Part 2: Suing
If you have been injured because of a motor vehicle in Ontario, you may be entitled to compensation from the person that caused the accident. Whether you could actually succeed in such a lawsuit is a big question.
In Ontario, there are obstacles put in place by the Insurance Act to restrict not only who can sue, but how much money you can get. Most people in Ontario are unaware of these rules and it can come as a shock to many who have had their lives turned upside-down due to no fault of their own.
The Verbal Threshold
The first big hurtle one has to overcome is what is known as the “verbal threshold”. This is the test you must meet before a court can award you damages in a lawsuit involving a motor vehicle.
You must establish that you have sustained:
A permanent, serious impairment of an important physical, mental, or psychological function.
All of these words have been analysed by the courts ad-nauseum. Effectively, this test means that you have to have an injury which has had a significant impact on your daily activities and there is no definitive end date to your symptoms.
This test can be very difficult to meet for those who have sustained injuries for which there is no objective proof. Soft tissue injuries or mental health conditions which have resulted from car accidents are usually the most difficult to prove. Many insurance companies dig their heels in on such claims contending that the matter is not a “threshold claim”.
During a trial, the insurance company usually brings a motion before the judge to ask her to determine whether the plaintiff meets this test. The judge makes the determination on the basis of the medical evidence put before her. If the judge determines that the threshold has not been met, no damages can be awarded for pain and suffering.
It is far easier to make a threshold argument where injuries are objectively determined. Fractures, particular near or at joints, or muscles tears, will frequently support meeting the threshold test. However, those people who suffer from profound chronic pain as a result of soft tissue injuries or who suffer from significant mental health issues will often also meet the test, subject to the strength of the medical evidence they are able to produce. You should be able to rely on your lawyer to obtain that
evidence on your behalf. Just as importantly, however, your lawyer should be able to advise you if the evidence that you have simply does not satisfy this test.
Even in cases where the threshold has been met, you still have to content with the statutory deducible. This is probably the most difficult aspect of the Insurance Act restrictions on motor vehicle accidents for people to accept.
Just as there is a deducible to get your vehicle repaired, there is a deducible on the assessment of your pain and suffering damages. As of January 1, 2020, this deductible is $39,556.53. It goes up every January 1 and we expect it to eclipse $40,000.00 in due course.
This deductible means that when your pain and suffering damages are assessed, close to $40,000.00 is removed. You get what’s left over. If your pain and suffering damages are assessed at under $40,000.00 you get nothing. The reality is that you could go to trial and have a jury award you $35,000.00 in damages with the result being you receive no money at all under this head of damages.
Should your pain and suffering damages be assessed over $131, 854.31, no deductible applies – this amount also goes up every year with inflation. This is of little consequence to most people, however, as it is only the very seriously injured who would have damages assessed this high.
Cap on Damages
In Canada, there is a cap on the assessment of damages for pain and suffering of about $391,000.00. This is the most any person can receive for pain and suffering damages in Canada and was set in the 1970’s by the Supreme Court of Canada. It too, goes up with inflation every year. If that is the most anyone can receive for the most terrible injuries, one can imagine how much their claim might be worth in comparison.
I have had many clients express dismay over the deductible and why it exists. Some people want to know where it goes. It doesn’t go anywhere; it’s simply a set-off on your claim and the insurance company gets to keep it. The reason it exists is to weed out smaller claims from the court system. One must ask, however, whether $40,000.00 really represents a “smaller claim”.
10 years ago, the Ontario government removed the deductible from fatality claims. As such, if you have suffered the loss of a loved one in a motor vehicle collision, the deductible will not apply to your claim.
What about my other losses?
The threshold and the deductible only apply to pain and suffering damages. If you have out of pocket expenses or income losses, no threshold or deductible apply, however, the Insurance Act has different rules for calculating those losses. In addition, anything paid by your auto insurer by way of Accident Benefits is set-off from these losses. See Part 1 of this article which outlines some of those benefits which you may be entitled to.
It is important to understand what obstacles you have in front of you when pursuing litigation against the driver of a motor vehicle who has caused your injuries. Litigation is a long and exhausting process that can result in extraordinary stress on you and your family. Our office provides free consultations to help you understand your rights.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.