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

Pine Tree Justice 301
damages. It was proven at the civil trial that Grigg was driving while
impaired by alcohol. At the Ontario Court of Appeal, McMurtry CJO and
Weiler JA agreed that there was a need for an award of punitive damages,
but reduced the award to $20,000. Blair JA would not have awarded
punitive damages at all. Blair JA felt that an award of punitive damages
would undermine the criminal proceeding and valuable legal principles:
“Outrage” is not a sound yardstick for measuring legal policy (although it may
form a basis for applying it). In this case, for example, the jury’s level of outrage
led them to make a punitive damage award of $100,000. It is hard to conceive of
an impaired driving offence where a fine of that dimension, or even a fine of
$20,000 (the amount of punitive damages upheld by the majority here), would be
imposed. Would it follow that judges or juries in civil cases such as this are
entitled to superimpose their version of a “fine” on the defendant even though
the defendant was required to pay a fine perfectly in keeping with the principles
of sentencing in criminal law, and to do so just because the fine imposed does
not accord with their “level of outrage”? Or, because they felt that the
misconduct in question before them was broader than the misconduct proved in
the criminal proceeding?
A judge or jury in the civil proceeding cannot know the answer to this latter
question – or, indeed, to the question of whether the fine imposed in the
criminal proceeding was appropriate for that proceeding – without knowing all
of the evidence and all of the factors underlying the disposition of the criminal
proceeding. They cannot know these dynamics of the parallel criminal case
without having tried it. There is a well-founded policy against the duplication of
legal proceedings. I do not see how the preservation of public order and the
tempering of harm done to the public good – the objectives of punitive damages
– are advanced by allowing judges or juries in civil cases to override what they
may perceive to be imperfections in the criminal proceedings, except in the truly
rarest of cases. 61
The majority dealt with the issue of the criminal trial differently, and
specifically feels that its award of $20,000 in punitive damages is a more
appropriate punishment than the criminal court’s $500 fine:
In our view, a court in a civil proceeding should generally demonstrate deference
to the decision of the other court. Otherwise, the review of the appropriateness
of a penalty administered in a criminal court, for example, could be viewed as a
collateral attack on that decision. In our opinion, the “disproportionality” test
enunciated by Binnie J. in Whiten in relation to the wrongful conduct and the
penalty imposed is one that should be approached with considerable caution.
We believe that the facts in the present case present one of those rare
instances where the disproportionality test applies. It was rational for the jury to
61
Ibid at paras 144-145.