What is the test for determining whether a plaintiff is entitled to equal treatment in the context of non-pecuniary damages?

Then, at para. 25, Binnie J. referred to the necessity of identifying the “universe of people” potentially entitled to equal treatment in relation to the subject of the claim. The plaintiff argues that, in this case, the relevant universe of people potentially entitled to equal treatment is all plaintiffs who have suffered personal injury as a result of negligence. The claimant is a member of this universe who has suffered great loss; the comparator group is comprised of all those who have suffered injury or loss that is not serious. The upper limit permits the comparator group to receive full and fair compensation for their non-pecuniary damages. Those less seriously injured plaintiffs are not subject to any limit because courts are to assess non-pecuniary damages without regard for the upper limit until the limit is reached. In that regard, the plaintiff referred to Boyd v. Harris (2004), 237 D.L.R. (4th) 193, 2004 BCCA 146, in which Smith J.A. used the analogy of a governor on an engine to describe how non-pecuniary damages are considered by juries: