96 The trial judge should keep in mind that the standard of appellate review

96 the trial judge should keep in mind that the

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96 The trial judge should keep in mind that the standard of appellate review applicable to punitive damages ultimately awarded, is that a reasonable jury, properly instructed, could have concluded that an award in that amount, and no less, was rationally required to punish the defendant's misconduct, as discussed below. 97 If counsel can agree on a "bracket" or "range" of an appropriate award, the trial judge should convey these figures to the jury, but at the present time specific figures should not be mentioned in the absence of such agreement (Hill, supra, per Cory J., at paras. 162-63). (This prohibition may have to be reexamined in future, based on further experience.) Counsel should also consider the desirability of asking the trial judge to advise the jury of awards of punitive damages made in comparable circumstances that have been sustained on appeal. 98 The foregoing suggestions are put forward in an effort to be helpful rather than dogmatic. They grow out of the observation in Hill that punitive damages are not "at large" (para. 197). Unless punitive damages can be approached rationally they ought not to be awarded at all. To the extent these suggestions are considered useful, they will obviously have to be both modified and elaborated to assist the jury on the facts of a particular case. The point, simply, is that jurors should not be left in any doubt about what they are to do and how they are to go about it. 99 It is evident that I am suggesting a more ample charge on the issue of punitive damages than was [page647] given in this case. Finlayson J.A. said that he was "not entirely happy with the trial judge's charge to the jury on the issue of punitive damages" (p. 661), and Laskin J.A. agreed that "[t]he trial judge might have given the jury more help than he did" (p. 656). However, both Finlayson and Laskin JJ.A. agreed that the jury charge covered the essentials, however lightly. This conclusion is reinforced by the fact that no objection was made by either counsel. With some hesitation, I agree with the Court of Appeal, unanimous on this point, that in the circumstances this ground of appeal should be rejected.
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Page 29 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 (4) Reviewing the Jury Award (a) Whether the Award of Punitive Damages in This Case was a Rational Response to the Respondent's Misconduct 100 The applicable standard of review for "rationality" was articulated by Cory J. in Hill, supra, at para. 197: Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?
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