The Ontario Superior Court recently held that the deductible
applicable to non-pecuniary damages in all pending MVA actions is
the amount established by O. Reg. 221/15 under the Insurance
Act. At the time of the decision in December of 2015, this
amount was $36,540. The decision supports the position that the
deductible applicable to MVA-related actions will depend on when
the case is adjudicated, regardless of when the accident
In Vickers v. Palacious,1 Justice Martin
James held that the legislative intent behind the new deductible,
which came into effect on August 1, 2015, was to have retroactive
application. The amount of the new deductible represents a material
increase over the previous statutory deductible of $30,000 that had
been implemented in 2003 by O. Reg. 312/03.
The previous regulation provided that all actions arising from
MVAs occurring after a specific date would have the statutory
deductible applied. James J. noted that the new regulation
specified no such date. Moreover the new amount was set to expire
on December 31, 2015, at which point the new deductible is to be
adjusted based on indexation and readjusted annually. This
indicated a clear intent that all pending lawsuits should have the
new deductible apply. To hold that the increased deductible should
be restricted to lawsuits commencing after August 1, 2015, as the
plaintiff argued, would be unreasonable given that the amount would
again change on January 1, 2016.
James J. also held that the increased deductible is a matter of
procedural and not substantive law, meaning it applies
retrospectively. Significantly, this position and the outcome of
the Vickers case conflicts with the earlier decision of
Cobb v. Long Estate,2 where the court held that
the new deductible should not apply to existing actions.
In Cobb, Justice M. Belch held that the deductible
formed part of the threshold provisions of the Insurance
Act, which is a matter of substantive rather than procedural
law, following the Court of Appeal's decision in Wong v.
Lee.3 Therefore, according to Belch J., the August
1, 2015 change to the deductible cannot be applied retrospectively.
It is worth noting that a notice of appeal has been filed in
relation to the Cobb decision.
Given the opposing results in Cobb and
Vickers, the issue of whether the adjusted deductible
applies retrospectively will likely require a decision by an
appellate court. Clarification on this point is especially
important since the deductible has again "reset" as of
January 1, 2016 to $36,905.40 and will do so annually going
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
The recent Preliminary Issue decision in Walsh and Echelon (FSCO A15-007448, August 31, 2016) confirms that an economic loss does not need to be demonstrated in order to be entitled to attendant care benefits.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Policyholders recently won a key victory at the Supreme Court of Canada in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. as the Supreme Court clarified the interpretation of a standard form...
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