McIntyre et al. v. Grigg et al. [Indexed as: McIntyre v. Grigg]

83 O.R. (3d) 161

Court of Appeal for Ontario,

McMurtry C.J.O., Weiler and Blair JJ.A.

November 6, 2006

Damages -- Aggravated damages -- Trial judge erring in awarding aggravated damages in amount of $100,000 separately after awarding non-pecuniary general damages in amount of $250,000 -- Aggravated damages are not to be awarded separately from and in addition to general damages -- General damages are to be assessed after taking into account any aggravated features of defendant's conduct.

Damages -- Apportionment -- Plaintiff injured when struck by intoxicated driver -- Jury apportioning 70 per cent of damages to driver and 30 per cent to commercial host -- Apportionment reasonable -- Appeal from apportionment dismissed.

Damages -- Personal injuries -- General damages -- Young, athletic first-year university student suffering serious physical and psychological injuries after struck by car -- Non- pecuniary general damages in amount of $250,000 affirmed on appeal.

Damages -- Punitive damages -- Negligent conduct only attracting punitive damages if it was intentional and deliberate and if it was so extreme as to be deserving of full condemnation and punishment -- Defendant driving while his blood alcohol content was two to three times over legal limit -- Defendant striking pedestrian -- Defendant charged with criminal offences but pleading guilty to highway traffic offence and being fined $500 -- Defendant's conduct properly attracting punitive damages -- Trial judge's award of punitive damages in amount of $100,000 excessive -- Award reduced to $20,000.

Torts -- Commercial host liability -- Plaintiff struck and injured by impaired driver after driver left defendant pub -- Trial judge instructing jury correctly on commercial host liability -- Defendant's appeal from finding of liability dismissed.

The plaintiff A was seriously injured when she was struck by a motor vehicle driven by the defendant AG and owned by the defendant TG. AG's blood alcohol level was two to three times the legal limit. A, her parents and her sister brought an action against AG, TG and M. Inc., which operated the pub at which AG had been drinking just before the accident. A's parents and sister sought damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. The trial judge awarded general damages in the amount of $250,000, payable 70 per cent by the Gs and 30 per cent by M Inc., aggravated damages in the amount of $100,000, payable solely by the Gs and punitive damages of $100,000, payable solely by the Gs. The Family Law Act claims were dismissed. All three defendants appealed the award of damages, and M Inc. appealed that portion of the judgment based upon the verdict of the jury that found it 30 per cent liable for the accident. A's parents and sister appealed the dismissal of the Family Law Act claims.

Held, the defendants' appeal should be allowed in part; the plaintiffs' appeal should be allowed. [page162]

In Ontario, commercial host liability may be imposed both at common law and by statute where a patron, who subsequently causes injury, has been served while intoxicated or over-served to the point of intoxication and where it is reasonably foreseeable that the patron will drive a motor vehicle upon leaving the establishment. A commercial host does not escape liability simply by not knowing that the patron became inebriated before driving; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in this condition. The trial judge properly charged the jury on the issue of M Inc.'s liability at common law and under the Liquor Licence Act, R.S.O. 1990, c. L.19. The trial judge did not instruct the jury that liability under s. 39 of the Liquor Licence Act is "absolute". The liability under s. 39 is more accurately characterized as a statutory liability arising once the factual preconditions provided for therein have been found to exist. That is what the trial judge instructed the jury. There was sufficient evidence to support the jury's finding that M Inc. was liable.

A jury award assessing the degree of apportionment of damages as between defendants is to be treated with deference. In the absence of material misdirection or non-direction, appellate courts will not interfere unless the verdict is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have arrived at that conclusion. The 70-30 apportionment in this case was reasonable.

A was an active, athletic and intelligent young woman who suffered serious and permanent injuries as a result of the accident. Physically, she sustained a closed head injury, soft tissue injuries and various orthopaedic injuries. She was diagnosed as suffering from a major depressive disorder triggered by the accident, which led to two suicide attempts. The medical evidence attributed her depression to post- traumatic stress disorder and to her personal reaction to the losses in her function and self-image from her physical injuries. She would require medication and was likely to suffer from anxiety and fear on a long-term basis. The award of general damages in the amount of $250,000 was reasonable.

Aggravated damages are not awarded in addition to general damages. Rather, general non-pecuniary damages should be assessed after taking into account any aggravated features of the defendant's conduct. There was no legal basis for a separate award of aggravated damages in this case. Moreover, the medical evidence was insufficient to establish that A's psychological harm was increased because AG was impaired at the time of the accident. Given that the upper limit at the time of the trial was $299,000, the jury award of $250,000 for general non-pecuniary damages was generous and should not be increased even if there was an evidentiary basis for awarding aggravated damages.

Punitive damages should only be awarded in exceptional cases, where the defendant has engaged in extreme misconduct. Negligent conduct can only attract punitive damages if the misconduct in question was intentional and deliberate and was extreme in nature and such that by any reasonable standard it is deserving of full condemnation and punishment. AG's conduct was deliberate and intentional. His decision to drink excessively and drive, his intoxication, and his speed and erratic driving were key contributors to the accident. All of those factors demonstrated that on the night of the accident, AG showed a conscious and reckless disregard for the lives and safety of others. A factor of significant importance in assessing whether it would be appropriate to award punitive damages is whether punishment has already been imposed in a separate proceeding for the same misconduct. An award of punitive damages was justified. Given that AG's sole punishment for his conduct in the criminal proceedings was a $500 fine, [page163] punitive damages would not amount to double punishment. The quantum of the punitive damages awarded in this case was excessive. AG's lower level of moral blameworthiness given the isolated nature of the misconduct, the lack of a relationship between the parties (in comparison to a relationship of trust) and the fact that the misconduct was not specifically directed at the plaintiff, indicated that a lesser quantum of punitive damages would be rational. The quantum was reduced to $20,000.

The jury's verdict dismissing the Family Law Act claims was so plainly unreasonable and unjust that no jury, reviewing the evidence as a whole and acting judicially, could have refused to make any award. A's parents were each awarded $15,000 and her sister was awarded $5,000.

Per Blair J.A. (dissenting in part): The existence of egregious conduct worthy of condemnation by the court -- while the target of an award of punitive damages -- is not in itself sufficient to justify the granting of such an exceptional remedy. The court must have regard to all of the principles underpinning a punitive damages award in order to determine whether punitive damages serve a rational purpose in the circumstances. In particular, the court must be satisfied that the granting of punitive damages in a civil tort context -- a concept foreign to the primarily compensatory rationale of tort law -- advances the objectives of the remedy (punishment, deterrence and denunciation) and outweighs the general rule that these public-oriented objectives are principally addressed by the criminal law. Punitive damages did not serve a rational purpose in the circumstances of this case and, generally, they will not serve a rational purpose in cases of a similar nature. Punitive damages, in the milieu of motor vehicle negligence, do not materially advance the objectives of punitive damages. Moreover, awarding punitive damages in what will inevitably become less than the rare and exceptional case tips the criminal law/private law balance respecting the imposition of a public sanction too far in the direction of a private law tort remedy. This will result in windfall recoveries for a large number of claimants whose compensatory entitlement has no relationship whatever to the recovery they will receive.

APPEALS from the award of damages from the judgment of Fedak J. of the Superior Court of Justice, dated March 9, 2004. Court File No. C41585:

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David F. Smye, Q.C. and Michael J. Winward, for respondent. Patrick J. Monaghan, for appellant McMaster Student Union Incorporated. Court File No. C41663: David F. Smye, Q.C. and Michael J. Winward, for respondent. Sheldon A. Gilbert, Q.C. and Shawn R. Stringer, for appellants Thomas Grigg and Andrew Grigg. Court File No. C41674: David F. Smye, Q.C. and Michael J. Winward, for appellants. [page166] Patrick J. Monaghan, for respondent McMaster Student Union Incorporated. Sheldon A. Gilbert, Q.C. and Shawn R. Stringer, for respondents Thomas Grigg and Andrew Grigg.

BY THE COURT( BLAIR J.A. dissenting in part): --

A. Overview

[1] The reasons in these appeals are unanimous with the exception of a dissent by Blair J.A. with respect to the issue of punitive damages. The reasons in the By the Court section of this judgment regarding punitive damages are those of McMurtry C.J.O. and Weiler J.A.

[2] The appellants Thomas Grigg and Andrew Grigg and McMaster Student Union Incorporated, carrying on business as "The Downstairs John", appeal the awards of damages set out in the judgment of Justice Fedak dated March 9, 2004, at Hamilton pursuant to answers given by a jury, wherein the plaintiff respondent Andrea McIntyre was awarded the following amounts:

(a) General damages of $250,000 payable 70 per cent by the appellants Thomas Grigg and Andrew Grigg and 30 per cent by McMaster Student Union Incorporated;

(b) Aggravated damages of $100,000 payable solely by the appellants Grigg;

(c) Punitive damages of $100,000 payable solely by the appellants Grigg.

[3] The appellant McMaster Student Union Incorporated also appeals that portion of the judgment of the trial judge based upon the verdict of the jury that found it 30 per cent liable for the subject motor vehicle accident.

[4] The appellants Duncan McIntyre, Darlene McIntyre and Alexis McIntyre appeal the jury verdict which dismissed their claims for damages pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3, relative to the losses they claimed following the personal injuries sustained by Andrea McIntyre.

[5] These appeals involve a motor vehicle accident, which occurred on September 13, 1996, at approximately 2:15 a.m. in the City of Hamilton. Earlier that night Andrea McIntyre (hereafter referred to as "Andrea"), a first year student at McMaster University, had attended a campus bar operated by McMaster Student Union Incorporated (hereafter referred to as "McMaster") [page167] known as "The Downstairs John". Andrea was walking home with her friends when she was struck and injured by a motor vehicle owned by Thomas Grigg and operated by Andrew Grigg.

[6] Andrew Grigg had also consumed alcohol at "The Downstairs John" shortly before the accident. It was alleged in the action against McMaster that Andrew Grigg was either over-served by McMaster or served while apparently intoxicated.

B. The Facts

(a) The accident

[7] On September 13, 1996, Andrea and several of her friends were walking along the curb of Forsythe Avenue in Hamilton, Ontario after leaving the McMaster pub when the vehicle operated by an impaired driver, Andrew Grigg, struck her.

[8] At the time, Andrew Grigg was a Hamilton Tiger-Cat football player. After a football practice, he had attended at two drinking establishments, Kelsey's and the Crowbar, before ending up at the Downstairs John with some [of] his friends. After he left, one of his passengers realized that she had forgotten her purse, and so he began driving back to the pub. At the corner of King Street and Forsythe Avenue, Andrew Grigg failed to stop his vehicle at the stop sign and made a reckless wide right-hand turn to proceed northbound on Forsythe Avenue. The vehicle sheared off a lamp post and struck Andrea.

[9] Numerous witnesses testified at trial that Andrew Grigg was speeding and that he took no evasive measures such as braking or turning before hitting Andrea. He testified that he did not see Andrea or any of her friends before the accident and he admitted that even if Andrea had been on the sidewalk, instead of walking along the curb, his vehicle would still have collided with her.

