Bill 198 Auto Insurance Amendments
The auto insurance legislation in Ontario has undergone significant changes and these changes will impact an injured person’s right to sue for compensation against at-fault drivers for car crashes occurring on or after October 1, 2003.
Three of these changes are as follows:
1. Monetary Deductible
The amount that is required to be deducted from the injured person’s pain and suffering damages has been increased from $15,000 to $30,000. However, the deductible now applies only where the injured person’s damages for pain and suffering are assessed at less than $100,000.
2. Impairment Threshold Defined / Medical Evidence Required
The auto insurance legislation still prohibits an action for pain and suffering damages by an injured person unless the injured person has sustained a permanent serious disfigurement or a permanent serious impairment of an important function.
However, Bill 198 now defines a permanent serious impairment of an important function as an impairment that:
(i) Substantially interferes with the ability to continue usual employment or career training despite reasonable efforts to accommodate the impairment; or (ii) Substantially interferes with most of the usual activities of daily living;
(i) must be necessary to perform the activities that are essential tasks of usual employment or career training; (ii) must be necessary for the injured person’s own care or well-being; or (iii) must be important to the usual activities of daily living; and
(i) must be continuous since the incident and with no substantial improvement expected based on medical evidence and participation in treatment; and (ii) must be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
Bill 198 also now specifies the medical evidence that is required to prove a permanent serious impairment of an important function:
Evidence from one or more physicians that explains: (i) the nature of the impairment; (ii) the permanence of the impairment; (iii) the specific function that is impaired; (iv) the importance of the specific function to the person; (v) a conclusion that the impairment is directly or indirectly sustained as a result of the use or operation of an automobile; and
The physicians providing this evidence must be trained and experienced in the assessment or treatment of the type of impairment in issue and must be based on medical evidence in accordance with generally accepted guidelines or standards of the practice of medicine.
3. Health Care Expenses
Prior to the Bill 198 amendments, an injured person would not have been entitled to sue for health care expenses unless the person was catastrophically impaired. Now these expenses may be recovered if the injured person meets the impairment threshold set out above.
These changes give rise to new issues that will be decided in the courts and which will require skilled legal representation to ensure full and fair compensation.