Remedies

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Remedies Flashcards on Remedies, created by Nathalie Buissé on 01/09/2017.
Nathalie Buissé
Flashcards by Nathalie Buissé, updated more than 1 year ago
Nathalie Buissé
Created by Nathalie Buissé over 7 years ago
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Question Answer
What is the principle of mitigation • The principal meaning of mitigation refers to the conduct of the plaintiff that might have diminished the loss complained of, or to events that might have in fact diminished the loss. o A person who has suffered an injury or loss should take reasonable action, where possible, to avoid additional injury or loss. • The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of the plaintiff's recovery (as a matter of fairness and appropriate risk allocation).
Mitigation - provocation in intentional torts Landry v. Patterson This case discusses the controversy surrounding whether P's conduct is relevant to mitigate an award of general damages, or whether it can only be considered in the context of mitigating an award of punitive damages. Ratio ON C.A.: Provocation is only relevant in mitigating an award of punitive damages. However the NFLD & BC C.A. have recently invoked provocation to reduce general damages.
Mitigation - Valuation of Chance Avoiding Loss Janiak v. Ippolito Q: How does one assess damages for personal injury when the victim of the accident unreasonably refuses to undergo the recommended surgery? P had back injuries that could be surgically treated (70% success rate, with 100% recovery). Plaintiff refused because only 70% success rate. SCC accepts that thin skull doctrine applies to physical & psychological ailments (egg-shell skull/personality). TIMING OF PSYCHOLOGICAL INFIRMITY IS KEY: (1) It must be pre-existing at the time of injury + (2) The nature of the infirmity must affect P's capacity to make rational decisions regarding their own care.
Mitigation - Valuation of chance avoiding loss Janiak Ratio Ratio: When a plaintiff is faced with contradictory medical opinions about the efficacy of a procedure, he or she cannot be faulted with refusing to undergo the procedure. A plaintiff cannot be faulted for elected for one of a number of recommended medical procedures. In assessing refusal of treatment, Courts must examine: (1) degree of risk of the procedure (2) gravity of the consequences in refusing it (3) potential benefits derived from it. Onus to prove failure to mitigate damages: Defendant How do we evaluate how to discount recovery because of an avoidable loss? Pursuant to Janiak, one would award P damages to account the chance of failure of the procedure (30% in this case) + the chance of success.
What must the court consider in assessing refusal of treatment in a mitigation claim? (1) degree of risk of the procedure (2) gravity of the consequences in refusing it (3) potential benefits derived from it. Based on Janiak Case.
How do we evaluate how to discount recovery because of an avoidable loss? Mitigation - Pursuant to Janiak, one would award P damages to account the chance of failure of the procedure (30% in this case) + the chance of success.
Mitigation - Anticipatory Breach D and P enter into publishing contract for 25 books. After delivery of 12, D advises P that it is cancelling order. P had not yet purchased the remining volumes to be sent to D, but proceeded to do so. Name rule. Sells Ltd. v. Thomson Stationary Having received notice of cancellation of the contract, P could not continue to act as if K was in force.
Mitigation - Anticipatory Breach D contracted with P for paving of his driveway, but did not fix a time for performance of K. D then canceled K with P. P paved D's driveway in his absence and sued for the price agreed to in K. Name rule. Finelli v. Dee ON C.A. is of the primary view that D's repudiation of the contract excused P from performing the K and entitled him to sue for damages (profit to be earned under K). For P to have carried out K and claimed the full price would have required the assent of D.
Mitigation - Avoided Loss D wrongully withheld a supply of gas needed by Ps. Ps reacted by constructing works for $60k to obtain gas in the alternative, which were later sold for $75k. Name rule. Natural Gas and Fuel Company Ltd. v. Carroll P was only entitled to nominal damages as it had, in the result, secured an alternate supply of gas free of cost, considering the re-sale of the works for a profit.
Mitigation - Avoided Loss P was victim of wrongful dismissal by his employer when it went into liquidation. Profiting from his knowledge of his employer's operations, P purchased assets of his employer at the liquidation sale and flipped them, netting 11k in profits. P earned $5k/yr working of employer (in 1917). P's claim for damages for wrongful dismissal was dismissed by the SCC because he avoided his loss by trading in his employer's assets. Name rule. Cockburn v. Trusts & Guarantee Co While there was no duty on the P to mitigate his loss in this way, the fact that he did must be taken into account if the gain arose out of his former employment or "out of the transaction". Here, P was better off than if the K had been executed, as he made $11k in 66 days whereas this typically would have taken him 2 years to achieve.
Mitigation - Avoided Loss P agreed to sell a certain amount of shares at a certain price to D as of a certain date. On the date of transfer of the shares, D failed to provide P with the agreed purchase price. P did not sell shares right away on the open market, but when he finished doing so, he in fact made a profit compared with the price he was to sell them to D on the date provided for. P sues D for the difference between the agreed purchase price and the market price as of date of D's breach. Name rule. Jamal v. Moola Dawood Sons & Co Privy Council overturned lower court's Decision. Ratio: Even though P had avoided the loss by retaining the shares and selling later at a higher price, it should still be compensated for loss as of the date of the breach since there was no way to guarantee that holding onto the shares would result in a profit. If it had not, D could not have been held liable for the aggravation of the loss, and he therefore cannot profit from the contrary result. This also applies to physical goods (Campbell Mostyn v. Barnett Trading).
