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Damages - Standard of Review. SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation
In SS&C Technologies Canada Corp. v. The Bank of New York Mellon Corporation (Ont CA, 2024) the Ontario Court of Appeal dismissed a contractual appeal, and here considers the SOR for appeal issues of damages:[81] When an appellate court reviews a damages award it does not require perfection. This is for the practical reason that damage awards often involve the exercise of discretion and do not always admit to a single correct figure; they are more often art than science. Even in the context of commercial disputes, where an award should presumably be subject to more mathematical rigor, trial judges are sometimes placed in a position where it is difficult to quantify a damages award with precision because the evidentiary record contains gaps. In such circumstances, what is required of a trial judge is to make a damages award that is rooted in the evidentiary record and free of legal error and palpable and overriding factual error or error of mixed fact and law. A trial judge who produces such an award will not be second guessed by an appellate court on the basis that it would calculate damages differently.
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(a) Standard of Review
[113] Appellate review of an award of damages is subject to the principles articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235: see Southwind v. Canada, 2021 SCC 28, [2021] 2 S.C.R. 450, at para. 154. This means that errors of law are reviewed on a standard of correctness, while errors of fact and errors of mixed fact and law are reviewed on a standard of palpable and overriding error.
[114] Despite this principle, appellate courts have expressed a general reluctance to interfere with damages awards. Appellate interference with a damages award is said to be “justified only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages”: TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, 314 O.A.C. 133, at para. 60. See also: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744, 87 O.R. (3d) 321, at para. 28; Extreme Ventures Partners Fund I LP v. Varma, 2021 ONCA 853, 24 B.L.R. (6th) 38, at para. 53, leave to appeal refused, [2022] S.C.C.A. No. 61.
[115] The reluctance to interfere with a trial judge’s damages assessment is perhaps best evidenced in the statement made by Wilson J. in Guerin v. The Queen, 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335, at p. 363: “…I do not think it is the function of this Court to interfere with the quantum of damages awarded by the trial judge if no error in principle in determining the measure of damages has been demonstrated ... The trial judge’s task was not an easy one but I think he “did the best he could”.”
[116] This approach to damages stems from two principal sources. First, damages quantification engages the exercise of discretion by a trial judge. Indeed, it often involves a series of discretionary decisions. Take for example a trial judge fixing damages in a personal injury case. They might have to determine damages for pain and suffering, attendant care, future care, and lost earnings based on their understanding of the facts of the case and the relevant caselaw. There is no single correct answer because the analysis is dependent on how a particular trial judge evaluates the impact of the injury on various categories of damages.
[117] Second, even in commercial disputes, where a trial judge may have fewer discretionary decisions to make, a judge may encounter difficulty in fixing a damages award because the evidentiary record does not provide an adequate basis to answer all the issues raised in the calculation of damages. However, while damages quantification may be inherently difficult, this does not excuse the claimant from leading evidence that is supportive of its claim. Finlayson J.A. described that obligation this way in Martin v. Goldfarb (1998), 1998 CanLII 4150 (ON CA), 41 O.R. (3d) 161 (C.A.), at p. 187, leave to appeal refused, [1998] S.C.C.A. No. 516:I have concluded that it is a well-established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best. [118] Applying these principles, we must review the trial judge’s damages award with considerable deference. The single overarching question that must be considered is: Did the trial judge do his best to assess damages on the available evidence or did he impermissibly award damages when none had been proven? In analyzing that question, we must be alert to errors in principle. I turn now to a consideration of the specific grounds of appeal. . Lyng v. Ontario Place Corporation
In Lyng v. Ontario Place Corporation (Ont CA, 2023) the Court of Appeal considered the appellate SOR for damage issues:[35] The standard for appellate interference with a damages award is an onerous one. An appellate court cannot intervene simply because it would have come to a different conclusion or because the appellant disagrees with the award: Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] 2 S.C.R. 430, at p. 431; S.M. c. Sternthal Katznelson Montigny, 2021 QCCA 673, at para. 12. Ontario Place must establish that the trial judge 1) made an error of principle or law; 2) misapprehended the evidence; 3) erred in finding there to be evidence on which to base his conclusion; 4) failed to consider relevant factors, or considered irrelevant factors; or 5) made a palpably incorrect or wholly erroneous assessment of damages: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80. . The Rosseau Group Inc. v. 2528061 Ontario Inc.
