Next Post →. Dog bites; and 5. AIG’s actions established a pattern of abuse as punitive damages of $60,000 had previously been awarded against AIG for undertaking a similar action in another case. ), Fidler v. Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). Vancouver, British Columbia V6B 2L3 The defendant’s strategy had also been known and approved by middle and senior management. The landmark decision determined conclusively that evidence of a “recognized psychiatric injury” is no longer required to substantiate an award of … 2139 (Ont. Therefore, an individual may be awarded punitive damages even if the court rules that the insured is not entitled to any form of coverage (seeSaskatchewan Government Insurance v. Wilson, 2012 SKCA 106). No other provincial appellate court or Supreme Court of Canada decision since Fenn has upheld an award of non-pecuniary damages above the trilogy’s upper limit cap because the plaintiff experienced more pain and suffering than the plaintiffs in the trilogy cases. 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. At the time, he was working for a subsidiary of Cameco Corp., a Saskatchewan-based company. Currently, the range for punitive damages in Canada is between $50,000 to $1 million. In most cases and states, suing for emotional distress damages must be done in conjunction with a physical injury lawsuit, as opposed to emotional distress that was not caused by an injury or accident. Her husband claimed loss of consortium. A decision by an insurer to refuse payment should be based on a reasonable interpretation of its obligations under the policy (Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30). 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. 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. In Canada, the factors which are analyzed to determine an appropriate award are: 1) the plaintiff’s age, 2) the nature of the injury, 3) the severity and duration of the pain, 4) the level of the disability, and 5) the loss of lifestyle or impairment of life (Stapley v. Hejslet, 2006 BCCA 34 at para. Suing for emotional damages, or “pain and suffering,” has long been a routine tag-on in personal-injury cases. Consequently, Justice Dickson for the Supreme Court of Canada imposed a conservative upper limit on non-pecuniary damages: I would adopt as the appropriate award in the case of a young adult quadriplegic like Andrews the amount of [CDN]$100,000. Cases that are Exempted from the Upper Limit Cap. (3rd) 266 (Ont. Damages for Mental Distress in Employment Law Cases after Keays v. Honda Canada Inc. ]): There is no evidence before us that this type of case has any impact on the public purse, or that there is any crisis arising from the size and disparity of assessments. [Fenn]). The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months. Depression. The purpose of an award of damages in a wrongful dismissal action is to compensate. Patricia is the president-elect of Canadian Defence Lawyers and has developed numerous CLE programs for CDL in addition to making presentations on insurance defence issues. The courts recognize emotional distress as a type of damage that can be recovered through a civil lawsuit. It requires an “actionable wrong” in addition to the breach of contract. In Quach v. Mitrux Services Ltd., 2020 BCCA 25 (Quach), the British Columbia Court of Appeal overturned the trial court’s decision to award aggravated damages to an individual whose job was terminated before his … “Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar non-pecuniary loss” (Andrews at pp. Notwithstanding the striking of the award of damages for negligent and intentional infliction of mental distress, the court awarded damages for Ayotte’s assault and battery in the amount of $15,000.00, and for mental distress in the amount of $45,000.00. ), Kogan v. Chubb (2001), 27 C.C.L.I. can i sue for emotional distress in Canada? A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. Only time will tell whether the Canadian courts will limit the maximum amount of punitive and aggravated damages awarded in the future. The Supreme Court of Canada’s decision on June 29, 2006 in Fidler v. For a brief period after the Supreme Court of Canada handed down the trilogy judgment, there was uncertainty as to whether the upper limit was a strict rule of law or merely a guideline to be used in future cases. A tort claim is a legal claim for damages caused by the wrongful act (or tort) of another person. All this would change when the Supreme Court of Canada released a judgment awarding $1 million in punitive damages in a first party bad faith insurance case (Whiten v. Pilot Insurance Co., 2002 SCC 18 [Whiten]). 229 (SCC) [Andrews]; Thornton v. School District No. Ontario Superior Court At trial, Ayotte was found personally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering. Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians. Following the Whiten decision, the number of bad faith claims made against insurers has increased but the punitive damage awards remain conservative. 