Prior to August 1, 2015, the statutory deductible for non-pecuniary damages in Ontario was $30,000 under the Insurance Act. A plaintiff’s general damages award was only subject to the deductible if the damages did not exceed $100,000. On August 1, 2015, legislative changes took effect to increase the amount of the deductible to $36,540, and to increase the monetary threshold to $121,799. As of January 1, 2016, the deductible will continue to increase with inflation each year.
Currently, the courts are struggling to determine whether the new changes are to be applied retroactively. For example, if a plaintiff was injured in an accident in 2010, would the new or old deductible apply?
The question before the courts is if the new deductible is a “substantive” change, or a “procedural” change. If the change is found to be substantive, the old deductible amount applies for accidents that occurred prior to the changes. If it is found to be procedural, the new deductible will be effective immediately for all ongoing motor vehicle accident cases.
So far, the courts have differed in their analyses. In Vickers v. Palacious, 2015 ONSC 7647, the court found that determining the amount of the deductible was a procedural issue. Vickers relied on Somers v. Fournier, [2002] OJ No. 2543, which dealt with whether the legislation with respect to the general damages cap in Ontario was to be considered a substantive or a procedural matter. Vickers echoed the conclusion in Somers, which found that while entitlement to damages is a substantive matter, the quantification of damages was procedural, and therefore, the increased deductible is to be applied retroactively. The court in Corbett v. Odorico, 2016 ONSC 1964, followed Vickers, and stated that the regulations are in place to “fix the deductible amounts in current dollars, just as jury verdicts and other court judgments are in current dollars.”
In El-Khodr v. Lackie, 2015 ONSC 4766, the court was concerned with whether changes to pre-judgment interest rates were to be applied retroactively. It found that they were not, as the changes were substantive in nature. Interestingly, the court did not follow the same line of reasoning in Somers that Vickers did; instead, it was argued that the decision in Somers was restricted to the issue of the non-pecuniary damages cap. Applying the same logic as in El-Khodr, the court in Cobb v. Long Estate, 2015 ONSC 6799, found that the new statutory deductible could not be applied retroactively, as it was a matter of substantive law. The court noted that insurers have been setting premiums based on the deductible of $30,000, and would therefore obtain a windfall if they received the benefit of a higher deductible at the end of a case.
As these cases differ in their conclusions, a decision will have to be made by the Court of Appeal in order to offer some clarity in this matter.
Bogoroch & Associates LLP has extensive experience in motor vehicle accident litigation and accident benefits. Bogoroch & Associates LLP strongly believes that victims of motor vehicle accidents are entitled to access to justice. Please contact Richard Bogoroch (rbogoroch@bogoroch.com) or Yoni Silberman (ysilberman@bogoroch.com) for further information on how we can assist you or your family member.
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