Upper limit non-pecuniary damages in Canada: cap imposed in Andrews v. Grand & Toy

In a trilogy of cases decided in 1978 (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, Arnold v. Teno, [1978] 2 S.C.R. 287, Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267) the Supreme Court of Canada imposed a cap of $100,000 (as of 1978) on non-pecuniary damages. This decision was made on the basis that, as a matter of public policy there should be a limit to the amount of compensation awarded for pain and suffering:
 
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. 
(Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 261).
 
It is important to understand that the cap on non-pecuniary damages does not affect the amount of compensation that can be awarded for the cost of future care or loss of earning capacity (those are often the biggest ticket items in serious injury cases), but only limits compensation for pain and suffering.
 
The cap was $100,000.00 in 1978 (January 19, 1978 was the date of the three decisions mentioned above) and is adjusted for inflation to determine the cap at the time of trial. In Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111 at para. 250 it was held that $330,000 was the then current value of the upper limit, adjusted for inflation.  As of early 2013 the cap was approaching $350,000 due to inflation.
 
It is important to note that the cap amount is considered the appropriate amount to award the most seriously affected claimant in existence i.e. if a young, healthy, and active person is rendered quadriplegic and brain damaged they would only be entitled to the amount of the cap on account of non-pecuniary damages. In Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 the claimant was a 21 year old who was rendered quadriplegic:
 
I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of $100,000. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature.
(Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 261).
 
In Arnold v. Teno, [1978] 2 S.C.R. 287, decided at the same time as the Andrews case, the plaintiff Arnold was a 4 ½ year-old girl who suffered brain injuries with severe physical and mental impairment, but was also ruled to be subject to the cap.   
 
In Thornton v. School Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267, also decided at the same time as the Andrews case, the plaintiff Thornton was 18 years of age at the date of trial.  He was rendered a quadriplegic during a physical education class and his injuries left him wholly dependent upon male orderly assistance for his day-to-day needs.  The British Columbia Court of Appeal approved of the trial judge assessing $200,000.00 (1978 dollars) as compensation for physical and mental pain and suffering, loss of amenities and enjoyment of life and loss of expectation of life.  The Supreme Court of Canada reduced the award under this heading to $100,000.00 for the reasons expressed in the Andrews case.
 
Although damages in each case must be considered in light of the cap on non-pecuniary damages, a functional approach to quantifying non-pecuniary damages is required and damages must be assessed in light of the plaintiff’s particular circumstances. It is improper to directly compare the injuries of a particular plaintiff to those of the plaintiffs in the 1978 trilogy for the purpose of making an award:  
 
[I]t is improper to compare the injuries of a particular plaintiff to those of the plaintiffs in the 1978 trilogy for the purpose of making a comparative award…As MacDonald J.A. explained, in Penso v. Solowan, at 264, such a comparison is inconsistent with the functional approach to the assessment of non-pecuniary damages:
 
...because it does not give weight to the factor of the need of the particular plaintiff for solace.  The extent to which comparison is properly made is indicated a pp. 263-64 from the following passage in the reasons of Dickson J. for the court in Andrews:
 
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 ....
 
(Boyd v. Harris, 2004 BCCA 146 at para. 29)
 

 

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