Hamilton Law Association
16th Annual Advocacy Conference
Update On the
Statutory Threshold:
Themes and Trends
December 1, 2016
Bevin Shores
Caroline Mowat
Update on the Statutory Threshold: Themes and Trends
Introduction ................................................................................................................... 3
Threshold Decisions: Cases That Did Not Pass the Threshold .................................... 5
G.W. v Rawlins................................................................................................................................... 5
Valentine v Rodriguez-Elizalde .................................................................................................... 7
Threshold Decisions: Cases That Passed the Threshold .............................................. 9
Bruff-Murphy v Gunawardena ..................................................................................................... 9
Dimopoulos v Mustafa.................................................................................................................. 11
Parra v. Laczko ................................................................................................................................ 12
Corbett v Odorico, .......................................................................................................................... 14
Bishop-Gittens v Lim ..................................................................................................................... 16
Nkunda-Batware v Zhou ............................................................................................................. 18
Arteaga v Poirer .............................................................................................................................. 20
Mamado v Fridson ......................................................................................................................... 22
Thomas v. Pin to Pin Express Inc., ............................................................................................. 24
Threshold Decisions: Threshold Decision Moot......................................................... 25
Mandel v Fakhim ............................................................................................................................ 25
Threshold Decisions: Appeals ..................................................................................... 27
Ayub v Sun........................................................................................................................................ 27
Jugmohan v Royle .......................................................................................................................... 28
Comments: Themes and Trends.................................................................................. 29
Credibility ......................................................................................................................................... 29
Expert Witnesses ............................................................................................................................ 30
Court Location ................................................................................................................................ 33
Jury Verdict ...................................................................................................................................... 34
Other Trends ................................................................................................................................... 36
Conclusion: Final Thoughts ........................................................................................................ 38
Appendix: Case Chart .................................................................................................. 40
2
Introduction
The past year has seen several reported threshold1 decisions, which are always of interest
to the injury and insurance bars.
This paper provides synopses of these decisions, followed by comments on some trends
that may be gleaned from.
Eleven threshold decisions are reviewed in this paper, 2 plus one decision in which the
trial Judge declined to make a threshold finding.3 Of these, nine determined that the
plaintiff passed the threshold.4 However, it cannot necessarily be said that this represents
a trend in and of itself. It must be borne in mind that not every trial of a motor vehicle
claim involves a threshold motion; therefore, the cases discussed herein are not
representative of all motor vehicle claims. Nor is there any indication in any of the cases
of a particular change in judges’ approach to threshold determinations, with the possible
1
The Insurance Act, RSO 1990 c I.8 [Insurance Act], s 267.5(5) provides that the owner of an automobile,
the occupants of an automobile and any person present at the incident are not liable in an action in
Ontario for damages for non-pecuniary 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 has sustained either a permanent serious disfigurement or permanent serious
impairment of an important physical, mental or psychological function. This provision is commonly
referred to as the “threshold” and will be referred to as such in this paper. For Bill 198 cases (accidents on
or after October 1, 2003) the criteria set forth in sections 4.1 and 4.2 of O Reg 461/96 further defining the
permanent serious and important components of the threshold tests apply as well.
2
In preparing this paper, we attempted to identify and consider all threshold decisions reported in 2016
to date.
3
We have also briefly discussed two appeal decisions concerning threshold findings.
4
Proving a threshold impairment as a result of injuries sustained in a motor vehicle accident is colloquially
shortened to “passing the threshold.”
3
exception of the Mandel v Fakhim decision, in which the trial Judge found that a jury
verdict resulting in net nil recovery to the plaintiff rendered the threshold issue moot.5
What is clearer is that chronic pain cases continue to dominate threshold determinations,
and therefore credibility remains paramount. However, the decisions reviewed revealed
a relatively balanced analysis of the evidence as a whole, including expert evidence,
evidence of lay witnesses, and where the consistencies within the evidence could be found.
Another particularly notable feature of the decisions reviewed is the number of cases in
which the plaintiff was found to pass the threshold, but the jury award of non-pecuniary
general damages6 was near or below the amount of the statutory deductible.7
Other themes such as which court the trial was heard in, causation arguments,
surveillance, and whether the plaintiff returned to work were factors in some of the
decisions reviewed, but played a less prevalent role overall.
