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Oxford University Commonwealth Law Journal Volume 10, 2010 - Issue 1
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Original Articles

The Law of Remedies: A Prospectus for Teaching and Scholarship

Jeffrey Berryman Professor, Faculty of Law, University of Windsor, Ontario, and of the Faculty of Law, University of Auckland, NZ. An earlier draft of this paper was given at the Melbourne Law School Obligations Group Conference (11 December, 2009). I wish to acknowledge the assistance of my student researchers, Anne-Louise Cole and Tatha Swann, both funded by the Law Foundation of Ontario, and the helpful comments of two anonymous referees.
Pages 123-148 | Published online: 27 Apr 2015

  • Professors David Mullan and Stanley Sadinsky of Queen's University, and Justice Grant Hammond, then professor of law at Dalhousie University, were offering dedicated remedies courses in the late 1970s.
  • Chaim Saiman, ‘Restitution in America: Why the US Refuses to Join the Global Restitution Party’ (2008) 28 Oxford J of Legal Studies 99.
  • David Partlett and Russell Weaver, ‘Restitution: Ancient Wisdom’ (2003) 36 Loyola of Los Angeles L Rev 975.
  • Jeffrey Berryman, Vaughan Black, Jamie Cassels, Michael Pratt, Kent Roach and Stephen Waddams (eds), Remedies: Cases and Materials (5th edn Emond Montgomery, Toronto 2006). One can safely use the term ‘leading’ to describe the casebook, for it is the only commercially published casebook in Canada on the subject. That being said, the casebook is used by most Canadian common law law schools that offer remedies courses.
  • For example, I have reviewed Mark Gillen and Faye Woodman, The Law of Trusts: A Contextual Approach (2nd edn Emond Montgomery, Toronto 2008); Stephen Waddams, Michael Trebilcock, Jason Neyers, John McCamus and Mary Waldron (eds), Cases and Materials on Contracts (3rd edn Emond Montgomery, Toronto 2005); Lionel Smith, Robert Chambers, Mitchell McInnes, Jason Neyers and Stephen Pitel (eds), The Law of Restitution in Canada: Cases, Notes, and Materials (Emond Montgomery, Toronto 2004).
  • Remedies: Commentary and Materials (4th edn LBC, Pyrmont NSW 2004) (fifth edition forthcoming).
  • Remedies: Cases and Materials (7th edn Thomson West, St Paul 2006).
  • Peter Birks, The Classification of Obligations (Clarendon Press, Oxford 1997) 24 describing the secondary remedial right that flows from wrongdoing. See also Peter Birks, ‘Equity in the Modern Law: An Exercise in Taxonomy' (1996) 26 U of Western Australia L Rev 1, 10. In Peter Birks ‘Three Kinds of Objection to Discretionary Remedialism’ (2000) 29 U of Western Australia L Rev 1, 4, he parses the meaning of ‘remedy’ and confines the notion of a ‘remedial right’ to those situations where a remedy is the right born of a wrong (as in commission of a tort), to remedy as the right born of a not-wrong (as in where one is seeking the return of a mistaken payment in unjust enrichment), and remedy as an order of a court (where the remedy is the court's order given in realisation of the plaintiff's rights).
  • See Chase Manhattan Bank v Israel-British Bank (London) Ltd [1981] Ch 105 (Ch) 124 (Goulding J): ‘Within the municipal confines of a single legal system, right and remedy are indissolubly connected and correlated, each contributing in historical dialogue to the development of the other, and, save in very special circumstances, it is as idle to ask whether the court vindicates the suitor's substantive right or gives the suitor a procedural remedy as to ask whether thought is a mental or cerebral process'.
  • Suing Government: Citizen Remedies for Official Wrongs (Yale University Press, New Haven 1983).
  • ‘Remedies and Resistance’ (1983) 92 Yale LJ 585.
