Disgorgement of Profits in Canada

Ch. 16 in E. Hondius and A. Janssen, eds., Disgorgement of Profits: Gain-Based Remedies throughout the World (Cham, Switzerland: Springer, 2015) 281-297

King's College London Law School Research Paper No. 2016-07

18 Pages Posted: 29 Sep 2015 Last revised: 2 Sep 2016

See all articles by Lionel Smith

Lionel Smith

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law; University of Oxford - Faculty of Law

Jeff Berryman

University of Windsor - Faculty of Law

Date Written: July 24, 2014

Abstract

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.

This is the national report for Canada in a multi-jurisdictional comparative study of gain-based remedies in private law.

Keywords: remedies, disgorgement, restitution

JEL Classification: K00, K10, K11, K12, K13

Suggested Citation

Smith, Lionel and Berryman, Jeffrey, Disgorgement of Profits in Canada (July 24, 2014). Ch. 16 in E. Hondius and A. Janssen, eds., Disgorgement of Profits: Gain-Based Remedies throughout the World (Cham, Switzerland: Springer, 2015) 281-297; King's College London Law School Research Paper No. 2016-07. Available at SSRN: https://ssrn.com/abstract=2665238

Lionel Smith (Contact Author)

McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law ( email )

3690 Peel Street
Montreal, Quebec H3A 1W9
Canada
514-398-4670 (Phone)
514-398-4659 (Fax)

HOME PAGE: http://www.mcgill.ca/law/about/profs/smith-lionel

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Rd
Oxford, OX1 3UL
United Kingdom

Jeffrey Berryman

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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