In a motor vehicle accident case, no claim may be made for pain and suffering (or “non-economic” losses) unless the claimant can establish that the injuries sustained in the accident have resulted in a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement. Any permanent injury may be serious, depending on its impact on the individual. What may be serious to one, may not be serious to another. In the absence of something like a serious brain injury, paralysis, or a missing eye or limb, it may be a long time before the medical profession will give an opinion that an injury is serious or permanent. Any claim for non-economic losses in a motor vehicle accident case must be reduced from the amount awarded by judge or jury by $15,000.00 ($30,000 if accident after October 1, 2003).

In all cases, the total amount for non-economic damages is limited to an amount fixed by the Supreme Court of Canada in 1978 at $100,000.00, or approximately $300,000.00 in today’s money. Damages at this amount are normally reserved for the most seriously injured individuals. Damages, when fixed by a jury, can be enormously arbitrary, as the jury will usually be told very little about the amount to award, other than in very general terms. Judges usually fix non-economic damages having regard to similar types of awards in similar cases. Any estimate given by a lawyer, insurance adjuster or judge, is just that, however – an estimate.

Most damage awards in Ontario that proceed to trial are fixed by juries, unless the judge has dispensed with the jury for reasons of complexity of the case. In some cases juries are not permitted, such as cases against municipalities (public transit operators).