Diamond & Diamond™
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1727 West Broadway, Suite 400

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7404 King George Blvd. Suite 200

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ONTARIO OFFICES

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Mississauga Consultation Office

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1081 Carling Avenue, Suite 704

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459 George Street North

Orangeville Consultation Office

PO Box 157

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5075 Yonge Street. Suite 805

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Damages for Mental Anguish

Victims of serious automobile crashes often say that time seemed to slow down while, in reality, it was all over in just a few seconds. Glass shatters, air bags explode and metal crunches against metal. Suddenly it’s all over. You catch your breath and check for injuries. You’re going to be sore, but you don’t seem to be seriously hurt.   

Even though you have no significant physical injuries, however, you’ve just been through a highly upsetting experience. Adrenaline and other hormones were released, but they wore off quickly. After they did, it’s normal to feel tired, weak, anxious or depressed. You may find that you have trouble sleeping or that you have serious mood swings. You may even experience flashbacks or other symptoms of Post Traumatic Stress Disorder (PTSD).  

If you’ve been in a serious accident and have persistent symptoms of mental anguish, don’t ignore them or hope they will just go away.  

Emotional Distress Claims

While all of the reactions above are common, how each person experiences emotional distress (sometimes called “mental anguish”) is “subjective”; that is, it won’t appear on an X-ray or emergency room records. Because they can’t be calculated like medical expenses or lost wages, emotional distress damages are also called “non-pecuniary”.

Canadian courts have long recognized emotional distress claims. As stated by the British Columbia Supreme Court in a 1988 opinion, there is “no logical difference between a scar on the flesh and a scar on the mind.” While mental anguish may be intentionally inflicted, most claims come about when another person’s carelessness (or “negligence”) results in a serious accident. 

So why doesn’t Canada produce multimillion dollar emotional distress verdicts like those in the United States? The answer is quite simple. In the U.S., there is no nationwide limit on the amount of compensation a jury can award. In contrast, emotional distress claims in Canada are subject to limits established by the Supreme Court in the 1970s. The cap established for all non-pecuniary damages, which is periodically adjusted to account for inflation, is currently near $360,000. Many legal experts believe these limits were adopted in a conscious effort to avoid the American experience. 

There are exceptions, typically in cases of intentional conduct. British Columbia, for example, has eliminated any cap on non-pecuniary damages when the plaintiff proves he or she was a victim of sexual abuse by the defendant.

Automobile Accident Claims

In addition to monetary limits, emotional distress claims related to a motor vehicle accident must usually be accompanied by either:

  • Permanent and serious physical disfigurement; or
  • Permanent and serious impairment of physical or mental functioning

Without evidence of that the plaintiff has met one of these “thresholds”, no claim of non-pecuniary damages can be made in a motor vehicle accident case, except in some rare cases in which the defendant’s conduct was “grossly” negligent or reckless.

Proving Mental Anguish Damages

A successful mental anguish claim ordinarily requires documentation, that is, some record of treatment by a mental health professional of the symptoms experienced. This documentation must show that the distress:

  • Is ongoing; that is, it has existed for some time, even if it is not expected to be lifelong
  • Has a significant negative affect on daily life
  • Is directly related to any physical injuries suffered; and 
  • Was a foreseeable outcome of the defendant’s actions

An Experienced Personal Injury Lawyer can Help

The personal injury lawyers at Diamond and Diamond have years of experience handling emotional distress claims. Their knowledge of the laws throughout Canada that impact what courts award in mental anguish claims is put to use to obtain the best possible award for the individuals they represent. Call our 24/7 personal injury hotline at 1-800-567-HURT or visit our website to speak to one of our team members. We offer free consultations and case evaluations and have offices throughout British Columbia.

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