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REMEDIES

PART I MONETARY RELIEF

I. REMEDIAL CHOICE: INTERESTS AND PURPOSES


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

2. Expectation Damages: Special Issues


Beal, Remedies for Breach 2
• the lost opportunity is assumed
• in order to encourage performance of a contract when that will produce the most “efficient”
use of resources, it is necessary to award full loss of expectation damages even if there has
been no reliance on the K by either party

Vernon, Expectancy Damages 2


• enormous amounts of assumptions: all losses are quantifiable and the parties have full info.
• no deterrent against “efficient breach” b/c of cost of litigation, the aggrieved party may settle
for less than expectancy

R.G. McLean v. Canadian Vickers 1971 OnCA 3-4


Problems with expectation damages/double recovery
• Fundamental Breach and Exclusion clauses
• Purchase Price must be a debit against pl.
• Future Profit no duplication btwn special damages and lost profit (use net)
• Mitigation take resp. for damages incurred by failing to mitigate
Baer, The Assessment of Damages (re: McLean v. Vickers) 4
• machine’s life
expectancy should have been taken into account (longer than 2 years)
• gross v.s. net
profits!
• “best case
scenerio” wrt gross profits was wrong

Toronto Industrial Leaseholds v. Posesorski 4b


• pl. never would have got land (without encumbrance) for what he paid; he expected a piece of
land worth $325,000, so give him the diff. btwn that and what he got ($225,000)
• sued his lawyer b/c he promised unencumbered land

Messeneo v. Beale 4b
• pl. bought land and thought that it included “Merches Point”
• lawyer never promised MP, just did a title search

3. Reliance Damages 5
When are reliance damages awarded instead of expectancy? (1) when ex. dam. are too
uncertain (McRae) (2) when ex. dam. are too great /small; (3) tort claims
What is included (1) only wasted expenses; (2) not expenses where pl. derives benefit (3) pre-K
expenditure in special cases (Anglia TV)
Can Reliance Dam. exceed Ex? NO (Bowlay Logging) bad bargain is the pl’s problem

Ogus, The Law of Damages 5


• losses other than expenses are recoverable (property/service)
• overlaps with restitution interest
• remoteness and forseeability are factors (time and purpose of expenses)
incidental expenses—must be forseeable
expenses after breach—mitigate
exp. incurred bf K—reasonably foreseeable? (Anglia TV)
“perhaps the best solution would be for the reliance interest award to incl. those
expenses incurred from after the time when there was substantial agreement btwn the
parties”
• reliance damages may be the pl’s only claimable damages (profit too remote; exp. too
speculative)

Bowlay Logging v. Domtar LOSS EXCEEDS GAIN 5b-6


• expectation damages are a cap on reliance damages; only nominal damages awarded; real
source of loss was from the bad bargain; reliance damages will not be awarded to put the pl in
a better position than if the K had been performed
• presumption: entire amount assoc. with performing the K is awarded unless the df. can rebut
this; the onus is on the df. to prove the quantum of the pl’s expenditure (capital costs for eg.)

Sunshine Vacation v. The Bay CONTRACT PROFITABLE FOR PLAINTIFF 5b-6


• same as Bowlay except df. was unable to prove losses would’ve been suffered
• pl must claim either reliance (working capital) or expectancy (lost profit) damages (they are
alternatives)
• working capital is recoverable b/c there is a presumption that the business would’ve at least
broke even
Burrows, Remedies
• the pl is always free to claim protection of his reliance interest (wasted expenditures) or lost
profits Cullinane v. British Rema Manuf. Co. Lt.; Anglia TV ; CCC Films (London) Ltd. v.
Impact Quadrant Films Ltd [1984]: “the pl has an unfettered choice”
• but, this will not allow the pl to escape a bad bargain Bowlay Logging
• the burden of proving that the pl has made a bad bargain is on the df CCC Films
• the standard of proof is the balance of probabilities Commonwealth of Aust. v. Amann
Aviation Pty Ltd 1991

Contract and Tort


contract: give the pl. the benefit of the bargain
tort: restore the pl to the position they would have been if the tort hadn’t occurred

NEGLIGENT MISREPRESENTATION
Beaver Lumber v. Mclenaghan 7
• reliance based damages for neg. misr (tort) “man for the job”—casual conversation
• damages must be direct and foreseeable; opportunity costs can be included
• consequential losses: the total amount spent – the acv
Esso Petroleum v. Marsden 6b
• gas locale problem
• opportunity costs = living wage
• out of pocket expenses were recoverable
V.K. Mason v. Bank of Nova Scotia 7
• bank gave express assurance re: financing
• reliance + lost profits awarded as Mason would have made profit elsewhere (ct did not want
to call it expectancy….)

Rainbow Caterers v. C.N.R. 8


• df. did not prove that pl would still have entered K even w/out neg. misr. and would have still
lost money (sloppy business practices)
• onus is on pl to est. on b’of p’ what position s/he would have been in had the neg. misr. not
been relied upon
• dissent must be causal link for damages; look at proportion of losses caused by neg. misr.

