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TYPES OF DAMAGES - Exemplary or punitive damages - Where high-handed, malicious, arbitrary or highly-reprehensible misconduct - Punishment and deterrence

Friday, May 12, 2017 @ 6:54 AM  


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Appeal by Elmardy from a damages award in his action against the defendant Police Services and officer Pak. The appellant, a black man, was stopped by Pak and another officer while walking down the street. In the ensuing interaction, Pak punched the appellant twice in the face, emptied the appellant’s pockets without his consent and left the appellant lying on his handcuffed hands for 20 minutes. The trial judge found breaches of sections 8, 9 and 10 of the Charter and that Pak had committed battery against the appellant. He awarded $4,000 in Charter damages, $5,000 for battery and $18,000 in punitive damages. He declined to find Pak’s conduct was racially motivated and did not find breaches of sections 7, 12 and 15 of the Charter.

HELD: Appeal allowed. There was circumstantial evidence from which an inference could be drawn that it was more probable than not that Pak’s conduct was racially motivated. The failure of the trial judge to consider the indirect evidence constituted a palpable and overriding error. The appellant’s right to equal protection and equal benefit of the law without discrimination based on race under s. 15 of the Charter was violated. The trial judge’s award of general damages for battery did not fall outside the appropriate range. Pak’s conduct was high-handed and oppressive. The damages for the Charter breaches were increased to $50,000. Punitive damages were increased to $25,000 to punish and deter Pak for his misconduct.

Elmardy v. Toronto (City) Police Services Board, [2017] O.J. No. 1640, Ontario Superior Court of Justice – Divisional Court, H.E. Sachs, I.V.B. Nordheimer and N.J. Spies JJ., April 4, 2017. TLD-May82017013