Without a doubt, you have already experienced a valuable object being damaged or even destroyed by someone. If so, it is quite possible that the wrongdoer offered to pay for the repair or even the purchase of a replacement item.
For example, let us take your favorite bicycle: through carelessness, your classmate breaks the chain, and the only option to make the bicycle functional again is to replace it, which will cost two hundred dollars ($200) for the part and repair fees. You will therefore have a tangible invoice to give to the wrongdoer in order to request compensation for their action—this is what is called pecuniary damages or material loss. However, imagine that the only bicycle repair shop will only be available in two (2) months, at the end of the summer period, and that you will therefore have to walk to get around during all that time, which causes you many inconveniences in addition to frustrating you to the highest degree… Can these inconveniences be compensated?
The answer is yes. This is what is called non-pecuniary damages or moral damages.
Assessment of Non-Pecuniary Damages
But how does one assess sadness, disappointment, and the troubles you are experiencing? How does one put a number on such a subjective aspect? The courts have examined this question.
In the case of Proulx v. Club de golf Summerlea[1], Justice Daniel Lévesque (J.C.Q) summarizes the approach to be adopted as follows:
Given the nature of the damages, the determination of adequate compensation falls within the exercise of discretion and an overall assessment by the Court.
With respect to non-pecuniary loss, “[…] compensation is the result of an ‘essentially discretionary approach taking into account a set of personalized factors.'”
Non-pecuniary damages are difficult to quantify. They fall into the category of non-pecuniary losses. Their assessment is not based on any exact science or sophisticated mathematical calculations. Rather than attempting to quantify the loss of life’s amenities, the assessment of non-pecuniary damages aims to set compensation sufficient to provide the victim with reasonable consolation for their misfortunes.
The monetary assessment of losses resulting from bodily injury depends on the facts specific to each case and necessarily involves a certain degree of arbitrariness. In order to mitigate the subjectivity that characterizes this delicate exercise, the superior courts invite us to compare the case under study “to other similar cases where non-pecuniary damages have been awarded.”
Indeed, over time and through decisions made by the courts in awarding non-pecuniary damages, it is possible to rely on previous judgments to establish scales and ranges of amounts that have been awarded for similar damages in comparable situations.
Nevertheless, each situation is unique, and the way each individual reacts to these situations is equally so. The judge has broad discretion to award non-pecuniary damages. The judge will also rely, of course, on the evidence of the extent of the damages presented. Indeed, the testimonies and material evidence will aim to demonstrate that the alleged damages are certain[2], legitimate[3], and direct[4].
Heads of Claim
It has been established by the highest Court of this country[5] that in analyzing damages, one must proceed separately for the assessment of each “head of compensation,” which promotes full reparation of the damages. This principle of full reparation is a key concept in matters of damages. In short, this means that a victim of damages has the right to be compensated for the entirety of their loss—no more, no less.
To achieve this, the Court suggests breaking down the damages under distinct heads. This method allows “a serious examination of the compensation and the establishment of valid rules for the future. Moreover, and this is equally important, it provides the parties involved and their counsel with a breakdown of the total compensation and thus assures them that each category of damages in the claim has been carefully considered”[6].
For example, in matters of bodily injury, the following heads of claim are generally present:
- Pain, Suffering, and Inconvenience
- Permanent Partial Disability for Anatomophysiological Deficit[7]
- Temporary Total Disability
- Loss of Enjoyment of Life
- Aesthetic Damages
Amounts Awarded Under Quebec and Canadian Law
Contrary to popular belief, which tends to think that astronomical sums amounting to millions of dollars can be awarded to compensate for bodily injury, in 1978, the Supreme Court of Canada capped the amount of non-pecuniary damages allowed in such cases at $100,000[8].
Of course, the passage of time and the fluctuation in the value of money have been taken into account, as it is also provided that this cap be indexed each year. By way of illustration, in 2022, indexation allowed claims of up to $395,000[9].
Canadian and Quebec courts are more conservative than our southern neighbors, from whom excessive expectations of litigants often originate. In fact, the following cases, which are quite serious overall, do not exceed the $50,000.00 threshold. Let us examine this more closely.
- In the case of Concetta Giampersa, it was decided that compensation of $30,000 for aesthetic damages for a deformation of the left nostril and asymmetry of the nose[10].
- In 2007, in the context of second-degree burns to the face, neck, nape, and thorax (8% of body surface affected), the Court quantified the total non-pecuniary damages at $27,500[11].
- Ms. Anne-Marie Lavoie suffered severe burns to the hip, left leg, and left arm. She underwent 12 grafts following her hospitalization. The Court set the total non-pecuniary damages at $22,000, which includes aesthetic damages, suffering, inconvenience, and loss of enjoyment of life[12].
In summary, the adverse consequences of an infringement of a person’s right or interest can be mitigated through monetary compensation. This is a variable assessment that allows for an encompassing and personalized conception of the notion of damages. Nevertheless, it is true that regardless of the compensation awarded, the monetary aspect can never fully compensate for all the suffering. As Justice Dickson stated in the Andrews decision:
“Happiness and life are priceless.”[13]
References
[1] Proulx v. Club de golf Summerlea, 2021 QCCQ 71 (CanLII), paras. 46 and 47.
[2] Art. 1611, Civil Code of Québec.
[3] Art. 9, Civil Code of Québec.
[4] Art. 1607, Civil Code of Québec.
[5] Andrews v. Grand & Toy of Alberta Ltd., [1978] 2 S.C.R. 229, 235-236.
[6] Ibid.
[7] This is a percentage assessed by a medical expert that corresponds to the evaluation of sequelae resulting from an injury.
[8] Supra, note 5.
[9] A v. B, 2022 QCCS 768 (CanLII).
[10] Giampersa v. Hasel, B.E. 2004BE-738 (C.S.).
[11] Thibault v. Dubé, 2007 QCCS 4399 (C.S.).
[12] Lavoie v. Tremblay, [1991] R.R.A.I. (C.S.).
[13] Supra, note 5.