287 (SCC) [Arnold]) (the “Trilogy”). With respect to non-pecuniary damages, the Supreme Court of Canada, Canada’s highest court, implemented a series of rulings in the late 1970s which affected the way non-pecuniary damages were awarded. Levy and Monty Verlint on. The History and Treatment of Damages in Canada, Patricia J. Armstrong Sopinka J. indicated that when a jury awards an amount exceeding the upper limit, the court should lower it to the amount of the cap. On January 19, 1978, the Supreme Court of Canada tackled this issue head-on by ruling on a trilogy of cases to limit the maximum amount of non-pecuniary damages a plaintiff could receive in a civil action (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. Many other jurisdictions around the world seek to compensate a victim from loss arising from pain and suffering. (3rd) 16 (Ont. 216). Deterrence is required. We have a right to fear a situation where none but the wealthy could own or drive automobiles because none but the wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards (Arnold at p. 28). The judge in the Merrifield case observed that it is similar to the tort of harassment, but with a couple of distinctions. The plaintiff in this case was a welder who was permanently injured when he dropped a heavy steel plate on his foot. Generally, punitive damages are imposed in rare circumstances where there has been high-handed, malicious, arbitrary or highly reprehensible misconduct that departs markedly from ordinary standards of decent behaviour. During the 20th century, Canadian courts remained modest in their punitive damage awards against an insurer for acting in bad faith. 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. 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. In Godwin v Desjardins Financial Security Investments Inc.[1], the Supreme Court of British Columbia found that the Insurer breached its duty of good faith by failing to assess the plaintiff’s disability claims in a fair and balanced manner. In contrast, aggravated and punitive damages in bad faith claims have not been limited by the courts. The professor reported her suspicions to a number of authorities and community figures but was later discovered to be wrong in her finding. Non-pecuniary damages were not, in the direct sense, compensatory in nature as no amount of money can replace the pain and suffering of the plaintiff. In addition to the contractual obligation to pay the claim, insurers have a distinct and separate obligation to deal with its policyholders in good faith. Before 1996, all “personal” damages were tax-free, so emotional distress and defamation produced tax-free recoveries. As the numbers currently stand in Canada, the upper limit for non-pecuniary damages is approximately $360,000. Mental Distress and Punitive Damages In citing the Supreme Court of Canada Fidler decision, 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. It must not deny coverage or delay payment in order to take advantage of the insured’s economic vulnerability or to gain bargaining leverage in negotiating a settlement. Similarly, a case involving a loss of reputation resulted in $430,000 in non-pecuniary damages being awarded (Young v. Bella, 2006 SCC 3 [Young]). Medical malpractice; 4. The duty of good faith has since been adopted by Canada and continues to be imposed in contracts, especially those between an insured individual and an insurance company. She is also Vice Chair of DRI International for the Defense Research Institute. In suitable cases, courts can award these damages. 79 at p. 29 [ter Neuzen]). The plaintiff suffered severe brain damage resulting in physical and mental impairment. 1130 (SCC) [Hill]). Furthermore, non-pecuniary damages did not violate equality rights as it was not meant to fully compensate the plaintiff for all the injuries sustained. The Court found that the claims examiner denial of benefits was severely flawed as “she was looking for reasons to deny coverage, even to the point of manufacturing reasons, rather than trying to find a basis in the evidence for paying the claim”. Employees who are wrongfully dismissed may be entitled to damages for mental distress if they can show that the manner of dismissal caused them mental distress that was in the contemplation of the parties. Unintentional torts include things like: 1. 217 (Nfld. The courts are beginning to respond by awarding increasingly higher damages under this heading. 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. 108 (SCC)), it was agreed upon that the $100,000 cap would be adjusted at the rate of inflation to determine the upper limit at the time of trial. The tort of intentional infliction of mental suffering has existed in Canada for many years. The amounts awarded would instead be considered additional money to help the plaintiff in making his or her life more endurable. CRY ME A RIVER: RECOVERY OF MENTAL DISTRESS DAMAGES IN A BREACH OF CONTRACT ACTION A U.S./CANADA COMPARISON by Ronnie Cohen* and Shannon O’Byrne** I. Mental anguish lawsuits seek damages for the pain and suffering resulting from another person’s negligent or intentional conduct. Raising the Limit of Punitive and Aggravated Damages. [1] Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 (CanLII), [2] Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 SCR 3,  2006 SCC 30 (CanLII), Frequently Asked Questions regarding Canada Pension Plan Benefits, Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim, James Cameron and Morgan Rowe Present on LTD Benefits, RavenLaw to Host Conference on LTD Claims in the Federal Public Service. Emotional distress is a type of mental suffering or anguish induced by an incident of either negligence or through intent. In Arnold v. Teno, [1978] 2 S.C.R. The range for aggravated damages is between $10,000 and $100,000, and the range for punitive damages is between $50,000 and $1 million. In contrast, emotional distress claims in Canada are subject to limits established by the Supreme Court in the 1970s. In ter Neuzen, a jury awarded $460,000 in non-pecuniary damages. 679 (BCCA)) with the main argument being that the upper limit violated Section 15 of the Canadian Charter of Rights and Freedoms (the right to equality). 