Principle of the Damage Claim

A claim in tort involves considerations with respect to the damage assessment which differs considerably from a claim in contract.

The purpose of the determination of the damage sum is designed to put the plaintiff back to “the same position as he would have been” had the wrongdoing not been effected. ¹ White, J, stated:

Assuming that negligent misrepresentations were made to the plaintiff inducing him to enter into the contract of employment, what is the measure of the plaintiff's damages? I adopt as indicating the correct approach the words of Zelling J. in a case of negligent misrepresentation inducing a contract: Johnson v. State of South Australia (1980), 26 S.A.S.R. 1, at p. 34: "In general in assessing damages I have to put the plaintiff in the same position as he would have been if the negligent misrepresentation had not been made."

That being said, the loss to be compensated must be one which is reasonably foreseeable:

The test, therefore, that I must apply to the claims of the plaintiff for damages, assuming that the defendant is liable, is whether they were reasonably foreseeable by the defendant from the facts reasonably known by the defendant at the time of the making of the negligent misrepresentations. In applying this test -- the test of remoteness of damages -- there is no requirement that the foreseeability of damages be, by any means, precise. As Lord Denning stated at p. 16 in the Esso Petroleum case, discussing the plaintiff's loss arising out of a negligent misrepresentation inducing the plaintiff to enter a contract:

[The loss] is to be measured in a similar way as the loss due to a personal injury. You should look into the future so as to forecast what would have been likely to happen if he had never entered into this contract; and contrast it with his position now as a result of entering into it. The future is necessarily problematical and can only be a rough-and-ready estimate. But it must be done in assessing the loss.

The trial judgment in Queen v Cognos was set aside by the Court of Appeal and reinstated by the Supreme Court of Canada.

Much to the same effect is the B.C. Supreme Court decision in a case of verbal abuse leading to serious emotional harm. In this case, the trial judge, as upheld by the Court of Appeal, found liability for the tort of negligent infliction of emotional distress. [efn_ note] The employer was found to be vicariously liable for the wrongdoing of the plaintiff's superior [/efn_note]The damage award, based on the above principle, included awards for past income loss to the date of trial, a future income loss and damages for emotional suffering. ² The sums awarded were $225,000, $600,000 and $125,000 respectively.

The tort claim is a much more powerful remedy, compared to the compensation offered by a wrongful dismissal claim. The claim for the breach of good faith will lead to a possible aggravated and/or punitive damage remedies but the tort claim allows for significant past and future income claims in addition. The wrongful dismissal case is obviously limited to an income loss for the notice period.

The claims for past and future lost income hinge upon the finding that the wrongdoer has caused a serious and permanent inability to return to employment.

Should the tort be an intentional one, a further advantage is that the “cap” on damages for compensatory awards does not apply to intentional torts of a quasi-criminal nature, such as sexual assault. ³