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Damages - Punitive (4). 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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