D. Restitutionary Damages 7b
Remedies for Restitutionary Damages
recission K is over
quantum meriut “for what it’s worth” benefit in nature of goods/services…what are they worth?
accounting
constructive trust
restitution disgorge benefit

Issues in Res. Dam


(a) Net Profit Peter Pan 9
• misappropriation of confidential bra trade secret
• pl was granted the df’s net profit (revenue of sales – material/ labour costs)
• not obvious that df. should have disgorged entire profit if it is a fact that they would have
been making very similar product without the info (diff from Seager where the info stolen was
special)
(b) Apportionment Edward 8b
• 30% of df profits given to pl b/c pl owned 30% of the property that df’s tourist attraction was
situated on
(c) Savings Whitman 8
• damages were measured by what the df saved by trespassing and dumping soil on the pl’s
land (only 200 in damage to land, but df saved 750, so award was 950)
(d) Opportunity Costs
Strand 9
• damages were the reas. (fair value) rent for the period of wrongful detention of the portable
switchboards
Wrothman 8
• destruction of houses refused as this would be waste, so damages assessed at the reas. amount
the pl would have demanded for relaxing the covenant (% of profit)
Seager 9
• value of trade secret (invisigrip carpet grips) considered what a willing buyer desirous of
obtaining the info would pay for it…once paid, patent belongs to the df (not what the df
saved, what the pl would have charged…is there a diff?)
(e) Punitive
Whitwham v. Westminster Brymbo Coal and Coke Company 8
• df had to pay for what he saved for dumping soil…pl received windfall
Wrotham Park Estate Co. v. Parkside Homes Ltd. 8
• houses not torn down….was it worth it to breach?
• court didn’t see them as “bad guys” (unlike Townsview)
Note on Surrey County v Bredero
• df built 77 rather than the permitted 72; argument that the pl’s bargaining opportunity was lost
was rejected by the court and nominal damages only were awarded
• distinguished Wrotham and said that the present case was a K case, not a case dealing with
resitutionary damages; later Eng. CA held that Wrotham was right and was decided on
compensatory, not resitutionary principles
Strand Electric Co. v. Brisford Entertainments Ltd. 9
• no damage done, therefore no loss, but rent had to be paid
• the df only had to pay rent…was this fair? is it merely a licensing fee?
Peter Pan Manufacturing v. Corsets Silhouette Ltd. 9
• pl was entitled to all the df’s profit
Seager v. Copydex, Ltd. (No.2) 9
• df got to keep the patent….is this punitive? maybe if they had made use of the info, that
would be the same as Peter Pan
Tonwsview Properties v. Sun Construction Co. Ltd. 10
• df saved $7-11,000; award was characterized as $479.33 for special damages (soil testing) and
$5500 for punitive (inexcusable and unwarranted trespass on the p’s property)
• Cassels says that it is a mistake to call the damages punitive b/c there was no element that was
compensatory…but since judges call them punitive, go with it
• unspoken variable: how courts view wrongdoing: court saw them as “bad guys” (unlike
Wrothman)
Austin v. Rescon
• damages were assessed as the $30, 000 that the df saved for unauthorized trespass on the pl
property to anchor rebar and complete construction project…but this is restitutionary as it still
makes sense to do it again, they only lost what they saved

Valuation Issues in Restitution (Unpaid Work and Civil Litigation) reserve

E. Exemplary /Punitive Damages


• Concerns re: Punitive Damages Cassell & Co Ltd v. Broome 9b
a) lack of due process
b) evidentiary/Charter provisions do not apply
c) social purpose is to punish and express outrage, after pl has been fully compensated (fines for
criminal conduct go to the state)
d) no specific amounts (unlike crimes)
e) retroactivity
f) rule of law concern people know what/when an offence has occurred; “end run” around
Criminal Code’s statement that there are no more CL offences

Wallace v. United Grain Growers 10-11


• DISTINCTION BTWN AGGRAVATED AND EXEMPLARY DAMAGES
(1) agg. dam are still compensatory whereas punitive or ex. dam. are not linked with
compensation, they are available when the df. is malicious and motivated by profit
(2) if the df acts in a bad way that aggravates the injury, then aggravated damages are appropriate
(3) punitive damages go way beyond compensation;
(a) tort: any one that is “way over the top” and intentional torts
(b) negligence not usually available b/c moral attitudes are involved; unless it is so high-
handed , so without regard for pl’s welfare that neg. is morally blameworthy
--Robitaille v. Vancouver Canucks 10b
• hockey player who said he was too hurt to play, coach made him
• coaches actions were so high-handed and arrogant with such a disregard for his
duty of care that punitive damages were awarded
--Grimshaw FORD pinto case
--Doctor recommending unnecessary surgery just because s/he was interested in it
(c) contract virtually unavailable, unless special notice has been given that the pl attaches
special value to the subject matter
--Kempling v. Hawthstone Manor 10b total disruption of life style, df knew that she was
banking everything on the condo purchase
EMPLOYMENT CONTRACTS
Wallace SCC 11b
1) no non-pecuniary damages for wrongful dismissal as em’ee em’or relationships are
purely economical and impersonal (Addis) unless the dismissal is independently
actionable (Vorvis)
2) good faith/fair dealing are not implied terms of employment K’s, piece of mind is not
K’d for
3) bad faith dismissal may give rise to an increased notice requirement
-is this “category confusion”? sounds like punitive damages
-is this fair? is “executive mental distress” more valuable
-is dignity measured by salary
should it be confined?
(a) confuses function of civil law with criminal law
(b) assessment by juries who are easily swayed by emotions
(c) more than one def
II. LIMITING PRINCIPLES
A. Remoteness
H. Parsons (Livestock) Ltd. v. Uttley Ingham 12
• “common sense” was all that was needed to see that damage was foreseeable (ventilator not
open, pig food got moldy, pigs got sick)
• Breach of K were the consequences within the contemplation of a reasonable man at the time
the K was made?
• Tort were the consequences reasonably foreseeable by a reas. man at the time the tort was
committed? (lower for tort)
• economic loss time of the K
• physical damage time of breach

Kienzle v. Stringer 13
• causes which are reas. foreseeable and caused directly by the df’s actions
• policy concerns are an obvious consideration in whether the ct will determine whether
something is foreseeable
• secondary transactions are too remote, unless disclosed

Cooke, “Remoteness of Damages” 13


FACTORS TO CONSIDER wrt REMOTENESS
a) how likely is the action to cause the harm?
b) are there intervening factors?
c) what is the nature of the damage
d) how blameworthy is the df? was it deliberate?
e) did the df have a reas. opportunity to limit his liability on an agreed term?

