How have courts assessed damages for passing off?

Ontario, Canada


The following excerpt is from Dentec Safety Specialists Inc. v. Degil Safety Products (1989) Inc., 2014 ONSC 2449 (CanLII):

In the Saskatoon Star Phoenix decision at para. 15, Laing J. quoted from Draper v. Trist on the subject of the assessment of damages once a passing off action has been made out: commented on the subject of damages for passing off: Goddard L.J. in Draper v. Trist, supra, made the point at p. 527 that where the law presumes damage to the plaintiff, it is for the jury to determine what is fair and proper compensation to the plaintiff, without being limited to questions of what in truth are special damages (namely actual proven monetary loss). He rejected the argument that where a passing off has been established that the plaintiff is limited to nominal damages unless that plaintiff can prove actual monetary loss. He went on to point out that: …once one has established passing off, there is injury to goodwill, and this court or the jury must assess, by the best means they can, what is a fair and temperate sum to give to the plaintiff for that injury…

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