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. The ratio in the Whiten case was 3:1 ($1 million punitive vs. $345,000 compensatory). The rulings have had longstanding social implications. As a general principle in Canada, damages for mental distress resulting from a breach of contract are not normally awarded. What is the Process of Suing For Emotional Distress Canada? These situations created inequality which breached Charter values and rights. Lindsay LLP In Articles // No. Her family doctor indicated that the plaintiff’s chances of going back to work were “extremely good” but that the plaintiff should not go back to her former employment. The Court of Appeal may ultimately lower the amount of damages to reflect the average range in Canada. It is in this area that awards in the United States have soared to dramatically high levels in recent years. ter Neuzen’s “rule of law”judgment most likely contributed to the dearth of awards exceeding the upper limit due to the “exceptional circumstances” of the plaintiff. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”. ... Intangible elements such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, fear of repetition. If there is no evidence to indicate that society would suffer an economic burden from the award, such as an increase in insurance premiums, the upper limit cap appears not to apply. The lawyer was awarded $300,000 in general damages. He awarded punitive damages of $1.5 million and aggravated damages of $150,000 against AIG, and punitive and aggravated damages of $3 million and $300,000 respectively against Zurich. In Whiten, the plaintiff and his family sought insurance coverage after the plaintiff’s house completely burned down on a cold winter night in Ontario. Justice Acton showed an immense amount of disapproval for the actions of the two insurance companies. C.A.) 30 [S.Y. The court awarded the plaintiff damages in the amount of one school year’s tuition for breach of the contract of instruction, and in an interesting move, also granted her contractual damages for mental distress, arising from her expulsion. The context in which bad faith claims fall within the realm of punitive and aggravated damages is explained below. On the other hand, if the damages are upheld in the Court of Appeal and Supreme Court of Canada, the ripple effect of a higher ceiling for punitive and aggravated damages would be felt throughout the country. On this basis, he awarded $100,000 in damages for mental injury. The claims examiner repeatedly failed to analyze and to weigh the evidence before her, and applied a test for disability that went beyond the Total Disability definition set out in the insurance policy. In Canada, the duty of good faith requires an insurer to act fairly in investigating and assessing the claim, and in deciding whether to pay the claim. (1996), 78 B.C.A.C. (2nd) 61 (BCSC)). The amount and availability of such damages is subject to the upper limit for such an award established by the Supreme Court of Canada in 1978. Damages may be awarded in other headings to provide equality in the amount of compensation a plaintiff receives in a negligence case. The Supreme Court of Canada noted that: Insurance contracts are sold by the insurance industry and purchased by members of the public for peace of mind. In 2003, Lee v. Dawson, 2003 BCSC 1012 attempted to challenge the upper limits of non-pecuniary damages. As of the writing of this paper in April 2014, the upper limit is calculated to be approximately $360,000. For now, however, the decision of the Saskatchewan Court of Queen’s Bench is not binding on other provincial courts in Canada. 274 (Ont. 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. Finally, the plaintiff was said to have misapprehended the reason behind the upper limit, which was to prevent excessive awards and the societal consequences stemming from them. The claims examiner denied the plaintiff’s claim on the basis that her condition was not severe enough to cause significant and prolonged psychiatric impairments, despite the fact that the phrase “significant and prolonged psychiatric impairment” is not found in the definition of Total Disability set out in the insurance policy. Until the year 2000, the highest amount awarded was $20,000 (Evans v. Crown Life Insurance (1996) 37 C.C.L.I. The court reasoned that the plaintiff suffered substantially more pain than the plaintiffs in the trilogy cases and thus qualified as an exceptional circumstance. Unintentional torts, which are more common, occur when a person injures another through negligence. v. F.G.C. Most cases, however, fall within the $100,000 to $200,000 range (see Clarfield v. Crown Life (2000), 23 C.C.L.I. Intentional torts are those—like battery, trespass, or intentional infliction of emotional distress—that a person intends to commit. [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]. 1000 – 564 Beatty Street On the other hand, a recent 2013 Ontario case awarded $100,000 in aggravated damages on a disability insurance claim (Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). A breach of the duty of good faith may result in an award of punitive and/or aggravated damages. 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. If you have suffered emotional distress, you are entitled to compensation for your distress and the physical and mental injuries suffered. Interestingly, the court in Whiten chose not to follow the U.S. Supreme Court’s model of using a 1:1 ratio between compensatory and punitive damages. Mr. Justice Dickson found there would not be any unfairness to the plaintiff if an upper limit was imposed. A psychiatrist hired by the insurance company conducted an Independent Medical Evaluation (IME). Currently, the typical range for aggravated damages in Canada is $10,000 to $100,000 but most of the awards fall on the lower end of the spectrum. Although not a Supreme Court of Canada case, the British Columbia Court of Appeal refused to impose the cap on damages for civil sexual assault cases (S.Y. With intentional infliction of mental suffering, in addition to being “outrageous”, the defendant’s conduct must also be “flagrant”. 