B. Certainty and Causation


Schrump v. Koot 13b-14
• once you have est. tha the party has suffered the damage, you’ve proven the tort; but you must
prove on a balance of probabilities that a future event will occur
• causation is proven on the balance of probabilities
• assessment of damages: only necessary to prove that there is a reas. chance of such loss or
damage

Farrell v. Snell 14
• the onus is on the plaintiff to prove causation and the degree of certainty
• shifting the burden to the party with more knowledge (doctor) is not justified; the legal or
ultimate burden remains with the pl.
• not necessary to have a positive medical opinion to support a finding of causation
• scientific precision is not the standard, balance of probabilities is.

LOST CHANCES—The problem with contingencies


Chaplin v. Hicks 13b
• pl lost her 1/12 chance of winning a beauty pagaent b.c she was not informed that she was a
finalist; on the balance of probabilities, this is not enough, but she did lose her chance of
winning and this has value
Conklin v. Smith 13b
• pl compensated fo lost chance (as lost earnings) of becoming a commercial airline pilot
Laferriere v. Lawson 15
• no damages recoverable for lost chance b/c the lost chance had no concrete value/benefit (she
would die of cancer in any event)
• got damages for psyc. suffering and quality of life
Safefurt v. Burnaby Hosp 14b
• damages awarded to compensate for pl’s lost chance of avoiding surgery

Sunrise Co. v. The “Lake Winnipeg” 14b-15


• no damages b/c the boat was already on its way to the dry dock for 27 days, the 14 days that
the 2nd incident caused made no difference and did not add to the time docked.
• dissent: apportionment should be used, 7 days for each of the 14 days required in dry dock for
the second incident

Bhopal, Materials on Causation 14b


eg: exposure to toxic chemicals…how do you prove causation when there lots of intervening
factos (smoking, cancer…) probabalistic damages tools: if you can prove a 40% chance, give
40% damages
• economists like this b/c it gets the numbers right and acts as a deterrent
• moral theorists don’t as it does not do individualistic corrective justice as you may pay for
damages that you haven’t caused
C. Mitigation
Valuation of Chance of Avoiding Loss
Janiak v. Ippolito 16
• apportionment as
pl had an unreasonable extrodinary fear of surgery and should have mitigated by
having the 70% success rate surgery (not complete bar as this is “thin skull” stuff)
• Once it is est. that
there is a pre-existing condition THIN SKULL (threshold)
(a) timing (if not pre-existing, then normal rules of causation apply)
(b) nature of the pre-existing psychological infirmity
• If there is
conflicting medical opinion no duty to mitigate by consenting to treatment
McGrath v Excelsior Life Ins Co
• the def. bears the
burden of proving that the pl should have mitigated

Elloway v. Boomars: pl not resp. for worsening his condition b/c his psychosis
(schizophrenia brought on by the accident, but pre-existing disposition) was a factur in
his refusal and failure to mitigate

MITIGATION APPLIED 16b


property damage: repair quickly; no payment for reas. avoided losses
wrongful dismissal: get a job
sale of goods: buyer: diff in price; goods price calculated at time of breach, so expected to enter
marked @ first reasonable opportunity
seller: diff in price at time of breach v.s. time K entered into (only when it is
possible to sell the goods)

Defining Avoided Loss

Erie County Natural Gas v. Carroll 17


• only nominal
damages awarded as pl secured other gas supply and did not suffer loss
• “but for” the
behaviour of the dfs would the pl have entered into the subsequent transaction? if
no, then you should be able to show causation; if yes, then Apco applies and you get
damages + you get to keep your profits

Apco v. Windmill Place 17


• not mitigation if
the seller has the capacity to do subsequent transactions as well as the K that was
breached, so damages awarded and pl gets to keep profits from sub. transaction

Cockburn v. Trusts & Guarantee Co. 17


• pl wrongfully
dismissed and flipped co. assets and made a profit.
• profits realized
arose out of the pl’s relations with the df and therefore only nominal damages were
awarded since the pl suffered no loss; so the pl went beyond what was expected and
this success was held against him

Jamal v. Moolla Dawood Sons & Co. 18


• the time of
valuation of shares is the time of the breach; any decision to hold on to the shares
after this is at the risk of the seller
• the second sale
was not a mitigating transaction…may have done this anyway

Campbell Mostyn Ltd v. Barnett Trading Co 18


• Jamal applies to
sale of goods cases if there is a marker for the sale of such goods
• damages= diff
btwn K price and price at date of breach

.
Slater v. Hoyle & Smith Ltd. 66 of text book
• sale of goods
case—cotton
• purchaser
received inferior goods, and lost he diff in the two values, and “it seems to me
immaterial that by some good fortune with which the pl’s have nothing to do, he has
been able to recoup himself what he paid for the goods, thus the K price was not a
factor.

