A jury will be allowed to assess the quantum of damages provided, however, that the plaintiff has crossed the threshold of showing sufficient evidence to allow this issue to be put to the jury. The Supreme Court of Canada considered this issue in its 2001 decision.  The issue in question was a review of the evidence to support the claim of intentional infliction of mental distress. ¹ The trial judge had allowed this issue to be put to the jury for assessment which returned a judgment of $100,000.

The Supreme Court found that there was insufficient evidence of an independently actionable wrong to allow the case to go to the jury on this issue:

The respondents disputed the trial decision on this point, stating that Paris J. employed an incorrect standard in allowing the jury to consider the question of aggravated damages. I am also of that opinion. According to Wallace, the proper threshold for allowing this issue to be determined by a jury is whether or not sufficient evidence exists. It was found on the facts of that case that there was no basis upon which to interfere with the finding that “there was insufficient evidence” of a separately actionable wrong (emphasis added). The standard set out by Paris J. fell short of the Wallace test by suggesting, in effect, that any evidence, even a mere scintilla thereof, would suffice to put the matter of aggravated damages to the jury for its consideration.

82                              Applying the correct standard to the present case, I would conclude that there was not sufficient evidence before Paris J. to allow the jury to deliberate on the question of aggravated damages. More specifically, a fair reading of the evidence does not, in my view, suggest that the respondents acted with an intention to harm the appellant either by deliberately inflicting mental distress or by acting in a discriminatory manner.  ²

The trial award of aggravated damages was set aside. ³

The Alberta Court of Appeal came to the same conclusion in its 2011 decision ⁴ applying the same test to conclude that there was insufficient evidence at trial to allow the jury to decide this issue.

The same conclusion was reached by the Ontario Court of Appeal in a 2007 case: ⁵

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative[.]

In this case, the Court of Appeal found that there was no such reasonable basis for questions on the causation issue to be put to the jury. That being said, it continued to state that this did not, nonetheless, amount to a miscarriage of justice:

In my view, the evidence on the record establishes no more than a vague possibility that the respondent's depression and post-traumatic stress would have developed to some degree in the absence of the sexual assaults. However, evidence [page366] of a vague possibility is not reasonable evidence of a material risk. In the absence of reasonable evidence that there was a material risk that the respondent's conditions would have developed absent the sexual assaults, there was no need to leave the "crumbling skull" question with the jury. I therefore conclude that there was no substantial wrong or miscarriage of justice occasioned by the failure of the trial judge to consider whether to do so.

In the same case, the Court of Appeal agreed that the trial judge was correct in finding that the claim for an income loss was not to be put to the jury for the apparent lack of a reasonable case on the evidence and indeed, in this instance, in the pleadings:

[92] The trial judge properly took into account the inadequacy of the pleading as well as the respondent's failure to produce her income tax statements and allow further discovery. Considering these factors and the nature of the evidence led at trial, she determined that there was simply no basis to leave the question with the jury. This ruling is entitled to deference as the trial judge was in the best position to evaluate the issue, and she did so in a reasonable manner.

Juries have shown a warm welcome to claims of aggravated and punitive damages. A B.C. case allowed for a punitive damage award of $573,000. This remains the high water mark today for punitive damages in an employment context. ⁶

In the case of McKinley v BC Tel, the jury awarded $100,000 in aggravated damages. It was later set aside on the basis that there was insufficient evidence at trial to allow the issue to go to the jury.

In the Alberta decision above, the jury returned an aggravated damage award of $300,000 and $200,000 in aggravated and punitive damages respectively. These awards were reduced on appeal to $50,000 and $75,000.  ⁷

The jury in the Ontario decision of Boucher v Wal-Mart allowed an aggravated damage award of $200,000 and a punitive sum of $1 million. The aggravated damage claim was sustained on appeal, while the punitive award was reduced to $100,000 against the corporation and $10,000 against the personal defendant.

The Ontario Court of Appeal in December of 2023 upheld a jury award of $1.5 million in punitive damages against Sun Life in a claim for unfair treatment of an applicant seeking disability benefits. ⁸ At trial before a jury, the plaintiff was awarded lost disability benefits of $220,000, aggravated damages of $40,000 and full costs of the 22 day trial of approximately $1 million. ⁹ She also was awarded a declaration that she, at trial, was totally disabled as such term was defined in the policy.

The issue on appeal was the award of punitive damages. Blue Cross also sought leave to appeal, as is required, on the issue of costs alone. Both appeals were dismissed.

The case arose through a group disability policy provided through the plaintiff’s employment with Compass Group Canada which provided her services to Humber River Hospital.

The plaintiff had suffered a stroke at age 38, while she was exercising in October of 2013. She was paid short term disability benefits until January 2014. She was denied then denied these benefits, a decision which she successfully appealed internally. She was then allowed benefits to March 7, 2014 for a total short term period of 30 weeks.

She then applied for long-term disability. The policy contained the usual “own occupation” test for 2 years and subsequently “any occupation” test. The plaintiff received the first two years without issue. Following the 2 year threshold, she was denied the “any occupation” benefits. She appealed, internally again, the denial of these benefits at two such internal levels. She then sued.

The essential submission of Blue Cross was that it acted in good faith when it denied the claim and that “it has a right to be wrong”. The issue on this question centered on the factual foundation of the award, as found by the jury, that was wrong and that it had committed a good faith error. The Court of Appeal also noted that Blue Cross failed to call as witnesses all but one of the persons considering the internal appeals on the denial of benefits.

