2017: A Year In Review And A Look Ahead

As 2017 comes to a close, it is a good time to take a look back at changes and developments in the law that will affect how adjusters handle claims going forward.

In one of the year's most anticipated decision, the Court of Appeal for Ontario has now ruled on the application of the rate of pre-judgment interest for general damages claims arising from an MVA. In the case of Cobb v. Long Estate, 2017 ONCA 717, heard together with El-Khodr v. Lackie, 2017 ONCA 716, the Court concluded that the 1.3% rate of pre-judgment interest found in the Courts of Justice Act is to be applied immediately to both pending and future claims. However, the Court upheld the trial judge's earlier ruling that a rate of 3.0% applied on the basis there was no reason to interfere with the trial judge's discretion in that regard. Moving forward, defendants may use the Courts of Justice Act rate when calculating pre-judgment interest, bearing in mind that it is subject to a trial judge's discretion.

In the same decision, the Court also ruled on the application of the indexed deductible for general damages. For all current and future claims, the new, inflation-adjusted deductible applies to all pending cases. Similarly, the Court ruled that costs are to be determined on the "net" amount for general damages. Now, costs are to be calculated after the statutory deductible is applied.

In one of FSCO's last decisions before transitioning to the LAT, Arbitrator Benjamin Drory released a surprising and unexpected decision with respect to the constitutionality of the Minor Injury Guideline ("MIG") under the SABS. Ultimately, Arbitrator Drory found that the definition of "minor injury" is unconstitutional as it unjustifiably infringes upon a claimant's equality rights under the Charter of Rights and Freedoms on the basis of physical disability. While the decision has been criticized for evidentiary reasons, namely that the Attorney General of Ontario and the insurer were not called upon to make submissions, Arbitrator Drory stressed that his decision applied only to the case before him, suggesting it will not have wider application. Nevertheless, it is expected the Attorney General will make submissions if and when a claimant advances similar arguments in subsequent cases.

Whenever the Supreme Court of Canada rules on an issue, it is important to pay close attention. In the case of Saadati v. Moorhead, 2017 SCC 28, the Court ruled that an injured claimant does not need to have a...