← Previous Post We will review the history behind bad faith claims in Canada and analyze the current amounts which Canadian courts have been awarding for punitive and aggravated damages. Moreover, the claims examiner failed to note the serious discrepancies between the IME and the plaintiff’s treating therapists and physicians. The plaintiff suffered severe brain damage resulting in physical and mental impairment. In 1996, Canadian courts began awarding aggravated damages against insurers. 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. The trial judge lowered the jury award to the upper limit as suggested under ter Neuzen, which amounted to $294,000 after it was adjusted for inflation. A breach of the duty of good faith may result in an award of punitive and/or aggravated damages. 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. Automobile accidents; 2. Before 1996, all “personal” damages were tax-free, so emotional distress and defamation produced tax-free recoveries. Damages for mental distress can be claimed when the breach of contract by one party causes the other party an intangible injury, such as additional stress, anxiety, frustration, humiliation, and emotional or psychological distress. 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. ); and Fowler v. Maritime Life Assurance Co. (2002), N.J. No. 79 at p. 29 [ter Neuzen]). In awarding punitive damages, the Court found that the claims examiner’s rejection of the Own Occupation coverage was severely flawed, as it imported improper considerations and concluded without any foundation that motivational factors were dominating the claim. 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 the 1981 Supreme Court of Canada decision of Lindal v. Lindal ( S.C.J. 263-264). For now, however, the decision of the Saskatchewan Court of Queen’s Bench is not binding on other provincial courts in Canada. Juries have awarded punitive damages as high as $2.5 million, but this award was later overturned by the appeal court (see Plester v. Wawanesa Insurance,  O.J. Torts can be intentional or unintentional. 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. Only time will tell whether the Canadian courts will limit the maximum amount of punitive and aggravated damages awarded in the future. The insurer made a single payment of $5,000 to the insured for living expenses under the policy but refused to provide further coverage on suspicions of arson. No. The family doctor estimated that the plaintiff might be ready to return to gainful employment in 6 months. Non-pecuniary damages were meant to provide a substitute for loss of amenities and to make the plaintiff’s life more bearable. 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. The ratio in the Whiten case was 3:1 ($1 million punitive vs. $345,000 compensatory). 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. 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 … No. She is a board member of the Medical Legal Society of British Columbia and a member of the Canadian Bar Association Women’s forum and has been a mentor to many young lawyers. The lawyer was awarded $300,000 in general damages. In provinces such as British Columbia, the highest award has only been $35,000 (Asselstine v. Manulife, 2005 BCCA 292). Justice Acton, a judge on the Saskatchewan Court of Queen’s Bench, handed down punitive damages totaling $4.5 million and aggravated damages of $450,000 against two insurance companies (Branco v. American Home Assurance Company, 2013 SKQB 98 [Branco]). 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. v. F.G.C. 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,  O.J. It requires an “actionable wrong” in addition to the breach of contract. During the 20th century, Canadian courts remained modest in their punitive damage awards against an insurer for acting in bad faith. See our article: “Frequently Asked Questions regarding Canada Pension Plan Benefits”. Unintentional torts include things like: 1. This means you can sue someone for emotional trauma or distress if you can provide evidence to support your claims. Justice Acton showed an immense amount of disapproval for the actions of the two insurance companies. 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). (2nd) 61 (BCSC)). 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. As a general principle in Canada, damages for mental distress resulting from a breach of contract are not normally awarded. 287 (SCC) [Arnold], the plaintiff was a similarly young individual who suffered a catastrophic injury, albeit with different injuries. The plaintiff in this case was a welder who was permanently injured when he dropped a heavy steel plate on his foot. Furthermore, non-pecuniary damages did not violate equality rights as it was not meant to fully compensate the plaintiff for all the injuries sustained. In ter Neuzen, a jury awarded $460,000 in non-pecuniary damages. (1996), 78 B.C.A.C. S.C.J. (3rd) 16 (Ont. 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. The $100,000 upper limit was again imposed in Arnold. The British Columbia Court of Appeal reversed this decision, ruling that the trial judge had erred in awarding these kinds of damages without medical evidence of a recognisable psychiatric illness. A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums. Most cases, however, fall within the $100,000 to $200,000 range (see Clarfield v. Crown Life (2000), 23 C.C.L.I. Chastain v. U.S. Dep’t of the Navy, EEOC Appeal No. As a breach of the duty of good faith is a separate actionable wrong, it is not dependent on the claim for coverage or compensation under the insurance policy. The amounts awarded would instead be considered additional money to help the plaintiff in making his or her life more endurable. 