Remedies in Large-Scale Claims

• Author: Jamie Cassels - Craig Jones
• Pages: 167-199

3. Remedies in Large-Scale

Claims

A. INTRODUCTION

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.

B. STATUTORY REMEDIES

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-

167

THE LAW OF LARGE-SCALE CLAIMS168

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.

C. COMPENSATORY DAMAGES

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.