Know about personal injury claims in Canada, the legal considerations in filing a court action and in coming up with the amount of damages
When you or your loved one is injured resulting in tremendous suffering, the law provides for a remedy under the legal area of personal injury to help you and your family recover. There will be various considerations to keep in mind.
This article will go through the legal intricacies and misconceptions in filing and getting a favorable personal injury payout in Canada.
The filing of a case for personal injury, and the award of a favorable personal injury payout in Canada, is composed of Canadian common law, federal laws, and provincial laws on torts and damages.
Personal Injury, in general
The legal area of personal injury refers to the institution of claims, either in or out of the court, for the injuries of the plaintiff that are caused by the defendant. This claim is based on the allegations that it is the defendant’s negligence, inaction, or any other act, that caused the injury to the plaintiff.
Canada’s laws on Personal Injury
Canadian laws on personal injury are mainly governed by:
- common law or case law: for the civil liabilities of the defendant;
- Canada’s Criminal Code: for the criminal liability and penalties to be imposed on the negligent defendant if a criminal action is filed; and
- applicable provincial laws: in addition to the common law governing the civil liabilities of the defendant.
Some of the provincial laws that apply to personal injury payout in Canada are:
- Ontario: Negligence Act
- British Columbia: Negligence Act
- Quebec: Civil Code of Quebec’s provisions on negligence and damages
The most common cause for a personal injury payout in Canada is the following:
- Motor vehicle or car accident
- Slip-and-fall accident
- Injuries caused by assault or battery
- Medical malpractice or medical negligence
- Nursing home or hospital abuse
- Workplace or employment accident
- Injuries caused by product defect
- Other negligence
Grounds for Personal Injury Case
When claiming for a personal injury payout in Canada, there are generally three grounds which you may anchor your claim into: negligence, liability, and deliberate actions.
Negligence occurs when a person fails to exercise due diligence or the level of care that an ordinary prudent or careful person would have done, under a given normal or usual circumstance or setting.
You would have a cause of action for negligence against another person if that person acted carelessly which caused an accident that injured you. Automobile or motor vehicle accidents are the common examples of negligent injurious acts.
There is liability when a person or entity of certain credibility and authority fails to perform the responsibility that they are expected of, and where such failure caused an accident or injury to another person. An example of this is the occurrence of a product defect which caused you great injury, where such product defect could have been prevented by the producer, manufacturer, or seller. Medical malpractice or medical negligence also falls under this category.
You may also have a cause of action for a personal injury payout in Canada when it has been caused by an intentional wrong or a deliberate act. Injuries caused by a personal assault or battery would fall under this category.
What is important here is that there have been act/s which show/s the intent or bad faith of the defendant to cause you harm or injury.
Requisites of Personal Injury
In instituting an action for a personal injury payout in Canada, it is important to note its requisites:
- duty: that the defendant has the duty of care towards you, which may be based on a contract (written or verbal), a quasi-contract, or any other relationship where the defendant is expected to have a duty of care and the responsibility to enact this duty;
- breach: that this duty of care that the defendant owes you has been breached, either negligently or intentionally, as shown either by their acts or even by their inaction;
- damage: that you have suffered physical and mental damage because of this breach of duty of care; and
- causation: the damage you suffered because of the breach of duty was caused by the defendant, or that there is reasonable causation (or connection) between your injury and the defendant’s breach of duty.
You would have to prepare evidence to support these requisites in a case for personal injury payout in Canada. A personal injury lawyer can guide you on which pieces of evidence are acceptable to the court.
Amount of Damages
When you and your lawyer have established that your case satisfies the above-mentioned requisites, the next step is to come up with the appropriate amount of damages that you would be asking for.
There are two types of damages which you may claim for: general damages and pecuniary damages.
General damages, also called non-pecuniary damages, are the unquantifiable amount you are claiming for the psychological or mental hurt that you have suffered because of the negligence, malpractice, or fault of the defendant.
It would also include the stress, inconvenience, pain and suffering, or the loss of enjoyment of life you have endured due to that physical injury.
Canada’s common law capped the amount of general damages that you may recover as a plaintiff in a personal injury case. This amount was C$100,000 but has since been increased to C$300,000 due to inflation.
Verbal thresholds and deductibles
The amount of general damages may differ in case of a motor vehicle or car accident. This is due to the verbal threshold and deductibles for personal injury payouts involving automobile accidents. An example of the law implementing verbal thresholds and deductibles is Ontario’s Insurance Act. The reason behind these limitations is to discourage filing of cases with small claims.
