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

Pine Tree Justice 321
would thereby be capable of evolution. Such changes would more likely be
incremental, instead of the giant leaps seen in Hill and Whiten.
F. Caps on punitive damages
Numerous American states have limited the size of punitive damage
awards, most commonly by capping the award at twice or three times the
amount of compensatory damages. 114 Generally, few Canadian cases would
stray outside these boundaries. The punitive damages in Whiten itself were
approximately three times the compensatory amount. However, rigid rules
can produce injustices. Just as minimum sentences in the criminal context
can, at times, be inappropriate, limits on punitive damages may at times
obstruct their three objectives. Returning again to BMW v Gore, it would
be difficult to see the punitive or deterrent effect on BMW if they were
required to pay Mr. Gore only three times his damages: $12,000.
G. Punitive damages could be allocated to public funds
One method of eliminating the windfall problem is to divert awards of
punitive damages to public funds. These awards, by definition, are
undeserved windfalls for the plaintiffs. Many of the problems that arise
with multiple plaintiffs are eliminated if we abandon the notion that the
first plaintiff out of the gate is the one to collect the prize. Second, there is
a public perception that there is an abundance of frivolous lawsuits by
plaintiffs seeking such a windfall. Although the reality may not correspond
with this perception, it is more than a theoretical risk: the pants lawsuit of
Pearson v Chung is but one dramatic example. Moreover, there is value in
preserving public confidence in the system of civil justice. If punitive
damage awards were diverted to public funds, it would immunize plaintiffs
from suspicion of their motives and perhaps enhance the apparent
legitimacy of their claims.
The jury in Riches returned to ask if they could allocate punitive
damages to a police charity instead of to the individual plaintiffs. 115 In
principle, there is no reason why punitive damages, which are already so
very much like a criminal fine, could not be diverted to some public good.
In most cases, it would not be difficult to conceive of a charity rationally
114
See Appendix II.
115
Supra note 34 at para 41.