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It used to be the case that we could quite reliably tell our American clients and counterparts two things about Canadian personal injury litigation:
Rachel Cooper
By Rachel Cooper
1. Litigation moves at a frustratingly slow pace; and
2. Our damages are nowhere close to the damages received in the US.
Reframing Claims to Raise the Bar for Personal Injury Damages
Products Liability Law
Canadian Personal Injury Damages Emulating the South by
Creeping North
The first one is still true. The second, however, is changing. In the past couple of years, there have been some decisions that are shifting the personal injury damages landscape in Ontario. Two such decisions are discussed below.
One of the reasons we usually say damages are lower in Canada is Andrews – a personal injury case from the 1970s arising from a motor vehicle accident. The Supreme Court limited the award of general damages (ie. damages for pain and suffering) to $100,000 CAD. Adjusted for inflation, this amount is now over $400,000 CAD.
The Supreme Court established the Andrews cap out of concern that the cost of excessive damages awards would pass onto, and negatively impact, broader society and concern about the inconsistency of awards. Dickson J. explained, on pp. 261-63:
...[T]his 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.
Enter Barker v. Barker, a 2022 Ontario Court of Appeal case about 28 individuals involuntarily admitted to a mental health centre in the 1960s and held in the Social
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