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Electronic copy available at: http://ssrn.com/abstract=2006550
Discriminatory Impact of Application of
Restitutio in Integrum in Personal Injury
Claims
Elizabeth ADJIN-TETTEY
*
INTRODUCTION ........................................................................................ 121
I. PURPOSE OF TORT LAW: PRIMACY OF CORRECTIVE JUSTICE ....... 125
II. DISCRIMINATORY IMPACT OF RESTITUTIO IN INTEGRUM AND
CORRECTIVE JUSTICE IN THE VALUATION OF PLAINTIFFS’
LOSSES ......................................................................................... 130
A. IN TRUST AWARDS ...................................................................... 131
B. COMPENSATION FOR IMPAIRED WORKING CAPACITY .................. 135
III. DISTRIBUTIONAL CONSIDERATIONS IN TORT LAW ....................... 146
IV. DISTRIBUTIONAL CONSIDERATIONS IN TORT REMEDIES .............. 155
A. NON-PECUNIARY LOSSES ............................................................ 155
B. PUNITIVE DAMAGES .................................................................... 159
CONCLUSION ............................................................................................ 162
*
Professor, Faculty of Law, University of Victoria, British Columbia. Financial
support for this paper was generously provided by the Charles D. Gonthier Research
Fellowship, 2008–2009.
Electronic copy available at: http://ssrn.com/abstract=2006550
120 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 121
When we talk about tort law, we should start with the premise that
it is designed to protect [human] dignity and promote social
equality and social justice. Our causes of action and remedies
should be tailored to … achieve those ends.
1
I
NTRODUCTION
According to proponents of therapeutic jurisprudence, legal rules
and actors (lawyers, judges, etc.) can have either therapeutic or anti-
therapeutic effects. Law is a social force with the potential to impact
either positively or negatively the emotional life, psychological well-
being and sense of social citizenship of legal subjects.
2
Remedies for
vindicating rights provide a conceptual lens for ascertaining how the
interest at stake is valued. Therapeutic or anti-therapeutic effects may
result from the valuation of a plaintiff’s losses and his/her human capital,
especially when compared with others in similar circumstances.
3
Personal injury can have a particularly devastating impact on the lives of
victims—physically, psychologically, financially, socially, etc. It is
therefore important that personal injury law, in particular the assessment
of losses, should seek to improve therapeutic outcomes for victims and
minimize the potentially harmful effects of engagement with the legal
system that may result from focusing on social identity. As Cassels notes,
“It is hard to use the word justice to describe a system that replicates
injustice and ensures that the disadvantaged remain disadvantaged.”
4
The underlying premise of this paper is that although the structure
of tort law is generally informed by corrective justice, that is,
consideration is given only to the relative positions of the injurer and
1
Leslie Bender, “Tort Law’s Role as a Tool for Social Justice Struggle” (1997–1998)
37 Washburn L.J. 249, at p. 257.
2
See David B. Wexler & Bruce J. Winick, “Putting Therapeutic Jurisprudence to
Work” (May 2003) 89(5) A.B.A. J. 54; David Wexler, “Two Decades of Therapeutic
Jurisprudence” (2008) 24 Touro L. Rev. 17, at p. 20.
3
Compensation for impaired working capacity and in trust awards, which are based on
the opportunity cost to the person who provided care and services, have great social
significance because they represent an individual’s actual or perceived potential in the
capitalist market.
4
Jamie Cassels, “(In)Equality and the Law of Tort: Gender, Race and the Assessment
of Damages” (1995) 17 Advoc. Q. 158, at p. 198.
122 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
victim in a dispute, the tort system often reflects distributional
considerations or broader societal interests. Thus, tort law principles, in
particular those relating to the determination of liability, are rarely
conceived solely in terms of correlativity and hence a bilateral
engagement between the victim and tortfeasor. Rather, courts often
consider broader issues such as the impact of a finding of liability on
particular relationships and on the availability of certain social goods.
These considerations can result in denial of an otherwise “legitimate”
claim. Thus, notwithstanding how compelling a plaintiff’s claim might be
from a moral and corrective justice standpoint, liability may be considered
morally objectionable or socially undesirable.
5
Viewed in this light, tort
law is utilitarian because it reflects broader societal interests and a
willingness to sacrifice individual interests for the greater good of society.
Emphasis on broader societal considerations in determining the nature and
limits of tort liability underscores the fact that the administration of
justice, and in particular tort law, is a human and social institution
designed to respond to the needs of society.
Courts frequently make policy decisions and choices in their
decision-making.
6
As Professor Luntz argues, reliance on legal principles
alone will often be insufficient to decide cases that come before the courts
and it is important for courts to use policy in making decisions.
7
Courts
5
For example, the limited tort law protection accorded psychological well being and
purely financial interests do not deny the legitimacy of victims’ losses. Public policy
considerations such as potential for indeterminate liability and the view that economic
interests are better protected through contractual arrangements influence the law in
these areas. See Mustapha v. Culligan of Canada Ltd (2006), 84 O.R. (3d) 457
(C.A.), aff’d [2008] 2 S.C.R. 114 [Mustapha]; Devji v. Burnaby (District) (1999), 70
B.C.L.R. (3d) 42 (C.A.); Rhodes v. C.N.R. (1990), 50 B.C.L.R. (2d) 273 (C.A.), leave
to appeal to S.C.C. refused, [1991] S.C.C.A. No. 1; Lewis Klar, Tort Law, 4
th
ed.
(Toronto: ThomsonCarswell, 2008), at pp. 476–486; Allen M. Linden and Bruce
Feldthusen, Canadian Tort Law, 8
th
ed. (Markam, Ont.: LexisNexis, 2006), at pp.
443–444; Ultramares Corporation v. Touche, 255 N.Y. 170, at p. 179 (U.S. N.Y. Ct.
App. 1931); Design Services Ltd. v. Canada, [2008] 1 S.C.R. 737, at paras. 60, 62, 65
[Design Services]; Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860, at para. 118;
Brooks v. Canadian Pacific Railway Ltd., 2007 SKQB 247, at para. 85; Bruce
Feldthusen, Economic Negligence, 4
th
ed. (Scarborough, Ont.: Carswell, 2000), at pp.
9–15.
6
See Jane Stapleton, “The Golden Thread at the Heart of Tort Law: Protection of the
Vulnerable” (2003) 24 Austl. Bar Rev. 135 [Stapleton, “The Golden Thread at the
Heart of Tort Law].
7
Harold Luntz, “The Use of Policy in Negligence Cases in the High Court of
Australia” Univ. of Melbourne Legal Studies Research Paper No. 264, online: Social
Science Research Network <http://ssrn.com/abstract=1021629>. See also Izhak
Englard, The Philosophy of Tort Law (Aldershot: Dartmouth, 1993), at pp. 11–20.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 123
sometimes openly acknowledge that legal principles or aspects of their
decision-making process reflect particular policy choices, values and
distributional considerations,
8
whereas others do not and even disavow
reliance on policy.
9
This confirms the observation that law, in particular
the role of courts, is not simply declaratory of pre-determined rules or
naturally constitutive social relations, what has been referred to as the
“fairy tale view of law.”
10
Rather, courts and legislatures actively
construct, structure and maintain social relations. One of the benefits of
this process is the ability to structure tort law to respond to the changing
needs of society and to reflect contemporary conceptions of social mores,
values and justice.
11
Courts make particular policy choices that reflect
their perception of social reality and human interactions, including
assumptions about the place and role of persons in society, which may be
gendered, racialized, classed, ableist, etc.
12
Luntz argues that the fact that
8
For example, policy considerations feature prominently in the determination of new
duty relationships, specifically whether the parties are in a sufficiently proximate
relationship to justify a tort law duty of care for the plaintiff’s benefit, and whether
such a duty is desirable from a societal viewpoint: see Cooper v. Hobart, [2001] 3
S.C.R. 537. Another area of tort liability heavily influenced by policy is vicarious
liability: see Bazley v. Curry, [1999] 2 S.C.R. 534; Elizabeth Adjin-Tettey,
“Accountability of Public Authorities through Contextualized Determinations of
Vicarious Liability and Non-Delegable Duties” (2007) 57 U.N.B.L.J. 46, at pp. 50–
51.
9
For example, the High Court of Australia has taken the position that whereas policy
considerations are inevitable in deciding novel tort claims, it is inappropriate to do so
openly. See Cattanach v Melchior, [2003] H.C.A. 38, 215 CLR 1, at para. 122, per
Kirby J. [Cattanach]. In McFarlane v. Tayside Health Board, [1999] 4 All E.R. 961
(H.L.) [McFarlane], the House of Lords disavowed basing their decision on the issue
of whether parents of a child conceived after a failed sterilization should be entitled to
the cost of rearing the child to the age of majority on social policy, notwithstanding
strong evidence of these considerations in the reasons for judgment. It is therefore
common for courts not to articulate the policy factors that animate their decisions,
leaving the impression that the result flows from a formalistic application of legal
rules and principles. See John G. Fleming, “Remoteness and Duty: The Control
Devices in Liability for Negligence” (1953) 31(5) Can. Bar Rev. 471, at p. 473
[Fleming, “Remoteness and Duty”].
10
See Luntz, referring to Sir Anthony Mason, Luntz, “The Use of Policy in Negligence
Cases,” supra note 7 at footnotes 5 and 6 and accompanying text.
11
See Benjamin N. Cardozo, The Growth of the Law (New Haven: Yale
UniversityPress, 1924), at p. 62, online: Infotrac <http://galenet.galegroup.com/
servlet/MOML?af=RN&ae=F152241803&srchtp=a&ste=14&locID=uvictoria_p>.
12
See Regina Graycar, “Hoovering as a Hobby and other Stories: Gendered
Assessments of Personal Injury Damages” (1997) 31 U.B.C. L. Rev. 17, at pp. 20–26,
35. Stapleton argues that the distinction between principle and policy is a fine one
and the categories are unstable. It may be unclear whether a particular concern that
124 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
judges can have multiple reasons for a particular outcome, even if they
concur in the result, and the frequency of dissenting judgments show the
latitude available to judges. These varied outcomes cannot result merely
from the application of legal principles; judges are bound to be influenced
by values and policy considerations in making their decisions.
13
Many tort theorists and courts reject a purely monist and non-
instrumental view of tort law. While tort law is seen as an instrument for
shaping society and hence promoting broader societal interests with
respect to liability, distributional considerations are rarely adopted at the
remedial stage. Rather, courts resort to formal legal principles and the
need for “principled” outcomes that accord with law and justice between
the parties when providing remedies for tort victims. Specifically, courts
rely on the principle of restitutio in integrum—restoring the plaintiff to
her status quo ante as far as money can do—as justification for the
formalistic approach. Broader societal interests are deployed in remedial
considerations usually in relation to intangible interests (non-pecuniary
damages) and non-compensatory damages, such as punitive damages.
However, there is reluctance to infuse broader policy considerations into
compensation for tangible interests, such as impaired working capacity, in
ways that will promote social justice, fairness and the equal moral worth
of all plaintiffs. This reinforces historical patterns of discrimination, and
projects these inequalities into the future, sometimes contrary to changing
social realities.
This paper adopts a consequentialist approach that focuses not
only on substantive principles of tort liability but also considers how
general principles of tort remedies are applied to victims, especially
claimants from marginalized backgrounds. I explore the implications of
the principle of corrective justice on the tort system, noting its inadequacy
to fully explain the workings of that system and arguing that distributional
considerations necessarily intrude. Remedies for personal injury can be a
site for reinforcing and exacerbating the vulnerability and devaluation of
forms the basis of legal decision making is principle or policy. She does not contest
the fact that courts are influenced by various social and legal concerns in making their
decisions. However, she finds the distinction between principle and policy unreliable
and prefers to characterize the considerations that animate legal decision making in
neutral terms as “legal concerns,” without having to separate policy from principle:
Stapleton, “The Golden Thread at the Heart of Tort Law,” supra note 6.
13
Luntz, “The Use of Policy in Negligence Cases,” supra note 7. See also A.C. v.
Manitoba (Director of Child and Family Services), 2009 SCC 30.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 125
members of marginalized groups.
14
Discrimination is pronounced in the
assessment of pecuniary losses, specifically in trust awards and damages
for impaired working capacity.
15
The paper will focus on these issues
because the traditional legal principles informing this area reveal the
unfairness to claimants from marginalized backgrounds and could leave
the impression that it is cheaper to injure persons from such backgrounds
compared to those from more favourable socio-economic situations.
Damages for impaired working capacity and in trust awards also present
unexplored opportunities to creatively assess victims’ losses in ways that
will not reinforce their socially constructed marginalization and
devaluation. This also reflects our commitment to equality and the
Canadian Institute for the Administration of Justice’s (CIAJ) theme of
using remedies to give content to substantive legal rights and to reflect
“contemporary trends in law and society.”
I. PURPOSE OF TORT LAW: PRIMACY OF CORRECTIVE JUSTICE
The primary organizing principle of tort law is corrective justice;
tort law is viewed as a system for righting wrongs caused by the
defendant’s conduct.
16
Thus, tort law is described as essentially a system
of “reparative” justice.
17
Seen in this light, tort litigation is a private,
14
See Richard Abel, “General Damages are Incoherent, Incalculable, Incommensurable,
and Inegalitarian (But Otherwise a Great Idea)” (2006) 55 DePaul L. Rev. 253, at p.
303 [Abel, “General Damages”].
15
The discriminatory impact of the application of restitutio in integrum is also evident
in the assessment of non-pecuniary damages for plaintiffs with pre-existing
disabilities. Their condition may affect their ability to live and enjoy what is
considered a normal lifestyle; that is, live as an able-bodied person. For such
plaintiffs, restoring them to their original position would often mean they receive less
for pain and suffering, loss of amenities and enjoyment of life because their position
was already compromised even without the injury in question. Since the plaintiff is
not to be restored to a better position than her/his pre-injury state, there will be no
compensation for inability to live a normal lifestyle; for example, if lack of mobility
was inherent in her/his original position and not attributable to the defendant’s
wrongdoing. See Darcy L. MacPherson, “Damage Quantification in Tort and Pre-
Existing Conditions: Arguments for Reconceptualization” in Dianne Pothier and
Richard Devlin, eds., Critical Disability Theory: Essays in Philosophy, Politics,
Policy, and Law (Vancouver: UBC Press, 2006), at p. 250.
16
See John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), at
p. 178.
17
Peter Cane, “Retribution, Proportionality, and Moral Luck in Tort Law” in Peter Cane
and Jane Stapleton eds., The Law of Obligations: Essays in Celebration of John
Fleming (Oxford: Clarendon Press, 1998), at p. 162.
126 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
bilateral transaction between the injured and the injurer. It is the
plaintiff’s responsibility to initiate the action at her/his own expense and
control the litigation to the extent possible within the rules of court. In
personal injury claims, the plaintiff seeks redress for interference with her
autonomy and personal security: specifically a determination that the
defendant wrongfully violated the plaintiff’s legally protected interests.
Redress may take the form of compensation for the plaintiff’s losses
caused by the defendant’s wrongful conduct—for example impaired
working capacity, pain and suffering and diminished quality of life. The
defendant’s obligation to compensate the plaintiff is limited by the
principle of restitutio in integrum that underlies tort damages. This
requires the defendant to compensate the plaintiff only for the latter’s
actual losses arising from the wrongful conduct, and to provide only what
is necessary to restore the plaintiff to the position she would have been in
absent the defendant’s wrong. This calls for an individualized assessment
of the plaintiff’s losses, using her status quo ante as the baseline for that
determination.
