Trigger Warning: this post contains discussion of a case involving sexual abuse committed against a minor. The content may be disturbing or triggering for some readers, and we recommend proceeding with caution accordingly.
Is it paradoxical for an Estate to pay punitive damages? Consider, how can you punish someone who is already dead?
This idea was recently discussed in Evans v. The Catholic Children’s Aid Society of Toronto et al., 2025 ONSC 5652, (“Evans”). Here, a jury awarded general and punitive damages against a deceased defendant found to have sexually abused the plaintiff when she was a minor. Specifically, the jury awarded the plaintiff $1,000,000.00 in punitive damages payable by the Estate of the late perpetrator, an amount significantly higher than originally claimed for punitive damages. In a post-verdict motion, the Estate asked the Court to set aside the punitive damages award or have it reduced to the amount originally requested by the plaintiff. The Estate relied on P.M. v. Evangelista, 2015 ONSC 1419 (“Evangelista”), where the Court declined to award punitive damages to a plaintiff on the reasoning that “[the defendant’s] death negated the main purpose” of such damages (para. 51).
The Court in Evans declined to apply the reasoning of Evangelista. They instead looked to the description of punitive damages set out by the Supreme Court of Canada in Whiten v. Pilot Insurance Co., 2002 SCC 18 (“Whiten”). In Whiten, the Supreme Court stated that punitive damages are not a form of compensation, but are meant to act as retribution, deterrence, and denunciation of wrongful acts (para. 94). Applying Whiten, the Court in Evans determined that even if retribution was not applicable because the defendant had died, the impacts on deterrence and denunciation were unaffected (para. 24) The Court emphasized that punitive damages are fundamentally based on the severity of the wrongdoer’s conduct, and that the defendant’s egregious conduct warranted a strong reaction from the Court for the sake of deterrence and denunciation (para. 25).
The Court further rejected the Estate’s argument that punitive damages punished the heirs of the Estate, stating that “the award does not punish the heirs. It compensates a victim of the deceased. The heirs are only entitled to the residue of the (Estate) which is now indebted to the plaintiff” (para. 35).
Although this reasoning might appear to conflict with the Supreme Courts statement in Whiten that punitive damages are not compensatory, the decision, when read as a whole, potentially paints a different picture. Ultimately, the fact that the defendant was deceased was treated by the Court in Evans as inconsequential. In some respects, this approach contrasts with other areas of estates law, where Courts often consider the impact on a beneficiary’s interest when assessing potential awards, even without formal submissions. Instead, Evans reminds us of the broader principle that obligations crystalized before death always take precedence over a beneficiary’s interest.
The decision in Evans, including the punitive damages award against the Estate, is currently under appeal. It will be interesting to monitor how the appellate court addresses these issues and whether their decision affirms or reshapes the availability of punitive damages orders against estates.
Thank you for reading!