly placed the onus on the Pl to establish that her failure to lose weight was unreasonable.

8

General rule: the defendant is not liable for losses caused by the plaintiff's impecuniosity.
Why : A vulnerable plaintiff may be in a better position to anticipate and guard against special losses.
Criticism : Ordinarily the defendant is liable for all the harm caused, regardless of pre-existing vulnerabilities. Applied to financial vulnerability, it seems unfair to deny a Pl full compensation for his harm because of his poverty. Why should the Pl suffer personal hardship to invest money he cannot afford, when he may not win his case in court?
Policy : “In ordinary contract cases, if suppliers were made liable for the additional risks of dealing with
"impecunious" customers, they might be reluctant to deal with them or would incur costly measures to avoid the special risks entailed.” – Cassels text.
Leisbosch v. Veniot (1933) HL : (cited in Duchene below) Pl owned a dredger, damaged and sunk by Def’s negligence, and cdn’t afford to buy the replacement that was available. Had to rent a dredger that was more expensive to operate. Court sd the Def was not responsible for the extra cost of renting over buying.
Assessed damages from date of accident until a substitute cd reasonably be available.

Impecuniosity is a separate cause of loss, and too remote from tort to be a ground for damages.
(Note: In Leisbosch there was a conscious decision not to insure the dredger, and this was a basis for the judgment. Other cases can be distinguished, e.g. if the Pl could not afford insurance, or didn’t have time, or insurance was not the standard in the industry.)
(Note: Scobie v. Wing: If you can’t afford to replace, an exception may be made. (obiter) (courts don’t like
Leisbosch)
Duchene (1989) NSSC : Pl agreed to sell home to defendants for $105,000, but on day of sale, def’s refused to pay. Since Pl’s were building another home, they had to sell this one, so two weeks later they sold for $90,000. Def argued they failed to mitigate loss by getting FMV for their house.

Where impecuniosity prevents mitigation of damages, and that impecuniosity is caused by the
Def, there will be no reduction of damages for failure to mitigate
(Note: these are breach of contract cases. Tortious acts cd be distinguished.)
General rule: no entitlement to double compensation, except w- regard to statutory benefits.
Ratych v. Bloomer (1990) SCC : (5-4 split.) Cop injured on duty. Disability income paid by department, but still sought full wages in damages for lost time. Blatant double recovery.

Generally, wage benefits from employer will be deductible.

One exception to double recovery is where Pl has private insurance.
Cunningham v. Wheeler (1994) SCC (trilogy) : (4-3 split) All 3 injured in car accidents and off work.
Continued to receive wages, b/c of workplace insurance.

Wage benefits from employer insurance plan will not result in a reduction in damages, where the benefit resulted from collective bargaining.

Evidence of benefit from collective bargaining? Evidence of trade-offs in the collective bargaining process. Evidence of direct contribution by employee (need not bee 100%). Evidence that benefit was part of the pay package, e.g. employer’s contribution listed on pay slip.

Ratych rule narrowed to situations where the Pl cannot prove he gave up income to receive insurance as a benefit.
Non-unionized employees : Cory indicates rule cd be extended to non-unionized employees as well, where there is evidence the employer benefit was negotiated. Since he has set the bar so low for evidence of

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

10

If punishment is achieved by general and special damages, no need for double punishment.
AGGRAVATED AND PUNITIVE DAMAGES IN TORT
Hill v. Church of Scientology (1995) SCC : Court order to seal documents. Released by mistake.

Aggravated damages are compensatory, related to intangibles such as mental suffering, humiliation, distress.

Punitive damages are non-compensatory. Suitable when Defendant’s misconduct is “so malicious, oppressive, and high-handed that it offends the court’s sense of decency.”

Deterrence a primary goal. Court may take account of ability to pay, asking: What is rationally required to be a real deterrent?

However, punitive damages are only warranted when general and aggravated damages are insufficient to achieve punishment and deterrence. There must be a “rational purpose.”

Where there are joint and several tortfeasors, they are not all responsible for the punitive award, because actual malice is requried. Only the one(s) found to have acted maliciously will pay.
But note: this is an intentional tort. These principles are less easily applied in negligence cases. Cassels text indicates that only cases of gross negligence will likely draw punitive damages.
Note also, this case is an exception to the functional approach normally taken w- non-pecuniary damages.
Royal Bank v. Wilton (1995) Alta CA : Bank foreclosed, interfering with mortgage, just before Pl was about to complete a deal that would allow him to pay his debt. Jury awarded $25,000 in general damages, and $250,000 in punitive. Upheld.
MacDonald Estate v. Martin (1994) Mb CA : Unethical lawyer. Series of outrageous breaches of fiduciary duty. Accounting of profits: $4.6M. Punitive damages of $250,000.

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.

11
AGGRAVATED AND PUNITIVE DAMAGES IN CONTRACT
Vorvis v. ICBC (1989) SCC : Lawyer with ICBC for 8 years, starts to get harassed by dept. head. Fired at age 54. ICBC sd incompetent/just cause, and cd only get a compensation package if he admitted he was fired for just cause. But he had been promoted and given merit raises. Court refused aggravated and punitive damages.

In wrongful dismissal, Pl entitled to damages for failure to give reasonable notice. Nothing for injured feelings and mental distress. ( Addis affirmed)
Re: aggravated damages:

Aggravated damages only available where conduct of employer was offensive and unjustifiable.
They are compensatory, not punitive.

Where the offensive conduct happens before dismissal, it will not be grounds for aggravated damages based on the nature of the dismissal.

Aggravated damages apply to intangibles, such as anxiety, distress. The focus is on the Pl, whereas w- punitive damages the focus is on the Def.
Re: punitive damages:
 Only available where conduct is “harsh,” “vindictive,” “reprehensible,” and “malicious.” AND,

In breach of contract cases, 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, as the standard of proof is lower than in criminal cases, where punishment is called for.

Punitive damages will largely be restricted to intentional torts or breach of fid. Duty (noting that
Vorvis says okay in exceptional circumstances for negligence).
Wilson dissent
Aggravated damages:

Aggravated damages should be available for mental suffering in wrongful dismissal, where that suffering was foreseeable.

Apply remoteness test: could parties have seen mental suffering resulting. (Problem with this: does foreseeability have to be at time contract made, or at time of dismissal? In contract, normally it would be at time contract is made.)

Policy: the vulnerability of the Pl, and the nature of the employment relationship being one of trust, should place a responsibility on the employer to avoid creating foreseeable suffering.

(note: she rejected aggravated damages in this case, b/c not foreseeable. Aggravated damages, since they are compensatory, are relevant to expectations and reasonable foreseeability.)
Punitive damages:

Conduct before and after the wrongful dismissal should be considered.

Disagrees that a separate actionable wrong is required. (This is sensible, given that if there has been a separate actionable tort, it is available to the Pl to sue under that separate head, and it makes little sense to award damages for a tort that was not claimed.)
Conclusion: aggravated damages will be extremely difficult to get, because the SCC takes the view they are not foreseeable at the time of the contract.
From Cassels text: More recently, an additional reason has been given for refusing punitive damages in contract, based on the idea of economic efficiency. [Note 91: R.A. Posner, Economic Analysis of Law, 4th ed. (Boston: Little, Brown, 1992).] According to this theory, so long as full compensation can be made, individuals should be left free to breach contracts at will. Sometimes a contract will simply prove too expensive to perform (i.e., the costs of performance exceed the loss from breach). In other cases, the profits from breaching a contract (to pursue a different opportunity) exceed the losses from breach. In both cases, so long as the breaching party is able to compensate fully for any losses, breaching the contract is the efficient thing to do. Requiring performance, or punishing non- performance, in these cases would be uneconomic.
See notes from Osborne’s class

12
Wallace v. UGG (1995) SCC: UGG pursued W, who was concerned about job security, and promised him work until age 65. Top salesperson. Dismissed after 14 years at age 59. UGG sd incompetent. He became suicidal, depressed, angry. TJ gave 24 mo’s and $15,000 in aggravated damages, b/c it was reasonably foreseeable he wd suffer. CA applied Vorvis, which says reasonable foreseeability not sufficient, and decreased to 15 mo’s. SCC raised to 24 mo’s, but denied agg’d damages. (6-3 decision)
Reaffirmed need for separate actionable conduct for agg’d and punitive. Wallace argued for “bad faith discharge” or that good faith is an implied term of the contract. Iaccobucci didn’t accept. Employers can terminate for no cause, and this can only be changed by the legislatures. BUT, court strained to find a separate actionable wrong, but reaffirmed the view that reasonable notice is all that’s required in wrongful dismissal.

Affirms Vorvis (no punitive damages for pain and suffering, unless behaviour related to actual dismissal is blatantly hostile and malicious, and there is a separate actionable wrong). But adds:

Employers ought to be held to an obligation of good faith, which will be breached by untruthful, or unduly insensitive treatment.

Bad faith dismissal can increase the required notice period, since it makes it harder for employee to recover and find a job. Known as “Wallace damages” (amounting to a de facto form of aggravated damages).

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). But, OTOH, 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).

Majority and minority all affirm underlying importance of the contract.

