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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 4 / 64

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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.  

There are alternative ways of dealing with social wrongs; one example is provided by the Huron people.FDD

Even on an individual basis, there are many ways of satisfying the needs of victims (other than through money) see LCC report “restoring dignity” FDD.

What aims can a victim pursue through ECO/T action?

compensation

prevention/deterrence

punishment (this is debatable)

other incidental aims:

psychological aims:

closure

vengeance

appeasement

social order

public education

ombudsmanship

but NOT obtaining an apology

basic conditions of liability:

common law (negligence)

civil law

duty of care

breach of duty of care (=fault)

causation

injury

fault

causation

injury

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:

intent

“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:

unlawfulness

intention

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, [1996] 3 S.C.R. 268. (CB1p82)

Jurisdiction

Quebec

Facts

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.

Issues

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?

Holding

1. Yes. 2. No.

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