Mitigation - Avoided Loss P delivered to D cloth which via counter-claim D sought damages as quality was substandard to what had been contracted. Counter-claim was granted and P appealed on grounds that D had avoided his loss as he had sold the cloth at a higher price than what he had paid for it via sub-contracts. Name rule. Slater v. Hoyle & Smith English C.A. rejected P's contention, holding that P had nothing to do with the subcontracts and the D could have fulfilled the subcontracts with goods other than those provided by P. The fulfillment of the subcontracts required bleaching the cloth by D, and by providing inferior goods to D, P had potentially prevented D from making an even higher profit on the re-sale of cloths.
Mitigation - Collateral Benefits Qs in dispute answered by trilogy by SCC 1. Should payments received by P pursuant to a private policy of insurance be deducted from the amount recored for loss of wages? 2. If private policies of insurance are to be exempt from deduction, then should disability benefits negotiated under a collective agreement also be exempted from deduction? 3. If disability benefits provided by a collective agreement are to be exempt from deduction, what proof is required of the payment for the benefits by the plaintiff-employee?
Mitigation - Collateral Benefits 1. What is the insurance exception? 1. Insurance exception: Payments received for loss of wages pursuant to private insurance policies should not be deducted from the lost wages claim of a plaintiff.
Mitigation - Collateral benefits Should disability payments obtained pursuant to a collective agreement benefit from the insurance exception? Why? Yes, disability payments obtained pursuant to a collective agreement should benefit from the insurance exception, as these benefits were bargained for in the collective bargaining process, and resulted in lower wages for workers, such that the worker had in fact "paid" for them, just as he would private insurance. Cunningham et al. (S.C.C.)
Mitigation - Collateral benefits What must be proven in the case of benefits which are not in the nature of insurance? The SCC clarified that the burden is on plaintiffs to establish that they had paid for the provision of disability benefits. P must show that some type of consideration was given up by the employee in return for the benefit. Evidence of a contribution to the plan by the employee (whether paid directly of by a reduced hourly wage reflected in a collective bargaining agreement will be sufficient). Benefits received under the employment contracts of non-unionized employees will also be non-deductible if proof is provided of payment in some manner by the employee for the benefits. Cunningham et al - clarifying Ratych (McLachlin dissented)
Mitigation - Collateral benefits Are welfare benefits deductible from an award of damages? Yes per S.C.C. in M.B. v. British Columbia
Does the insurance exception apply to payments received from a contributory pension plan? Yes (per SCC) Guy v. Trizec Equities
Are unemployment insurance benefits received deductible from an award in damages in the case of wrongful dismissal? No, S.C.C. in Jack Cewe v. Jorgenson.
What obligation is linked to Time of assessment? Plaintiff's obligation to mitigate is linked to time of assessment. However: Where P is not subject to a duty to mitigate; or If that duty to mitigate is not immediate Then ToA is at the time where mitigation steps are in fact taken (or the later date where they should have been taken); With D bearing risk of aggravation of loss but also benefitting from any gains.
What is the general rule for time of assessment? "Time of the wrong" In reality, the rule is that mitigation must be expeditious, within a reasonable time following the wrong.
Why is it fair to allocate post-breach risks on Plaintiff's shoulders? Because the Defendant is at the mercy of Plaintiff mitigating or not his losses. It is only fair to place risk of subsequent events on P's shoulders. This also prevents P speculating at D's risk, however P retains any gains made after the "time of wrong" (Jamal and Campbell cases)
What is an example of a P not being subject to a duty to mitigate? Where it is reasonable to pursue a claim of specific performance. However, this is risky. There has to be some "fair, real, and substantial justification" for the specific performance claim.
When is it reasonable to pursue a claim of specific performance? When there is a "fair, real, and substantial justification" for the specific performance claim. Asamera
How do courts react to claims in specific performance? They are becoming increasingly more restrictive with awards of specific performance. For example, while these awards used to be almost automatic in real estate, this is no longer the case.
How is time value of money compensated? Pre-judgment interest can be awarded, calculated from the appropriate time of assessment. The later the ToA is, the less likely it becomes that pre-judgment interest will be awarded. Where P establishes a particular loss (i.e. P borrowed money to mitigate), pre-judgment interest can be awarded at a commercial rate and compounded.
Where P establishes a particular loss (i.e. P borrowed money to mitigate), how is the time value of money compensated? Pre-judgment interest can be awarded at a commercial rate and compounded.
In property cases where specific performance can still be validly awarded, what other options do courts have? They can substitute specific performance for an award of damages. Such damages are considered as "equitable damages" and are assessed as of the date of the trial or judgment. Semelhago v. Paramadevan. *Technically speaking, the date of assessment SHOULD be the date of judgement, since that is the date upon which specific performance is ordered. However, for practical reasons, the evidence that is adduced which is relevant to enable damages to be assessed will be as of the date of trial. It is not usually possible to predict the date of judgment when the evidence is given. P therefore recovers any increase in value of the property, without having to deduct costs incurred during that time (i.e. mortgage interest), often resulting in a windfall for P. While this is usually unacceptable at common law, in these cases it is accepted as it is a substitute for specific performance.