Apeco v. Windmill Place 19


• wharehouse was
not fully occupied, subsequent tenant could’ve rented other space (other than the df’s
K’d space)
• subsequent
transactions are only considered avoided loss where demand exceeds supply; the
subsequent transaction would’ve been additional revenue, not merely mitagatory

Karas v. Rowlatt 19

D. Time of Assessment
Jamal v. Moolla 18, 19b
• time of assessment is time of breach
• policy decision based on fair risk allocation (the pl bears the risk of post-breach price
fluctuations)

Asamera Oil Ltd. v. Sea Oil & General Corp et al 20


• pl had a duty to mitigate as soon as was reasonable for him, from a commercial point of view,
to do so
• unreasonable to expect him to mitigate at time of breach (adversarial rel’p with df; rapid drop
in shares; existence of the injunction)
• specific performance not granted b/c shares are fungible

Dodd Properties v. Canterbury City Council 21


• no obligation to mitigate as long as the def. is denying liability; financial stringency: pl
couldn’t afford to mitigate if they couldn’t be assured the def. would pay for it doesn’t this
absolve mitigation???

Wroth v. Tyler 21
• pl were not required to mitigate at time of breach b/c house was not replaceable, the pl were
already financially maxed out and they were maintaining a legitimate claim for s.p.
Semelhago v. Parmadevan 22
• duty to mitigate at time of breach with real estate purchases….homes are now considered
“fungible” (cookie cutter)

Jens v. Mannix Sarah’s notes


• full cost of repair to time of breach b/c court does not want to award increased cost o repairs
due to delay (even though waiting to see if the smell went away might have been reas.)

E. Measurement Issues: Reinstatement or Diminution


Summary of Factors
1. Nature of the plaintiff's interest in the property
- commercial investment? C.R. Taylor (Wholesale) Ltd. v. Hepworths Ltd. (1977)
- for consumer use? consumer surplus? Jens v. Mannix Co. (1978)
2. Relative economic benefit and reasonableness: the smaller the difference between reinstatement
and diminution, the greater the chance of getting reinstatement. Williamson.
3. Availability and adequacy of substitute (chattels)
4. Intention of plaintiff to devote funds awarded to replacement/repairs/substitute performance?
undertaking?
5. Is specific performance available? Claimed by the plaintiff? [Evidence of intention]
6. Has work already been paid for by plaintiff? Evidence of what it was worth to the plaintiff
7. Economic waste? would performance require demolition of work already completed?

Damage to Chattels: cts generally deny repair costs that exceed the value of such fungibles
CAR Dewess v. Morrow 23
• the pl was
entititled to the fair value of the car just b4 it was damaged
O’Grady v. Westminster Scaffolding Ltd. 23
• full cost of
repairs granted b/c this was a unique car with sentimental value, he could not replace
it, it was meticulously maintained
• no danger that he
would pocket the money, he had already spent some of his own money on repairs
• consequential
loss rent a replacement car…but he rented it for too long and this was a mitigation
issue
Darbishire v. Warran 23
• b/c this was not a
special car, unreasonable to pay for cost of repairs

Real Property Damage: cost of repairs awarded b/c property is not really fungible (commercial
uniqueness, subjective attachment, objective value)
C.R. Taylor Ltd. v. Hepworths Ltd. 24
• minimal
diminution value b/c pl had no intention to even rent out property, the fire put him in
a better position, b/c the billiard hall was on a development site
• factors:
commercial property; no attachment by pl; no intent to spend own money
Jens v. Mannix Co. 24
• house saturated
with crude oil; pl. given full cost of repairs (up until time of breach as delay was
unwarranted –could argue that waiting to see if the smell went away was a good ide)
b/c they had lived on the lot for many years, and could not afford a residential lot
large enough to accommodate a house and their “car museum”
• factors: pl was
old, poor and df was big oil co. (even though impecuniocity is generally not a factor
—people should have insurance)
Kates v. Hall
• df cut down 13
trees diminution almost zero, but cost to reinstate (like sized trees) $200,000; pl does
have reasons for valuing trees
• $2,000.00/tree in
punitive damages (tempting to make df plant trees, but courts don’t want to get into
supervision of slavery)
Betterment repairs increase the value of the chattel
Harbutt’s Plasticine v. Wayne Tank 26
• cost of
replacement b/c pl had no choice but to rebuild the factory right away (keep their
business going), and betterment should not be deducted b/c the new design did not
go beyond the cost of replacing the old factory (Denning) and this can not be
credited to the df’s b/c this would be forcing the pl’s to pay for modernization that
they might not have intended or required but for the df’s negligence (Widgery)
James St. Hardware v. Spizzirii 27
• take betterment
into account by deducting from damage award any windfall portion/increase in value
of goods, but add back on sum representing opportunity costs of capital
deduction/investment df’s actions forced the pl to make

