The Cruelest Personal Injury Law
This blog post by Duncan Macgillivray originally featured on the Ontario Trial Lawyers Association Blog on November 2, 2018.
There are a lot of cruel personal injury laws: caps on pain and suffering, secret deductibles, biased doctors, the list goes on. But, there is one that is the worst of them all: The cap on damages for the loss of family members.
Try telling a parent that the loss of their child is only worth $138,000 (at most)!
The Family Law Act allows certain family members to sue people or corporations that cause their family member’s death.
So, if your spouse, child, brother, sister, grandchild or grandparent is killed by a negligent driver, doctor or business, you can sue the negligent driver, doctor or business. A main part of the damages in that lawsuit is for “loss of guidance, care and companionship”. These damages are meant to compensate for the non-economic portion of the loss (similar to a “pain and suffering” award for an injury survivor).
Obviously, no amount of money can replace a beloved family member. But, the law should aim to properly compensate people for their losses, as much as money can do that. That is supposed to be one of the fundamental premises of personal injury law.
For the loss of family members, the upper limit or cap, for the most exceptional cases only, is about $138,000 (for loss of guidance, care and companionship). So, if your child is killed through the negligence of a drunk driver, the most you can receive for this type of damage is $138,000. That is cruel (and likely shocking to most readers).
This cap comes from a case, To v. Toronto Board of Education, where a 14 year old died as a result of a school’s negligence. The parents of the boy were each awarded $100,000. This award was upheld on appeal with the court noting the very close family relationship and the family’s culture. With inflation, the $100,000 upper limit in To is now $138,000.
It does not appear that the law in regard to this cap is going to change any time soon. In fact, the cap was reconfirmed by the Court of Appeal in 2010 in Fiddler v. Chiavetti.
There are upper limits or “caps” in other areas of personal injury law. Most notably, there is a cap on “pain and suffering” damages for injury survivors. The most a person can get for their pain and suffering is currently about $381,000. That means that a 20 year old quadriplegic’s pain and suffering is worth $381,000, max. For more on the unfairness of pain and suffering caps, see It’s Time to Abolish the Pain and Suffering Cap.
The cap on the losses of family members in fatality claims is more egregious and cruel than the “pain and suffering” cap. The fatality cap is lower. And, death is death! It is out of touch with reality. The argument for the cap appears to be that no amount can bring a loved one back, so let’s not overcompensate. That is cruel.
It is the cruelest personal injury law.