Ontario Court of Appeal awards punitive damages in drunk driving case

For the first known time, the Ontario Court of Appeal has awarded punitive damages in a drunk driving case that resulted in serious injury. The decision, the court’s dissenting opinion suggests, means insurers will be on the hook for paying out rare punitive damage awards in similar drunk driving cases.

In Andrea McIntyre et al. v. Thomas Grigg et al., the Court of Appeal for Ontario awarded $20,000 in punitive damages against Grigg, a Hamilton Tiger-Cat football player at the time, who left a McMaster University pub in 1996 having consumed two or three times the legal limit of alcohol.

Grigg drove away from the pub, but doubled back when his passenger discovered she had left her purse behind. On his way back, he failed to stop at a sign, veered wide right, sheared off a lamppost and struck Andrea McIntyre, causing serious injury.

Grigg eventually pleaded guilty to a reckless driving charge and received a fine of $500. (Charges of impaired driving were dropped because Grigg was not informed of his rights at the time of the breathalyzer test.)

The lower court awarded punitive damages of $200,000.

Punitive damages are only awarded when the court believes actions are extreme and merit further penalty – i.e. they are “malicious, high-handed or oppressive.”

Used commonly as a deterrent against extremely irresponsible behavior, punitive damages have never been awarded in a drunk driving case before, according to the lawyers involved in the case.

The Court of Appeal believed they were applicable in the Griggs case, although the appellate court lowered the amount from $200,000 to $20,000.

In a dissenting opinion, Court of Appeal Justice Robert Blair said the insurers – and by extension policyholders – would be the real victims of punitive damages awards in drunk driving cases. He noted nothing in insurers’ standard policies precludes them from paying out punitive damage awards.

“If insurers are to become exposed to an increasing risk of indemnifying for punitive damage awards, they will naturally be required to increase their reserves for losses accordingly,” Blair wrote. “Even if coverage for punitive damages becomes optional, insurance premiums across the board will inevitably rise.

“In that sense, then, all automobile-owning members of society will effectively be ‘punished’ for the conduct of Mr. Grigg and comparable drivers.”