Breach of Contract concern re: unjust enrichment


Posner, Economic Analysis of Law 29
EFFICIENT BREACH: in some situations, it is more efficient to breach, awarding the
cost of performance encourages the wasteful completion of K’s
Radford v. DeFroberville 28
• pl awarded cost
of building wall as, df promised to build stone wall as part of purchase piece of
property on pl’s land
• pl suffered no
financial loss, but allowing df to get away without building wall is like allowing the
df to steal the price of building it unjust enrichment
• pl bears burden
of proving value of loss
Groves v. John Wunder Co. (MinnSC-not followed in Okla) 28
• cost of
performance is available for commercial/industrial property (level the sand quarry);
thus, the pl was given the cost of getting what he bargained for.
• to require the df
to only pay diminution would encourage willful breach
• dissent: purpose
of damages is to compensate for loss, not to punish for breach, thus diminution
should be the value
Miles v. Marshall 169 text book
• claim by landlord
for damages for breach of a tenant’s obligation to surrender the premises in good
repair
• damages were
limited to the actual loss sustained by the landlord; diminution of the value of the
property by reason of the non-repair
Ruxley Electronics v. Forsyth 28b
• damages: how
much money would it take to make the pl indifferent between a pool that is 9 inches
too shallow, and cash in pocket?
• factors df did not
benefit from unjust enrichment and if df were forced to pay the entire amount of
having the pool redone then the pl would have a windfall gain (really?)
III. DAMAGES FOR PERSONAL INJURY OR DEATH
A. Approaches to Compensation
Introduction
Ontario Task Force on Insurance 486 CB
• the “Insurance-Deterrence Dilemma”—modern liability insurance, are we subsidizing
dangerous behaviour
• judges may try to find fault where none exists just to ensure that injured people are looked
after
• why is it not a deterrent? most injured people do not sue, it takes forever when you do, there is
no rel’p btwn the severity of the sanction (damages award) and athe degree of “fault”; the
wrongdoers do not pay, their insurance co.’s do; premiums just go up years later
• Torts and Compensation: if no fault is found, then no compensation is granted (58 yr old
milkman who couldn’t even pay to have someone turn him over a few times a day); only 1/3
to ½ of accident victims are compensated; there is enormous delay (2-13 years; Teno v.
Arnold took 9 years!); it is uncertain and unpredictible, somewhat like a “lottery” (whether
one is lucky enough to be injured by someone whose conduct or product can be proved faulty;
whether the party’s ins. limits are sufficient to pay; whether one’s own innocence or faulty
conduct can be proved; whether one is lucky enough to retain a lawyer who can exploit all the
vairables before an impressionable judge or jury, including graphically portraying whatever
pain one has suffered); finally the expense: a laarge portion of every premium dollar is eaten
up by the transaction costs of the tort-insurance system
• No-tort v.s No-fault: compensation is no fault, but penalty rating and premium pricing will be
dependent on fault; availabililty of additional income replacement benefits; for all accidents;
for all injury

Klar “New Zealand’s Accident Scheme” 495 CB


• the legislated program, the accident compensation bureaucracy, has become inflexible and
insensitive and too insurance oriented—and reform has been taken away from the courts and
put in the hands of politicians and bureaucrats.
• Canada has increased wrt to “patient’s and prinsoners’ rights”as a direct result of litigation;
courts have ben able to expand and contract liability, to recognize new needs, to set new
standards, and to recognize new economic realities.

Woodhouse “A Challenge to the Law” 497 CB


• more than 60 years ago, Canadian’s appreciated that the problem of industrial injuries
involved not legal but social issues, and swept away the CL action for damages and instituted
the Worker’s Compensation scheme. This state monopoly ensures that there is an optimum
rel’p of cost to benefits and a compensation function with a regulatory system to deter some
types of hazardous workplace behaviour

Weiler, Reshaping Worker’s Compensation 498 CB


*
Automobile Insurance 510 CB
• MVA account for 25-30% of all pers. injuries
• not surprising that provinces have legislated some form of no-fault benefits (Quebec:right to
sue in tort for pers. inj. has been abolished and fixed entitlements have taken their place; Ont:
partial no-fault scheme: right to sue is reserved for very serious injuries) and compulsory
liability insurance

Law Commission, Personal Injury 515 CB


• most accident victims are not compensated
• delay in the litigation process (financial effects of this)
• rel’p btwn injury effects and damages…not consistent or rational
• the failure to return to work and adequacy of damages: few victims realize how little they
have received to compensate for lost income.
• the need for independent financial advise
• the burden of unpaid care “in-kind services”

Dewees, Duff, Trebilcock, Exploring Accident Law 519 CB

• emperical evidence has convinced us that a single instrument, the tort system, cannot
successfully achieve all the goals claimed for it
• the tort system performs so poorly in compensating most victims of pers. inj. that we should
abandon tort as a means of pursuing this compensation objective
• the tort system performs unevenly in deterring the causes of pers. inj, so its scope should be
restricted to situations where its effect seems likely to justify its high cost
• the regulatory system has achieved varying success in reducing per. in dump it where it
doesn’t work, expand where it does
• compensation systems can create substantial deterrent incentives through risk rating of
premiums and through the design of benefits to reduce moral hazard problems
• accident costs should be internalized to classes of activities and to individual actors
• compensation in MV and medical malpractice should be dealt with by no-fault: risk –rating of
premiums, elimination of non-pec. damages, deductibles for short-term pecuniary loss, wage
loss replacement, medical and rehab costs
• workers comp should be retained for workplace injuries but lose product liability suits

B. Personal Injury Damages Assessment


Introduction
Andrews v. Grand and Toy Alberta Ltd.

Notes
Non-Pecuniary Losses
Lindal v. Lindal

Notes and Questions


Loss of Earning Capacity
Teno v. Arnold

Andrews v. Grand and Toy

Thornton v. Prince George

Duration and the Problem of Lost Years


Semenoff v. Kokan

Future Care, Overlap and Contingencies


Notes
Penso v. Solowan and Public Trustees
• 20% - any more requires “unusual factors”
Andrews v. Grand and Toy 20%
Thornton v. Prince George 10%
Lewis v. Todd 0%
Conklin v. Smith 20%
City of Calgary v. Houle CA: future earnings reduced by 20% contingency: pl might
take advanced education and get paid more because of his inability to do most
types of manual labour (which is all the “poor white trash” kid had a hope of
doing before the accident----- see children’s section )
Discount Rates
Lewis v. Todd

