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The Supreme Court of Canada has accepted that in the common law of contract a high degree of stability is desirable and incremental changes are to be justified on an evident need to update common law principles to local conditions. In this chapter, the work of the Supreme Court of Canada is described in respect to the law of remedies for contract breach. In particular, the court has justified a slightly more regulatory function in its development of punitive damages and the award of damages for non-pecuniary damages in contracts characterised by power imbalances. The different tack taken concerning specific performance and its impact on mitigation and damages also reflects arguments over different market conditions prevailing in Canada when compared to the United Kingdom.

This paper reviews the concept of equity's maxims in Canada. Recently, the Supreme Court of Canada has cited a number of maxims of equity and attributed to them the position taken by Spry, that the maxims reflect an ethical quality and values that inform the exercise of equity's discretion. In this paper I trace the development of the concept of equity's maxims to determine whether they have any relevance to courts today. I contrast treatment in the USA and suggest that equity's maxims still have some residual use in defining equity's distinctive methodology.

English Abstract: The law has historically granted damages for some forms of non-pecuniary losses. In doing so, courts have freely admitted that there is imprecision in quantifying such losses and that there is no quantitative and objective calculus on pain and suffering. Against this background, new research on how hedonic losses are experienced by a victim provide an opportunity to review how non-pecuniary losses should be compensated. Some of this research suggests that experiences of anxiety, frustration and suffering may not affect a victim’s happiness as great as is presupposed in current models of compensation, and further, that its impact may also be ameliorated by the offering of an apology. In this essay, the author asks whether the law can incentivize tortfeasors to offer an apology as an element in mitigating compensatory damages for non-pecuniary loss.

It is just a little over thirty years since the Supreme Court of Canada took Canada’s assessment of personal injury damages on a different tack in the trilogy. In hindsight, the view then taken on damages for non-pecuniary loss was prescient, for it foreshadowed movements now taken legislatively in the United States and Australia, and has parallels in the English Court of Appeal decision in Heil v. Rankin. The Supreme Court did not tackle the issue of lump sum verses periodic payment/reassessment in the trilogy, although it did express its views on this issue many years later. For obvious constitutional and jurisprudential reasons touching on the appropriate limits of judicial activism, and, one suspects, out of personal belief, the Supreme Court did not question the underlying premise of providing compensation for personal injury as a result of tortious conduct. The success of the Supreme Court’s intervention is perhaps best revealed by the fact that apart from some minor skirmishes over automobile insurance, there has never been any real clamour in Canada for tort reform, or an insurance crisis similar to the experience in the United States and Australia.

In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).

Throughout Commonwealth jurisdictions, courts, initially relying upon their inherent jurisdiction, have created what are called Anton Piller injunctions or orders. These orders are akin to a civil search warrant. They require, on pain of being held in contempt of court, the defendant to permit the plaintiff entry to the defendant’s premises so as to secure property or documents for which the plaintiff has been able to demonstrate that there is a high risk of loss or destruction if the plaintiff had commenced its action with the usual filing of statement of claim and notice of suit. The order has been described as the ‘nuclear weapon of civil procedure’. The order arose in much the same fashion as the development of Mareva injunctions, or what are now known as ‘asset preservation orders’. Viewed as being at the extremes of a court’s powers, the orders have generated a great number of procedural safeguards, both as to what a plaintiff must prove to obtain the order as well as in its execution once obtained.What follows is a brief overview of the development of Anton Piller orders in Canada, together with some of the problems and solutions engaged by this extraordinary order.

The Supreme Court of Canada’s decision in Google Inc. v Equustek has been criticized as amounting to an excessive claim of extra-territorial reach and possibly a way to bring the right to be forgotten to Canadian shores. In this comment, the author argues that the case is in fact an orthodox application of equitable principles, and one that stresses the importance of the notion that equity acts in personam. On occasion, equity does purport to exert an influence on a litigant’s conduct which takes place beyond the court’s geographical jurisdiction, but it does so, mindful of the practical limitations on enforcement of such orders.

I have been asked to provide an update on equitable remedies for breach of contract. Obviously, the dominant equitable remedy concerning breach of contract is specific performance; and in what follows I have focused upon that remedy. In addition, I have provided commentary on two related topics; one, the enforcement of keep open clauses; and two, the treatment of remedy stipulation clauses. I have not covered the enforcement of contracts by injunction. This presentation has come at an opportune time; as I am currently writing the second edition of my text on Equitable Remedies (Irwin Law) some of this material is drawn from those labours.

