Date: Wed, 8 Nov 2006 16:47:50

From: Lionel Smith

Subject: Punitive damages for negligence

I am tempted to take this off-list but I will also allow myself one last attempt at clarification.

On 8/11/06 11:02, "Allan Beever" wrote:

So I accept 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", but this does not, at least often, describe punitive damages at common law which do serve a criminal purpose - at least according to mainstream accounts of them.

I meant that quoted phrase to include punitive damages at common law. Common law must comply with the division of powers, as much as statute law. The breach in question is of the duty of care or other "tort law" duty, which is a duty imposed by valid provincial law.

Going more directly to what you say, my point was that I think that a constitutionally invalidating criminal purpose has to be found in the prohibition, not the sanction.

I do not say this makes sense; I did not write the constitution. But the very rare examples of invalid provincial penal laws are for eg prohibiting streetwalking. Prohibiting negligence or intentional torts is constitutionally OK for a province, and it is constitutionally OK for a province to punish breach of its laws, so it is constitutionally OK to impose punitive damages in tort.

Lionel

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