Page 393, Building Your Understanding
2. Distinguish between a next friend and a guardian ad litem.
 a next friend is an adult who represents a minor who is suing another party.
 a guardian ad litem is an adult who represents a minor who is being sued; in some provinces
these terms are used interchangeably
5. When litigants lose a civil case, what costs are they responsible for?
Litigants who lose a civil case pay any amount the court awards to the other side and all or part of
the other side’s legal costs.
6. Describe a situation where a class action lawsuit might be appropriate.
Class action suits may occur in the following situations
 residents whose homes have been damaged as a result of an explosion at a chemical plant
 consumers who become ill as a result of eating processed meat that contains bacteria
 shareholders in a company whose management misled them about expected earnings
 passengers on a plane that crashed due to mechanical defect or pilot error
Page 400, Newspaper article: “Injury at Edmonton Bon Jovi concert leads to lawsuit”
1. Identify the plaintiffs and the defendants in this lawsuit.
Plaintiffs
 Dennis Schulz, who suffered a spinal cord injury at the concert
 Schulz’s common-law spouse, Hailey Brinn Hartman
Defendants
 four concert fans: Kendra Stasyk, Darryl Allan, Brad McCorry, and Alisa Rabideau
 the concert promoter, Panhandle Productions
 Northlands Park, which runs the Rexall Place venue

2. If this lawsuit is successful, what type of damages might the trial Judge award?
If successful, the trial Judge might award the following types of damages:
a. Pecuniary damages—the loss of future earnings, cost of future care
b. Non-pecuniary damages—to compensate for pain and suffering
c. Special damages—to help pay for out-of-pocket expenses such as drugs and therapy
d. Punitive—these may be awarded if the trial Judge believes the defendant in this case
deliberately assaulted the plaintiff
3. Suppose you are the trial Judge: in what proportions would you assign liability among the various
defendants? (They may or may not share the responsibility equally).
Possible proportions
a. 100% liability divided equally between the four persons involved in the fight
b. 50% liability divided equally between three of the four persons involved in the fight and the rest
on the person who fell on the plaintiff
c. 50% liability on the person who fell and 50% on the plaintiff (voluntary assumption of risk)
d. 25% liability on the person who fell, 25% on the plaintiff and 50% on the concert promoters for
failing to provide adequate security
e. The trial Judge should consider the liability of the friends, (could they reasonably foresee
whether someone could be hurt by their actions), whether the plaintiff voluntarily assumed
some risk by attending the concert, and whether the security was adequate at the concert
Page 401, Case: Honda Canada Inc. v. Keays
1. This case sets a precedent for determining punitive damages. In your own words, write a
definition of the standard that must be met for an action to warrant aggravated or punitive
damages.
For an action to warrant aggravated or punitive damages it must be shown that the defendant
deliberately set out to harm the plaintiff by acting with malice or undue insensitivity.
2. Do you agree with the decision made by the trial Judge, the Ontario Court of Appeal, or the
Supreme Court in this case?
Students who agree with the trial Judge [in awarding $500 000 in punitive damages] might suggest
 it is reasonable that the standard for awarding aggravated or punitive damages should be high
 additional compensation should be awarded to punish employers who act maliciously or who
deliberately set out to harm the employee
 if the standard for awarding aggravated or punitive damages is too high, it may permit
employers to treat employees unfairly with impunity
 employers exercise great power over employees, and the ability to award serious punitive
damages helps to level the playing field
 it is easier for an employee to win an award if he or she does not need to prove malicious intent
on the part of the employer
Students who agree with the Ontario Court of Appeal [in limiting punitive damages to $100 000]
might suggest
 Honda acted in a discriminatory manner to Keays’ illness and there should be some additional
penalty for that
 limiting such punitive damages to $100 000 will prevent plaintiffs from seeking an unreasonable
windfall award
Students who agree with the Supreme Court [no punitive damages in this case] might suggest
 there are already remedies in place for employers who treat employees unfairly or dismiss them
without cause
 Honda did not treat Keays in a malicious or outrageous way
 the ruling will reduce the number of frivolous wrongful dismissal lawsuits if it is very difficult for
the employee to prove malicious intent on the part of the employer
3. This decision was eagerly awaited by corporate managers and employees across the country.
Why do you think this decision was so important?