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. ← Previous Post No. At the time, Fenn appeared to have expanded the upper limit on non-pecuniary damages for personal injury cases, which could have potentially led to an escalation of awards. 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 Canada, aggravated damages are awarded to compensate a party for the mental distress experienced from another party’s misconduct or misbehaviour. Furthermore, any future financial burdens to the plaintiff may be awarded through future loss of income or future care heading of damages. 4312 (Ont. The plaintiff argued that less injured persons who fell below the upper limit would be entitled to full compensation, whereas catastrophically injured persons would be limited by the cap imposed by the trilogy. Traditionally, contractual damages were awarded for … This argument was rejected in relation to damages for defamation in Hill v. Church of Scientology at paras. the employee for breach of the implied term of the employment contract to provide reasonable notice of termination. Mr. Justice Spence noted that part of the exercise undertaken was a social and economic attempt to prevent runaway insurance premiums: The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. 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). British Columbia, Canada: Court of Appeal Sets Aside Aggravated Damages Award in Wrongful Dismissal. Fidler v. Sun Life Assurance Co. of Canada – Supreme Court of Canada – June 29, 2006 An employee is only able to recover damages for mental distress due to the breach of a contract if it can be shown that such damages were within the reasonable contemplation of the parties at the time the contract was formed.. The plaintiff was a paralegal that became disabled due to a psychiatric condition (anxiety and depression). By Rhonda B. Given the inconsistencies in the diagnoses between the medical reports, it was necessary for the claims examiner to ensure that the medical consultant had fairly reviewed the medical reports submitted by the plaintiff to the insurance 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. 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. Chastain v. U.S. Dep’t of the Navy, EEOC Appeal No. See our article: “Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim”. Nonetheless, the insurer held on to its arson theory and relied on the help of an aggressive and confrontational legal counsel. The plaintiff in this case was a university student who was suspected by her professor to be a child sex abuser. In the early 2000s, aggravated damages in bad faith claims increased and reached amounts of up to $75,000 as was awarded in both Ontario and Newfoundland cases (Clarfield v. Crown Life (2000), 23 C.C.L.I. The more devastating the loss, the more the insured may be at the financial mercy of the insurer, and the more difficult it may be to challenge a wrongful refusal to pay the claim. Non-economic damages are psychological and can’t be quantified. The BCSC trial Judge concluded that the Defendant did terminate the Plaintiff’s employment wrongfully, and the Plaintiff was also successful in a claim for aggravated damages (for mental distress) in the sum of $30,000. It appears they will continue to do so in the foreseeable future. In addition to imposing an upper limit, the Supreme Court in Andrews further explained that the amount of non-pecuniary awards should not vary greatly from part of the country to another. Their purpose is not to compensate the plaintiff, but to give the defendant his or her just dessert (retribution), to deter the defendant and others from similar misconduct in the future (deterrence), and to mark the community’s collective condemnation (denunciation) of what has happened (Hill v. Church of Scientology). 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 … As a body of jurisprudence emerges, courts rely on previous case law to determine the appropriate award. The obligation of good faith dealing means that the insured’s peace of mind should be the insurer’s objective, and the insured’s vulnerability ought not to be aggravated as a negotiating tactic. The decision not to follow a ratio for determining punitive damages opens the door for much higher punitive damage awards in the future. 146). Here, the Court found that the defendant insurance company had failed to assess the plaintiff’s Own Occupation and Any Occupation claims in a fair and balanced manner and that these failures went beyond mere errors of judgment or misunderstandings. The “exceptional circumstances” phrase gave an opportunity for particular cases to ignore the upper limit as we have seen with the defamation, loss of reputation, and sexual assault cases. November 18, 2020. The $100,000 upper limit was again imposed in Arnold. As such, the denial of the claim was arbitrary. As mentioned in Andrews, the upper limit may not be surpassed “save for exceptional circumstances”. The cap established for non-pecuniary damages, adjusted for inflation, is currently near $360,000, but only for the most severe cases. This area is open to widely extravagant claims. For breach of the employment contract to provide reasonable notice of termination ” addition! 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