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Damages

Schulich School of Law, Dalhousie University

Dalhousie Law Journal

Articles 1 - 6 of 6

Full-Text Articles in Law

Betterment, Michael G. Pratt Apr 2017

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 Apr 2016

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 Apr 2013

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-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 Apr 2006

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 Oct 2005

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 May 1992

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 …