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.. Lindsay LLP However, Fenn was an exceptional circumstance in its own regard. British Columbia, Canada: Court of Appeal Sets Aside Aggravated Damages Award in Wrongful Dismissal. In Arnold v. Teno,  2 S.C.R. ), Fidler v. Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life Insurance Company, 2013 ONSC 1637). 170-76. Category: Canada Law. Notably, the Court held that had the insurance company’s conduct only marginally aggravated the plaintiff’s symptoms. This area is open to widely extravagant claims. 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 plaintiff in this case was a university student who was suspected by her professor to be a child sex abuser. The Supreme Court of Canada stated at page 17: The [defendants] have not established why the policy considerations which arise from negligence causing catastrophic personal injuries, in the context of accident and medical malpractice, should be extended to cap a jury award in a case such as the present. Slip-and-falls or trip-and-falls; 3. Not surprisingly, the insurers in Branco have appealed the case to the Saskatchewan Court of Appeal. 595, 2002 SCC 18 [Whiten] explained the role of punitive damages in bad faith claims: An award of punitive damages in a contract case, though rare, is obtainable. 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. At the time, he was working for a subsidiary of Cameco Corp., a Saskatchewan-based company. [This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]. 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. She defends individuals and companies against claims for personal injury, particularly claims involving complex medical issues, brain injuries, auto-immune diseases and psychological and psychiatric claims. 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. If you have suffered emotional distress, you are entitled to compensation for your distress and the physical and mental injuries suffered. the employee for breach of the implied term of the employment contract to provide reasonable notice of termination. Statistically, it is the area where the danger of excessive burden of expense is greatest (Andrews at p. 19). Diane Teno, the four year old plaintiff, was crossing the road with her brother when she was struck by a vehicle driven by the defendant Brian Arnold. [Fenn]). These situations created inequality which breached Charter values and rights. But given the inherently volatile and distressing context of almost every family law proceeding, it will be interesting to see where the court will draw the line on culpable behaviour by separating and divorcing spouses. 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. The presence of these attributes provided the potential for an increasingly substantial and excessive amount of damages to be awarded. 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. The purpose of an award of damages in a wrongful dismissal action is to compensate. Mental anguish lawsuits seek damages for the pain and suffering resulting from another person’s negligent or intentional conduct. In Godwin v Desjardins Financial Security Investments Inc., 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. One such case where the cap did not apply involved injuries resulting from the defamation of a lawyer by the Church of Scientology (Hill v. Church of Scientology,  2 S.C.R. 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. Bell Mobility was found vicariously liable for the torts committed by Ayotte. 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.,  2 S.C.R. 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. 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. We will discover how the rule has been treated in subsequent cases and predict how it will likely fare in the future. The cap established for all non-pecuniary damages, which is periodically adjusted to account for inflation, is currently near $360,000. 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). See our article: “Seeking punitive and mental distress damages in a Long-Term Disability (LTD) Claim”. The Court concluded that the mental distress suffered by the plaintiff as a result of the delay in the payment of Any Occupation benefits was sufficient to warrant compensation for mental distress. Many other jurisdictions around the world seek to compensate a victim from loss arising from pain and suffering. 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. Moreover, the Court awarded damages for mental distress in the amount of $30,000 and punitive damages of $30,000. She is also Vice Chair of DRI International for the Defense Research Institute. In contrast, emotional distress claims in Canada are subject to limits established by the Supreme Court in the 1970s. 30 [S.Y. 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. 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. 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. These “non-pecuniary losses” are often referred to as “emotional distress damages.” There is no standard form or equation for calculating emotional distress damages, except that the award should reflect the nature and severity and duration of the harm suffered. A tort claim is a legal claim for damages caused by the wrongful act (or tort) of another person. The courts are beginning to respond by awarding increasingly higher damages under this heading. 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. Doe claimed damages from Etihad for physical injury, emotional distress, and mental anguish. Vancouver, British Columbia V6B 2L3 Her husband claimed loss of consortium. Mental anguish damages are usually connected to cases involving wrongful death, disfigurement or serious bodily injury that led to profound sadness and distress for the injured individual. 