Punitive Damages

AuthorJamie Cassels
1) Punitive Damages Distinguished from Compensatory
Punitive, or exemplary, damages are di stinct from compensatory, and
even aggravated, damages. They are awarded against a wrongdoer after
full compensation has a lready been made for the harm caused. They are
intended to punish the wrongdoer for particul arly egregious conduct,
to promote respect for the rule of law, and to provide additional deter-
rence.1 Punitive damages, then, are not grounded in compens ation or in
corrective justice. They are grounded in retributive just ice and serve the
goals of punishment, deterrence, and denunciation.2 An award should
promote one or more of these objectives.3 The Supreme Court of Canada
explained, in Vorvis v Insurance Corp of British Columbia:
Punitive dam ages, as the name would indic ate, are designed to pun-
ish. In this, t hey constitute an exception to the gener al common law
rule that da mages are designed to compe nsate the injured, not to
1 See Whiten v Pilot Insurance Co, [2002] 1 SCR 595 at para 36 [Whiten]; Kud dus v
Chief Constable of Le icestershire, [2001] UKHL 29, [2001] 3 All ER 193 at para 79
(HL), Lord Hutton [Kuddus].
2 Whiten, ibid at par as 43 and 68.
3 Ibid at para 71.
Punitive Damages 321
punish the wrongdoer. Agg ravated damages w ill frequently cover
conduct which could also be the s ubject of punitive damages, but the
role of aggravated dam ages remains compensatory.4
As the Court noted, punitive dam ages will often arise out of the
same malicious conduct that gave ris e to aggravated damages. However,
they are conceptually dist inct, since aggravated dam ages are compen-
satory. One court has suggested that t he distinction can be stated t hus:
“aggravated damage for conduct that shocks the plai ntiff: exemplary (or
punitive) damages for conduct which shocks the jury.”5 In comparing
aggravated damages and punitive damages in White n, LeBel J stated:
Aggravated d amages served the t raditional corrective purpose of t he
common law: to make the pl aintiff whole for injuries to i nterests
that are not properly compens able by ordinary da mages. Punitive
damages ta rget not loss, but conduct . . . . The defendant’s wrong
must then be considered d irectly and separately in order to ass ess its
severity and, accord ingly, the appropriate degree of puni shment. The
other forms of dam ages look to the loss of the plaint iff, but punitive
damages refer es sentially to the deg ree of culpability of the defend-
ant’s action.6
2) General Principles of Availability
Punitive damages are awarded where the combined effect of compensa-
tory, including aggravated, damages w ill not achieve suff‌icient deter-
rence, and the defendant’s actions must be further punished.7 They are
triggered by conduct that is so h igh-handed, malicious, vindictive, and
4 [1989] 1 SCR 1085 at 1098–99 [Vor vis ].
5 Muir v Alberta (1996), 132 DLR (4t h) 695 at 714 (Alt a QB), citing Salmond on
the Law of Torts. See also Tomah v Sylliboy, 2010 NSSC 439 [Tomah ], where the
defendants con fronted the plaintiff, dou sed her with gasoline, set her on f‌i re,
followed her to her bathro om, and prevented her from putting out the f‌ir e in
the presence of her t hree children. In award ing aggravated dam ages, the court
noted: “the attack on t he plaintiff by the defend ants was sudden, unprovoked
and brutal a nd that the plaintiff s uffered loss of dignity an d humiliation.” Ibid
at para 3 0.
6 Whiten, above note 1 at para 157.
7 See Farallon Mining Ltd v Arnold, 2011 BCSC 1532 at para 112, involving
Internet defam ation, where the plaintif f was awarded $40,000 in genera l dam-
ages. The court rejected t he plaintiff’s cla im for punitive damages bec ause,
among other thi ngs, an award of general dama ges would have had a signif‌icant
impact on the defenda nt’s already diff‌icult f‌in ancial situation, and ther e was no
need for deterrence or denunc iation.
oppressive as to “offend the court.” In Hill v Church of Scientolog y of
Tor on to , the Supreme Court of Canada explai ned that
[p]unitive damages may be awarded i n situations where the defend-
ant’s misconduct is so ma licious, oppressive and high-ha nded that
it offends the court’s sens e of decency. Punitive damages be ar no re-
lation to what the plai ntiff should receive by way of compensat ion.
Their aim is not to compens ate the plaintiff, but rat her to punish
the defendant . . . . They are i n the nature of a f‌ine which is meant to
act as a deterrent to the defend ant and to others from acting i n this
manner. It is importa nt to emphasize that pun itive damages should
only be awarded in tho se circumstance s where the combined award
of general and aggr avated damages would be in suff‌icient to achieve
the goal of punishment a nd deterrence.8
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 c ase unless
the facts could also support a tort act ion. Even today, punitive damages
are practically never avail able in simple contract actions. They are more
widely available in tort clai ms, though still on a restricted basis. There-
fore, this chapter will de al with tort and contract separately.
3) Reasons for the Limited Availability of Punitive
The very limited availabil ity of punitive damages in the common law is
because they devi ate from the primary pur pose of the common law,
which is simply to compensate plainti ffs. Simple breaches of contract,
and many inadvertent tort s such as negligence, rarely involve serious
moral turpitude. Where the defendant inadvertently harms the pla in-
tiff, the goals of both corrective justice and deterrence are fully ser ved
by a compensatory damages award.
Even where the defendant’s conduct is morally blameworthy or rep-
rehensible, it is generally not the domain of the civi l lawsuit to punish.
Where wrongful activities may merit additional punishment, the mat-
ter is typical ly thought to be within the domain of cr iminal law and
covered by the exhaustive provisions of the Criminal Code. Indeed, in
Canada, common law cri minal offences have long been abolished by
the Criminal Code.9
8 [1995] 2 SCR 1130 at 1208 [Hill].
9 Criminal Code, RSC 1985, c C-46, s 9(a).

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