The Nuts and Bolts
Authored by David M. José, B.A., LL.B. Since his Call to the Bar in 1995, David has represented both plaintiffs and defendants in personal injury claims, and today works exclusively as a mediator to help litigants resolve their civil litigation disputes. David is also a Small Claims Court Deputy Judge in Ontario, and this paper melds David’s interests in the topic, from both the perspective as a litigant and as a jurist.
Index
I. Personal Injury Claim Defined
A. Defining a Personal Injury Claim
The term “bodily injury” or “personal injury” generally refers to any injury, damage, or impairment to the body or person and, for the purpose of this paper, includes death. When individuals die, claims can be advanced by the deceased’s estate and/or by the deceased’s relatives as defined under the Family Law Act, R.S.O. 1990 c.F.3 (herein the “FLA”).
Bodily injury or personal injury claims exist even when there is no physical harm or injury. A person wrongfully incarcerated may have been treated with silk gloves, while nonetheless still sustaining a compensable personal injury when their body or person was unlawfully detained. Reputations can be harmed and be compensable despite any physical bodily injury (i.e.: defamation).
Similarly, the injury does not always have to be physical in nature – it can be a psychiatric injury alone, such as nervous shock, as was the case in DeBroyie (Next Friend of) v. Drenth, [1982] O.J. No. 869 (Sm. Cl. Ct.), where a young boy was horrified watching his brother get hit by a car while they were playing, leaving the plaintiff child unable to sleep on his own, afraid of cars, and unable to cross the street.
Essentially all of the foregoing features simply distinguish these losses from commercial and/or contractual losses. This said, on occasion a breach of contract can attract personal injury damages. See for example Richardson v. AEA Designer Group Inc., [2007] OJ No 5036 (Sm. Cl. Ct.) where a husband and wife were awarded $1,000 for mental anguish when the defendant breached the contract to provide them with a wedding video (that was lost due to technical issues).
II. Suitability Before the Court
B. Personal Injury Claims that are Well Suited for Adjudication Before the Court
The type of personal injury case that would be well suited for adjudication before the Court is potentially boundless, such that the attempt of this paper is to simply give the reader the tools to assess the factors that go into this assessment. The following list of examples, although not exhaustive, will explain the analysis and reasoning behind why such cases are well suited for adjudication by the Court, and hopefully this will leave the reader with the skill-set for assessing any personal injury case that is likely to share certain elements within all of these examples:
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- Modest personal injury claims involving elderly people: First, elderly people generally do not have significant loss of income claims to advance, and second, the expediency of a Small Claims Court proceeding brings their claims to resolution much quicker, so that they are able to enjoy the compensation before their health deteriorates further. If, however, there was a significant future care cost element to the claim, for example, then the plenary court would likely be the better forum;
- Claims involving short term loss of income and/or the need for past and future housekeeping and home maintenance support: There are many occasions when an injured party is capable of returning to work and normal activities after a course of rehabilitative treatment, such that their damages are relatively modest: claimants in this category are best served by having their cases resolved quickly. Indeed, this is even more so if the injuries arise from a car accident where a claimant must show that their injuries resulted in a serious and permanent impairment of an important bodily or mental function (aka the “Verbal Threshold”)[3], before they are entitled to receive any non-pecuniary damages or health care expenses. If a motor vehicle accident claimant is unable to pass the Verbal Threshold, their claims will be restricted to past and future loss of income and loss of home maintenance capacity[4] A loss of income, even for several months or a year, can still be quite significant and well served by the $35,000 monetary limit of the Court (i.e.: the shortfall between their normal income and whatever offsetting and deductible income benefits they may have received);
- Fatality cases, especially if there is an absence of a significant financial dependency component: There is a benefit to using the expediency of the Small Claims Court process to bring timely finality to the surviving family members. The prevailing caselaw would permit all independent claims to be brought together, as long as each individual claim fell at, or below, $35,000. In this environment, the Small Claims Court award would often mimic the result if the same claim was brought before the plenary court;
- Cases where there is a real certainty that the claimant will be held significantly responsible for the incident: These types of cases are very well suited for Small Claims Court adjudication because the defendant’s contributory negligence can be tested without the concern of a high legal cost award being made against the plaintiff. Having a forum where legal costs are effectively capped allows for more freedom to test access to justice. Second, because a Small Claims Court judge is unbounded in their ability to assess damages at any level, the recovery for a highly at-fault claimant may very well be on-par with the outcome in any other court. By way of illustrative example, the Small Claims Court could assess the claimant’s slip and fall damages at $125,000 (i.e.: $60,000 in pecuniary losses and $65,000 in non-pecuniary losses), and find the plaintiff significantly responsible at 75%, with the defendant being only marginally responsible at 25%, yielding a judgment for $31,250; and had the plaintiff lost (i.e.: 0% liability against the defendant), the legal fees owing to the defendant would typically be significantly less than what would be awarded in legal fees by a plenary court, following a trial;
- Cases involving wrongful arrest, assault, battery, and/or malicious prosecution: For the most part, and absent some extraordinary abuse, these events are typically short lived, and rarely lead to prolonged physical or emotional injury or impairment, such that the damage quantification often falls within the Court’s monetary jurisdiction;
- Defamation / Cyber bullying cases where the dissemination is perhaps rather limited, and/or where the plaintiff does not have a high public profile: These types of cases are generally well served under a $35,000 monetary jurisdiction and, in many cases, the goal is often less about the money and more about getting the defamatory comments or commentary to stop. Although the Court cannot grant injunctive relief against a defendant,[5] the mere fact that a defendant has to come to court and justify their words or their expression(s) made about the plaintiff, and to possibly have a monetary judgment made against them, is often sufficient to curtail the continuation of this conduct.
III. Procedural Aspects
C. Brief Overview of the Small Claims Court Process
* In this section, the bold numbers in brackets represent the related rule number within the Rules of the Small Claims Court, O Reg 258/98 (herein the “Small Claims Court Rules” or “SCC Rule”).
The proceeding is commenced when the plaintiff files a claim and serves it on the named defendant(s) (7.01, 8.01) who have 20 days to respond by serving and filing a statement of defence or a statement of defence with a defendant’s claim (i.e.: akin to a counter-claim) (9.01,10.01). No jury notices exist. Defendants may admit the claim against them and propose terms for payment without having a judgment signed. Terms of payment hearings are conducted by the Small Claims Court judge, payment terms are ordered, and judgment is only entered if there is default in the payment arrangement (9.03). Interlocutory motions are permitted (15), but they are typically more restricted than the types of motions that can be brought before a plenary court.
Defended actions proceed to a mandatory settlement conference where issues are narrowed, document and witness disclosure is made, and settlement is canvassed (13.01, 13.03). In some cases, and subject to natural justice concerns, it may be appropriate for a settlement conference Deputy Judge to consider making a final order striking out a claim or defence under SCC Rule 12.02 (13.05(2)(a)(iv)) or staying or dismissing a claim (13.05(2)(a)(v)).[6] In lieu of having no Affidavit of Documents or oral discovery requirements, it is expected that the pleadings contain copies of the central documents of importance and, if required, more comprehensive disclosure can be made at or, if requested from the other side, during the settlement conference where the presiding judge can make production orders if necessary. Unsettled matters are set for trial before a Small Claims Court judge (13.07). The rules for admissibility of evidence at trial are relaxed (18)[7]. Judgments on claims involving more than $3,500 may be appealed to the Divisional Court. Cost awards are typically awarded in favour of the successful party and can include a representation fee not to exceed 15% of amount claimed.[8] Unreasonable behaviour or rejected settlement offers may give rise to a cost award beyond 15% of the amount claimed (14.07, 19.04).[9] A litigant may be represented by themselves (self-representation), family, friends, paralegals, students-at-law (articling students), and lawyers.
Summary
As is evidenced from the above outline, Small Claims Court proceedings are intended to be a very quick and expeditious summary hearing process. Indeed, if litigants try to overly complicate matters, they do so at their own risk as the Court can make an increased cost award against them.[10]
D. Pleadings
The Need to Waive Recovery Beyond the Monetary Limit
A claimant cannot formally seek a judgment for more than the monetary limit of the Court. Indeed, if the claimant does so, the claim must be struck out for lack of jurisdiction: Helsberg v. Sutton Group Achiever’s Realty Inc., [2002] OJ No 2311, 165 OAC 122 (Div. Ct. – Sm. Cl. Ct.).
There is some debate whether a claim for more than the Court’s monetary jurisdiction is capable of being cured through an amendment afterwards to decrease the amount claimed. Based on Helsberg, supra, the answer is likely no, on the pretence that if the Court lacks jurisdiction, it lacks jurisdiction to do anything: including making an order amending the amount claimed. In Lock v. Waterloo (Regional Municipality) (cob Grand River Transit), [2011] OJ No 4898 (Sm. Cl. Ct.) the presiding Deputy Judge amended the pleading to reduce a $1,000,000 claim to the then $25,000 jurisdiction of the Court, but in doing so, the judge acknowledged that this may be an affront to the law as set out in Helsberg and that, in effect, whatever judgment the judge was going to make may very well be a nullity (i.e.: if it was appealed). The Deputy Judge cautioned that the better practice would be to correct these things before it reached the Court, and not after.
But the concept of abandoning the excess does not mean that the claimant cannot, or should not, assert (or set out) a set of facts that demonstrates a loss greater than the monetary jurisdiction of the Court, as long as the prayer for relief is capped at the monetary limit of the Court. This is often referred to as an expressed acknowledgment in the pleading that despite the fact that the claimant is asking the court to assess their damages in excess of the Court’s monetary limit, they expressly agree to abandon the excess in order to bring the claim within the monetary limit of the Court. As noted above, absent this written and express acknowledgment (or expressed abandonment of excess damages), the Claim may very well have to be abandoned, unless it is transferred to the Superior Court of Justice: Alexandrov v. Csanyi (2009), 247 O.A.C. 228 (Div. Ct.), at para. 9.
