When you are injured in a motor vehicle accident in Ontario, you cannot count on receiving the full amount of your damages in a personal injury lawsuit. The reason for this is that the Ontario government imposes a “statutory deductible” on non-pecuniary (pain and suffering) damages. This means that by law, a judge must reduce certain awards by an amount based on when the accident occurred provided the statutory threshold is met.
For non-pecuniary losses incurred in 2019, the statutory deductible is $38,818.97. So, for example, if a jury awards a car accident victim $50,000 in non-pecuniary damages, the judge will apply the deductible, reducing the final award to $11,181.03. If the jury awards less than the deductible itself, the victim recovers nothing and can in fact be held liable for the defendant’s legal costs.
It should also be noted, however, that there is a “monetary threshold” above which the deductible does not apply. For motor vehicle accidents in 2019, this threshold is $129,935.49. So, if our hypothetical jury awarded $130,000 in damages, no deductible applies and the victim would take the entire amount.
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Here is a real-world illustration of how the statutory deductible can actually leave accident victims worse off, at least financially. In this case, Hinds v. Metrolinx, the plaintiff was injured while riding a Toronto Metrolinx GO bus in July 2009. At the time, the plaintiff worked as a customer representative at CIBC. She boarded the GO bus in Mississauga en route to her employer’s offices near the intersection of Lawrence and Dufferin Streets in downtown Toronto.
Before taking her seat, the bus driver started to move the bus forward but then “braked abruptly.” This caused the plaintiff to fall in the aisle, with her leg striking one of the seats. Despite the fall, the plaintiff proceeded to work and did not seek immediate medical attention. She eventually missed 10 days of work, at both CIBC and her second job as a bartender in Mississauga, but thereafter continue to work until retirement in 2016.
The plaintiff subsequently filed a personal injury lawsuit against Metrolinx. Metrolinx admitted liability for the plaintiff’s fall but contested the issue of damages. The matter was submitted to a jury. After a two-week trial, the jury determined that the plaintiff had “recovered” from the injuries she sustained in the fall but awarded her $35,000 in non-pecuniary damages and an additional $5,000 for “past housekeeping and home maintenance loss.”
Was Metrolinx a “Protected Defendant”?
Ontario Superior Court Justice Michael G. Emery then heard post-trial motions from both sides. Justice Emery reduced the housekeeping and maintenance award to zero, as the plaintiff previously received compensation for those losses from her own insurance company. As for the $35,000 pain and suffering award, the court needed to determine whether the statutory deductible applied. In a related issue, the judge first looked at whether or not Metrolinx was a “protected defendant” under Ontario law.
A “protected defendant” simply means a defendant whose damages are limited by the statutory deductible. Under current Ontario law, a public transit defendant is unprotected in cases involving a collision between vehicles. But this case did not involve a second vehicle. A defendant is also unprotected when the victim either dies as a result of their accident-related injuries or sustains either “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function.” None of these conditions applied in this case, Justice Emery concluded, based both on the jury’s verdict and his own review of the evidence presented.
So Metrolinx is nominally a protected defendant. However, the Ontario Court of Appeals has also said in prior decisions that an employer also “vicariously liable” for the negligence of its employees.
Reconciling these two principles, Justice Emery concluded that Metrolinx was vicariously liable for its driver’s negligence in causing the plaintiff’s fall, but since the driver was also a protected defendant, Metrolinx was entitled to the statutory deductible. At the time of the accident, the deductible was $37,385.17, which exceeded the jury’s $35,000 award. The judge therefore ruled the plaintiff was entitled to nothing.
The plaintiff appealed Justice Emery’s ruling to the Court of Appeal. In a judgment issued on April 11, 2019, a three-judge panel unanimously dismissed the appeal. The Court of Appeal said Justice Emery’s decision reflected the “only sensible and rational interpretation” of the law under these set of facts.
In its judgment, the Court of Appeal observed that “absent the reduction in damages contemplated by the statutory deductible, it is difficult, if not impossible, to imagine a circumstance in which an employer’s vicarious liability for his employee’s negligence would result in liability for greater non-pecuniary loss than that to which the employee is exposed.” But in cases like this, where the employee is also classified as a “protected defendant,” there can be a difference in damages awarded.
So, what does all this mean for the plaintiff? First, she recovered nothing from her personal injury claim, as all of her non-pecuniary damages were wiped out by the statutory deductible. Second, she was liable for the defence’s trial costs. Third, she was separately assessed $20,000 in costs for her unsuccessful appeal.
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Cases like this illustrate the difficulty personal injury victims often face in Ontario courts. Provincial laws are written to minimize the liability of insurance companies and municipal defendants. This can work against a plaintiff who otherwise manages to prove liability at trial.
This does not mean you should not pursue a valid personal injury claim. If you have incurred damages as a result of someone else’s negligence, you have the right to your day in court. An experienced Toronto personal injury lawyer can guide you through the process. Contact Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers today.