The plaintiff in an action further to a motor vehicle accident has the onus of establishing, on the balance of probabilities, that his or her injuries meet the statutory threshold as set out by the Insurance Act, R.S.O. 1990, c.I.8 (hereinafter the “Act”) and Regulation 381/03 (hereinafter the “Regulation”) in order to collect non-pecuniary damages from a protected defendant.

In order for the plaintiff to meet the threshold, he or she must have suffered a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function in accordance with section 267.5 of the Act. The Regulation defines a permanent serious impairment of an important physical, mental or psychological function and describes the evidence that must be adduced in order to establish that the threshold has been met. If the plaintiff fails to convince the judge that his or her injuries meet the statutory threshold, the defendant will be protected from paying the plaintiff’s non-pecuniary damages.

The leading authority on the interpretation of the statutory threshold remains the Ontario Court of Appeal’s decision in Meyer v. Bright, 1993 CANLII 3389. In that decision, the Court set out three questions to be posed when considering whether a plaintiff meets the threshold. These questions are as follows:

1. Has the injured person sustained a permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If yes, is the impairment of the important function serious?

There have been many cases over the years dealing with whether or not plaintiffs meet the threshold. This article will focus primarily on three successful threshold motions from 2012 and will explore the commonalities between the cases in an attempt to determine what is required by plaintiffs and defendants on threshold motions.

THRESHOLD CASE LAW 2012

Iannarella v. Corbett et al., 2012 ONSC 2253 (CanLII)

The plaintiff in this matter was employed as a supervisor and fork lift operator in a car parts manufacturing company at the time of the motor vehicle accident. He suffered from a variety of ailments prior to the accident and his duties at work had already been modified to accommodate him. However, it was the plaintiff’s position that he was completely disabled following the accident and that he remained unable to work at the time of trial. The trial was heard by a judge and jury and the defendant brought a threshold motion while the jury was deliberating on damages asking the Court to determine whether or not the plaintiff’s claim was barred by the threshold.

Following the accident, the plaintiff complained of neck pain and left shoulder pain as well as restricted mobility of the left arm and shoulder. At the time of trial, the neck injury had resolved but the plaintiff continued to complain of shoulder pain and claimed to suffer from chronic pain syndrome. He underwent a surgical intervention on his left shoulder less than 8 months prior to trial and the evidence showed that most patients experience improvements up to two years following surgery. The evidence also indicated that the operation was successful and that the plaintiff demonstrated good range of motion and resolution of pain. The plaintiff was instructed to return to see his surgeon if the pain persisted but he did not return.

Justice Moore found that, when looked at as a whole, the medical evidence indicated that the plaintiff suffered from a pre-existing but asymptomatic degenerative condition of the left shoulder which was aggravated by the motor vehicle accident. In addition to the shoulder problems, two medical professionals had diagnosed the plaintiff with chronic pain syndrome.

Justice Moore held that the plaintiff did not make an impressive or credible witness. He provided inconsistent testimony and tended to overstate his limitations and understate his abilities. The defence had obtained surveillance of the plaintiff which demonstrated normal arm and shoulder use. Justice Moore concluded that the plaintiff was mis-diagnosed with chronic pain as the diagnosis was based solely on information provided by the plaintiff.

Although he was employed at the time of the accident, the plaintiff would have been laid off less than a year following the accident as his employer moved the manufacturing operations out of the country. Justice Moore found that it was unlikely that the plaintiff would have continued to work until the age of 65 regardless of the motor vehicle accident. Therefore, despite finding that an aggravation of the plaintiff’s shoulder injury was caused by the motor vehicle accident, the Court held that it was unlikely to be the cause of his inability to work.

Justice Moore preferred the evidence of the expert witnesses, the surveillance evidence and the evidence from cross-examination as to the plaintiff’s actual functioning after the accident over the testimony of the plaintiff. The surveillance evidence was not consistent with the plaintiff’s description of his abilities and it put into question the credibility of the plaintiff’s family.

The plaintiff’s left shoulder injury did not meet the statutory threshold as it did not impair an important physical function on a permanent basis. Furthermore, it was held that the plaintiff did not establish a permanent impairment of a psychological function as his pain complaints and psychological issues were likely treatable. The plaintiff’s condition was likely to continue improving following the trial of the action and the evidence presented did not support his claim of having suffered a permanent serious impairment to an important physical or psychological function.

