41-year-old personal injury defence moat is but a puddle: The phantom medical evidentiary burden

Law360 Canada (October 8, 2026, 11:32 AM EDT) --
For over a generation, this pivotal passage in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 has been fundamentally misconstrued as Supreme Court of Canada authority for the overarching medical evidentiary burden that personal injury victims must justify pecuniary future care claims by establishing direct benefits of proposed costs to their mental or physical health. This formulation contorts the court’s consistent emphasis on restitutio in integrum as the doctrinal basis for assessing personal injury damages. Tort law compels restoration of a plaintiff’s pre-tort position, not just pre-existing health, so the applicable evidentiary burden should cater to this foundational tort principle as opposed to a strictly medical inquisition.

Given the very nature of the tort, all personal injury pecuniary claims must have an inherent medical basis, but it does not necessarily follow that all consequential losses are purely medical in nature or that all remediative measures require medical expert attestation. Once the nature and extent of a personal injury have been established, additional medical evidence is probative to assessing measures for restoring health, but does not necessarily inform remediating deleterious consequences beyond bodily integrity. Where a claim would demonstrably effect meaningful restoration of a plaintiff’s pre-tort lifestyle, restitutio in integrum compels compensation regardless of its utility towards promoting the plaintiff's health.

As further detailed herein, the blanket medical evidentiary burden is wholly devoid of juridical foundation for being based upon a misapprehension of the passage, albeit having persisted for 41 years. The mistake originated from the oft-cited 1985 British Columbia Supreme Court decision Milina v. Bartsch, [1985] B.C.J. No. 2762, which mischaracterized the passage in overlooking the subtly articulated nuance between non-pecuniary and pecuniary losses underpinning Justice Brian Dickson’s reasoning.

The pecuniary/non-pecuniary distinction is crucial to grasping Justice Dickson’s logic in the passage. The defining characteristic of a non-pecuniary loss is its incalculable nature, not that it relates to intangible human sensibilities. Physical injuries and mental anguish are intangible losses but their full extent is not necessarily non-pecuniary. To some degree, medical support can ameliorate ailments and dampen distress. But permanent disability cannot be reversed; past trauma cannot be erased; and immutable melancholy cannot be fully extinguished. For the severely disabled, prosthetics, attendants and counselling may provide ongoing palliation but could never restore innate autonomy or physiological integrity. To the extent that personal injury can be remediated with products and services, that portion of the loss is pecuniary because it is amenable to direct redress through the purchase of commodities from the marketplace. The residual part of the loss is non-pecuniary because monetary valuation of interminable consequences is impossible. Non-pecuniary damages do not compensate for what is inherently irrecoverable, but console an injured victim with funding for amenities in substitution for uncompensable loss.

The passage is only properly understood in light of the foregoing context, which is highlighted within the judgment immediately preceding the quote where commentary underscores the primacy of restitutio in integrum and the compensable nature of pecuniary losses. Properly parsed, in the first clause, Justice Dickson laments that money cannot fully restore happiness and health lost to personal injury; in the second clause, he articulates his central thesis: that these aspects of the human condition, mental or physical health in other words, are nevertheless compensable to the extent monetarily practicable. In stating that such compensation “may properly form part of a claim,” he was legally categorizing such incorporeal claims as pecuniary in nature. By under-appreciating this pivotal qualifier and the preceding commentary, Milina ascribed to Justice Dickson positing that all future care pecuniary claims must be substantiated under the rubric of promoting the plaintiff’s mental or physical health, the very converse of what is expressly stipulated in the passage.

Fundamentally, restitutio in integrum compels tortfeasors to compensate victims to restore what has been lost. If the loss is monetary, the compensation is money. If the loss is property, the compensation is similar property. So when the loss relates to happiness or health, Justice Dickson naturally proposes compensation to restore those very same aspects of the human condition. Victims of personal injury necessarily incur loss of happiness or health, so improving mental or physical health would remediate such loss. But personal injury has consequences beyond psychological or physiological loss, so the format for compensation will not always be mental or physical health. Where a plaintiff loses the ability to housekeep or walk pets, compensation to remediate losses of these amenities is the monetary cost of what has been lost, namely replacement services. It would be nonsensical to couch the loss of such amenities in terms of mental or physical health.

Justice Dickson was simply applying restitutio in integrum to happiness and health, not establishing the confounding principle that every tortious loss should be compensated by improving mental or physical health. But sadly, courts have toiled under the misconception for 41 years. Stripped of crucial, superseding context, “sustain or improve mental or physical health” has been misconstrued as a Supreme Court of Canada-endorsed, blanket independent requirement for future care pecuniary claims.

The untenable implication of this 41-year-long misconstruction is clear: when a victim suffers a loss of amenity due to personal injury, such as dog-walking, the medical evidentiary burden mandates that replacement services be endorsed by expert testimony that compensation for the amenity is medically indicated to promote the plaintiff’s health. This defies the very foundation of tort law. Restitutio in integrum entitles tort victims to be put in the position they would have been in but for the tort — to be compensated for that very amenity. It does not mandate the victim to defend the utility of their pre-tort position as a function of mental or physical health.

In Milina, Justice Beverley McLachlin denied the plaintiff’s claim for a new home for lack of medical justification. In addition to Andrews, she cited the 1982 Manitoba Court of Appeal decision MacDonald v. Alderson, [1982] M.J. No. 6 as the decisive juridical basis for the medical evidentiary burden, but that decision did not stipulate such standard of proof as the basis for also denying a new home award. Evidently, restitutio in integrum would have been dispositive in both cases as neither teenaged plaintiff was a homeowner prior to their debilitating injuries.

In Andrews, medical evidence was necessary to contrast the health and felicity implications of two housing options because the quadriplegic plaintiff did not have any practicable pre-existing home to establish his pre-tort position. The stark disparity revealed by trial evidence demonstrated that institutional care would have put the plaintiff in circumstances inferior to his pre-tort position as regards to his health and happiness, so restitutio in integrum compelled compensation on the basis of private care within a rental apartment to bring him closer to the pre-tort living standard. Compensation for home care was awarded because Justice Dickson concluded that happiness and health were compensable as pecuniary damages to the extent monetarily practicable. In applying restitutio in integrum to happiness and health, Justice Dickson was reinforcing the principle as the foundation of personal injury law, not enshrining a medical evidentiary burden that would turn tort law on its head.

In circumstances where a catastrophically injured tort victim is a homeowner, pre-existing independent living in and of itself discharges the evidentiary burden of establishing restitutio in integrum entitlement to home care. By imposing an ultra vires onus of expert testimony to justify that private care would be medically more suitable than government-subsidized institutional care, the medical evidentiary burden would impede a prima facie entitlement pursuant to restitutio in integrum. With the foundational tort principle consistently endorsed by the Supreme Court of Canada and the medical evidentiary burden devoid of any juridical foundation, the contrived standard of proof is untenable.

Restitutio in integrum does not demand justification that walking a pet or living in one’s own home is worthwhile as a matter of mental or physical health just as it would not mandate an automobile accident victim justify the utility of a Mercedes relative to a Mitsubishi. Restitutio in integrum is the law regardless of whether it is medically indicated. Therefore, probative evidence to that end, medical or otherwise, is in and of itself sufficient foundation for any pecuniary future care claim. This is the true genesis of the Andrews passage having hitherto been tainted by a phantasmic medical evidentiary burden that has anomalously persevered in Canadian jurisprudence for 41 years — a curious chronicle of misguidedly adjudicating personal injury torts clinically rather than legally.

Richard Cheung is a graduate of University of Toronto Law School.

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