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Damages - Punitive Damages (2). Baker v. Blue Cross Life Insurance Company of Canada
In Baker v. Blue Cross Life Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers the quantum of punitive damages, particularly in an insurance context:(c) Quantum
[32] Little was said in oral argument regarding the quantum of punitive damages other than to assert that they are too high. I disagree. Punitive damages are designed to punish wrongful conduct, to denounce that misconduct, and to act as a deterrent for future misconduct.
[33] Deterrence plays an important role when dealing with claims against insurance companies. As Laskin J.A. noted in the Court of Appeal for Ontario decision in Whiten v. Pilot Insurance Co. (1999), 1998 CanLII 1539 (ON CA), 41 O.R. (3d) 641 (C.A.), at p. 659, rev’d 2002 SCC 18, [2002] 1 S.C.R. 595,[V]indicating the goal of deterrence is especially important in first-party insurance cases. Insurers annually deal with thousands and thousands of claims by their insureds. A significant award was needed to deter Pilot and other insurers from exploiting the vulnerability of insureds, who are entirely dependent on their insurers when disaster strikes. [34] Deterrence is impossible unless the punishment is meaningful. I take judicial notice of the fact that Blue Cross is a large insurance corporation. While a punitive damages award of $1.5 million might be devastating to a personal defendant or a small business, it is little more than a rounding error for Blue Cross. Indeed, it is difficult to envision how an award of anything less than $1.5 million would even garner the attention of senior executives, let alone deter future misconduct.
[35] Another point worth emphasizing is that there was ample evidence for the jury to conclude that the problems within Blue Cross are systemic. This was not a case of a rogue disability claim examiner. The many Blue Cross employees who touched this file took the same approach, which ignored the respondent’s rights under the policy. This evidence suggests that there may be many other claimants that may have been treated in the same manner by Blue Cross. The difference is that, unlike Ms. Baker, most claimants do not have the stamina to engage in long-term litigation.
[36] The fact that this appears to be a systemic approach to Blue Cross’ claims handling process reinforces why a significant award of punitive damages is required. Otherwise, a small award is effectively spread over all the other cases where claimants have decided that it is not worth suing to obtain the benefits they are legally entitled to receive. Put simply, a modest punitive damages award becomes a nominal cost of operating in a way that wrongly and systematically denies policyholders their legal right: see Whiten, at para. 72.
[37] There is no basis for appellate interference with the quantum of the punitive damages award. It was rationally connected to the evidence and the purposes of punitive damages. Further, it was required to deter similar misconduct by Blue Cross in the future. . Baker v. Blue Cross Life Insurance Company of Canada
In Baker v. Blue Cross Life Insurance Company of Canada (Ont CA, 2023) the Court of Appeal considers (and dismisses) an appeal against an large award of punitive damages, here in long-term disability litigation where the court questions the insurer's of good faith:[9] For the reasons discussed below, I would dismiss the appeal and grant leave to appeal costs but deny the costs appeal. In summary, the evidence at trial raised serious concerns regarding the manner in which several disability claim examiners and reviewers at Blue Cross processed Ms. Baker’s file. At best, it shows reckless indifference to its duty to consider the respondent’s claim in good faith and to conduct a good faith investigation, and at worst, a deliberate strategy to wrongfully deny her benefits.
[10] Given the claim for punitive damages, Blue Cross was on notice that how it handled this file would be a significant part of the trial. Yet, it elected to call only the last appeals specialist as a witness, whose involvement was limited to a review of the final decision not to reinstate benefits at the time of the change of the applicable definition of “total disability.” She was unable to explain several of the actions of her predecessors on the file.
[11] Because punitive damages are not at large, the jurisprudence permits appellate courts a greater scope and discretion when reviewing jury awards of punitive damages than an ordinary award of damages. However, Blue Cross must still demonstrate that the punitive damages award does not serve a rational purpose. In the instant case, Blue Cross elected not to call the most relevant witnesses to counter the evidence that it acted in bad faith. One of the consequences of this litigation strategy is that it does not have the evidence to meet its onus on the appeal.
