After a winding ride through our court system the case of Pate v. Galway-Cavendish has most recently
received attention from our Court of Appeal which has awarded
$450,000.00 for punitive damages to the dismissed employee's
Mr. Pate was the Chief Building Official for the Township of
Galeway-Cavendish for ten years. The Township believed
there were discrepancies surrounding Mr. Pate's building fee
permits though he was not provided with the particulars of the
allegations. Instead, the Township informed him that if he
resigned they would not contact the police. Mr. Pate refused
to co-operate by resigning and the Township terminated Mr.
Pate's employment alleging cause. The Township turned
over some information to the police, criminal charges were laid and
a criminal trial ultimately ensued which was reported on
extensively by the media. Mr. Pate was ultimately acquitted.
Following his acquittal Mr. Pate brought an action against
the Township for wrongful dismissal, malicious prosecution and
reputational injuries and sought special damages for his defence
costs along with punitive and aggravated damages.
At the civil trial it was discovered that the Township had
withheld pertinent information from police that would have
exonerated Mr. Pate and the judge made findings that the
Township's misconduct was of a sustained nature that had a
profound impact on Mr. Pate. Ultimately, Mr. Pate was
awarded nearly $280,000.00, an amount that excluded the amount paid
by the Township for the wrongful dismissal settlement. As
part of the award $25,000.00 was attributable to punitive damages
and the trial judge commented that he would have ordered more but
was bound by the principles of proportionality.
The judgment with respect to malicious prosecution and the
punitive damage award was appealed and eventually went through two
re-trials before resulting in a $550,000.00 punitive damage award
that was brought to the Ontario Court of Appeal.
The Court of Appeal and Punitive Damages
The majority of the court of appeal found that the trial judge
did not consider in his reasons the other damages which Mr. Pate
was already awarded as a result of the first trial. As
such, the majority reduced the award to $450,000.00 stating that it
"amply denounces the Township's conduct and achieves the
additional objectives of retribution and deterrence".
Interestingly, the minority of the court would have upheld the
trial judge's award of $550,000.00.
Significant points for Employer's
The majority of the court made comment that compensatory
damages also have a punitive element.This is a new and confusing
statement that could impact the quantum of future
Employers ought to complete impartial investigations prior to
dismissing an employee with cause or insisting that charges be laid
When conducting an investigation it is always advisable to give
the employee an opportunity to put forward his or her side of the
It is important to be aware of any legal obligations you may
have to provide police with all relevant information not protected
by confidentiality and/or privilege.
The majority decision to adjust the award from $550,000 to
$450,000 appears to be inconsistent with the past practice of
leaving alone awards that appear to be in the appropriate range.As
such, this decision may improve the ability of litigants to have
awards modified on appeal.
Significant damages can arise where an employer does not act in
an impartial manner during an investigation and/or
Please consider consulting the lawyers at CCP when conducting a
workplace investigation, dealing with law enforcement and
conducting a termination. CCP will continue to monitor
this case as one of the parties may seek leave to appeal to the
Supreme Court of Canada.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).