Why Canadian caps on pain and suffering awards could face court challenge Canadian Underwriter

Legal restrictions on pain and suffering premiums used to manage liability insurance costs could potentially be challenged in court, according to a Canadian personal injury attorney.

South of the border, the Kansas Supreme Court recently ruled that a state law limiting compensation for non-economic violations in personal injury suits was unconstitutional.

Diana Hilburn was injured in an accident in Kansas in 2010, The Associated Press reported. A jury awarded $ 301,509 for non-economic losses, but state law limited the award to $ 250,000 at the time. In Hilburn v. Enerpipe, published June 14, the Kansas Supreme Court (the state’s last court) ruled that limiting the harm an injured person can bring in a lawsuit violates that person’s right to trial.

Kansas noneconomic loss awards caps were put in place to control insurance costs, Senator Rick Wilborn told The Associated Press.

On this side of the border, similar restrictions on non-economic harm (also known as non-financial harm and pain and suffering) could be challenged in Canadian courts by lawyers Allen Wynperle, a Hamilton, Ontario-based personal injury attorney and president of the Ontario Trial Lawyers Association said in a recent interview.

“I could see someone argue that we shouldn’t lightly disrupt a jury’s duties, and part of it [duty] continues the damage, ”said Wynperle. “It may be that it was not contested in the US for the same reasons, because we do not have the constitutional right to a jury.”

A nine-word passage in the Kansas state constitution says, “The jury’s right to trial is inviolable.” In contrast, the Canadian Charter of Rights and Freedoms provides for judicial proceedings if a defendant, other than under military law, has been in prison for five years or more. In Canada, where there is a right to trial, courts have said in the past that the right “shouldn’t just be taken away,” added Wynperle.

In Ontario, people often have the right to be tried by a jury in civil matters.

In Canada, Canada limits and deductibles for pain and suffering premiums (also known as non-economic or non-financial) vary by province. In Ontario, the deductible for pain and suffering premiums is $ 38,818.97, reports Campisi Law. So if a jury assigns $ 39,000 to your client, that client in Ontario will actually get $ 181.03 when the deductible is factored in.

Newfoundland and Labrador have a deductible of $ 2,500, and the province may increase this to $ 5,000.

Caps and deductibles do not apply to economic losses such as lost income, care, or medical and rehabilitation costs.

“I sure think someone could say if you have the right to be a jury, let them make the decision [on how much money the plaintiff should get for pain and suffering]”Said Wynperle.

In Canadian courts, lawyers often cite decisions from Canada, the United Kingdom and the United States (which continued to apply British common law after their independence).

If a lawyer in Canada tried to argue that a judge should consider the Kansas Hilburn ruling, the judge might decide that the Canadian case is distinct (meaning that there are big differences between the bar case and the case cited), said Wynperle.

This is because the Kansas Supreme Court decision was based in large part on the specific text of the state constitution, Wynperle said.

The state’s non-pecuniary damage limit in personal injury suits “replaces the specific jury judgment with the non-specific judgment of the legislature,” wrote Carol Beier, Kansas Supreme Court Justice. “The people robbed the legislature of this power when they made the right to a judicial process by a jury inviolable.”

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