Remedies – Fall 2013 – Joe McIntyre
Table of Contents
Intro to Remedies
Equity & Injunctions
Interlocutory Injunctions
Accessibility Threshold
American Cyanamid v Ethicon [1975] HL [not serious or vexatious]
Yule Inc v Atlantic Pizza Delight Franchise [1968] ON HC [conflicting evidence]
Irreparable harm
Mott-Trille v Steed [1996] ON Gen Div [irreparable harm in inability to present case]
Hunt Farms Ltd v Canada (Minister of Agriculture) [1994] FCA [both perspective of parties]
Balance of Convenience
Undertakings
Vieweger Construction Co v Rush & Thompkins [1965] SCC [“special circumstances”]
Special Forms of Interim Remedies
Mareva Injunction
Mareva Compania v International Bulkcarriers SA
Aetna Financial Services Ltd v Feigelman
Anton Piller Injunctions
Anton Piller KG v Manufacturing Processes Ltd [1976] UK CA
Celanese Canada Inc v Murray Demolition Corp [2006] SCC
Fila Canada v Doe
Anti-Suit Injunctions
Amchem Products Inc v British Columbia
Perpetual Injunctions
Quia Timet Injunctions – “since he fears”
Fletcher v Bealey [1885] 28 CH. D 688 [test for quia timet]
Hooper v Rogers [1975] Ch. 43 (CA) [“imminent” harm]
Palmer v Nova Scotia Forest Industries (1984) 60 NSR (2d) 271 (TD) [substantial harm]
Mandatory Injunctions
Redland Bricks v Morris [1970] AC 652 (HL)
Injunctions and Trespass
Woollerton and Wilson Ltd. v Richard Costain Ltd [1970] 1 WLR 411 (Ch.) [temporary trespass]
Goodson v Richardson (1874) LR 9 Ch. App. 221 [social utility of D’s conduct]
John Trenberth Ltd. v National Westminster Bank Ltd (1979) UK [D’s deliberate conduct]
Injunctions and Nuisance
Miller v Jackson [1977] UK CA
Boomer v Atlantic Cement Co Ltd [1970] NY CA
Spur Industries Inc v Del E Webb Development [1972] AZ SC
Damages and Monetary Compensation
General Principles of Damages
Forms of Damages
Form of Action
Immediate, Unconditional Lump Sum
Payment in Local Currency
Compensatory Damages in Contract
Expectation Damages
RG McLean Ltd v Canadian Vickers Ltd [1971] ON CA
Ticketnet Corp v Air Canada [1998] ON CA
Sunshine Exploration Ltd v Dolly Varden Mines Ltd [1970] SCC [cost of substituted performance]
Ruxley Electronics and Construction Ltd v Forsyth [1996] HL [reasonableness]
Reliance Damages
Bowlay Logging Ltd v Domtar Ltd [1982] BC CA
Sunshine Vacation Villas Ltd v Hudson’s Bay [1984] BC CA
Compensatory Damages in Tort
Damages for Damage and Destruction of Property
Liesbosch Dredger v Edison SS [1933] HL [destruction of chattel]
O’Grady v Westminster Scaffolding Ltd [1962] UK QB [damagedchattel – Hortensia]
Darbishire v Warran [1963] UK CA
Jens v Mannix Co [1978] BC SC + CA [damage to real property]
Harbutt’s Plasticine Ltd v Wayne Tank & Pump Co Ltd [1970] [betterment]
James Street Hardware and Furniture Co v Spizziri [1987] ON CA [real property]
Damages for Personal Injury
Andrews v Grant & Toy Alberta Ltd [1978] SCC
Teno v Arnold [1978] SCC [loss of earning capacity]
Non-Pecuniary Damages
Non-Pecuniary Damages for Torts
Lindal v Lindal [1981] SCC
Non-Pecuniary Losses in Contract
Fidler v Sun Life Assurance Co of Canada [2006] SCC
Honda Canada Inc v Keays [2008] SCC
Aggravated Damages
Hill v Church of Scientology
Punitive and Exemplary Damages
Cassell & Co Ltd v Broome [1972] HL [general principles of availability]
Whiten v Pilot Insurance Co [2002] SCC
Limiting Principles
Certainty & Causation
Schrump v Koot [1977] ON CA [certainty – probability v. possibility]
Farrell v Snell [1990] SCC [robust application of ‘but for’ test]
Laferriere v Lawson [1991] SCC [loss of chance]
Sunrise Co Ltd v The “Lake Winnipeg” [1991] SCC [post wrong events]
Remoteness
H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] UK CA [remoteness in contract]
Kienzle v Stringer [1981] ON CA [reasonably foreseeable]
Mitigation
Janiak v Ippolito [1985] SCC [valuation in chance of avoiding loss]
Erie County Natural Gas and Fuel Company Ltd v Carroll [1911] ON [avoided loss]
