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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.

Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.

Class actions have an established place in Canadian and Australian legal systems but still attract considerable debate in practice, politics and the academy. One debate concerns whether there is any legitimate justification for class actions beyond the procedural facilitation of grouped proceedings. ‘Access to justice’ and ‘judicial economy’ are the goals commonly said to justify class action provisions. On one view, these goals can be achieved through civil procedures that have compensation as their sole remedial goal. At the same time, many jurisdictions that have created class action regimes also provide as another justification, the promotion of behavioural modification and deterrence of wrongdoers. The principal way behaviour is modified and deterrence is achieved is by ensuring that the wrongdoer is forced to internalise all the costs of any harm that may have resulted from the wrongful act, and - depending on the particular facts of the case and whether the cause of action supports recovery of profits - to disgorge any profits earned from the wrongful conduct. Compensating victims may partially and concurrently achieve deterrence if all victims can be identified and the true nature of their loss quantified. However, in many claims where a class action may be the most advantageous mechanism to compensate victims, not all victims may be able to be identified or, because the amount of each class member’s claim is small, the cost of administering the claim may outweigh any benefit to individual class members.

Shortlisted for the 2003 Walter Owen Book Prize (first edition)This new edition traces the development in the Canadian law of equitable remedies, greatly influenced by decisions of the Supreme Court of Canada which, since the first edition, has ruled on the availability of Anton Piller orders, specific performance, equitable compensation, and rectification. Beyond these substantive equitable remedies the Supreme Court has also opined on a number of occasions about the nature of modern equity in Canada; in effect, breathing life into equity's distinctive methodology. New areas covered in this edition include the maxims of equity; the appropriate default test for interlocutory injunctions including new discussion on when it is appropriate to allow a view of the merits of the substantive dispute to determine the interlocutory proceedings; the general principles of specific performance, including a critique of the current law on enforcement of keep-open clauses; the contemporary impact of the Supreme Court of Canada's rulings on the availability of specific performance, particularly for those who invest in land; a discussion of equitable damages and equitable compensation which includes new commentary on when damages are assessed that go beyond compensation and toward disgorgement; and new material on rectification, including a section on rectification and taxation cases.

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.

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.

In Pro Swing v Elta Golf Inc the Supreme Court of Canada made passing reference to the functions of equity’s maxims. Other courts have made similar references; indeed, judicial mention of equity’s maxims occurs quite frequently. This is surprising given the dearth of academic commentary on equity’s maxims, and that little mention of the maxims now takes place in Canadian law school curricula. In contrast, open any of the equity texts of the 1800s and significant attention is accorded to equitable maxims. This article seeks to explore whether the concept of equity’s maxims, as against the content of the individual maxims themselves, serves any real purpose today. It starts by providing an historical evolution of the notion of equity’s maxims, noting in particular that they are now largely ignored in the United States of America but still have topicality, to widely varying degrees, in Commonwealth jurisdictions. It then explores three divergent functions that have historically been served by equity’s maxims. Next, it turns to three roles that may be fulfilled by equity’s maxims today. It concludes that equity’s maxims serve a minimal function today. They do, however, preserve the distinctness of equity’s methodology from the common law and do allow some explicit dialogue on morality and ethics in those areas of private law where equity still plays a significant, determinative role.

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.

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.

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 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.

This volume of essays is the end product of the Second International Symposium on the Law of Remedies, a joint undertaking of the Faculties of Law at the Universities of Windsor, Canada, and Auckland (Research Centre for Business Law), New Zealand. The symposium brought together scholars drawn from four continents, representing the major Commonwealth common law jurisdictions, as well as the United States and Ireland. Collectively, the essays illustrate the breadth and depth of attention that is now accorded to the study of remedies throughout the common law world. The collection also demonstrates the value of fruitful exchanges across common law jurisdictions that have much to gain from learning of one another's experiences, thereby enriching the body of knowledge for a system that is inherently built upon discrete and incremental case law.

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.

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.