REMEDIES

PART I MONETARY RELIEF

I. REMEDIAL CHOICE: INTERESTS AND PURPOSES

A. IntroductionFuller and Purdue, The Reliance Interest 1 Why expectation damages?

1) advanced capitalist economy: allows you to treat future expectations as present value2) juristic: sophisticated form of reliance damages3) economic explanation: encourage performance of K’s when it is efficient and breach

when it is not

B. Expectation Damages: Special IssuesBeal, 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

C. 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 claimsWhat 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 forseeableexpenses 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 evenBurrows, 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 Tortcontract: give the pl. the benefit of the bargaintort: restore the pl to the position they would have been if the tort hadn’t occurred

NEGLIGENT MISREPRESENTATIONBeaver 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 acvEsso 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 Damagesrecission K is overquantum meriut “for what it’s worth” benefit in nature of goods/services…what are they worth?accountingconstructive trustrestitution 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

switchboardsWrothman 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 windfallWrotham 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 profitSeager 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 PanTonwsview 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 9ba) lack of due processb) evidentiary/Charter provisions do not applyc) 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) retroactivityf) 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 CONTRACTSWallace SCC 11b1) 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. RemotenessH. 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” 13FACTORS TO CONSIDER wrt REMOTENESSa) how likely is the action to cause the harm?b) are there intervening factors?c) what is the nature of the damaged) 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 CausationSchrump 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 contingenciesChaplin 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 pilotLaferriere 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 lifeSafefurt 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 14beg: 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 LossJaniak 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 16bproperty damage: repair quickly; no payment for reas. avoided losseswrongful dismissal: get a jobsale 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 AssessmentJamal 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 DiminutionSummary of Factors1. 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 plaintiff7. Economic waste? would performance require demolition of work already completed?

Damage to Chattels: cts generally deny repair costs that exceed the value of such fungiblesCAR Dewess v. Morrow 23

the pl was entititled to the fair value of the car just b4 it was damagedO’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 issueDarbishire 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 enrichmentPosner, 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’sRadford 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 lossGroves 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 valueMiles 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-repairRuxley 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 CompensationIntroduction

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 AssessmentIntroduction

Andrews v. Grand and Toy Alberta Ltd.

NotesNon-Pecuniary Losses

Lindal v. Lindal

Notes and QuestionsLoss of Earning Capacity

Teno v. Arnold

Andrews v. Grand and Toy

Thornton v. Prince George

Duration and the Problem of Lost YearsSemenoff v. Kokan

Future Care, Overlap and ContingenciesNotesPenso 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 RatesLewis v. Todd

TaxationThe 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 BenefitsIntroBoarelli 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. McNeeCooper: disability benefits pursuant to a collective agreement; no deductions from pay,

but made up part of hourly wagesCun’hm:long term disability benefits—sub.clause; em’ee and em’er paid premium

short term disability benefits—no sub. clause; no payroll deductionShanks: 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 PartiesKeizer v. Hanna

Mason v. Peters

Notes and QuestionsCapacity or Wage Loss

(a) lost chancesConklin 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) ChildrenTeno v. Arnold infant pl: $54,272.00 for future incomeWipfli v. BrittenHoule 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 UnderemploymentBlackstock 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 marriedCaco 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 marryPenso v. Sollowan

Clarke v. Clarke

(iv) duration: early retirementBoughey 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 incomeBlackstock 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 capacityQuick 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 statisticsTucker v. Asleson

MacCabe v. Westlock

PART II: EQUITABLE REMEDIES

IV. INJUNCTIONS

A. IntroductionB. Quia Timet Injunctions and the Problem of Ripeness

Fletcher v. Bealy

Palmer v. Nova Scotia Forest Ind.

Hooper v. Rodgers

Notes and QuestionsC. Mandatory Injunctions: Definitions and Supervision

Redland Bricks v. Morris

Notes Questions and ProblemsD. Injunctions to Protect Property Interests

IntroductionGoodson 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. NuisanceMiller 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 HomeAn 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 residences. 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 Codes. 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 RightsThe 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: StandingProblem

V. INTERLOCUTORY INJUNCTIONS

A. Introduction

B. Accessibility Threshold

American Cyanmid v. Ethicion

C. Irreparable HarmMott-Trille v. Steed

Hunt v. Canada

D. Special SituationsFilms Rover v. Cannon Film Sales

Cantol Ltd. v. Brodi Chemicals

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

E. UndertakingsViewegar Construction v. Rush

F. Mareva InjunctionsDevelopment and General Principles

Mareva Compania v. International Bulkcarriers S.A.

Aetna Financial Services Ltd. v. Feigelman

1) Introduction: The Established Rule2) The Problems3) Lord Denning to the Rescue: the Mareva is Born4) Post Mareva Jurisprudence: English Developments

The Siskina

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

5) The Reception in CanadaO.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 CanadaBradley v. Kelvin

Gateway Village Inc. v. Sybra Food Services

7) Obtaining a Mareva: Balancing1. Strength of Applicant’s Case

Chitel v. Rothbart

2. Risk of Lost Assets/RemovalMacIsaak, Clark & Co. v. Koopmans

3. Existence and Location of AssetsAshtiani v. Kashi

Zellers Inc. v. Doobay

Banco Ambrosiano Holdings v. Dunkeld Ranching Ltd.

4. DisclosureChitel v. Rothbart

5. Damages UndertakingAllen v. Jambo Holdings Ltd

8) Recent Developments and Refinements1. Domestic Defendants2. 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 AssetsAshtiani v. Kashi

Zellers Inc. v. Doobay

Banco Ambrosiano Holdings v. Dunkeld Ranching Ltd.

4. PrioritiesWagner v. Barnes

5. Locating the Assets and Examining Def.6. The Order

9) The Rights and Liabilities of Third Parties and Extra-TerritorialityZ. Ltd. v. A-Z and AA-LL Ltd.

Derby v. Weldon

10) Interrogatories Sekisui House Kabushiki Kaisha v. Nagashima

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

Berryman, “Anton Piller Orders”

Procedural Safeguards and Implementation

Bardeau (Ltd.) v. Crown Food Services

H. Anti Suit InjunctionsAmchem Products v. B.C.SPECIFIC PERFORMANCE

A. General PrinciplesThe Limited Availability of Specific Performance

Farnsworth, “Legal Remedies”

Posner, “Economic Analysis of Law”

Schwartz “Case for Specific Performance”

Equitable ConsiderationsFalcke v. Gray

Ryan v. Mutual Tontine

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

B. Long Term and Relational ContractsSpecific Performance

Dominion Iron & Steel Co. v. Dominion Coal

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

InjunctionsFothergill 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 ContractsLumley 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 ConsiderationHardship

Patel v. Ali

Stewart v. Amvrosina

The “Clean hands” doctrineCerilli v. Klodt

LachesGrauer Estate v. Government of Canada

MutualityHanbury, Modern Equity