The law, above all else, ought to be transparent.
It should NOT be a secret society whereby only industry insiders have knowledge, power and insight that the general public does not have.
When a personal injury case goes to trial, the jury should be informed of how things work, so that they can make a fair and just decision. The jury should never be kept in the dark about how the law works, so that they can make an informed decision which will invariably impact the lives of the parties to the litigation.
Yet, the practice of personal injury law in Ontario has many secrets. You would think that it’s neither nice, nor fair to have secrets which are withheld from a jury during the course of a personal injury trial.
Yet there are secrets which personal injury lawyers and judges cannot share with the Jury until only after the Jury has made up their mind.
What are these secrets you ask? Let me share them with you.
For every car accident case, the Defendant car insurer is entitled to a secret credit, which cannot be shared with the Jury. The Judge knows about it. The lawyers know about it. The Plaintiff knows about it. The insurance company and their adjusters know about it. The individual Defendant may also know about it.
But this secret credit is not; and CANNOT be shared or even mentioned to the jury at trial. This secret credit is called “the deductible“. If the deductible is mentioned to the jury, the Defendant will ask (and will likely be rewarded with) and mistrial, with costs likely against the Plaintiff payable to the Defendant.
This means that regardless of fault, the insurance company is entitled to a credit. It doesn’t matter if the Defendant driver was smoking cannabis, while drunk, on a cell phone, and ran a red light into oncoming traffic. That grossly negligent driver is protected and entitled to benefit from this secret credit.
The at fault Defendant driver has more protections at law than the innocent accident victim who did nothing wrong other than s/he was in the wrong place, at the wrong time; and did nothing
How does the secret credit work?
Non-pecuniary damages are damages for your pain and suffering. They are non-economic damages which are, for the most part, subjective. Unlike damages for your income loss, they are not quantifiable by a forensic accountant.
These non-pecuniary damages are subject to the deductible.
For 2023, the deductible has been increased to $44,367.26 from $41,503.50.
This $44,367.26 deductible only applies to awards under $147,889.59.
To get an award above $147,889.59 is rather difficult in a Canadian Court because damages for pain and suffering are capped at $414,689.14.
The vast majority of car accident cases in Ontario will fall under the $147,889.59 threshold, and be subject to the $44,367.26 deductible.
That means that the majority of cases start $44,367.26 in the hole, before they even get off the ground! That means that if a Plaintiff does not show at least $44,367.26 in damages, with no deductions for any contributory negligence, the get ZERO; regardless of fault.
What can $44,367.26 get you?
The $44,367.26 deductible is not insignificant. It’s quite large and it’s giving an already very wealthy insurer; a rebate on nearly every car accident case in Ontario. It’s making the rich, even richer by saving insurance companies money.
Here’s a cursory list of what $44,367.26 can get you:
A new fully loaded Honda Accord (not a Civic)
A new White Gold or Rose Gold Rolex Daytona with money to spare (at Market Price)
6,000 grams of Beluga Caviar (Extra Rare and Fine)
It’s like every time a case settles, or goes to trial, the wealthy insurance company is entitled to a credit of the value of the luxury items listed above. It’s like every time the insurer has to deal with a car accident case, they are entitled to a windfall worth the price of a fully loaded Honda Accord! While the Plaintiff is not entitled to any protections under the law which are even close to what the at fault Defendant is entitled to. How crazy is that!?!?!? Why are they afforded these protections?
Personal Injury cases are about money. They are about getting the Plaintiff the compensation and benefits which s/he deserves. That “win” is identified as “justice” by many Plaintiffs. Justice in civil courts is then passed down in the form of money. There is no ticker tape parade if the Plaintiff wins. The Court cannot Order that the Defendant wait on the Plaintiff hand and foot. Nor can a Judge Order that the Defendant apologize for his/her negligence.
The way that the law is set up is such that Defendant gets an award on the most significant thing in a personal injury case (compensation). A Judge cannot play around and order something which isn’t available under the law; or make up his/her own law so that justice is served. In a civil court, the only measure of justice is money. This might be difficult for many people to hear, or to understand; but it’s the cold, hard truth.
There are other Courts which are much better at dispensing “justice” than a Civil Court where personal injury cases are heard. A Criminal court for example is a great place where justice can be served. The same applies to a Family Law court for Child Protection matters, or even an Estates Court.
The problem which Plaintiffs in car accident cases are facing, is that each time they advance a personal injury case; they are starting from below ground whereby they owe the insurance company a monetary credit which costs the price of a fully loaded Honda Civic, or 6,000 grams of extra fine Beluga Caviar. It hardly seems equitable that already wealthy insurers are allowed to get away with hurting people twice.