Today in Ontario, it is more difficult than ever to pursue a claim for damages following a motor vehicle accident.

I have spoken with other experienced injury lawyers who have agreed with me that if they could start fresh in law, they wouldn’t choose personal injury as their primary area of practice.

So why is it so difficult to advance a claim these days?

For one, the insurance legislation has been very unfavourable towards accident victims. To be entitled to money for ‘pain and suffering’, the test to meet requires the claimant to prove a serious impairment of an important physical, mental or psychological function” a.k.a. the “threshold test”. This test does NOT have to be met in injury cases other than car accidents. It is no wonder why insurers are all over this “threshold test” in auto claims and often take the view that “threshold will not be met”. This piece of legislation is a true gift from the politician gods to the insurers.

This gift comes with another little benefit called the “deductible”. This can be thought of as the beautiful red ribbon tied around the gift holding it all together. The deductible is the amount that gets deducted from any pain and suffering award under $100,000.00 and increases with inflation, which would make it approximately $37,000.00 today. So, in other words, if a claimant is so lucky enough to meet threshold, whatever they are awarded under $100,000.00 is subject to a deductible of $37,000.00. This means that if you’re awarded less than $37,000.00 for pain and suffering, you get ZERO.

Insurers love to argue that threshold will not be met. But if it seems as though it may be met, they always fall back on the alternative argument which is often, “ you will still not surpass the deductible”.

At a trial, the jury will never know about this deductible. They will simply award a number for pain and suffering completely oblivious to the consequences of how the deductible will affect it.

All in all, accident victims are hit hard 3 times. Once in the accident, once with the threshold and once with the deductible (if they should be lucky enough to overcome the threshold test).

Hiring an experienced personal injury lawyer is critical to navigate the insurance legal landscape. However, even the best personal injury lawyer in the world may only be able to do so much.

Another key factor at play is sadly, who the insurance company on the other side is. The approach that different insurance companies take is drastic. Some are much more reasonable than others. All these factors play a role in what will nowadays be considered an unpredictable “auto lotto”.

A good lawyer, a strong commitment to your case and a bit of luck will go a long way.

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