Date: Thu, 5 Apr 2007 20:52

From: Lionel Smith

Subject: Insurance and punitive damages

An interesting point arises out of McIntyre v Grigg [2006] OJ No. 4420, in which a majority of the Ontario CA allowed punitive damages in a running down case in which the defendant was impaired, though reducing the jury award from $100,000 to $20,000. The defendant was convicted of the relatively minor criminal offence of careless driving; he was not convicted of impaired driving etc because the police failed to read him his Charter rights which made evidence of his blood alcohol level inadmissible. Blair JA dissented and would have disallowed any punitive damages. One of his points (at [131]) was that so far as he could tell, the defendant's insurance policy would cover the punitive damages.

Is he right when he goes on to say that the general principle of ignoring insurance does not make sense in the assessment of punitive damages?

There are some older cases that said the whole liability coverage was lost in the case of impaired driving, because no one can insure against their own criminal act, but this has been modified by statute, eg Ontario Insurance Act s 118: coverage is only lost through criminality if you intended to bring about loss or damage. So presumably exclusion of coverage punitive damages in cases of criminal carelessness would require a specific exclusion.

Lionel

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