The Prohibition against Splitting the Case
Parties cannot get around the Court’s monetary limit by “splitting” their claim into two or more proceedings in order to bring the claim within the Court’s jurisdiction [SCC Rule 6.02]. For example, it is impermissible to break a $70,000 loss stemming from one contract breach into two separate $35,000 Small Claims Court Claims. This said, it is not an affront to SCC Rule 6.02 if two parties on one side of a contract join to sue the other side in one proceeding with a combined total exceeding the Small Claims limit (though not of course twice that limit).[11]
Each Plaintiff has a Distinct and Separate Claim up to the Monetary Limit
In the context of a personal injury claim, each distinct plaintiff has an independent claim and is entitled to claim the maximum monetary limit (within one proceeding), because to do otherwise would be to invite a multitude of proceedings: Lock v. Waterloo (Regional Municipality) (cob Grand River Transit), [2011] OJ No 4898 (Sm. Cl. Ct.). See also Tope v. Stratford (City), [1994] O.J. No. 3097 (Sm. Cl. Ct.) where a wife (as primary claimant) and her husband (as derivative FLA claimant) were permitted to advance their claims for the full monetary limit each. In simple terms, each FLA claim is an independent claim, that can be brought in its own right, and is governed by its own limitation period.[12]
What would be an affront to the rules and the statutory provisions dealing with the Court’s monetary cap is a personal injury claimant, for example, bringing five separate $35,000 lawsuits for damages arising from the same motor vehicle accident, with each Claim advancing a separate head of damage – one for general damages for pain and suffering, one for past loss of income, one for future loss of income, one for past and future medical care costs, one for loss of housekeeping capacity, etc. This would be an attempt to have the Court make an award well in excess of its jurisdiction by splitting a singular cause of action into multiple claims.
Be Mindful that the Amount Claimed Can Impact the Amount of Costs Awarded
When drafting a pleading, it is very important to try and seek the correct amount. Costs are typically capped at a 15% of the amount claimed: hence, if the case is really worth $5,000 but the Claim was brought for $35,000, the claimant may have exposed themselves to a cost award of up to $5,250: by contrast, had they asserted their claim for $5,000 and lost, their maximum cost exposure would have been $750 (all assuming the absence of any unusual circumstances). Conversely, pleading an amount that is too low can backfire as well, like in Boyce (Litigation guardian of) v. Woodstock (City), [1993] O.J. No. 2532 (Sm. Cl. Ct.) where the Court assessed $1,410 in personal injury damages, but had to reduce the judgment to $1,000 which was the amount claimed.
IV. Damages
E. The Interplay Between the Monetary Jurisdiction of the Small Claims Court and How Damages are Assessed.
Damages in Small Claims Court are assessed as normal without any monetary restriction.[13] One misconception is that judges of the Small Claims Court cannot assess damages above $35,000. Judges of the Court can assess damages at any scale or level (i.e.: in theory they could assess damages in the millions), however, whatever the damage assessment may be, the Court cannot render judgment beyond $35,000, despite assessing the damages for perhaps many multiples above $35,000.
This concept first emerged from a “pleadings” case decided in the early 1960’s called Burkhardt v. Beder, which found its way to the Supreme Court of Canada, 1962 CanLII 18, 1962 CanLII 18, 1962 CarswellOnt 78, [1963] S.C.R. 86, 36 D.L.R. (2d) 313 (SCC). Although this concept has been “tested” numerous times, the net effect is that the courts (whether it be in the context of monetary limits of the Simplified Proceedings or that of the Small Claims Court) have consistently held that the court can (and must) assess damages in the normal course, and give judgment for that amount, up to the monetary limit of the subject court.[14]
After damages are assessed, it is often the case that further adjustments are needed, such as potential reductions for any applicable deductibles, followed by a reduction for any finding of contributory negligence, and possibly followed by further reductions for any collateral benefits and/or advanced payments received. In some cases, none of the above apply (i.e.: defamation), but in other cases, all of the above potentially apply (i.e.: motor vehicle accident claims).
After all of the adjustments are made, if the final recovery for the plaintiff is above $35,000, the court will further reduce the amount down to $35,000, (exclusive of interest, costs, and disbursements).
F. Summary of the Common Types of Damages Claimed
As explained more fully above, each distinct plaintiff has an independent claim and is entitled to claim the maximum monetary limit, and that limit can be reached through a combination of various different heads of damages, all of which must be claimed in one proceeding when such damages are applicable to the plaintiff’s case, of which the following are the most common:
Non-pecuniary General Damages
In the case of defamation, general damages are assessed for the damage to reputations. In most other cases, general damages are awarded as compensation paid toward pain and suffering and loss of enjoyment of life. Although there is no hard and fast rule, the court generally looks at what the “human” tole has been on the individual. It is a subjective assessment. A lost fingertip for a construction worker is apt to impact their lives much less significantly than a lost fingertip to a world class guitarist, by way of extreme example. For one person the lost fingertip may be nothing more than a little embarrassing, whereas for another the lost fingertip could be career ending and life altering. In Boyce (Litigation guardian of) v. Woodstock (City), [1993] O.J. No. 2532 (Sm. Cl. Ct.), the court outlined some of the factors to consider in assessing general damages for personal injury, as follows:
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- Whether there was any hospitalization
- Whether there was any surgery/ anaesthesia
- The number of visits to doctors
- The number of visits to physiotherapy
- Whether there were any casts/devices applied
- The degree of lifestyle changes, if any
- Whether there were any drugs taken, and effects
- Was there any scarring
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The assessment of general damages is done on a functional approach. There is a judicially imposed monetary cap on general damages, established in 1978,[15] in the sum of $100,000. Indexed for inflation, this “cap” is roughly $400,000 as of the date of this article. But what is important is that even though the upper limit is reserved for the most serious cases, such as quadriplegia, the assessment of general damages is not simply a scaling of damages against the upper limit as explained in Lindal v. Lindal, [1981] 2 S.C.R. 629 (at paras 28-32), and it matters not whether the impairment and impact on life is caused by a physical injury rather than a psychological injury. Courts generally try to keep assessments in-line with prior rulings so that there is an element of predictability and fairness in the assessment of an otherwise nebulous, arbitrary and non-numerically derived head of damage. Litigants should, where possible, endeavour to give the presiding judge a list of other cases where damages have been assessed for similar injuries with similar impacts on the life of the claimant.
Past Loss of Income
Generally, past loss of income is simply a mathematical calculation of the wages, tips, over-time, loss of fees, etc. that were lost up to the time of trial because of the injuries sustained in the accident. There are some statutory alterations to this formulation in cases involving injuries sustained in a motor vehicle accident, and these are outlined in the next section entitled “Special Considerations for Motor Vehicle Accident Personal Injury Claims.”
Past Cost of Care
A past cost of care loss usually involves unrecovered expenses for drugs, medical supplies, nursing, housekeeping, and caregivers needed because of the accident, up to the time of trial.
Future Loss of Income or Loss of Income Earning Capacity
A future loss of income or a loss of income earing capacity is an assessment of the most likely outlook for the claimant’s ability (or inability) to work in the future with and without the accident-related injuries, and then compensating the claimant for any differences that are accident related.
Sometimes the quantum is more easily defined, such as in a case where the claimant has a long work history at the same job, and the accident unequivocally prevents the claimant from working again. In this type of scenario, a court is apt to multiply all the remaining years to the claimant’s anticipated age of retirement against the claimant’s yearly income at the time of the accident.
At other times, the loss of future income is incapable of a quick mathematical calculation. For example, a young claimant without a fulsome work history, or a claimant who may return to work but in a different capacity, involves a high degree of speculation about the claimant’s future income earning potential. But despite the challenges, the court still must delve into assessing whether there is any future loss of income. It is an award for the loss of an asset known as the capacity to earn income (M.B. v. British Columbia, 2003 SCC 53 (CanLII), [2003] 2 S.C.R. 477 at para. 47; Lazare v. Harvey, 2000 ONCA 171 (C.A.); Boucher v. Walmart Canada Corp., 2014 ONCA 419 (C.A.) at para. 102).
The plaintiff need only establish that their future income loss is a real and substantial possibility because of the injuries they sustained, and it is not a loss that needs to be established on a balance of probabilities: Lazare v. Harver, 2008 ONCA 171 (C.A.) (CanLII). The higher and/or more substantial the risk of the plaintiff suffering such a loss, then the higher the award they should receive. Shrump v. Koot (1997) 1977 CanLII 1332, 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990),1990 CanLII 7005 (Ont. C.A), 75 O.R. (2d) 622 (C.A.). Specifically, in Shrump, the appellate court said:
In determining the future pecuniary loss, which at best must be an estimate, the court should take into consideration the evidence of both positive and negative contingencies which may affect that loss. Giannoni v. Weinberg (1989), 1989 CanLII 4046, 68 O.R. (2d) 767 (C.A.), Beldycki Estate v. Jaipargas, [2012] O.J. No. 3769, 2012 ONCA 537 (C.A.). Specific contingencies referring to a particular plaintiff requires evidence of a realistic, and not a speculative, possibility that they will materialize for the particular plaintiff.
As stated in Meady v. Greyhound Canada Transportation Corp, [2012] OJ No 543, 2012 ONSC 657, 27 MVR (6th) 15, 2012 CarswellOnt 749, 212 ACWS (3d) 251 (S.C.J.):
There is no rule requiring a plaintiff to obtain an actuarial assessment of their future loss of income claim and, indeed, the plaintiff may not have the resources to retain an expert but nonetheless have other persuasive documentary or testimonial evidence at their disposal to quantify the loss: Fiddler v. Chiavetti, [2010 O.J. No, 1159, 2010 ONCA 210 (C.A.). This said, if the loss of income calculation is complex, and likely beyond the judge’s ability to assess using simple math, then it behoves a claimant to get expert evidence and not leave things up to chance, where the judge is more apt to get to the wrong result absent some actuarial input.