[12] Further, there is nothing about the quantum of the award that warrants appellate interference. It was open to the jury to conclude that Blue Cross engaged in systemic and deliberate misconduct in handling Ms. Baker’s claim and that a significant punitive damages award was necessary to deter Blue Cross from conducting themselves in that fashion in the future.
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(b) Entitlement to Punitive Damages
[22] The evidentiary review includes an analysis of the evidence before the jury and the lack of evidence on critical aspects of Blue Cross’ conduct. Before examining that evidence, I turn first to a consideration of what the jury understood about punitive damages. As noted, the appellant takes no issue with the instructions given to the jury about punitive damages. Nonetheless, it is helpful to consider that instruction in determining whether the jury’s award of punitive damages is rationally connected to the evidence and the purposes of punitive damages.
[23] The instruction largely tracks the suggested elements of the charge outlined in Whiten, at para. 94. It states that such damages are “only to be awarded in exceptional circumstances ... to address the objectives of retribution, deterrence, and denunciation.” The jurors were also instructed that punitive damages should be imposed only “if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.” With regard to quantum, they were told that “punitive damages are given in an amount [that] is no greater than necessary to rationally accomplish these objectives” and that “judges and juries in our system have usually found that moderate awards of punitive damages which inevitably carry a stigma in the broader community, are generally sufficient.”
[24] Based on this instruction, the jurors understood the nature of punitive damages, when they were available, what they were meant to achieve, and the restraint that should be exercised in determining the quantum of the damages.
[25] Blue Cross’ primary submission is that it acted in good faith despite its erroneous assessment of whether the respondent met the definition of “total disability” under the policy. In other words, it has a right to be incorrect without being liable for punitive damages.
[26] The second part of this submission is a strawman argument, as it is unassailable and is not an issue on the appeal. No one is suggesting that an error regarding the entitlement to long-term benefits automatically leads to an award of punitive damages. The problem with the submission is its factual premise that all that occurred was a good faith error. The actual issue is whether Blue Cross’ actions in dealing with the respondent’s claim meet the test for punitive damages. Its position, that the disability claim examiners sought out medical advice from Blue Cross’ medical experts and relied on that advice in good faith in handling the respondent’s file, is essentially a factual assertion. So is its assertion that its conduct cannot result in punitive damages because nothing was high-handed, malicious, arbitrary, or highly reprehensible in its conduct.
[27] The appellant also argues that this court has the complete record and is, therefore, in a position to evaluate the jury’s decision to award punitive damages. We indeed have all of the evidence that was before the jury. However, there are significant gaps in that evidence. As noted above, Blue Cross elected not to call as witnesses all but one of the appeals specialists. The result is that the jury never had evidence regarding why the representatives of Blue Cross acted the way they did and whether they considered other courses of action.
[28] There was ample evidence to support an award of punitive damages. Set out below are some examples in the record that would justify such an award:. Blue Cross stopped the payment of benefits on three separate occasions. On each occasion, it denied benefits first and then asked for additional documentation instead of first warning Ms. Baker of a potential cut-off and requesting additional documentation.
. Blue Cross relied on opinions from its contracted general practitioners, which it knew or ought to have known were incorrect. For example, on June 12, 2015, Blue Cross sent a Medical Consultant Referral Form to Dr. Knox, a contracted general practitioner, to provide a medical opinion on Ms. Baker’s condition. Blue Cross populated a section on the form summarizing Ms. Baker’s “History” based on her submitted medical documentation before sending it to Dr. Knox for review. Dr. Knox’s completed referral form, dated July 7, 2015, contained several misstatements of Ms. Baker’s condition contrary to the information Dr. Knox had been provided by Blue Cross. Blue Cross did not seek to clarify or address the flaws in this report. Instead, it relied on it as an accurate statement of her condition.
