Basic Process for Assessing Damages: 97 Select interest that deserves vindication 97 a. Restitution 97
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- Liability Rules
- Property Rules
- Inalienability Rules
- Timing of Injunctions – Three Options
- Scope of Injunctions: Three Options
- Quia Timet
- Mandatory Injunctions
IV. InjunctionsIntroductionInjunctions are equitable remedies that are now available in general law Issues: Entitlement definition of parties’ legal rights Remedy quantification of those rights Framework: Categories of the Law of RemediesLiability RulesDamages Most familiar causes: negligence and breach of contract We confine people to damages when we want to let people violate the right when necessary in exchange for an objectively-determined amount of money. E.g. where there is a social purpose or otherwise greater value We can see the social choice in negligence law we aren’t going to make it illegal to drive cars, for example, so we have to allow for some risk.
We use property rules in situations where we want to establish markets Available remedies: Criminal sanctions Courts fluctuate between using property rules and liability rules this course is about what factors play into the determination of how to categorize a remedy. Inalienability RulesA much smaller category of rights These cover situations where a social choice is made to vest people with a right, but for some reason we don’t want those rights to be tradeable, either through a market or by consent Examples: Voting
Reproductive material/organs (you can give it away, but you can’t sell it) Assisted suicide? Can people enter into private arrangements to have someone help them die? Prostitution? Assault can be sold, in some circumstances hockey, UFC, etc.
Final resolution of a dispute between the parties Last forever (or until overturned on appeal) Interim
Temporary an order with a specific start and end date. Interlocutory A pre-trial injunction As court wait times have increased, these have become more common. Things may change/trouble may arise while you’re waiting to get to court on something, To address this problem, interlocutory injunctions are available to freeze the status quo while waiting for trial. Scope of Injunctions: Three OptionsNegative/prohibitive An order to stop doing or not to do a particular thing Mandatory A positive order rebuild something, e.g. Often goes hand-in-hand with negative/prohibitive (e.g. stop destroying and rebuild) Courts are more hesitant in their usage of mandatory orders Quia Timet Means “because it is feared” or “that which is feared” For situations where no damage has occurred but it is feared. Seeking an order to prevent anticipated damage – from something that hasn’t yet happened. Quia TimetIssue: how do judges decide whether or not to award an injunction where the harm complained of may not yet have happened? Starting principle: courts will sometimes grant injunctions where the damage has not yet occurred, but the damage has to be “imminent”. [Fletcher v. Bealey]35 Policy rationale: have to weigh rights of both properties Consider ∆ right to carry out their legal business on their property Granting injunctions too readily would impede ∆’s right to use their property and engage in their lawful activities. The “imminence” requirement has later been characterized not as a concept about time, but as a question of inevitability. [Hooper v. Rogers]36 Imminence is a function of probability, severity and burden on ∆. Factors to be considered by the court [Per Fletcher v. Bealey]: 1. Risk/probability that harm will occur There must be a high risk that something bad will happen. 2. Severity of the harm The harm must be severe – irreparable; something that damages wouldn’t resolve. 3. Chance of avoiding harm Could something be done in the meantime to avoid the harm? 4. Consequences to ∆ of granting an injunction The first three factors are balanced against this last consideration Risk is a function of probability and severity, and these are balanced against the burden on ∆ Courts are very careful with quia timet injunctions, in part for fear that the progress of society will be stifled [See Palmer v. Nova Scotia Forest Industry]37 Where the relationship between the parties has turned toxic, for example, a court may choose to grant damages in lieu of an injunction [Hooper v. Rogers]
Four Factors [per Redland Bricks v. Morris]38: (1) must show very strong probability on the facts that grave damage will occur to him in the future (2) damages have to be an inadequate remedy There is often a presumption with land that damages aren’t adequate, but recall that courts are changing their attitudes toward land. (3) Benefit and burden have to weigh in favour of the injunction So, the benefit of the injunction has to outweigh the burden. Where ∆ is innocent (in the sense in Redland – ∆s weren’t acting in bad faith or doing something they weren’t entitled to do), courts will take cost of compliance into account and will weigh that cost against the benefit to be achieved. Where ∆ is not innocent (e.g. in Bellini Custom Cabinetry Ltd. v. Delight Textiles Ltd.39), this can weigh against the ∆ and in favour of the injunction. (4) if the court decides a mandatory injunction is appropriate, then the court must give clear definition of the order Directory: outlines outlines -> Chabot College Fall 2010 Course Outline for Computer Application Systems 60 business software applications/general accounting outlines -> Adil Khan Contracts Midterm outline- waldron outlines -> Remedies for breach of promise (1) The Interests Protected outlines -> Chapter Five: Written Documents 1 Unsigned Documents 1 outlines -> Cases and Materials on Contracts outlines -> College of Science and Health outlines -> Evidence outline outlines -> 2. Act, Omission, Status or Circumstances 4 Consequences and Causation 8 Introduction to Mens Rea and Intent 10 Levels of Fault 11 outlines -> Course Outline as/huma 2650 0A Download 1.08 Mb. Share with your friends:
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