5 Personal Injury Cases You Should Know (From The Past Year) – con’t Case 5

Double Deductibles: Martin v. Fleming

Finally, in a brief endorsement released late in 2012, the Ontario Court of Appeal confirmed in Martin v. Fleming[1] that where a plaintiff has been involved in two accident and the actions are tried together to facilitate global assessment of damages, plaintiff is subject to one deductible for each claim.  The Court adopted the following reasons of the motion judge:

In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.

The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.

Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.

I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.

The court considered and rejected the “Charter values” approach to interpretation of legislation advanced by the Ontario Trial Lawyers Association on the basis that such an approach could only be adopted where the legislation was ambiguous.  In this case, language was clear and free of ambiguity.

Conclusion

The cases reviewed in this paper are disparate and reflect the broad range of decisions handed down in the past year.  As such, it is not possible to isolate trends or draw any larger lessons from the cases.  They do, however, provide valuable guidance on topics that are frequently the subject of dispute.

To read the previous post click here.

About Rikin Morzaria, Partner, McLeish Orlando LLP

Rikin received a Bachelor of Business Administration (BBA) with Distinction from the Schulich School of Business at York University. He received his law degree from the University of Toronto, where he received the top prize in Trial Advocacy and the top prize in Public International Law.

Rikin Morzaria devotes his practice to representing individuals who have suffered serious or catastrophic personal injuries and families who have lost a loved one in wrongful death cases.

Rikin has written and published more than twenty journal articles and chapters in leading textbooks in the field of civil litigation and personal injury law. He is regularly invited to give lectures to other lawyers and to health professionals about litigation and personal injury law.

Rikin was co-counsel at trial in McNeil v. Bryan, and achieved an $18.4 million judgment, the largest personal injury damages award in Canadian history. He has also represented clients in several precedent-setting cases, including a decision that prevented an insurer from obtaining defence medical examinations that would have delayed a trial of a multi-million dollar action.

Rikin is a member of The Law Society of Upper Canada, Ontario Trial Lawyers’ Association, Canadian Bar Association, Ontario Bar Association, and is currently a Director and the Secretary of the Board of Canadian Lawyers for International Human Rights (CLAIHR).

When not working Rikin enjoys cycling and spending time with his wife and son.

If you have any questions send an email to Rikin at rmorzaria@mcleishorlando.com.

 


[1] Martin v. Fleming, 2012 ONCA 750.

Recent posts

Contact Icon

Do You Have a Claim?

or call for a free consultation 1-866-685-3311 1-866-685-3311