  • ‘Principle and Pragmatism in the Law of Remedies' in Jeffrey Berryman (ed), Remedies: Issues and Perspectives (Carswell, Toronto 1991) 1.
  • [1970] 1 WLR 411 (Ch) (’Woollerton’).
  • This structure is drawn from Ernest Weinrib's account of corrective justice. See Ernest Weinrib, The Idea of Private Law (Harvard University Press, Cambridge, Massachusetts 1995); ‘Correlativity, Personality, and the Emerging Consensus on Corrective Justice’ (2001) 2 Theoretical Inquiries in L 107; ‘The Gains and Losses of Corrective Justice’ (1994) 44 Duke LJ 277; ‘Corrective Justice in a Nutshell’ (2002) 52 U of Toronto LJ 349.
  • But see Gary Davis and Michael Tilbury, ‘The Law of Remedies in the Second Half of the Twentieth Century: An Australian Perspective’ (2004) 41 San Diego L Rev 1711, 1736.
  • Grant Hammond, ‘Rethinking Remedies: The Changing Conception of the Relationship Between Legal and Equitable Remedies’ in Berryman (n 12) 87.
  • Of which, see the eventual settlement in Tito v Waddell (No.2) [1977] Ch 106 (Ch).
  • Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (n 8).
  • See Simon Evans, ‘Defending Discretionary Remedialism’ (2001) 23 Sydney L Rev 463; Patricia Loughlan, ‘No Right to the Remedy? An Analysis of Judicial Discretion in the Imposition of Equitable Remedies’ (1990) 17 Melbourne U L Rev 132; Darryn Jensen, ‘The Rights and Wrongs of Discretionary Remedialism’ [2003] Singapore J of Legal Studies 178; Kit Barker, ‘Rescuing Remedialism in Unjust Enrichment Law: Why Remedies are Right’ (1998) 57 Cambridge LJ 301; Michael Tilbury, ‘Teaching Remedies in Australia’ (2000) 39 Brandeis LJ 587, 593.
  • Chaim Saiman, ‘Restitution and the Production of Legal Doctrine’ (2008) 65 Washington & Lee L Rev 993.
  • Peter Birks, ‘Three Kinds of Objection to Discretionary Remedialism’ (n 8) 7.
  • ‘Philosophy of Private Law’ in Jules Coleman and Scott Shapiro (eds), Jurisprudence and Philosophy of Law (OUP, Oxford 2002) 623.
  • Remedies Reclassified (OUP, Oxford 2005).
  • ‘The Structure of Unjust Enrichment Law: Is Restitution a Right or a Remedy?’ (2003) 36 Loyola of Los Angeles L Rev 1037.
  • Stephen Waddams, Dimensions of Private Law (CUP, Cambridge 2003) 21.
  • Waddams (n 25) 15 and 227. Quote taken from Edward Levi, An Introduction to Legal Reasoning (University of Chicago Press, Chicago 1948) 3.
  • Waddams (n 25) 232.
  • Alan Schwartz, ‘The Case for Specific Performance’ (1979) 89 Yale LJ 271; Edward Yorio, ‘In Defence of Money Damages for Breach of Contract’ (1982) 82 Columbia L Rev 1365; Anthony Kronman, ‘Specific Performance’ (1978) 45 U of Chicago L Rev 351.
  • Richard Craswell, ‘Instrumental Theories of Compensation’ (2003) 40 San Diego L Rev 1135, 1149–71.
  • ‘The Anatomy of Private Theory: A 25th Anniversary Essay' (2005) 25 Oxford J of Legal Studies 203.
  • Law in Context: Enlarging a Discipline (Clarendon Press, Oxford 1997) 24.
  • The Rise and Fall of Freedom to Contract (Clarendon Press, Oxford 1979) 235 and Patrick Atiyah, Pragmatism and Theory in English Law (Stevens & Sons, London 1987) 168–170.
