When a Plaintiff is involved in a motor vehicle accident, the damages received for pain and suffering are subject to a statutory deductible. The deductible was put in place to ensure that only the most serious cases are litigated, given the influx of personal injury matters on limited court resources.
On August 1, 2015, the Ontario government implemented a new regulation to increase the deductible from $30,000 to $36,540 until December 31, 2015. Thereafter, the deductible amount is to be revised annually according to a prescribed formula, indexed for inflation. However, the regulation and statute are silent on whether the increased deductible should be applied retrospectively, meaning for accidents occurring after August 1, 2015.
To determine this important question, the courts have queried whether the change is considered substantive or procedural in nature. If the law is deemed substantive, the change is not retrospective and the new deductible applies for motor vehicle accidents occurring after August 1, 2015. Should the courts deem the new legislation as a procedural change, then the new deductible will be invoked for all accidents occurring prior to August 1, 2015.
In November 2015, the court in Cobb v. Long Estate held that the statutory change was a matter of substantive law and therefore cannot be applied retrospectively. However, following the Cobb decision, in March 2016, the court in Corbett v. Odorico held that the legislative increase was procedural and as such, deemed to apply retrospectively.
Given the conflicting case law on this matter, it is currently unclear whether the new deductible applies retrospectively. We look forward to comments from the Court of Appeal to settle this matter moving forward.
Michelle Kudlats
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