Damage Awards Available in Small Claims Court

Written by

Courts have identified six types of damages that a wronged party can claim as compensation for loss or injury. Which types might Small Claims actually award a successful plaintiff? Here is a breakdown.

General damages

Also known as "non-pecuniary" damages, general damages compensate for non-monetary losses suffered by a plaintiff. While it's not really possible to quantify damages for, for example, pain and suffering or disfigurement, precedents have been established.

General damages were considered in Wesley v Jakubec (2017 ON SCSM 55420), heard at Chatham-Kent. The plaintiff, Jeffrey Wesley, was an elected member of the Chatham-Kent Municipal Council. The defendant, Kevin Jakubec, was a spokesperson for the advocacy group Water Wells First. Mr. Jakubec had publicly defamed the councilman by awarding him a "Shame Award" for "misleading the public." He had not defended the action, so it was only necessary for the Mr. Wesley to prove the damages the defamatory acts had caused. 

Deputy Judge Glenn C. Walker referred to the law of damages in defamation actions cited in MacRae v Santa (2006 ON SC 32920) and found that damages were proven.

From the decision:

The Plaintiff claims an injunction requiring the Defendant to retract his false and defamatory statements in their entirety.  This Court has no jurisdiction to provide this equitable remedy.

The Plaintiff also requests general damages in the amount of $25,000.00 and aggravated, exemplary and punitive damages in the amount of $5,000.00.  In paragraph 1(d) of the Claim the Plaintiff waives his entitlement to any amount in excess of the jurisdiction of the Small Claims Court. I assess compensatory damages for defamation in the amount of $25,000.00. While I do not in any way condone the Defendant’s conduct, I do not think that aggravated, exemplary or punitive damages are in order.

General damages were awarded, but no other.

Nominal damages

Nominal damages are token damages awarded by the court to redress a violation of a legal right that the law deems necessary to protect even in the absence of actual harm. These damages are often found in libel and slander cases, though not in the case cited previously. The general view is that nominal damages are awarded only when there is no actual loss.

Nominal damages are rarely found in Small Claims cases. In De Fresne v H.O.P.E. Systems Inc. (2016 ON SCSM 63649), the defendant corporation sold a Volvo truck which the plaintiff, having been making monthly payments for nearly two years, had an ownership interest in. The plaintiff sought, in addition to other compensatory damages, compensation for what he described as his shortfall on the sale. The plaintiff failed to prove to the court that he wouldactually  have gone to the trouble of making the repairs necessary for the truck to fetch a better price. But because the defendant was liable for conversion (which is a strict liability tort), the court awarded "nominal" damages of $100.

Compensatory damages

Compensatory damages are damages for the actual loss sustained by a plaintiff. They are meant to place the plaintiff in the position that they would have been in had the wrong not occurred. In the previously cited case, the plaintiff was awarded compensatory damages because the defendant had kept more than it should have from the proceeds of the sale of the truck.

Special damages

Special damages are damages that compensate a plaintiff for a quantifiable monetary loss, for example, medical expenses or cost of repairs. These are the damages most often sought at court. If you are dismissed without notice, then your lost income and benefits represent special damages.

Aggravated damages

Aggravated damages are damages to compensate a plaintiff for suffering intangible damages such as humiliation and distress as a result of the defendant’s actions.

This type of award is relatively rare. The burden is on the plaintiff to show that the defendant's conduct was outrageous. In Gordner v 2384898 Ontario Limited (2017 ON SCSM 9631), surely one of the best Small Claims decisions yet to be published, the court found that the defendant, which owned a night club in Windsor, had indeed acted outrageously. The club had a powerful sound system and did not care to install adequate soundproofing. Every weekend, the glasses of the residents of a neighbouring condo would vibrate to the bass. Deputy Judge Simon R. R. Davies cited McIntyre v Grigg (2006 ONCA 37326) in calculating aggravated damages:

Aggravated damages are not awarded in addition to general damages, but the general damages are to be assessed "taking into account any aggravating features of the case and to that extent increasing the amount awarded".

Davies awarded $10,000 in aggravated damages.

Punitive damages

Punitive damages punish a defendant for, in the words of the Supreme Court, misconduct "a marked degree from ordinary standards of decent behaviour". Even this is not enough, however. It is necessary but not sufficient. And while aggrieved plaintiffs often seek punitive damages, they are not often awarded. When they are awarded, they must be proportionate. In Frazier v Brookfield Integrated Global Solutions (2017 ON SCSM 55419), the court found that $7,000 was an appropriate award for the defendant's conduct in its arbitrary and summary dismissal of an employee.

A paralegal can assist you with your claim. Get in touch.