April, 2008
What is the difference between damages for conduct in the manner of dismissal and punitive damages ?
"Damages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own.(62)
To what acts are punitive damages restricted?
Punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. (62)
When determining whether or not to award punitive damages, what must juries take into consideration?
The trial judge’s charge to the jury with respect to punitive damages should include words to convey an understanding of the following points: (1) Punitive damages are very much the exception rather than the rule, (2) imposed only if there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour. (3) Where they are awarded, punitive damages should be assessed in an amount reasonably proportionate to such factors as the harm caused, the degree of the misconduct, the relative vulnerability of the plaintiff and any advantage or profit gained by the defendant, (4) having regard to any other fines or penalties suffered by the defendant for the misconduct in question. (5) Punitive damages are generally given only where the misconduct would otherwise be unpunished or where other penalties are or are likely to be inadequate to achieve the objectives of retribution, deterrence and denunciation. (6) Their purpose is not to compensate the plaintiff, but (7) to give a defendant his or her just desert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened. (8) Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish these objectives, and (9) they are given in an amount that is no greater than necessary to rationally accomplish their purpose. (10) The jury should be told that while normally the state would be the recipient of any fine or penalty for misconduct, the plaintiff will keep punitive damages as a “windfall” in addition to compensatory damages. (11) Judges and juries in our system have usually found that moderate awards of punitive damages, which inevitably carry a stigma in the broader community, are generally sufficient. While the jury charge in this case was skeletal, it was upheld by the Court of Appeal (unanimous on this point) and, with hesitation, this Court should not allow the appeal on that ground. (WHITEN, para 5)
What kinds of wrongs give rise to punitive damages?
Punitive damages require actionable wrongs. Both independent torts and breaches in the contractual duty of good faith are actionable wrongs. (62)
Is a breach of a human rights code an actionable wrong?
No.
Both the Trial Court and the The Court of Appeal that heard Keays agreed that a breach of human rights legislation could be an actionable wrong for purposes of allocating punitive damages.
The Supreme Court disagreed, noting that Bhadauria(1981) had established that "a plaintiff is precluded from pursuing a common law remedy when human rights legislation contains a comprehensive enforcement scheme for violations of its substantive terms." (63)
This is because human rights remedies are strictly compensatory whereas civil court remedies can be either compensatory or punitive. Allowing plaintiffs to pursue human rights breaches in civil court would encourage them, the court fear, to "use the Code for a purpose the legislature did not intend - namely, to punish employers who discriminate against their employees"(63).
Will recent amendments to the Ontario Human Rights Code challenge the Code's remedial thrust?
No. Recent amendments to the Code will allow complainants to go to civil court to advance a breach of the Code as a cause of action in connection with another wrong. This cause of action, however, will never give rise to punitive damages. "Monetary compensation", explained the Supreme Court, will be "restricted to "loss arising out of the infringement, including any injuries to dignity, feelings and self-respect. In this respect, they confirm the Code's remedial thrust" 63
Did the Court hear Keays' appeal for it to recognize a tort of discrimination?
No, because of a number of concerns brought up by interveners:
-
First, human rights codes already remedy the effects of discrimination
-
Second, a tort of discrimination could lead to punitive damages, which are contrary to the remedial thrust of human rights legislation
-
Third, outside Ontario, human rights issues are the sole jurisdiction of human rights tribunals, not civil courts
-
Fourth, a tort of discrimination "might undermine the statutory regime which for many victims of discrimination is a more accessible and effective means by which to seek redress" (29)