18
Corrective justice requires that a determination of the defendant’s
liability and the plaintiff’s entitlement should occur strictly within the
bilateral relationship between the parties, with no consideration of factors
external to that relationship, that is, factors relevant to only one party, or
to serve alternative ends.
19
Distributive justice, on the other hand, is
aimed at promoting collective goals and involves political considerations.
According to corrective justice theorists, these are not applicable in tort
law.
20
Given the bilateral nature of tort liability, the inquiry is limited to a
formal assessment of the plaintiff’s status quo ante; courts therefore
disregard inherent systemic inequalities affecting the plaintiff. The goal is
18
Stephen Perry refers to this as “outcome responsibility.” See Stephen Perry, “Risk,
Harm and Responsibility” in David G. Owen, ed., Philosophical Foundations of Tort
Law (Oxford: Clarendon Press, 1995), at p. 321. See also Gerald Postema,
“Introduction: Search for an Explanatory Theory of Torts” in Gerald Postema, ed.
Philosophy and the Law of Torts (Cambridge: Cambridge Univ. Press, 2001), at p. 9.
19
See Ernest J. Weinrib, “Corrective Justice in a Nutshell” (2002) 52 U.T.L.J. 349, at
pp. 351–352; See generally, Ernest J. Weinrib, “The Disintegration of Duty” in M.
Stuart Madden, ed., Exploring Tort Law (Cambridge University Press, 2005), at pp.
146–159; Ernest J. Weinrib, The Idea of Private Law (Cambridge, Mass.: Harvard
University Press, 1995), at p. 73.
20
See Ernest J. Weinrib, The Idea of Private Law, ibid. at pp. 210–211. Weinrib notes
that corrective justice and distributional considerations are categorically distinct, and
a single interaction cannot be meaningfully justified in the two systems of justice:
Ibid. at p. 73.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 127
to do justice as between the parties by treating them as morally equal
subjects with the exercise of one’s liberty having detrimentally impacted
the other’s interests. As Weinrib notes, the purpose of corrective justice
is to maintain and restore “the notional equality with which the parties
enter the transaction.”
21
Corrective justice theorists contend that mixing
the two theories of justice results in incoherence in tort principles and
may unjustly deny recovery to a person injured by the defendant’s
conduct.
22
It is therefore inappropriate to use the tort system as a
mechanism for adjusting societal inequalities and promoting the welfare
of vulnerable parties or those from marginalized backgrounds.
23
Corrective justice theorists like Weinrib assume equality between
the parties, an interaction based on free will and choice between equals,
and the possibility of determining the “true” wrong suffered as a result of
that interaction.
24
These assumptions are deemed to justify a focus on
external aspects of the parties’ relationship to preserve their formal
equality,
25
but fail to consider both the construction of the “baseline
against which correction takes place”
26
and the agency of legal actors.
27
21
Weinrib, “Corrective Justice in a Nutshell,” supra note 19 at p. 349.
22
For example, broader policy considerations in the duty analysis are criticized by
corrective justice theorists as unjust because they can deny liability, and hence
compensation, to the victim of another’s wrongdoing even after a finding that it is fair
and just to impose a duty of care on the wrongdoer. For a critique of the modern duty
analysis, see Weinrib, “The Disintegration of Duty,” supra note 19 at pp. 145–147,
164; Weinrib, The Idea of Private Law, supra note 19 at pp. 212–214.
23
See Weinrib, “Corrective Justice in a Nutshell,” supra note 19 at p. 353.
24
See Finnis, supra note 16 at pp. 178–179; Peter Cane, “Distributive Justice and Tort
Law” 2001 N.Z.L. Rev. 401, at p. 409.
25
Weinrib, The Idea of Private Law, supra note 19 at p. 104. This view of tort law, and
human interactions generally, is premised in liberal theory’s vision of society as
composed of autonomous individuals focused on maximizing their personal interests;
a vision not reflected in reality. Rather, human societies reflect social interactions
and interdependencies and have developed laws, norms and conventions to facilitate
these interactions to ensure harmonious coexistence. See Bender, supra note 1 at pp.
255–256.
26
Cane, “Distributive Justice in Tort Law,” supra note 24 at p. 408.
27
It is pretentious to assume that tort litigation is about corrective justice between equal
parties whereby the injurer is held accountable for their wrongful conduct. Many tort
actions tend to be subrogated claims brought by insurance companies on behalf of
insured plaintiffs, whose losses have been satisfied through insurance. In that sense,
the actual victim is merely a notional plaintiff and is thus not in a vulnerable position
vis-à-vis the defendant, often also an insurance company, who would be in a similarly
powerful position. However, this picture of tort litigation is not universal.
Individuals with first party insurance for the loss in question benefit from subrogated
128 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
The false understanding of notional equality is particularly evident in the
assessment of damages, that is, what is actually needed to restore the
injured party to her status quo ante. It disregards the inequalities inherent
in the parties’ initial positions, structured by systems of marginalization
that are (re)produced and reinforced by the status quo, which is itself
premised on an assumption that the identity and characteristics of the
individual participants are irrelevant. This understanding therefore
precludes the use of tort law to achieve social justice goals that recognize
existing inequalities. Meanwhile, the pursuit of corrective justice and the
restitutio principle still rely on the injured party’s identity as a member of
a disadvantaged group(s) to construct her loss, specifically the value of
impaired working capacity. The process fails to recognize that what is
considered the claimant’s loss is itself socially constructed to reinforce,
and sometimes exacerbate, systemic inequalities and the devaluation of
the human capital of members of disadvantaged groups. This is
particularly problematic when courts fail to make favourable assumptions
for young plaintiffs regarding their income potential based on their
socially constructed socio-economic status, for example gender and
family background, in predicting their future losses.
28
In this regard, the
remedial process does not only thrive on social inequalities; it also
actively protects and promotes those inequalities.
29
claims. But aside from situations of compulsory insurance, such as automobiles,
access to first party insurance often has a class dimension, as it is generally available
only to those with the adequate financial means or who have it as an employment
benefit. Others find themselves without this safety net. Examples include plaintiffs
in institutional abuse cases who would often not have received any insurance money
for their victimization. The insurance element therefore magnifies rather than
diminishes societal inequalities. Thus, considering parties to a tort action as equals is
an inaccurate conceptualization of harm and ignores the social dimension of tortious
injuries. See Elizabeth Adjin-Tettey, “The Marginalizing Effect of Deductibility of
Past Welfare Benefits from Compensation for Personal Injury” (2009) 44 S.C.L.R. 2d
37; Martha Chamallas, “Civil Rights in Ordinary Tort Cases: Race, Gender, and the
Calculation of Economic Loss” (2005) 38 Loy. L.A. L. Rev. 1435, at p. 1437.
28
Even the idea of a right or interest protected by tort law is not neutral or apolitical.
Tort liability arises only where the defendant’s conduct interferes with the plaintiff’s
legally protected interest or right. However, legally protected interests have not
remained static. The rights and duties recognized by tort law are given effect through
state institutions, such as the judiciary, that determine the nature and content of these
rights and correlative duties, as well as what constitutes interference with these rights
and what is necessary to rectify harms resulting from such interferences. See
Weinrib, “Corrective Justice in a Nutshell,” supra note 19 at pp. 352–354.
29
See Cassels, supra note 4 at pp. 158–159.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 129
Meanwhile, the Supreme Court of Canada has stated that the
development of the common law, tort included, must be informed by the
equality principles and values enshrined in the Canadian Charter of
Rights and Freedoms, even though the Charter is not directly applicable
in private litigation.
30
The expectation that the common law’s
development should reflect Charter values has been rhetorical, at least in
the context of tort damages, as courts have been reluctant to use private
ordering as a site for considering social context or redressing systemic
inequalities. It is thought to be contrary to corrective justice and
individual liberty, and also unduly places the burden of societal problems
on defendants.
31
Resistance to the infusion of equality principles in tort
remedies stems from reliance on the capitalist market and social identity
as the benchmark for ascertaining plaintiffs’ losses. However, this
resistance presupposes equality in the market and assumes that individuals
engage with each other as autonomous, self-interested actors. As well, it
ignores how systemic inequalities affect the lives of marginalized people
through the valuation of their losses in personal injury claims based on
formal principles such as restitutio in integrum.
Corrective justice may be a weak conceptual principle for
explaining tort actions. Many victims would like to hold someone
accountable for their injuries. A corrective justice rationale would
suggest suing to hold wrongdoers personally accountable for the
plaintiff’s victimization. The ability to pay would be incidental.
However, in practice, victims rarely sue tortfeasors who are judgment-
proof, as compensation for the consequences of the wrongdoer’s conduct
is often of greater concern for plaintiffs than the tortfeasor’s personal
responsibility; few victims pursue perpetrators simply for the
psychological satisfaction of having them held personally accountable
without being concerned about monetary compensation for their
injuries.
32
The purpose of this paper is not to challenge the importance of
30
See R.W.D.S.U. v. Dolphin Delivery, [1986] 2 S.C.R. 573, at p. 603; Hill v. Church of
Scientology of Toronto, [1995] 2 S.C.R. 1130, at p. 1169 [Hill].
31
See MacCabe v. Board of Education of Westlock Roman Catholic Separate School
District No. 110 (2001), 293 A.R. 41 (C.A.), at paras. 98–110 [MacCabe]; Rewcastle
v. Sieben (2001), 296 A.R. 61 (QB), rev’d on other grounds ( 2003), 20 Alta. L. R.
(4
th
) 17 (CA) [Rewcastle]; British Columbia (Public Trustee) v. Asleson (1993), 78
B.C.L.R. (2d) 173 (C.A.), at para. 180 [Asleson]; Cassels, supra note 4 at pp. 160–
162.
32
Victims often look for deep-pocketed or insured parties other than the actual
perpetrator to hold liable for their injuries, for example through a finding of
negligence for not taking adequate precautions to prevent the plaintiff’s victimization
130 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
corrective justice to tort law and the bilateral nature of the relationship
between the injurer and the injured.
33
However, the bilateral nature of the
relationship does not tell us anything about valuation of the plaintiff’s
losses, which inevitably relies on external factors regarding the value of
her human capital to make that assessment. Moreover, the concept of
corrective justice as the underlying basis for damages in tort can lead to
severely inequitable outcomes. In the next section I explore how the
restitutio in integrum principle operates in regards to in trust awards and
compensation for impaired working capacity, pointing out the inequities
that arise as a result. I argue that the current approach has the effect of
perpetuating and reinforcing discrimination suffered by disadvantaged
plaintiffs.
II. DISCRIMINATORY IMPACT OF RESTITUTIO IN INTEGRUM AND
CORRECTIVE JUSTICE IN THE VALUATION OF PLAINTIFFS’
LOSSES
From a victim’s perspective, the substantive content of legal rights
is largely reflected in the remedies available for their vindication and the
extent to which those remedies mirror the ideals underlying the legal
system, including how the victim is valued as a member of the
community. Thus, issues of justice in remedying personal injury cannot
be dismissed as not warranting serious consideration. According to the
CIAJ’s mission statement, the remedial side of the legal process
by the perpetrator. Alternatively, plaintiffs may seek to hold third parties vicariously
liable for the plaintiff’s injuries regardless of the third party’s fault. Even when
powerful defendants are found liable, the prevalence of liability insurance and loss-
spreading mechanisms available to self-insurers undermines corrective justice. While
corrective justice identifies the injurer as the person accountable, the defendant is
often a nominal party and liability is spread among policy holders and/or consumers
of their goods and services. There might be repercussions for making claims, such as
increased premiums, but these are costs of doing business and will be passed on to
shareholders, consumers and/or qualify as deductible business expenses for tax
purposes. Non-legal sanctions such as bad publicity and boycott of the defendant’s
goods and services may be of limited effect. Negative publicity may also be avoided
through settlements that often preclude the victim from publicly disclosing terms of
the agreement.
33
Regardless of a plaintiff’s desire to obtain compensation for her or his injuries, she
does not have a right to compensation against the whole world or the wealthiest
person on the block. Rather, entitlement to compensation only arises in relation to the
person responsible for the interference with the interests at stake. See Ernest J.
Weinrib, “Deterrence and Corrective Justice” (2002) 50 UCLA L. Rev. 621, at pp.
626–627.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 131
determines the extent to which ideals of justice get tested in victims’ lives
and whether it is worth seeking legal solutions to one’s problems.
The influence of corrective justice as expressed in the principle of
restitutio in integrum appears to be so strong that even when courts
recognize the need for equality and social justice in the assessment of
damages, they may still feel constrained from infusing the process with
distributional considerations because it offends the goal of tort damages to
restore the plaintiff to her so called original position.
34
This can have a
discriminatory effect on claimants from marginalized backgrounds by
creating and reinforcing systemic inequalities on the basis of social
identity such as gender, race, ethnicity, (dis)ability and class because of
the way victims’ original position and losses are constructed. Valuation
of the claimant’s losses can be particularly crucial where the reason for
her victimization was tied to her marginalized status, for example,
claimants who were abused as children in the care of government
agencies and institutions. The needs of vulnerable members of society
should inform the remedies provided for violations of their rights to
bodily autonomy and security in such a way that shows their losses are
equally valued.
A. IN TRUST AWARDS
Where the plaintiff has benefited from care and services provided
by family members and friends in the pre-trial period, the court may
award damages for the reasonable value of those services to be held in
trust for the benefit of the service provider. The rationale for in trust
awards is that the plaintiff has suffered a loss due to the defendant’s
wrongdoing, resulting in the need for the care or services in question; the
plaintiff would likely have purchased those services if they had not been
gratuitously provided. In trust awards are premised on corrective justice
and ensure a defendant’s accountability for losses caused by her wrongful
conduct. They also prevent a windfall to the plaintiff by not
compensating her for expenses not actually incurred. This appears
consistent with the restorative goal of tort damages.
Restitutio in integrum governs both the availability and amount of
in trust awards and may create and reinforce inequalities on the bases of
gender and/or class. In trust awards are only available for “extraordinary”
34
MacCabe, supra note 31; K.L.B. v. British Columbia, [2003] 2 S.C.R. 403; Asleson,
supra note 31.
132 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
care, that is, services over and above what the providers normally do, or
are expected to do for the plaintiff in the aftermath of an injury; there is
no compensation for what the service provider ordinarily does or is
expected to do for the plaintiff based on their relationship.
35
In theory, the
basis of in trust awards and the amount awarded are consistent with the
compensatory goal of tort damages. However, these apparently neutral
principles have a discriminatory effect because it is easy for women’s care
work to be characterized as less than extraordinary and it therefore may
not warrant in trust awards.
There are class and gender implications of the principles in
relation to in trust awards and special damages generally. The threshold
for in trust awards presumes there is a common understanding of what
family members are expected to do for each other when healthy or
injured. Meanwhile, for a variety of reasons including social and cultural
assumptions and expectations, women tend to do more care work within
families compared to men. This means in trust awards will rarely be
awarded in respect of care provided to injured family members by
women, save for exceptional cases. As well, where the service provider
does more for her family members than is typically expected, an in trust
award might not be warranted or will be awarded only for limited
services.
36
Further, the amount of compensation provided is generally based
on the lesser of the reasonable replacement cost of those services or the
service provider’s opportunity cost. Low-income earners who give up
paid employment to look after injured family members may be
35
See Bystedt (Guardian ad litem of) v. Hay, [2001] B.C.J. No. 2769 (S.C.) (QL), aff’d
(2004), 24 B.C.L.R. (4th) 205 (C.A.) [Bystedt]; Bartosek (Litigation Guardian of) v.
Turret Realities Inc., [2001] O.J. No. 4735 (Sup. Ct. J.) (QL), aff’d (2004), 23
C.C.L.T. (3d) 161 (C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 202
[Bartosek]; Wozniak v. Alexander, [2008] A.J. No. 788 (Q.B.) (QL), at para. 67;
Lakhani v. Elliot, 2009 BCSC 1058, at para. 163.
36
In Dhillon v. Zurek, 2001 BCSC 271, the plaintiff alleged that her upbringing, cultural
background and specific arrangements with her spouse prior to their marriage
required that she undertake all the household tasks including raising her children and
working outside the home, if appropriate. Her inability to perform these duties due to
her injuries was a source of disappointment and likely depression and, the court
found, was probably a factor in her slow rate of recovery. Had a member of her
family been a plaintiff, given the amount of care and services that she normally
provided, the threshold for extraordinary care would have been high. It is likely that
some of the services that she routinely provided for her family members may not be
the norm in the dominant society, and hence could easily attract in trust awards
should those same services be provided to a plaintiff in another family.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 133
disadvantaged because they might recover less for in trust awards (if their
forgone income is less than the reasonable replacement cost) compared to
those with higher incomes who can recover their actual opportunity cost
provided it is reasonable. High-income families might find it easier to
purchase professional services for injured family members, among other
things, because they are used to having paid services and/or the high
opportunity cost. More privileged plaintiffs can also enjoy professional
services and recover the reasonable cost of those services. Poorer
families are likely to provide “do it yourself” services for the injured
family members and may also recover less for in trust awards when they
forego paid work to look after an injured family member, because their
opportunity cost may be less than the cost of using professional services.
Women are particularly affected since they tend to earn less and
are more likely to be those who give up paid employment to look after
injured family members. Compensation is also limited to services in
excess of what the person would otherwise do for the victim. Therefore,
families who do not normally hire outside help, whether for personal,
ideological, economic or cultural reasons, are likely to be disadvantaged.
Again this is a gendered problem, since women continue to perform more
household and care work compared to men.
37
The aggregate effect of
adherence to the restitutio principle, with respect to in trust awards, is the
further disadvantaging of those from less privileged socio-economic
backgrounds.
Ideally, concerns about inequalities in the amount of in trust
awards may be avoided where plaintiffs purchase services they need when
they suffer tortious injuries. However, this might not be a realistic option
for all plaintiffs. Some services and care may be better provided by
family members, where possible. There is no reason to devalue such
services simply because they were “homemade.” The plaintiff and/or her
family might not have the resources to purchase those services, especially
where there is no guarantee of compensation from the tortfeasor—for
example where liability is contested.
38
Plaintiffs with first party
insurance—usually those with disposable incomes to purchase these
policies, or who have them as employment benefits or as members of
37
See Statistics Canada, “Are Women Spending more Time on Unpaid Work than Men
in Canada?”(2008), online: Statistics Canada <http://www.statcan.gc.ca/pub/89-630-
x/2008001/article/10705-eng.htm>; Statistics Canada, “Converging Gender Roles”
Canadian Economic Observer, August 2006, Catalogue No.: 11-101-XIB, online:
Statistics Canada <http://www.statcan.gc.ca/pub/11-010-x/00806/9290-eng.htm>.
38
See Preston v. Chow, 2007 MBQB 318 [Preston].
134 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
professional associations—can obtain commercial services even if there
are doubts about the defendant’s liability for the injuries, because their
insurers will likely indemnify them for those expenses. This leaves
marginalized people—low-income earners, the unemployed, persons in
receipt of social assistance, etc.—at risk of further marginalization
through the devaluation of services provided by family members who are
unemployed or earn less than the reasonable replacement cost of the
services in question. The differences in the quantum of in trust awards
amounts to discrimination on the basis of social identity, despite the
alleged basis of such awards being the compensatory goal of tort
damages. Thus, the restorative principle allows courts to indirectly
sanction inequalities seemingly justified through adherence to legal
principles. This does not correspond with the attention given to desirable
social outcomes in the determination of tort liability. In assessing in trust
awards, the focus should be on the market value of the services in
question and not the identity of the service provider and her socio-
economic location. Compensation should be based on the reasonable
replacement cost for those services, similar to impaired homemaking
capacity, where all plaintiffs receive comparable damages for work they
are no longer able to perform.
39
Such an approach will not offend the
compensatory purpose of tort damages because compensation will be
limited to services necessitated by the effects of the defendant’s
wrongdoing. As well, it will ensure equality of treatment between those
who give up paid employment to look after injured family members and
those who do not.
40
39
See Fobel v. Dean (1991), 83 D.L.R. (4
th
) 385 (Sask. C.A.). Compensation for
impaired homemaking capacity is available to all plaintiffs who experience
diminished ability to perform such tasks due to the injury, regardless of gender and
whether they were full time homemakers or participated in the waged labour force.
Thus, plaintiffs who had chosen to work less in order to focus on household tasks will
be compensated at the same rate as all other plaintiffs who are no longer able to
perform the task in question regardless of their income level.
40
Where there is no opportunity cost to the person who provides the services, the
quantum of damages will be determined based on the reasonable replacement cost.
Thus, family members earning less may recover less where they give up income to
look after injured family members while other family members who did not give up
any income can recover more for the same work.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 135
B. COMPENSATION FOR IMPAIRED WORKING CAPACITY
The purpose of tort law includes protection of autonomy, security,
dignity and property interests of individuals. The value placed on these
interests is often conceptualized through the lens of the market, or
economic considerations in the form of monetary compensation in the
event that these interests are violated.
41
Consequently, the tort system
highlights interests valued by society and deserving of protection, and the
corresponding monetary worth of a tortious injury. Thus, the value of an
individual’s autonomy, security and dignity, at least in relation to the
ability to engage in productive work, depends on the worth of her human
capital in the marketplace. This is often an arbitrary and subjective
process for future losses in general, but especially for future income
loss.
42
In practice, liability for the consequences of one’s conduct is not
assessed independent of the background characteristics of victims; these
are considered inherent in their original position, and hence impact the
extent of their loss. Victim characteristics such as race, gender, disability,
class, etc., serve as a conceptual lens for the valuation of the earning
potential and therefore of their losses. These characteristics are
considered pre-existing or independent factors that would have
detrimentally affected the plaintiff even absent the defendant’s
intervention in her or his life, and that cannot be ignored in the assessment
of her losses due to the tortious injury.
Differential valuation of plaintiffs’ losses based on social identity,
seemingly pursuant to the restitutio principle, results in only formal
equality, and may be discriminatory. The intersection of factors such as
gender, race, disability, and poor socio-economic status may have a
detrimental effect on damages for impaired working capacity. Systemic
factors that often operate to exclude members of marginalized
41
See Joan C. Williams, “Unbending Gender: Why Family and Work Conflict and
What to Do about It” in Martha M. Ertman and Joan C. Williams, eds., Rethinking
Commodification: Cases and Readings in Law and Culture (New York University
Press, 2005); Viviana A. Zelizer, Pricing the Priceless Child (Basic Books, Inc.,
1985), at pp. 15–20; Margaret Jane Radin, Contested Commodities (Harvard
University Press, 1996), at chapter 13; Martha M. Ertman, “What’s Wrong with a
Parenthood Market? A New and Improved Theory of Commodification” (2003) 82
N.C. L. Rev. 1, at pp. 42–58.
42
See Lucinda M. Finley, “The Hidden Victims of Tort Reform: Women, Children, and
the Elderly” (2004) 53 Emory L.J. 1263, at pp. 1278–1279. See also Andrews v.
Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, at para. 58 (WLeC) [Andrews],
where Justice Dickson refers to the speculative nature of the assessment of future
income loss as crystal ball gazing.
136 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
communities from the labour market, or at least from high income
positions, are perceived to be outside the valuation of plaintiffs’ losses.
43
To compound the problem, marginalized status can exacerbate a person’s
losses, making mitigation increasingly difficult.
44
For example, courts
have said they cannot ignore the “reality” of women’s level of attachment
in the paid labour force due to their child-bearing and caring
responsibilities which lower their overall earnings even after eliminating
the gender wage gap.
45
This can have significant implications for
plaintiffs, especially in cases of catastrophic physical injuries or injuries
with long-term psychological consequences, where income loss is a
significant part of the plaintiff’s claim.
46
While not denying social inequalities that detrimentally affect
plaintiffs from marginalized backgrounds, courts see their role in the
assessment of damages as focused on doing justice inter se and restoring
the plaintiff to her “original position.” without “scapegoating” the
defendant by redressing societal ills or inequalities. According to this
understanding of the tort system, the burden of eliminating societal
inequalities based on social identity is to be borne by society generally
and not by individual defendants. Unlike the determination of tort
liability or the limits of tort law generally that reflect broader societal
interests, the assessment of damages seems to be controlled solely by
corrective justice and a narrow focus on the plaintiff’s so-called original
position. The fairness of that position, including the impact that social
identity, structural inequalities affecting the plaintiff or her family, or the
social construction of gender roles have on the valuation of human
capital, is not questioned.
47
This benefits plaintiffs from privileged
43
For employment rate of women compared to men, types of occupations, income level,
etc. see: Statistics Canada, Women in Canada: A Gender-Based Statistical Report, 5
th
ed., 2006 (Social and Aboriginal Statistics Division), Catalogue no. 89-503-XIE,
chapter 6, online: Statistics Canada <http://www.statcan.gc.ca/pub/89-503-x/89-503-
x2005001-eng.pdf>.
44
Cassels, supra note 4 at p. 192.
45
See MacCabe, supra note 31; Spehar (Guardian ad litem of) v. Beazley, 2002 BCSC
1104, aff’d (2004), 31 B.C.L.R. (4th) 223 (C.A.) [Spehar]; Grewal v. Brar 2004
BCSC 1157, at para. 153 [Grewal].
46
See Chamallas, supra note 27 at pp. 1438–1442.
47
For a contrary approach that considers the reasons for the unfavourable conditions of
those used as a proxy to ascertain the plaintiff’s earning potential and does not project
that into the future, see Preston, supra note 38 at paras. 289–290. Although the
plaintiff’s mother had not completed high school and did not have any employment
skills, the court noted that this was because of the responsibilities thrust upon her by
having a child with special needs. The court used the educational level that the
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 137
backgrounds while negatively impacting those in unfavourable
circumstances. Those prejudiced by this regime tend to be poor people,
women, racialized persons, those living with disabilities, etc. Why should
the extent of a defendant’s liability be determined by the plaintiff’s social
identity? In other words, why should the defendant obtain a financial
advantage from societal inequities?
The discriminatory effect of the restorative principle is particularly
acute in relation to young plaintiffs with no earning record. For these
plaintiffs, courts rely on factors such as gender, family background and
socio-economic conditions, including parents’ educational attainment,
work ethics and home environment, to determine the value of their
impaired working capacity. This often results in depressed awards for
those from marginalized backgrounds because they are not perceived to
have the prospect of favourable material conditions absent their injury.
48
A focus on family background and conditions can entrench privilege
while exacerbating the marginalization of less privileged members of
society, often based on mere speculation. Family status is not always an
accurate predictor of a person’s future socio-economic prospects, as
children often achieve higher job or income status than their parents.
49
It
is questionable whether supporting societal inequities should be
condoned. As Bruce notes, “it is not clear that society considers it
equitable that the child of a well-educated [person] should receive more
mother would otherwise have achieved as an appropriate benchmark for assessing the
plaintiff’s losses.
48
See W.R.B. v. Plint (2001), 93 B.C.L.R. (3d) 228 (S.C.), at paras. 327-336, aff’d
[2005] 3 S.C.R. 3 [Plint]; M.B. v. British Columbia, 2000 BCSC 735, at paras. 277-
278, varied on other grounds [2003] 2 S.C.R. 477; T.W.N.A. v. Clarke (2003), 22
B.C.L.R. (4th) 1 (C.A.), at para. 78 [T.W.N.A.]; B.P.B. v. M.M.B., 2006 BCSC 1027,
at para. 130, varied on other grounds (2009), 97 B.C.L.R. (4
th
) (C.A.), leave to appeal
to SCC refused [2010] S.C.C.A. No. 90 [B.P.B.]; Osborne (Litigation guardian of) v.
Bruce (County) (1999), 83 O.T.C. 326 (Gen. Div.) [Osborne]. See also A. Kaminsky
et. al., “Recent Developments in Litigation of Lead Paint Poisoning Among Children”
(2001) 13 Environmental Claims J. 89.
49
See Rotumah v. NSW Insurance Ministerial Corp (NSW SC, April 16, 1998,
unreported), cited in Harold Luntz, Assessment of Damages for Personal Injury and
Death, 4
th
ed. (Chatswood, NSW: Butterworths, 2002), at pp. 323–324, note 123. See
also Mumford v. Health Sciences Centre (1991), 77 Man. R. (2d) 1 (Q.B.), aff’d
(1993) 85 Man. R. (2d) 271 (C.A.), leave to appeal to S.C.C. refused, [1993] S.C.C.A.
No. 347 [Mumford]; M (A Child) v. Leeds Health Authority, [2002] P.I.Q.R Q4, 2001
WL 1751078 (QBD), at para. 55; Greyhound Lines Inc. v. Sutton, 765 So. 2d 1269
(Miss. 2000) at paras. 20–21 [Sutton].
138 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
compensation than the child of a labourer.”
50
Equality of opportunity for
all children is a cherished Canadian value. Given that the assessment of
future losses is speculative and that the plaintiff’s so-called original
position will never be known with certainty, it is unfair for the defendant
to pay less for a marginalized plaintiff’s impaired working capacity and
thereby benefit from the latter’s undervalued social identity. Courts
should apply egalitarian principles to value the working capacity of all
young plaintiffs in a similar way, for example based on average income,
regardless of gender and other social markers, unless there is reasonably
predictive evidence of a higher than average income potential.
51
Reliance on the restitutio principle with its focus on corrective
justice masks the inequities of a subjective valuation of the plaintiff’s
socially constructed worth in the labour market. This is particularly
problematic where the plaintiff’s marginalized status was a reason for her
victimization,
52
or where the defendant has exploited the plaintiff’s
vulnerability and exposed her or him to an unreasonable risk of harm.
53
50
Christopher J. Bruce, “The Calculation of Foregone Lifetime Earnings: Three
Decisions of the Supreme Court of Canada” (1979) 5 Can. Pub. Pol’y 155, at p. 166.
See Abel, “General Damages,” supra note 14 at pp. 311–312, 315.
51
See Sutton, supra note 49 at paras. 22–23. It will be unfair for courts to ignore
concrete or reasonable evidence regarding a child’s future potential in assessing their
lost earning potential. However, the analysis should focus on personal characteristics
of the individual plaintiff and not generally on their social identity, which is possible
with older children when there is the evidential basis for an assessment of academic
performance, work ethics, or indications of career path. Using average income
statistics for children generally avoids potential disadvantage to those from
unfavourable backgrounds or late bloomers who have had no opportunity to at least
try.
