Date: Wed, 8 Nov 2006 15:40:00

From: Lionel Smith

Subject: Punitive damages for negligence

Allan, I can't help you with your first year exam (maybe it is time to let go of that :-) ) but I am not sure there is much of an argument to be built on the division of powers in the Canadian constitution. As David Wingfield noted, the provinces have the express power to imprison without limit of time and to fine without limit of amount as punishment for violation of provincial law (s 92(15): "The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section."). How this is supposed to make sense when the federal level has authority over criminal law is a difficult question. Punishment is OK, but a criminal law purpose is not; the implication is that those who framed our Constitution thought that punishment was not essentially a criminal law matter. The province only gets into trouble if it lacks the power to prohibit the conduct it is seeking to prohibit (see your first year exam). But the upshot is that anyone arguing that provinces have no authority to impose punitive damages for breach of valid provincial law has a very difficult argument to make. Once it accepted to be intra vires the province, you still have the possibility of a paramountcy argument but that is not much easier.

I do not mean to sound like a punitive damages advocate but I don't think the Canadian constitution is going to solve this one.

Lionel

On 8/11/06 10:00, "Allan Beever" wrote:

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?)

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