Is it Time to Revisit the Trilogy?
| Author | Roger G. Oatley |
| Pages | 153-176 |
Is
it
Time
to
Revisit
the
Trilogy?
Roger
G.
Oatley
A.
INTRODUCTION
This
article
is
about
a
fundamental change
to
Canadian tort
law and
whether that change should
be
revisited.
In
June
of
1978,
Andrews
v.
Grand
&
Toy
Alberta
Ltd.1
ushered
in a new era in the
calculation
of
personal
injury
damages.
As a
result
of the
model described
in
Andrews,
and ap-
plied contemporaneously
in
Thornton
v.
Prince
George
School
District
No.
5/,2
and in
Arnold
v.
Teno^
(the "trilogy") Canadian common
law
courts
began
a new era in the
calculation
of
personal
injury
damages through
the
classification
of
heads
of
damages that
distinguishes
between
pe-
cuniary
and
non-pecuniary loss.
Also,
for the first
time
our
courts
ap-
plied
a cap on
non-pecuniary general
damages,
which
was at
that time
$100,000.
The new
model
or
system
of
quantifying
personal
injury
dam-
ages created
by
legislative decree
in
Andrews
almost twenty-seven years
ago
revolutionized personal
injury
litigation
in
Canada.
It
is
timely that
we
reflect
on the
wisdom
of
this model because
de-
bate about
the
calculation
of
personal
injury
damages
in the
tort system
Roger
G.
Oatley
is
partner
with
Oatley Vigmond,
LLP in
Barrie.
(1978),
83
D.L.R.
(3d)
452
[Andrews].
(1978),
83
D.L.R.
(3d)
480
(S.C.C.)
as
quoted
in K.
Cooper-Stephenson,
Personal
Injury
Damages
in
Canada,
2d.
ed.,
(Scarborough,
ON:
Thomson Canada, 1996).
(1978),
83
D.L.R. (3d)
609
(S.C.C.)
[Teno].
153
*
i
2
3
154
ROGER
G.
OATLEY
is
raging
in the
United States. Most
of
those
who
demand "tort
reform"
in
that country
call
for a
system that emulates
the
Canadian model. Iron-
ically,
few
American commentators
are
even vaguely aware
of how our
system works.
The
thesis
I
develop
in
this article
is
simply this:
the
trilogy
model,
with
its
heads
of
damages
and its cap on
non-pecuniary general dam-
ages,
is not
perfect.
But it is a
rational system that delivers just awards
to
the
vast
majority.
Although
it may be
perceived
as
demonstrably
unfair
to
some,
it is
nonetheless morally supportable. And,
it
recognizes that
large
awards
for
non-economic loss, which serve
no
functional
purpose,
create
a
social
or
economic
burden
that
is as
unacceptable
now as it was
in
1978.
B.
SOME HISTORICAL BACKGROUND
We
cannot examine whether
the
trilogy should
be
revisited without
first
understanding what
the
trilogy
is.
What
is the
historical background
and
what were
the
factors
that gave birth
to the
trilogy
in the first
place? What
does
the
trilogy mean
to
Canadian tort law?
And are
there
any
good rea-
sons
why the
trilogy
was
justified
and
required
in
1978,
but not
now?
What
is the
historical background
and
what were
the
origins
of the
trilogy?
Professor
Ken
Cooper-Stephenson provides
a
comprehensive
re-
view
of the
historical background
to the
trilogy
and its
development.4
As
he
points out, tort
law did not
recognize
the
principle
of
compensation
as we
know
it
until
the
latter part
of the
nineteenth century. Until that
time, tort
law was
viewed
as
serving
the
goals
of
punishment
and
deter-
rence.
After
compensation became
the
governing rule, there remained
a
friction
between
the
notions
of
perfect
compensation
and
fair
compensa-
tion.5
Professor Cooper-Stephenson tells
us
that early tort
law in
Canada
and
Great
Britain
resisted
the
notion
of
full
or
perfect
compensation
in
favour
of a
social policy that
favoured
"fair"
compensation under
all the
circumstances.
He
explains that
the
notion
of
full
compensation
was not
introduced until
the
seminal judgment
of the
House
of
Lords
in
Living-
stone
v.
Rawyards
Coal
Co.,6
in
which Lord Blackburn said
the
following:
4
Personal
Injury
Damages
in
Canada,
supra
note
2 at
108-19.
5
Ibid,
at
108.
6
Ibid,
at
109; quoted
with
approval
by
Dickson
J. in
Andrews,
supra
note
i,
cited
to
D.L.R.
at
462.
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