-----Original
Message-----
From: Allan Beever
Sent: November 8, 2006 10:01 AM
Subject: [Spam?] Re: ODG: RE: 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?)
