When does a plaintiff meet the 'threshold'?
'Threshold defensible' is a term often used in the world of insurance defense litigation to refer to a case whereby the alleged injuries claimed by the plaintiff, as a result of a motor vehicle accident ("MVA"), are unlikely to give rise to an award for general damages or health care expenses.
Section 267.5(5) of the Insurance Act alleviates liability for damages for non-pecuniary losses from a defendant in an MVA claim unless the injured person has sustained a "permanent, serious impairment of an important physical, mental, or psychological function".1 Section 267.5(3) provides similar protection with respect to health care expenses.
In order to satisfy the test, the impairment must substantially interfere with either the injured person's ability to continue his or her regular employment, continue training for a career in the field in which the person was training before the incident occured, or carry out most of the usual activities of daily living.2
Once one or more of the criteria are met, it must be established that the impairment is important in that it must be a function necessary to carry out such criteria.3
Finally, for the impairment to be permanent, it must have been continuous since the incident, not expected to substantially improve, continue to meet the criteria of being an impairment, and be of such nature that same would be expected by persons in similar circumstances.4
The plaintiff bears the onus of adducing medical evidence by way of expert opinion in order to satisfy the Court of the aforementioned threshold criteria.5
How are the Ontario Courts Applying the Threshold in 2018?
While the legislation itself is quite comprehensive in setting out what is required to meet the threshold for general damages in MVA claims, the Ontario courts in interpreting the criteria have added colour and complexity to the application of the legislative scheme.
Thus far, in 2018,the Ontario courts have released nine reported threshold decisions: seven from the Superior Court of Ontario and four from the Divisional Court by way of appeal.
Of these nine decisions, four concluded that the plaintiff met the threshold (Mousseau v. Morrison; A.B. v. Waite; Rodrigues v. Purtill; O'Brien v. O'Brien).
In contrast, the other five decisions concluded that either the plaintiff did not prove the existence of a permanent and serious impairment (Saleh v. Nebel; McGrath v. Engler; Debruge v. Arnold; Bodenstien v. Penley) or failed to prove that the established threshold impairment had been caused by the relevant MVA (Grieves v. Parsons).
While the recent threshold decisions have not substantially altered or shaped this area of the law, the interpretation and application of the legislation by the courts is notable in the following respects.
Importance of Reliability and Credibility
The courts have continued to place great weight on the perceived reliability and credibility of the plaintiff and lay witnesses.
In Mousseau v. Morrison, the plaintiff's husband and two former co-workers, in addition to the required physician expert evidence, gave testimony before the Court in support of the plaintiff's injuries being a permanent and serious impairment. The Court found the witnesses to be reliable and credible.6
As a result, the Court rejected the defendant's argument that since the plaintiff had returned to her former employment after the accident and continued to work in said employment for over four years, the impairment could not be found to be "serious"within the context of the threshold criteria.
In rejecting the defendant's argument, the Court found:
[47]...the plaintiff continued to work over the ensuing approximate 4.5 years through her perseverance, fortitude and sheer determination, in furtherance of her admirable work ethic, and that the impairment of the important function is indeed serious.7
On the other hand, when a plaintiff's testimony is found to be self-serving or given with the intent solely to maximize the plaintiff's claim, the Court has found the testimony to be unreliable and not credible, as was the case in Saleh v. Nebel whereby the plaintiff failed to meet the threshold on such basis.8
The reliability and credibility of treating physicians and experts is also important in determining whether a plaintiff's claim meets the threshold.
In Debruge v. Arnold, the Divisional Court upheld the Superior Court's finding that the plaintiff's injuries did not meet the threshold on the basis that the physician produced by the plaintiff failed to give fair and objective evidence, acted as an advocate for the plaintiff, and spoke outside of his expertise as a physician.9
Nonetheless, in A.B. v. Waite, the Court determined a physican's testimony to be credible and reliable despite the fact that the physician did not give an opinion that contained the words "permanent" or "serious" when opining on the plaintiff's impairment.