52
Take for example a developer who builds sub-standard social housing that exposes
residents to an increased risk of harm not present in other areas, and who then, as a
defendant, benefits from paying less in damages for impaired working capacity of
those catastrophically injured in a building collapse or from exposure to toxic
substances such as lead. This not only exploits those residents, mostly poor people,
but is also an affront to their human worth and dignity, contrary to principles of
equality. The developer may be charged and convicted of criminal negligence
causing bodily harm if the court finds that this was a calculated conduct in disregard
for the safety or life of residents (See Criminal Code of Canada, R.S.C. 1985, c. C-
46, s. 219) and/or may be liable for punitive damages. However, this does not affect
the valuation of the plaintiffs’ worth and losses. See Laura Greenberg,
“Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory
Damage Awards” (2001) 28 B.C. Envt’l Affairs L. Rev. 429.
53
For example, consider Aboriginal children removed from their homes and families
and forced to attend residential schools. The assimilative purpose of the schools, the
remote locations and the coercive manner in which the schools operated made
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 139
Manufacturers of products specifically designed and marketed to persons
living with physical limitations, and intended to alleviate those
limitations, can successfully argue for lower damages where a defect in
the product causes injury resulting in impaired working capacity to the
plaintiff, because the plaintiff already faced diminished employment
prospects due to her or his disability prior to the defendant’s wrongdoing.
The amount of compensation in such cases may be contrasted with what
may be awarded in respect of products intended for non-disabled persons
who can recover higher damages based on their perceived worth in the
capitalist market.
54
In so doing, courts reinforce and exacerbate the
exclusion, systemic marginalization and devaluation of the worth of
disabled persons, as well as validate the institutional and structural
obstacles to their full participation in paid employment and society
generally.
55
As well, the ableist underpinning of the construction of the
children vulnerable to abuse. Defendants, including the federal government and the
religious organizations that ran the schools, have successfully argued for diminished
losses from abuse because the plaintiff’s original position was already compromised.
Evidence for this argument included reference to their difficult family situations, such
as domestic violence and alcohol abuse, which would have also detrimentally
impacted their socio-economic prospects absent the abuse in question. Courts have
accepted these arguments to lower damages for Aboriginal plaintiffs, using their
disadvantaged situation to devalue their losses compared to plaintiffs from dominant
groups, but without recognizing the complicity of the dominant society in the
marginalization of Aboriginal people through colonization and the inter-generational
effects of forced attendance at Indian residential schools. See Plint, supra note 48 at
paras. 375–378, 388 (S.C.), and para. 82 (S.C.C.); E.B. v. Order of the Oblates of
Mary Immaculate in the Province of British Columbia, 2001 BCSC 1783, at paras.
261–262, 308, rev’d on other grounds (2003), 14 B.C.L.R. (4
th
) 99 (C.A.); D.W. v.
Canada (A.G.) (1999), 187 Sask. R. 21 (Q.B.), at paras. 38–39; T.W.N.A., supra note
48. See also Abel, “General Damages” supra note 14 at pp. 256–257.
54
See MacPherson, supra note 15 at pp. 250–253.
55
For example, it may be easy to point to statistics about the participation rate of
persons with disabilities in the paid labour force to make predictions about the
earning potential of a disabled plaintiff. However, those statistics mask the fact that
the problem is not located in persons living with those limitations but in the way
society is constructed that limits education and employment opportunities or
accessibility to public places for such persons. See Robert D. Wilton, “Working at
the Margins: Disabled People and the Growth of Precarious Employment” in Pothier
and Devlin, eds., Critical Disability Theory, supra note 15, at pp. 129–130. The
devaluation of the worth of persons living with disabilities is particularly troubling
where their victimization is attributable to their vulnerability. For example, persons
marginalized on the bases of factors such as disabilities, racialization, gender, age,
class, immigration status, and sexuality are particularly susceptible to sexual assault.
See British Columbia Law Institute, Civil Remedies for Sexual Assault (Vancouver,
BCLI Report No. 14, 2001), at pp. 4–5; Janine Benedet and Isabel Grant, “Hearing
the Sexual Assault Complaints of Women with Mental Disabilities: Consent,
140 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
“normal” and the benchmark for assessing tort damages remains
unchallenged. Thus, rather than valuing the plaintiff and her losses in
themselves—for instance based on the nature of the injury and how it has
impacted the plaintiff—her moral worth and loss are assessed against the
yardstick of the unstated norm or the ideal, able-bodied plaintiff.
56
It is unconscionable for a defendant to pay less in damages
because of the plaintiff’s pre-existing vulnerabilities that have been
exploited for personal gain. This results in re-victimization and
exacerbation of social inequities. It reinforces marginalization by
devaluing the lives and moral worth of plaintiffs, and fails to employ tort
law as a mechanism for protecting human dignity and promoting equality
consistent with Charter values.
57
The consequent implications on access
to justice are important. Generally, only a small number of tort victims
actually initiate claims for their losses, the phenomenon referred to as “the
‘dark figure’ of unasserted legitimate claims.”
58
Victims from socio-
economically disadvantaged backgrounds appear less likely to initiate
action.
59
Even if such victims seek vindication of their rights, the
resitutio principle, with its focus on replicating the victim’s “actual”
losses, often results in lower compensation for plaintiffs from
marginalized backgrounds. This is a further disincentive for pursuing
claims and thereby creates unequal access to the civil justice system.
60
Capacity, and Mistaken Belief” (2007) 52 McGill L.J. 243; UNICEF, Violence
against Disabled Children, UN Secretary Generals Report on Violence against
Children, Thematic Group on Violence against Disabled Children, Findings and
Recommendations, Convened by UNICEF at the United Nations, New York July 28,
2005.
56
See MacPherson, supra note 15 at pp. 255–259.
57
See Bender, supra note 1 at pp. 256–257.
58
Richard Abel, “Civil Rights and Wrongs” (2004–2005) 38 Loy. L.A. L. Rev. 1421, at
p. 1425 [Abel, “Civil Rights and Wrongs”].
59
Ibid. at pp. 1425–1426.
60
The problem of unasserted claims arises in relation to both personal and fatal injuries.
In the context of fatal injury claims, dependents may also receive depressed awards
for the value of their dependency on the deceased family member based on the limited
valuation of the earning potential of the deceased. Damages in fatal injury claims are
mostly economic and limited to the pecuniary benefits that the claimants would have
obtained from the deceased had she not been fatally injured, referred to as the value of
dependency. The claimants’ entitlement is assessed based on the deceased’s
disposable income. Given the correlation between income and value of dependency,
limited valuation of lost income would mean less compensation for dependents. See
Jamie Cassels and Elizabeth Adjin-Tettey, Remedies: The Law of Damages, 2
nd
ed.
(Toronto: Irwin Law, 2008), at pp. 183–187.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 141
The possibility of depressed awards can make it difficult to find a lawyer
willing to take on the plaintiff’s claim on a contingency fee basis.
61
This,
in addition to the potential high cost of litigation, will often leave the
victim with very little by way of compensation after disbursements and
legal fees, and may make legal action futile. Further, the potential for
depressed awards may create incentives to settle or succumb to the
pressure from powerful defendants and/or their insurers to settle,
sometimes for less, to avoid the uncertainty of the outcome of a trial, as
well as minimize the cost of litigation and alleviate financial hardship
caused by the injury.
62
The cumulative effects of factors that make it less likely for
victims from marginalized backgrounds to seek vindication of their rights
results in the potential disproportionate exposure of such people to risks
of injury. It also creates immunity, wholly or partially, for tortfeasors
who pay less in damages or settlement awards, or may not be sued at all,
thereby exacerbating the vulnerability of disadvantaged individuals and
groups.
63
Thus, depressed damages for lost earning capacity based on the
perceived value of the plaintiff’s human capital can have a particularly
detrimental effect on members of marginalized groups such as women,
racialized people and persons living with disabilities, making them
“cheaper” to injure. As Abel notes: “The legal system creates an
incentive to injure those whom society endows with less human capital
(earning capacity…), who are also less … likely to respond by suing.
(The poor also have less bargaining power to demand workplace safety
61
Plaintiffs unable to afford legal fees may maintain an action against the tortfeasor by
entering into contingency fee arrangements with lawyers. However, the reality is that
the decision to take on a client on a contingency fee basis will largely be influenced
not only by the chances of success but also the size of the potential award. The
likelihood of depressed awards will likely diminish the chances of being able to
obtain legal representation on a contingency fee arrangement. Finley makes similar
arguments with respect to caps on non-pecuniary damages. Plaintiffs who suffer
mostly intangible losses are often left with little compensation after paying for fees
and disbursements, and may have difficulty finding lawyers. This has a
corresponding effect on fairness and equal access to the civil justice system: Finley,
supra note 42.
62
See Richard Abel, “Judges Write the Darndest Things: Judicial Mystification of
Limitations on Tort Liability” (2002), 80 Tex. L. Rev. 1547, at p. 1549; Abel, “Civil
Rights and Wrongs,” supra note 58 at p. 1431.
63
See Finley, supra note 42 at p. 1295; Abel, “Civil Rights and Wrongs,” ibid. at p.
1426; Chamallas, supra note 27 at pp. 1440–1441. See also Tsachi Keren-Paz, “An
Inquiry into the Merits of Redistribution through Tort Law: Rejecting the Claim of
Randomness” (2003) 16 Can. J.L. & Jur. 91, at pp. 94–95.
142 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
and less purchasing power to buy it in consumer products, or even to
protect themselves against the weapons of the rich…,”
64
for example, by
way of first party insurance. Incentives for victimizing vulnerable groups
and individuals, and the devaluation of their losses, may be avoided or at
least minimized by remedies that focus on reversing the unjust enrichment
of defendants or the defendant’s wealth.
65
However, these solutions may
be of limited value where the defendant did not obtain financial gain from
the tort, which will be the situation in many personal injury claims, and so
long as compensation is based on the restorative principle.
Women may be doubly disadvantaged by the lower valuation of
their probable earnings. Generally, women receive less compensation for
impaired working capacity for a number of reasons. The majority of
women work in traditional female occupations, which pay less compared
to the rate of remuneration for male dominated jobs, a phenomenon
referred to as the “pink ghetto.”
66
In addition, women’s familial roles of
child bearing and rearing and other care responsibilities are perceived to
limit their attachment to the labour market, and hence decrease their
earning potential.
67
Thus, even when women’s earnings in particular
occupations are expected to be comparable to that of their male
64
Abel, “Civil Rights and Wrongs,” ibid. at pp. 1421–1422.
65
See Thomas H. Koenig and Michael L. Rustad, “Toxic Torts, Politics, and
Environmental Justice: The Case for Crimtorts” (2004) 26 Law & Pol’y 189; Allan
Kanner, “Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor, 209 in
Special Issues on Toxic Torts and Environmental Justice, (2004) 26 Law & Pol’y
209.
66
See Statistics Canada, “Women in Canada: Work Chapter Updates,” online: Statistics
Canada <http://www.statcan.gc.ca/pub/89f0133x/89f0133x2006000-eng.htm>;
Statistics Canada, “Women in Canada,” The Daily, March 7, 2006, online: Statistics
Canada <http://www.statcan.gc.ca/daily-quotidien/060307/dq060307a-eng.htm>;
Women in Canada, supra note 43, at pp. 113, 139; Statistics Canada, The “who, what,
when and where” of gender pay differentials, by Marie Drolet, Catalogue No. 71-
584-MPE, no.4 (Ottawa: Minister of Industry, 2002), chapter IV; Judy Fudge and
Rosemary Owens, Precarious Work, Women and the New Economy (Oxford:
Portland, Oregon: Hart 2006), at p. 13.
67
Some recent cases show a tendency to assume comparable earnings for men and
women where the female plaintiff would likely have completed post-secondary
education either because of pay equity initiatives or because there is generally no
difference in remuneration for men and women in particular occupations. See
MacCabe, supra note 31; Walker v. Ritchie, [2003] O.J. No. 18 (Sup. Ct. J.), at para.
135 (QL), aff’d (2005), 31 C.C.L.T. (3d) 205 (C.A.) [Walker]; Audet (Guardian ad
Litem of) v. Bates, [1998] B.C.J. No. 678 (S.C.), at para. 81. However, female
earnings continue to be used for plaintiffs not expected to obtain education beyond
high school. See Preston, supra note 38 at paras. 291–293; Osborne, supra note 48.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 143
counterparts, the overall lifetime earnings of women are perceived to be
less because of withdrawals from the workforce for familial reasons. This
is justified as being consistent with the restitutio principle that tort
damages should not place plaintiffs in a better financial position than they
would have been in absent the tortious injury.
68
Some courts avoid
gender-specific contingency deductions by using average earnings for
determining income loss for young female plaintiffs.
69
However, use of
blended statistics will not necessarily guarantee that there will be no
gender-based discount in relation to particular plaintiffs.
70
As well, the
alleged fairness in using neutral earning statistics for female plaintiffs is
suspect since this approach is only used for female and not male plaintiffs.
Depressed awards for women’s impaired working capacity rest on
a number of gendered assumptions and actually reinforce gender
inequalities in the market and society generally. Their use sanctions
gendered occupational segregation and the devaluation of women’s labour
in the capitalist market. As well, they are premised on a devaluation of
women’s unpaid work in the home or private sphere compared to work in
the waged labour force or public sphere.
71
Those who largely perform
68
See MacCabe, ibid. Similarly, compensation for family members of all victims of the
events of September 11, 2001 in the United States was based on male earning tables
rather than gendered statistics in order to avoid disadvantaging the families of women
victims. See Chamallas, supra note 27 at pp. 1444–1445.
69
See Walker, supra note 67; Ediger (Guardian ad Litem) v. Johnston, 2009 BCSC 386
[Ediger]. See also U.S. v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah 2004) reversed
and remanded on other grounds, U.S. v. Bedonie, 413 F.3d 1126 (10
th
Cir. 2005),
where the court refused to rely on race and gender-based earning statistics in
determining compensation for family members of Native American murder victims (a
male and female) on the bases of race and gender.
70
The court may conclude that the statistical average does not adequately reflect the
situation of a particular plaintiff, and a further adjustment, either upward or
downward, may be appropriate. See Paxton v. Ramji, [2006] O.J. No. 1179 (Sup. Ct.
J.) (QL), paras. 59–60, aff’d (2008), 299 D.L.R. (4
th
) 614 (C.A.), leave to appeal to
S.C.C. refused, [2008] S.C.C.A. No. 508 [Paxton]; B.P.B., supra note 48. Given the
speculative nature of plaintiffs’ losses absent earnings history, it may be difficult to
adduce evidence to justify awarding higher than average income to a group, but this
has not prevented some courts from making discounts based on the plaintiff’s social
identity.
71
Notwithstanding commodification anxieties regarding caregiving and other domestic
services as productive labour, courts have now recognized that unpaid work in the
home has economic value just as paid work. Hence, a plaintiff may be compensated
for impaired homemaking capacity where an injury has diminished or impaired that
ability. However, the assessment of housework continues to show devaluation of
such work. Impaired housekeeping ability is considered a non-pecuniary loss where
the plaintiff does not obtain replacement services, or performs the task herself but
144 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
unpaid work at home are prejudiced when the focus of gender inequality
in earnings is shifted away from market forces, which affirms the unstated
assumption that remuneration is the proper measure for the value of work.
Differential earnings are attributed to women’s lived experiences; that is,
limited attachment to the capitalist market, which is in turn attributed to
women’s choices.
72
These assumptions also entail notions of ideal
workers, men who are often unencumbered by care responsibilities, who
are used as the benchmark for women’s participation in the paid labour
force. This conceptualization renders invisible unpaid care work, usually
done by women in the so-called private sphere. That work supports men
as ideal workers in the market and is used to justify the gender wage
gap.
73
As well, it ignores how the public sphere creates, reinforces and
thrives on socially constructed gender roles and the resulting inequalities
for women and other marginalized groups.