Future Care Costs
A claim for future care costs is an assessment of what the claimant will need, on a balance of probabilities, in medical care and attention in the future solely because of the incident induced injury and impairment. This grouping can include things such as drugs, medical supplies, medical devices, therapy, counselling, massages, assistive devices. “Money is a barren substitute for health and personal happiness, but to the extent within reason that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim.” (Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, per Dickson J.). Again, in motor vehicle accidents, there is legislation that modifies a claimant’s common law entitlement to future care costs, which is more fully outlined in the upcoming section entitled “Special Considerations for Motor Vehicle Accident Personal Injury Claims.”
Loss of Housekeeping Capacity
There is a pecuniary and non-pecuniary element to a person’s loss of housekeeping and/or loss of handyman capacity. “Damages for loss of housekeeping capacity are compensable if, as a result of their injuries, a person loses the ability to carry out certain household functions and/or takes longer to perform those functions. When assessing damages for loss of housekeeping capacity, the Plaintiffs must prove that there is a real and substantial risk that he/she has lost the ability to carry out the household functions that he or she performed prior to the accident, or whether the Plaintiff took longer to complete the household functions that he or she performed prior to the accident.” Meady v. Greyhound Canada Transportation Corp., [2012] OJ No 543, 2012 ONSC 657, 27 MVR (6th) 15, 2012 CarswellOnt 749, 212 ACWS (3d) 251 (S.C.J.).
The loss does not have to involve the outlay of money. If it does, then that is a pecuniary recovery. But even if the claimant gets gratuitous assistance, the fact that they can no longer do the task themselves is compensable as a non-pecuniary loss. McTavish v. MacGillivray, 2000 BCCA 164, [2000] 5 W.W.R. 554, 74 B.C.L.R. (3d) 281 (B.C.C.A.) and Deglow v. Uffleman, 2001 BCCA 652, 96 B.C.L.R. (3d) 130 (B.C.C.A.). When it comes time to assess future (unknown) housekeeping losses, it cannot “be assessed with absolute certainty and mathematical precision. Rather, it requires a court to predict the future to some extent – and to use its best ability to do so.” Watts v. Donovan, [2009] O.J. No. 2208, 2009 CarswellOnt 3051(S.C.J.).
Out of Pocket Expenses that Do Not Fit into Any of the Above Categories
Out-of-Pocket expenses are those that were incurred solely due to the fault of the defendant. This would include such things like the cost for taxis to therapy or hospitals, parking fees to get to accident-related therapy or to receive some accident-related medical attention, funeral costs, etc.
Aggravated Damages
Aggravated damages are awarded if additional harm occurred in a humiliating or undignified circumstance that is connected to the initial tort: Norberg v. Wynrib, [1992] S.C.J. No. 60, [1992] 2 S.C.R. 226 (S.C.C.). For example, two people could have the identical general damage claims for wrongful detention (detained for the same reason and for the same amount of time, etc.), but if one of the individuals was continually laughed at, teased, and taunted by the defendant while in custody, the Court could very well award aggravated damages in favour of that taunted individual, which is an award likely not available to the other.
Punitive Damages
Punitive damages “are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency” … The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour.” [Whiten v. Pilot Insurance Co. [2002] 1 S.C.R. 595, per Binnie J.] A prior criminal conviction or acquittal does not bar an award of punitive damages, although the criminal disposition may be considered in the civil suit. [McIntyre v. Grigg, [2006] O.J. No. 4420 at paras 79-81, 83 OR (3d) 161 (Ont. C.A.); Victims’ Bill of Rights, 1995, S.O. 1995, c.6, s.4(3).]
One important note is that punitive damages are not available to FLA claimants in Ontario. [Lord v. Downer, [1999] O.J. No. 3661, 179 D.L.R. (4th) 430 (Ont. C.A.); Latimer v. Canadian National Ry. Co., [2007] O.J. No. 762, 2007 ONSC 5689 (Ont. S.C.J.)].
It is a requirement under the Rules of Civil Procedure that punitive damages are expressly pleaded (25.06(9)), and although there is no similar requirement under the Small Claims Court Rules, it would be sensible to follow this practice, otherwise there is a risk that such a claim may be struck out, notwithstanding that the Court does grant a lot of leeway for poor pleading craftsmanship.
Loss of Care, Guidance and Companionship
Relatives (as defined in the FLA) can claim damages for the loss of care, guidance and companionship normally provided by the person injured or killed by the at-fault party. The courts rely very heavily on past awards to maintain conformity, and based on the case of Fiddler v. Chiavetti, 2010 ONCA 210, today’s cap on FLA non-pecuniary damages would be approximately $147,000 as of the date of this article.
OHIP Subrogated Claims
If the claim involves harm to the body that requires medical treatment in Ontario, these costs are tallied by the Ministry of Health (the “MoH”), who have a statutory right to seek recovery from any at-fault party who caused those medical expenses to be incurred. Every personal injury claimant who received these medical services is obligated to include, within their claim, a request or demand that the defendant reimburse the MoH for the cost of historical medical services and, in some cases, an anticipated amount representative of what may be expected to be paid by the MoH in the future.
This rule, however, does not apply to claims brought by people injured in motor vehicle accidents, and the reader is encouraged to read to the upcoming section entitled “Special Considerations for Motor Vehicle Accident Personal Injury Claims,” as well as the subsection entitled “OHIP Subrogated Claims” in section “V” below, entitled “Some Potentially Thorny Issues.”
For any head of damage being asserted, the plaintiff must establish a causal connection between the alleged loss and an actionable wrong committed by the defendant. It is always open for the defendant to challenge the losses on the grounds that they did not occur because of the accident or alleged incident. For instance, a claimant may assert and mathematically prove that they incurred $100 per month in snow removal services post-accident, but if the claimant had been paying this amount for five years prior to the accident, the defence may argue it is not an accident-related expense. A judge will have to decide whether the expense is needed because of any accident-related impairment(s), or if this is simply an expense of convenience for the claimant.
G. The Reductions that Follow
After the damages are assessed, the reductions begin. The parties must be astute to the various common law and statutory deductions that might be in play. This is a large topic in of itself and will not be fully addressed in this paper. This said, to give the reader an idea of some of the things that can often come into play in reducing the initial damage assessment are things like:[16]
Keep in mind, however, that the foregoing factors may not always come into play: it depends on the type of personal injury case being advanced. A motor vehicle personal injury claim will likely involve all the foregoing elements, whereas very few of these factors will go into assessing damages in a defamation claim. The reader is encouraged to read similar cases to the one they intend to bring, or defend, to get a better sense of the issues surrounding damage assessments (which can be easily found in the Chart of Cases at the end of this paper).
Of particular importance, however, is the order of these reductions: they should be considered in the order presented above, because switching the timing of their application can lead to very different (and improper) results. For example, applying a $30,000 deductible before applying some contributory negligence yields a much higher recovery than if the deductible was applied last. By way of illustration, a $50,000 damage assessment, reduced by $30,000, and then split 50/50 because of contributory negligence, yields a $10,000 net recovery for the claimant (the proper way): but if done in reverse, the claimant would yield zero dollars ($50,000 divided by two, less $30,000, is negative $10,000, or zero). The proper approach yields a $10,000 recovery, whereas the improper approach deprives the claimant of any recovery.