The Court held that it is not necessary for a physician to use the precise words of the statute or regulation when providing a medical opinion.10
Consideration of Ability to Work
In recent threshold decisions, the courts have taken a close look at the plaintiff's ability to work in his or her chosen occupation, both presently and in the future.
In Rodrigues v. Purtill the plaintiff trained to be a veterinary assistant before the relevant MVA. However, she never obtained a position after completing her training due to pregnancy.
Since the injuries sustained by the plaintiff were such that: (i) she could likely have returned to her pre-accident employment in the customer service industry, (ii) she had completed and did not need to return to veterinary assistant training, and (iii) her injuries did not impact necessary daily activities, it appeared unlikely she would be able to meet the criteria for the impairment to be of an important function under s.4.2(1)2.11
The Court found, however, that "there need only be a settled intention to enter the trade or profession trained for or to return to it".12 Thus, the Court determined the plaintiff's regular or usual employment to be a veterinary assistant.13
The plaintiff, due to her injuries, could not fulfill the necessary duties of being a veterinary assistant. As such, it was found that she met the threshold.
In O'Brien v. O'Brien, the plaintiff developed arthritis in his ankle as a result of an ankle fracture sustained from the relevant MVA. The Court accepted expert testimony that the plaintiff, though able to return to his pre-accident employment, would likely be required to transition to a more sedentary position as the condition of the plaintiff's ankle deteriorated over time.14
For this reason the plaintiff was found to meet the threshold, as the Court stated it was entitled to consider all the evidence including evidence with respect to the plaintiff's future impairment in determining whether the plaintiff meets the threshold.15
Consideration of Jury Verdict
In threshold motions brought in jury trials, it is common practice for courts to follow the Ontario Court of Appeal decision in Kasap v. MacCallum which stands for the proposition that, while a trial judge on a threshold motion is not bound by the verdict of the jury, she or he is entitled to take the jury's verdict into consideration.16
The Court in Bodenstien v. Penley, however, suggested that the trial judge should not undermine the findings of the jury. The jury in this case had awarded no general damages to the plaintiff.
The Court accepted the defendant's position that the issue of whether the plaintiff had met the threshold was moot as per Mandel v. Fakhim, a 2016 Ontario Superior Court decision in which the Court declined to decide the threshold issue on the basis that doing so may undermine the role of the jury as the exclusive finders of fact.17
The Court in Bodenstien determined that it was open to the jury to reject some or all of the plaintiff's evidence and given that the jury did not award general damages, it was not the Court's place to usurp the jury's rejection of the plaintiff's evidence.18
Conclusion
Our survey of reported threshold decisions from 2018 shows a fairly even result. In four decisions, the plaintiff was found to have met the threshold, and, in five decisions, the plaintiff did not meet the threshold.
The credibility of the plaintiff continues to be the key factor. In evaluating a claim, it is important to consider whether the plaintiff is a believeable person and whether there is any evidence which contradicts the plaintiff's evidence on her or his alleged impairment.
Footnotes
[1] Insurance Act, R.S.O. 1990, c. I.8, s.267.5(5).
[2] Insurance Act, R.S.O. 1990, c. I.8, s.267.5(5), Court Proceedings for Automobile Accidents that occur on or after November 1, 1996,O. Reg. 461/96, s.4.2(1)1.
[3] Ibid, s.4.2(1)2.
[4] Supra, note 2 s.4.2(1)3.
[5] Supra, note 2 s.4.3.
[6] Mousseau v. Morrison, 2018 ONSC 1274.
[7] Ibid, para 47.
[8] Saleh v. Nebel, 2018 ONSC 452.
[9] Debruge v. Arnold, 2018 ONSC 2357, para 11.
[10] A.B. v. Waite, 2018 ONSC 1456, para 8.
[11] Rodrigues v. Purtill, 2018 ONSC 3102.
[12] Ibid, para 44.
[13] Ibid.
[14] O'Brien v. O'Brien, 2018 ONSC 4665, para 67.
[15] Ibid, para 73.
[16] Kasap v. MacCallum, [2001] O.J. No. 1719.
[17] Mandel v. Fakhim, 2016 ONSC 6538.
[18] Bodenstein v. Penley, 2018 ONSC 116, para 41.
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