Equitable Compensation

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 318-331

CHAPTER

18

EQUITABLE

COMPENSATION

A

INTRODUCTION

Equitable compensation

is a

remedy derived

from

equity's inherent

jurisdiction.1

In

this sense

it is

quite distinct

from

equitable damages

under

Lord

Cairns'

Act.2

It is

perhaps surprising

to

speak

of a

compen-

satory remedy giving damages

in

equity.

As we

have

seen,

much

of

equity's remedial jurisdiction only

flows

following

a

finding that com-

mon law

damages

are

inadequate: where damages

are

adequate, equity

follows

the

law.

Why

then

the

development

of

equitable compensa-

tion?

The

chief reason

is to

provide

remedies

for the

infringement

of

purely equitable rights. Where

the

common

law

would

not

recognize

a

given equitable right

it was

left

to

equity

to

create

its own

compensa-

tory

regime. Other equitable remedies award monetary

relief;

namely,

specific

performance

with

abatement, monetary adjustments accompa-

nying rescission,

and

orders

for an

account. However,

the

goal

of

these

remedies

is

usually restitution.

The

goal

of

equitable compensation

is

to

compensate

a

plaintiffs

actual provable losses.

1 See

Cadbury

Schweppes

Inc.

v. FBI

Foods

Ltd.,

[Cadbury

Schweppes],

[1999]

1

S.C.R.

142;

and

I.E. Davidson, "The Equitable Remedy

of

Compensation"

(1981-

82) 13

Melb.

U. L.

Rev. 349.

2 An Act to

amend

the

Course

of

Procedure

in the

High

Court

of

Chancery,

the

Court

of

Chancery

in

Ireland,

and the

Court

of

Chancery

of

the

Country

Palatine

of

Lancaster,

1858

(U.K.),

21 & 21

Viet.,

c. 27.

318