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

Pine Tree Justice 295
The difficulty appellate courts have had in applying Whiten is a direct
result of the subjective discretion it leaves to them: Binnie J allowed “that
an appellate court is entitled to intervene if the award exceeds the outer
boundaries of a rational and measured response to the facts of the case.” 35
As this guidance is not a clear standard of review, it is unsurprising that
different judges have interpreted it in different ways. In jury trials, there
are no reasons for awards and appellate courts are therefore left the
unenviable task of divining whether the particular award is a “rational and
measured” response. As Canadian law does not permit a jury to provide a
rationalisation for its decisions, nor to be informed of a reasonable range
of awards, it is unsurprising that appellate courts differ on whether the
“magic” number was pulled from the air by the jury on a rational and
measured basis or for some other, unsupportable reason.
Whiten itself perfectly illustrates the subjectivity problem. At the
Ontario Court of Appeal, Laskin JA upheld $1,000,000 in punitive
damages despite the award being more than sixty times higher than the
previous upper limit in this type of case. 36 He justified the award in part
because of the high award in Hill. Hill, of course, first laid out the standard
of appellate review affirmed in Whiten. 37 Finlayson JA (for the majority),
also purporting to apply the standard in Hill, reduced the $1,000,000
award to $100,000, and explained his decision plainly: “I do not propose
to justify my intervention on any basis other than that I think the award is
simply too high.” 38 Again, at the Supreme Court, Binnie J and LeBel J
both adhere to the test devised by Cory J in Hill but arrive at different
conclusions about whether the punitive damages were rational and
measured. The subjective element in these cases is evident even in Binnie
J’s comments on Whiten in 2011 to a reporter from The Globe and Mail: “It
seemed to me that on a human scale, a massive injustice had been
(CA), quoting Matlow J [Whiten CA].
34
Riches v News Group Newspapers Ltd, [1986] QB 256 at 280G, [1985] 2 All ER 845
(Stephenson LJ) [Riches].
35
Whiten SCC, supra note 1 at para 76.
36
Whiten CA, supra note 33 at 656-657.
37
Hill at para 197.
38
Whiten CA, supra note 33 at 661.