Date: Wed, 8 Nov 2006 13:22:06

From: David Cheifetz

Subject: Punitive damages for negligence

There are a host of items it seems the majority didn't consider.

For example, in Ontario, throughout Canada, and I'm going to assume in many jurisdictions elsewhere, owners of vehicles have statutory vicarious liability for damages awarded against the driver of the vehicle. In Canada, the requirement is that the driver had possession with the owner's consent.

Property and civil rights (so punitive damages entitlement, at all) is a provincial matter. Assuming the province allows punitive damages at all (an issue which may invoke Charter arguments if other provinces don't) will the owner be liable for the punitive damages portion of the award, if the owner's only basis for liability is vicarious? (The blameworthiness requirement).

Also, if they're not both liable or they are but there is no insurance for that portion of the award, that will put the owner and driver (where they are different people) at odds. The vicariously liable owner probably has a right to indemnity from the driver. That conflict might require separate counsel. It certainly will if the owner is looking for indemnity from the driver.

Ah, well: more work for defence counsel. I suppose I shouldn't complain.

David

-----Original Message-----
From: Russell Brown
Sent: November 8, 2006 7:56 AM
Subject: Re: ODG: RE: punitive damages for negligence

David's last point (about auto insurance coverage being highly regulated in Canada) also explains why punitive damages are NOT covered in British Columbia, where for over 30 years a public auto insurer has enjoyed a statutory monopoly. This is a function of both section 64 of the Insurance (MV) Act (which provides for payment of liability imposed on the insured for injury or death), and section 56(1)(c) of the Regulations to the Act, which states, inter alia:

[the insurer] is not liable under [Section 64 of the Act] in respect of punitive or exemplary damages or other similar non-compensatory damages.

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