COURT OF APPEAL FOR ONTARIO DATE: 20210611 DOCKET: C67876
Juriansz, van Rensburg and Sossin JJ.A.
BETWEEN
Daniel Eynon Plaintiff (Respondent)
and
Simplicity Air Ltd. Defendant (Appellant)
Counsel: Cynthia B. Kuehl, James Scarfone and Jacob Sazio, for the appellant R. Paul Hosack and Peter Karsten, for the respondent
Heard: May 3, 2021 by video conference
On appeal from the judgment of Justice Robert B. Reid of the Superior Court of Justice, sitting with a jury, dated December 6, 2019.
REASONS FOR DECISION
A. Overview
[1] This is an appeal from a jury award of punitive damages. The respondent sued the appellant for injuries he suffered in the workplace on December 12, 2014.
[2] After being challenged by a colleague, the respondent climbed a 14-foot-high chain hoist. As he descended, he caught the crotch of his pants on a hook near the bottom of the chain and another hook pierced his scrotum. That evening the respondent had surgery at the Brantford General Hospital, which involved a debridement of his scrotum and repair of lacerations to his penis and scrotum. The respondent testified the accident occurred while he was engaged in “horseplay”. The WSIB determined he was not entitled to benefits after deciding the accident did not take place in the course of his employment.
[3] The jury assessed the respondent’s general damages in the amount of $75,000 and his damages for lost wages at $9000. The jury found these amounts should be reduced by 75 percent for the respondent’s contributory negligence in causing his injuries. This reduced the amount of general damages to $18,750 and the wage loss to $2,250. The jury also assessed punitive damages against the employer in the amount of $150,000. The jury was not asked and did not provide any indication of the basis for its award of punitive damages. The jury did, however, provide a brief explanation of the appellant’s role in causing or contributing to the respondent’s injuries. It said, “The [appellant] demonstrated a serious lack of proper safety training, documentation, as well as creating a culture within the company whereby employees failed to place adequate importance on best safety practices.”
[4] At trial the respondent testified that the appellant provided him with no safety training, no WHMIS training, and assigned him to drive a forklift without proper certification. The respondent also testified that throughout his employment the appellant failed to properly train him for the dangerous tasks he was required to perform. Further, the respondent said on the day of the accident there was no supervisor on the floor. He claimed he had not been trained to operate the chain hoist, so he did not know climbing it was dangerous.
[5] The appellant’s witnesses contested the respondent’s evidence that he did not receive safety training and testified he was not trained on the chain hoist because he was not authorized to use it.
[6] The evidence most pertinent to punitive damages relates to what occurred in the one-hour period between the time of the accident and the respondent’s arrival at the hospital. In his instructions to the jury on punitive damages, the trial judge highlighted only the evidence of this period.
[7] After the accident, the respondent said he screamed in pain and asked that an ambulance be called. When a supervisor, Gary, came into the shop, the respondent said Gary laughed at him. When he tried to show Gary his injury, the respondent claimed Gary refused to look at it. According to the respondent, Gary refused to call him an ambulance and instead drove the respondent to the second shop location to talk with Doug, the service manager and the respondent’s direct supervisor. Doug first said they would arrange someone to drive the respondent home to Simcoe and they would get his car home for him. The respondent refused to be taken to Simcoe after calling his father who told him to insist they take him to a hospital. Before departing for the Brantford hospital, the respondent claimed that Doug told him to say, “this happened at home”. The respondent testified that on the way to the hospital Gary also told him to say the injury happened at home. When they arrived at the hospital, Gary dropped the respondent at the entrance and did not accompany him inside. The respondent denied that Gary had offered to take him into the hospital.
[8] Gary and other witnesses for the appellant offered a different version of events. Gary admitted he laughed when he first saw the respondent stuck on the chain lift because he thought he had just hooked his jeans. Gary denied the respondent asked for an ambulance and said there was no reason to call an ambulance based on the respondent’s demeanour. Gary said he asked to see the injury but did not insist when the respondent refused to show him. Gary and Doug both denied telling the respondent to say the injury occurred at home. Doug testified he asked an employee to drive the respondent home before he had talked to the respondent. After learning the respondent wanted to go to the hospital the only discussion was whether they would take him to Cambridge or Brantford. They decided Gary would take the respondent to Brantford General Hospital. Gary said the respondent told him not to come inside the hospital with him because his father was on his way.
B. Issues
[9] The appellant submits that the punitive damages award should be set aside because a) punitive damages should not have been left with the jury, b) the trial judge erred in his instructions on punitive damages and should have provided a range for the quantum of punitive damages, and c) the employer should not be liable for punitive damages for the conduct of its employees.
[10] Alternatively, the appellant submits that the punitive damages award should be reduced because a) the quantum is plainly unreasonable and unjust, and b) any punitive damages award should be reduced by the respondent’s contributory negligence.
C. Analysis
(a) The issue of punitive damages was properly left with the jury
[11] The trial judge properly told the jury they could award punitive damages “if the wrongful acts of the [appellant] toward [the respondent] were outrageous or reprehensible and offensive to ordinary standards of decent conduct in the community.” He told them: 1) that an award of punitive damages was very much the exception; 2) that such damages should be awarded only if there has been “high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour”; 3) that the purpose of punitive damages is to deter similar misconduct in the future rather than provide compensation to the plaintiff; and 4) that punitive damages are generally given only when “misconduct would otherwise be unpunished or when other penalties suffered by the defendant are unlikely to adequately achieve the objectives of retribution, deterrence, and denunciation, which are normally the preserve of the criminal law”. He also told the jury that punitive damages should only be awarded in an amount that was no greater than necessary to rationally accomplish their purpose. The trial judge identified aspects of the defendant’s conduct that were relevant to the claim for punitive damages, as well as the evidence of the defendant’s witnesses denying or explaining that conduct. The trial judge referred to the factors relevant to the determination of a proportionate amount of punitive damages.
