Threshold test In Motor Vehicle Cases – Ontario Ottawa Car Accident Lawyers
In the recent decision of the Ontario Superior Court of Justice, namely Malfara v. Vukojevic, the Court explained factors required for a Plaintiff to meet “threshold” in a motor vehicle accident.
The factors identified included the following:
Permanent does not have to mean forever. However, there must be a medical opinion to support that there is no definitive end.
In the event there is evidence of improvement in the medical condition(s) and the Plaintiff was able to return to work, with little or no restrictions, this makes it more difficult for the Plaintiff to prove meeting the onus of proof regarding threshold.
The test of whether the impaired function is "important" is a qualitative test.
The degree of impairment on daily life must go beyond tolerable.
At trial, the Defendant brought what is called a "threshold motion": this motion seeks a court declaration that a plaintiff’s claim for non-pecuniary loss (pain and suffering) is barred on the basis that their injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 ("the Act") and the regulations.
The factors/principles considered in a threshold motion was set in a case called Meyer v. Bright.
The onus of proof to establish that the plaintiff’s impairments meet the statutory exceptions or "threshold" rests with the Plaintiff.
Consideration of a three part inquiry follows:
1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired important?
3. If yes, is the impairment of the important function serious?
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, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
Other principles applied on a threshold motion are:
The word "permanent" does not necessarily mean strictly forever, until death. Permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit.
Factors used to consider permanent include whether the plaintiff was improving and would continue to improve; functional abilities showing no significant impairment; returning to pre-accident employment; medical examinations showing full range of motion; expert evidence demonstrating that recurring pain was not caused by the original injury; and pre-and post-accident physical and psychological stressors that may have contributed to the chronic pain that may have had little to do with the accident.
Consideration is also given to which functions are important to the injured person. Here, the Court will consider that the test of whether the impaired function is "important" is a qualitative test and to be "serious" the impairment must:
I. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite recent 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
iii. accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her training, or
iv. substantially interfere with most of the usual activities of daily living, considering the person’s age.
Also, a determination of whether an impairment of an important bodily function is "serious" will relate to the seriousness of the impairment to the person and not to the injury itself.
The degree of impairment on daily life must go beyond tolerable:
In the end, all threshold determinations are made on a case by case basis. In motor vehicle / car accident cases, threshold is usually an issue raised and the injured person requires an experience injury lawyer to assist in obtaining the proper medical evidence to substantiate meeting the “threshold”.
If you or someone you know has been injured in a car accident in Ottawa or anywhere in Ontario, we can help. We offer free consultations and work on a we get paid only if our clients get paid (contingency fee basis) – no money down.
Quinn Thiele Mineault Grodzki LLP
Personal Injury Lawyers – Mediators
310 O’Connor Street
Ottawa, ON K2P 1V8
Tel: (613) 315-4878