PART VI AUTOMOBILE INSURANCE
Income loss and loss of earning capacity
267.5 (1) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for the following damages for income loss and loss of earning capacity from bodily injury or death arising directly or indirectly from the use or operation of the automobile: 1.  Damages for income loss suffered in the seven days after the incident. 2.  Damages for income loss suffered more than seven days after the incident and before the trial of the action in excess of 70 per cent of the amount of gross income that is lost during that period, as determined in accordance with the regulations. 3.  Damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 70 per cent of the loss of earning capacity during that period, as determined in accordance with the regulations. 1996, c. 21, s. 29; 2010, c. 1, Sched. 11, s. 1 (1); 2011, c. 9, Sched. 21, s. 3 (1); 2020, c. 34, Sched. 7, s. 11. Application (2) Subsection (1) applies to all actions, including actions under subsection 61 (1) of the Family Law Act.  1996, c. 21, s. 29. Protection from liability; health care expenses (3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained, (a)  permanent serious disfigurement; or (b)  permanent serious impairment of an important physical, mental or psychological function. 2002, c. 22, s. 120 (1); 2011, c. 9, Sched. 21, s. 3 (2). (4) Repealed: 2002, c. 22, s. 120 (2). Non-pecuniary loss (5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained, (a)  permanent serious disfigurement; or (b)  permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3). Application of subss. (1), (3) and (5) (6) Subsections (1), (3) and (5) do not protect a person from liability if the person is defended in the action by an insurer that is not licensed to undertake automobile insurance in Ontario unless the insurer has filed an undertaking under section 226.1. 1996, c. 21, s. 29. Same, public transit vehicles (6.1) In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident. 2011, c. 9, Sched. 21, s. 3 (4). Amount of damages for non-pecuniary loss (7) Subject to subsections (5), (12), (13) and (15), in an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the court shall determine the amount of damages for non-pecuniary loss to be awarded against a protected defendant in accordance with the following rules: 1.  The court shall first determine the amount of damages for non-pecuniary loss for which the protected defendant would be liable without regard to this Part. 2.  The determination under paragraph 1 shall be made in the same manner as a determination of the amount of damages for non-pecuniary loss in an action to which this section does not apply and, in particular, without regard to, i.  the statutory accident benefits provided for under subsection 268 (1), ii.  the provisions of this section that protect protected defendants from liability for damages for pecuniary loss, and iii.  the provisions of paragraph 3. 3.  Subject to subsections (8), (8.1) and (8.1.1), the amount of damages for non-pecuniary loss to be awarded against the protected defendant shall be determined by reducing the amount determined under paragraph 1 by, i.  in the case of damages for non-pecuniary loss other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of, A.  $15,000, and B.  the amount prescribed by the regulations, and ii.  in the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, the greater of, A.  $7,500, and B.  the amount prescribed by the regulations. 4.  If fault or negligence on the part of the person entitled to damages for non-pecuniary loss contributed to those damages, the award for damages shall be reduced under paragraph 3 before the damages are apportioned under section 3 of the Negligence Act. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (3); 2010, c. 1, Sched. 11, s. 1 (2). Application of subpar. 3 i of subs. (7) (8) Subparagraph 3 i of subsection (7) does not apply if the amount of damages for non-pecuniary loss, other than damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, would exceed the amount determined in accordance with subsection (8.3) in the absence of that subparagraph. 2002, c. 22, s. 120 (4); 2015, c. 20, Sched. 17, s. 3 (1). Application of subpar. 3 ii of subs. (7) (8.1) Subparagraph 3 ii of subsection (7) does not apply if the amount of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act would exceed the amount determined in accordance with subsection (8.4) in the absence of that subparagraph. 2002, c. 22, s. 120 (4); 2015, c. 20, Sched. 17, s. 3 (2). No reduction under par. 3 i or ii of subs. (7) (8.1.1) Subparagraphs 3 i and ii of subsection (7) do not apply to damages awarded for non-pecuniary loss awarded in respect of a person who dies as a direct or indirect result of an incident that occurs after August 31, 2010. 2010, c. 1, Sched. 11, s. 1 (3). Application of subss. (7)-(8.1.1) (8.2) Subsections (7), (8), (8.1) and (8.1.1) apply in respect of each person who is entitled to damages for non-pecuniary loss. 2002, c. 22, s. 120 (4); 2010, c. 1, Sched. 11, s. 1 (4). Amount in subs. (8) (8.3) For the purposes of subsection (8), the amount shall be determined in accordance with the following rules: 1.  Until December 31, 2015, the amount is $121,799. 2.  On January 1, 2016, the amount set out in paragraph 1 shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year. 3.  On the 1st day of January in every year after 2016, the amount that applied for the previous year shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for the year. 2015, c. 20, Sched. 17, s. 3 (3). Amount in subs. (8.1) (8.4) For the purposes of subsection (8.1), the amount shall be determined in accordance with the following rules: 1.  Until December 31, 2015, the amount is $60,899. 2.  On January 1, 2016, the amount set out in paragraph 1 shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for that year. 3.  On the 1st day of January in every year after 2016, the amount that applied for the previous year shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) for the year. 2015, c. 20, Sched. 17, s. 3 (3). Publication of adjusted amounts (8.5) For every year after 2015, at the time an indexation percentage is published under subsection 268.1 (1), the Chief Executive Officer shall publish on the website of the Authority the amounts to which the amounts determined in accordance with subsections (8.3) and (8.4) shall be revised, effective the 1st day of January. 2015, c. 20, Sched. 17, s. 3 (3); 2018, c. 8, Sched. 13, s. 22; 2019, c. 14, Sched. 9, s. 11. Costs (9) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made with regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss. 1996, c. 21, s. 29; 2015, c. 20, Sched. 17, s. 3 (4). Liability of other persons (10) Subsections (1), (3) and (5) do not relieve any person from liability other than a protected defendant. 1996, c. 21, s. 29. Vicarious liability (10.1) Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable. 2002, c. 22, s. 120 (5). (11) Repealed: 2002, c. 22, s. 120 (6). Motion to determine if threshold met; non-pecuniary loss (12) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained, (a)  permanent serious disfigurement; or (b)  permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (7). Determination binding (13) The determination of a judge on a motion under subsection (12) is binding on the parties at the trial. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (8). (14) Repealed: 2002, c. 22, s. 120 (9). Determination at trial; non-pecuniary loss (15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained, (a)  permanent serious disfigurement; or (b)  permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, s. 29; 2002, c. 22, s. 120 (10). Section Amendments with date in force (d/m/y) 1996, c. 21, s. 29 - 01/11/1996 2002, c. 22, s. 120 (1-10) - 01/10/2003 2010, c. 1, Sched. 11, s. 1 (1-4) - 01/09/2010 2011, c. 9, Sched. 21, s. 3 (1-4) - 12/05/2011 2015, c. 20, Sched. 17, s. 3 (1-4) - 01/08/2015 2018, c. 8, Sched. 13, s. 22 - 08/06/2019 2019, c. 14, Sched. 9, s. 11 - 31/07/2020 2020, c. 34, Sched. 7, s. 11 - 01/07/2022