the recovery of non-pecuniary damages in canada: the cap ... · the cap on recovery, jury trials,...

THE RECOVERY OF NON-PECUNIARY DAMAGES IN CANADA:

The Cap on Recovery, Jury Trials, and other Unique

Considerations for General Damage Awards

D. BRUCE GARROW* KATHERINE L. AYRE*

Conference on International Aviation Liability & Insurance

2009

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TABLE OF CONTENTS

1. INTRODUCTION ..................................................................................................................... 3

2. THE PURPOSE OF GENERAL DAMAGES IN CANADA ................................................... 3

3. THE CANADIAN TRILOGY ................................................................................................... 4 (a) The Current Cap on General Damages and the Reasons for its Development ................... 4 (b) The Cap is here to Stay ....................................................................................................... 6 (c) Challenges to the Cap ......................................................................................................... 7

(i) The Facts of Lee v. Dawson and its Importance ................................................................. 7 (ii) The Arguments made in Lee v. Dawson ............................................................................ 8

4. JURY TRIALS AND THE CAP ON GENERAL DAMAGES .............................................. 10

(a) Requesting the Trial Judge’s Instructions to the Jury Regarding the Cap ........................ 10 (b) How a Trial Judge is to Instruct the Jury on General Damages and the Cap ................... 12 (c) What Happens When a Jury Award Exceeds the Cap ...................................................... 13

5. GENERAL DAMAGES FOR WRONGFUL DEATH IN FATAL ACCIDENT CLAIMS ... 14

(a) Loss of Companionship .................................................................................................... 14 (b) The Lost Years: Estate Claims and the Loss of Expectation of Life ............................... 16

6. NON-PECUNIARY DAMAGES FOR EMOTIONAL DISTRESS ....................................... 17

(a) Emotional Distress and Breach of Contract ...................................................................... 18 (b) Emotional Distress and Tort Actions ................................................................................ 19

(i) The Facts of Mustapha v. Culligan ................................................................................... 19 (ii) The Concept of Foreseeability ......................................................................................... 20

7. AGGRAVATED DAMAGES IN PERSONAL INJURY CASES ......................................... 22

8. APPORTIONMENT OF GENERAL DAMAGES IN MULTI-PARTY DISPUTES .......... 23

9. WHERE THERE IS NO CAP ON GENERAL DAMAGES .................................................. 24

10. CONCLUSIONS.................................................................................................................... 27

Appendix I .................................................................................................................................... 31 Appendix II ................................................................................................................................... 35 Appendix III .................................................................................................................................. 59

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1. INTRODUCTION

In Canada non-pecuniary general damages may be awarded for intangible injuries, such as

pain and suffering, loss of companionship, emotional distress, loss of enjoyment of life, the

loss of expectation of life, and for the egregious conduct of a defendant in some

circumstances. However, the courts have limited recovery under this head of damage, and in

essence, compliance with this monetary limit is now a rule of law in Canada. This paper

explains how general damages are analyzed and awarded in Canada, including the imposition

of the “cap” limiting recovery. This paper also examines specific types of general damage

awards, other than awards for pain and suffering, that call for a unique analysis in Canada.

2. THE PURPOSE OF GENERAL DAMAGES IN CANADA

It is important to note at the outset that in Canada “general damages” is a term of art and must be

distinguished from “special damages.” Specifically, general damages refers to those types of

damages which are not easily quantifiable, such as for pain and suffering, loss of amenities, and

expectation of life. While general damages are natural and probable consequences of a wrongful

act, they lack precise measures or standards of determination.1

*Bruce Garrow is a partner with the law firm of Borden Ladner Gervais LLP in Toronto, Ontario. Katherine L. Ayre is an associate with the firm in Toronto, Ontario. The authors wish to express their appreciation to Do-Ellen S. Hansen, a partner of Borden Ladner Gervais LLP in Vancouver, British Columbia and Marc Reardon and Bruce Karn, students-at-law, for their invaluable contribution to the research of this paper.

Special damages refers to

damages that can be numerically calculated with reasonable precision, such as loss of earnings

and expenses for care incurred before trial. In Canada, general damages serve the purpose of

The citations in this paper are provided according to CANADIAN GUIDE TO UNIFORM LEGAL CITATION (McGill Law Journal, 6th ed. 2006). American cases have been cited in accordance with accepted Canadian standards. 1 The Canadian Encyclopedic Digest (Western) Vol II, Title 44.

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putting the plaintiff in the position she or he would have been in but for the injury.2 However,

our courts recognize that no general damage award can provide full restitution for all

consequences of suffering injury, especially where the injury has resulted in the loss of bodily or

cognitive functions. Accordingly, general damage awards should be viewed as providing

additional monetary support to make life more endurable for the plaintiff.3

General damages are awarded to a plaintiff in a lump sum. And in awarding that lump sum, the

courts attempt to set an amount commensurable to general damages awarded in similar cases. In

the most serious of cases, where general damage awards can be quite significant, the Canadian

limit or “cap” on the quantum of general damages a court can award will come into play.

3. THE CANADIAN TRILOGY

(a) The Current Cap on General Damages and the Reasons for its Development

In Canada, general damage awards for pain and suffering are currently capped at $100,000

and indexed to inflation. Thus, the maximum award currently allowable in 2009 is roughly

$325,000. No matter how serious or catastrophic an injury to a plaintiff may be, Canadian

courts cannot award more than $325,000 in general damages. This cap on damages, was

developed in three 1978 cases decided by Supreme Court of Canada:

(a) Arnold v. Teno4

(b) Andrews v. Grand & Toy5

(c) Thornton v. Prince George

6

2 McIntyre v. Docherty (2009), 2009 ONCA 488 (Can LII).

(collectively, the “Trilogy”).

3 Lindal v. Lindal, [1981] 2 S.C.R. 629.[Lindal v. Lindal]. 4 Arnold v. Teno, [1978] 2 S.C.R. 287 [Arnold v. Teno]. 5 Andrews v. Grand & Toy Limited, [1978] 2 R.C.S. (S.C.C.) [Andrews v. Grand & Toy]. 6 Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267 [Thornton v. Prince George].

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The Trilogy established a cap on general damages in part to have some form of national

consistency in damage awards.7 The cap was also developed to provide a Canadian answer to

the spiralling damage awards that were occurring in the United States at the time. As Mr.

Justice Dickson, writing for the court in Andrews v. Grand & Toy observed:8

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

The concern that the American approach to large general damage awards would encroach into

the Canadian legal landscape, and the associated social concerns with respect to large damage

awards, was also expressed by Spence J. in Arnold v. Teno:9

The very real and serious social burden of these exorbitant awards has been illustrated graphically in the United States in cases concerning medical malpractice. We have a right to fear a situation where none but the very wealthy could own or drive automobiles because none but the very wealthy could afford to pay the enormous insurance premiums which would be required by insurers to meet such exorbitant awards.

However, the best articulation of the need for a cap on general damages arguably does not

come from the Trilogy. Rather, the need to limit general damage awards is perhaps best

articulated by The United States Court of Appeals for the Second Circuit in a case originating

in New York, where no cap for general damages exists. In a parallel consideration of

spiralling general damage awards and the need to limit these awards, the Court in Consorti v.

Armstrong World Industries10

7 Andrews v. Grand & Toy, supra note 5.

reviewed an award of $12 million for pain and suffering to a

plaintiff suffering from mesothelioma having worked with an asbestos manufacturer. The

8 Ibid at 261. 9 Arnold v. Teno, supra note 4 at 333. 10 Consorti v. Armstrong World Industries Inc., 72 F.3d 1003 (2nd Cir. 1995) [Consorti v. Armstrong World Industries].

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Court determined that the award of $12 million at trial was excessive. Writing for the Court

Mr. Justice Leval stated:

When courts fail to exercise the responsibility to curb excessive verdicts, the effects are uncertainty and an upward spiral. One excessive verdict, permitted to stand, becomes precedent for another still larger one. Unbridled, spiralling, excessive judgments predictably impose huge costs on society. A failure by courts to impose limits on jury verdicts would cause serious social dislocation. At the first level, unchecked costs attributable to tort liability, and resultant increases in insurance premiums, would inevitably raise the price of goods and services to the public. More serious exaggeration in unchecked jury awards can cause bankruptcies in productive enterprises, with consequent disappearance of jobs, and even bankruptcies among insurers, leaving segments of society unprotected.11

(b) The Cap is here to Stay

Three years after the Supreme Court of Canada established the $100,000 cap on general

damages in 1978, the issue of whether or not, and under what circumstances, a trial judge

might exceed the rough upper limit for general damages came before the court in Lindal v.

