Auto Insurance Scheme Comparison

Tort

Up until June 21, 1990

General Damages		Claimant has full right of recovery for non-pecuniary general damages. In 1978, the Supreme Court of Canada, in a series of three cases ("the trilogy"), set a cap on general damages at $100,000 (with inflation, the cap is at approximately $254,000 as of August 1996).
Pecuniary Losses		Claimant has full right to sue for all pecuniary losses. Claimant must deduct from award all no-fault benefits received. No-Fault Benefits to be paid by insurer of vehicle in which claimant was travelling. Limited accident benefits set out in Schedule "B" of S.P.F. No. 1. Weekly Income Benefits: paid to insured who suffers substantial inability to perform the "essential tasks" of his or her occupation or employment. Payable for up to 2 years and thereafter only where the injury "continuously prevents the insured from engaging in any occupation for which he or she is reasonably suited by education, training or experience". Weekly Benefits at the lesser of $140 per week or 80% of gross weekly income.
Collateral Benefits		For cases before October 13, 1989, insurer can deduct collateral benefits pursuant to the common law principles regarding double recovery. Ratych v. Bloomer [1990] 1. S.C.C. 940 establishes principle that such collateral benefits are deductible unless the plaintiff can demonstrate that he or she has "given something up" in exchange for the benefit received. Cunningham v. Wheeler [1994] 1 R.C.S. 359 narrows the deductibility possibilities further in suggesting that such a trade off may, in certain circumstances, be implied from the employment context. Also, the court suggests that if the provider of collateral benefit has right of subrogation, there is no deduction even if that right is not exercised. For cases after October 23, 1989, and before January 1, 1994, see collateral benefits section of OMPP.
Direct Property Damage		Insurer free to bring subrogated action for direct property damage to vehicle.

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© Rogers Partners LLP - 1996

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