Date: Fri, 4 Aug 2006 22:27:41 -0400

From: David Cheifetz

Subject: More Canadian Cap On Non-Pecuniary Damages In Negligence Follies

Canadian members of this list should look at Westlake v Granby Steel (Ontario Court of Appeal).

It is a June 2006 decision that, like the recent Supreme Court of Canada decision in Young v Bella, could be seen to weaken the rationale for the continued existence of a cap on general non-pecuniary damages in "traditional" negligence actions for personal injury. (It does if one applies the logical implications. On the other hand, there is the famous dictum denying that a case is authority for anything other than that which it actually decides.) Whether that was intended is not clear. If it was not then, like Young v Bella, the judges should have been more careful.

The case also contains an obiter, seemingly off-hand, and without any discussion or citation of authority suggesting that there are types of negligence action for non-pecuniary general damages that are not caught by the cap at all.

The defendants were held liable, by judge and jury, for damages suffered by the plaintiffs as a result of an oil spill on their property due to the defendants fault. The jury awarded clean up costs, diminution in value of the property, and $250,000 for what the court of appeal describes as loss of enjoyment and inconvenience (para 17) even though there seems to have been no evidence of any DSM level psychological injury, indeed no evidence of "any ongoing medical problems" (para 21). Nonetheless, the CA affirmed the award (as did the SCC in Young) on the basis that there was evidence upon which the jury could have made an award of that value; therefore, the court did not have the power to interfere.

The defendants also argued the amount was too high by reference to the cap limit. The CA refused to decide if the cap applied because the issue hadn't been argued at trial and, in any event, the amount was below the cap.

The court wrote:

[19] We do not think that this is a case where the applicability of the cap to general non-pecuniary damages in this kind of negligence case can be decided. The amount awarded is below the cap, assuming the cap applies. Nor did the parties join issue at trial on the issue of the applicability of the cap. Instead, Granby took the position that as this was not a personal injury case, the trial judge had no statutory authority to provide a range of general damages for the jury. No range was left with the jury.

David Cheifetz

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