How is Compensation awarded in tort lawsuits?

Gain an understanding of compensation and deductibles in MVA cases

A number of different types of compensation are available to MVA victims:

• general damages for pain and suffering,
• special damages including past and future losses of income and/or loss of competitive advantage; out-of-pocket expenses; health care expenses (i.e. past and future expenses for rehabilitation and medical treatment); and past and future expenses for housekeeping and home maintenance, and
• damages under the Family Law Act (or “FLA”) for claims by family members of the injured person(s).

Canadian personal injury awards are very different from ones given in the U.S. U.S. media can sometimes distort Canadians’ perceptions of personal injury awards. Also, Canadian media often reports on amounts claimed by plaintiffs in their Statement of Claim but not when the case settles. Plaintiffs often seek millions of dollars, but their cases often settle for tens of thousands of dollars.

The Supreme Court of Canada capped awards for general damages for pain and suffering at $100,000 for the most serious cases – catastrophic loss to a young adult – in Andrews v. Grand & Toy Alberta Ltd. (1978). This upper limit is adjusted for inflation and is now about $390,000.

Compensation for general damages, health care expenses and FLA claims are subject to two legislative impositions: the threshold and the statutory deductible.

For personal injury claims involving MVAs, the deductible is $39,754.31 (waived if the award exceeds $132,513.28), and for FLA claims, the deductible is $19,877.16 (waived if the award exceeds $66,256.09). The amount of deductible is revised every year for inflation. The amount in effect at the date your case is settled or tried is the one that applies (Carroll (Litigation Guardian of v. McEwen (SCJ 2016) and Corbett v. Odorico (SCJ 2016)).

Examples of deductibles in MVA lawsuit:

• In 2021, after trial, Tony’s MVA personal injury lawsuit resulted in an award of $109,754. Because the award is dated in 2021, the 2021 numbers apply. Because his award is below $132,513, it is subject to the deductible. He receives $70,000 ($109,754 minus $39,754).
• In 2021, in settlement, Kyra’s MVA personal injury lawsuit resulted in an award of $140,936. Because the award is dated in 2021, the 2021 numbers apply. Because her award exceeds $132,513, the deductible is waived. She receives the full $140,936.

Examples of deductibles in FLA claim by deceased victim’s family members:

• In 2021, after trial, Zack’s FLA claim for loss of care, guidance or companionship of his spouse, Jessica, who had perished as a result of her MVA, resulted in an award of $24,877. Because the award is dated in 2021, the 2021 numbers apply. Because his award is below $66,256, it is subject to the deductible. He receives $5,000 ($24,877 minus $19,877).
• In 2021, in settlement, Clare’s FLA claim for loss of care, guidance or companionship of her spouse, Rick, who had perished as a result of his MVA, resulted in an award of $76,274. Because the award is dated in 2021, the 2021 numbers apply. Because her award exceeds $66,256, the deductible is waived. She receives the full $76,274.