Punitive damage awards in Canada appear to be on the rise, with
a number of significant punitive damage amounts awarded of
The following cases suggest a trend towards rising punitive
Branco v American Home Assurance Co.1
Disability insurance case — $4.5 million in
punitive damages awarded at the Saskatchewan Queen's Bench
level (currently subject to appeal);
Fernandes v Penncorp Life Insurance Co.2
Disability insurance case — $200,000 in
punitive damages awarded at the Ontario Superior Court level
(currently subject to appeal, scheduled to be heard March 5,
Cinar Corporation v Robinson.3 Copyright
infringement case — $500,000 in punitive
damages awarded by the Supreme Court of Canada.
The recent Ontario Court of Appeal decision in Pate Estate v
Galway-Cavendish and Harvey (Township)4 appears to
further substantiate this trend.
Mr. Pate was the township's chief building official for
almost 10 years when he was fired because of discrepancies with
respect to building fees. The township turned some, but not all,
information over to the police who reluctantly laid charges against
Mr. Pate, but only after pressure from the township. At the
criminal trial, Mr. Pate was acquitted of all charges.
Following his acquittal, Mr. Pate sued the township for wrongful
dismissal, malicious prosecution and reputational injuries, and
also sought punitive damages. The claim for wrongful dismissal
succeeded and Mr. Pate received punitive damages of $25,000 based
on the township's conduct, which the trial judge described as
In 2011, Mr. Pate successfully appealed the claim for malicious
prosecution and the quantum of the punitive damage award. The
Ontario Court of Appeal referred the matter back to the Superior
Court, which increased the punitive damage award to $550,000 and
found the township liable for malicious prosecution. The township
appealed to the Court of Appeal in 2013.
The Ontario Court of Appeal upheld the finding of malicious
prosecution, and substituted a punitive damage award of $450,000,
noting that it was a sum sufficient to satisfy the purpose of
punitive damages (i.e., retribution, deterrence and denunciation).
Although this punitive damage award constituted a reduction from
the Superior Court amount, the decision is notable for its high
punitive damage award rendered by an appellate court. It is also
noteworthy that Lauwers J.A., writing for the dissent, would have
maintained the higher $550,000 award.
The decision in Pate Estate is appellate court
confirmation of what appears to be a trend towards increased
punitive damage awards.
Courts have wide discretion when imposing punitive damage
awards. The modest punitive damage awards originally envisioned by
the Supreme Court of Canada appear to be trending upward.
Employers, insurers, and defendants generally should take note and
be cognizant of this apparent trend in their dealings with opposing
parties, both before and during litigation.
The author wishes to thank Greg Koenderman, articling
student, for his assistance in preparing this legal
1 2013 SKQB 98.
2 2013 ONSC 1637.
3 Cinar Corporation v Robinson, 2013 SCC 73
4 2013 ONCA 669 [Pate Estate]. This decision is
not being appealed to the Supreme Court of Canada.
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