The Plaintiff in the underlying Action, Douglas Day (“Mr. Day”), was arrested by members of the Edmonton Police Service (“EPS”). Mr. Day sustained injuries during his arrest and subsequently sued the Defendant officers for the tort of battery. Justice Renke dismissed the Plaintiff’s Action as against all of the Defendants as they had established that the use of force in arresting Mr. Day was justified under section 25(1) of the Criminal Code.

In obiter Justice Renke addressed the issue as to whether it was appropriate to award punitive damages in an instance where punitive damages were initially sought. Justice Renke referenced Rule 1.3(2) which provides that “[a] remedy may be granted by the Court whether or not it is claimed or sought in an action” but emphasized that this Rule is discretionary. After reviewing the relevant jurisprudence, Renke J. found that, generally, relief sought should be pled, particularly when that relief is punitive damages as punitive damages is an extraordinary remedy that should be pled with particularity.

Notwithstanding the foregoing, Justice Renke found that even if the Defendants had been found to have used excessive force (which was not the case), and even if His Lordship were inclined to grant the remedy of punitive damages although it had not been pled, His Lordship would still not have awarded punitive damages on the facts of the case.