Taxation
The Queen in Right of Ont. v. Jennings
• life expectancy reduced from 22 to 5 years; permanent hospitalization and
unconscious
• no deduction for income tax because to assess the incidence of income tax
would unduly preference the def. and the ins. co.
Notes
Collateral Benefits
Intro
Boarelli v. Flannigan
• pl receiving welfare while unemployed as a result of a MVA
• held: welfare payments are benefits provided to persons in need…there is no
difference between welfare payments and private or public benevolence
• employment insurance is also not deductible
• collateral benefits pursuant to collective bargaining agreements or private
contracts of employment are also not deductible as they are = to private insurance
(Raclos et al. v. Neumann was not approved where sickness and accident benefits
were deducted
Ratych v. Bloomer
• cop hit by an impaired driver receives wages for 3 ½ months while he was off
work (pursuant to a collective bargaining agreement)
• compensation is the underlying principle in the law of damages. An injured
party is entitled to receive full & fair compensation, calculated to place him in the
same position as he would have been had the tort not been committed
• actual losses are recoverable, and the pl. must prove these losses; if no actual
wages are lost, they are not recoverable or else this would be double recovery
• wages paid pursuant to a contract of employment are not = to private
insurance proceeds and are not an exception
• if pl. pays for the policy, it is like priv. ins.; situtation might be different if the
pl. has given up a benefit in exchange for the wages
Nanji v. Habib
• MVA resulting in the pl’s whiplash (“pl was highly susceptible to pain”—nice
thing to say!); pl was off work for several mos.
• as a gov’t employee, she received disability payments and therefore suffered no
wage loss
• she paid ½ of the premium and her employer paid the other ½
• distinguished Ratych and said that disability benefits were like insurance and
therefore not deductible (applied Davis v. Wyatt)
Carde v. Gray
• MVA, pl was paid 19 weeks of sick pay and 3 weeks of holiday pay
• benefits were not deductible as the pl. suffered the loss of a future right to sick
benefits and was not on a holiday when he received his holiday pay
• referred to Ratych and concluded that McLaughlin intended a further exception
to the gen’l “double recovery rule”: if an employee can est. that s/he has suffered a
loss in exchange for wages, they should be compensated
Carano v. Brooks
• MVA, short-term weekly indemnity benefits received from the Employees
Benefit Assoc. (the fund consisted of deductions from wages rather than existing as
a scheme of ins.)
• held: deductions were to be made to prevetnt double compensation. This was
insurance, the assoc. had the right to be repaid and therefore the assoc. had the same
subrogation rights as that of an ins. co.
Cooper v. Miller; Cunningham v. Wheeler; Shanks v. McNee
Cooper: disability benefits pursuant to a collective agreement; no deductions from pay,
but made up part of hourly wages
Cun’hm:long term disability benefits—sub.clause; em’ee and em’er paid premium
short term disability benefits—no sub. clause; no payroll deduction
Shanks: short/long term benefits provided by collective agreement—30% payd by
employee (payroll deduction) 70% paid by employer
• Cooper and Cunningham appeals allowed and Shanks appeal denied because the
benefits were seen as a private insurance policy. Collective agreement benefits are
not deducted because they are bargained for and were obtained by a decrease in the
hourly pay
• deductions from hourly wage will result in a finding that the benefits were
in the nature of a priv. ins. policy

Fatal Injuries and Third Parties


Keizer v. Hanna

Mason v. Peters

Notes and Questions


Capacity or Wage Loss
(a) lost chances
Conklin v. Smith
 MVA, pl loses
leg, wanted to be a commercial airline pilot
 Trial: $65,000;
CA: reduced to $2,500 b/c he may not have made it as a pilot
 SCC: restored
TJ’s amount as pl had shown academic excellence bf and after the accident,
had health qualifications and therefore had a reasonable probability of
becoming a commercial air line pilot
Hearndon v. Rondeau
 MVA resulting in
pl suffering brain damage, which impaired his memory, caused headaches,
depression and mood changes; lost chance of becoming a commercial
helicopter pilot. Was a sawmill worker, but at the time of the accident had
logged 40 flight hours.
 $200,000.00 for
lost chance—although the pl. had formidable hurdles to overcome in order
to obtain a commercial license & although it was unlikely that he would
have achieved his goals, there was not conclusive reason why he would
not have achieved his goal .
(b) Children
Teno v. Arnold
 infant pl:
$54,272.00 for future income
Wipfli v. Britten
Houle v. City of Calgary
 child climbed
over fence and into electrical transformer & suffered severe electrical burns
and lost arm below elbow(transformer was in a residential area, close to a
school and now obselete)
 action allowed
against city (noticed problem in 1975 but did nothing), but dismissed
against landowner (had no control over the situation)
 the principle “no
duty to a trespasser” does note apply to an alluring and dangerous activity
(alluring ferns?). Thus, child was not contributorily negligent b/c he was
acting like a child of like age, intelligence and experience.
 considering that
he pl. came from a broken home with a low family income and a large # of
siblings, the Ct concluded that the pl would’ve been in an unskilled
occupation. Difference between what he would have made and is now
going to make $96, 353.00
 CA: contingency:
pl might take advanced education and get paid more because of his inability
to do most types of manual labour, so, loss of future earnings reduced by
20% (“poor white trash” kid….see the section on children to see why I
would write this)
(c) Voluntary Underemployment
Blackstock v. Patterson
 female pl. ½ way
through teaching cert., now permanently unemployable
 TJ: $41,000.00
awarded for lost wages; 20% contingency and deductions for poss. of
marriage and other reasons she might not work
 CA: TJ
duplicated several contingency factors and deducted money for the
probability of marriage even though there was no statistical evidence to
support such a deduction and made other deductions that were not
applicable considering his finding that the pl. would have worked most of
the time….$410,000 was too high, but deductions were too much, so
$360,000.00 awarded
Turenne v. Chung
 pl, the teaching
nun, gave all her money back to the poor poor church (how much money
does the Vatican have?…why is it that the women have a “vow of poverty”
(I thought that just came with the ovaries…)
 held: it is basic
that a person could do, what he or she wished to, with his or her earnings
Varkonyi v. C.P. Rail

