Welcome to our Workbench on systemic challenges - a place where analysis and arguments, both pros and cons, are discussed and debated publicly in order to reduce the learning curve and facilitate progress. Join the running discussion as consolidated below to accelerate excellence. Email us at ideas@injurylawcentre.ca.
Systemic Challenge: Is the functional approach to pain and suffering damages in Canada constitutional?
The maximum award or "cap" for pain and suffering in Canada is still unconstitutionally stuck in 1970's values, and remains literally at $100,000 in 1978 dollars.
More pointedly, an immediate death of any person is worth zero dollar for pain and suffering as a result of the same 1978 Supreme Court of Canada decisions - the Trilogy. This zero-dollar cap reportedly has never been constitutionally challenged under the Charter, and other parts of the Constitution. A probable reason for that is that the person is deceased while their estate does not have "legal standing" to challenge a Charter right (as separate from a possible challenge under other obscured parts, written or unwritten, of the Constitution). In other words, a live victim of an immediate death is required for there to be any Charter challenge to this zero-dollar cap - an impossible law inadvertently imposed by the Supreme Court of Canada!
Apart from illegality, these judicial caps also do not appear to resonate with the current times (noting several jury verdicts exceeding the $100,000 cap which were later reduced by judges) and their constitutional challenges should not end without more comprehensive arguments. These judicial caps predate the 1982 Canadian Charter of Rights and Freedoms and there can be other complimentary ways to challenge them.
"Arbitrary policy choices" may be susceptible to a successful challenge. In Saadati v. Moore, 2017 SCC 28, [June 2017] an important case to be studied, the Supreme Court of Canada noted: [18] Like the English courts, Canadian courts have occasionally struggled, as Professor Klar has described, “to find words which can clearly explain why, on the basis of arbitrary policy choices, certain types of claims seem to be too remote and uncompensable” (L. N. Klar, Tort Law (5th ed. 2012), at p. 505 (emphasis in original)).
A key question to be asked of the Supreme Court of Canada may be framed: "By what constitutional authority did the Supreme Court of Canada rely on to establish the cap of $0 (zero) dollar for pain and suffering damages of a victim who suffered an immediate death through no fault of their own?"
We believe that the rule of law in Canada requires a clear line of constitutional authority and answer to the above question, which had been presumed and thus overlooked by the Supreme Court in the trilogy. Without clear authority and answer, then the law as set by the Supreme Court may be unfounded, thus unconstitutional.
August 2021:
It should be noted and be further reviewed or argued that mental distress damages appears a separate head of damages (established in McQueen v. Echelon, by the late plaintiff counsel Lou Ferro of Hamilton), and was assessed for example at $100,000 and upheld by SCC in Saadati 2017 as part of "pain and suffering". Thus, ought the cap be increased now to accommodate a new head of mental injury? Or should an injured person claims a distinct head of damages in a statement of claim, in addition to "pain and suffering" as to allow for mental injury damages? A case comment is reproduced in its entirety for later consideration below.
The Latest Word from the Supreme Court on Mental Injuries
By Brian Sunohara
In Saadati v. Moorehead, 2017 SCC 28, the Supreme Court of Canada went to great lengths to emphasize the importance of recognizing mental injuries.
Justice Brown, in a unanimous decision of the Court, stated that, where mental injury is negligently inflicted, a person’s autonomy to make choices to live life and pursue goals is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury, perhaps even the loss of a finger.
The plaintiff was involved in five motor vehicle accidents. The trial addressed his second accident, which was seemingly minor. The plaintiff led evidence from his friends and family that, after the accident, his personality changed for the worse. He was once a funny, energetic, and charming individual, but he became sullen and prone to mood swings following the accident. His relationships with family and friends deteriorated. He complained of headaches.
The trial judge concluded that the plaintiff had not demonstrated any physical injury resulting from the accident, but he found that the accident caused the plaintiff psychological injuries, including a change in personality and cognitive difficulties. There was no expert evidence to support this. The plaintiff was awarded $100,000 in non-pecuniary general damages.
The British Columbia Court of Appeal overturned the trial judgment. The Court of Appeal stated that the plaintiff had not proven a medically recognized psychiatric or psychological illness or condition, and that such an illness or condition must be demonstrated by expert medical opinion evidence.
The Supreme Court of Canada held that expert evidence is not required to prove a mental injury and restored the trial judgment.
The Court noted that mental injury has historically been treated with suspicion and sometimes outright hostility. The Court indicated that the stigma faced by people with mental illness is notorious and often unjustly and unnecessarily impedes their participation in civil society.
The Court held that the objectivity, certainty, and predictability of psychiatric tests are overstated. While, for treatment purposes, an accurate diagnosis is important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but rather with symptoms and their effects.
At the same time, the Court indicated that mental injury is not proven by the existence of mere psychological upset. Happiness is not a legal right. Plaintiffs must show much more, in particular, that the disturbance suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. The injury must be reasonably foreseeable.