Lindal.12

11 Ibid.

Writing for the court Dickson J. reiterated the concerns for national consistency and

the spiralling damage awards in the United States as supporting the rough upper limit. In

addition, the Court ruled that it was inappropriate to compare the nature of injuries among

different plaintiffs to determine whether or not they were more or less seriously injured than

plaintiffs in the Trilogy. Rather, the amount of the award in any case should not depend alone

upon the seriousness of the injury but on its ability to ameliorate the condition of the victim

considering her or his particular situation. The Trilogy only sets a cap for the most

catastrophic of injuries and the significant damage awards that can arise in those cases. In

other words, the cap is simply an upper limit established in the interest of maintaining

consistency, uniformity and predictability across the country. The Court in Lindal v Lindal

12 Lindal v. Lindal, supra note 3.

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also held that the cap may be increased in response to economic conditions, in particular, the

debasement of purchasing power as a result of inflation.13

Any doubt that the cap is here to stay, at least in the short term, has been laid to rest in two

recent decisions. The Supreme Court of Canada, in the 1995 decision of ter Neuzen v Korn,

Our courts today view the

$100,000 cap indexed for inflation, and today the cap on general damages is approximately

$325,000.

14

stated is very clear terms that the cap is no longer a procedural issue; but rather, it is now a

“rule of law.”15 In the British Columbia Court of Appeal’s 2005 decision in Lee v Dawson16

(c) Challenges to the Cap

the court determined that it could not overturn the cap set by the Supreme Court of Canada’s

Trilogy, despite compelling reasons to do so. Leave to the Supreme Court of Canada was

denied without reasons. Until the Supreme Court of Canada decides to grant leave on the

issue of whether the “cap” should be modified or removed, the cap will continue to limit the

amount of general damages received by a personal injury plaintiff.

(i) The Facts of Lee v. Dawson and its Importance

Lee v. Dawson is important because it was the first time the cap on general damages was

constitutionally challenged as being inconsistent with Canadian equality values. When the

cap on general damages was set in 1978, adoption of the Canadian Charter of Rights and

Freedoms (the “Charter”) was still four years away, so equality rights issues did not then have

constitutional status. Essentially, the plaintiff in Lee v. Dawson argued that a cap on general

13 Ibid. 14 ter Neuzen v. Korn (1995), 11 B.C.L.R. (3d) 201, [1995] 3 S.C.R. 674 [ter Neuzen v. Korn]. 15 Ibid. 16 Lee v. Dawson, [2003] B.C.J. No. 1532 (S.C.), aff’d (2006), 267 D.L.R. (4th) 138 (B.C.C.A.), leave to appeal to S.C.C. denied [2006] S.C.C.A. No. 192. [Lee v. Dawson].

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damages is inconsistent with the equality rights granted in the Charter, and therefore the cap

should be entirely eliminated.

In Lee v. Dawson, Mr. Lee, a 17-year old Korean in 1997, sustained injuries in a motor

vehicle accident, including a mild brain injury, soft tissue injuries to the neck, shoulder, back,

facial disfigurement, impaired psychological growth, and depression. Following a 13-day

trial, the jury assessed damages at $782,000 for loss of future income earning capacity and

$2,000,000 for general damages. The trial judge considered herself bound by the Supreme

Court of Canada’s previous ruling in ter Neuzen v. Korn establishing the cap on general

damages as a “rule of law”, and reduced the jury’s general damage award to $292,600 that

being the cap indexed to inflation at the time. The defendants appealed seeking a further

reduction, and the plaintiff cross-appealed seeking to restore the jury’s initial assessment and

challenging the cap as being contrary to the Charter. The British Columbia Coalition of

People with Disabilities (the “Coalition”) obtained leave of the Court to intervene in support

of the plaintiff’s argument that the cap was contrary to the Charter.

(ii) The Arguments made in Lee v. Dawson

On cross-appeal, the plaintiff and the Coalition argued that the upper limit should be reviewed

or raised, or eliminated altogether, as it contravened the equality guarantees enumerated in s.

15 of the Canadian Charter. Although this action was between private litigants and did not

involve the Government (as is required for Charter challenges to legislation and Canadian

common-law), the plaintiff and the Coalition relied on a body of Canadian case law that holds

that the common law must conform to “Charter values”17

17 Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 [Hill v. Church of Scientology]; Law v. Canada (Minister of Employment & Immigration, [1999] 1 S.C.R. 497.

to argue that the cap set by the

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Trilogy is at odds with those values. Briefly, the plaintiff and the Coalition argued that the

cap results in differential treatment between those seriously injured and those less seriously

injured. The less seriously injured can expect to receive full “compensation” for their non-

pecuniary losses, whereas those with serious or catastrophic injuries have their “pain and

suffering” damages curtailed by the cap. The plaintiff described this differential treatment as

discriminatory as it harmed the human dignity of seriously injured plaintiffs by making them

feel less worthy of concern, respect and compensation.

The defendants on the other hand argued that the court was bound by the doctrine of stare

decisis and the Supreme Court of Canada’s declaration that the cap constitutes a rule of law,

and that courts in Canada had also been applying the cap on general damages for over 30

years by the time Lee v. Dawson made it to the Court of Appeal. Additionally, the defendants

argued that the cap was not arbitrary or inconsistent with Charter values; rather, the cap was

made in reference to the highest non-pecuniary damage awards made in the most catastrophic

cases. It was created to treat like cases alike and inherently insisted on “full” compensation

for those with catastrophic injuries.

In dismissing the cross appeal and determining that the cap on general damages was

consistent with Charter values, the British Columbia Court of Appeal held:

While it seems…that the plaintiff and the [Coalition] have advanced persuasive arguments for revisiting the conceptual basis for the rough upper limit, this Court remains bound by the trilogy….[T]he time may have come for the rationalization or conceptual underpinning for having a rough upper limit on non-pecuniary damages to be re-examined….Some of the submissions…advocating a reconsideration of the rough upper limit seem….compelling but, in the end, this Court cannot overturn the trilogy.18

18 Lee v. Dawson, supra note 16 ¶ 20, 90.

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The Court also dismissed the appeal and upheld the original jury award as reduced by the trial

judge.

4. JURY TRIALS AND THE CAP ON GENERAL DAMAGES

In Lee v. Dawson the trial judge reduced the jury award to uphold the rule of law requiring a

general damage award to be commensurable with the cap. That approach was upheld by the

British Columbia Court of Appeal. As jury trials are available for all civil cases across

Canada, except in Quebec,19

(a) Requesting the Trial Judge’s Instructions to the Jury Regarding the Cap

this leaves us with two questions: given the cap set by the

Trilogy, (1) how is a jury to be instructed; and (2) how should a jury deliberate on general

damages.

In Canada, where present, the jury alone is the adjudicator of fact, whereas the law is to be left

to the trial judge. Therefore, counsel should not discuss the cap on general damages or the

reasons for the cap in their closing submissions to a jury. If counsel does instruct the jury on

the law, it should be unequivocally objected to. If inflammatory remarks, misstatements, or

comments on the law are made during closing submissions and are not objected to, there is no

ground for appeal on those remarks or misstatements. Additionally, it is completely

inappropriate for witnesses to express views on the monetary value to be allowed for general

damages.20

19 Bruce Garrow, Do-Ellen S. Hansen & Meredith L. Parkes, “Damages for Personal Injury and Wrongful Death in the Aviation Context” (Paper, September 2003) at 32; Jeremy Solomon, “A Civil Jury: A Comparative Study of the Selection of Jurors in Ontario and the United States” in Practical Strategies for Personal Injury Lawyers: “Tricks of the Trade”: Plaintiff and Defence Strategies for Success in a Bill 59 Environment (Ontario: The Advocates Society, 2002) (QL) ¶ 29.

20 Gray v. Alanco Devs. Ltd., [1967] 1 O.R. 597, 61 D.L.R. (2d) 652 (C.A.) [Gray v. Alanco].

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That said, counsel can specifically request that a Judge instruct the jury about the cap on

general damages if counsel believes that a “cap case” is before them. In other words, if

counsel believes that the evidence before the court may permit an award close to the limit

allowable by the cap, then counsel may request that the Judge instruct the jury on the cap, and

its effect on general damages before the jury begins deliberation.

There are no set procedures for what counsel is to say to a trial judge in such request for

instructions to the jury. Essentially, a trial judge contemplating instructions to a jury in

catastrophe cases should consider the following:21

1. The trial judge should receive submissions from counsel in the absence of the jury as to whether or not instructions should be provided regarding the general cap. Those submissions can be made in the form of written briefs forming the basis for argument, having regard to the evidence proved at trial.

2. Counsel are not permitted to make submissions regarding damages directly to the jury as that is the function of the trial judge. The submissions are to assist the trial judge in formulating an appropriate range of damages.

3. Depending on what province the jury trial is taking place, if counsel agree on the range of damages and the trial judge is of the view it will be helpful, he or she shall so instruct the jury on the agreed range. It should be made clear to the jury that the range which is being put to them is for their guidance and assistance and is not a hard and fast upper and lower limit.

4. If counsel have requested that the judge not instruct the jury as to the range, the trial judge must not charge the jury respecting the range. However, a judge may always instruct a jury as to the upper limit on general damages that may be awarded in “catastrophe” cases.

