When you have been injured in a car accident, the challenges can be overwhelming.  While you are dealing with your physical injuries and emotional impact, you also have to manage car repair issues, insurance paperwork, medical appointments and rehabilitation and missed time from work.

And there is another hurdle – the “deductible” for pain and suffering awards in motor vehicle accident cases.

What is the Deductible?

As a victim of an accident, you may be entitled to sue an at-fault party or parties for an award for “pain and suffering” (also called general or non-pecuniary damages), which is designed to compensate you for physical and emotional injuries stemming from the accident. 

However, the law sets out a deductible that is applied to such damages. The deductible has been in place under the Ontario Insurance Act for many years and is increased annually for inflation. Effective January 1, 2024, the deductible is $46,053.20. 

If your pain and suffering is assessed below this deductible (for example, $40,000.00), you will not be compensated for pain and suffering. If your damages are assessed over the deductible (for example, $70,000.00), the deductible will apply to reduce your damages to $29,946.80.

Claims by Family Members

Personal injury does not only affect the victim, but can also impact their loved ones.  The Family Law Act in Ontario allows claims for damages by certain family members of a person injured or killed by the negligence of another person in a motor vehicle accident. 

Claims may be advanced under the Family Law Act for damages for loss of guidance, care and companionship. There is a deductible of $23,026.61 for damages for family members of victims.

Are There Any Exceptions?

There are exceptions in which the deductible does not apply:

  • where a claim involves a fatality (and damages are advanced under the Family Law Act)
  • where the award for pain and suffering or loss of care, guidance and companionship has met or surpassed the statutory monetary threshold (effective January 1, 2024, damages for an injured person must assess over $153,509.39 for the deductible to be waived and damages for family members must assess over $76,754.06).

Also, the statutory deductible only applies to claims pain and suffering – it does not apply to other damages, such as those relating to income loss or housekeeping expenses.

Most people, including jurors helping to determine damages in personal injury lawsuits, are not aware of the deductible and its impact on the injured. The intended purpose of the deductible is to reduce motor vehicle litigation by deterring claims with modest injuries (while reducing what insurance companies may pay). However, the deductible adds a significant and unfair barrier to victims trying to recover compensation.

If you have questions about how the deductible on pain and suffering and Family Law Act awards may impact your claim to rightful compensation, seek advice from a personal injury lawyer.

More information?  We’re here to help – [email protected]

This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.

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