[10] Andrew Grigg failed a breathalyzer test shortly after the accident. At trial, testimony indicated that his blood alcohol level was two to three times over the legal limit. He was initially charged with "operating a motor vehicle, having consumed alcohol in such a quantity that the concentration in the person's blood exceeds 80 milligrams of alcohol in 100 millilitres of blood" in contravention of the Criminal Code, R.S.C. 1985, c. C-46. Later, counts of "impaired driving causing bodily harm" and the "operation of a motor vehicle in a manner dangerous to the public causing bodily harm" were added.

[11] Ultimately, the Crown Attorney decided to proceed only with a charge of careless driving and withdrew the other charges. The prosecution made this decision because before the breathalyzer test was administered, Andrew Grigg had not been [page168] informed of his right to counsel. The Crown Attorney testified at the trial that had Andrew Grigg been convicted, he would have asked for and would have expected that Andrew Grigg would have received a period of incarceration. Andrew Grigg pled guilty to careless driving and received a fine of $500. No licence suspension was imposed.

(b) The injuries sustained by Andrea McIntyre

[12] At the time of accident, Andrea was a first-year student at McMaster University and was an outstanding athlete. Among her many athletic interests, she was exceptionally passionate about rugby and played on the intercollegiate team. Andrea's former teachers and coaches described her as "very positive", "easy to coach", and "a very skilled athlete" with "a great disposition". She intended to pursue a post-secondary degree with the goal of becoming a chiropractor.

[13] As a result of the accident, Andrea suffered both physical and psychological injuries. Her physical injuries included a closed head injury, soft tissue and orthopaedic injuries. The primary orthopaedic injury was a comminuted fracture of her right femur.

[14] Six years after the accident, Andrea was still suffering from lower back pain, right lateral thigh numbness, numbness on the inner aspect of her thigh, right knee discomfort with locking, right ankle and lower shin discomfort and right large toe pain. At the time of the trial she also had a reduced range of motion in her right hip, her right hemi-pelvis is tipped down (potentially the cause of her back pain), and she has permanent scarring in two places on her right leg. She also has a very probable increased risk of arthritis in her hip, right knee, foot and ankle.

[15] Andrea's physical injuries are such that she will never be able to resume the level of athletic activity and competitive skill that she had demonstrated prior to the accident. She testified that this has had a "devastating" effect on her given the importance of athletics in her life.

[16] Furthermore, Andrea has also suffered serious psychological injury, which one medical expert testified was the result of mild brain trauma. As a result, she has had problems with depression, most notably two major depressive episodes during which she attempted suicide. During the first episode on October 21, 1996, Andrea became psychotic, delusional, and required hospitalization. She was diagnosed as having a major depressive episode and had become catatonic with severe psychomotor retardation. She also believed that her family was being [page169] hunted or persecuted in some manner. In the opinion of one psychiatrist, when Andrea's sister Jennifer had a motor vehicle accident, it led Andrea to attempt suicide so that the "hunt" would be over. All of the expert psychiatric evidence at the trial confirmed that Andrea's depression leading to the suicide attempt was accident-related.

[17] There was a second suicide attempt by Andrea in 2000, which medical testimony called on her behalf also attributed to the accident.

[18] Several of the medical experts expressed the opinion that there is a significant instance of recurrence for persons who have suffered major depressive episodes. One expert testified that individuals such as Andrea who have had two episodes have a 70 per cent chance of having a third episode and individuals who have had three episodes have a 90 per cent chance of having a fourth.

[19] In order to attempt to prevent a recurrence of serious depression, Andrea has been advised to remain on medication for the rest of her life and several of the medical experts testified that she should continue psychiatric counselling as well. Andrea testified that the thought of any recurrence of her depression is "just so terrifying" and that she fears her depression may affect her ability to get married and have a family. She also testified that she has ongoing battles with anxiety and as such, has had to limit her career choices to accommodate both her physical injuries and her inability to handle stress. A psychiatrist testified that he shared this concern and expressed the opinion that Andrea will have to tailor her lifestyle to minimize anxiety and stress, in an attempt to prevent her depression from recurring. An economist also testified that Andrea has suffered a reduction in lifetime earning potential as a result of the accident.

C. Issues on Appeal

[20] The parties brought three separate appeals from the proceeding below. In the interest of clarity, we have grouped similar issues together in our analysis below. The issues raised by the appeals are:

(1) The liability and apportionment of liability regarding McMaster;

(2) The apportionment of costs at trial;

(3) The awards of damages, including:

(a) the award of general damages; [page170]

(b) the award of aggravated damages; and

(c) the award of punitive damages;

(4) The Family Law Act claim.

D. Analysis

I. Liability and apportionment of liability regarding McMaster

[21] McMaster appeals the finding of liability, as well as the jury's 30 per cent apportionment of that liability, against it. For the reasons that follow, we would not interfere with either finding.

(a) Liability of McMaster

[22] McMaster submitted that the trial judge erred by instructing the jury that a taverner's liability was a matter of absolute liability rather than negligence and, further, he erred because there was no evidence Andrew Grigg was either over-served at the Pub or served while apparently intoxicated. In addition, McMaster argued that the trial judge failed to give a proper charge on the use of similar fact evidence and, in any event, unfairly admitted the similar fact evidence when it had not been disclosed to the appellants prior to trial. McMaster could therefore not be liable at law for the injuries to Andrea.

i. Commercial host liability

[23] In Ontario, commercial host liability may be imposed both at common law and by statute where a patron, who subsequently causes injury, has been served while intoxicated or over-served to the point of intoxication, and where it is reasonably foreseeable that the patron will drive a motor vehicle upon leaving the establishment. Commercial vendors of alcohol have an obligation to monitor a patron's consumption of alcohol and should have protocols in place to ensure that all reasonable precautions are taken to prevent such patrons who subsequently drive from becoming intoxicated to the point where they cannot safely operate a motor vehicle. Moreover, a commercial host does not escape liability simply by not knowing that the patron became inebriated before driving; the commercial host is liable if it or its employees knew or ought reasonably to have known in the circumstances that the patron was in such a condition. See Stewart v. Pettie, 1995 147 (SCC), [1995] 1 S.C.R. 131, [1995] S.C.J. No. 3; Childs v. Desmoreaux (2004), 2004 15701 (ON CA), 71 O.R. (3d) 195, [2004] O.J. No. 2065 (C.A.), at paras. 52, 55, 66 and 70; and the Liquor Licence Act, R.S.O. 1990, c. L.19, s. 39. [page171]

[24] The relevant portion of s. 39 of the Liquor Licence Act states:

39. The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person's intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person: . . . . .

40. If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.

[25] McMaster alleges that the trial judge erred by instructing the jury that liability under s. 39 is "absolute" without telling them about the necessary "fault" or negligence component of such liability. We do not read the trial judge's charge in that fashion. In our view, the trial judge carefully and properly instructed the jury on the issue of the taverner's liability. In this regard, the trial judge said:

At common law commercial vendors of alcohol owe a general duty of care to persons who might reasonably be expected to come into contact with an intoxicated person and to whom the patron may pose some risk. That duty of care arises if there is some foreseeable risk of harm to the patron or to the third party.

Society has also provided guidelines for the standard of care in the provisions of the Ontario Liquor Licence Act [citation omitted]. Given that catastrophic injuries can result from operation of a motor vehicle by an inebriated person, a high standard is imposed on commercial establishments which supply alcohol. This it to ensure that they do not create a danger to users of the highway. The Ontario Liquor Licence Act imposes liability as a result of findings of fact in its relevant parts as follows:

[The trial judge then read to the jury the relevant portions of s. 39 of the Act as outlined above, and continued:]

Common law and statutory law therefore impose a duty on taverns to its patrons and others to ensure that the tavern does not serve alcohol which would either intoxicate or increase the patron's intoxication. They do not escape liability simply because a patron does not exhibit any visible signs of intoxication if in the circumstances the tavern knew or ought to have known that the patron was becoming intoxicated. Likewise, commercial vendors of alcohol cannot avoid liability where the establishment has intentionally structured the environment in such a way as to make it impossible to know whether intervention is necessary. This therefore imposes a very high or heavy responsibility upon owners and managers of drinking establishments.

A tavern's standards are too low if drinks are only refused if a patron exhibits signs of impairment such as being too loud, starting arguments, knocking [page172] over drinks, falling down, creating problems for the staff, or upsetting other patrons. Taverns have a duty also to take affirmative action to prevent intoxicated patrons from driving. In circumstances where it is reasonable to expect that a patron has come by car, there is a heavier duty on the tavern staff to keep an eye on the patron when they depart to check to see if the patron is driving and to arrange safe transportation, if necessary.

[26] Having regard to the provisions of the Act and to the common law as established by the Supreme Court of Canada and in this court, we see no error in this direction. The trial judge does not use the term "absolute liability" (although he may have expressed the view during pre-charge submissions by counsel that the statutory provision involved absolute liability). While that expression has been used in conjunction with a predecessor to s. 39 in the context of the notion of causation -- see Hague v. Billings (1993), 1993 8581 (ON CA), 13 O.R. (3d) 298, [1993] O.J. No. 945 (C.A.) -- it is more accurate to characterize the liability under s. 39 as a statutory liability arising once the factual pre-conditions provided for therein have been found to exist. That is what the trial judge instructed the jury was the case in this instance.

[27] In our view, the trial judge's instructions indicate that he properly charged the jury on the issue of McMaster's liability at common law and under the Liquor Licence Act. Read as a whole, the charge fairly put the position of the defence to the jury.

[28] The jury's answers to Questions 3 and 4 relevant to their verdict demonstrate that they understood and followed the trial judge's direction. Those questions, and the jury's answers to them, were as follows:

Question 3: Have the Plaintiffs or the Defendant Andrew Grigg satisfied you that there was negligence or breach of the statutory duty pursuant to the provisions of the Liquor Licence Act on the part of the Defendant McMaster Student Union Incorporate, carrying on business as "The Downstairs John", which caused or contributed to the accident in question?

Answer: Yes.

Question 4: If the answer to question 3 is yes, state fully of what the negligence or breach of the statutory duty of the Defendant McMaster Student Union Incorporated, carrying on business as "The Downstairs John" consisted.

Answer: Increased person's intoxication so that he was in danger of causing injury to himself and others.

Serving to point of intoxication.

Poor enforcement of Smart Serve protocol.

No changes to enforcement of Smart Serve protocol post- accident. [page173]

[29] We reject McMaster's submission that there was insufficient evidence to support these findings. In this respect, McMaster relies upon the evidence indicating that Andrew Grigg had an unusual capacity to display little sign of intoxication, in spite of significant blood alcohol levels and that there were no visible signals of intoxication on his part before or after the accident.

[30] Amongst other things, this evidence included the testimony of Susan Board, a McMaster employee, who said that she shook hands with Andrew Grigg when he entered the Pub at about 12:30 a.m., watched him walk down the stairs with no difficulty and did not notice a whisp of alcohol on his breath at the time. Ms. Board's evidence was that she observed Andrew Grigg before he left the Pub and had no concerns about signs of intoxication. Further, with the exception of the evidence of one witness, Gwen Farrell, no other witnesses were able to provide any indication that he was showing apparent signs of impairment, other than the smell of alcohol on his breath. These witnesses included the police officers who attended the scene and took Andrew Grigg into custody, as well as at least one witness who had seen him in the Pub and several persons who were accompanying Andrea at the time of the accident. In addition, the two expert witnesses who observed the video that was taken when the breathalyzer test was administered approximately two hours after the event acknowledged that Andrew Grigg displayed no outward signs of intoxication.

