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  1. 1978 trilogy of Supreme Court of Canada decisions
    • Andrews v. Grand & Toy Alberta Ltd (paraplegic)
    • Teno v. Arnold
    • Thornton v. Prince George School District No. 57
  2. Reasons to bring consistency in awards for non-pecuniary damages
    • non-pecuniary claims are virtually limitless
    • damages for non-pecuniary losses are not really compensatory
    • plaintiff will be fully compensated for future loss of income and care costs
    • exorbitant awards for general damages can lead to an excessive social burden
  3. Cases subsequent to the Trilogy
    • Fenn v. City of Peterborough: claimed it was exceptional; $125,000 (inflation, more pain)
    • Lindal v. Lindal: lowered to $100,000 by BC Court of Appeal and Supreme Court
    • ter Neuzen v. Korn (AIDS): Court of Appeal lowered to $100,000; evolved into rule of law
    • Lee v. Dawson: awarded $2M in trial, lowered by Court of Appeal
  4. Arguments why the cap should not apply
    • trilogy states that it's a rough limit, not a strict rule of law
    • no skyrocketing of awards occurred
    • upper limit precludes juries from keeping up with pace of social, economic changes
    • cap inconsistent with modern community values, which are more accepting of disabilities
    • rough upper limit disregards importance of juries
    • establishment of upper limit constitutes a radical change, not incremental
    • cap produces unjust results for plaintiffs whose situations differ from trilogy
    • cap is arbitrary and lacks logical foundation
  5. Cases to which the cap does not apply
    • S.Y. v. F.G.C: sexual assaults
    • Hill v. Church of Scientology: defamation
    • Young v. Bella: missing footnote tags Appellant as sexual offender, forever changing her future by affecting her reputation in the community, ability to complete education, reducing her income-earning capacity
  6. The cap today
    • in 2006, Supreme Court of Canada dismissed a plaintiff’s application for Leave of Appeal without reasons
    • any discussion is speculation, but suggests that the Supreme Court continues to support the rationale for having a cap on general damages
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2014-04-12 16:29:35
Tort & Liability Insurance
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