  • Contract Law in America (University of Wisconsin Press, Madison 1965) 20–2.
  • The Transformation of American Law 1780–1860 (Harvard University Press, Cambridge 1977) 105, 107, 108.
  • The Law of Contract (4th edn LexisNexis UK, London 2003).
  • Collins (n 35) 20–45.
  • The New Social Contract: An Inquiry into Modern Contractual Relations (Yale University Press, New Haven 1980); ‘Relational Contract Theory: Challenges and Queries' (2000) 94 Northwest U L Rev 877.
  • The Death of Contract, Ronald Collins (ed) (Ohio State University Press, Columbus 1995) originally published In 1974.
  • Collins (n 35) 39.
  • Weidenfeld and Nicolson, London 1970.
  • Twining (n 31) 62.
  • Shalin Sugunasiri, ‘Contextualism: The Supreme Court's New Standard of Judicial Analysis and Accountability’ (1999) 22 Dalhousie LJ 126.
  • Health Services & Support—Facilities Subsector Bargaining Assn v British Columbia [2007] 2 SCR 391 (Supreme Court of Canada (SCC)).
  • West Publishing Co, St Paul 1973.
  • Dobbs (n 44) [1.2].
  • Butterworths, London 1973.
  • Penguin Books Ltd, Harmondsworth, England 1972.
  • The leading damages book in the Commonwealth in the 1970s, and perhaps still today, is McGregor on Damages (18th edn Sweet & Maxwell, London 2009). The current author, Harvey McGregor, took over sole authorship In 1961, for the 12th edition. At that time, McGregor did much to transform the structure of the original author, John Maine. McGregor stripped much of Maine's original focus which concentrated on the causes of action, and in that sense it mirrors Ogus. Nevertheless, it has retained much of its substantive classification noting damages for various causes of action.
  • The Law Book Co Ltd, Sydney 1971.
  • Spry (n 49) viii.
  • Michael Tilbury, Civil Remedies (Butterworths, Sydney 1990) and Andrew Burrows, Remedies for Torts and Breach of Contract (3rd edn OUP, Oxford 2004).
  • Donald Harris, David Campbell and Roger Halson, Remedies in Contract & Tort (2nd edn Butterworths LexisNexis, London 2002), although drawing other perspectives as well.
  • James Fischer, Understanding Remedies (2nd edn LexisNexis, Newark 2006).
  • Stephen Waddams, The Law of Damages (looseleaf edn Canada Law Book, Toronto); Robert Sharpe, Injunctions and Specific Performance (looseleaf edn Canada Law Book, Toronto); Jamie Cassels and Elizabeth Adjin-Tettey, Remedies: The Law of Damages (2nd edn Irwin Law, Toronto 2008); Jeffrey Berryman, The Law of Equitable Remedies (Irwin Law, Toronto 1990). In New Zealand see the collection of essays edited by Peter Blanchard: Civil Remedies in New Zealand (Brookers, Wellington 2003) providing both an interest and a cause of action account.
  • Cane (n 30).
  • Jeff Berryman, ‘The Compensation Principle in Private Law’ (2008) 42 Loyola of Los Angeles L Rev 91.
  • Jeff Berryman, ‘Accommodating Ethnic and Cultural Factors in Damages for Personal Injury’ (2007) 40 U of British Columbia L Rev 1.
  • Atiyah describes a focus upon remedies as being one of the great strengths of an English pragmatic legal tradition, using both search (Anton Piller) and asset freezing orders (Mareva) as examples: Atiyah, Pragmatism and Theory in English Law (n 32) 55.
  • Peter v Beblow [1993] 1 SCR 980 (SCC) 993.
  • See Barker (n 19), arguing that the English law of unjust enrichment, in contrast to developments in Canada and the United States, must develop a remedial agenda.
