What Are Canadian Class Action Lawsuit Damages?

If you ever joined or read about a class action lawsuit, you would know that reparation for an alleged wrong is the key element sought by Class Members. For example, a recent class action lawsuit Canada is seeking $1 million in damages over anonymous accusations of assault posted on Instagram.

However, not all “damages” are created equal. In fact, there are several different kinds of damages plaintiffs can seek in a class action, and each is tailored to repair a different kind of harm or injury. In this class action lawsuit Canada damages guide, we pick apart what damages are and which kind you should seek in your lawsuit.

What Are Class Action Lawsuit Canada Damages?

Simply, “damages” refers to monetary compensation that is claimed by a person or awarded by a court in a civil action to someone who has been injured or suffered loss because of the wrongful conduct of another party. It can be said to be the modern form of antiquity’s “eye for an eye,” requiring compensation or reparation for a wrong.

Damages are typically awarded under contract or tort. In the case of contract law, damages will usually be awarded in the instance of a breach of contract or an abusive contract. A tort is an act or omission that gives rise to injury or harm to another resulting in civil liability, for which courts will award damages.

As a remedy, damages is a means to resolve a civil case, and remedies can be categorized into three main groups:

• Monetary damages
• Declaratory remedies
• Injunction

Monetary Remedies: Damages

Monetary remedies are called damages. Monetary damages come in various forms, and are awarded for several types of harms or injuries.

For example, in a tort action, damages aim to restore an injured party to the position it was in before being harmed. In a contract action, on the other hand, the goal of damages is to place the innocent party (creditor) in the position it would have been in had the contract been performed.

Typically, the types of damages requested in class action lawsuits include:

• Compensatory Damages: Awarded for actual loss, and seeks to restore the injured party to a pre-injury state. For example, a class action lawsuit launched against Air Transat and Air Canada sought compensatory damages. In this case, the plaintiff is demanded to be reimbursed for airline tickets purchased for flights that were subsequently cancelled due to COVID-19. Reimbursement effectively returns the plaintiff to the position he was in prior to the contract breach.
• General Damages (Moral Damages): Awarded for non-pecuniary (i.e. non-monetary) losses suffered by a plaintiff. These damages are labeled “general” or “moral” because they cannot be precisely assessed. Typically, these damages cover pain, suffering, stress and inconvenience, among others. Their ability to be awarded in certain cases will also differ between common law Canada and civil law jurisdictions. Moral damages were sought in a class action lawsuit against Saint-Léonard and Montreal over decades of flooding. The plaintiff in the case highlighted the anxiety and loss of enjoyment to property suffered by affected residents, both of which are non-monetary.
• Pecuniary Damages (Special Damages): Awarded where the money can be measured exactly. These compensate a plaintiff for a quantifiable monetary loss, and refer to harms that result from the particular circumstances of the case. This can include medical bills, lost wages, etc. Special damages were sought in the Canadian Elmiron side effects class action lawsuit for out-of-pocket expenses incurred in purchasing the drug.
• Punitive Damages: Awarded in exceptional cases where conduct giving rise to damage is such that it offends the court’s sense of decency. Importantly, punitive damages are non-compensatory in nature. They represent an exception to the general common law rule that damages are awarded to compensate the injured as opposed to punish the wrongdoer. A recent Quebec class action lawsuit has been launched against some 20 Canadian insurance companies, over accusations that the defendant insurers engaged in secret kickback agreements with contractors. The class action is seeking punitive damages due to the defendants’ behaviour, which was argued as being marked by recklessness, wanton disregard or gross negligence. Where a court determines that a defendant’s actions constitute any of the above descriptors, it may award punitive damages.

Punitive Damages Versus Aggravated Damages

While punitive and aggravated damages frequently cover the same type of misconduct, they serve very different purposes. As opposed to punitive damages, aggravated damages are compensatory in nature. These are only to be made to compensate for additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant. The types of additional harm for which aggravated damages are typically awarded include loss of dignity, humiliation or additional psychological injury.

