Date: Tue, 7 Nov 2006 17:17:28

From: John Swan

Subject: Punitive damages for negligence

I think that Allan raises a very interesting point.

McIntyre v. Grigg is not the only case in which Charter rights seem to have been ignored by Canadian courts in their headlong rush into awarding punitive damages for all kinds of bad actions. In Royal Bank of Canada v. W. Got & Associates Electric Ltd., [1999] 3 S.C.R. 408, 78 D.L.R. (4th) 385, [2000] 1 W.W.R. 1, the Supreme Court awarded punitive damages of $100,000 against a bank for submitting a misleading affidavit in an application for the appointment of a receiver. While the case is usually regarded as one where punitive damages were awarded for breach of contract, filing a misleading affidavit is more naturally seen as an "offence" against the Rules of Civil Procedure. In any case, the basis for the award of punitive damages was stated by McLachlin J. and Bastarache J. in their joint reasons for judgment to be that "the bank's conduct seriously [affronted] the administration of justice" (¶ 28). Awarding an amount of $100,000 to punish the bank in the circumstances is arguably a breach of the bank’s Charter right to have some idea of the consequences of its wrongful actions before it committed them and looks a lot like a retroactive criminal sanction. The bank was also made liable in compensatory damages for failing to give its debtor reasonable notice to its intention to take drastic action to enforce its rights.

I have discussed the sorry story of Canadian courts and punitive damages in "Punitive Damages for Breach of Contract: A Remedy in Search of a Justification", (2003), 29 Queen’s Law Journal 596.

John Swan

-----Original Message-----
From: Allan Beever
Sent: November 7, 2006 11:34 AM
Subject: Re: ODG: punitive damages for negligence

Thanks for this Vaughan,

This seems to me to be a very interesting case, and may cause criminal and charter lawyers to become interested in this issue. Something that I think has been lacking.

The reason for this is that (if I have read the case rightly) the Court ruled that punitive damages were appropriate in this case because the defendant was driving drunk. The reason that they knew that he was driving drunk was because the driver was subjected to a breathalyser test. However, as the majority noted at para 11:

The prosecution [in a previous criminal case against this defendant] made this decision [not to prosecute for drunk driving] because before the breathalyser test was administered, Andrew Grigg had not been informed of his right to counsel.

At para 140, Blair dissenting on the issue of punitive damages, says:

Other alcohol-related charges were withdrawn by the Crown, apparently because the police had omitted to advise Mr. Grigg of his right to counsel at the time of the accident, thereby, rendering inadmissible the breathalyser test results that would have demonstrated a high level of legal impairment on his part. The jury here, however, had the breathalyser results in evidence, as well as much expert and other testimony concerning Mr. Grigg’s impaired condition.

But he doesn't reach what I would have thought was the obvious conclusion: that there is something problematic about punishing the defendant in these circumstances whether it occurs in criminal law, tort, or whatever.

Has there been discussion of these issues in Canada? i.e. whether, given that punitive damages are punitive, charter rights etc are or ought to be relevant here as they are in criminal law, or at least similar to the way that they are in criminal law? I would be grateful to be pointed in the right direction.

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