Bill 198 Auto Insurance Amendments by Sean Mackintosh
Published in the Ontario Brain Injury Association Monach Newsletter Fall 2004
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.