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Nominal Damages

. RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP

In RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP (Ont CA, 2020) the Court of Appeal commented on the awarding of nominal damages:
Nominal damages

[51] Finally, the appellants argue that the trial judge erred in refusing to award nominal damages. The appellants say that, having established a valid contract and a breach, they were entitled to nominal damages, as such damages are “always available”: Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, 140 O.R. (3d) 81, at para. 33; see also Place Concorde East Ltd. Partnership v. Shelter Corp. of Canada Ltd. (2006), 2006 CanLII 16346 (ON CA), 270 D.L.R. (4th) 181 (Ont. C.A.), at para. 76.

[52] It is well established that nominal damages may be awarded where a breach of contract has been established but damages flowing from that breach have not. Nominal damages are a trivial amount – typically one dollar – and serve a symbolic rather than a compensatory purpose: they mark a breach of contract in the same way that a declaration would. See, generally, S.M. Waddams, The Law of Damages, 5th ed. (Toronto: Thomson Reuters, 2012), at c. 10.10-10.30; James Edelman, McGregor on Damages, 20th ed. (London: Thomson Reuters (Professional) UK Limited, 2018), at c. 12-001-12-013.

[53] The award of nominal damages might be important in some cases. For example, in the context of an ongoing contract in order to clarify future performance obligations, or to vindicate a party’s rights. But there are no such special circumstances in this case. The appellants did not bring their action merely to seek a judicial statement or declaration that the respondent had breached the contract; they brought their action with the intention of claiming over $9 million in damages as compensation for losses they claim to have suffered as a result of the respondent’s breach of contract.

[54] The trial judge declined to exercise his discretion to award nominal damages on the basis that the appellants failed to prove that the respondent’s breach of contract caused their losses. The trial judge appears to have thought that the court’s discretion to award nominal damages depends on the existence of unquantified damages. It does not.

[55] But the trial judge’s error is of no moment, for the award of nominal damages would have served no purpose in this case. The appellants appear to assume that an award of nominal damages would have turned their substantive lack of success into a basis for awarding them costs. It would not. Even if the trial judge had awarded the appellants nominal damages, it would still be within the discretion of the trial judge to make no award of costs to the appellants, or to make the award of costs to the respondent that he did on the basis of the extreme disparity between “the amount claimed and the amount recovered in the proceeding”: r. 57.01(1)(a).



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