The following guide provides a framework for understanding how, and why, victims are compensated for their injuries in Ontario. The central principle dictating how much an injured party is awarded is called the ‘principle of loss’. Accordingly, injured parties can expect to be given awards for what they lost because of their accident.
Liability and Threshold
To have a valid legal claim, an injured party must demonstrate that another party is liable for their injuries. If the injury occurred in a motor vehicle accident, an injured party must prove that their injuries are both permanent and serious. While this threshold can be intimidating, we know from past cases that ‘permanent’ does not mean forever, and that ‘seriousness’ is based on how the injury effects the person, rather than the seriousness of the injury.
Once an injured party has a claim, there are two primary categories of damages that help courts think about the value of that claim.
General, or ‘non-pecuniary’ damages, focus on aspects of an injured party’s damages such as pain, suffering, and loss of enjoyment of life. General damages are proven better, and are worth more, with consistent supporting documentation, such as doctor’s notes from regular appointments.
In Canada, damages for pain and suffering are capped by common law precedent. This cap rises with inflation and is currently sitting at about $400,000.00. What this means in practice is that victims of the most dire and catastrophic accidents cannot be awarded more than $400,000.00 for pain and suffering. However, there is a second category of damages that will be added on top of general damages.
Special, or ‘pecuniary’ damages, focus on the more provable damages within a claim. Some examples include past and future income loss, medical costs, housekeeping, and home maintenance. Much like general damages, special damages are proven better, and are worth more, with consistent supporting documentation, like receipts and accounting records.
Since the principle of loss dictates that a party will be awarded for what they lost due to their accident, a party who cannot work for one year after their trial can expect one year of their regular salary to be included in the special damages. Similarly, if an injured party spends $1,000.00 on relevant and necessary medical supplies, they can expect those costs to be recouped within the special damages as well.
Reduction of Damages
There are several ways that an award for damages will be reduced by a court. Since the principle of loss dictates that an injured party cannot recover more than what they lost, a court cannot award special damages on top of benefits that were already accrued by the party. For example, a court will not award damages for loss of future income if the injured party has already been paid out by an income continuation benefit plan.
If the injury occurred in a motor vehicle accident, an injured person faces a deductible on their general damages of $40,000.00. This means that if an award of general damages is given at $100,000.00, it is automatically reduced to $60,000.00. However, this deductible does not apply, and does not reduce an award of general damages, if that award is worth more than $130,000.00. Rates are based on prescribed amounts and adjusted each year by the indexation rate (see FSRAO: 2021 Automobile Insurance Indexation Amounts Guidance (updated December 18, 2020); Court Proceedings for Automobile Accidents That Occur on or After November 1, 1996, O. Reg. 461/96, s. 5.1(1); and Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(8.3)).
Finally, the extent to which an injured party contributes to their own injuries may be subtracted from what they are owed. For example, a victim of a car accident cannot recover as much money if they contributed to their own injuries by not wearing their seat belt.
Bogoroch & Associates LLP is experienced in all aspects of personal injury and medical malpractice litigation. We have the confidence and skill to advance your motor vehicle accident or medical malpractice claim to settlement or trial while helping you navigate the complex medical, legal, and insurance issues.
Our experience, commitment to excellence, and reputation have long been recognized. Our founding partner, Richard M. Bogoroch, has been recognized as a leading personal injury lawyer by The Canadian Legal Lexpert Directory and by The Best Lawyers in Canada. The Canadian Legal Lexpert Directory and The Best Lawyers in Canada are two highly regarded lawyer rating publications.