. Blue Cross selectively relied on evidence that supported the denial of benefits and ignored conflicting medical evidence. For example, when Ms. Baker’s benefits were denied on August 5, 2015, this decision was based on Dr. Knox’s July 2015 report rather than the evidence submitted by Ms. Baker’s doctors, which included the opinion, “I don’t believe she can return to work at this time, even on a part-time basis.” This opinion should have at least been addressed in Blue Cross’ decision to cut off benefits. Another example is in Blue Cross’ notes in Ms. Baker’s file on the level one review of her claim, dated October 12, 2016. These notes were also selective in the interpretation of Ms. Baker’s medical documentation. They reference conclusions from the reports completed by Dr. Bauman, dated August 2, 2016, that supported a denial of benefits and ignored evidence in the report that militated in favour of the payment of benefits.
. In the face of conflicting medical evidence, Blue Cross delayed obtaining an independent medical exam of Ms. Baker. It only sent Ms. Baker for a neuropsychological assessment with Dr. Kane in March 2016, over two and a half years after she suffered the stroke.
. Blue Cross distorted Dr. Kane’s neuropsychological assessment report in a way that supported the denial of benefits. Dr. Kane’s report stated:[I]t is expected that Ms. Baker would be able to return to a role as a Nutritionist in which she could meet with clients individually in a quiet environment and provide feedback individually or in written format and with minimal need for decision-making or feedback in speeded situations or amidst large groups. Whether such a role exists will need to be determined by her employer. Whether Ms. Baker would be able to perform such a role on a full-time basis in terms of fatigue and/or headache will need to be determined by her Physicians and/or Physiotherapist. Blue Cross repeatedly omitted the caveats in Dr. Kane’s report in their internal files and communications and in communications with Ms. Baker. For example, Blue Cross’ notes from January 2017, which supported the denial of the level two appeal, read:After reviewing all the information on file, we conclude that the [claimant] has the ability to perform the previously identified alternate occupations, as confirmed by the medical consultant. According to the neuropsychologist’s assessment, the [claimant] would even have the ability to do her previous job, with some modifications. As the [claimant] would be able to do her previous job with modifications and also the alternative occupation of dietician and nutritionist, which meets the commensurate salary, the [claimant] does not meet the definition of total disability for any occupation. Dr. Kane did not identify that Ms. Baker could do her previous job with modifications. Rather, she indicated that even the potential to perform the work of a nutritionist was subject to significant qualifications.
. Blue Cross misread Ms. Kresak’s Transferable Skills Analysis report (“TSA”) in a way that supported the denial of benefits. On several occasions, Blue Cross misinterpreted the TSA, which identified only one suitable alternative occupation that satisfied the requirement of compensating Ms. Baker at least 60% of her pre-disability salary. For example, an email from Blue Cross to one of its medical consultants, dated December 21, 2016, stated that “6 alternative occupations were identified for the claimant.” Blue Cross later conceded that the average income depictions of five of the six occupations in the report were not commensurate with 60% of Ms. Baker’s pre-disability income.
. Blue Cross persisted in distorting Dr. Kane’s and Ms. Kresak’s reports even after the respondent’s lawyer wrote to it and pointed out the errors. [29] In the face of this evidence, Blue Cross asserts that, while it reached the wrong conclusion about Ms. Baker’s condition, it acted in good faith. It was open to the jury to accept this theory of the case. However, to do so, it would have had to ignore the coincidence that every time Blue Cross erred in handling the respondent’s file, it was to her detriment and to the benefit of Blue Cross.
[30] Overall, we see repeated instances of the Blue Cross team ignoring information, misinterpreting experts’ reports, and relying on the ill-informed advice of their contracted doctors to deny benefits. In effect, they created a closed loop of information that ignored contrary information and created a counter-narrative based on their misinterpretation of the relevant data. This is a pattern of misconduct that, at best, shows reckless indifference to its duty to consider the respondent’s claim in good faith and conduct a good faith investigation, and at worst, demonstrates a deliberate strategy to wrongfully deny her benefits, regardless of the evidence that demonstrated an entitlement.
