Jeff Berryman - Academia.edu (original) (raw)

Papers by Jeff Berryman

Social Science Research Network, 2019

Social Science Research Network, Sep 29, 2014

Over the last 15 years, English courts have developed the injunction contra mundum, one made agai... more 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.

Social Science Research Network, Oct 1, 2012

It has often been asserted that, upon proof of patent validity, copyright ownership or trademark ... more It has often been asserted that, upon proof of patent validity, copyright ownership or trademark infringement, a permanent injunction will be granted as a matter of course. The decision of the U.S. Supreme Court in eBay v. Merc-Exchange, concerning the activities of a patent troll, has put into question the correctness of that assertion. The U.S. Supreme Court has restored the discretionary nature of the inquiry to grant a permanent injunction in intellectual property disputes, and requires the plaintiff to demonstrate that monetary remedies are inadequate. While there is no similar and definitive statement from Canadian courts, I argue that Canadian law largely mirrors the approach now adopted in the U.S. This approach is to be preferred as the best way to match appropriate remedy to the complex policy choices engaged in regulating intellectual property. It is also an approach to remedies endorsed in other areas of law by the Supreme Court of Canada.

The Canadian Bar Review, Mar 1, 1993

An award ofdamages, measured as the cost ofrestoration of a plaintiff's property which has been d... more An award ofdamages, measured as the cost ofrestoration of a plaintiff's property which has been damaged as a result ofa defendant's tortious or contractual breach, often places the plaintiff in a better position than the status quo ante the infringement. Until recently, Anglo-Canadian law has not readily reduced theplaintiff's damages to account for this betterment value. Recent decisions ofthe Ontario Court ofAppeal create a path in which the betterment value is deducted from the defaulting party's damages While this new approach is objectively morejust, its practical implementation is not without difficulty. Les dommages accordés au plaignant comme représentant le coût de la réparation de sa propriété endommagée à cause d'une infraction délictuelle ou d'une rupture de contrat mettent souvent le plaignant dans une position meilleure que celle qui existait avant la violation. Jusqu'à récemment le droit anglo-canadien n'avait pas réduit de bon coeur les dommages pour tenir compte de cette plus-value. Dans certaines de ses décisions récentes la Cour d'appel de l'Ontario a ouvert le chemin menant à la déduction de cette plus-value des dommages à payer par la partie en défaut. Cette nouvelle approche est plusjuste d'un point de vue objectif, mais en pratique son application n'est pas facile.

Political Science, Dec 1, 1988

ABSTRACT

University of Toronto Law Journal, 1984

... We)Y>>*Dqs4:Us8-0Trn?CLDaWg'@f:*B\$,4jmI1)RfDGDm3`j&am... more ... We)Y>>*Dqs4:Us8-0Trn?CLDaWg'@f:*B\$,4jmI1)RfDGDm3`j&Mli4XU gYq&[p\NX@n+U,celD22: 4M$4C2u-.HsZ`#Vn_+j>NpXBdFB@nf\!,Ls)67Yrq-6(HK7Wa q%:BVmJF'_mJ=TpfDjsCmu[no% h8-$s#D,blKp04^:3KUlMkbPD7.t$?LGNbI8qfSf3OI: f=P4)FnOMSTDk+eV#/^AYIj2R?In ...

International and Comparative Law Quarterly, Jul 1, 2004

During the 1990s many Commonwealth legislatures enacted ‘class action’ or ‘representative proceed... more During the 1990s many Commonwealth legislatures enacted ‘class action’ or ‘representative proceedings’ legislation.1The main justification for these initiatives was to increase access to justice for claimants particularly where the injury was widespread but the harm suffered by any particular individual was small. Much of this legislation built on developments in the United States, which had developed a sizable jurisprudence in the area. ‘Mass torts’, those defined as having a large impact engaging multiple claimants, have often formed the cause of action in US class actions. A review of the website ‘Big Class Actions‘,2which lists over one hundred current suits in the United States, is instructive on how the class action industry has grown in that country.