(d) Depressed Awards Due to Gender and Race


(i) gendered and racialized assumptions: level of earnings
Toews v. McKenzie
• female pl in
MVA, left without the use of her arms, hands or legs; not
contributory negligent as the driver was “dominant” over her and
she was under compulsions to be in the car (even though he was a
speeding drunk)
• of the
$431,924.00 in damages, only $10, 608 was for loss of earnings
(….she was 17, that’s $221.00 a year….12⊄ an hour for the rest of
her life…nice!)
Teno v. Arnold
• 4 ½ year old pl
would make above poverty line…but 20% contingency b/c the pl
may have sought to live on welfare or marry.
Penso v. Sollowan
• loss of future
income for woman with short and inconsistent work record; severe
head injury resulting in defective IQ, communication problems,
coordination, gait and balance were poor
• TJ: prior to
accident, she was supported by her male CL spouses; 70%
contingency deducted from future earnings as ct thought she only
needed to live at the poverty level
• CA: in the
absence of unusual factors, no more than 20% should be deducted
for contingencies
(ii) duration: contingency that pl would have married
Caco v. Maple Lodge Farms Ltd.
• pl was employed
as an x-ray tech. and was permanently disabled as the result of
spinal injury; life expectancy was reduced from 50 yrs to 35-40
yrs; needs constant personal care, unable to work or enjoy social
life, sevre pain, depression, muscular spasms…could only walk
with difficulty in a crouched position
• held: her gen’l
damages should not be calculate on the basis of her futuer income
as an x-ray tech as, had she not been injured, she would probably
have married and ceased working
Quick v. Nicholls
• MVA, female
plaintiff suffered severe whiplash and arm pain (although doctors
couldn’t explain why she was in so much pain, sounds like the lady
was really suffering!)
• only other job
that she had held was helping out at the hardware store that her
hubby operated, he was going to get her a job at Canada Post
(nepotism is a beautiful thing). Evidence was that in Victoria,
there is a never-ending need for casual help.
• held: she does not
have a proven track record of continuous employment outsinde the
home….she would likely not work till 65 b/c she would want to be
with her family and husband. Further, her pre-existing back
problems would prevent such long-term employment ($75,000.00
awarded (she wanted $137, 242))
Lang v. Porter
• pedestrian MVA,
pl was 20 years old with limited education, working as a labourer;
b/c of accident, was unable to perform physical work for the next
45 years
• $75,000.00
awarded (what about the probability of him getting married??…
plumbers do marry rich female lawyers you know)
(iii) duration: contingency that pl. will still marry
Penso v. Sollowan

Clarke v. Clarke

(iv) duration: early retirement


Boughey v. Rogers

(v) systemic discrimination


(A) gendered statistics

(B) racialized statistics

(e) Countering Bias


(i) positive assumptions as contingencies
Oppen v. Johnson Estate

Olah v. Groedecke
• the inability of the pl to show a past history of employment did not preclude
her from claiming compensation for loss of future earning capacity

(ii) Lost family income


Blackstock v. Patterson

Reekie v. Messervey

Newell v. Hawthornthwaite
• the pl’s future
earnings will be modest and will be made in a “sheltered
environment”
Tucker v. Asleson

Toneguzzo-Norvell v. Burnaby
• doctor
negligently cut off oxygen supply to infant during birth resulting in
severe brain injury
• life expectancy is
now 18 years, so all income earning years were lost years
• estimate of
present value of a stream of income from 19 – 65 years old for a
woman with post secondary non-university education (but reduced by
½ for expenditures)
(iii) Lost Household production
(A) enhanced awards for cost of care
Waterhouse v. Fedor
• pl. required extra help b/c her child was hyperactive; cost of psych.
counseling, homemaker services, companion services, also required
• evidence that marriage would break up and there fore would need extra cost
of homemaker
• $100,000 for lost future earnings, even though she had limited work
experience and had stayed at home—there was a reasonable possibility that
she would have been able to earn income in the future

Busche v. Connors

(B) express valuation of non-market capacity


Quick v. Nicholls

Kwok v. B.C. Ferries

Fobel v. Dean

(f) Countering Systemic discrimination


(i) improved earnings as a positive contingency
B. v. H.

(ii) gender and race-neutral statistics


Tucker v. Asleson

MacCabe v. Westlock

PART II: EQUITABLE REMEDIES

IV. INJUNCTIONS
A. Introduction
B. Quia Timet Injunctions and the Problem of Ripeness
Fletcher v. Bealy

Palmer v. Nova Scotia Forest Ind.

Hooper v. Rodgers

Notes and Questions


C. Mandatory Injunctions: Definitions and Supervision
Redland Bricks v. Morris

Notes Questions and Problems


D. Injunctions to Protect Property Interests
Introduction
Goodson v. Richardson

Wollerton and Wilson v. Richard Constain Ltd.

John Trenberth Ltd. Nat. Westminster Bank

A Note of Post-Judgment Bargaining

Alternatives to Injunctive Relief

E. Nuisance
Miller v. jackson

Sharpe, Injunctions and Specific Performance

Boomer v. Atlantic Cement Co. Ltd.

