Date: Wed, 8 Nov 2006 15:00:31 +0000

From: Allan Beever

Subject: Punitive damages for negligence

Yes, but I should have made clear that I didn't intend to refer to the paramountcy issue in invoking Ross. Perhaps Ross isn't the best case, or perhaps it is just the wrong case. The point was rather that, if you thought that punitive damages served a criminal law purpose, and one might well think that, then wouldn't it follow that it belonged to the federal jurisdiction in accordance with what was said in Ross (?) (and other cases?) about the scope of s91(27)? It would follow, then, if this is right, that provincial legislation on punitive damages would be ultra vires.

As I recall, the reply is likely to be something along the lines of suggesting that the legislation in question would be designed to further a purpose that belongs to the provincial legislatures - eg licensing - and this is where the issue of paramountcy could arise. But the argument that punitive damages at common law are only incidentally criminal in nature and really serve to further some provincial purpose, while sometimes plausible, does not sit well with many of the justifications given for punitive damages at common law. There are, for example, popular arguments to suggest that the point of such damages is precisely to respond to inadequacies in the criminal law.

And while it is certainly right, as David suggests, that the provinces can punish to protect their laws, I don't think that this quite joins with the issue. This is because, at least as I understand the position taken by most supporters of punitive damages, the point of them is to serve a criminal law purpose - ie to punish serious wrongdoing. In relation to the case in question, it seems odd to say that the point of punishing the defendant would be to give teeth to Ontario's provincial driving laws or any provincial purpose. It is to punish the defendant for doing something that he should not have done, i.e. driving drunk.

(Incidentally, as I recall, my exam question involved a provincial law that pretended to impose punishment to protect some licensing regime, but in reality punished because the provincial legislature believed the relevant actions to be immoral per se. The question was whether this was ultra vires the province. I argued that it was. Is Starr v Houlden relevant here?)

Lionel Smith wrote:

Paramountcy is only triggered by inconsistency and the courts have been very reluctant to find that. Allan’s case is one of many examples of this reluctance (federal discretion in sentencing for impaired driving held not inconsistent with provincial suspension of driver’s licence).

Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/

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