[31] These examples or any combination offer a sufficient basis to award punitive damages. Jurors could have concluded that Blue Cross was not just cavalier in treating the respondent’s claim but that it undertook a deliberate strategy to wrongfully deny her the benefits she was entitled to under the policy. The fact that Blue Cross failed to call the critical witnesses to provide the context about their handling of the file could further serve to support a finding that the conduct was deliberate. . ABDOU v. Governing Council of UOT
In ABDOU v. Governing Council of UOT (Div Court, 2023) the Divisional Court briefly summarizes the basics of punitive damages:[62] Punitive damages are awarded against a defendant in exceptional cases only for malicious, oppressive, and high-handed misconduct that offends the sense of decency of the court. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 SCR 595, at paras. 36, 94. . Ahluwalia v. Ahluwalia
In Ahluwalia v. Ahluwalia (Ont CA, 2023) the Court of Appeal considered the interaction between tort and statutory family law. In these quotes the court comments on a requirement of both aggravated and punitive damages law:[132] I agree with the trial judge that the appellant’s conduct called for condemnation. But the trial judge failed to take a required step in the analysis of whether an award of punitive damages was warranted. She did not address, and made no finding that the award of general and aggravated damages was insufficient to achieve the goals of denunciation and deterrence. This was an error. In Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 94, the court set out the following principles for an award of punitive damages:(1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. (3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, (4) having regard to any other fines or penalties suffered by the defendant for the misconduct in question. (5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation. (6) Their purpose is not to compensate the plaintiff, but (7) to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened. (8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and (9) they are given in an amount that is no greater than necessary to rationally accomplish their purpose. (10) While normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages. (11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient. [Emphasis added.] [133] A proper consideration of the Whiten requirements in the context of this case does not justify an award of punitive damages because the compensatory and aggravated damages (in the amount sought by the respondent) are sufficient to accomplish the objectives of condemnation. It was unreasonable and disproportionate to add punitive damages in the amount of an additional 50% of the total claimed, without any explanation. I would allow the appeal with respect to the punitive damage award, thereby reducing the total damages to $100,000. This is not to say that where a tort is made out in circumstances such as these punitive damages are never justified. They may very well be, where the trial judge is satisfied that the deterrent and denunciatory effect of the other heads of damages is insufficient to accomplish the objective of condemnation. . Levac v. James
In Levac v. James (Ont CA, 2023) the Court of Appeal briefly characterizes the criteria for punitive damages, and where they may not be warranted even if those criteria are met:[96] Dr. James argues that the findings in this case do not meet the test established by the Supreme Court in Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36, which states that punitive damages are appropriate only in “exceptional cases” involving “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”.
[97] The trial judge properly instructed himself on the test governing punitive damages in Whiten. His conclusion that Dr. James’ conduct constituted “a marked departure from ordinary standards of decent behaviour” is a finding of mixed fact and law entitled to deference.