Cockburn v Trusts & Guarantee Co [1917] SCC
Jamal v Moolla Dawood Sons & Co [1916] PC Burma
Slater v Hoyle & Smith Ltd [1920] Eng CA
Time of Assessment
Asamera Oil Corp Ltd v Sea Oil & General Corp [1979] SCC [time of assessment]
Dodd Properties v Canterbury City Council [1980] Eng CA
Perry v Sidney Phillips & Sons [1982] Eng CA [intervening events]
Equitable Damages
Equitable Damages
Dobson v Winton & Robbins Ltd [1959] SCC [jurisdiction]
Price v Strange [1978] Eng CA [discretion and jurisdiction]
Equitable Compensation
Canson Enterprises Ltd v Boughton & Co [1991] SCC
Hodgkinson v Simms [1994] SCC
Cadbury Schweppes Inc v FBI Foods Ltd [1999] SCC
Restitutionary Remedies
Attorney General v Blake [2000] HL [breach of contract]
Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] Eng [breach restrictive covenant]
Whitwham v Westminster Brymbo Coal and Coke Company [1896] Eng CA
Strand Electric Engineering v Brisford Entertainment [1952] Eng QB [wrongful detention]
Specific Performance
Special Cases of Specific Performance
Personal Service Contracts
Giles & Co v Morris [1972] Eng CA [modern approach]
Hill v CA Parsons
Hill v CA Parsons & Co Ltd [1972] Eng CA
Lumley v Wagner [1852] Eng
Warner Brothers Pictures Incorporated v Nelson [1939] Eng KB
Detroit Football Co v Dublinski [1955] ON HC
Detroit Football Co v Dublinski [1955] ON CA
Sale of Land
Domowicz v Orsa Investments Ltd [1993] ON Gen Div [uniqueness]
Semelhago v Paramadevan [1996] SCC
John E Dodge Holdings Ltd v 805062 Ontario Ltd [2001] ON
Discretionary Reasons for the Denial of Relief
Equity Will not Aid a Volunteer
Riches v Burns [1924] Eng CA
Lack of Mutuality
Hanbury, Modern Equity
The “Clean Hands” Doctrine
Cerilli v Klodt [1984] ON [clean hands]
HKBC v Wheeler Holdings Ltd [1993] SCC [related to the transaction]
Bolianatz Estate v Simon [2006] SK CA
Delay or ‘Laches’
Grauer Estate v Government of Canada [1986] [laches]
‘Oppression’ and Hardship
Patel v Ali [1984] Eng [hardship]
Intro to Remedies
What is a Remedy?
-Legal Remedies are means of protecting legal rights. Without a remedy a right is hollow.
-“…if the plaintiff has a right he must of necessity have the means to vindicate it and a remedy if he is injured in the enjoyment or exercise of it.”
Chief Justice Holt in Ashby v White (1703) 2 LdRaym. 938, at 953
“It is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.”
William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND 23
Why Talk about Remedies?
Studying Remedies forces us to think about law in a different way. We think about law from the client’s perspective
-‘Civil actions are not brought to vindicate nice theories as the negligence or nuisance or consideration. They are brought because a person who has been injured, or is afraid he may be, wishes to prevent the injury or be redressed or it’
Wright, ‘The Law of Remedies as a Social Institution’ p377
A Different Way of Thinking About Law
In law school
-Facts (what are relevant facts?) – Cause of Action (IRAC) – Remedy (what is the consequence?)
In practice
-The client does not really care about how –to the client, the law is irrelevant
- The client cares about the concrete outcome
-Client wants to know
- Is this possible?
- Is this likely?
- How long?
- How much?
The Study of the Law of Remedies
-The legitimacy of studying the law of remedies as a distinct discipline is highly contested
The Goal of Remedies
-The study of remedies helps us to understand what it is that the legal system is capable of providing to clients.
-The law of remedies is a pragmatic and practical subject, which helps to re-orientate our thinking about law in a way that reflects the interests of our clients.
Defining a “Remedy”
-A ‘remedy’ is is an entitlement arising out of the breach of an obligation (or duty) and taking the form of a burden imposed on the person responsible for that breach.
