A call to arms for personal injury lawyers

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Senior lawyer Steve Rastin sees a welcome trend of an increasing number of higher-end damage awards. He’s calling on other client-focused personal injury lawyers to hold the line and have the courage to take deserving cases to trial

AS A 30-year veteran in personal injury practice, Steve Rastin has a front row seat to the changing nature of damage awards. For several years, there was a noticeable trend of judges and juries rendering disappointingly low awards in personal injury cases. However, recently several high-profile decisions have resulted in significant awards for deserving clients. From an overall upward trend in what’s awarded to successful plaintiffs to the court awarding damages above the general damages cap in several sexual assault cases, the courts have shown an increased willingness to render significant awards in the right cases. When asked what has changed, Rastin attributes the shift to outstanding preparation, courage, and trial skills on the part of some of his fellow advocates. “What’s happening is good trial counsel are adapting to new realities and learning to build cases differently,” Rastin, senior counsel at Gluckstein Lawyers and co-chair of the firm’s class action and mass tort litigation group, says.

For over 60 years Gluckstein Lawyers has been a beacon of hope and expert guidance for individuals and families navigating the complexities of personal injury law. With an unwavering commitment to justice, the firm has earned its place as one of Canada’s leading personal injury law firms. Our expertise extends to all areas of personal injury including but not limited to medical malpractice, motor vehicle accidents, birth trauma, sexual abuse, LTD claims, and class actions/mass tort claims. Gluckstein Lawyers was established with the foundational principle of putting people first. From our inception, our firm has prioritized advocacy for those who need it most – individuals impacted by life-changing injuries, trauma, or illness. This dedication stems from a deep understanding that behind every case is a person or family facing profound challenges in the aftermath of unforeseen circumstances.

“Being a trial lawyer is the closest thing to being a modern knight. I represent individual claimants against multi-billion-dollar insurance companies, and I get a lot of satisfaction from that”

Steve Rastin, Gluckstein Lawyers

Rastin has significant trial experience under his belt, having run his own firm for 20 years and served as past president of the Ontario Trial Lawyers Association before coming aboard at Gluckstein during the COVID-19 pandemic. Though the relationship may not be obvious at first blush, Rastin draws a strong connection between his love of litigating and his undergraduate work in medieval studies. The chivalric code – a moral and ethical guideline for medieval knights that emphasized virtues such as courage, loyalty, honour, and humility – served as the foundation upon which a knight’s conduct was based and was an integral part of their identity. Drawn to this code of conduct, Rastin sees significant parallels between it and the work he’s dedicated his life to. Its premise is one he strives to uphold in his day-to-day work. “Being a trial lawyer is the closest thing to being a modern knight,” he says. “I represent individual claimants against multi-billion-dollar insurance companies, and I get a lot of satisfaction from that.”

For those like Rastin who are fighting for their clients, the current battleground is one shaped by a lack of confidence in Canadian institutions, not least of all the justice system. As people feel the weight of issues like the crisis of inflation and the upheaval in government, they’re also seeing trials for violent criminals, for example, thrown out because of delays. This fundamental non-functioning of the courts is a threat to people’s trust in the system as a whole. Specific to the personal injury sphere, personal injury lawyers and their clients are up against very good lobbying and public relations efforts by the insurance industry, which push its own narrative; lengthier trials with little compensation for jury duty; and what Rastin refers to as “the Americanization” of advertising on radio and TV that’s soured people on personal injury claims in general.

“The public doesn’t have a lot of sympathy,” Rastin explains. “But most people don’t see the full picture: for example, they don’t realize that in 99 percent of the cases it’s the insurance companies that demand we do cases by jury.”

Published Feb 17, 2025

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“Now is a critical time for right-thinking lawyers who want to serve the public good. They must do their homework, run cases properly, have the courage to take a case to trial – and ultimately get just outcomes for deserving clients”

Steve Rastin, Gluckstein Lawyers

The chivalric code in the current battleground

Reshaping the narrative to secure more just awards

After years of judges and juries not being overly generous with awards, the trend toward higher damages awards is a positive development not only for the plaintiffs involved but for the community at large. Having reasonable decisions strengthens the fabric of Canadian society: when you get just awards that hold wrongdoers to account and adequately compensate individuals who were negatively impacted by somebody else’s negligence, it goes a long way to restore faith in the overall system. A force for change has been personal injury lawyers experiencing greater success in telling their client’s story to judges and juries in a way that humanizes people, Rastin notes. “Over the last few years, we’re seeing very capable counsel do a good job figuring out why those awards weren't where they should be and learning how to shape the narrative to the courts in such a way to get the courts realize and embrace that we need to put more reasonable damages into place.” The first trend Rastin identifies is a recognition by the courts of the insufficiency of the long-standing caps on general damages for pain and suffering and loss of enjoyment of life. A number of sexual assault decisions out of Ontario, such as DS v. Quesnelle, have held that these awards are not subject to the cap, and the plaintiffs received very large amounts. While each case turns on its own facts, it lays the groundwork for more appropriate amounts for other sexual abuse victims going forward. There has also been some evolution in the handling of chronic pain cases, which historically saw very low awards. Again, skilled litigators – such as Ottawa-based Joseph Obagi at Connolly Obagi LLP – are reworking the narrative to great effect. “Joseph has got some massive chronic pain awards from juries, upwards of $2 million,” Rastin says. “Again, it’s a question of learning how to tell the story more effectively.”

Finally, Baker v. Blue Cross Life Insurance Company of Canada is an example of how things are changing around long-term disability awards. In this case, the Ontario Court of Appeal upheld a $1.5 million punitive award against the insurance company. Coming over 20 years after Whiten v. Pilot Insurance Company’s $1 million award was expected to bring a flood of cases that never developed, in Baker “the court accepted the argument that with a company as big as Blue Cross, if you don’t have a significant award you’re not even going to get their attention,” Rastin says. “If you do these little awards of $50,000 or something similar, it’s just going to be a cost of doing business for them – and that’s not what these awards are meant to convey.” These are some examples in three areas where lawyers are

seeing increased success in how they tell their clients’ stories to judges and juries. They are seeing the tide turn where there is greater understanding that unless awards are significantly large, they’re not going to discourage a behaviour nor adequately compensate people; the justice system must work the way that it needs to in order for people to maintain faith in it.

A call to arms

In light of this progress, Rastin stresses that the time is now to forge onwards and keep the momentum going. Harkening back to the chivalric code of conduct, he sees the current shift as a call to arms for his fellow modern knights. “Now is a critical time for right-thinking lawyers who want to serve the public good,” he says. “They must do their homework, run cases properly, have the courage to take a case to trial – and ultimately get just outcomes for deserving clients.”

By the numbers

The original 1978 Supreme Court of Canada cap on general damages for pain and suffering, set at $100,000, is now roughly $440,000 adjusted for inflation

Recent jury awards for chronic pain have reached as high as $2 million

In Baker v. Blue Cross Life Insurance Company of Canada, the Ontario Court of Appeal upheld a $1.5 million punitive damages award, setting a new benchmark from the $1 million award in Whiten v. Pilot Insurance Company over 20 years ago

Canada’s top five insurers report combined annual revenues exceeding $60 billion

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