  • ‘Damages for Lost Opportunity to Bargain’ (1982) 2 Oxford J of Legal Studies 290. This analysis provides an account consistent with the compensatory principle for cases such as Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798 (Ch) wherein the court awarded damages for breach of a restrictive covenant which imposed limits on the form of development undertaken by the defendant. The plaintiff experienced no actual decline in its own property value; nevertheless, the court awarded damages as a percentage of the profit made by the defendant on the basis that this is what would have to be paid to gain a release from the restrictive covenant.
  • An exposition of the meaning of dignity is given by Grant Hammond, ‘Beyond Dignity’ in Jeff Berryman and Rick Bigwood (eds), Remedies: New Directions in the Common Law (Irwin Law, Toronto 2010) ch 6.
  • Trociuk v British Columbia (Attorney General) [2003] 1 SCR 835 (SCC).
  • Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519 (SCC).
  • Wallace v United Grain Growers Ltd [1997] 3 SCR 701 (SCC), but now see Honda Canada Inc v Keays [2008] 2 SCR 362 (SCC).
  • See Martha Jackman, ‘Charter Remedies for Socio-economic Rights Violations: Sleeping Under a Box?’in Kent Roach (ed), Taking Remedies Seriously (Les Éditions Yvon Blais, Montreal 2010) (forthcoming) <http://www.escr-net.org/usr_doc/Jackman_Charter_Remedies_for_Socio-economic_Rights_Violations.pdf>xh accessed 10 July 2010.
  • Robert Sharpe and Kent Roach, The Charter of Rights and Freedoms (4th edn Irwin Law, Toronto 2009) 385.
  • Hammond (n 62).
  • On vindication, see Normann Witzleb and Robyn Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 Tort L Rev 16.
  • It is inconsistent to talk of a spectrum of dignity—to imply gradations, and assert, as corrective justice adherents do, that dignity knows no gradations. One of the problems with giving recognition to dignity as a compensable interest or right is to recognise that dignity does have gradations. Fundamental dignity, of the likes that is extolled as the reason to prosecute genocide as a crime against humanity, is qualitatively different from the type of dignity that flows from holding social position and status, ie that dignity we associate as being held by a dignitary. I have explored this difference In Jeff Berryman, ‘Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss’ (2004) 41 San Diego L Rev 1521 and suggested a distinction should be made between fundamental and prosaic dignity.
  • Michael Tilbury, ‘Coherence, Non-Pecuniary Loss and the Construction of Privacy’ in Berryman and Bigwood (n 62) chapter 5.
  • Tilbury (n 71). Tilbury argues that my approach does not deal with the substantive difficulties of how a tort of privacy is to be constructed because it avoids this question by making any compensation for dignity parasitic on some other existing tortious right being established, and because it would cause potential confusion with how damages for loss of reputation are currently calculated. I do not disagree with Tilbury's first criticism: better that some get compensation for loss of dignity than none, and in fact, this is an example of an integrationist approach at work. With respect to the second, I believe that at least Canadian law could do better on the quantification of damages for defamation if my approach was embraced (non-pecuniary losses for mental distress, dignitary losses, and tort for profit would constitute the compensable heads).
  • See Robyn Carroll, ‘Beyond Compensation: Apology as a Private Law Remedy’ in Berryman and Bigwood (n 62) chapter 10.
  • An example is the current issue from New Zealand over whether disputes over tendering by public institutions are amenable to judicial review or damages for contractual breach. See Lab Test Auckland Ltd v Auckland District Health Board (unreported, New Zealand Court of Appeal, 25 September 2008).
  • For example, the Charter of Rights and Freedoms (Constitution Act 1982 (Canada)) s 24, and the various formulas of the Chancery Amendment Act 1858 (Lord Cairns' Act).
  • For example, the Copyright Act 1994 No 143 (NZ) part 6, the Employment Relations Act 2000 No 24 (NZ) ss 123 and 125 stipulating reinstatement as the primary remedy for successful grievances, the Human Rights Act 1993 No 82 (NZ) s 92I–92M specifying the types of relief and controls on damages that can be awarded for human rights violation.
  • Explaining basic remedies principles to members of inferior tribunals may also prove a useful task for remedies scholars. In a recent conference I attended the head of Ontario's Residential Tribunal under the Residential Tenancies Act 2006 (ON) stressed upon me the problems encountered by lay members when asked to award various compensation orders for repairs to residential premises. These problems included issues of cost of repairs as against diminution of value, betterment, loss of use, and non-pecuniary loss—all difficult concepts to grapple with.
  • Bruce Chapman, ‘Wrongdoing, Welfare, and Damages: Recovery for Non-Pecuniary Loss in Corrective Justice’ in David Owen (ed), Philosophical Foundations of Tort Law (Clarendon Press, Oxford 1995) 409. But this view may not be universally shared by corrective justice proponents. See Benjamin Zipursky, ‘Coming Down to Earth: Why Rights-Based Theories of Tort Can and Must Address Cost-Based Proposals for Damages Reform' (2006) 55 DePaul L Rev 469.
  • The left-right dichotomy is inelegantly drawn. Patrick Atiyah, who could not be characterised as politically right, makes the same point in The Damages Lottery (Hart Publishing, Oxford 1997) 16.
  • Ontario Law Reform Commission, Report on Compensation for Personal Injuries and Death (Ministry of the Attorney General, Toronto 1987) 105. The Commission divided on this particular issue. While a majority of the Commission believed that as a policy decision there was no reason to abolish non-pecuniary damages for personal injury, a dissenting commissioner observed that such a position was inconsistent with an earlier report of the OLRC on the introduction of no-fault auto insurance (Ontario Law Reform Commission, Report on Motor Vehicle Accident Compensation (Ministry of the Attorney General, 1973)) and where the OLRC had recommended the complete abolition of non-pecuniary damages in auto accidents. The UK Law Commission recommended against abolition of non-pecuniary damages because they recognised the personal and financial consequences of injury: Law Commission, ‘Damages for Personal Injury: Non-Pecuniary Loss' (Law Com No 257, 1999) [2.1]. Additionally, almost all accident victims that had taken part in the Law Commission's survey had recommended their retention: Law Commission, ‘Personal Injury Compensation: How Much is Enough?’ (Law Com No 225, 1994) [11.5]–[11.6]. The Commission asserted that public opinion on the level of non-pecuniary damages for personal injury should be influential: ‘Damages for Personal Injury: Non-Pecuniary Loss' [3.42].
  • ‘Damages for Personal Injury: Non-Pecuniary Loss' (n 80) [3.107].
  • [2001] QB 272 (CA) (’Heil’).
  • Woodhouse's original report called for pecuniary loss only: Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967). The eventual legislation allowed for modest lump sum payments to a maximum of $17,000 to compensate for a variety of losses but also encompassing loss of amenities, loss of enjoyment and pain and suffering. When Woodhouse reviewed the scheme as chair of the New Zealand Law Commission he advocated the repeal of the lump sum awards. See New Zealand Law Commission, Personal Injury: Prevention and Recovery (NZ Law Comm R4, Wellington, 1988) [193]–[194] (‘NZLC Personal Injury Report’). Reviewing this report, Bruce Dunlop suggested that removal of the lump sum payments may also have proven a difficult pill for the public to swallow. See Bruce Dunlop ‘Personal Injury, Tort Law, and Compensation’ (1991) 41 U of Toronto LJ 431, 442.
  • The current maximum award is $100,000 but subject to a periodic cost of living adjustment. See Accident Compensation Act 2001(NZ) No. 49 schedule 1, ss 56 (current maximum award) and 116 (required adjustment based on formula related to movements in the Consumer Price Index).
  • Richard Lewis, ‘Increasing the Price of Pain: Damages, The Law Commission and Heil v Rankin’ (2001) 64 Modern L Rev 100, 102.
