Court not required to determine whether plaintiff’s injuries meet prescribed threshold for non-pecuniary general damages and health care costs under s. 267.5(15) of the Insurance Act if amount awarded for pain and suffering is zero.

Insurance law – Automobile insurance – Statutory provisions – Non-pecuniary damages – Threshold requirement; Damages; Actions

Grajqevci v. Rustaie, [2017] O.J. No. 1995, 2017 ONSC 2535, Ontario Superior Court of Justice, April 24, 2017, M.D. Faieta J.

The plaintiff suffered personal injuries arising from a motor vehicle accident. The action was defended by the statutory third party which insured the defendants. Following a jury trial, the jury awarded the plaintiff $15,000 for pain and suffering and $35,000 for past loss of income. After applicable deductions under the Insurance Act, the amount awarded for pain and suffering was reduced to zero and the amount awarded for past loss of income to $16,876.94.

The insurer sought two directions. First, that the Court is required under s. 267.5(15) of the Act to determine whether the plaintiff’s injuries meet the prescribed threshold for non-pecuniary general damages and health care costs even though the amount awarded for pain and suffering is zero. Second, payments received by the plaintiff from the Government of Ontario under the Ontario Disability Support Program and Ontario Works should be deducted from the award for past loss of income.

The Court held that the Act does not require the Court to determine the threshold issue where there has been no award for health care expenses or non-pecuniary loss; and the benefits paid under the Ontario Disability Support Program and Ontario Works should not be deducted from the award for past loss of income.