Although expert evidence is not required to establish a mental injury, the Court pointed out that it could be of assistance, and that plaintiffs run the risk of being found to have fallen short if they do not present expert evidence.
Moreover, the Court noted that it remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident could not have caused any mental injury, or at least any mental injury known to psychiatry. While the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
In light of the Supreme Court’s decision, we anticipate seeing many more plaintiffs advance claims for mental injuries, including a change in personality. It should be of some concern to defendants and insurers that the Court agreed that an award of $100,000 for non-pecuniary general damages is reasonable for such injuries.
The Insurance Bureau of Canada (IBC) was an intervener on the appeal. In its factum, the IBC argued that an objective threshold is required to screen claims for mental distress. It also argued that the elimination of an objective medical standard would expand the liability of defendants and increase the volume of claims.
The IBC further submitted that, without an objective standard, courts would be flooded, trials would be lengthened, the costs of litigation would increase, insurance premiums would rise, and the risk of insurance fraud would be heightened. The Court appears to have given little credence to these arguments.
Only time will tell whether these concerns are borne out, but the Court’s decision is one that defendants and insurers will need to pay attention to.
In cases where a plaintiff alleges mental injury, it would be wise to consider retaining a defence psychiatry or psychology expert to rebut the alleged injury, even if the plaintiff has not retained such an expert. Although the defence expert’s opinion will not be determinative, it could be persuasive, especially in actions tried by a jury. Surveillance should also be strongly considered in such cases.
February 2021:
Additional/Alternative Queries:
1. Where does the Court draw constitutional authority to legislate, effectively, the cap on pain and suffering damages? Is the cap not policy and is therefore within the exclusive authority of the Legislature? Did the Court exceed its jurisdiction or role in a constitutional democracy?
2. In the event of a challenge to a judicial setting aside or reduction of a jury verdict, where does the Court draw constitutional authority to substitute a jury verdict - assuming the unlikely constitutional authority to legislate? Does exceptional judicial jurisdiction of "inherent jurisdiction" permit this (noting that only s. 106 Superior Court has such general or inherent jurisdiction while the Supreme Court of Canada has a statutory and not inherent jurisdiction)? (Consider a review of Whiten v. Pilot, ONCA and SCC decisions; of SCC rejection(s) of prior challenge(s) to the cap cited below.)
January 2018:
Jones v. Hanley and Jones v. Livska, 2018 ONSC 145 CanLII, Sweeny J.:
[11] As Lang J.A. noted in Rizzi v. Mavros, 2008 ONCA 172 (CanLII), at para. 33, “A cap on non-pecuniary damages was imposed for policy reasons relating to the heavy financial burden that otherwise would result from excessive awards.”
Query: Does the Supreme Court not say that policy is for the legislature and not the court? Then why would the Court of Appeal above accepts that the Supreme Court could impose a cap for "policy" reason?
July 2017:
The recent reported settlement of a Guantanamo detainee by the Government of Canada in the amount of $10.5 million for breaches of his constitutional rights. Does this seem fair and reasonable when a severely injured Canadian who is sentenced to a lifetime of pain and suffering as a result of personal injury caused by a government is capped out currently at under $400,000? Is the cap arbitrary? Is it justifiable or constitutional?
May 2017:
Trial lawyers have noted that while the cap applies to ALL personal injury pain and suffering damages, regardless whether damages are caused by intentional infliction, product malfunctioning, or accidents including accidents caused by government employees or institutions, the cap does NOT apparently apply to reputational injury in libelous actions, or wrongful imprisonments, among possibly others. Injured by WORDS can cause more pain and suffering than physical, permanent, pervasive pain of the wheel-chair dependent or catastrophically injured?
From a blog with OTLA, the following observations were shared:
Despite the challenges in calculating damages and concerns about predictability, should a just and caring society tell a quadriplegic “Your pain is only worth $366,000”? Presently, that is exactly what we have to tell our clients.
March 2017: As a different approach, to raise awareness and attention to this issue, this is a topic of an ideas contest being considered on this site as of March 2017.
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Update June 2013: Preliminary discussions with a leading Charter expert appear to suggest that a Charter challenge under section 7 (right to liberty and security of the person) might have some merits. Should this issue be part of an injury justice course at a Canadian law school, in order for the next generation of lawyers to do comparative research and analysis?
The Centre believes that in the British Columbia decision in Lee v. Dawson (where a 2 million pain and suffering award by a jury was drastically reduced to the Trilogy cap), no Charter argument was raised before the Trial Judge when the award was reduced. On appeal to the BCCA, it appears that the only Charter argument was under section 15 (equality right). The SCC dismissed the Leave Application without reasons. It appears therefore that the dismissal by the SCC could have been on the ground that Charter arguments were not raised properly on record, or, that it was obvious to the SCC that section 15 argument must fail. The Centre believes that section 15 might not have offered the best argument. Section 7 appears more promising.