  • Damages for Personal Injury: Non-Pecuniary Loss (n 80) [3.110].
  • Heil (n 82) 309.
  • Lewis (n 85) 104 (citing ABI Report, ‘Assessment Of The Possible Impact Of Reform Of The Law Of Damages For Pain And Suffering On UK Insurers' Claims Costs' (Bacon & Woodrow, submitted to Court of Appeals, February 2000)).
  • See The Commonwealth of Australia, ‘Review of the Law of Negligence—Final Report’ (Canberra, September, 2002) [13.28] and Recommendation 47, available at <http://revofneg.treasury.gov.au/content/Report2/PDF/Law_Neg_Final.pdf> accessed on 10 July 2010 (‘Ipp Review’). An overview of the consultation, including its terms of reference, is available at <http://revofneg.treasury.gov.au/content/home.asp> accessed on 10 July 2010. The Ipp Review noted that non-pecuniary damages accounted for 45% of the total cost of public liability personal injury claims between $20,000 and $100,000. See [13.27] (citing the Trowbridge Report to the Insurance Issues Working Group of Heads of Treasuries, ‘Public Liability Insurance: Practical Proposals for Reform' (Melbourne, 30 May 2002)). Most of the States have now enacted civil liability acts which create a graduated scheme indexing severity of the injury against a percentage of the maximum allowable non-pecuniary damages. Quadriplegia is the most severe rating 100% and warrants the maximum permissible award AUS$350,000 (adjusted for inflation. NSW now AUS$450,000). Less severe ratings warrant a lower percentage of the maximum, however, the scheme is not just a straight line correlation. An injury that is ranked 15% or less severe warrants no non-pecuniary damages; thus creating an effective cap on lower level awards in all cases. For injuries rated between 15% and 34% severe, there are incremental stepped increases; a 20% severity rating will be awarded 3.5% of the maximum, a 25% severity awarded 6.5%, and a 34% severity awarded 34%. The severity ratings use a variety of scales, such as the American Medical Association guidelines for measuring impairment, the psychiatric impairment rating scale; some states include assessment tools within regulations. See, for instance, Civil Liability Regulations 2003 (Queensland) Schedule 4 (reprinted as at 17 March 2010) (available at <http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/C/CivilLiabR03.pdf> accessed on 10 July 2010). In Western Australia the absolute limit stands at AUS$327,000. Civil Liability Act 2002 (Western Australia) s 10 (available at <http://www.austlii.edu.au/au/legis/wa/consol_act/cla2002161> accessed on 10 July 2010). The impact of the reforms that followed the Ipp Commission have been dramatic, and have engendered criticism of having gone too far, even from the author himself. Chris Merritt, ‘Liability of flawed law reform’ The Australian (Sydney 14 April 2007) <http://www.theaustralian.com.au/news/features/liability-of-flawed-law-reform/story-e6frg6z6–1111113338306> accessed 10 July 2010. The reforms were far more extensive than the cap on non-pecuniary damages, and it is these areas that have incurred most of the wrath of critics. There is also a degree of stoicism in the reforms, perhaps consistent with a nation that immortalises the bearing of pain as a cultural trait.
  • See Gordon v Greig 2007 CanLII 1333 (Ontario Superior Court of Justice) (Ont SCJ) [79] awarding $310,000 for non-pecuniary loss; Huinink (Litigation Guardian of) v Oxford (County) 2008 CanLII 14799 (Ont SCJ) [89] awarding $310,000. Applying a straight inflation calculator the amount In 2009 should be $314,480. See also Waters v Bains 2008 BCSC 823 (British Columbia Supreme Court) [99] awarding $325,000.
