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Fridays with Rogers Partners

At our weekly meeting,  Athina Ionita discussed the Court of Appeal’s recent decision in Eynon v. Simplicity Air Ltd., 2021 ONCA 409. This was an interesting appeal from a jury award of punitive damages. The Court of Appeal upheld a $150,000 punitive damage award against the appellant, relating to injuries the respondent suffered in the workplace.


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 seriously injured his groin.

The respondent testified at trial that the accident occurred while he was engaged in “horseplay”. The WSIB denied benefits after deciding the accident did not take place in the course of his employment.

The jury assessed the respondent’s general damages at $75,000 and his damages for lost wages at $9,000, and reduced the amounts by 75 percent for the respondent’s contributory negligence. The jury also assessed punitive damages against the employer in the amount of $150,000.

The jury provided a brief explanation of the appellant’s role in causing or contributing to the respondent’s injuries:

“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.”

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. 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.

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. Gary apparently refused to look at the injury and refused to call him an ambulance, instead driving the respondent to the second shop location to talk with Doug, the respondent’s direct supervisor.

After some resistance, Doug and Gary took the respondent to the Brantford hospital. Before departing for the hospital, the respondent claimed that Doug and Gary pressured him to say the injury happened at home.

Gary and other witnesses for the appellant offered a different version of the events, denying much of the respondent’s version.


The Court of Appeal addressed each of the issues on appeal, ultimately upholding the jury award for punitive damages.

The issue of punitive damages was properly left with the jury

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.” Further, he properly instructed the jury that an award of punitive damages was very much the exception.

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 interpret these instructions as misconduct contrary to standards of decent conduct expected of an employer, and could be described as highly reprehensible. Such instructions contravene the Workplace Safety and Insurance Act, and constitute an offence under the Act.

There was no error in the trial judge’s instructions on punitive damages

The appellant also submitted that the trial judge erred by failing to provide any guidance on what an appropriate range for punitive damages would be. The Court of Appeal disagreed again, stating that 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.

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

The appellant argued 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. The court disagreed. The conduct of Gary and Doug occurred in the course of their employment as the respondent’s supervisors, who were in charge of the workplace in the absence of the appellant’s owners.

There was no question that in the circumstances, the conduct of the supervisors was the conduct of their employer, the appellant. Moreover, the jury determined that the actions of Gary and Doug occurred in “a culture within the company whereby employees failed to place adequate importance on best safety practices”.

The quantum of the award is not irrational and inordinately large

In order to interfere with a jury punitive damages award, the award, when added to the compensatory damages, must be so “inordinately large” that it exceeds what is rationally required to punish the defendant.

The court held that this was not the case here. 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.

The court noted that this is one of those exceptional cases in which the relationship between the punitive damages award and the general damages award is weak.

The punitive damages award should not be reduced by contributory negligence

In awarding punitive damages, the jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted.


The appeal was dismissed, and the punitive damages award was upheld.