Are windfalls allowed at common law? Usually they are unacceptable, however where the windfall results from an award in damages where such an award is a substitute for specific performance, it is allowed. Semelhago
What are the 3 principal purposes pursued in awarding contract damages? And who established these principles? 1. Restitution interest - preventing unjust enrichment by disgorging the non-performing party of the benefits unjustly received under the contract 2. Reliance interest - compensating for expenses incurred and opportunities foregone in reliance on a contract 3. Expectation interest - putting P in the same position as if the contract had been performed. Fuller and Perdue
What is the purpose of compensation for breach of contract? To make the plaintiff whole - restitutio in integrum
What does restitutio in integrum mean? To make the plaintiff whole.
What is the purpose of compensation in a torts claim? To make the plaintiff whole - restitutio in integrum. However, in tort, the interest protected is the present interest, resulting in damages often measured by reliance interest (reliance on being free of the consequences of the tort) or restoration interest.
What is the interest protected in a tort claim? The present interest, resulting in damages often measured by reliance interest (reliance on being free of the consequences of the tort) or restoration interest.
What is the interest protected in a contract claim? In contract it is often expectations about the future, resulting in expectation damages being the standard measure of recovery.
What is the measure of damages in sales of goods? Difference in value rule: Difference between the contract price of the goods and their market price at the time of the breach.
What is the difference in value rule? Difference between contract price of the goods and their market price at the time of the breach.
In a sale of goods contract, how are damages measured where there is a loss of profit? Ex. A enters into a contract with B, a car dealership, to purchase a car. A refuses to take delivery, and B sells the car to C at the same price. Under the difference in value rule, B would not have suffered any loss. But B, being a car dealer, did actually lose something, because he could have sold cars to both A and C. B is therefore entitled to claim his lost profits on the sale of the car to A.
When do damages to compensate for the reliance interest arise? When a P, in reliance on D's promise to perform, acts to his own detriment. Such damages can arise both as an alternative to damages to compensate the expectation interest or as a complement to them. If it is awarded as an alternative, the damages will not seek to put the plaintiff in the position he would have been in had the contract been performed, but rather to place him in the position he would have been in if he had not entered into the contract.
What will compensation be available for in the following case: A contracts with B to deliver a piece of machinery, and a crucial part of that machine is manufactured by C. C fails to deliver the part on time, and B walks away from the contract with A. A however had started building the machine prior to C’s breach and could recover from C the cost of doing so. (1) Expenses necessarily incurred by the Plaintiff for performance of the contract (even in some circumstances, where they were incurred prior to the actual signing of the contract; (2) Incidental expenses (i.e. Buying new furniture for a new house). The guiding principle of foreseeability remains however for both necessary and incidental expenses. For expenses incurred prior to the conclusion of the contract, they are recoverable where they “would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken” (Anglia Television Ltd. v Reed, [1972] 1 QB 60 (CA)).
What is the applicable principle for expenses? The guiding principle of foreseeability applies for both necessary and incidental expenses. For expenses incurred prior to the conclusion of the contract, they are recoverable where they “would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken” (Anglia Television Ltd. v Reed, [1972] 1 QB 60 (CA)).
Are expenses incurred prior to the conclusion of the contract recoverable? Yes, where they “would reasonably be in the contemplation of the parties as likely to be wasted if the contract was broken” (Anglia Television Ltd. v Reed, [1972] 1 QB 60 (CA)).
When are reliance damages available in contract? Reliance damages are available in contract when expectation damages are not suitable, for example where the expectation interest is too speculative.
When are reliance damages not available? Reliance damages are not available as an alternative to expectation damages where the plaintiff has entered into an unprofitable bargain. Burden: The burden is on the defendant to prove this however, as in awarding reliance damages the Court assumes that the plaintiff would break even. Where Plaintiff proves that the loss to be incurred by it on the contract was increased as a result of the breach, reliance damages can be available.
Are reliance damages available when the Plaintiff has entered into an unprofitable bargain? In this situation, the Court assumes that the plaintiff would break even. The usual remedy would be expectation damages. However, where P can prove that he entered into an unprofitable bargain and that the loss to be incurred by it on the contract was increased as a result of the breach, reliance damages are available.
When are damages for the reliance interest available? Damages to compensate for the reliance interest arise where a plaintiff, in reliance on the defendant’s promise to perform, acts to his own detriment. • Such damages can arise both as [1] an alternative to damages to compensate the expectation interest or as [2] a complement to them. o If it is awarded as an alternative, the damages will not seek to put the plaintiff in the position he would have been in had the contract been performed – the aim is to place him in the position he would have been in if he had not entered into the contract.
What is a compensation in reliance AND expectation interest intended to compensate? In which situation does this apply? • Compensation for the reliance interest in addition to compensation for the expectation interest aims on the contrary to ensure that the plaintiff is put in the position he would have been had the contract been performed. • Applies in circumstances where net profit is awarded as a measure of the expectation interest – damages for wasted expenses are awarded in compensation for the reliance interest.
Misappropriation of property is a concept derived from what facet of law? Tort law
What are the 3 tort elements discussed in misappropriation of property? Conversion Trespass Detinue
What is conversion? Conversion: “a substantial or total interference with the owner’s rights of property”. o Destruction of goods; o Stealing goods; Wrongfully selling goods to a 3rd party
What is the level of harm caused by trespass? • Lesser harm to goods than conversion: o Unauthorized use; o Minor damage.
What is detinue? Detinue: “an unjust refusal to return P’s goods on demand” o It means it is not destroyed, but in my possession, and you’ve asked me to return it to you but I haven’t.
What are the damages for misappropriation of property? • Measure of the value of the goods to the owner, determined by: o Fair market value or cost of replacement o Proceeds from the sale of the misappropriated property (if it was sold to a 3rd party) • Consequential losses suffered as a result of the misappropriation, including: o Lost profit; o Loss of use of the property; o Burden of proof rests on P.
