Auto Insurance Scheme Comparison

Bill 164

January 1, 1994 to October 31, 1996

General Damages		Claimant has no right to sue an owner, occupant or any person present in the incident ("protected persons") unless damages exceed a verbal threshold and subject to a monetary deductible: 1. Verbal Threshold: s.267.1(2) (a) serious disfigurement; or (b) serious impairment of an important physical, mental or psychological function. Clearly a lower threshold than OMPP -notable absence of 'permanent' requirement and addition of non-physical injuries. 2. Monetary Deductible: s.267.1(8)3 Claimant's award is to be reduced by statutory deductible which is approximately $10,000. Each Family Law Act claimant's award is to be reduced by statutory deductible which is approximately $5,000. No right of recovery for general damages below either the verbal threshold or monetary deductible. Full right of recovery (less the deductible), subject to trilogy cap, for generals when injuries over the threshold.
Pecuniary Losses		Claimant has no right to sue protected persons for pecuniary losses. They are recoverable only through Statutory Accident Benefits. No-fault benefits to be paid by claimants own insurer. s.268(2). The Statutory Accident Benefits Schedule provides a much more comprehensive benefit scheme than under the previous regimes. s.268(1). A wide range of benefits are available including: Income Replacement; Education Disability; Caregiver; Other Disability; Loss of Earning Capacity; Supplemental Medical; Rehabilitation; Attendant Care; Death; Funeral; Compensation for Other Pecuniary Losses. Weekly Income Benefits: paid to claimant who suffers substantial inability to perform the "essential tasks" of his or her occupation or employment. Weekly Benefits at the lesser of 90% of net income or $1,000 per week for 2 years while entitled (no minimum benefit). After 2 years claimant's entitlement is governed by Loss of Earning Capacity Benefits ("LECB"). LECB amount is set through a formula set out in regulations and subject to a cap of $1,000 per week. LECBs continue until age 65 and are thereafter adjusted as per the regulations.
Collateral Benefits		The amendments to s. 267 (1) have removed the defendant's right to deduct the benefits outlined in former s. 267(1). Benefits are again deductible as per common law principles ie. Ratych v. Bloomer; Cunningham v. Wheeler. Protected person defendants are not entitled to deduct collateral benefits (including accident benefits) from the claimant's tort award. Indeed, the collateral source rule is relevant in the context of Bill 164 only where a claimant has received collateral benefits but has also commenced an action against an unprotected person (a tort-feasor who was not an owner, operator, or otherwise present at the accident scene) for pecuniary damages.
Direct Property Damage		The amended version of s. 263 is not significantly different from former s. 263. The insured is compensated by own insurer for property damage. The insurer has no right of subrogation, unless none of the other vehicles in the accident are insured, in which case the insurer can bring an action against an uninsured driver for property damage.

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© Rogers Partners LLP - 1996

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