74
Further, the devaluation of
care work partly stems from concerns about the commodification of
family relations and attempts to bring economic or market considerations
to bear on aspects of family life that are supposed to be priceless,
motivated by love and affection with corresponding intangible benefits for
caregivers. Such a rationalization rests on a bifurcated view of society
with hostile spheres and the need to police the boundaries to avoid
corrupting the private sphere through objectification of the priceless or
with difficulty, and is compensated modestly. Pecuniary damages are awarded where
the plaintiff obtained or is expected to obtain replacement services. The rate of pay
tends to be low and is sometimes below minimum wage. See Fobel, supra note 39;
McIntyre v. Docherty, 2009 ONCA 448; Morgan v. Oates (2007), 47 C.C.L.T. (3d)
216 (Nfld. C.A.); Cara L. Brown, “Valuable Services Trends in Housekeeping
Quantum Across Canada, 1990–2001” (2003) 27 Advoc. Q. 71; Graycar, supra note
12 at p. 28.
72
See Spehar, supra note 45; Paxton, supra note 70 at para. 59 (Sup. Ct. J.).
73
See Joan Williams, Unbending Gender: Why Family and Work Conflict and What to
Do About It (New York, N.Y.: Oxford Univ. press, 2000), at pp. 124–125; Fudge and
Owens, supra note 66 at p. 13.
74
Feminist scholars have contested the public/private distinction, among other things,
because it is socially constructed, has shifting boundaries, and entrenches patriarchal
power and existing hierarchies to the detriment of women’s and other marginalized
groups’ equality. See Tracy Higgins, “Reviving the Public/Private Distinction in
Feminist Theorizing” (2000) 75 Chicago-Kent L. Rev. 847; Mary Heath, “The
Public/Private Distinction as a Conceptual Boundary of the State: A Bifocal Theory
of the State for Feminism?” (2000) 4(1) Flinders J.L.R. 19; Frances Olsen,
“Constitutional Law: Feminist Critiques of the Public/Private distinction. (1993) 10
Const. Commentary 319; Judy Fudge, “The Public/Private Distinction: The
Possibilities of and the Limits to the Use of Charter Litigation to Further Feminist
Struggles” (1987) 25 Osgoode Hall L.J. 485, at pp. 487–488.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 145
non-commodifiable.
75
Not only is such a dualistic and oppositional view
of society a myth, it also denies the reality of the inter-relatedness of the
public and private spheres.
76
As well, it masks the gendering and
feminization of care work as motivated by maternal instincts, selflessness,
protecting familial bonds, emphasizing the invisibility and devaluation of
women’s work both at home and in the market, and hence their
exploitation.
77
To avoid undervaluation of household labour, work done
outside the paid labour force should be valued in the same way as paid
work in the market. This will be consistent with compensation for
impaired working capacity with its focus on work of value, regardless of
the location, and avoid female-specific discounts for familial
responsibilities.
78
Even if still guided by restitutio, the construction of the claimant’s
original position and the losses arising from her victimization can be
crucial to the assessment of damages. It is therefore important that the
status quo ante be viewed from a non-discriminatory and egalitarian
perspective.
79
Remedies must be used to give meaning to the substantive
rights they enforce, in this case bodily autonomy and security.
Purposively using remedies to enforce the values of equality also serves to
make visible the role of courts and legal actors not only in adjudicating
cases before them, but also as instruments of social change.
80
Among
other things, this will mean avoiding differential valuation of human
interests and potential on the basis of social identity or identifiable
characteristics. Social identity may be relied on to increase damages
75
See Martha M. Ertman and Joan C. Williams, “Preface: Freedom, Equality and the
Many Futures of Commodification” in Ertman and Williams, eds., Rethinking
Commodification, supra note 41 at p. 4; Joan C. Williams & Viviana A. Zelizer, “To
Commodify or not to Commodify: That Is Not the Question” in Ertman and Williams,
eds., ibid. at pp. 364–365, 367–368; Deborah Stone, “For Love nor Money: The
Commodification of Care” in Ertman and Williams eds., ibid. at pp. 274–275, 282–
287.
76
See Williams and Zelizer, “To Commodify or not to Commodify” ibid. at p. 366.
77
See Stone, supra note 75 at p. 278; Katherine Silbaugh, “Commodification and
Women’s Household Labor” in Ertman and Williams, eds., Rethinking
Commodification, supra note 41 at p. 297.
78
See Bruce, supra note 50 at p. 160.
79
For a discussion of these issues as they pertain to the impaired working capacity of
historical abuse victims, see Elizabeth Adjin-Tettey, “Righting Past Wrongs through
Contextualization: Assessing Claims of Aboriginal Survivors of Historical and
Institutional Abuses” (2007) 25 Windsor Y.B. Access Just. 95, at pp. 121–130.
80
See Bender, supra note 1.
146 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
where to do so results in substantive equality,
81
but should not be resorted
to in furtherance of formal equality to the detriment of plaintiffs with
allegedly unfavourable features.
Admittedly, the defendant may be innocent in the construction of
the alleged value of the plaintiff’s loss. However, the defendant benefits
from the social inequality that constructs that value. It is therefore not
unreasonable to infuse the analysis of the plaintiff’s alleged original
position, and hence the value of her loss, with egalitarian considerations
in the interest of promoting therapeutic outcomes and social change. In
the next section, I question the perception that tort litigation is a “private”
and bilateral engagement between parties and challenge the assumption
that corrective justice is the exclusive rationale underlying tort law.
III. DISTRIBUTIONAL CONSIDERATIONS IN TORT LAW
“[T]he prime responsibility of tort scholars is to … focus their
attention on uncovering the distributive principles on which tort
liability is based, and offer courts a sound theoretical framework
for considering distributive issues.
82
“Justice to the doer and sufferer cannot be secured in the
abstract.”
83
Human society is not static. As a system for, among other things,
mediating inter-personal relations and determining what constitutes
legally actionable conduct, including what counts as compensable
injuries, the aims and substantive content of tort law must continually
evolve to meet the needs of contemporary society. Attempts to explain
the internal logic of tort law based solely on a single, comprehensive,
consistent and enduring organizing principle is idealistic and can leave the
system anachronistic and unresponsive to the needs of society. This is
inconsistent with the view that law generally is a dynamic human
81
Courts have sometimes been guided by egalitarian considerations when assessing
damages in ways that recognize and respect the differential impact of tortious injuries
on plaintiffs due to their minority cultural, ethnic and religious backgrounds. See
C.Y. v. Perreault, 2006 BCSC 545; Sandhu v. Wellington Place (2008), 291 D.L.R.
(4
th
) 220 (Ont. C.A.) [Sandhu]; To v. Toronto Board of Education (2001), 55 O.R.
(3d) 641 (C.A.).
82
Cane, “Distributive Justice and Tort Law,” supra note 24 at p. 420.
83
Ariel Porat, “Questioning the Idea of Correlativity in Weinrib’s Theory of Corrective
Justice” (2001) 2 Theor. Inq. L. 161, at p. 174.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 147
institution that evolves over time with necessary incremental and/or
wholesale changes to meet the needs of society.
84
Both the rhetoric and
practice of tort law point to the pluralistic nature of that system.
85
Further, although the structure of tort law is informed by corrective justice
and correlativity, current understandings of social values or distributive
justice considerations inform the development of tort duty or liability,
legally protected interests and entitlements for interference with those
rights.
86
It is therefore impossible to explain tort law by reference to a
single theory. In fact, an attempt to do so will not only be futile but also
inconsistent with its origins and evolution. As Calabresi states,
Tort law and its many parts have long been characterized by
complexity of functions, goals, and methods…. The complexity
has come about haphazardly, over time, and in significant part
through the common-law development of the field…. And
without this complexity torts would be a very different subject.
When we contemplate the future of tort law, we must keep this
fact in mind…. It is rare that … single minded views can fully
encompass and understand a slowly developed field of law like
torts.
87
Although tort litigation is perceived as a private, bilateral action
influenced by corrective justice, the tort system is a public institution; the
institutions that establish and enforce the rules that make up tort law are
84
See Postema, supra note 18 at pp. 15–16.
85
See Izhak Englard, “The Idea of Complementarity as a Philosophical Basis for
Pluralism in Tort Law,” in Owen, ed., The Philosophical Foundations of Tort Law,
supra note 18 at p. 184.
86
See Jane Stapleton, “Controlling the Future of the Common Law by Restatement,” in
Madden ed., Exploring Tort Law, supra note 19 at pp. 266–267; Hanoch Dagan, “The
Distributive Foundation of Corrective Justice” (1999) 98 Mic. L. Rev. 138. For
example, the old writ of trespass provided a remedy for direct interference with the
plaintiff’s personal or proprietary interests regardless of fault, which reflected
corrective justice. Modern tort law is no longer premised on the direct-indirect
distinction, but rather liability arises for intentional and negligent conduct as a
reflection of the needs of modern society: Letang v. Cooper, [1965] 1 Q.B. 232
(C.A.). In theory, Canadian tort law continues to be influenced by the direct – indirect
distinction: Cook v. Lewis, [1951] S.C.R. 830; Non-Marine Underwriters, Lloyd’s of
London v. Scalera, [2000] 1 S.C.R. 551. However, the actual practice reflects the
Anglo-American position with negligence being the predominant cause of tort actions
today.
87
Guido Calabresi, “The Complexity of Torts” in Madden, ed., Exploring Tort Law,
supra note 19 at pp. 350–351. See also G. Edward White, Tort Law in America: An
Intellectual History, Expanded Edition (Oxford Univ. Press, 2003), at pp. 232–233.
148 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
state-funded.
88
Courts and legislatures establish the legally relevant
principles that govern social interactions and determine actionable
conduct. Tort law is therefore part of the coercive authority of the state
intended to ensure peace and order in society.
89
It is therefore inaccurate
to think of tort law as a system of private apolitical rules operating at the
inter-personal level with no room for pursuing broader social policy or
political goals. Indeed, as White points out, doctrinal analysis of
negligence law does not operate in a vacuum but rather “inevitably
involves policy judgments.”
90
Notwithstanding efforts by corrective justice theorists to conceive
of tort law as an autonomous and apolitical system grounded in
correlativity between the doer and sufferer of harm, it is a truism that the
tort system is not informed by a single organizing principle. Rather, tort
law reflects a range of competing interests beyond those pertaining to the
parties, and incorporates both corrective and distributive justice
considerations.
91
In rejecting the monist view of tort law advocated by
corrective justice theorists, scholars like Chapman have argued for a
pluralistic and instrumentalist view of tort law.
92
Chapman notes that it is
not inconceivable for tort law to pursue multiple goals or for tort litigation
to be influenced by different values, even if separately these goals and
values are incoherent, independent and incompatible, provided the
constituent elements work towards a common goal.
93
This pluralistic
88
There has been no suggestion to abolish the public system of adjudication despite
trends of privatization and neo-liberalism where individuals are expected to look after
their own welfare. There is a broader state interest in minimizing undesirable
behaviour even if such conduct is not criminal. See Tony Honoré, “The Morality of
Tort Law – Questions and Answers” in Owen, ed. The Philosophical Foundations of
Tort Law, supra note 18, at pp. 76–78.
89
Indeed, the early action for trespass - interference with another’s person or property -
was intended to provide a remedy for violence because such conduct threatened the
King’s peace, and ultimately the security of others. Thus, although the action was
created as a civilized avenue for revenge between the victim and injurer, there was
also societal interest in providing a remedy. See also Cassels, supra note 4 at p. 162.
90
White, supra note 87 at p. 238.
91
For examples, see White, ibid. at pp. 236–237; Stapleton, “Controlling the Future of
the Common Law by Restatement,” supra note 86 at pp. 267–268; Calabresi, supra
note 87 at pp. 333–334.
92
See also Gary T. Schwartz, “Mixed Theories of Tort Law: Affirming Both Deterrence
and Corrective Justice” (1997) 75 Tex. L. Rev. 1801.
93
Specifically, Chapman notes that ensuring societal welfare is a legitimate aim of tort
law even if it is incompatible with other goals of the tort system: Bruce Chapman,
“Pluralism in Tort and Accident Law: Toward a Reasonable Accommodation” in
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 149
approach is consistent with the reality that tort law has been shaped not
just by corrective justice but also by distributive justice and public policy
considerations.
94
This in turn recognizes the progressive potential of tort
law as a mechanism for promoting social equality, social justice and
overall societal welfare.
Not all aspects of tort law have been influenced by distributional
justice goals. Courts appear more willing to infuse some aspects of the
system, in particular the liability side of the equation, with broader policy
and distributional goals beyond the private, bilateral relations between the
injurer and the sufferer. The question is: to what extent should social
justice and distributional considerations influence the valuation of loss,
especially for plaintiffs from marginalized backgrounds? I argue that like
the other aspects of the tort system, the assessment of damages should be
a mechanism for promoting the well-being of those engaged in the
system, as opposed to reinforcing and perpetuating the marginalization of
disadvantaged groups. Although attention to systemic inequalities in the
assessment of tort damages does not appear to benefit those not engaged
in tort litigation, it will nevertheless influence social change. Among
other things, it will challenge the alleged neutrality and the resulting
regressive effects of the status quo for marginalized plaintiffs. Such a
change can also debunk the social construction of members of these
groups, and hopefully influence social change aimed at eliminating or at
lease minimizing social inequalities.
Tort law does not treat all interests equally. Determination of
issues such as whether a duty of care should be imposed on the defendant
involves policy considerations and value judgments about the nature of
Postema, ed., Philosophy and the Law of Torts, supra note 18, at p. 276. See also
Porat, supra note 83. Similarly, Bender argues that focusing on corrective justice as
the foundational concept of tort law is inconsistent with the purpose of tort law as
protecting human dignity and promoting social justice. Bender, supra note 1 at p.
258.
94
See Chamallas, supra note 27 at pp. 1456–1457, who notes that even traditionalists
such as Dan Dobbs concede this point. Abraham notes that although modern tort
scholars are no longer focusing on the distributional functions of tort law,
distributional considerations continue to inform the actual working of tort law:
Kenneth S. Abraham, “Twenty-First-Century Insurance and Loss Distribution in Tort
Law” in Madden, ed. Exploring Tort Law, supra note 19 at p. 83. See Ted Decoste,
“Taking Torts Progressively” in Ken Cooper-Stephenson and Elaine Gibson, eds.,
Tort Theory (Toronto: Captus Press, 1993), at pp. 262–275; Ken Cooper-Stephenson,
“Corrective Justice, Substantive Equality and Tort Law” in Cooper-Stephenson and
Gibson, eds., ibid. at pp. 58–63; See generally John G. Fleming, The Law of Torts, 9th
ed. (Sydney: LBC Information Services, 1998), at p. 120.
150 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
the interest interfered with, whether it is worthy of legal protection and if
so, the scope of protection it is to be accorded.
95
As McLachlin C.J.C.
points out in Cooper, the duty analysis is a balancing act in which “[t]he
quest for the right balance is in reality a quest for prudent policy.”
96
These considerations use the duty concept to limit negligence liability that
would otherwise flow from a defendant’s wrongdoing within a purely
corrective justice framework.
97
Determining whether the extent of
proximity in a particular relationship justifies imposing a duty of care on
the defendant involves corrective justice considerations. However,
foreseeability and proximity may not be sufficient to ground a duty of
care where doing so runs contrary to societal interests.
98
Thus, corrective
justice and the concomitant notion of personal responsibility determine
the players in a given action, making certain that the litigation is between
the sufferer and doer based on their correlative rights and obligations.