The record, the appellate court, was replete with evidence to support the award of punitive damages. ¹⁰ These included:

1. Blue Cross relied upon medical opinions from general practitioners which it knew or ought to have known that they were incorrect;

2. It selectively chose evidence to support the denial and ignored contrary medical evidence. One such detail was that a report from a Dr. Knox, an external reviewer, which stated “I don’t believe she can return to work at this time, even on a part-time basis”. This statement was omitted from the review;

3. The insurer sought an independent medical examination for the first time two and one-half years after the stroke;

4. Having received this report, it distorted its conclusion to support the denial decision;

5. It “persisted in distorting Dr. Kane’s and Ms. Kresak’s reports even when counsel for the plaintiff drew these errors to its attention. ¹¹

The Court of Appeal saw such evidence supportive of the bad faith conduct of Blue Cross:

Overall, we see repeated instances of the Blue Cross team ignoring information, misinterpreting experts’ reports, and relying on the ill-informed advice of their contracted doctors to deny benefits. In effect, they created a closed loop of information that ignored contrary information and created a counter-narrative based on their misinterpretation of the relevant data. This is a pattern of misconduct that, at best, shows reckless indifference to its duty to consider the respondent’s claim in good faith and conduct a good faith investigation, and at worst, demonstrates a deliberate strategy to wrongfully deny her benefits, regardless of the evidence that demonstrated an entitlement.

[31]      These examples or any combination offer a sufficient basis to award punitive damages. Jurors could have concluded that Blue Cross was not just cavalier in treating the respondent’s claim but that it undertook a deliberate strategy to wrongfully deny her the benefits she was entitled to under the policy. The fact that Blue Cross failed to call the critical witnesses to provide the context about their handling of the file could further serve to support a finding that the conduct was deliberate.

As to the quantum awarded, the court also observed that there was ample evidence to show that such conduct was systemic within the company, which added reinforcement for the award.

On the issue of costs, the Court of Appeal agreed that there should not be a general rule that full costs should follow a successful disability award. It did grant leave on this as a discrete issue; however, it then determined that full costs should be allowed, given the conduct of the insurer and allowed this in the sum as awarded.

A summary of significant jury awards in employment law cases follows:

Case Date Order	Details	Aggravated Other Claims	Punitive
Baker v Blue Cross OCA December 2023 on appeal from a jury award at trial	Appeal was based on award of punitive damages and costs. Blue Cross relied upon medical opinions from general practitioners which it knew or ought to have known that they were incorrect; It selectively chose evidence to support the denial and ignored contrary medical evidence. One such detail was that a report from a Dr. Knox, an external reviewer, which stated “I don’t believe she can return to work at this time, even on a part-time basis”. This statement was omitted from the review; The insurer sought an independent medical examination for the first time two and one-half years after the stroke; Having received this report, it distorted its conclusion to support the denial decision; It “persisted in distorting Dr. Kane’s and Ms. Kresak’s reports even when counsel for the plaintiff drew these errors to its attention. 12   Leave to appeal was allowed on costs as a discrete issue. OCA overturned principle of full costs on a disability claim, yet upheld the full costs award in principle and quantum, given the bad faith conduct.	$40,000 Plus full costs at $1 million; Full arrears and a declaration of entitlement	$1.5 million
Boucher v Wal-Mart OCA May 2014	Unfair investigation Jury at trial had ordered $1 million in punitive damages which was reduced on appeal to $100,000, against Wal-Mart. Jury also awarded damages of $250,000 against the manager, Pinnock, made up of $100,000 for intentional infliction of mental suffering, and $150,000 in punitive damages (awards for which Wal-Mart was vicariously). The tort award of $100,000 was upheld on appeal. The punitive award against the manager was reduced on appeal to $10,000. Pinnock's conduct was flagrant and outrageous. He belittled, humiliated and demeaned Boucher continuously and unrelentingly, often in front of co-workers, for nearly six months. The tort award remained in place.	$200,000 plus $100,000 for tort of intentional infliction of mental suffering against the manager	$100,000 against employer and $10,000 against manager
Higginson v Babine Forest Products BC SC 2012 Not reported Jury trial A summary may be found here.	Plff employed for 34 years; Plff showed that the company management had deliberately attempted to create an unpleasant work environment at the sawmill in the hope that he would decide to leave on his own. When he didn't quit the company created false grounds to dismiss him for cause in order to avoid paying severance. Case was appealed and settled before the hearing.		$573,000
MB v Deluxe Windows OCA March 2012 Leave denied	Sexual assault; Serious psychological injuries   OCA found that the trial judge’s charge to the jury was incorrect in not setting out the influence of external factors impacting the plff, yet this was not influential on overall award. The jury’s awards were allowed to stand.	$300,000 assault $25,000
Elgert v Home Hardware Alb CA April 2011	Unfair investigation of sexual harassment allegations; Trial award of $300,000 aggravated damages set aside on appeal and $200,000 punitive reduced to $75,000.	$60,000 damages in defamation against personal defendants	$75,000
McKinley v. BC Tel par 82 SCC 2001	Jury at trial had awarded $100,000 in damages for the tort of the intentional infliction of mental harm. Trial judge’s decision to allow this issue to go to the jury was set aside due to lack of evidence at trial to show intent to cause harm.

 

Aggravated damage cases are reviewed separately here and punitive damage awards are similarly discussed here.