[31] In spite of the foregoing testimony, however, there was evidence upon which the members of the jury were entitled to make the findings they made. First, Gwen Farrell, who was herself admittedly quite intoxicated at the time and who observed Andrew Grigg just after the accident, thought he was intoxicated. Ms. Farrell testified that he was stumbling, he was weaving back and forth, he looked kind of "spacey", and he smelled of alcohol. Notwithstanding the obvious frailties of her testimony, it was open to the jury to accept it. Second, there was evidence that McMaster's "Smart Serve" protocols -- designed to minimize the risk of patrons becoming intoxicated -- were not followed. Finally, there was the evidence of Andrew Grigg's blood alcohol level and expert testimony to the effect that at those levels he would have shown visible signs of impairment before leaving the Pub.

[32] The breathalyzer results demonstrated that Andrew Grigg's blood alcohol level was 178 and 174 milligrams/100 millilitres of blood two hours after the accident. Significantly, the experts were all consistent in their testimony that at the time of the accident his blood alcohol level would have been around 218 milligrams of alcohol/100 millilitres of blood -- nearly three [page174] times the legal limit. In the opinion of the plaintiffs' expert, Professor Kalant, there was "no conceivable way" that Andrew Grigg had consumed only the six drinks over the entire night that he claimed to have consumed. Moreover, if the jury accepted that Andrew Grigg had consumed only the three beers he claimed to have had prior to arrival, and showed no signs of impairment on arrival (as Ms. Board testified), it is possible (given his tolerance and blood alcohol levels) that he was served up to 18 drinks at the Pub -- a rate of approximately eight one-ounce drinks per hour. Dr. Kalant testified that, if such were the case, Andrew Grigg would have been "very drunk" and he would have been "visibly impaired at the time of the accident". Dr. Kalant had "no doubt whatsoever" that, to someone trained to detect the effects of the consumption of alcohol on persons leaving a bar, the signs of whether the person leaving was capable of driving an automobile safely would have been apparent. It was his opinion that the employees of the Pub should have been able to observe Andrew Grigg for impairment. McMaster called no evidence from any employees other than Ms. Board, or from the companions of Andrew Grigg at the time, to refute the opinion of Dr. Kalant that he would have been showing signs of impairment when he left the Pub.

[33] All of the foregoing was sufficient to support the jury's findings on liability.

[34] McMaster complains that the trial was unfair because the plaintiffs called and relied upon "similar fact" evidence not disclosed prior to trial and that the trial judge failed to charge the jury on the proper use of that evidence. This evidence consisted of the testimony of a number of individuals who frequented the Pub and who testified that they occasionally had been served, and had observed others being served, to the point of intoxication in spite of the "Smart Serve" protocol. These instances were said to have occurred before, on, and after the night in question. We agree with the respondent that the evidence was not "similar fact" evidence called to buttress the claim for punitive damages, but rather evidence led to rebut McMaster's position that the Pub had policies and procedures in effect such that it would not over-serve alcohol to its patrons. There was therefore no need for the trial judge to instruct the jury on the limited use to which similar fact evidence may be put. We see no reason to interfere with the trial judge's decision to admit such evidence in the circumstances.

[35] Nor would we give effect to the argument that the trial was unfair because plaintiffs' counsel referred, in closing, to the fact that McMaster called no employees to establish the Pub was following its own procedures, in spite of the judge's ruling that no [page175] comments ought to be made in the addresses about adverse inferences. Counsel for the plaintiffs was entitled to comment on the submissions of counsel for McMaster that everything had been done properly, when no evidence was called to prove its policies and procedures were actually followed.

[36] For all of the foregoing reasons, we would not interfere with the jury's finding of liability on the part of McMaster.

(b) Apportionment of liability

[37] The jury apportioned liability 70 per cent to the Grigg appellants and 30 per cent to McMaster. McMaster contests this finding, arguing that the charge to the jury contained no instructions with respect to liability and that the trial judge should have told the jury -- as some other judges have done -- that in circumstances such as the case at bar "the lion's share of culpability, both morally and legally, should attach to the drinking driver": Dryden (Litigation Guardian of) v. Campbell Estate, [2001] O.J. No. 829, 11 M.V.R. (4th) 247 (S.C.J.), at para. 215. See also Hague v. Billings, supra, at p. 303 O.R. It also submits that the jury's finding was not in keeping with findings on proportionate liability as established in those cases. McMaster's counsel repeatedly requested a charge on apportionment, but to no avail.

[38] While it may have been preferable had the trial judge acceded to this request, we see no basis for interfering with the jury's findings respecting the apportionment of liability. Just as a jury award assessing the degree of contributory negligence is to be approached in the same way as a jury verdict respecting damages generally -- see Snushall v. Fulsang (2005), 2005 34561 (ON CA), 78 O.R. (3d) 142, [2005] O.J. No. 4069 (C.A.), at paras. 19-22 -- so too is a jury award assessing the degree of apportionment of damages as between defendants. In the absence of material misdirection or non-direction, appellate courts will not interfere unless the verdict is so plainly unreasonable and unjust as to satisfy the court that no jury reviewing the evidence as a whole and acting judicially could have arrived at that conclusion: McCannell v. McLean, 1937 1 (SCC), [1937] S.C.R. 341, [1937] 2 D.L.R. 639; Olmstead v. Vancouver-Fraser Park District, 1974 196 (SCC), [1975] 2 S.C.R. 831, [1974] S.C.J. No. 129; Ferenczy v. MCI Medical Clinics, 2005 18186 (ON CA), [2005] O.J. No. 2076, 198 O.A.C. 254 (C.A.); Snushall v. Fulsang, supra. See also Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365, [2003] O.J. No. 1671 (C.A.), at para. 52. Some courts have suggested that an appellate court may conclude the damages awarded are inordinately high or low if it takes the view that they are too high or too low by 50 per cent: Howes v. Crosby (1984), 1984 2172 (ON CA), 45 O.R. (2d) 449, [1984] O.J. No. 3127 (C.A.); Koukounakis v. Stainrod (1995), 1995 621 (ON CA), 23 O.R. (3d) 299, [1995] O.J. No. 1369 (C.A.). [page176]

[39] The jury's apportionment of damages as between the Grigg appellants (70 per cent) and McMaster (30 per cent) cannot be said to fall into that category. Although the trial judge did not charge the jury on apportionment, in fact the jury did attribute the "lion's share" of responsibility to Andrew Grigg, thus reflecting his significant moral blameworthiness for the accident. Moreover, the apportionment -- while perhaps at the high end -- is not out of the range of findings in other cases involving commercial host liability: see, for example, Hague v. Billings, supra (driver 85 per cent; tavern 15 per cent); Sambell v. Hudago Enterprises Ltd., [1990] O.J. No. 2494 (Gen. Div.) (driver 71.5 per cent; tavern 28.5 per cent); Francescucci v. Gilker, [1996] O.J. No. 474 (C.A.) (driver 22 per cent/tavern 78 per cent). In the seminal case involving commercial host liability for damages suffered by a patron who had been permitted to become intoxicated and then to leave the establishment to walk home on a busy roadway, the Supreme Court of Canada upheld an apportionment of 30 per cent as against the tavern: Menow v. Jordan House Ltd., 1973 16 (SCC), [1974] S.C.R. 239, [1974] S.C.J. No. 80. Thus, the jury was entitled, on the record before it, to arrive at the verdict regarding apportionment that it did.

[40] We would not give effect to this ground of appeal.

II. Apportionment of costs at trial

[41] In its factum, McMaster submitted: "In the circumstances of this case, Andrew Grigg ought to have borne the great majority of the plaintiffs' legal costs." We do not read para. 12 of the trial judge's order as apportioning the costs at trial equally between McMaster and the Griggs so that McMaster was responsible for 50 per cent of the costs. Rather, our understanding of the order is that each of the appellants (Andrew Grigg, Thomas Grigg and McMaster) is responsible for 33 1/3 per cent of the costs. Inasmuch as we have not changed the apportionment of liability, we see no reason to alter the trial judge's award of costs.

III. Damages

(a) General damages

[42] McMaster and the Grigg appellants both appealed the award of general damages of $250,000. For the reasons that follow, we would not interfere with that award.

[43] An active, athletic and intelligent young woman, Andrea suffered serious and permanent injuries as a result of the accident. Physically, she sustained a closed head injury, soft tissue injuries and various orthopaedic injuries. She was diagnosed as suffering from a major depressive disorder triggered by the accident, which [page177] led to her attempts to commit suicide on two occasions several years apart. The medical evidence attributed her depression to post-traumatic stress disorder and to her personal reaction to the losses in her function and self-image from her physical injuries. She will require medication and she is likely to suffer from anxiety and fear on a long-term basis. In spite of the fact that she has been able to return to university and to perform well, as well as to travel and mix with her friends, most aspects of her life have been dramatically affected by the accident and, in one fashion or another, may continue to be for the rest of her life.

[44] In these circumstances, while the jury's award of general damages is perhaps generous and at the high end of the range -- given that the "cap" on personal injuries established by the Supreme Court of Canada in the trilogy of cases [See Note 1 below] (hereinafter referred to as the "Trilogy") stood at approximately $300,000 at the time -- it cannot be said to be so beyond the scope of anything that could be accepted as reasonable, or to be so inordinately high as to amount to a wholly erroneous estimate of general damages.

[45] Accordingly, we would not interfere with the jury's verdict of general damages.

(b) Aggravated damages

i. Overview

[46] The appellants Grigg brought motions at both the beginning and the end of the trial to dismiss the claim for aggravated and punitive damages. Fedak J. dismissed both motions, finding that aggravated damages could be founded on the fact that the respondent's post-traumatic stress disorder was related to Andrew Grigg's impaired driving, and punitive damages could be awarded by reason of the fact that when he embarked on his course of driving, he knew or should have known that his driving presented a very high risk of injury to others. In making his rulings, Fedak J. did not specifically refer to any reported cases. [See Note 2 below] [page178]

[47] On appeal, the appellants Grigg submit that the jury had no grounds upon which to award aggravated damages, and in the alternative, that the award of $100,000 for aggravated damages is excessive. Additionally, they argue that the quantum of aggravated damages must be reduced, as they are properly part of general non-pecuniary damages and subject to the upper limit in personal injury cases laid out by the Supreme Court of Canada in the Trilogy. They argue that there was insufficient evidence to ground an award of aggravated damages.

[48] For the reasons that follow, we agree with the appellants. The expert medical evidence was not sufficient to establish that Andrea's psychological harm was increased because Andrew Grigg was impaired at the time of the accident. Even if it could be said that aggravated damages were properly awarded as being supported by the evidence, such damages are part of the general non-pecuniary award and subject to the upper limit for personal injury set by the Trilogy. In our view, given that the upper limit at the time of the trial was $299,000, the jury award of $250,000 for general non-pecuniary damages was generous and should not be increased even if there is an evidentiary basis for awarding aggravated damages.

ii. The nature of aggravated damages

[49] Aggravated damages are awarded because of the nature of the defendant's conduct. They are designed to compensate the plaintiff specifically for the "additional harm caused to the plaintiff's feelings by reprehensible or outrageous conduct on the part of the defendant". Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19, at para. 116.