In The Rosseau Group Inc. v. 2528061 Ontario Inc. (Ont CA, 2023) the Court of Appeal considers the appellate standard of review for damages issues:[59] A trial judge’s assessment of damages attracts considerable deference on appeal. However, an assessment made on the basis of an error of principle or law may be interfered with on appeal: SFC Litigation Trust v. Chan, 2019 ONCA 525, 147 O.R. (3d) 145, at para. 112, leave to appeal refused [2019] S.C.C.A. No. 314. . Murphy v. Mullen
In Murphy v. Mullen (Ont CA, 2021) the Court of Appeal heard an appeal from a damages award (here, for trespass):[3] This court is not entitled to interfere with the trial judge’s damages award unless it is shown that she erred in law, she misapprehended the evidence, there was no evidence on which she could have reached her conclusion, she failed to consider relevant factors in the assessment of damages or considered irrelevant factors, or she otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of damages: Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80; Michel v. Spirit Financial Inc., 2020 ONCA 398, 151 O.R. (3d) 583. . Extreme Venture Partners Fund I LP v. Varma
In Extreme Venture Partners Fund I LP v. Varma (Ont CA, 2021) the Court of Appeal considered the standard of review for damages:[53] The jurisprudence recognizes that trial judges are not held to a standard of perfection in making damages awards. Appellate courts will not interfere with reasonable damages awards where they have an evidentiary basis, as damages cannot always be calculated with mathematical precision. Sometimes the trial judge must do the best they can in the circumstances: Penvidic v. International Nickel, 1975 CanLII 6 (SCC), [1976] 1 S.C.R. 267, at 280. An appellate court should interfere with a trial judge’s damages assessment only if it is “tainted by an error in principle, or is unreasonably high or low”: Whitefish Lake Band of Indians v. Canada (Attorney General), 2007 ONCA 744, 87 O.R. (3d) 321, at para. 28. See also 1758704 Ontario Inc. v. Priest, 2021 ONCA 588, at para. 70; Southwind v. Canada, 2021 SCC 28, 459 D.L.R. (4th) 1, at paras. 153-60. . Calin v. Calin
In Calin v. Calin (Ont CA, 2021) the Court of Appeal considered appellate deference in damages awards:[39] An appellate court can interfere with a damages award only if the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or made a wholly erroneous assessment of damages: Armstrong v. Moore, 2020 ONCA 49, 15 R.P.R. (6th) 200, at para. 30. . Moore v. 7595611 Canada Corp.
In Moore v. 7595611 Canada Corp. (Ont CA, 2021) the Court of Appeal considered an appeal on the quantum of an FLA damage award:(3) Loss of Care, Guidance, and Companionship
[22] The appellants also challenge the jury’s award for loss of care, guidance, and companionship. Mr. Lysenko claims that the award is simply too high, given that this court in To v. Toronto Board of Education (2001), 2001 CanLII 11304 (ON CA), 204 D.L.R. (4th) 704 (Ont. C.A.), at para. 37, established that $100,000 adjusted for inflation represents the “high end of an accepted range of guidance, care and companionship damages.” Therefore, according to the appellants, the $250,000 awarded to each respondent for loss of care, guidance, and companionship goes against this court’s established case law.
[23] In Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108, at para. 66, the Supreme Court of Canada drew upon and reinforced its decision in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 163, finding that in the context of non-pecuniary damages, an appellate court should only interfere with a jury’s assessment where it “shocks the conscience of the court”. In To, at para. 31, a 2001 case of this court involving damages for loss of care, guidance, and companionship, Osborne A.C.J.O. characterized the standard of review as follows: “In the circumstances where there was no error in the [jury] charge …, the jury’s assessment must be so inordinately high (or low) as to constitute a wholly erroneous estimate of the guidance, care and companionship loss” (emphasis added). This standard was also used by this court in Fiddler v. Chiavetti, 2010 ONCA 210, 260 O.A.C. 363, at para. 77, and in Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 12.
