Remedies and Race

Professor Jeffrey Berryman wrote the book on remedies. Literally. In 1988, he and his co-authors published the landmark text, Remedies: Cases and Materials, an essential law school reference now in its 5th edition.

Remedies, Berryman explains, are civil court decisions that force one party to respect the rights of another party.

"It's great having the rights," says Berryman, citing freedom of religion, freedom of speech and the right to property, "but rights are only as good as the good as the remedies that enforce them."

For any civil case that goes to trial, the court order is the remedy. Court orders might include an injunction to pay the wounded party a certain amount of money in damages. Legal scholars like Berryman have made a career out of studying how courts "quantify and calculate" damages and the legal arguments that affect those calculations.

A former dean of Windsor Law from 1990 to 1995, Berryman was recently named as Research Leadership Chair for the Faculty of Law, one of a dozen new positions created across the University of Windsor to guide research in the liberal arts and social sciences..

As Research Chair, Berryman has counseled younger researchers on grant proposals, successfully recommended colleagues for research awards and launched an online database of law school scholarship. He has also delved deeper into his own research, particularly the increasing relevance of multiculturalism in determining equitable remedies.

Berryman cites a case from Ontario where a female Somali immigrant was rendered sterile by an act of medical negligence. The woman's lawyer asked for greater compensation because of her ethnicity.

"In the Somali Muslim community, they argued, the ability to have children is highly valued," Berryman explains. "Because of her sterilization, not being to able to have children was a far greater loss to her than someone else. So the court gave her additional damages."

A similar thing happened in British Columbia, where immigrant Chinese parents asked for additional damages when they lost their child in a car accident. In the Chinese community, they argued, the boy would have been their financial support in old age. Again, the court was convinced.

In recent scholarly papers and articles, Berryman has pointed out a potential pitfall in the multicultural argument.

"What would happen if the defendant raised the cultural custom to lower the damages?" he asks. What if a court awarded less money to Portuguese parents because Portuguese students traditionally perform worse than other groups in Canadian public school? "Then it becomes much more problematic."

What Berryman wants to see is a sophisticated debate about the effect of Canada's emerging multiculturalism on civil law. For more on this topic, look for Berryman's forthcoming book, The Law of Remedies: New Directions in Common Law, which he co-edited with Rick Bigwood of the University of Auckland.

Read more about Berryman's important research at his faculty website http://uwindsor.ca/law/berryman.