[50] Aggravated damages are awarded then when the reprehensible or outrageous nature of the defendant's conduct causes a loss of dignity, humiliation, additional psychological injury, or harm to the plaintiff's feelings. In Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60, the Supreme Court of Canada awarded both aggravated and punitive damages against the defendant doctor who exchanged painkillers for sexual favours from the drug-addicted plaintiff. At p. 263 S.C.R., the majority found that aggravated damages are awarded if the tort, in that case a battery, occurred in humiliating or undignified circumstances. Aggravated damages are not awarded in addition to general damages, but the general damages are to be assessed "taking into account any aggravating features of the case and to that extent increasing the amount awarded". [page179]

[51] This court has taken the same view with respect to aggravated damage being part of general non-pecuniary damages. See T.W. v. Seo, 2005 21356 (ON CA), [2005] O.J. No. 2467, 199 O.A.C. 172 (C.A.). At para. 69, Hennessy J. (ad hoc) held "[g]eneral non-pecuniary damage should be assessed after taking into account any aggravated features of the defendant's conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately."

iii. Conclusion with respect to aggravated damages

[52] In our view, for the reasons stated above, there was no legal basis for a separate award of aggravated damages. We therefore allow the appeal on this issue.

(c) Punitive damages

[53] Blair J.A. dissents from this portion of the reasons dealing with punitive damages.

[54] The appellants Grigg also submit that the jury had no grounds on which to award punitive damages, and in the alternative, that the award of $100,000 for punitive damages is excessive.

[55] This is a novel case. The parties were unable to produce any Canadian case law in which punitive damages were awarded as a result of injuries sustained in a motor vehicle accident caused by an impaired driver nor were they able to produce any appellate authority that prohibited such damages in this context. [See Note 3 below] This is in stark contrast to the United States, where punitive damages have been routinely awarded in a majority of the [page180] states for injuries caused by impaired drivers. [See Note 4 below] For this reason, we believe it necessary to conduct a careful analysis of the principles surrounding punitive damages in the context of negligence actions and the applicability of such principles to motor vehicle accidents involving impaired drivers. Subject to our further analysis it might be helpful if we state briefly, at the onset, a summary of our conclusions.

[56] The appellants Grigg argued that Andrew Grigg did not act in a high-handed, malicious or oppressive manner, and thus there is no basis upon which the jury could have properly awarded punitive damages. We disagree. In Norberg v. Wynrib, supra, La Forest J., writing for the majority, observed at p. 268 S.C.R. that the conduct of Dr. Wynrib, a doctor who prescribed drugs to Norberg in return for sexual favours, was not harsh, vindictive or malicious, to use the terms cited in Vorvis v. Insurance Corp. of British Columbia, 1989 93 (SCC), [1989] 1 S.C.R. 1085, [1989] S.C.J. No. 46. Nevertheless, the doctor's conduct was reprehensible; it offended the ordinary standards of decent conduct in the community and La Forest J. was of the opinion that an award of punitive damages was appropriate. The type of conduct in which Dr. Wynrib engaged cried out for deterrence. In a separate opinion, [See Note 5 below] concurring on the issue of punitive damages, McLachlin J. also commented at p. 300 S.C.R. on the need for general deterrence of sexual exploitation, and the fact that punitive damages would signal the community's disapprobation.

[57] By making the deliberate choice to drink excessively and then drive, Andrew Grigg's misconduct was more than mere negligence. It demonstrated a conscious and reckless disregard for the lives and safety of others. There was evidence he was two to three times over the legal limit for alcohol consumption and was speeding and driving recklessly. In our view, this was sufficient evidence for the jury to find that an award of punitive damages was warranted. The appellants Grigg also argued an award of [page181] punitive damages would be inappropriate and unnecessary given that the driver Grigg had already been punished, i.e., a $500 fine for careless driving. In our view, analyzing the principles articulated by the Supreme Court of Canada in Whiten, and given the fact that the misconduct in question was much more serious than careless driving, it was open to the jury to find that punitive damages did not amount to double punishment, that others would not be deterred by the fine imposed on Andrew Grigg, and that punitive damages were appropriate.

[58] However, we agree with the appellant's submission that the quantum of punitive damages was too high to meet the rationality test. The quantum must be proportionate in relation to several dimensions, none of which would support the high award of $100,000 as being proportionate to the misconduct in this case. We would therefore reduce the quantum to $20,000.

i. General principles of punitive damages

[59] Punitive damages are awarded to meet the objective of punishment, deterrence and denunciation of the defendant's conduct and not to compensate the plaintiff. Whiten, supra, at paras. 43 and 68. Punitive damages should only be awarded in exceptional cases. They should be awarded with restraint. Whiten at para. 69; Gerula v. Flores, 1995 1096 (ON CA), [1995] O.J. No. 2300, 83 O.A.C. 128 (C.A.), at paras. 57-58.

[60] An award of punitive damages therefore requires the defendant to have engaged in extreme misconduct. The type of conduct required to attract punitive damages has been described in many ways, such as: malicious, oppressive, arbitrary and high-handed that offends the court's sense of decency (Whiten at paras. 36 and 94; see also Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64, at para. 196); a marked departure from ordinary standards of decent behaviour (Whiten, ibid.); harsh, vindictive, reprehensible and malicious (Vorvis, supra, at para. 16); offends the ordinary standards of morality or decency (Norberg, supra, at paras. 57-58); arrogant and callous (ibid.); egregious (Hill at para. 196); high-handed and callous (Doobay (c.o.b. Venus Fashions) v. York Gate Mall Ltd., [2000] O.J. No. 2219 (C.A.), at para. 3; arrogant, callous of the plaintiff's rights and deliberate (Starkman v. Delhi Court Ltd., 1961 195 (ON CA), [1961] O.R. 467, [1961] O.J. No. 559 (C.A.); harsh, reprehensible and malicious (Fleury v. Fleury, 2001 294 (ON CA), [2001] O.J. No. 1720, 144 O.A.C. 372 (C.A.), at para. 11); outrageous or extreme (Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 2002 45070 (ON CA), 61 O.R. (3d) 481, [2002] O.J. No. 3588 (C.A.), at para. 86); highly unethical conduct which disregards the plaintiff's [page182] rights (Gerula, supra, at para. 72); and recklessly exposing a vulnerable plaintiff to substantial risk of harm without any justification (Roose v. Hollett, 1996 5288 (NS CA), [1996] N.S.J. No. 345, 154 N.S.R. (2d) 161 (C.A.), at para. 237).

ii. Punitive damages in a negligence action

[61] The nature and character of the wide range of descriptors suggest that punitive damages would only be justified in the most extreme cases. Punitive damages are designed to express the repugnance of the public, which is represented by the jury, towards the outrageous and heinous conduct of the defendant. As Cory J. stated in Hill at para. 196, punitive damages are "the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant".

[62] In our view, negligent conduct can only attract punitive damages if the misconduct in question was intentional and deliberate and was "extreme in nature and such that by any reasonable standard it is deserving of full condemnation and punishment". See Vorvis at p. 1108 S.C.R. This requirement for deliberate action or omission is clear from the relatively few cases in which courts have awarded punitive damages for negligent conduct.

[63] For example, in Gerula v. Flores, supra, this court found the trial judge erred in not awarding punitive damages against the defendant doctor who had operated on the plaintiff's wrong spinal disc. After the operation the doctor discovered the error, he failed to inform the defendant, altered his notes to cover up his error and persuaded the plaintiff to consent to further surgery to correct his mistake. At para. 72, Weiler J.A. found that the doctor's conduct was more than mere negligence because of his "deliberate non- disclosure" of his error (emphasis added).

[64] Weiler J.A. further found that this non-disclosure represented a misrepresentation by omission and that a reasonable person in the position of the appellant would not have chosen to have the same doctor perform the second surgery, had he known about the error and subsequent non-disclosure. Such conduct demonstrates a "deliberate and flagrant disregard" of the plaintiff's rights. Weiler J.A. also noted that the doctor's "highly unethical conduct and disregard" of the plaintiff's rights had gone unpunished. As such it was an appropriate case to make an award of punitive damages.

[65] In Canadian decisions outside of Ontario, the negligence actions in which punitive damages have been awarded have all required intentional or deliberate conduct. In Robitaille v. Vancouver Hockey Club Ltd., 1981 532 (BC CA), [1981] B.C.J. No. 555, 124 D.L.R. (3d) 228 (C.A.), [page183] punitive damages were awarded against a professional hockey club that was negligent in failing to subject the plaintiff to thorough medical examinations after he sustained an injury, and then ordering him to play in subsequent games. This intentional conduct of the Club "showed a callous disregard for his feelings and his well-being -- they ignored the dictates of common decency as well as common sense" (at p. 248 D.L.R.). The British Columbia Court of Appeal held that punitive damages were available in negligence cases where the "defendant has done more than inflict injury on others by his negligence or intentional acts" (at p. 250 D.L.R.). The court further held that the defendant must have acted with malice, or with recklessness that indicates an indifference to the safety of others, or alternatively engaged in conduct that is so socially reprehensible that it justifies the award of punitive damages.

[66] Several courts have rejected claims for punitive damages in negligence cases on the basis that the defendant's misconduct was not specifically directed at the plaintiff. For example, in Kaytor v. Lion's Driving Range Ltd. (1962), 1962 346 (BC SC), 35 D.L.R. (2d) 426, 40 W.W.R. 173 (B.C.S.C.), the owners of a driving range kept an extremely vicious dog on site to prevent people from stealing golf balls at night. The dog become loose accidentally and injured the plaintiff. The trial judge found at p. 431 D.L.R. that the defendants were negligent but held that to award punitive damages, the act complained of must be intentionally directed to the person or property injured. Similarly, in Nichols v. Guiel, 1983 460 (BC SC), [1983] B.C.J. No. 1693, 145 D.L.R. (3d) 186 (S.C.), the trial judge refused to award punitive damages for a motor vehicle accident that had injured the plaintiff and killed her husband. The defendant was accused of racing on the wrong side of the highway at a speed of 100 m.p.h. or more. The trial judge, relying on Kaytor, supra, found that the conduct of the defendant, although deliberately reckless, was not specifically directed at the plaintiff or her late husband and that this precluded an award of punitive damages.

[67] At the end of the trial, during the motion to strike the claim for punitive damages, the appellants Grigg argued that an award of punitive damages required the defendant's conduct to be specifically directed at the plaintiff. We disagree with this submission and with the reasoning in both Kaytor, supra, and Nichols, supra, insofar as they would require the misconduct to be deliberately directed at the injured party.

[68] Such a requirement could well bar punitive damages in product liability cases, where punitive damages may be awarded depending on the level of indifference or recklessness of the [page184] defendant. See for example Van Oirschot v. Dow Chemical Canada Inc., 1993 7088 (AB KB), [1993] A.J. No. 480, 142 A.R. 149 (Q.B.), affd 1995 ABCA 264, [1995] A.J. No. 611, 174 A.R. 157 (C.A.). In that case, the defendant was aware of the dangers with respect to the product and did not provide appropriate warnings to its customers. The trial judge found the defendant had acted in a high-handed and oppressive manner. The Court of Appeal found that the $10,000 awarded by the trial judge for "high-handed conduct" was an appropriate award for punitive damages.