Smith v. Declute et al., 2012 ONSC 3308 (CanLII)

The plaintiff in this action was 25 years of age at the time of the motor vehicle accident. He lived with his parents and had been working as a cook prior to the accident. The plaintiff had been involved in a number of fights further to which he required medical treatment and had been a regular consumer of marijuana and alcohol prior to the motor vehicle accident. The plaintiff had also been very active in sports and had enjoyed camping on a regular basis. He helped his parents around the house with yard work and household chores. He did not have any pre-existing neck or emotional problems. The trial of this action was heard by Justice Wilson and a jury. Counsel for the defendant brought a threshold motion asking Justice Wilson to determine whether or not the plaintiff’s injuries met the statutory threshold when the jury retired to consider its verdict.

The plaintiff was taken to the hospital by ambulance following the accident. He sustained a fractured rib and strains to his neck and back. He was assessed and released from the hospital on the same day and did not seek further medical treatment until 12 days later when he saw his family doctor. The plaintiff’s doctor advised him to obtain physiotherapy and to remain off work for six to eight weeks. The plaintiff was also prescribed pain medication.

It was the plaintiff’s evidence that his neck and rib pain improved during the six months following the accident but that his low back pain continued on a constant basis and at times affected his right leg. He also became depressed and was prescribed anti-depressants. The medical evidence did not demonstrate any abnormalities of the low back but the plaintiff was diagnosed with chronic pain syndrome by a psychiatrist in 2007. The psychiatrist recommended that the plaintiff obtain treatment and cease his consumption of marijuana.

The plaintiff’s counsel referred him to another psychiatrist in 2010 who diagnosed him with a chronic adjustment disorder and a chronic pain disorder further to the motor vehicle accident. The defendant retained a psychiatrist who found that the plaintiff’s biggest problem was his drug use which pre-dated the accident.

The plaintiff did not return to his pre-accident employment as a cook until early 2009 (three years post-accident) and blamed this on ongoing low back problems. However, he had been working as a cook at various locations since that time. The plaintiff married in 2010 and his wife testified at trial that he was unable to engage in various sports, camping or assist with household duties since the accident.

Justice Wilson found that the plaintiff was not a reliable historian or an impressive witness. There were inconsistencies in his evidence and the evidence found in some of the medical records. The plaintiff was found to be argumentative and hostile and it was noted that he had undertaken virtually no treatment in the four years leading up to the trial. In addition, the plaintiff was, at the time of trial, working in the most remunerative position that he had ever held and was able to work all of the hours that were offered to him.

Justice Wilson held that that the plaintiff was not candid with his doctors and did not comply with their recommendations. Furthermore, the defence had obtained surveillance of the plaintiff which was played at trial and showed him walking for over an hour without any visible limitations and throwing rocks in a park. Lastly, Justice Wilson questioned whether the plaintiff’s depressive-like symptoms were due to his excessive drug use and alcohol consumption.

Justice Wilson attached very little weight to the opinion of the psychiatrist who found that the plaintiff suffered from chronic adjustment disorder and a chronic pain disorder further to the motor vehicle accident as she noted that the plaintiff had never met the psychiatrist in person and that the testing of the plaintiff was conducted by a student who worked for the psychiatrist. In addition, the psychiatrist was not aware of the plaintiff’s recreational drug use.

In short, the Judge found that the plaintiff was not credible or consistent. In addition, she did not believe the plaintiff’s witnesses who stated that he was not able to do the activities that he used to engage in prior to the accident in light of his ability to work and the surveillance obtained by the defence. Furthermore, the plaintiff failed to convince the Court that he was suffering from depression due to the motor vehicle accident. Justice Wilson held that the plaintiff failed to establish on the balance of probabilities that he met the statutory threshold. Therefore, the threshold motion of the defendant was granted.

Dahrouj v. Aduvala, 2012 ONSC 4090 (CanLII)

The plaintiff in this action was 48 years old at the time of the accident and was a homemaker and single parent of two teenage children who lived with her. She was on social assistance at the time of the accident. The trial was heard by Regional Senior Judge Hackland and a jury. The defendant brought a threshold motion after all of the evidence was heard and while the jury was deliberating.

