Law 12
Tort Law
Ms. Ripley
1
The Judgment and Civil Remedies (All About Law. Gibson, pp.321 -327)
After the trial, the judge delivers a judgment. In Small Claims Court, the judge often gives an
oral judgment while all the parties involved are still present. In higher courts, the judg e usually
needs some time to review the evidence and to consider the case itself and the relevant law.
The judge is then said to be "reserving judgment"; that is, delaying a decision until all the
evidence has been examined.
Civil Remedies
Damages for the plaintiff's injury or loss are the remedy most often awarded in tort actions.
The intent is to return plaintiffs, as much as possible, to the same position they were in before
the loss or injury occurred. In the case of injury (e.g., paralysis), no amount of money can
adequately compensate victims, but a major purpose of awarding damages is compensating
plaintiffs for the cost of future care and future loss of income. Courts consider these factors, if
applicable, and refer to past cases and precedents to determine awards.
There are five types of damages, and plaintiffs may be awarded one or more of them.
General Damages
General damages are damages that cannot be calculated easily or precisely and require a
judge's or a jury's discretion. There are two main categories:
 damages for loss of income and future earnings and the cost of specialized future care
 damages for pain and suffering and for loss of enjoyment of life
For loss of income, the judge must consider what the plaintiff was earning at the time of the
accident and what he or she would earn in the future. The longer the injured plaintiff is
expected to live, the greater the compensation. If the victim has a job or had definite plans to
enter a specific profession or trade, then the average earnings for that occupation may be
used. The settlement must, moreover, be fair to both the plaintiff and the defendant.
Determining adequate compensation is extremely difficult when the injured plaintiff ~is very
young or has not yet entered the workforce. For example, if you were injured, would you be
able to say with certainty, what you intend to do after high school? Are your school marks high
enough to enter college or university or a particular trade? Have you seriously thought about
what type of employment you intend to seek? If so, who knows about these decisions, and
who could testify on your behalf at a trial to support your claims if you were an injured
plaintiff?
Costs for future care cover professional help, equipment, facilities, and medication
necessary to assist the injured plaintiff in performing daily activities. While damages can be
difficult to determine, placing a price on pain and suffering is even more difficult. What is the
loss of enjoyment of life worth to a person permanently injured in an accident? Should an
athletic, socially active youth be given more money for loss of enjoyment of life than a quiet,
less active one? Money cannot always restore what has been injured or lost; however, it can
provide substitutes for pleasures that are no longer possible. Compensation can, for instance,
make it possible for an injured plaintiff who can no longer skate or ski to enjoy a winter
vacation.
The Supreme Court of Canada Trilogy
Because of highly publicized American legal cases in which plaintiffs are awarded millions of
dollars, many Canadians feel that they will receive equally high awards for personal injury
lawsuits. However, this is not the case. Canadian courts take a more cautious approach in
determining damages.
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Tort Law
Ms. Ripley
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In three precedent-setting decisions in 1978, the Supreme Court of Canada set out the factors
to consider for awards for pain and suffering in very serious cases-those resulting in severe, lifelong physical incapacity. The court set $100 000 as maximum compensation for pain and
suffering in most cases, excluding "exceptional circumstances," based on the severity of injuries
and the victim's disability. In today's dollars, this amount is roughly worth between $275 000 and
$300 000.
Two of the three cases were Thornton u Prince George School District No. 57 (1978) and
Arnold u Teno (1978). In the first case, Gary Thornton, a high school student, was injured during
a gymnastics class, leaving him a quadriplegic (paralyzed in all four limbs). He had minimal use of
his hands and some use of his arms up to his shoulders, but he would require constant care for
the rest of his life and his life expectancy was 54 years. His mental faculties were unimpaired. He
and his parents sued the teacher and the school board, and the Supreme Court of Canada
ultimately awarded Thornton $810000.
In the second case, Diane Teno, a four-year-old child, was hit by a car while crossing the street
to buy an ice-cream cone from a vendor in her neighbourhood. Her speech, physical abilities, and
mental capacity were left severely handicapped, and she would require full-time assistance to
perform even ordinary tasks for the rest of her life. Her life expectancy was 67 years. On the
child's behalf, the parents sued the driver of the car, the ice-cream vendor, and the company for
whom he worked. The Supreme Court of Canada ultimately awarded the Tenos $540 000.
In each of these judgments, along with another case involving a quadriplegic young adult
Andrews v Grand and Toy Alberta Ltd. (1978)-the Supreme Court established the ceiling of $100
000 for pain and suffering and loss of enjoyment of life.
For Discussion
1. What factors do the courts consider when awarding damages for pain and suffering?
2. In the case of permanent disability, a key issue for courts to determine is whether the
victim's future care should be in an institution or a modified home. Although home care is
preferable, it is more expensive. In a chart, outline the advantages and disadvantages of an
institutional versus modified-home environment.
3. Discuss the merit of having a ceiling for pain and suffering in the 21st century.
Tran v Financial Debt Recovery Ltd.