  • [2006] 1 SCR 108, 122. The plaintiff had been enrolled as a long distance student at Memorial University with hopes of eventually getting into the university's social work program, which was a restricted entry program. The plaintiff registered for a social work course and wrote an essay for Professor Bella. In that essay, the student appended a first-hand account of a person being sexually abused as a child and commented that sexual abusers were usually people who had themselves been sexually abused as a child. The account had actually been plagiarised from a course book. The book was included in the bibliography but the plaintiff made no reference to the specific first-hand account. When professor Bella received the essay, she took this as being a first-hand confession by the student of sexually abusing children, and thus thought she should inform the head of the department as well as the Child Protection Services (CPS). This set in motion a series of events where the truth that the offending material was plagiarism (not a confession) was not discovered until the plaintiff was finally questioned by a CPS worker some two years after she wrote the essay. In the intervening time, the plaintiff's name had been bandied about by some of the university staff, the CPS and other social workers as a possible sex abuser and had her named entered on a child sex abuser registry. In addition, the plaintiff was not admitted to the social work program. As a result, her employment prospects were adversely affected and she suffered the above mentioned non-pecuniary loss.
  • Attorney General v Gilbert [2002] 2 NZLR 342 (NZCA) affirming an award of $75,000 for humiliation, anxiety and distress in a claim for defendant's breach of its contractual duty to maintain a safe workplace. In contrast, Canada may be going the other way with respect to wrongful dismissal. In a recent decision, Honda Canada Inc v Keays, the Supreme Court of Canada recognised that such an award could be made where the plaintiff could show that an independent actionable wrong (other than the fact of dismissal) arose and that the loss was within the contemplation rules of Hadley v Baxendale [2008] 2 SCR 362, 389–90 (SCA). However, whereas the trial judge had found significant breaches of the implied contractual obligation of good faith in the manner of dismissal, and had adjusted damages accordingly, the Supreme Court overturned the trial judge's factual findings and said no award for non-pecuniary damages was justified (at 392).
  • ‘General Damages are Incoherent, Incalculable, Incommensurable, and Inegalitarian (But Otherwise a Great Idea)' (2006) 55 DePaul L Rev 253, 259–66. Perhaps not surprisingly, there would appear to be a strong correlation between a victim's desire to pursue non-pecuniary damages, and the amount accepted in settlement, with the advice received from their lawyer (citing at 260–1 Donald Harris, Mavil Maclean, Hazel Genn, Sally Lloyd-Bostock, Paul Fenn, Peter Corfield and Yvonne Brittan, Compensation and Support for Illness and Injury (Clarendon Press, Oxford 1984) 124, reporting on UK experiences). In the United States, the cost rules, which make each party liable for their own legal costs, means that the amount awarded for non-pecuniary (in the US called ‘general damages’) damages may be totally absorbed in paying legal fees; see Stephen Sugarman, ‘A Comparative Law Look at Pain and Suffering Awards' (2006) 55 DePaul L Rev 399, 401–2. Paradoxically, the award then does nothing to alleviate pain and suffering.
  • See John McCamus, ‘Prometheus Bound or Loose Cannon? Punitive Damages for Pure Breach of Contract in Canada’ (2004) 41 San Diego L Rev 1491, 1493.
  • ‘Punitive Damages in Canada: Hard Choices and High Stakes' [1998] NZ L Rev 741.
  • Robert Sharpe, ‘Commercial Law Damages: Market Efficiency or Regulation of Behaviour?’ in Law Society of Upper Canada's Special Lectures: Modern Law of Damages (Irwin Law, Toronto 2005) 327, 348.
  • ‘Restitution as an Alternative to Damages in Contract and Tort' in Law Society of Upper Canada's Special Lectures: Modern Law of Damages (n 96) 123.
  • Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 (High Court of Australia (HCA)) 393.
  • Co-operative Insurance Society Ltd v Argyle Stores(Holdings) Ltd. [1998] AC 1 (HL) (’Argyle Stores’).
