DAMAGES IN Small Claims Court - Law Society Of Ontario

being that the cost of the new roof was 32,000 and the fund only had 20,000, each unit ownerwas assessed 3,000. At that time, a claim was also filed under the Insurance Policy for repairs tothe interior and damage to contents. The Insurance Company pursuant to the Condominium’spolicy paid for the repairs and for the replacement of contents.Everyone was happy and eagerly anticipating a worry free 2016 ski season. However, byFebruary 2016, unit A and B were reporting leakage. Ms. Kim immediately contacted Rely OnUs Roofing Company Inc. who sent out an employee. Upon inspection of the roof, the employeeindicated that some of the shingles were incorrectly installed and were blown off during a fallstorm leaving that area unprotected. Ms. Kim was assured that the problem had been resolvedand a claim was not made to the Insurance Company.However, much to GJ Raiz’s dismay, as he just wanted to ski, he was being deluged withangry emails from unit owners and Rely On Us Roofing Company Inc. However, by chance, atthe end of April 2016, he attended an après ski cocktail party and learnt from a fellow guest thatthe adjacent building to his which had been built by the same contractor at the same time had hada similar problem. The problem was not with the roof, but occurred because the insulation andvapor barrier had been improperly installed. It was an easy and inexpensive fix costing only 2,000. Mr. Raiz immediately brings this information to Ms. Kim’s attention and demands areturn of his assessment money and angrily informs her that she must reimburse the contingencyfund the sum of 20,000 as the new roof had not been necessary.Identifying the Parties1.2.3.4.5.Is GJ Raiz a plaintiff?Is Sandy Kim a defendantIs Natural High Chalet Inc. the Plaintiff?Is We Fix All Ltd. a defendantIs Rely On Us Roofing Company Inc. a defendant?Legal Framework1. On what basis would Mr. Raiz have a claim against Sandy Kim or We Fix All Ltd. or RelyOn Us Roofing Company Inc.? Did Sandy have the express or implicit authority tocontract with Rely On Us Roofing Company Inc.?2. Does Mr. Raiz have the legal standing to issue a claim against Rely On Us RoofingCompany Inc.? If so, on what basis, is it a tort action or a contractual action? And if it is atort, identify the tort?Damages1. If there is a claim against Rely On Us Roofing Company Inc. is it for 32,000? Does abetterment issue exist?2. Is the information that the adjacent unit paid 2,000 relevant?1-4

Professionalism1. Do you advise Mr. Raiz that you need to examine the by-laws of the CondominiumCorporation before taking any future steps? In addition to undertaking legal research?2. Do you advise Mr. Raiz the knowledge which he obtained at the après ski cocktail partyneeds to be investigated and that a claim should not be issued pending the results of theinvestigation? The fact that the adjacent building had a vapour barrier problem is thisevidence that this condition existed on his building and was the cause of the leakage?3. Do you advise Mr. Raiz of the provisions of the Limitation Act?4. Do you have any obligation towards Sandy Kim?1-5

TAB 2Damages in Small Claims CourtAggravated and Punitive DamagesThora Espinet, Barrister & Solicitor,Deputy Judge, Small Claims Court, Superior Court of JusticeNovember 10, 2016

THORA ESPINETAGGRAVATED AND PUNITIVE DAMAGESDATE: November 10, 2016Although often interrelated, and easily confused, aggravated and punitive damages aretwo distinct heads of damages that serve two fundamentally different purposes 1.Aggravated damages are compensatory in nature and are awarded to take into accountdamages caused to the party, due to the conduct of the Defendant, whereas punitive areawarded to punish the defendant for actions which offends the court’s sense of decency.AGGRAVATED DAMAGES(1) DefinitionAggravated damages are awarded to take into account pain, anguish, grief, humiliation,wounded pride, damaged self-confidence or self-esteem, loss of faith in friends orcolleagues, and similar matters that are caused by the conduct of the defendant2.1Hodgkin v. Aylmer, 1996 CarswellOnt 4343 (Gen. Div.), at paragraph 58, and Dogan v. Pakulski, 2007 CarswellOnt3085 (S.C.J.), at paragraph 91, citing the eight addition of Linden, Canadian Tort Law.2Gravelle v. A1 Security Manufacturing Corp., 2014 ONSC 5472, at paragraph 38, citing paragraph 51 of Huff v.Price, 1990 CarswellBC 267 (C.A.).2-1