The Centre also notes that (1) the jury disagreed with the trilogy, suggesting the trilogy is out of touch with Canadians, and hence is contrary to principles of fundamental justice; (2) the cap on pain and suffering is inconsistent within Canadian jurisprudence where damages to reputation is assessed higher than the pain and suffering cap (Hill v. Church of Scientology, and Young v. Bella), suggesting mental anguish in libel cases deserve more than mental anguish and severe constant physical pain, combined, in personal injury cases; and (3) even the BCCA in Lee suggested it might be time to review the pre-Charter policy decision in the Trilogy to cap pain and suffering.
For the foregoing observations, The Centre believes the opportunity to raise a fresh Charter challenge remains under section 7 or as a combination with section 15 (due to the discrepancy between libel damages and general pain and suffering damages).
Update August 2013: An interesting reference to section 15 with citations of recent SCC jurisprudence was made by the Divisional Court in Gyorffy v. Drury, [2013] O.J. No. 310, July 2, 2013 at para. 39 and is reproduced here to facilitate further review. The decision is apparently being further appealed to the Court of Appeal [appeal dismissed by CA, 2014]:
"Under the Charter, equality is compromised when differential treatment perpetuates disadvantage: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at paras. 17, 23-24; Quebec (Attorney General) v. A, 2013 SCC 5, 354 D.L.R. (4th) 191 at paras. 323-325. As Justice Abella recently summarized, this assessment requires "a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group." (Quebec at para. 331) While, as the intervenor submitted, this is not a Charter challenge, it is an accepted principle of statutory interpretation that, in the face of two competing interpretations of a statute, the interpretation which is consistent with the Charter values should be adopted: R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531 at para. 20. See also Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at pp. 238-241."
Update Fall 2014:
In Francis and Dominion, FSCO 2014, Arbitrator Feldman held that provisions which altered the SABS-1994 LECB provisions, removing substantive rights to LECBs for many young persons, did not violate sections 1 or 15 of the Charter. The decision is under appeal.
Update February 2015:
For broader informational background, it appears that the following cases have failed to established a violation of s. 15, in the Statutory Accident Benefits context in Canada: Hernandez v. Palmer (1992) 15 C.C.L.I. (2d) 187 (Ont. Ct. (Gen. Div.)); Morrow v. Zhang, 2009 A.B.C.A. 215 (CanLII) (Alta. C.A.); Hartling v. Nova Scotia (Attorney General), 2009 N.S.C.A. 130 (CanLII) (N.S. C.A.); Flood v. Ouellette (2007), 280 D.L.R. (4th) 640 (N.B. C.A.)
Recently, there is a challenge in Ontario on the constitutionality of Bill 15 which abolishes FSCO while establishing the License Appeal Tribunal with per diem arbitrators as the sole forum to adjudicate the facts of auto injury cases including catastrophic cases. It appears that s. 7 should be added, rather than only section 15 being presently advanced given the lack of security of tenure implies a lack of independence in decision making, sufficiently impairing the right to impartial adjudication in matters fundamentally affecting life, liberty and security of the seriously injured victims.
Update March 7, 2015:
Consistent with our sense that section 7 of the Charter may offer more support to protecting the rights of injured victims, we note the following article "Section 7: The New Section 15?" by Blakes (Paul Schabas, Kaley Pulfer & Umair Abdul), at http://blakesfiles.com/Articles/2012_Paul_Schabas_Section_7_New_15_EN.pdf.
Furthermore, we note the foremost constitutional expert in Canada, Professor Peter Hogg has written
“The Brilliant Career of Section 7 of the Charter ” (2012), 58 S.C.L.R. (2d) 195, of course a must read.
Professor Hogg's 2012 paper was promptly cited by the Supreme Court when it unanimously (9-0) struck some provisions in the Criminal Code relating to prostitution as unconstitutional, under section 7: Canada A.G. v. Bedford, 2013 SCC 72 (December 20) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do
For ease of reference, parts of the Charter read:
15(1). Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
Introduction
We would also note that research should be done into those FSCO cases which have examined the jurisdiction and scope of FSCO vs. judges of the Superior Court of Justice, to further appreciate the operational context of FSCO vs. the SCJ within the constitutional context of the right to impartial adjudication by a judge under section 96 of the Constitution.
Update April 22, 2015:
A new SCC case from criminal law R. v. Nur to study. It appears that arbitrary law is struck down by the SCC under the Charter. Why is the trilogy cap not arbitrary? The cap has been held that given it is a rule of law that lower courts must apply: Sopinka J. Furthermore, a Charter analysis per se was not carried out in Lee v. Dawson, above, but only the less rigorous "Charter values" analysis, given the dispute in Lee is between private parties. Is a rule of law (the triology) subject to the Charter? Or is the SCC going to say that the Court is not a "government" and is therefore above the Charter?
Also to consider that in Manitoba and Quebec it appears that there is no right to sue in tort. The legislative decision to so enact law, despite the appearance of arbitrariness, is as a result of democratic will. It does appear hard to challenge the absence of some compensation law as being contrary to the Charter.