In all provinces, if a catastrophe case, or a case involving very serious injuries, is before a jury

the judge may always instruct on the cap. However, if there is a non-catastrophe case before a

21 Junek v. Ede, [1991] 1 W.W.R. 60, 87 Sask. R. 126 (Sask. C.A.) [Junek v. Ede]; Howes v. Crosby (1984), 45 O.R. (2d) 449, 29 C.C.L.T. 60, 6 D.L.R. (4th) 698, 2 O.A.C. 375 (C.A.).

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jury, whether a judge may instruct the jury as to a suitable range of damages depends on

which province the jury trial is held.22

(b) How a Trial Judge is to Instruct the Jury on General Damages and the Cap

In instructing a jury on general damages in a non-catastrophic case, the trial judge should state

in clear and unequivocal terms that it is the jury’s task to determine damages and that the

judge’s function is to assist the jury. The trial judge should make it clear that any range of

damages being put to jury is for its guidance and assistance and is not a hard-and-fast upper

and lower limit, rather, the range is what the trial judge considers appropriate in the

circumstances, having regard to the evidence.23 In a cap case involving catastrophic injuries

the same is true, although the trial judge will likely emphasize the upper limit set by the

Trilogy, as opposed to any range. The difference is that the trial judge must not only inform

the jury of the existence of the cap on general damages, but must also explain the policy

reasons for the cap.24

For example, in Rizzi v. Marvos,

25

22 Ibid.; Gray v. Alanco Devs. Ltd., supra note 20.

the jury awarded the plaintiff $236,494 in damages,

including $41,000 for general damages. The plaintiff appealed and argued that the trial judge

improperly instructed the jury on how to assess non-pecuniary damages. At trial, the judge

told the jury that the maximum pain and suffering award in Canada for a young person who is

quadriplegic was just under $300,000 and that the jury’s range should be somewhere between

zero and $300,000 for the plaintiff’s pain. The Ontario Court of Appeal agreed with the

plaintiff that this was an improper charge and held that the trial judge erred by not explaining

the policy reasons for the cap. In effect, the court held that the trial judge should have

23 Ibid. 24 Rizzi v. Marvos (2008), 236 O.A.C. 4 (Ont. C.A.) [Rizzi v. Marvos]. 25 Ibid.

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instructed the jury that the cap is in place to keep damage awards in check, and the cap is not

intended to invite jury members to believe that certain forms of pain are intrinsically more or

less valuable than others. Similar to the concerns raised by the plaintiff and the intervenor

Coalition in Lee v. Dawson, it would be entirely inappropriate that a jury use quadriplegia or

any other catastrophic injury as the standard against which a fibromyalgia or emotional

distress damage award should be scaled or measured against. The Ontario Court of Appeal in

Rizzi v. Marvos ultimately substituted its own general damage award of $80,000, almost

double the amount of general damages awarded at trial.

(c) What Happens When a Jury Award Exceeds the Cap

Despite the trial judge’s improper jury instructions in Rizzi v. Marvos, the jury did not award

general damages that exceeded the cap set by the Trilogy. But what if it had?26 The answer

lies in the decision of the Supreme Court of Canada in ter Neuzen v. Korn:27

Whether the jury is or is not advised of the upper limit, if the award exceeds the limit, the trial judge should reduce the award to conform with the “cap” set out in the trilogy and adjusted for inflation. While a trial judge does not sit in appeal of a jury award, the trilogy has imposed as a rule of law a legal limit to non-pecuniary damages in these cases. It would be wrong for the trial judge to enter judgement for an amount that as a matter of law is excessive.

As a result of the ruling in ter Neuzen v. Korn, trial judges in all jurisdictions must reduce

general damage awards made by juries where the award exceeds the cap set by the Trilogy.

Furthermore, where a jury award is completely out of proportion to the damages allowed by

the cap, a trial judge in essence has the same jurisdiction as an appellate court to alter the

amount of the award.28

26 ter Neuzen, supra note 14.

27 Ibid. ¶ 127. 28 Ibid.; Lee v. Dawson (2003), 17 B.C.L.R. (4th) 80, 2003 BCSC 1012 (B.C. S.C); see also Vaillancourt v. Molnar Estate (2002), 2002 BCCA 685 ¶ 7-8; Hoskin v. Han (2003), 2003 BCCA 220 ¶ 9.

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5. GENERAL DAMAGES FOR WRONGFUL DEATH IN FATAL ACCIDENT CLAIMS

Civil juries across Canada must deliberate on a variety of heads of general damages, ranging

from pain and suffering to aggravated damages. General damages awarded in wrongful death

claims under fatal accidents or dependents’ relief legislation have a twist depending on the

province in which the claim is brought. General damages in wrongful death claims include

dependent survivor claims for grief, loss of companionship, care, guidance and love.

Wrongful death claims may also include the estate claim for the deceased victim’s pre-death

pain and suffering. However, no claim by an estate for the victim’s loss of expectation of life

is allowed except in the Northwest Territories and Nunavut. Regardless, if the claim involves

a loss of companionship or an estate claim, there are different provincial rules as to this type

of general damage.29

(a) Loss of Companionship

General damages may include survivor claims for loss of care, guidance and companionship,

as well as for grief suffered by the surviving members of the deceased victim’s family.

Generally, such awards are subject to the general damages cap and at the discretion of the

courts unless provincial legislation specifically curtails recovery under this head of general

damage.30 Generally, most of the provincial legislation in this area limits the amount

recoverable for loss of companionship to much less than is allowable by the cap.31

29 Appendix I charts legislation across Canada regarding survival actions by estates of deceased victims, Appendix II charts Canadian legislation as it relates to fatal accident claims by dependents of the deceased.

In Alberta,

general damages for loss of companionship are not only legislated, but they are also

30 Appendix II charts fatal accident legislation across Canada and a claimant’s ability to recover for loss of companionship. 31 Other provincial legislation in the context of minor injuries occurring in motor vehicle accidents also limits the amount recoverable for general damages well below the amount set by the cap. For example, see Alberta’s Insurance Act, R.S.A. 2000, c. I-3, s. 650.1, its corresponding regulations and the recent case of Morrow v. Zhang (2009), 2009 ABCA 215. Similarly, in Nova Scotia there is An Act to Amend the Laws Respecting Automobile Insurance, S.N.S. 2003, c. 1 and Hartling v. Nova Scotia (Attorney General) (2009), 2009 NSSC 2.

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mandatory.32 Specifically, Alberta’s Fatal Accidents Act requires the court to award damages

for grief and the loss of care, guidance and companionship in the amount of $75,000 to the

spouse or adult partner of the deceased person; $75,000 to the parent or parents of the

deceased person if the deceased person was a minor or was an unmarried/un-partnered adult;

and $45,000 to each minor or unmarried/un-partnered child of the deceased person.33

As with Alberta, Saskatchewan has legislation that addresses general damages for wrongful

death recoverable by the deceased’s surviving dependents. Saskatchewan’s The Fatal

Accidents Act

In

short, only the spouse, parent, or child of the deceased person can claim for bereavement

damages, and the categories are closed to “child” meaning a son or daughter (whether

legitimate or illegitimate), and parent meaning only a mother or father.

34 also allows for recovery of bereavement damages. But unlike Alberta, a

spouse, parent or child of the deceased is more broadly defined. In Saskatchewan, a parent

includes a father or mother, grandfather or grandmother, stepfather or stepmother, or a person

who acted as a parent to the deceased. Additionally, a child is defined as a son or daughter,

grandchild, stepchild, or a person to whom the decease acted as a parent.35 In addition to

general damages in Saskatchewan, the court may award pecuniary (special) damages to a

spouse parent or child.36 In addition to the loss of care, guidance and companionship, the

courts in Saskatchewan may also award general damages for grief suffered by the surviving

dependants.37

32 Alberta Fatal Accidents Act, R.S.A. 2000, c. F-8 [Alberta’s Fatal Accidents Act], s. 8.

However, in Saskatchewan the damages for loss of companionship or grief are

33 Ibid. 34 The Fatal Accidents Act, R.S.S. 1978, c. F-11 [The Fatal Accidents Act]. 35 Ibid., s. 2. 36 Ibid., s. 4(2). 37 Ibid., s. 4.1(2).

