



COURT OF APPEAL FOR ONTARIO

CITATION: Eynon v. Simplicity Air Ltd., 2021 ONCA 409

DATE: 20210611

DOCKET:
C67876

Juriansz, van Rensburg and Sossin JJ.A.

BETWEEN

Daniel Eynon

Plaintiff (Respondent)

and

Simplicity Air Ltd.

Defendant (Appellant)

Cynthia B. Kuehl, James Scarfone and Jacob Sazio, for
    the appellant

R. Paul Hosack and Peter Karsten, for the respondent

Heard: May 3, 2021 by video conference

On appeal from the judgment of Justice Robert B. Reid of
    the Superior Court of Justice, sitting with a jury, dated December 6, 2019.

REASONS FOR DECISION

A.

overview

[1]

This is an appeal from a jury award of punitive damages. The respondent
    sued the appellant for injuries he suffered in the workplace on December 12,
    2014.

[2]

After being challenged by a colleague, the respondent climbed a 14-foot-high
    chain hoist. As he descended, he caught the crotch of his pants on a hook near the
    bottom of the chain and another hook pierced his scrotum. That evening the
    respondent had surgery at the Brantford General Hospital, which involved a
    debridement of his scrotum and repair of lacerations to his penis and scrotum.
    The respondent testified the accident occurred while he was engaged in
    horseplay. The WSIB determined he was not entitled to benefits after deciding
    the accident did not take place in the course of his employment.

[3]

The jury assessed the respondents general damages in the amount of $75,000
    and his damages for lost wages at $9000. The jury found these amounts should be
    reduced by 75 percent for the respondents contributory negligence in causing
    his injuries. This reduced the amount of general damages to $18,750 and the
    wage loss to $2,250. The jury also assessed punitive damages against the
    employer in the amount of $150,000. The jury was not asked and did not provide
    any indication of the basis for its award of punitive damages. The jury did,
    however, provide a brief explanation of the appellants role in causing or
    contributing to the respondents injuries. It said, The [appellant] demonstrated
    a serious lack of proper safety training, documentation, as well as creating a
    culture within the company whereby employees failed to place adequate
    importance on best safety practices.

[4]

At trial the respondent testified that the appellant provided him with
    no safety training, no WHMIS training, and assigned him to drive a forklift
    without proper certification. The respondent also testified that throughout his
    employment the appellant failed to properly train him for the dangerous tasks
    he was required to perform. Further, the respondent said on the day of the
    accident there was no supervisor on the floor. He claimed he had not been
    trained to operate the chain hoist, so he did not know climbing it was
    dangerous.

[5]

The appellants witnesses contested the respondents evidence that he did
    not receive safety training and testified he was not trained on the chain hoist
    because he was not authorized to use it.

[6]

The evidence most pertinent to punitive damages relates to what occurred
    in the one-hour period between the time of the accident and the respondents
    arrival at the hospital. In his instructions to the jury on punitive damages, the
    trial judge highlighted only the evidence of this period.

[7]

After the accident, the respondent said he screamed in pain and asked
    that an ambulance be called. When a supervisor, Gary, came into the shop, the
    respondent said Gary laughed at him. When he tried to show Gary his injury, the
    respondent claimed Gary refused to look at it. According to the respondent,
    Gary refused to call him an ambulance and instead drove the respondent to the second
    shop location to talk with Doug, the service manager and the respondents direct
    supervisor. Doug first said they would arrange someone to drive the respondent
    home to Simcoe and they would get his car home for him. The respondent refused
    to be taken to Simcoe after calling his father who told him to insist they take
    him to a hospital. Before departing for the Brantford hospital, the respondent
    claimed that Doug told him to say, this happened at home. The respondent testified
    that on the way to the hospital Gary also told him to say the injury happened
    at home. When they arrived at the hospital, Gary dropped the respondent at the
    entrance and did not accompany him inside. The respondent denied that Gary had
    offered to take him into the hospital.

[8]

Gary and other witnesses for the appellant offered a different version
    of events. Gary admitted he laughed when he first saw the respondent stuck on
    the chain lift because he thought he had just hooked his jeans. Gary denied the
    respondent asked for an ambulance and said there was no reason to call an
    ambulance based on the respondents demeanour. Gary said he asked to see the
    injury but did not insist when the respondent refused to show him. Gary and Doug
    both denied telling the respondent to say the injury occurred at home. Doug
    testified he asked an employee to drive the respondent home before he had
    talked to the respondent. After learning the respondent wanted to go to the
    hospital the only discussion was whether they would take him to Cambridge or
    Brantford. They decided Gary would take the respondent to Brantford General
    Hospital. Gary said the respondent told him not to come inside the hospital
    with him because his father was on his way.

