No Damages, Nominal Damages, and Costs
The Ontario Court of Appeal heard the appeal in Pullano v. Hinder, 2022 ONCA 418 regarding an action for battery, and counter-claim in defamation.
The plaintiff, Mr. Pullano, was punched in the chest by the defendant, Mr. Hinder. Mr. Hinder’ s employer was also named in the action, and was alleged to be vicariously liable for the battery committed by Mr. Hinder.
The defendant counterclaimed against the plaintiff in defamation in relation to various social media posts made by the plaintiff.
At trial, a jury determined that the punch had occurred, but that the plaintiff had suffered no physical, emotional, or psychological injury and, consequently, awarded no damages. On the counterclaim, the jury awarded the defendant $50,000 in damages for defamation.
At trial, the plaintiff requested that the trial judge award nominal damages for battery notwithstanding the jury’s verdict, and to find that employer vicariously liable for those damages. The plaintiff argued that, as a matter of law, the punch was battery and he was therefore entitled to nominal damages. The trial judge refused the request, and awarded costs to the defendants.
On appeal, the plaintiff argued that the trial judge erred in misunderstanding the nature of battery, and in failing to award nominal damages as is required when battery is established.
The Court of Appeal rejected the plaintiff’s arguments and held that the trial judge was right to refuse to award nominal damages, as to do so would have usurped the function of the jury. Moreover, the Court of Appeal noted that, despite the parties having agreed on the jury questions, the jury was not asked to consider an award of nominal damages.
The Court of Appeal held that as nominal damaged were not appropriate under the circumstances, the question of vicarious liability was moot.
The plaintiff also appealed the costs award against him, arguing that he was successful in having established battery. The Court of Appeal rejected this ground of appeal, stating that the plaintiff sought damages, and none were awarded, and so there was no error in principle in the judge’s discretionary determination on costs.
There is Ontario Appellate authority in support of the proposition that nominal damages are available in breach of contract cases where a breach of contract has been established but damages from the breach have not. In these circumstances, nominal damages serve a symbolic rather than compensatory purpose and may also serve to vindicate a party’s rights.
Similarly, the tort of battery has been described as “actionable per se, without proof of damage” and, in these circumstances, the Court is at liberty to award nominal damages to vindicate the rights of the plaintiff.
However, the Court of Appeal has also held that an award of nominal damages does not turn an otherwise substantive failure into a success for the purposes of awarding costs.
 RINC Consulting Inc. (Roustan Capital ) v. Grant Thornton LLP, 2020 ONCA 182 at para 51 and 52.
 Northcott v. Johnston, 18 A.C.W.S. (2d) 238 (Sm Cls. Ct.).
 Ibid at para 55.