Ontario Courts Not Afraid of Large Numbers

Courts in Ontario are now regularly making awards in the double digit million dollar category to severely injured plaintiffs.  This willingness to make very large awards where the evidence warrants has been confirmed on more than one occasion by the Ontario Court of Appeal. 

In Marcoccia (Litigation Guardian of) v. Ford Credit Canada the Court of Appeal affirmed a jury award of more than $15 million.  In MacNeil v. Bryan an Ontario judge showed that very large awards are not just the province of juries.  The trial judge awarded a total of over $18 million to a 15-year-old girl and her parents.  The girl was severely brain injured in a crash.

Here in Newfoundland and Labrador, the past year recorded a milestone of sorts:  a court made a damages award to a victim of medical malpractice in an amount just over $1 million.  This marked the first time a court in our province has ever made an award for over $1 million in damages in a personal injury case.  I understand this decision is under appeal. 

The reality is that our judges, generally speaking, do not think big when approaching personal injury damages assessments.  And when a trial judge is courageous enough to award a significant amount, the Court of Appeal is apt to find reasons to cut it down or overturn it completely.  This is what happened in the Williams case in which I represented the plaintiff and achieved a $4 million judgment at trial.  The Court of Appeal overturned this completely on the basis that the defendant did not owe a duty of care and anyway, there was no negligence despite the presence of a 4½ foot deep, unmarked ditch into which the plaintiff had plunged.  This finding of no duty was made despite the fact that the issues was not pleaded or raised in argument before the Court of Appeal.  Lawyers call this the absence of a fair hearing.

I am not carping behind the back of the court, because I said this to its face in subsequent proceedings.

Courts are not generous, whether in Ontario or here.  Large awards have to be won by meticulous preparation and overwhelming evidence.  And sometimes even that is not enough.