H. Special Considerations for Motor Vehicle Accident Personal Injury Claims
Unlike most personal injury claims that are governed by the development of the common law (i.e.: the evolution of tort law), personal injury claims that arise from the use or operation of a motor vehicle have since been highly (and uniquely) modified by statute and associated regulations. It is very important to understand the more significant differences facing litigants who are involved in motor vehicle accident, such as:
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a) There is no right to sue for personal injury damages if the injured party was operating an uninsured motor vehicle (section 267.6(1) of the Insurance Act); b) An action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile shall not be commenced unless the plaintiff has applied for statutory accident benefits (section 258.3 (1) of the Insurance Act): the Insurance Act then spells out what happens if this is not followed in section 258.3(9) which reads: “(9) Despite subsection (1), a person may commence an action without complying with subsection (1), but the court shall consider the noncompliance in awarding costs;” c) Unique to motor vehicle accident personal injury claims is the imposition of a statutory monetary deductible, which is indexed every year. In 2021, the statutory deductible was set at $39,754.31 for those injured in a car accident, and $19,877.16 for any claim under the FLA brought by a relative who sustained a loss of care, guidance and companionship from the impaired person injured in a car accident. Pursuant to section 267.5 (8.1.1) of the Insurance Act, no deductibles apply in respect of fatality claims arising from the use or operation of a motor vehicle that occurred after August 31, 2010; d) Also unique to motor vehicle accident personal injury claims is the requirement that the person involved in the motor vehicle accident either died or the survivor must establish on a balance of probabilities[21] that they sustained “a permanent serious disfigurement or a permanent and serious impairment of an important physical, mental or psychological function” within the meaning of s. 267.5(5) of the Insurance Act, often referred to as the “Threshold”).[22] If this Threshold is not established, the claim for non-pecuniary general damages and health care costs will be dismissed,[23] both as advanced by the primary claimant and as advanced by any derivative claimants under the FLA. What will survive, however, is any loss of income claim and claim for loss of housekeeping capacity claims, if any. Under the Insurance Act, a motion can be brought before or at trial to have the court make a ruling on the Threshold. The Court ruled in Kotsos v. Wang, [2017] O.J. No. 2072 (Sm. Clm. Ct.) that such a motion is within the scope of the Small Claims Court. e) Claims for loss of income caused in a motor vehicle accident are subject to a few additional constraints. In non-motor vehicle cases, past loss of income is calculated on 100% of the claimant’s gross income loss. If the claimant received income supplements during their downtime from employment, these would be deducted unless these income supplements came from a privately funded disability insurance purchased by the claimant (i.e.: the negligent defendant should not benefit from the plaintiff’s forethought to purchase private insurance).[24] CPP disability benefits are not deductible either (Canadian Pacific Ltd. v. Gill, [1973] S.C.R. 654 (S.C.C.)). However, if the injuries were caused by a motor vehicle collision, there is no available claim for the first week of income loss, and thereafter, any past income loss is assessed at 70% of gross income,[25] subject to a dollar-for-dollar collateral benefit reduction (i.e.: SABS Income Replacement Benefits, CPP Disability, LTD, etc.).[26] Future loss of income is subject to another formula (which is consistent as between motor vehicle and non-motor vehicle cases). A claimant can recover 100% of their gross anticipated income, however, a motor vehicle accident-related claimant must hold potential future collateral income benefits in trust for,[27]or have them formally assigned to,[28] the insurer in proportion to the damages paid out; f) Healthcare expenses recovered through other insurance is also deductible pursuant to subsection 267.8(4) of the Insurance Act and pursuant to subsection 30(5) of the Health Insurance Act. These sections are unique to motor vehicle claims, but for good reason. First, a very vibrant accident benefit scheme was created for people injured by motor vehicle accidents (called Statutory Accident Benefits or “SABS” for short), and it is important that there is a provision that spells out that any medical treatment already paid for through the SABS is deducted: there is no equivalent for other types of injury causes (i.e.: slip and falls, etc.). But section 267.8(4) also extends deductions to “all payments in respect of the incident that the plaintiff has received before the trial of the action under any medical, surgical, dental, hospitalization, rehabilitation or long-term care plan or law.” Motor vehicle accident-related claimants must hold potential future collateral health care benefits in trust for,[29] or have them formally assigned to,[30] the insurer in proportion to the damages paid out. As noted earlier, every claimant must bring an OHIP subrogated claim on behalf of the MoH to recover what they paid for care and treatment of the injuries sustained by the claimant by a negligent defendant: but this is not the case when the injury occurs as a result of a motor vehicle accident. Through other related statutes and regulations, there is recognition of a private agreement made between the MoH and all automobile insurers licenced in Ontario that provides for blanket (and not case specific) funding/recovery, such that in theory the defendant (or more precisely the defendant’s insurer) has already paid the MoH for those services, and hence there is no need for a motor vehicle accident claimant to bring an OHIP subrogated claim. One tricky scenario is when the claim is against a non-automobile operating defendant (i.e.: a tavern who served alcohol to intoxicating levels). Normally, it would be expected that this non-automobile defendant ought to respond to a OHIP subrogated claim since the tavern is not being sued in its capacity as an owner or operator of a motor vehicle, which is true: however, there is a notable exception in this situation. A non-automobile defendant whose negligence contributes to causing a motor vehicle accident can escape liability for a OHIP subrogated claim if they owned a car (or a company car as the case may be) at the time of the incident: in this instance, the law considers this defendant’s insurer as having participated in the private funding agreement with the MoH, and hence insulated from any an OHIP subrogated claim. Any non-automobile entity without a car insurance policy, however, who is wholly or partly responsible for causing a motor vehicle accident will be exposed to the OHIP subrogated claim at the instance of the injured claimant;[31] g) Section 193(1) of the Highway Traffic Act, R.S.O. 1990 c.H.1 (the “HTA”), effectively deems a driver responsible for any motor vehicle accident that injures a person not in a motor vehicle (i.e.: pedestrian, cyclist, skateboarder, etc.), unless the driver can prove otherwise. This is often referred to as a reverse onus, because normally the onus is squarely on the plaintiff to prove every aspect of their case. As such, section 193(1) of the HTA represents a significant departure where the defendant must establish why they are not wholly or partially at fault when they injure people outside of motorized vehicles (i.e.: they can try to prove that the plaintiff was j-walking, or crossing on a red light, etc.). h) Although this next topic is not about any personal injury, a tandem claim often arising from motor vehicle collisions is a property damage claim for damage done to the vehicle or other property during the collision. First, if such a claim is contemplated, the following should be kept in mind:
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V. Some Potentially Thorny Issues
Since personal injury claims are less commonly brought before the Court, there still remains some interesting issues that have yet to be fully vetted and clarified by the Court to date. What follows are a few examples of some of thorny issues that may require clarification as the Court continues to be called upon to resolve personal injury claims.
I. Defence Medicals
Defendants routinely seek to have plaintiffs examined by a medical professional when the plaintiff’s health is central to the case, which invariably involves the vast majority of personal injury cases. Because these medical examinations are requested by the defendant, they are often colloquially referred to as “defence medicals” and are governed by Rule 33 of the Rules of Civil Procedure when the matter is before the regular courts.
There is, however, no equivalency in the Small Claims Court Rules. Simply put, aside from the Court’s power to make documentary production orders between the parties at a Settlement Conference (SCC Rule 13.05(2)(a)(vi)) and a requirement to include relied upon relevant documents in the pleadings (SCC Rule 7.01(2).2.)), discoveries are not a part of a Small Claims Court proceeding. Indeed, the SCC Rules are devoid of any equivalent rule for documentary discovery (Rule 30), non-party productions (Rule 30.10), oral discovery (Rules 31 & 34), property inspection (Rule 32), written interrogatories (Rule 35), taking evidence before trial (Rule 36), and cross-examinations on affidavits (Rule 39.02). The case of Garg v. Raywal Limited, 2014 CanLII 45320 (Ont. Sm. Clm. Ct.) provides an excellent history and dissertation on the very restricted discovery rights for litigants before the Court.
Hence, in cases like Elguindy v. St Joseph’s Health Care, [2016] OJ No 2742, 2016 ONSC 2847 (Div. Crt. – appeal Sm. Cl. Ct.), it was ruled that the Court cannot order a non-party doctor or clinic to produce the plaintiff’s medical chart because, amongst other reasons, the SCC Rules does not have a “non-party” production rule like Rule 30.10. Similarly, there have been a number of cases where inspection of property has been denied on similar grounds, including Garg, referenced above.
There has yet to be a reported case on whether defence medicals are to be similarly grouped as an unavailable discovery right (due to the absence of a specific rule), or alternatively whether defence medicals ought to be treated differently and made available in a Small Claims Court proceeding.
In Kotsos v. Wang, [2017] OJ No 2072 (Sm. Cl. Ct.), the Deputy Judge made reference to issuing an earlier order denying a defence medical request, but there is no reported decision of that judge’s prior denial ruling. In the case of Frederick v. Osborn, [2003] OJ No 2215, 123 ACWS (3d) 481 (Sm. Cl. Ct.), the Deputy Judge dealing with timing issues for a pending trial touched on the issue of whether a motion for a defence medical will impact the timing of the trial: however, because the defendant had yet to bring that motion, this decision did not squarely address such a motion, although the presiding judge was arguably leaning towards a conclusion that a defence medical examination was available to the defendant under section 105 of the Courts of Justice Act, R.S.O. 1990 c.C.43 (herein the “CJA”), if such a motion had been brought.
Although it is enticing to group defence medicals into the same “discovery” type sections of the Rules of Civil Procedure, there is good argument for why medical examinations ought to be treated differently because of the provisions within the CJA.
Of seminal importance (or perhaps distinction) is that the CJA does not create any discovery rights, but it does grant a party the right to medically examine another party who brings into issue their medical condition (Section 105).
The other “discovery” rights, by contrast, are solely the creation of the Civil Rules Committee, under section 66 of the CJA. In this instance, the Rules Committee clearly envisioned broad discovery rights in a plenary court proceeding, and very restricted discovery rights in a Small Claims Court proceeding. This is why the decision in Elguindy makes sense: the absence of a discovery right to obtain third party records in the SCC Rules means that this discovery right was not granted to litigants in a Small Claims Court proceeding.
Medical examinations may have been similarly grouped if it was not for section 105 of the CJA which specifically grants the “court” (a term that does not exclude the Small Claims Court) the power, on motion, to order a party “to undergo a physical or mental examination by one or more health practitioners where the physical or mental condition of a party to a proceeding is in question.” SCC Rule 15 permits parties to bring a motion before the Court, and the rule doesn’t exclude a motion to compel a plaintiff to attend a medical examination under section 105 of the CJA.
As such, the right to have a party medically examined (when their health is in question) is enshrined in the CJA, and no rule (or the absence thereof) ought to be able to extinguish this right. Indeed, subsection 66(3) of the CJA states that the Rules Committee is not to make “rules that conflict with an Act,” and they can only make rules that supplement “the provisions of an Act in respect of practice and procedure.” The power to make a rule is clearly permissive, leaning to an interpretation that the rights given by statute still exist regardless of whether there is a corresponding rule; but if there is a rule, the rule is acceptable as long as it does not conflict the provisions of an Act.
Although it would be ideal if there was a SCC Rule that governed defence medicals to “supplement” medical examination rights under section 105 CJA “in respect of practice and procedure,” the absence of such a rule only means that judges of the Court will undoubtedly have to fill the gap with rulings that give guidance and parameters, probably akin to Rule 33, or perhaps even more restrictive to ensure that delays and costs are tempered to coincide with the overall objectives of a Small Claims Court proceeding.
