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Does the Federal Election mean anything for Personal Injury Cases?

Today is Election Day in Canada. We elect a new, or a returning Prime Minister. This is exciting. Will there be a majority government, or will we see another minority government?

These are important questions! Some political basics:

A majority government can do whatever they like; whenever they like! There’s no need to ask the other party what they think or how they feel about an issue. The majority government sets the agenda about what to speak about; and when to speak about those issues. The majority government can prorogue parliament whenever they like at their convenience. Even if the laws they pass don’t seem fair to Canadians; those laws can get passed and then challenged in Court. Even if the Court rules that the laws are unconstitutional, the majority government can invoke the Notwithstanding Clause to get their way! Dare I say, it’s like a majority government has the powers of a dictator.

With a minority government there needs to be some cooperation because one party alone can’t get their way. It forces parties to work together to get things accomplished. This may sound great in theory, but in practice little gets accomplished because nobody is eager to concede or to back down and appear weak. Cooperation in everyday life is important. But politics isn’t everyday life. Letting another party get their glory or appear to have got the job done is a loss to the opposition parties; so there’s no political incentive to cooperate. What might be in the best interest of Canadians may not be in the best interest of a political party. Hence the dilemma. Are the politicians and political parties really there for the right reasons; or is all for the glitz, glamour, ego, power and prestige that comes with office. You be the judge. Dare I say its the later.

So where does personal injury law come to play when it comes to this election and federal politics.

Short answer: it does not!

Federal law does not touch insurance law or personal injury law in Ontario. The reason for that is that the British North America Act of 1867 (BNA Act) laid out the division of powers between the Federal Government and the Provinces.

The Federal Government would take care of such things for the “Peace, Order and Good Government” of Canada such as the Military, Immigration, unlimited tax powers, national railway strategy, national bank charters etc. The provincial governments got powers over insurance,  prisons, hospitals, and education amongst other things.

At the end of the day, the provinces decide how insurance works and this has a deep and profound impact on personal injury cases.

Here are a few recent examples of how the provincial government has impacted personal injury cases:

  1. Ontario announces the abolition of the Criminal Injuries Compensation Board. In around April 2019, the Doug Ford Conservative Government announced that they would be eliminating the Board which previously awarded up to $25,000 to seriously injured innocent victims of crime. This was done without any consultation or notice. It was just done. This sweeping power is an example of what a majority government can do. Whether you like it or not. It can get done. This was certainly NOT an election issue nor was it tabled in their electoral platform. With the abolition of the Criminal Injuries Compensation Board, very few lawyers are able to take on assault claims where the assailant does not have the deep pockets to pay out on a potential claim. It has also taken away therapy costs (not covered by OHIP) for innocent victims of crime. The board would routinely award treatment costs to innocent victims of crime so that they could get counselling or therapy which was not covered by OHIP. All of this has was taken away without debate, notice or consultation.linkedin-2-300x300
  2. Ontario Liberal government announces that the statutory deductible will increase year after year with inflation. These are damages for pain and suffering in car accident claims. This deductible does not apply for slip and fall cases, assault cases, dog bite cases etc. It ONLY applies to car accident cases. This was enacted by the Wynne Liberals. Today the statutory deductible sits just below $40,000.
  3. Amendments to Occupiers Liability Act make it harder for innocent victims of slip and fall cases to sue. Without notice or consultation, Bill 118 Occupiers Liability Amendment Act was passed in around December 2020. It basically provided that notice needed to be given to the owner/occupier AND the winter maintenance contractor of the slip and fall within 60 days of the slip and fall by way of personal service or registered mail. Failure to give notice pursuant to the new act may bar the action for proceeding. This was passed by the Doug Ford majority Conservative government. This law does NOT benefit everyday voting Ontarians. Rather it benefits businesses and insurance companies. Ironically, businesses and insurance companies don’t get to vote in elections. People do. And a government which has boasted in the past that they are “For the People” the passing of this law is the furthest thing as “For the People” as you can get.
  4. Liberal Government introduces Minor Injury Guideline reducing accident benefits from $50,000 down to $3,500; and abolishes cases at FSCO in favour of the License Appeals Tribunal. Liberal Government also passes legislation making it illegal for an innocent accident victim to sue his/her own car insurer in an accident benefits dispute for failure to pay for treatment or benefits. This was one of the most far reaching and devastating changes that we have seen in the past decade. Accident Benefit lawsuits used to be very common. Now they have gone the way of the dodo and are extinct because the government has passed law saying that these disputes needed to go through the LAT and NOT the Courts. That means that a Judge cannot hear an accident benefits dispute. That has also means that costs cannot be awarded to a successful party in such a dispute because there are no costs, or very limited costs at the LAT. When the insurer has a bigger war chest, they are able to spend hundreds of thousands of dollars to defeat such claims without any cost ramifications making it a very uneven playing field for everyday people who cannot match the financial resources of a large deep pocketed insurance company.
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