CANADA Law and Practice Contributed by: Craig Ferris, Marko Vesely, Shannon Hayes and Catherine Whitehead, Lawson Lundell LLP
Legal costs are determined in line with the applicable rules of procedure or contract. 9.2 Rules Regarding Damages For damages, the principles are governed by the cause of action. For both contract and tort actions, the starting point for damages is the sum of money that will put the party who has suffered loss, injury or damage in the same position it would have been in if it had not sustained the loss, injury or damage. In contract, the plaintiff may pursue an expectancy or reliance methodology for calculating damages, while in tort damages are based on the reliance methodol- ogy. For some torts, like trespass, modest damages may be awarded even if there has been no loss, harm or damage suffered. Non-pecuniary damages for personal injury have been capped by the Supreme Court of Canada at CAD100,000 in 1978 dollars, which is approximately CAD443,000 in 2025 dollars. Caps for non-pecuniary damages arising from fatalities may also exist under provincial legislation. The remedies for breach of fiduciary duty are not necessarily limited to damages but also include the accounting of profits and disgorgement of gains. Punitive damages are very much the exception rather than the rule in common law jurisdictions in Canada. They are imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible miscon- duct that departs to a marked degree from ordinary standards of decent behaviour. Punitive damages are rare for breach of contract cas- es. They are more likely to be awarded in breach of fiduciary duty, fraud or negligence situations. 9.3 Pre-Judgment and Post-Judgment Interest The provinces have statutory regimes for the provi- sion of pre- and post-judgment interest on monetary judgments. It is common for plaintiffs to claim these amounts in their commencement documents or any interest amounts owing under a contract.
The statutory regimes differ across the provinces and may provide: • different rates for pecuniary and non-pecuniary awards or heads of damages; • different rates for the pre- and post-judgment periods; • default rules regarding when interest arises and the period over which it accrues; and • the circumstances where the court may depart from the default statutory scheme (such as where interest is provided under contract). The statutory rates are typically less than commercial or banking interest rates. If a provincial scheme does not apply, the federal Interest Act may govern the claim, although it is less prescriptive than the provincial regimes. 9.4 Enforcement Mechanisms of a Domestic Judgment The provinces and territories have statutory regimes for the enforcement of domestic judgments that govern: • enforcement mechanisms including distress, writs, garnishments, orders for sale of land and seizures of other property; • the actions of civil enforcement agencies and bailiffs; • the type or value of property that is exempt from enforcement; and • how money realised through enforcement mecha- nisms is distributed amongst competing creditors. 9.5 Enforcement of a Judgment From a Foreign Country A foreign judgment may be enforced through statute or common law. The provinces and territories have statutory regimes for the reciprocal enforcement of judgments of the other provinces and territories, as well as some other countries and US states. Where a judgment has been obtained in a recipro- cating jurisdiction, the creditor may apply within that province or territory to have the judgment recognised and enforced as a domestic judgment. The court will consider several statutory conditions.
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