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

320 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
to the provincial legislatures to require that judges determine the size of
punitive damage awards.
A jury in a criminal trial determines guilt; the judge sentences the
convicted. A jury in a civil trial could determine liability, including liability
for punitive damages, and a judge could consider the appropriate award.
Since Hill, we have definitively entered an era of punitive damage awards
into the hundreds of thousands and beyond. Such awards are made not
just against large corporations, as in Hill and Whiten, but even against
individuals, as in MacDougall. Much is at stake for both the plaintiff and
the defendant, yet the size of punitive damage awards is left to the jury
with minimal instruction, never mind full argument from counsel. A
judge can consider precedent and tailor an award that is appropriate to the
circumstances of the case. Awards from judges are open to appellate review
and public scrutiny.
Removing the assessment of punitive damages from the purview of the
jury does not upset its traditional, time-honoured role as the arbiter of
fact. If the jury determines that punitive damages are appropriate, a
hearing could be held, akin to a sentencing hearing in the criminal justice
system. The additional burden on the court system would be minimal:
there is near-universal agreement that punitive damages are an exceptional
remedy to be applied rarely.
E. Ranges of awards to be provided to juries
If juries continue to determine the size of punitive damage awards,
they could be instructed on the range of awards that have been made in
similar cases in the past. In Whiten, Binnie J acknowledged that the rule
prohibiting juries from knowing commonly-accepted ranges of awards
“may have to be reexamined in future.” 113 As discussed above, it is difficult
to understand the rationale behind this prohibition. In the criminal
justice system, like crimes should attract like penalties. There seems little
reason not to extend this principle of fairness to the assessment of
punitive damages in the civil system. A properly-instructed jury could be
informed of the range of awards made in the past, with the caveat that it is
not bound to stay within that range. The size of punitive damage awards
113
Supra note 1 at para 97.