Non-Pecuniary Damages in Common Law Canadian Tort Law

Abstract

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.

Keywords: Damages, Non-pecuniary loss, classification, Canadian Common Law