The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
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.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.