Category: Threshold

The 65 year old plaintiff suffered chronic pain and headaches as a result of a motor vehicle accident. The jury awarded $62,500 for general damages; $0 for past and future loss of income; $2,500 for out of pocket expenses; and $23,400 for future healthcare costs. On the threshold motion, Justice Mitchell held that the plaintiff met the threshold. Justice Mitchell found the plaintiff credible and accepted that she only continued to work because of the availability of modified duties. Justice Mitchell accepted the plaintiff expert’s evidence that the plaintiff continued to suffer chronic pain which was unlikely to improve, and that she suffered serious impairment of her left arm. Justice Mitchell deducted $1,500 from the award of future healthcare costs, which was the amount paid for housekeeping in the accident benefits settlement. However, the $1,861.35 paid in past medical benefits in the accident benefits claim was not deducted from the tort award because no evidence was led regarding that amount during trial.

The plaintiff alleged to have sustained damages as a result of a motor vehicle accident. The defendant admitted liability but argued that the minor collision could not have caused the lasting injuries alleged by the plaintiff. After a two week trial, the jury awarded the plaintiff $10,000 for general damages and $14,000 for past loss of income. On the threshold motion, Justice Dow held that the plaintiff did not meet the threshold. Justice Dow preferred the evidence of the defendant’s assessors over the plaintiffs and was persuaded by surveillance evidence which captured the plaintiff without any apparent restrictions on 18 occasions.

The plaintiff was injured in a four-vehicle accident and commenced an action for damages against the drivers/owners of the vehicles that struck him. Following a nine day trial, the jury awarded the plaintiff nothing. The plaintiff had been involved in three subsequent motor vehicle accidents. The experts he called had not provided treatment prior to the fourth of the four accidents. In his decision on threshold, Justice Sanfilippo did not accept the experts’ evidence regarding causation. He also relied on common sense and took into consideration the scope of the various accidents. The plaintiff claimed the subject “fender bender” caused all of his ongoing pain, while the subsequent accidents (which caused significant property damage and hospital stays) did not. Justice Sanfilippo rejected this theory. The plaintiff was held not to meet the threshold.

The plaintiff sustained soft tissue injuries as a result of a rear-end motor vehicle accident and sued the defendants for damages. She had a history of pre-existing pain issues. Following a four week trial, the jury awarded the plaintiff $35,000 in general damages and $20,000 in past loss of income. No damages were awarded for future loss of income or future care costs. On the defendant’s threshold motion, Justice Schabas held that the plaintiff did not meet threshold. He reasoned that her impairments arising from the motor vehicle accident were not permanent. Her ongoing pain was pre-existing and not caused by the accident.

The plaintiff was involved in a motor vehicle accident and sued the defendant for damages arising from personal injuries. At trial, the jury awarded the plaintiff $3,000 in general damages, and nothing for past or future lost income, future care expenses, or housekeeping services. The trial judge concluded that he did not need to make a threshold determination because operation of the applicable statutory deductibles precluded the plaintiff from recovering any damages. The Divisional Court held that the trial judge erred in failing to rule on the issue of threshold. A threshold determination is mandatory under s. 267.5(15) of the Insurance Act, even if there is no possibility that the plaintiff will recover damages based on the jury award. The Divisional Court did not order a new trial.

The plaintiff was involved in a motor vehicle accident. Defence medical experts opined that the plaintiff’s significant pain in his shoulder, neck, and chest continuing eight years post-accident was unlikely to improve. The plaintiff called no medical evidence at trial. The jury assessed the plaintiff’s damages for non-pecuniary loss at $45,000. Justice MacLeod noted that pain is subjective and what is disabling for one person may not be for another. Impairment must be assessed on a case by case basis with focus on the effect of the injury on the individual plaintiff and not the seriousness of the injury itself. The plaintiff’s evidence supported that he is able to go about most of his usual activities of daily living, albeit with pain for some activities. Justice MacLeod found that the plaintiff’s evidence supported some degree of ongoing impairment; however it did not support a finding that the impairment interfered with “most” of the activities of daily living. As such, the plaintiff did not meet the statutory threshold.

The plaintiff was asleep in a car in a parking lot when he was rear ended by the defendant. At the commencement of trial, the only remaining issue was the plaintiff’s entitlement to and quantum of general damages. The defendant brought a threshold motion. The plaintiff did not serve any expert medical reports. He intended to rely on reports and records of various treating doctors and assessors and his own viva voce evidence. While the court accepted that the plaintiff had the right to rely on his own evidence in support of his claim that he sustained a threshold injury, this did not water down or relieve him from compliance with the requirements under s. 4(3) of O Reg 461/96. Further, he could not give his own opinion with respect to whether his impairment was permanent or whether it was sustained as a result of the subject accident. Following review of the medical records on which the plaintiff relied, Justice Williams held that the plaintiff did not have any evidence of permanency of his impairment, or evidence that any impairment was sustained as the result of use or operation of an automobile. Justice Williams allowed the defendant’s motion and dismissed the plaintiff’s claim for general damages. As a result, the action was also dismissed.

The plaintiff was 21 years of age when she was involved in a motor vehicle accident. She sustained soft tissue injuries, and as of the time of trial had persistent pain in her right shoulder and neck with tingling in her hands and arms. The defendants denied that the plaintiff’s ongoing symptoms were caused by the accident. The plaintiff’s orthopedic surgeon expert witness acknowledged at the conclusion of his testimony that he could not say that the plaintiff’s subjectively reported symptoms were caused by the accident. Justice Abrams criticized the plaintiff’s other expert witness, a psychologist, for failing to report either in her report or during her testimony (until pressed on cross examination) important inconsistencies in the medical record that contradicted the plaintiff’s subjective complaints. Justice Abrams also noted credibility issues arising from the plaintiff’s displays of embellished pain behaviour during trial, which he viewed to be out of proportion with her subjective complaints and at odds with her past conduct in medical examinations. Justice Abrams concluded on the evidence that as a result of the accident, the plaintiff sustained a whiplash injury of approximately eight weeks duration. She did not meet the statutory threshold.