Dav.NonPec

Question 1

Define ‘non-pecuniary damages’.

Answer 1

• Damages not easily quantified financially
  ex: - pain and suffering beyond compensation for medical care and loss of income

Question 2

Describe the Trilogy ruling

Answer 2

Supreme Court of Canada established a 100K cap on non-pecuniary damages
(later given an inflation adjustment, and subject to certain exceptions)

Question 3

Describe 4 reasons for caps on general non-pecuniary damages.

Answer 3

1. Limitless awards: Awards for non-pecuniary damages are limitless
2. Social burden: Extravagant awards increase social burden
3. Compensation: Economic damage will already be fully compensated / No money can provide true restitution
4. Insurance environment: Ensure predictability & stability of awards

Question 4

Describe the rational behind Supreme Court’s exceptions to Trilogy cap.

Answer 4

no evidence that these exceptional cases would increase cost of insurance or social burden

Question 5

Identify 3 exceptions to Trilogy decision (non-pecuniary caps removed).

Answer 5

• sexual abuse (S.Y. v F.G.C.)
• defamation (Hill v Church of Scientology, Young v Bella)
• negligence causing financial loss

rational behind exceptions :
no evidence that these exceptional cases would increase cost of insurance or social burden

Question 6

Describe how the cap affects the level of equity between minor and severe injuries.

Answer 6

• minor injuries are OVER-compensated
• major injuries are UNDER-compensated
  (because past a certain severity, there is no longer a distinction based on severity)

Question 7

Identify 3 relevant cases subsequent to the original Trilogy ruling

Answer 7

• Fenn v City of Peterborough (only case where award exceeded cap)
• Lindal v Lindal (commented on inflation-adjustment and injury severity)
• ter Neuzen v Korn (cap became rule of law versus just a “judicial policy directive”)

Question 8

Lindal v Lindal: Facts,Issues,Ruling (Supreme Court)

Answer 8

Facts:
- Jury awards 135k.
- Award reduced to 100k by BC Court of Appeals.
- Plaintiff appealed to Supreme Court.

Issues:
When should general damages exceed 100k cap?
1 - Should we consider inflation adjustment since trilogy?
2 - Should severity of plaintiff's injuries be taken into account?

Ruling:
SC Ruling: Supreme Court supported appeal decision.
1 - 100K indexed for inflation
2 - Severity of injuries should not be considered since general damages are not meant to be compensatory.

Question 9

Ter Neuzen v Korn ( Facts; Issues; and Rulling T/SC)

Answer 9

Facts: Plaintiff infected w/ HIV in medical procedure.

Issues: Jury award at trial > Trilogy cap. What to do when Jury awards > 100K cap?

Trial: Award: 460K (GenDmgs). Appeals Court ordered new trial because 460K > 100K.
SC: Reinforced Trilogy. Cap status: cap became rule of law.

Question 10

Fenn v Peterborough: Facts,Issues,Ruling

Answer 10

Facts: Plaintiff severely injured.

Issues:
- When can general damages exceed the 100K cap? (Trilogy already has exceptions for sexual abuse & defamation)
- Inflation adjustment since Trilogy?
- Should severity of plaintiff’s injuries be taken into account?

Ruling:
Plaintiff awarded 125K (higher than 100K cap) but no further appeal so Supreme Court didn't comment. To this date only decision that exceeded cap.

Question 11

Lee v Dawson : Facts,Issues,Ruling

Answer 11

Facts:
- Lee severely injured. Jury at Trial awarded 2M, but judge reduced the award to 294K (i.e. inflation-adjusted 100K)
- Lee appealed to BCCA (British Columbia Court of Appeals)

Issues:
- Violates charter of rights: Cap discriminates against the seriously injured (vs minor injuries)
- Ignores the importance of juries
- Cap is inconsistent with modern community values, which are more accepting of disabilities than previously.

Ruling:
Appeal Ruling:
- BCCA couldn’t overturn the original Supreme Court ruling on Trilogy.
- Non-pecuniary damages not meant to be compensatory.

Supreme Court:
- Declined to hear a further appeal.
- Cap remains in effect & the original rationale still considered valid