However, to ensure that the decision accords with broader societal
interests, the determination of liability involves consideration of factors
outside the confines of that relationship.
99
According to Finnis, the idea
of commutative justice better reflects the tort law process in general
because it embodies both corrective and distributive justice considerations
and makes evident the balancing of interests that occurs in the
95
See Fleming, “Remoteness and Duty” supra note 9, at pp. 472, 476–77, 486. See also
Cane, “Retribution, Proportionality and Moral Luck in Tort Law,” supra note 17 at
pp. 147–150.
96
Cooper, supra note 8 at para. 29.
97
See Fleming, “Remoteness and Duty,” supra note 9 at pp. 474–475.
98
See Cooper, supra note 8; Childs v. Desormeaux, [2006] 1 S.C.R. 643. See also
Stapleton, “Controlling the Future if the Common Law by Restatement” supra note
86 at pp. 287–288. Utilitarian considerations are also evident in determining the
appropriateness of injunctions to restrain interference with the plaintiff’s interests.
An injunction could be denied where the cost of compliance would be
disproportionate to the benefit the plaintiff will obtain, provided the defendant’s
conduct was not in deliberate disregard of the plaintiff’s interests. As well, social
costs and protection of the environment may be invoked to deny an injunction
notwithstanding that a particular state of affairs infringes the plaintiff’s proprietary
interests. See Goetzinger v. Woodworth (1999), 212 N.B.R. (2d) 305 (QB).
99
See Cane, “Distributive Justice and Tort Law,” supra note 24 at pp. 403–405.
Stapleton argues that although the proximity requirement of Lord Atkin’s Neighbour
Principle in Donoghue v. Stevenson limited the scope of liability, overall the benefits
of the Neighbour Principle included removing barriers to liability and recognizing an
increasing sense of social responsibility: Jane Stapleton, “Duty of Care Factors: A
Selection from the Judicial Menus” in Cane and Stapleton, eds., The Law of
Obligations, supra note 17 at p. 61.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 151
determination of justice and fairness.
100
Policy considerations in the duty
analysis deviate from the correlativity between the plaintiff’s rights and
the defendant’s obligations, and take the inquiry beyond what would be
permissible within a purely corrective justice model.
101
It is therefore
inaccurate to characterize the determination of liability in tort as being a
strictly bilateral transaction.
102
100
Finnis, supra note 16 at pp. 178–179. See also Cane, “Distributive Justice and Tort
Law,” supra note 24 at pp. 408, 412–414, who notes a flaw in Weinrib’s theory of tort
law as premised on corrective justice. Cane notes that Weinrib concedes that
corrective justice is only concerned with the structure of tort law but not its
substantive content. He argues that the determination of the scope of tort law, what
he refers to as “the grounds and bounds of tort liability,” is a matter of distributive
justice whereas the application of tort law principles in particular cases is based on
corrective justice. Cane, ibid. at pp. 412–414.
101
It is not uncommon for courts to refuse to impose a duty of care on a defendant
because of potential conflicting duties to others, sometimes notwithstanding hardship
for the plaintiff. See Paxton, supra note 70; Syl Apps Secure Treatment Centre v.
B.D, [2007] 3 S.C.R. 83; Abarquez v. Ontario, 2009 ONCA 374; D.C. v. Children’s
Aid Society of Cape Breton Victoria, 2009 NSCA 73. For a critique of the
consideration of factors that have no bearing on the personal responsibility of the
wrongdoer and the victim’s entitlement to redress in new duty situations, see
Stapleton, “Duty of Care Factors,” supra note 99 at pp. 63–71. Consideration of
factors extrinsic to the relationship between the parties may no longer be central to the
duty analysis given the emphasis in Cooper on an incremental approach guided by
previously recognized or analogous categories of duty, but it still remains important
in recognition of new duties. See Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263;
Design Services, supra note 5; Douglas v. Kinger, 2008 ONCA 452, at paras. 57–65.
102
Reference to broader policy considerations usually privileges defendants, and more
generally others in similar situations, often to the plaintiffs’ detriment. For example,
the law recognizes that involuntary parenthood due to the negligence of a health care
professional violates autonomy rights of parents, particularly mothers, and has
gendered implications. Based on corrective justice, parents’ claims for their
pecuniary and non-pecuniary losses arising from the negligence of health care
professionals, including child rearing costs, should succeed. Yet, the predominant
view supports providing compensation to parents only for the financial and non-
pecuniary costs of the unplanned pregnancy and childbirth, start up costs and
interference with the parents’ reproductive autonomy. Generally, parents’ claims for
the cost of raising the unplanned but healthy child have been rejected seemingly for
utilitarian considerations. Although harms to parents’ autonomy and reproductive
freedom as well as pecuniary and non-pecuniary consequences of the birth of the
child are not questioned, courts take the view that societal interests in perceiving the
birth of a child as a blessing and not a legal injury should trump notions of corrective
justice that focus on harm to the parents, which in theory would have allowed
recovery of all the parents’ losses. See McFarlane, supra note 9 especially at pp.
977–78, per Lord Steyn; Kealey v. Berezowski (1996), 136 D.L.R. (4
th
) 708 (Ont.
Gen. Div.); Bevilacqua v. Altenkirk (2004), 35 B.C.L.R. (4th) 281 (S.C.); Roe v.
Dabbs (2004), 31 B.C.L.R. (4
th
) 158 (S.C.). In Cattanach, supra note 9, the High
152 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
Fault is central to modern tort law and to the notion of corrective
justice that grounds that system. Thus, wrongful conduct that injures
another person is the basis of both tort liability and the obligation to repair
the resulting damage by restoring the victim to her status quo ante. Yet,
based on the remoteness principle, a defendant may not be liable for some
or all the consequences of her breach of duty, even if those losses flow
directly from that breach, because there is no liability for unforeseeable
consequences of one’s wrongdoing.
103
This is notwithstanding the fact
that the defendant’s injurious conduct often entails taking chances that
expose others to unreasonable risks of harm.
104
A corrective justice
model would appear to support the directness rule in re Polemis and
Furness, Withy & Co.,
105
which states that liability is established once it is
determined that the breach of duty caused the victim’s injury, assuming
Court of Australia held that parents are entitled to recover the financial cost of raising
the unplanned child subject to a deduction for the benefits parents may obtain from
the child’s existence. This common law position has subsequently been reversed by
statute in some states: Civil Liability Act 2002 (NSW), ss. 70, 71; Civil Liability Act
1936 (SA), s. 67; Civil Liability Act 2003 (Qld), ss. 49A(2), 49B(2). For a discussion
of the law in relation to involuntary parenthood and a critique of that position, see
Elizabeth Adjin-Tettey, “Claims of Involuntary Parenthood: Why the Resistance?” in
Jason W. Neyers et al., Emerging Issues in Tort Law (Portland, OR: Hart
Publications, 2007), at p. 85. See also Stockford v. Johnston Estate (2008), 335
N.B.R. (2D) 74 (QB), at paras. 94–108.
103
Courts have generally interpreted the reasonable foreseeability requirement for
remoteness purposes liberally. The manner in which damage occurs and the extent of
damage need not be foreseeable. Once the plaintiff’s injuries fall within the
foreseeable consequences of the defendant’s conduct, recovery is not determined
based on a correlation between the extent of defendant’s culpability and the plaintiff’s
losses. See Jolley v. Sutton London Borough Council, [2000] 3 All E.R. 409 (H.L.);
Assiniboine South School Division No. 3 v. Hoffer, [1971] 4 W.W.R. 746 (Man.
C.A.), aff’d (1973), 40 D.L.R. (3d) 480 (S.C.C.); Michaluk (Litigation Guardian of)
v. Rolling River School Division No. 39 (2001), 153 Man. R. (2d) 300 (C.A.);
Fielding v. Bock, 2008 MBCA 1. Yet, the remoteness principle may still be used to
limit or exclude liability. For example, in Mustapha, supra note 5, the Court had no
difficulty in holding that the manufacturer owed a duty of care to the appellant as the
ultimate consumer, that Culligan breached that duty when it supplied the appellant’s
family with contaminated bottled water and that its breach had a debilitating
psychological impact on the appellant’s life. Yet the Court concluded that a person of
normal fortitude and robustness would not foreseeably suffer such an injury in those
circumstances. Hence, the defendant’s breach of duty caused the plaintiff’s injury in
fact, but not in law.
104
See James Gordley, “Responsibility in Crime, Tort, and Contract for the
Unforeseeable Consequences of an Intentional Wrong: A Once and Future Rule?” in
Cane and Stapleton, eds., The Law of Obligations, supra note 17 at pp. 197–198.
105
[1921] 3 K.B. 560.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 153
the direct consequences of a particular conduct are reasonably
ascertainable.
106
Yet, the directness principle has been rejected in favour
of the reasonable foreseeability test, by which courts limit liability to
situations where the victim’s injury was a reasonably foreseeable
consequence of the defendant’s wrongful conduct.
107
Policy considerations can also be invoked for the benefit of
victims, and in the interest of justice and fairness to those who have been
harmed by the defendant’s negligence.
108
Some courts, motivated by the
compensation needs of victims, may strain tort principles in the pursuit of
fairness and justice for plaintiffs in particular cases.
109
“Liberalization” of
tort principles for “needy victims” or “worthy complainants” is
particularly evident where liability may be imposed in situations that
deviate from probabilistic theories of causation.
110
Courts have been
willing to recognize a causal connection where there is inadequate
scientific evidence of the link between the defendant’s breach of duty and
the plaintiff’s injury.
111
As well, a causal link has been found where the
defendant’s negligence is a possible but not a probable cause of the
plaintiff’s injury.
112
Causation has even been satisfied where although the
plaintiff’s injury is within the risk created by the defendant’s negligence,
it is impossible to determine how events would have unfolded absent the
106
One of the criticisms of the Re Polemis directness rule was the difficulties in
accurately ascertaining what are the direct as opposed to indirect consequences of
negligent conduct, and the fact that policy factors will inevitably intrude in that
analysis. Critics saw this as casting doubt on the superiority of the directness
principle in determining the limits of negligent conduct. See Fleming, “Remoteness
and Duty,” supra note 9 at pp. 482–485.
107
See Overseas Tankship (U.K.) Ltd., v. Morts Dock & Engineering Co. (Wagon Mound
No. 1), [1961] 1 All E.R. 404 (P.C. Aust.).
108
For example, see Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41,
where the Court justified the need for a tort of negligent investigation, among other
things, to respond to systemic problems of wrongful conviction and institutional
racism. The plaintiff’s claim failed under standard of care because the manner of
investigation was consistent with police practice at the time.
109
This trend continues notwithstanding that it has been characterized as “intellectual
dishonesty” given that the victims’ need for compensation, and not legal principles,
dictates the success of such claims. See Klar, supra note 5 at pp. 11–12.
110
See Richard L. Abel, “A Critique of Torts” (1990) 37 UCLA L. Rev. 785, at p. 792
Abel, “A Critique of Torts”].
111
See Fairchild v. Glenhaven Funeral Services Ltd., [2002] 3 All E.R. 305 (H.L.)
[Fairchild].
112
See Snell v. Farrell, [1990] 2 S.C.R. 311.
154 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
defendant’s breach of duty.
113
In such cases, courts recognize that
application of the traditional “but for” test will result in injustice and
hence apply other less demanding tests that ease the plaintiff’s burden of
proving causation. While recognizing the potential unfairness in holding
defendants liable in the absence of a probable causal connection between
their wrongdoing and the victims’ injuries, the House of Lords noted in
Fairchild that any injustice to defendants in such cases pales in
comparison to the injustice of denying compensation to the victims. For
example, Lord Nicholls stated:
On occasions the threshold ‘but-for’ test of causal connection may
be over-exclusionary. Where justice so requires, the threshold
itself may be lowered. In this way the scope of the defendant’s
liability may be extended…. To impose liability on a defendant in
such circumstances normally runs counter to ordinary perceptions
of responsibility. Normally this is unacceptable. But there are
circumstances … where this unattractiveness is outweighed by
leaving the plaintiff without a remedy.
114
Changing judicial attitudes towards causation have been
influenced in part by the need to respond to changing and increasingly
complex sources of tortious injuries in modern society which render
traditional probabilistic causation inadequate. Rather than persist in
applying traditional principles that will exclude liability, and hence
compensation for innocent plaintiffs, in many instances courts have
recognized that doing so will result in injustice and will impose
unreasonable burdens on the unfortunate few who become casualties of
modern living. Instead, fairness to plaintiffs dictates that the
consequences of the activities in question should be borne by the
beneficiaries of those activities, even though this may sometimes create
inconsistencies in tort principles.
115
113
See Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647; Resurfice
Corp. v. Hanke, [2007] 1 S.C.R. 333.
114
Fairchild, supra note 111 at para. 40. See also Lord Bingham, at para. 33, who refers
to the strong policy in favour of compensating victims who have suffered serious
injury even if they cannot establish causation on a balance of probabilities. See also
Michael Green, “The Future of Proportional Liability: The Lessons of Toxic
Substances Causation” in Madden ed., Exploring Tort Law, supra note 19 at p. 353.
115
For a critique of the direction of modern tort law, especially causation, see Jane
Stapleton, “Two Causal Fictions at the Heart of U.S. Asbestos Doctrine” (2006) 122
Law Q. Rev. 189; Jane Stapleton, “Lords a’Leaping Evidentiary Gaps” (2002) 10
Torts L.J. 276; Vaughan Black, “A Farewell to Cause: Canadian Red Cross Society v.
Walker Estate” (2001) 24 Advoc. Q. 478; Vaughan Black, “Decision Causation:
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 155
While notions of public policy and the broader needs of society
have made their way into certain aspects of tort law, for example,
recognition of new duties of care and the concept of remoteness, they
rarely appear in the area of damages. The assessment of damages in tort
law remains heavily dependent on the concept of corrective justice and
the principle of restitutio in integrum. As noted above, this has the
potential to lead to unjust awards, and has a wider impact in that it
reinforces certain assumptions about underprivileged plaintiffs, depriving
them even further of full compensation and justice. In the next section I
argue that certain distributive justice concepts ought to be considered in
courts’ assessments of loss and the calculation of damages.
IV. DISTRIBUTIONAL CONSIDERATIONS IN TORT REMEDIES
Broader societal considerations are not entirely absent from the
assessment of tort damages.
However, these considerations are often
limited to non-pecuniary and punitive damages, and rarely inform the
assessment of the plaintiff’s pecuniary losses. In the context of non-
pecuniary damages, broader societal concerns are reflected in the
functional approach and rough upper limit or cap on the quantum of
damages recoverable. Punitive damages may increase the plaintiff’s
overall damages but broader policy considerations militate against
widespread availability of punitive damages, and the quantum is often
modest. As well, since the focus is punishment and not compensation,
availability of punitive damages does not address concerns about the
devaluation of a plaintiff’s pecuniary losses.
A. NON-PECUNIARY LOSSES
Non-pecuniary damages are awarded for a plaintiff’s intangible
losses—loss of amenities, pain and suffering and loss of expectation of
life. The purpose of non-pecuniary damages is not to replace the
plaintiff’s loss or provide a monetary substitute for that loss,
116
but rather
to provide a means of purchasing substitutes for what the plaintiff has
Pandora’s Tool-Box” in Neyers et al., Emerging Issues in Tort Law, supra note 102 at
p. 309.
116
See A.I. Ogus, “Damages for Lost Amenities: For a Foot, a Feeling, or a Function?”
