Documentation:Torts/Damages

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Damages

Tort damages are a monetary remedy awarded by a court to a party who has suffered harm or loss as a result of another party's proven wrongful conduct.[1] There are several types of damages.[2] Courts may combine more than one type of damages in their order if the circumstances of the case warrants it.[3] The amount and type of damages awarded depends upon the circumstances of each case, as guided by case precedent.[4]

Nominal damages

In the news
Gwyneth Paltrow's ski collision
Smiling headshot of Gwyneth Paltrow, woman with blonde hair and blue eyes.
A lengthy trial involving Gwyneth Paltrow, an American celebrity, came to an end in 2023 when Paltrow was awarded $1 in nominal damages.

Paltrow was accused of causing a ski collision, but as a jury unanimously found she was not at fault, she countersued for $1 in nominal damages. Paltrow claimed she merely sought vindication that she was in the right.[5]

Nominal damages are small, token damages which may be awarded to the party that the court rules in favour of, even if there is no actual tangible harm.[1] Nominal damages typically have little financial or practical value, but are instead intended to demonstrate that the plaintiff's legal rights were infringed by the defendants.[6] Sometimes, plaintiffs will deliberately seek nominal damages instead of a substantial financial award if they wish to reestablish their credibility or refute wrongful claims which were made against them.[7]

Where the plaintiff has proved the elements of a tort that is actionable per se but has not established substantive loss arising from it, courts may award nominal damages. In Fitzpatrick v. Orwin, although the plaintiffs' rights were violated, they could not provide "any evidence of actual losses suffered" from the defendant's trespass.[8] The court awarded $2,800 in nominal damages for trespass on to their property.[9]

Nominal damages are often a token award. In Gambriell v. Caparelli, an Ontario court stated that it would not have awarded "damages in excess of $1" for battery, noting that the plaintiff had been the "author of his own misfortune" since he struck the first blow during an altercation.[10]

Contemptuous damages

Courts sometimes award contemptuous damages when they believe that while the plaintiff is technically correct in a legal sense, they should have never commenced legal proceedings in relation to the incident. Similar to nominal damages, contemptuous damages often have very little financial value and are awarded when the plaintiff cannot provide any evidence of quantifiable losses arising from the defendant's conduct.[11] However, contemptuous damages also "signal the court’s view that the plaintiff was overly sensitive".[12]

In 2017, Vancouver lawyer Kyla Lee became particularly distraught at a negative review left on Google for her firm, Acumen Law, by a former client. Lee's law firm wrote to the client and threatened to sue him for defamation if he didn't promptly remove the review from the internet.[13] The review read as follows:[14]

"I spent nearly $2000 for kyla lee to lose a case for me that they seemed they didnt (sic) put any effort into. Anywhere else would be moore (sic) helpful.worstest (sic) lawyer.would not recommend".[14]

While the court found that the statements were derogatory, Justice Murray noted that the plaintiffs provided "little information" on the impact that the review had.[15] Demonstrating the "court’s disapproval of the plaintiffs’ actions in this proceeding", the plaintiffs were awarded just $1.[16] The court denounced Lee's actions, adding that "a lawyer must exercise restraint when it comes to launching legal action" in circumstances like this, as while a lawyer can represent themselves, defendants would have to incur expenses and likely "will suffer significant anxiety about being sued by a lawyer."[17]

Compensatory damages

Compensatory damages, unlike nominal damages, are intended to compensate the plaintiff for any tangible financial losses they have been able to demonstrate in court. There are two types of compensatory damages. Pecuniary (special) damages are awarded for quantifiable monetary losses, such as lost earning from work, medical bills, and repair costs.[6] Non-pecuniary damages are awarded for non-quantifiable, abstract losses, such as pain, suffering, and disfigurement.[6]

Pecuniary damages

Injuries which incur medical expenses are a common scenario where a court would award pecuniary damages to the plaintiff to compensate them for costs incurred in their treatment. In Bettel v. Yim, the plaintiff was awarded damages in the amount of $1,113.22 for "medical services and hospital expenses" to compensate for the expenses he incurred in treating the head injuries he suffered due to the defendant's actions.[18]

