The general principles underlying our system of damages suggest that a

The general principles underlying our system of

This preview shows page 38 - 40 out of 44 pages.

The general principles underlying our system of damages suggest that a plaintiff should receive full and fair compensation, calculated to place him or her in the same position as he or she would have been had the tort not been committed, in so far as this can be achieved by a monetary award. [page665] (Ratych v. Bloomer, [1990] 1 S.C.R. 940, at p. 981, per McLachlin J. (as she then was); see also Jacobi v. Griffiths, [1999] 2 S.C.R. 570, at para. 70, per Binnie J.) 148 The award of punitive damages in discussion here leads us far away from this principle. It tends to turn tort law upside down. It transmogrifies what should have remained an incident of a contracts case into the central issue of the dispute. The main purpose of the action becomes the search for punishment, not compensation. Perhaps, at some time in the future, this will be viewed as part of a broad intellectual and social movement of privatization of criminal justice, consonant with the general evolution of society. For the time being, without using in terrorem arguments, such an award has a potential to alter significantly what would appear to have been the proper function of tort law. 149 It would be useless, within the limits of these reasons, to review the controversies surrounding punitive damages. Whatever the doubts raised at times by academic or judicial opinion about their place in the law of torts, Canadian tort law now accepts that a private action in torts may give rise, in the proper cases, to an award of punitive damages. They may even be awarded in a contracts case, provided an independent actionable wrong is made out. (See Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, at p. 1104; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 79, per Iacobucci J.) 150 The use of this remedy appears to be flexible. Nevertheless, if necessary, punitive damages must be granted and assessed in such a way that they serve rational purposes and represent a proportionate response to the behaviour of defendants and the harm caused. Also, as can be seen in this case, when [page666] the matter comes up before a civil jury, jurors must be instructed properly as to the nature and purposes of punitive damages and the conditions under which they may be awarded. 2. Rationality and Proportionality 151 I agree with Binnie J. on the core principles governing the award of punitive damages. The key considerations remain the rationality and proportionality of the award. The concept of rationality remains grounded in the nature of tort law, its historical development and the functions it is now playing in modern society. First and foremost, the assessment of damages should not lead, in some cases, to a confusion of criminal law and private law principles, given that punitive damages and criminal punishment target primarily the conduct of the respondent or accused and are not primarily concerned with making good the loss or harm suffered by victims.
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Page 39 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 The main concern of punitive damages remains the preservation of public order, and the assuaging of such harm as may have been done to the public good and to the social peace.
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