Law Commons^™

Betterment, Michael G. Pratt

Dalhousie Law Journal

When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …

Death To Semelhago!, Bruce Ziff

Dalhousie Law Journal

In the 1996 decision of the Supreme Court of Canada in Semelhago v. Paramadevan, Justice John Sopinka stated that it is no longer appropriate to assume that specific performance will issue as a matter of course to enforce a contract for the sale of land. Before performance will be ordered, it must be proven (and not assumed) that common law damages for breach of contract will not suffice to do justice. In this article, Semel hago and the case law generated in its aftermath will be reviewed, and the policy arguments pertaining to the current law addressed. In short, it …

Thresholds Of Actionable Mental Harm In Negligence: A Policy-Based Appraisal, Louise Bélanger-Hardy

Dalhousie Law Journal

Common law courts, in Canada and elsewhere, currently insist on proof of a recognizable psychiatric illness (RPI) before granting damages to plaintiffs seeking compensation for stand-alone mental harm caused by negligent acts. This article argues that the time has come to revisit this well-entrenched principle. The inquiry focuses specifically on the policy concerns underlying the current rule. As a first step, policy considerations for and against limiting the extent of actionable mental harm are canvassed and assessed. The author concludes that some of the perceived advantages of the RPI rule, in particular predictability,are debatable and that insistence on the traditional …

Re Canada Post Corp And Cupw (036-03-00022), Innis Christie

Innis Christie Collection

Union grievance, submitted on September 20, 2006, on behalf of all affected employees alleging breach of Article 39 05 (e) and (f) of the Collective Agreement between the parties bearing the expiry date January 31, 2007, in that the Employer failed to offer overtime hours as required by those provisions. The Union sought an order that the Employer pay damages to compensate the affected employees.

Re Canada Post Corp And Cupw (Morgan), Innis Christie

Innis Christie Collection

The Grievor was suspended for inappropriate behaviour towards co-workers. The Union claims the three day suspension was without just, reasonable and sufficient cause and sought a remedy which would pay damages due to the suspension and removal of all related documents from the Grievor's personal file.

The grievance succeeds in part. Discipline was appropriate. There was nothing in the Grievor's personal record to support a three day suspension and one of the complaints warranted no discipline. The suspension is reduced to two days and the Grievor is to be compensated for losses resulting from the third day.

Re-Thinking Whitbread V. Walley: Liberal Justice And The Judicial Review Of Damages Caps Under Section 7 Of The Charter Of Rights And Freedoms, Jeremy Taylor

Dalhousie Law Journal

This paper advances a theoretically-driven reconstruction of s.7 Charter doctrine, which currently precludes protection for personal injury damages. Proceeding from a standpoint built on deontological strains of tort theory, the author dissects the reasoning in Whitbread v. Walley, the governing authority on the applicability of s. 7 to legislated damages caps. In three stages, the author argues that in the contemporary context, theoretical and doctrinal support for Whitbread is weak. First, when tort rights are theorized non-instrumentally, rights to personal injury damages fall squarely within the irreducible sphere of personal autonomy now protected by s. 7. Second, recent developments, both …

Damages For Mental Distress And Other Intangible Loss In A Commercial Context, Shannon O'Byrne

Dalhousie Law Journal

As a general rule, contracts law does not permit an award of general damages for mental distress or other intangible loss. There are several rationales for this, including: plaintiffs are to bear their disappointment or upset with mental fortitude; without the rule, courts would be awash in litigation since every breach of contract brings with it some degree of emotional distress; without the rule, plaintiffs may fabricate or exaggerate the degree of their upset; and the rule simply reflects the lack of foreseeability of such loss under Hadley v. Baxendale. Notwithstanding the general rule, courts have awarded mental distress in …

Charles Handbook On Assessment Of Damages In Personal Injury Cases, Roger Harris

Dalhousie Law Journal

This is the second edition of Professor Charles' aptly titled Handbook. The first edition was a simple reprint of a thirty-three page article that was originally published in the Canadian Cases on the Law of Torts, together with the 1978 Supreme Court "Trilogy"judgements themselves. While it provided a convenient capsulization of the issues, it clearly lacked the depth necessary to deal fully with many of the complexities involved, and the rationale for its publication was questionable (no matter how eminent its author or handsome its presentation, can any case comment really be worth $40.00?). Happily, the second edition has developed …

Re United Steelworkers And Vulcan Containers (Canada) Ltd, Innis Christie, C Gareau, N E. Wrycraft

Innis Christie Collection

Employee Discharge alleging unjust discharge. Determination of quantum of damages.

AWARD:

In an award dated November 21, 1969, this board ordered the grievor to be reinstated in employment with compensation for loss of income except for wages she would have received in the first two weeks following her discharge by the company. Mr. Wrycraft dissented. The majority award stated that the grievor was subject to a duty to mitigate her losses so that any actual earnings and an amount equal to any earnings that she could have had if she had made a reasonable and prudent effort to find other …