Category: Threshold

The plaintiff was injured in a rear-end motor vehicle accident. Following a nine day trial, the defendant brought a threshold motion while the jury was deliberating. The jury returned its verdict and awarded the plaintiff nothing. Justice Brownstone granted the threshold motion, finding that the plaintiff’s claim for non-pecuniary damages was barred because he did not prove that his injuries fell within the exception set out in s. 267.5(5) of the Insurance Act.

The plaintiff alleged that he suffered chronic pain, headaches, and psychological impairment as a result of the accident. The accident was incredibly minor and there was almost no damage to the vehicles. Justice Brownstone found that the plaintiff’s evidence was neither credible nor reliable. His testimony at trial and his statements to physicians between the time of the accident and trial contained wide variations when describing his symptoms and their causes, and was often inconsistent with medical records. Justice Brownstone did not accept the evidence of the plaintiff’s expert, Dr. Getahun, as it was largely based on the plaintiff’s own reporting, which was not reliable. Justice Brownstone preferred the opinion of the defendant’s expert, Dr. Finkelstein, who had more medical records available to him and based his opinion more on the records that the plaintiff’s reporting.

The plaintiff was injured when she was struck by a TTC bus as a pedestrian. She required emergency surgery to repair a left ankle fracture, and also suffered a mild concussion, fracture of the left tibia, and fractures of the left and right fibular heads. She argued that her injuries led to post-traumatic osteoarthritis, chronic pain, and depression. Following a trial, the jury awarded the plaintiff $175,000 in general damages, subject to a 25% reduction for contributory negligence given that she was crossing the road without the right of way when the accident occurred. On a threshold motion, Justice Sugunasiri accepted on a balance of probabilities that the accident caused the plaintiff permanent and serious impairments of important physical functions. Justice Sugunasiri preferred the evidence of the plaintiff’s orthopedic expert (Dr. Getahun) over that of the defence expert (Dr. Bogoch) in concluding that the orthopedic injuries were permanent and led to restricted range of motion and impaired gait.

The plaintiff sustained soft tissue injuries in a left-turn motor vehicle accident wherein the turning plaintiff was struck by the defendant travelling straight. Following a trial, the jury found the plaintiff 75% at fault, and the defendant 25% at fault. The jury awarded the plaintiff $40,000 in general damages, $147,700 for past loss of income, and $59,900 for future loss of income. On a threshold motion, Justice Gambacorta held that the plaintiff did not meet the threshold. Justice Gambacorta was critical of the plaintiff’s chronic pain expert (Dr. Ghouse) who did not have a full history of the plaintiff’s chronic back pain before the accident. There was also surveillance of the plaintiff doing things that Dr. Ghouse opined she would be unable to do. Justice Gambacorta preferred the evidence of the defence expert (Dr. Kwok) who concluded that the plaintiff’s soft tissue injuries did not lead to any limitations. The plaintiff recovered no damages as a result of the threshold decision and collateral benefit deductions.

The plaintiff was injured in a 2013 motor vehicle accident. She alleged to have chronic pain as a result of her injuries. Following the trial, the jury awarded the plaintiff $40,000.00 in general damages. The jury did not award the plaintiff anything for her claims for lost income, loss of competitive advantage, loss of housekeeping capacity, or healthcare costs. The jury awarded $0.00 to the plaintiff’s mother, who was a Family Law Act claimant. On the defendant’s threshold motion, Justice Coats concluded that the plaintiff did not meet the threshold. The plaintiff’s evidence was found not to be credible. Justice Coats preferred the opinion of Dr. Boucher (chronic pain specialist for the defence) over the opinions of the plaintiff’s experts, Dr. Berbrayer and Dr. Tippin (who relied heavily on the plaintiff’s self-reporting).

The plaintiff had extensive pre-accidence issues with alcoholism, depression, and pain. She suffered soft tissue injuries in an MVA and alleged that all of her subsequent health issues were caused by the accident. At trial, the jury awarded $30,000 in general damages, $2,500 in loss of housekeeping capacity, $3,900 for massage/physiotherapy treatment, and $240 for medication. A further $2,500 was awarded on the FLA claim. The threshold analysis turned on causation. The defence conceded that if the accident was the cause of the plaintiff’s impairments, she would meet the threshold. Justice Beaudoin ultimately concluded that the accident was not the cause of her impairments, and rejected the opinions of her experts (Dr. Ricci, Dr. Suddaby, and Dr. Kevin Smith). Justice Beaudoin found that the plaintiff’s experts relied too heavily on the plaintiff’s self-reporting and either did not have sufficient records or refused to waiver on their opinions in the face of damning clinical notes and records when put to them at trial. Justice Beaudoin accepted the opinion of Dr. Michael Ross, who testified for the defendant, who explained that the plaintiff did not being to decompensate until subsequent life events occurred.

The plaintiff sustained injuries in a motor vehicle accident and commenced an action for damages. Following a multiple-week trial, the jury awarded the plaintiff $15,000 for general damages, $2,500 for past housekeeping, $0 for medication, $3,100 for past treatment, and $2,500 for the FLA claimant’s non-pecuniary claim. The plaintiff had numerous long-standing medical issues before the accident, including chronic neck and back pain and severe headaches. He suffered soft tissue injuries from the accident, and continued to work in his pre-accident employment. He claimed that the accident caused an exacerbation of the pre-accident conditions. Justice Beaudoin preferred the expert evidence of Dr. Devlin (for the defence) over Dr. Kleinman (for the plaintiff), and held that the plaintiff had not proven that his current ailments were a result of the MVA, and therefore he did not meet the threshold.

Following the trial in this matter, which arose from injuries the plaintiff sustained in a motor vehicle accident, Justice Schabas awarded the defendant costs in the sum of $131,980.35. The defendant sought production of plaintiff’s counsel’s adverse costs insurance policy pursuant to Rule 30.92. Counsel for the plaintiff objected on the ground that the plaintiff was not the policy holder, and production would breach solicitor-client privilege. Justice Schabas agreed with counsel for the plaintiff, declined to order production of the policy, and affirmed that where the policyholder is the law firm and not a “party”, Rule 30.02 does not apply.