[24] Whether using the language of Young, at para. 66, citing Hill, at para. 163 (“shocks the conscience of the court”), or To, at para. 31 (“so inordinately high … as to constitute a wholly erroneous estimate”), the message is clear: the threshold for interfering with a jury’s award of damages on appeal is “extremely high”: Vokes Estate, at para. 12.
[25] Mr. Lysenko argues that this threshold is met in this case. He relies upon To, at para. 37, where this court established that $100,000 in February 1992 dollars “might be viewed as being the high end of an accepted range of guidance, care and companionship damages” (emphasis added). I would also note that almost 10 years after To was decided, in Fiddler, at para. 78, LaForme J.A. referred to the $100,000 quantum of damages awarded in To as “the high end of an accepted range for guidance, care and companionship damages.” See also Rodrigues v. Purtill, 2019 ONCA 740, at para. 14. Properly adjusted for inflation using the consumer price index, the damages in Fiddler were decreased from $200,000 to $125,000, roughly representing the equivalent of the $100,000 awarded in To but in January 2005 dollars: Fiddler, at para. 80.
[26] If the To amount of $100,000 from February 1992 is adjusted for inflation to the date of Alisha’s death in November 2013 using the consumer price index, it would amount to just shy of $150,000. Despite the difference between that indexed amount and the quantum of damages awarded in this case, the respondents contend that this court should not interfere, as the high standard for appellate intervention has not been met. I agree.
[27] First, it is important to recognize that, while Osborne A.C.J.O. referred to the $100,000 in To as perhaps being viewed at the “high end” of an accepted range for damages of this nature, he just as quickly pointed out that, unlike Alberta with s. 8(2) of its Fatal Accidents Act, R.S.A. 2000, c. F-8, for example, the legislature in Ontario did not establish an upper limit on these types of damages: To, at para. 29. In the absence of any such legislative cap, “each case must be given separate consideration” by the courts to determine the appropriate quantum of damages: To, at para. 30. Of course, locating the “right” amount for the loss of the guidance, care, and companionship of a child who has died because of another’s negligence verges on the near impossible to calculate, as the courts are called upon to measure the “immeasurable” and to calculate the “incalculable”: To, at para. 30, citing Gervais v. Richard (1984), 1984 CanLII 1951 (ON SC), 48 O.R. (2d) 191 (H.C.), at p. 201. See also Fiddler, at para. 76. Quite simply, there is no neat mathematical formula that can be applied to determine the correct amount.
[28] Second, despite the damages awards given in both To and Fiddler, both courts were careful to reinforce the idea that, like the absence of a legislative cap for damages of this nature, there is no judge-made cap for this form of non-pecuniary damages: To, at para. 29; Fiddler, at para. 76. While one can look to other guidance, care, and companionship assessments in similar cases to test the reasonableness of a jury’s determination of damages in any given case, these types of comparative exercises are not determinative of the outcome: To, at para. 31. To the contrary, “Each case must be considered in light of the evidence material to the guidance, care and companionship claims in that case”: To, at para. 31. This includes, as LaForme J.A. set out in Fiddler, at para. 77, considering each case “in light of the particular family relationships involved in that case”.
[29] This case-by-case approach to the quantification of damages for loss of guidance, care, and companionship will necessarily result in damages awards that will fluctuate. Coming back to the standard of review on appeal, it is only where the quantum of damages set by the jury “shocks the conscience of the court” or is “so inordinately high” that it is “wholly erroneous” that appellate intervention will be appropriate: Young, at para. 66, citing Hill, at para. 163; To, at para. 31.
[30] Therefore, while there is no question that the jury award for loss of care, guidance, and companionship in this case is high, in light of the factual backdrop of this case, it does not constitute an amount that “shocks the conscience of the court”: Young, at para. 66, citing Hill, at para. 163. Nor does it represent an amount that is “so inordinately high” that it is “wholly erroneous” in nature: To, at para. 31.
[31] Importantly, this is not a case where the appellants object to the jury charge itself. Rather, this case is strictly about the quantum determined by the jury. That quantum was clearly informed by how the jury saw the facts of this case. Alisha was an only child. Her parents were divorced when she was younger. Despite that divorce, the family remained unified by the common love the respondents had for Alisha and that the respondents received from Alisha. While Alisha resided with her mother following the divorce, she would still see her father almost daily.
