Personal Injury

Ontario court decisions have cut into accident settlements: Rastin

By AdvocateDaily.com Staff

In the final instalment of a two-part series exploring the impact of the statutory deductible and threshold test, Barrie-area litigator Steve Rastin examines Ontario court decisions that have further eroded compensation for accident victims.

Barrie-area litigator Steve Rastin says recent Ontario court decisions highlight the continuing erosion of compensation for accident victims and the urgent need for the government to legislate an end to deductibles.

Rastin, managing partner with Rastin & Associates, points to court decisions he says were unfair to personal injury plaintiffs, including an Ontario Court of Appeal case where a $220,000 jury award was clawed back to a fraction of the original amount.

“The judge took away $29,300 in income replacement benefits, $9,150 for housekeeping and home maintenance benefits and then a further $152,000 apportioned as $130,000 in income replacement benefits, $20,000 in medical benefits and $2,000 in costs, as part of a global settlement,” Rastin tells AdvocateDaily.com.

The judge awarded $409,098 in costs to the plaintiff’s lawyer, but the appeal court reduced it to $22,136.

Rastin says while there were extenuating circumstances in the case — especially the nature of the plaintiff’s injuries — it illustrates how quickly an award can evaporate.

“The jury grants the award, but when you look at all the deductibles and reductions, the plaintiff ends up getting next to nothing. Then, it gets worse, because now they're below the offer to settle which means they have to pay their own costs as well as a portion of the insurance company’s legal costs."

Rastin says in a Superior Court decision, the jury initially awarded $35,000 in general damages, $20,000 in lost income, $30,000 against future lost income and $15,000 for future care.

“But the plaintiff had already received $158,000 in income replacement benefits, $89,000 in medical and rehab expenses, $30,000 in future medical rehab and after those were deducted, the plaintiff received nothing,” he says. “It’s a strange situation. You aren't allowed to discuss the law with the jury, and if it awards money, the judge can still say, 'I didn’t agree with the expert assessment, and therefore you get nothing.’”

Justice Calum MacLeod wrote he had no option but to follow the law in a 2018 Superior Court case, where an initial award of $111,837 was reduced to zero, Rastin says.

“This is a disastrous outcome for the plaintiff,” MacLeod wrote. “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.”

Rastin says the judge also took aim at the indexing of the threshold and deductible.

“Indexing of threshold and deductible may in short order make unreduced general damages largely unattainable,” the judge wrote. “A review of jury awards in this jurisdiction over the past decade would reveal that general damages in excess of $130,000 are very much the exception. There is no evidence that jury verdicts have become more generous to keep pace with inflation.”

The judge noted he was “compelled by the Insurance Act and the Regulations to reduce the jury verdict of $118,371 to $5,760.”

After the deductible was applied, the plaintiff received nothing.

Rastin says change has to happen at the legislative level because people will continue to get injured in accidents but will be unable to seek compensation for their pain and suffering.

“The deductible and threshold go up, but the awards have stayed the same,” he says.

“Juries give the same amount for a broken knee today as they did 10 years ago. When you factor in everything, you’re paying insurance premiums for nothing,” Rastin says.

“It has reached the point where no-fault accident benefits have been reduced so drastically that they're no longer useful. If we’re going to have this $9-billion insurance industry, we have to get rid of the deductible. People should be able to put into their pockets what the jury awards.”

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