What is the test for determining entitlement to punitive damages in the employment law context?
Ontario, Canada
The following excerpt is from Lopez v. EMD Inc. (Canada), 2017 ONSC 7716 (CanLII):
The principles to be applied in determining entitlement to punitive damages in the employment law context were helpfully summarized in Dwyer v. Advanis, [2009] O.J. 1956 (Sup. Ct.) at para 48: 1. Generally, damages are not available for the actual loss of a job or for pain or distress suffered as a consequence of being terminated. 2. Damages resulting from the manner of dismissal will be available if the result from the circumstances described in Wallace where the employer engages in conduct during the course of dismissal, that is "unfair or is in bad faith by being, for example, untruthful, misleading or unduly restrictive". 3. These damages should be awarded through an award that reflects actual damages rather than by extending the notice period. 4. It is no longer required that such damages be independently actionable. 5. Punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own. Courts should only resort to punitive damages in exceptional cases.
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