In social media posts and in discussions with members and party candidates, the Ontario Trial Lawyers’ Association’s (OTLA) low-level, pre-election campaign is focusing on several issues — including restricting the use of civil juries, restoring the $2 million award limit for catastrophically impaired individuals, and eliminating what it calls the “secret deductible.”
“It’s become an overly restrictive regime,” said OTLA president and personal injury lawyer Sandev Purewal told Law360 Canada in an interview.
OTLA president and personal injury lawyer Sandev Purewal
Under pressure from the insurance industry, Purewal said , successive provincial governments have made changes to the auto insurance system purportedly aimed at controlling rising auto insurance premiums.
But despite challenges posed by rising auto theft, fraud and inflation, auto insurers’ revenues have remained robust, he noted. Last year, for example, Toronto-based Intact Financial Corp. reported an 11 per cent increase in personal auto insurance premiums. He said auto accident victims, on the other hand, have seen a steady chipping away of their rights and benefits.
In January, the OTLA detailed its proposed reforms in a submission to the Ontario legislature’s Standing Committee on Finance and Economic Affairs for its 2025 pre-budget consultations.
Among other things, the association is calling for amendments to the tort system to improve access to pain and suffering compensation. In 1978, the Supreme Court of Canada capped pain and suffering damages at $100,000 — or about $420,000 in today’s dollars. In the United States, there is no limit.
Even with the cap, however, being awarded pain and suffering compensation has become increasingly difficult for Ontarians, said Purewal. First, auto accident victims need to prove that the defendant drove negligently and, second, that the victim’s injuries resulted in serious and permanent impairment of important functions (the “serious and permanent threshold”).
If that hurdle is cleared, plaintiffs then have to pay a deductible from the pain and suffering award of almost $47,000 — up from $15,000 in 1996. The OTLA calls it a “secret deductible” because, by law, it cannot be revealed to juries. He noted that Ontario is the only jurisdiction in North America with both the serious and permanent threshold and a secret deductible.
The secret deductible has forced most members of the personal injury bar to shun potential cases if damages are not expected to be considerably higher than $47,000, said Purewal. For years, the OTLA has been lobbying successive governments in Ontario to get rid of it.
The association is also asking the next government to investigate and overhaul the Licence Appeal Tribunal (LAT) of Ontario, which took exclusive jurisdiction over the adjudication of statutory, no-fault accident benefits in 2016. The OTLA argues that the LAT is riddled with delays, is costly for claimants, and that some LAT adjudicators appear to have an “institutional bias against accident victims and in favour of insurance companies.”
In an email to Law360 Canada responding to the OTLA concerns, Tribunals Ontario spokesperson Veronica Spada said there are no delays at the LAT at this time and that OTLA submissions to Tribunals Ontario have actually complained that the LAT is moving too quickly. She said the LAT has reduced its backlog of cases from 17,000 in 2021 to 9,186 today, and that 86 per cent of cases are heard within a year, in accordance with its key performance indicators.
She added that LAT adjudicators are thoroughly screened for potential conflicts of interest before they’re appointed. Once selected, their onboarding process includes ethics training and they are expected to follow a strict code of conduct. She said that 82 per cent of LAT decisions that have gone before the courts on appeal or for judicial review have been upheld, pointing to their high quality.
“To maintain the trust of Ontarians,” added Spada, “Tribunals Ontario, which includes the LAT, takes the ethical conduct of its staff and adjudicators very seriously.”
To reduce delays in Ontario’s already backlogged civil justice system, OTLA is also urging the government to restrict the use of juries in civil trials except when the subject matter of the action involves a public interest issue and engages community values or a person’s character. The association says juries are also a problem because the current system and the Insurance Act promote withholding important information from juries to the tactical advantage of insurance companies. Juries are not told, for example, that an insurance company is involved.
The OTLA brief also calls for an end to statutory limits that prevent accident victims from recovering all medical expenses or lost income. Limits for medical, rehabilitative and attendant care benefits, for example, have been steadily reduced and now stand at $3,500 for injuries classified as “minor” inclusive of tax, $65,000 for non-minor, non-catastrophic victims inclusive of tax, and $1 million for catastrophically impaired victims inclusive of tax, down from the previous limit of $2 million.
In addition, the current scheme only allows accident victims to recover 70 per cent of their past loss of income up to the date of trial instead of the historical level of 100 per cent.
The OTLA argues that victims rights and benefits have been badly eroded since the introduction of Ontario’s hybrid fault/no-fault insurance system in 1990, when responsibility for basic medical and rehabilitation care shifted to insurance companies. The OTLA submission notes that income replacement benefits are now worth about 55 per cent of their value in 1996, when they were set. Medical, rehabilitation and attendant care benefits, meanwhile, are worth much less than 50 per cent of the no-fault coverage that existed in 1996.
At the same time, the hoped-for tradeoff of more affordable insurance premiums for Ontario consumers has not come to pass, says the OTLA. The biggest winners have been the insurers, said Purewal.
“Insurance companies in recent years have made huge profits,” he said. “At the same time, our accident benefit system has been sort of gutted.”
While heated conversations about tariffs, healthcare and education have dominated the election campaign, Purewal said the OTLA’s effort to improve the province’s auto insurance system will continue long after the next government is decided.
“There's a lot of things that make the system very, very difficult for people to navigate,” he said. “That's why we're looking at the system as a whole. We don't think any one little thing is going to fix it by itself, but we’re taking a more holistic approach to the whole system.”
(Editor's Note: The original version of this story contained some inaccurate information that has since been corrected.)
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