Law360 Canada (June 29, 2026, 3:11 PM EDT) --

Kris Bonn

Ontario’s civil courts continue to struggle with post-pandemic delays. The problem is not just administrative. In personal injury litigation — and especially in motor vehicle collision cases — delay changes the financial value of a claim. For plaintiffs, longer times to get to trial do not simply postpone compensation. They can reduce it.

The civil justice system is in crisis. Public reporting on the Advocates’ Society’s 2023 call to action noted that Ontario litigants may wait up to five years or more for a civil action to proceed from commencement to trial, and that delay threatens livelihoods, access to justice and public confidence in the courts.

Court delays force severely injured plaintiffs to go without care and financial support while they wait years for trial dates.

Long delays for motions and civil trial dates pressure plaintiffs to abandon claims, accept low settlement offers just to survive or absorb statutory reductions to their damages, such as 70 per cent of pretrial income loss and a rising deductible in motor vehicle cases.

The prejudice is most felt by plaintiffs in motor vehicle cases because Ontario’s Insurance Act already imposes a series of plaintiff-specific limitations on damages. Section 267.5(1) limits recovery for pretrial income loss: there is no recovery for income loss in the first seven days after the collision, and income loss or loss of earning capacity before trial is limited to 70 per cent of gross loss.

The longer a matter takes to reach trial, the longer the plaintiff remains in the “pretrial” period where the statutory 70 per cent cap applies. By contrast, future income loss after trial is quantified at 100 per cent. Delay therefore moves more of the plaintiff’s real economic loss into a discounted statutory category.

For non-pecuniary damages, the Insurance Act indexes the tort deductible for pain and suffering in motor vehicle cases annually. The Financial Services Regulatory Authority of Ontario’s (FSRA) 2026 guidance confirms that indexation applies to deductible amounts and monetary thresholds for non-pecuniary tort awards arising from the use or operation of an automobile.

For 2026, the deductible on pain and suffering damages is $47,913.01 where those damages are assessed below the $159,708.71 monetary threshold, with a corresponding Family Law Act deductible of $23,956.52 for FLA damages below $79,853.70. Thus, when a judge or jury assesses a plaintiff’s non-pecuniary general damages below the vanishing-deductible threshold, every year of delay risks applying a higher deductible to the plaintiff’s recovery.

The Court of Appeal’s decision in Cobb v. Long Estate, 2017 ONCA 717 makes that prejudice concrete. Cobb confirms that the court determines the applicable deductible not by the year the defendant injured the plaintiff, but when the court is finally able to hear the case. To put this in perspective, if the defendant injured the plaintiff in 2021, the deductible at that time was $39,754.31, and the monetary threshold for no deductible was $132,513.18.

The Court of Appeal in Cobb also held that the reduced prejudgment interest regime applied to motor vehicle claims, and that the deductible must be considered when assessing offers to settle and costs. Put differently, trial delay exposes plaintiffs to the very statutory changes and annually indexed increases that most benefit defendants and insurers. In practical terms, court delay itself reduces injured plaintiffs’ monetary recovery to the benefit of defendants and their insurers.

In El-Khodr v. Lackie, 2017 ONCA 716, decided with Cobb, the Court of Appeal confirmed that the lower prejudgment interest regime for non-pecuniary damages in motor vehicle cases applied retrospectively, reducing the plaintiff’s prejudgment interest from the former five per cent approach to the prescribed rate under the Courts of Justice Act. This matters because prejudgment interest should compensate plaintiffs for losing the use of money.

In non-motor vehicle personal injury cases, recent Court of Appeal decisions such as Henry v. Zaitlen, 2024 ONCA 614 and Aubin v. Synagogue and Jewish Community Centre of Ottawa, 2024 ONCA 615 reaffirm the importance of prejudgment interest and recognize that delayed payment has a real economic cost. Plaintiffs injured by the use or operation of an automobile, however, remain carved out of the five per cent non-pecuniary default prejudgment interest rate and are often compensated at a much lower prejudgment interest rate.

Delays in getting to trial also negatively affect expert evidence. Future care and income loss reports are time sensitive. A delay in getting to trial will usually require updated vocational, actuarial, medical and life-care evidence, increasing the costs of litigation. Assumptions about work capacity, retirement, treatment needs, inflation, mortality, mitigation and future care pricing can shift materially over time. That increases litigation cost and uncertainty for plaintiffs, who often lack the resources of insurers.

Delays also allow defendants to create strategic settlement pressure: the plaintiff needs compensation now, while the insurer benefits from time, investment returns and statutory discounts.

The conventional view is that delay may encourage settlement by increasing uncertainty for both sides. For plaintiffs in personal injury cases, particularly those involved in motor vehicle litigation, that framing is incomplete.

Delay may increase pressure to settle, but not necessarily for fair value. Plaintiffs typically face increasing financial stress from not being able to work, inability to fund necessary medical and rehabilitation treatment, reduced pretrial income recovery, diminished prejudgment interest, a rising pain-and-suffering deductible, stale expert evidence and growing out-of-pocket needs. The insurer, meanwhile, preserves capital and negotiates against a plaintiff whose financial and medical vulnerability increases with time.

Trial delay is therefore not neutral. For plaintiffs, particularly in motor vehicle cases, it operates as an additional, unstated discount on plaintiffs’ claims. If Ontario is serious about access to justice, reducing civil delay should be understood not only as a court-administration priority, but as a substantive fairness issue for injured people.

Kris Bonn is the managing partner at Bonn Law, a firm with offices in Belleville, Ont., and Trenton, Ont., that focuses on helping people with personal injury cases, medical malpractice and long-term disability denials. Bonn is the president of the Brain Injury Association Quinte District and the past president of the Ontario Trial Lawyers Association.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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