5
2016 ONSC 6538 at para 18.
6
While not all general damages compensate for non-pecuniary losses, for the purposes of this paper the
phrase “general damages” will refer to non-pecuniary general damages for pain and suffering unless
stated otherwise.
7
Prior to August 1, 2015, the Insurance Act provided for a reduction of $30,000 if a plaintiff’s general
damages assessed at $100,000 or less. Effective August 1, 2015, section 5.1 of O Reg 461/96 prescribed
that the amount of the reduction is $36,540.00 until December 31, 2015, with amounts thereafter to be
published (currently $36,905.40), and applies to damages assessed at or below $121,799.00 until
December 31, 2015, with amounts thereafter to be published (currently $123,016.99); section 267.5(8.3).
These reductions are commonly referred to as the “deductible.” In 2015, judicial authority was split as to
whether the changes to the deductible apply to accidents that took place before August 1, 2015: Cobb v
Long Estate, 2015 ONSC 6799 (the changes do not apply retrospectively); Vickers v Palacious, 2015
ONSC 7647 [Vickers] (the changes do apply retrospectively). As discussed herein, decisions released in
2016 have followed Vickers in accepting that the changes apply retrospectively.
4
Threshold Decisions: Cases That Did Not Pass the Threshold
G.W. v Rawlins, 2016 ONSC 7058
A credible plaintiff with evidence from several expert witnesses did not prove a threshold
impairment when the evidence presents a contradictory picture
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
September 20, 2009 (Bill 198)
Brampton
Le May J.
January 27, 2016
Female, age not stated, not employed at time of accident,
return to work in pre-accident job field
No
The plaintiff alleged low back pain, neck pain, upper-right back pain, hip pain, headaches,
anxiety and depression as well as chronic pain disorder, somatic symptom disorder, major
depressive disorder, and driver and passenger phobia. She had a difficult personal life as
well as obesity and pain complaints that predated the accident.
Le May J. outlined a number of problems with the plaintiff’s medical evidence, including
his observation that the plaintiff’s experts “did not agree on all of the diagnoses” and “did
not seem to know about all of the post-accident problems that the Plaintiff had.”9 Le May
J. commented that “often there is strength in numbers, but that was not the case here”10
and preferred the evidence of the defence expert, physiatrist Dr. Rajka Soric, who he
found “provides a clear picture of an alternate theory of what happened, which is that the
8
[“Rawlins”].
9
Ibid at para 42.
10
Ibid at para 41.
5
Plaintiff had suffered a myofascial strain as a result of the MVA, and that this strain had
resolved.”11
The jury awarded $10,000.00 for general damages12, nothing for past and future
economic loss, and nothing for future housekeeping expenses. Le May J. analyzed the case
law concerning the effect of a jury verdict on a threshold determination at some length,13
observing that the jury’s verdict “was completely contrary to the Plaintiff’s argument, and
almost precisely what had been suggested to [sic] the Defendant”14 and that he would
“take this verdict into account as one of the factors in exercising my discretion on the
threshold motion.”15
In the result, Le May J. concluded that the evidence supported the defendant’s position.
He emphasised that he did not feel this was a case where the plaintiff had limited
credibility; while the plaintiff “genuinely believes that she was injured as a result of the
car accident [, s]he has just not proven her belief.”16
Also of note, Le May J also commented that although he had reluctantly agreed that the
threshold motion was not moot in this case due to potential costs implications, “these
11
Ibid at para 44.
12
All references to damages awards in this paper are gross of any statutory deductible unless stated
otherwise.
13
Ibid at paras 8-23.
14
Ibid at para 21.
15
Ibid at para 23.
16
Ibid at para 46.
6
motions generally appear to me to be moot when the jury returns a verdict such as the
one in this case.”17
Valentine v Rodriguez-Elizalde, 2016 ONSC 354018
A plaintiff who returned to physically demanding employment and was able to perform
majority of housekeeping tasks did not prove the seriousness component of the threshold
test
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
January 21, 2011 (Bill 198)
Toronto
Firestone J.
