While the increased deductible in tort and the Pre-Approved (PAF) framework applicable to accident benefits claims have undoubtedly reduced the number and the extent of claims since October 2003, the practical import of the changes to the threshold provisions applicable to tort claims and the changes to the statutory accident benefits regime remains to be seen. However, in the interim, it is incumbent on Plaintiff’s counsel to be fully cognizant of these changes and their potential impact on their clients' claims.

II. Tort Claims

The new Ontario Regulation 381/03, which introduced changes to the statutory accident benefits regime, has also modified Ontario Regulation 461/96 with respect to the tort threshold for claims for non-pecuniary general damages with respect to motor vehicle accidents after October 1, 2003¹. However, although the wording of the threshold test has changed somewhat under Bill 198, the essential elements of the test remain the same. What has changed is that, instead of leaving the interpretation of the various elements of the test to the Courts, Bill 198 purports to codify the definitions of these elements and to introduce new requirements applicable to evidence in support of claims for non-pecuniary general damages.

The threshold rule has been in place, in various incarnations, since the introduction of the Ontario Motorist Protection Plan (“OMPP”), which came into force on June 22, 1990. The introduction of the threshold rule served to limit claims by imposing a standard of severity applicable to injuries sustained in motor vehicle accidents which had to be met in order for a Plaintiff to claim any damages in tort. Bill 164, which replaced the OMPP legislation for motor vehicle accidents between January 1, 1994 and October 31, 1996. Bill 164 prevented a Plaintiff from obtaining compensation for non-pecuniary general damages unless it was established that the Plaintiff’s injuries and impairment constituted a serious disfigurement or a serious impairment of an important physical, mental or psychological function.

Under Bill 59, which applies to motor vehicle accidents between November 1, 1996 and September 30, 2003, the threshold rule prevented claimants from suing for non-pecuniary losses unless, as a result of the use or operation of a motor vehicle, the injured person died or sustained a “permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function”.² It is important to note, given the wording of the new legislation introduced under Bill 198, that the threshold under Bill 59 is not applicable to claims for loss of income; in other words, a Plaintiff is not prevented under Bill 59 from suing for loss of income, even if her claim does not meet the threshold. It is clear from this provision that the tests for general damages and loss of income are meant to be separate and distinct so as not to render a claim for loss of income dependent on the success of a claim for general damages, or vice versa.

The most recent changes to the threshold rule occurred under Bill 198. Under this most recent legislation, the wording of the threshold test remains the same as that under Bill 59, but the descriptive terms used within the test are defined in a manner which is clearly designed to further limit claims for non-pecuniary general damages. These recent changes represent an effort by the former Conservative government to satisfy the interests of the insurance industry, to the detriment of innocent accident victims. As will be discussed below, the wording of the legislation confuses the former distinction between the threshold test applicable to claims for general damages and a Plaintiff's right to sue for loss of income by making an inability to work a condition of almost all claims for general damages.