Indeed in 1995 Sopinka J wrote that the trilogy has imposed as a rule of law a

Indeed in 1995 sopinka j wrote that the trilogy has

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since. Indeed, in 1995, Sopinka J. wrote that the "trilogy has imposed as a rule of law a legal limit to non-pecuniary damages". (See ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 114.) In Andrews, supra, at p. 261, Dickson J.) (as he then was) found that some kind of fair and reasonable limit should be imposed [page675] given the difficulty of putting a price on non-pecuniary losses:
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Page 43 of 44 Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595 [T]he problem here is qualitatively different from that of pecuniary losses. There is no medium of exchange for happiness. There is no market for expectation of life. The monetary evaluation of non-pecuniary losses is a philosophical and policy exercise more than a legal or logical one. The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional. No money can provide true restitution. (See also Arnold, supra, at p. 331, per Spence J.) 165 In the end, imposing limits on such claims was not viewed as working an injustice on claimants. Setting punitive damages at amounts which do not exceed significantly the real economic loss, where the loss suffered concerns mainly property and economic interests, would leave them in their proper place within the scheme of the law of torts. At the same time, this approach would avoid undermining the structure of the law of torts and its core function. 5. Function of the Jury 166 In the circumstances of this case, the fact that the award was made by a jury does not make it more immune to appellate review; as appears from the record, the jurors were themselves uncomfortable with the problem of determining the proper quantum of punitive damages. They sought further instructions, but the trial judge left them with the "skeletal instructions" given during the charge. Hence, they ended up with an award which my colleague would not have given, and which he says stands at the outer limits of the reasonable, but within it. The Court of Appeal did only its duty when it reviewed this award. A verdict which breaches the requirements of proportionality and rationality required appellate review. [page676] 167 Some problems may arise also from aspects of the practice followed at trial. According to the present Ontario practice, if one counsel objects, the presiding judge will not instruct the jury as to the range of awards save in the case of personal injuries. (Courts of Justice Act, R.S.O. 1990, c. C.43, s. 118; Holmested and Watson: Ontario Civil Procedure (loose-leaf ed.), vol. 1, at p. CJA-242; Caron v. Chodan Estate (1992), 58 O.A.C. 173, at p. 175, per Arbour J.A. (as she then was); P. G. Vogel, Cohen Melnitzer's Civil Procedure in Practice (loose-leaf ed.), vol. 1, at p. 12-20; Gray v. Alanco Developments Ltd., [1967] 1 O.R. 597 (C.A.); Howes v. Crosby (1984), 45 O.R. (2d) 449 (C.A.).) 168 The problems that occurred in the present case demonstrate that some sort of instruction on the range of punitive damages awards, even without counsel's agreement, would have been useful. Without removing the jury's discretion, it would at least communicate to them some idea
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