June 2, 2016
Female, age 17 at accident, high school student employed at
McDonalds, worked several jobs post-accident
No
The plaintiff alleged pain in her neck, shoulders, and back as a result of the accident. She
was physically fit before the accident. She attempted to return to work at McDonald’s after
the accident but quit due to finding the work too hard on her body as well as changes in
her schedule. After completing physiotherapy she worked in a number of jobs including
physically demanding employment such as landscaping, working at a recycling plant, and
working as a frame assembly nailer. She called lay witnesses to corroborate her evidence
that she had difficulty with housekeeping and home maintenance chores after the
accident.
Significantly, the plaintiff’s family doctor had written in a note approximately sixteen
months post-accident (and nearly four years before trial) “MVA not yet settled but no
17
Ibid at para 49.
18
[“Valentine”].
7
longer symptomatic.”19 Although the doctor gave evidence at trial that the plaintiff was
limited by pain in the type of work she could do, there was no reason why she could not
try to re-engage in sports and there are probably no chores she cannot do.
The jury awarded $30,000.00 for general damages, $14,022.83 for past income loss,
$50,000.00 for loss of competitive advantage, nothing for past housekeeping expenses
and $1,200.00 for future housekeeping expenses.
In the result, Firestone J. concluded that the plaintiff had not satisfied the seriousness
criterion of the threshold test as set out in s 4.2(1) of O Reg 461/96. She did not meet the
requirements of s 4.2(1)(i) (substantial interference with employment), as she engaged in
physically demanding full time employment after the accident. With respect to s 4.2(1)(iii)
(substantial interference with usual activities of daily living), he found that “there is no
question that she still has difficulty with some heavier household chores and that her
ability to play competitive sports, and to some degree non-competitive sports, has been
affected but, with respect, that is not enough to meet the requirements of s 4.2(1)(iii)”.20
This decision is also notable for Firestone J.’s finding that the August 1, 2015 amendments
affecting the deductible apply “to all pending cases regardless of when the incident
occurred,”21 as well as his suggestion that threshold motions brought before trial may in
appropriate cases “serve the principles of proportionality, timeliness, and affordability.”22
19
Ibid at para 66.
20
Ibid at para 82.
21
Ibid at para 101, quoting Vickers at para 14.
22
Ibid at para 15.
8
Threshold Decisions: Cases That Passed the Threshold
Bruff-Murphy v Gunawardena, 2016 ONSC 723
Plaintiff’s evidence was supported by expert and lay witnesses; lack or relevance or credibility
of defence expert witnesses leads to conclusion that the plaintiff passed the threshold despite
jury award negated by deductible
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
October 14, 2008 (Bill 198)
Ottawa
Kane J.
January 5, 2016
Female, “mid-thirties” and pregnant at the time of the
accident, unsuccessful return to retail work
Yes
The plaintiff alleged soft tissue injuries to her neck, right shoulder, and back; hip and right
leg pain; headaches; “musculoskeletal impairments,” major depressive disorder, posttraumatic stress disorder, and somatic symptom disorder. The plaintiff had “numerous
issues in her life” pre-accident including several injuries, personal issues, miscarriages,
and severe vomiting during her last pregnancy. Her medical records showed frequent
complaints of back pain, neck pain, and anxiety before the accident.
The defence took the position that the plaintiff was not credible and that her impairments
were not caused by the accident, but were consistent with her pre-MVA complaints. While
Kane J. acknowledged that the plaintiff’s “testimony …raises questions as to the level of
her MVA injuries and impairment in relation to her prior medical history,” 24 her evidence
23
[Bruff-Murphy].
24
Ibid at para 22.
9
was corroborated by lay witnesses and expert medical witnesses, which he felt “strongly
supported” her credibility.25
Of note, Kane J. considered the testimony of the defence’s orthopaedic surgeon, Dr.
