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

Pine Tree Justice 323
problem. It enhances public confidence in the civil justice system and
serves the public good by exacting payment from wrongdoers and
redirecting the money towards some social good. Some portion of the
punitive damages should still go to the plaintiff for two reasons. First, it is
a reward for the public service of exposing bad conduct, as described by
Binnie J in Whiten. 116 Second, in order to arrive at the appropriate size of
award, the judge needs the benefit of the adversarial process, which is itself
dependent on two interested parties. Punitive damage awards should,
where appropriate, be directed mostly to a relevant charity. If no such
charity can be found, the bulk of the award should be paid to the province
to a fund for general public use. The Criminal Property Forfeiture Act
established just such a scheme in Manitoba: seized assets are sold and the
proceeds go into a general fund designed to compensate victims, remedy
unlawful activity and promote safer communities. 117
Punitive damages serve a unique function in the system of civil law.
Their persistence through centuries of opposition tells us something of
their value. In Whiten, the Supreme Court attempted to modernize the law
but has failed to go far enough to ensure that public confidence in the
system of civil justice stays strong and to ensure that the law is applied
fairly and consistently with the principles of fundamental justice upon
which it is built. The provincial legislatures should act to solidify the law
to ensure that this valuable tool does not disappear for want of legitimacy.
116
Whiten SCC, supra note 1 at paras 39-40.
117
Supra note 69, s 19(4).