Characteristics of a Remedy
-This definition highlights four basic characteristics of a legal remedy
- A remedy is an entitlement
- A remedial entitlement is a secondary right. It is created following the violation of a pre-existing right
- A remedy involves a practical benefit or advantage for the aggrieved party
- A remedy involves the imposition of a burden or disadvantage on the person legally responsible for the violation of the aggrieved party’s right
Remedies as a Legal Discipline
-Thinking about the Law of Remedies as a discipline has clear theoretical advantages:
- Remedies highlight judicial discretion
- Selection of remedies are not an automatic consequence after finding of liability
- Often there is scope of room for choice in determining appropriate remedy
- Most apparent in admin law
- Court will consider within circumstances whether remedy is effective, whether party is too late to claim a remedy
- Help us understand underlying principles and purposes and motivating objectives that guide the process of selecting remedial responses
- Underlying principles can be studied in explicit fashion, this gives the discipline a unity and coherence that makes it useful
- Allows us to study remedies by reference to principles, not underlying rights
- Can look to objectives of parties and principles unifying remedies
-McI argues that remedies are an equal partner to substantive law
-Judicial decisions help to a) resolve disputes between parties, and b) help clarify laws and legal norms of society
- In doing so, court strives to achieve justice and consistency with guiding social norms
-In this course, will learn why remedy appropriate, how it is formed, how it relates to underlying judicial objectives
-Judicial choice rests upon interests judge decides deserves attention
- This is balanced with competing interest and policies
- Court seeks to balance legitimate interest of P and D
-Basic principle is that the appropriate remedy is one that identifies and protects P’s legitimate interests without unduly oppressing D, or damaging other private or social interests that the law values
- Will see this balance arising throughout the course
Interests Promoted Through Legal Remedies
Interest / Social Objective1. Compensatory Interest
a. Reliance interest
b. Expectation interest / Corrective justice
Distributive justice
2. Restitutionary Interest / Corrective justice
3. Deterrence Interest / Instrumental justice
4. Retribution Interest / Retributive justice
-Most P’s seek corrective justice
- Wrongdoer should give innocent party the amount of money that will compensate them best as possible for all losses inflicted by wrongful act
- This appears in contract and tort
- Contract is forward looking
- Tort is backwards looking
-Reliance interest is assessed as backwards looking
- Aims to restore P any loss that has arisen from D’s breach of duty, measured by amount that will put P back in position they were had wrong not been done
- In contract, rationale is that P relied on D to fulfill obligation, and D did not conduct himself accordingly
- This is the common response in tort, available as secondary interest for contracts
-Expectation interest is forward looking, gives P something he never had but expected to receive
- Primary remedy in contract, aim to give promisee the value of expectancy that promisor created
- Object is to put P in position he would’ve been in had promise been performed
Restitutionary Interest
-Backwards looking, not assessed by reference to P’s loss, instead assessed by reference to D’s gain
-Seek to make wrongdoer disgorge fruits of his wrong, i.e. the prevention of unjust enrichment
-Primary purpose is to strip D of any gains earned as a result of the wrong
-Assessed not by what P has lost, but by full amount of benefit D has gained
Deterrence Interest
-Seeks to provide strong normative statement that people shouldn’t engage in certain form of conduct
- Can argue that all remedies are concerned with deterrence in some way
Retribution Interest
-Any award based on retribution has no interest in compensating P, rather the goal is to punish D
- Strong statement of judgment by society
-In some cases, due to wrongfulness of D’s conduct, court feels additional retribution is required
-Some connection between retribution and deterrence
- One aspect of punishment is to deter future conduct
-Each interest promotes different objective, and arise in different aspects of law
A Functional Approach to Remedies
Function / RemedySelf Help / - Remedy stipulation: liquidated damages, specific performance, injunctions
- Replevin
- Abatement of nuisance
Coercion / - Compensation
Restitution / - Damages in common law
- Equitable damages
- Equitable compensation
Punishment / - In contract, injunction and specific performance
- In tort, injunction for trespass and nuisance
- Account, specific property through constructive trust
- Punitive damages
Deterrence / - Punitive damages
Prevention / - Quiatimet injunctions
- Equitable damages in lieu of injunction
-In many cases, remedy available fails to address needs of client
-Van Harten: success in court doesn’t mean success for judicial review applicant… in admin law context
The Limitations of Remedies
In assessing the appropriateness of pursuing them through litigation, it is necessary to always ask the following questions:
- Are there alternatives other than recourse to the courts for resolving the matter in dispute?
- Will the legal remedies that may be available be capable of meeting the interests of the client?
- Is there a risk that litigation may unduly aggravate a situation or relationship that may be of more value than the ultimate remedy?
