Court File and Parties
Court of Appeal for Ontario Date: 20220526 Docket: C69763
Benotto, Zarnett and Copeland JJ.A.
Between Anthony Pullano Plaintiff (Appellant)
And Steven Hinder, Magna International Inc. and Stronach Consulting Corp. Defendants (Respondents)
Counsel: William Reid, for the appellant Deborah Berlach and Leigh Clark for the respondents
Heard: May 10, 2022
On appeal from the judgment of Justice John McCarthy of the Superior Court of Justice, dated April 15, 2019, sitting with a jury.
Reasons for Decision
[1] The appellant was punched in the chest by the respondent. He brought an action against him for damages for battery. The respondent denied that he punched the appellant and counter-claimed for defamation arising out of several social media posts made by the appellant.
[2] A civil jury determined that the punch occurred but that no physical, emotional or psychological injury was caused. In particular, the punch did not cause the appellant’s implanted heart device to become infected. Since the jury found that there was no injury and no infection caused by the punch, it was not left open to the jury to award general damages. The jury specifically addressed aggravated and punitive damages and found there was no conduct on the respondent’s part which gave rise to an entitlement of the appellant to either.
[3] On the counterclaim for defamation, the jury awarded the respondent $50,000.
[4] Once the jury verdict was rendered, the appellant asked the trial judge to award nominal damages for battery and to find the corporate respondents vicariously liable for those damages. The appellant submitted that, as a matter of law, the punch was a battery, and he is entitled to nominal damages.
[5] The trial judge refused and dismissed the claim for nominal damages. He awarded costs to the respondents as the successful parties.
[6] The appellant submits that the trial judge erred in two respects: (i) by misunderstanding the nature of battery because the punch was, at law, a battery; and (ii) by failing to award nominal damages as he was obliged to do once the battery was established.
[7] We do not accept these submissions.
[8] We do not address the definition of battery because, even if the punch was a battery, the trial judge was not required to award nominal damages. We say this for two reasons.
[9] First, it was the jury’s function to consider damages and the question of nominal damages was not put to the jury. As the trial judge stated, an award of nominal damages “would serve both to usurp the role of the jury ex post facto and to nullify the decision it made not to award any damages under the categories open to it in the questions on the verdict sheet.”
[10] The jury questions were agreed to by the parties. No question was put to the jury about nominal damages if the punch occurred.
[11] Second, trial fairness would be undermined if the appellant were to be awarded an amount for nominal damages when the respondents did not have the opportunity to make submissions to the court as to the question or to the jury in closing submissions.
[12] Since there are no nominal damages, the question of vicarious liability is moot.
[13] The appellant seeks leave to appeal the costs award against him. He submits that the trial judge erred in concluding that he was not successful because he established that the punch occurred. Again, we disagree. The appellant sought damages, and none were awarded. We see no error in principle in the trial judge’s discretionary determination of costs.
[14] The appeal is dismissed with costs to the respondents in the agreed upon amount of $25,000 plus disbursements of $4,000, plus $7,500 for the proceedings in the Divisional Court.
“M.L. Benotto J.A.” “B. Zarnett J.A.” “J. Copeland J.A.”