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

Pine Tree Justice 293
$1,000,000 was too high and reduced the punitive damages to $100,000.
Laskin JA, dissenting on this point only, would have upheld the jury
award. At the Supreme Court, Binnie J (for McLachlin CJ and L’Heureux
‐Dubé, Gonthier, Major, and Arbour JJ) restored the jury award. LeBel J,
dissenting, upheld the judgment of the majority of the Ontario Court of
Appeal.
The majority judgment in Whiten did not substantially change the law
governing punitive damages, but Binnie J used this case as an opportunity
to clarify and consolidate rules from previous cases. Guided by an overarching
desire to “keep this remedy within reasonable limits,” 28 Binnie J
laid out ten principles that should govern these cases. Those principles are
summarised as follows:
1. The English categorical approach to punitive damages is rejected.
2. The objectives of punitive damages are punishment, deterrence
and denunciation.
3. Because the primary vehicle for punishment is the criminal law,
punitive damages are exceptional.
4. “[T]ime-honoured pejoratives” are not helpful; a principled
approach is desirable.
5. A court should make the lowest award that will rationally achieve
one of the objectives of the law.
6. Using punitive damages to force a defendant to disgorge ill-gotten
profits is legitimate.
7. Fixed caps or ratios do not sufficiently account for the many
variables that will arise.
8. Punitive damages should be awarded if, but only if, other damages
are not sufficient to achieve the objectives of the law.
9. Juries should be instructed on the function of punitive damages
and given guidance on how to assess an appropriate award.
10. Punitive damages are not at large; appellate courts may intervene
if the award “exceeds the outer boundaries of a rational and
measured response.” 29
Despite this attempt to clarify the law governing punitive damages,
Canadian courts have struggled to interpret these subjective guidelines.
Since Whiten, appellate courts have frequently split on the issue of when
28
Ibid at para 45.
29
Ibid at paras 66-76.