Over 20 years have elapsed since the Supreme Court of Canada adopted the English tripartite test for interlocutory injunctions: a serious issue to be tried, proof of irreparable harm and balance of convenience. This article is written in response to those who have argued that the concept of irreparable harm should not be viewed as a threshold requirement, but that it only forms a component of the balance of convenience inquiry. In contrast, the author argues that it is a central and necessary element of an applicant’s claim for interlocutory relief. Proof of irreparable harm is a necessary justification to access equitable relief and the burden placed upon the applicant to do so is a normal part of the civil litigation process. Canadian courts have not found this an unworkable approach, although the language used to describe the standard of evidential proof by some courts, namely “clear and not speculative,” may have been unwise and was not required by the Supreme Court of Canada.

Jurisdictions that have created class action regimes provide as one of their justifications the promotion of behavioural modification or deterrence of wrongdoers. Peculiar to some class action regimes is the phenomenon of cy-pres distributions, in which the class counsel and judge choose a form of distribution for class members. The justification for cy-pres distributions is to ensure that a defendant receives nothing back from the monetary award and is thereby required to internalize the true cost of wrongdoing, or to disgorge the profits of wrongdoing. The cy-pres remedy is seen as furthering the deterrence function of class actions. I argue that it is difficult to find empirical evidence to substantiate the claim of behavioural modification in class action litigation. However, if courts are serious about deterrence, then I suggest that reorienting the focus of cy-pres distributions to properly account for behavioural modification may provide a better chance of that outcome.

We all know that culture matters. Open any newspaper and stories that have a cultural aspect can readily be found. Whether it is ethnic tensions between Ukrainian and Russian speaking Ukrainians, or the xenophobic views of the Nigerian group Boko Haram that leads it to kidnap young Nigerian girls from school, or even a Chinese language only sign in Richmond, British Columbia, advertising toothpaste; debate is soon ignited. We also know that cultural issues have a habit of garnering public attention far in excess of any rational explanation of the particular issues’ importance. These are hot button issues; issues that our politicians are only too willing to tap into. But they are also issues that touch a wellspring of personal emotion, because they deal with personal dignity and cultural identity. It is against this background that I address my remarks. I want to address the issue of the extent to which common law doctrine, and in particular, common law remedies, should take account of cultural practices. I refer to cultural practices without distinguishing between religious or other ethnic practices. I ask; to what extent do courts have an obligation to model the common law to accommodate Canada’s commitment to multiculturalism? The issue I intend to touch upon is not one that is of daily occurrence in civil litigation; there are few cases to report on. However, it is one that can simply bubble to the surface, and, in that sense, forewarned is forearmed.

In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings. Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction. The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.

The study of the law of remedies has found a place in the curriculum of many common law law schools. This has generated debate on whether the law of remedies exists as a distinct body of law governed by its own systematic structures and principles, and which can comfortably take its place beside other substantive private law subjects. The author argues that it can, and then suggests a number of important areas of law in which debate on appropriate remedial response is central to the articulation of the particular interest which has been violated. The author suggests that there is much useful work to engage the energies of scholars of the law of remedies.

The remedies that administrative tribunals can administer is an under studied area. Often, empowering legislation simply extoils an administrative tribunal to do what is ''fair and just''. In this paper, I argue that when confronted with open-textured remedial provisions, tribunals may often benefit from drawing by analogy from developed common law principles used to quantify monetary and non-monetary relief.

Over the last 15 years, English courts have developed the injunction contra mundum, one made against all the world and used primarily to prevent infringement of privacy and breaches of confidence. The order has attracted recent criticism because it is frequently sought by celebrities to suppress publicity about their private and family life. Such an order intersects a number of substantive areas of law, including: the developing tort of privacy; freedom of speech, the Internet and prior restraint; the open court principle; defamation; and the ability to enforce court orders across jurisdictional boundaries. This article addresses the difficulties of introducing such an injunction into Canadian common law and whether it is necessary.

This paper explores from a Canadian perspective the awarding of damages for non-pecuniary losses that arise in commercial settings and asks the question whether there is any useful function performed by such awards. It is difficult to find cases that support such awards and thus if they are to be awarded, it will be advancing damages for non-pecuniary losses in a new direction. To justify such a movement, I suggest that the any development should be measured by two concepts: legitimacy - what is it that courts can legitimately do, and coherence - how does the award fit into a coherent and predictable legal system.I argue that from a purely compensation point of view, awarding compensation for a loss that is incommensurable does not make much sense. Only if the justification is vindication, deterrence or punishment is there merit in awarding more than compensation, but then, courts or legislatures should develop separate criteria to add quantification and to meet the standards of legitimacy and coherence.

