THE CASE FOR RESTITUTIONARY DAMAGES OVER PUNITIVE DAMAGES: TEACHING THE WRONGDOER THAT TORT DOES NOT PAY

Abstract

Canadian common law courts are increasingly relying on punitive damages in a diverse range of areas, but particularly, trespass to property, to ensure that a wrongdoer does not profit from committing a wrong. The awarding of punitive damages is both familiar to courts as well as being viewed as an accepted extension of compensatory damages. In this article, the author argues for greater attention being placed on restitutionary damages as a more accurate way of ensuring that a wrongdoer does not profit from committing a wrong. Further, adoption of restitutionary principles brings a number of procedural advantages, all of which are discussed.