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. C.A.) can i sue for emotional distress in Canada? 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. An example of the inflation adjustment can be seen in a 2012 British Columbia Supreme Court case, where the judge noted at the time that the upper limit for non-pecuniary damages in Canada for negligently caused injuries was just over $342,000 (Clost v. Relkie, 2012 BCSC 1393). 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. Mr. Justice Dickson found there would not be any unfairness to the plaintiff if an upper limit was imposed. Raising the Limit of Punitive and 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. The exception to this rule is in cases where the purpose of the contract was to offer “peace of mind” such as a vacation holiday package or an insurance contract. The Court of Appeal may ultimately lower the amount of damages to reflect the average range in Canada. In the seminal case of Bardal v. Economic damages include loss of property, inability to work, impact on professional abilities, and more. Action justified the large aggravated damages award by stating that had: AIG made the monthly payments on a regular and timely basis as required under the policy there would in all likelihood not have been the significant amount of mental distress which has virtually destroyed Branco’s life over the last 13 years (Branco at para. C.A.)). 1000 – 564 Beatty Street 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. A case that came before the Ontario Superior Court of Justice highlights the need for appellants to bring evidence of actual mental distress when seeking aggravated damages. November 18, 2020. 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. 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. 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]).  Godwin v Desjardins Financial Security Investments Inc., 2018 BCSC 99 (CanLII),  Fidler v. Sun Life Assurance Co. of Canada,  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. ... Intangible elements such as mental distress, pain, anguish, grief, anxiety, vexation, humiliation, indignation, outrage, fear of repetition. 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. Depression. S.C.J. 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. It appears they will continue to do so in the foreseeable future. Since Whiten, judges have not ventured to award punitive damages above the $1 million given in 2002. Non-economic damages are psychological and can’t be quantified. 209 (BCCA) at para. Evidence Required for Claims of Mental Distress. However, this limit for punitive and aggravated damages was recently challenged in a 2013 insurance case from Saskatchewan. 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. As a general rule, damages will not be awarded to compensate for the mental distress or emotional trauma that may be caused by a breach of contract. In Articles // 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. In 1995, the $100,000 upper limit was further solidified when Justice Sopinka, writing for the Supreme Court of Canada, stated that the upper limit was to be a “rule of law” (ter Neuzen v. Korn,  S.C.J. Intentional torts are those—like battery, trespass, or intentional infliction of emotional distress—that a person intends to commit. 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). 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. The psychiatrist found that the plaintiff’s symptoms might include more occupational (issues with her employer) and motivational factors than a severe and limiting psychiatric impairment. As of the writing of this paper in April 2014, the upper limit is calculated to be approximately $360,000. Until the year 2000, the highest amount awarded was $20,000 (Evans v. Crown Life Insurance (1996) 37 C.C.L.I. Traditionally, contractual damages were awarded for … In June of last year, the Supreme Court of Canada released their unanimous decision in Saadati v Moorhead dealing with the proof required to establish “mental injury” in the context of tort claims. 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. “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. (3rd) 266 (Ont. Furthermore, any future financial burdens to the plaintiff may be awarded through future loss of income or future care heading of damages. Nonetheless, the insurer held on to its arson theory and relied on the help of an aggressive and confrontational legal counsel. 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. The law of damages in Canada has undergone unique changes over the past 50 years which have helped shape the actions of Canadian society. 274 (Ont. A psychiatrist hired by the insurance company conducted an Independent Medical Evaluation (IME). 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. As a body of jurisprudence emerges, courts rely on previous case law to determine the appropriate award. The tort of intentional infliction of mental suffering has existed in Canada for many years. 287 (SCC) [Arnold]) (the “Trilogy”). From the above cases, it is clear that the court considers the social implications of a high damage award when deciding whether to apply the cap. Canada. In the 19th century, the implied covenant of good faith and fair dealing arose in the United States as part of contract law. 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). Awarded would instead be considered additional money to help the plaintiff for being wrongfully dismissed in. Her professor to be approximately $ 360,000 through negligence past 50 years which have helped shape actions. Can provide evidence to support your claims Sunlife, 2004 BCCA 273, Fernandes v. Penncorp Life insurance ( )... 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