Oxford University Commonwealth Law Journal, Jun 1, 2010

ABSTRACT

DOAJ (DOAJ: Directory of Open Access Journals), Aug 1, 2017

The law has historically granted damages for some forms of non-pecuniary losses. In doing so, cou... more The law has historically granted damages for some forms of non-pecuniary losses. In doing so, courts have freely admitted that there is imprecision in quantifying such losses and that there is no quantitative and objective calculus on pain and suffering. Against this background, new research on how hedonic losses are experienced by a victim provide an opportunity to review how non-pecuniary losses should be compensated. Some of this research suggests that experiences of anxiety, frustration and suffering may not affect a victim's happiness as great as is presupposed in current models of compensation, and further, that its impact may also be ameliorated by the offering of an apology. In this essay, the author asks whether the law can incentivize tortfeasors to offer an apology as an element in mitigating compensatory damages for non-pecuniary loss.

Social Science Research Network, Sep 1, 2013

Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which change... more Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.

Social Science Research Network, Nov 1, 2010

... 1 | Page Remedies before Administrative Tribunals: What can be learned from the Common Law? P... more ... 1 | Page Remedies before Administrative Tribunals: What can be learned from the Common Law? Professor Jeff Berryman* Introduction ... 24. 5 See Jeff Berryman, ???The Compensation Principle in Private Law??? (2008) 42 Loyola of Los Angeles L. Rev. 91. Page 4. 4 | Page ...

Social Science Research Network, 2009

ABSTRACT

The Canadian Bar Review, Aug 1, 2002

A traditional rule ofchancery practice has been that onlyparties to an action are bound to obey a... more A traditional rule ofchancery practice has been that onlyparties to an action are bound to obey any injunction granted as a remedy in the proceedings. However, non-parties are requiredto obey a courtorder thatthey are made aware ofonpain of being citedfor contempt in that they have either aided or abetted a named defendant, or have interfered and impeded the administration ofjustice. In this respect, Canadian courts demonstrate a more willingpropensity than their United Kingdom counterparts to hold non-parties liablefor contempt. This results in the loss ofmany procedural safeguards normally granted named defendants in any proceedings .-In thispaper, the author arguesfor caution in movingdirectlyto hold non-parties liable for contempt and that a better approach would be to regularize the position ofnon-parties by bringing them into the proceeding through the use ofeither a representative defendant action, or, incorporation within the John and Jane Doe style ofcause .

The Canadian Bar Review, Sep 1, 1994

Canadian common law courts are increasingly relying on punitive damages in a diverse range of are... more Canadian common law courts are increasingly relying on punitive damages in a diverse range of areas, but particularly, trespass to property, to ensure that a wrongdoer does not profit from committing a wrong. The awarding ofpunitive damages is bothfamiliarto courts as wellas being viewed as an accepted extension ofcompensatory damages. In this article, the author arguesfor greater attention being placed on restitutionary damages as a more accurate way ofensuring that a wrongdoer does not profit from committing a wrong. Further, adoption of restitutionary principles brings a number ofprocedural advantages, all ofwhich are discussed. Les cours canadiennes de droit commun comptent de plus en plus sur les dommages-intérêts punitifs dansdivers domaines, maisenparticulier, les violations de propriété, polir s'assurer que l'auteur d'une faute ne profite pas de son geste. Les tribunaux sont habitués â l'attribution de dommages-intérêts punitifs ; ceuxci sontvus comme une extension acceptée des dommages-intérêts compensatoires. Dans cetarticle, l'auteurplaide pour qu'une plus grande attention soitportée au recours pour enrichissement sans cause, un moyen plus précis pours'assurer que l'auteur d'unefaute ne profitepas de son geste. De plus, l'adoption des principes d'enrichissementsans cause comporte plusieurs avantages auplande laprocédure. Recently, several Canadian courts, particularly in British Columbia, have awarded punitive damages in an attempt to disgorge profits made from the commission ofa tort. In this way, they have attempted to signal to the tortfeasor that tort does not pay.' By and large, these cases have arisen in the area of trespass to property. Although the awarding ofpunitive damages is appropriate, it is not the only pecuniary remedy available in these circumstances. The restitutionary remedy of waiver of tort is also available, and yet, like other restitutionary remedies, is seldom used in this context in Canada. With respect to the tort of conspiracy, the Ontario Court of Appeal has approved the use ofpunitive damages to eliminate the possibility ofadefendant appearing to benefit from a tortious breach. But in this example it appears that the punitive damage award was excessive and did more than eliminate the wrongdoer's profit. * JeffBerryman, Dean, ofthe Faculty ofLaw, University ofWindsor, Windsor, Ontario. ' This article derives from a back ground paper I completed for the Ontario Law Reform Commission. I wish to thank my colleagues, Ray Brown and George Stewart for their comments, and my research student, Rachel Black, for her assistance. All errors remain my own.