The court is showing a desire to give some form of compensation for bad faith dismissals, whether the minority or majority prevails in future.
Attempt to distinguish exam scenario on the facts, and show that good faith was an implied term of the contract. One basis on which to distinguish is that Wallace’s employer sd if he did the job he was hired for,
“there’s no reason he cdn’t stay to 65.” Expressed, as it was, in negative terms, it did not affirm a positive intention of fair treatment. In addition, 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, since Wallace simply restored the TJ’s award of 24 mo’s. OTOH, could argue simply that the court has been moving in the direction of recognizing such conduct as warranting damages, and that, as McLachlin points out, 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.)
Conundrum of majority decision : if there is egregiously malicious conduct that would warrant a separate tort, it is not clear whether you could get both increased notice PLUS aggravated damages. The court seems not to have considered this.
Other decisions based on Vorvis:
Beaird v. Westinghouse Canada (1999) OCA : Pl injured back at work. Cdn’t do same job.
Terminated. Sued for wrongful dismissal and LTD benefits, and damages for breach of good faith.
Wrongful dismissal and LTD benefits settled, therefore no basis for claim of breach of gf.
Dixon v. BC Transit Commission (1995) BC : D hired away from senior management job to be
CEO, then fired after 7 ½ mo’s. Alleged just cause, in hope of avoiding need to pay one-year notice. Gave false info to media. TJ awarded 14 ;mo’s salary, and aggravated and punitive damages. Defamation and deceit constituted separate actionable wrongs.
Hamer Jackson v. McCall Pontiac (1998) BC : Sales manager of 12 years forced out so son of owner could take over. Relegated to trailer in parking lot. Spread allegations of dishonesty through car sales community. TJ gave 13 mo’s, 6 mo’s aggravated and punitive damages. In alternative, sd it wd be a 6-mo extension of notice b/c of bad faith.

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

14

If $1M award is rational, 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, this vulnerability ought not to be exploited. Such exploitation is reprehensible, and deserving of punishment.

*** 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 held that the plaintiff must only establish an actionable wrong, not necessarily a separate tort (inc. breach of contract, breach of duty of good faith, and breach of fiduciary obligation). 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. (case comments Advocates Quarterly article #2). If you wanted to find punitive damages where there has been no separate actionable wrong, i.e. where the bare breach of contract was morally reprehensible, 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, because the simple act of dismissal is not sufficient to invoke punitive damages. Such an interpretation would allow the courts to punish reprehensible conduct, without performing elaborate legal acrobatics to find two oppressive and high-handed breaches, where in truth only one exists. This would be consistent with other common-law jurisdictions, e.g. Ireland, 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.”

Whiten can also be used to argue against the1978 trilogy (Andrews-Thornton-Arnold) that placed a cap on non-pecuniary damages for personal injury. Binnie J. said the absence of a cap would allow the law to keep “in touch with evolving realities”. It would be unfair and illogical for the court to use a different standard for non-pecuniary damages in cases of personal injury. Thus, it is likely that in a future case, the court will remove the cap in this area of the law as well. 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, while a person paralyzed from the neck down gets a maximum of $280,000? However, to argue in favour of the continued cap, 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, thereby lessening the need for higher non-compensatory awards which, by definition, are arbitrary to start with. In addition, juries and even judges may be liable to more emotional and extreme reactions when faced with a plaintiff suffering from serious and permanent injury, 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. Finally, the primary purpose of civil law is to compensate the wronged, rather than to mete out punishment, and it could be argued that Whiten is the aberrant judgment, not the trilogy, in that punishment is the dominant aspect of the damage award.
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. Def wrote 100 ft into the contract. Pl sought equitable remedy of rectification. Court found Def trying to pull a fast one – deceit. Separate grounds exist for actionable wrong, but court denied punitive damages. Sd. $650 in compensatory damages sufficient for deterrence. Why? Commercial relationship between two businessmen. No abuse of a dominant osition. $650 a lot of money for an individual to pay personally. O'Connor now stigmatized with a judicial finding that he acted in a way that was "fraudulent, dishonest and deceitful". His conduct has been soundly denounced.

Court affirms exceptional nature of punitive awards, and principle that compensatory damages can be sufficiently punitive.
Other peace of mind contracts:
Jarvis v. Swan Tours (1973) 1 QB 233 (Denning): J went on ski trip in the Alps. Complete disaster.
Yodelling atrocious.

15

Loss of enjoyment can be included in compensatory damages.

Loss of enjoyment is analogous to peace of mind as the subject-matter of a contract.
Warrington v. Great West Life (1996) BCCA :
 Disability contract includes “peace of mind” as a term.
Gore v. BMW (1996) USSC : buyer of new car discovers it was repainted. Jury awards $4000 in compensation, $4,000,000 in punitive (1000x). CA reduces to $2M. USSC says $2M grossly excessive.
Unconstitutional. Reduced to $50,000. Sets down factors for a reasonable award:

Degree of reprehensibility

Ratio of punitive award to compensatory award. There should be a reasonable relationship. (This case suggests 12x the compensation as an upper limit.)

Necessity for deterrence (i.e. are there statutory penalties, e.g. fines, for the same behaviour?)
The insurance cases provide a basis to argue bad-faith cases should be expanded to other areas of contract, where (a) the contract is of a personal nature, profoundly affecting a plaintiff's well-being; and (b) the conduct of the defendant is morally repugnant.
CRIMINAL BEHAVIOR?
Surgeoner v. Surgeoner (1993) Ont : Domestic assault. Husband viciously assaults wife, then tells her she’s lucky it wasn’t worse. Convicted of assault, and received a suspended sentence w- one year of probation. Judge allowed a punitive award (perhaps because the punishment appeared lenient)..
 punitive damages may be awarded where there is a special relationship of trust between the parties, e.g. marriage. (special importance of deterrence of anti-social behaviour in such instances.)
(Note: in criminal law, the court considers public interest. In civil law, looking at the individual.)
C.S.F. v. J.F.
: 38 years of sexual and physical abuse of wife and daughter

3 concurrent sentences of 6 mo’s probation, and two mo’s for assaults on daughter. Civil award: $200,000 general, $50,000 aggravated, $50,000 punitive. Court affirmed the rule against double punishment where there has been a criminal conviction, but said criminal sanctions are just one factor to consider.

16
Definition : The damages to be paid on breach of contract. No duty to mitigate damage when damages specified. But, if punitive, courts won’t recognize.
QB Act s. 35: Court has the power to relieve against penalties in a contract.

Consider: What was the provable loss at the time of trial? What was the estimated loss in the contract?

Liquidated damages clauses are enforceable. Penalty provisions are not.
Clark Ltd v. Thermidaire (1976) SCC : The specified penalty = gross trading profit of sale of the competitor’s products. This turned out to be $200,000, whereas the actual loss to the Pl was $92,000.
Court found the difference extravagant and unconscionable. Dickson dissented, citing blatant interference w- freedom of contract. The key should be relief from oppression – is the penalty as a way to force compliance w- contract.

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, that amount will be regarded as a penalty

If liquidated damages are set aside, actual damages are awarded.

Dickson dissented. (wrote decision in Elsley below)
Criticism (Cassels) : No evidence of inequality of bargaining power or unconscionability. The parties were equals. Moreover, to restrict the plaintiff only to loss of net profits fails to compensate him for intangibles, such as loss of market share. The "net profit" standard rewards the Def for expenses related to defeating the
Pl in the market, since they are deducted from profit. Courts should simply apply well-developed principles of unconscionability to determine whether the clause is unfair or oppressive. (Waddams)
Elsley (1978) SCC: Pl bought an insurance agency from Def., and employed Def for 17 yrs who then set up his own business in contravention of contract.
 where there is no oppression or unconscionable effect, interference with liquidated damages is blatant interference with freedom of contract.

A penalty clause obtained for good consideration is a valid contract.

Where the contract contains a restrictive covenant with a penalty clause, and the Pl gets an injunction to force compliance, court will allow damages up to the point of the breach, OR up to the ceiling provided by the penalty clause. (Pl shdn’t benefit from intimidating force of a penalty clause, then ignore it when it’s convenient).

Consider relative vulnerability of the parties, whether each received legal advice.
(Note: Clark probably would not have been decided the same way if it followed Elsley, instead of preceding it. Elsley can be seen as an important development in the law related to liquidated damages.)

17
a. PECUNIARY AWARD
Andrews Trilogy : Established principles for horrific life-long injuries.

Must itemize award for damage to ensure it conforms to the evidence.
(A) Cost of future care. Consider
1.
Standard of care : must be reas.; home care preferable to institutional care, unless inst care wd be better for Pl. Includes: basic nec., modifications to home, drugs, devices,
2.
Duration : life expectancy,
3.
Contingencies : may be deducted, on the assumption that it is possible the Pl may not incur all of the projected expenses (e.g. may be in hospital for a long period.) (here 20% reduction) This is criticized by commentators as a general practice, in the absence of supporting evidence,
4.
Costs to society : may not to be a factor, unless there is a choice between two acceptable alternatives for care, (same with non-pecuniary damages).
5.
Tax gross-up : allowed. Must hv evidentiary foundation.
(B) Loss of future earning capacity:
(1) Base level: Easy w- long-time employed adult, more difficult for child. (In Teno : looked at mother’s income, ward of state income, and split the difference.) (In Watkins, past spotty employment record lessened award.)
(2) Duration of Work : (work expectancy) Based on pre-accident state, rather than post-accident state. Requires actuarial evidence. (no cases on pensions)
(3) Reduced to disposable income: since Pl wd hv had to pay for necessities anyway. (53% reduction in Andrews )
(4) Contingency reduction : for, e.g.
(a) non-participation in workforce,
(b) early retirement,
(c) time off to raise kids,
(d) unemployment,
(e) part-time option.
Note: McCabe: case of 16-yr-old quadriplegic who had planned career in a unionized (nondiscriminatory) field, sd she wanted to hv 4 kids,

reduction for time out.
But, it’s possible Pl wd hv received raises, promotions, ed’n for higher paying job.
Nonetheless, courts tend to take off about 10-20% for above contingencies.
(C) Discount rate: difference between inflation and ROI. QB Act S. 83 fixes it at 3%. Does not
apply to periodic payments.
(D) Possibility of periodic payments: Allowed in Mb by QB Act. S. 88. Usually an annuity
purchased from an insurance company. Tax free, cheaper for def., higher ROR than DR,
no gross-up for taxes, but paternalistic, and on early death Def may benefit depending on
order of the court.. Either party may apply.
( E) Non-pecuniary damages : See Lindal below.
Note : discrimination in actuarial tables (against women). Appropriate reflection of reality or perpetuation of inequality? Options:
1.
Recognize gender gap narrowing, so add a positive contingency for women, negative contingency for men.
2.
Use tables as they are. They reflect reality.
3.
Male table should apply to both.
C/L has to conform w- Charter values. Assessments cannot reflect historic wage inequities.
TOTAL AWARD =
[(BASE – Contingencies) + (COST – Contingencies)] X Work Expectancy + Discount Rate.

