Equitable Damages

AuthorJeffrey Berryman
In this chapter we explore the extent to which chancery courts can
award equitable damages. Hi storically, chancery always exercised a
jurisdiction to award monetar y awards, either as equitable compen-
sation1 or as an account of prof‌its. However, the jurisdiction to gra nt
damages was doubtful. By 1858 it was felt necessar y in England to pass
the Chancery Amendment Act,2 better known as Lord Cairns’ Act, so as
to empower chancery courts w ith jurisdiction to award damages in
claims for injunctions and speci f‌ic performance.3 Although the leg isla-
tion was subsequently repealed it s sentiments have been retained, prin-
cipally in legislation th at describes the composition, procedure, and
jurisdiction of superior court s. In Ontario, section 99 of the Courts of
Justice Act4 reads as follows:
1 See Chapter 18.
2 An Act to amend the Cour se of Procedure in the High Court of Chancery, the Court
of Chancery in Ireland , and the Court of Chancery of the Cou nty Palatine of Lan-
ca ste r, 1858 (U.K.), 21 & 22 Vict., c. 27.
3 For an excellent histor y of the development of this juri sdiction, see P. McDer-
mott, Equitable Damages (Sydney: Butt erworths, 1994).
4 R.S.O. 1990, c. C.43.
A court that ha s jurisdiction to grant an injunct ion or order specif‌ic
performance m ay award damages in addition to, or in subst itution
for, the injunction or specif‌ic perform ance.
Similar provisions can be found in most other provinces,5 although i n
some others the jurisdiction is derived from the express preservat ion
of general equ itable jurisdic tion.6
It may appear paradoxical to award d amages in lieu of an equit-
able remedy that is itself conditional on proving that da mages is an
inadequate remedy. But as we shall see, there are two situations where
equitable damages come in to their ow n: where there is no common
law remedy at all, or where the defendant has rai sed suff‌icient argu-
ments against the awarding of specif‌ic performance or injunction so
that the court is left with no alternative but to award damages. In addi-
tion, where equitable damages are given in l ieu of an injunction, the
damages wil l often be for future losses in situations where common law
damages would not be available until there is actual loss.
Of late, the continued vitality of equitable damages as a distinctive
form of redress has been undermined by developments in the avail-
ability of common law damages and equitable compensation. However,
there are still import ant areas of difference. These will be t he focus of
this ch apter.
The legislative jurisdiction for equitable damages states t hat they can
be awarded in addition to or in substitution for an injunction or specif‌ic
performance. Thus, if a court has jurisdiction to grant either an injunc-
tion or specif‌ic relief, it also has jurisdiction to grant equitable dam-
ages. In the past much debate was generated over whether barrier s to
specif‌ic performance and injunctions went to jurisdiction or merely
discretion. If the bar rier went to jurisdiction, then no damages could
be awarded in lieu of the equitable relief. However, if the barrier was
5 See Alberta Judicature Act, R.S.A. 20 00, c. J-2, s. 19; Manitoba The Court of
Queen’s Bench Act, C.C.S.M. c . C280, s. 36; Saskatchewan The Quee n’s Bench
Act, 1998, S.S. 1998, c. Q-1.01, s. 66(1); and Prince Edward Isla nd Judicature Act,
R.S.P.E.I. 1988, c. J-2.1, s. 42.
6 See Nova Scotia Judicat ure Act, R.S.N.S. 1989, c. 240, s. 41; British Columbia
Law and Equity Act, R .S.B.C. 1996, c. 253, ss. 2, 4, & 5. In Newfoundland there
appears to be s omething of a lacuna, where the a doption of English law took
place before the en actment of Lord Cairn’s Act and where no similar prov ision
has since be en enacted.

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