When awarding pecuniary damages, courts are particularly concerned with assessing damages at the time of loss. The principle behind this is that the plaintiff is entitled to damages sufficient to put them in the position they would have been in had the damage not occurred. For example, if a plaintiff is suing for the value of stolen or lost goods, the court would consider the value of the goods at the time that the loss occurred, rather than the value at the time of purchase. The timing of valuation is significant since items may appreciate in value (or likewise depreciate) between the date of purchase and when the plaintiff suffered the loss.[19]

Loss of earning potential

Pecuniary damages are often awarded when the nature of the injury means that the plaintiff is no longer able to pursue their current path of employment, and as such they would lose out on their future income potential.[20] Sometimes, the awards for lost earnings can be substantial, such as if the injured party was young and in a high-earning career path.

In the case of Danicek v. Alexander Holburn Beaudin & Lang, a recent law school graduate, who suffered serious injuries during a work-related social function,[21] received nearly $6 million in damages in 2010, including $5.1 million which was attributed to "loss of future earning capacity".[22] The court took note that Michelle Danicek had the "potential to become a very successful solicitor" and would have very likely become partner and earned a "substantial income" at a large national firm.[23]

Non-pecuniary damages

Non-pecuniary damages are not in a direct sense "compensatory in nature", but can instead be considered as "additional money to help the plaintiff in making his or her life more endurable".[24] Courts typically consider a number of factors when deciding if non-pecuniary damages should be award, and what the extent of these damages should be, including:[25]

  • Age of the plaintiff;
  • Nature of the injury;
  • Severity and duration of pain;
  • Disability;
  • Emotional suffering; and
  • Loss or impairment of life.

In addition to these factors, the court may also consider the plaintiff's impairment of family, marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle.[25] In Danicek, the court considered the plaintiff's "loss of enjoyment of life" and the fact that her lifestyle had dramatically changed and she was "unable to engage in many recreational activities", such as hiking on the Grouse Grind, due to her injuries.[26] The plaintiff could only eat at quiet restaurants as loud venues exacerbated her headaches.[27] Taking into account all these factors, the court found it appropriate to award the plaintiff $185,000 specifically for non-pecuniary damages.[28]

Caps on non-pecuniary damages

Headshot of Alex Jones, with blue and purple background.
Following successful defamation claims in the United States against far-right conspiracy theorist Alex Jones, the court ordered damages of $1.5 billion USD to victims of his claims that a 2012 school shooting was a hoax. Jones subsequently filed for bankruptcy.[29]

A trilogy of Supreme Court of Canada cases in 1978 placed a cap on the amounts which can be awarded as non-pecuniary damages.[24] Justice Dickson in Andrews v. Grand & Toy noted that non-pecuniary damages were difficult to quantify and did not rely on an objective measure, as determining such an award was "a philosophical and policy exercise". This posed the risk of damages escalating to excessive amounts -- a criticism that has been leveled at damages awards in some United States tort cases.[30] Additionally, the Court wished to set a uniform national standard on damages to ensure that everyone across Canada would be entitled to "a more or less equal measure of compensation".[31] Therefore, the Court set a limit of $100,000 in 1978,[32] a limit that must be adjusted upwards to account for inflation.[33]

Exceptions to the damages cap

There have been several instances where the Supreme Court of Canada has exceeded the 1978 upper limit for non-pecuniary damages. [24] In the defamation case of Hill v. Church of Scientology, a lawyer who was defamed by the Church of Scientology[34] was awarded $300,000 in damages.[35] In another 2005 loss-of-reputation case,[36] the Court awarded $430,000 in non-pecuniary damages.[24]

Despite these exceptions, courts have still largely stuck to the upper limit. In the 2003 BC Supreme Court case of Lee v. Dawson, a jury attempted to award $2 million to a teenager who suffered a brain injury, severe depression, stunted psychological growth and permanent facial scarring from a motor vehicle accident.[24] The trial judge lowered this amount to $294,000, which was equivalent to the cap (when adjusted for inflation).[37]