Some U.S. States have struck down caps on pain and suffering damages as contrary to the right there to a jury trial, as such caps unconstitutionally fetter the power of the jury. While there is no constitutional right to a jury trial in Canada in the Charter, this does not necessarily mean that the Courts can create trilogy law, restricting jury verdicts as it did in Lee, without the oversight of the Charter?
Criminal Law: Mandatory Minimums
R. v. Nur (R. v. Charles), 2015 SCC 15 (35678) (35684)
The Court of Appeal held that the mandatory minimum terms of imprisonment in s. 95(2)(a) resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s. 95 spectrum, and therefore held that they violate s. 12 of the Charter . However, the Court of Appeal held that the sentences imposed on N and C were appropriate and should be upheld."
The S.C.C. (6:3) dismissed the appeals.
Chief Justice McLachlin wrote as follows (at paras. 4-5, 62-65, 77, 117):
" I agree with the Court of Appeal that the mandatory minimum sentences imposed by s. 95(2) (a) of the Criminal Code violate s. 12 of the Charter . Accordingly, the mandatory minimum sentences in s. 95(2)(a) of the Code are null and void under s. 52 of the Constitution Act, 1982 . In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases that are caught by s. 95(1) they may do so. This has not been shown to be justified under s. 1 of the Charter . It follows that s. 95(2) (a) is unconstitutional as presently structured. This conclusion makes it unnecessary to consider the respondents’ arguments that s. 95(2) (a) violates s. 7 of the Charter .
This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.
…
The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen ... and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.
Not only is looking at the law’s impact on persons whom it is reasonably foreseeable the law may catch workable — it is essential to effective constitutional review. Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.
Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books.
I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.
…
In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.
…
Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate. The government has not discharged its burden on this branch of theOakes test. There are less harmful means of achieving the legislative goal."
Update July 2015:
In late 2010, a Vancouver Jury handed out one of the largest injury awards in British Columbia’s history. In that case (Ciolli v. Galley), the award included $6.5 million for non-pecuniary damages After being advised of the triology cap, the Jury was mandated to reduce their award of non-pecuniary damages to this maximum of $327,000, adjusted to inflation at the time. More evidence of the cap being out of line with community standards.
Hinse v. Canada (AG): On June 19, 2015, the SCC dismissed a Quebec appeal from a decision which reversed a Superior Court decision granting a man $1.9 million in non-pecuniary damages far exceeding the cap, who spent about 5 years in jail in the 1960's per SCC headnotes at link below: "The Superior Court allowed the action and ordered the AGC to pay H a total of almost $5.8 million. It found, pursuant to the Crown Liability and Proceedings Act, that the Minister was subject to Quebec’s rules of civil liability, that he was not protected by any immunity, that he had committed a fault of “institutional inertia” or “institutional indifference”, and that a sustained, concerted and extensive review would have uncovered the errors. It ordered the AGC to pay H more than $850,000 for pecuniary damage and $1,900,000 for non‑pecuniary damage, as well as $2,500,000 in punitive damages. It also found that the AGC’s conduct at trial had amounted to an abuse of process and ordered him to pay $100,000 for fees H had paid to the first law firm that had represented him, as well as $440,000 for the value of the services rendered by the second even though that firm had never billed him for fees, as they had entered into a pro bono agreement. The Court of Appeal reversed the judgment.
https://www.canlii.org/en/ca/scc/doc/2015/2015scc35/2015scc35.html
Update July 29, 2015:
In the Ontario C.A. decision of Somers, the Court held at 57-58, with regard to the cap, that "In essence, therefore, the cap is a judicially imposed limit or restriction on liability for non-pecuniary damages. It is a device developed in Canada to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards...."
Systemic Challenge: Is the functional approach to pain and suffering damages in Canada constitutional?
The maximum award or "cap" for pain and suffering in Canada is still unconstitutionally stuck in 1970's values, and remains literally at $100,000 in 1978 dollars.
More pointedly, an immediate death of any person is worth zero dollar for pain and suffering as a result of the same 1978 Supreme Court of Canada decisions - the Trilogy. This zero-dollar cap reportedly has never been constitutionally challenged under the Charter, and other parts of the Constitution. A probable reason for that is that the person is deceased while their estate does not have "legal standing" to challenge a Charter right (as separate from a possible challenge under other obscured parts, written or unwritten, of the Constitution). In other words, a live victim of an immediate death is required for there to be any Charter challenge to this zero-dollar cap - an impossible law inadvertently imposed by the Supreme Court of Canada!
Apart from illegality, these judicial caps also do not appear to resonate with the current times (noting several jury verdicts exceeding the $100,000 cap which were later reduced by judges) and their constitutional challenges should not end without more comprehensive arguments. These judicial caps predate the 1982 Canadian Charter of Rights and Freedoms and there can be other complimentary ways to challenge them.