Social Science Research Network, 2016

In an ideal world justice would be dispensed instantaneously and the incursion of any form of int... more In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings. <br><br>Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction. <br><br>The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.<br>

Remedies Eighth teaches students how to traverse the complex territory of choice and measurement ... more Remedies Eighth teaches students how to traverse the complex territory of choice and measurement of plaintiffs' remedies. Accessible and readable decisions build on upper-level students' first-year courses in contracts, torts, property, constitutional law, and civil procedure. Remedies Eighth is organized to teach students how to choose and measure damages, injunctions, and restitution. It emphasizes the lawyer's tactics in addition to the court's decisions. It examines law and economics in selecting between tort and contract remedies. Remedies Eighth cites and discusses the freshly minted 2011 Restatement (Third) of Restitution and Unjust Enrichment. New decisions in Remedies Eighth examine "actual damages," medical monitoring, the American attorney-fee Rule and the private-attorney-general exception, the Supreme Court's punitive damages opinions in Exxon Shipping Company v. Baker and Philip Morris USA v. Williams, state constitutional limits on damages caps, eBa

Ius comparatum, 2015

Canadian law sometimes allows gain-based remedies for certain wrongful acts. There is a strong su... more 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.

SSRN Electronic Journal, 2021

SSRN Electronic Journal, 2015

In what follows I make five points that are potential ‘hot spots’, or are implications that flow ... more In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).

Social Science Research Network, 2019

Social Science Research Network, Sep 29, 2014

Over the last 15 years, English courts have developed the injunction contra mundum, one made agai... more 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.

Social Science Research Network, Oct 1, 2012

It has often been asserted that, upon proof of patent validity, copyright ownership or trademark ... more It has often been asserted that, upon proof of patent validity, copyright ownership or trademark infringement, a permanent injunction will be granted as a matter of course. The decision of the U.S. Supreme Court in eBay v. Merc-Exchange, concerning the activities of a patent troll, has put into question the correctness of that assertion. The U.S. Supreme Court has restored the discretionary nature of the inquiry to grant a permanent injunction in intellectual property disputes, and requires the plaintiff to demonstrate that monetary remedies are inadequate. While there is no similar and definitive statement from Canadian courts, I argue that Canadian law largely mirrors the approach now adopted in the U.S. This approach is to be preferred as the best way to match appropriate remedy to the complex policy choices engaged in regulating intellectual property. It is also an approach to remedies endorsed in other areas of law by the Supreme Court of Canada.

The Canadian Bar Review, Mar 1, 1993

An award ofdamages, measured as the cost ofrestoration of a plaintiff's property which has been d... more An award ofdamages, measured as the cost ofrestoration of a plaintiff's property which has been damaged as a result ofa defendant's tortious or contractual breach, often places the plaintiff in a better position than the status quo ante the infringement. Until recently, Anglo-Canadian law has not readily reduced theplaintiff's damages to account for this betterment value. Recent decisions ofthe Ontario Court ofAppeal create a path in which the betterment value is deducted from the defaulting party's damages While this new approach is objectively morejust, its practical implementation is not without difficulty. Les dommages accordés au plaignant comme représentant le coût de la réparation de sa propriété endommagée à cause d'une infraction délictuelle ou d'une rupture de contrat mettent souvent le plaignant dans une position meilleure que celle qui existait avant la violation. Jusqu'à récemment le droit anglo-canadien n'avait pas réduit de bon coeur les dommages pour tenir compte de cette plus-value. Dans certaines de ses décisions récentes la Cour d'appel de l'Ontario a ouvert le chemin menant à la déduction de cette plus-value des dommages à payer par la partie en défaut. Cette nouvelle approche est plusjuste d'un point de vue objectif, mais en pratique son application n'est pas facile.