- Winning the dispute can often mean losing the relationship between both parties, imagine in family law context
- What are likely to be the costs (emotional, financial, and time) in obtaining the remedy? How do these compare to the value of the remedial award that may be granted?
- Obtaining a remedy comes at the end of a long legal battle
- Are there any discretionary reasons that may cause a court to refuse to limit the relief that is available?
Wright – The Law of Remedies as a Social Institution
-First step in a remedies problem is to determine the purpose which remedies are intended to serve
- Compensatory/indemnity: wrongdoer should be made to give the innocent party that number of dollars which will compensate, or indemnify, the latter for all losses inflicted and gains prevented by the wrongful act
- Specific relief: defendant must perform the exact act which he has wrongfully refused, or must refrain from committing the wrong
- Restitution: instead of attempting to make the innocent person whole, seek to make the wrongdoer disgorge the fruits of his wrong
- Punishment of the wrongdoer: deter conduct that is socially undesirable
- Schedule: enacted by the legislature to set out the recovery possible for each kind of wrong
-A tentative working hypotheses for a socially useful law of remedies
- Preventive relief is the most desirable kind of relief
- Punitive recovery should be allowed when, but only when, there is solid reason to believe it will have a deterrent effect on others who might be about to commit the same wrong
- Where the wrong has already occurred, plaintiff should not be denied specific relief if he prefers that to a money judgment
- A money judgment for a past wrong should be equal to the plaintiff’s loss or the defendant’s gain, whichever is greater
- Doubts as to amount of P’s loss or D’s gain should be resolved against the wrongdoers
Equity & Injunctions
-The history of equity shapes practice of law and equity, illuminates character of law and equitable rights
-Role of history is important to understanding role of remedial awards
The Paradox of Law
-‘If we are to have general rules, and the law is to have no favourites, occasional injustice is inevitable to someone who does not fit into the rule; and the constant struggle is to make the rule sufficiently flexible to allow for the particular circumstances, and yet so rigid that lawyers may predict what the decision may be, and men may guide their conduct by that prediction. It is only by a slow, halting, confused, and often painful progress that any agreement is reached as to the best general rule, but when the opinion is in a state of division and flux, it is not surprising that the courts’ decisions reflect the battle which is raging about them’
Prosser, Handbook of the Law of Torts (4thed, 1971)
-This paradox is at the heart at how we look to judges to decide disputes
- Want judge to resolve dispute, and create good norms for society
- Want responsive flexibility, and predictable certainty
-The way to resolve this paradox in our system is to have a judge step into the gap, take on all these roles to reach a decision
-Equity eventually became trapped in this paradox although it originally aimed to resolve some of the problems of the common law
The History of Equity
-After the Norman conquest, William I took effort to centralize and unify legal authority after seeing fractured system
- This is a way for rulers to increase legitimacy and allegiance
- To consolidate his power and maintain order, William I sought to impose uniform set of laws throughout country – the common law
-Key feature emerging from the common law was the ‘writ’ systems and the Forms of Action
- Writ system became dominated by intense concern with procedural formality
- Stated D committed certain wrongful acts, this system only way one could gain access to CL courts
- Regardless of D’s wrongful conduct, if you could not fit his conduct into an existing writ, could not go to CL courts
-By 14th C, system of justice formed through CL – King’s bench, common pleas?, Exchequer court
- Jurisdiction of these three courts neither exclusive nor exhaustive
- King had not relinquished ultimate authority to consider individual petitions
- Operation of system of writs and limited forms of action frequently yielded injustice, provided strong motivation for injured parties to petition king to achieve standard of justice in their particular case
-As petitions more common, they were referred to the Chancellor
- Chancellor gradually assumed greater role in justice, drawn from ecclesiastical circles so naturally had great concern to issues of conscience and justice
- Chancellor’s could act according to conscience rather than law
- They were not overriding law, but seen to be polishing the rough edges of CL
- These orders were seen to be directed to individual parties who brought petition, there was no precedential value to order from equity
- Eventual explanation to justify relationship between law and equity was that equitable justice was necessary to correct injustice of CL system
-Conflict with the CL
- CL judges did not like that equity undermined the idea of CL, conflicted with their own pecuniary self-interests as well (judges paid for cases they decided)
- Conflict came to a head during English Civil War, judges sided with Parliament, equity sided with King
- Following mid-17th C, equity began to have diminished role
-The ossification of equity
- Led to precisely the inflexibility it was designed to remedy, began part of substantive law and guided by precedent
- By end of 19th C, equity far more ossified than CL ever has been – Bleak House, Dickens
-The Judicature Acts 1873-5 and the re-energisation of equity