What are issues with damages measured by proceeds of the sale of misappropriated property? 1. Improvements made by defendant prior to sale a. Can be retained by D b. Burden of proof of value of improvements rests on D 2. Money and effort spent by D to achieve sale: a. Such costs can be deducted from the damage award if D’s trespass or misappropriation is innocent
What is the distinction with respect to detinue? 1. Wrongful detention continues from the moment of first detention to the return of the goods 2. One of the remedies available is the return of the goods 3. If the goods are returned, their value is deducted from the damage award 4. While damages for conversion are assessed as of the date of the wrong, damages for detinue are assessed as of the date of the trial. 5. Detinue and conversion are often available for the same wrong giving rise to a right to elect between the two. 6. However, duty to mitigate still exists even if one elects to sue in detinue.
Where both detinue and conversion are available for the same wrong, how do we determine which to choose? “if cynical, the soundest advice was accordingly to sue in detinue on a rising and in conversion on a falling market” However, duty to mitigate still exists even if one elects to sue in detinue (Asamera).
Cost of future care What are damages intended to cover? • Damages are to be awarded to provide for the plaintiff’s annual needs resulting from the accident; o This can include one-time expenses like home renovations and vehicle modifications to adapt to the plaintiff’s disability. o Or can include future care – ie that you will likely need a surgery down the road
Are there restrictions on what costs are recoverable when it comes to future care? All reasonable costs are recoverable, to be assessed with regard to medical and expert evidence. o What is reasonable will depend on experts. • Home care can be reasonable, even if more expensive than institutionalized care (Andrews): “Expenses that a reasonably-minded person with sufficient means would be willing to incur to meet the plaintiff’s needs” o In other words, if you had the money would you spend the money on that thing – if the answer is no, the answer is presumably it was not reasonable.
What considerations with respect to the level of care must be taken into consideration when fixing an award for the cost of future care? (1) Award must be fair to both parties; o Achieved by ensuring that the claim is reasonable and justifiable; (2) Means of the Defendant are irrelevant (3) Contrary to non-pecuniary losses, “social burden” of large damage awards for cost of future care is not relevant, but may be relevant in selecting the appropriate level of care; Ex: home care vs institutionalized home care only where it is truly reasonable (i.e. the person must be conscious) (4) Awards reflect actual post-accident life expectancy (Contrary to a loss of earning capacity) (5) Deduction of 10-20% usually made for contingencies, i.e. possibility that level of care may not be required until death, or that death will occur sooner.
How are contingencies handled in the calculation of cost of future care? (1) Courts are increasingly departing from automatic deductions and basing any deductions for contingencies on the evidence (2) Contingencies are often also embedded in the evidence (i.e. Statistics and actuarial data used to determine length and level of the award) so awarding further deductions for contingencies raises the risk of double-counting; (3) Contingencies should thus be deducted only where there is specific evidence that the plaintiff will differ from the data used to calculate the award.
How do we avoid overlap with the award for lost income (cost of future care)? • Courts will be careful to award only net income, because of the fact that many living expenses usually paid for out of income are included in an award for cost of future care (deduction usually in the 30-50% range). • Damages will not be awarded for services provided free of charge by the government.
Penso v. Solowan and Public Trustee What is the ratio of this case? Any deduction should not be arbitrary but should be based on advice from actuaries and other evidence, and consider the actual costs of the Plaintiff . In the absence of unusual factors, no more than 20% can be deducted for contingencies.
Discuss collateral benefits The traditional view was that where a family member is providing services, these are not compensable, unless these services go beyond the scope of those normally provided in such relationships: • “Outside the usual concept of what people undertake when they take on their marriage vows, and outside the “worse” end of the “for better or worse” marriage scale” o It is possible that the person’s services, even free give rise to damages because it is inhabitual that a husband or wife would provide these services • However, consistent with awards for lost housekeeping capacity, where that function is taken over free of charge by a spouse, the loss of housekeeping capacity is still compensable.
Do awards for cost of care account for tax consequences? Tax impacts of awards were not taken into account until 1989, when the Supreme Court concluded that awards for cost of care should be grossed up to account for tax consequences.
How are tax gross-ups calculated in cost of future care cases? Tax gross-ups are based on expert evidence, considering: (1) Size of award (large awards are typically grossed up to account for tax consequences) (2) Manner in which it will be invested; (3) Rate at which it will be withdrawn; (4) Amount of Plaintiff’s income from other sources; ♣ (ex. RRSP withdrawals at the same time, leading to higher rate of income) (5) Manner in which income will be spent; ♣ Can give rise to deductions (i.e. for medical expenses). (6) Available deductions; (7) Possible future changes in tax policy • The existence of tax gross-ups is an argument in favour of structured settlements from the defendant’s perspective • In Ontario, standardized assumptions exist regarding investments and the rate of inflation o Standardized assumptions avoid expert evidence on gross up/discount evidence rules have certain assumptions so you don’t have to go through costly exercise o Other provinces however often require expert evidence.
