December 23, 2025
Nominal Damages are awarded when the Plaintiff proves that they suffered a wrong but cannot prove that they suffered a loss as a result of the wrong.
They are said to Illustrate the “where there is a right there is a remedy” theme. Or do they?
Examples where nominal damages are awarded are trespass or assault with no harm, and “sentimental losses”. In recent years, we have seen the rise of the concept of “consumer surplus” which provides modest but real awards for what were once written off as sentimental losses, such as the death of a pet or the loss of a loved one’s ashes.
Nominal damages are a declaration of the plaintiff’s rights and a denunciation of the defendant which typically entitle the Plaintiff to at least partial indemnity for the costs of the lawsuit. But partial indemnity is typically about 65% of the actual legal costs.
Nominal damages traditionally are $1.00. In recent years, the amount has increased, and we see “nominal” awards in low four figures. But even at higher amounts the recovery is still so low that the Plaintiff recovers less than he spent on legal costs. Not much of a victory.
Vindication for the Plaintiff is sometimes said to be a benefit of nominal damages. We are increasingly aware of the significance of vindication to Plaintiffs – simply being told that they are right has value, but at what cost?
A proper situation for nominal damages ought not to be confused with the problem of mathematical uncertainty in assessing damages. Judges are expected to do their best with the evidence available. But it is still the job of the Plaintiff (or their lawyer) to lead some evidence of actual losses.
Some proof of damages or loss is important, particularly in commercial cases. Despite the expectation that judges will do their best, sometimes their best is not a win for anybody.
An example is found in Kenora Flooring Center v. Degagne a not unusual sort of commercial case. The case involved flooring installed in an office/clinic building by a flooring sub-contractor. There was evidence that some of the flooring was defective, but not the extent of the deficiencies. Some of the flooring required replacement. The sub-contractor was addressing the deficiencies when it was asked to leave the site.
The trial judge found that:
On the evidence, I am satisfied that some coving needs to be re-adhered to the walls. I also conclude that some seams are unsatisfactory. However, I do not have satisfactory evidence to determine the extent of either problem, the preferred methods to remedy and the costs to do so.
So, he adds: “This is not a situation of difficulty of assessment. Rather, it is a situation of absence of evidence.”
And the result: “…in the circumstances, the best that the court can do is to dismiss both the claim and counterclaim.”
Not even nominal damages were awarded.
This is despite the fact that there was evidence that some of the flooring at least was defective.
The Defendant was found to be the biggest loser in the case and the Plaintiff received $10,000.00 in costs. I am sure that the Plaintiff did not consider this much of a win.
WHAT WEILERS LLP CAN DO TO HELP YOU
The litigation team at Weilers will work with you to identify and preserve the necessary evidence to prove your losses, both in terms of documents (including electronic documents) and witnesses. We will prepare your case professionally to make it easy for the judge to award you the damages that you deserve. If that sounds like what you need, give us a call and see if we are the right lawyers for you.