The term "damages" refers to the compensation sought by plaintiffs in their actions against another party, which, in a health law matter, is often one or more health care professionals. The usual cause of action is based on negligence. An assessment of damages is made in every action whether the plaintiff is successful or not.
The global quantum of damage awards in health law actions has been on a steady rise. This is so despite the reported decrease in the number of actions commenced against health care professionals. What then is the process of assessing damages in such actions and why is the average quantum awarded on a steady rise?
The methodology of assessing such damage awards was set out in 1978 by the Supreme Court of Canada (SCC) in Andrews v. Grand & Toy Alberta Ltd. Although this involved a motor vehicle accident, the principles of assessment are the same. The SCC’s general approach was as follows:
There is a duty to be reasonable. There cannot be "complete" or "perfect" compensation. An award must be moderate and fair to both parties. Clearly, compensation must not be determined on the basis of sympathy, or compassion for the plight of the injured person. What is being sought is compensation, not retribution. But, in a case like the present, where both Courts have favoured a home environment, "reasonable" means reasonableness in what is to be provided in that home environment. It does not mean that Andrews must languish in an institution which on all evidence is inappropriate for him. The ability of the defendant to pay has never been regarded as a relevant consideration in the assessment of damages at common law. The focus should be on the injuries of the innocent party. Fairness to the other party is achieved by assuring that the claims against him are legitimate and justifiable.
The courts have established various heads of damage through which the goal of fair compensation is determined. There is also an important distinction made between pecuniary (money) and non-pecuniary losses. The goal is to award as close to perfect pecuniary compensation as is possible while limiting the award for non-pecuniary losses, such as pain and suffering, loss of amenities and loss of expectation of life.
The heads of damage are as follows:
The quantum of gross damage awards becomes easier to understand knowing what the heads of damage are. It is easy to see that as the costs of goods and services rise, so do the awards for future care and special damages. Further, as the income earned by individuals rises, so do the awards for loss of future earnings. Finally, the upper limit of non-pecuniary damages awarded by a court is now $388,319 as of June of this year. That in itself is almost a four-fold increase.
At Wise Health Law, our health law lawyers rely on their significant trial and civil litigation experience to provide our clients with exceptional guidance and representation in medical malpractice claims. To find out more about how we can help, contact us online, or at 416-915-4234to schedule a consultation.
In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.