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[101] Indeed, the trial judge referred to authority which emphasizes that if compensatory damages achieve the objectives of retribution, deterrence, and denunciation, punitive damages may not be warranted at all: see Performance Industries v. Sylvan Lake Golf and Tennis Club, 2002 SCC 19, [2002] 1 S.C.R. 678, at para. 87; Cavanaugh et al. v. Grenville Christian College et al., 2020 ONSC 1133, 58 E.T.R. (4th) 51, at para. 361, appeal dismissed, Cavanaugh (ONCA). In other words, there remains the theoretical possibility that the appropriate quantum of punitive damages in an individual case could be zero. . The Dominion of Canada General Insurance Company v. Nelson
In The Dominion of Canada General Insurance Company v. Nelson (Div Court, 2023) the Divisional Court noted that the doctrine of vicarious liability did not apply to ground an award of punitive damages on a vicarious basis, here to an employer:[53] Finally, the Supreme Court of Canada has made it clear that the doctrine of vicarious liability does not apply to claims for punitive damages. In its decision Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 SCR 3 McLachlin C.J explained that for a party to be found liable for punitive damages the reprehensible conduct had to be referrable to the party itself and could not flow vicariously through the conduct of an employee. . McFlow Capital Corp. v. James
In McFlow Capital Corp. v. James (Ont CA, 2021) the Court of Appeal considered the criteria for awarding punitive damages:[43] As noted by the trial judge, in deciding whether to make an award of punitive damages, the question is whether the defendant’s conduct was so outrageous that punitive damages are rationally required for deterrence. Trial courts have latitude in determining punitive damages, provided the amount serves a rational purpose, namely prevention, deterrence and denunciation: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 94-100; Richard v. Time Inc., 2012 SCC 8, [2012] 1 S.C.R. 265, at para. 190; Cinar Corporation v. Robinson, 2013 SCC 73, [2013] 3 S.C.R. 1168, at para. 134.
[44] Appellate courts should only intervene “where there has been an error of law or a wholly erroneous assessment of the quantum” of punitive damages, that is, if the amount awarded was not rationally connected to the purposes in awarding punitive damages: Richard, at para. 190; Cinar, at para. 134. . Eynon v. Simplicity Air Ltd.
In Eynon v. Simplicity Air Ltd. (Ont CA, 2021) the Court of Appeal considered the awarding of punitive damages in a jury trial:(a) The issue of punitive damages was properly left with the jury
[11] The trial judge properly told the jury they could award punitive damages “if the wrongful acts of the [appellant] toward [the respondent] were outrageous or reprehensible and offensive to ordinary standards of decent conduct in the community.” He told them: 1) that an award of punitive damages was very much the exception; 2) that such damages should be awarded only if there has been “high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”; 3) that the purpose of punitive damages is to deter similar misconduct in the future rather than provide compensation to the plaintiff; and 4) that punitive damages are generally given only when “misconduct would otherwise be unpunished or when other penalties suffered by the defendant are unlikely to adequately achieve the objectives of retribution, deterrence, and denunciation, which are normally the preserve of the criminal law”. He also told the jury that punitive damages should only be awarded in an amount that was no greater than necessary to rationally accomplish their purpose. The trial judge identified aspects of the defendant’s conduct that were relevant to the claim for punitive damages, as well as the evidence of the defendant’s witnesses denying or explaining that conduct. The trial judge referred to the factors relevant to the determination of a proportionate amount of punitive damages.
[12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. The jury could properly regard these instructions as misconduct offensive to ordinary standards of decent conduct expected of an employer and could be properly described as highly reprehensible. Such instructions contravene s. 22.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. (“WSIA”), and constitute an offence under s. 155.1 of WSIA. Had the appellant been prosecuted and a penalty imposed under s. 158(1) of WSIA the need for punitive damages would have been lessened: see Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 123.
(b) There was no error in the trial judge’s instructions on punitive damages
[13] The appellant recognizes that the trial judge cited the boilerplate punitive damages elements listed in Whiten, but submits he failed to give the jury guidance on how to apply those elements to the facts of this case. We disagree.
[14] The trial judge’s instructions, summarized above, adequately equipped the jury to assess the appellant’s conduct. The appellant’s reliance on Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 2002 CanLII 45070 (ON CA), 61 O.R. (3d) 481, leave to appeal refused, [2002] S.C.C.A. No. 488, a breach of contract case, is misplaced as no independent actionable wrong was required in this tort case: Whiten, at para. 149, per LeBel J. (dissenting, but not on this point).
[15] The appellant also submits that the trial judge erred by failing to provide any guidance on what an appropriate range for punitive damages would be. The appellant argues the failure to provide such guidance invites disproportionate awards.