[32] Both respondents testified at trial about the strong relationships they had with Alisha. They also testified about how, as she reached adulthood and right up to the night before the fire, she provided her parents with love, affection, emotional support, and more. Indeed, the respondent father testified about how Alisha had been instrumental in seeing him through some very difficult mental health challenges involving PTSD: “She was my everything …. She was the reason why I … kept on going to get through that at that time.”
[33] In short, Alisha was a loving, supportive daughter who had already demonstrated that her dedication to her parents as she moved further into adulthood was strong, as she started giving more than she was receiving. The impact of a loss of one’s child was nicely captured by Robins J.A. in Mason v. Peters (1982), 1982 CanLII 1969 (ON CA), 139 D.L.R. (3d) 104 (Ont. C.A.), at p. 111, leave to appeal refused, [1982] S.C.C.A. No. 51, where he said:Whatever the situation may have been in earlier times when children were regarded as an economic asset, in this day and age, the death of a child does not often constitute a monetary loss or one measurable in pecuniary terms. The most significant loss suffered, apart from the sorrow, grief and anguish that always ensues from such deaths, is not potential economic gain, but deprivation of the society, comfort and protection which might reasonably be expected had the child lived – in short, the loss of the rewards of association which flow from the family relationship and are summarized in the word “companionship”. [34] The November 20, 2013 fire destroyed all hope of the society, comfort, and protection that Alisha would give to her parents. The respondents never got to experience these rewards of association past Alisha’s 24th year. The fire eradicated their future together, ripping parenthood apart, the family away, and leaving both respondents childless.
[35] In light of the facts of this case, while the jury award was undoubtedly high, it was not “so inordinately high” that it would “shoc[k] the conscience of the court”: Young, at para. 66, citing Hill, at para. 163; To, at para. 31. In the circumstances of this case, there is therefore no basis to interfere with the jury’s award of $250,000 for loss of care, guidance, and companionship damages to each respondent. . Fernandes v. Penncorp Life Insurance Company
In Fernandes v. Penncorp Life Insurance Company (Ont CA, 2014) the Court of Appeal stated as follows on the standard of appellate review:[97] The applicable principles for appellate review of damage awards are described by Viscount Simon in Nance v. British Columbia Electric R. Co., [1951] 3 D.L.R. 705, at p. 713:The principles which apply under this head are not in doubt. Whether the assessment of damages be by a Judge or a jury, the Appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a Judge sitting alone, then, before the Appellate Court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage [citations omitted]. [98] This decision has been repeatedly affirmed by this court. See for example, Barrick Gold Corporation v. Lopehandia 2004 CanLII 12938 (ON CA), (2004), 71 O.R. (3d) 416. . Hansen v. Williams
In this personal injury jury case, Hansen v. Williams (Ont CA, 2014), the Court commented as follows on it's role in the review of the quantum of jury awards for non-pecuniary damages ('pain and suffering'):[12] An appellate court is not to interfere with a jury’s damage award unless the award is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have reached it: McLean v. McCannell, 1937 CanLII 1 (SCC), [1937] S.C.R. 341, at p. 343; Housen v. Nikolaisen, 2002 SCC 33 (CanLII), 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 30. This is a very high threshold. Appellate courts are not entitled to substitute their own awards in place of jury awards simply because they would have arrived at a different amount: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 158. . TMS Lighting Ltd. v. KJS Transport Inc.
In TMS Lighting Ltd. v. KJS Transport Inc. (Ont CA, 2014) the court commented on the appellate standard of review for damages quantum:[60] At the outset, I acknowledge that a trial judge’s assessment of damages attracts considerable deference from a reviewing court. Appellate interference with a damages award at trial, particularly an award made by a trial judge sitting alone, is justified only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages: Kerr v. Baranow, 2011 SCC 10 (CanLII), 2011 SCC 10, [2011] 1 S.C.R. 269, at para. 158; Magnussen Furniture Inc. (c.o.b. Magnussen/Presidential Furniture) v. Mylex Ltd., 2008 ONCA 186 (CanLII), 2008 ONCA 186, 89 O.R. (3d) 401, at para. 71; Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58 (CanLII), 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80.
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