What is the ratio in Queen in Right of Ontario v. Jennings • Flip side when talking about tax deductions when dealing with loss of earning capacity • Here, you are awarding the capital sum, and the tax treatment of this can be tax, may not be, and it will be the state’s decision and has nothing to do with the defendant’s liability • The rationale for the gross up is that here we are making sure if the plaintiff requires 1000$ in medical services, 15 years form now, want to make sure that what we award him today will allow him to pay for the services in 15 years what will happen to this 1$, and will it net appropriate amount in the future • Concept is very consistent – courts don’t generally get involved in assessing the taxable consequences of an award – they assess damages based on harm sustained, and the tax consequences flowed from this don’t regard them • This is because the time element is adequate to meet the needs
Why do we discount to present value? • Cost of care and lost earning capacity are awarded in a lump sum, BUT FOR expenses incurred in the future. • Discounting to present value is required to avoid overcompensation. “A dollar today is worth more than a dollar a year from now because when invested it will yield additional income”.
What are the relevant factors that justify discounting to present value? Two relevant factors: (1) Interest earning capacity of the lump sum; (2) Rate of inflation, which will erode the purchasing power of money.
What is a "real rate of return"? Long-term rate of interest minus the rate of inflation over that same period. Some provinces set the discount rate by statute: Ex. ON - <15 years = 1.5%, then 2.5% MB & SK - 3% BC - 2.5% for lost earnings & 3.5% for cost of future care (we assume that wages increase at a rate slightly higher than inflation ("productivity factor") In provinces without a statute, discount rates are currently in the range of 3-4%, but require costly actuarial evidence to establish.
What is the rule concerning a discount to account for interest (Lewis v. Todd) • Damages should be reduced according to a reasonable rate of interest such as can be proven at the time of trial.
Should management fees be accounted for and why? Yes, in light of the fact that awards are lump sums, which need to be invested to properly carry out their purpose, providing for management fees is appropriate.
What evidence is required for management fees to be awarded? Award requires evidence that financial assistance is required in the circumstances and amount will take into account: (1) Severity of injuries; (2) Size of award; (3) Remaining lifespan; (4) Plaintiff’s ability to fend for himself/herself.
In what manner are management fees provided when they are awarded? Management fees can be provided as a lump sum or by adjusting the discount rate.
What is the traditional rule with respect to compensation for death? •Traditional rule was that “in a civil court the death of a human being cannot be complained of as an injury” and: o Personal actions died with the person; o No one has a right of action in respect of the death of another. • As a result, tortfeasors were better off killing their victims than injuring them.
How has the law evolved with respect to compensation for death? The law has evolved by way of legislation providing for: (1) Survival actions which can be pursued by an estate; and, (2) Claims by close relatives for the death of a family member.
Can the family of a deceased claim any compensation and if so, which relatives can do so and on what grounds? Yes, based on legislation which provides the right to a spouse, parent or child (sometimes extended to siblings and grandparents) of a deceased to bring an action in tort for damages.
What is the objective of family compensation actions? The objective is to compensate survivors for their pecuniary losses caused by the death of the family member. This is referred to as the value of the "dependency" and measured by "the economic contribution that the deceased would have made to the survivor had the death not occurred."
How is an award for family compensation calculated? This is referred to as the value of the "dependency" and measured by "the economic contribution that the deceased would have made to the survivor had the death not occurred." • Claimants need not be benefitting from a portion of the deceased income at the time of death – compensation can be based on the possibility that they would have benefitted in the future.
What are the limitations to pecuniary losses in family compensation actions? • Restricted to pecuniary losses, but such losses include non-monetary benefits that have a pecuniary value: (1) Homemaking services (2) Care and guidance * Most substantial element of the claim is usually lost monetary support.
How is lost monetary support calculated? Lost monetary support is the expected future stream of economic benefits from the income that the deceased would have contributed to the plaintiff, after taking into account both positive and negative contingencies that would have affected that contribution and discounting that sum to present value. o Calculation of the loss is based on deceased net income after tax and after deducting expenditures which the deceased incurred for himself/herself. o However, a “gross-up” can be added to lump sum awards to account for tax consequences of the income earned on the lump sum.
How are contingencies treated in family compensation actions? • Contingencies must be examined both from the perspective of the deceased and of the surviving family member. • Contingencies from the deceased perspective include anything that could affect the duration and amount of salary he/she would have earned: o Sickness; o Layoff. • Contingencies from the survivors perspective include anything that could affect relationship with the deceased: o Divorce (although economic benefits may continue); and, o The possibility that the surviving spouse will re-marry, reducing his or her loss.
Does income earned illegally by the deceased affect the survivor claims? Family compensation actions No
Under what circumstances can the scope of pecuniary losses be expanded in family compensation actions? • Where causal link between death and loss established, scope of pecuniary losses can be expanded (subject to the principle of remoteness) to: o Loss of earning capacity of the surviving family member; o Actual loss of income of the surviving family member due to the death.
In family compensation actions, are aggravated, punitive damages compensable? What about pain and suffering? Aggravated or punitive damages are not available and grief, mental distress and pain and suffering are not compensable, unless provided for by legislation. And in some cases they are fixed and very small for those types of damages.
Aside from actions in family compensation, can family members make any other claims? Yes, they may have independent tort claims allowing recovery of damages for mental distress (i.e. they witnessed the accident). They can also claim for the loss of other benefits received by the surviving family members as a result of the deceased's employment, which are also compensable: (1) Health insurance; (2) Dental plans; (3) Pension benefits.
How is the loss of homemaking services by the deceased calculated? By determining the number of hours spent on household services by the deceased and assigning a dollar value based on the replacement cost for the services: (1) By determining the cost of hiring a replacement homemaker for the number of hours assessed; (2) By placing a value on the different functions performed by the deceased; or, (3) A mix of both of the above.
