How Do You Calculate Pain and Suffering in Ontario?

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 might be available in Ontario personal injury lawsuits, but they are much more limited than what is available for our southern neighbours.

Pecuniary vs. Non-Pecuniary Damages

Damages for pain and suffering are a type of non-pecuniary damages.

• 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.

Limits on Damages for Pain and Suffering

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.

In a series of cases decided in 1978, 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.

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:

• Death
• Permanent serious disfigurement
• Permanent serious impairment of an important physical, mental, or psychological function

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.

CONTACT PRESZLER INJURY LAWYERS

If your overall quality of life has been significantly diminished because of injuries you sustained in an accident caused by someone else’s negligence, you may be able to recover non-pecuniary damages. To learn more, book a free initial consultation with Preszler Injury Lawyers by calling 1-800-JUSTICE.