[16] Absent the agreement of counsel on a range for punitive damages, it would have been improper for the trial judge to suggest one to the jury. We note that the appellant’s trial counsel did not ask for the jury to be given guidance on a range of punitive damages, nor did he provide one to the jury himself in closing submissions, despite confirming with the trial judge that he would be permitted to do so. We do agree it would have been preferable for the trial judge to have asked the jury to briefly indicate the basis for their award of punitive damages as he had asked them to indicate the basis for their award of general damages.
(c) The appellant is liable for punitive damages resulting from the conduct of its employees
[17] The appellant advanced the proposition that an award of punitive damages had to be based on its own conduct and could not be based on the conduct of its employees (in this case the supervisors Gary and Doug). The appellant relied on this court’s decision in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, where Laskin J.A. distinguished between “reprehensible conduct specifically referable to the employer” and the conduct of its supervisor: at para. 82. The employer and the supervisor were both defendants in Boucher and the damage awards against each were discussed separately. The problem in that case was that the trial judge invited the jury to base its award of punitive damages against Wal-Mart on its vicarious liability for an independent actionable wrong that was committed by its employee – the intentional infliction of mental suffering (and in respect of which the employee defendant was found liable for $100,000 in damages). Laskin J.A. commented that this wrong was never tied by the trial judge to Wal-Mart’s own conduct in failing to enforce its workplace policies. After considering that conduct, he concluded that Wal-Mart’s own conduct warranted an award of punitive damages, but he reduced the punitive damages awarded by the jury after considering the significant compensatory amounts awarded, including aggravated damages, and the fact that Wal-Mart was vicariously liable for the amounts awarded against its employee.
[18] In the present case, by contrast, only the employer was named as a defendant. There was no obligation to find an “independent actionable wrong”, and the conduct of Gary and Doug occurred in the course of their employment as the respondent’s supervisors who had been left in charge of the workplace in the absence of the appellant’s owners. There was no question that the conduct of the supervisors was the conduct of their employer, the appellant. Moreover, the actions of Gary and Doug occurred within what the jury had determined was “a culture within the company whereby employees failed to place adequate importance on best safety practices”. Accordingly, we do not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel.
(d) The quantum of the award is not irrational and inordinately large
[19] The appellant properly points out that a less deferential standard applies to appellate review of jury awards of punitive damages than to jury awards of general damages: Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, at paras. 56-58. Appellate review of a jury award of punitive damages furthers the coherence of the administration of justice by ensuring that the award serves a rational purpose. However, in order to interfere with a jury punitive damages award, the reviewing court must regard the award, when added to the compensatory damages, to be so “inordinately large” that it exceeds what is rationally required to punish the defendant: Rutman, at para. 58; Whiten, at paras. 109, 128.
[20] In this case, we are not persuaded the jury’s award of punitive damages is so inordinately large that it exceeds what is rationally required to punish the appellant. As noted, the evidence was that the appellant had not been penalized in another forum for instructing the respondent to falsely report the accident happened at home. The jury could properly regard this conduct as sufficiently illegal and reprehensible to warrant an award of this magnitude to deter similar misconduct in the future.
[21] This is one of those exceptional cases in which the relationship between the punitive damages award and the general damages award is weak. In this case, the trial judge’s instructions premised the punitive damages award on the appellant’s conduct after the accident and not on its negligence which contributed to the accident. In that sense, the punitive and general damage awards had separate bases. The focus of the award of punitive damages was on the appellant’s misconduct in the context of the surrounding circumstances, and not on the circumstances leading to the respondent’s injury. This is however entirely proper. Punitive damages are awarded to sanction a defendant’s misconduct, and not to compensate a plaintiff: see Whiten, at paras. 94, 127.
(e) The punitive damages award should not be reduced by contributory negligence
[22] In awarding punitive damages, the jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted. There is no basis for reducing the punitive damages award based on contributory negligence.
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