[12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. The jury could properly regard these instructions as misconduct offensive to ordinary standards of decent conduct expected of an employer and could be properly described as highly reprehensible. Such instructions contravene s. 22.1 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. (“WSIA”), and constitute an offence under s. 155.1 of WSIA. Had the appellant been prosecuted and a penalty imposed under s. 158(1) of WSIA the need for punitive damages would have been lessened: see Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 123.
(b) There was no error in the trial judge’s instructions on punitive damages
[13] The appellant recognizes that the trial judge cited the boilerplate punitive damages elements listed in Whiten, but submits he failed to give the jury guidance on how to apply those elements to the facts of this case. We disagree.
[14] The trial judge’s instructions, summarized above, adequately equipped the jury to assess the appellant’s conduct. The appellant’s reliance on Ferme Gérald Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co. (2002), 61 O.R. (3d) 481, leave to appeal refused, [2002] S.C.C.A. No. 488, a breach of contract case, is misplaced as no independent actionable wrong was required in this tort case: Whiten, at para. 149, per LeBel J. (dissenting, but not on this point).
[15] The appellant also submits that the trial judge erred by failing to provide any guidance on what an appropriate range for punitive damages would be. The appellant argues the failure to provide such guidance invites disproportionate awards.
[16] Absent the agreement of counsel on a range for punitive damages, it would have been improper for the trial judge to suggest one to the jury. We note that the appellant’s trial counsel did not ask for the jury to be given guidance on a range of punitive damages, nor did he provide one to the jury himself in closing submissions, despite confirming with the trial judge that he would be permitted to do so. We do agree it would have been preferable for the trial judge to have asked the jury to briefly indicate the basis for their award of punitive damages as he had asked them to indicate the basis for their award of general damages.
(c) The appellant is liable for punitive damages resulting from the conduct of its employees
[17] The appellant advanced the proposition that an award of punitive damages had to be based on its own conduct and could not be based on the conduct of its employees (in this case the supervisors Gary and Doug). The appellant relied on this court’s decision in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, where Laskin J.A. distinguished between “reprehensible conduct specifically referable to the employer” and the conduct of its supervisor: at para. 82. The employer and the supervisor were both defendants in Boucher and the damage awards against each were discussed separately. The problem in that case was that the trial judge invited the jury to base its award of punitive damages against Wal-Mart on its vicarious liability for an independent actionable wrong that was committed by its employee – the intentional infliction of mental suffering (and in respect of which the employee defendant was found liable for $100,000 in damages). Laskin J.A. commented that this wrong was never tied by the trial judge to Wal-Mart’s own conduct in failing to enforce its workplace policies. After considering that conduct, he concluded that Wal-Mart’s own conduct warranted an award of punitive damages, but he reduced the punitive damages awarded by the jury after considering the significant compensatory amounts awarded, including aggravated damages, and the fact that Wal-Mart was vicariously liable for the amounts awarded against its employee.
[18] In the present case, by contrast, only the employer was named as a defendant. There was no obligation to find an “independent actionable wrong”, and the conduct of Gary and Doug occurred in the course of their employment as the respondent’s supervisors who had been left in charge of the workplace in the absence of the appellant’s owners. There was no question that the conduct of the supervisors was the conduct of their employer, the appellant. Moreover, the actions of Gary and Doug occurred within what the jury had determined was “a culture within the company whereby employees failed to place adequate importance on best safety practices”. Accordingly, we do not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel.
(d) The quantum of the award is not irrational and inordinately large
[19] The appellant properly points out that a less deferential standard applies to appellate review of jury awards of punitive damages than to jury awards of general damages: Rutman v. Rabinowitz, 2018 ONCA 80, 420 D.L.R. (4th) 310, at paras. 56-58. Appellate review of a jury award of punitive damages furthers the coherence of the administration of justice by ensuring that the award serves a rational purpose. However, in order to interfere with a jury punitive damages award, the reviewing court must regard the award, when added to the compensatory damages, to be so “inordinately large” that it exceeds what is rationally required to punish the defendant: Rutman, at para. 58; Whiten, at paras. 109, 128.
[20] In this case, we are not persuaded the jury’s award of punitive damages is so inordinately large that it exceeds what is rationally required to punish the appellant. As noted, the evidence was that the appellant had not been penalized in another forum for instructing the respondent to falsely report the accident happened at home. The jury could properly regard this conduct as sufficiently illegal and reprehensible to warrant an award of this magnitude to deter similar misconduct in the future.
[21] This is one of those exceptional cases in which the relationship between the punitive damages award and the general damages award is weak. In this case, the trial judge’s instructions premised the punitive damages award on the appellant’s conduct after the accident and not on its negligence which contributed to the accident. In that sense, the punitive and general damage awards had separate bases. The focus of the award of punitive damages was on the appellant’s misconduct in the context of the surrounding circumstances, and not on the circumstances leading to the respondent’s injury. This is however entirely proper. Punitive damages are awarded to sanction a defendant’s misconduct, and not to compensate a plaintiff: see Whiten, at paras. 94, 127.
(e) The punitive damages award should not be reduced by contributory negligence
[22] In awarding punitive damages, the jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted. There is no basis for reducing the punitive damages award based on contributory negligence.
D. Conclusion
[23] The appeal is dismissed. The parties have agreed on costs.
“R.G. Juriansz J.A.”
“K. van Rensburg J.A.”
