A.B. v. Waite, 2018 ONSC 2151 (CanLII)

The bleak future of MVA general damage awards in Ontario.    

Date Heard: March 26, 2018 | Full Decision [PDF]

The Plaintiff was injured in a motor vehicle accident on February 3, 2009.  The Plaintiff sustained whiplash, missed several weeks of work, and developed chronic pain.  The Jury awarded the Plaintiff $42,250 for pain and suffering, and $76,121 for past-income loss.  The Jury awarded nothing for future income loss.

Following trial, the Defendant moved for judgment.  The Trial Judge affirmed the current statutory deductible of $37,983.33, and confirmed that claims, which do not exceed $126,610, are subject to that deductible.  Plaintiff’s counsel argued that the Court of Appeal erred in El-Khodr v Lackie and Cobb v Long Estate.  Plaintiff’s counsel argued that the Court should not apply the aforementioned decisions because Cadieux, an appeal to 5 judges of the Court of Appeal on similar issues, was scheduled to be heard in May 2018.  Plaintiff’s counsel argued Cadieux would overturn El-Khodr v Lackie, and Cobb v Long Estate.  Plaintiff’s counsel also noted that leave was being sought to appeal El-Khodr to the Supreme Court.

The Court rejected the Plaintiff’s approach.  The Court was bound by the El-Khodr and Cobb decisions.  The general damages award was reduced by the statutory deductible for a net general damages award of $4,266.67.  The Court wrote:

…Lower courts are not at liberty to overrule the decision of a higher court and appellate courts themselves should not lightly depart from their own previous decisions. The only instance in which I would not be bound by a decision of the Court of Appeal that is directly on point would be if there is an equally authoritative contrary decision of the same court. That is not the case here and I am not entitled to ignore the binding authority of El-Khodr or Cobb based on wishful speculation about the outcome of a different appeal that has not yet been argued.

The Court was also forced to deal with the Jury’s award for past-income loss.  The Plaintiff was required to credit the Defendant $11,200 for an income replacement benefit settlement, $40,000 for a long-term disability benefit settlement, and $25,000 for income earned after the accident.  Unfortunately, the collateral deductions exceeded the Jury’s award of $76,161, reducing the Plaintiff’s past-income loss to $0.

In closing, the Court made some bleak comments about MVA general damage awards in Ontario.  For the Court, the legislature has taken steps to eliminate or reduce general damages in all but the most significant cases.  Moreover, the annual indexation of the monetary deductible threshold will likely lead to a litigation landscape where unreduced general damages awards will be unattainable.  The Court wrote:

This is a disastrous outcome for the plaintiff. It would only have been worse had I granted the threshold motion. It illustrates the legislative intention that all but the most significant tort claims should be eliminated and injured motorists be largely confined to claiming no fault benefits under their own insurance policies.

It also illustrates how annual indexing of the monetary threshold for unreduced general damages and annual indexing of the deductible may in short order make unreduced general damages largely unattainable. A review of jury awards in this jurisdiction over the past decade would reveal that general damages in excess of $130,000.00 are very much the exception. There is no evidence that jury verdicts have become more generous to keep pace with inflation.

 

Read the full decision [PDF]
Jordan Kofman
Written by

Jordan's practice focuses on motor vehicle accidents, occupiers’ liability, product liability, municipal liability, medical malpractice, wrongful death, accident benefits, and long-term disability claims.

In his spare time, he enjoys golfing, downhill skiing, road cycling, and fishing. Jordan is also an avid NFL and Toronto Blue Jays fan.