Case reference: Boucher v Wal-mart Canada Corp. Et al, 2014 ONCA 419
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The award of damages for intentional infliction of mental suffering is compensatory. It is meant to compensate the plaintiff for the harm she suffered because of the defendant’s misconduct. Punitive damage awards are not compensatory. They are meant to punish the defendant in exceptional cases where the defendant’s conduct has been “malicious, oppressive and high handed” and “represents a marked departure from the ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co. (2002) 1 S.C.R. 595, (2002) S.C.J. No. 19, 2002 SCC 18, at para 36.
In other words, punitive damages focus on the defendant’s conduct, not on the plaintiff’s loss. Their purpose is retribution, deterrence, and denunciation. To upheld any punitive damages, it must, together with the compensatory award, be rationally required to punish the defendant. The standard of appellate review is whether a reasonable jury, properly instructed, could have concluded that an award of punitive damages in that amount, and no less, was rationally required to punish the defendant’s misconduct. Putting the test the other way around, “if the award of punitive damages, when added to compensatory damages, produces a total sum that is so “inordinately large that it exceeds what is rationally required to punish the defendant, it will be reduced or set aside on appeal. To ensure rationality an appellate court has “supervisory powers over punitive damages that are more interventionist than in the case of other jury awards of general damages”: Whiten v. Pilot Insurance Co. (2002) 1 S.C.R. 595, (2002) S.C.J. No. 19, 2002 SCC 18.
Aggravated damages are compensatory damages. They are part of breach of contract damages. They compensate a plaintiff for the additional harm suffered because of the way the contract was breached. In a wrongful dismissal claim, aggravated damages may be awarded against the employer where “the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith”: However, “the normal distress and hurt feelings resulting from dismissal are not compensable”: Honda Canada Inc. v. Keays (2008), 92 O.R. (3d) 479, (2008) 2 S.C.R. 362 (2008) S.C.J. No. 40, 2008 SCC 39, at para. 57 -58.
To obtain an award of punitive damages, a plaintiff must meet two basic requirements. First, the plaintiff must show that the defendant’s conduct is reprehensible: in the words of Binnie J. in Whiten case, “malicious, oppressive and high-handed” and “a marked departure from ordinary standards of decent behaviour “. Second, the plaintiff must show that a punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objective of retribution, deterrence and denunciation. When the claim against the defendant is for breach of contract, the plaintiff must meet a third requirement. The plaintiff must show that the defendant committed an actionable wrong independent of the underlying claim for damages for breach of contract. In Canada, this requirement originated in the Supreme Court of Canada’s judgement in Vorvis v. Insurance Corp. Of British Columbia, (1989) 1 S.C.R. 1085, (1989) S.C.J. No. 46, 58 D.L.R. (4th) 193, 94 N.R. 321, (1989) 4 W.W.R. 218, 36 B.C.L.R. (2d) 273, 42 B.L.R. 111, 25 C.C.E.L. 81.
Punitive damages cannot be awarded in the absence of reprehensible conduct specifically referable to the employer: Blackwater v. Plint (2005) 3 S.C.R. 3, (2005) S.C.J. No. 59, at para. 91. Employer’s reprehensible conduct must go beyond mere negligent conduct its conduct must itself be harsh, offensive or high-handed: Boucher v Wal-mart Canada Corp. Et al, 2014 ONCA 419; S.M. Waddams, The Law of Damages, looseleaf, 2nd ed. At. P. 11-29; 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. (2000), 46 O.R. (3d) 760, (2000) O.J. No. 121, 183 D.L.R. 4th 488 (C.A.), at para. 23, revd on the other grounds (2001) 2 S.C.R. 983, (2001) S.C.J. No. 61.
A claim for future loss of income can arise in an employment context where a plaintiff has not recovered from the effects of the wrongdoer’s action and the plaintiff has thus suffered a loss of any earning capacity because of the wrongdoer’s tortuous conduct. Piresferreira v. Ayotte, (2010) O.J. No. 2234, 2010 ONCA 384, 263 O.A.C. 347, 319 D.L.R. (4th) 665, 74 C.C.L.T. (3d) 163, 2010, CCLC, 210-027, (C.A.).
*source: Ontario Reports
