Aggravated & Punitive Damages on Same Facts

It does not follow that awards of aggravated and punitive damages are duplicitous when such sums are based on the same factual foundation. This is so as the purpose of each award has a distinct and different purpose. Aggravated damages are intended to compensate for mental suffering caused by the breach of the duty of good faith while punitive damages are granted to punish unfair conduct. ¹

Punitive damages are rationalized in that compensatory damages are simply insufficient to respond to the conduct being addressed. ² In Strudwick, the Court of Appeal found that the facts allowed for both awards:

I agree with the motion judge that this is such a case. In my view, Applied Consumer’s conduct in relation to Ms. Strudwick, who the evidence demonstrates was a highly regarded, long-term, faithful employee who became profoundly disabled late in life, can only be described as a marked departure from any conceivable standard of decent behaviour. Such conduct deserves punishment on its own. The imposition of punitive damages is necessary for the purposes of denunciation, deterrence and retribution.

Punitive damages were awarded in the sum of $55,000 by the Court of Appeal, in setting aside the trial award of $15,000. The Court of Appeal noted that pecuniary and non-monetary losses, including pain and suffering would be allowed once the tort has been established:

After the tort of intentional infliction of mental suffering has been established, the resulting illness provides the measureable damages, and the ordinary principles of assessment for damages relating to personal injuries apply. An individual may therefore recover pecuniary losses, including medical expenses, and non-pecuniary losses, including pain and suffering and loss of amenities of life: Remedies in Tort, ed. by Linda D. Rainaldi, loose-leaf (Toronto: Thomson Reuters Canada Ltd., 2016), at p. 10-24.

This being said, the quantum of aggravated damages will also be considered when assessing this award, as noted above.

This follows the ratio of the cases above in which the plaintiff was awarded aggravated and human rights damages without set-off.

Aggravated damages are reviewed separately here and as is the topic of punitive damages here.