Accident benefits are only one half of Ontario's system. Separately, an injured person can sue the driver who caused the accident — a "tort" claim — for losses such as pain and suffering, income loss beyond what benefits cover, and other damages. But Ontario places two important hurdles in the path of pain-and-suffering claims arising from car accidents, and both can significantly affect what an injured person recovers.
The threshold
To recover damages for pain and suffering (non-pecuniary loss) from an at-fault driver, the injury must meet a statutory "threshold." In general terms, the injured person must show a permanent, serious impairment of an important physical, mental, or psychological function — or, in the most serious cases, death or permanent serious disfigurement. Each of those words carries legal meaning developed through case law: the impairment must be permanent, it must be serious, and it must affect a function that is important to the person's life.
The practical effect is that minor or fully-healed injuries generally will not support a pain-and-suffering award against the at-fault driver, even if the accident clearly caused them. Meeting the threshold usually requires medical evidence about the permanence and seriousness of the impairment.
The statutory deductible
Even where the threshold is met, a second hurdle applies to many pain-and-suffering awards: the statutory deductible. This is a fixed dollar amount that is subtracted from the pain-and-suffering award, unless the award is large enough to exceed a defined limit, in which case the deductible does not apply. The deductible amount and the limit above which it disappears are indexed and adjusted over time.
The deductible can substantially reduce, or even eliminate, smaller awards. Two claims with the same "headline" award can result in very different amounts in the injured person's hands once the deductible is applied.
How the two pieces work together
- The threshold decides whether you can claim pain and suffering at all.
- The deductible reduces the amount you actually receive for pain and suffering, unless the award is high enough.
- Other heads of damage, such as certain income losses, are treated differently from pain-and-suffering.
For education only. Threshold interpretation develops through case law and the deductible figures change each year, so verify the current amounts and how they apply.
This article is general information for educational purposes only and is not legal advice. For advice on your situation, book a consultation.