Political Science, Dec 1, 1988

ABSTRACT

University of Toronto Law Journal, 1984

... We)Y&amp;gt;&amp;gt;*Dqs4:Us8-0Trn?CLDaWg&amp;#x27;@f:*B\$,4jmI1)RfDGDm3`j&am... more ... We)Y&amp;gt;&amp;gt;*Dqs4:Us8-0Trn?CLDaWg&amp;#x27;@f:*B\$,4jmI1)RfDGDm3`j&amp;amp;Mli4XU gYq&amp;amp;[p\NX@n+U,celD22: 4M$4C2u-.HsZ`#Vn_+j&amp;gt;NpXBdFB@nf\!,Ls)67Yrq-6(HK7Wa q%:BVmJF&amp;#x27;_mJ=TpfDjsCmu[no% h8-$s#D,blKp04^:3KUlMkbPD7.t$?LGNbI8qfSf3OI: f=P4)FnOMSTDk+eV#/^AYIj2R?In ...

International and Comparative Law Quarterly, Jul 1, 2004

During the 1990s many Commonwealth legislatures enacted ‘class action’ or ‘representative proceed... more During the 1990s many Commonwealth legislatures enacted ‘class action’ or ‘representative proceedings’ legislation.1The main justification for these initiatives was to increase access to justice for claimants particularly where the injury was widespread but the harm suffered by any particular individual was small. Much of this legislation built on developments in the United States, which had developed a sizable jurisprudence in the area. ‘Mass torts’, those defined as having a large impact engaging multiple claimants, have often formed the cause of action in US class actions. A review of the website ‘Big Class Actions‘,2which lists over one hundred current suits in the United States, is instructive on how the class action industry has grown in that country.

Oxford University Commonwealth Law Journal, Jun 1, 2010

ABSTRACT

DOAJ (DOAJ: Directory of Open Access Journals), Aug 1, 2017

The law has historically granted damages for some forms of non-pecuniary losses. In doing so, cou... more The law has historically granted damages for some forms of non-pecuniary losses. In doing so, courts have freely admitted that there is imprecision in quantifying such losses and that there is no quantitative and objective calculus on pain and suffering. Against this background, new research on how hedonic losses are experienced by a victim provide an opportunity to review how non-pecuniary losses should be compensated. Some of this research suggests that experiences of anxiety, frustration and suffering may not affect a victim's happiness as great as is presupposed in current models of compensation, and further, that its impact may also be ameliorated by the offering of an apology. In this essay, the author asks whether the law can incentivize tortfeasors to offer an apology as an element in mitigating compensatory damages for non-pecuniary loss.

Social Science Research Network, Sep 1, 2013

Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which change... more Ever since the decision of the Supreme Court of Canada in Semelhago v. Paramadevan , which changed the law on the availability of specific performance for breach of contract, property developers have found the door to that remedy effectively closed. The recent decision of the Supreme Court in Southcott Estates Inc. v. Toronto Catholic District School Board confirms that trajectory despite the valiant attempts by some developers to bring their cases within the rubric of the Semelhago decision. However, Southcott is not so much a case about specific performance, as it is a case about the obligation to mitigate, and how a defendant can prove that a plaintiff has failed to make reasonable efforts to mitigate. It is also a case where the plaintiff sought to plead that it was a ‘volume buyer’, the obverse of a ‘volume seller’, and whether this fact meant that it did not have to take the profit from a subsequent purchase into account as an act of mitigation.

Social Science Research Network, Nov 1, 2010

... 1 | Page Remedies before Administrative Tribunals: What can be learned from the Common Law? P... more ... 1 | Page Remedies before Administrative Tribunals: What can be learned from the Common Law? Professor Jeff Berryman* Introduction ... 24. 5 See Jeff Berryman, ???The Compensation Principle in Private Law??? (2008) 42 Loyola of Los Angeles L. Rev. 91. Page 4. 4 | Page ...

Social Science Research Network, 2009

ABSTRACT

The Canadian Bar Review, Aug 1, 2002

A traditional rule ofchancery practice has been that onlyparties to an action are bound to obey a... more A traditional rule ofchancery practice has been that onlyparties to an action are bound to obey any injunction granted as a remedy in the proceedings. However, non-parties are requiredto obey a courtorder thatthey are made aware ofonpain of being citedfor contempt in that they have either aided or abetted a named defendant, or have interfered and impeded the administration ofjustice. In this respect, Canadian courts demonstrate a more willingpropensity than their United Kingdom counterparts to hold non-parties liablefor contempt. This results in the loss ofmany procedural safeguards normally granted named defendants in any proceedings .-In thispaper, the author arguesfor caution in movingdirectlyto hold non-parties liable for contempt and that a better approach would be to regularize the position ofnon-parties by bringing them into the proceeding through the use ofeither a representative defendant action, or, incorporation within the John and Jane Doe style ofcause .