However, particularly egregious acts of terrorism by a foreign state may attract exceptional compensatory awards for pain and suffering. After the Iranian government shot down Ukraine International Airlines Flight 752 in January 2020, the surviving family members of several Canadians who were killed filed a claim against Iran in the Ontario Superior Court.[38] In what was the first time a Canadian court had to determine a damages award for "loss of life caused by terrorism",[39] the court ultimately awarded $1 million to each of the estates of the six deceased claimants.[40] It was noted that the judicially-imposed cap does not apply to "cases of intentional wrongdoing involving criminal behaviour", such as shooting a civilian airliner with two missiles.[41]

Aggravated damages

Aggravated damages in Malaysia
On the podcast Skrinecast, lawyers discuss the fluctuations in the amount of aggravated damages awarded in Malaysian medical negligence cases.[42]

Aggravated damages are often awarded in cases where the defendant's conduct towards the plaintiff was particularly egregious. Such damages compensate the plaintiff for intangible effects such as humiliation and distress.[6] Courts must avoid double-counting aggravated damages and general (compensatory) damages.[43]

In deciding whether an award of aggravated damages is warranted, the court may consider the particular circumstances and nature of the act committed by the defendant. For example, in Norberg v. Wynrib, the Supreme Court noted how the battery in issue had taken place in particularly "humiliating or undignified circumstances".[44] This included, among other things, the fact that the defendant doctor had given drugs to a chemically dependent patient in exchange for sexual favours, in a relationship that was exploitative.[45]

Punitive/exemplary damages

Punitive damages, also called exemplary damages, are awarded in cases where the court finds it necessary to punish a defendant for their purposely harsh, vindictive or malicious behaviour.[24] These damages are not concerned with compensating the plaintiff for the harms they have suffered. Rather, they aim to punish the defendant for their conduct.[46] They are awarded in exceptional cases that warrant punishment due to the "harsh, vindictive, reprehensible and malicious nature" of the defendant's conduct.[47] In Norberg v. Wynrib, the court awarded the plaintiff an additional $10,000 in punitive damages since the defendant, a medical doctor, had abused his doctor-patient relationship to obtain sexual favours in a manner which was "offensive and reprehensible".[48]

When malicious conduct is shown to persistent, rather than a one-off event, courts are more open to awarding punitive damages. The court in Hill v. Church of Scientology noted that the defendant's actions were continuous and carried out in the "most damaging manner imaginable".[49] Temporally the Church's actions were a "continuing attempt at character assassination" that continued even after the initial trial. The Supreme Court of Canada therefore found it apt to impose $800,000 of punitive damages, in addition to general and aggravated damages.[50]

When deciding what amount (if any) of punitive damages to award, courts also consider the cumulative effects of other damages, such as the amount of compensatory damages that have been awarded to the plaintiff. Courts award additional punitive damages “if, but only if” the existing damages are deemed inadequate to sufficiently punish the defendant.[51] Overall, punitive damages are awarded with consideration of "any other fines or penalties suffered by the defendant" in relation to the misconduct.[52]

Punitive damages and criminal prosecution

Generally, tort damages serve a compensatory function. The aim of tort litigation can be considered to restore the plaintiff to the position they would have been if the alleged wrongdoing had not happened. The aims of retribution, deterrence, and denunciation are typically aims of the criminal law system. In tort law, awards of punitive damage align with these goals as well. Therefore, punitive damages are rarely awarded in cases where the defendant has also been convicted and punished for a criminal offence relating to the alleged wrongdoing.[53] Despite this, a criminal conviction is not a "complete bar" punitive damages as a court may exercise its discretion when deciding what remedies are appropriate for a particular case.[53]

In Fitzpatrick v. Orwin, the court took note of the fact that Mr. Fitzpatrick initially faced criminal harassment charges, but these charges were later withdrawn. This meant that he did not face any punishment for his harassing behaviour.[54] Noting the particularly egregious nature of Mr. Fitzpatrick's conduct, the court decided to award punitive damages of $20,000 against him.[55]

