Can you sue for pain and suffering in Ontario? A Toronto personal injury lawyer says yes - Verkhovets Law

Every Toronto personal injury lawyer at Verkhovets Law knows that being involved in a personal injury matter can be a physically, emotionally, and financially draining experience. But, while you can recover your actual losses if you suffer an injury due to someone else’s negligence or intentional actions, many wonder: can you sue for pain and suffering in Ontario? In short, yes!

Here are a few examples of personal injury accidents where pain and suffering can be long-lasting and debilitating:

• Ted was legally crossing the street when he was struck by a car. The pedestrian accident caused physical injuries, but also emotional trauma, and ongoing anxiety about walking near traffic, notes our Toronto personal injury lawyer. 
• Toddler Sally was injured on an amusement park ride due to lack of maintenance. Aside from medical bills, Sally’s injuries resulted in emotional distress, and an ongoing fear of playgrounds.
• In Julie’s tragic wrongful death in a car accident caused by another driver’s recklessness, her surviving family experienced profound grief, emotional distress, and loss of companionship, explains our Toronto personal injury lawyers.

Toronto personal injury lawyer, Mariya Verkhovets, notes they all may have pain and suffering claims – but the process can be complex, and the amount of compensation varies widely depending on the circumstances. 

It’s crucial to consult with experienced Toronto personal injury lawyers who can guide you through the process.

Toronto personal injury lawyers: how suing for pain and suffering works

The Toronto personal injury lawyers at Verkhovets Law know that while personal injury law does allow suing for pain and suffering compensation it’s important to understand the legal principles and processes involved. 

Our Toronto personal injury lawyer points to the Insurance Act (IA) as the foundational piece of legislation outlining the requirements and procedures for making these claims.

Pain and suffering suits are largely based on negligence and tort law principles.

Victims must establish that another party owed them a duty of care, breached it, and caused their injuries via negligence. 

Concepts like contributory negligence and joint and several liability also apply. 

Meanwhile, case law establishes legal precedents that shape personal injury law and how pain and suffering claims are evaluated, adds our Toronto personal injury lawyer.

And in matters like, for example slip and falls, the Occupiers’ Liability Act sets out the legal responsibilities of property owners/occupiers.

Our Toronto personal injury lawyers note there are various types of accidents that can result in a pain and suffering lawsuit, which may include but are not limited to:

• Car accidents
• Dog bites
• Amusement park accidents
• Bouncer assault

But our Toronto personal injury lawyers warn it’s important to know the rules. For example, the Limitations Act (LA) establishes time limits for initiating lawsuits or you’re barred: two years from the date of the accident or injury discovery. 

3 types of non-pecuniary damages in a personal injury claim

Our Toronto personal injury lawyers know that pain and suffering compensation is commonly referred to as “non-economic” or “general” damages which fall under the category of non-pecuniary damages. 

What’s that? It means they don’t have a specific dollar value attached to them. Instead, they aim to compensate the injured party for the intangible harm claimants endured because of their injuries.

The Toronto personal injury lawyers at Verkhovets Law note non-pecuniary damages are awarded to compensate for:

1. Pain and suffering: Physical pain and emotional distress caused by the injury, including both immediate suffering and ongoing pain or disability resulting from the incident.
2. Loss of enjoyment of life: Our Toronto personal injury lawyer says this refers to the limitations imposed on your ability to engage in activities you once enjoyed prior to the injury.
3. Loss of consortium: Spouses or family members may be entitled to compensation for the loss of care, companionship, and support resulting from the injury.

Calculating non-pecuniary damages … and the “cap”

Calculating non-pecuniary damages is a complex process, says our Toronto personal injury lawyer. Unlike economic damages which have clear monetary value, non-pecuniary damages are subjective and depend on various factors, including the injury severity, impact on the victim’s life, and individual circumstances.

In Canada the legal precedent known as the ‘cap” on non-pecuniary damages for pain and suffering was set in the 1978 trilogy of cases – Andrews v. Grand and Toy Alberta Limited , Thornton v. District No. 57, and Arnold v. Teno  – to be at $100,000. When adjusted for inflation, the cap stands at approximately $400,000 in 2023.

In personal injury cases where non-pecuniary damages are capped, the highest amounts within that limit are awarded for catastrophic injuries as defined by Ontario’s Statutory Accident Benefits Schedule (SABS) – those that result in a “catastrophic impairment.” These have life-altering consequences, such as severe traumatic brain injuries or paralysis, note our Toronto personal injury lawyers.

In 2019, a further case in Ontario, D.S. v Quesnelle, decided the “cap” does not apply to intentional torts.

4 ways to prove pain and suffering in your lawsuit

The Toronto personal injury lawyers at Verkhovets Law explain that to successfully sue for pain and suffering, you must demonstrate that:

1. The defendant was negligent by establishing the injury was the result of someone else’s negligence or wrongful actions. Our Toronto personal injury lawyer notes this involves showing they breached their duty of care. For example, the Occupiers’ Liability Act sets out the legal responsibilities of property owners and occupiers.
2. You suffered injuries and have evidence they were as a direct result of the defendant’s negligence, usually with medical records and expert testimony.
3. You can show the injuries resulted in physical pain and emotional suffering leading to a diminished quality of life.
4. Damages shouldn’t be based on minor injuries, but rather be significant enough to warrant compensation, advise our Toronto personal injury lawyers.

For motor vehicle accidents, the threshold for pain and suffering under the Insurance Act which needs to be satisfied for liability is when the injured person dies or sustains a permanent serious disfigurement, or has sustained a permanent serious impairment of an important physical, mental or psychological function.

Call or email our Toronto personal injury lawyers 

The Toronto personal injury lawyers at Verkhovets Law stress it’s important to have experienced counsel review the details of your case to determine the validity of a pain and suffering lawsuit. Call or email our team today.