18
Problem w- deduction for child-raising : If a woman is less likely to have children because of her injuries, she is penalized 2X – no kids, no income. While it can be accepted that the courts are to attempt to recreate the woman’s pre-accident earning potential, it is also true that little value is placed on the loss of the opportunity to have children, b/c awards for non-pecuniary damages tend to be modest, 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.).
If the courts reduce expected income because of the likelihood that the woman would have had children, they should also give her a a counter-balancing payment under pecuniary losses to reflect the loss of those future children. The SCC decision of Gordon Estate helps to make this argument, as it noted that “contemporary conceptions of loss include the idea that it is truly a harm for a dependant to lost the guidance, care and companionship of a spouse, parent or child.
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, in order to have children. That is an objective measure of what the opportunity to have children was worth to her, and would introduce a greater degree of fairness and equity into the compensatory award, without introducing uncertainty.
QB Act S. 88: periodic payments permissible.
Watkins v. Olafson (1989) SCC : MbCA sd institutional care good enough. SCC sd home care.
 the plaintiff has no duty to "mitigate" damages in the sense of accepting less than full compensation.

While the award must be "fair to both parties," 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.

Fairness to both parties is achieved with a reasonable and justifiable award.
Lusignan v. Concordia Hospital [1997] Mb QB: an award of periodic payments under QB Act S. 88 involves a two-stage analysis:
(1) verifying the desirability and feasibility of periodic payments in the particular circumstances;
(2) developing a specific plan.
The advantages for Pl: receiving payments for life, receiving payments that were tax-free, and incurring less expense for investment needs.
b. NON-PECUNIARY DAMAGES
Intangibles, such as loss of companionship/mental and physical pain/ amenities of life (simple enjoyment)/loss of life expectancy.
Lindal v. Lindal (1981) SCC, and Andrews Trilogy:

The functional approach is used to compensate for the loss of intangibles. Compensation is not dependent on the seriousness of the injury, but on its ability to provide
“reasonable solace”
.
(permanently unconscious = no capacity for solace)

The Pl must demonstrate the “reasonable” functions that the money claimed will serve.

Cap on award will grow with inflation. (

current level of $270,000).
 “exceptional circumstances” to raise ceiling not ruled out, but will be rare.

Severity of injury does not rule award (but prof says a good place to start).

Avoid simply looking at previous award for similar situations.
Arguments against removal of the cap: No limit on the things that could provide solace, danger of awards getting out of control

increased ins. premiums, certainty, primary concern is compensation and future care, which is usually substantial.
Exceptions to cap?

19
Pittman Estate : cap upheld. woman gets HIV from husband b/c dr didn’t warn, thinking they didn’t have sex any more. Gets 72% of cap, since she was already 55.
Ter Neuzen: cap upheld in case of HIV infection through AI.
BC : Sexual assault exception.
Intentional torts : Intentional torts involving criminal behaviour are an exception. (SY v. FGC)
Why? not covered by insurance. No social burden.
Defamation and breach of good faith

much higher damages, and they are covered in many instances by insurance. The policy reason underpinning the cap is now weakened by these precedents, so it is timely either to reconsider the cap on catastrophic personal injury, or put one in place for these other awards.
Khan: injury at childbirth

brain damage, persistent vegetative state. Received little for non-pecuniary damages b/c cognitively gone.
C. FATAL INJURIES s. 53 of the Mb Trustee Act: allows action by or against the personal representatives of the deceased.
Policy: if main or sole breadwinner killed, dependents could become dependent on the state.
Allows: Pecuniary (loss of future income, funeral) and Non-Pecuniary (loss of companionship, mental suffering, anguish).
Fatal Accidents Act :
S. 2: Pl stands in place of the deceased. Cd he hv proven negligence and damages?
S. 3 : Claim limited to the benefit of immediate family. If executor doesn’t bring action in 6 mo’s, they can.
S. 4 : Court may reduce award for contributory negligence.
Keizer v. 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, or for future care, in cases of serious personal injury.

The present value of a lump sum which, if invested, would provide payments of the appropriate size over a given number of years in the future, extinguishing the fund in the process

Take after tax income (different from personal injury where courts decline to consider it, saying leave it to the legislatures), then deduct personal necessities and other personal expenditures deceased wd have made on himself.

Consider what is fair and adequate, accounting for both negative and positive contingencies .
Lawrence (MbCA) :

Joint income: when one dies, deduct a portion of the couple’s joint income to reflect the personal expenses of the deceased. o However, this case’s 30% reduction is probably a bad precedent, and wrongly decided, in that if each person is considered to spend 30% on personal needs, then than leaves only
40% of total income for joint expenses of housing, car, children, etc., which is ridiculous.

For a reduction to account for potential of re-marriage, there must be an evidentiary basis, e.g. existing attachment to another person. Can’t just speculate.

Possibility of early death of either spouse must be based on evidence (e.g. work in a high-risk occupation).

Unemployment? Evidence.

Gross-up for taxation? There will be taxes on the income from a lump sum settlement, so 15% is appropriate.
MacArtney v. Warner (2000) OCA : (mom witnessed death of son)

Must be able to prove causation – i.e. death created loss.

20
Lewis v. Todd (1980) SCC: Anticipated employment income up to age 65, then gave a lesser amount thereafter.

No justification for an automatic contingency deduction. Court must assess likelihood of occurrence of stated contingency.

Actuarial tables useful, but may be varied according to evidence that either the class of Pl varied from the average, or the actual Pl had personal characteristics that called use of the average into question.
Propaczy v. Trott (1996)
Court refused to extend the common law. (Doesn’t apply in Mb, b/c of Fat. Act)

At common/law, there is no claim at law for dependants, except for 2 limited circumstances: loss of services of child or spouse (abolished by equality of status act) or loss of consortium.
Gordon Estate v. Grail (1998) SCC : Shipping accident. Maritime law is under federal jurisdiction, and both the statute and common law are silent on compensation for loss of care guidance and companionship.

Claims for loss of guidance, care and companionship are pecuniary claims (but must be proven).
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, care and companionship of a spouse, parent or child.”

It is important to keep (maritime) damages “in step with modern understandings of fairness and justice, as well as with the dynamic and evolving fabric of our society.”
Apply this case to an argument that some intangibles should be moved out of the non-pecuniary award and into pecuniary damages.
Homemaker killed? Look at the process used in Laurence (joint income).
Duration of benefits:
Spouse: have to look at joint life-expectancy of both spouses together. Work life of deceased relevant. If shorter than joint life-expectancy of the couple, amount can be reduced to reflect loss of salary, and subsequent lower pension. (Laurence)
Child: look at period of dependency.
The Fatal Accidents Act
Amount of damages
3(2) Subject to subsection (3), 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.
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; but nothing is recoverable, under this subsection, for funeral expenses if the amount of those expenses has been recovered, or is claimed, in an action brought under The Trustee Act .
Definitions re loss of companionship
3.1(1) In this section,
"child" means a son or daughter of the deceased who, at the time of the death of the deceased, was under the age of 18 years; (« enfant »)
"family member" means
(a) a son or daughter of the deceased who, at the time of the death of the deceased, was 18 years of age or over,
(b) a step-son or step-daughter of the deceased, or a person to whom the deceased stood in loco parentis,
(c) a step-mother or step-father of the deceased, or a person who stood in loco parentis to the deceased, and
(d) a brother, sister, grandson, granddaughter, grandfather or grandmother of the deceased; (« membre de la famille »)
"parent" means a mother or father of the deceased. (« parent »)
Damages for loss of companionship
3.1(2) Subject to section 4, the court shall award damages for the loss of guidance, care and companionship of the deceased in the following amounts:

