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Threshold Issues in Motor Vehicle Accidents in Ontario

In 1990 the government of Ontario passed legislation with the goal of limiting personal injury claims going before the courts to the cases involving the most serious of injuries. For an injured individual to receive compensation for his or her injuries he or she must overcome two obstacles: the threshold and the deductible. 

The most contentious or difficult hurdle is the initial threshold, which establishes that: no liability arises for bodily injury arising directly or indirectly from the use or operation of a motor vehicle, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

  1.  

(b) permanent serious impairment of an important physical, mental or psychological function.

 

S. 267.5(5) Insurance Act, R.S.O. 1990, C. I.8

The courts typically spend much of their time focusing on what it means for a person to suffer a “permanent serious impairment of an important physical, mental or psychological function.”  The regulation provides more guidance:

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

 

  1. To be considered as a “substantial interference”, the impairment must:
  1. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
  2. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
  3. substantially interfere with most of the usual activities of daily living, considering the person’s age.

 

  1. For the function that is impaired to be an important function of the impaired person, the function must,
  1. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,                
  2. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
  3. be necessary for the person to provide for his or her own care or well-being, or
  4. be important to the usual activities of daily living, considering the person’s age.

 

  1. For the impairment to be permanent, the impairment must,
  1. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
  2. continue to meet the criteria in paragraph 1, and
  3. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

 

Section 4.2, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O Reg 461/96

Proving that the threshold has been met requires evidence adduced from one or more physicians, who can explain the following:

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

 

Section 4.2, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O Reg 461/96

 

How does this play out in a trial?  Where the injuries to the claimant are clear, obvious and objective, the matter normally goes straight to trial for the purpose of arguing about liability and the value or quantum of damages. Those cases also have greater chances of settling before trial when liability is not an issue.     

In some cases, the complaints arise out of subjective reports of chronic pain.  These are the types of cases that are more likely to draw the attention and line of attack of defence counsel. Credibility is a key component of personal injury cases. Obviously, the reports and evidence of the claimant’s own physicians and/or experts is primordial. The evidence of the claimant him or herself is also very important. The claimant’s own credibility about his or her injuries and the impact the injuries had on his or her life are paramount. Inconsistencies between the claimant’s evidence and competing evidence, including surveillance, can be harmful to the case. Corroborating evidence from friends, family, employers, co-workers etc. can also be very useful to demonstrate how the claimant’s injuries have significantly impacted his or her life and/or employment.

In most instances, motor vehicle accident trials are conducted with a jury of peers deciding the ultimate outcome of the case. Where the threshold is in dispute, a “threshold motion” will be argued before the presiding judge.  The “threshold motion”, falls under the purview of the judge alone. The “threshold motion” is often heard at the outset of the trial but can also be heard at the end of the trial so that the judge can have a full appreciation of the evidence involved in the case. According to the court of appeal in Kasap v. MacCallum, “the legislation is clear: the judge decides the threshold motion and in doing so, the judge is not bound by the verdict of the jury”. If the Plaintiff fails to meet the threshold, they will not be entitled to the money awarded by the jury, whatever the amount may be.  

 

How are the Ontario Courts Applying the Threshold?

While the legislation is quite clear in setting out what is required to meet threshold, the Ontario courts have been adding color and complexity to its application. Over the years, there has been many cases dealing with whether plaintiffs meet the threshold. Below are a few cases illustrating how the courts have recently dealt with threshold issues. Those cases illustrate the importance of reliability and credibility in determining whether the threshold is met. In their determination, the court will also take into consideration the medical evidence, the evidence regarding the plaintiff’s ability to work, as well as the jury’s verdict.

In Wray v. Pereira, 2018 ONSC 5662, the Plaintiff, Mr. Wray, was a 61-year-old man who suffered from arthritis and chronic pain in his right knee following a motor vehicle accident. At the time of the trial, Mr. Wray was 67-year-old. After the jury’s verdict, the defence brought a “threshold motion” for a declaration that Mr. Wray’s claim was barred, as they did not meet the threshold. It is interesting to note that the defence brought this motion even though the jury’s damages award fell under the applicable deductible.   

The defence’s position was that Mr. Wray’s current condition was unrelated to the accident but pre-existing the motor vehicle accident. In fact, according to Mr. Wray’s medical records, he had started to experience pain in his right knee in the 1990’s. The complaints had also resurfaced in 2006, when X-Rays revealed advanced arthritis. He right knee complaints accompanied by limping were noted in his medical records as far as 2007. At trial, Mr. Wray denied having any episodes of limping prior to the accident. This raised a credibility issue, which weakened Mr. Wray’s position at trial. 

Both parties called medical experts to testify as to whether the trauma resulting from the accident was the cause of the exhibition of the arthritis symptoms. The court accepted the opinion of the defence’s expert and found that it was more likely that Mr. Wray’s current condition was caused by the natural progression of the arthritis in his knee. The court took into consideration the jury’s verdict and concluded, based on the amount awarded, that the jury was of the view that the accident had not played a significant role in Mr. Wray’s current symptoms. The court concluded that Mr. Wray had not met his onus of establishing that he met the statutory threshold.

More recently, in Abdulhussein v. Barbeau, 2019 ONSC 966, the plaintiff, Mr. Abdulhussein, was involved in a violent motor vehicle accident. At the time, Mr. Abdulhussein was in high school and had almost completed Grade 11. Mr. Abdulhussein was diagnosed with depression, PTSD, post concussive syndrome and a mild traumatic brain injury. He also suffered from chronic pain. As a result of his injuries, he was unable to complete his final exams, experienced difficulty concentrating and was unable to complete Grade 12.  He had not work or attended school since the accident which took place four years earlier. Both parties called medical experts to determine whether the condition was a result of the accident.

The Court found that there had been a substantial interference, as he was unable to continue and complete high school as a result of his injuries and that his impairment was now substantially interfering with most of his daily activities. The ability to work and finish high school were found to be an important function. The court also found that his constant chronic pain was also important to his future work and was important to the function of the usual activities of daily living. Finally, the court accepted, based on all the medical evidence, that Mr. Abdulhussein’s impairment would continue, without substantial improvement making it permanent and continuous. The motion was dismissed.

In Loureiro v. Brown, 2019 ONSC 2672, liability was admitted. As a result of the motor vehicle accident, Ms. Loureiro injured her right wrist and right shoulder. She had also developed post-traumatic stress disorder, depression and anxiety as a result of the accident. She had no pre-existing physical or psychological health problems. The larger claims made by the plaintiff, Ms. Loureiro, were for housekeeping and home maintenance. Ms. Loureiro was a “traditional Portuguese housewife” who was taking care of all the housework and home maintenance, both inside and outside of the house. Since the accident, her ability to perform these functions had dramatically changed.  She was unable to do most of these functions and some only on a limited basis. It was held that being a homemaker was essentially her full-time job and was what provided meaning and purpose to her life, even though she worked on a part-time basis as a lunchroom supervisor.  

The court noted the presence of inconsistencies in her complaints to her health practitioners as well as gaps in her medical treatment. She was found to be a “poor historian” who was afraid of doctors. It was also found that she had failed to mitigate her damages by not complying with her medication and treatment, specifically counseling. The jury had taken this into consideration in their award. The court found that notwithstanding the inconsistencies, Ms. Loureiro was found to be reliable and credible. The motion was dismissed.

David Capra

Rebecca Duplantie

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