1981 124 DLR 3d 228 the British Columbia Court of Appeal awarded punitive

1981 124 dlr 3d 228 the british columbia court of

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(1981), 124 D.L.R. (3d) 228, the British Columbia Court of Appeal awarded punitive damages in a negligence case on the principle that they ought to be available whenever "the conduct of the defendant [was] such as to merit condemnation by the [c]ourt" (p. 250). This broader approach seems to be in line [page635] with most common law jurisdictions apart from England. 68 Second, there is a substantial consensus that coincides with Lord Pratt C.J.'s view in 1763 that the general objectives of punitive damages are punishment (in the sense of retribution), deterrence of the wrongdoer and others, and denunciation (or, as Cory J. put it in Hill, supra, at para. 196, they are "the means by which the jury or judge expresses its outrage at the egregious conduct"). 69 Third, there is recognition that the primary vehicle of punishment is the criminal law (and regulatory offences) and that punitive damages should be resorted to only in exceptional cases and with restraint. Where punishment has actually been imposed by a criminal court for an offence arising out of substantially the same facts, some jurisdictions, such as Australia and New Zealand, bar punitive damages in certain contexts (Gray, supra; Daniels, supra), but the dominant approach in other jurisdictions, including Canada, is to treat it as another factor, albeit a factor of potentially great importance. (Buxbaum (Litigation guardian of) v. Buxbaum, [1997] O.J. No. 5166 (QL) (C.A.); Glendale v. Drozdzik (1993), 77 B.C.L.R. (2d) 106 (C.A.); Pollard v. Gibson (1986), 1 Y.R. 167 (S.C.); Joanisse v. Y. (D.) (1995), 15 B.C.L.R. (3d) 224 (S.C.); Canada v. Lukasik (1985), 18 D.L.R. (4th) 245 (Alta. Q.B.); Wittig v. Wittig (1986), 53 Sask. R. 138 (Q.B.)) The Ontario Law Reform Commission, supra, recommended that the "court should be entitled to consider the fact and adequacy of any prior penalty imposed in [page636] any criminal or other similar proceeding brought against the defendant" (p. 46).
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Page 23 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 70 Fourth, the incantation of the time-honoured pejoratives ("high-handed", "oppressive", "vindictive", etc.) provides insufficient guidance (or discipline) to the judge or jury setting the amount. Lord Diplock in Cassell, supra, at p. 1129, called these the "whole gamut of dyslogistic judicial epithets". A more principled and less exhortatory approach is desirable. 71 Fifth, all jurisdictions seek to promote rationality. In directing itself to the punitive damages, the court should relate the facts of the particular case to the underlying purposes of punitive damages and ask itself how, in particular, an award would further one or other of the objectives of the law, and what is the lowest award that would serve the purpose, i.e., because any higher award would be irrational. 72 Sixth, it is rational to use punitive damages to relieve a wrongdoer of its profit where compensatory damages would amount to nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others.
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