21
(a) $30,000. to each of the husband or wife of the deceased, the common-law partner of the deceased and the support recipient of the deceased and to each parent and child of the deceased;
(b) $10,000. to each family member of the deceased.
No need to establish damages
3.1(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.
Adjustment for inflation
3.1(5) In making an award under this section, the court shall adjust the amounts set out in subsection (2) to take into account inflation after 2002.
Contributory negligence of beneficiary reduces his damage
4(1) Where a person for whose benefit, alone or with others, an action may be brought under this Act is a tortfeasor, 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, neglect, or default contributed to the cause of the death of the deceased.
Contributory negligence of deceased
4(2) Where the wrongful act, neglect, or default of the deceased contributed to the cause of his death, 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, neglect, or default contributed to the cause of his death.
Bringing of action where no executor or administrator
5(1) Where there is no executor or administrator of the estate of the deceased, or there being an executor or administrator no action is brought by him within six months after the death of the deceased, an action may be brought by, and in the name or names of, 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.
Part 14 of the QB Act (CB at 334)
Section 83 – Discount Rate of 3% for future damages.
Sibley (1993) MbQB: Discount rate is not just a reduction of 3%, it’s an annual compounding rate applied to the present value of future damages. Award: $75,000 for future loss of earnings of $10,000 per year for
5 years, with $25,000 for relocation costs.
“The parties are agreed that the factor to be applied for a discount rate of 3% in respect of $10,000 per year for a period of five years is 4.5797, and the factor for the $25,000 sum is .9707. The award for future damages should, therefore, be $45,797 and $24,272, a total of $70,069.”
Watkins - SCC

No compensation is provided for inflation up to the time of trial. Reasoning behind this is:

Interest takes inflation into account, and;

Interest gives the true rate. If both interest and inflation were given you would receive a double benefit. ii) pre-judgment interest:
Liquidated damages are a pre-estimate of damages. They are any ascertainable fixed sum.
Applicable Queen = s Bench Act sections: s80(1)(a) - interest on liquidated damages is payable at the pre-judgment rate, from the date the claim arose through the date of judgment. s80(1)(b) - 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. s81(1)(c) - Allows court to use discretion to alter time period in section 80(1). s80 (3) - Pre-judgment interest is not allowed on non-pecuniary awards, but the court may make allowances for loss of opportunity to invest. s78 - principle amount is based on the ascertainable amount and does not include interest, special damages, non-pecuniary damages, exemplary damages and costs.
Wallace

22

Damages for loss of income in a wrongful dismissal case are special damages for purposes of prejudgment interest.

Lost profit is not a special damage.
National Containers v. Gerard

Lost profit is speculative, therefore not special damages. iii) Post-judgment interest: s. 84(1) Post-judgment interest includes costs and is calculated from the pronouncement of an order, not withstanding a stay or appeal of that order.
Baud Corporation v. Brook (1979) SCC
The court has discretion to vary both the interest rate and the time for which it is payable. iv) Interest on non-pecuniary damages: s. 80(3) - no award of pre-judgment interest on non-pecuniary damages but court may make allowances for a loss off opportunity to invest.
Melnychuk MBCA: Non-pecuniary damages awarded already consider inflation between the loss and date of judgment.

Loss of opportunity return is calculated using the discount rate (3%) as a guide.

The 3% is not awarded on entire non-pecuniary damages.

The discount rate will be applied to whatever percentage the court deems reasonable. 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.
Laufer v. Bucklaschuk: MbCA overturned TJ’s decidion to award 3%on punitive damages for loss of opportunity to invest (pursuant to s80(3)).

General rule is that no pre-judgment interest is allowed on non-pecuniary damages.
S. 84(1) Post-judgment interest is allowed on punitive damages because the money is now owing.
Pay attention to how the concept of
how “the market” is defined and used.
DESTRUCTION OF PROPERTY (Is replacement reasonable? Should improvement be accounted for? Is it a case of forced modernization?)
Harbutt’s “Plasticine” Ltd (1970) C.A.
: factory burnt down b/c of negligence. Was replacement reasonable? No alternative to keep business viable. New bldg 2 storeys, old 5; capacity the same, no extras. Only upgrades were those required by code. Value of old: L45,000, new: L68,000. Pl got full replacement b/c reasonable to mitigate lost profit. No deduction for betterment.

Where no substitute for the damaged property is available, and there is no realistic alternative, Pl will get replacement cost.

Added improvements result in a deduction from replacement cost equal to cost of such improvements. (obiter)

Substantially different design okay if net result is not an overall improvement.

Improvements that are required to fulfill building code requirements should not result in a deduction from the damage award.

23
James St. Hardware (1987) Ont CA : Pl rebuilt, b/c location crucial to business. New building had extra capacity. Deduction of 10% for improvements.

Consider whether it is reasonable to replace, or compensate for value of loss.

Onus to show not reasonable is on the Defendant.

Enhancements to building will normally be deducted.

In cases of forced modernization, Pl shd not hv to borrow to modernize.

W- evidence, cost of compliance with building codes will not be deducted.

Where no replacement, damage will be the value of what was lost. (obiter)
Waddams’ alternative: deduct benefit, but then give the Pl interest on the cost of borrowing to finance the improvement.
Jens v. 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. Sd intended to rebuild but hadn’t yet. Tj awarded replacement costs at 1977 values, even though accident in 1973. CA overturned date of assessment and deducted for depreciation from that date.

Assess loss as of date of loss.

If the Pl has not shown a manifest intention to improve, court may deduct for depreciation between date of damage and date of trial.
Leisbosch : (lost dredger case)

If replacement value less than rental, replacement value will be given..

Loss of profits for reasonable replacement time are calculated from the time of loss to when the property could reasonably have been replaced.
Ziehlke v. Amisk Drilling (1993) MbCA : If FMV zero, how do you measure damages? (Fire destroys building at non-functioning gold mine. TJ sd 75% chance wd be operational, so assessed on that basis.
Applied same principles as in Shrump (not mentioned) and deducted for contingency mine might not reopen.)

Where FMV zero, look to the future to decide on likelihood property will acquire value, and then deduct for the contingency that it might not.

Where possibility of acquiring value is <50%, Shrump would allow uncertainty about future to simply result in an award that is based on the probability. So, 30% chance of reopening? Then
30% assessment of value upon reopening.

Arbitrary unproven figure chosen for cleanup cost, in event no reopening.
Patson v. Abalon (1996) MbCA : What happens when contract fails to fulfil promise? Ab hired to fix leak in basement. Recommended waterproofing. Did the work for $8,775. Later discovered leakage was due to another problem. Cost of repair of the basement at $10,860. Pl wanted $10,800 to get proper repair done.
Held: The contract was not a guarantee of a dry basement. The appropriate remedy was restitution, not payment for work to give a dry basement. Pl gets her money back, less $1,200 for improvement to home.

Where contract fails to fulfill promise, Pl entitled to refund of payment, minus an amount for any betterment that may have resulted from the contract.

Onus on defendant, but arbitrary unproven figure chosen for betterment.
DAMAGE TO PROPERTY
O’Grady v. Westminster Scaffolding (1962) QB: Evidence of unique characteristics? You may be able to get repair instead of replacement. (Pl loved his car “Hortensia”. Nothing like it available. Judges indulged him. But won’t pay for car rental in meantime b/c he took 11 weeks to start repairs.)

Pl must act reasonably in choosing to repair.

Only reasonable extra expenses will be covered (e.g. car rental)

If Pl chooses repair, it will usually be considered reasonable. The onus on Def to show otherwise.

If no similar alternative available, repair is reasonable.

24
Darbishire v. Warran (1963) CA : “uniqueness” of the car less obvious. Repair not reasonable.

Ask whether the Pl acted reasonably as between himself and the Def. Pl. has an obligation to minimize damages.

Where Pl has no special need for which this piece of property, alone, would be suitable, repair that costs more than replacement will not be reasonable.
Scobie v. Wing (1992) BCCA: What happens when there’s a rapid increase in replacement cost from time of accident to time of trial. (Pl did extensive work to ’62 Jaguar to bring it to show standard. Totalled.
Four years later had not replaced. Court used normal rule.)

Normal rule for loss of chattel: FMV at time damage occurred, less any salvage.

To get an exception to the rule for a unique or collectable object, (i.e. replacement value) Pl must make prompt efforts to replace.

Reasonable travel, import duties, taxes, etc, to find replacement, may be added to replacement cost.

A Pl who moves “with dispatch” will be entitled to full replacement cost, even if that cost has risen substantially since the accident.
 If you can’t afford to replace, an exception may be made. (obiter) (courts don’t like Leisbosch)
Leisbosch : (lost dredger case)
 If you can’t afford to replace, too bad. Choice to rent quashes ability to get replacement.
Chappell v. Barati (1982) Ont HC : What if there is no market for the lost object? Here grove of trees on land worth $69,000 destroyed by fire. FMV unchanged. Pl awarded $2,325 for replanting, $7,500 for the loss of aesthetic value.


The diminution of land value approach in assessing loss is not always adequate.
Aesthetics may be taken into account.
(Note, here the Pl were not expected to spend time on the land, enjoying the trees.) (John Irvine says simply attempt to do justice between the parties.)
MISAPPROPRIATION OF PROPERTY
Two types of torts: conversion, detinue. Choice of tort affects assessment of damage.

Conversion : to deal with property in a manner inconsistent with the owner’s rights. A single act, on a particular date. Value assessed at date of conversion.

Detinue : wrongful detention. Act continues. Pl can sue for return of property, or damages and consequential damages. Def can end the action by delivering the goods before trial. Value: as of time of trial.
Asamera Oil v. Baud (1978) SCC : Baud loaned shares to the CEO of Asamera, on condition they be returned on a specific date. The CEO refused to return shares, which multiplied in value. B sued in detinue. TJ assessed as of date of breach. SCC assessed at time of trial, but then deducted for failure to mitigate.

The ordinary rule of assessment date at trial for tort of detinue is not absolute. It can be affected by the conduct of the Pl.

A Pl claiming detinue is under the general duty to mitigate his losses, and/or litigate promptly.

An injunction restraining the sale of the objects claimed by the Pl does not relieve a Pl of this duty interminably.