Spur Industries Inc. v. Del E. Webb

F. Domestic Violence and the Family Home


An important use of the injuction is to prevent violence, particularly in the demestic situation.
Duggan v. Duggan [1965] Ont.
• in the situation where the husband is the legal owner of the houe, the wife’s
equitable interest confers upon her the right to stay in the home, but not to exclude the husband
unless he has been guilty of desertion and cruelty and is likely to drive her out of the home, thus
“bullyin her out of her rights”
B.C. Family Relations Act
s. 77: a court may order that one spouse be given exclusive occupancy of the family residence
s. 79: a court may restrict contact by ordering that one spouse shall not enter premises while the
premises are occupied by the other spouse or a child in the custody of the other spouse
Hock v. Hock (1995) B.C.S.C.
• no violence, but hubby moved in after the couple separated without the wife’s consent. The court
held that the presence of the df. was so upsetting and traumatic to the children and the pl. that pl,
wife, should have exclusive occupation
Criminal Code
s. 810: allows an information to be laid (no formal charge is required) before a justice of the peace
by or on behalf of any individual who, with reasonable grounds, fears another person will cause
personal injury to him or her, or to his or her child; the person will be ordered to enter into a
recognizance to keep the peace and be of good behaviour and comply with other reasonable
conditions

G. Criminal Equity: Injunctions to Protect Public Rights


The Role of Attorney General and the Courts
Gouriet v. Union of Post Office Workers

A.G. Alberta v. Plantation Indoor Plants Ltd.

A.G. British Columbia v. Couillard

A.G. of Nova Scotia v. Beaver

Public Rights Injunctions in Labour Matters

The Role of the Individual: Standing


Problem

V. INTERLOCUTORY INJUNCTIONS
A. Introduction

B. Accessibility Threshold
American Cyanmid v. Ethicion

C. Irreparable Harm
Mott-Trille v. Steed

Hunt v. Canada

D. Special Situations
Films Rover v. Cannon Film Sales

Cantol Ltd. v. Brodi Chemicals

Canada Metal Co. v. C.B.C.


E. Undertakings
Viewegar Construction v. Rush

F. Mareva Injunctions
Development and General Principles
Mareva Compania v. International Bulkcarriers S.A.

Aetna Financial Services Ltd. v. Feigelman

1) Introduction: The Established Rule


2) The Problems
3) Lord Denning to the Rescue: the Mareva is Born
4) Post Mareva Jurisprudence: English Developments
The Siskina

Third Chandris Shipping Corp. v. Unimarine S.A., The Pythis

5) The Reception in Canada


O.S.F. Industries Ltd. v. Marc-Jay Investments Inc.

Liberty Nat’l Bank & Trust Co. v. Atkin

Cdn Pacific Airlines v. Hind

6) Post Aetna: Availability within Canada


Bradley v. Kelvin

Gateway Village Inc. v. Sybra Food Services

7) Obtaining a Mareva: Balancing


1. Strength of Applicant’s Case
Chitel v. Rothbart

2. Risk of Lost Assets/Removal


MacIsaak, Clark & Co. v. Koopmans
3. Existence and Location of Assets
Ashtiani v. Kashi

Zellers Inc. v. Doobay

Banco Ambrosiano Holdings v. Dunkeld Ranching Ltd.

4. Disclosure
Chitel v. Rothbart

5. Damages Undertaking
Allen v. Jambo Holdings Ltd

8) Recent Developments and Refinements


1. Domestic Defendants
2. Types of Property
Rasu Maratima S.A. v. Perusahann

Allen v. Jambo Holdings Ltd.

Northern Sales Co. Ltd. v. Gov’t Trading Corp of Iran

3. Location of Assets
Ashtiani v. Kashi

Zellers Inc. v. Doobay

Banco Ambrosiano Holdings v. Dunkeld Ranching Ltd.

4. Priorities
Wagner v. Barnes

5. Locating the Assets and Examining Def.


6. The Order

9) The Rights and Liabilities of Third Parties and Extra-Territoriality


Ζ Z. Ltd. v. A-Z and AA-LL Ltd.

Derby v. Weldon
10) Interrogatories
Sekisui House Kabushiki Kaisha v. Nagashima

G. Anton Piller Injunctions


Anton Piller K.G. v. Manufacturing Process Ltd.

Berryman, “Anton Piller Orders”

Procedural Safeguards and Implementation

Bardeau (Ltd.) v. Crown Food Services

H. Anti Suit Injunctions


Amchem Products v. B.C.SPECIFIC PERFORMANCE
A. General Principles
The Limited Availability of Specific Performance
Farnsworth, “Legal Remedies”

Posner, “Economic Analysis of Law”

Schwartz “Case for Specific Performance”

Equitable Considerations
Falcke v. Gray

Ryan v. Mutual Tontine

Tanenbaum v. W.J. Bell Paper Co. Ltd.

B. Long Term and Relational Contracts


Specific Performance
Dominion Iron & Steel Co. v. Dominion Coal

Dominion Iron & Steel Co. v. Dominion Coal (P.C.)


Injunctions
Fothergill v. Rowland

Metropolitan Electric Supply Co. Ltd. v. Ginder

Thoma Borthwick Ltd. v. South Otago Freezing

S.B.I. Management Ltd. v. Wabush

Prairie Hospitality v. Renard

C. Personal Service Contracts


Lumley v. Wagner

Waner Bros. Pictures Inc. v. Nelson

Detroit Football Co. v. Dublinski

Page One Records Ltd. v. Britton

D. Land Contracts
Semelhago v. Parmedavan

E. Discretionary Reasons for the Denial of Relief


“Equity will not aid a volunteer”
Riches v. Burns

Inadequacy of Consideration
Hardship
Patel v. Ali

Stewart v. Amvrosina

The “Clean hands” doctrine


Cerilli v. Klodt

Laches
Grauer Estate v. Government of Canada

Mutuality
Hanbury, Modern Equity