In Martin v. Fleming, 2012 ONCA 750, a decision of the Court of Appeal for Ontario released on November 5, 2012, the Court interpreted section 267.5(7) of Ontario’s Insurance Act, which stipulates that certain amounts are to be deducted from non-pecuniary damage awards (pain and suffering) for bodily injury or death arising directly or indirectly from the use or operation of a motor vehicle.
On a motion to determine a point of law, Justice Herman of the Superior Court of Justice ruled that where a plaintiff has been involved in two accidents and the actions are tried together to facilitate the assessment of damages, the plaintiff is subject to one deductible for each claim.
The Court of Appeal agreed with the reasons of Justice Herman who stated as follows in her Endorsement:
[27] In my opinion, the application of individual deductibles to each accident or action is consistent both with the wording of the legislative provision, when read in the context of the legislation as a whole, and the approach taken in other decisions.
[28] 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.
[29] 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.
[30] I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
Consequently, the Court of Appeal dismissed the appeal.
