Our democracy depends on the rule of law. Too many rules, some of them referred to as red tape, can halt society and keep it from being free, competitive and innovative. Not enough rules and we descend into chaos, each citizen out for themselves. The global pandemic is an example of a situation where the lack of established rules resulted in polarity and chaos, as we do NOT all think alike – surprise, surprise. Everything needs balance, thus the symbolic scales of justice held by Lady Justice.
Even with laws, the financial cost of pursuing civil remedies (“justice for the masses” versus “justice for the few”) is one of the leading barriers to accessing justice. The cost can encourage people to try to avoid trials and settle out of court, freeing up the system for other matters. Flip-side – the cost can prevent meritorious claims from being advanced and encourage less meritorious citizens and corporations to defy the rules. Fortunately, there are actions and remedies that attempt to alleviate that cost to the plaintiff and discourage the more powerful defendant from taking advantage of their positions in relation to others less powerful.
Sometimes those remedies can be case specific, such as claims for punitive damages. These damages exceed the actual financial losses suffered by a particular plaintiff and are meant to punish the defendant, including to discourage future behaviour. And, knowing these claims exist, can also discourage egregious behaviour in the first place. In 2022, the largest known punitive damages award in Canadian history was made ($1.5 million) by a Toronto jury as against an insurance company. A woman disabled by a stroke and brain bleed had her long-term disability benefits improperly denied for over 6 years. Trying to pursue a claim, while you cannot work and are not getting benefits, which you paid for, is no small hurdle. Punitive damages are not intended for honest mistakes but for high-handed and arrogant conduct.
Another remedy is in the form of a claim for aggravated damages. Rather than penalize a defendant for their actions, these damages are specific to the impact on a plaintiff and focus on the mental suffering caused to the plaintiff by the defendant’s breach, and not just on the actual financial losses to the plaintiff. For instance, if you fire an employee and wrongfully accuse them of being a thief, and they end up in therapy, aggravated damages may well be awarded. Both aggravated and punitive damages may be awarded in the same case.
Then there is the power of the masses as reflected in class actions (also known as representative actions). This is where similarly situated plaintiffs can share the expenses of pursuing a defendant by suing in one action. There must be enough similarities in the issues to warrant being a class. I recall receiving cheques in the mail in the past for wrongs committed by a financial institution and an insurance company. I was a beneficiary without even knowing there was a wrong. The amounts certainly were not worth suing for individually, even if I had known. Glad someone is paying attention out there. One of my early cases involving group action was in relation to the forced sterilizations conducted right here in Alberta. Challenging the powers that be for what happened to you as a child is no small feat.
In celebration of St. Patrick’s Day, and I think I can safely say I am half Irish (adding up the relatives on both sides), I note that it was recently announced that the Irish government had approved drafting legislation based on an EU directive on representative actions for the protection of consumers. The writing is on the wall for any fraudulent green beer suppliers and imitation leprechauns.
Donna Purcell, K.C., (aka Lady Justice) is a Central Alberta lawyer and Chief Innovation Officer with Donna Purcell QC Law. If you have legal questions, contact [email protected].