Times are tougher now for motor vehicle collision victims than ever before.
The perpetually rising statutory deductible jumping from $41,503.50 in 2022 to $44,367.24 in 2023 and the increasing monetary threshold (the point where the deductibles no longer apply) increasing from 138,343.86 in 2022 to $147,889.59 in 2023 are but two of many examples.
In Ontario, elderly victims injured in motor vehicle collisions may find themselves victimized again once by the onerous legislation and further by the lengthy, costly and exhausting litigation process.
While there’s no easy solution in Ontario’s dystopian automobile legislative terrain, one theory courts may be receptive to in creating some solace for elderly victims is the “Golden Years Doctrine.”
This doctrine was developed by the courts when assessing damages (mainly in British Columbia), which recognizes the detrimental impact injuries may have on older plaintiffs.
The doctrine serves to recognize that elderly people have fewer years left, and places value on the fewer remaining years. For example, courts have considered the practical reality that injuries will impact an older person more, who may already be quite limited and who may now be further prevented from enjoying their already reduced activities.
I am surprised—well—not really, to see a paucity of jurisprudence in Ontario addressing the Golden Years Doctrine. When searching “Golden Years Doctrine” on Lexis Advance Quicklaw, 29 results turn up with just one case –Solanki (Litigation guardian of) v. Reilly being from Ontario. The remaining 28 decisions were out of British Columbia Courts.
Given the large segment of the elderly population, it’s no surprise that courts should and have developed the “Golden Years Doctrine.” However, these decisions seem to be far less established in Ontario.
The Solanki case (from Ontario) does hold the following at paragraph 201:
The plaintiff relies upon the “golden years” doctrine for an assessment in this range. In Fata v. Heinonen, 2010 BCSC 385 at para. 88, the court noted the retirement years are special for they are at a time in one’s life when she realizes her own mortality. What may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. This approach is recognized in Ontario: Wilson v. Byrne…at para 102.”
In Wilson Estate v. Byrne (an Ontario decision cited in the Solanki) at paragraph 103, the court highlights the decision in Gill Estate v. Marriott giving greater consideration to the quantum of the elderly plaintiff’s damages (relating to blindness caused by alleged negligence in that case) given his plaintiff’s death within 6 years of the alleged negligence from an unrelated disease. It held that:
[E]yesight, precious to everyone, was even more so to Mr. Gill when one considers (unbeknown to him, of course) that he had only six years to live.At paragraph 104 of Wilson Estate v. Byrne, the court cites a previous and popular passage from Giles v. Canada (Attorney General), a British Columbia decision from 1994 which states:
I take the view myself that when one has a person in advancing years, in some respects an impairment of movement may perhaps be more serious than it is with a younger person. It is true, as Mr. Chedlow has stressed, that he has not got as many years before him through which he has to live with this discomfort, pain and impairment of movement. But it is important to bear in mind that as one advances in life one’s pleasures and activities particularly do become more limited, and any substantial impairment in the limited amount of activity and movement which a person can undertake, in my view, becomes all the more serious on that account.
In Nusinowitz v. Ontario (Superintendent of Financial Services) at paragraph 45, the court agrees with the passage from Giles v. Canada (Attorney General) referenced above purporting to support the Golden Years Doctrine. At the same time the Court in Nusinowitz also agreed to the following passage at paragraph 46 (which conflicts with the Golden Years Doctrine):
When comparing awards, one must give some weight to the factor of age in that a younger person will suffer a loss of amenities over a longer period of time.
Defendants/insurers may argue claims advanced by an older person should be worth less in value than a younger person since younger claimants have longer periods of time to live with the pain than a claim advanced by an older person with less time left.
In my view Nusinowitz opens the door for both conflicting perspectives, which may effectively nullify each other.
It remains to be seen whether the Golden Years Doctrine will ever leave a meaningful mark in Ontario courts for elderly plaintiffs to rely on or whether its potential usefulness will be swept away like a deflated life boat in a sea of onerous legislative undertows.
