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

298 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
2004 American presidential election campaigns, and lobby groups such as
the US Chamber of Commerce and the American Tort Reform
Association have escalated their lobbying in favour of restricting plaintiff’s
rights. Given those developments in the last twenty years, it seems unlikely
that public attitudes have shifted towards favouring plaintiffs. Although
not on precisely the same point, a 2005 Angus Reid poll found that 61%
of Americans supported “[t]ort reform to limit lawsuits against doctors and
manufacturers.” 47
In Canada, we do not see the size or frequency of punitive damage
awards that Americans do. 48 However, it is undeniable that Canadian
public opinion on a great number of issues is informed by the American
experience and the omnipresent American media and entertainment
behemoth. The public scorn for punitive damage awards is
understandable, given the media climate, but judges too are
uncomfortable with plaintiff windfalls. In Rookes, Lord Devlin called them
an “anomaly”; 49 Lord Hailsham LC in Broome called them “unmerited”, 50
Both Binnie J and LeBel J refer to the in terrorem arguments about the
American experience with plaintiff windfalls and attempt to distinguish
the Canadian situation. 51 Binnie J, among others, has tried to reconcile
these windfalls with policy principles by arguing that punitive damages are
a reward for performing the valuable public service of exposing execrable
conduct: “In the present case, for example, no one other than the
appellant could rationally be expected to invest legal costs of $320,000 in
lengthy proceedings to establish that on this particular file the insurer had
behaved abominably. Over-compensation of a plaintiff is given in
exchange for this socially useful service.” 52 The notion of plaintiffs as
“private Attorneys General”, 53 rewarded by a windfall payment, is
discussed further below.
47
Angus Reid Public Opinion, “Differing U.S. Views on Liability Limits” (8 May 2005)
online: Angus Reid .
48
Steven R Schoenfeld, Michael A Penny & John A Terry, “Understanding Litigation in
Canada” (2001) NYLJ 16 April 2001.
49
Supra note 12 at 34.
50
Supra note 13 at 51.
51
Whiten SCC, supra note 1 at paras 39 and 148.
52
Ibid at para 37.
53
Associated Industries of New York State Inc v Ickes, Secretary of the Interior, et al, 134 F 2d