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Damages - Punitive (4). Foster v. Prado [when not needed]
In Foster v. Prado (Ont CA, 2026) the Ontario Court of Appeal considered when punitive damages may not be needed:[27] Nor is there any reversible error in the award of punitive damages to Foster. Punitive damages may be imposed when there has been high-handed conduct that marks a departure from ordinary standards of decent behaviour: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36. The motion judge found that Prado engaged in conduct falling within that description. The quantum awarded is reasonably proportionate to the harm caused, the degree of misconduct, and other relevant factors: Whiten, at paras. 71 and 74. There is no basis for appellate interference.
[28] However, the inclusion of Capital Canada as a joint recipient of the punitive damages was an error of law and must be set aside. Punitive damages are awarded only where other remedies granted are inadequate to achieve the objects of retribution, deterrence and denunciation: Whiten, at para. 74. The award of compensatory and punitive damages to Foster already addressed those purposes. As such, making Capital Canada an additional payee of the same punitive damages lacked a rational connection to the damages’ purpose. The motion judge’s stated goal of estopping Prado from asserting a constructive dismissal claim lies outside the purpose of a punitive damages award. . Sanasie v. Chateramdas
In Sanasie v. Chateramdas (Ont Div Ct, 2026) the Ontario Divisional Court dismissed two appeals related to title and mortgage fraud, here brought against orders "granting partial summary judgement, setting aside both the transfer of the home and registration of the mortgage, and ordered punitive damages to be paid by the adult child".
Here the court considers the law of punitive damages, and it's quantum:[41] The appellants also submit that the motion judge failed to consider and weigh the various factors set out in Whiten v. Pilot Insurance Co., 2002 SCC 18, 58 O.R. (3d) 480.
[42] The appellant refers to the factors set out by in Whiten by Binnie, J. at paragraph 113a. Whether the misconduct was planned and deliberate;
b. The intent and motive of the defendant;
c. whether the defendant persisted in the outrageous conduct over a lengthy period of time;
d. whether the defendant concealed or attempted to cover up its misconduct;
e. the defendant's awareness that what he or she was doing was wrong;
f. whether the defendant profited from its misconduct; and
g. whether the interest violated by the misconduct was known to be deeply personal to the plaintiff. ....
[45] Punitive damages are awarded in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 196. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour. Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will already have been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment).
....
Quantum:
[51] The standard of appellate review applicable to a trial judge's award of punitive damages is whether "a reasonable jury, properly instructed, could have concluded that an award in that amount, and no less, was rationally required to punish the defendant's misconduct": Whiten, at para. 96 and see para. 107.
[52] The award of punitive damages need not be so large as to shock the appellate court's conscience before it may interfere; it is sufficient if the award's size offends the court's sense of reason: see Pate Estate v. Galway-Cavendish and Harvey, 2013 ONCA 669, 117 O.R. (3d) 481, at para. 99.
[53] There is no formulaic or mechanical approach in awarding damages: Whiten, at para. 73. An appellant court is entitled to intervene if the award of damages exceeds the outer boundaries of a rational and measured response to the facts of the case: Whiten, at para. 76. The key considerations are rationality and proportionality of the award.
[54] The appellant refers to Pate Estate, wherein the Court of Appeal reviewed the range of punitive damages awarded by their Court and concludes that there is a wide range. Ultimately, the Court of Appeal decided that there is not a lot of assistance in the review of the cases, other than observing that there is a spectrum of punitive damage awards reflecting a spectrum of misconduct and that it is hardly surprising that especially vile misconduct by someone in a position of power seriously impacting an individual tends to draw larger punitive damages awards: Pate, at para. 145.
[55] In other words, the more reprehensible the conduct, the higher the award. In this case, Melissa took advantage of her vulnerable and elderly parents, and her fraudulent and deceitful actions would have resulted in them being evicted from their own home. Melissa then continued her charade by swearing a false affidavit and doctoring and fabricating documents. This would all indicate a higher award of damages. As set out above, in applying the facts of this case to the factors set out by Justice Binnie at para. 113 of Whiten, it would indicate a higher quantum of damages.
