Dav.NonPec

Reading: “The Cap on Non Pecuniary General Damages: Where is it Going and How Does it Affect Litigation?”

Authour: Davidson, J.

Forum

BA Quick-Summary: The Cap on Non-Pecuniary Damages In 1978, the Supreme Court of Canada established a cap on non-pecuniary damages at $100,000, adjusted for inflation, through a trilogy of decisions: Andrews v. Grand & Toy, Thornton v. Prince George School District No. 57, and Arnold v. Teno. This cap aims to ensure consistency and prevent excessive awards in personal injury cases. The cap has been upheld in subsequent cases, notably in Lee v. Dawson (2006), where the British Columbia Court of Appeal affirmed its application, rejecting arguments that it violated equality rights under the Canadian Charter of Rights and Freedoms.

Pop Quiz

• In the case Whiten v Pilot Ins Co, what was the final amount of punitive damages awarded by the Supreme Court?
• Do you remember the year this case was tried in the Supreme Court?

BattlePlan

Based on past exams, the main things you need to know (in rough order of importance) are:

• reasons for caps on non-pecuniary damages (Trilogy ruling)
• exceptions to the Trilogy ruling on capping non-pecuniary damages
• describe the Trilogy ruling

If you only have 20 minutes to study this paper, learn the Trilogy ruling, reasons for caps, and exceptions to the caps.

If you have 1 hour then you can learn the aforementioned items plus the Lee v Dawson case regarding an unsuccessful challenge to the cap.

If you have 3 hours then you can learn the aforementioned items plus the 3 other cases that were tried after Trilogy. Only 1 of these has been asked (Lindal v Lindal) although the examiners tried to trick you into thinking it was Fenn v Peterborough. From past exams, these 3 minor cases seem unlikely to appear on subsequent exams, but if you know the rest of the syllabus thoroughly, why not learn them. You would make Alice proud! :-)

Top Questions ← Questions you absolutely need to know!

Questions held out from Fall 2019 exam: #7. (Skip these now to have a fresh exam to practice on later. For links to these questions, see Exam Summaries.)

reference	part (a)	part (b)	part (c)	part (d)
E (2018.Spring #6)	Trilogy reasons: - reasons for caps	Trilogy exceptions: - cap doesn't apply 1
E (2017.Fall #5)	Trilogy reasons: - reasons for caps	Trilogy exceptions: - cap doesn't apply
E (2017.Spring #5)	Trilogy ruling: - describe the ruling	Trilogy exceptions: - cap doesn't apply CASE: Lindal v Lindal	CASE: - Lee v Dawson
E (2016.Fall #6)	Trilogy reasons: - reasons for caps	Trilogy exceptions: - cap doesn't apply
E (2015.Spring #5)	Trilogy ruling: - describe the ruling	Trilogy reasons: - reasons for caps	CASE: - Lee v Dawson	CASE: - Lee v Dawson
E (2014.Fall #5)	Trilogy reasons: - reasons for caps	Trilogy exceptions: - cap doesn't apply	Trilogy exceptions: - reasons for
E (2013.Fall #3)	Trilogy reasons: - reasons for caps	Trilogy exceptions: - cap doesn't apply
E (2012.Fall #7)	Trilogy reasons: - reasons for caps	Trilogy cap: - major v minor injuries

¹ Prior to 2018.Fall, you were only required to provide 2 exceptions to the cap (sexual abuse, defamation), but here they asked for 3 exceptions, the third being negligence causing financial loss.

In Plain English!

Intro

This paper is good bedtime reading. It's well written, only 12 pages, and the material is easy. For those reasons, this BattleWiki article will be short. The whole idea is that non-pecuniary damages, or damages for pain and suffering beyond compensation for medical care and loss of income, are difficult to quantify.