The excuse that one does not want to buy property of one’s adversary is no excuse.

Where property with a volatile price is involved, there should be an allowance of a reasonable time to permit the organization of the finances for prudent acquisition.

Pl not expected to take on undue risk.
(The duty to mitigate can be onerous.)

25
R.F. Fry v. Reimer (1993) BCCA : Pl’s shares wrongfully sold. Value of shares consistently fell until they reached zero.
 Don’t have to mitigate damages in a falling market.

Assessing damages as of date of the conversion should be applied in a falling market, unless there are compelling reasons to depart from the rule.
QB Act S. 36 : The court may award damages in addition to, or in substitution for, an injunction or
specific performance
Semelhago: Pl sought specific performance for home purchase. In meantime, he kept his own home, and it increased in value substantially. The difference in the increase in value as between the homes was
$10,000 and Def claimed that is what Pl was entitled to. Court sd Pl entitled to full value of increase on home he didn’t get.

Time of assessment: A claim for spec. perf. postpones assessment until date of judgment.

Damages in lieu of specific performance thus also assessed at time of judgment .
(note: this is for breach of contract of sale of goods.)

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. If it was desired for investment purposes, then not automatic.

A Pl may elect damages in lieu of specific performance.
QB Act s. 33(3) : The courts shall administer all rules of Equity and the Common Law, and where there is conflict, Equity prevails.
Rules:

Equitable Remedies are discretionary.

Courts tend to prefer damages, so Pl must establish that damages would be insufficient.
 Equity acts “in personam” -- against the person.
See Maxims of Equity, p. 1, casebook.
Patel v. Ali (1984) QB : Def contracted to sell house in ’79. 4 years later Pl wants specific performance.
Resisted on basis of hardship. After contract, developed cancer, had two more kids, lost leg, husband bankrupt and ill, and def. dependent on neighbours and relatives nearby. Cd put up $$ for damage award.
Allowed.

Hardship subsequent to formation of contract generally not grounds to set aside specific performance, but there may be exceptions where hardship is extraordinary.

Where Pl not responsible for hardship, he should not be penalized. Certainty of contract should be respected.
 4 years to time of trial (no fault) worked in Def’s favour.
(Note: in a case where Def could not put up damages, this might not be the result.)
Stewart v. Abrosina (1999) Mb QB : Widow #1 sold home to widow #1. #1’s husband committed suicide after sale, and she was left with 6 kids. Relied on friends and relatives in neighbourhood. But court ordered specific performance. Didn’t find her credible. Hardships were roughly equal between the parties.
Pl had 4 kids and limited $$.

The principle that specific performance prevails in real estate cases is difficult to dislodge.

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Rivard v. Unicity (1999) Mb QB : Unicity owned a large shopping centre. It wished to demolish the centre and build separate retail outlets. Most of the tenants of the existing mall had agreed to vacate or had already vacated the premises. MbCA overturned injunctions enforcing leases, as it was an equitable and discretionary remedy. The tenants sought the injunction merely to improve their bargaining position with
Unicity. This was not a proper purpose for granting equitable relief. A continuation of the tenancies served no purpose, as the mall was virtually deserted. Any harm caused to the tenants could have been compensated with damages. But also wdn’t let mall forcibly remove tenant.

Enhancing a bargaining position is not a proper use of an equitable remedy.
Meant to deprive a Def of unjust enrichment by disgorging him of his unfairly gained profits.
Western Finance Co. v. Tasker (1979) T was a director of Pl company WFC, and Red River Co. WFC a creditor of RRC. T wrongfully made a profit from dealing with RRC. WFC wanted it disgorged. Sued for an account.

For a company to sue for an accounting of profits, it must have been the victim of the Def’s actions. (Here, RRC was the victim).

The fiduciary duty owed by a director to a corporation does not extend to the corporation's creditors.
 “Thus, 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, even though the shares in the two corporations are held by the same persons, and the director is also a director of the creditor corporation.”
Reading (UK case) : Enterprising sergeant in British Army aided those who transported illegal booze, making L20,000 in the process. Sent to prison. When released, sued for return of money. Denied.

Abuse of a position of trust can result in a disgorgement of the profits that resulted from that abuse.

(Applies to fiduciary duty as well.)
QB Rule 54.02 In a jury trial, judge can decide to refer the issue of an accounting to a Master.
Mardynalka v. Kurian (1986) MbCA : Joint venture re lumber activity. Def denied extent of joint venture, and would not cooperate with discovery re: a particular license. Court agreed that discovery should be deferred until after determination of liability, given the complexity of discovery on the license.

Allowing discovery before trial on issues related to accounting is at discretion of the court.

27
QB Rule 60.10: Contempt of court power.

If an order is made, and breached, court can fine and/or imprison.

Costs can be awarded.

There can be a further order to do or refrain from doing something.
Apotex v. Novopharm (1998) MbCA : 2 drug companies racing to market with same drug. 1 st wd win a billion-dollar market and R of $60M annually. Apo alleged that ex-employee shared confidential info with
Novo. Got an injunction ordering all documents to be turned over related to the drug, and that Novo refrain from further research. No claimed breach applied to US market. Novo concealed documents, and advice of lawyers saying it was in breach. Novo guilty of contempt.

Standard of proof in a contempt proceeding is proof BRD.

Def has to be proven to have actual knowledge of court order, and breach.

Breach must be deliberate and wilful.

Def must take adequate and reasonable steps to comply with order.

CA reduced huge penalty of TJ, saying in a civil case
Enforcement is primary, Penalty is secondary . (Here, $110,000 fine sufficient.)
(Note: important to ensure orders clear and precise, to avoid confusion and inability to find contempt.)
QB Rule 60.11
: Enforcement of interlocutory orders.
In addition to any other sanction, court can:
 stay a proceeding,
 dismiss a claim, or
 take any other action.
TYPES OF INJUNCTIONS
QB Act S. 55: authorizes restrictive or mandatory interlocutory injunction, where it appears just or convenient to do so, and such an order may include such terms as are considered just..
1) Quia Timet
: “Because you fear.”
2) Interlocutory: An order prohibiting or requiring certain action until case gets to trial.
3) Interim : same as interlocutory, but for a specific period of time, e.g. 1 month.
4) Ex Parte: always interim, until Def can present its arguments in court. (up to10 days: s. 40 )
5) Mareva: to freeze assets controlled by defendant. (interlocutory and w-out notice)
6) Anton Pillar: likened to a civil search warrant. Pl can access def’s property, inspect documents, and seize evidence. (interlocutory and w-out notice.)
All of the above can be either mandatory or prohibitive. Specific performance is an example of a mandatory injunction.
7) Permanent : Post trial, if successful. E.g. Def may not re-create nuisance.
General considerations:

Establish proof of a legal wrong, or threatened legal wrong.

Discretionary and subject to equitable defences. o
Look at balance of convenience, especially important where liability in question.
 You can’t get an injunction where there’s an adequate C/L remedy. o Must show irreparable harm. Damages inadequate.

Supervision an issue w- mandatory orders. Harder to get. o
Charleswood Homeowners Assn : tried to get mandatory injunction to force city to repair roads, but court sd “what does good repair mean?” Nature of injunction requested made it undesirable for the court.

28
Hipwell v. Wallace RM (1987) MbQB : Farmers owned land near proposed waste disposal site. Pl argued danger of irreparable harm (although their own expert denied this). Oliphant pointed to guidelines on running a disposal site in legislation. Sd Pl cd sue if there was damage.

Assumption: parties will comply with the law.
 Must prove damages won’t suffice. (here not proven)

Pl must show : imminent danger of substantial harm. A strong case of probability of harm (almost a moral certainty.
 Def’s inability to maintain status quo a factor.
Based on: (1) strength of case, (2) irreparable harm, (3) balance of convenience.
American Cyanamid: (battle over sutures. Little Pl, Big Def. Pl had patent. Def’s use 
permanent loss of market share for Pl. Injunction would preserve status quo, b/c Def’s product not yet on market.
Est’d test for interlocutory injunction (affirmed in RJR Macdonald).
1.
Serious issue to be tried. (no need for prima facie case)
2.
Risk of irreparable harm to Pl? (May consider whether Def. impecunious, and thus damages would be impossible to obtain.)
3.
Balance of convenience.

Who wd suffer more from an unfavourable judgment?

Would an injunction decide the case?
Examples:
Sawatzky v. Riverview Health Centre : Pl wanted to remove a “do not resuscitate” order. She was successful on all three grounds.
1.
The courts had never considered such orders in the context of the Charter, thus meritorious issues to be tried and the application was neither frivolous nor vexations.
2.
Damages would not be adequate to compensate the wife if Sawatzky died.
3.
Balance of convenience? Resuscitating Sawatzky did not require onerous steps on the part of
Riverview.
Enforcment against non-party?
MacMillan Bloedel v. Simpson (1993) SCC :

A non-party is bound by an injunction order, but they must be aware of its existence before a contempt order can be enforced.
 Normally, can’t get an order against parties unknown. But where impossible to obtain names, file a John and Jane Doe order . If they have notice of the order, they are bound to obey.
 where criminal conduct affects property rights, the affected person may invoke the equitable jurisdiction of the court to obtain a prohibitory injunction.
Rule 60.06(2) An order that can be enforced on a non-party may be enforced as if that person were a party.
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.

29
Weak case
Perkins v. Moxies (1994) MbCA :application to close moxies failed. Strength of case weak b/c Moxies didn’t know about restrictive covenant w- mall. No irreparable harm demonstrated by Perkins. Balance of convenience favours Moxies, given late application. (renovations complete, and potential for permanent loss of market share.) Also, Moxies an innocent 3rd party.
Where an injunction will settle the issue:
Griffin Steel (Mb QB) : secondary picketing at places that do business with employer.

