In the recent Ontario decision, Winckle v. Siodlowski, [2009] O.J. No. 4807 (Ont. S.C.J.)., Justice Hockin decided the applicability of the statutory deductible in a case where damages were assessed at exactly $100,000. According to section 267.5(7) and (8) of the Insurance Act, R.S.O. 1990, c.I.8 ("the Act"), the Court shall after assessing the amount of damages for non-pecuniary loss, reduce that amount by $30,000, except where the damages amount for non-pecuniary loss would exceed $100,000.

The plaintiff, Winckle was injured in a motor vehicle accident. Liability and damages were at issue. After favouring the plaintiff’s expert medical evidence, the jury held that the plaintiff’s injuries met the statutory threshold test and non-pecuniary general damages were assessed at $100,000.

The issue before Justice Hockin then became whether the $30,000 deductible should be applied to the plaintiff’s award.

Ultimately, Justice Hockin found the language of the applicable sections of the Act to clearly apply to damages awards of $100,000 or less. It is only in circumstances where the non- pecuniary general damages amount exceeded $100,000 that the deductible would not be applied.

Thus, in the case at hand, the statutory deductible was applied, thereby reducing the plaintiff’s damages to $70,000.