A verbal threshold refers to the general damages for physical and mental impairment that the plaintiff must have suffered, which must be both serious and permanent in nature. Under section 265.5 (5) of Ontario’s Insurance Act, the defendant will not be liable unless the injured person either:
- died; or
- suffered permanent serious disfigurement; or
- suffered permanent serious physical or mental impairment
On the other hand, a deductible refers to the amount of general damages that a plaintiff must surpass and prove to be eligible for an award of damage above this amount. This means that if you are claiming for an award of damages below the deductible amount, your case will not work.
"That means if you win an award for pain and suffering, but it is at or below $39,556.53, you won’t collect a dime" and not even the jury will know because laws "prohibit a jury from being told about this amount." https://t.co/sajvDNQjOc— FAIR Association (@FAIRAssociation) February 9, 2020
It’s always best to speak with a personal injury lawyer for updated information on all aspects of personal injury claims. Take a look at Canadian Lawyer’s list of best personal injury law firms in Canada as a first step.
Pecuniary damages are the quantifiable amount that you have spent because of the personal injury caused by the defendant’s negligence or malpractice. Pecuniary damages are also called “actual damages” because these are the specific and economic losses that you would have to prove through evidence in court.
Some examples of pecuniary damages are:
- actual and future treatment or medical costs, including therapies and other interventions
- amount of lost income due to missed work
- compensation for future wages
- costs of litigation
- other “out-of-the-pocket" expenses
Depending on the strength of your case during your evaluation with your personal injury lawyer, you may initially demand for an interim payment from the defendant while waiting for the resolution of your case in court. This amount will then be deducted from the final amount of damages that will be awarded to you.
The point of an interim payment is to prevent litigants from digressing from their case because of the long process it takes to settle a court action. It also prevents litigants from settling for damages out of court that are far below what might have been awarded to them by the court.
Statute of Limitations
One consideration in filing a case for a personal injury payout in Canada is the statute of limitations.
The statute of limitations for personal injury claims according to common law and in most provinces is two years (e.g., Ontario’s Limitations Act, 2002). This means that the suit or claim for personal injury must be filed within two years, counted from the time you had the injury, or from the reasonable time when the injurious act should have been discovered.
This is easy to count when your injury is a direct result of a negligent act, such as in a car accident, or in case of a slip-and-fall. In such accidents, the statute of limitation is counted from the actual occurrence of the negligent act.
However, there are some cases where the injury would only “show up” after some time – such as in the case of medical malpractice or medical negligence, where the result of the negligent act is only apparent after some period. Here, the statute of limitations will only run after the discovery that the cause of your injury has been determined to be a specific act which constitutes medical malpractice or medical negligence.
Some provinces in Canada have different statutes of limitations. This is why it is important to still consult with a personal injury lawyer in your province or territory.
Alternative Dispute Resolution (ADR) methods
Due to some challenges in the legal area of personal injury, such as the verbal thresholds and deductibles in a personal injury claim in a motor vehicle accident, most personal injury cases are settled out of court. Some examples are through mediation and negotiation, says Heidi Brown, a partner at Bogoroch & Associates LLP (Toronto).
“What people try is go to mediation and try to negotiate around the deductible to obtain as early as possible [a] settlement so that nobody is rolling the dice on the deductible,” Brown explains.
“We have a lot of cases that were resolved really at the courtroom steps or after a lengthy process,” added Richard Bogoroch, managing partner of Bogoroch & Associates LLP (Toronto).
Because each case for a personal injury payout in Canada is different, and the chances of resolving it out of court would also vary.
At the outset of the injury, it is important that you immediately contact a personal injury lawyer to assist you in evaluating your case. This involves the collection of important pieces of evidence to bolster your case and planning the personal injury payout that you will be claiming against the defendant.
Lawyers can also help you decide on the appropriate course of action depending on the strength of your case. They can help you consider whether any ADR methods are appropriate and when it is time to go to court. Whenever applicable, personal injury lawyers can also try to communicate with your insurance company or the defendant’s insurance company to try to settle your case without going to court.
There are certain misconceptions towards personal injury lawyers that the public has. Patrick Brown, principal partner of McLeish Orlando LLP (Toronto, Barrie, Hamilton, Kitchener), says: the “[b]iggest misconception is people think personal injury lawyers are like the ones on big billboards or TV ads, [they] call them ambulance chasers, and they come up with a perception that we're all the same and we're all out for money and it's just not the case.”
The amount personal injury settlement in Canada will depend on many factors. Some examples: the amount of damages you’re asking for, the strength of your claim based on the evidence that you're able to present, and the amount that the court awards you.