"Arbitrary policy choices" may be susceptible to a successful challenge. In Saadati v. Moore, 2017 SCC 28, [June 2017] an important case to be studied, the Supreme Court of Canada noted: [18] Like the English courts, Canadian courts have occasionally struggled, as Professor Klar has described, “to find words which can clearly explain why, on the basis of arbitrary policy choices, certain types of claims seem to be too remote and uncompensable” (L. N. Klar, Tort Law (5th ed. 2012), at p. 505 (emphasis in original)).
A key question to be asked of the Supreme Court of Canada may be framed: "By what constitutional authority did the Supreme Court of Canada rely on to establish the cap of $0 (zero) dollar for pain and suffering damages of a victim who suffered an immediate death through no fault of their own?"
We believe that the rule of law in Canada requires a clear line of constitutional authority and answer to the above question, which had been presumed and thus overlooked by the Supreme Court in the trilogy. Without clear authority and answer, then the law as set by the Supreme Court may be unfounded, thus unconstitutional.
August 2021:
It should be noted and be further reviewed or argued that mental distress damages appears a separate head of damages (established in McQueen v. Echelon, by the late plaintiff counsel Lou Ferro of Hamilton), and was assessed for example at $100,000 and upheld by SCC in Saadati 2017 as part of "pain and suffering". Thus, ought the cap be increased now to accommodate a new head of mental injury? Or should an injured person claims a distinct head of damages in a statement of claim, in addition to "pain and suffering" as to allow for mental injury damages? A case comment is reproduced in its entirety for later consideration below.
The Latest Word from the Supreme Court on Mental Injuries
By Brian Sunohara
In Saadati v. Moorehead, 2017 SCC 28, the Supreme Court of Canada went to great lengths to emphasize the importance of recognizing mental injuries.
Justice Brown, in a unanimous decision of the Court, stated that, where mental injury is negligently inflicted, a person’s autonomy to make choices to live life and pursue goals is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury, perhaps even the loss of a finger.
The plaintiff was involved in five motor vehicle accidents. The trial addressed his second accident, which was seemingly minor. The plaintiff led evidence from his friends and family that, after the accident, his personality changed for the worse. He was once a funny, energetic, and charming individual, but he became sullen and prone to mood swings following the accident. His relationships with family and friends deteriorated. He complained of headaches.
The trial judge concluded that the plaintiff had not demonstrated any physical injury resulting from the accident, but he found that the accident caused the plaintiff psychological injuries, including a change in personality and cognitive difficulties. There was no expert evidence to support this. The plaintiff was awarded $100,000 in non-pecuniary general damages.
The British Columbia Court of Appeal overturned the trial judgment. The Court of Appeal stated that the plaintiff had not proven a medically recognized psychiatric or psychological illness or condition, and that such an illness or condition must be demonstrated by expert medical opinion evidence.
The Supreme Court of Canada held that expert evidence is not required to prove a mental injury and restored the trial judgment.
The Court noted that mental injury has historically been treated with suspicion and sometimes outright hostility. The Court indicated that the stigma faced by people with mental illness is notorious and often unjustly and unnecessarily impedes their participation in civil society.
The Court held that the objectivity, certainty, and predictability of psychiatric tests are overstated. While, for treatment purposes, an accurate diagnosis is important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but rather with symptoms and their effects.
At the same time, the Court indicated that mental injury is not proven by the existence of mere psychological upset. Happiness is not a legal right. Plaintiffs must show much more, in particular, that the disturbance suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. The injury must be reasonably foreseeable.
Although expert evidence is not required to establish a mental injury, the Court pointed out that it could be of assistance, and that plaintiffs run the risk of being found to have fallen short if they do not present expert evidence.
Moreover, the Court noted that it remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident could not have caused any mental injury, or at least any mental injury known to psychiatry. While the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
In light of the Supreme Court’s decision, we anticipate seeing many more plaintiffs advance claims for mental injuries, including a change in personality. It should be of some concern to defendants and insurers that the Court agreed that an award of $100,000 for non-pecuniary general damages is reasonable for such injuries.
The Insurance Bureau of Canada (IBC) was an intervener on the appeal. In its factum, the IBC argued that an objective threshold is required to screen claims for mental distress. It also argued that the elimination of an objective medical standard would expand the liability of defendants and increase the volume of claims.
The IBC further submitted that, without an objective standard, courts would be flooded, trials would be lengthened, the costs of litigation would increase, insurance premiums would rise, and the risk of insurance fraud would be heightened. The Court appears to have given little credence to these arguments.
Only time will tell whether these concerns are borne out, but the Court’s decision is one that defendants and insurers will need to pay attention to.
In cases where a plaintiff alleges mental injury, it would be wise to consider retaining a defence psychiatry or psychology expert to rebut the alleged injury, even if the plaintiff has not retained such an expert. Although the defence expert’s opinion will not be determinative, it could be persuasive, especially in actions tried by a jury. Surveillance should also be strongly considered in such cases.
