Uphill Battle

Unlike other types of litigation in Ontario, personal injury actions arising from motor vehicle accidents are stacked against plaintiffs from the beginning. Sections 267.5(5) and (7) of the Insurance Act, coupled with ss. 4.1 and 4.2 of Ontario Regulation 461/96, work to minimize the risk that insurance companies for the at-fault driver will have to pay out for injured victims in tort claims. Here are five ways that plaintiffs face an uphill battle from the get-go.

Statutory threshold

Merely being injured in an accident caused by someone else does not automatically entitle one to sue for pain and suffering. The injuries must meet what is called the “threshold.” The plaintiff must have suffered a “permanent serious impairment of an important physical, mental or psychological function.” Most of my personal injury cases involve an argument over whether or not my client meets the threshold. 

As an example, let’s take a typical case I would deal with, where my client suffers from neck and back pain, occasional headaches, and some concomitant psycho-emotional stresses, all of which disrupt her sleep. During the day she is fatigued. The constant pain and fatigue causes frustration leading to minor depression. But she does not miss work and life goes on, for the most part just as it did before. To my client, her pain is real, yet no objective diagnostic tests confirm this. As such, the threshold question is a live issue. I regularly rely upon the Court of Appeal for Ontario decision in May v. Casola [1998] O.J. No. 2475, which states that an individual who returns to normal life but does so with “permanent symptoms including sleep disorder…headaches, dizziness” meets the threshold, and other cases following therefrom (such as one for $100,000 for the soft-tissue injuries of a plaintiff who returned to work and some of his pre-accident activities, but did so in constant pain, in Whilby v. Redhead [2010] O.J. No. 1819). Yet two recent decisions of the Superior Court — Ayub v. Sun [2015] O.J. No. 1415, and Malfara v. Vukojevic [2015] O.J. No. 44 — appear to foreshadow a trend that will make it more difficult for injured parties to recover by seemingly moving the line the threshold must cross.

Threshold motion

While I will run the trial in front of a jury, section 267.5(15) of the Insurance Act allows the trial judge to determine the threshold question regardless of the jury’s determination and award. This gives the insurer two kicks of the can at the same trial. If I am able to persuade the jury that my client’s injuries entitle her to a significant award of general damages, which would appear to determine the threshold question, the judge can decide the question differently and strike the jury award.

Statutory deductible

Section 267.2(1) of the Insurance Act sets out a deductible on general damages for pain and suffering. Presently this deductible is $30,000 on all awards under $100,000. Whatever amount the jury awards will be reduced by $30,000. When a typical soft-tissue case is worth less than $50,000, it is easy to see how the deductible has such an impact. Moreover, the jury is not told about the deductible, which can cause juries to return what they feel is a generous verdict only to result in the plaintiff being shut out.

Insurer not named defendant 

The lawsuit pits my client against a defendant whose vehicle is responsible for causing the accident. The actual defendant is only remotely involved in the defence of the action. It is the defendant’s insurer insurance company who hires and pays the lawyer, and ultimately any award of damages. The jury is not told that an insurer is the de facto defendant. Thus, jurors may seek to balance their desire to help my client with their empathy for the named defendant.


The loser of a trial will pay a significant portion of the winning party’s legal costs. Costs awards exceeding $100,000 for a typical personal injury jury trial are commonplace — no big deal for the insurance company, but a very large risk for my clients. In fact, it is such a large risk that very deserving injured plaintiffs who are pushed to the eve of trial will often walk away for fear of losing their home or having their wages garnisheed.

These five factors demonstrate how the system is stacked against innocent injured victims of motor vehicle accidents. One large insurer has been so successful in exploiting these inequities that many plaintiff lawyers now routinely refuse to take on clients where that particular insurer indemnifies the at-fault driver. The impact on access to civil justice is that a great many deserving plaintiffs cannot find representation, and many more who do are denied fair compensation for their injuries.

It should be noted that due to recent amendments to the Insurance Act, for all accidents which occur on or after August 1, 2015, the $30,000 deductible referred to above will now be $36,540. Likewise, the $100,000 mark which must be hit to avoid the deductible will be $122,799 for post-August 1, 2015 accidents. These amounts are subject to annual inflation rate increases. This almost under-the-radar legislative change only serves to underscore the opinions expressed in this commentary.

