COURT OF APPEAL FOR ONTARIO

CITATION: Martin v. Fleming, 2012 ONCA 750

DATE: 20121105

DOCKET: C54393

Sharpe, Rouleau and Hoy JJ.A.

BETWEEN

Wendy Martin, Michael Martin, Kaitlynn Martin represented by her litigation guardian Wendy Martin and Jacob Martin represented by his litigation guardian Wendy Martin

Plaintiff (Appellant)

and

Krystal Nicole Fleming

Defendant (Respondent)

Jeffrey Strype and Kyle Smile, for the plaintiff (appellant)

Christine Fotopoulos and Tamara Tomomitsu, for the respondent Nicole Fleming

Jamie Pollack, Kerri, Knudsen, for the defendant Campoverde

Gustave Garrido and Sheila Shechian, for the defendant Troy Sisoun

Brian Cameron, for the intervener Ontario Trial Lawyers

Derek V. Abreu, for the intervener CDL

Heard and released orally: October 29, 2012

On appeal from the order of Justice Thea P. Herman of the Superior Court of Justice, dated September 26, 2011.

ENDORSEMENT

[1] This appeal involves the interpretation of the Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(7) which stipulates certain amounts to be deducted from non-pecuniary damage awards for bodily injury or death arising directly or indirectly from the use or operation of an automobile. On a Rule 21 motion to determine a point of law, the motion judge 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 one deductible for each claim.

[2] We see no merit in the appeal. We agree with the reasons of the motion judge who concluded at paras. 27-30:

[27] In my opinion, the application of individual deductibles to each accident or action is consistent both 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.

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

[29] Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.

[30] I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.

[3] The “Charter values” approach to interpretation advanced by the intervener Ontario Trial Lawyers Association was not made before the motion judge. It is conceded that a court would only give effect to that argument if the legislation were ambiguous. This legislation is not ambiguous and therefore we reject the argument.

[4] Accordingly, the appeal is dismissed with costs fixed in the total amount of $15,000 to be allocated equally as between the three respondents.

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”