Although more jurisprudence is needed to establish whether defence medicals are available in a Small Claims Court proceeding (or become the norm or perhaps the exception), the case of Riddell v. Apple Canada Inc, [2016] OJ No 4934, 2016 ONSC 6014 tends to lean support for adopting defence medicals in personal injury claims before the Court. In Riddell, the Court ordered the plaintiff to hand over his iPhone that allegedly overheated and burned his skin, so that it could be examined by the defendant manufacturer. Again, there is no equivalent “inspection” Rule 32 in the SCC Rules, yet the order requiring the plaintiff to hand over his iPhone to the defendant’s expert was upheld on two appellate reviews.
The comments made by the Divisional Court in Riddel could very easily be transferrable to a request for a defence medical. Adopting some of the phrases in the Ridell decision reveals why a defence medical examination is likely to be warranted: “some expert assistance will be necessary,” “expert assistance needs to be provided in advance of the trial,” “the only way of ‘levelling the playing field’ and ensuring that fairness between the parties is achieved …(is to order)… an inspection,” “an unlevel playing field is the result which is not just, fair or agreeable to good conscience.”
If these arguments about trial fairness and the need for expert assistance in a complex matter were persuasively made in Riddel in the context of a cell phone inspection, it seems illogical to reject the same reasoning in the context of a medical inspection, especially when there is a substantive right to one (s.105 of the CJA), and it is over a topic matter where the court needs the help of an expert to understand a complex subject matter: in this case the human body. Additionally, it is arguably inherently unfair to allow one party to tender medical expert opinion to the exclusion of their opponent.
And as expressed previously, no Rule could be adopted that would deny a party the right to a defence medical since such a rule would be an affront to section 66(3) of the CJA: silence in the SCC Rules cannot be the means upon which to deny a defence medical examination in a Small Claims Court proceeding.
The Deputy Judge in Kotsos v. Wang, supra, denied a defence medical examination and explained that it was not an affront to justice to have a defendant proceed to trial without a defence medical, which seems to run counter to the authority cited above:
Currently there is still uncertainty surrounding the use and availability of defence medical examinations in Small Claims Court proceedings. Cases like Kotsos, noted above, suggests that they are not needed, but there is compelling argument to suggest that the reasoning in Kotsos may be faulty and that section 105 rights must be protected by the Court, consistent with Frederick, noted above.
Another example of where a statutory right exists but is not covered by a corresponding Small Claims Court Rule, could be the right of newspapers or broadcasters to seek security for costs under section 12 of the Libel and Slander Act, R.S.O. 1990, c L.12 (the “LSA”). Even though the Small Claims Court Rules make no provision for security for costs, such silence likely does not extinguish the legislative right for newspapers and broadcasters to pursue such relief before the Court under the LSA.
J. Expenses Paid from Joint Bank Accounts
Because of the monetary cap, a unique issue can arise for judges of the Court when it comes to special damages or expenses paid through a joint bank account. Illustrative of this scenario is a case brought before the Superior Court of Justice called Stopyn v. Loopstra, [2001] OJ No 4628, [2001] OTC 874, 110 ACWS (3d) 205 (S.C.J.). In Stopyn, the wife was provisionally awarded $40,000 in general damages for botched cosmetic surgery. As such, if this case were before the Court, the maximum amount the Court could award the wife would be $35,000. But the husband was also awarded general damages in the sum of $10,000, and $10,000 for loss of income, totalling $20,000. Again, if this case was before the Court, the husband could be awarded the full amount, and indeed, the husband would have $15,000 of “headroom” before reaching the Court’s monetary cap of $35,000. At the end of the judgment, the trial judge awarded $16,380 in special damages for some post-constructive surgery that the wife required to remedy the negligent work of the first surgeon. Obviously if this awarded expense was to be applied to the wife’s ledger, none of this expense would be recoverable through the Court. By contrast, if this expense was applied to the husband’s ledger, $15,000 of that $16,380 would be recoverable (almost 92% of it).
The question of whose ledger that expense award belonged to was, of course, not addressed in the decision because it was a judgment made by a plenary court where the monetary jurisdiction is unlimited. However, had this or a similar case come before the Court, the treatment of this out-of-pocket expense is a real issue: was the $16,380 expended toward corrective surgery a special damage for the wife who received the procedure, or was it the husband’s special damages? Does the answer change if they only had one (joint) bank account? Does the answer change if the husband was the only wage earner? Does the answer change if the husband drew the funds from his bank account, so that his wife did not have to draw the funds from her bank account? Does the answer change if the husband borrowed the money and paid it back out of his wages only? Does the answer change if the surgery was a gift from the husband to the wife?
It does not appear this question has been judicially considered to date, but in all likelihood the answer will depend largely on facts of each case. A judge will probably start out under the presumption that the service was paid for by the recipient of the service, and if the facts permit, this rebuttable presumption may shift if it can be established that a related party actually paid for the service. The thorny issue obviously remains those circumstances where a singular joint bank account was used to pay for the service – perhaps the answer lies in applying the payment in two equal halves – consistent with the “joint” nature of the bank account (i.e.: each contributed equally to the expense). In that scenario, of the $16,380 paid for the corrective surgery in Stopyn (supra), $8,190 would be recoverable through the husband’s claim, and the other $8,190 would be unrecoverable on the wife’s ledger since that would require an implausible judgment beyond $35,000.
K. OHIP Subrogated Claims
Ontario residents are insured under an Ontario health services plan, and under subsection 30(1) of the Health Insurance Act, R.S.O. 1990, c. H.6, the health plan “is subrogated to any right of the insured person to recover the cost incurred for past insured services and the cost that will probably be incurred for future insured services, and the General Manager may bring action in the name of the Plan or in the name of that person for the recovery of such costs.”
It is not clear whether an OHIP subrogated claim[37] would be included as a part of the claimant’s monetary cap of $35,000, or whether the OHIP subrogated claim would be excluded, and essentially the subject matter of a separate claim, with a separate $35,000 limit. Indeed, in the plenary courts, there is really no consistency in terms of how OHIP claims are grouped: sometimes they are included as part of a claimant’s “special damages,” and sometimes the OHIP claim is listed and quantified separately.
Given that an OHIP claim is a claim by a separate entity (indeed, a separate instructing principal), the most likely result is that the OHIP subrogated claim is governed by its own $35,000 cap, and it does not interfere with the plaintiff’s monetary claim. As of the date of this paper, however, it does not appear that this issue has been squarely addressed in any reported decision.
L. Is Each Separate Defendant Liable up to $35,000 when Damages arise from One Incident?
It is a little uncertain whether a plaintiff can sue each individual defendant, involved in one incident, for $35,000 each. For example, in a motor vehicle accident involving two cars that lost control, is it possible for the plaintiff to maintain a $35,000 claim against each vehicle owner/driver? Does the answer change if the accident was caused in part by some non-auto related negligence (i.e.: faulty road sign or signal, intoxicating liquor served to one of the drivers, faulty car repair by a mechanic)?
An example might be the case of DJ v. KC, [2004] OJ No 1453, 238 DLR (4th) 126, [2004] OTC 308, 130 ACWS (3d) 878, 2004 CanLII 9755 (S.C.J.), a Superior Court of Justice decision dealing with a claim against police officers for malicious prosecution, negligence, and defamation. Ultimately, the trial judge ruled that various officers were required to pay different levels of damages to the plaintiff for their respective roles: ranging from $50,000, $25,000, and $15,000. If this claim were before the Small Claims Court the interesting question would be whether the Court could render judgment for $35,000 against the one officer (i.e.: $15,000 short of the assessed $50,000), and $25,000 and $15,000, respectively, against the other officers?
Another example is the defamation case in Henderson v. Pearlman, [2009] OJ No 3444, 2009 CanLII 43641, 179 ACWS (3d) 976 (S.C.J.), where the judge ruled that each of the six defendants were to pay $10,000 to the plaintiff for their role in creating, publishing, and republishing libellous statements made over the internet falsely accusing the Plaintiff of being a career criminal and child molester. When tallied, this would be a $60,000 judgment. Could the Court render judgment for $60,000 in this circumstance (six $10,000 mini-judgments)?
There is probably no singular answer, and it is likely to be factually driven. The more there is a degree of separation between the negligent events and sequences, the more apt that the Court can grant multiple “mini-judgments” against individual at-fault defendants, for up to $35,000 each. Suing an owner and driver of a single at-fault vehicle is apt to be considered one defendant whose damage exposure before the Court would be capped at $35,000 collectively, and not $70,000 (i.e.: $35,000 each). By contrast, a claim might be sustainable for $70,000 if it was against an at-fault owner/driver (capped at $35,000) and against an at-fault municipality for poor road maintenance (capped at $35,000).
Hopefully these issues will eventually be sorted out as they come before the Court, as it does not appear that this issue have been squarely addressed in any personal injury decision released by the Court to date. However, in the “contract” world, such a situation would be akin to the case of KNP Headwear v. Levinson, [2005] O.J. No. 5438 (Div. Ct. – appeal Sm. Cl. Ct.) where a plaintiff sued an individual in two separate actions for an amount in total which exceeded the Small Claims court limit. The claims were for personal guarantees of invoice liabilities to two corporations, both controlled by the defendant guarantor. The Divisional Court held that given the separate legal identities of the corporations and the separate personal guarantees that there were at least two causes of action, there was no attempt to exceed the monetary limit of the court through splitting of proceedings as is prohibited under R6.02.
VI. Examples of Personal Injury Cases Before the Court
Without going into detail about the elements that must be proven and/or established, and without any commentary on whether the cases are legally correct, what follows is a list of some personal injury related cases that have been brought before the Court even before the monetary jurisdiction was increased to $35,000, simply to illustrate how vast and varied the cases can be:
- Assault/Battery
General damages assessed at $5,000 for breach of section 24(1) of the Charter when police were inordinately aggressive with accused during transportation to holding cell, including striking the handcuffed plaintiff, without warning or provocation, with extreme force in the back of the thigh with the officer’s knee, and telling the accused “you are my bitch now, don’t you forget it.” Haridge v. Ottawa (City) Police Services Board, [2011] O.J. No. 5760 (Sm. Cl. Ct.).
