563 a patent case they were not widely awarded until the 1970s Since then the

563 a patent case they were not widely awarded until

This preview shows page 16 - 17 out of 44 pages.

563, a patent case, they were not widely awarded until the 1970s. Since then the awards have multiplied in number and escalated in amount. A report on punitive damages by the Ontario Law Reform Commission, issued in 1991, which examined research begun in 1989, predicted limited and principled development in the law of punitive damages in Canada: Ontario Law Reform Commission, Report on Exemplary Damages (1991), at pp. 93 and 98. By 1998, the report's research director, Dean Bruce Feldthusen, conceded that the law was "certainly developing quite differently in Canada than one would have predicted only a short time ago" and that "many of the doctrinal pillars on which the Report's predictions of limited and principled development in the law governing punitive damages were based have since cracked or collapsed": B. Feldthusen, "Punitive Damages: Hard Choices and High Stakes", [1998] N.Z. L. Rev. 741, at p. 742. Contrary to expectations, the awards were much larger, more frequent, appeared to rely more often on the defendant's wealth in support, and included more high profile jury awards. The kinds of causes of action had expanded; punitive damages were the "norm" and had "proliferated" in actions in sexual battery, were now "clearly available" for breach of fiduciary duty, and "persisted" in contract actions. Prior criminal convictions, he concluded, no longer automatically barred punitive awards. He added, "[p]erhaps most [page622] significantly, the courts seem to have accepted general deterrence, not retributive punishment, as the dominant purpose behind punitive damage awards in a number of important decisions" (p. 742). 45 This Court more recently affirmed a punitive damage award of $800,000 in Hill, supra. On that occasion some guidelines were set out to keep this remedy within reasonable limits. The Court on this occasion has an opportunity to clarify further the rules governing whether an award of punitive damages ought to be made and if so, the assessment of a quantum that is fair to all parties. 46 It is convenient at this point to note how other common law jurisdictions have addressed the problem of disproportionate awards of punitive damages. A. England 47 In Rookes v. Barnard, [1964] A.C. 1129, and Cassell, supra, the House of Lords sought to significantly limit the availability of punitive damages. In Lord Devlin's leading speech in Rookes, he distinguished "exemplary" (punitive) and "aggravated" (compensatory) damages and classified many purportedly punitive awards in the law books as disguised compensation. Second, he reduced the availability of punitive damages to two common law categories of causes of action, namely (1) "oppressive, arbitrary, or unconstitutional action [page623] by the servants of the government" (p. 1226) and (2) where the defendant's conduct is calculated to make a profit. To these he added a third permissible category where punitive damages have express statutory authorization. Since Rookes was decided, the categories test has persisted despite various academic and judicial assaults, but later cases have somewhat loosened the categories' application (by, for example,
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