Speaker's Corner: Ruling a reminder about usefulness of Apology Act

A recent decision by Superior Court Master Donald Short raises an interesting advocacy opportunity based upon a little-known and fairly recent piece of Ontario legislation, the Apology Act.The aim of the act was to allow a potential defendant to express remorse or regret without fear of such comments precluding a defence on the merits and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation. the master reviewed the principles enunciated in the Apology Act. In Simaei, the plaintiff wished to plead in her statement of claim that her former employer’s apology arising from the termination of her employment was an admission of fault or wrongdoing. As such, the plaintiff wished to use the apology as a quiver in the arrow of her case. The defendant’s lawyers argued the court should strike that part of the statement of claim as being prejudicial to her in addition to being vexatious and an abuse of process. None of the allegations have been proven in court.Short agreed, citing the provisions ot andate that a party cannot use an apology made in good faith (unless made in the context of an on-the-record discussion as part of the litigation) against the other side in the context of the litigation. The master went even further and suggested the court must by necessity strike the portion of the pleading referring to the apology since a party, under the Rules of Civil Procedure, “cannot plead facts that go nowhere.In light of the wording of the Apology Act, pleading the apology goes nowhere because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault. Thus, even pleading the fact that there was an apology by the defendant offends the principles of pleading and potentially prejudices the defendant at the trial. Additionally, if the apology remains a part of the pleading, it becomes a live issue on discovery.While the case on its face appears to provide some practical advice on the principles of pleading, it is the discussion of this relatively unknown statute that is the real lesson for lawyers to draw from the decision. Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, underscored the virtue of a strategic apology when he noted: “My personal involvement in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution.”I concur with Short. My own experiences over 22 years of litigation are that a properly timed and genuine expression of remorse can avert a lawsuit or mitigate the eventual cost to the defendant of settling the lawsuit. As lawyers, we think of the facts of a potential case in emotionally detached and almost clinical terms. But to the clients sitting in front of us, if we listen closely, mixed with their explanations of how they suffered economic losses by the proposed defendant will be expressions of moral indignation about how someone could do something so bad to them. Settling or avoiding lawsuits involves understanding more than just the law. It involves trying to get inside the head of the opposing party to empathize with its perspective. Plaintiffs often just want someone to hear and understand them. As counsel for a potential defendant or for you if you are dealing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars. It did not have that effect for the defendant in Simaei, but the plaintiff will not be able to use an ostensibly heartfelt expression of regret against her in the civil action.

Make Sure to Paper Your 407 ETR Settlement

Recently, 407ETR has launched a full frontal assault against thousands of former users whose accounts are anywhere from 4 to 12 years old. Almost all of these individuals have been in plate denial, unable to renew their licence plate sticker or obtain new plates, for more than 2 years. Some of these individuals believed that those old accounts were paid. Others, knowing that their long ago invoices were relatively small numbers in the hundreds or low thousands, and wanting to pay if only they could determine which charges were properly attributable to them, had attempted for years to sort out billing discrepancies before paying the invoice. Yet after more than 10 years in many cases, 407 has been unwilling or unable to answer their queries as to why they were charged for trips they didn’t take; for trips which occurred months or years after they moved out of the province; trips after they returned the transponder or gave back the plates under which the non-transponder account was registered. Imagine their shock when they opened the most recent collection notices and saw that they now owed anywhere from 100% to 1000% more than the original unproven amount of the debt.

These former customers are now receiving collection notices from a law firm representing the 407. This law firm is well aware that court proceedings cannot be commenced against these alleged toll debtors, as the time limit for issuing a court action has expired. These firms, on behalf of 407, are simply going to keep the file in a perpetual state of “collections”. This means that the previously invoked plate denial can remain in force, and that 407 can pursue aggressive collection actions, including repeated telephone calls, letters, credit bureau reporting, and the usual aggressive, annoying, and questionable techniques employed by the collection industry.

Yet debtors who call these firms and demand an accounting of the charges so they can reconcile what they are being expected to pay are met with silence. This is not the fault of the law firm acting for 407. It only acts for a client who has failed to provide the firm with the necessary background on each file, with the firm receiving only minimal information and a current debt total.

Most people cannot afford a lawyer to go to court and fight the 407 so they are reluctantly entering into settlements in order to resolve the matter and get the plate denial removed from the MTO database. I am aware of individuals who have successfully negotiated a settlement with 407 for as little as 25% of the debt.

If you find yourself in this situation and choose to settle with the 407 or its lawyer or collection agency, don’t assume that because you send them a cheque that the matter is done. In theory it should be. But the toll highway operator has shown repeatedly over the years that it cannot be relied upon for proper record keeping. Further, it seems every couple of years it engages new collection agencies and/or law firms to handle the old debt collection.

So, if faced with a demand for payment and you are prepared to make a deal, by all means do so. While there is much to be gained from fighting a legal battle on the basis of principal, standing up to the bully, public interest, etc., it may be cost prohibitive to do so. As such, settlement may make, depending on the amount at stake, eminent good sense. But be advised that you should only provide the settlement funds if the collection agency/law firm/407 agrees to provide you with the following:

1. A one page legal document called a Satisfaction Piece. This document is your ongoing proof that the debt is deemed settled in full, regardless of how much you actually paid.

2. Confirmation that the plate denial will be removed

3. A copy of 407’s direction to the Ministry of Transportation removing you from plate denial.

4. Confirmation that no negative information has been put on your credit bureau.

5. In the event you are already aware of a negative credit report, then a letter from 407 to Equifax and TransUnion confirming that the negative credit report was place “in error” and should be deleted.

Next time, I will reveal a simple $500 solution to get the 407 off your back.

Darryl Singer is a lawyer with 22 years litigation experience and a particular interest in taking on the 407. He practises as senior counsel with SINGER Barristers Professional Corporation in Markham. www.darrylsinger.com