The case of Leonard v. Dunn, [2006] O.J. No. 3941 (S.C.J.), aff’d [2008] O.J. No. 2051 (Div. Ct.) is a good example where the case was not before the Small Claims Court, but could have been. General damages were assessed at $10,000 when a recreational hockey player was sucker punched during stoppage in play, with the defendant to pay $7,547 in special damages to cover the money spent to repair the player’s teeth, and $3,000 in aggravated damages.
- Dog Bite Claim
Dog bite cases are typically very well suited for Small Claims Court adjudication because liability is rarely in issue,[38] and the damages are typically more modest. For example, general damages assessed at $1,000 for an eleven (11) year old boy who had nightmares for two (2) years following a relatively minor dog bite: Singh (Litigation guardian of) v. Chini, [2005] O.J. No. 5965 (Sm. Cl. Ct.). For another example, see Crichton v Noon, [2005] OJ No 4230 (Sm. Cl. Ct.).
- Family Law Act Claim (Loss of Care Guidance and companionship)[39]
General damages assessed at $400 for a husband’s general damages for the loss of care, guidance and companionship of his wife during the several months she was incapacitated due to an ankle injury, and $1,010 assessed for his lost wages and the cost of a caregiver: Boyce (Litigation guardian of) v. Woodstock (City), [1993] O.J. No. 2532 (Sm. Cl. Ct.).[40]
- Slip and Fall
General Damages assessed at $10,000 for an adult female who sustained significant injury to her right knee, left hip and back, but ultimately not interfering with her work and essentially resolving within a year: Chuhay v. Toronto (City), [2003] O.J. No. 4552 (Sm. Cl. Ct.).
General damages assessed at $5,000 for an adult female who sustained a severe ankle injury that continued to cause pain up to time of trial: Boyce (Litigation Guardian of) v. Woodstock, [1993] O.J. No. 2532 (Sm. Cl. Ct.).
General damages assessed at $2,000 to self-employed plaintiff who lost some time from work and more limited social interactions after injuries sustained[41] during slip and fall on ice. It is noteworthy that the damages were awarded at $2,000 because this is the amount that was sought by the plaintiff. The judge in granting this sum made note that “the City in particular should know that in the cases submitted to me, general damages for soft tissue injury causing some time off work and restricted socialization ran in the $30,000.00 range:” Tonna v. Misty, [2008] O.J. No. 4435 (Sm. Cl. Ct.).
General damages assessed at $4,500 for a woman who fell in a rut in a park, leading to a spiral fracture in the ankle, that responded well to treatment such that by the time of trial the injury appeared largely to have resolved aside from some diminished amounts of ankle pain and swelling with prolonged use: Tope v. Stratford (City), [1994] O.J. No. 3097 (Sm. Cl. Ct.).[42]
- Excessive Force Used by Establishment
Club staff used excessive force to remove plaintiff patron who suffered from pain in the neck, in the mid and lower back and in the right hand. Court assessed general damages for pain and suffering at $5,000, and loss of income at $1,000 for a 10-day period the plaintiff missed work following incident. The judge reduced the damages by 2/3rds due to a variety of factors, including the plaintiff’s co-responsibility for escalating tempers in the club, and because some of his other medical conditions may have contributed to his symptoms and time off work. As such, judgment was ultimately for $2,000: Commisso v. 1132165 Ontario Ltd. (cob The Docks on Cherry), [2004] OJ No 2235 (Sm. Cl. Ct.).
- Bicycle / Pedestrian Accident
General damages assessed at $2,500 for an adult male struck by a bicyclist, giving rise to permanent scar on lacerated upper lip, and injuries to forearm that prevented claimant from working for a few weeks before it ultimately fully healed about twelve (12) weeks later: Jones v. Green, [1993] O.J. No. 4499 (Sm. Cl. Ct.).
- Motor Vehicle Accident
Action for housekeeping expenses and loss of competitive advantage damages sustained in a motor vehicle accident. The court accepted that the plaintiff did all household chores prior to the subject car accident and, based on the midpoint of his doctor’s estimate of recovery time, 10 weeks was accepted, for which the plaintiff was awarded six hours per week at $25 per hour, for a total of $1,500. The judge expressed the view that had the plaintiff had prior invoices, landscaping expenses could have also been awarded. The court did not accept that the plaintiff had a loss of competitive advantage claim: Grottola v. Stanziano, [2018] OJ No 198 (Sm. Cl. Ct.).
- Traumatic Event – Nervous Shock Claims
General damages assessed at $6,000 for an adult female traumatized after being awakened by a truck slamming into her house, requiring her to be treated for “extreme stress”, inability to sleep due to fear that such an incident would recur, and depression. Hetherington v. Insurance Corp. of British Columbia, [1994] B.C.J. No. 1178.[43]
Damages assessed at $600 for three (3) year old child who witnessed his older brother get hit by a vehicle, and suffered from terror, fear, and nightmares. DeBoyrie (Next friend of) v. Drenth, [1982] O.J. No. 869 (H.C.J. – Div. Crt.). This would be about $1,500 in today’s dollars.[44]
- Intentional Infliction of Nervous Shock
Husband went out of his way to taunt his wife, including posting on the wife’s employer’s website a police video interview of the wife (made in advance of laying charges against the husband). The Court awarded damages in the sum of $12,500 for intentional infliction of nervous shock because all of the elements of this tort existed, including conduct that was (1) flagrant and outrageous; (2) calculated to produce harm; and (3) resulted in visible and provable injury: Cope v. Gesualdi, 2021 CanLII 58972 (Ont. Sm. Cl. Ct)
- Poor Property Maintenance
Plaintiff sustained minor head injury when struck by a barrier at a dealership. Court found that the plaintiff was 40% responsible, and the dealership 60% responsible. General damages fixed at $2,000, and special damages fixed at $5,845. 60% of the total of $7,845 resulted in a judgment for $4,507: Elkind v. Roy Foss Motors Ltd, [2003] OJ No 5760 (Sm. Cl. Ct.). See also Gavadzyn v. Toronto (City), [2004] OJ No 3190, 132 ACWS (3d) 1034 (Sm. Cl. Ct.).
Plaintiff injured ankle on escalator that switched to up while she was going down. Plaintiff awarded $7,500 as claimed, for continuing pain in her ankle, along with pecuniary damages for time off work in the sum of $820.17, and $360 for future therapeutic laser treatment: Hyytiainen v. Toronto Transit Commission, [2007] OJ No 5189, 163 ACWS (3d) 496 (Sm. Cl. Ct.).
Overhead boxes fell down on plaintiff’s head, knocking plaintiff down to the ground. Plaintiff awarded $3,500 in general damages: Nisenkorin v. ADH Drugs Ltd (cob Shoppers Drug Mart), [2004] OJ No 3178, 132 ACWS (3d) 813 (Sm. Cl. Ct.).
- Product Liability
Plaintiff applied defendant’s ointment and suffered a rash of sustained duration. Claim failed because plaintiff failed to establish that the cream caused the rash. Damages not awarded, but assessed at $4,000: Duff v. Pfizer Canada Inc., [2005] OJ No 5962, 145 ACWS (3d) 341 (Sm. Cl. Ct.).
- Medical Malpractice
Generally, complex medical malpractice claims should not be brought in Small Claims Court, on the basis that the Court was not designed for such cases where professional reputations are at stake and discoveries arguably form an integral part in protecting that reputation (Farlow v. Hospital for Sick Children, [2009] O.J. No. 4847, 100 O.R. (3d) 213 (S.C.J.).
This said, there still remains no carte blanche prohibition on such claims being brought in Small Claims Court. Indeed, there can be situations where “discovery” evidence is arguably not critically important.
In Ontario, $7,500 in damages were awarded for misdiagnosis by doctor that caused one month of additional pain and suffering for the Plaintiff while she waited to get a second opinion that led to required surgery to successfully respond to her cancer. During that month, the plaintiff had to endure pain described as “all consuming,” rendering the plaintiff largely immobile. The plaintiff was rendered largely incapable of involving herself in any routine aspect of her life to the point where she had to crawl down the stairs backwards on her hands and knees and then had to have a lot of help: Ramsey v. Azzopardi, [2004] OJ No 5378 (Sm. Cl. Ct.).
Examples of medical malpractice type cases where general damages might more readily be assessed for below $35,000, and perhaps not involve very intricate liability issues, are cases like botched cosmetic surgery (liposuction, rhinoplasty, breast augmentation/reduction, hair removal); botched dental work; retained foreign objects post-surgery; dissatisfaction with post-surgery scarring, etc.
A dentist, for example, was successfully sued for failing to realize that too much impression material oozed into the back of the plaintiff’s throat. The plaintiff suffered for one day and had to endure a sedated removal procedure. No evidence was adduced of any lingering consequences save for an assertion that the patient feared dentists following this incident, leading to a general damage assessment of $2,000: Abdali Estate v. Ghazi, [2018] OJ No 6982 (Sm. Cl. Ct.). In Curteneau v. Kapusianyk, [2001] B.C.J. No. 470 (Prov.Ct.- Civ.Div.), the small claims court in British Columbia awarded general damages in the sum of $5,000 for a mouth infection after a piece of dental equipment broke in the plaintiff’s mouth, requiring a second corrective root canal that could still not save half a tooth from being lost.
A beautician was found negligent for having performed electrolysis on same spot where dermal filler was recently administered, leading to many complications, including swelling of the Plaintiff’s face, the need for injections at the hospital, surgical removal of the filler and of the infection, and a host of medications and further injections, followed by reconstructive surgery to improve the Plaintiff’s looks. The Plaintiff spent $2,200 on the surgeries and lost seven weeks of work. The Plaintiff negotiated a settlement with the both the manufacturer of the filler and with the doctors, such that the trial continued only to determine the beautician’s several liability, which was assessed at $6,000: Dowell v. Millington, [2016] OJ No 5536, 2016 ONSC 6671 (Div. Ct. – Appeal from Sm. Cl. Ct. decision).
