Richard Halpern, President of the Ontario Trial Lawyers’ Association says the “verbal threshold” provisions of section 267.5(5) of Ontario's Insurance Act contravene Canada's Charter of Rights and Freedoms.
Under the legislation, damages awards in personal injury claims arising from motor vehicle accidents are subject to a deductible of $30,000.00, unless the damages awarded exceed $100,000.00.
Commenting in Law Times on a recent Alberta Queens Bench decision, striking the Province's $4,000 damages cap on soft tissue injuries from motor vehicle accidents and holding that the cap violated s. 15(1) of the Charter, Halpern said:
Our positions is, if the Alberta cap is unconstitutional, then there are provisions in the Insurance Act in Ontario that are unconstitutional under the same reasoning...
It discriminates on the basis of age, disability . . . retired people, children, the unemployed, and the disabled,” says Halpern.“If there is a need to control claims costs for the industry — keep premiums affordable — this is not the way to do it...
The Charter challenge, having a retroactive affect as it does, means that the industry really has brought this upon [itself] by promoting changes while ignoring the rights of accident victims.
- Garry J. Wise, Toronto