The Canadian Bar Insurance Association
Personal Injury

Car accident cases In Ontario – will a jury help?

By Michael Lesage

Few would argue that the human body is designed to withstand the forces involved in car accidents without injury. Where one party is injured through the fault of another, our legal system is designed to provide the injured person with compensation. Unfortunately, our legal system often fails to function properly where injuries are sustained in a car accident. The recent case of Mandel v. Fakhim, 2016 ONSC 6538 provides one such example.

Background to the accident:

The Mandel case involved a car accident that occurred in 2009. Before the accident, Mandel was employed (and earning an income). After the collision, Mandel was unable to return to work or to continue earning an income (which remained the case when the matter went to trial seven years later in 2016). Mandel claimed that as a result of the collision (which Justice Myers described as ‘slight‘ and ‘trivial’), he developed severe chronic pain. To cope with his chronic pain, Mandel took a substantial amount of prescription medication on a daily basis and continued to receive numerous painful injections each week. Additionally, he continued to receive other invasive injections on a less frequent basis.

The jury verdict:

While the jury found that Fakhim was responsible for causing the collision, it nonetheless awarded Mandel only $3,000 in damages for pain and suffering (though it likely cost his lawyers $35,000 or more in out of pocket expenses to bring his case to trial, no part of which was likely legal fees, as his lawyers were most likely working on a ‘contingency‘ or percentage basis) and $0 for lost wages or other economic losses. To add insult to injury, due to section 267.5(5) of the Insurance Act, Mandel’s paltry pain and suffering award was automatically reduced to $0, by something called the ‘deductible’[1] or ‘statutory deductible.'

Due to the law on legal costs, it remains possible that Mandel could end up owing Fakhim’s insurer hundreds of thousands of dollars in costs, were the court to use its discretion to award costs to Fakhim, who to a large extent, prevailed.

The court discusses the use of juries in auto cases

In an interesting ruling, Justice Myers opined that

“[J]ury trials in civil cases seem to exist in Ontario solely to keep damages awards low in the interest of insurance companies, rather than to facilitate injured parties being judged by their peers.” “The usual experts for both sides gave the usual testimony. And the jury gave the usual verdict.”

The takeaway

As Justice Myers noted, juries can be very tough on accident victims. If you have been injured and your case is approaching trial, you should give serious consideration as to whether you are likely to benefit from having a jury decide your case. In certain circumstances, it may be possible to strike the jury, so that your case is decided by a judge alone.

[1]To learn more about the statutory deductible, see the section ‘Are general damages (pain and suffering) subject to additional limits in auto claims?

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