Wednesday, September 3, 2014

Mental distress damages

Fernandes v. Penncorp Life Insurance Company, 2014 ONCA 615:

[88]       In Fidler, at paras. 51-53, the Supreme Court observed that the jurisprudence speaks of two different types of aggravated damages.  The court clarified that the term "aggravated damages" is misplaced in a case of mental distress damages arising out of a contractual breach.  This was the nature of the damages claimed and awarded in the case under appeal.   

[89]       In Fidler, the Supreme Court held that damages for mental distress for breach of contract may be awarded "where they are established on the evidence and shown to have been within the reasonable contemplation of the parties at the time the contract was made": para. 45. 

[90]       This does not obviate the need to prove the loss. The court stated at para. 47:

The court must be satisfied: (1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties; and (2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.  

[91]       In that case, the Supreme Court determined that the plaintiff's distress and discomfort arising out of the loss of disability coverage was amply supported by the evidence, which included extensive medical evidence.  The court did not disturb the award of $20,000. 

[92]       In the case under appeal, it is common ground between the parties that an objective of the insurance policy was to secure a psychological benefit and that, at the time, the parties reasonably contemplated that a failure to pay benefits could cause the respondent mental distress. 

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