[69] In Vlchek v. Koshel, 1988 3116 (BC SC), [1988] B.C.J. No. 1062, 52 D.L.R. (4th) 371 (B.C.S.C.), at p. 375 D.L.R., Gallaghan J., in review of the holdings of previous British Columbia cases, including Kaytor and Nichols, concluded:

While negligence or an intentional act, can trigger an award of exemplary damages, it does not follow that the act must be directed towards a specific individual. But the act must be malicious or reckless to such a degree as to indicate complete indifference to the consequences that might flow therefrom, including the welfare and safety of others. In other words, intention to cause the injury need not be present; it will suffice if there was an intention to do the act which eventually caused the injury. The act alleged in this case was the manufacturing of inherently dangerous and unstable machines which were sold and used by the general public.

(Emphasis added)

[70] In Vlchek, supra, the British Columbia Supreme Court moved away from a strict application of the holding in Kaytor. We agree with this reasoning. It would, in our view, be inappropriate to narrow the scope of punitive damages by specifically requiring that the defendant's conduct be directed at the plaintiff. Rather, it is sufficient if there was an intention to do the act or combination of acts that eventually caused the injury.

iii. Punitive damages in this case

[71] We do not agree with the submission of the appellants Grigg that punitive damages are not available because Andrew Grigg's conduct was not high-handed, malicious or oppressive and that this was "no more than a motor vehicle accident resulting from excessive consumption of alcohol". In Norberg v. Wynrib, supra, at p. 268 S.C.R., La Forest J. held that while the misconduct of the defendant doctor was not "harsh, vindictive or malicious" it was reprehensible and that type of conduct which offends the "ordinary standards of decent conduct in the community". Further, La Forest J. held that punitive damages were appropriate because of the nature of the misconduct in question: "[T]he exchange of drugs for sex by a doctor in a position of power is conduct that cries out for deterrence", and as McLachlin J. [page185] stated at p. 300 S.C.R., "[it] is more widespread than it is comfortable to contemplate". [See Note 6 below]

[72] In our view, this is also such a case. The Supreme Court of Canada has described drinking and driving as a "social evil" in the context of screening provisions in the Criminal Code. See R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, 196 C.C.C. (3d) 481, at para. 3. As Justice Cory articulated in R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, 95 C.C.C. (3d) 193, at para. 16:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalizations, drunk driving is clearly the crime which causes the most significant social loss to the country.

[73] Lamer C.J.C. emphasized the need for general deterrence for impaired driving in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, [2000] S.C.J. No. 6, 140 C.C.C. (3d) 449, at para. 129:

Moreover, dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. These crimes are often committed by otherwise law-abiding persons with good employment records and families. Arguably such persons are the ones most likely to be deterred by the threat of severe penalties.

(Footnotes omitted)

[74] This court has repeatedly emphasized the need for general deterrence in impaired driving offences and the significant losses caused by impaired driving. See R. v. Dharamdeo, 2000 17018 (ON CA), [2000] O.J. No. 4546, 149 C.C.C. (3d) 489 (C.A.), at paras. 23-26 citing R. v. McVeigh, 1985 115 (ON CA), [1985] O.J. No. 207, 22 C.C.C. (3d) 145 (C.A.), at p. 150 C.C.C., and R. v. Biancofiore (1997), 1997 3420 (ON CA), 35 O.R. (3d) 782, [1997] O.J. No. 3865, 119 C.C.C. (3d) 344 (C.A.), at paras. 22-24.

[75] In our view, the evidence before the jury was sufficient to meet the requirements that Andrew Grigg's conduct was deliberate and intentional. His decision to drink excessively and drive, his intoxication and the evidence that he was speeding and driving erratically were key contributors to the cause of the accident. All of these factors demonstrate that on that night, Andrew Grigg showed a conscious and reckless disregard for the lives and safety of others.

[76] Counsel for the appellants Grigg argued that punitive damages would be inappropriate in this case, as Andrew Grigg's conduct had already been punished by his conviction for careless [page186] driving and the imposition of a $500 fine. We agree that a factor of significant importance in assessing whether it would be appropriate to award punitive damages is whether punishment has already been imposed in a separate proceeding for the same misconduct. Binnie J. noted at para. 69 in Whiten, supra, that the Ontario Law Reform Commission, in its Report on Exemplary Damages (Toronto: The Commission, 1991) had recommended that the "court should be entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant" (at p. 46). At para. 123 of Whiten, Binnie J. made the following comments:

In Canada, unlike some other common law jurisdictions, such "other" punishment is relevant but it is not necessarily a bar to the award of punitive damages. The prescribed fine, for example, may be disproportionately small to the level of outrage the jury wishes to express. The misconduct in question may be broader than the misconduct proven in evidence in the criminal or regulatory proceeding. The legislative judgment fixing the amount of the potential fine may be based on policy considerations other than pure punishment. The key point is that punitive damages are awarded "if, but only if" all other penalties have been taken into account and found to be inadequate to accomplish the objectives of retribution, deterrence, and denunciation.

(Emphasis added)

[77] While this statement of Binnie J. might appear to be obiter in the context of the issues to be determined in Whiten, we are of the view that we are bound [to] his observations. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, at paras. 53-57, the Supreme Court of Canada held that the closer the relationship between the obiter and the legal issue in question, the more likely the obiter is binding.

[78] For the purposes of this appeal we regard Binnie J.'s comments in Whiten, supra, as authoritative and binding. In Whiten, the entire case focused both on the circumstances in which punitive damages would be available, and more importantly the factors to be considered in assessing the proportionality of the damages. In both this appeal and in Whiten, the jury's assessment of punitive damages was a central issue. In Whiten, the intervenor, the Insurance Council or Canada, argued that discipline of insurance companies should be left to the regulator; Binnie J. rejected this argument at para. 123, noting that the regulator had not taken an interest in that case prior to the jury's award of punitive damages.

[79] While the driver Grigg pleaded guilty to, and received a fine for, careless driving, the evidence in the civil trial established that he was significantly impaired and that his conduct should normally warrant a serious punishment. Where a wrongdoer has [page187] already been punished for an offence and the same conduct is in question at a civil trial, punitive damages generally will not serve a rational purpose as the sentence imposed in the criminal or regulatory environment will have already met the necessary objectives of retribution, deterrence and denunciation. In our view, there are sound policy reasons for generally not attempting to re-try those proceedings in a civil action. As this court held in Fleury v. Fleury, supra, at para. 11:

Where tortious acts have already been sanctioned by the imposition of a criminal sentence, it is inappropriate to award punitive damages in a civil lawsuit. To do so is to punish twice for the same offence.... Where, however, the civil proceedings establish that ... the sentence does not fully sanction the tortfeasor's behaviour... punitive damages may be awarded.

(Footnotes omitted)

[80] In our view, a court in a civil proceeding should generally demonstrate deference to the decision of the other court. Otherwise, the review of the appropriateness of a penalty administered in a criminal court, for example, could be viewed as a collateral attack on that decision. In our opinion, the "disproportionality" test enunciated by Binnie J. in Whiten in relation to the wrongful conduct and the penalty imposed is one that should be approached with considerable caution.

[81] We believe that the facts in the present case present one of those rare instances where the disproportionality test applies. It was rational for the jury to conclude that punitive damages would denounce Andrew Grigg's conduct and signal the need for general deterrence of impaired driving. Given Andrew Grigg's fine of $500, punitive damages would not amount to double punishment and indeed would be more appropriate punishment.

iv. Was the quantum awarded by the jury proportionate?

[82] In comparison to compensatory damages, courts have a much greater scope and discretion in reviewing the quantum of punitive damages. See Hill v. Church of Scientology, supra, at para. 197 and Whiten, supra, at paras. 100-01. The "rationality test" asks whether the misconduct of the defendant was so outrageous that punitive damages were rationally required to act as deterrence. See Hill, ibid. Both the award of punitive damages and the quantum must be rational. As discussed above, we believe the jury's award of punitive damages was a rational response to the defendant's deliberate misconduct, which resulted in serious injury to the plaintiff and which had only been punished in part. [page188]

[83] In Whiten, the Supreme Court of Canada held that the proportionality of the quantum of damages must be examined in several dimensions. First, the quantum must be proportionate to the blameworthiness of the defendant's conduct. See paras. 112-13. While Andrew Grigg's misconduct was reprehensible and recklessly disregarded the plaintiff's rights, it was apparently an isolated event. Furthermore, he did not flee the scene of the accident or profit from his misconduct.

[84] Second, the quantum must be proportionate to the degree of vulnerability of the plaintiff. See Whiten at paras. 114-16. In this case, there had not been a relationship between the parties where it could be submitted that there was an abuse of power over a vulnerable plaintiff. The plaintiff was most regrettably in the wrong place at the wrong time. However, a person who chooses to drive while impaired takes on an increased risk of injuring others who have no ability to adjust their behaviour to account for this increased risk. In this respect, impaired drivers increase the vulnerability of all users of the road, especially pedestrians.

[85] Third, the quantum must be proportionate to the harm or potential harm directed specifically at the plaintiff. See Whiten at para. 117. In this case, the harm was not directed specifically at the plaintiff and in our view, this is an important factor that militates towards a lower award.

[86] Fourth, the quantum must be proportionate to the need for deterrence. See Whiten at paras. 118-22. While in Whiten this factor was considered in the context of a large and wealthy insurance company defendant profiting at the expense of a vulnerable plaintiff, there is also clearly a need for deterrence in impaired and reckless driving accidents. As La Forest J. stated at pp. 267-68 and McLachlin J. stated at pp. 300-01 S.C.R. in Norberg v. Wynrib, supra, egregiously blameworthy conduct that is prevalent in our society creates a consequent need for deterrence. The very fact that the conduct is prevalent merits a higher award of damages.

[87] Fifth, the quantum must be proportionate, after taking into account the other penalties, both civil and criminal, which have been inflicted on the defendant for the same misconduct. See Whiten at para. 123. As previously discussed, while Andrew Grigg had already been punished for his conduct, having pleaded guilty to careless driving, it was open to the jury to determine that the punishment was inadequate and that an award of punitive damages was necessary to meet the objectives of retribution, deterrence and denunciation.

[88] In our view, the jury award of $100,000 is not rational to meet the objectives of retribution, deterrence and denunciation. [page189] The lower level of moral blameworthiness given the isolated nature of the misconduct, the lack of a relationship between the parties (in comparison to a relationship of trust) and the fact that the misconduct was not specifically directed at the plaintiff, indicates that a lesser quantum of punitive damages would be rational. In light of this, as stated above, we would reduce the quantum awarded by the jury to $20,000.

v. Conclusion with respect to punitive damages

[89] We conclude that it was rational for the jury to determine that the circumstances of this case warranted an award of punitive damages in order to further the objectives of the law. However, for the reasons stated above, the assessment of punitive damages in this case was not the appropriate award to serve these objectives. We therefore reduce the amount of punitive damages to the amount of $20,000.

IV. [Family Law Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html) claim

(a) Overview

[90] Pursuant to s. 61(1) of the Family Law Act, parents and siblings of a person who is injured and entitled to recover damages due to the fault or negligence of another may recover their pecuniary loss from the person causing the injury. In this case, Andrea was injured when a truck operated by Andrew Grigg struck her. At trial, Andrea's parents, Duncan McIntyre (hereafter "Duncan") and Darlene McIntyre (hereafter "Darlene"), and her younger sister, Alexis McIntyre (hereafter "Alexis"), claimed damages pursuant to s. 61(1). The jury dismissed their claim. Duncan, Darlene, and Alexis are appealing the dismissal of their claim. They do not allege any error in the judge's charge to the jury. Rather, they appeal the dismissal on the basis that the jury's verdict is contrary to all of the evidence and therefore ought to be set aside as being unreasonable.

