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

Pine Tree Justice 315
denied even compensation while the early plaintiffs benefit from large
punitive awards.
V. POTENTIAL SOLUTIONS
Different jurisdictions have tried different solutions to the many
problems posed by punitive damages. This section will review a number of
solutions, tested and untested, and provide recommendations on what
action should be taken to improve the law in relation to punitive damage
awards.
A. Class actions
Many cases attracting punitive damage claims are class actions.
Because there is such a high threshold of misbehaviour for the imposition
of punitive damages, it is often the case that defendants liable for punitive
damages have engaged in a pattern of misconduct, directed at more than
one plaintiff. There are many reported cases of class actions where
punitive damages are also pleaded. 99 Class actions are the vehicle most
suited to adjudicating mass tort claims. Since the decision of the Supreme
Court in Rumley v British Columbia, it is beyond doubt that punitive
damages can be certified as a common issue in class actions. 100
The nature of class actions is such that an unsuccessful defendant can
expect to pay a substantial award of damages. Punitive damages can be
added on top of compensatory damages. However, the objectives of
punitive damages can often be satisfied in a class action simply through a
general award of damages. Consider the case of BMW v Gore: Mr. Gore
suffered damage of approximately $4,000 to his BMW when the company
re-touched the factory paint after damage in shipping. 101 During the trial,
it was established that BMW had secretly re-touched the paint of
99
See e.g. Walls et al v Bayer Inc, 2005 MBQB 3, [2006] 4 WWR 720 (consumers of a
cholesterol-lowering drug); Brimner v Via Rail Canada Inc, 50 OR (3d) 114, 1 CPC
(5th) 185 (passengers in a train derailment); Wuttunee v Merck Frosst Canada Ltd, 2008
SKQB 229, 312 Sask R 265 (consumers of Vioxx); Chalmers v AMO Canada Company,
2010 BCCA 560, 504 WAC 186 (purchasers of a dangerous contact lens solution);
Griffiths v British Columbia, 2003 BCCA 367, 19 CR (6th) 367 (victims of sexual
assault in a foster home).
100
Rumley v British Columbia, 2001 SCC 69, [2001] 3 SCR 184 at para 34.
101
BMW v Gore, supra note 41.