In family compensation actions, what compensation is usually awarded to children and which elements must be present? Loss of guidance, care, and companionship. It is not necessary that all 3 of the elements be present (ex. a criminal father might not have provided guidance but could still provide care).
What must claimants prove to obtain an award in loss, guidance and companionship? • Claimants must prove that they had a reasonable expectation of receiving care and guidance from the deceased and that they have been deprived of a tangible benefit.
What is the maximum amount that can be awarded for loss of guidance, care and companionship? Awards are higher for younger children (up to $50,000 for infants vs. $5,000 for adult children still living in the house).
What is required for an adult to assert a claim for loss of guidance, care and companionship? • Adults can assert claim where there is a degree of interdependency with the deceased which is out of the ordinary.
Where children die, can the parents make a claim and if so, what type of claim can they make and under what conditions? They might be able to make a claim for loss of guidance, care and companionship. However, pecuniary losses to parents are very rare, as children are unlikely to provide economic benefits to their parents. However, evidence can be established to the contrary, particularly where the child had a caring role for a disabled parent. In certain cultures, children contribute a portion of their income to parents, and where this is established the loss is compensable.
What is the definition of nuisance? • Nuisance: “an indirect and continuing interference of the enjoyment of land by the actions of another” Nuisance can be suffered by several property owners, but to a varying degree (i.e. Noise, air or water pollution).
How is nuisance different from trespass? Contrary to trespass, actions of the defendant in a nuisance action are not necessarily unlawful.
What is the remedy to an action in nuisance? • The remedy is the same as for trespass, namely injunctive relief, or, if the nuisance was minor, damages.
When are damages for nuisance appropriate? Four part test developed by the English Court of Appeal: 1. If the injury to the plaintiff’s legal rights is small; 2. And is one which is capable of being estimated in money; 3. And is one which can be adequately compensated by a small money payment; 4. And the case is one in which it would be oppressive to the defendant to grant an injunction; --> Then damages in substitution for an injunction may be given.
When assessing a request for injunctive relief for nuisance, what can the courts look in making their determination? • Courts can examine the effects of an injunction on the community vs. the individual plaintiff and also attempt to strike a balance between competing individual interests. • However, a more recent line of jurisprudence would limit the resort to the notion of “public interest” in exceptional circumstances only, and only where the damage to the plaintiff is minimal.
Can the courts consider the public interest in a request for injunctive relief for nuisance? Yes, Courts can examine the effects of an injunction on the community vs. the individual plaintiff and also attempt to strike a balance between competing individual interests. However, following a more recent line of jurisprudence would limit the resort to the notion of “public interest” in exceptional circumstances only, and only where the damage to the plaintiff is minimal.
Are injunctions appropriate where nuisance is widespread? Why? • Yes, injunctions are particularly appropriate because the Court may not have all victims of the nuisance before it, preventing it from awarding damages to all victims; • Class action suits in this area are growing however, somewhat remedying this issue.
Why would an injunction be granted then suspended? To allow time for a defendant to take steps to abate the nuisance.
How can injunctions be subject to a contingency? • Injunctions can also be made contingent upon the plaintiff paying for the cost of removal of the nuisance – this is rare and only available in specific factual circumstances (called a compensatory injunction).
Is a nuisance injunction always available as a remedy (where the conditions are met)? No, specific legislation can prevent the issuance of nuisance injunctions (i.e. Right to farm legislation in Ontario and British Columbia) or dissolve them when issued against important works (Ontario legislation allowing pulp mill to continue discharging waste into a river, despite an injunction).
What is the Coase theorem on nuisance injunctions? Coase theorem: “whether the gain from preventing the harm is greater than the loss which would be suffered elsewhere as a result of stopping the action which produces harm.” This is an economic analysis. Ex. A factory saves $100,000 by polluting, but causes a nuisance worth $80,000 to its neighbour – rather than being subject to an injunction, why not let the factory pay $80,000 to its neighbour, and still be better off?
Is there any criticism on the Coase theorem on nuisance injunctions? Yes, as it is limited by: (1) the reality that markets are not 100% efficient. For example: o If the factory had not one neighbour, but 100 neighbours, each of them objectively valuing the pollution at $800, human nature makes it such that it is illusory that the factory will be able to convince all 100 neighbours to waive their right to an injunction for only $800 – many of them will try to exploit the situation to extract more, resulting in an inefficient bargain. (2) It also suffers from the assumption that all humans are rational beings at all times, which is clearly not a valid assumption.
What are the requirements of irreparable harm? There must be: (1) harm; (2) that is incapable of being remedied by any other means available at common law at the time of trial; (3) and is thus irreparable. It is the excess between the quantified loss and the amount of damages (unrecoverable amount), that is irreparable harm.
What is the classic definition of "irreparable"? Definition: “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either: (1) cannot be quantified in monetary terms; or (2) which cannot be cured, usually because one party cannot collect damages from the other.”
When is magnitude of harm a relevant consideration? In matters of irreparable harm, in the examination of the balance of convenience.
What are some examples of accepted "irreparable harms" that can be quantified by experts: 1. Harm to reputation and/or career; 2. Harm to viability of a business – includes loss of goodwill, market share; 3. Claims in support of a restraint of trade clause; (non competes) 4. Intellectual property infringement; 5. Where damages can be quantified but are unlikely to be recovered; 6. Infringement with natural resources or with quiet enjoyment of land; 7. Infringement of the public interest.
