More detailed facts on cases (in case anyone is interested)

im6Candiknowit

I usually like to add more context to what I'm reading instead of just "sustained severe injuries" so I looked them up

Andrews w Grand & Toy Alberta Ltd
Andrews injured in car accident from Grand & Toy employee, rendering Andrews a quadriplegic

Teno v Arnold
4-year-old Teno daughter hit by car driven by Arnold after buying ice cream from truck in the street, suffers severe brain injuries

Thornton v Prince George School District No. 57
Thornton injures neck in high school physical education class, causing partial paralysis in all limbs

Fenn v City of Peterborough
City's negligence caused fire/explosion to Fenn's house, killing all 3 of his children and severely injuring his wife. He returned home to see 1 child and his wife put into ambulance, 2 children were left inside the burning house. He was restrained when trying to run inside to save 2 other children. He sustained severe nervous shock and emotional distress.

Lindal v Lindal
Plaintiff suffered severe brain damage resulting in physical and mental disability and emotional disorder, due to defendant's negligent driving

Ter Neuzen v Korn
Plaintiff infected with HIV through artificial insemination program (infected donor semen) and sued doctor for negligence

SY v FGC
Plaintiff step-daughter sued defendant step-father for damages sustained from sexual abuse from ages 7-18

Hill v Church of Scientology
At a press conference, Church of Scientology lawyers alleged Hill of misleading a judge and breached orders sealing confidential documents in a prior trial with Church of Scientology. After accusations were found to be untrue and without foundation, Hill sued Church of Scientology for damages from defamation.

Young v Bella
Young (university student) forgot to cite/add footnote in paper about sexually abusing children, Professor Bella assumed it was from personal experience and raised issue to director of university that Young wanted to apply for. Director reported to Child Protection Services, unbeknownst to Young. News spread and Young found out 2 years later by fluke. Young sued for damages to reputation and potential career.

javid

@im6Candiknowit, very nice of you to provide this. Thank you

chrisboersma

Some optional - light reading

There's some interesting content that the courts commented on, but isn't picked up by our reading. It actually helps contextualize the reason/purpose for the cap. It also explains why it is unlikely to go away.

Non-pecuniary Damages are a Policy Exercise

The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one

As a result, the courts do not believe this is really their choice to make - so if there should be a different limit it is for government (policy) to decide rather than the courts. A limit encourages the government to write laws that change this cap. Any governments who impose their own cap are seen as solving this policy concern. The courts will likely respect their policy choices (unless of course there is a clear violation of the constitution).

-- Full discussion from Andrews v. Grand & Toy Alberta Ltd. (1978) --

3. No Money can provide true restitution

Andrews used to be a healthy young man, athletically active and socially congenial. Now he is a cripple, deprived of many of life's pleasures and subjected to pain and disability. For this, he is entitled to compensation. But the problem here is qualitatively different from that of pecuniary losses. There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. Money can provide for proper care: this is the reason that I think the paramount concern of the courts when awarding damages for personal injuries should be to assure that there will be adequate future care.

4. Social Burden & 1. No objective yardstick

However, if the principle of the paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses. In particular, this is the area where the social burden of large awards deserves considerable weight The sheer fact is that there is no objective yardstick for translating non-pecuniary losses, such as pain and suffering and loss of amenities, into monetary terms. This area is open to widely extravagant claims. It is in this area that awards in the United States have soared to dramatically high levels in recent years. Statistically, it is the area where the danger of excessive burden of expense is greatest.

Here, it is interesting as the courts saw the above two bullet points as "one concept": social burden and limitless (one paragraph).

As a result, reason 1, is effectively the same as reason 4. That is to say 1 implies 4 or 4 is caused by 1. They both should not be reasons (the judge didn't see them as two separate ideas - they discussed them together).

I'm sure the graders will continue to accept both answers as they typically grade based on bullet points

Three Approaches to Non-Pecuniary Damages

It is also the area where there is the clearest justification for moderation. As one English commentator has suggested, there are three theoretical approaches to the problem of non-pecuniary loss (Ogus, 35 M.L.R.I). The first, the "conceptual" approach, treats each faculty as a proprietary asset with an objective value, independent of the individual's own use or enjoyment of it. This was the ancient "bot," or tariff system, which prevailed in the days of King Alfred, when a thumb was worth thirty shillings. Our law has long since thought such a solution unsubtle. The second, the "personal" approach, values the injury in terms of the loss of human happiness by the particular victim. The third, or "functional" approach, accepts the personal premise of the second, but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person "with reasonable solace for his misfortune." "Solace" in this sense is taken to mean physical arrangements which can make his life more endurable rather than "solace" in the sense of sympathy. To my mind, this last approach has much to commend it, as it provides a rationale as to why money is considered compensation for non-pecuniary losses such as loss of amenities, pain and suffering, and loss of expectation of life.

Functional Approach

Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way.

This creates an interesting possibility of multiple ways of viewing non-pecuniary damages - the courts favor the "functional" approach. As you can imagine, if we followed either conceptual or personal approaches we might be in a different legal world right now. It would've been nice if Davidson discussed these 3 approaches as it helps explain reason 2:

2. Make life more endurable

If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities. The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the injuries. Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries. The result is a coordinated and interlocking basis for compensation, and a more rational justification for non-pecuniary loss compensation.

?. predictability

However one may view such awards in a theoretical perspective, the amounts are still largely arbitrary or conventional. As Denning L.J. said in Ward v. James [22], there is a great need in this area for assessability, uniformity and predictability

this answer was accepted in Spring 2018

This appears to be an additional reason not included in bullet list, but discussed later in the reading: predictability. I personally see it as a separate "legal" reason in the context of this ruling (eg. fairness across country for non-pecuniary damages that can change substantially):

The amounts of such awards should not vary greatly from one part of the country to another. Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar non-pecuniary loss. Variation should be made for what a particular individual has lost in the way of amenities and enjoyment of life, and for what will function to make up for this loss, but variation should not be made merely for the province in which he happens to live.

I'm a little surprised non one has tried to challenge the provincial minor injury non-pecuniary caps on this basis...

https://www.canlii.org/en/ca/scc/doc/1978/1978canlii1/1978canlii1.html

NycxBattle

Just a reminder for anyone else reading this thread.

There is one more case Lee v Dawson.

This is the longest reading in the source file. It talks about how the Trilogy is conflict with the Charter. But ultimately the Trilogy was upheld.

graham

Thanks for the extra info @NycxBattle!