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capped at $60,000 for a spouse, and $30,000 for each parent, or $30,000 for each child of the

deceased.38

Unlike Alberta and Saskatchewan, there is no recovery for grief in Ontario.39 Awards for the

loss of companionship, care and guidance are available in Ontario and at the discretion of the

Ontario court and always subject to a reasonableness requirement. The Ontario Court of

Appeal addressed this issue head on in Scamolla Estate v. Tenax.40 In this case, the court

considered whether there should be a cap on non-pecuniary damage awards made for the loss

of care, guidance and companionship. The jury had awarded general damages as follows:

$100,000 for the deceased’s daughter, $45,000 to the deceased’s son, and, $373,000 to his

wife. The Ontario Court of Appeal held that these awards could not stand. The Court

explained that though there was no question that the surviving relatives genuinely suffered

enormous grief and mental anguish, “it is well established that losses of that character are not

compensable as a matter of law.”41 Although the court expressed sympathy for the members

of the deceased’s family, it substituted its own award for general damages, and awarded

$35,000 to the deceased’s daughter, $20,000 to the deceased’s son, and $75,000 to the

deceased’s wife.42

(b) The Lost Years: Estate Claims and the Loss of Expectation of Life

Unlike survivor claims for grief or loss of companionship, generally an estate claim for a loss

of expectation of life will fail in Canada. Across this country, with the exception of the

38 Ibid., s. 4.1(2). 39 Alberta, Saskatchewan and New Brunswick specifically allow for the recovery of damages for “grief” suffered by family members, Appendix II. 40 Scamolla Estate v. Tenax Ltd., [1995] O.J. No. 1121 (C.A.) [Scamolla Estate v. Tenax]. 41 Ibid. ¶ 6. 42 Ibid.

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Northwest Territories and Nunavut, the estate of a deceased person cannot make a claim for

lost years. The rationale for disallowing claims for lost years is twofold. The primary

purpose of fatal accident legislation is to put dependants in the same financial position they

would have been in had the deceased lived and continued to provide support. And, allowing

lost years claims pursuant to survival of actions legislation simply results in a windfall to the

estate, and may in some cases lead to overlap and double recovery. If a tort causing personal

injury occurs in either the Northwest Territories or Nunavut, and death ensues, the victim’s

estate may claim for the deceased person’s loss of expectation of life under these Territories’

trustee statutes. Section 31(1) of the Northwest Territory’s Trustee Act43

The executors or administrators of a deceased person may maintain an action for all torts or injuries to the person or to the real or personal estate of the deceased, except in case of libel and slander, in the same manner and with the same rights and remedies as the deceased would if living have been entitled to do.

provides as follows:

The wording is identical wording under the Nunavut legislation. These sections have been

interpreted broadly by both the Nunavut Court of Appeal44 and the Northwest Territories

Court of Appeal45

6. NON-PECUNIARY DAMAGES FOR EMOTIONAL DISTRESS

as allowing an estate to claim for a loss of expectation of life, despite all

other provinces in Canada disallowing such a claim.

The assessment of general damages for emotional distress, such as anxiety and post-traumatic

stress disorder, has also been the subject of considerable analysis by the courts. In Canada, a

claimant must prove not just psychological disturbance or upset as a result of the tort, but also

43 Trustee Act, R.S.N.W.T. 1998, c. T-8, s. 31(1). 44 Caron Estate v. Paneak Estate (2006), 2006 NUCA 4 (Nun. C.A.). 45 Tilson Estate v. Summit Air Charters Ltd., [2007] A.W.L.D. 1219 1217 (N.W.T. C.A.).

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that the psychological disturbance rises to the level of a recognizable psychiatric illness.46

(a) Emotional Distress and Breach of Contract

The main issues regarding general damages for this type of injury also revolve around the

concept of foreseeability.

The Supreme Court of Canada in Fiddler47 held that for a plaintiff to obtain general damages

for emotional distress arising from a breach of contract, such damages must have reasonably

been in the contemplation of the parties at the time the contract was signed. This reflects

adherence to the classic Anglo-Canadian theory of contract damages assessment.48

Essentially, to be able to award contract damages for emotional distress, a court deliberating

on this issue must be satisfied of the following: (a) a purpose of the contract was to secure a

psychological benefit and should a breach of the contract occur, resulting emotional distress

was within the reasonable contemplation of the parties at the time of contracting; and (b), the

degree of emotional distress caused by the breach was of a degree sufficient to warrant

compensation.49 In Canada, “the law does not award damages for…incidental frustration.”50

In addition to emotional distress damages arising from a breach of contract, emotional distress

claims may also arise in a tort action; and again, the issue revolves around the concept of

reasonable expectations or foreseeability. However, the determination of what such

reasonable expectations are is not within a contractual framework, but rather more broadly

46 Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 180 D.L.R. (4th) 748 (Ont. C.A.) [Vanek v. Great Atlantic]; Kotai v. Queen of the North (Ship), (2009), 2009 BCSC 1405 [Kotai v. Queen of the North]; Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 3 [Mustapha v. Culligan]. 47 Fiddler v. Sun Life Assurance Co. of Canada (2006), 2006 SCC 30 [Fiddler] ¶ 44 – 47. 48 Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145 (H.L.). 49 Fiddler., supra note 47 ¶ 47. 50 Ibid. ¶ 45.

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based social norms, such as those that inform assessment of the existence of tort law duties of

care.

(b) Emotional Distress and Tort Actions

(i) The Facts of Mustapha v. Culligan

The concept of foreseeability in the assessment of tort damages for emotional distress was

recently affirmed by the Supreme Court of Canada decision in Mustapha v. Culligan.51 For

approximately 15 years, without incident, the Mustaphas regularly consumed bottled water

produced by Culligan of Canada. However, in 2001, the Mustaphas were replacing a large

bottle on their home dispenser when they noticed a dead fly and part of another fly inside the

bottle. As a result of this incident, the Mustaphas claimed that they both became ill.52 Mrs.

Mustapha claimed that as a result of seeing a fly in a bottle, she suffered severe anxiety,

emotional distress, nervous shock, depression, and the premature birth of her second daughter

with whom she was seven months pregnant at the time. The trial judge dismissed Mrs.

Mustapha’s claim as her reaction did not rise to the level of nervous shock or psychiatric

illness that is required for recovery of emotional distress damages.53

Interestingly, Mr. Mustapha’s claim for emotional distress arising from the manufacturer’s

tort posed more analytic difficulty. After finding a fly in the bottled water, Mr. Mustapha

claimed he experienced immediate nausea with abdominal pain and vomiting, obsessive

thoughts about the incident including the nexus he made between the incident and the

premature birth of his daughter, and chronic phobic anxiety regarding the use of water, which

led him to avoid drinking or washing with it. Mr. Mustapha also claimed depression, reduced

51 Mustapha v. Culligan of Canada Ltd., supra note 46 ¶ 19. 52 In Canada, a manufacturer of consumable goods owes a consumer a duty of care as stated by Donaghue v. Stevenson, [1932] AC 562 (H.L.). 53 Vanek v. Great Atlantic, supra note 46; Kotai v. Queen of the North, supra note 46.

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energy, nightmares, a loss of a sense of humour, and impaired concentration and memory.

Although the trial judge accepted the evidence of Mr. Mustapha in that Mr. Mustapha suffered

from significant depression and anxiety, the issue at trial and on appeal was whether Mr.

Mustapha’s emotional distress should be compensated for by an award of general damages.

Ultimately, that determination hinges on the concept of foreseeability.

(ii) The Concept of Foreseeability

Reasonable foresight of emotional distress is the touchstone of liability according to the

Supreme Court of Canada in Mustapha v. Culligan. The test for reasonable foreseeability is

an objective test, not a subjective one. In other words, the focus should not be on the

individual characteristics and vulnerabilities of the plaintiff; but rather the test is whether or

not, viewed objectively, it is reasonably foreseeable that a person of ordinary fortitude would

suffer a psychiatric injury as a result of the tort. The correct stage at which to apply this test is

after a duty of care has been established and the standard of care has been found to have been

breached. Once a breach has been found, it is then up to the court to consider whether or not

the type of emotional distress suffered is of the nature that warrants compensation,54

1) Culligan owed a duty of care to the consumer as per Donaghue v. Stevenson, and that

it fell below the standard of care in supplying the Mustaphas with contaminated water.

and if so,

whether the emotional distress damages are too remote. In Mustapha v. Culligan, the court

found that:

2) Mr. Mustapha sustained injuries including a serious and debilitating psychiatric

illness. As such, this form of emotional distress could be compensated for by way of

general damages.

54 Ibid.

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3) Causation was established at trial in that Culligan’s breach of the standard of care did

in fact cause Mr. Mustapha’s injuries.

4) However, the question was whether the injuries alleged were too remote to warrant

recovery. In other words, were the injuries and damages foreseeable, or was the harm

too unrelated to the wrongful conduct to hold the defendant “fairly” liable?

This fourth question, which hinges on foreseeability, embodies the principle that the law of

negligence must be fair to both plaintiffs and defendants. Extreme reactions, including

psychiatric illness or emotional distress, caused by negligence, are certainly imaginable, but

not necessarily reasonably foreseeable. The onus is on the plaintiff to prove that a reasonable

person, in the position of the defendant, would realize that an individual of ordinary fortitude

would suffer emotional distress damages, and such distress is a probable risk if the standard of

care is breached. Since Mr. Mustapha failed to demonstrate that it was reasonably foreseeable

that a person of normal fortitude would suffer serious psychiatric injury from seeing flies in a

water bottle, his claim for emotional distress was found not compensable at law. In fact, the

expert evidence indicated that Mr. Mustapha’s reaction was highly unusual and

individualistic.

It is important to note that this test does not remove the thin skull principle from legal analysis

of tort damages for personal injury. If Mr. Mustapha had been able to show that the defendant

had actual knowledge of his particular sensibilities, the ordinary fortitude required would not

necessarily have been strictly applied. In those cases where the evidence demonstrates that

the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury

may be considered to have been reasonably foreseeable to the defendant.

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7. AGGRAVATED DAMAGES IN PERSONAL INJURY CASES

In tort cases, general damages may be awarded to a plaintiff in the form of aggravated

damages, but only if the conduct of the defendant is egregious. Aggravated damages are often

confused with punitive damages, but the two are not one in the same. The conceptual

difference is that aggravated damages are awarded to compensate the plaintiff, whereas

punitive damages are imposed to punish the defendant. Another way to look at the difference

between aggravated and punitive damages is that aggravated damages are awarded for

conduct that shocks the plaintiff; whereas punitive damages arise from conduct that shocks the

trier of fact.55 Because they are a component of general damages, aggravated damages are

subject to the cap created by the Trilogy.56 Punitive damages, on the other hand, need only be

rational and proportionate to the evidence of the harm suffered by the plaintiff and the

advantage gained by the defendant from its conduct. However, an appellate court will always

be entitled to intervene if the award exceeds the boundaries of a rational and measured

response.57 The Ontario Court of Appeal has elaborated on how a court should assess and

award aggravated damages. Essentially the court is to rule on general damages, and then

increase the quantum based on the aggravating factors:58

General non-pecuniary damage should be assessed after taking into account any aggravating features of the defendant’s conduct. The court may separately identify the aggravated damages, however, in principle they are not to be assessed separately. … In cases of negligence, aggravating factors can also be taken into account where the defendant’s conduct recklessly disregards the plaintiff’s rights.

The following are aggravating factors which should be taken into account to determine whether the non-pecuniary damages should be increased: humiliation, degradation, violence, oppression, inability to complain, reckless conduct which displays a

55 Muir v. Alberta, [1996] 4 W.W.R. 177, 132 D.L.R. (4th) 965 (Alta. Q.B.) ¶ 60. 56 McIntyre v. Grigg (2006), 217 O.A.C. 217 (Ont. C.A.) ¶ 47-52. 57 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595. 58 Weingerl v. Seo (2005), 199 O.A.C. 172, 256 D.L.R. (4th) 1 (Ont. C.A.) ¶ 69-70.

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disregard of the victim, and post-incident conduct which aggravates the harm to the victim.

8. APPORTIONMENT OF GENERAL DAMAGES IN MULTI-PARTY DISPUTES

At the outset of this paper, we stated that general damages are awarded in a lump sum form,

which is generally true. However, this is not to say that when there are multiple defendants in

an action who are potentially liable for the general damages, this lump sum cannot be

apportioned amongst the multiple tortfeasors. In all provinces in Canada, liability amongst

multiple defendants is joint and several. However, that may change if there is contributory

negligence on the part of the plaintiff. In most provinces, if the plaintiff is found to have

contributed to the loss, the multiple defendants are only severally liable.59 Ontario and

Manitoba are the exception to this rule so whether a plaintiff is contributorily at fault or not,

all at-fault defendants are jointly and severally liable. Indeed, in Ingles v Tutkaluk, an Ontario

case, the argument that a plaintiff’s contributory negligence should result in the defendants

only being severally liable based on the regimes found in other provinces proved

unsuccessful.60 The Supreme Court of Canada held that the legislation on negligence in

Ontario differs from the other provinces and joint and several judgments are to be awarded to

contributorily negligent plaintiffs. The responsibility for the loss is accounted for in the

apportionment of fault and the Supreme Court of Canada found no reason to account for it

again by denying a plaintiff the benefit of a scheme of joint and several liability when the

wording of the Ontario legislation specifically allows for it.61

59 See Appendix III with respect to the legislation across Canada which governs the apportionment of negligence.

60 Leischner et al v. West Kootenay Power and Light Company, et al. (1986), 70 B.C.L.R. 145 (B.C. C.A.); Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12 [Ingles v. Tutkaluk]. 61 Ingles v. Tutkaluk, ibid. ¶ 58-59.

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Interestingly, in Ontario, the Court of Appeal for this province has held that a court need not

have all parties named in a lawsuit to apportion liability.62 In other words, an Ontario court

has the jurisdiction to apportion fault against a non-party to an action. The Court of Appeal

has also held that a plaintiff can limit a claim to those damages attributable to one defendant’s

proportionate share of fault in cases where an indivisible injury was contributed to by multiple

tortfeasors.63

In addition to the possibility of a court apportioning liability amongst tortfeasors when there is

a non-party, how general damages are apportioned may depend if there is a contract existing

between the multiple defendants. Contracts dividing liability amongst multiple defendants are

acceptable in Canada in the form of a modified Marty Carter agreement or a Pierringer

agreement.

9. WHERE THERE IS NO CAP ON GENERAL DAMAGES

(a) Courts Carving Out an Exception to the Cap

Whether there are multiple defendants in an action, or just one defendant, it is clear in Canada

that the upper limit for an award of general damages for personal injury is fixed. In addition to

the particular treatment courts require when adjudicating on general damages for wrongful death,

emotional distress, and aggravating factors, when general damages are awarded in the most

serious of cases, the Trilogy and its cap must always be applied. Given this fixed upper limit,

plaintiffs with catastrophic injuries may spend more of their time and effort in developing their

pecuniary-loss claims. Disputes over special damages, loss of income, future loss of income,

future care costs, housekeeping costs, and guardianship or financial management fees will be at

62 Taylor v. Canada (Attorney General) (2009), 2009 ONCA 487, 95 O.R. (3d) 561 (Ont. C.A.) [Taylor v. Canada] ¶ 23-29. 63 Taylor v. Canada, ibid.

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the forefront of the fight over damages. Additionally, plaintiffs may try to categorize their claim

as one to which the cap on general damages does not apply. In Canada, there is no cap on

general damages awarded in sexual assault suits as the courts have found that general damages in

cases involving quasi-criminal intentional torts should not be curtailed.64 In addition, there is no

cap on general damages for defamation cases,65 or cases that involve negligence causing

irreparable harm to one’s reputation.66

(b) Administrative Tribunals – Provincial and Federal

Similarly, there may be more latitude given to general

damage claims if they are presented before Canadian administrative tribunals.

A claimant, who wishes to pursue general damages outside of the court context, may choose to

categorize his or her claim as one of discrimination and pursue a remedy through an

administrative tribunal. For example, the Ontario Human Rights Tribunal can, in some cases,

award compensation for general damages such as pain and suffering and discrimination. In

Ontario, a complainant may be entitled to compensation for injury to his or her dignity and self-

respect, as well as for the loss of his or her right to the freedom from discrimination. Although at

common law a cap for general damages for personal injury is currently set at $325,000, in

Ontario, the provincial Human Rights Code does not specify a maximum limit on what the

provincial tribunal may award for this type of injury.67

64 Y (S.). v. C. (F.G.) (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (B.C. C.A.).

Arguably, the common law rules should

apply if the claim is for emotional distress, a subset of personal injury damages to which the cap

would apply. However, there has been no case in Ontario where the damages awarded under the

Human Rights Code have even come close to the maximum allowable under the cap. Similarly

65 Hill v. Church of Scientology, supra note 17. 66 Bella v. Young, [2006] 1 S.C.R. 108. 67 Human Rights Code, R.S.O. 1990, CHAPTER H.19 [Human Rights Code]; Ontario Human Rights Commission, Internal Guide to Processing Complaints, online: The Ontario Human Rights Commission http://www.ohrc.on.ca/en/.

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in British Columbia, up until 1992 there was a $2,000 cap on general damages that the British

Columbia Human Rights Tribunal could award for injury to dignity. That cap has since been

removed, and general damage awards made by this tribunal have been steadily increasing. The

British Columbia Human Rights Code simply states that the tribunal may order a respondent to

“pay to the person discriminated against an amount that the member or panel considers

appropriate to compensate that person for injury to dignity, feelings and self respect or to any of

them.”68

Disputes regarding general damages arising from discrimination or human rights complaints

often arise in the transportation industry.

Thus, the cap may not be applied to a claim.