B.

Issues

[9]

The appellant submits that the punitive damages award should be set
    aside because a) punitive damages should not have been left with the jury, b) the
    trial judge erred in his instructions on punitive damages and should have
    provided a range for the quantum of punitive damages, and c) the employer
    should not be liable for punitive damages for the conduct of its employees.

[10]

Alternatively,
    the appellant submits that the punitive damages award should be reduced because
    a) the quantum is plainly unreasonable and unjust, and b) any punitive damages
    award should be reduced by the respondents contributory negligence.

C.

Analysis

(a)

The issue of punitive damages was properly left with the jury

[11]

The
    trial judge properly told the jury they could award punitive damages if the
    wrongful acts of the [appellant] toward [the respondent] were outrageous or
    reprehensible and offensive to ordinary standards of decent conduct in the
    community. He told them: 1) that an award of punitive damages was very much
    the exception; 2) that such damages should be awarded 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)
    that the purpose of punitive damages is to deter similar misconduct in the
    future rather than provide compensation to the plaintiff; and 4) that punitive
    damages are generally given only when misconduct would otherwise be unpunished
    or when other penalties suffered by the defendant are unlikely to adequately
    achieve the objectives of retribution, deterrence, and denunciation, which are
    normally the preserve of the criminal law. He also told the jury that punitive
    damages should only be awarded in an amount that was no greater than necessary
    to rationally accomplish their purpose. The trial judge identified aspects of
    the defendants conduct that were relevant to the claim for punitive damages,
    as well as the evidence of the defendants witnesses denying or explaining that
    conduct. The trial judge referred to the factors relevant to the determination
    of a proportionate amount of punitive damages.

[12]

There
    was sufficient evidence that a properly instructed jury, acting reasonably,
    could have awarded punitive damages. The supervisors instructions to an
    injured employee to falsely report that he was injured at home, without more,
    warranted an award of punitive damages. The jury could properly regard these instructions
    as misconduct offensive to ordinary standards of decent conduct expected of an
    employer and could be properly described as highly reprehensible. Such
    instructions contravene s. 22.1 of the
Workplace Safety and Insurance Act
,
    1997, S.O. 1997, c. 16, Sched. A. (WSIA), and constitute an offence under s.
    155.1 of WSIA. Had the appellant been prosecuted and a penalty imposed under s.
    158(1) of WSIA the need for punitive damages would have been lessened: see
Whiten
    v. Pilot Insurance Co
.
, 2002 SCC 18, [2002] 1 S.C.R. 595, at para.
    123.

(b)

There was no error in the trial judges instructions on punitive damages

[13]

The
    appellant recognizes that the trial judge cited the boilerplate punitive
    damages elements listed in
Whiten
, but submits he failed to give the
    jury guidance on how to apply those elements to the facts of this case. We
    disagree.

[14]

The
    trial judges instructions, summarized above, adequately equipped the jury to
    assess the appellants conduct. The appellants reliance on
Ferme Gérald
    Laplante & Fils Ltée v. Grenville Patron Mutual Fire Insurance Co
.
(2002), 61 O.R. (3d) 481, leave to appeal refused, [2002] S.C.C.A. No. 488, a
    breach of contract case, is misplaced as no independent actionable wrong was
    required in this tort case:
Whiten
, at para. 149,
per
LeBel
    J. (dissenting, but not on this point).

[15]

The
    appellant also submits that the trial judge erred by failing to provide any
    guidance on what an appropriate range for punitive damages would be. The
    appellant argues the failure to provide such guidance invites disproportionate
    awards.

[16]

Absent
    the agreement of counsel on a range for punitive damages, it would have been
    improper for the trial judge to suggest one to the jury. We note that the
    appellants trial counsel did not ask for the jury to be given guidance on a
    range of punitive damages, nor did he provide one to the jury himself in
    closing submissions, despite confirming with the trial judge that he would be
    permitted to do so. We do agree it would have been preferable for the trial
    judge to have asked the jury to briefly indicate the basis for their award of
    punitive damages as he had asked them to indicate the basis for their award of
    general damages.