Aggravated damages are not awarded in addition to general damages, but instead thegeneral damages are to be assessed taking into account any aggravating features of thecase and to that extent increasing the amount awarded3.(2) RequirementsAs aggravated damages are compensatory in nature, the plaintiff must provide evidencethat he or she has suffered, foreseeable and compensable mental distress orpsychological damage4. Consequently, a corporation, who obviously cannot suffer mentaldistress or psychological damage, cannot recover aggravated damages5.In addition, the plaintiff must also show that the defendant acted in bad faith 6 or, malice.In Kumar v. Khurana, the court stated: “Aggravated damages may be awarded to takeinto account the additional harm caused to the plaintiff’s feelings by the defendant’soutrageous and malicious conduct. If aggravated damages are to be awarded, there mustbe a finding that the defendant was motivated by actual malice, which increased the injuryto the Plaintiff.”73McIntyre v. Grigg (2006), 83 O.R. (3d) 161 (C.A.), at paragraphs 50 to 51.Alan Clausi Professional Corp. v. Bullock, 2016 ONSC 3033, at paragraph 39.5Ibid and Barrick Gold Corp. v. Lopehandia (2004), 1 O.R. (3d) 416 (C.A.), at paragraph 49.6Alan Clausi, supra, at paragraph 39.7Kumar v. Khurana, 2015 ONSC 7858, at paragraph 21.42-2

Although the Supreme Court’s decision in Vorvis v. Insurance Corp. of British Columbia8seemed to say that a plaintiff in a wrongful dismissal case, and perhaps any breach ofcontract case, was required to prove that the defendant had committed an independentactionable wrong.In order to obtain aggravated damages, the Supreme Court’ssubsequent decisions in Fidler v. Sun Life Assurance9and Keays v. Honda CanadaInc.10 states that a plaintiff may recover damages for mental distress in the absence of anindependent actionable wrong, if he/she can show that such damages were in thereasonable contemplation of the parties at the time the contract was made. Therequirement that the defendant committed an independent actionable wrong still plays arole, however, where such damages were not in the reasonable contemplation of theparties, claims for aggravated damages have been dismissed, on [these] ground, in atleast one wrongful dismissal case11, and at least two other breach of contract cases12,released since Keays was decided.89[1989] 1 S.C.R. 1085.[2006] 2 S.C.R. 3.10[2008] 2 S.C.R. 362.Chopra v. Easy Plastic Containers Ltd., 2014 ONSC 3666, at paragraphs 112 to 115.12Angel v. Beepat, 2016 ONSC 2016, at paragraphs 113 to 115 and Pietrangelo v. Gore, 2010 ONSC 568, atparagraphs 121 to 124.112-3

(3) Pleading RequirementsPursuant to Rule 25.06(9) of the Rules of Civil Procedure13 claims for Aggravateddamages should set out the particulars of the independent actionable wrong or wrongsupon which they are relying, and the material facts in support of them14 . Becauseaggravated damages are compensatory, the plaintiff must also plead the injuries that theyhave suffered as a result of the defendant’s conduct. In Wedde, the plaintiff did not setout the injuries he suffered in the statement of claim, consequently, the statement of claimwas struck. The Court stated that “The plaintiff does not assert in his statement ofclaim that he has suffered any such intangible damages. I do not see, therefore, that thenecessary facts have been pleaded upon which the claim for aggravated damages canrest. 15.(4) Quantum13R.R.O. 1990, Reg. 194, amended to O. Reg. 218/16.Sommerard, [2006] O.J. No. 1209 (C.A.), at paragraph 25, Di Giorgio v. Smardenka, 2004 CarswellOnt 3701(S.C.J.), at paragraph 37, and Cohen v. Cambridge Mercantile Corp., 2007 CarswellOnt 3704 (S.C.J.), at paragraph41.15Wedde v. Janna Systems Inc., 2000 CarswellOnt 4769 (S.C.J.), at paragraphs 14 to 15.142-4

As aggravated damages are properly part of general non-pecuniary damages they aresubject to cap set out by the Supreme Court of Canada and which adjusted for inflationcurrently is around 350,00016. This of course is the maximum amount that can beawarded and normally awards for mental distress usually range from 10,000 to 50,00017.PUNITIVE DAMAGES(1) DefinitionIn contrast with aggravated damages, the aim of punitive damages is not to compensatethe plaintiff, but rather to punish the defendant for “malicious, oppressive and highhanded” misconduct that “offends the court’s sense of decency” 18. They are in tnature of a fine, which is meant to act as a deterrent to the defendant and to others fromacting in this manner19.16McIntyre, supra, at paragraph 48, and Sorochan v. Bouchier, 2015 ABCA, at paragraph 22.Rowe v. Unum Life Insurance Co. of America, 2006 CarswellOnt 7785 (S.C.J.), at paragraph 47.18Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at paragraph 199, and Whiten v. Pilot Insurance,[2002] 1 S.C.R. 595, at paragraph 36.19Hill, supra, at paragraph 199.172-5

