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Civil Litigation Dicta - Pleadings - Damages. Kew Estate v. Konarski
In Kew Estate v. Konarski (Ont CA, 2025) the Ontario Court of Appeal allowed an appeal, here where the defendant was "found liable for the torts of conversion and detinue and was ordered to return the vehicles to the estate".
The court considers aggravated and punitive damages, here in the context of pleadings uncertainty and an abandonment of the punitive damages claim:(4) The award for aggravated damages was improper
[36] The respondent made the decision to abandon a claim for punitive damages prior to trial, and it did not expressly claim aggravated damages. The appellant argues that in awarding aggravated damages, the trial judge was circumventing this strategic decision and effectively awarding punitive damages in order to denounce and punish the appellant. The appellant also takes issue with the trial judge accepting that the feelings of Mr. Kew’s children were relevant to the analysis, contending they were not parties to the action.
[37] The trial judge was alive to the fact that a claim for aggravated damages was not specifically pleaded but found that such damages fell under the general category of “damages suffered by the Plaintiff as a result of the conversion”, which was pleaded. He concluded that the appellant would not have been taken by surprise by an award for feelings of betrayal and hurt inflicted upon the estate, more particularly towards Ms. Kew as the estate administrator and Mr. Kew’s children as the estate’s two primary estate beneficiaries.
[38] Aggravated damages are awarded where “the reprehensible or outrageous nature of the defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff's feelings”: McIntyre v. Grigg, 2006 CanLII 37326 (ON CA), 83 O.R. (3d) 161 (C.A.), at paras. 50-51. A claimant need not specifically plead them so long as the defendant is not taken by surprise: Lewis N. Klar et al., Remedies in Tort (Toronto: Thomson Reuters, 2021), at § 30:9; Tom v. Truong, 2002 BCSC 643, [2002] B.C.T.C. 643, at para. 107, aff’d 2003 BCCA 387, 16 B.C.L.R. (4th) 72. The trial judge determined that an award for aggravated damages was appropriate in this case because it would compensate for the hurt feelings experienced by the estate beneficiaries as a result of the appellant’s abuse of a special position of trust when Ms. Kew and Mr. Kew’s children were in a state of vulnerability, which would have been prolonged by this litigation.
[39] I do not agree that the trial judge improperly substituted aggravated damages for punitive damages. Aggravated damages may and often does cover conduct that could also be subject to punitive damages: Vorvis v. Insurance Corp. of British Columbia, 1989 CanLII 93 (SCC), [1989] 1 S.C.R. 1085, at p. 1099. Neither is there any other basis to set the award aside. The reprehensible nature of the appellant’s conduct was front and centre in the litigation as was its impact on Mr. Kew’s family. The appellant could not have been taken by surprise. Furthermore, although the party to the litigation is the estate of Mr. Kew, the trial judge did not err in considering the emotional distress that the appellant caused to the estate beneficiaries. To conclude otherwise would mean that aggravated damages could never be awarded to an estate litigant. This court was not provided with any authority in support of such a proposition.
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