Retrospectively or Not Retrospectively – That is the Question

April 21, 2016 | James B. Prior

The issue of whether the recent amendments to Ontario’s Insurance Act dealing with the indexation of the statutory deductible to inflation was recently before the Ontario Superior Court of Justice in Corbett v. Odorico, 2016 ONSC 1964 (CanLII).  

Following a six week jury trial, the Plaintiff, who was injured in a December 5, 2009 motor vehicle accident, was awarded $33,000 in general damages.  After finding that the Plaintiff had satisfied the verbal threshold, Justice Hackland considered whether the recent amendments to the Insurance Act indexing the statutory deductible to inflation applied retrospectively to ongoing motor vehicle personal injury actions commenced before the August 1, 2015 amendments took effect. Justice Hackland agreed with the defendant that a regulation varying the amount of the deductible for fixed annual periods is procedural in nature and, as such, applies retrospectively.  In Justice Hackland’s view, the amendments were designed to fix the deductible amount in “current dollars”, just as jury verdicts and other court judgments are made in “current dollars”.  Applying the new statutory deductible of $36,540, the Plaintiff was left with a nil recovery in respect of general damages. 

For those keeping score, two Judges of the Superior Court of Justice have held that the indexed deductible applies to ongoing motor vehicle personal injury actions commenced before August 1, 2015 vs. one that has found that the indexed deductible did not apply retrospectively.  Meanwhile, personal injury lawyers, both plaintiff and defence, and insurance industry professionals continue to anxiously await clarity of the issue from the Court of Appeal in relation to the appeal of El-Kohdr v. Lackie, 2015 ONSC 4766 (CanLII).

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