By Toronto Personal Injury Lawyers
Accident victims in Ontario have a right to sue at-fault drivers and seek compensation for pain-and-suffering. In such a lawsuit, this compensation is referred to as general or non-pecuniary damages, because there is no way to put a specific price on an individual’s pain or suffering. This was made clear by the Supreme Court of Canada in the case of Andrews v. Grand & Toy in 1978:
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.
Common Law Limits to General Damages
In Andrews, the accident victim, J.A. Andrews, was a young man rendered a quadriplegic by a negligent driver in a car accident. The Court observed that it was difficult to conceive of a person his age losing more than Andrews had lost. In determining how much money the young man should be awarded for his pain and suffering, the Supreme Court looked south of the border and noted that awards for pain and suffering “have soared to dramatically high levels in recent years”. The Court determined that the time had come to stabilize awards for pain and suffering. Since that time, the most a person can recover for pain and suffering is $100,000.00, which has since increased to around $350,000.00 due to inflation.
Insofar as Andrews provides a yard-stick for general damages, accident victims should temper expectations when suing for pain and suffering since no accident victim will ever receive a million dollars, let alone millions of dollars, for pain and suffering alone; unless an accident victim is, heaven forbid, rendered quadriplegic or something similarly tragic, it is hard to imagine a court awarding upwards of $350,000.00 for pain and suffering. Million dollar awards are still possible, of course, because there are other heads of damages including loss of past and future income and the cost of medical care. These heads of damages may raise the global value of claims well into the millions. However, we are focusing for the moment only on general damages, and, in particular, general damages for victims of car accidents in Ontario.
Insurance Act Limits to General Damages
In enacting particular provisions of the Insurance Act, the provincial legislature signaled a policy decision to discourage claims for general damages arising from car accidents where the victims have suffered only minor injuries. Accident victims in Ontario will not receive any money for pain and suffering unless two conditions are met.
First, a $30,000.00 statutory deductible for pain and suffering awards means that claimants will receive no money for general damages unless their claim is worth more than $30,000.00 from the outset. In other words, if a court award $30,0001.00 in general damages, the plaintiff will receive only $1.00. The deductible does not apply to general damages awards in excess of $100,000.00.
Second, and more importantly, the Ontario legislature has declared that no damages for pain and suffering are payable in motor vehicle negligence claims unless the accident victim has has died; has sustained a permanent serious disfigurement; or has sustained a “permanent serious impairment of an important physical, mental or psychological function”. This latter prerequisite to awards for pain and suffering is referred to by personal injury lawyers as the “verbal threshold”, or simply the “threshold”..
To put it simply, if an accident victim’s claim does not “pass the threshold”, they (usually) will not receive any award for pain and suffering and, in some cases, may be ordered to pay the defendant’s legal fees for starting an unsuccessful lawsuit. More often than not the Court is not asked to make a determination with respect to the threshold until after a trial, and after tens of thousands of dollars of legal fees and expenses are incurred by both sides. If the Court finds that plaintiff’s injuries do not pass the threshold, they may order the Plaintiff to pay a significant chunk of the defendant’s legal fees. Not only do plaintiffs lose the case, they lose a significant amount of money in the process. Therefore, claimants must be confident in their ability to prove that they suffer a permanent and serious impairment at the date of trial, which is often 3-7 years after the accident.
How to Determine if an Injury Meets the Legal Threshold?
How do Court’s determine whether an accident victim passes the threshold? Generally, Courts ask the following three questions:
- Has the injured person sustained a permanent impairment of a physical, mental or psychological function?
- If yes, is the function which is permanently impaired an important one?
- If yes, is the impairment of the important function serious?
In answering these questions, the Court must consider the effect of the accident on the individual plaintiff, not an average person. This means that even if a particular person’s response to their injuries seems disproportionate as compared to what would be expected of your average Joe or Jane, the Court must look at how the injuries and impairments have impacted the life of the individual plaintiff.
An inability to return to one’s pre-accident employment will, usually, be a clear indication that a plaintiff has passed the threshold. However, even where an accident victim was not employed at the time of the accident or their work has not been affected by their impairments, courts have still found that a restriction in usual activities of daily living such as household, recreational and social activities are sufficient to be classified as a serious injury.
The decision as to whether a plaintiff “passes threshold” rests entirely with a judge; even if the jury awards general damages in excess of $30,000.00, a judge may still determine that the plaintiff has not passed the threshold, thereby overruling, as it were, the jury’s decision.
Courts are generally fair, reasonable and liberal when considering whether a plaintiff passes the threshold. With the right set of evidence and, most importantly, a credible plaintiff, plaintiffs are generally able to pass the threshold. Above all, credibility is key, as judges are asked to consider how an accident has affected the individual victim.
Ask a Car Accident Lawyer in Ontario
Have you or a loved one been injured in a car accident because of someone else’s fault? If so, do you know your legal rights? If you would like free legal advice about your car accident and injuries, then feel free to fill out the form. A qualified Ontario car accident lawyer who practices personal injury law will contact you to discuss your rights as soon as possible.