February 2021:
Additional/Alternative Queries:
1. Where does the Court draw constitutional authority to legislate, effectively, the cap on pain and suffering damages? Is the cap not policy and is therefore within the exclusive authority of the Legislature? Did the Court exceed its jurisdiction or role in a constitutional democracy?
2. In the event of a challenge to a judicial setting aside or reduction of a jury verdict, where does the Court draw constitutional authority to substitute a jury verdict - assuming the unlikely constitutional authority to legislate? Does exceptional judicial jurisdiction of "inherent jurisdiction" permit this (noting that only s. 106 Superior Court has such general or inherent jurisdiction while the Supreme Court of Canada has a statutory and not inherent jurisdiction)? (Consider a review of Whiten v. Pilot, ONCA and SCC decisions; of SCC rejection(s) of prior challenge(s) to the cap cited below.)
January 2018:
Jones v. Hanley and Jones v. Livska, 2018 ONSC 145 CanLII, Sweeny J.:
[11] As Lang J.A. noted in Rizzi v. Mavros, 2008 ONCA 172 (CanLII), at para. 33, “A cap on non-pecuniary damages was imposed for policy reasons relating to the heavy financial burden that otherwise would result from excessive awards.”
Query: Does the Supreme Court not say that policy is for the legislature and not the court? Then why would the Court of Appeal above accepts that the Supreme Court could impose a cap for "policy" reason?
July 2017:
The recent reported settlement of a Guantanamo detainee by the Government of Canada in the amount of $10.5 million for breaches of his constitutional rights. Does this seem fair and reasonable when a severely injured Canadian who is sentenced to a lifetime of pain and suffering as a result of personal injury caused by a government is capped out currently at under $400,000? Is the cap arbitrary? Is it justifiable or constitutional?
May 2017:
Trial lawyers have noted that while the cap applies to ALL personal injury pain and suffering damages, regardless whether damages are caused by intentional infliction, product malfunctioning, or accidents including accidents caused by government employees or institutions, the cap does NOT apparently apply to reputational injury in libelous actions, or wrongful imprisonments, among possibly others. Injured by WORDS can cause more pain and suffering than physical, permanent, pervasive pain of the wheel-chair dependent or catastrophically injured?
From a blog with OTLA, the following observations were shared:
- Pain and suffering damages can be calculated in a more objective and quantifiable way. The calculations do not have to be a “philosophical and policy exercise more than a legal or logical one,” as the Supreme Court put it. In the United States, pain and suffering damages are not capped, and juries are sometimes asked to value pain and suffering in ways that are quite logical:
- A jury can put an hourly value on the pain and suffering and calculate it over a lifetime.
- The jury can use a multiple of the economic damages - as losses to health, independence, and quality of life often pale in comparison to the economic losses.
Despite the challenges in calculating damages and concerns about predictability, should a just and caring society tell a quadriplegic “Your pain is only worth $366,000”? Presently, that is exactly what we have to tell our clients.
March 2017: As a different approach, to raise awareness and attention to this issue, this is a topic of an ideas contest being considered on this site as of March 2017.
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Update June 2013: Preliminary discussions with a leading Charter expert appear to suggest that a Charter challenge under section 7 (right to liberty and security of the person) might have some merits. Should this issue be part of an injury justice course at a Canadian law school, in order for the next generation of lawyers to do comparative research and analysis?
The Centre believes that in the British Columbia decision in Lee v. Dawson (where a 2 million pain and suffering award by a jury was drastically reduced to the Trilogy cap), no Charter argument was raised before the Trial Judge when the award was reduced. On appeal to the BCCA, it appears that the only Charter argument was under section 15 (equality right). The SCC dismissed the Leave Application without reasons. It appears therefore that the dismissal by the SCC could have been on the ground that Charter arguments were not raised properly on record, or, that it was obvious to the SCC that section 15 argument must fail. The Centre believes that section 15 might not have offered the best argument. Section 7 appears more promising.
The Centre also notes that (1) the jury disagreed with the trilogy, suggesting the trilogy is out of touch with Canadians, and hence is contrary to principles of fundamental justice; (2) the cap on pain and suffering is inconsistent within Canadian jurisprudence where damages to reputation is assessed higher than the pain and suffering cap (Hill v. Church of Scientology, and Young v. Bella), suggesting mental anguish in libel cases deserve more than mental anguish and severe constant physical pain, combined, in personal injury cases; and (3) even the BCCA in Lee suggested it might be time to review the pre-Charter policy decision in the Trilogy to cap pain and suffering.
For the foregoing observations, The Centre believes the opportunity to raise a fresh Charter challenge remains under section 7 or as a combination with section 15 (due to the discrepancy between libel damages and general pain and suffering damages).
