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Two deductibles applied when there are two accidents

November 2012

In Martin v. Fleming, 2012 ONCA 750, the Ontario Court of Appeal recently affirmed the decision of the Ontario Superior Court which ruled that where a plaintiff has been involved in two accidents and the actions are tried together to facilitate the assessment of damages, the plaintiff is subject to two deductibles, pursuant to s.267.5(7) of the Insurance Act, for each claim.

...where a plaintiff has been involved in two accidents and the actions are tried together to facilitate the assessment of damages, the plaintiff is subject to two deductibles...

The Ontario Court of Appeal stated that it agreed with the Ontario Superior Court's ruling that the application of individual deductibles for each accident is consistent with the wording of the legislative provision when read in the context of the legislation as a whole and the approach taken in other decisions.

The appellate court further agreed that the plain meaning of s.267.5(7) is that the court determines the amount of the general damages in an action by first determining the general damages in that action and then reducing the amount of the statutory deductible. 

In a global assessment, which is a methodology for determining damages where damages from multiple accidents overlap, a court must determine the general damages attributable to each action and then must reduce that amount by the statutory deductible. 


 

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