[91] As noted in para. 38 above, courts accord great deference to a jury's findings in civil negligence proceedings. The verdict of a civil jury will not be set aside as against the weight of the evidence unless it is so plainly unreasonable and unjust as to satisfy the court that no jury, reviewing the evidence as a whole and acting judicially, could have reached it: McLean v. McCannell, supra; Olmstead v. Vancouver-Fraser Park District, supra; Ferenczy v. MCI Medical Clinics, supra; Snushall v. Fulsang, supra. See also Mizzi v. Hopkins (2003), 2003 52145 (ON CA), 64 O.R. (3d) 365, [2003] O.J. No. 1671, at para. 52.

[92] For the reasons that follow, we are satisfied that these appellants have met this high standard of review. Consequently, [page190] we would allow their appeal, set aside the dismissal of their claim and award $15,000 to Darlene McIntyre, $15,000 to Duncan McIntyre and $5,000 to Alexis McIntyre.

(b) Additional facts

[93] A general review of the facts has already been provided. We propose to review and to supplement those facts where necessary having regard to the damages that may be included as part a claim for pecuniary loss pursuant to s. 61(2) of the Family Law Act. These include:

(a) actual expenses reasonably incurred for the benefit of the person injured . . . ; . . . . .

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury . . . had not occurred.

[94] After being hit by the Grigg vehicle, Andrea was taken to hospital on September 13, 1996, and released on September 18, after which she returned to live with her parents in Lindsay. At that time she was depressed and in a wheelchair because of her fractured leg. Her parents put a bed in the den for her and Darlene initially took time off work and helped her with her toileting. They eventually hired a nurse to stay with her.

[95] Andrea attempted suicide on October 21, 1996. She was rushed to the Ross Memorial Hospital in Lindsay, transferred to Oshawa General Hospital and then admitted to St. Joseph's Hospital in Hamilton. She stayed at St. Joseph's until January 15, 1997. [See Note 7 below] During this time Duncan travelled from Lindsay to Hamilton approximately four times a week to be with her. Darlene was in British Columbia visiting Andrea's older sister, Jennifer, who had fractured her back in a motor vehicle accident on October 17, 1996.

[96] After Andrea was discharged from St. Joseph's Hospital, she lived at home with her parents in Lindsay. In September 1997, she enrolled in Brock University. [page191]

[97] Duncan testified that during this time he was not able to enjoy Andrea's company. He was unable to think of a single episode of laughs or fun leading up to Andrea's commencement at Brock. The family dynamics had changed. Darlene and Alexis testified to the same effect and, at trial, their testimony was not challenged by either defence counsel.

[98] In 1999, Andrea transferred to the University of Manitoba. In the fall of 1999, Darlene, who had retired from teaching in Ontario in 1998, took a teaching position in Kuwait and brought Alexis to live with her. She returned to Kuwait for the next school year in the fall of 2000. Duncan, who had also retired from teaching in Ontario, took up a teaching position in Frankfurt, Germany in September 2000.

[99] Andrea travelled to Florida and Japan with her boyfriend in 2000. While at university, in December 2000, Andrea again became depressed and sought professional help. She was later admitted to the University of Manitoba Hospital for depression. Darlene flew home from Kuwait to be with her. When Andrea was discharged from hospital, they flew to Kuwait. Duncan flew to Kuwait and stayed for about a week before returning to Germany.

[100] While in Kuwait, Andrea attempted to take her life again by way of an overdose of medication. She was hospitalized in Kuwait until she was stabilized. She then flew with Darlene to Germany where Duncan joined them. They all flew back to Canada and Andrea was again admitted to St. Joseph's Hospital. Duncan quit his job in Germany in April and moved back to Lindsay. During this hospitalization he saw Andrea almost every day. Darlene returned to Kuwait because Alexis was still in school there. When discharged from St. Joseph's Hospital, Andrea moved to her aunt's house in Hamilton where she was seen as an out-patient for a period of time before briefly returning to live at her parents' home in Lindsay. She then moved to Toronto.

[101] In August of 2001, Andrea travelled with a friend to Portugal, Spain and Italy. She then returned to the University of Manitoba in September. She entered an easier academic program from which she graduated in 2002. She returned home then moved out to live with friends closer to her job at Angus Glen Golf Club. After travelling in Thailand and Laos in 2003, she moved to Winnipeg.

[102] Duncan advanced a claim for $53,920.52 for his pecuniary loss relating to the difference between what he could have earned working in Frankfurt, Germany and what he eventually earned working part-time in Ontario for the academic year 2001-2002. The respondents challenged this claim. Duncan testified [page192] that he could only teach one semester in Ontario without his pension being affected. However, he also testified that the kind of work he did at Sir Sanford Fleming College as a temporary replacement for an individual on sick leave did not affect his pension. Nevertheless, he took only one such placement.

(c) Analysis

i. Are the appellants entitled to damages pursuant to s. 61 of the Family Law Act?

[103] In relation to the first factor for which compensation may be awarded pursuant to s. 61 (expenses actually incurred for Andrea's benefit), no claim was made for the expenses paid for professional nursing services provided to Andrea. The second factor is a reasonable allowance for travel expenses. The jury has already awarded the appellants damages in the amount of $9,926.96 for out-of-pocket losses, which included itemized expenses for air travel and for their travel to and from various hospitals. As a result, it cannot be said that the jury did not consider the evidence regarding this factor in determining whether a claim for damages under s. 61 ought to be awarded.

[104] Compensation may also be awarded for loss of income. The respondents submit that it was open to the jury to reject Duncan McIntyre's claim for loss of income. We agree. The evidence indicates that he did not pursue employment similar to that which he had at Sandford Fleming, which would not have affected his pension.

[105] The third factor is compensation for housekeeping and care provided to Andrea by her parents. Neither parent was challenged in cross-examination with respect to the nursing and housekeeping services they provided to Andrea. It is clear that Darlene provided nursing and housekeeping services to her and that Duncan left his job in Germany, in April, prior to the end of the school year to be with her in Ontario. While this factor cannot be ignored in assessing the reasonableness of the jury's decision to dismiss the appellants' claim, the focus of their claim at trial and on appeal is for loss of Andrea's care, guidance and companionship to her family.

[106] Insofar as the claim for loss of care, guidance and companionship is concerned, we note that "companionship" has been defined as the loss of the rewards of association which flow from the family relationship: To v. Toronto Board of Education (2001), 2001 11304 (ON CA), 55 O.R. (3d) 641, [2001] O.J. No. 3490 (C.A.), at para. 25, citing Mason v. Peters (1982), 1982 1969 (ON CA), 39 O.R. (2d) 27, [1982] O.J. No. 3486 (C.A.), at p. 33 O.R. "Guidance" includes such things as education, [page193] training, discipline and moral teaching and usually goes from older members to younger members of the family: Thornborrow v. MacKinnon (1981), 1981 1945 (ON SC), 32 O.R. (2d) 740, [1981] O.J. No. 3004 (H.C.J.), at p. 747 O.R. "Care" includes such things as feeding, clothing, cleaning, transportation, helping and protecting another person: Thornborrow, supra.

[107] In each case, compensation for loss of guidance, care and companionship must be assessed in an objective and unemotional way: Hamilton v. Canadian National Railway Co., 1991 8348 (ON CA), [1991] O.J. No. 614, 80 D.L.R. (4th) 470 (C.A.), at para. 11, citing Reidy v. McLeod (1986), 1986 2556 (ON CA), 54 O.R. (2d) 661, [1986] O.J. No. 415 (C.A.), at p. 662 O.R. The cardinal factors in fixing the precise amount are the extent and duration of the claimant's loss: Mortimer v. Cameron, [1992] O.J. No. 764, 9 M.P.L.R. (2d) 185 (Gen Div.), at p. 310 M.P.L.R.

[108] Andrea's mother, father and sister all testified that following the accident Andrea was not the same person that she was prior to the accident. It was not contested at trial that her depression was causally linked to the accident and her resulting injuries. Andrea's relationship with her parents was negatively affected by the depressive episodes in which she tried to take her own life. Darlene testified that they watched her like a hawk; Duncan testified that they felt guilty because they couldn't seem to cure her; Alexis lost her role model. They all missed the fun times that they had together. The family felt they had to tread carefully with Andrea for fear of upsetting her. They were walking on eggshells around her.

[109] By the time of trial (March 2004), the family dynamics were returning to normal. The evidence was that Andrea talks sports with Duncan and bets on football pools with him. Andrea has engaged in some sporting activities with her family. Alexis believes that her relationship with her sister has improved and that she could now seek Andrea's advice and take it into consideration in making a decision. According to Alexis, the family seems to be having fun together again and is not afraid to say something or do something wrong. There was, however, evidence that there is a chance of Andrea going back into a depression.

[110] The respondents submit that any loss in the quality of the family relations was transitory rather than permanent. However, the wording of s. 61 and existing jurisprudence indicate that it does not require that the loss be permanent in order for an award to be made (see e.g.: Till v. Walker, [2000] O.J. No. 84, [2000] O.T.C. 51 (S.C.J.)). It is clear that the quality of the family relationship was affected in a way that was more than a fleeting or token loss. [page194]

[111] McMaster also submits that the physical separation of Andrea from her parents during the years following the accident precludes an award for loss of her companionship being made. For the same reason, it submits that no award for loss of guidance to her younger sister can be made. We disagree. Certainly Andrea lived at home for extended periods following the accident. In addition, companionship is not limited to physical presence. Because companionship involves sharing interests and ideas with another person, communication of interests and ideas by email and telephone is a form of companionship. The evidence is undisputed that such communication was frequent with Andrea. The jury also heard unchallenged evidence as to the change in the dynamics of the family relationships and how it affected their companionship with Andrea. Thus, the only reasonable conclusion that the jury could have come to was that the quality of the family's companionship with Andrea was significantly affected. In our opinion, the jury's verdict is so plainly unreasonable and unjust that we are satisfied that no jury, reviewing the evidence as a whole and acting judicially, could have refused to make any award.

ii. Who should assess the damages to be awarded?

[112] As we have concluded that the jury's verdict with respect to the s. 61 Family Law Act claim cannot stand, the issue becomes whether a new trial for the assessment of these damages should be ordered or whether we should substitute our own assessment as permitted by s. 119 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[113] In this case we consider it just to substitute our own assessment. All of the evidence relating to this claim is before the court. There is no suggestion that any of that evidence was improperly admitted and, as we have indicated, no issue is taken with the judge's charge. Thus, the fairness of the trial is not in issue. The appellants have asked us to substitute our own assessment. Having asked us to dismiss the claim, the respondents made no submission in this regard. In view of our decision respecting the other issues on this appeal, we are reluctant to force the parties to incur the expense and delay of a new trial on a corollary issue.