[56] As explained by the Supreme Court in Whiten and discussed above, proportionality is related to the blameworthiness of the defendant's conduct, the degree of vulnerability of the plaintiff, the harm or potential harm directed specifically at the plaintiff, the need for deterrence, other penalties paid by the defendant and the advantage wrongfully gained by the defendant: Whiten, at paras. 110-14, 116-19 and 125-26.
[57] In Whiten, the jury’s award of $1 million in punitive damages was upheld by the Court. Justice Binnie concluded that while he would not have ordered $1 million in damages, the award is within the rational limits. The award is not so disproportionate as to exceed the boundaries of rationality.
[58] From reading the Decision, it is clear that the motion judge considered the blameworthiness of Melissa, the Chateramdas’ age and vulnerability, the relationship between the parties, the potential harm to the Chateramdas and the need for deterrence.
[59] Punitive damages awards are “designed to punish wrongful conduct, to denounce that misconduct, and to act as a deterrent for future misconduct. […] Deterrence is impossible unless the punishment is meaningful”: Baker v. Blue Cross Life Insurance Company of Canada, 2023 ONCA 842, 491 D.L.R. (4th) 164 (“Baker”) at paras. 32 and 34. The punitive damages awarded in this case are reasonable, proportional, and rational.
[60] In considering the facts of this case as set out above, I find that the quantum of damages is well within the range and does not exceed the boundaries of rationality or proportionality.
[61] Melissa does not get ‘bonus marks’ for acknowledging the fraudulent action only once she had been caught and had no way to get out of her predicament. Ten thousand dollars does not satisfy the objective of retribution, deterrence and denunciation. . ITCAD Tech Inc. v. Patel et. al.
In ITCAD Tech Inc. v. Patel et. al. (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, here involving a cross-claimed case where the motion court granted to plaintiffs [Patel] "summary judgment ... on their claim for the two months pay that had been withheld and awarded them punitive damages" and also found that the plaintiffs "had breached the non-competition clause in the contract between the parties and awarded" damages to the the defendants [ITCAD] (plaintiffs by counterclaim).
In this context, the court considers issues of punitive damages:[28] ITCAD submits that the motion judge failed to apply the correct legal test when he awarded punitive damages. This test requires a finding that the conduct at issue represents “a marked departure from ordinary standards of human decency”: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 36. ...
....
[30] .... The motion judge considered the appropriate test. In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, the Ontario Court of Appeal set out the following three legal requirements from Whiten, for an award of punitive damages in the employment context. First, the conduct must be “reprehensible”, “‘malicious, oppressive and high-handed’ and ‘a marked departure from ordinary standards of decent behaviour.’”: Boucher, at para. 79. Second, the award must be “rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation”: Boucher, at para. 79. Third, “[t]he plaintiff must show that the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract”: Boucher, at para. 80. A breach of the duty of good faith and fair dealing can constitute such an actionable wrong: Boucher, at paras. 81-83.
....
[32] Amongst the factors cited in para. 94 of Whiten are the following:(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. ....
[35] In Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 197, the Supreme Court of Canada confirmed, as ITCAD points out, that “courts have a much greater scope and discretion on appeal” when it comes to punitive damages. As put by the Supreme Court, “[t]he appellate review should be based upon the court’s estimation as to whether the punitive damages serve a rational purpose.” ....
....
[37] With respect to the third requirement for punitive damages, the motion judge implicitly found that ITCAD’s withholding of compensation constituted a breach of ITCAD’s duty of good faith and fair dealing when his statement regarding the unacceptability of ITCAD’s conduct is followed by the following sentence: “The law is clear in the field of employment law that the employer has an implied duty of good faith and fair dealing.”: Motion Judge’s Decision, at para. 27. ITCAD had total control over the receipt and payment of the Consultants’ compensation for their work. This is a key aspect of the vulnerability and imbalance of power inherent in an employment relationship that drives the implied duty of good faith and fair dealing recognized by the Supreme Court of Canada in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701. Although ITCAD submits that the motion judge erred by applying authorities that dealt with punitive damages in the employment context to an independent contractor, in my opinion, the motion judge did little more than accurately note the factual similarities that existed in the circumstances.
....
