One of the issues in Rumney v. Nelson, 2021 ONSC 5632, was whether the jury should be advised of the statutory deductible in a motor vehicle accident trial. Justice Fowler Byrne confirmed that the jury should not be so advised.
Section 267.5(7) of the Insurance Act indicates that damages for non-pecuniary loss shall first be determined without regard to the deductible. Justice Fowler Byrne indicated that “…it would not be appropriate to include a jury instruction that explains the statutory deduction and what happens after they determine a proper quantum of damages. If their job is to determine that quantum without regard to later deductions, there is no need to instruct them on those deductions which are applied after their job is complete”.
Justice Fowler Byrne further stated that “[i]f the jury was aware of the amount of the statutory deductible, or the amount of damages after which no statutory deductible is applied, the jury may be tempted to do some informal grossing up of the damages to take that into consideration”.