(1972) 35 Mod. L. Rev. 1, at p. 2.
156 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
lost.
117
Hence, availability and quantum of non-pecuniary damages are
informed by the functional approach, that is, what is necessary to provide
“solace” to the plaintiff and improve her condition, with the goal of giving
her some pleasure in her injured state.
118
The severity of the plaintiff’s
injuries is not the ultimate determinant of the quantum of non-pecuniary
damages. Rather, the guiding principle is the purpose that money can
serve for the plaintiff in her situation. This depends on her ability to
appreciate the expenditure of money, usually based on her cognitive
awareness,
119
notwithstanding the fact that a court ought not be concerned
about what a plaintiff actually does with a properly assessed award.
120
Thus, full or perfect compensation for non-pecuniary losses is
perceived to be impossible, and the principle of resitutio in integrum is of
limited application in this context.
121
Given their subjective nature, the
assessment of non-pecuniary losses is necessarily arbitrary and influenced
by policy considerations.
122
In this regard, the award is influenced by
utilitarian considerations that focus on the impact of non-pecuniary
damages on society generally and avoiding undesirable consequences,
especially in light of the incommensurability of intangible losses. Courts
and defendants are often concerned about the potential for extravagance in
117
Lindal v. Lindal, [1981] 2 S.C.R. 629, at p. 639 [Lindal].
118
The Supreme Court of Canada adopted the functional approach in the 1978 personal
injury damages trilogy: Andrews, supra note 42; Teno v. Arnold, [1978] 2 S.C.R. 287
[Teno]; Thornton v. Board of School Trustees of School District No. 57 (Prince
George), [1978] 2 S.C.R. 267. The Court rejected the conceptual approach that
considers a plaintiff’s life and faculties as proprietary assets with an objective value.
The personal approach focuses on the extent to which the injury has impaired the
plaintiff’s happiness and enjoyment of life, and places a monetary value on the
happiness lost due to the injury. The functional approach accepts the premise of the
personal approach, but focuses on providing solace for the plaintiff’s misfortune by
providing physical arrangements to ameliorate her or his condition.
119
See Lindal, supra note 117; Lee v. Dawson (2006), 51 B.C.L.R. (4
th
) 221 (C.A.),
leave to appeal to S.C.C. refused, [2006] S.C.C.A. No. 192 [Lee]; Bystedt, supra note
35; Abbott v. Sharpe (2007), 250 N.S.R. (2d) 228 (C.A.), at paras. 118–25 (QL);
Sandhu, supra note 81 at paras. 23–28 (QL).
120
The functional approach premised on offsetting intangible losses with equivalent
pleasures also entails commodification of these otherwise incalculable interests. See
Abel, “A Critique of Torts,” supra note 110 at pp. 803–805, 823. Yet interestingly,
damages for non-pecuniary losses do not often generate commodification anxieties.
121
Robert L. Rabin, “Pain and Suffering and Beyond: Some Thoughts on Recovery for
Intangible Loss” (2006) 55 DePaul L. Rev. 359.
122
Andrews, supra note 42 at pp. 261–262; Lindal, supra note 117 at p. 635; Teno, supra
note 118 at p. 332; Aberdeen v. Langley (Township), 2007 BCSC 993, at para. 97;
Lee, supra note 119 at paras. 69–70.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 157
regards to non-pecuniary damages, as well as the impact on insurance.
This is partly due to the difficulty of accurately assessing intangible losses
and concerns that courts, motivated by sympathy for the plaintiff’s plight,
could desire to punish the defendant or the depth of the defendant’s
pocket by making large awards for non-pecuniary losses.
123
To avoid the
danger of what the Supreme Court perceived to be skyrocketing awards,
in the trilogy the Court held that non-pecuniary damages should be
limited to what is necessary to provide consolation for the plaintiff’s
misfortune or make life bearable in her or his injured state; awards were
capped at $100,000 (1978 dollars adjusted for inflation—currently about
$330,000).
124
Emphasis is on moderation in non-pecuniary damages to
counteract the high likelihood of extravagant claims.
125
In justifying this
approach, the Court noted, among other things, that high awards have a
social cost and are not in the best interest of society, since members of the
public would ultimately have to fund these awards through higher
insurance premiums, risking an insurance crisis. This could make
activities that require insurance, such as driving, unaffordable for ordinary
people.
126
Although the $100,000, adjusted for inflation, was supposed to
be a rough upper limit with the possibility of exceeding that amount in
appropriate cases, courts have never exceeded that amount.
127
Even in
123
See Teno, ibid. at p. 332.
124
Andrews, supra note 42.
125
Ibid. at p. 261; Lindal, supra note 117 at pp. 639–640.
126
The Court pointed to the insurance crisis in the United States due mainly to large
awards of damages in medical malpractice cases affecting the availability of
insurance for health care professionals and the public’s ability to obtain medical
services. Canadian Courts were cautioned to avoid such a predicament. See Teno,
supra note 118 at p. 333; Andrews, supra note 42 at p. 261. As part of containing
non-pecuniary damages within reasonable limits, some jurisdictions have enacted
regulations limiting the amount of non-pecuniary damages available for certain types
of injuries. Injury Regulation
—
Insurance Act, N.B. Reg. 2003–20, s. 4; Automobile
Insurance Tort Recovery Limitation Regulations, N.S. Reg. 182/2003, s. 3; Minor
Injury Regulation, Alta. Reg. 123/2004, s. 6. A constitutional challenge to the
Alberta regulations as discriminatory on the basis of disability failed: Morrow v.
Zhang, 2009 ABCA 215. Among other things, the Court noted that the purposes of
the Minor Injury Regulations, which include maintaining affordability of insurance
and access to necessary treatment for those who suffer soft tissue injuries, are
legitimate and justify the cap on non-pecuniary damages. See also Hartling v. Nova
Scotia (A.G.), 2009 NSSC 2, aff’d 2009 NSCA 130, where a constitutional challenge
to the Nova Scotia Regulations was dismissed.
127
See ter Neuzen v. Korn, [1995] 3 S.C.R. 674; Brimacombe v. Mathews (2001), 87
B.C.L.R. (3d) 75 (C.A.), at para. 243; Fullerton (Guardian ad litem of) v. Delair,
2005 BCSC 204, at paras. 247–250, varied on other grounds (2006), 55 B.C.L.R. (4
th
)
158 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
cases where juries have awarded substantially more than the rough upper
limit because they perceive that amount to be an appropriate
compensation for the plaintiff’s non-pecuniary losses, courts have
consistently reduced the award to the amount set by the Supreme Court.
128
Part of the rationale for the functional approach is the notion of the
paramountcy of care and full compensation. Once the plaintiff’s needs
have been adequately cared for through pecuniary damages, non-
pecuniary damages become “icing on the cake.” Thus, large awards are
unnecessary as the money would only end up creating a windfall for
plaintiffs. This further justifies more latitude for consideration of policy
factors in the assessment of non-pecuniary damages.
129
Courts continue
to defend the functional approach, moderation and the limit on non-
pecuniary damages even when full compensation for pecuniary losses is
absent or it is clear that the plaintiff’s non-pecuniary losses exceed the
cap.
130
For plaintiffs who receive depressed awards, especially for
impaired working capacity—women, racialized minorities, persons living
with disabilities—this is a further limitation on their awards.
131
As well,
the functional basis for non-pecuniary damages and the tendency to keep
such awards modest has a detrimental effect on those who suffer mostly
intangible injuries, particularly racialized minorities, women, children and
the elderly. For example, certain types of injuries that are predominantly
experienced by women and other marginalized persons, such as sexual
wrongdoing and reproductive harms, are remedied mostly through non-
pecuniary damages because they may not necessarily impair the victim’s
ability to engage in paid work.
132
Both the functional approach and the
252 (C.A.); Lee, supra note 119 at para. 20 (C.A.). The perceived basis of the soaring
awards has been doubted as unsupported by evidence: Lee, ibid. at para. 90.
128
See Lee, ibid.; Li (Litigation Guardian of) v. Sandhu (2006), 56 B.C.L.R. (4
th
) 316
(C.A.). Courts are required to instruct jurors on the rough upper limit where jurors
are likely to exceed it.
129
See Andrews, supra note 42 at pp. 261–262; Teno, supra note 118 at p. 333.
130
See Payne et al v. Alb et al (1999), 44 O.R. (3d) 598 (C.A.); Padfield v. Martin
(2003), 64 O.R. (3d) 577 (C.A.); Lee, supra note 119.
131
All plaintiffs may have their future care costs adequately taken care of based on what
is fair and reasonable in the circumstances. Thus, it is conceivable that the award for
impaired working capacity could end up benefiting the plaintiff’s estate or more
generally those who would have benefited from their savings if they had not been
injured. This means that even if depressed awards do not directly affect the plaintiff’s
quality of care, it could still affect the size of their estate.
132
See Finley, supra note 42; Kelly v. Lundgard (1996), 189 A.R. 34 (Q.B.), rev’d in
part (2001), 286 A.R. 1 (C.A.); Adan v. Davis (1998), 43 C.C.L.T. (2d) 262 (Ont.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 159
cap on non-pecuniary damages remain firmly in place, at least in personal
injury cases, notwithstanding doubts about justifying modest awards
because of entrenched fears of the social cost of large awards.
133
B. PUNITIVE DAMAGES
Punitive damages are part of the instrumentalist and utilitarian
goals of tort law to influence social interactions in ways that promote
societal interests. Punitive damages are aimed at punishing defendants for
Gen. Div.); Bowlby v. Oosterhuis (2003), 63 O.R. (3d) 748 (Sup. Ct. J.). For examples
of the centrality of non-pecuniary damages for sexual wrongdoing, see C.M.K. v.
Young, [1994] B.C.J. No. 2729 (S.C.) (QL); B.O. v. E.T., [1994] Y.J. No. 14 (S.C.)
(QL); A.W. v. C.M., [2001] O.J. No. 4618 (Sup. Ct. J.) (QL); J.R.S. v. Glendinning
(2004), 237 D.L.R. (4th) 304 (Ont. Sup. Ct. J.); Plint, supra note 48; Gates v.
MacDougall, 2006 BCSC 1919; Evans v. Sproule, [2008] O.J. No. 4518 (Sup. Ct. J.)
(QL). In light of the correlativity between marginalized status and vulnerability to
sexual abuse, a substantial number of sexual abuse victims are from disadvantaged
backgrounds. Even if such victims also suffer pecuniary losses, specifically impaired
working capacity, their losses are not highly valued or are not perceived to have been
caused by the defendant’s wrongdoing on a “but for” basis. This, together with the
attitude towards non-pecuniary damages, means that many sexual abuse victims will
often receive depressed damages. The cap on non-pecuniary damages may also be a
further reason for reduced awards. Courts in British Columbia have held that the cap
is not applicable in cases of sexual abuse, but the cap applies in other provinces. See
British Columbia Law Institute, Civil Remedies for Sexual Assault, supra note 55;
Kate Sutherland, “Measuring Pain: Quantifying Damages in Civil Suits for Sexual
Assault” in Cooper-Stephenson and Gibson, eds., Tort Theory, supra note 94 at p.
212; Cassels and Adjin-Tettey, supra note 60 at p. 178; S.Y. v. F.G.C. (1996), 26
B.C.L.R. (3d) 155 (C.A.). Where there is a link between psychological consequences
of abuse and impairment of the plaintiff’s employability, courts will assess that loss
and compensate the plaintiff accordingly. However, the causal link between
psychological consequences of tort and employment prospects is not often easy to
establish. See also Adjin-Tettey, “Righting Past Wrongs” supra note 79 at pp. 127–
130.
133
See Lee, supra note 119; Young v. Bella, [2006] 1 S.C.R. 108; Cassels and Adjin-
Tettey, ibid. at pp. 175–178. The U.K. Law Commission has also criticized the
functional approach to the assessment of non-pecuniary damages: Law Commission
Report – Damages for Personal Injury: Non-Pecuniary Loss (1999, Law Com No.
257), at pp. 6, 2.5, online: Law Commission <http://www.lawcom.gov.uk/docs/
lc257.pdf>. For a critique of the cap, but a defence of the functional approach, see
Matthew Good, “Non-Pecuniary Damage Awards in Canada – Revisiting the Law and
Theory on Caps, Compensation and Awards at Large” (2008) 34 Advoc. Q. 389. For
support of the cap, see Stephen Waddams, “Compensation for Non-Pecuniary Loss: Is
there a Case for Legislative Intervention” (1985) 63 Can. Bar Rev. 734; Roger G.
Oatley, “Is it Time to Revisit the Trilogy?” in The Law Society of Upper Canada,
Special Lectures 2005: The Modern Law of Damages (Toronto: Irwin Law, 2005)
153.
160 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
their reprehensible and high-handed conduct, rather than focusing on the
plaintiff’s losses; they promote the goals of punishment, deterrence and
denunciation.
134
While compensation is the principal objective of tort
damages, it is not the only aim. However, the appropriateness of punitive
damages in civil litigation has been questioned. Emphasis on corrective
justice and the bilateral nature of tort litigation presupposes that tort
damages look backward to repair the harm caused by the defendant’s
wrongdoing.
Corrective justice theorists have criticized the availability of
punitive damages in civil litigation as a deviation from the compensatory
focus of civil damages. Punitive damages are also inconsistent with the
relational structure of tort liability because they are one-sided and do not
attempt to correlate the doing and the suffering of harm.
135
The focus of
punitive damages takes the determination outside the parties’ relationship
and addresses the need for societal condemnation and disapproval of the
defendant’s conduct. This can hardly be considered the plaintiff’s
entitlement within a corrective justice model.
136
The focus on deterrence
engages only one side of the litigation equation, namely the nature of the
defendant’s conduct, and disregards the defendant’s status vis-à-vis the
plaintiff with no correlation to the victim’s loss. Punitive damages also
straddle the civil and criminal justice processes and confuse the functions
of the two systems.
Notwithstanding these criticisms, functionalists accept deterrence
as a legitimate objective of tort law,
137
even if it is incompatible with
other goals of the tort system and notwithstanding an absence of empirical
evidence of tort law’s actual deterrent effect.
138
As White notes, the
134
See Whiten v. Pilot, [2002] 1 S.C.R. 595, at paras. 36, 43, 68 [Whiten]; Hill, supra
note 30.
135
See Weinrib, “Deterrence and Corrective Justice,” supra note 33, at pp. 627–628. See
also Whiten, ibid. at paras. 38–39; Cassels and Adjin-Tettey, supra note 60 at pp.
283–284.
136
See Dagan, supra note 86 at p. 151.
137
See Whiten, supra note 134, at para. 37; Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p.
268 (per Justice La Forest); M. Stuart Madden, “Tort Law through Time and Culture:
Themes of Economic Efficiency” in Madden ed,, Exploring Tort Law, supra note 19,
11 at pp. 12–13. See also Cane, “Retribution, Proportionality and Moral Luck,” supra
note 17 at p. 170; Salmond and Heuston on the Law of Torts, 18
th
ed. (London: Sweet
& Maxwell, 1981), at p. 21; Schwartz, supra note 92 at p. 1802.
138
See Linden and Feldthusen, supra note 5 at pp. 8–10; Schwartz, ibid. at p. 1826. The
threat of liability will likely encourage potential defendants to minimize liability, but
not necessarily to avoid unreasonable behaviour. Abel, “A Critique of Torts,” supra
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 161
admonitory purpose of punitive damages is a value worth pursuing,
especially where the defendant’s conduct is wrongful but not necessarily
criminal and compensatory damages will be paltry.
