Wait!? I had a car accident and you’re telling me I’m not entitled to recover for my pain and suffering?
I have heard this from injured people on numerous occasions during my career. There is a belief that if someone has an accident then they are entitled to compensation. It is a shock for someone hurt in a motor vehicle accident to hear that the system in Ontario (at the time of drafting this article) it one, which requires that a person sustain a permanent and serious impairment of a physical, mental or psychological function. If the injuries do not meet this threshold then you are not entitled to recover money for your pain and suffering.
To further complicate matters, very few people are aware that there is also statutory deductible. This means that in order to recover money from the other driver’s insurer, the value of the injured party’s injuries (pain and suffering, which is referred to as non-pecuniary damages) must exceed the deductible before the injured party can recover any money.
Here is the bad news. Prior to August 2015, the deductible was pegged at $30,000. Here is even more bad news. After August 2015, the deductible was increased for inflation and is subject to an increase for inflation on an annual basis. Finally, the really bad news. As of 2019, the current deductible is $38,818.97 (http://www.fsco.gov.on.ca/en/auto/autobulletins/2018/Pages/a-06-18-attachment1.aspx). The only silver lining, if one can call it that, is if your injuries exceed $129,395.49 for pain and suffering then you are not subject to the deductible.
The reason for the threshold and deductible is to limit lawsuits, pure and simple. Thus, the law is designed in such a way that an injured person will live with a level of pain and suffering, which is not compensable if the person does not meet both of the foregoing requirements.
The automobile insurance system in Ontario is, to put it mildly, complex. It for this reason that I encourage those who are in motor vehicle accidents to consult a lawyer to know what their rights are, what they face in the future and what the prospects are for recovery. It is better to know at the beginning what to expect than at the end.
Written by Tullio D’Angela