69 Some claimants prefer to pursue damages through a

federally regulated administrative tribunal rather than the courts. In the case of the Canadian

Transportation Agency (the “CTA”) its mandate is to ensure that air carriers respect their legal

obligations and published tariffs. Therefore, the CTA can only adjudicate on certain types of

complaints and cannot assess general damages for such things as pain and suffering, emotional

distress, or the loss of enjoyment.70 Such complaints may, however, may be brought before the

Canadian Human Rights Tribunal (the “CHRT”), another federal administrative body. Pursuant

to sections 53 and 54 of the Canadian Human Rights Act,71 the CHRT can award a complainant

damages of not more than $10,000, although up to $20,000 in aggravated or punitive damages

are awardable if the actions of the respondent are found to have been wilful or reckless.72

68 Human Rights Code, RSBC 1996, C. 210 [British Columbia Human Rights Code], s. 37(2)(d)(iii).

69 Canadian Transportation Agency Decision No. 6-AT-A 2008, January 10, 2008 (“One person one fare” decision), Morten v Air Canada, 2009 CHRT 3 (Can LII), [2009] C.H.R.D. No. 3 (Disability-Discrimination). 70 Canada Transportation Act, S.C. 1996, c. 10; Canadian Transportation Agency, Disability-Related Complaints, online: Canadian Transportation Agency http://www.otc-cta.gc.ca/index.php?lang=eng. 71 Canadian Human Rights Act, R.S., 1985, c. H-6 [Canadian Human Rights Act]. 72 Ibid., s. 53-54.

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10. CONCLUSIONS

In 1978 the Supreme Court of Canada in the Trilogy crafted a body of rational and cohesive

principles to guide trial courts in Canada in the assessment of damages in personal injury cases.

Two key principles emerged. The plaintiff must be provided with an adequate fund of money

which will provide her with adequate reasonable care for the rest of her life. And, awards for

intangible losses arising from physical and psychological pain and suffering as well as from any

loss of amenities or expectations of life should strive to ameliorate the conduct of the victim

considering his or her particular situation but be limited to a rough upper limit of $100,000. The

award of $100,000 is reserved for the most severe personal injuries and adjustment for inflation

is now valued at $325,000. Thus, Canada has achieved a measure of uniformity and

predictability in this difficult area of damage assessment.

Understanding the cap and how Canadian courts award general damages is a challenge for

counsel on both the plaintiff and defence side. In analyzing damages, what may be recoverable

at law, and what classification of damages best advances their client’s interest, counsel for all

parties must determine how the general damages for personal injury should be categorized: pain

and suffering, loss of companionship, loss of expectation of life, emotional distress, or whether

aggravating factors are in play. A further complexity in this analysis is introduced depending on

what province the claim is based in, if general damages will be deliberated on by a civil jury, or

whether a plaintiff wishes to pursue his or her claim through an administrative tribunal. Thus,

the rules and principles applicable to the recovery of general damages must be well understood

and used effectively if the interests of the client are to be advanced or protected. The law in this

area will, of course, continue to develop. And, there will always be room for creative and

innovative argument on what will constitute a proper and fair assessment of general damages.

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AUTHORITIES

Andrews v. Grand & Toy Limited, [1978] 2 R.C.S. (S.C.C.).

Arnold v. Teno, [1978] 2 S.C.R. 287. Bella v. Young, [2006] 1 S.C.R. 108. Bodnar Estate v. Home Insurance Co. (1987), 1987 CarswellOnt 560, 25 C.P.C. (2d) 152 (H.C.). British Columbia Ferry et. Al. v. T. & N. plc. et al. (1993), 86 B.C.L.R. (2d) 353 (S.C.); (1995), 16 B.C.L.R. (3d) 115 (C.A.). Donaghue v. Stevenson, [1932] AC 562 (H.L.). Caron Estate v. Paneak Estate (2006), 2006 NUCA 4 (Nun. C.A.).

Consorti v. Armstrong World Industries Inc. (1995), 72 F.3d 1003 (U.S. App.). Fiddler v. Sun Life Assurance Co. of Canada (2006), 2006 SCC 30. Gray v. Alanco Devs. Ltd., [1967] 1 O.R. 597, 61 D.L.R. (2d) 652 (C.A.).

Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145 (H.L.). Hartling v. Nova Scotia (Attorney General) (2009), 2009 NSSC 2. Herman v. Alberta (Public Trustee) (2002), 2 Alta. L.R. (4th) 132, [2002] 7 W.W.R. 177 (Q.B.). Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130.

Hoskin v. Han (2003), 2003 BCCA 220. Howes v. Crosby (1984), 45 O.R. (2d) 449, 29 C.C.L.T. 60, 6 D.L.R. (4th) 698, 2 O.A.C. 375 (C.A.).

Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12. Junek v. Ede, [1991] 1 W.W.R. 60, 87 Sask. R. 126 (Sask. C.A.). Kotai v. Queen of the North (Ship) (2009), 2009 BCSC 1405.

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Law v. Canada (Minister of Employment & Immigration, [1999] 1 S.C.R. 497. Lee v. Dawson, [2003] B.C.J. No. 1532 (S.C.), aff’d (2006), 267 D.L.R. (4th) 138 (B.C. C.A.) leave to appeal to S.C.C. denied [2006] S.C.C.A. No. 192. Leischner et al v. West Kootenay Power and Light Company, et al. (1986), 70 B.C.L.R. 145 (B.C. C.A.). Lindal v. Lindal, [1981] 2 S.C.R. 629. McIntyre v. Grigg (2006), 217 O.A.C. 217 (Ont. C.A.). Morrow v. Zhang (2009), 2009 ABCA 215 Muir v. Alberta, [1996] 4 W.W.R. 177, 132 D.L.R. (4th) 965 (Alta. Q.B.).

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 3.

Newell v. McIvor, [1998] 6 W.W.R. 158, 17 C.P.C. (4th) 347 (Sask. Q.B.). Nikota v. Avmor Ltd. (2007), 88 O.R. (3d) 290 (S.C.J.). Pettey v. Avis Car Inc. (1993), 18 C.P.C. (3d) 50, 13 O.R. (3d) 725 (Gen. Div.). Rizzi v. Marvos (2008), 236 O.A.C. 4 (Ont. C.A.). Scamolla Estate v. Tenax Ltd., [1995] O.J. No. 1121 (C.A.). Taylor v. Canada (Attorney General) (2009), 2009 ONCA 487, 95 O.R. (3d) 561 (Ont. C.A.). ter Neuzen v. Korn, [1995] 3 S.C.R. 674. Thornton v. Prince George School District No. 57, [1978] 2 S.C.R. 267. Tilson Estate v. Summit Air Charters Ltd., [2007] A.W.L.D. 1219 1217 (N.W.T. C.A.). Vaillancourt v. Molnar Estate (2002), 2002 BCCA 685 (B.C. C.A.). Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 180 D.L.R. (4th) 748 (Ont. C.A.).

Weingerl v. Seo (2005), 199 O.A.C. 172, 256 D.L.R. (4th) 1 (Ont. C.A.). Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595.

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Y (S.). v. C. (F.G.) (1996), 26 B.C.L.R. (3d) 155, [1997] 1 W.W.R. 229 (B.C. C.A.).

C:\DOCUME~1\CFRANCEY\LOCALS~1\TEMP\METASAVE\TOR01-4187554-V4-PAPER_-_RECOVERY_OF_NON-PECUNIARY_DAMAGES_IN_CANADA_-_MONTREAL_CONFERENCE_2009.DOC

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APPENDIX I

Survival Actions: The following chart illustrates that various non-pecuniary and punitive damages are expressly excluded from recovery in many common law jurisdictions, and may be excluded by implication where the statute limits recovery to “actual pecuniary loss.” A blank indicates that the statute is silent. In Quebec, an estate’s right to prosecute a deceased plaintiff’s claim for personal injury damages (e.g., a survival action) flows from the Civil Code of Quebec, S.Q. 1991, c. 64, Article 625.73

Damages Generally Excluded From Recovery Jurisdiction Statute Damages

Generally Recoverable

Allowable Expenses

Pain & Suffering

Disfigurement Expectation of Life

Amenities/Enjoyment of Life

Aggravated Damages

Punitive Damages

Alberta Survival of Actions Act, R.S.A. 2000, c. S-27

“actual financial loss” – s. 5(1)

reasonable expenses for funeral / disposal of body – s. 6

s. 5(2)(b) s. 5(2)(b) s. 5(2)(b)74 s. 5(2)(b) s. 5(2)(a)

British Columbia

Estate Administration Act, R.S.B.C. 1996, c. 122

“all loss or damage to the person or property of the deceased” subject to exclusions –

Reasonable expenses for funeral/disposal of body – s. 59(5)

s. 59(3)(a)

s. 59(3)(a) if death caused by tort – s. 59(3)(b)75

73 Current to October 7, 2009, Article 625 reads: The heirs are seised, by the death of the deceased or by the event which gives effect to the legacy, of the patrimony of the deceased, subject to the provisions on the liquidation of successions. The heirs are not, unless by way of exception provided for in this Book, bound by the obligations of the deceased to a greater extent than the value of the property they receive, and they retain their right to demand payment of their claims from the succession. The heirs are seised of the rights of action of the deceased against any person or that person’s representatives, for breach of his personality rights. For a recent discussion of some of the issues relating to survival actions in Quebec, see: Augustus v. Gosset, [1996] 3 S.C.R. 268, 138 D.L.R. (4th) 617. 74 Section 5(2)(c) expressly excludes loss of “future earnings including damages for loss of earning capacity, ability to earn or chance of future earnings.” 75 Section 59(3)(c) expressly excludes “damages in respect of expectancy of earnings after the death of the deceased.”

