CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
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 posi- tion it would have been in if it had not sustained the loss, injury or damage. In contract, the plaintiff may pursue an expec- tancy or reliance methodology for calculating damages, while in tort damages are based on the reliance methodology. 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 approxi- mately CAD437,000 in 2024 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 accounting of profits and disgorgement of gains. Punitive damages are very much the exception rather than the rule in the common law jurisdic- tions in Canada. They are imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. Punitive damages are rare for breach of contract cases. They are more likely to be awarded in breach of fiduciary duty, fraud, or negligence situations.
another action against the defaulting party to obtain any remedies available for that breach. If a formal offer to settle has been accepted in accordance with the rules of procedure and there is a default in performance, there may be a mechanism to have the formal offer to settle converted into a judgment through application within the existing action. If the settlement amount has been incorporated by the parties into a consent judgment, then that judgment may be enforced as any other judg- ment of the court. 8.4 Setting Aside Settlement Agreements As a contract, a settlement agreement may be set aside on the basis of duress, unconscion- ability, mistake, fraud or breach of fiduciary duty. The bar to setting aside any contract is high. 9. Damages and Judgment 9.1 Awards Available to the Successful Litigant A successful party may obtain one or more of the following remedies at trial: • declaration of rights or interests in property; • an order for specific performance or perma- nent injunction; • common law damages; • equitable compensation or damages; • orders under statutory schemes such as those governing corporations or partnerships; or • pre-judgment and post-judgment interest on monetary awards. Legal costs are determined in line with the appli- cable rules of procedure or contract.
236 CHAMBERS.COM
Powered by FlippingBook