Auto Insurance Scheme Comparison

Bill 198

Royal Assent June 27, 1996
Effective Date October 1, 2003

Non-Pecuniary General Damages		Section 267.5(10.1) makes an owner who is also an employer a “protected person”. This fixes the problem in Vollick v. Sheard. Claimant may not sue protected persons (owner, occupant, person at the scene) for non-pecuniary general damages or costs of future care unless the claimant’s impairments pass a verbal threshold. Claims for non-pecuniary general damages are subject to a monetary deductible. Verbal Threshold: (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function. The threshold is further defined by regulation. The phrase “permanent serious impairment …” defined and evidence to be lead on threshold motion is now specified in sections 4.2 and 4.3 of Ontario Regulation 461/96. Significant changes include: For the impairment to be serious, it must interfere with person’s ability to continue his or her regular employment, despite reasonable efforts to accommodate and despite the person’s efforts to use accommodation to continue employment; For the impairment to be serious, it must substantially interfere with most of the person’s activities of daily living; For the impairment to be an impairment of an important function, the function must be important to most of the person’s usual activities of daily living, considering the person’s age; and For impairment to be permanent it must be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. Under the Bill 59 regime, a plaintiff could not claim for costs of future care unless catastrophically injured, as defined for purposes of the Statutory Accident Benefits Schedule. Under Bill 198, a plaintiff need not have suffered a catastrophic injury to claim for cost of future care. Under Bill 198 the verbal threshold for cost of future care claims is the same as the verbal threshold for non-pecuniary general damages. There is a $30,000 deductible for non-pecuniary general damages awards. Non-pecuniary general damages deductible ‘vanishes’ for awards greater than $100,000 - Section 5.1 of Ontario Regulation 461/96 There is a $15,000 deductible for Family Law Act claims. Family Law Act claims deductible 'vanishes' for awards greater than $50,000 - Section 5.1 of Ontario Regulation 461/96
Pecuniary Losses		Neither the threshold nor the deductibles apply to claims for pecuniary loss. There is no claim for the losses in the first 7 days after the accident. Claims for pre-trial pecuniary loss are restricted to 80% of the net loss. Claims for post-trial losses are for 100% of gross. Neither the threshold nor the deductible apply to pecuniary tort losses.
Collateral Benefits		Collateral benefits are divided between pre and post trial collateral benefits. All pre-trial collateral benefits are statutorily required to be deducted but this is done on the basis of a strict matching system. That is, benefits are deducted only against the like damage award (e.g. deduct income benefits from income loss claims). Benefits are to be deducted if they are received or available to the plaintiff before trial. A benefit is deemed not available if the plaintiff has applied for it and been denied so long as the plaintiff has actually applied and acted in good faith (not too late etc.). All future losses are payable by a defendant despite the availability of collateral benefits. The statute requires plaintiffs to hold in trust all future collateral benefits and pay those benefits over to the tortfeasor (s.267.8(9)). The Act provides a court with the option of awarding a tortfeasor an assignment of the plaintiff's future collateral benefit rights (267.8 (12). The plaintiff in this situation is statutorily mandated to co-operate with the tortfeasor in the future recovery of these benefits and the court is statutorily entitled to impose such conditions on the assignment as it considers just.
Direct Property Damage		No changes from Bill 59 regime.

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© 1996, Rogers Partners LLP
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© Rogers Partners LLP - 1997

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