Two appeals were consolidated in this decision in a trade-mark infringement action. The First Order struck reference to aggravated and punitive damages from the Statement of Claim, and the Second Order dismissed Bauer’s motion to amend the Statement of Claim to add again aggravated and punitive damages.
The Court of Appeal first considered the standard of review on appeal, concluding that the decision relating to striking or amending a pleading is discretionary and the Court of Appeal will not interfere in the absence of an error of law, a misapprehension of the facts, a failure to give appropriate weight to all relevant factors or an obvious injustice. The Court then distinguished between punitive damages, which are intended to punish the defendant, and aggravated damages, which are still compensatory in nature.
The Court of Appeal dismissed the appeal with respect to the First Order, but granted the appeal with respect to the Second Order, allowing an amendment to add punitive damages, but not aggravated damages. The Court of Appeal found that punitive damages are not limited to litigation misconduct, as was found by the Court.