Where issue would be settled, need a higher threshold for serious issue to be tried.

Generally, the person affected by an injunction order should be a party to the action.

However, a non-party may be held in contempt if she breaches an existing injunction or knowingly assists a defendant in breaching.
Order wd give employer an unfair advantage in bargaining.
Tremblay v. Daigle: order to prohibit abortion wd decide the case.
Example of 1) mandatory injunction 2) inadequacy of damages
Perreira v. Smith (1993) MbCA
: Family can’t get along in same house after mom puts daughter’s name on title, and gives $$ to daughter on condition she pay mortgage and renovate. Mom claimed duress.
Wanted conveyance of property to her alone, and interim order of exclusive occupancy. Def wanted partition and sale. Court sd rent to daughter cd compensate, so granted injunction.

Court said American Cyanamid not step-by-step, but global assessment of case. (applied consistenly in Canada.

But, inadequacy of damages always a separate pre-condition. (RJR MacDonald: It’s not the quantum, but nature of the harm that matters. Some things cannot be quantified) (Apotex: where quantification difficult, that may be sufficient for an injunction.)
RJR MacDonald : wanted a stay of Que CA judgment re labels,, b/c of enormous cost, and intent to appeal.

Test for a stay same as for interlocutory injunction.
 Where factual record is settled and agreed to, higher test for “serious issue to be tried” will apply.

Status quo should not carry much weight.

With charter cases, court assumes potential for irreparable harm (but not decisive, just one part of the test).
 Re: Balance of convenience. Difference between private party and gov’t. Where public health at risk, this will greatly outweigh inconvenience to party. o
Presumption: laws passed in public interest. o To get a stay on application of legislation, must show a substantial public interest.
Sharing confidential info a permanent harm
Apotex v. Novopharm : A got injunction preventing N from doing research on its technology. N sought a variation, since complexity of drug regime meant it would be 3-4 years after trial before they would be able to sell the drug, therefore no need for injunction. MbCa rejected, saying:
 fact of sharing information causes harm, which is difficult to quantify.

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.
Charter case
Hall v. Powers (2002) Ont SCJ : Openly gay student wants to attend grad with boyfriend. Granted injunction. Normally, Pl has to agree to pay damages upon loss of case, but here that was waived.
 Where result will be a final determination, factor of “serious issue to be tried” must have a higher threshold. (Don’t come to court saying “not frivolous or vexatious.”)
 Don’t forget public interest argument with charter cases. What is message to/effect on public.

30
Personal Services
S. 56(1) The court shall not grant an injunction which requires a person to work or perform personal services for an employer.
No contempt re personal services
S. 56(2) No person shall be held in contempt of court by reason only of a refusal, neglect or failure of the person to work or perform personal services for an employer.
No injunction re freedom of speech
S . 57(1) Subject to subsection (3), the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech.
"Exercise right to freedom of speech"
S. 57(2) For the purposes of this section, the communication by a person on a public thoroughfare of information by true statements, either orally or through printed material or through any other means, is an exercise of the right to freedom of speech.
Court makes a distinction between restraining violent conduct and restraining freedom of speech. (Griffin
Steel)
Rule 40.01 Interlocutory injunction may be obtained by Notice of Motion by party to a proceeding.
Applicant can obtain injunction w-out Statement of Claim in a situation of urgency, upon an undertaking to commence action forthwith.
Rule 40.05 (3) : Where you claim an injunction, proceedings commence by Statement of Claim.
Exception : where injunction obtained by ancillary relief, can proceed by notice of application.
(e.g. seeking declaration, but want injunction also.) (Note: this does not appear in the rules online.)
Affidavit evidence
Rule 39.01(6) : for injunction w-out notice, the moving party ;must make full and fair disclosure of all material facts. Must act as fair and honest officer of the court. A failure is sufficient to set aside the injunction, despite the merits of the case.
Griffin : affidavit sworn by Pl employer sd he had spoken to deputy chief of police.
But, lawyer had spoken. Must disclose source accurately. Affidavit set aside.
St. Vital School Division v. Trnka : lack of complete disclosure resulted in costs on a solicitor and client basis.
Undertaking re: Damages
Rule 40.03
: Moving party has to undertake to pay Def’s damages if Pl loses at trial. Court may not require, but it is possible.
Question: the rules do not seem to include any reference to a statement of claim.

File Statement of claim, but if urgent, Rule 40.

File Notice of Motion, nor Notice of Motion Without Notice, w- undertaking for statement. 40.05

IF seeking a declaration, file Application

File affidavit. S. 39.

But, ensure total honesty. 39.01(6)

Where parties names are unknown, file a John and Jane Doe and Persons Unknown Order
(MacMillan Bloedel) (if they have notice of the order, they are bound to obey it.
Principle of Dedication: Where it is possible to show that an owner has intended private property be used for a public purpose (e.g: skywalk), it essentially transforms the private property into public property.
Reasonable Accommodation:
>
Public
=
property owners must accommodate disabilities to the point of preventing undue hardship. (e.g. handicap parking, skywalk access)

31
When will state use injunctions

Only allowed in exceptional circumstances, since AG has power to increase penalties, and normally wd have to charge (raising standard of proof to BRD).

Urgent matters, leaving no time to change the law.

Persistent flouting of law in the face of convictions.
Individual enforces law
Relator action. where an individual seeks an injunction to protect a public right, or to force a public duty to be performed. The Attorney General must grant consent to an individual for a relator action. Arises most often when AG refuses to enforce legislation. AG can step in at any time and stay proceedings.
Attorney General v. Harris (1961) Eng CA: Defendant was charged 237 times for violation of a licensing by-law. The accumulated fines totalled less than licence fee would have cost to purchase. Merchants argued laughing at the law. Def sd trivial.

Blatant flouting of the law constitutes a harm to the public interest where
(a) profit is earned from breaking the law, and
(b) penalties are not a deterrent.
Gouriet v. Union of the Post Office: failed to force post office to handle mail to/from South Africa. AG refused to take action.

To get standing, a plaintiff must demonstrate a violation of a private right, or that a public wrong will inflict some special private suffering or damage to the plaintiff.

It is up to Attorney General to bring an action in the public interest to stop public mischief.
League for Life v. Morgentaler (1985) MbCA : Plaintiff sought a relator action to prevent what it deemed to be a flouting of the law by the defendant. (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.

If an Attorney General is unable to obtain the injunction, a private group is enjoined from attempting to do so. (Here, AG’s case already set for trial that had been lost in other jurisdictions, so likely wouldn’t get an injunction. Morg. Never convicted, unlike Harris. It is unlikely there will be a finding of guilt )

If the law is a sufficient deterrent, no injunction (b/c no purpose).

The civil courts should be slow to make incursions into criminal law.

Noted trend of liberalizing rules of standing. Most people can get it w- questions of constitutionality of a law. BUT

General rule, party has to be directly affected.
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. (although this was a case of private property rights.)
Exceptions re: public interest standing
Borowski, 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
(3) No other reasonable and effective way to bring the issue before the court
McNeil v. Nova Scotia Board of Censors (1976) SCC : Last Tango in Paris banned. McNeil not directly affected. On editorial staff of newspaper. Obtained standing.

32
Harris; NAPO v. Winnipeg – reiterate exceptions to standing principle in Manitoba.
NAPO (panhandling) :

If you can put forward evidence that group affected is incapable of instructing counsel, or backing a challenge, then public standing available to other representatives.
Harris v. Canada (2000) FTC : Pl sought declaration that Minister should enforce his duty in accordance with the act. Administrative action subject to same principles . The court wants to ensure the rule of law. Doesn’t want to immunize administrative action from judicial scrutiny.

Seriousness? Not constitutionality, but whether officials had performed their responsibility.

Interest? As a citizen, no direct interest .

Who else would challenge? Not minister or family.
QB Act S. 34 : Courts have ability to make declarations w-out other relief. Don’t require cause of action, or violation of rights. Can be an advance ruling or interpretation.
Requirements :
1.
Serious issue to be resolved.
2.
Issue involves clarification of present rights
3.
Rule 14.05(2)(c)(iv) adds: where material facts are unlikely to be in dispute.
Rule 14.05((3) if the declaration is secondary or ancillary to a main cause of action, the courts may grant it.
PRIVATE LAW
Wpg Jets v. Olaufsen : dispute over O’s contract.

Declaration avoid need to wait for breach and sue for damages.

Both sides must agree in advance to abide by ruling.
 Can’t get an injunction for personal services.
PUBLIC LAW
Crown immune from injunctions, but can use S. 42 Proceedings against the Crown Act to get a declaration in lieu of injunction, which the government will respect. However, declaratory relief not available as an interim measure. Only as a final determination.
Solosky v. the Queen (1979) SCC : Prison policy to open mail, including letters from lawyer. Application for declaration denied, but guidance given.

Application of declaration re future rights no bar to action.

Must have an opposing party to argue against in court.

Discretionary: if useful and would settle issue, may grant a declaration.
Interlocutory declaration
Loomis v. Ontario (1993) Ont CA : The plaintiffs were students whose courses were cancelled due to funding constraints. Wanted declaration of binding contract. Refused.

Interlocutory declarations are not available against the Crown unless there is some evidence of a deliberate flouting of established law by the governmental authority.

A mandatory injunction for specific performance flouts Crown immunity, and will not be granted.

