Ontario trial lawyers poised to launch Charter challenge against Ontario’s $30,000 deductible, injury threshold

The Ontario Trial Lawyer’s Association (OTLA) is considering a court challenge similar to that of Alberta’s recent Charter challenge that overthrew the Cdn$4,000 cap on minor injuries.
Patrick Brown, president-elect of the OTLA, says that in light of the recent Alberta decision in Morrow v. Zhang, the Ontario government should make the appropriate changes to its Cdn$30,000 deductible and threshold for determining serious impairments.
If it fails to do so, Brown said, the association would move forward with a court challenge under section 15 and section 7 of the Charter.
“We feel that the present system in Ontario is in fact more discriminatory than what they had in Alberta,” he said.
Brown said Ontario has an injury threshold that specifically differentiates between people in and outside of the workforce. “Certainly the test that’s afforded people outside of the workforce to determine if there is permanent impairment is much more restrictive than the test for people who are working,” Brown says.
For instance, an elderly senior who is retired has no economic loss claim, only a claim for pain and suffering and healthcare costs. Both of those types are subject to the regulatory threshold, which means they have to have a serious permanent impairment that interferes with their daily activities before they are awarded anything in either of those two fields.
“Meanwhile someone in the workforce simply has to show that it interferes with their regular employment,” he said.
“So from that standpoint, we feel it is discriminatory against the elderly who are out of the workforce, children, people with disabilities and stay-at-home moms.”
If the plaintiffs from Morrow v. Zhang were in Ontario, “they likely would not have received anything,” he commented, “and that’s not even getting into the $30,000 deductible that exists in Ontario.”
The deductible eliminates significant awards for minor injuries, as well as awards for pain and suffering, including fractures, Brown says.
In Ontario, if an award is less than $100,000 then $30,000 is deducted; family members affected indirectly have $15,000 deducted from awards of less than $50,000.
“Our point is that [Alberta] had a $4,000 cap on minor injuries, but our $30,000 deductible eliminates any minor claims for pain and suffering and goes above and beyond that because there are a large number of claims that are significant that are still within that range.”