(c)

The appellant is liable for punitive damages resulting from the conduct
    of its employees

[17]

The
    appellant advanced the proposition that an award of punitive damages had to be
    based on its own conduct and could not be based on the conduct of its employees
    (in this case the supervisors Gary and Doug). The appellant relied on this
    courts decision in
Boucher v. Wal-Mart Canada Corp
.
, 2014 ONCA
    419, 120 O.R. (3d) 481, where Laskin J.A. distinguished between reprehensible
    conduct specifically referable to the employer and the conduct of its
    supervisor: at para. 82. The employer and the supervisor were both defendants in
Boucher
and the damage awards against each were discussed separately. The
    problem in that case was that the trial judge invited the jury to base its
    award of punitive damages against Wal-Mart on its
vicarious
liability
    for an independent actionable wrong that was committed by its employee  the
    intentional infliction of mental suffering (and in respect of which the
    employee defendant was found liable for $100,000 in damages). Laskin J.A.
    commented that this wrong was never tied by the trial judge to Wal-Marts own
    conduct in failing to enforce its workplace policies. After considering that
    conduct, he concluded that Wal-Marts own conduct warranted an award of
    punitive damages, but he reduced the punitive damages awarded by the jury after
    considering the significant compensatory amounts awarded, including aggravated
    damages, and the fact that Wal-Mart was vicariously liable for the amounts
    awarded against its employee.

[18]

In
    the present case, by contrast, only the employer was named as a defendant. There
    was no obligation to find an independent actionable wrong, and the conduct of
    Gary and Doug occurred in the course of their employment as the respondents
    supervisors who had been left in charge of the workplace in the absence of the
    appellants owners. There was no question that the conduct of the supervisors
    was the conduct of their employer, the appellant. Moreover, the actions of Gary
    and Doug occurred within what the jury had determined was a culture within the
    company whereby employees failed to place adequate importance on best safety
    practices. Accordingly, we do not give effect to the argument that the award
    of punitive damages against the appellant was unwarranted because the focus was
    on the misconduct of its supervisory personnel.

(d)

The quantum of the award is not irrational and inordinately large

[19]

The
    appellant properly points out that a less deferential standard applies to
    appellate review of jury awards of punitive damages than to jury awards of
    general damages:
Rutman v. Rabinowitz
, 2018 ONCA 80, 420 D.L.R. (4th)
    310, at paras. 56-58. Appellate review of a jury award of punitive damages
    furthers the coherence of the administration of justice by ensuring that the
    award serves a rational purpose. However, in order to interfere with a jury punitive
    damages award, the reviewing court must regard the award, when added to the
    compensatory damages, to be so inordinately large that it exceeds what is
    rationally required to punish the defendant:
Rutman
, at para. 58;
Whiten
,
    at paras. 109, 128.

[20]

In
    this case, we are not persuaded the jurys award of punitive damages is so inordinately
    large that it exceeds what is rationally required to punish the appellant. As
    noted, the evidence was that the appellant had not been penalized in another
    forum for instructing the respondent to falsely report the accident happened at
    home. The jury could properly regard this conduct as sufficiently illegal and
    reprehensible to warrant an award of this magnitude to deter similar misconduct
    in the future.

[21]

This
    is one of those exceptional cases in which the relationship between the punitive
    damages award and the general damages award is weak. In this case, the trial
    judges instructions premised the punitive damages award on the appellants
    conduct after the accident and not on its negligence which contributed to the
    accident. In that sense, the punitive and general damage awards had separate
    bases. The focus of the award of punitive damages was on the appellants
    misconduct in the context of the surrounding circumstances, and not on the circumstances
    leading to the respondents injury. This is however entirely proper. Punitive
    damages are awarded to sanction a defendants misconduct, and not to compensate
    a plaintiff: see
Whiten
, at paras. 94, 127.

(e)

The punitive damages award should not be reduced by contributory
    negligence

[22]

In
    awarding punitive damages, the jury was instructed to consider the supervisors
    conduct after the accident. The respondents contributory negligence leading to
    the accident was properly not part of the determination of whether punitive
    damages were warranted. There is no basis for reducing the punitive damages
    award based on contributory negligence.

D.

Conclusion

[23]

The
    appeal is dismissed. The parties have agreed on costs.

R.G. Juriansz J.A.

K. van Rensburg J.A.

L. Sossin J.A.