Declarations against government available only at end of trial.
(Note Otten : Crown immunity does not apply to Charter challenges.)

33
QB Act S. 55 : Court has the power to issue AP orders.
Allows a Pl to enter the premises of the Def. (and or lawyer(s)) to determine whether evidence of fraud, etc., is present. A “civil search warrant”.
Requirements :
 there must be an extremely strong prima facie case that Def will destroy evidence if warned.
 Must have clear evidence of incriminating documents, objects, in Def’s possession.
But, there was no such “clear evidence” in Anton Piller. It appears that the real test may be whether there is evidence of deceitful practices – from which it intent can be inferred.

Potential for actual damage from loss of property must be very serious.

A Def., can refuse entry and the Pl must then leave, however the Def can later be found in contempt of court, and ultimate penalty may be higher so the pressure to comply is heavy.
(Columbia Pictures).
Consequences of refusal:

Contempt of court

Adverse inference of fact. Very damaging at trial
Features:

Usually is an ex parte order

Rarely granted due to its intrusive nature

It is an order in personam - that is, an order against the defendant personally, to permit the plaintiffs entering; 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. Robinson (1986) (Denning) : video black market. this was another case of misconduct of Pl – failure to disclose cooperative attitude of Def.)

Lack of cooperation is contempt, even if the reason was to fight in court.

Obligation to comply is immediate and ongoing

This remedy should be used only in the most exceptional circumstances.
Safeguards :

Pl lawyer an officer of the court and should supervise.

Order covers minimum items necessary.

Def has to be given opportunity to consult order and move to set it aside.

AP order cannot be enforced if defendant refuses.
 Can’t ask Defendant for more than what is in order. (unfair, no lawyer)

Keep detailed record.

Return goods ASAP.

If Pl must have access to the material, keep with neutral 3 rd party.

Pl to give undertaking re damages, if scope of order exceeded.

If lawyer exceeds order personally, there can be aggravated and punitive damages against him personally.
Pulse Microsystems Ltd v. SafeSoft Systems Inc. (Mb QB) AP order given, but then new evidence indicated that SafeSoft was not a fly-by-night operator against whom Anton Piller orders were normally sought. Set aside. SafeSoft was also awarded solicitor and client costs and the value of the seized property. Plaintiffs did not comply with their obligation to provide material disclosure. Award of costs on a solicitor-client scale.

Utmost good faith, in the form of full disclosure of all evidence, must be shown by Pl for a successful Anton Piller order.

AP orders generally issued against companies of dubious reputation. Reputation at stake

Damages from AP order must be proven.

Costs on a solicitor-client basis are available as a penalty.

(Recall Rule 39.01(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, lawyer had spoken. Must disclose source accurately. Affidavit set aside.
St. Vital School Division v. Trnka : lack of complete disclosure resulted in costs on a solicitor and client basis.)
JURISDICTION
A remedy in personam , however, to be safe seek in jurisdictions where required.
34

35

An interlocutory injunction preventing the transfer of assets from the jurisdiction of the court.

Balances two competing interests:
(1) that the assets of a Def. are sacrosanct until judgment ( Lister v. Stubbs );
(2) the need to prevent the Def from removing assets in an effort to thwart a legitimate claim of the Pl.
 The injunction is “in personam” against the Def, and her agents and servants. Disregard of the injunction can lead to contempt of court proceedings (and possible jail).

Often obtained with anton piller order.
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.

Full and frank disclosure.

If assets remains in Canada, no Mareva.

Exceptional remedy.

Evidence that removal of assets will render future judgment futile.
COOPERATION OF THIRD PARTIES
Z. Ltd (1982) CA:. Fraud involving transfer of $2,000,000 into several bank accounts used to acquire fixed assets for the Def.
 As soon as a company or person is given notice of a Mareva injunction, it/he must freeze the Def’s bank account, or face contempt of court. Same applies to any specific asset held by the person or
Co. BUT, Payment under letter of credit or bank guarantee not prevented. Credit card debts must be honoured by the bank, but can debit these payments against the Def’s account. In addition:

Pl must pay for any costs to the innocent third party.

Precision in the notice is required

If precision is unachievable, then Pl can ask for a search, for which he must pay. Accounts discovered will be frozen, however, Pl is not entitled to know details

Once an injunction is obtained with regard to certain banks (and other parties), if the plaintiff obtains further information indicating assets are held by other parties, those parties may be given notice under the injunction.

The court may fix a maximum amount to be restrained.

Def allowed access to funds for living expenses.

Joint accounts can be included.

Def should be given the earliest opportunity to challenge the injunction. The injunction may be limited to a few days.

Pl shall give undertakings in damages to the Def. Court may require a bond or other security.

If a Def claims to have ample assets to satisfy the claim, these must be specified.
Scaletta v. Vlassie (1989) MbCA : Order scaled back because too broad.

Orders must be as specific as possible, and freeze no more than necessary.
MacIver :

Court can appoint an examiner to support enforcement, where Defendant refuses to cooperate.

Def has to pay for examiner. Solicitor-client costs as well.
Mooney v. Orr (1994) BCSC (assets outside of Canada) High flyer w- little domestic income avoids debt.
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. The evidence was that the plaintiff had the capacity to invest in substantial enterprises and had a history of carrying on business offshore, out of reach of his judgment creditors. The assets he acknowledged were not sufficient to support

36 his lifestyle and his manner of doing business revealed by the evidence. Critical: Court unhappy with
Mooney for using courts in an illegitimate way against others. Court ordered disclosure of world-wide assets, but not a freeze as per Mareva.

Three conditions:
1.
A good arguable case (instead of strong prima facie case) Lower standard.
2.
Evidence of assets ex juris
3.
A real risk of remove or dissipation of assets to avoid judgment.
 Where assets were offshore as a matter of course, (and not to avoid THIS judgment) can’t gather them up for Plaintiff. Can get disclosure. 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. Trial judgment. Can argue Aetna is the law, or Consolidated .)
R. v. Consolidated FastRate (1995) Ont CA : Crown feared co would transfer assets to avoid fine of
$6.8M. Injunction granted.
Conditions:
(1) Strong prima facie case of imminent removal.
(2) Imminent removal or dissipation would render judgment nugatory.
(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.
See Practice Direction at page 206
Damages must be inadequate.
No obligation to mitigate if specific performance is awarded. (Asamera the exception)
Not preferred where there may be a need for supervision.
No personal services.
The more coercion required, the less likely you are to get this remedy.
MUTUALITY A REQUIREMENT
Beswick (1968) All ER :

Where damages would fail to address an unconscionable breach of good faith, specific performance is available.

Lack of Mutuality is usually a bar (nephew couldn’t sue uncle for specific performance). But where one party has fulfilled his terms, the status of mutuality changes.
Gretsky v. Ontario Minor Hockey Assn (1976) Ont : league couldn’t get specific performance against
Gretsky, so he couldn’t get it against them.

Contract with a minor is voidable, so lack of mutuality bars specific performance.
PERSONAL SERVICES
QB Act S. 56: Court will not require a person to work or perform personal services.
But, the courts will enforce a negative covenant with a restrictive or prohibitory injunction, preventing Def from doing similar work in same area.
Lumley v. Wagner Promise not to sing anywhere else while on 3-month contract

If courts find a valid restrictive covenant in a contract, they can grant a restrictive injunction rather than specific performance.

37
Warner Bro’s v. Bette Davis: court didn’t care that her vocation was acting. Allowed restrictive injunction.

If the effect of enforcing a restrictive covenant is to force person to be “idle and starve”, court will not enforce it.

Worldwide competition, so worldwide restrictive injunction.
NEGATIVE COVENANT
A negative covenant won’t be enforced if it is an unreasonable restraint on trade. (look at duration, geographic scope, nature of restriction (e.g. any and all manner of involvement in the industry)
Detroit Football v. Dublinski (1956) Ont : different countries, no element of competition. Remedy to be connected not to loss of employer, but to impact of competition or continued work elsewhere by employee.

If intent of enforcement of negative covenant is to punish, and force return of employee, then it will not be upheld.

The employer must have a distinct interest beyond the positive covenant. Special circumstances making protection of the business necessary.

There must be reasonableness of time period, geography, and what is to be restricted.
Elsley (SCC ): (insurance business sale)
 the nature of employment may justify a covenant prohibiting an employee not only from soliciting customers, but also from establishing his own business or working for others, so as to exploit his connection with former employer’s customers.
Friesen v. McKague (1992) MbCA : Steinbach veterinarian. Court noted equality of bargaining power.

Restrictive covenants always prima facie unenforceable. BUT

Onus always on employer to prove restrictive covenant reasonable.

Where the nature of employment is one of close personal contact with customers (

employee as the personification of the company), the employer has a proprietary interest in the preservation of those customers which merits protection.
 Injunction should go no further than necessary to protect employer’s interests. E.g. noncompetition clause tougher than non-solicitation clause re: employers’ customers.
LAND AND SPECIFIC PERFORMANCE
Bashir v. Kopar (1983) Ont CA : There had been a 6-month extension of the contract, then Def reneged when value tripled. Presumption of specific performance of sale of land.

