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Damages - Punitives

Filice v. Complex Services Inc. (Ont CA, 2018)

In this wrongful dismissal case the court expounds on the principles applicable to punitives damages:
Punitive damages

[56] I now turn to the trial judge’s award of punitive damages. An appellate court has a much broader scope for review on an appeal from an award of punitive damages. As Cory J. said in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at para. 197:
Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?
[57] Punitive damages are only to be awarded where compensatory damages are inadequate to accomplish the objectives of retribution, deterrence, and condemnation: Pate Estate v. Galway-Cavendish (Township), 2013 ONCA 669 (CanLII), 117 O.R. (3d) 481, at para. 211; and Rutman v. Rabinowitz, 2018 ONCA 80 (CanLII), at paras. 94-97 per curiam. Further, an award of punitive damages is exceptional. As Binnie J. said in Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] 1 S.C.R. 595, at para. 36:
Punitive damages are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that ”offends the court's sense of decency”.

[Citation omitted.]
[58] In this case, the trial judge simply stated (at para. 276):
In my opinion, the compensatory award in addition to any costs award does not rationally meet the objectives of retribution, deterrence and denunciation.
[59] The trial judge did not engage in any analysis of why the compensatory award that he decided on was inadequate to achieve those objectives. In failing to do so, he committed an error in principle. The fact remains that, insofar as the appellant was not justified in suspending the respondent without pay, it will pay for that error through the award of compensatory damages. On this point, it must not be forgotten that compensatory damages have a punitive element to them. As Binnie J. also said in Whiten, at para. 123:
Compensatory damages also punish. In many cases they will be all the “punishment” required. To the extent a defendant has suffered other retribution, denunciation or deterrence, either civil or criminal, for the misconduct in question, the need for additional punishment in the case before the court is lessened and may be eliminated.

[Original emphasis.].
[60] This same point was made in Pate Estate where Cronk J.A. said, at para. 214:
It is therefore incumbent on trial judges, when considering whether to award punitive damages and quantifying those damages where such an award is justified, to have regard to the punitive components of the compensation otherwise awarded to the plaintiff and the penalties otherwise imposed on the defendant. This did not occur in this case.

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