(2) RequirementsTo obtain an award of punitive damages, a plaintiff must meet two basic requirements 20.FIRST, the plaintiff must show that the defendant’s conduct is reprehensible, in that it is“malicious, oppressive and high-handed” and a marked departure from ordinarystandards of decent behaviour; andSECOND, the plaintiff must show that a punitive damages award, when added to anycompensatory award, is rationally required to punish the defendant and to meet theobjectives of retribution, deterrence and denunciation.When the claim against the defendant is for breach of contract, the plaintiff faces anadditional requirement of having to show that the defendant committed an actionablewrong independent of the underlying claim for damages for breach of contract21(3) Pleading Requirements2021Boucher v. Wal-Mart, 2014 ONCA 419, at paragraph 79.Ibid, at paragraph 80.2-6

Although there was case law that held that a claim for punitive damages need not bespecifically pleaded, as it is included conceptually in a claim for general damages. TheCourt stated in Whitten,22 “ the suggestion that no pleading is necessary overlooks thebasic proposition in our justice system that before someone is punished they ought tohave advance notice of the charge sufficient to allow them to consider the scope of theirjeopardy as well as the opportunity to respond to it. This can only be assured if theclaim for punitive damages, as opposed to compensatory damages, is not buried in ageneral reference to general damages. This principle, which is really no more than a ruleof fairness, is made explicit in the civil rules ”The Supreme Court of Canada made it clear in Whiten v. Pilot Insurance22 that a claimfor punitive damages must be expressly pled and that the facts, said to justify punitivedamages should be pleaded with some particularity.Justice Binnie in his majoritydecision stated: “The time-honoured adjectives describing conduct as “harsh, vindictive,reprehensible and malicious” or their pejorative equivalent, however apt to capture theessence of the remedy, are conclusory rather than explanatory.” and, consequently, thestatement of claim needs to describe the actual conduct that is said to justify an award ofpunitive damages. In the event that it is necessary to prove that the defendant committedan independent actionable wrong, In Sommerard, the court stated:22Footnote 18, supra, at paragraphs 86 to 87.2-7

“Plaintiffs who seek aggravated and/or punitive damages should particularize, in theirpleadings, the independent actionable wrong or wrongs upon which they are relying andthe material facts in support of them. They should do the same in relation to the conductthey seek to portray as "harsh, vindictive, reprehensible, malicious" and the like. SeeWhiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 at paras. 86 to 92. “Proper pleadingsserve several purposes. Defendants are made aware of the case they have to meet andtrial judges are better able to determine whether a so-called "independent actionablewrong" is indeed "independent" and "actionable" and if so, whether it is supported by theevidence. The same applies to conduct of the employer said to justify aggravated andpunitive damages.” 23(4) QuantumAs was held by Justice Binnie at paragraph 74 of Whiten, which is the leading case onpunitive damages, the governing rule in determining the quantum of punitive damages isproportionality and the overall award, (i.e. compensatory damages plus punitive damagesplus any other punishment related to the same misconduct), should be rationally relatedto the objectives for which the punitive damages are awarded, which are retribution,deterrence and denunciation. He also added that punitive damages should be awarded23Sommerard, supra, at paragraph 25 - 26.2-8

if, and only if, compensatory damages are inadequate to punish the defendant. JusticeBinnie then went on to hold that in determining proportionality the court should consider;FIRST The blameworthiness of the defendant’s conduct, which includes such factors as:1. Whether the misconduct was planned and deliberate;2. The intent and motive of the defendant;3. Whether the defendant persisted in the outrageous conduct over a lengthy period oftime;4. Whether the defendant concealed or attempted to cover up its misconduct;5. The defendant’s awareness that what he or she was doing was wrong;6. Whether the defendant profited from its misconduct; and7. Whether an interest violated by the misconduct was deeply personal to the plaintiff ora thing that was irreplaceable.SECOND, The degree of vulnerability of the plaintiff; such as:1. The harm or potential harm directed specifically at the plaintiff;2. The need for deterrence;2-9