What does a mareva injunction seek to achieve? • Seeks to restrain the removal or dissipation of assets away from the court’s jurisdiction pending a trial on the merits.
When is a mareva injunction useful? A mareva injunction is useful to ensure protection of the ability to collect upon a final judgment, but also risks paralyzing a defendant’s business activities, giving the plaintiff more leverage.
How does a mareva injunction differ from existing mechanisms for the preservation of assets pending trial? 1. The mareva injunction does not require the subjected assets to be the subject of the dispute; and 2. It can be made ex parte.
Compare and contrast UK vs. Canadian jurisdiction with respect to mareva injunctions. IN THE UK: • The jurisdiction to grant a mareva injunction is statute based. • In the U.K., courts have applied the American Cyanamid threshold to mareva injunctions. IN CANADA: In Canada, jurisdiction is based in equity and falls within the “just and convenient” equitable powers provided by statute. In Canada, however, Court’s have preferred the prima facie or even “strong prima facie” threshold. While it is not necessary that the justiciable issue exist in the forum where the order is being requested, that forum must nonetheless recognize the issue complained of in a foreign forum as being justiciable.
In a request for a mareva injunction, what must P establish in addition to establishing a prima facie or strong prima facie case? The plaintiff must also establish a REAL RISK that the defendant will dissipate his assets prior to judgment.
How can Plaintiff establish a real risk that D will dissipate his assets prior to judgement? By showing that D has been dealing with his assets in a "manner clearly distinct from his usual or ordinary course of business or living".
What type of remedy is a mareva injunction and what does it aim to do? It is an in personam remedy. It proscribes the defendant's ability to deal with his assets, but does not prevent 3rd party rights on D's assets, which distinguishes a Mareva injunction from remedies available under insolvency legislation.
What are other relevant factors that will be considered in granting a Mareva injunction? 1. The size of the judgment which would be obtained against the defendant; ♣ Very important, especially if you have a rich person 2. The effect it would have on the defendant’s financial position; ♣ If you’re suing for a lot of money but that person doesn’t have a lot of money and you’re freezing it, , it’s probably inappropriate 3. The timing of the asset removal; ♣ If the unusual pattern is a year ago, it’ll be hard to argue (i.e. money transfer +1yr ago) 4. Whether the payment was of a business debt or not; 5. The ability to trace assets through any business reorganization; and 6. The possibility of reciprocal enforcement of judgment in the jurisdiction the assets are being transferred to.
What distinguishes a Mareva injunction from remedies available under insolvency legislation? It proscribes the defendant's ability to deal with his assets, but does not prevent 3rd party rights on D's assets. The order can however be addressed and be binding upon both D and persons holding D's assets or persons owing property to D (in the latter case the order will usually provide that the property be paid into court rather than to D).
In a Mareva injunction, who bears the costs of 3rd party compliance? Usually it is the plaintiff through indemnification.
What legislation allows Mareva Injunctions in aid of the criminal law? • Section 462.33 of the Criminal Code allows the Attorney General to apply for an ex parte order of restraint over property.
What must the Attorney General do to obtain a Mareva Injunction? The Attorney General must apply for an ex parte order of restraint over property (s. 462.33 C.cr.) ; • The A.G. must establish reasonable grounds for believing that the property is subject to forfeiture (i.e. the actual taking of proceeds of crime by the state).
The granting of a mareva injunction in criminal law will be issued subject to which conditions? The Mareva injunctions issued should ensure that the Crown will be able to execute an eventual judgment imposing a fine, subject to the following conditions: 1. The accused has assets within the court’s jurisdiction; 2. Strong prima facie case that the accused is likely to be convicted of the offence and that the fine will equal or exceed the value of the assets; 3. The accused is dissipating or removing the assets for the purpose of making them unavailable to pay the fine; 4. An undertaking as to damages.
What are other circumstances in which certain jurisdictions have allowed for Mareva Injunctions to be issued? To ensure tax collection. In Canada, the Income Tax Act provides for mechanisms which make Mareva injunctions unnecessary in this field.
What is the general principle regarding extra-territoriality in Mareva Injunctions? If the cause of action arises within the Court's jurisdiction, and the defendant is also subject to the Court's jurisdiction, a Mareva injunction can be issued restraining the Defendant's ability to deal with assets both within and outside of the jurisdiction.
What happens if the Defendant deals with assets outside of the jurisdiction of the Mareva Injunction order? Because the injunction operates in personam, D can be held in contempt for dealing with assets outside the jurisdiction in violation of the court order.
True or False The Mareva Injunction only prohibits transfer of assets within its jurisdiction. False, the Order can also prohibit transfer of assets between jurisdictions (this is important when you have assets in a jurisdiction which enforces Canadian judgments, to prevent transfer to jurisdictions which do not).
What factors must be considered when deciding whether to grant a Mareva injunction having extra-territorial effect? 1. The nature of the transaction (local, national, international) giving rise to the cause of action; 2. The risks inherent in that transaction; 3. The residency of the defendant; 4. Enforcement rights for judgment creditors in the jurisdiction where the defendant’s assets are located; 5. Amount of the claim; 6. History of defendant’s conduct.
Can Mareva Injunctions be binding on any third party? No, they can only be binding on 3rd parties within the Court's jurisdiction, and not on 3rd parties outside the Court's jurisdiction.
