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November 25, 2013 Law Times
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Lawyers criticize inadequacy
of punitive damages awards
1993. The insurers
not impressed by
refused to pay on
the jurisprudential
the policy. After
treatment that puKwinter
turned
hen Justice Murray nitive damages have
down a nominal
Acton of the Sas- been subject to in
settlement offer at
katchewan Court Canada even after
an early stage, the
of Queen's Bench the Supreme Court
case took 10 years
of Canada upheld
awarded $4.95 million in punito get to trial.
tive and aggravated damages a $1-million puniKwinter argued
earlier this year against two in- tive damages award
No Cost /Obligation Services
the insurer had
surers, American Home Assur- in its 2002 decision
ance Co. and Zurich Life Insur- in Whiten v. Pilot Alf Kwinter has helped clients acted in bad faith.
ance Co. Ltd., members of the Insurance Co. "The achieve some noteworthy puni- The jury agreed and
awarded some $2
personal injury and insurance amounts courts are tive damages awards.
million in punitive
awarding are still
bars took due note.
w w w. h e n d e r s o n . c a | 1 . 8 0 0 . 2 6 3 . 8 5 3 7
chicken feed, nothing more than damages. On appeal, the Court of
But arguably, none was watching more closely than Alfred a licence fee that insurers regard Appeal granted a new trial based
Kwinter of Toronto's Singer Kwin- as part of their cost of doing busi- on misdirection from the trial
judge. The case settled just before
ter. He's probably the only lawyer ness," he tells Law Times.
Kwinter's first case, Pereira v. the new trial started.
Proud Sponsor of
in the country who has succeeded
In the second case, Plester v.
in obtaining punitive damages Hamilton Township Farmers' Muawards against insurers on three tual Fire Insurance Co., involved Wawanesa Mutual Insurance Co.,
Frank Mazza, a car mechanic the Plesters' furniture store burned
separate occasions.
Kwinter got his first two awards and auto lover turned mush- down in March 1997. Wawanesa,
in 2003 and then waited almost 10 room farmer, who had a mas- alleging the plaintiffs had set the
13-11-18 7:51 AM
years, until 2012, for the third. He's sive fire erupt on his property in fire, refused to indemnify them.
That left them without funds to
start up their business again.
After a five-week trial, the jury
awarded $350,000 in punitive
damages and $175,000 in aggravated damages to the Plesters in
addition to their property damage claim and business interruption losses totalling more than
$475,000. The appeal court reduced the aggravated damages to
$50,000 but upheld the punitive
component in its entirety.
If the facts of Brandiferri v.
Wawanesa Mutual Insurance Co.,
decided in 2012, are any indication, Wawanesa learned little if
anything over the next decade
since its experience in Plester, giving some credence to Kwinter's
complaint about the inadequacy
of punitive awards in this country.
In 2000, a fire destroyed the
Brandiferris' garage and its contents and caused smoke to permeate throughout their home. The
approved contractor for the insurance company failed to properly
Kyla A. Baxter, CSSC
identify the scope of the work rePRESIDENT, BAXTER STRUCTURES
quired and improperly spent the
entire policy limits.
Throughout, the couple voiced
their concerns over the work and
repeatedly asked Wawanesa not to
pay for it. The insurance company
neglected the couple's concerns
and made full payment.
In his decision, the trial judge
agreed that Wawanesa was a
™
"repeat offender" and awarded
$100,000 in punitive damages in
addition to compensation for the
damage to the couple's home. Both
sides have appealed.
"One of the difficulties is that
Baxter Structures customizes personal injury
no one goes to trial just for punisettlements into tax-free annuities that can
tive damages because the awards
help your clients be secure for life.
are so low and the risk so high,"
says Kwinter.
Need more information?
John McLeish of Toronto's
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McLeish Orlando LLP, a personal
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or baxterstructures.com
critical injury claims, isn't quite as
harsh on the courts. "As a plaintiffs'
lawyer, I would say that I like the
trend, but getting punitive awards
is still like pulling teeth," he says. LT
BY Julius Melnitzer
For Law Times
W
ntitled-1 1
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