Great news for car accident victims in Ontario from successful Alberta rate cap Charter Challenge

March 06, 2008, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

On February 8, 2008 the Alberta Court of Queen´s Bench found that the Alberta damages cap, which limited recovery for pain and suffering for some innocent accident victims to a maximum of $4,000.00, was contrary the Equality Rights provision of the Canadian Charter of Rights and Freedoms.

The decision is titled Morrow v. Zhang and is a very detailed and comprehensive judgment.  The judge found that by denying damages to certain accident victims, primarily those suffering from soft tissue injuries (often characterized as whiplash injuries but generally develop into chronic pain), this legislation sacrificed the dignity of accident victims at the "altar of reducing insurance premiums".  The judgement also determined that such limitations represent an example of "self-interest trumping Charter values".  It is very important to note that the judge found that attempts to control costs in auto insurance should not be done at the expense of car accident victims.

In Ontario, car accident victims have to prove that their injury meets a certain test, called the "verbal threshold".  That test is specifically outlined in Ontario´s insurance legislation and related regulations since October 1, 2003.  At the same time, the existing deductible for pain and suffering damages was increased from $15,000.00 to $30,000.00.  The deductible does not apply to all car accident victims.  It only applies to those car accident victims whose damages exceed $100,000.00.  In virtually all cases, the deductible will apply to those people suffering from soft tissue injuries.  In very severe cases pain and suffering damages may exceed $100,000.00 and the deductible would not apply in that situation.

Based on the reasoning of the Alberta court in the Morrow case, it seems that the Ontario car insurance scheme, with a defined written threshold and the deductible of $30,000.00 would be held to be discriminatory and contravene the relevant provisions of the Canadian Charter of Rights and Freedoms.

The Ontario Trial Lawyers Association had been waiting for the result of the Alberta decision before proceeding with their own charter challenge of the Ontario legislation.  The OTLA will now be proceeding to bring their own charter case forward through the Ontario courts.  It should be an interesting time ahead.  I will keep you updated on the progress.

Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering

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About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.

Practice Areas

  1. Car accidents
  2. Motorcycle accidents
  3. Automobile accident benefits
  4. Catastrophic injury
  5. Brain or Head injury
  6. Paraplegia and Quadriplegia
  7. Spinal cord injury
  8. Drunk driving accidents
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  10. Post Traumatic Stress Disorder
  11. Slip and Fall Accidents
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  1. Wrongful death
  2. Bicycle accidents
  3. Disability insurance claims
  4. Slip and fall injury
  5. Fractures or broken bone injury
  6. Pedestrian accidents
  7. Chronic pain
  8. Truck accidents
  9. Amputation and disfigurement
  10. Fibromyalgia
  11. Nursing Home Fatality Claims

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