Update August 2013: An interesting reference to section 15 with citations of recent SCC jurisprudence was made by the Divisional Court in Gyorffy v. Drury, [2013] O.J. No. 310, July 2, 2013 at para. 39 and is reproduced here to facilitate further review. The decision is apparently being further appealed to the Court of Appeal [appeal dismissed by CA, 2014]:
"Under the Charter, equality is compromised when differential treatment perpetuates disadvantage: R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 at paras. 17, 23-24; Quebec (Attorney General) v. A, 2013 SCC 5, 354 D.L.R. (4th) 191 at paras. 323-325. As Justice Abella recently summarized, this assessment requires "a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group." (Quebec at para. 331) While, as the intervenor submitted, this is not a Charter challenge, it is an accepted principle of statutory interpretation that, in the face of two competing interpretations of a statute, the interpretation which is consistent with the Charter values should be adopted: R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531 at para. 20. See also Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at pp. 238-241."
Update Fall 2014:
In Francis and Dominion, FSCO 2014, Arbitrator Feldman held that provisions which altered the SABS-1994 LECB provisions, removing substantive rights to LECBs for many young persons, did not violate sections 1 or 15 of the Charter. The decision is under appeal.
Update February 2015:
For broader informational background, it appears that the following cases have failed to established a violation of s. 15, in the Statutory Accident Benefits context in Canada: Hernandez v. Palmer (1992) 15 C.C.L.I. (2d) 187 (Ont. Ct. (Gen. Div.)); Morrow v. Zhang, 2009 A.B.C.A. 215 (CanLII) (Alta. C.A.); Hartling v. Nova Scotia (Attorney General), 2009 N.S.C.A. 130 (CanLII) (N.S. C.A.); Flood v. Ouellette (2007), 280 D.L.R. (4th) 640 (N.B. C.A.)
Recently, there is a challenge in Ontario on the constitutionality of Bill 15 which abolishes FSCO while establishing the License Appeal Tribunal with per diem arbitrators as the sole forum to adjudicate the facts of auto injury cases including catastrophic cases. It appears that s. 7 should be added, rather than only section 15 being presently advanced given the lack of security of tenure implies a lack of independence in decision making, sufficiently impairing the right to impartial adjudication in matters fundamentally affecting life, liberty and security of the seriously injured victims.
Update March 7, 2015:
Consistent with our sense that section 7 of the Charter may offer more support to protecting the rights of injured victims, we note the following article "Section 7: The New Section 15?" by Blakes (Paul Schabas, Kaley Pulfer & Umair Abdul), at http://blakesfiles.com/Articles/2012_Paul_Schabas_Section_7_New_15_EN.pdf.
Furthermore, we note the foremost constitutional expert in Canada, Professor Peter Hogg has written
“The Brilliant Career of Section 7 of the Charter ” (2012), 58 S.C.L.R. (2d) 195, of course a must read.
Professor Hogg's 2012 paper was promptly cited by the Supreme Court when it unanimously (9-0) struck some provisions in the Criminal Code relating to prostitution as unconstitutional, under section 7: Canada A.G. v. Bedford, 2013 SCC 72 (December 20) https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13389/index.do
For ease of reference, parts of the Charter read:
15(1). Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
7. Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the
principles of fundamental justice.
Introduction
We would also note that research should be done into those FSCO cases which have examined the jurisdiction and scope of FSCO vs. judges of the Superior Court of Justice, to further appreciate the operational context of FSCO vs. the SCJ within the constitutional context of the right to impartial adjudication by a judge under section 96 of the Constitution.
Update April 22, 2015:
A new SCC case from criminal law R. v. Nur to study. It appears that arbitrary law is struck down by the SCC under the Charter. Why is the trilogy cap not arbitrary? The cap has been held that given it is a rule of law that lower courts must apply: Sopinka J. Furthermore, a Charter analysis per se was not carried out in Lee v. Dawson, above, but only the less rigorous "Charter values" analysis, given the dispute in Lee is between private parties. Is a rule of law (the triology) subject to the Charter? Or is the SCC going to say that the Court is not a "government" and is therefore above the Charter?
Also to consider that in Manitoba and Quebec it appears that there is no right to sue in tort. The legislative decision to so enact law, despite the appearance of arbitrariness, is as a result of democratic will. It does appear hard to challenge the absence of some compensation law as being contrary to the Charter.
Some U.S. States have struck down caps on pain and suffering damages as contrary to the right there to a jury trial, as such caps unconstitutionally fetter the power of the jury. While there is no constitutional right to a jury trial in Canada in the Charter, this does not necessarily mean that the Courts can create trilogy law, restricting jury verdicts as it did in Lee, without the oversight of the Charter?
Criminal Law: Mandatory Minimums
R. v. Nur (R. v. Charles), 2015 SCC 15 (35678) (35684)
The Court of Appeal held that the mandatory minimum terms of imprisonment in s. 95(2)(a) resulted in grossly disproportionate sentences in reasonable hypothetical cases at the licensing end of the s. 95 spectrum, and therefore held that they violate s. 12 of the Charter . However, the Court of Appeal held that the sentences imposed on N and C were appropriate and should be upheld."
The S.C.C. (6:3) dismissed the appeals.
