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When commencing a civil personal injury action, one of the first decisions plaintiffs need to make with their lawyer is whether to issue a Statement of Claim under Ordinary Procedure or under Simplified Procedure, as outlined by Rule 76 of the Rules of Civil Procedure. For most motor vehicle concussion victims, it may be beneficial to issue under Simplified Procedure.
Rule 76 was amended in 2019 in O. Reg. 344/19 under the Courts of Justice Act. The most significant amendments include:
Post-concussive symptoms including headaches, tinnitus, and cognitive and psychological changes are usually not recognizable from the outside. While there may be an overwhelming amount of medical evidence substantiating a plaintiff’s concussion injury and post-concussive symptoms, it can be challenging to convince a jury of these invisible injuries, when the plaintiff is seen for the first time at trial.
Even if a jury does award a substantial amount in non-pecuniary damages for a motor vehicle concussion victim, jurors are not advised of the applicability of statutory deductibles for non-pecuniary damages under the Insurance Act, which increase every year.
As of 2024, the statutory deductible on non-pecuniary damages is $46,053.20, and applies to non-pecuniary damages awards of less than $153,509.39. Jurors may be convinced of a plaintiff’s concussion injury, and award them $45,000.00 in non-pecuniary damages as compensation. Under this scenario, jurors may think they are appropriately compensating the plaintiff for their injuries, when really, the plaintiff’s award for non-pecuniary damages would be completely wiped out by the statutory deducible.
When assessing the non-pecuniary damages of a concussion victim under Simplified Procedure, a judge will look at what has been awarded in past concussion injuries to get a range of potential damages awards. Based on past decisions, after accounting for inflation, the range of damages for a concussion injury may range between $86,000.00 to $114,000.00, which after the statutory deducible is $40,000.00 to $68,000.00, depending on the severity of the symptoms. Non-pecuniary damages awards for motor vehicle concussion victims may generally be higher, and have less variance, when assessed by a judge-alone, rather than by a jury, due to the invisible nature of the symptoms and the applicability of past judicial decisions.
The limit to adverse costs and disbursements awards against the unsuccessful litigant under Simplified Procedure provides a level of certainty to a plaintiff when gearing up for an inherently uncertain trial. In most personal injury claims, the plaintiff has the option of getting adverse costs insurance, which usually has a policy limit of at least $100,000.00. With a cap on adverse costs and disbursements to $50,000.00 in costs and $25,000.00 in disbursements plus HST, a plaintiff will have the piece of mind going into a trial that even if they are completely unsuccessful, they will be fully indemnified for any adverse costs award against them. At the same time, these caps on adverse costs may motivate a defendant to settle a claim, because the defendant will know that even if successful at trial, their legal costs in going to trial will significantly exceed the adverse costs award that they are able to receive.
Although there are benefits to an injured plaintiff to proceed under Simplified Procedure, there would be little incentive to do so if their expected damages exceed the limits permitted under Simplified Procedure. If the previous cap of $100,000.00 in damages under Simplified Procedure applied, a motor vehicle concussion victim would have to consider what they are potentially sacrificing in terms of quantum of damages when deciding on their procedure.
Given the expected range of non-pecuniary damages for concussions, and other limitations on damages that apply to motor vehicle accident victims under the Insurance Act, many motor vehicle concussion victims will have damages under $200,000.00. With the increase in limit of damages from $100,000.00 to $200,000.00, there is little to no prejudice to most motor vehicle concussion victims in proceeding under Simplified Procedure.
The above changes have the effect of balancing the landscape between plaintiff and defendant in motor vehicle accident claims, and potentially impact the risk-assessment that both parties undergo when deciding to settle claims. Additionally, Simplified Procedure provides for a streamlined litigation process, which provides a benefit to all parties involved.
Under Simplified Procedure, parties are required to discuss documentary disclosure and potential settlement within 60 days of the filing of the first Statement of Defence. Examinations for Discovery are also limited to a maximum of three hours per party, whereas under Ordinary Procedure, Examinations for Discovery are limited to seven hours. If an action under Simplified Procedure goes to trial, the trials are generally more efficient than under Ordinary Procedure, as trials are limited to 5 days, with Evidence-in-Chief of all witnesses submitted by way of affidavit, making the most of court and judicial resources.
When dealing with motor vehicle concussion injuries, where the damages are unlikely to exceed $200,000.00, proceeding under Simplified Procedure may be beneficial to plaintiffs, as it balances the landscape of the litigation, and provides for more timely justice. Of course, decisions on which procedure to commence a claim under must be decided on a case-by-case basis with the benefit of legal advice from an experienced personal injury lawyer.
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