If a multi-national corporation has offices or a subsidiary in the Court's jurisdiction, can it be held liable for the actions of a related entity in another jurisdiction? The Babanaft proviso has been developed to protect third parties from contempt proceedings: o Provided that, in so far as this order purports to have extra-territorial effect, no person shall be affected thereby or concerned with the terms thereof until it shall be declared enforceable or be enforced by a foreign court and then it shall only affect them to the extent of such declaration or enforcement unless they are: (a) a person to whom this order is addressed or an officer of or agent appointed by a power of attorney to such a person or (b) persons who are subject to the jurisdiction of this court AND (i) have been given written notice of this order at their residence or place of business within the jurisdiction, and (ii) are able to prevent acts or omissions outside the jurisdiction of this court which assist in the breach of the terms of this order.
What two conditions are necessary to give rise to a successful defence of laches: 1. An unreasonable period of time must have passed after P becomes aware of D's violation of Plaintiff's rights; and 2. D must suffer some prejudice if the relief is granted, such that as a consequence of the delay the grant of relief is unreasonable or unjust.
At equity, delay in the institution of proceedings (laches) can result in the total denial of equitable relief, where: 1. The Plaintiff has by the delay acquiesced in the defendant's conduct; or, 2. The plaintiff has by the delay prejudiced the defendant.
What is an unreasonable delay with respect to laches? 1. A short delay can be unreasonable where the prejudice to the defendant is great and the violation of the plaintiff’s rights obvious; 2, Where the nature of the violation is doubtful, the plaintiff can reasonably proceed cautiously, such that a longer delay can be acceptable.
Where is the prejudice to D sufficient to refuse the relief with respect to laches? 1. Where the granting of the relief will operate more harshly on the defendant than if it was granted without the delay; 2. The prejudice must be a real and substantial detriment and not merely trivial.
What is an anti-suit injunction? It is an injunction which seeks to restrain a plaintiff from bringing a suit in another country.
What is the aim of an anti-suit injunction? Seeks to prevent plaintiffs from resorting to jurisdictions which do not follow the doctrine of forum non conveniens and readily assert jurisdiction over a dispute, and offer procedural advantages to a plaintiff, like: 1. Access to jury trials; 2. Strict liability; 3. Access to contingent fee structures; 4. Greater availability of punitive damages; 5. More generous damage awards.
What is the TEST for an anti-suit injunction? (1) The domestic court should not entertain the application until the foreign court has ruled on whether or not it is an appropriate forum; (2) The domestic court can only issue the injunction if it is the most appropriate forum for the dispute, that is to say that the foreign court has not applied the principles of forum non conveniens or clearly misapplied them; o If the domestic court is the most appropriate forum, it must still examine: a. If it is wrong to deprive the plaintiff of the advantage of the foreign jurisdiction; b. If it is unjust to require the defendant to submit to the foreign jurisdiction.
Which provinces have codified the Amchem test and what is the name of the law? Court Jurisdiction and Proceedings Transfer Act of BC, Saskatchewan, and Nova Scotia
What requirement from the Amchem test was modified in a later Ontario Divisional Court case? The Court held that the requirement that: (1) proceedings had to be instituted in the foreign jurisdiction; and (2) that a stay had to be sought in that jurisdiction was the "preferable approach", but that this was not an absolute rule.
What requirement did the House of Lords affirm with respect to Anti-Suit Injunctions? • The requirement that the domestic court must be the most appropriate forum before issuing an anti-suit injunction. Case: Airbus Industrie G.I.E. v Patel o The plaintiff was a resident of the U.K., but the most appropriate forum was India, while he sued in Texas; o The Indian Court had issued an anti-suit injunction, but it was not effective as the Indian Court had no in personam jurisdiction over the plaintiff; o The fact that the domestic court (U.K.) is the only one with in personam jurisdiction over the plaintiff is not a valid exception to this principle.
Traditionally, was specific performance granted with respect to personal service contracts? Why or why not? No, traditionally, specific performance was not granted for personal service contracts for the following reasons: 1. Lack of mutuality; 2. Difficulty with court supervision; 3. Enforcement of a personal service decree being tantamount o involuntary servitude; 4. Resistance to forcing parties back into a relationship where trust and confidence has been lost.
Name the test which applies a more modern approach to specific performance in personal service contracts? The Sufficiency of Confidence Test
What does the "sufficiency of confidence" test seek to determine with respect to specific performance in personal service contracts? The Sufficiency of Confidence test seeks to determine if the relationship is one that requires a high level of confidence, in which case specific performance will not be granted, by examining the following factors: 1. The nature of the work; 2. The people with whom P has to work; 3. The likely effect on the employer and her operation if forced to continue employing P.
Can specific performance be granted in an employment context? Specific performance in an employment context should only be awarded where “special circumstances” are present, because of the ability to terminate employment upon the provision of reasonable notice (such that damages are necessarily at that point an adequate remedy).
What special circumstances can give rise to granting specific performance in an employment context? Special circumstances can include: 1. The failure to observe procedural requirements in dismissing an employee; 2. Need to preserve a peculiar pension or benefit entitlement.
What is the purpose of an award in damages for restitution interest? To prevent unjust enrichment by disgorging the non-performing party of the benefits unjustly received under the contract
What is the purpose of an award in damages for reliance interest? To compensate for expenses incurred and opportunities foregone in reliance on a contract
What is the purpose of an award in damages for expectation interest? To put the Plaintiff in the same position as if the contract had been performed.
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