Why Canadian caps on pain and suffering awards could face court challenge

Legislated limits on pain and suffering awards, which are meant to manage liability insurance costs, could conceivably be challenged in court, a Canadian personal injury lawyer suggests.

South of the border, the Kansas Supreme Court recently held that a state law capping damages for non-economic injuries in personal injury lawsuits is unconstitutional.

Diana Hilburn was injured in a 2010 accident in Kansas, The Associated Press reported. A jury awarded $301,509 for non-economic losses but state law at the time capped the award at $250,000. In Hilburn v. Enerpipe, released June 14, the Kansas Supreme Court (the state’s court of last resort) ruled that capping the damages an injured person is able to recover in a lawsuit violates that person’s right to a jury trial.

The caps in Kansas on awards for non-economic losses were put in place to control insurance costs, State Senator Rick Wilborn told The Associated Press.

On this side of the border, similar restrictions on non-economic damages (also known as non-pecuniary and pain and suffering) could be challenged by lawyers in Canadian courts, Allen Wynperle, a Hamilton, Ont.-based personal injury lawyer and president of the Ontario Trial Lawyers Association, said in a recent interview.

“I could see someone arguing that we should not be interfering with a jury’s duties lightly, and part of that [duty] is setting the damages,” said Wynperle. “It may not be on the same grounds that it was challenged in the U.S., because we don’t have that constitutionally-enshrined right to a jury.”

A nine-word passage in the Kansas state constitution says “the right of trial by jury shall be inviolate.” In contrast, the Canadian Charter of Rights and Freedoms provides jury trials when a defendant faces five years or more for jail time, with an exception for military law. Where there is a right to a jury trial in Canada, courts have said in the past that right “should not be taken away easily,” added Wynperle.

In Ontario, there is often a right to trial by jury for civil cases.

In Canada, caps and deductibles in Canada on pain and suffering awards (also known as non-economic or non-pecuniary) depend on the province. In Ontario the deductible for pain and suffering awards sits at $38,818.97, Campisi Law reports. And so basically, if a jury awards your client $39,000, that client in Ontario would actually get $181.03 once the deductible is factored in.

Newfoundland and Labrador has a deductible of $2,500 and the province may be raising that to $5,000.

Caps and deductibles do not apply to economic losses, such as loss of income, attendant care or medical and rehabilitation expenses.

“I do certainly think someone could say that if you have the right to a jury then you should let them make the decision [on how much money the plaintiff should get for pain and suffering],” said Wynperle.

In Canadian courts, lawyers frequently cite rulings from Canada, Britain and the United States (which continued using British common law after it became independent).

If a lawyer in Canada tried to argue that a judge should consider the Hilburn ruling from Kansas, the judge could rule that the Canadian case is distinguishable (meaning there are major differences between the case at bar and the case being cited), Wynperle said.

This is because the Kansas Supreme Court’s decision was based in large part on the specific wording of the state constitution, said Wynperle.

The state’s cap on non-pecuniary damages in personal injury lawsuits “substitutes the legislature’s nonspecific judgment for the jury’s specific judgment,” Kansas Supreme Court justice Carol Beier wrote. “The people deprived the legislature of that power when they made the right to trial by jury inviolate.”