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Damages - General (Non-Pecuniary) Damages

I've always had a problem with labelling 'general' damages as non-pecuniary damages - since they are awarded in dollar terms and 'pecuniary' means - well - money. The true distinction that I think we need to have regard to is that general damages are really a term that applies to unliquidated damages, that is - damages which are not easily arithmetically calculated. A classic example would be a successful personal injury case, where the courts arithmetically assess past 'loss of earnings' and 'future loss of earnings capacity' by reference to past and likely future wages, leaving pain and suffering which are inherently difficult to calculate. That's what they mean by 'non-pecuniary'.

Another related confusing concept, particularly relevant to negligence law, is that of 'pure economic loss'. Again, for me - 'economic' means money - but this term applies to “economic loss that is unconnected to a physical or mental injury to the plaintiff’s person, or to physical damage to property” [Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation (I) (Ont CA, 2021), quoting 1688782 Ontario Inc. v Maple Leaf Foods Inc. (SCC, 2020). In the Maple Leaf Foods case examples of 'pure economic loss' are cited as "lost profits, sales, capital value and goodwill". As such, 'pure economic loss' is clearly a business concept and the legal term is apparently business-driven.

. Grand Financial Management Inc. v. Solemio Transportation Inc.

In Grand Financial Management Inc. v. Solemio Transportation Inc. (Ont CA, 2016) the Court of Appeal had to deal with an intriguing award of damages 'at large':
[82] Damages at large may be awarded in cases of intentional torts, and to corporations in such circumstances where there has been injury to the corporation’s reputation and associated economic loss: see Uni-Jet Industrial Pipe Ltd. v. Canada (A.G.) (2001), 2001 MBCA 40 (CanLII), 198 D.L.R. (4th) 577 (Man. C.A.), at paras. 66-72; Foschia v. Conseil des Écoles Catholique de Langue Française du Centre-Est, 2009 ONCA 499 (CanLII), 266 O.A.C. 17, at para. 37; PSC Industrial Canada Inc. v. Ontario (Ministry of the Environment) (2005), 2004 CanLII 15482 (ON SC), 48 B.L.R. (3d) 58 (Ont. S.C.), at paras. 60-62, rev’d in part on other grounds (2005), 2005 CanLII 27657 (ON CA), 258 D.L.R. (4th) 320 (Ont. C.A.); and Alleslev-Krofchak v. Valcom Ltd., 2009 CanLII 30446 (ON SC), at para. 361, aff’d 2010 ONCA 557 (CanLII), 322 D.L.R. (4th) 193.

[83] Unlike pecuniary damages, such damages are not capable of being precisely measured and are more a matter of impression: Uni-Jet, at para. 72; and Foschia, at para. 37. As Kroft J.A. explained in Uni-Jet, at para. 72:
[D]amages at large are a matter of impression; they must include the consideration of a host of circumstances involving both the particular plaintiff and the particular defendant, and they are likely to be unique in each case.
[84] In Howard v. Madill, 2010 BCSC 525 (CanLII), at para. 89, Bruce J. summarized the principles relating to the assessment of damages at large, as canvassed in Uni-Jet:
An accurate summary of the law with respect to the assessment of damages at large, and the circumstances in which such an award may be made, is contained in Uni-Jet at paras. 66 to 73. I summarize these principles as follows:
1. Damages other than for pecuniary loss are "damages at large" and generally include compensation for loss of reputation, injured feelings, bad or good conduct by either party, or punishment.

2. Damages at large are compensatory for loss that can be foreseen but cannot be readily quantified.

3. Damages at large are a matter of discretion for the trial judge and are more a "matter of impression and not addition."

4. Where damages at large are imposed for intentional torts, the assessment of damages provides an opportunity to condemn flagrant abuses of the legal process.
[85] I too would adopt this summary.

[86] Damages at large for intentional torts include damages for loss of reputation, but are not limited to that type of loss. As the authorities above demonstrate, they include as well damages reflecting the court’s condemnation of flagrant abuses of the legal process. Generally speaking, they are compensatory for loss that can be foreseen, but not readily quantified. The trial judge applied these factors.