(2000) 193 D.L.R. (4th) 168 Ontario Superior Court of Justice
The plaintiff, Mark Tran, had a student loan that remained unpaid. He graduated from the
University of Toronto with a commerce degree in 1996. Collection of Tran's loan had been
transferred from the original lender to the defendant collection agency. Tran questioned the
amount owing and refused to make any payments until the issue was cleared up The
defendant agency and its employees then began a planned campaign of harassment. They lied
about their identities, Tran at work, threatened him with physical harm, and repeatedly telephoned Tran and other employees at his office. After receiving seven abusive calls within 30
minutes, the receptionist threatened to call the police if the callers didn't stop. The agency also
lied to Tran's employer, claiming that he was looking for work with a competitor, that there was a
court judgment he had not paid, and that he was financially irresponsible.
As a result of these events, Tran's employer did not give the plaintiff his annual raise or
bonus. Tran, unrepresented by counsel, brought an action for $15 000 for damages to his
reputation, for humiliation and emotional suffering, and for economic loss. The trial judge found
in Tran's favour and awarded him $25 000 plus court costs.
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Tort Law
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For Discussion
1. Briefly summarize the main issues in this case.
2. How was Tran's reputation damaged from this incident?
3. Tran based his action on three factors: his loss in income; the time he spent daily doing
exercise and meditation to relieve the stress caused by the defendant; and a modest amount
to compensate him for the loss of weight and humiliation caused by the defendant. Although
he felt his damages were about $40 000, he reduced that amount to $15 000 because he did
not want to appear unreasonable. What factors do you think the trial judge took into
consideration in awarding $25 000 plus court costs?
Special Damages: Special damages compensate for out-of pocket expenses already spent
before trial because of the injuries suffered. Although they are not essential, it is helpful to
produce receipts for these expenses. A plaintiff may be hospitalized after an accident, lose
income, and/or pay expenses for ambulance service, drugs, therapy, rehabilitation, car
repairs, and so on. Lost wages between the accident and the trial are also special damages
because they can be calculated exactly.
Punitive Damages: Punitive damages (exemplary damages) are additional damages
awarded to punish the defendant for bad, insensitive, or uncaring behaviour. The intention is
deterrence: to discourage both the defendant and the public from committing similar actions.
However, punitive damages are seldom awarded in cases where the defendant has already
been punished by the criminal courts for the same action. They are most commonly awarded
for intentional torts, discussed in Chapter 12.
Aggravated Damages: Aggravated damages are similar to punitive damages. These
damages are awarded when the defendant's behaviour is so outrageous, it harms the plaintiff.
For example, the plaintiff suffers serious emotional shock or suffering because of the
defendant's behaviour. While punitive damages are intended to punish or deter defendants,
aggravated damages compensate the plaintiff for the defendant's outrageous conduct.
Assume, for example, that a drug company markets a morning-sickness pill that is later
revealed to cause birth defects. If investigation shows that the pill was not adequately tested,
the company could be assessed for punitive damages. If, on the other hand, investigation
reveals that the company executives knew the pill could cause birth defects but marketed it
anyway, the court could award aggravated damages because of the company's outrageous
behaviour.
Nominal damages: Nominal damages are awarded when a -Judge wants to indicate support for
a plaintiff and awards a small sum, such as $1 to $100. Such an award suggests that, although
the plaintiff has suffered little or no loss or harm, he or she has won a moral victory. If, for
example, someone trespasses on another person's property but does not actually damage the
property, nominal damages may be awarded to tell trespassers that they have affected the
owner's right of property use.
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Tort Law
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Injunctions: In a small number of civil actions, the plaintiff is not interested in cash compensation as a remedy. Suppose that Jack and Arnie are band members who rehearse late
each evening at their home. Their neighbours, the Harrises, feel that their right to quiet
enjoyment of their property is being disturbed. The Harrises might ask the courts to prevent the
continuation of late-night
Dunne v. Gauthier 2000 BCSC 1603
British Columbia Supreme Court
The plaintiff, David Dunne, was a school-bus driver who drove the four children of the
defendant, David Gauthier. One November morning in 1996, the children boarded the
bus. One child told Dunne that they would not be taking the bus home. However, at the
end of the day, three of the four children caught the bus. Dunne didn't ask about the
fourth child, a six-year-old boy, nor did the Gauthier children say anything about their
brother. About 60 children were on the bus for the ride home.
Shortly after school dismissal, Gauthier heard a recorded phone message from his
young son, upset about missing the bus. The father then phoned the school and said
he'd break both of the driver's legs if his son was not on the bus when it got home. The
school arranged for a ride home for the boy and called the boy's home with that news.
When the bus arrived at the Gauthier home, however, the defendant entered the bus,
tore the telephone from Dunne's hand, and threw it out the bus door. Then, Gauthier put
his arm around Dunne's neck, twisted it, and forced the driver down while he was
still strapped in his seat belt. Fifteen children were still on the school bus and witnessed this
attack. As Gauthier left the bus, he told Dunne that if he ever saw him on the road, he would
"take" him and the bus "out." Dunne completed his route and then went to hospital for
emergency care. He sued the father for personal injuries, psychological and emotional
problems, and depression, and was awarded $10 000 general damages, $5000 aggravated
damages, $3425 for lost wages, and $1600 special damages.
