Case: Hornstein v. Kats, 2021 ONCA 293

Keywords: punitive damages; independent actionable wrong; Whiten v Pilot Insurance Co., 2002 SCC 18


Following an 18-day trial, the Trial Judge determines the Parties did not create a partnership for the purpose of buying a residential property. In particular, the Trial Judge determines the Appellant “had not contributed any monies to the purchase or maintenance of the property and had no beneficial interest in the property she alleged was owned by the partnership.” (See para. 1). The Trial Judge also awards $35,000 in punitive damages, citing the Appellant’s “egregious, unreasonable, and malicious” actions. (See para. 5).

The Court of Appeal dismisses the Appellant’s appeal against this decision, noting the Trial Judge’s findings are entitled to deference and that there is no error “requiring this court’s intervention”. (See para. 3). Notwithstanding this conclusion, the Court of Appeal allows the Appellant’s appeal against the Trial Judge’s award of punitive damages. (See para. 7).


As per the Supreme Court of Canada’s decision in Whiten v Pilot Insurance Co., 2002 SCC 18, the Court of Appeal affirmed the notion that “there is no basis for an award of punitive damages in the absence of an independent actionable wrong”. (See para. 6). Despite the Trial Judge’s findings regarding the Appellant’s conduct herein, for the Court of Appeal an award of punitive damages does not necessarily follow from misconduct on the part of the Appellant – there is always the further requirement for litigants and/or trial judges to identify “an independent actionable wrong”. (See para. 6).

In this case, as the Trial Judge did not find a claim for slander of title or a claim for damages in breach of s. 132 of the Land Titles Act, R.S.O. 1990, c. L.5, the Court of Appeal determined there could be no award of punitive damages against the Appellant. (See para. 5).

That being said, while the Court of Appeal awarded costs to the Respondent in the amount of $15,000 (all inclusive), the Court stopped short of awarding any costs to the Appellant. (See para. 9).

Counsel for the Appellant: Stephen Dyment (Dyment Law, Thornhill)

Counsel for the Respondent: Mark Ross and Sharon Sam (Ross Nasseri LLP, Toronto)

Rachel Higgins: in person

Discuss on CanLii Connects