Delay coupled with hardship or prejudice to defendant are the only grounds to refuse specific performance for sale of land.
Semelhago (SCC) :

Specific performance should not be granted as a matter of course unless there is evidence that the property is unique. If it was desired for investment purposes, then not automatic.
PENDING LITIGATION ORDER
QB Act S. 58 : effective notice to 3 rd parties that litigation being pursued against property.
A lien and charge against the property.
QB Act S. 58(4) : If you register a pending litigation order without a reasonable claim to an interest in the land , you can be liable for damages.
Rule 42 : done by motion. Pleadings must already be filed, and a copy must be filed with motion. Can be sought ex parte .
Rule 42.02
: owner can move to have order set aside . Grounds include applicant does not have an interest in the land

38
What is an interest in land?
Marlo v. Pace Homes (1994) MbCA :
 It is an abuse of process to use pending lit. order to stop foreclosure on one’s own property.
Kirkfield Park: Non profit ass’n challenges change to by-laws 
development of property owned by school division. Wants pending lit order on the land.

Where owner of land not a party to the litigation, no order will be granted.

Where the party has no claim to the land, a p.l. order is an abuse of process.
(should have tried injunction.)
Penner Construction v. Ansel (1979) : Def who owed debt to Pl conveyed property to wife.

A pending litigation order can substitute for a Mareva injunction, and serve to freeze real estate.
(Note: the nature of the interest in land is not totally clear.)
(consider a personal injury award. Cd circumvent tough requirements for Mareva.)
SPECIFIC PERFORMANCE IN THE SALE OF GOODS AND CHATTELS
Falcke v. Grey (1859) ER : (sale of china) Spec perf. refused. 3 rd party wd suffer.

Damages are usually adequate as chattels may be easily replaced, unless the plaintiff is able to show a uniqueness that demands specific performance.

Inadequacy of price may be grounds to refuse specific performance (obiter).
Black v. Wilcox (alcoholic persuaded to sell farm for 15% of its value. No legal advice. Unconscionable.)

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.
Co-op Insurance Society v. Argyle Stores (1995) : A to keep safeway store open for 35 years according to lease. But it was losing millions. 12 years left on lease. Co-op sought specific performance. Denied.

Need for supervision of order for specific performance will be a bar.

39
S. 52 – The Supremacy Clause . Anything in conflict with the Charter is of no force or effect. But, the courts can also read in what is missing, or read down.
S. 24 – The Remedial Clause. allows anyone whose rights have been violated to apply for any remedy the court considers just and appropriate in the circumstances.
THE TESTS FOR S. 52 AND S. 24 REMEDIES
Schacter (1992) SCC:
Father wanted parental leave. Adoptive parents could get it. He cited discrimination on basis of family status. Feds conceded the breach

little evidence on which to found a remedy. If court not satisfied it can anticipate what Parliament would have done, it will not amend act (read in). Held : The offending provisions were struck down, but effect suspended for one year. Parliament later reduced benefits from 15 to 10 weeks, and removed discrimination.

Only in rare and exceptional circumstances will a Pl get both a S. 52 and S. 24 remedy.
(Note: this decision contradicts other Charter jurisprudence which says give a generous interpretation.
Perhaps, b/c of lack of evidence, not certain there was discrimination. But, S. 24 now gets a narrow interpretation.)
What are rare and exceptional circumstances? Argument: Whenever there is bad faith, malice, improper conduct, abuse of power. OR, to be more generous, whenever Pl would walk away empty-handed. This latter approach is to be preferred. To do otherwise is to discourage citizens from pursuing justice, and their legal rights, which contravenes the very purpose of the Charter. Since the SCC has endorsed the purposive approach with regard to most Charter litigation, consistency would require that it apply the same principle to s. 24 and s. 52. The wording of S. 24 in particular suggests that Parliament and the provinces intended a broad interpretation, as noted in R. v. Mills. A policy of qualified immunity would seem to make s. 24 a near nullity – at least with regard to discretionary implementation of legislation, since the Charter only applies to government, and the SCC appears willing to shield government from its effects.
Consider a S. 15 breach. Human dignity is central to s. 15 interpretation. Yet, infringing a person’s dignity will not result in damages. Compare this to the SCC’s attitude to defamation, which is also about human dignity. Yet here, the court affirmed a $1M. There is no apparent justification for the discrepancy, except to provide protection of government coffers, and there is no evidence that was ever intended to be an element of Charter application.
If Equity will suffer no wrong to be without a remedy, why should the Charter?
Since Schacter, the cases have indicated that S. 52 is to be used whenever you challenge the legislation itself. S. 24 is used when you challenge state action.
Court of competent jurisdiction
S. 24 remedy can be awarded by any court of competent jurisdiction. But, this can also include administrative tribunals – if the tribunal was given the authority to decide questions of law . Look at intent of legislation: function and purpose of tribunal, enabling legislation. Tribunals have remedies not available to the courts – so if an individual has a choice, a tribunal might be a better place to get a Charter remedy. E.g. Human Rights Commission.
Types of Remedies under s. 24
Damages, injunctions, stay of proceedings, etc. Anything you can get in a civil context. But damages are particularly difficult to get.
Auton (2002) BCCA: (followed Eldridge , 1997, re failure to provide interpretation services for the deaf.)
S. 52 not in play, because Act okay, administration not. Autistic children get benefits.
2 declarations: 1) Parents to get symbolic damages. 2) general remedy of services for those in similar circumstances.

40
Mackin (2002) SCC Legislation declared unconstitutional under s. 52. No damages.

Damage awards are not generally available in addition to a declaration of invalidity.

Damage awards would deter officials from administering legislation.
(Why do the courts want to make it easy for officials who suspect they may be breaching the Charter?
Why not encourage caution, where a potential breach is possible?)

However, where a provision is struck down, with the effect delayed, the litigant may be entitled to an exemption from the delay.
(This is just because it entitles the litigant to the fruits of the litigation.)
Chrispen v. Kalinowski (1997) 6 cops break into guy’s home on a bad tip. Unlawful search and seizure.
He gets $300 for doors, $500 against each of 6 officers.

Bad faith, abuse of power, can give rise to s. 24 damages.

If police act in good faith, despite acting excessively and violently, a findng of an improper search will not automatically create grounds for damages.

Damages will be compensatory, not punitive.
RJR Macdonald, SCC: Injunction available in a Charter context.
Van Mulligan v. Saskatchewan Housing Corporation : attempt to transfer outspoken Regina city councillor out of Regina. Violation of 2(b). Injunction obtained.

Injunctions are available to restrain government from abusing Charter rights (notwithstanding the
Proceedings Against the Crown Act.

Where government officials act beyond their powers, they are not entitled to protection of the
Crown Liability Act. (See Declarations section.)
Crossman v. the Queen (1984): cop illegally interrogated, denied access to lawyer. But he was guilty.

Where no damage has been caused, abuse of police power amounting to a Charter breach can result in damages.

Damages should be sufficiently punitive to be a deterrent, but balanced against the damage caused..
AG v. Gould (1984) FCA : prisoners right to vote case. TJ issued mandatory injunction allowing Gould to vote. FCA overturned.

Injunction not available where it would amount to a final determination of the action.

The purpose of an interlocutory injunction is to preserve or restore the status quo, not to give the plaintiff a remedy until trial.
American remedy. A declaration that the court will direct or manage the reconstruction of the social institution, in order to bring it into conformity with the constitution. A remedy of last resort. E.g. school to de-segregate schools.
Three phases:
1.
Does liability reside with the defendant? (Appeal then allowed)
2.
Hold hearings on the solution.
3.
Implement: Set deadlines, direct the contracts and purchases, etc.
It’ll never happen here. (Robert Sharpe article)

41
Rule 44: Where there’s an action for recovery of personal property, and you’ve alleged it was unlawfully taken, or unlawfully detained, court can order interim recovery of possession of property. E.g. neighbour won’t give lawn mower back. The law avoids self-help remedies.
Rule 45 : Court can order interim preservation of any subject matter of proceeding, or relevant to proceeding. Can authorize sheriff to enter property to recover, even if property on the premises of an innocent 3 rd party. Like Mareva or Anton Piller (see Manning below), but there are important differences:
Rule 59(4) Sheriff can forcibly enter premises, unlike Mareva and Anton Piller orders.
Differences:
Rule 44 relates only to subject of claim. Need pre-existing possessory right. Limited to chattels.
Rule 45 applies to any property relevant to an issue – e.g. to preserve evidence. No possessory right required, just an evidentiary link to the proceeding. Can apply to money (sp fund-Manning).
RULE 44 CASES
Heaman v. Manitoba Agricultural Credit Corporation : Cows used as security for a loan. Property never lawfully in possession of the plaintiff. Rule 44 restores.

Rule 44 will not allow someone to claim possession of property of which they never previously had possession. (Also the common law rule of replevin.)
Blue Jays and John Doe : Scalped tickets. No recovery.

Once an item is sold, the previous owner has no lawful right to possession under Rule 44.
RULE 45 CASES
Manning v. Chornovoy : Argument about a lottery ticket. Pl wanted preservation of money in account until matter settled.

Money, or proceeds of a bank account, is not property in a proceeding for purpose of rule 45.01.

But, where the right to a special fund is in question, and it is possible to trace, the court can order the fund be paid into court. Rule 45.02

A codified Mareva.
Inspection
Rule 32 – can order inspection of real or personal property, where necessary to make a proper determination in a proceeding. E.g. access for expert witness.
Neutral 3 rd party protection
Rule 43
– Interpleader. Useful for neutral 3 rd parties, caught in the middle of a dispute between two other parties, holding property that both sides want. Doesn’t want to get sued by either side. Can put it into the control of the court.
McLeod Steadman : 3 rd party, owed money to someone. 2 parties fighting over who it was. Used rule 43 to put payment in the hands of the court. Company then protected from future action by adverse, or losing, claimant.