As an example of a case that was before the plenary court, but probably could have been brought in Small Claims Court, is Ramotar v. La Fontaine Jeunesse, [2010] O.J. No. 5069 (S.C.J.) where the court assessed general damages at $30,000, and awarded $5,000 in pecuniary special damages (for makeup costs) caused by the burning and scarring following a negligently performed laser hair removal process.
Note as well that lack of consent to medical treatment is often considered a battery claim, except in an emergency situation,[45] and it is actionable without proof of damage, and liability is not confined to foreseeable consequences. Even if the patient benefits from the treatment that was provided without consent, damages may still be awarded: see Malette v. Shulman, (1990), 67 D.L.R. (4th) 321 (Ont. C.A.); Norberg v. Wynrib, [1992] 2 S.C.R. 226.
- Malicious Prosecution
An action for malicious prosecution was successful after the defendant failed in their attempt to obtain a section 810 (Criminal Code) Recognizance Order requiring the plaintiff to keep the peace and be of good behavior. The damages awarded included a claim for the $2,250 spent defending the section 810 prosecution, and the total sum of $1,173.90 paid for the transcripts of that proceeding. The Plaintiff was also awarded, as compensable damages for malicious prosecution, the requested sum of $2,500, which the court found to be entirely reasonable in light of the embarrassment and inconvenience that the Plaintiff suffered with at least six court attendances in connection with the section 810 prosecution, and when compared to the $10,000 awarded in Jones v. Tsige, 2011 ONCA 632: Mendes v. Gomez-Mendez, [2017] OJ No 1367 (Sm. Cl. Ct.).
- Municipal Liability
A city snow plow threw snow, ice, stones and road debris through the window of the plaintiff’s home. Insurance paid for the property damage, such that the claim was limited to the ordeal that the plaintiff went through hearing the windows blow out, and being pummelled by the rocks and debris, leaving small marks on the plaintiff’s head and back. General damages awarded in the sum of $5,000: Coutu v. Toronto (City), [2005] OJ No 3833, 142 ACWS (3d) 94 (Sm. Cl. Ct.).
- Occupier Liability Claims
General damages assessed at $6,000 for “minor injuries” sustained when wrestler, thrown by opponent, landed on plaintiff: Burns v. Tri-City Wrestling, [2013] O.J. No. 839 (Sm. Cl. Ct.).
- False Imprisonment/Wrongful Arrest
General damages assessed at $10,000 for a pregnant single mother of a toddler who suffered from mental anguish and stress after being falsely imprisoned for 10 days on alleged breach of condition: Collis v. Toronto (City) Police Services Board, [2004] O.J. No. 4037 (Sm. Cl. Ct.).
General damages assessed at $2,000 to female wrongly held in custody for one hour (instead of roommate) because police refused to examine identification: Nichol v. London (City) Police Service, [2003] O.J. No. 1857 (Sm. Cl. Ct.).
- Racial Profiling
Although no general damages were awarded in this case because the Plaintiff, who was stopped by police at night in a vehicle with dark tinted windows that made the Plaintiff’s skin colour unknown to police in advance of stopping him (roughly twice per year), the court recognized that damages for racial profiling could have been awarded had the Plaintiff been able to prove that his skin colour or his race played a part in the stops: Parkin v. Peel (Regional Municipality) Police Service Board, [2012] OJ No 3170, 263 CRR (2d) 286 (Sm. Cl. Ct).
- Workplace Harassment
Employee awarded $3,500 in damages against employer for intentional infliction of mental suffering which arose when the employer placed the plaintiff’s bra on his head and made inappropriate and insensitive comments about the size of the employee’s breasts. Employee became depressed, devastated, and upset over these actions and complained to another official at the hospital but with no action taken by anyone. Upheld on appeal: Kingston Road Animal Hospital Professional Corp v. Paulin, [2016] OJ No 5147, 2016 ONSC 5940 (Div. Ct.).
- Debt Collection Harassment
Damages awarded for psychological injuries to plaintiff at the hands of a collection agency’s relentless harassment. Case was appealed, and the appellate court agreed that the collection agency was liable for violating subsection 20(d) of Regulation 74, R.R.O. 1990,[46] which provides that no collection agency shall “make telephone calls or personal calls of such nature or with such frequency as to constitute harassment of the debtor …”, subsection 20(f) by giving any person “any false or misleading information that may be detrimental to a debtor,” and section 21 because of improper contacts with the plaintiff’s employer. However, the ruling on damages was set aside because the plaintiff did not lead any corroborating proof of the alleged mental illness, which ran contrary to the law (at the time) that there can be no recovery for psychiatric damage unless the psychiatric damage results in a recognized psychiatric illness (Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. (1999), 180 D.L.R. (4th) 748 (Ont. C.A.) at paras. 25 and 62): Anderson v. Excel Collection Services Ltd., [2005] OJ No 4195, 260 DLR (4th) 367, 204 OAC 43, 2005 CanLII 36038 (Div. Ct. – appeal from Sm. Cl. Ct.).
- Defamation
General damages of $3,000 awarded when defendant sent a letter to an auction house asserting that the goods the plaintiff was trying to sell at the auction were stolen from the defendant, none of which was true: Farrow v. Jones, [2014] OJ No 749 (Sm. Cl. Ct.).
General damages assessed in the sum of $7,500 for each of the plaintiffs (co-owners) for defamation when the defendant penned an article in the local newspaper describing the plaintiffs’ business as “unruly dump amidst well-tended garden” and an “unsightly blight sure to scare-off Festival-goers”: Ruby v. Stratford City Gazette, [2006] OJ No 1325 (Sm. Cl. Ct.).
General damages assessed at $1,000, $3,500, and $15,000, and punitive damages of $2,500 for each of three male models whose images, taken during a swimsuit competition held by the defendant, were subsequently used by the defendant in advertisements for male strippers at another event held by the defendant: Robinson v. Club Epiphany Restaurant & Lounge, [1999] OJ No 4250 (Sm. Cl. Ct.).
- Cyber-Bullying
General damages assessed at $22,000 to a dentist defamed by former patient who sent emails to his clinic (open for all staff to see), posted YouTube videos about the dentist (including adding some of the comment posts), and who went on an e-mail campaign to various people and entities in a manner in which the court described as “a deliberate, prolonged and spiteful campaign to harass and damage the subject of her vitriol”: Uppal v. Diler, [2012] OJ No 2713 (Sm. Cl. Ct.).
A great case to review for cyber bullying type torts is Cope v. Gesualdi, 2021 CanLII 58972 (Ont. Sm. Cl. Ct). In Cope, the judge thoroughly reviewed the different types of potential torts that could apply in a cyber bullying situation. The case dealt with a husband who had in his possession (through the Crown’s Disclosure) a police recording of an interview the police had with the defendant’s wife (in advance of charges being laid against the defendant husband), wherein the wife provided very private and intimate things about her life. The defendant husband posted this video on the site of the plaintiff’s employer, with further dissemination to radio and print media in the GTA. The wife (plaintiff) claimed that her life was profoundly impacted, requiring her to move and lose 15 years of seniority taking on the same type of job in a new city. In brief, the Court concluded:
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- The husband breached the implied undertaking with respect to Crown and family law disclosure (and although concluding that damages were awardable for this tort alone, no award was made, such that it is not clear whether this was an oversight or deliberate on the part of the presiding judge);
- The husband was liable for the tort of public disclosure of private information (and extension of the tort of invasion of privacy), whereby sensitive personal information was released into the public domain, with no countervailing public interest in the disclosure, and damages assessed at $12,500;
- The husband was liable for intentional infliction of nervous shock because all of the elements of this tort existed, including conduct that was (1) flagrant and outrageous; (2) calculated to produce harm; and (3) resulted in visible and provable injury, and damages were assessed at $12,500; and
- The husband was not liable for defamation because the “video” actually depicted the plaintiff favourably, but even if not the case, any case for defamation would fail because the wife did not comply with the “notice” provisions under the Libel and Slander Act, and she did not start the claim in time.
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The total damages were assessed at $25,000, and reduced by 10% because the wife failed to be pro-active in asking the husband to take the offending content and posts down. Final judgment was for $22,500, plus costs. No financial, punitive or aggravated damages were sought: Cope v. Gesualdi, 2021 CanLII 58972 (Ont. Sm. Cl. Ct).
VII. Chart of Cases
What follows is a PDF file containing a sample of decisions that were, or could have been, before the Court, given the monetary awards in issue.
Anyone interested in an Excel spreadsheet version of this chart can simply request one from the author (david@360mediations.com). The Excel spreadsheet allows for easy sorting in the event the reader wishes to organize the chart by date (oldest to newest, for example) or by quantum awards, etc.
It is important to note that the chart contains two important columns highlighting the quantum that was awarded, and the quantum that could have been awarded if the claim was brought in Small Claims Court, based on the current monetary jurisdiction of $35,000. Keep in mind always, however, that the quantum figures for what could have been awarded if the case was before the Small Claims Court uses the following three (3) assumptions:
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- Every award against an individual defendant is treated as an independent claim, each capable of being assessed for up to $35,000 each (No case law on this issue to date);
- Each plaintiff has an independent claim for $35,000 (Well established through case law); and
- An OHIP subrogated claim is a separate claim brought by a separate claimant, and hence is entitled to an independent judgment of $35,000 (No direct case law on this issue to date).