[39] In terms of quantum, the motion judge awarded damages in an amount equal to approximately fifty percent of the amount of earnings knowingly withheld. He found that this amount was appropriate to “deter others from similar misconduct in the future”: Motion Judge’s Decision, at para. 29, citing Whiten, at para. 94. ITCAD argues that the damages awarded were excessive, while the Consultants submits that they should have been higher. Making an assessment as to what amount of damages is sufficient to deter the conduct from happening again is a discretionary exercise involving an assessment as to what number will rationally satisfy the purpose of deterrence. An amount that is too small “might simply be regarded as a licence fee…” to continue the misconduct at issue: Hill v. Church of Scientology, at para. 199. I am not satisfied that the motion judge erred when he assessed the amount at the number he did. . 1048547 ONTARIO INC. v. FROMFROID S.A.
In 1048547 ONTARIO INC. v. FROMFROID S.A. (Fed CA, 2025) the Federal Court of Appeal dismissed a patent appeal, here from an award of patent infringement and punitive damages.
Here the court considered a punitive damages issue:[11] Skotidakis argues that even if its witnesses were deliberately lying, such conduct did not rise to the level of "“highly reprehensible misconduct”" required to award punitive damages as set out in Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] 1 SCR 595 (Whiten). I remain unconvinced. Justice Grammond clearly referred to the factors set out in Whiten at paragraph 107 of his decision in determining that the misconduct of Skotidakis was highly reprehensible and also found that the aggravating circumstances warranting punitive damages were essentially Skotidakis’ concealment of the infringement from the Court by presenting various pieces of evidence intended to mislead. There is little doubt that attempts to mislead the Court may form the basis for punitive damages (Chanel S. de R.L. v. Lam Chan Kee Company Ltd., 2016 FC 987 at para. 76; affirmed in Lam v. Chanel S. de R.L., 2017 FCA 38 at para. 11). It must be kept in mind that this is not a case of a debate over the construction of claims in which reasonable people may differ. I should also mention that the trial judge specifically refrained from awarding elevated costs on account of having already awarded punitive damages (see the Cost Award at para. 6).
[12] I have not been convinced by Skotidakis that the trial judge made any reviewable error in his evaluation of, or inferences drawn from, the evidence as presented to him or in the assessment of punitive damages. For the most part, Skotidakis is asking the Court to reweigh the evidence; this is not the role of the Court. It may be that the amount of $200,000 is on the higher end of the scale for punitive damages for cases such as this one, however under the circumstances, I am not inclined to interfere with the trial judge’s assessment as I have not been convinced by Skotidakis that such an amount was beyond the point of being "“rationally required to punish the defendant’s misconduct”" (Whiten at paras. 107‑108). It seems to me that Justice Grammond looked at the entirety of the evidence and called out what he clearly saw as a ruse on the part of Skotidakis to deliberately conceal the date upon which it had built the infringing refrigeration system, without necessarily having to determine that any one piece of evidence was falsified. Such factual conclusions based upon the inferences made by the trial judge are certainly within his bailiwick and not something with which this Court should easily interfere (Housen at para 24). . 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. . Beaumont v. Beaumont
In Beaumont v. Beaumont (Ont CA, 2025) the Ontario Court of Appeal considered punitive damages:[16] Regarding the quantum of punitive damages, the appellants assert that they are excessive and the ratio of punitive damages to compensatory damages in this case demonstrates the disproportionality or irrationality of the punitive damages award. This submission finds no support in the law of punitive damages. As the Supreme Court stated in Whiten v. Pilot Insurance Co., 2002 SCC 18, at para. 92, “punitive damages are directed to the quality of the defendant’s conduct, not the quantity (if any) of the plaintiff’s loss.” See also Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 196.
[17] There is no basis for this court to interfere with the quantum of punitive damages awarded. Punitive damages awards are “designed to punish wrongful conduct, to denounce that misconduct, and to act as a deterrent for future misconduct. […] Deterrence is impossible unless the punishment is meaningful”: Baker v. Blue Cross Life Insurance Company of Canada, 2023 ONCA 842, at paras. 32 and 34. The punitive damages awarded in this case are reasonable, proportional, and rational.
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