Toronto Injury Lawyer Blog
Justice delayed, is Justice Denied.
Slow Courts, or a slow march towards a Plaintiff’s day in Court is the equivalent to a Plaintiff not receiving any justice at all.
Why do personal injury cases take a back seat to other cases in Ontario Courts?
It’s not like the Defendant at fault driver will be punished for having caused a car accident in civil court? The Defendant at fault driver is not going to jail for having caused a car accident. The Judge won’t order “eye for an eye” justice like you might have seen in ancient times; not that we are advocating for a return to such justice. Nor will the Judge order that the at fault Defendant driver perform tasks for the injured Plaintiff to make him/her whole (like the Defendant serve as the Plaintiff’s butler for a period of time). These sort of remedies are unheard of in Canadian Courts.
Instead, the only thing which a Judge can award in a personal injury case is money. That’s it. The money is intended to make the Plaintiff whole for the Plaintiff’s damages, and to compensate the Plaintiff for their losses.
Money can wait. Civil Courts, where personal injury cases are decided take a back seat to the criminal justice system, and to the family law system. The reason for this is because both criminal law and family law have very real impact on the rights of people. A person charged with a serious criminal offence losses many of their freedoms when they are in jail, or waiting for their trial in custody. Families are torn apart, and the custody of children is decided in Family Courts. It’s for these reasons that you can see why money waits and personal injury cases take a back seat to criminal cases and family cases. In fact, if you attend at a small courthouse, you will see that a lone Judge might hear all sorts of matters ranging from criminal cases, family cases, estates cases, business cases, and personal injury cases. The cases which are called first are the criminal cases, followed by the family cases, followed by everything else (which usually involve money). It’s a point that’s driven home in Ontario’s judicial system that money waits on other matters.
Why does delay in a personal injury case even matter?
It matters a lot!
Let’s start with the basic memory of all of the actors and witnesses in a case. The memories of the parties and the witnesses will be more fresh closer to the date of the accident. The longer the delay, the greater chance that memories get lost, fogged, or altogether altered due to the passage of time. It’s strange because people remember things a certain way, but given time, those very same memories tend to fade or change with the passage of time. The evidence of the parties and witnesses can make or break a case.
From a financial and economic perspective, a Plaintiff getting a result (or money) today, is worth exponentially more than getting that same result a few years down the road. Pre Judgement and Post Judgment interest is supposed to lessen the blow of the lost opportunity of getting a judgment today vs. getting a judgment a year down the road. Unfortunately, pre judgment and post judgment interest are not keeping up with the rising cost of living and rising inflation. $100,000 a year ago, is more valuable than $100,000 today, and so on and so forth. The numbers and judgments are simply not keeping up with those inflationary rates and the cost of living.
This is particularly noticeable in car accident cases, here there is an statutory deductible which goes up each year! In 2026 motor vehicle accident cases:
- Pain and Suffering Deductible: $47,913.01 is subtracted from general damages. In 2016, this deductible was $36,905.40. This presents an $11,007.61 savings for the insurance industry simply by waiting and delaying a claim!
- Vanishing Threshold: If the pain and suffering award is above $156,715.16, the deductible is waived completely. In 2016, the vanishing deductible threshold sat at $123,016.44. This is a 10 year increase of $33,698.72!
- Family Law Act (FLA Claims): These are claims for loss of guidance, care and companionship. These claims have been tremendously difficult for the spouses and children of injured Plaintiffs to recover in car accident personal injury cases. The deductible for family member claims is $23,956.52 (waived if claims exceed $78,357.56). These claims were historically never that large. But, they’re effectively being wiped out completely through the application of the deductible which goes up year after year.
The deductible increases on January 1st of each year, as does the vanishing threshold where the deductible is waived completely. This means that each year it becomes increasingly difficult for Plaintiffs to hit that threshold where the deductible is waived completely because it goes up year after year.
Additional Benefits to Defendants for Delaying Cases
The advantages for delay are built right into the Rules of Civil Procedure. Rule 48.14 provides that if an action is not set down for trial by the fifth anniversary of its commencement, the local Registrar automatically issues an Order Dismissing Action for Delay (Form 48D). If you’re a Defence lawyer, you’re well aware of this rule, so why wouldn’t you drag your feet when the advantages are built right into the system for you. If a Plaintiff wants, they can set the matter down for trial just so that the case isn’t dismissed by the registrar, but it might not yet be ready for trial. Getting a case conference, or setting a timetable takes additional time as well. There are no consequences to a Defendant not agreeing to setting a timetable (in the very rare exception there might be cost consequences, but we rarely see this sort of thing play out unless there are some exceptional circumstances).
If you’re a Plaintiff, don’t expect a Defendant to march in lock step with you to the steps of the Courthouse. They will drag their feet and cause a Plaintiff to jump through many hoops in order to get there.
