Commencing a legal claim is no simple matter for motor vehicle accident victims struggling with the mental and physical strain of their recovery from injury.
Unfortunately, for those who want anything more than basic benefits, Ontario’s auto insurance regime does not make their lives any easier. In fact, provincial law erects additional barriers to justice that most people outside the world of personal injury law are rarely aware of.
Two of the most consequential relate to pain and suffering damages and are known as the “Threshold” and the “Secret Deductible.”
The Pain and Injury Threshold
In technical terms, Ontario’s Insurance Act generally bars recovery for non-pecuniary damages arising from the use of an automobile, except in certain circumstances.
In plain English, what this means is that anyone who wants to sue for pain and suffering after a car accident will have to meet each of the three following requirements, proving that their injuries are:
- Permanent: A judge will have to be satisfied that the impairment is not expected to improve significantly with time or treatment.
- Serious: Judges will consider the impact of the injuries on the person’s day-to-day activities, including their ability to work, engage in hobbies and enjoy their family life.
- Related to an important physical, mental or psychological function: This is a relatively broad category that captures most injuries suffered by automobile accident victims.
The Threshold for Pain and Suffering is a relatively recent feature of Ontario’s auto insurance system. It was introduced to keep minor injury claims out of the courts, allowing more serious cases to move forward.
In practice, however, it often creates an added obstacle for plaintiffs pursuing personal injury claims. Success in a threshold motion (which takes place after the plaintiff has presented their case at trial) typically depends on strong medical evidence, such as:
- Health records documenting the injury
- Treatment plans showing the course of care
- Expert opinions on the plaintiff’s current condition and long-term prognosis
Still, all is not lost for plaintiffs who fail to convince a judge that their injuries meet the threshold for compensation. Although they can’t sue for pain and suffering, injury victims may be able to work with a personal injury lawyer to collect other forms of damages, including reimbursement for medical expenses, lost income and out-of-pocket expenses.
The Secret Deductible
Like the Threshold, the Secret Deductible (also known as the statutory deductible for pain and suffering) is also a relatively new addition to Ontario law. It gets its clandestine name from the fact that juries are not allowed to know about its existence before delivering their verdicts.
When it arrived as part of the province’s new no-fault auto insurance regime in the 1990s, the deductible stood at $10,000, before several large jumps in the following decades. Since 2015, the deductible has been indexed to inflation and currently stands at $46,790.05, applying to reduce any general damages award under $155,965.54.
Each of these features works to the advantage of insurance companies, as the majority of personal injury claims fall under the ceiling that triggers the deductible. Critically, the effect becomes more pronounced every year, since damage awards for pain and suffering have not risen at a similar rate.
In the meantime, a series of government reforms have cut the accident benefits available to injury victims, including a minor injury guideline that caps benefits for most at $3,500.
Jumping the Barriers
The unfairness of the Threshold and the Secret Deductible continue to be significant barriers to justice for plaintiffs injured in car accidents. An experienced personal injury lawyer can help you determine whether they could be a factor in your claim and decide how to move forward.
If you’ve been involved in a motor vehicle accident and are worried about either the Threshold or the Secret Deductible affecting your claim for pain and suffering, feel free to contact me or another member of the personal injury lawyer team at Edwards Pollard.