When many people think of personal-injury lawsuits, they think of the exorbitant judgments we often hear about coming out of the United States. A significant portion of those judgments is typically a high award for the physical and mental pain and suffering that a person endures as a result of his or her injury.
In Ontario, we do things differently. Damages for pain and suffering are available in Ontario personal-injury lawsuits, but they are much more limited than what is available for our southern neighbours.
Why is that? In part it’s because of how Ontario courts calculate damages for pain and suffering, and in part it’s because of various limitations that apply to non-pecuniary damages in Ontario. Keep reading to learn more.
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Refresher: Pecuniary vs. Non-Pecuniary Damages
Damages for pain and suffering are a type of non-pecuniary damages. We’ve discussed the distinction between pecuniary and non-pecuniary damages in the past, but here’s a quick refresher:
- Pecuniary damages are damages that can be easily quantified, because they result in a bill (e.g., medical expenses) or a change in income (e.g., lost wages).
- Non-pecuniary damages are not so easily quantified. They include items such as pain and suffering or disfigurement. You don’t receive a bill for such things, and they don’t directly affect your income.
Calculating pecuniary damages is relatively straightforward, but non-pecuniary damages like pain and suffering require a more sophisticated approach.
Calculating Pain and Suffering
In a 1978 case in which it capped non-pecuniary damage awards (about which more below), the Supreme Court of Canada described three theoretical approaches to calculating non-pecuniary damages:
- The conceptual approach: The conceptual approach applies a fixed value to each “faculty” lost. This approach “prevailed in the days of King Alfred, when a thumb was worth thirty shillings.”
- The personal approach: Under the personal approach, pain and suffering is measured by the particular victim’s loss of happiness.
- The functional approach: The functional approach is similar to the personal approach, but, rather than trying to put a price tag on lost happiness, merely attempts to provide enough money to offer “reasonable solace” for the victim’s misfortune.
Ontario courts follow the functional approach.
Of course, that just pushes back the question of calculating damages one level. Is it really so much simpler to fix the value of “reasonable solace” than the value of “pain and suffering”?
In practice, Ontario courts do what all common-law courts usually do: look to precedent. In determining the appropriate amount of pain and suffering and other non-pecuniary damages, Ontario courts compare a plaintiff’s injury in the case before them to similar injuries in prior cases and set the amount accordingly.
You can see a clear example of this process in Johal v. Radek, a 2016 British Columbia case that we referred to in our discussion of Ontario’s Golden Years Doctrine. In that case, lawyers for each side provided the court with a series of prior cases that they said should guide its award, and the court compared the injuries in those cases to Ms. Johal’s injury.
Because Ms. Johal’s injuries were most like injuries in cases where the court awarded $60,000 in non-pecuniary damages, the court in Johal did likewise.
Limits on Damages for Pain and Suffering
Unfortunately, that’s not the end of the story. Damages for pain and suffering in Ontario are limited in three significant ways, the first of which applies in all personal injury lawsuits, and the second and third of which apply in lawsuits involving automobile accidents.
Pain-and-Suffering Damages Are Capped
In a series of cases decided in 1978, one of which we linked to above, the Supreme Court of Canada determined that non-pecuniary damages should be capped at $100,000. Because of inflation over the last 40 years, that cap has risen to somewhere north of $360,000 today.
But only the worst injuries qualify for non-pecuniary damages that high. For example, in two of those 1978 cases, the Supreme Court confronted young adults who were paralyzed from the neck down in automobile accidents. Most injuries are not as severe as paralysis, and so most cases do not reach the Supreme Court’s cap.
The Insurance Act Threshold
The cap on non-pecuniary damages serves as an upper limit on damages for pain and suffering. Ontario’s Insurance Act provides two lower limits in cases involving car accidents in Ontario. The first of those limits is called “the threshold.” If a person’s injuries do not rise to the level of the threshold, then he or she cannot recover non-pecuniary damages. The threshold is:
- Permanent serious disfigurement; or
- Permanent serious impairment of an important physical, mental, or psychological function.
The idea behind the threshold is that only serious injuries should give rise to a right to recover non-pecuniary damages.
Whether a plaintiff’s injury satisfies the threshold will be determined by the judge in the case. If the judge determines that it does not, then the plaintiff will receive nothing for pain and suffering and other non-pecuniary damages.
The Insurance Act Deductible
The Insurance Act includes yet another lower limit on pain-and-suffering damages in motor vehicle accident claims: the statutory deductible. The statutory deductible is an amount that is automatically taken out of any recovery for pain and suffering in cases involving a motor vehicle collision. The precise amount is indexed to inflation. For 2018, the statutory deductible is $37,983.33.
In other words, Ontarians injured in an auto accident lose the first $37,983.33 of their recovery for pain and suffering. For instance, with an award of $40,000 for pain and suffering, the plaintiff would only actually receive $2,016.67. Even an award like Ms. Johal’s from above, if it were given in an Ontario car accident lawsuit, would be reduced from $60,000 to just $22,016.67.
Importantly, the statutory deductible does not apply if the award of non-pecuniary damages exceeds $126,610.07.
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What is Your Pain and Suffering Worth?
You’re not likely to read news of an Ontario personal injury lawsuit resulting in the types of massive damage awards we hear about from the U.S. The Supreme Court of Canada and Ontario’s Legislative Assembly have chosen to set a different course, and that means relatively restrained damages for pain and suffering.
Those restrictions make it all the more important that you work with an Ontario personal injury lawyer following an automobile accident or other injury. The experienced lawyers of Preszler Law Firm in Toronto can help you determine what damages are available in your case and develop the evidence to maximize your recovery.