Canada: Clarity On Quantum Of The Statutory Deductible And Pre-Judgment Interest?

Last Updated: January 11 2016
Article by Talaal Bond

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 introduction.

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 own formula.

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 [2002] 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 deductible directly.

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 quantum applied.

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 [2002] O.J. No. 2543 (C.A.) (and reference to Travelers Insurance Company of Canada v. Corriveau, [1982] 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 substantive matter.

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Talaal Bond
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions