Remedies in Large-Scale Claims

AuthorJamie Cassels - Craig Jones
3. Remedies in Large-Scale
The remedy of choice for victims in large-scale claims will almost certain-
ly be a damages award. The main purpose of a damages award is to com-
pensate the plaintiff for any harm that has been suffered — whether that
harm is physical, financial, or (though with limits) emotional and psycho-
logical. Secondarily, the law of damages may sometimes be deployed as a
type of fine or punishment to deter defendants from particularly reprehen-
sible conduct. This chapter will provide an overview of the law of damages
— both compensatory and punitive. Beyond damages, the law also offers
other remedies that have limited, though important, scope in product lia-
bility and other mass tort cases. Orders may be made that defendants dis-
gorge profits made as a result of the unlawful activity; courts may make
non-monetary orders (injunctions) where appropriate in order to require
defendants to refrain from a course of conduct that is causing harm (or
likely to cause harm); and, in some rare circumstances, courts may order
defendants to take steps to undo harms that have already occurred.
Most of the actions triggered by violations of statutory provisions do not
require that a civil cause of action be granted in the statute. We have dis-
cussed at some length the action in negligence that may be available when
statutory standards are not met. Similarly, statutes imposing statutory
terms of contract1will give rise to actions at common law rather than under
the statute per se.
Yet, there are examples of statutes that do grant or confirm civil reme-
dies where they might not otherwise exist. We have discussed earlier the
civil right of action created in provincial securities legislation;2we have also
described how provincial “polluter pays” legislation can create civil causes
of action in governments or individuals who have paid to clean up environ-
mental damage.3We have also discussed the remedies that might be avail-
able in the mass tort setting under the Charter of Rights and Freedoms.
Space does not permit a comprehensive review of statutes that create
civil liabilities in ways that may be relevant to mass tort actions. However,
in any discussion of remedies in a book on large-scale claims, some con-
sideration of this subject is warranted.
As a general rule, sanctions under federal law are strictly penal in
nature. The important exception is the Competition Act, which provides
both penal and civil sanctions. Under the Act, a person in contravention of
its provisions may be liable for a fine or to imprisonment for a term rang-
ing from a maximum of one year to a maximum of five years (depending
on the offence), or to both a fine and imprisonment. In addition, the Act
provides a civil remedy to any person who has suffered losses due to a
breach of the Act, without any regard to a conviction. This civil remedy has
1 Such as the implied warranties codified in the Sale of Goods Acts. Sale of Goods Act,
R.S.B.C. 1979, c. 370; Sale of Goods Act, R.S.A. 1980, c. S-2; Sale of Goods Act, S.S.
1978, c. S-1; Sale of Goods Act, R.S.M. 1987, c. S.10; Sale of Goods Act, R.S.O. 1990, c.
S.1; Sale of Goods Act, R.S.N.S. 1989, c. 408; Sale of Goods Act, R.S.N.B. 1973, c. S-1;
Sale of Goods Act, R.S.P.E.I. 1988, c. S-1; Sale of Goods Act R.S.N. 1990, c. S-6.
2 Securities Acts. See Securities Act, R.S.B.C. 1996, c. 418; Securities Act, S.A. 1981, c. S-
6.1; Securities Act, 1988, S.S. 1988, c. S-42.2; Securities Act, R.S.M. 1988, c. S.50; Secu-
rities Act, R.S.O. 1990, c. S.5; Securities Act, R.S.Q., c. V-1.1; Securities Act, R.S.N.S.
1989, c. 418; Security Frauds Prevention Act, R.S.N.B. 1973, c. S-6; Securities Act,
R.S.P.E.I. 1988, c. S-3; and Securities Act, R.S.N. 1990, c. S-13, all as amended.
3 Provincial legislation includes the Environment Management Act, R.S.B.C. 1996, c. 118;
Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12, ss. 2(i), 112, 113(1),
114(1), 116; Environmental Management and Protection Act, 2002, S.S. 2002, c. E-10.21;
Contaminated Sites Remediation Act, S.M. 1996, c. C.205; Environmental Protection Act,
R.S.O. 1990, c. E.19; Pesticides Act, R.S.O. 1990, c. P.11; Ontario Water Resources Act,
R.S.O. 1990, c. O.40; Crown Forest Sustainability Act,1994, S.O. 1994, c. 25; Environ-
ment Act, S.N.S. 1994–95, c. 1; Environmental Protection Act, S.N.L. 2002, c. E-14.2;
Environmental Protection Act, R.S.P.E.I. 1988, c. E-9; Environmental Protection Act,
R.S.N.W.T. 1988, c. E-7.
Remedies in Large-Scale Claims 169
been upheld as valid legislation under the federal government’s trade and
commerce power in General Motors v. City National Leasing.4
All eight provinces with trade practices legislation5provide for both
general and punitive or exemplary damages; however, in Ontario and
Prince Edward Island only an “unconscionable representation” will trigger
punitive damages. Rescission, or the nullification of a contract, is available
in all eight provinces with trade practices legislation, although it is not
specifically mentioned in the Saskatchewan legislation.
Equitable remedies may also be available to the consumer under the
trade practices statutes. Specific performance may be awarded in Alberta,
British Columbia, Newfoundland, Manitoba, Saskatchewan, and Quebec.
Quebec also allows courts to order the execution of the obligation at the
vendor’s expense, or provide for the reduction of consumer obligations
under the unfair contract. In Alberta, British Columbia, Newfoundland,
Saskatchewan, and Manitoba, the court may grant injunctions or make
declarations regarding unfair practices.
Nor are the civil remedies available only at the instigation of con-
sumers. In Alberta, British Columbia, Newfoundland, Saskatchewan, and
Manitoba, the director of trade practices (or the equivalent) may become a
party to the consumer’s action, and may even commence and maintain
actions against a supplier on behalf of consumers.
1) Generally
The primary purpose of a damages award is restitution in integrum. Dam-
ages are a sum of money that is designed (so far as possible) to put the
plaintiffs in the position as though they had not been injured. Thus, when
persons are physically injured, a damages award will be fashioned to com-
pensate them for any financial losses they suffer (in terms both of actual
4 [1989] 1 S.C.R. 641. Only if the “pith and substance” of the federal law is not to create
a civil remedy but rather concerns a matter within federal power will a civil remedy
based on the law be valid. In MacDonald v. Vapor Canada, [1977] 2 S.C.R. 134, a provi-
sion granting a civil remedy under the Trade-Marks Act was struck down on the basis
that it was “simply a formulation of the tort of conversion” and therefore in sub-
stance a provincial matter.
5Unfair Trade Practices Act,R.S.A. 1980, c.U-3; Trade Practice Act, R.S.B.C. 1979, c. 406;
Trade Practices Act,R.S.N. 1990, c. T-7; Business Practices Act, R.S.O. 1990, c. B.18; Busi-
ness Practices Act, R.S.P.E.I. 1988, c. B-7; Consumer Protection Act, R.S.Q., c. P-40.1;
Business Practices Act, S.M. 1990–91, c.6; Consumer Protection Act, S.S. 1997, c. 30.1.

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