McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee
ECO judgements are not based on moral judgements.
e.g., in common law provinces, there is no obligation to rescue someone who is drowning.
What aims can a victim pursue through ECO/T action?
punishment (this is debatable)
other incidental aims:
but NOT obtaining an apology
basic conditions of liability:
common law (negligence)
duty of care
breach of duty of care (=fault)
Punitive and Exemplary Damages
In practice, it is hard to distinguish between punitive and exemplary damages. (Both are creations of common law).
Sums for damages tend to be low in Canada.
Common law’s requirements for punitive/exemplary damages are:
“conduct serious enough to deserve punishment”
These have been established by case law.
In Quebec, the two conditions for punitive/exemplary damages (according to the Quebec Charter (a.49)) are:
This is defined in the St-Ferdinand case as either intent to cause the consequences or knowledge of the immediate and natural consequences.
(a.1621) CCQ limits such damages to “what is sufficient to fulfil their preventive purpose.”
Curateur Public v. Synd. nat’l des employés de l’hôp. St-Ferdinand,  3 S.C.R. 268. (CB1p82)
The union of employees at the Hôpital St-Ferdinand, a hospital for the mentally disabled, went on an illegal strike for a total of 33 days in October and November 1984. During these times, the patients were deprived of certain normal services. The public curator brought a class action on behalf of the patients, asking for compensatory damages for moral prejudice as well as exemplary damages.
1. For the moral damages, was the trial judge right not to use the functional approach?
2. Was the trial judge right not to award exemplary damages?
1. Yes. 2. No.