For Discussion
1. In his defence, Gauthier claimed that the plaintiff's reaction to the assault was unreasonable
and that he shouldn't have been so affected by what happened. What argument could the
plaintiff make to counter this claim?
2. Gauthier also argued that he was broke and couldn't pay any award, even if the court found
in the plaintiff's favour. Should this be a concern of the court in reaching a judgment? Explain.
3. What factors do you think the court considered in awarding aggravated damages?
rehearsals by requesting an injunction-an order for a person to do or not do something. The
courts could respond by issuing a court order to Jack and Arnie, restricting the rehearsals to
reasonable hours.
Similarly, a factory that is dumping its waste into a lake, thus polluting it, might be subject to
an injunction requiring the owners to stop this activity. The most common use of injunctions is to
require striking workers to return to work. Failure to comply with an injunction might result in a
charge for contempt of court, followed by a fine or jail sentence.
Costs
If the plaintiff wins the case, the judge must determine whether court costs will be allowed.
Usually, the losing party is required to pay the legal fees and other expenses of the successful
party. These costs are based on a fee schedule published by the courts and vary somewhat by
province. The winning party prepares a bill of costs and gives it to the losing party for payment.
However, the amount the judge awards may cover only part of the costs, especially for a long
Law 12
Tort Law
Ms. Ripley
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trial in a higher court. The rest might have to come from the award of damages, leaving little for
the plaintiff.
Because of the expense of civil actions in provincial superior courts, a contingency fee
system exists everywhere in Canada except Ontario. This system allows people who cannot
afford to pay legal fees in advance to take legal action. If the client loses the case, the lawyer
receives nothing. If the case is successful, the lawyer receives a fee based on a percentage of
the damages the plaintiff receives. In most provinces, there is no cap (limit), but rules state that
a lawyer's fee must not exceed a fair and reasonable limit. Where provincial limits exist, clients
pay their lawyers between 30 and 40 percent of a successful judgment. Although this may seem
high, it is based on the complexity of the cases tried in superior courts. However, opponents of
the system fear that it will result in too many actions and multimillion dollar lawsuits, as has
happened in the United States.
Enforcing a Judgment
In a civil case, it is up to the successful party to collect on the judgment. The court has no
responsibility to ensure that the losing party-the debtor-pays the damages. The loser may have
little money or may be reluctant to pay. So, being awarded a judgment is one thing; collecting on
it is quite another. However, the following options are available to plaintiffs to enforce payment.
Garnishment
Garnishment is a remedy that involves a third party. If the losing defendant is owed money
by a third party, the successful plaintiff can obtain a court order forcing the third party to
pay the debt to the court. In turn, the court will give the mon ey to the plaintiff as a payment
on the judgment. The third party is responsible only for the amount owed to the
unsuccessful defendant, not for the total amount of the judgment.
Bank accounts, unpaid rent, money owing on contracts, and a portion (20 to 30 percent)
of a defendant's wages can be the subjects of a garnishment order. The percentage differs
from province to province. If the defendant cannot afford to have this percentage of wages
taken, an application may be made to the court to have the amount altered. In most
provinces, a garnishment remains in effect for six months, but can be renewed if the entire
amount is not paid within that time.
Seizing Assets
Another option is to apply to the courts to take legal possession of the debtor's property
and sell it to settle the judgment. The bailiff or sheriff seizes the assets and notifies the
defendant of the seizure. The assets are held for a certain period, to give the defendant an
opportunity to settle the judgment and redeem (get back) the goods. If this is not done, the
goods are sold at public auction. The court deducts all its costs from the sale and then
pays the plaintiff the amount of the judgment, or as much as possible. Any money
remaining is returned to the debtor. Certain goods, such as clothing, furniture, utensils,
and workers' tools, cannot be seized. One difficulty in seizing goods is that it is necessary
to be certain that they belong to the person from whom they are seized.
Examination of the Debtor
If the defendant still refuses to pay, the plaintiff can request an examination of the debtor.
The defendant is ordered to appear in court to satisfy the judge that he or she has the
available resources to settle the claim. The debtor is examined under oath regarding
income, assets, and any money owing from others. An agreement is usually reached as to
how much, if anything, the debtor can afford to pay. Installment payments can be
arranged, if necessary.
Law 12
Tort Law
Ms. Ripley
Review Your Understanding
1. Distinguish between the two main categories of general damages.
2. Why is it difficult to determine what damages to award a young child?
3. Distinguish between special and nominal damages.
4. Distinguish between punitive and aggravated damages.
5. What is an injunction, and when might it be awarded in a civil judgment?
6. What is a contingency fee system? Identify one advantage and one disadvantage of this
system.
7. Briefly outline three remedies available for enforcing a judgment.
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