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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 article draws on an emerging body of empirical research that indicates that parties place a greater emphasis in some situations on actual rather than substitutionary performance. It examines the case law on the enforcement of keep open clauses in Canada, Australia and other common law jurisdictions to highlight the disconnect between doctrinal orthodoxy on the enforceability of such clauses and party remedial preferences. The article explores the constraints of supervision and enforcement and concludes there is scope for enhancing party preference for performance through coercive remedies.

Canadian law sometimes allows gain-based remedies for certain wrongful acts. There is a strong suggestion that gain-based remedies are available in the common law provinces for torts and perhaps breaches of contract, but the courts have been hesitant. Common law provinces have also been willing to award gain-based remedies for breaches of confidence, in the court’s discretion. In the context of infringements of intellectual property rights, which is federal law, the legislation makes clear that gain-based remedies are available, although again this is in the discretion of the court. In both common law and Quebec civil law, in situations where one person is managing the property or affairs of another in a fiduciary capacity, improper gains must be surrendered, although it is arguable that the law ascribes rights acquired by the manager to the principal as the correct legal implementation of the parties’ relationship, rather than as a remedy for wrongdoing.

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.

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.

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.