Popping the Cap

(2021) 42:1 Health Law in Canada 14

27 Pages Posted: 10 Aug 2021 Last revised: 19 Oct 2021

See all articles by Phil Lord

Phil Lord

Université de Moncton - Faculty of Law; McGill University - Faculty of Law; York University - Osgoode Hall Law School

Date Written: 2021


On a beautiful summer night, Pritie Patel called up her friends. They decided to go out in Montreal’s Old Port. Around 1 AM, as Patel and her friends were returning home, Patel walked across a stopped train. There were no crossing barriers, and no indications that the train could be set in motion. It was. On that night, Patel lost both of her legs and endured excruciating pain. But she lost much more than that. While Ms. Patel may still lead a fulfilling existence, certain aspects of her life have permanently changed. Ms. Patel will be compensated for the past and future income lost as a result of her injury. But she also endured a great deal of pain and lost access to some hobbies and occupations. How much is that, in our legal system, “worth,” you ask? The answer is up to $390,000.

That’s because over 40 years ago, the Supreme Court of Canada set an “upper limit” on the amounts which can be awarded as compensation for the non-pecuniary component of a bodily injury. This upper limit has evolved into an effective cap.

This article argues that the cap makes no sense. Having further detailed Ms. Patel’s story, it reviews the principles which define this area of personal injury law in Canada. Then, the article argues against the cap, attempting to show that it is neither fair nor theoretically consistent. In doing so, it argues that the Supreme Court relied on unproven and incorrect assumptions when it created the cap in 1978. These assumptions still underlie the rhetoric used by courts to justify their continuing adherence to the cap. The article proceeds to contend that the best way to get rid of (“pop”) the cap is not to challenge it on its own terms, but rather to persuasively argue that its conceptual foundations are incorrect. Finally, the article briefly discusses other broader social issues, of which personal injury law is both a constitutive scene and a microcosm. In doing so, the article makes an original contribution to the severely sparse body of Canadian personal injury law scholarship – and tangentially argues that the field deserves far more scholarly attention.

Keywords: Andrews, Thornton, Arnold, Teno, Personal Injury, Private Law, Tort, Damages, Harm, Cap, Compensation, Non-Pecuniary, Bodily Injury, Pain and Suffering

Suggested Citation

Lord, Phil, Popping the Cap (2021). (2021) 42:1 Health Law in Canada 14, Available at SSRN: https://ssrn.com/abstract=3891726 or http://dx.doi.org/10.2139/ssrn.3891726

Phil Lord (Contact Author)

Université de Moncton - Faculty of Law ( email )

18 Antonine-Maillet Ave
Moncton, NB E1A 3E9

HOME PAGE: http://www.mylawyer.ca

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal, QC H3A 1W9

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, ON M3J 1P3

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