Chief Justice McLachlin wrote as follows (at paras. 4-5, 62-65, 77, 117):
" I agree with the Court of Appeal that the mandatory minimum sentences imposed by s. 95(2) (a) of the Criminal Code violate s. 12 of the Charter . Accordingly, the mandatory minimum sentences in s. 95(2)(a) of the Code are null and void under s. 52 of the Constitution Act, 1982 . In most cases, including those of Nur and Charles, the mandatory minimum sentences of three and five years respectively do not constitute cruel and unusual punishment. But in some reasonably foreseeable cases that are caught by s. 95(1) they may do so. This has not been shown to be justified under s. 1 of the Charter . It follows that s. 95(2) (a) is unconstitutional as presently structured. This conclusion makes it unnecessary to consider the respondents’ arguments that s. 95(2) (a) violates s. 7 of the Charter .
This does not prevent judges from imposing exemplary sentences that emphasize deterrence and denunciation in appropriate circumstances. Nur and Charles fall into this category. Like the Court of Appeal, I would uphold the sentences imposed by the trial judges in their cases.
…
The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicial experience and common sense. The judge may wish to start with cases that have actually arisen ... and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remote situations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense. Laws should not be set aside on the basis of mere speculation.
Not only is looking at the law’s impact on persons whom it is reasonably foreseeable the law may catch workable — it is essential to effective constitutional review. Refusing to consider reasonably foreseeable impacts of an impugned law would dramatically curtail the reach of the Charter and the ability of the courts to discharge their duty to scrutinize the constitutionality of legislation and maintain the integrity of the constitutional order. The protection of individuals’ rights demands constitutional review that looks not only to the situation of the offender before the court, but beyond that to the reasonably foreseeable reach of the law. Testing the law against reasonably foreseeable applications will prevent people from suffering cruel and unusual punishment in the interim until the mandatory minimum is found to be unconstitutional in a particular case.
Refusing to consider an impugned law’s impact on third parties would also undermine the prospect of bringing certainty to the constitutionality of legislation, condemning constitutional jurisprudence to a wilderness of single instances. Citizens, the police and government are entitled — and indeed obliged — to know what the criminal law is and whether it is constitutional. Looking at whether the mandatory minimum has an unconstitutional impact on others avoids the chilling effect of unconstitutional laws remaining on the statute books.
I conclude that a mandatory minimum sentence may be challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations. The constant jurisprudence of this Court and effective constitutional review demand no less. In the result, a mandatory minimum sentencing provision may be challenged on the basis that it imposes cruel and unusual punishment (i.e. a grossly disproportionate sentence) on the particular offender before the court, or failing this, on the basis that it is reasonably foreseeable that it will impose cruel and unusual punishment on other persons.
…
In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and rules of constitutional interpretation, which seek to determine the potential reach of a law; is workable; and provides sufficient certainty.
…
Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness — such as those engaged in criminal activity or conduct that poses a danger to others — and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct attracting less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate. The government has not discharged its burden on this branch of theOakes test. There are less harmful means of achieving the legislative goal."
Update July 2015:
In late 2010, a Vancouver Jury handed out one of the largest injury awards in British Columbia’s history. In that case (Ciolli v. Galley), the award included $6.5 million for non-pecuniary damages After being advised of the triology cap, the Jury was mandated to reduce their award of non-pecuniary damages to this maximum of $327,000, adjusted to inflation at the time. More evidence of the cap being out of line with community standards.
Hinse v. Canada (AG): On June 19, 2015, the SCC dismissed a Quebec appeal from a decision which reversed a Superior Court decision granting a man $1.9 million in non-pecuniary damages far exceeding the cap, who spent about 5 years in jail in the 1960's per SCC headnotes at link below: "The Superior Court allowed the action and ordered the AGC to pay H a total of almost $5.8 million. It found, pursuant to the Crown Liability and Proceedings Act, that the Minister was subject to Quebec’s rules of civil liability, that he was not protected by any immunity, that he had committed a fault of “institutional inertia” or “institutional indifference”, and that a sustained, concerted and extensive review would have uncovered the errors. It ordered the AGC to pay H more than $850,000 for pecuniary damage and $1,900,000 for non‑pecuniary damage, as well as $2,500,000 in punitive damages. It also found that the AGC’s conduct at trial had amounted to an abuse of process and ordered him to pay $100,000 for fees H had paid to the first law firm that had represented him, as well as $440,000 for the value of the services rendered by the second even though that firm had never billed him for fees, as they had entered into a pro bono agreement. The Court of Appeal reversed the judgment.
https://www.canlii.org/en/ca/scc/doc/2015/2015scc35/2015scc35.html
Update July 29, 2015:
In the Ontario C.A. decision of Somers, the Court held at 57-58, with regard to the cap, that "In essence, therefore, the cap is a judicially imposed limit or restriction on liability for non-pecuniary damages. It is a device developed in Canada to avoid excessive and unpredictable damages awards concerning non-pecuniary losses and the corresponding burden on society which follows from such awards...."
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