PHOTO: STEVE RUSSELL / TORONTO STAR FILE PHOTO
On Friday night after a long-delayed five-week trial, a jury awarded Baker $1.5 million in punitive damages by Blue Cross Life Insurance Company of Canada — what her lawyers say is the highest known amount an individual has been given in Canada, exceeding the high water mark of $1 million set by the Supreme Court of Canada in 2002.
“It is an important award and a repudiation of insurance company tactics towards Sara and it will hopefully serve as a deterrent to other insurance companies,” said her lawyer Stephen Birman of law firm Thomson Rogers in a press release. “It’s David and Goliath when you take on an insurance company. Sara’s resolve will hopefully help others in the future.”
The jury also reinstated Baker’s benefits and awarded her $40,000 in aggravated damages for her mental distress.
“When a jury has the opportunity to make a decision on these issues, you really hear from the community in terms of what they think of the conduct of a corporation or insurance company,” said Howard Blitstein, a personal injury lawyer at Howie, Sacks and Henry, who was not involved in the case.
Blitstein said that the punitive damages are rarely awarded, and while juries do not give reasons for their decisions, the amount chosen would be specifically intended to punish the insurance company for its failure to pay Baker’s benefits despite her paying premiums for years, and for taking a high-handed approach to her case.
“The trial was scheduled three times,” Baker said in the press release. “The first time it was delayed because the insurance company insisted on a jury, which could not happen during the pandemic early on.
“I would not wish the distress this has caused me on anyone. I just hope it will lead to insurance companies listening more closely and being more careful when others tell them they need help.”
Blitstein noted that $1 million in 2002 would be basically equivalent to $1.5 million today, given inflation, which places the amount within the realm of an expected amount.
It is striking that it was the insurance company who wanted a jury trial, with the plaintiff losing a motion to have the trial proceed judge-alone when jury trials were still suspended in early 2021 due to the pandemic, said Joseph Campisi, a personal injury lawyer who teaches insurance law at Osgoode Hall law school, who was also not involved in the case.
“For the most part juries are very conservative and they don’t tend to award a lot,” he said. “So it’s almost poetic that it backfired on them.”
Campisi said he does not know the detailed facts of the case but if there is an appeal, the amount of the award could be upheld if the facts support it, he said.
As debate continues over whether to allow civil jury trials in Ontario, both Blitstein and Campisi said this is the kind of civil case that can benefit from a jury trial, where the community view of a company’s conduct can send a message. There are, however, many others that lack that public interest component and are best suited to a judge-alone trial, Blitstein said.