Punitive Damages in Canada: Hard Choices and High Stakes

“Punitive Damages in Canada: Hard Choices and High Stakes” [1998] New Zealand Law Review 741.        

32 Pages Posted: 27 Jul 2014

See all articles by Bruce Feldthusen

Bruce Feldthusen

University of Ottawa - Common Law Section

Date Written: 1998

Abstract

The article deals primarily with significant changes that have occurred in the law of punitive damages in Canada over the past ten years. First, punitive damages awards seem to be more common. In part, this is due to two developments now foreclosed in New Zealand: the proliferation of actions for sexual battery; and the fact that a prior criminal conviction no longer operates as an automatic bar to punitive damages. However, punitive damages have also flourished in actions for breach of fiduciary duty and in cases of bad faith breach of contract, as presumably they might also develop in New Zealand. Second, Canadian punitive damage awards have become larger, with several awards having been made in excess of a million dollars. Thus development is not foreclosed by New Zealand doctrine. In part, these larger awards may be explained by high-profile jury awards. In part, the defendant’s wealth, particularly corporate wealth, appears to have been relied upon to support much larger awards than had been seen previously. Perhaps, most importantly, 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. The implications of a move from retribution to general deterrence are striking. They have been little discussed in Canada, and perhaps less elsewhere in the Commonwealth including New Zealand. The article concludes that the courts must recognize these differences, and choose thoughtfully between the competing rationales.

Keywords: law, punitive damages, Canada, awards, New Zealand, sexual battery, courts, deterrence

Suggested Citation

Feldthusen, Bruce, Punitive Damages in Canada: Hard Choices and High Stakes (1998). “Punitive Damages in Canada: Hard Choices and High Stakes” [1998] New Zealand Law Review 741.        , Available at SSRN: https://ssrn.com/abstract=2472403

Bruce Feldthusen (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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