The plaintiff suffered severenervous shock and emotional distress when he witnessed his wife and three children caught in a fire and explosion which destroyed their house. At the time, he was working for a subsidiary of Cameco Corp., a Saskatchewan-based company. In the British Columbia Supreme Court, a jury awarded $2,000,000 to a 15 year old who suffered a traumatic brain injury, severe depression, stunted psychological growth and permanent facial scarring from a motor vehicle accident. Evidence Required for Claims of Mental Distress. [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]. As we have seen, the $100,000 upper limit on non-pecuniary damages imposed in 1978 remains a “rule of law” and is predicted to continue well into the future. Justice Acton believed the $1 million award in Whiten was not sufficient to capture the attention of the insurance industry and hoped a larger award would help them “recognize the destruction and devastation that their actions cause in failing to honour their contractual policy commitments to the individuals insured” (Branco at para. Save in exceptional circumstances, this should be regarded as an upper limit of non-pecuniary loss in cases of this nature (Andrews at p. 21). The rulings have had longstanding social implications. Such damages may arise where the employer attacks the employee’s reputation, misrepresents the reason for the dismissal, or terminates the employee to deprive them of a particular right, such as … One such case where the cap did not apply involved injuries resulting from the defamation of a lawyer by the Church of Scientology (Hill v. Church of Scientology, [1995] 2 S.C.R. The Supreme Court of Canada in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. Slightly over a year after the trilogy, the Ontario Court of Appeal awarded a plaintiff $125,000 in non-pecuniary damages for nervous shock (Fenn v. City of Peterborough, [1979] O.J. In 1996, Canadian courts began awarding aggravated damages against insurers. 217 (Nfld. (1996), 78 B.C.A.C. Following the Whiten decision, the number of bad faith claims made against insurers has increased but the punitive damage awards remain conservative. In citing the Supreme Court of Canada Fidler decision[2], which sets out the rationale for mental distress damages caused by breach of a disability insurance policy, the Court awarded mental distress damages of $30,000 and another $30,000 for punitive damages. No. The Court of Appeal reinforced the BC Supreme Court’s reasoning that the courts are bounded by the trilogy with the upper limit to be applied as a rule of law. Statistically, it is the area where the danger of excessive burden of expense is greatest (Andrews at p. 19). Medical malpractice; 4. Many other jurisdictions around the world seek to compensate a victim from loss arising from pain and suffering. However, it also left the potential to exceed the limit if the plaintiff experienced more pain and suffering than that of the plaintiffs in the trilogy cases. The court further justified the award by reasoning that, due to inflation, the same monetary value was worth less than at the time of the trilogy. In 2003, Lee v. Dawson, 2003 BCSC 1012 attempted to challenge the upper limits of non-pecuniary damages. Had the insurance company been responsible for the entirety of the plaintiff’s psychiatric symptoms, an appropriate award would have been approximately $70,000 to $80,000. The insurer made a single payment of $5,000 to the insured for living expenses under the policy but refused to provide further coverage on suspicions of arson. The purpose of an award of damages in a wrongful dismissal action is to compensate. Submitted: 10 years ago. The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months. In making a decision to refuse payment of a claim, an insurer must assess the merits of a claim in a balanced and reasonable manner. The awarding of non-pecuniary damages in a civil action is by no means unique to Canada. Category: Canada Law. (3rd) 266 (Ont. The cap established for all non-pecuniary damages, which is periodically adjusted to account for inflation, is currently near $360,000. Furthermore, any future financial burdens to the plaintiff may be awarded through future loss of income or future care heading of damages. British Columbia, Canada: Court of Appeal Sets Aside Aggravated Damages Award in Wrongful Dismissal. Nonetheless, the insurer held on to its arson theory and relied on the help of an aggressive and confrontational legal counsel. Given that the calculation of non-pecuniary damages is not an exact science, the Supreme Court of Canada feared that an escalation of these damages would arise from the case law and would subsequently be followed in the future. Only time will tell whether the Canadian courts will limit the maximum amount of punitive and aggravated damages awarded in the future. The plaintiff suffered severe brain damage resulting in physical and mental impairment. A breach of the contractual duty of good faith was thus independent of and in addition to the breach of contractual duty to pay the loss. As explained by Mr. Justice Dickson: 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. Furthermore, non-pecuniary damages did not violate equality rights as it was not meant to fully compensate the plaintiff for all the injuries sustained. These situations created inequality which breached Charter values and rights. It requires an “actionable wrong” in addition to the breach of contract. Aggravated damages cover intangible injuries such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, wounded pride, damaged self-confidence or self esteem, loss of faith in friends or colleagues, and other similar matters. The plaintiff in this case was a welder who was permanently injured when he dropped a heavy steel plate on his foot. Beginning in 1989, a Canadian court for the first time awarded punitive damages against a property insurer in a first party case in the modest amount of $10,000 (Labelle v. Guardian Insurance (1989) 38 C.C.L.I. Slip-and-falls or trip-and-falls; 3. 79 at p. 29 [ter Neuzen]). The Court also noted that the claims examiner’s notes do not give any weight to the fact that the plaintiff’s disability was recognized by Canada Pension Plan Disability benefits. 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