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"Charge to the Jury" on awarding punitive damages in Alberta wrongful dismissal case

Jurisdiction: - Alberta

The wrongful dismissal action in Elgert v. Home Hardware Stores Limited (see previous post) was heard by an Alberta jury.

In Elgert v. Home Hardware Stores Limited, 2010 ABQB 220, the 13th written decision in this case, the judge laid out his Charge to the Jury on the issue of punitive damages at para. 61:

On the issue of punitive damages, the Charge to the Jury followed the specific guidelines set by the Supreme Court of Canada in Whiten v. Pilot Insurance Co. The Guidelines and Restrictions were stated painstakingly with many warnings given to the Jury. My Charge to the Jury at pages 20 - 21 reads as follows:-

72.       You may also choose to award Dan Elgert punitive damages if you find that Home Hardware's conduct in dismissing him was harsh, vindictive, reprehensible, and malicious; that is, deserving of full condemnation and punishment. Punitive damages should only be awarded in exceptional cases where the employer's conduct was egregious or outrageous, and where the compensatory damages already awarded do not carry the necessary element of deterrence. These facts must be kept in mind in deciding whether to award punitive damages:

(a)       Punitive damages are the exception, not the rule;

(b)       There must be a marked departure from the ordinary standards of decent behaviour by the defendant;

(c)       If punitive damages are awarded, they should be proportionate to the harm caused by the defendant, the degree of misconduct, the degree of vulnerability of the plaintiff, and any advantage gained by the defendant;

(d)       Whether or not the Defendant has paid any other fines or penalties;

(e)       Whether other penalties are available, and if so, are they adequate?

(f)       The purpose of punitive damages is not to compensate the plaintiff;

(g)       But, the purpose is to punish the defendant's conduct so as to act as a deterrent and a mark of the community's condemnation;

(h)       They should only be awarded where compensatory damages cannot accomplish these objectives;

(i)         The amount must not be greater than what was needed to accomplish its purpose;

(j)         The State normally receives these fines, but in this case, punitive damages will be a windfall to Dan Elgert; and

(k)       Moderate damages are usually sufficient because of the stigma an award of punitive damages creates in the community.

73.       You must be cautious to avoid unnecessary duplication in the award of damages. If you find that Home Hardware is liable for punitive damages, any award you make should be fair and reasonable to both Dan Elgert and Home Hardware. The amount of damages is for you to decide, but must fall within the range of $0 to $400,000.

(Note: the $400,000 cap was based on submissions the parties had made to the judge).