Written By: David Lackman, Senior Counsel & Lawyer
Loss at some level follows any personal injury. It could be the loss of physical or mental abilities, the loss of income during a rehabilitation and recovery period, or even the loss of life. In a personal injury lawsuit, a victim will typically seek compensation for these losses by filing a claim in the Superior Court of Ontario for damages against a party whose negligence caused or contributed to the victim's injury. Sometimes calculating damages is relatively straightforward; however, in more complicated situations, calculating damages can involve considerable complexity. If a person is unable to work, a claim will seek the amount of earnings lost. Medical expenses incurred beyond what is payable by the Ontario Health Insurance Plan and any private or employer-based plan, will usually be added to the claim. And, if a person suffers a severe disability that requires long-term care, experts can assist in calculating the cost of future care as well as the current value of potential future income losses that are anticipated. All of these losses are considered “pecuniary losses”. Other losses – known as “non-pecuniary” damages – must also be quantified. The damages that flow from such losses are typically referred to as “general damages for pain and suffering”, and “loss of amenities of life”. In more serious injury cases, or in fatality cases, family members might assert claims for their own losses arising from the victim’s injuries or death. These are known as “Family Law claims”. Measuring the value of pain and suffering, or the value of life to family members of a person who dies as a result of an accident, can be challenging. However, there are established principles in this regard, some of which are discussed below.
What are pain and suffering in the eyes of the law?
When a person sustains a personal injury, there is an actual permanent or temporary loss of mental, cognitive and/or physical ability. Pain and suffering refer to the physical and emotional or mental stress or anguish caused by this injury and any subsequent disability related to the injury. Although the Supreme Court of Canada has said that pain and suffering are analytically distinct from other non-pecuniary types of damages such as loss of amenities and loss of expectation of life, "they overlap and merge at the edges and in practice”. The Court reasoned: "To suffer pain is surely to lose an amenity of a happy life at that time. To lose years of one's expectation of life is to lose all amenities for the lost period, and to cause mental pain and suffering in the contemplation of this prospect."[1] Some examples of pain and suffering include physical pain and impairment, scarring and disfigurement, loss of quality and enjoyment of life, depression, anxiety, cognitive dysfunction, and loss of aspects of a relationship (e.g. companionship, guidance, care and spousal intimacy).
Why did the Supreme Court of Canada place limits on non-pecuniary damages?
In a landmark trilogy of cases in 1978, the Supreme Court of Canada set an upper limit on non-pecuniary damages for pain and suffering. The justices reasoned that since non-pecuniary losses are irreplaceable in a direct way, a monetary award provides a valuable function for providing reasonable solace (making life more durable) to a person for what has been lost in the only way possible. In other words, since monetary damages cannot actually “replace” the loss qualitatively, an upper limit must be imposed quantitatively. This contrasts with other conceptual approaches that have been considered in relation to the assessment of general damages. In one such approach, each human faculty is treated as a proprietary asset with an objective value. In another approach, the personal loss of human happiness by a particular victim is evaluated. Although the Court suggested that functional awards should be uniform, accessible and predictable, it did not mean that personal circumstances should not be factored into the award. For example, if an amateur pianist loses a finger in an accident, (s)he will feel a different sense of anguish than a person whose pursuits and interests do not require the use of a finger to such a nuanced degree. Mindful of the skyrocketing awards for personal injuries in the United States at the time (the 1970s), and observing a similar trend in Canada, the Supreme Court justices opted to stabilize these general damage awards by creating a $100,000 limit (or ‘ceiling’) for such damages, barring exceptional circumstances. They reasoned: "If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities." The $100,000 limit that was originally established by the Supreme Court of Canada in 1978 has since been adjusted each year for inflation, and currently stands, at least arguably, at over $400,000 for the most serious of impairments.[2]
Are awards for pain and suffering limited in other ways?
If a person's injury was sustained in a motor vehicle accident in Ontario, there are two other ways awards for pain and suffering are limited. The Insurance Act mandates that a person can only receive non-pecuniary (pain and suffering) damages if his or her losses meet certain thresholds as determined by a judge. To cross the threshold, the injury must result in death, permanent and serious disfigurement, or permanent and serious impairment of an important physical, mental, or psychological function. Short of catastrophic injuries, crossing this impairment threshold can present significant challenges. Even if a victim's motor vehicle accident injuries satisfy the threshold, the Insurance Act implements a statutory deduction for an award of non-pecuniary damages. For 2021 the deductible is set at $39,754.31 (and half that amount for non-fatal Family Law claims).[3] That deductible vanishes, however, if the level of non-pecuniary damages exceeds $132,513.28 (and half that amount for non-fatal Family Law claims).
How can I determine the extent of my pain and suffering?
As you come to terms with your personal injury, you will begin to see how your life has been affected by your accident. Sadly, often we don't know what we're missing until it's gone. When you have your case handled by one of our personal injury lawyers, we'll help you calculate your past and future pecuniary losses and help you assess your losses for pain and suffering. At Gluckstein Lawyers, we go well beyond simply building your case. And, in the most serious of cases, our team will connect you with resources to help manage your grief, identify support groups you may want to join to talk about what you are experiencing, and advocacy organizations that can suggest ways you can adapt to or overcome any new-found limitations. It's part of our commitment to full-circle care. To learn more about how our team can help you or a loved one after a personal injury, contact me at lackman@gluckstein.com.
[1]1978 CanLII 1 (SCC) | Andrews v. Grand & Toy Alberta Ltd. | CanLII