As mentioned, the superior courts have a broad common law and equitable jurisdiction to fashion their own remedies, including injunctive relief. Normally, injunctions are ordered to prevent prospective harm, and damages are ordered to compensate for past injury. However, injunctions are frequently ordered where damages would provide an inadequate remedy, e.g., where a loss is incalculable, where there is a continuing wrong, or where the defendant is insolvent. In cases where the potential damage to the plaintiff is irreparable, the court may still grant or refuse an injunction, after comparing the harm to which both parties would be put as a result of the granting or withholding of the relief sought.
In the case of trade secrets, should a plaintiff succeed at trial, in proving the existence of an obligation of confidentiality regarding trade secret information, the court would have jurisdiction to prevent the defendant from unfairly or improperly using that information, e.g., not to use a secret recipe, or not to solicit any customers on a plaintiff’s customer list.
Paragraph 57(1)(a) of the Patent Act, s. 15.1 of the Industrial Design Act, s. 53(2) of the Trade-marks Act, s. 34 of the Copyright Act, para. 41(2)(a) of the Plant Breeders' Rights Act, and s. 9 of the IC Topography Act, allow the court to order injunctions in infringement proceedings. However, s. 40 of the Copyright Act does not allow an injunction in the case of a building.
-damages, including recovery of profits, and expenses, including attorney's fees;
The Canadian courts award damages whenever they determine that a loss can be remedied by an award of money, and the purpose of damages is to put the plaintiff in the position in which he or she would have been had the loss not occurred. General damages are those which, although being the direct and natural consequences of the act giving rise to the damage, are incapable of proof with any great particularity. Special damages, however, are damages which are easily provable with precision, e.g., out-of-pocket expenses. Both would be available for the unauthorized disclosure of trade secret information in violation of a contractual obligation. Punitive or exemplary damages may be awarded where the defendant has behaved with a callous disregard for the plaintiff’s rights. Their purpose is to deter others from following such conduct. Although they are not normally available for breach of contract actions, on occasion exemplary damages have been awarded for breach of fiduciary duty or a duty of confidentiality.
Subsection 55(2) of the Patent Act allows a patentee, and all persons claiming under him or her, to sue for damages for infringement, not only after the grant of the patent, but also at any time after the patent application is laid open to the public for inspection. Section 15.1 of the Industrial Design Act, and s. 9 of the IC Topography Act, allow damages to be claimed, including for lost profits and punitive damages (and, in the case of topographies, for payment of royalties). However, where the defendant was not aware, and had no reasonable grounds to suspect, that the design or topography was registered, the plaintiff’s remedies are restricted to an injunction (Industrial Design Act, s. 17; IC Topography Act, s. 10). Section 53.2 of the Trade-marks Act authorizes orders for "the recovery of damages or profits". Subsection 41(1) of the Plant Breeders' Rights Act allows the holder or anyone claiming under the holder to claim for all damages suffered by reason of infringement. Paragraph 41(2)(b) of the Plant Breeders' Rights Act provides that a court may make an order for compensation of an aggrieved person, and subs. 42(2) gives authority to the court to determine costs. Section 34 of the Copyright Act allows a copyright owner to sue for damages. However, s. 39 limits the remedy to injunctions where the defendant is not aware of the existence of the copyright in the work. In addition, s. 35 allows a copyright owner to sue for lost profits and requires that he or she only provide receipts or revenues derived from the publication, sale or other disposition of the infringing work.
Canadian courts award costs as an indemnification of the expenses of litigation, i.e., fees plus disbursements. Hence, the winning party may be entitled to be compensated for the expense of bringing or defending the action. Such awards, however, are in the discretion of the court and are never automatic (Copyright Act, subs. 34(2)). Also, Rule 57 of the Ontario Rules of Civil Procedure sets out a non-exhaustive list of factors, other than winning or losing, which may be considered. For example, where appropriate, the court may also impose costs against one invoking the aid of its process, i.e., where a proceeding was unnecessary or vexatious). However, attorney’s fees are not ordinarily treated as a head of special damages, nor are they normally included in an order for costs. Where ordered, they are restricted to the schedule of costs contained in the rules of procedure, which is ordinarily based on days in court only.
-destruction or other disposal of infringing goods and materials/implements for their production;
As mentioned, Canadian superior courts have broad inherent discretion to fashion remedies, which by implication includes the disposal of infringing goods, where appropriate. In addition, s. 15.1 of the Industrial Design Act allows for the disposal of any infringing article or kit, and s. 9 of the IC Topography Act, for the disposal of any infringing IC product. However, where the defendant did not know, and had no reasonable grounds to believe, that the IC product was manufactured without the consent of the owner of the registered topography, the defendant has the right to dispose of that product, upon payment of a reasonable royalty determined by the court. Section 53(2) of the Trade-marks Act authorizes court orders for "the destruction, exportation or other disposition of any offending wares, packages, labels and advertising material and of any dies used in connection therewith". Paragraph 41(2)(d) of the Plant Breeders' Rights Act allows the court to make an order in respect of custody or disposition of any offending material, products, wares or articles. Also, in the context of a criminal prosecution for copyright infringement, the court has express authority to order the destruction of the infringing goods or plates which appear to be used for the purpose of making infringing copies (Copyright Act, subs. 42(3); subs. 43.1(3)).
-any other remedies.
Section 34 of the Copyright Act entitles the copyright owner to “all remedies ...that are or may be conferred by law for the infringement of a right”. Section 38 provides that “all infringing copies of any work in which copyright subsists...and all plates used or intended to be used for the production of the infringing copies shall be deemed to be the property of the owner of the copyright”. The combined effect of these two sections would enable the copyright owner to pursue the tort remedies of detinue and conversion.