The Canadian Bar Review, Sep 1, 1994

Canadian common law courts are increasingly relying on punitive damages in a diverse range of are... more Canadian common law courts are increasingly relying on punitive damages in a diverse range of areas, but particularly, trespass to property, to ensure that a wrongdoer does not profit from committing a wrong. The awarding ofpunitive damages is bothfamiliarto courts as wellas being viewed as an accepted extension ofcompensatory damages. In this article, the author arguesfor greater attention being placed on restitutionary damages as a more accurate way ofensuring that a wrongdoer does not profit from committing a wrong. Further, adoption of restitutionary principles brings a number ofprocedural advantages, all ofwhich are discussed. Les cours canadiennes de droit commun comptent de plus en plus sur les dommages-intérêts punitifs dansdivers domaines, maisenparticulier, les violations de propriété, polir s'assurer que l'auteur d'une faute ne profite pas de son geste. Les tribunaux sont habitués â l'attribution de dommages-intérêts punitifs ; ceuxci sontvus comme une extension acceptée des dommages-intérêts compensatoires. Dans cetarticle, l'auteurplaide pour qu'une plus grande attention soitportée au recours pour enrichissement sans cause, un moyen plus précis pours'assurer que l'auteur d'unefaute ne profitepas de son geste. De plus, l'adoption des principes d'enrichissementsans cause comporte plusieurs avantages auplande laprocédure. Recently, several Canadian courts, particularly in British Columbia, have awarded punitive damages in an attempt to disgorge profits made from the commission ofa tort. In this way, they have attempted to signal to the tortfeasor that tort does not pay.' By and large, these cases have arisen in the area of trespass to property. Although the awarding ofpunitive damages is appropriate, it is not the only pecuniary remedy available in these circumstances. The restitutionary remedy of waiver of tort is also available, and yet, like other restitutionary remedies, is seldom used in this context in Canada. With respect to the tort of conspiracy, the Ontario Court of Appeal has approved the use ofpunitive damages to eliminate the possibility ofadefendant appearing to benefit from a tortious breach. But in this example it appears that the punitive damage award was excessive and did more than eliminate the wrongdoer's profit. * JeffBerryman, Dean, ofthe Faculty ofLaw, University ofWindsor, Windsor, Ontario. ' This article derives from a back ground paper I completed for the Ontario Law Reform Commission. I wish to thank my colleagues, Ray Brown and George Stewart for their comments, and my research student, Rachel Black, for her assistance. All errors remain my own.

Social Science Research Network, 2016

In an ideal world justice would be dispensed instantaneously and the incursion of any form of int... more In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings. <br><br>Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction. <br><br>The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externalities.<br>

Remedies Eighth teaches students how to traverse the complex territory of choice and measurement ... more Remedies Eighth teaches students how to traverse the complex territory of choice and measurement of plaintiffs' remedies. Accessible and readable decisions build on upper-level students' first-year courses in contracts, torts, property, constitutional law, and civil procedure. Remedies Eighth is organized to teach students how to choose and measure damages, injunctions, and restitution. It emphasizes the lawyer's tactics in addition to the court's decisions. It examines law and economics in selecting between tort and contract remedies. Remedies Eighth cites and discusses the freshly minted 2011 Restatement (Third) of Restitution and Unjust Enrichment. New decisions in Remedies Eighth examine "actual damages," medical monitoring, the American attorney-fee Rule and the private-attorney-general exception, the Supreme Court's punitive damages opinions in Exxon Shipping Company v. Baker and Philip Morris USA v. Williams, state constitutional limits on damages caps, eBa

Ius comparatum, 2015

Canadian law sometimes allows gain-based remedies for certain wrongful acts. There is a strong su... more 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.

SSRN Electronic Journal, 2021

SSRN Electronic Journal, 2015

In what follows I make five points that are potential ‘hot spots’, or are implications that flow ... more In what follows I make five points that are potential ‘hot spots’, or are implications that flow from the Supreme Court of Canada’s decision in Bhasin v. Hrynew 2014 SCC 71 [hereafter Bhasin]. They are presented in no particular order, but, in making these comments I am reminded of the comment: “He who lives by the crystal ball soon learns to eat ground glass” (Edgar R. Fiedler in The Three Rs of Economic Forecasting-Irrational, Irrelevant and Irreverent).