[114] Accordingly, having regard to the evidence, we would allow the appeal; set aside the jury's dismissal of the appellants' claim; and assess the amount of damages pursuant to s. 61 of the Family Law Act at $15,000 to Darlene McIntyre, $15,000 to Duncan McIntyre and $5,000 to Alexis McIntyre. [page195]

E. Conclusion

[115] To conclude, the results of these appeals are as follows:

(1) On the issue of the liability and apportionment of liability regarding McMaster, the appeal is dismissed;

(2) On the issue of the apportionment of costs at trial, the appeal is dismissed;

(3) On the issue of the awards of damages:

(a) The appeal on the issue of general damages is dismissed;

(b) The appeal on the issue of aggravated damages is allowed;

(c) The appeal on the issue of punitive damages is allowed in part: the award of damages will stand, but the quantum is reduced to $20,000;

(4) On the issue of the Family Law Act claim, the appeal is allowed, the jury's dismissal of the appellant's claim is set aside, and damages are payable by the respondents, assessed at $15,000 payable to Duncan McIntyre, $15,000 payable to Darlene McIntyre, and $5,000 payable to Alexis McIntyre.

[116] BLAIR J.A. (dissenting in part): -- I agree with the foregoing reasons, including the proposed dispositions, in all respects except for that portion pertaining to the award of punitive damages. Respectfully, I am unable to agree that such damages are appropriate in this case.

A. General Principles Relating to Punitive Damages

[117] The principles underpinning an award of punitive damages in tort and in contract have been examined exhaustively by the Supreme Court of Canada in a number of cases over the past two decades: see Vorvis v. Insurance Corp. of British Columbia, 1989 93 (SCC), [1989] 1 S.C.R. 1085, [1989] S.C.J. No. 46; Norberg v. Wynrib, 1992 65 (SCC), [1992] 2 S.C.R. 226, [1992] S.C.J. No. 60; Hill v. Church of Scientology of Toronto, 1995 59 (SCC), [1995] 2 S.C.R. 1130, [1995] S.C.J. No. 64; Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, [2002] S.C.J. No. 19; and Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3, [2006] S.C.J. No. 30, 2006 SCC 30. It is unnecessary to re-examine these authorities in detail. [page196]

[118] In Hill, at paras. 196-97, Cory J. summarized the general principles as follows:

Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high- handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?

(Emphasis added)

[119] In Whiten, supra, Justice Binnie conducted a comprehensive review of the jurisprudence in the United States and in the Commonwealth countries. From that review he drew a number of principles which he concluded were consistent with Canadian practice and precedent. Those pertinent to this appeal are found at paras. 67-71 and 101, and are reproduced below:

[T]he attempt to limit punitive damages by "categories" does not work and was rightly rejected in Canada . . . . The control mechanism lies not in restricting the category of case but in rationally determining circumstances that warrant the addition of punishment to compensation in a civil action . . . .

[T]he general objectives of punitive damages are punishment (in the sense of retribution), deterrence of the wrongdoer and others, and denunciation . . . .

[T]he primary vehicle of punishment is the criminal law (and regulatory offences) and . . . punitive damages should be resorted to only in exceptional cases and with restraint. Where punishment has actually been imposed by a criminal court for an offence arising out of substantially the same facts, some jurisdictions, such as Australia and New Zealand, bar punitive damages in certain contexts . . . but the dominant approach in other jurisdictions, including Canada, is to treat it as another factor, albeit a factor of potentially great importance . . . .

[T]he incantation of the time-honoured pejoratives ("high- handed, "oppressive", "vindictive", etc.) provides insufficient guidance (or discipline) to the judge or jury setting the amount. Lord Diplock in Cassell, supra, at p. 1129, called these the "whole gamut of dyslogistic judicial epithets". A more principled and less exhortatory approach is desirable . . . .

[A]ll jurisdictions seek to promote rationality. In directing itself to the punitive damages, the court should relate the facts of the particular case to the [page197] underlying purposes of punitive damages and ask itself how, in particular, an award would further one or other of the objectives of the law, and what is the lowest award that would serve the purpose, i.e., because any higher award would be irrational. . . . . .

The "rationality" test applies both to the question of whether an award of punitive damages should be made at all, as well as to the question of its quantum.

(Emphasis added)

[120] I consider the following two principles, extracted from the foregoing review, to be particularly significant for the purposes of this case:

(a) The existence of egregious conduct worthy of condemnation by the court -- while the target of an award of punitive damages -- is not, in itself, sufficient to justify the granting of such an exceptional remedy; and

(b) The court must have regard to all of the principles underpinning a punitive damages award in order to determine whether punitive damages serve a rational purpose in the circumstances. In particular, the court must be satisfied that the granting of punitive damages in a civil tort context -- a concept foreign to the primarily compensatory rationale of tort law -- advances the objectives of the remedy (punishment, deterrence, and denunciation), and outweighs the general rule that these public-oriented objectives are principally addressed by the criminal law.

B. Analysis

[121] Cases of this nature -- which are, unfortunately, neither rare nor exceptional in our society -- pose a dilemma in the punitive damages context. On the one hand, the conduct of an intoxicated driver, whose actions cause death or serious injury, readily fits the rhetoric of punitive damages. On the other hand, visiting that conduct with punitive damages does not readily fit with the rationality underpinning of the punitive damages remedy and has significant implications for the compensatory foundation of the law of torts. In addition, as I shall outline below, punitive damages, in the milieu of motor vehicle negligence, do not materially advance the objectives of punitive damages. Moreover, awarding punitive damages in what will inevitably become less than the rare and exceptional case tips the criminal law/private law balance respecting the imposition of a public sanction too far in the direction of a private law tort remedy. This will result in [page198] windfall recoveries for a large number of claimants whose compensatory entitlement has no relationship whatever to the recovery they will receive.

[122] Respectfully, unlike my colleagues, I would resolve this dilemma by concluding that punitive damages do not serve a rational purpose in the circumstances of this case, and, generally, in cases of this particular nature.

(a) Impaired driving is unacceptable but, regrettably, not rare

[123] Here, Andrew Grigg's conduct is clearly deserving of condemnation. I agree with my colleagues that his decision to drive a motor vehicle after drinking excessively, and the manner of his driving (speeding and manoeuvring erratically) -- both resulting in serious personal injury to an innocent pedestrian -- support a finding that his conduct was deliberate and intentional, and that it showed a reckless disregard for the lives and safety of others on the road. However, these facts, while surely justifying criminal sanctions by the state, do not distinguish this case from many other similar factual situations.

[124] There is no question impaired driving is a phenomenon in our society that cannot be tolerated. Many authorities have expressed this sentiment, perhaps none more eloquently than Cory J. in R v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, 95 C.C.C. (3d) 193, at p. 269 S.C.R., p. 204 C.C.C., cited above by the Chief Justice and Justice Weiler:

Every year drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country.

[125] For these very reasons, however, impaired driving cases readily lend themselves to the type of pejorative descriptors which courts frequently employ in awarding punitive damages: "wanton or reckless", "contumelious", "deserving of the court's censure", "offending the court's sense of decency", "malicious", "high-handed and heinous", "reckless disregard for the lives and safety of others", etc. Nonetheless, as I have said, the fact that the impugned conduct may attract such descriptors is not sufficient, in itself, to support an award of punitive damages.

[126] When conduct can be described with what Binnie J., in Whiten, supra, at para. 70, called "the incantation of the time-honoured pejoratives" and with what Lord Diplock, in Cassell & Co. Ltd. v. Broome, [1972] A.C. 1027, [1972] 1 All E.R. 801 (H.L.), [page199] at p. 1129 A.C., referred to as "the whole gamut of dyslogistic judicial epithets", it becomes all the more easy to lose sight of the important admonition that punitive damages are to be reserved for what is described in Whiten, at para. 105, as "[the] exceptional case that justifie[s] an exceptional remedy". In Whiten, and more recently in Fidler, the Supreme Court of Canada has reinforced this cautionary golden thread that runs through all of the jurisprudence surrounding punitive damages -- they are to be imposed in rare and exceptional cases and even then only with restraint. The admonition should not be thrown to the four winds.

[127] As deplorable as the reality is, personal injuries arising from impaired driving cases are far from exceptional in our society. Thousands die or are injured each year. In Canada in 2003, for example, approximately 2,939 drivers were involved in alcohol-related motor vehicle accidents in which someone was seriously injured and an estimated 902 people died in motor vehicle accidents in which at least one of the drivers had been drinking. [See Note 8 below] By resisting the application of punitive damages to the circumstances of this case, I do not for one moment seek to minimize or to dishonour the injuries suffered by Ms. McIntyre, or to condone the conduct of Mr. Grigg.

[128] However, there is simply nothing on the record to distinguish this case from hundreds, if not thousands, of other similar situations. If punitive damages can be awarded on the facts of this case, they can be awarded in a great number of others where alcohol-induced motor vehicle accidents lead to death or injury -- and, they will be. As I explain below, an award of punitive damages in this case, and others like it, will have significant implications for the law of torts, and for the relationship between the law of torts and the criminal law.

[129] I turn first, however, to a consideration of whether an award of punitive damages advances the underlying objectives of that remedy in the circumstances of this case.

(b) The objectives of punitive damages are not advanced

[130] I am not persuaded that an award of punitive damages in this case, and more generally, in the context of impaired driving and motor vehicle negligence, advances either the objectives of punishment or deterrence. [page200]

[131] Mr. Grigg is required by law in Ontario to be insured. Although the details of his insurance are not before the court, the Standard Automobile Owner's Policy provides that where the insured is legally responsible for the bodily injury to, or death, of others, or for damage to the property of others, as a result of owning, using or operating the insured automobile, the insurer "will make any payment [on the insured's behalf] that the law requires, up to the limits of the policy". [See Note 9 below] Nothing in the Standard Policy terms exclude punitive damages from this provision, and nothing negatives coverage vis-à-vis third parties as a result of intoxication. Thus, it is unlikely that Mr. Grigg -- or other impaired drivers in similar situations -- will have to pay the punitive damages awarded (subject to policy limits).

[132] What, then, is accomplished in the way of punishment or deterrence by such an award? An award of punitive damages in these circumstances does little to advance the objectives of punitive damages, in my opinion, particularly when weighed against the injunction that such awards are to be reserved for exceptional cases that justify an exceptional remedy: Whiten, para. 105.

[133] Moreover, if punitive damages are to be awarded in such circumstances, the social cost of such a development may be significant as well. Drivers in Ontario are insured. If insurers are to become exposed to an increasing risk of indemnifying for punitive damage awards, they will naturally be required to increase their reserves for losses accordingly. Even if coverage for punitive damages becomes optional, insurance premiums across the board will inevitably rise. In that sense, then, all automobile-owning members of society will effectively be "punished" for the conduct of Mr. Grigg and comparable drivers. Similar concerns underlie the "cap" on non- pecuniary damages imposed by the Supreme Court of Canada in the trilogy of cases referred to in the reasons of the Chief Justice and Justice Weiler: see, for example, Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8, at p. 333 S.C.R.

(c) The implications of eroding the "rarity" principle

[134] Erosion of the "rarity" principle drives other considerations that also militate against an award of punitive damages. Although he did acknowledge that such damages may be awarded in negligence in a proper case, Binnie J. noted, in Whiten, supra, at para. 67, [page201] that punitive damages by their very nature "will largely be restricted to intentional torts". I think there can be no doubt, however, that if punitive damages are found to be available in this case, they will be found to be available -- and will be awarded -- in many other personal injury or fatal accident cases arising out of alcohol-related motor vehicle accidents. In my opinion, such a development would distort the core rationale of tort law, namely, compensation, in fundamental ways.

