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What evidence is needed on meeting threshold in car accident cases?

What evidence is required in motor vehicle threshold cases?

Ottawa Ontario Car Accident Blog 

The Main Test

Has the injured person (plaintiff) sustained a permanent serious impairment of an important physical function within the meaning of Section 267.5(5) of the Insurance Act. This is known as the Insurance Threshold Test for Motor Vehicle Claims in Ontario.
Recent Case - Ottawa Car Accident

In Vancsody v. Wrightman, 2012 CarswellOnt 16906 (S.C.J), released December 5, 2012, The Honourable Mr. Justice J.R. MacKinnon delivered a decision explaining what evidence is required to meet the Bill 198 threshold.

The Law


Under 198, the threshold wording is as follows:
Section 267.5 (5) of the Insurance Act, R.S.O. 1990 c. I.8. provides:

Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any other person present at the incident are not liable in an action in Ontario for damages for nonpecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or sustained,
 

(a) permanent serious disfigurement; or
 

(b) permanent serious impairment of an important physical, mental or psychological function.

BILL 198
Regulation 381/03 reads as follows:

Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
 

4.1 For the purposes of section 267.5 of the Act,


"permanent serious impairment of an important physical, mental or psychological function" means impairment of a person that meets the criteria set out in section 4.2.
O. Reg. 381/03, s. 1.

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria’s are met:

1. The impairment must,

i. substantially interfere with the person's ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment,

ii. substantially interfere with the person's ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person's age.

 

2. For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person's regular or usual employment, taking into account reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person's training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person's age.

 

3. For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, or

iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. O. Reg. 381/03, s. 1.

This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.

 

In Vancsody v. Wrightman, the defendant moved after trial seeking an order declaring that the plaintiff had not sustained a permanent serious impairment of an important physical function within the meaning of Section 267.5(5) of the Insurance Act. The Honourable Mr. Justice MacKinnon outlined the amendments that Bill 198 made to Regulation 381/03 and directed the parties to the definition of permanent serious impairment to an important physical function. In addition, he also discussed what evidence is required, given the amendments, to prove that an injured person meets the statutory threshold.

The Honourable Mr. Justice MacKinnon wrote: 

For the impairment of a person to be permanent it must first have been continuous since the accident, and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve. It must continue to meet the criteria of serious or important, and must be of a nature that is expected to continue without substantial improvement which sustained by persons in reasonable circumstances.
The exact requirements of the medical evidence referred to above are found in section 4.3 of the Regulation which states:

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person's claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act. O. Reg. 381/03, s. 1.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person. O. Reg. 381/ 03, s. 1.

(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. O. Reg. 381/03, s. 1.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. O. Reg. 381/03, s. 1.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function. O. Reg. 381/03, s. 1.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.

The Honourable Mr. Justice MacKinnon summarized the required evidence as follows:

 a) evidence from a doctor about the impairment, the permanence of the impairments, the specific function that is impaired, and the importance of that function to that person;
b) the medical evidence must be from a doctor with training and experience in the assessment or treatment of the alleged impairment;
c) the evidence of the doctor shall be based on generally accepted guidelines or standards of practice;
d) the evidence of the doctor shall include a conclusion that the impairment is directly or indirectly sustained as a result of the accident, and
e) in addition to the evidence of the physician, the plaintiff shall adduce evidence that corroborates the changes in function that are alleged to be permanent serious impairments of an important physical function.
This evidence is mandatory under the regulation and a plaintiff’s claim cannot succeed without it.

Is permanent and ongoing pain sufficient to meet the threshold?

It is clear that an injured person (plaintiff) must suffer more than just ongoing pain to recover damages.

In Vancsody v. Wrightman, the Court said:

A plaintiff must do more than simply experience pain in order to bring himself within the exception to the threshold wording on the test provided. Injured Ontarians are required to bear some interference with their enjoyment of life without being able to sue for it.  Tolerable symptoms do not bring a plaintiff within the exceptions in Section 267.5(5) of the Act. If a plaintiff is able to function well despite his symptoms, then the plaintiff does not come within the exception and the defendant will have been successful on the motion.  

I have no choice but to find that the plaintiff has not proven to the extent mandated by the Regulations that his alleged injuries or impairments was caused by the accident, and that his alleged impairments are permanent, and that his alleged impairments are not amenable to treatment or accommodation, and that he is unable to perform most of the activities of daily living.

I have already noted that, first, Mr. Vanscody failed to adduce evidence from a physician to support a conclusion of the threshold injury as required by the Regulation, and in addition, that his credibility was significantly undermined such that it is not demonstrated to me on this motion that the accident caused him the injuries such that they can be characterized as a serious permanent impairment of an important physical function.

Accordingly, I find that the defendant is not liable to the plaintiffs for non-pecuniary loss, including damages for non-pecuniary loss under the Family Law Act for bodily injury arising from the accident on December the 3rd, 2003 by virtue of Section 267.5(5) of the Insurance Act.

Obtaining the necessary evidence required to meet the threshold in serious motor vehicle accident cases requires the assistance of experienced personal injury lawyers. Motor vehicle law is an extremely complex area of law and our Ottawa injury and car accident lawyers are experience in dealing with motor vehicle accident cases and know what evidence is required to meet the threshold.

Ottawa car accident lawyers
Quinn Thiele Mineault Grodzki LLP
310 O’Connor Street
Ottawa, ON K2P 1V8
613-315-4878 (Marc Nicholas Quinn)