In personal injury cases in Ontario, there are two main groups of damages (money compensation) available to the injured person. These are: non-economic general damages (often referred to by non-lawyers as "pain and suffering" damages) and economic loss damages (these are the financial costs incurred by an injured person, such as loss of income and expenses for health care).
Economic Loss Damages are provided to make up for the financial expenses and losses that have resulted because of the defendant's conduct. These losses usually include medical expenses and lost income. The injured person has the burden of proving not only the harms and losses, but also that the losses are caused by the defendant. The injured party is entitled to no more than the economic losses caused by the defendant's negligent conduct. The injured party also has a duty to mitigate his or her damages. In simple terms, this means that the injured party must do everything reasonable to reduce his or her economic losses following an injury caused by the defendant. The beneficiary of this rule of law is the defendant, and more particularly, the defendant's insurance provider.
Non-economic damages are sometimes referred to as compensation for pain and suffering. These are damages for the loss of enjoyment of life that no doubt flows from a serious injury. Non-economic damages are also recoverable for the loss of care, comfort and companionship, when children, spouses and siblings have lost a loved one as a result of negligence. In Canada, non-economic damages in personal injury cases are limited by a cap which was imposed by the Supreme Court of Canada in 1978. In a “trilogy” of cases involving catastrophically injured youths, the Supreme Court of Canada capped general damage awards for pain and suffering at $100,000.00. The courts have adjusted the cap with subsequent cases to keep pace with inflation. It is now slighly more than $330,000.00. Nonetheless, in Canada, a victim of personal injury cannot recover more than the cap regardless of the facts in evidence or what a jury might believe is fair.
I have strong views on the damage cap, which I believe unfairly penalizes victims of personal injury, especially in the context of wrongful death. For the time being, however, this is the law of Canada for personal injury damages.
In a future blog, I will set out my views on the cap and make the argument for revisiting the damages cap.