If you see a vulnerable person, say a child, who has been severely injured in an accident, your natural tendency would be to grant them anything and everything. While this is a noble impulse, there are practical issues to consider:

• What are the real needs of the victim? Does getting more money address those needs?
• What are the costs to society for large monetary awards? Will insurance coverage become unaffordable? Will there be anything left for the next victim?

Those are the kinds of sober questions that must be asked in the context of a tort system.

The main concept is the Trilogy ruling itself:

The Supreme Court of Canada established a $100,000 cap on non-pecuniary damages (later given an inflation adjustment, and subject to certain exceptions)

You can see from the BattleTable that the most frequently asked questions are:

• 4 reasons for caps on non-pecuniary damages (shout-out to michaeletkin for his alternate memory trick!)
• 3 exceptions to Trilogy decision (caps removed)

The answers are provided in the BattleCards. Observe from the table that these 2 questions are often asked together. Easy points!

mini BattleQuiz 1 You must be logged in or this will not work.

Some Comments

This reading actually has 5 main legal cases.

A past candidate posted a very nice summary of these and all the cases from this reading in the forum here.

• The Trilogy ruling is obviously the most important.
• The Lee v Dawson case, which challenged the cap, is also very important.

(This is the last case discussed. The $100K Cap was upheld by BCCA; Supreme Court declined to hear case.)

But there are 3 other cases between Trilogy and Lee v Dawson that refined the original ruling. These 3 cases are rarely tested but did come up here:

E (2017.Spring #5b)

(The question referred to Fenn v Peterborough, but this was actually a misdirect, because the answer required you to cite Lindal v Lindal.)

Case 1: Fenn v City of Peterborough (only award greater than the Trilogy cap)

• This is the only case (aside from certain stated exceptions) where the award (125K) exceeded the 100K cap.

Case 2: Lindal v Lindal (commented on inflation-adjustment) - this is the case you had to cite on the 2017.Spring exam

• This is the case that established the inflation-adjustment, measured from the value of 100K in 1978.

Case 3: ter Neuzen v Korn (JPD → ROL)

• This is the case that raised the "status" of the 100K cap from Judicial Policy Directive to Rule of Law

So, you're looking at learning 5 more cases in this reading - a bit of pain, but it looks like the exam committee has started asking them. Be smart! Learn them!

mini BattleQuiz 2 3 cases after Trilogy

mini BattleQuiz 3 Lee v Dawson

Whiten v Pilot Ins Co.

Think back to the Whiten v Pilot Ins Co. case. This case went to the Supreme Court in 2002, and punitive damages of $1M were awarded. It's important to note that these were described as punitive damages, which means to punish, rather than non-pecuniary, which is to compensate for pain & suffering and anything else that may be hard to quantify. That means that the Trilogy cap doesn't apply, but it seems related, so let's take a closer look:

Obviously this punitive award was very high at $1M. Also note that this case isn't one of the stated exceptions to the Trilogy cap, which are:

• sexual abuse
• defamation
• negligence causing financial loss

So, any non-pecuniary damages would presumably have been capped (if there had been any.) There's a related forum discussion started by sidsim.

The Supreme Court then goes on to say that punitive damages are the exception rather than the rule, but that punitive damages may be imposed if...

...there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.

And this certainly describes the behaviour of Pilot Ins Co. in this particular case. Basically, they sucked. Big time.

BattleCodes

Memorize:

• The Trilogy ruling
• 4 reasons for caps on non-pecuniary damages
• 3 exceptions to cap
• Lee v Dawson
• The other 3 cases that came after Trilogy but before Lee v Dawson
• See BattleCards for miscellaneous details

Conceptual:

• Can you discuss the case Whiten v Pilot Ins Co in the context of the Trilogy ruling?

Calculational:

• none

Full BattleQuiz You must be logged in or this will not work.

  Forum

POP QUIZ ANSWERS

• Whiten v Pilot Supreme Court award: $1 million
• The incident occurred in 1994 and the case went to the Supreme Court in 2002.