Aviva Gets a Slap on the Wrist by the Ontario Courts for it’s No Settle Threshold Policy

This post was written by Andrea Girones:

May 19 2015. As many personal injury lawyers know some insurance companies can be easier to deal with than other companies.

Aviva Canada has for years had a program whereby certain personal injury claims were considered “defendable” on the issue of the threshold. The threshold means that, if a car accident victim could not prove that they had suffered a “permanent, serious impairment, to an important physical, mental or psychological function”, then they would be unable to collect “pain and suffering” damages.

Once a case was placed in Aviva’s “defendable” program, the lawyer would not be allowed to offer one penny, not even the costs of a trial, to settle and avoid a full trial in the Superior Court of Ontario.

The program by Aviva Canada was intended to scare off cases that were anything less than a slam dunk winner, such as a case with significant orthopedic (visible on x-ray) injuries. Most at risk were cases with soft tissue injuries, injuries that relied primarily on the car accident victim’s word.

It meant that even in cases that had a monetary component, which is not protected by the threshold, no offer would be made at any point. This meant a lot of expensive and lengthy trials in the court system which frustrated many Judges who were trying to reach a compromise to avoid a trial.

Recently the Court in Marshall v. Luck 2014, ONSC 7179 handed down a remedial cost penalty to Aviva, after the accident victim won her case at trial. The Judge found that Aviva deserved this $50,000.00 cost penalty, to prevent them from taking such a hard nose line in the future.

I had a trial a couple of years ago on a case in the Aviva Canada “defendable” program. It was a soft tissue case with some good evidence and some other evidence that would challenge my accident victim client. The award I received a trial was not large. However because Aviva refused to settle, Aviva ended up paying a cost award of almost five times the Judgement amount.

The whole point of a settlement is to compromise for the risks of losing (or winning) and to avoid the subsequent cost award. My trial, and I suspect the Maxwell trial, could have been avoided by Aviva being willing to compromise even by a small amount. Hopefully this decision will encourage this, and other car insurance companies, to be more reasonable in the future.



The people who make our firm what it is.

Read More >

Recent paper:Birth Brachial Plexus Lawsuits

Read More >