Limits on punitive damages

Although there is not set numerical limit for punitive damages (like the Supreme Court has established for non-pecuniary damages), courts tend to exercise caution and restraint when awarding punitive damages. In the case of Boucher v. Wal-Mart, the plaintiff (a Wal-Mart employee) was initially awarded $150,000 in punitive damages against Pinnock (a Wal-Mart manager) and $1 million against Wal-Mart itself for malicious conduct of Pinnock towards the plaintiff.[56] The Ontario Court of Appeal reduced these damages awarded by the jury significantly, to $10,000 and $100,000 respectively.[57] When reducing the judgement against Wal-Mart, the Court noted the short duration of the misconduct (less than six months) and the fact that Wal-Mart did not profit from the wrongdoing.[58]

Restitutionary damages

Similar to compensatory damages, restitutionary damages demonstrate the "law's response to a wrong". However, unlike compensatory damages, which are based on the loss the plaintiff has suffered, restitutionary damages are based on returning to the plaintiff the defendant's gains. Restitutionary damages are based on the principle that a wrongdoer should not profit from the commission of a wrong. By requiring the wrongdoer to pay the plaintiff in an amount corresponding to their unlawful gains, restitutionary damages serve the function of both compensating the plaintiff, and punishing the wrongdoer.[59]

Disgorgement damages

Street view of the corner of a brown building with glass doors and windows, featuring the Atlantic Lottery Corp logo visible on both sides of the building.
Atlantic Lottery Corporation headquarters in downtown Moncton, New Brunswick.

While restitutionary damages focus on the defendant's gain which derived from the plaintiff's assets, disgorgement damages are based on the actual profits enjoyed by the defendant due to his wrongful behaviour (regardless of the source of the profit).[60] Disgorgement is an exceptional remedy, which is not available if ordinary tort remedies are adequate.[61]

Discussion questions

  • Why might a plaintiff sue when the only damages likely to be awarded are nominal? In what circumstances might a nominal damages award be, nor not be, a trivial amount?
  • Who is better placed to quantify an award of general damages: a judge or a jury?
  • What distinguishes aggravated damages from general damages? Can a clear distinction be drawn?
  • If punitive damages are not about compensating loss, why should they be paid to the plaintiff as opposed to the government or a charity? Are punitive damages a windfall for plaintiffs?
  • What distinguishes disgorgement damages from restitutionary damages?