Common law countries accord courts considerable latitude to shape common law doctrine, and which has significant impact on private ordering of relationships particularly through the law of torts. In a previous article I sought to illustrate that there were already a number of cases in which minority claimants had sought additional compensation based upon a loss, which, because of a particular cultural practice held by the claimant, was more intensely felt than if a member of the dominant culture had experienced the loss. I suggested that it was quite appropriate to make these awards in furtherance of Canada’s commitment to multiculturalism. However, I also explored the ‘dark side’ of such actions; whether a defendant could argue that a claimant’s adherence to a particular cultural practice or belief would have negative repercussions on their future economic prospects and thus could justify a deduction or negative contingency being applied to any compensation awarded. I argued that courts should not reduce or apply negative contingencies based solely on a cultural practice or belief largely on the basis that to do so would further victimize an individual of an already marginalized group. Because cultural practices and beliefs are subject to constant change in personal conviction and observance over a person’s lifespan, we need to respect the element of personal autonomy entailed by the claimant, rather than to allow the defendant to impose some stereotypical view of what impact a particular cultural belief or practice may have had, or will have, on the claimant.

It is now an uncontroversial proposition that the choice of remedy following a determination of infringement of a substantive right engages distinct principles associated with the law of remedies and it is for the court to match remedial function to underlying substantive right. The law of remedies can be divided into a number of functional goals:Compensation – a measure of a monetary amount that will make good the plaintiff’s actual pecuniary losses or is seen as an adequate substitute to make good the plaintiff’s non-pecuniary losses.Deterrence – a remedy that is forward looking in that it is designed to deter the defendant, or similarly like-minded parties, from continuing or perpetrating the wrong in the future.Punishment – a remedy that is backward looking in that it is to exact retribution or societal condemnation on the defendant for the wrong perpetrated on the plaintiff.Restitution - Restoration – to give back to the claimant that which has been taken by the defendant.Disgorgement – To give up to the plaintiff that which has been acquired by the defendant through the perpetration of wrongdoing to the plaintiff. Coercion – a court order by way of injunction or specific relief that enforces the defendant to comply under pain of contempt of court.Self-help – Canadian common law is mostly antagonistic toward this form of relief.Vindication – a remedy designed to demonstrate to the world and to validate the plaintiff’s belief that the defendant has unjustly infringed its rights. Remedial functions are not categorical or mutually exclusive. For example, where everyone injured by a wrongdoer recovers compensation resulting in the full internalisation of the cost of wrongdoing by the tortfeasor, then, compensation can also achieve a deterrence function. In fact, this is a paramount reason used to support class actions in the area of tort law, in that it creates a procedural mechanism to maximise the internalisation by the tortfeasor of the true cost of their wrongdoing. A functional classification highlights that plaintiffs may well have concerns beyond compensation and deterrence. It also illustrates the strengths and weaknesses within any particular functional goal. For example, coercive remedies may effect deterrence better than damages; compensation compensates poorly for non-pecuniary losses; and vindication may be better achieved through resort to innovative remedies such as an ordered apology and publication than through damages, to name but a few. Similarly, a plaintiff does not necessarily pursue a single goal; rather, trade-offs are made. For example, the effect of a public retraction or correction of a defamatory statement lessens the damages payable on the basis that the plaintiff has been vindicated and his or her reputation restored, thereby lessening the need for compensation. Likewise, to order restitution – restoration, can also amount to compensation; may often be achieved by requiring disgorgement, and may effect punishment, deterrence and vindication all in the same process. The dominant remedial function in tort law remains compensation through an award of damages for pecuniary loss. However, tort actions that warrant an award of damages for non-pecuniary loss incur profound difficulties with respect to both quantification, as well as to function being pursued. Similarly, a number of emerging torts (i.e. the tort of misfeasance in public office, and intrusion upon seclusion ) do not fit comfortably into the compensatory function but appear to be more concerned with vindication and deterrence.

It has often been asserted that, upon proof of patent validity, copyright ownership or trademark infringement, a permanent injunction will be granted as a matter of course. The decision of the U.S. Supreme Court in eBay v. Merc-Exchange, concerning the activities of a patent troll, has put into question the correctness of that assertion. The U.S. Supreme Court has restored the discretionary nature of the inquiry to grant a permanent injunction in intellectual property disputes, and requires the plaintiff to demonstrate that monetary remedies are inadequate. While there is no similar and definitive statement from Canadian courts, I argue that Canadian law largely mirrors the approach now adopted in the U.S. This approach is to be preferred as the best way to match appropriate remedy to the complex policy choices engaged in regulating intellectual property. It is also an approach to remedies endorsed in other areas of law by the Supreme Court of Canada.