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Damages - Meaning of 'Damages'. Dass v. Kay
In Dass v. Kay (Ont CA, 2021) the Court of Appeal drew a distinction between 'damages' and 'damage':[45] Second, as the respondents argue, the appellants’ argument conflates the concepts of “damage” and “damages”. The difference has been explained by the Nova Scotia Court of Appeal in Smith v. Union of Icelandic Fish Producers Ltd., 2005 NSCA 145, 238 N.S.R. (2d) 145, at para. 119, adopting A.I. Ogus’ explanation given in The Law of Damages (London, Butterworths, 1973), at p. 2: “‘damages’ should connote the sum of money payable by way of compensation …, while the use of ‘damage’ is best confined to instances where it refers to the injury inflicted by the tort or breach of contract” (emphasis in original). See also Hamilton (City) v. Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, 347 D.L.R. (4th) 657, at para. 55; Brozmanova v. Tarshis, 2018 ONCA 523, at para. 35. . Stirrett v. Cheema
In Stirrett v. Cheema (Ont CA, 2020) the Court of Appeal drew a distinction between remedies for equitable breaches (compensation) and legal breaches (damages), but noted that the term 'damages' are often used interchangeably:[68] Compensation for breach of fiduciary duty is typically determined according to restitutionary principles, where the plaintiff is entitled to be put in as good a position as he or she would have been in had the breach not occurred: Hodgkinson, at p. 440, per La Forest J. In M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, La Forest J., writing for the majority, pointed out that in equity there is no capacity to award damages and that the distinction between damages and compensation is often slight, with the courts tending to merge the principles of law and equity when necessary to achieve a just remedy: at pp. 80-81. Over time, courts have used the term “damages” to denote monetary compensation for breach of fiduciary duty. Remedies in cases of breach of fiduciary duty (such as disgorgement of profits and exemplary compensation) can also have a prophylactic or deterrent purpose: Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 74-77. Irrespective of the purpose, there must be a causal link between the breach of fiduciary duty and the compensation sought.
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