The motor vehicle accident in which the plaintiff was involved was described by Justice Hackland as a relatively minor rear end collision. The plaintiff’s fender was dented and her vehicle was pushed into the vehicle in front of her causing minor damage. She was able to exit the vehicle, walk around at the scene and speak to the police and others in the area. She drove herself to her family doctor’s office following the accident. In the weeks and months following the accident, the plaintiff began to complain of whiplash type injuries. The plaintiff suffered from pre-existing head, neck and back pain which were similar to her post accident complaints.

The plaintiff claimed to have developed chronic pain syndrome as a result of the accident and complained of pain in her neck, left arm, low back and right leg and knee. She also complained of headaches, difficulties sleeping, fatigue and depression and anxiety. The plaintiff testified that she had to reduce her social activities as a result of these injuries and that her daughter had taken over much of the heavier housework and cooking.

Although she was under the care of her family doctor, the plaintiff never participated in a pain clinic, nor did she receive any psychiatric assessment or intervention. In addition, the doctor who diagnosed her with chronic pain syndrome did so based on one 45 minute interview of the plaintiff and a review of her medical records. Justice Hackland preferred the evidence of the doctor retained by the defendant who had met with the plaintiff for approximately two hours and reviewed her medical records and found that the plaintiff’s accident related injuries had long since cleared up.

The defence obtained surveillance of the plaintiff which showed that she was capable of vigorous and sustained activity including stretching and lifting. These were the same activities that the plaintiff alleged she was no longer able to complete and which restricted her function as a homemaker. Justice Hackland found the surveillance to be devastating to the plaintiff’s credibility.

The jury did not award the plaintiff any sums for future housekeeping services but did award $32,000 for past housekeeping services and $50,000 (gross) for general damages. Justice Hackland considered the jury’s denial of granting future housekeeping services to the plaintiff as a factor supporting his finding that she did not meet the statutory threshold. He found that the plaintiff failed to establish, on the balance of probabilities that her case fell within the exception set out in the Act. As such, the jury’s award of general damages was disallowed.

LESSONS TO BE LEARNED FROM THE CASE LAW

Although threshold motions will be decided based on the facts of each case, many similarities can be found in the three cases set out above. For example, in all three decisions, the trial judges questioned the credibility of the plaintiffs and found that they did not make impressive witnesses. The plaintiffs were found to have overstated their limitations and understated their abilities in light of the evidence provided.

Also in all three cases, the defendants had obtained video surveillance of the plaintiffs which demonstrated their abilities and contradicted their evidence. A very important portion of the evidence which led the judges to question the credibility of the plaintiffs was the surveillance evidence presented by the defendants. Therefore, video surveillance which demonstrates the plaintiffs’ abilities when they do not know they are being watched can be very important to a threshold motion.

In addition, all three judges were reluctant to accept the opinions of the plaintiffs’ experts who had not either been properly informed as to the plaintiffs’ history or who had not spent sufficient time with the plaintiffs prior to coming to a diagnosis. Plaintiffs should therefore ensure that their medical experts have sufficient basis for their findings and that they are very familiar with each plaintiff’s specific situation.

All three plaintiffs also had pre-existing conditions which the courts held impacted their post-accident status. Whether it is the plaintiff’s pre-accident drug use as in the Smith decision or pre-accident medical issues as in the Iannarella and Declute cases, the plaintiff’s pre-accident status is clearly an important consideration on threshold motions.

It is also important for the plaintiff to seek ongoing treatment and follow the advice of their health care providers when claiming to suffer from a permanent and serious impairment. As is shown in the cases above, failure to do so can have an impact on a judge’s opinion as to whether or not the plaintiff’s alleged injuries meet the threshold. Courts are reluctant to find that a plaintiff has suffered a permanent serious impairment when he or she is not undergoing any sort of continual treatment leading up to trial.

Furthermore, the plaintiff must be able to establish that they are unable to complete their pre-accident activities due to the issues caused by the motor vehicle accident and ensure that their injuries have hit a plateau at the time of trial.

Although no two threshold motions are identical, the cases set out above do provide some guidance as to what is needed to be successful as a plaintiff or a defendant.