  • In Canada, see Doucet-Boudreau v Nova Scotia [2003] 3 SCR 3 (SCA) (maintaining control over court order and requiring government to report back on its efforts to provide French language education in accordance with Charter-protected minority language rights) and Re Manitoba Language Rights [1985] 1 SCR 721, requiring government to translate all statutes into French language. Although the possibility exists for more invasive supervisory role exercised by the courts, in fact the governments have willingly complied with these orders when made. A similar result may in fact happen if courts willingly embrace specific performance of contracts of the Argyle Stores type as in fact happened in Scotland. See Highland and Universal Properties Ltd v Safeway Properties Ltd [2000] SLT 414 (Scotland Court of Session).
  • The performance interest was first articulated by Daniel Friedmann and simply describes the totality of all aspects of the promised contractual performance and the interest the promisee has in actual (as against substitutional) performance: Daniel Friedmann, ‘The Performance Interest in Contract Damages’ (1995) 111 LQ Rev 628, 629. The interest has been advanced to more readily justify specific performance and to value in damages the amenity usage which the particular plaintiff has in actual performance of the contract. See Brian Coote, ‘Contract Damages, Ruxley and the Performance Interest’ (1997) 56 Cambridge LJ 537; ‘The Essence of Contract’ (1988) 1 J Contract L 91 (Part I) and 183 (Part II) (expanding on the performance interest).
  • RSC 1985, c.C–36 and see Keith Yamauchi, ‘The Courts’ Inherent Jurisdiction and the CCAA: A Beneficent or a Bad Doctrine?’ (2004) 40 Canadian Business LJ 250, 263.
  • My colleague William Bogart has written extensively about the role litigation plays in shaping societal response to social issues and the impact on political discourse that ensues. See William Bogart, Courts and Country: The Limits of Litigation and the Social and Political Life of Canada (OUP, Toronto 1994); Consequences: The Impact of Law and its Complexity (University of Toronto Press, Toronto 2002); Good Government? Good Citizens? Courts, Politics, and Markets in a Changing Canada (University of British Columbia Press, Law and Society Series, Vancouver 2005).
  • I have written on Canadian efforts in this regard in ‘Up in Smoke: What Role Should Litigation Play in Funding Canada's Health Care' (2004) 12 Health LJ 125; ‘Canadian Reflections on the Tobacco Wars: Some Unintended Consequences of Mass Tort Litigation' (2004) 53 Intl & Comparative LQ 579.
  • (2006) 85 OR (3d) 665 (Ont SCJ (Divisional Court)) (certifiying class proceeding), [2007] 1 SCR x (leave to appeal to the Supreme Court of Canada refused with costs). The substantive action is still awaiting trial.
  • Jasminka Kalajdzic, ‘Access to a Just Result: Revisiting Settlement Standards and Cy Pres Distribution’ (2010) 6 Canadian Class Action Review 215; John Kleefeld, ‘Class Actions as Alternate Dispute Resolution’ (2001) 39 Osgoode Hall LJ 817.
  • Woollerton (n 13).
  • Lon Fuller, Basic Contract Law (West Publishing Co, St Paul 1947). See also Scott Gerber, ‘Corbin and Fuller's Cases on Contracts (1942?): The Casebook that Never Was' (2003) 72 Fordham L Rev 595, 596–8 (outlining the structure of contract casebooks and courses in America).
  • John Swan, Barry Reiter and Nicolas Bala, Contracts: Cases, Notes and Materials (7th ed Butterworths, Toronto 2006).
  • Lon Fuller and Melvin Aron Eisenberg, Basic Contract Law (8th ed Thomson/West Publishers, St Paul 2006).
  • For example see Michael Tilbury, ‘Reconstructing Damages’ (2003) 27 Melbourne UL Rev 697, advocating a functional approach to damages assessment so that the lines between compensation, punishment and restoration remain clear, and my own article, ‘The Compensation Principle in Private Law’ (n 56) suggesting a rehabilitation of the compensation principle.

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