Vickers v. Palacious, 2015 ONSC 7647, December
8, 2015, James, J.
In this case, the Justice James was asked to address threshold,
pre-judgment interest and the quantum of the statutory deductible.
The plaintiff was a cyclist that was struck in the back by a mirror
from a vehicle that passed her long before the amendments to the
deductible and interest rates were enacted.
The quantum of the statutory deductible, the defence argued, was
that the indexed quantum introduced on August 1, 2015 ($36,540) was
appropriate. The plaintiff argued otherwise stating that it is a
matter of substantive rather than procedural law and therefore it
could not be applied to accidents that occurred prior to its
Justice James reviewed the 2003 legislation which stated in O.
Reg. 221/14 that it was to apply "in respect of incidents that
occur on or after October 1, 2003". The new amendments did not
include a similar provision. Therefore, the legislature intended
that the new deductible was to apply to all cases regardless of
when the accident occurred. The judge also queried the logic of
having a deductible that would only apply to 2015 (the indexed
amount to change on December 31, 2015). Each year would have its
The judge also felt that an alternative reason would apply,
namely the application of the cap on non-pecuniary general damages.
Justice James cited Somers v. Fournier 
O.J. No. 2543 (C.A.). In short, entitlement was substantive, but
quantum was procedural. The policy considerations favoured
characterization of the cap as a procedural matter. Similarly the
deductible was a result of the policy consideration that damages
below a certain level should be subject to a significant
deductible. The deductible is to be seen as a measuring or
quantifying device (procedural) as opposed to the availability of a
particular head of damage (substantive).
Justice James then reviewed Cobb v. Long
Estate, 2015 ONSC 6799 (
see my blog of November 17 , 2015) which followed
El-Khodr v. Lackie 2015 ONSC 4766 which held that
the indexed deductible did not apply to pre-August 1, 2015
accidents. However, Justice James pointed out the El-Khodr
never addressed the issue of which deductible should apply. There
was no evidence that the use of an indexed deductible would result
in a windfall for insurers. The judge then disagreed with Justice
Belch's rationale for stating this case supported by law noting
that Belch J used cases that addressed choice of law rule not the
This being the case, James, J. concluded that the legislative
intent was clear in that it was to apply to all pending actions.
The plaintiffs did not have a vested right that was interfered
with. The deductible is a matter of procedural law and indexed
The judge also differed with Justice Belch in respect to the
calculation of pre-judgment interest. Rather than use the Justice
Belch's pragmatic approach which was to essentially set it at
an amount between the previous Rule 53.10 amount (5%) and the
amended amount (set by 128(1) of the Courts of Justice
Act), Justice James set out similar rationale as was applied
in respect of the statutory deductible. Specifically, the court
referred to Cronk J.A. in Somers v. Fournier
 O.J. No. 2543 (C.A.) (and reference to Travelers
Insurance Company of Canada v. Corriveau,  2
S.C.R.) in that pre-judgment interest was clearly held to be a
substantive right, in contract to costs and the non-pecuniary
general damages cap which were procedural matters. Cronk J.A. did
not differentiate between the entitlement and quantification of
pre-judgment interest which was only introduced in Cirillo
v. Rizza 2015 ONSC 2440. Inasmuch as pre-judgment interest
was concerned, Justice James agreed with the court in
El-Khodr which said that this could not flow logically
given the decision in Somers and as such Cirillo
was wrongly decided. In the end, it was held that entitlement to a
particular pre-judgment interest rate was established in law a
In conclusion, the court held that the quantum of the deductible
was a procedural matter while the quantum of the pre-judgment
interest was a substantive one. The indexed deductible applies to
accidents that occurred prior to August 1, 2015, while the indexed
pre-judgment interest rate applied to those after the time when it
was amended, namely January 1, 2015.
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