ABSTRACT
This article highlights a recent trend towards claimants seeking, and courts awarding, punitive damages in contract cases predicated on a breach of contract in conjunction with an ‘independent actionable wrong’ – a requirement since the Supreme Court’s decision in Whiten v Pilot Insurance – in the form of a breach of the duty of honest performance (DHP) or the duty to exercise contractual discretion in good faith (DCDGF). The article considers when and whether a claim for breach of DHP or DCDGF should in fact be actionable, and thus when such a claim should be said to satisfy the independent actionable wrong requirement for an award of punitive damages in contract. The article also highlights how such claims for punitive damages may allow plaintiffs’ counsel in the class action context to circumvent individual issues of loss that may otherwise overwhelm the commonality of putative common questions and thereby provide a more accessible path to certification.
Krish Maharaj, When Should Breach of Good Faith Beget Punitive Damages? (2026) 49:1 Dalhousie Law Journal.
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