Quiz questions


  1. ↑ 1.0 1.1 Chamberlain, Erika; Pitel, Stephen G.A. (2020). "Remedies". Introduction to the Canadian Law of Torts. LexisNexis. p. 41.
  2. ↑ Fitz, Anna; Major, Peter (25 April 2020). "What's It Worth? A Look At The Types Of Damages In Tort Law". Mondaq.
  3. ↑ See e.g. Gokey v. Usher, 2023 BCSC 1312 (§9.3.4) at paras 278, 285, 307, 325.
  4. ↑ See e.g. Gokey v. Usher & Parsons, 2023 BCSC 1312 (§9.3.4) at paras 305–307.
  5. ↑ Metz, Sam (31 Mar 2023). "Gwyneth Paltrow gets vindication at ski collision trial". Associated Press.
  6. ↑ 6.0 6.1 6.2 6.3 "Ontario Attorney General Glossary of Terms".
  7. ↑ Blanchard, Sadie (July 2022). "Nominal Damages as Vindication". George Mason Law Review. 30: 228 – via SSRN.
  8. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§9.1.3) at para 160.
  9. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§9.1.3) at para 161.
  10. ↑ Gambriell v. Caparelli, 1974 CanLII 679 (ON CC) (§9.1.1) at para 28.
  11. ↑ Chamberlain, Erika; Pitel, Stephen G.A. (2020). "Remedies". Introduction to the Canadian Law of Torts. LexisNexis. p. 42.
  12. ↑ Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at para 27.
  13. ↑ Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at paras 4-7.
  14. ↑ 14.0 14.1 Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at para 3.
  15. ↑ Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at paras 29-33.
  16. ↑ Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at para 38.
  17. ↑ Acumen Law Corporation v. Nguyen, 2018 BCSC 961 (CanLII) at para 35.
  18. ↑ Bettel v. Yim, 1978 CanLII 1580 (ON CC) at para 38.
  19. ↑ Robertson v. Stang, 1997 CanLII 2122 (BC SC) (§9.2.1).
  20. ↑ Chamberlain, Erika; Pitel, Stephen G.A. (2020). "Remedies". Introduction to the Canadian Law of Torts. LexisNexis. p. 44.
  21. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at paras 37-44.
  22. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at para 377.
  23. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at paras 318 and 320.
  24. ↑ 24.0 24.1 24.2 24.3 24.4 24.5 Bau, Lawrence (18 Sep 2014). "The History and Treatment of Damages in Canada".
  25. ↑ 25.0 25.1 Stapley v. Hejslet, 2006 BCCA 34 (§9.3.1) at para 46.
  26. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at paras 255 and 257.
  27. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at para 256.
  28. ↑ Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 (CanLII) at para 261.
  29. ↑ Cabral, Sam (2 Dec 2022). "Alex Jones files for bankruptcy after Sandy Hook verdict". BBC News.
  30. ↑ Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC) at 261.
  31. ↑ Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC) at 263-264.
  32. ↑ Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC) at 265.
  33. ↑ Lindal v. Lindal, 1981 CanLII 35 (SCC) at 640-641.
  34. ↑ Hill v. Church of Scientology of Toronto, [1995] CanLII 59 (SCC) (§9.3.2) at para 168.
  35. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§9.3.2) at para 186.
  36. ↑ Young v. Bella, 2006 SCC 3 (CanLII) at para 66.
  37. ↑ Lee v. Dawson, 2003 BCSC 1012 (CanLII) at paras 4 and 8.
  38. ↑ Zarei v. Iran, 2021 ONSC 8569 (CanLII), at paras 1-5.
  39. ↑ Zarei v. Iran, 2021 ONSC 8569 (CanLII), at para 5.
  40. ↑ Zarei v. Iran, 2021 ONSC 8569 (CanLII), at paras 28-33.
  41. ↑ Zarei v. Iran, 2021 ONSC 8569 (CanLII), at para 31.
  42. ↑ SkrineCast (16 April 2024). [0GH8kEIbb1mQemdvd7fFEw "SkrineCast Episode 19: Aggravated Damages in Medical Negligence Cases"] Check |url= value (help). Spotify.
  43. ↑ Chamberlain, Erika; Pitel, Stephen G.A. (2020). "Remedies". Introduction to the Canadian Law of Torts. LexisNexis. p. 45.
  44. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§9.4.1) at para 54.
  45. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§9.4.1) at para 1.
  46. ↑ Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (§9.5.1) at para 130.
  47. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§9.5.2) at para 54, citing Vorvis v. Insurance Corporation of British Columbia, 1989 CanLII 93 (SCC).
  48. ↑ Norberg v. Wynrib, 1992 CanLII 65 (SCC) (§9.5.2) at para 59.
  49. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§9.5.3) at para 201.
  50. ↑ Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC) (§9.5.3) at para 202.
  51. ↑ Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII) at para 50.
  52. ↑ Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII) at para 94.
  53. ↑ 53.0 53.1 Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§9.5.6) at para 168.
  54. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§9.5.6) at para 169.
  55. ↑ Fitzpatrick v. Orwin, Squires & Squires, 2012 ONSC 3492 (§9.5.6) at para 174.
  56. ↑ Boucher v. Wal-Mart, 2014 ONCA 419 (§9.5.7) at paras 58, 78.
  57. ↑ Boucher v. Wal-Mart, 2014 ONCA 419 (§9.5.7) at paras 64, 92.
  58. ↑ Boucher v. Wal-Mart, 2014 ONCA 419 (§9.5.7) at para 92.
  59. ↑ Clapton, Mysty S (2008). "Gain-Based Remedies for Knowing Assistance: Ensuring Assistants do not Profit From Their Wrongs". Alberta Law Review. 45: 989, 990–992 – via CanLII.
  60. ↑ Clapton, Mysty S (2008). "Gain-Based Remedies for Knowing Assistance: Ensuring Assistants do not Profit From Their Wrong". Alberta Law Review. 45 (4): 993 – via CanLII.
  61. ↑ Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 (§9.7.1) at paras 24, 32–33.
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