[135] As the jurisprudence makes clear, punitive damages are not compensatory and have nothing to do with a plaintiff's injuries; they are designed to punish, to deter and to denounce a defendant's egregious conduct. Thus, an award of punitive damages is a complete windfall for the plaintiff. While this may be of marginal concern where the award is made in the isolated rare and exceptional case, it becomes more disquieting if the award is made in a broader range of "less exceptional" circumstances. What is the rational purpose served by encouraging judges and juries -- who may be emotionally "outraged" by the "impaired driving" aspect of a case -- to make damage awards that are completely divorced from any injuries sustained by the plaintiff and thus unrelated to the compensatory raison d'être of tort law, on a more frequent basis? In my opinion, there is none.

[136] There is another troubling way in which an award of punitive damages in circumstances such as these warps the compensatory rationale that undergirds the tort system. I question the wisdom of a legal policy which has the effect of engrafting the criminal law functions of punishment, deterrence and denunciation upon a compensatory tort system in anything but the truly shocking and exceptional case -- particularly in the negligence framework. As the Supreme Court of Canada has most recently noted, in Fidler, supra, at para. 62:

As stated in Whiten, at para. 36, "punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment)". Criminal law and quasi-criminal regulatory schemes are recognized as the primary vehicles for punishment. It is important that punitive damages be resorted to only in exceptional cases, and with restraint.

(Emphasis added)

[137] Justice LeBel touched on this problem in Whiten, supra, albeit in dissent. [See Note 10 below] Stating that he agreed with Binnie J. on the [page202] core principles governing the award of punitive damages -- the rationality and proportionality of the award remaining the key considerations -- he noted, at para. 151, that,

[t]he concept of rationality remains grounded in the nature of tort law, its historical development and the functions it is now playing in modern society.

Later, at para. 158, he observed that,

[a]n overriding objective of general deterrence remains problematic, if punitive damages are to remain a useful incident of tort law. Otherwise, their use may turn some parts of the law of tort into a sort of private criminal law, devoid of all the procedural and evidentiary constraints which have come to be associated with the criminal justice system.

(Emphasis added)

[138] In their reasons, the Chief Justice and Justice Weiler recognize the danger of judges and juries in civil cases second-guessing what has transpired in parallel criminal proceedings. Indeed, I agree with the following opinion expressed by them at para. 79:

Where a wrongdoer has already been punished for an offence and the same conduct is in question at a civil trial, punitive damages will not generally serve a rational purpose as the sentence imposed in the criminal or regulatory environment will have already met the necessary objectives of retribution, deterrence and denunciation. In our view, there are sound policy reasons not to attempt to re-try those proceedings in a civil action.

[139] Unlike my colleagues, however, I am not persuaded that the circumstances of this case constitute an exception to those sound policy reasons.

[140] The factual foundation for their conclusion lies in Mr. Grigg's conviction for careless driving only, after a plea of guilty, and the $500 fine that was imposed on him. Other alcohol-related charges were withdrawn by the Crown, apparently because the police had omitted to advise Mr. Grigg of his right to counsel at the time of the accident, thereby, rendering inadmissible the breathalyser test results that would have demonstrated a high level of legal impairment on his part. The jury here, however, had the breathalyser results in evidence, as well as much expert and other testimony concerning Mr. Grigg's impaired condition.

[141] The legal foundation for my colleagues' conclusion rests on the "disproportionality" test, enunciated by Binnie J. in Whiten, supra, at para. 123, in relation to the wrongful conduct and the penalty imposed. For ease of reference, I reproduce the relevant portions of Binnie J.'s comments underlining the portion of his remarks on which my colleagues particularly rely: [page203]

Compensatory damages also punish. In many cases they will be all the "punishment" required. To the extent a defendant has suffered other retribution, denunciation or deterrence, either civil or criminal, for the misconduct in question, the need for additional punishment in the case before the court is lessened and may be eliminated. In Canada, unlike some other common law jurisdictions, such "other" punishment is relevant but it is not necessarily a bar to the award of punitive damages. The prescribed fine, for example, may be disproportionately small to the level of outrage the jury wishes to express. The misconduct in question may be broader than the misconduct proven in evidence in the criminal or regulatory proceeding. The legislative judgment fixing the amount of the potential fine may be based on policy considerations other than pure punishment. The key point is that punitive damages are awarded "if, but only if" all other penalties have been taken into account and found to be inadequate to accomplish the objectives of retributions, deterrence, and denunciation . . . .

(Italics in original, underlining added)

[142] I agree with the view of the Chief Justice and Justice Weiler that this "disproportionality" test -- which is expressed in obiter in Whiten -- should be approached with caution. Where I respectfully disagree is on the weight that should be attributed to the examples given by Binnie J. in the underlined portion of the above passage.

[143] I read those comments as providing general examples of the legal principle being enunciated, not as binding legal principles themselves. The legal principle is that in Canada, unlike in some other common law jurisdictions, "other" punishment in parallel criminal proceedings is relevant but is not necessarily a bar to the award of punitive damages. I do not understand Justice Binnie as intending to elevate to the level of binding legal principle the notion that it should be open to judges and juries, in the many alcohol-related negligence cases that come before them, to second-guess the punishment imposed in parallel criminal proceedings on the basis (a) that the fine imposed was not consistent with their "level of outrage" or (b) that they may feel the civil case encompassed more wrongful conduct than what was addressed in the criminal proceeding.

[144] "Outrage" is not a sound yardstick for measuring legal policy (although it may form a basis for applying it). In this case, for example, the jury's level of outrage led them to make a punitive damage award of $100,000. It is hard to conceive of an impaired driving offence where a fine of that dimension, or even a fine of $20,000 (the amount of punitive damages upheld by the majority here), would be imposed. Would it follow that judges or juries in civil cases such as this are entitled to superimpose their version of a "fine" on the defendant even though the defendant was required to pay a fine perfectly in keeping with the [page204] principles of sentencing in criminal law, and to do so just because the fine imposed does not accord with their "level of outrage"? Or, because they felt that the misconduct in question before them was broader than the misconduct proved in the criminal proceeding?

[145] A judge or jury in the civil proceeding cannot know the answer to this latter question -- or, indeed, to the question of whether the fine imposed in the criminal proceeding was appropriate for that proceeding -- without knowing all of the evidence and all of the factors underlying the disposition of the criminal proceeding. They cannot know these dynamics of the parallel criminal case without having tried it. There is a well-founded policy against the duplication of legal proceedings. I do not see how the preservation of public order and the tempering of harm done to the public good -- the objectives of punitive damages -- are advanced by allowing judges or juries in civil cases to override what they may perceive to be imperfections in the criminal proceedings, except in the truly rarest of cases.

C. Conclusion

[146] I recognize the wisdom of Binnie J.'s counsel in Whiten, that punitive damages are not to be limited by "categories" -- either to certain classes of cases, or by exclusion from certain classes of cases. However, there may be types of cases where, as a general rule, punitive damage awards are inappropriate for policy or other reasons. Accordingly, while I would not say that there can never be an award of punitive damages in impaired driving cases involving death or serious personal injury, I would put such cases in this latter category. Having regard to the factors outlined above, and the rationality principle that underlies an award of punitive damages, the circumstances of this case do not -- again, borrowing the words of Binnie J. in Whiten, at para. 67 -- "warrant the addition of punishment to compensation in a civil action".

[147] I would allow the appeal with respect to punitive damages and set aside the award in that regard.

[148] If I am wrong in this conclusion, I agree with the Chief Justice and Justice Weiler that the quantum of the punitive damages award should be reduced from $100,000 to $20,000. With respect to the other issues on the appeal, I agree with them and with the disposition of those issues in the manner set out in the reasons of the court. [page205]

D. Costs

[149] The parties can make written submissions on the appropriate disposition of costs in these appeals. Those submissions should be no more than 15 pages and should be filed within three weeks of the release of these reasons.

Defendants' appeals allowed in part; plaintiffs' appeal allowed.

Notes

Note 1: Andrews v. Grand & Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, [1978] S.C.J. No. 6; Thornton (Next friend of) v. Prince George School District 57, 1978 12 (SCC), [1978] 2 S.C.R. 267, [1978] S.C.J. No. 7; Arnold v. Teno, 1978 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8.

Note 2: Counsel for McMaster also brought motions to strike the claim for aggravated and punitive damages at the beginning and end of the trial; the trial judge also dismissed those motions. However, the jury did not award aggravated or punitive damages against McMaster and as such, the issue of aggravated or punitive damages in relation to the conduct of McMaster is outside of the scope of this appeal.

Note 3: But see Nelson v. Welsh, 1985 5838 (NS SC), [1985] N.S.J. No. 412, 70 N.S.R. (2d) 422 (S.C.), where Richard J. rejected a claim for punitive damages in an impaired driving case. Richard J. found that when the only factor that is beyond negligence is the driver's intoxication or impairment, punitive damages should not be awarded. In coming to this conclusion the trial judge relied on decisions refusing punitive damages in cases involving the negligence of a surgeon and the defective manufacture of a product. As noted elsewhere in our decision in this case, the law has evolved such that punitive damages have now been awarded in these types of cases. The trial judge was also of the opinion that the driver's insurance company pays the damage award and punitive damages would have no deterrent value. Our understanding is that the terms of the policy will dictate whether or not punitive damages would be included. Furthermore, while doctors are covered by insurance, punitive damages have nevertheless been awarded against them when they have breached the doctor-patient relationship. See Norberg v. Weinnrib, supra and Gerula v. Flores, infra. The analysis in Nelson is therefore not helpful as it is not based on the current state of the law.

Note 4: For a summary of American case law see Danny R. Veilleux, "Intoxication of automobile driver as basis for awarding punitive damages" (1995) 33 A.L.R. (5th) 303.

Note 5: In Norberg, La Forest J. on behalf of himself, Gonthier and Cory JJ. founded liability on the unequal distribution of power in the doctor-patient relationship and exploitation or abuse of that power; McLachlin J., with whom L'Heureux Dubé J. agreed, grounded liability on breach of fiduciary duty. The five judges agreed that punitive damages should be awarded. Sopinka J. held that the sexual acts were causally connected to the doctor's failure to treat and were a breach of his professional duty, but held punitive damages should not be awarded. Stevenson J. took no part in the judgment.

Note 6: In this regard, both La Forest J. and McLachlin J. cited The Report of the Task Force of the Ontario College of Physicians and Surgeons.

Note 7: Andrea's release date is drawn from the appellants' compendium, at Tab 1, p. 24. It is the court's understanding that the release date mentioned in the appellants' factum at para. 25 is incorrect.

Note 8: The Traffic Injury Research Foundation of Canada, The Alcohol-Crash Problem in Canada: 2003 by D.R. Mayhew, S.W. Brown & H.M. Simpson (Ottawa: Transport Canada and the Canadian Council of Motor Transport Administrators, 2005) at pp. 35, 40.

Note 9: Ontario, Financial Services Commission, Ontario Automobile Policy (OAP 1), Owner's Policy, online: Financial Services Commission of Ontario, http: (date viewed: September 29, 2006) at 16 (emphasis added).

Note 10: LeBel J. was in dissent, but not on the question of whether punitive damages should be awarded. At para. 143, he agreed such an award was justified in the circumstances, but felt that $1 million in punitive damages went far beyond the appropriate use of this kind of remedy.