MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

290 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
damages. The difference between aggravated and punitive damages has
been “a source of confusion” 16 in the law, according to Lord Devlin in
Rookes. In Broome, Lord Hailsham LC went further: “My own view is that
no English case, and perhaps even in no statute, where the word
‘exemplary’ or ‘punitive’ or ‘aggravated’ occurs before 1964 [the year
Rookes was decided] can one be absolutely sure that there is no element of
confusion between the two elements in damages.” 17 Prior to Rookes,
English law made no intelligible distinction between punitive and
aggravated damages. 18 Despite this attempt at clarifying the terminology,
only eight years after Rookes, Lord Hailsham LC devoted three pages of
Broome to an explanation of these terms. 19 Indeed, the Supreme Court of
Canada has itself many times felt it necessary to attempt to explain the
intractable distinction between aggravated and punitive damages. 20
In The Law of Damages, Professor Waddams clearly distinguishes
punitive damages from compensatory damages:
An exception exists to the general rule that damages are compensatory. This is
the case of an award made for the purpose not of compensating the plaintiff but
of punishing the defendant. Such awards have been called exemplary, vindictive,
penal, punitive, aggravated, and retributory, but the expressions in common
modern use to describe damages going beyond compensatory are exemplary and
punitive damages. “Exemplary” was preferred by the House of Lords in Cassell &
Co. Ltd. v. Broome, but “punitive” has also been used in many Canadian courts
including the Supreme Court of Canada in H.L. Weiss Forwarding Ltd. v. Omnus.
The expression “aggravated damages,” though it has sometimes been used
interchangeably with punitive or exemplary damages, has more frequently in
recent times been contrasted with exemplary damages. In this contrasting sense,
aggravated damages describes an award that aims at compensation but takes full
16
Supra note 12 at 39.
17
Supra note 13 at 17.
18
Julius Stone, “Double Count and Double Talk: The End of Exemplary Damages?”
(1972) 46 Australian L J 311 at 314-18.
19
Supra note 13 at 17-19.
20
See e.g. Whiten SCC, supra note 1 at paras 156-58, LeBel J; Vorvis v Insurance
Corporation of British Columbia, [1989] 1 SCR 1085, 58 DLR (4th) 193, McIntyre J
[Vorvis]; Fidler v Sun Life Assurance Co of Canada, 2006 SCC 30, [2006] 2 SCR 3 at
paras 50-55, McLachlin CJC and Abella J; McKinley v BC Tel, 2001 SCC 38, [2001] 2
SCR 161 at para 85, Iacobucci J; Norberg v Wynrib, [1992] 2 SCR 226, [1992] 6 WWR
673, LaForest J; Hill v Church of Scientology, [1995] 2 SCR 1130, 126 DLR (4th) 129,
Cory J [Hill].