Canada: Threshold Decision Case: "Bella Gyorffy v. Marion Drury"

This recent decision of Justice Lemon of the Ontario Superior Court, dated June 8, 2010, signals the importance of adducing evidence from lay witnesses where a plaintiff is seeking to establish that their accident related injuries meet the statutory threshold within the meaning of Bill 198.

In this decision the plaintiff's failure to adduce evidence from a lay witness, to corroborate a change in the plaintiff's function, was fatal even where the plaintiff had been able to satisfy the Court that their accident related injuries reflected a permanent serious impairment of an important physical, mental or psychological function. The finding that the plaintiff failed to satisfy the threshold was based entirely on the fact that the plaintiff had failed to satisfy the evidentiary burden under section 4.3(5) of Bill 198 more properly known as Regulation 381/03 ("the Regulation").

The Facts:

The plaintiff was employed as a heavy truck technician. After the motor vehicle accident the plaintiff was off work for seven weeks after which he returned to work on modified duties. The plaintiff eventually resumed his usual duties although a helper was hired to assist him with some of the heavier lifting involved in his job.

As a result of the motor vehicle accident the plaintiff sustained injuries that were consistent with whiplash associated disorder superimposed on a pre-existing degenerative disc disease in the cervical and lumbar spine.

All of the physicians who testified confirmed that the plaintiff's injuries were caused by the motor vehicle collision and that his symptoms were continuous from the date of the accident and they were permanent.

The Decision:

In accordance with section 4.2(1)1 of the Regulation, the Court was satisfied that the accident related impairments substantially interfered with most of the plaintiff's usual activities of his daily living, the back and neck injuries reflected impairments of important functions and the medical evidence confirmed that the plaintiff's injury was permanent.

Justice Lemon's decision turned on the interpretation of Section 4.3 of the Regulation:

Importantly, the decision highlights the fact that pursuant to section 4.3(5) of the Regulation the plaintiff shall adduce evidence in addition to that of a physician, to corroborate the change in function alleged to be a permanent serious impairment of an important physical or psychological function.

Interestingly, in this decision the Court indicated that it did not draw any adverse inference from the fact that neither the plaintiff's wife, daughter nor his co-workers gave evidence to corroborate the plaintiff's condition prior to the accident and concluded that the plaintiff had a credible claim. However, with no family or friends to corroborate his change in condition the court concluded that, "The legislature, in its wisdom, has determined that conditions which are not permanent, serious and important can be excluded on the basis of the detailed definitions of those terms. No doubt, the legislature can also exclude those claims on the basis of evidentiary thresholds. Accordingly, the claim must be dismissed."

This decision appears to reflect the Legislature's intent to "tighten up the threshold by reducing the number of litigants who sue" as a result of motor vehicle accidents as noted in the recent decisions of Sabourin v. Dominion of Canada General Insurance Co. (2009) and Sherman v. Guckelsberger (2008). We will watch closely to see if this most recent decision is appealed and for future guidance from the Court of Appeal in relation to this important issue.

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