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FOOTNOTES
[1] Introduced as the Court of Requests in 1792 as a place where small business could efficiently collect their outstanding debts: Statutes of Upper Canada 1792 (32 Geo III) c 6, s 1 (UC).
[2] The chart does not, nor could it possibly, contain every court decision rendering a relevant judgment in a personal/bodily injury case. The chart simply includes a sample of a little over 200 relevant cases to assist the reader find similar cases and extract the legal principals emanating from those cases.
[3] Section 267.5(5) of the Insurance Act, RSO 1990, c I. 8.
[4] Grottola v. Stanziano, [2018] OJ No 198 (Sm. Clm. Ct.): In this Small Claims Court ruling in a motor vehicle accident case, the Deputy Judge relied on the Ontario Court of Appeal decision in McIntyre v. Docherty (2009), 97 O.R. (3d) 189 (C.A.), and concluded that “the issue of the inability to perform housekeeping duties and the like is a component of general damages,” but there is also an overlap when “it can be expressed as a monetary loss, in which case it can be assessed on a pecuniary basis as special damages: McIntyre at paras 68 and 75.” The Deputy Judge applied an hourly rate of $25.00 as was used in Placzek v. Green, 2011 ONSC 1287 (S.C.J.) at para 21.
[5] Section 23(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 only permits the Small Claims Court to make awards/orders that involve payment of money or return of property. Injunctive relief is neither.
[6] Roskam v. Rogers Cable, 2008 CanLII 24233 (Ont. Div. Ct.).
[7] See also sections 25 and 27 of the CJA,
[8] Section 29 of the CJA.
[9] See also section 29 of the CJA.
[10] See for example section 29 of the CJA, which grants the Court the power to award heightened costs as a means to “penalize a party or a party’s representative for unreasonable behaviour in the proceeding.”
[11] Kent v. Conquest Vacations, 2005 CanLII 2321, [2005] OJ No 1311, 138 ACWS (3d) 426 (Div. Ct. – appeal from Sm. Cl. Ct.); See also Bleeks v. Keenan, [2014] O.J. No. 6507 (Sm. Cl. Ct.) permitted each plaintiff to bring full claim against professional firm based on theory that each had a separate retainer with same firm.
[12] Malik v. Nikbakht, [2021] OJ No 1481, 2021 ONCA 176 (C.A.)
[13] This paper will not explore the factors that go into assessing damages, which could be the subject matter of an entire book. What is important is that for the most part, every head of damage can be advanced in Small Claims Court like any other plenary court, and reliance of the various statutes that govern damage assessments can be relied upon by both parties. This paper will also not explore the essential elements that go into proving a personal injury claim, such as ensuring that there is no limitation period barring the claim, the need to establish a duty of care, the standard of care, the breach of the duty and standard of care, the establishment of causation, the elements of malicious prosecution, or the elements of defamation, etc. This paper does, however, end with an extensive chart of cases that were, or could have been brought, before the Court, organized by case type, so the reader can quickly review those cases to see what elements were used to advance, or otherwise defend, those claims.
[14] See for example: Dunbar v. Helicon Properties Ltd., 2006 CanLII 25262 (ON SCDC), 2006 CarswellOnt 4580, 213 OAC 296 (Div. Ct.), Lillie v. Bisson (1998), 46 O.R. (3d) 94 (C.A.); Parsons v. Niagara (Regional Municipality) Police Services Board, [2009] OJ No 2718, 193 CRR (2d) 330, 2009 CanLII 33053 (S.C.J.); Tabingo v. Bitton, [2006] O.J. No. 1136, 146 A.C.W.S. (3d) 472 (Sm. Cl. Ct.); 2146100 Ontario Ltd. v. 2052750 Ontario Inc. (2013), 115 O.R. (3d) 636 (Div. Ct.); Alliance Roofing & Sheet Metal Ltd v. Manorcore Group Inc, [2013] OJ No 4371, 2013 CarswellOnt 13584, 2013 CanLII 60850 (Sm. Cl. Ct.); Bray v. Canadian College of Massage and Hydrotherapy, [2015] O.J. No. 465 (Sm. Cl. Ct.); Alexandrov v. Csanyi, [2009] OJ No 1030, 247 OAC 228, 2009 CanLII 10665, 2009 CarswellOnt 1325 (Div. Ct. – appeal from Sm. Cl. Ct.); Bohatti & Co. v. DeBartolo, [2003] O.J. No. 5045 (Div. Ct. – appeal from Sm. Cl. Ct.); Lock v. Waterloo (Regional Municipality) (cob Grand River Transit), [2011] OJ No 4898 (Sm. Cl. Ct.)
[15] Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Arnold v. Teno, [1978] 2 S.C.R.287; and Thornton v. Prince George School District No.57, [1978] 2 S.C.R. 267.
[16] Again, this list is illustrative of the more common reductions, and is not intended to be exhaustive.
[17] In Ontario, deductibles in personal injury cases only apply to motor vehicle accident-related injury. Pursuant to paragraph 267.5(7)4 of the Insurance Act, R.S.O. 1990, c.I.8, the statutory deductibles are to be applied before contributory negligence is deducted under the Negligence Act, R.S.O. 1990, c.N.1
[18] Ibid.
[19] For motor vehicle accident personal injury claims, this is codified in subsection 267.8(8) of the Insurance Act, R.S.O. 1990, c.I.8. Note also that there is a myriad of collateral benefits potentially available, and it is beyond the scope of this paper to explain the many types and factors that go into whether a collateral benefit is deductible or not (i.e.: the “rule against double recovery”), and whether the deduction is permitted only if received by the claimant, or whether the deduction is permitted in circumstances where the benefit was merely “available” (but not collected), or whether the collateral benefit is deducted on a gross basis, or net of any legal costs incurred to secure those collateral benefits, or net of any taxes potentially payable on the collateral benefit. The parties should be prepared to argue these issues at trial.
[20] Section 120 of the CJA: see also Dermann v. Baker, 2019 ONCA 584 (C.A.) for a discussion on the application of this section.
[21] Meyer v. Bright, [1993] O.J. No. 2446 (C.A.), at paras. 50-52
[22] Note that the Threshold has changed several times since it’s inception in 1990, and the version cited above is the version applicable at the time of this paper.
[23] Mann v. Jeffersen, [2019] O.J. No. 1073 (S.C.J.)
[24] Boarelli v. Flannigan, (1973), 3 O.R. 69 (C.A.) at p. 73; Ratych v. Bloomer, [1990] 1 S.C.R. 940 (S.C.C.), and Cunningham v. Wheeler, [1994] 1 S.C.R. 359 (S.C.C.).
[25] This is for motor vehicle accidents on or after September 1, 2010. There is a different formula for accident occurring beforehand, but this is not addressed in this paper as it likely not going to be very relevant. Note also that this requirement also applies to FLA claimants pursuant to section 267.5(2) of the Insurance Act.
[26] Section 267.8(1) of the Insurance Act
[27] Section 267.8(9) of Insurance Act
[28] Section 267.8(12) of Insurance Act
[29] Subsection 267.8(9) of Insurance Act
[30] Subsection 267.8(12) of Insurance Act
[31] Subsection 267.8(18) of the Insurance Act; See also Ontario (Ministry of Health and Long-term Care) v. Georgiou, [2002] O.J. No. 3335 (C.A.), leave to appeal to SCC dismissed [2003] S.C.C.A. No. 174 (S.C.C.).
[32] Section 263(5) of the Insurance Act
[33] See for example 583809 Ontario Ltd. v. Kay, 1995 CanLII 7080 (Ont. Gen. Div.)
[34] See for example Hafeez v Sunaric, 2015 ONSC 4065 (Div. Crt – on appeal from Sm. Cl. Ct.
[35] Section 263(5)(a.1) of the Insurance Act.
[36] See for example Owasco Canadian Car & Camper Rental Ltd. v. Fitzgerald et al., 2021 ONSC 7235 (Div. Ct. – appeal from Sm. Cl. Ct.)
[37] An injured party who commences a personal injury lawsuit is legally obligated to include in their claim a subrogated claim on behalf of the Ministry of Health to recover medical expenses incurred by the Ontario Ministry of Health to treat and respond to the injuries caused by the at-fault party. This requirement is waived in the case of injuries caused by motor vehicle collisions.
[38] Essentially a strict liability situation pursuant to the provisions of the Dog Owners Liability Act, R.S.O. 1990, c. D.16
[39] Most typically brought in tandem with the personal injury claim of the injured relative. However, as recognized in DeVlas et al vs. Bruce (1994) 18 O.R. (3d) 493 (G.D.), even though a dependents’ claim is “derivative of the entitlement of the victim to bring an action, it is nevertheless a substantive claim in its own right …” As such, they should not be split, but if only one is being brought in isolation, the FLA claim can stand on its own.
[40] See also Tope v. Stratford (City), [1994] O.J. No. 3097 (G.D.) where $300.00 in damages was assessed in favour of the husband for loss of care guidance and companionship of wife who sustained ankle that made her bedridden for two weeks, and with various stages of immobility until almost fully recovered a year later.
[41] Regrettably, the decision does not outline what injuries were sustained.
[42] Note that this case was dismissed because the plaintiff could not establish liability. The trial judge nonetheless provided an assessment on damages.
[43] Small Claims Court award upheld by BCSC.
[44] For an easy way to determine the current value in Ontario for any historical judgment, 360Mediations offers a handy Judgment Updater Calculator which uses the Ontario Consumer Price Index to adjust the valuation, once the user inserts the month and year of the historical decision, along with the amount awarded in that decision.
[45] Reibl v. Hughes, [1980] 2 S.C.R. 880 at 890-91. A sexual assault by a health care professional can also constitute a battery as per Norberg v. Wynrib, [1992] 2 S.C.R. 226
[46] Issued under the Collection and Debt Settlement Services Act, R.S.O. 1990, c. C.14