3. The other penalties, both civil and criminal, which have been or are likely to beinflicted on the defendant for the same misconduct; and4. The advantage wrongfully gained by the defendant from the misconduct;In Whiten, the defendant had denied the plaintiff insurance coverage after her houseburned down, on the grounds that she had burned it down herself. This was despite thefact that the local fire chief, its own investigator, and its initial expert had advised it thatthere was no evidence of arson. At trial the jury awarded the plaintiff 1 million in punitivedamages, but that award was later reduced to 100,000.00 by the Ontario Court ofAppeal. Although. He stated that he would not have awarded 1 million, Justice Binniereversed the Court of Appeal and restored the jury’s award on the grounds that it waswithin the rational limits in which a jury must be allowed to operate.In conclusion, Aggravated damages require proof of injuries which the Plaintiff suffered,while punitive damages are to punish the offender. Punitive damages, however are theexception rather than the rules and are only to be awarded if and only if the behaviour ofthe defendant is such that if the behaviour offends the court sense of decency havingregard to other penalties suffered by the plaintiff. Its purpose is to punish and not tocompensate.2 - 10

TAB 3Damages in Small Claims CourtDamages in Employment LawCarla Bocci, Barrister & Solicitor,Deputy Judge, Small Claims Court, Superior Court of JusticeNovember 10, 2016

DAMAGES IN EMPLOYMENT LAWThe focus of this paper is to provide a brief overview of the type of damagesavailable in a wrongful dismissal action.It is a well settled principle at common law that an employer is permitted toterminate an employee from his job even without just cause provided that he isgiven reasonable notice or payment in lieu thereof.An action for wrongful dismissal is based upon an employer’s obligation to givereasonable notice to terminate the employment relationship in the absence of anyjust cause. It is an implied term of an employment contract that reasonable noticebe provided of an intention to terminate the employment relationship. Theemployer must provide either working notice or payment in lieu of reasonablenotice period. 1In Taylor v. Brown, 2004 CanLII 39004 (ON CA), (2004),73OR (3D) 358, the Court ofAppeal held that while reasonable or “proper” notice is an implied term of anemployment contract, payment in lieu of notice is not. It is an attempt to compensate theemployee for the employer’s breach of the employment contract. The Court held atparagraph 15 of its decision:Proper notice of termination is an implied term of the contract of employment; paymentin lieu of notice is not. We agree with the opinion of Lambert J.A in Dunlop v. BritishColumbia Hydro and Power Authority (1988), 1988 CanLII 3217 (BC CA), 32 B.C.L.R.(2d) 334, [1989] 2 W.W.R. 518 (C.A.), when he states at pp. 338-39 B.C.L.R., thatpayment in lieu of notice is seen as "an attempt to compensate for [the employer's] breachof the contract of employment, not as an attempt to comply with an implied term of thecontract of employment". The quantum of a payment in lieu of notice, therefore, is notcalculated in accordance with the terms of the contract, but rather is a means by which anemployer may terminate an employee contrary to its common law duty to give reasonablenotice of termination, without incurring any liability.21Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 7012Taylor v. Brown, 2004 CanLII 39004 (ON CA), (2004),73OR (3D) 3583-1

As there is a presumption at common law that an employer is entitled to terminate acontract of employment provided that he is given reasonable notice then an actionfor wrongful dismissal only arises if the employer fails to give an employeereasonable notice of the termination.In order for an employee to be successful in a wrongful dismissal action he mustestablish both liability, i.e. that the employer failed to provide reasonable notice andsecondly, that as a result thereof he has suffered losses. The standard of evidentiaryproof is on a balance of probabilities. The dismissed employee must lead evidenceto substantiate the losses allegedly suffered as a result of the loss of employment. Inthe case Garcia v. 1162540 Ontario Inc., 2013 ONSC 6574 (CanLII), Justice WiltonSiegel, sitting as a divisional court judge, cited the following passage from the SupremeCourt of Canada decision in Michaels v. Red Deer College, [1976] 2 S.C.R. 324 atparagraph 29:[29]For ease of reference, I will restate the relevant statement of LaskinC.J. in Michaels v. Red Deer College, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324, atpara. 11, referred to by the Deputy Judge in his reasons:In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offeringproof of damages, would lead evidence respecting the loss he claims to have suffered byreason of the dismissal. He may have obtained other employment at a lesser or greaterremuneration than before and this fact would have a bearing on his damages. He may nothave obtained other employment, and the question whether he has stood idly orunreasonably by, or has tried without success to obtain other employment would be partof the case on damages. If it is the defendant's position that the plaintiff could reasonablyhave avoided some part of the loss claimed, it is for the defendant to carry the burden ofthat issue, subject to the defendant being content to allow the matter to be disposed of onthe trial judge'

DAMAGES IN SMALL CLAIMS COURT . 2 12:35 p.m. - 1:00 p.m. Punitive and Aggravated Damages . Thora Espinet, Barrister & Solicitor, Deputy Judge, Small Claims Court, Superior Court of Justice . 1:00 p.m. - 1:25 p.m. Damages in Employment Law-Managing Your Client's