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Are there causes of action for which an award can be made without the plaintiff demonstrating loss/damage?

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Yes. Therefore, when assessing a claim, it would be incorrect or premature to conclude simply from lack of actual harm/damage that a wronged party would have no available remedy. In order to make this conclusion, one would have to examine the statutory scheme or the nature of the tort to determine whether the claim is actionable without proof of damage.

Many statutory causes of action are actionable without having to prove loss or harm.

  • Canada's Copyright Act, s. 38.1 allows a plaintiff to opt for statutory damages
  • Texas's SB-8 creates a cause of action that allows the claimant to recover statutory damages absent any proof of harm to the claimant
  • The Telephone Consumer Protection Act of 1991, 47 USC § 227 provides for statutory damages in the amount of $500
  • In British Columbia, "it is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose" (Privacy Act, RSBC 1996, c 373)

The common law and equity also recognize various wrongs and remedies without proof of damage

The tort of trepass is actionable without proof of damage (Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124, at para 130). Nominal damages are the normal remedy in the absence of proven harm (Rusche v. ICBC 1992 CanLII 735 (BC SC), quoting Halsbury's Laws of England).

The tort of battery is actionable without proof of damage (Norberg v. Wynrib, [1992] 2 S.C.R. 226). Again, nominal damages are the norm (see Rusche, above, also quoting from Halsbury's Laws of England).

The equitable remedy of disgorgement may also be available without proof of damage (for example, after a breach of fiduciary duty) (Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at para 32).

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    Defamation per se, also.
    – bdb484
    Jun 28, 2023 at 3:10
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    “Without having to prove loss or harm” - I think not only do you not have to prove it, but if the defendant can prove that damages are less than the statutory amount, they still have to pay the statutory amount.
    – gnasher729
    Jun 28, 2023 at 9:07
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    In the U.S., some jurisdictions allow nominal damages in absence of proof for common law breach of contract, some do not, and some have a more complicated rule on that point.
    – ohwilleke
    Jun 29, 2023 at 19:02
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    Many U.S. jurisdictions also allow for plaintiffs to elect to recover of a statutorily set "solatium" amount in lieu of proof of damages in a common law action for wrongful death. See, e.g., Colo. Rev. Statutes § 13-21-203.5 currently $119,660. coloradosos.gov/pubs/info_center/files/damages_new.pdf
    – ohwilleke
    Jun 29, 2023 at 19:08

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