Punitive Damages
| Author | Jamie Cassels |
| Profession | Professor of Law University of Victoria |
| Pages | 256-280 |
CHAPTER
8
PUNITIVE
DAMAGES
A.
INTRODUCTION
AND
TERMINOLOGY
1)
Punitive
Damages
Distinguished
from
Compensatory
Damages
Punitive,
or
exemplary, damages
are
distinct
from
compensatory,
and
even
aggravated, damages. They
are
awarded against
a
wrongdoer,
after
full
compensation
has
already been made
for the
harm caused.
They
are
intended
to
punish
the
wrongdoer
for
particularly egregious
conduct
and to
provide additional deterrence. Punitive damages,
then,
are not
grounded
in
compensation
or in
corrective justice. They
are
grounded
in
retributive justice.
The
Supreme Court
of
Canada
explained,
in
Vorvis
v.
Insurance
Corp.
of
British
Columbia:
Punitive damages,
as the
name would indicate,
are
designed
to
pun-
ish.
In
this,
they constitute
an
exception
to the
general common
law
rule
that damages
are
designed
to
compensate
the
injured,
not to
punish
the
wrongdoer. Aggravated damages will frequently cover
conduct which could also
be the
subject
of
punitive damages,
but the
role
of
aggravated damages remains
compensatory.1
1
[1989]
1
S.C.R 1085
at
1098-99
[Vorvis].
256
Punitive Damages
257
As
the
Court noted, punitive damages will
often
arise
out of the
same malicious conduct that gave rise
to
aggravated damages. However,
they
are
conceptually distinct, since aggravated damages
are
compensa-
tory.
One
Court
has
suggested that
the
distinction
can be
stated thus:
"aggravated
damage
for
conduct that shocks
the
plaintiff:
exemplary
(or
punitive) damages
for
conduct which shocks
the
jury."2
2)
General Principles
of
Availability
Punitive damages
are
awarded
in
tort actions where
the
court
feels
that
the
award
of
compensatory damages will
not
achieve
sufficient
deter-
rence
and the
defendant's actions must
be
further
punished. They
are
triggered
by
conduct that
is so
high-handed, malicious, vindictive,
and
oppressive
as to
"offend
the
court."
In
Hill
v.
Church
of
Scientology
of
Toronto,
the
Supreme Court
of
Canada explained that
[p]unitive
damages
may be
awarded
in
situations where
the
defen-
dant's misconduct
is so
malicious, oppressive
and
high-handed that
it
offends
the
court's sense
of
decency. Punitive damages bear
no
rela-
tion
to
what
the
plaintiff
should receive
by way of
compensation.
Their
aim is not to
compensate
the
plaintiff,
but
rather
to
punish
the
defendant.
. . .
They
are in the
nature
of a
fine
which
is
meant
to act
as a
deterrent
to the
defendant
and to
others
from
acting
in
this man-
ner.
It is
important
to
emphasize that punitive damages
should
only
be
awarded
in
those circumstances where
the
combined award
of
general
and
aggravated damages would
be
insufficient
to
achieve
the
goal
of
punishment
and
deterrence.3
The
forms
of
action continue
to
make
a
difference
when
it
comes
to
the
common
law
approach
to
punitive damages. Historically, punitive
damages were never available
in a
simple
breach
of
contract
case
unless
the
facts
could also support
a
tort action. Even today, punitive damages
are
practically never available
in
simple contract actions. They
are
more
widely available
in
tort claims, though still
on a
restricted basis.
Therefore,
this chapter will deal with tort
and
contract separately.
2
Muir
v.
Alberta (1996),
132
D.L.R.
(4th)
695 at 714
(Q.B.),
citing
Salmond
on the
Law of
Torts.
3
at
1208
[Hill].
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