Supreme Court of Canada upholds punitive and exemplary damages at $1M mark

The Supreme Court of Canada set the punitive damages criteria/limit in Canada in the precedent-setting case of Whiten v. Pilot Insurance Co. (See PDF below article). The initial case was heard in the Ontario Supreme Court, and Whiten was awarded one million dollars in punitive damages. Pilot Insurance appealed the case to the Ontario Court of Appeal, in which the punitive damages award was reduced to $100,000. Whiten then appealed to the Supreme Court of Canada, in which the SCC restored the initial one million dollars in punitive damages awarded.

Facts of the Case

Pilot Insurance denied Whiten’s house insurance claim after their house was destroyed in a fire. Pilot originally alleged arson, which was proved/admitted to be completely false and lacking any evidence. Pilot entered protracted litigation (over two years) over the issue with Whiten to force them to make an unfair settlement for less than they were entitled to. Conduct was planned and deliberate.

Punitive Damages Issues

What is the availability of punitive damages?

(1) Punitive damages are awarded only in exceptional circumstances for malicious, oppressive, and high-handed’ misconduct that ‘offends the court’s sense of decency; rides the line between civil law compensation and criminal law punishment

(2) Quantums seek to punish defendants and deter others from similar outrageous conduct.

Rule and Awards

The purpose of punitive damages rests in three areas (1) punishment (2) deterrence and (3) denunciation. 

Essential elements of Punitive Damage Awards

The following guiding principles were set:

(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) 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. (para. 94.)




About the BC Wrongful Death Law Reform Society

‘In Their Name’ is the campaign of ‘The BC Wrongful Death Law Reform Society’ – a BC registered non-profit organization comprised of volunteer families who have lost a loved one to wrongful death in BC and were denied access to justice. In response to the biggest human rights issue facing the province today, our goal is to modernize British Columbia’s antiquated wrongful death legislation, which predates confederation (1846). Under current legislation, the value of a human life is measured only by the deceased’s future lost income, so long as they had dependents.

As a result of the province’s antiquated law, access to justice has been denied to the families of the wrongfully killed who do not meet this discriminatory criteria. This has affected especially vulnerable groups, namely children, seniors, the disabled, and anyone without dependents when they are killed by the negligent or intentional acts of another.

BC is presently the last of all the provinces, yet to have undertaken this critical legislative modernization to allow for dignity, value, and protections for all its citizens under the law.

When it’s ‘free’ to kill in BC, wrongdoers are not held accountable. This lack of general deterrence holds the province back in terms of incentivizing innovation of safety measures and protocols to prevent wrongful deaths in the first place.

Here’s How You Can Get Involved…

The Premier of British Columbia, David Eby, is responsible for the modernization of BC’s wrongful death laws. Our Society provided David Eby with the drafted ‘Wrongful Death Accountability Act’ when he was acting as the Attorney General for British Columbia for 6 years between 2017-2022. The new Attorney General, Niki Sharma, also shares responsibility as she is the Minister responsible for the ‘Family Compensation Act’ – the current guiding piece of legislation that the civil courts must follow in cases of wrongful death. Minister Sharma receives feedback from the regional ‘Members of the Legislative Assembly’ (MLAs) and follows orders from the Premier, David Eby, who is ultimately responsible for modernization.

Reform is presently at a standstill, as the BC NDP government does not presently view access to justice for the surviving family members of the wrongfully killed as a priority in this province. This is despite the fact that the families behind our Society have been fighting for modernization for over two decades. And despite the fact that all other provinces, including the Yukon, have already modernized in most cases long ago.

The only way to move this forward is by creating massive public awareness and outcry for legislative modernization. Only under the scrutiny of the public and the media will our politicians be forced to take this necessary, and long overdue action.

How many more people will need to die from the same preventable wrongful actions before our politicians will do their job?

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