[87] As a result of Grand Financial’s unlawful conduct, Solemio lost its major client; Arnold Bros., representing 60 per cent of its business, abruptly ended its dealings with Solemio. Solemio’s trucks were literally stopped in their tracks and their loads transferred to other trucks. Solemio lost the business of other customers as well. In addition, its bank account was emptied and frozen, thus creating obvious liquidity problems, including the inability to make payments for trucks, utilities, insurance, salaries, and other bills. These events amply supported the trial judge’s findings that Grand Financial’s conduct contributed to Solemio’s liquidity problems, as well as its loss of reputation, and engaged the court’s concern for abuse of the legal process.

[88] What of the amount of the damages at large award, then?

[89] It is not readily apparent how the trial judge arrived at the amount of $175,000, although at one point Mr. Ullah testified that he had received about $200,000 from Arnold Bros. minus an amount of $25,000 that he “left there”, perhaps referring to the same sum of money that Grand Financial later allowed Arnold Bros. to pay to Solemio. As noted above, however, damages at large are “a matter of impression” and are not something that can be precisely measured. It is difficult for an appellate court to say that the assessment is plainly erroneous in such circumstances: see Stephen M. Waddams, The Law of Damages, loose-leaf (2015-Rel. 24), 2nd ed. (Toronto: Canada Law Book, 2015), at para. 13.470. While I may not have arrived at the amount of $175,000, I cannot say that the trial judge erred in principle in doing so. He properly took into account all of the relevant factors in arriving at his conclusion.

[90] Before leaving this issue, I need to address, briefly, Grand Financial’s wrongful seizure of the $35,000 from Solemio’s RBC account. I am satisfied on the record that Solemio did not claim the seized amount as a separate head of damages.[1] That said, the trial judge’s award of damages at large appears to encompass some recognition of the improper seizure, and Grand Financial itself appears to have accepted the $35,000 as a component of that award, since its argument on appeal was that the damages at large award ought to be set aside or, at least, reduced to that amount. As well, one of the three foundations upon which the trial judge based his award of damages at large was that Grand Financial’s actions had constituted a serious abuse of the legal process, a reference to the unlawful resort to the PPSA Security. I conclude, on these bases, that the award of damages at large was intended to incorporate the factors that would give rise to the recovery of the $35,000 amount, and I see no error in that approach.

[91] On that basis, I would not interfere with the trial judge’s award of damages at large.
In Zando v Ali (Ont CA, 2018), a successful sexual assault case, the Court of Appeal considers the awarding of non-pecuniary (general) damages:
Non-Pecuniary Damages

[11] The appellant accepts, and I would adopt, the framework for determining damages in a civil sexual battery or assault cases described in Nova Scotia (Attorney General) v. B.M.G., 2007 NSCA 120 (CanLII), 260 N.S.R. (2d) 257, per Cromwell J.A. (as he then was).

[12] First, there is the purpose of non-pecuniary damages in sexual assault and battery cases: “to provide solace for the victim's pain and suffering and loss of enjoyment of life, to vindicate the victim's dignity and personal autonomy and to recognize the humiliating and degrading nature of the wrongful acts” (B.M.G., at para. 132).

[13] Second, the factors for assessing such damages include: (i) the circumstances of the victim at the time of the events, including the victim’s age and vulnerability; (ii) the circumstances of the assaults including their number, frequency and how violent, invasive and degrading they were; (iii) the circumstances of the defendant, including age and whether he or she was in a position of trust; and (iv) the consequences for the victim of the wrongful behaviour including ongoing psychological injuries (B.M.G., at para. 134, citing Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R. 3, at para. 89).

[14] Third, in assessing non-pecuniary damages for sexual assault, the court must first consider the important characteristics of the case to define the types of cases that should be considered for comparison purposes in establishing an appropriate range, and then select an amount of damages within that range, based on the features of the particular case (B.M.G., at paras. 136 to 140).

