Have The New MVA Threshold Changes Made Life More Difficult For Plaintiffs?

The government of Ontario recently made changes to the Ontario Insurance Act by revising the monetary thresholds and deductibles for non-pecuniary tort awards, the eligible injuries, and type of impairment.

With the change in Section 267.5 of the law, the plaintiff must have suffered permanent injuries and the injuries must have impaired an important physical function before he/she is eligible for general damages.

There has been an adjustment of the monetary threshold beyond which the deductible amounts do not apply from $124,616.21 to $126,610.07 when it comes to damages for non-pecuniary loss (267.5 (8.3)). There has also been an upward adjustment for damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act.

Also hiked (due to yearly inflation) are deductible amounts for non-pecuniary loss deductible (5.1 (1)) and Family Law Act deductible (5.1 (2)). All these kick off from the 1stof January 2018 to 31st December 2018. According to Patricia Sim who is a managing lawyer with Toronto-based Grillo Law Personal Injury Lawyers, “…And it moves in a direction that’s favorable to the insurance company.”

With these changes, many feel there is no incentive for insurers to settle early in MVA claims. It is now harder for plaintiffs to recover general damages from MVAs than with other types of injury cases. When a Toronto jury assesses damages to be less than the deductible, there is a risk you will walk out of court empty handed. According to Samantha Iturregui who is a partner with the Ottawa-based Kelly Santini LLP, “What they’re looking to do is limit the availability of recovery for people involved in motor vehicle accidents if the injuries are minor.”

With these changes, note that you may get other damages even when you are not getting general damages, but general damages form the biggest chunk of a personal injury claim and are the main reason many plaintiffs file in the first place.

Judges are failing to even rule on the threshold when the damages awarded are low, arguing this would be moot. A good example of this is Mandel v. Fakhim, 2016 ONSC 6538 where the plaintiff had been awarded $3,000. According to Iturregui, “Some judges are following suit. They’re letting juries decide the damages, and based on what these decisions are, if they’re under the deductible, they’re not ruling on the threshold.”

According to Rose Leto who is a partner with Toronto-based Neinstein Personal Injury Lawyers LLP, “A jury could think that they’re actually helping a plaintiff or giving a plaintiff an award when, in fact, because of the application of the deductible, they get nothing.”

Source: http://www.lawtimesnews.com/author/dale-smith/mva-threshold-changes-harder-for-plaintiffs-15156/