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Allowable Expenses

Pain & Suffering



Aggravated Damages

Punitive Damages

s. 59(2) Manitoba Trustee Act,

R.S.M. 1987, C.C.S.M. c. T160

funeral expenses – s. 53(1)

s. 53(1)76 s. 53(1)

New Brunswick

Survival of Actions Act, R.S.N.B. 1973, c. S-18

“actual pecuniary loss” – s. 5(1)

funeral / disposal of body expenses – s. 6

s. 5(1) s. 5(1) s. 5(1) expressly recoverable – s. 5(2)

Newfoundland Survival of Actions Act, R.S.N. 1990, c. S-32

“actual monetary loss” – s. 4

funeral expenses – s. 4(d)

s. 11(g) s. 11(g) s. 4(b)

Northwest Territories and Nunavut

Trustee Act, R.S.N.W.T. 1988, c. T-8

The executors or administrators of an estate may maintain an action for all torts or injuries to the person, except in cases of libel and slander, in the same manner and with the same rights and remedies as the deceased. s. 31(1)

76 Section 53(3) also specifically excludes an estate/personal representative from claiming for loss of guidance, care and companionship under this statute. Such damage can only be undertaken by surviving family members through Manitoba’s Fatal Accidents Act.

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Allowable Expenses

Pain & Suffering



Aggravated Damages

Punitive Damages

“the benefit, gain, profit or advantage that in consequence of or resulting from the wrong committed may have accrued to the estate of the person who committed the wrong shall be taken into consideration and shall form part or may constitute the whole of the damages to be recovered” – s. 33

Nova Scotia Survival of Actions Act, R.S.N.S. 1989, c. 453

“actual pecuniary loss” – s. 4

s. 4(c) s. 4(b) s. 4(a)

Ontario Trustee Act, R.S.O. 1990, c. T.23

if death caused by tort - s. 38(1)

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Allowable Expenses

Pain & Suffering



Aggravated Damages

Punitive Damages

Prince Edward Island

Survival of Actions Act, R.S.P.E.I. 1988, c. S-11


reasonable funeral / disposal of body expenses – s. 6(a) cost of taking out administration up to $500 – s. 6(b)

s. 5(c) s. 5(d) s. 5(b) s. 5(b) s. 5(a)

Saskatchewan Survival of Actions Act, S.S. 1990-91, c. S-66.1

“actual pecuniary loss” – s. 6(1)

reasonable expenses for funeral / disposal of body – s. 7(2)

s. 6(2)(c) s. 6(2)(d) s. 6(2)(a)77 s. 6(2)(e) s. 6(2) expressly recoverable – s. 6(3)

Yukon Territory

Survival of Actions Act, R.S.Y. 2002, c. 212


reasonable funeral / disposal of body expenses – s. 6

s. 5 s. 5 s. 5 s. 5

77 Section 6(2)(b) also excludes recovery for loss of expectancy of earnings subsequent to death.

35

APPENDIX II

Fatal Accident Claims: Fatal accident legislation provides even less guidance as to whether both pecuniary and non-pecuniary loss is recoverable as the following chart demonstrates. A blank indicates that the statute is silent. In Quebec, dependants’ rights to pursue their own claims for damages following the death of another (e.g., fatal accident claims) are said to flow from the Civil Code of Quebec, S.Q. 1991, c. 64, Article 1457.78

Jurisdiction

Statute

Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Alberta Fatal

Accidents

Act, R.S.A.

2000, c. F-8

spouse

adult

interdependen

t partner

(“AIP”)

parent

(includes

father,

mother,

grandparents,

and step-

parents)

“appropriate to the

injury resulting from

the death” – s. 3(1)

care and well-

being of

deceased - s.

7(a)

travel and

accommodation

expenses

incurred in

visiting

deceased

between time

and injury of

death - s. 7(b)

“grief” and

“loss of

guidance, care

and

companionship

” – s. 8(2)

limits: $75,000

to spouse or

AIP (so long as

they were not

living separate

and apart from

the deceased at

78 Current to October 7, 2009, Article 1457 reads: Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody. For a recent discussion of some of the issues relating to fatal accident claims in Quebec, see: Augustus v. Gosset, [1996] 3 S.C.R. 268, 138 D.L.R. (4th) 617.

36

Jurisdiction Statute

Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

child

(includes son,

daughter,

grandchildren,

step-children,

and

illegitimate

children)

brother or

sister

funeral

expenses and

disposal of body

- s. 7(c)

cost of grief

counselling (for

spouse, AIP,

child, parent,

brother or

sister) - s. 7(d)

time of death);

$75,000 to

mother or

father where

child is a minor

or has no

spouse or AIP;

$45,000 to son

or daughter,

legitimate or

illegitimate

where a minor

or has no

spouse or AIP -

s. 8(2)(a)-(c)

British

Columbia

Family

Compensati

on Act,

R.S.B.C.

1996, c.126

spouse

(includes

cohabitant

(including

same gender)

of 2 years so

long as the

“damages

proportioned to the



medical or

hospital

expenses – s.

3(9)(a)

reasonable

funeral and

37


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

relationship

did not end

earlier than 1

year before

death)

parent

(includes

grandparents

and step-

parents)

child

(includes step-

children and

persons to

whom

deceased

stood in loco

parentis)

disposal of body

expenses – s.

3(9)(b)

38


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Manitoba The Fatal

Accidents

Act, R.S.M.

1987,

C.C.S.M. c.

F50

spouse,

common-law

partner

(cohabitant of

3 years or 1

year if parents

of child)

support

recipient

(person to

whom

deceased had

court order to

pay support)

parent

(includes

father,

mother,

grandparents,

step-parents,

and persons

“such damages as are

proportional to the

pecuniary loss

resulting from the

death” – s. 3(2)

reasonable

funeral and

disposal of

body expenses

– s. 3(3)

“loss of

guidance, care

and

companionship

” – s. 3.1(2)

limits: $30,000

to each of

spouse,

common-law

partner, support

recipient, and

son or daughter

under 18 years;

$10,000 to each

son or daughter

over 18 years,

step-son, step-

daughter,

person to

whom deceased

stood in loco

parentis, step-

39


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

who stood in

loco parentis

to deceased)

child

(includes son,

daughter,

grandchildren,

step-children,

and persons to

whom

deceased

stood in loco

parentis)

brother or

sister

mother,

stepfather or

person who

stood in loco

parentis to the

deceased,

brother, sister,

grandson,

granddaughter,

grandfather,

grandmother –

s. 3.1(2)(a) &

(b)

40


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

New

Brunswick

Fatal

Accidents

Act,

R.S.N.B.

1973, c. F-7

spouse

(includes

cohabitants to

whom

deceased

owed

obligation to

provide

support, or

would have

but for the

fact that the

cohabitant

was not

substantially

dependent on

deceased for

support,

former spouse

to whom

deceased was

obliged to


proportional to the

pecuniary loss

resulting from the

death” – s. 3(2)

reasonable

funeral and

disposal of body

expenses – s.

3(3)

“loss of

companionship

” and “grief”,

for parents of

deceased under

19 years or

dependent

deceased, – s.

3(4)

punitive or

exemplary

damages

are

expressly

recoverable

– s. 6(4)

41


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

provide

support)

parent

(includes

father,

mother,

grandparents,

step-parents,

adoptive

parents, and

persons who

stood in loco

parentis to the

deceased)

42


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

New

Brunswick

Fatal

Accidents

Act,

R.S.N.B.

1973, c. F-7

child

(includes son,

daughter,

grandchildren,

step-children,

adopted

children, and

persons to

whom

deceased

stood in loco

parentis)

brother or

sister

43


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Newfoundland Fatal

Accidents

Act, R.S.N.

1990, c. F-6

wife, husband,

partner

(cohabitant of

at least 2

years, or 1

year when

parents of a

child)

parent

(includes

father,

mother,

grandparents,

step-parents,

adoptive

parents,

persons who

stood in loco

parentis to

deceased)

child

“damages...proportio

nal to the injury

resulting from the

death” – s. 6(1)

reasonable

funeral and

disposal of body

expenses – s. 9

44


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

(includes son,

daughter,

grandchildren,

step-children,

adopted

children, and

persons to

whom

deceased

stood in loco

parentis)

45


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Northwest

Territories and

Nunavut

Fatal

Accidents

Act,

R.S.N.W.T.

1988, c. F-3

spouse

parent

(includes

father,

mother,

grandparents,

step-parents,

adoptive

parents, and

persons who

stood in loco

parentis to the

deceased)

child

(includes son,

daughter,

grandchildren,

stepchildren,

adopted

children, and

persons to

“damages that are

proportional to the



medical or hospital expenses - s. 4(1)(a) funeral

expenses - s.

4(1)(b)

46


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

whom the

deceased

stood in loco

parentis)

47


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Nova Scotia Fatal

Injuries Act,

R.S.N.S.

