Posted: December 14, 2021

In personal injury cases, ‘non-pecuniary’ or ‘general’ damages refers to damages awarded when the accident has resulted in significant pain and suffering and a reduction in the injured person’s quality of life.  Non-pecuniary damages are based on non-economic losses resulting from personal injury, in contrast to pecuniary damages which involve compensation for financial losses, such as lost income, future care costs and rehabilitation expenses. 

The amount of non-pecuniary damages awarded to a claimant in a civil lawsuit depends on the degree of their injury and suffering.  In 1978, the Supreme Court of Canada asserted the importance of consistency in awards for non-pecuniary damages and placed a $100,000 cap on such damages through the Court’s decisions in three cases, notably Andrews v. Grand & Toy Alberta Ltd.  The Court pointed out that non-pecuniary losses cannot be truly compensated because how can you put a price on the loss of a limb, for example, or an injury that results in paraplegia?  Nor can non-pecuniary damages provide an injured person with restitution for their losses; however, they can provide some additional funds to make the person’s life more endurable.  The Court further stated that, without a cap, non-pecuniary awards could become exorbitant and as a result, driving a car could become far more costly for all vehicle owners.  Finally, the Court noted that it’s expected that the injured person will be compensated with appropriate pecuniary damages for their future care costs and other financial losses, which should allow them to function as closely as possible to the way they did prior to their injury.

Since 1978, the cap on non-pecuniary/general damages has been adjusted for inflation and is now expected to be $360,000 or greater.  However, an award close to the current cap does not reflect typical damages in personal injury actions.  The highest awards for non-pecuniary damages are awarded only for the most serious of injuries, such as a catastrophic brain injury or spinal injury resulting in quadriplegia.

One such case where an Ontario judge awarded the upper limit in non-pecuniary damages (at the time of the civil action) is Gordon v. Greig (2007).  In Gordon, a young man, Ryan Morrison, suffered a severe spinal injury in a car crash, which resulted in paraplegia for Morrison as well as traumatic brain injury for another passenger, Derek Gordon.  Morrison was awarded $310,000 in general damages and his total awarded damages exceeded 12.3 Million. The judge was particularly impressed by Morrison’s brave and unfailing effort at undergoing extensive and painful rehabilitation. 

In order to be eligible for non-pecuniary damages in civil lawsuits, the injured person must suffer from a permanent serious impairment of an important physical, mental or psychological function. As specified under Ontario’s Insurance Act, s. 267.5, an impairment can be defined as permanent, serious and important, if the following criteria are met.

  1. To be ‘serious’, the impairment must substantially interfere with the person’s ability to continue working in their usual employment despite reasonable efforts to accommodate the person’s injury; must substantially interfere with continued training in their current field, despite reasonable accommodations of their impairment; or must substantially interfere with most of their normal daily activities, given the person’s age. 
  2. To be considered an ‘important’ function’, the function must be necessary for the person to perform the essential tasks of their normal job with reasonable accommodations; must be necessary to the essential aspects of training in their current career, with reasonable accommodations; must be necessary for their own care or well-being; or must be important to their normal daily activities.
  3. To be considered ‘permanent’, the impairment will have been continuous since the accident and despite recommended treatment as substantiated by medical evidence, the person is not expected to substantially improve; and must be a type of impairment that is unlikely to improve substantially when suffered by persons in similar circumstances.

When non-pecuniary damages for pain and suffering are awarded in civil actions, the amount is often less than $100,000.  Further, in car accident injury cases, non-pecuniary awards are subject to a statutory deductible amount, unless the award is for a substantial amount, at least $132,513.28 (in 2021) and this amount increases every year for inflation.  The reason for a statutory deductible, as asserted by the Ontario government, is to help prevent our automobile insurance rates from rising; however, many critics argue that this objective has not been fulfilled.

Here are several cases where non-pecuniary damages were awarded.

Gilbert v. South (2015) is a car accident lawsuit where the injured plaintiff was awarded $70,000 in non-pecuniary damages for pain and suffering, but the amount was reduced to $40,000 after the statutory deductible was applied. The plaintiff’s total awarded damages were almost $500,000, which included pecuniary awards for loss of income and earning capacity, future care costs, and home maintenance expenses.  This case involves an accident victim who suffered a back injury in a car accident caused by the defendant, and his impairment and pain and suffering were made worse because the damage to his back exacerbated a pre-existing back injury.

In Wilson v. Cranley (2013), the Court awarded the plaintiff $15,000 in general damages as well as an award for future loss of income; however, because the statutory deductible was subject to a $30,000 statutory deductible at the time of the action, the award for pain and suffering was nullified.   

In Bosnali v. Michaud (2017), the plaintiff claimed that he suffered from post-concussion disorder, PTSD, chronic pain, headaches, sleep disturbances and depression as a result of a car accident caused by the defendant.  A jury awarded the accident victim $100,000 in general damages as well as awards for housekeeping and rehabilitation expenses. Unfortunately, at the time of the civil trial, under the Insurance Act, only awards over $100,000 were to be exempt from a statutory deductible.  This meant that the plaintiff missed out by only one cent, and the $37,385.17 deductible was applied to his assessed general damages, resulting in a net award of $62,614.83.

In El-Khodr v. Lackie (2017), a jury trial awarded the accident victim 225,000 for general damages when the plaintiff sustained a catastrophic injury as a result of a car accident.  Because the accident victim’s assessed damages exceed the amount subject to a statutory deductible, the plaintiff is entitled to the full damages award.  Mr. El-Khodr was severely injured when his tow truck was rear-ended by the defendant’s car and in 2015, his total damages were assessed at almost $3 Million, which includes a significant award for the cost of future care.   

The statutory deductible has resulted in a significant reduction in pain and suffering damages for many Ontarians who suffer ongoing pain and/ other impairments as a result of a motor vehicle accident caused by a negligent driver.Many critics of Ontario’s statutory deductibles believe this legislation is unfair to accident victims who were injured, but not injured ‘enough’ or suffering ‘enough’ to qualify. Further, because the statutory deductibles increase every year to adjust for inflation, the general damages amount left for many accident victims continues to decrease, or in some cases, is nullified by the deductible.

Posted in Brain Injury, Car Accident and Personal Injury Law, Catastrophic Injury
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