Author: Ryan Alkenbrack

In my previous blog, I discussed tort law and two new categories of torts that the courts in Ontario recently recognized (internet harassment & family violence). In this blog, I will focus on damages in personal injury actions.

As a quick reminder, tort law, in general, involves an act or omission that causes injury or harm to another person. For a plaintiff to be successful in their tort action against a defendant, they must prove two main components of their case:

1) Liability – the injured party must show that the defendant owed them a duty of care, and that they breached the standard of care, causing them harm or injury; and

2) Damages – the injured party must prove that they suffered damages, and must show the extent of those damages.

In order to prove their “damages”, an injured party must show the court how they were impacted by the injury and what compensation they should receive. The courts, when dealing with personal injury cases, attempt to put the injured party back into the position they would have been in if they had not been injured by the defendant. If the plaintiff is successful in proving their case, the court will order the defendant to pay monetary compensation to the injured person.

There are two broad categories of damages (compensation), which include:

1. Pecuniary damages: these are damages that are quantifiable such as a loss of income, loss of future earnings, housekeeping costs, treatment costs and out of pocket expenses; and

2. Non-pecuniary/ General damages: (“pain and suffering damages”), which aim to compensate the injured party for the pain and suffering they experience as a result of their injuries. 1. Pecuniary damages: these are damages that are quantifiable such as a loss of income, loss of future earnings, housekeeping costs, treatment costs and out of pocket expenses; and

In certain cases, pain and suffering damages can make up the bulk of an award for an injured plaintiff. For example, imagine the case of an individual who suffers extreme chronic pain, or serious objective injuries, but does not have a loss of income. Their treatment costs may be covered by private health insurance and therefore, with no loss of income, general damages (pain and suffering) would make up almost their entire claim.

Pain and Suffering Limit in Canada

A series of cases from 1978 at the Supreme Court of Canada led to the establishment of an upper limit for non-pecuniary (pain and suffering) damages in Canada. The case, Andrews v Grand & Toy Alberta Ltd., involved a 23 year-old man who was the victim of a serious motor vehicle collision that rendered him quadriplegic. The court accepted that the plaintiff would have a life expectancy of a further 45 years. In its decision, the court wrote the following:

“Andrews used to be a healthy young man, athletically active and socially congenial. Now he is a cripple, deprived of many of life’s pleasures and subjected to pain and disability…

I would adopt as the appropriate reward in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.”

Since Andrews was decided in 1978, the cap on pain and suffering damages in Canada has slowly risen with inflation, and now sits at roughly $400,000 as of 2022.

The cap on non-pecuniary damages places a significant limit on the amount of compensation that injured plaintiffs can receive for their pain and suffering. Unfortunately, the cap does not only affect those who suffer the most serious injuries. Every personal injury case is subject to the range of general damages of $0 to $400,000.

Even in the case of a plaintiff who has suffered a significant injury, it is not uncommon to see a court award less than $138,000 for pain and suffering damages (1/3 the cap). A very significant number of cases in Ontario fall into this category.

This number is important for people who are injured in motor vehicle collisions. Even if the plaintiff is successful with their case, when a judge or jury awards anything less than $138,343.86 for pain and suffering, that amount is then subject to a $41,503.50 deductible. We have written about this issue in past blogs.

What this means is that when a person suffers significant injuries in a motor vehicle collision in Ontario, and is successful with their case against the defendant, if the court awards $133,000, the injured plaintiff only receives around $92,000. In jury cases, the jury does not get to hear about this deductible before they assess a plaintiff’s damages.

Comparison with the United States

In the US, only a handful of states have imposed caps on pain and suffering damages. Here is a comparison of the states that have caps on non-pecuniary damages in personal injury cases (in USD):

• • Alaska - $400,000.00 ($8,000/year for life expectancy). $1,000,000.00 for severe injury or disfigurement (or $25,000/year for life expectancy)
• • Colorado - $613,760 (increases with inflation).
• • Hawaii - $375,000.
• • Idaho - $386,000.
• • Maryland - $905,000 (in injury cases).
• • Mississippi - $1,000,000.
• • Ohio - $250,000 or three times their economic damages (maximum $350,000 per person). The cap does not apply if victim suffered a permanent physical injury that prevents them from caring for themselves, OR a permanent substantial physical deformity.
• • Tennessee - $750,000 - $1,000,000 (in catastrophic cases).
• • Kansas ($325,000), Oklahoma ($350,000) and Oregon ($500,000) each had caps on general damages for personal injury actions. Each of the states’ Supreme Courts found these caps were unconstitutional and struck them down in 2019 and 2020.

*The above figures are estimates and may not be fully accurate or up to date.

The above caps on general damages (as well as Canada’s) are in drastic contrast to places like the state of New York. The New York appellate court, at the end of 2021, upheld a lower court award of $29,000,000 for the pain and suffering experienced by a high school student who suffered severe burns in his class’ chemistry experiment demonstration (Yanes v City of New York, 2021 NY Slip Op 06468).