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

Pine Tree Justice 311
in the absence of a proper application of the rationality and proportionality
criteria, problematic awards are bound to happen. 88
American courts have few options because of the constitutional right to a
trial by jury in civil cases. 89 In Canada, however, the use of juries in civil
trials is constrained in a number of ways. Notably, Canadian courts can
require that complex cases be heard by judges. Generally, Canada has
chosen a middle path between widespread jury use in the United States
and heavily constrained civil jury trials in the United Kingdom. 90 There is
no legal obstacle to requiring that a judge, and not a jury, determine the
size of a punitive damage award. If the current system is likely to produce
the “problematic awards” that LeBel J warns of, legislative action may be a
prudent course.
D. Multiple Plaintiffs
Another problem with the law governing punitive damages in Canada
is related to the windfall problem discussed above. How is a court meant
to deal with a case with multiple plaintiffs? Many of the issues with this
scenario arose in AB v South West Water Services Ltd. 91 In that case, 180
plaintiffs sought damages from a water company for contaminating their
drinking water with aluminum sulphate. Stuart-Smith LJ struck out the
plaintiff’s claim for exemplary (punitive) damages partly because the
defendants had already been convicted criminally and fined in relation to
the conduct in issue. He was greatly troubled by the unique problems
posed by the number of plaintiffs and the practical difficulties in assessing
damages and apportioning them appropriately:
There is, however, one aspect of the case which in my view makes it peculiarly
unsuitable for an award of exemplary damages, even if the first two hoops are
negotiated, and that is the number of plaintiffs. Unless all their claims are
quantified by the court at the same time, how is the court to fix and apportion
the punitive element of the damages? Should the court fix a global sum of £x and
divide it by 180, equally among the plaintiffs? Or should it be divided according
88
Ibid at para 168.
89
US Const amend VII.
90
See the comments of McLachlin CJC in “Joint Meeting of The American College of
Construction Lawyers and The Canadian College of Construction Lawyers” (2005) 39
CLR (3d) 4 at 17-20.
91
AB v South West Water Services Ltd, [1993] QB 507, [1993] Env L R 266 [SW Water
cited to QB].