1989, c. 163

spouse or

common-law

partner

(cohabitant of

1 year

immediately

preceding

death)

parent

(includes

father,

mother,

grandparents,

step-parents,

and persons

who have

demonstrated

a settled

intention to

treat the

deceased as a

child of the

“such damages as

they think

proportioned to the


such death” – s. 5(1)

“damages” means

“pecuniary and non-

pecuniary damages”

and includes certain

other expenses (see

Allowable Expenses

column) – s. 5(2)

out-of-pocket expenses – s. 5(2)(a) travel expenses for visiting deceased between time of injury and death - s. 5(2)(b)

nursing,

housekeeping,

or other

services

purchased or a

reasonable

allowance for

loss of income

– s. 5(2)(c)

funeral

expenses – s.

5(4)

“loss of

guidance, care

and

companionship

” s. 5(2)(d)

“damages” means “pecuniary and non-pecuniary damages” – s. 5(2)

48


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

family)

child

(includes son,

daughter,

grandchildren,

step-children,

illegitimate

children of

mothers, and

children

deceased has

demonstrated

a settled

intention to

treat as a child

of the family)

49


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Ontario Family Law

Act, R.S.O.

1990 c. F.3,

ss. 61-63

Note:

benefits also

available if

family

member

injured.

spouse

(includes

married,

cohabitant of

3 years or in

relationship

of some

permanence if

natural or

adoptive

parents of a

child)

parent

(includes

grandparents,

and persons

who have

demonstrated

a settled

intention to

treat a child

as one of the

“pecuniary loss

resulting from the

injury or death” – s.

61(1)

“actual expenses reasonably incurred” – s. 61(2)(a) actual, reasonable funeral expenses – s. 61(2)(b)

travel expenses for visiting person during treatment or recovery – s. 61(2)(c)

the value of

nursing,

housekeeping,

or other

services

purchased, or a

reasonable

allowance for

loss of income

– s. 61(2)(d)

“loss of

guidance, care

and

companionship

” - s. 61(2)(e)

50


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

family)

child

(includes

grandchildren,

and persons to

whom a

parent has

demonstrated

a settled

intention to

treat as a

child)

brother or

sister

51


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Prince Edward

Island

Fatal

Accidents

Act,

R.S.P.E.I.

1988, c. F-5

widow or

widower,

person

divorced from

deceased who

was entitled to

or dependant

upon support

from deceased

at time of

death, person

of opposite

sex cohabiting

with deceased

as spouse and

dependant on

deceased for

support or

entitled to

support


attributable to the

loss of pecuniary

benefit or reasonable

expectation of

pecuniary benefit” –

s. 6(2)

reasonable funeral expenses and disposal of body - s. 6(3)(a) expenses of

taking out

administration

subject to a

maximum of

$500 –s.

6(3)(b)

“loss of

guidance, care

and

companionship

” - s. 6(3)(c)

52


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

child

(includes a

child

conceived but

not born, an

adoptive

child, or a

person to

whom the

deceased

stood in place

of a parent) or

grandchild

(includes any

child or lineal

descendent of

a child of the

deceased)

parent

(includes

father,

mother,

53


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

grandparent,

adoptive

parent,

adoptive

grandparent or

person who

stood in place

of a parent.)

spouse of a

child,

grandchild or

parent

person who

was

dependant on

deceased for

support for

period of at

least 3 years

immediately

54


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

prior to death

55


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Prince Edward

Island

Fatal

Accidents

Act,

R.S.P.E.I.

1988, c. F-5

56


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Saskatchewan Fatal

Accidents

Act, R.S.S.

1978, c. F-

11

spouse

(includes

wife, husband,

cohabitant of

2 years or 1

year if they

have child and

are in

relationship of

some

permanence)

parent

(includes

father,

mother,

grandparents,

step-parents,

adoptive

parents, and

persons who

stood in loco

parentis to the

“such damages ... as

are proportioned to

the injury resulting

from the death” - s.

4(1)

medical or

hospital

expenses – s.

4(2)(a)

funeral

expenses – s.

4(2)(b)

cost of grief

counselling – s.

4(2)(c)

limited loss of

earnings – s.

4(2)(d)

out-of-pocket

expenses – s.

4(2)(e)

“grief”, and

“loss of the

guidance, care

and

companionship

” (grandparents

and

grandchildren

not eligible) –

s. 4.1(2)

Limits: $60,000

for spouse (so

long as spouse

was not living

separate and

apart from

deceased at

time of death);

and $30,000 to

parent and

child – s.

57


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

deceased)

child

(includes son,

daughter,

grandchildren,

step-children,

adopted

children, and

persons to

whom

deceased

stood in loco

parentis)

4.1(2)(a)-(c)

58


Eligible

Dependants

Damages Generally

Recoverable

Allowable

Expenses

Specific Heads

of Recovery

Aggravated

Damages

Punitive /

Exemplary

Damages

Yukon

Territory

Fatal

Accidents

Act, R.S.Y.

2002, c. 86

spouse

parent

(includes

grandparents,

step-parents,

and persons

who stood in

the role of a

parent to the

deceased)

child

(includes

grandchildren,

step-children,

and persons to

whom

deceased

stood in the

role of a

parent)

“damages that are

proportional to the

pecuniary loss

resulting from the

death” – s. 3(2)

reasonable

funeral and

disposal of

body expenses

– s. 3(3)

59

APPENDIX III Negligence Acts: Legislation across Canada provides guidance as to how to apportion liability amongst multiple at-fault defendants. Typically, defendants are considered “jointly and severally” liable. In Quebec “solidarily” is interpreted to mean both jointly and severally.

Province Statute Section Liability of Multiple Defendants Alberta Contributory Negligence Act,

R.S.A. 2000, c. C-27 s. 1 Several liability where the Plaintiff has contributed to his or her loss.

s. 2 Joint and several liability otherwise.

British Columbia Negligence Act, R.S.B.C. 1996, c. 333

s. 1 Several liability where the Plaintiff has contributed to his or her loss.

s. 4 Joint and several liability otherwise, unless the exception in s. 5 is satisfied.

s. 5 No damages are recoverable for the portion of loss resulting in bodily injury or death caused by a spouse if the cause of action arose before April 17, 1985.

Manitoba The Tortfeasors and Contributory Negligence Act, R.S.M. 1987, C.C.S.M. c. T90

s. 5 Joint and several liability. Contributory negligence is addressed in s. 4 where the damages are apportioned between the plaintiff and the defendants, but the liability of the defendants remains joint and several.

New Brunswick Contributory Negligence Act, R.S.N.B. 1973, c. C-19


s. 2 Joint and several liability otherwise.

60

Province Statute Section Liability of Multiple Defendants Newfoundland and Labrador

Contributory Negligence Act, R.S.N. 1990, c. C-33.


s. 3 Jointly and individually liable otherwise.

Northwest Territories

Contributory Negligence Act, R.S.N.W.T. 1988, c. C-18


s. 3 Joint and several liability otherwise. Nova Scotia Contributory Negligence Act,

R.S.N.S. 1989, c. 95. s. 3 Each person is liable to the degree each person is at fault; a person is not

liable for any damage or loss to which his fault has not contributed.

Nunavut Contributory Negligence Act, R.S.N.W.T. 1988, c. C-18 as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28


s. 3 Joint and several liability otherwise. Ontario Negligence Act, R.S.O.

1990, c. N.1 s. 1 Joint and several liability.

Contributory negligence is addressed in s. 3 where the damages are apportioned between the plaintiff and the defendants, but the liability of the defendants remains joint and several.

Prince Edward Island

Contributory Negligence Act, R.S.P.E.I. 1988, c. C-21


s. 2 Joint and several liability otherwise. Québec Civil Code of Québec, S.Q.

1991, c. 64 Article 1478

The victim is included in the apportionment of damages if he or she is partially responsible.

Article 1480

Persons are solidarily liable where they have each taken part in a wrongful act which caused injury or where it is impossible to determine which person actually caused the injury.

61

Province Statute Section Liability of Multiple Defendants Article 1481

Where a defendant is exempted by a special Act, their share of the liability is assumed equally by the other persons responsible for the injury.

Saskatchewan The Contributory Negligence Act, R.S.S. 1978, c. C-31


s. 3 Joint and several liability otherwise, subject to s. 3.1.

s. 3.1 For acts or omissions causing damage on or after January 1, 2005, where the contribution of a person at fault cannot be collected, that amount will be apportioned among the other persons at fault proportionate to the degrees to which they have been found at fault.

s. 7.1 (1) Judgment, discontinuance, settlement or release of one person jointly and severally liable with others does not preclude judgment against any other in the same or a separate action.

Yukon Contributory Negligence Act, R.S.Y. 2002, c. 42


s. 2 Joint and several liability otherwise. C:\DOCUME~1\cfrancey\LOCALS~1\Temp\MetaSave\TOR01-4187554-v4-Paper_-_Recovery_of_Non-Pecuniary_Damages_in_Canada_-_Montreal_Conference_2009.DOC

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