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.
Costs
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.
