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One of the areas which people often look to be compensated for after an injury is their “pain and suffering.” This is the unquantifiable hardship which one endures as a result of their injuries.

Under the legislation which governs motor vehicle accidents in the Province of Ontario, in order for you to be successful in an action for pain and suffering damages (also called general, or non-pecuniary damages), your injury must meet the “threshold”. There are two thresholds to meet.

The first is the test which states that, as a result of the accident, that you must have sustained

(a) a permanent serious disfigurement; or

(b) a permanent, serious impairment of an important physical, mental or psychological function.

Failure to meet this “threshold”, as determined by a judge, will result in your action for pain and suffering being dismissed.

In order to be able to recover pain and suffering damages, your injuries must prevent you from participating in your social, recreational, familial, household, or employment activities to the extent to which you participated in these activities prior to the collision. There must be a meaningful difference in your function and ability to partake in these activities. There must be a real difference in your life after the accident as compared to before the accident. There also must be a serious injury which is permanent (meaning, lasting a long time, and one that you will unlikely recover from). It isn’t enough that you have suffered for a short period of time.

The second threshold is a monetary one. There is a deductible which applies to all claims for pain and suffering damages. For actions before 2015, the deductible is $30,000 for all damages for pain and suffering assessed at $100,000 or less. So if the Judge or Jury awards you damages for pain and suffering of $100,000, you only receive $70,000 after the deductible. If your damages are assessed over $100,000, then there is no deductible.

The Government of Ontario has recently increased the deductible for inflation. This means that for accidents after August 1, 2015, pain and suffering damages will be subject to a higher deductible than the $30,000 we have been used to for the past few years. The deductible for pain and suffering claims is now $36,540, and in order to escape the deductible, your damages have to exceed $121,799.

Unfortunately this change only keeps money out of the victim’s pocket and gives yet another break to insurers. This is just one of many changes the government has made recently which continue to erode the rights of accident victims.

The law for personal injury claims in Ontario is complex. A personal injury lawyer can help you navigate this complicated system while helping you concentrate on getting the care you need to recover from your injuries. If you have been seriously injured in a motor vehicle collision or other accident, contact Rasha El-Tawil for a free consultation at rasha@siskinds.com or 519-

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