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2 Id.
directly to the injuries.3 (Gilmour, 1994) The Supreme Court did state that there may
be extraordinary circumstances in which this amount could be exceeded, and courts
have allowed the figure to be indexed for inflation so that the current suggested
upper limit on awards for non-pecuniary losses is close to $300,000. Nevertheless,
the flexible cap on non-pecuniary losses is a major disincentive to persons
considering whether they should sue a physician for malpractice and for lawyers to
specialize in or seek out malpractice cases. 4
Punitive damages in tort actions in Canada are relatively rare. The Canadian
Supreme Court has also limited the types of cases in which punitive damages may
be awarded, although it has allowed as much as Can$1 million in punitive damages
in an extraordinary case. A Canadian law firm has summarized the holding in this
leading case concerning punitive damages as follows:
1. Punitive damages are very much the exception rather than the rule;
2. Imposed 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. Where they are awarded, punitive damages should be assessed in an amount
reasonably proportionate to such factors as the harm caused, the degree of
the misconduct, the relative vulnerability of the plaintiff and any advantage
or profit gained by the defendant,
4. Having regard to any other fines or penalties suffered by the defendant for
the misconduct in question.
5. Punitive damages are generally given only where the misconduct would
otherwise be unpunished or where other penalties are or are likely to be
inadequate to achieve the objectives of retribution, deterrence and
denunciation.
6. Their purpose is not to compensate the plaintiff, but
7. to give a defendant his or her just desert (retribution), to deter the defendant
and others from similar misconduct in the future (deterrence), and to mark
the communitys collective condemnation (denunciation) of what has
happened.
3 Joan M. Gilmour, Overview of Medical Malpractice Law in Canada, 3 Annals Health
L. 179 (1994). Available at: http://lawecommons.luc.edu/annals/vol3/iss1/14
4 Stephen F. Clarke, Medical Malpractice Liability: Canada (2009)
Bibliography
Clarke, S. F. (2009, June). Medical Malpractice Liability: Canada. Retrieved December
15, 2016, from The Library of Congress: https://www.loc.gov/law/help/medicalmalpractice-liability/canada.php
Gilmour, J. M. (1994). Overview of Medical Malpractice Law in Canada. Retrieved
December 15, 2016