Characteristics of Medical Malpractice Punitive Damages that are Awarded in Canada. Punitive damages are intended as a deterrence. Punitive damages in Canada Punitive or exemplary damages are generally only available in Canada where there is proof of malicious conduct on the part of the defendant. by Jim Cameron of Cameron & Associates Insurance Consultants Ltd. Just before Christmas, the Supreme Court of Canada heard argument in the case of Whiten v. Pilot. At the Supreme Court of Canada, the Insurance Council of Canada (ICC), representing the majority of property and casualty insurers, intervened and was allowed to argue before the court. And where punitive damages are concerned, Canadian courts usually can be characterized as follows. 1. To search a specific page press ctrl+f while in that page. In practice, insurers usually cannot and will not segregate or allocate defence costs between those incurred for the punitive damage defence and those costs incurred for covered claim defences. Binnie J. laid out the following principles in relation to punitive damages: (i) Unlike in Britain where there are only specific categories for punitive damages, in Canada punitive damages can be awarded to: Punish the defendant, Deter the defendant and others; Denounce the … (i.e. Canada's FCA refuses to intervene in trial judge's decision with respect to punitive damages. Canadian courts are generally careful in exercising their discretion to award these damages, which are an exception to the time-honored principle that civil damages seek to compensate the victim. This is an unsettled area of law in Canada. The Ontario Court of Appeal, with Justice Laskin dissenting, allowed the appeal in part by substituting the sum of $100,000 for the punitive damages award. Often the target defendant is an insurer but the “statement of claim” usually seeks punitive damages against all defendants. Learn more and download a copy.. The case was McIntyre v.Grigg, 83 O.R. Search by keyword, across entire website. As the term implies, “punitive” damages are meant to punish the offending party rather than to compensate the plaintiff. Damages awarded in a civil lawsuit in order to punish wrongdoing of a greater culpability than simple negligence, without regard to compensating the plaintiff’s actual loss. What about the rise in punitive damage claims in other areas? The more recent of the two Supreme Court of Canada decisions is Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII). a breach of the contractual duty of good faith is independent of and in addition to the breach of contractual duty to pay the loss) • Punitive damages may be awarded in situations where the defendant's misconduct is so Because they are usually paid in excess of the plaintiff's provable injuries, punitive damages are awarded only in special cases, usually under tort law, if the defendant's conduct was egregiously insidious. Some states prohibit insurance of punitive damages on the grounds that spreading the risk of punishment for willful misconduct lessens the deterrent effect. The claim for punitive damages was advanced on the basis that Canada Life acted so inappropriately punitive damages were required. The worst aspect of this harsh reality is that the insured wonders why his insurer is not fully supporting him. To attempt to do so seems very arbitrary. Historically, punitive damages were not available in Quebec civil law but are now provided for in certain legislation. Insurers anxiously await the ruling, which may not be released until late spring or early summer. Can he trust the insurer? Insureds may even be willing to pay a small additional premium for this added protection and peace of mind. The purpose of a punitive damage award is to punish the defendant. The insurer, try as they may to dispel the insured’s fears, can not state that they are defending the punitive damages claim. Punitive damages are intended as a deterrence. 670; Cooper-Stephenson, K. and Saunders, I., Personal Injury Damages in Canada. Court Some policies specifically exclude coverage for punitive damages, while others rely on state laws. The Applicant filed a motion to the LAT requesting that a claim for punitive damages be added as an issue in dispute on the basis of an alleged privacy breach. Trans Canada Insurance Marketing (TCIM) is the proud recipient of the 2016 Five Star MGAs Award as published in Insurance Business Canada, Copyright © 2020. This is cold comfort to a nervous insured who sees the six-figure damages claims under the heading of punitive damages. A pandemic. When the statement of claim is passed to the insurer, the insurer often issues a “reservation of rights letter”. Punitive damages in Canada The court did something similar in a trilogy of cases in 1978 that still imposes a ceiling on non-pecuniary general damage awards of $100,000 in 1978 dollars (now adjusted for inflation to slightly over $250,000). Punitive damages Thankfully, there’s a way to keep your brokerage and level the playing field. The dwelling and all their belongings were destroyed and their three cats died in the fire. Some courts have relied upon public policy considerations to refuse to … Insurance Corp. of British Columbia, [1989] 1 SCR 1085, the Supreme Court of Canada observed that conduct meriting punitive damages awards must be: “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment”. • Punitive damages may only be awarded for breach of an independent actionable wrong. February 1, 2001   What the insurer will say is that the allegations against the insured of negligent acts or omissions will be defended and unless this defence is unsuccessful, there would be minimal chance of a finding of punitive damages. The table below shows the insurability of punitive damages by state. Whiten v Pilot Insurance Co, 2002 SCC 18, 1 S.C.R. Therefore, whether or not punitive damages can be reinsured is ultimately determined by the terms of the policy. A court may order an amount, in addition to the regular damages, because the plaintiff’s feelings were hurt due to the defendant’s behavior. ; pecuniary. The defence agreement usually already stipulates that the policy will defend frivolous and vexatious claims and other claims without merit. Insurers still may have to issue reservation of rights letters to the insured cautioning them that any award of punitive damages would not be covered under their policy but they will, with the assistance of the insured, vigorously defend punitive and other damage claims. Your email address will not be published. As an adjunct to the fundamental compensatory basis of personal injury damages awards, Canadian courts can also make non-compensatory awards in the form of exemplary or punitive damages in circumstances warranting censure and punishment of the defendant.2 The case related to the oppressive conduct of an insurance company in dealing with the policyholders' claim following a fire. 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