139
As well, the
Supreme Court of Canada has recently noted that punishment is a
legitimate objective of the civil justice system.
140
Punitive damages are
premised on retributive justice and have no bearing on the plaintiff’s
losses or vindication of private interests.
141
They serve a public function
of promoting specific deterrence: that is, societal condemnation of the
defendant’s reprehensible conduct and general deterrence with the aim of
minimizing or preventing such injurious conduct in the future,
142
and may
enhance victims’ sense of justice. The deterrence objective is to serve
broader societal interests, which takes it outside what is necessary to
restore the imbalance within the bilateral relationship between the doer
and sufferer.
The availability of punitive damages and the inclusion of societal
interests in providing tort remedies demonstrate that the tort system
note 110 at pp. 813–817. As well, the deterrent effect of punitive damages remains
questionable because defendants rarely compensate plaintiffs from personal assets,
given the widespread availability of liability insurance. In McIntyre v Grigg (2006),
83 O.R. (3d) 161 (C.A.), Blair J.A., dissenting in part, noted that if punitive damages
were to be awarded against the defendant in a drunk driving case, it would likely be
paid for by his insurer. The defendant is required by law to carry automobile
insurance for the vehicle. The standard policy provides that the insurer will
indemnify the insured for injury to person or damage to property of others arising
from their ownership, use and operation of the insured motor vehicle subject to the
policy limit. Punitive damages awarded against the insured do not appear to be
excluded from coverage: at para. 131.
139
White, supra note 87 at p. 237. See also Calabresi, supra note 87 at pp. 343–344.
140
Whiten, supra note 134 at paras. 37, 40–44, 69; White, ibid. at p. 237; Cassels and
Adjin-Tettey, supra note 60 at p. 284.
141
In Myers v. Haroldson, [1989] 3 W.W.R. 604, 76 Sask. R. 27 (Q.B.), a case involving
the brutal rape and sexual assault of an Aboriginal complainant, the victim was
awarded relatively low general damages. This was presumably because of the
Aboriginal status, but there was no acknowledgement of the racist nature of the
attack. Yet, the court found the assailant’s conduct reprehensible and deserving of
punishment and awarded punitive damages four times the amount of general
damages. While there is generally no correlation between general damages and the
quantum of punitive damages, there is some indication that the public dimension of
the remedies, based on outrage for the defendant’s conduct, was valued higher than
the plaintiff’s personal injury from the attack. See Elizabeth Adjin-Tettey,
“Protecting the Dignity and Autonomy of Women” (2006) 39 U.B.C. L. Rev. 3, at pp.
51–52.
142
See Whiten, supra note 134, at paras. 43, 68; Cassels and Adjin-Tettey, supra note 60
at p. 7; Weinrib, “Deterrence and Compensation,” supra note 33 at p. 634.
162 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
cannot be explained purely in terms of corrective justice, but rather that it
can accommodate both distributional and corrective justice
considerations. Although the primary goal might be to promote justice,
mixed theorists advocate the complementarity of corrective justice and
deterrence objectives of tort law.
143
Even corrective justice theorists
concede that while deterrence has no place in determining tort liability, it
plays a role in the overall tort sequence through its behaviour
modification potential.
144
CONCLUSION
Tort law made tremendous strides in the 20
th
century, including
recognizing victims’ need for compensation outside of contractual
relationships—at least for those who win the tort lottery.
145
By so doing,
the dignitary interests of victims are preserved through recognition of
their bodily integrity, and the need for redress in the event of violation.
As well, tort law, especially tort liability, has generally evolved in ways
that promote broad societal interests through incremental development of
the common law. The challenge for the 21
st
century is to move tort law
forward by ensuring that tort remedies do not become a site for
reinforcing social inequalities, but rather an avenue for social change,
social justice and the promotion of social equality consistent with how
courts adapted tort law to the changing needs of society in the previous
century.
146
Such an approach will also be consistent with the underlying
purposes and aims of the tort system.
Restitutio in integrum promotes a particular form of justice,
corrective justice and formal equality, and can limit the ability of courts to
use tort remedies in imaginative ways to promote social justice. The
restitutio principle can have a regressive effect on marginalized claimants
by creating and reinforcing systemic inequalities on the basis of social
identity, such as gender, race, ethnicity, (dis)ability and class, while
constructing victims’ original positions and losses in such a way as to
143
See Schwartz, supra note 92 at pp. 1802, 1827–1828. Schwartz also notes that the
justice objective of tort law may perhaps better be achieved through deterrence and
preventative measures that avoid or at least minimize interference with the plaintiff’s
interests: at 1831–1833.
144
Weinrib, “Deterrence and Corrective Justice,” supra note 33 at pp. 638–640.
145
See Bender, supra note 1.
146
Ibid. at pp. 253–258; Chamallas, supra note 27 at p. 1454.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 163
promote wealth redistribution from marginalized to privileged members
of society. The differential valuation of human potential based on social
characteristics reinforces and reproduces social inequalities with a
resulting harm to members of disadvantaged groups. This makes
continued reliance on the restitutio principle questionable, at least in
relation to in trust awards and damages for impaired working capacity.
This is particularly so where the valuation of human potential is highly
speculative and based on social identity. The pursuit of “accuracy” in
determining economic losses using a plaintiff’s alleged original position is
premised on a socially constructed and discriminatory valuation of human
potential that favours the privileged and disadvantages marginalized
members of society. Courts can play an important role in addressing
societal inequalities through creative interpretation and application of the
law, not only in determining liability but also in providing remedies
consistent with equality principles. The assessment of damages for
personal injuries should be a contextualized exercise intended to promote
substantive equality for plaintiffs from historically marginalized
backgrounds rather than to reinforce and exacerbate existing inequalities
on the basis of social identity.
This may mean different approaches to assessing loss in particular
situations in order to do justice. For example, in the context of plaintiffs
living with disabilities prior to the injury, the focus should not be on
comparing their situation with non-disabled persons, but rather on how
the injury impacted that plaintiff. Such an approach will allow courts to
consider how that plaintiff may have adapted to her pre-existing
limitations to give better insights into that person’s loss. This will avoid
value judgments inherent in measuring persons living with disabilities
against the norm of non-disabled persons and will suppress the
paternalistic attitudes that inform that perception.
147
The plaintiff’s
original position should not be perceived as “abnormal,” but rather as a
difference to be recognized and respected. MacPherson suggests that
when viewed in this light, the loss to a disabled person may be as or more
severe than to a non-disabled person in similar circumstances.
148
A contextualized approach to assessing damages will be consistent
with the expectation that development of the common law reflect Charter
values, including substantive equality. Even if still informed by restitutio,
the construction of the claimant’s original position and the losses arising
147
See MacPherson, supra note 15 at pp. 261–264.
148
Ibid. at pp. 261–264.
164 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
from her victimization must be approached from a non-discriminatory and
egalitarian perspective.
149
This will ensure that remedies are not provided
in the abstract, but rather, as the CIAJ’s theme states, that remedies are
used to shape the substantive rights they enforce, in this case bodily
autonomy and security, and to remediate the violation of this fundamental
right. Using remedies to enforce the values of equality makes visible the
role of courts and other legal actors not only in adjudicating cases before
them, but also as instruments of social change. Among other things, this
will mean avoiding differential valuation of human interests and potential
on the basis of social identity.
Societal inequalities can be addressed through creative
interpretation and application of the law not only in determining liability
but also in providing remedies consistent with equality principles and in
ways that advance social justice. In fact, courts have responded to the
problem of gender discrimination through incremental changes. For
instance, it is now recognized that loss of impaired housekeeping is a
personal loss for women plaintiffs, and it is compensated accordingly,
though modestly.
150
Marriage or partnership is no longer considered a
negative contingency. Courts now recognize shared financial benefits of
interdependent relationships and routinely award compensation for loss of
opportunity to form such a relationship, referred to as lost opportunity of
shared family income. Compensation is not limited to loss of opportunity
to form marriage-like relationships; it includes all relationships of
financial interdependency.
151
In the context of young female plaintiffs,
courts have also acknowledged gender bias in historical wage statistics
and will sometimes gross up the award for the possibility of future wage
parity.
152
Where there is reasonable certainty of a young plaintiff’s career
path or educational attainment and the likelihood of a male-oriented
career, or pay equity initiatives, or simply as a matter of substantive
149
For a discussion of some of these issues in the context of determining the impaired
working capacity of historical abuse victims, see Adjin-Tettey, “Righting Past
Wrongs,” supra note 79 at pp. 121–130.
150
See supra notes 39, 71.
151
See Reekie v. Messervey (1989), 36 B.C.L.R. (2d) 316 (C.A.); Walker, supra note 67;
Bartosek, supra note 35; Cojocaru (Guardian ad litem) v. British Columbia Women’s
Hospital, 2009 BCSC 494, at paras. 297–303 [Cojocaru].
152
See Rewcastle, supra note 31. See also Toneguzzo-Norvell (Guardian ad litem of) v.
Burnaby Hospital, [1994] 1 S.C.R. 114, at para. 22. For a discussion and critique of
this practice, see Elizabeth Adjin-Tettey, “Replicating and Perpetuating Inequalities
in Personal Injury Claims” (2004) 49 McGill L.J. 309, at pp. 317–318.
DISCRIMINATORY IMPACT OF APPLICATION OF RESTITUTIO IN INTEGRUM 165
equality, courts have not hesitated to use male earnings
153
or average male
and female earnings as the basis for valuing plaintiffs’ impaired working
capacity.
154
Notwithstanding these developments, presently the
remediation process continues to be a site for reinforcing and promoting
social inequalities,
155
thus highlighting the need for change in this area of
tort law.
Generally, defendants do not choose their victims. Hence
defendants should be indifferent to the award of damages for impaired
working capacity, especially for children, for example based on average
earnings and not the plaintiff’s social identity.
156
Where tortfeasors do
choose their victims, they often do so because of the latter’s vulnerability.
153
See MacCabe, supra note 31; Spehar, supra note 45; Tucker (Guardian ad litem of) v.
Asleson (1991), 62 B.C.L.R. (2d) 78 (S.C.), varied (1993), 78 B.C.L.R. (2d) 173
(C.A.); Soligo v. Turner, 2001 BCSC 205, at para. 41; Grewal, supra note 45 at para.
151; Gray v. Macklin (2000), 4 C.C.L.T. (3d) 13 (Ont. Sup. Ct. Jus.), at para. 197.
154
See Walker, supra note 67; Ediger, supra note 69.
155
In Mumford, supra note 49, the court refused to assess the infant plaintiff’s earning
potential based on the lower educational attainment of her parents, stating that this
was harsh and unacceptable; instead the court used average earnings.
Notwithstanding Mumford, some courts continue to use parental background as a
proxy for assessing potential earnings for infant plaintiffs. See Ediger, ibid. para.
323; Cojocaru, supra note 151 at paras. 264, 268, 269; Preston, supra note 38;
B.M.G. v. Nova Scotia (A.G.) (2007), 250 N.S.R. (2d) 154 (S.C.), aff’d: (2007), 260
N.S.R. (2d) 257 (C.A.). As well, even when courts use male earning statistics to
assess a female plaintiff’s income loss, there is often female –specific contingency
deduction or that wage parity might not be achieved in the near future.
156
See Mumford, supra note 49. An example of such an egalitarian regime is the
personal injury benefits for students under Manitoba’s no-fault automobile insurance
scheme. Students who are unable to attend school due to motor vehicle-related
injuries are indemnified for each school year they are unable to attend or complete.
The amount depends on the level of schooling the victim is unable to attend or
complete: elementary (kindergarten to grade 8 - $4,630, indexed to March 1, 2009);
secondary (grade 9–12 - $8,578, indexed to March 1, 2009); or post-secondary:
Manitoba Public Insurance Corporation Act, C.C.S.M. c. P215, ss. 88, 94. Where
injuries persist after a child turns 16 and prevents her/him from attending school or
working or the scheduled time that a student would have completed her/his studies,
s/he will receive income replacement benefits based on the average income of all
employed people in Manitoba (Manitoba Average Industrial Wage). Manitoba Public
Insurance Corporation Act, ss. 90, 96, online: Manitoba Public Insurance <http://
www.mpi.mb.ca/English/claims/PIPP/IRI%20minors.html>. Other jurisdictions
provide set amounts for those who were unemployed prior to the injury, including
students. Although the amount is modest and not based on average income in the
province, it avoids reference to social identity to determine potential income level.
See Insurance Act, Ontario Regulation 403/96, Statutory Accident Benefits Schedule
– Accidents on or After November 1, 1996.
166 REMEDIES / LES RECOURS ET LES MESURES DE REDRESSEMENT
The principle of ex turpi causa non oritur actio should be invoked to
prevent defendants from relying on plaintiffs’ marginalized status to limit
their liability because to do so amounts to “profiting” from one’s
blameworthy conduct contrary to public policy.
157
Under the current
regime, marginalized people not only receive depressed awards, but they
also subsidize plaintiffs from privileged backgrounds who obtain higher
damages, resulting in skewed wealth redistribution in favour of the
latter.
158
It is questionable whether “public” funds should be used to
further such an inequitable regime based on the restitutio principle.
159
157
See Hall v. Hebert, [1993] 2 S.C.R. 159 [Hall]. Courts have recognized ex turpi as a
limited defence available to a defendant to defeat a plaintiff’s action because of the
latter’s own conduct: Hall, at paras. 26–39, especially, para. 35. Such situations will
involve a plaintiff seeking to profit from his/her wrongful conduct or to prevent a
plaintiff from circumventing the consequences of criminal activity and incarceration
by claiming lost income during periods of incarceration: Hall, at para. 40. For
examples of the second situation see H.L. v. Canada, [2005] 1 S.C.R. 401; British
Columbia v. Zastowny, [2008] 1 S.C.R. 27. In both situations, the purpose of ex turpi
is to maintain the integrity of the legal system. See also Douglas M. Foley, “Infants,
Lost Earning Capacity, and Statistics: Sound Methodology or Smoke and Mirrors?”
(1991) 13 Geo. Mason U. L. Rev. 827, at p. 841.
158
Damages are often paid for with insurance funds, or by defendants who are self-
insurers. The public contributes to these funds through insurance premiums or by
purchasing goods and services. Members of marginalized groups may be
disadvantaged by contributing disproportionately to these funds relative to their
earnings, and also by depressed awards based on their social identity. For example,
the tobacco industry specifically targets minority communities through the selling of
more addictive cigarettes and aggressive advertising in their communities. Members
of these communities account for a disproportionately high percentage of smokers,
notwithstanding their overall lower income status, and hence have greater exposure to
tobacco-related diseases. Smokers generally also pay more for personal insurance.
Yet, compensation for this group for impaired working capacity resulting from
tobacco-related conditions will often be lower when compared to what is obtained by
members of more favourable groups. See Cheryl Healton, “What is Similar or
Different about the Issue of Tobacco?” (2008) 11 J. Health Care L. & Pol’y 93;
Danny Davis, “Three Paths to Justice: New Approaches to Minority-Instituted
Tobacco Litigation” (1999) 15 Harv. BlackLetter L.J. 185; Vernellia R. Randall,
“Smoking, the African-American Community, and the Proposed National Tobacco
Settlement” (1997) 29 U. Tol. L. Rev. 677; Abel, “A Critique of Torts,” supra note
110 at pp. 799–801, 803.
159
See Luntz, Assessment of Damages for Personal Injury and Death, supra note 49 at
pp. 301–302.