Aggravated and punitive damages were sought in a class action lawsuit against a Toronto cosmetic surgeon alleging that the surgeon took videos and photographs of his patients without their consent. The class action lawsuit claims that the “prolonged, intrusive and exploitative nature of the mistreatment to which the Class members were subject at the hands of Dr. Jugenburg–who showed no regard for their bodily integrity or emotional wellbeing–represented a willful and flagrant betrayal of their trust and vulnerabilities and was of such a serious nature as to justify an award of both aggravated and punitive damages against the Defendants.”

In this case, the claim highlights that the defendant’s behavior was so egregious and violated patients’ dignity so much, that both types of damages are warranted. This means that the class action lawsuit Canada demands aggravated damages to compensate victims for additional harm caused by the outrageous behavior and seeks punitive damages to punish the behaviour.

Various kinds of behaviours may give rise to punitive damages, among them are actions that can be described as:

• Malicious, oppressive, arbitrary and high-handed
• Offends the court’s sense of decency
• Marked departure from ordinary standards of decent behaviour
• Harsh, vindictive, reprehensible and malicious
• Offends the ordinary standards of morality or decency
• Arrogant and callous
• Egregious
• Etc.

Nominal Damages

Nominal damages are not compensatory in nature. Rather, these damages are a trivial sum of money awarded to a plaintiff whose legal right has been violated but there was no accompanying loss or harm. Such damages are awarded by courts to redress a violation of a legal right that the law deems necessary to protect.

By granting nominal damages, the court affirms that a legal right has been violated. Nominal damages are generally recoverable where a plaintiff successfully establishes that they suffered an injury caused by a defendant’s wrongful conduct, but cannot prove a loss that can be compensated for.

For example, dissenting Supreme Court judges raised the possibility of nominal damages in the video lottery class action lawsuit. According to the class action, Atlantic Lottery Corp.’s video lottery games are inherently deceptive, addictive and illegal under the Criminal Code. The plaintiffs couldn’t show real loss or injury, but claimed that the video lotteries were unlawful. Although the majority of the Court dismissed the action, the dissenting judges remarked that Class Members could still seek nominal damages where a wrong is proven.

Restitutionary Damages

Restitutionary damages are an equitable remedy to prevent a party from being unjustly enriched. For example, in a contract case, if one party has delivered goods but the other party failed to pay, they may be entitled to restitutionary damages to prevent the unjust enrichment.

In the Court’s latest decision regarding the CIBC overtime class action lawsuit Canada, CIBC was found to have been unjustly enriched by not compensating workers for overtime. However, Justice Edward P. Belobaba decided that restitutionary relief for unjust enrichment is not available, because the claimants have access to compensation in damages under breach of contract.

The reason the Court did not award restitutionary damages hinges on the fact that such damages are only awarded in exceptional circumstances for breach of contract.

Injunctions

An injunction is a restraining order that requires someone to do or refrain from doing something. For example, you could get an injunction to stop your neighbours from burning garbage, or can get an injunction to order them to remove garbage from your property.

Over the course of the COVID-19 pandemic, several airline class action lawsuits have been launched across the country over air carriers’ refusals to reimburse passengers for cancelled flights. Air Passenger Rights, a consumer advocacy group, sought to obtain a mandatory interlocutory injunction requiring the Canadian Transportation Agency (CTA) to remove a statement on refunds posted on its website.

Air Passenger Rights filed the ticket refund lawsuit against the CTA in April, over an online statement that condoned vouchers over cash refunds. According to the statement, “an appropriate approach in the current context could be for airlines to provide affected passengers with vouchers or credits for future travel, as long as these vouchers or credits do not expire in an unreasonably short period of time.”

The consumer advocacy group wanted to obtain an injunction to force the CTA to remove its statement, which it deemed misleading. However the Federal Court denied the claim, and now the group is seeking answers from the Supreme Court of Canada.

Have you ever joined a class action lawsuit? What damages did you seek? Share your story with us in the comments below!

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