This decision was important for employers, managers, and employees because it established clear
guidelines on the issue of what constitutes misconduct. Although employees can still sue for
wrongful dismissal, to prove misconduct employers must have demonstrated behaviour that was
untruthful, misleading, or malicious.
Page 404, Building Your Understanding
1. Use two examples to distinguish between pecuniary and non-pecuniary losses in reference to
general damages awarded in a civil lawsuit.
Pecuniary damages include the loss of future earnings or the cost of future care. For example, if a
ballerina was injured in a car accident and lost the use of her leg, compensation would take into
consideration the fact that such an injury would have more impact on the future earnings of a
ballerina than the earnings of a writer.
Non-pecuniary losses are intended to compensate the plaintiff for pain and suffering. For example,
an individual who was severely burned in a fire could be compensated for the pain and suffering
caused by the injuries.
2. What are the differences between general and special damages?
General damages are awarded to return the plaintiff to the position they were in prior to the injury.
They are meant to compensate for losses related to future pain and suffering.
Special damages are awarded to cover specific out-of-pocket expenses such as drugs, therapy, etc.
They can also compensate for loss of income that can be proved was a result of the defendant’s
actions. To receive special damages, proof of expenses such as receipts must be provided.
3. What is the purpose of punitive damages? Provide two examples.
Punitive damages are awarded when the defendant’s behaviour was “reprehensible” or “malicious,”
and are intended to punish the defendant. Examples might include cases of false imprisonment,
libel, or slander.
Page 408, Building Your Understanding
1. Identify and distinguish the three main types of ADR.
The three main types of ADR are
 negotiation—two parties communicate to reach an agreement
 mediation—a neutral third party assists the two parties to reach a shared agreement
 arbitration—a neutral third party expert imposes a binding decision on the two parties
3. On a scale of one to five, with one being the most likely, rate the likelihood of a successful ADR for
each of the scenarios below. Use the following considerations when rating their likelihood of
success, and explain your rationale.
 total losses involved compared with court costs
 desire of both parties for confidentiality
 evidence of breakdown in prior agreements
a) Atousa and Kurt were shopping at a big sale in a crowded store. Atousa slipped on the wet floor
near the exit and broke her ankle. She lost six weeks’ income as a snowboard instructor during
peak season.
It is likely that this case would be settled out of court without the need for arbitration.
Assuming there were no complications regarding the liability of the wet floor, the company
would likely settle. This is not a situation where confidentiality would be an issue. Nor is there
evidence of a breakdown in prior agreements.
b) Mr. and Mrs. Kendall have settled all divorce issues except custody and ownership of their dog,
Max. Mr. Kendall bought Max for Mrs. Kendall as an engagement present. Mr. Kendall walked
Max and paid all the veterinary bills.
This case would likely benefit from ADR. The dispute is not necessarily about financial issues but
is rather an emotional issue regarding who should keep the dog. The cost of going to court on
this issue would be out of proportion to the outcome. Confidentiality may or may not be an
issue for the parties. We don’t know how hard they have tried to settle this themselves. A
mediator would be the best solution to settle this case, but the heat of emotions might lead
them to the courtroom anyway.
c) Mandy hired Big Top Roofers to replace the roof on her 30-year-old house. After she paid for the
job, she discovered that the shingles used were inferior to the quality specified in the contract.
It would likely cost more in legal fees to argue this matter in court than the difference between
the prices of the two types of shingles. Also it is unlikely that Big Top would want the negative
publicity that might result from court exposure. They would likely benefit from ADR.