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Understand Damages for Pain and Suffering in a Personal Injury Case in Ontario
Types of Damages
When you suffer a personal injury in Ontario, you may be entitled to compensation. If you are successful at trial, the damage award is broken down into pecuniary and non-pecuniary losses. Pecuniary losses are those that can be measured in monetary value and are designed, in theory, to put the injured party back into the position they would have been in if they had not sustained the injury. There is no cap on compensation for pecuniary losses, however the amounts must be “legitimate and justifiable.” Pecuniary losses are to compensate for expenses related to cost of future care, loss of earning capacity and future income, and special damages for expenses and loss of earnings that were incurred before trial.
Non-pecuniary losses, or better known as damages for Pain and Suffering, on the other hand, compensate for damage suffered that cannot be calculated based on monetary value. Damage awards for non-pecuniary losses are intended to compensate for pain and suffering, loss of amenities and loss of expectation of life. This compensation cannot be reparative, as it is not possible to restore lost function. Rather, it attempts to provide the injured person with “reasonable solace for [their] misfortune.”
Cap on Damages
Unlike in the United States, where personal injury damage awards can be large, the Supreme Court of Canada (“SCC”) has capped the amount of non-pecuniary damages that can be awarded. In 1978, the SCC decided three cases where plaintiffs were catastrophically injured. In these cases, the Court acknowledged that damage awards must be determined based on individual circumstances of each case, but established an upper limit in order to bring consistency and stability to non-pecuniary damage awards. The SCC set the non-pecuniary damage cap at $100,000, which has been adjusted for inflation. The current upper limit on non-pecuniary damages is around $375,000.
Threshold under the Insurance Act
Another issue that limits damage awards for people who are injured in motor vehicle accidents in Ontario is the statutory threshold contained in the Insurance Act. The Insurance Act states that drivers are not liable unless a plaintiff dies or sustains permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function. Additionally, unless the non-pecuniary damages are greater than the amount prescribed in the Insurance Act, which is currently around $130,000, there is a deductible of around $39,000 that is automatically applied to the award. Juries are not told about the existence of this deductible before delivering their verdicts. This can lead to unfortunate outcomes for plaintiffs, where any non-pecuniary damage award less than $130,000 is automatically reduced by the deductible. These unfair results may become more common, as the threshold and deductible amounts raise yearly with inflation, while damage awards have stayed relatively stable. This can adversely affect many plaintiffs and is, in my opinion, an unfair situation for many accident victims.
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This post was written by Lawyer Louis DelSignore and Articling Student Jonathan Bradford.