[15] The appellant says that the trial judge in this case did not follow the process anticipated by B.M.G. of selecting an appropriate range for non-pecuniary damages, and then placing the assessment within that range. Rather, he asserts, the trial judge wrongly assumed that all cases of sexual assault attract non-pecuniary damages awards of $144,000 to $290,000. The appellant refers to para. 95 of the trial judge’s reasons where she stated:
The case law suggests a range between 125,000 to $250,000 for battery and sexual assault cases [citing Evans v. v. Sproule, [2008] O.J. No. 4518 (S.C.)], which adjusted for inflation, amounts to $144,000 to $290,000.
[16] The appellant asserts that the range set out in B.M.G., a case which involved repeated sexual assaults on a child by a person in a position of trust, was adopted in Evans although that case involved a single incident of sexual assault (by an on-duty police officer after a traffic stop). The appellant contends that the range adopted by the trial judge is appropriate for cases of serious and repeated sexual assaults, including those on children and by persons in positions of trust. The appellant argues that the appropriate range in this case was $20,000 to $50,000, such that non-pecuniary damages of no more than $50,000 ought to have been awarded. He contends that this was a single incident involving persons of equal status, and that there was no evidence of any long-term psychological trauma. The event took place in 1999, by 2003 the respondent had moved away from Sarnia, and the evidence at trial provided by Dr. Robinson, the respondent’s psychologist, was current only until 2006.

[17] In my view there was no error in principle in the trial judge’s determination of the range of non-pecuniary damages. The trial judge adverted to the factors set out in Blackwater v. Plint for assessing non-pecuniary damages for sexual assault. She considered the particular features of the assault in the case before her in identifying a range and in assessing the respondent’s non-pecuniary damages. It is only by reading para. 95 of her reasons in isolation and out of the context of the record that one might conclude that the trial judge was identifying a range applicable to all cases of sexual assault. In fact, the parties provided the trial judge with their written submissions as to the damages that would be appropriate in the present case. The appellant at trial, as on appeal, suggested a range that was applicable to less serious cases of sexual assault, while the respondent suggested a higher range and argued Evans as an appropriate comparator.

[18] In assessing the severity of this sexual assault, it was open to the trial judge to adopt the range that she did. This was a case of sexual assault with penetration by a colleague and friend in the victim’s own home. The trial judge identified the features specific to the sexual assault in this case (at paras. 89 to 91):
After Dr. Zando was sexually assaulted, she had feelings of shame, guilt, humiliation and degradation.

As a result of her cultural upbringing, she felt she had to bear this suffering on her own. Her Muslim faith and Eastern values and beliefs deterred her from speaking out immediately and making it public.

As Dr. Robinson testified, Dr. Zando’s feelings of betrayal and mistrust regarding a colleague who she perceived was attempting to control or sabotage her career, are reasonable and legitimate feelings as a victim of sexual assault.
[19] The trial judge’s determination of damages did not depend on a finding that the respondent suffered long-term psychological trauma from the one incident of sexual assault, nor in my view would it be an error in principle for a trial judge to assess damages at that level in the absence of evidence of such long-term injury. As noted earlier, damages for sexual battery or assault are not solely to compensate for physical or mental injuries. They fulfill a range of functions, including “the recognition of the humiliating and degrading nature of the wrongful acts” (B.M.G., at para. 132).

[20] In all the circumstances, I see no error in principle in the trial judge’s selection of the appropriate range of non-pecuniary damages in this case or in her assessment of Dr. Zando’s damages. Again, I note that the appellant’s argument was not that the damages award was so high as to be disproportionate.

[21] As for the argument that the trial judge did not take into consideration the other potential contributors to the respondent’s mental state, I disagree. The trial judge was aware of the fact that the respondent had reached a settlement with the other defendants for her alleged harassment by them. She rejected the argument that Dr. Zando’s psychological injuries were caused by the alleged harassment that was not before her. The trial judge determined that Dr. Ali had not harassed Dr. Zando, a factor that she indicated was relevant to her assessment of damages. The focus of the trial judge was to determine damages for the sexual assault. I am not persuaded that the damages assessed by the trial judge improperly included in her assessment of damages an amount that would be attributable to harassment of Dr. Zando by the other defendants.


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Last modified: 03-01-23
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