The issue of whether the recent amendments to Ontario's
Insurance Act dealing with the indexation of the statutory
deductible to inflation was recently before the Ontario Superior
Court of Justice in Corbett v. Odorico, 2016 ONSC 1964
Following a six week jury trial, the Plaintiff, who was injured
in a December 5, 2009 motor vehicle accident, was awarded $33,000
in general damages. After finding that the Plaintiff had
satisfied the verbal threshold, Justice Hackland considered whether
the recent amendments to the Insurance Act indexing the
statutory deductible to inflation applied retrospectively to
ongoing motor vehicle personal injury actions commenced before the
August 1, 2015 amendments took effect. Justice Hackland agreed with
the defendant that a regulation varying the amount of the
deductible for fixed annual periods is procedural in nature and, as
such, applies retrospectively. In Justice Hackland's
view, the amendments were designed to fix the deductible amount in
"current dollars", just as jury verdicts and other court
judgments are made in "current dollars". Applying
the new statutory deductible of $36,540, the Plaintiff was left
with a nil recovery in respect of general damages.
For those keeping score, two Judges of the Superior Court of
Justice have held that the indexed deductible applies to ongoing
motor vehicle personal injury actions commenced before August 1,
2015 vs. one that has found that the indexed deductible did not
apply retrospectively. Meanwhile, personal injury lawyers,
both plaintiff and defence, and insurance industry professionals
continue to anxiously await clarity of the issue from the Court of
Appeal in relation to the appeal of El-Kohdr v. Lackie,
2015 ONSC 4766 (CanLII).
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