Gianni Maistrelli, not to be relevant, on two main points: first, the plaintiff was not
alleging an orthopaedic injury; and second, that the witness’ views as to chronic pain,
which Kane J. paraphrased as “unless you can see or feel an injury, there is no injury” was
outdated. Kane J. commented that “such outdated hypothesis … may be one of the reasons
for the current popularity by defendants as in this case to select trial by jury in the hope
that the jury might accept this outdated argument.”26
Kane J. also declined to accept the evidence of the defence’s psychiatrist, Dr. Monte Bail,
and had ordered that he was not permitted to express conclusions in his report that the
plaintiff was not forthright in reporting her medical history and lacked credibility. The
decision analyzes this expert’s methodology and evidence for several pages, ultimately
concluding that the expert witness’ evidence was not credible.27
The jury awarded $23,500.00 for general damages (reduced to nil factoring in the
deductible) and dismissed all other claims (it was not indicated which other claims were
advanced). The plaintiff’s action, therefore, was dismissed. Kane J. commented that he
arrived at the finding that the plaintiff proved a threshold impairment “notwithstanding
the decisions made by the jury in this trial.”
25
Ibid at para 142.
26
Ibid at para 51.
27
Ibid at paras 59-125.
10
Dimopoulos v Mustafa, 2016 ONSC 42928
Credible plaintiff evidence overcomes surveillance showing “normal” activity, subjective
evidence of pain accepted; jury verdict suggests jury felt plaintiff was credible
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
October 18, 2003 (Bill 198)
Brampton (trial heard in Orangeville)
Tzimas J.
January 19, 2016
Male, age 49 at the time of the accident, intermittent general
labourer, returned to sedentary work after 5 years
Yes
The plaintiff alleged chronic pain in his neck, back, and shoulder as well as irritability due
to the accident. He was in good health before the accident. He gave evidence, corroborated
by his spouse, that after the accident he is in constant pain and has become socially
withdrawn, “miserable,” and sedentary. The defence theory was that the plaintiff was not
credible.
The jury awarded $37,000.00 for general damages and $30,000.00 for future
chiropractic care. Tzimas J. commented that “[w]hile the jury did not accept the figures
recommended by the plaintiff, the award of $37,000 [for general damages] was not
insignificant”29 and that the jury’s award of damages for future chiropractic care suggested
that the jury found both the treating chiropractor and the plaintiff credible.30
28
[“Dimopoulos”].
29
Ibid at para 75.
30
Ibid at para 76.
11
Tzimas J. preferred the evidence of the plaintiff’s expert witness, orthopaedic surgeon Dr.
Wilson to that of the defence’s orthopaedic surgeon, Dr. Cameron; finding that the
plaintiff’s expert was more thorough and considered the “effect of the injury” rather than
focusing on the “type of injury” as she found the defence’s expert had.31
The defence introduced surveillance evidence, however Tzimas J. felt that if anything, it
supported the plaintiff’s complaints, as it depicted him moving in a guarded manner and
did not show him engaging in any heavy or demanding tasks. She rejected the defence
theory that the surveillance showed the plaintiff “living a pretty normal life,” particularly
in light of the plaintiff’s explanation that he experienced pain when undertaking his daily
activities. 32
Overall, the volume of Tzimas J.’s decision was focused on the plaintiff’s testimony, which
she accepted was credible.
Parra v. Laczko, 2016 ONSC 91133
Plaintiff returning to work in significantly reduced capacity post-MVA passes threshold; low
speed collision may cause chronic pain
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
31
Ibid at paras 43-45.
32
Ibid at para 17, 54
33
[“Parra”].
May 24, 2008 (Bill 198)
Brampton
Sproat J.
February 5, 2016
Female, age at the time of the accident not stated, worked as
real estate agent, returned to work in reduced capacity
Yes
12
The plaintiff alleged neck and low back pain after being rear ended in a “low speed
collision.” After the accident, the plaintiff “immediately” arranged for assistance at work,
eventually ceding approximately 80 percent of her work to her sister, who she hired to
assist her. The plaintiff’s health prior to the accident was good. Sproat J. accepted that the
plaintiff suffered chronic pain as a result of the accident.
The jury awarded $10,000.00 for general damages, $5,000.00 for future medical and
rehabilitation costs, nothing for past and future loss of income and nothing for future
home maintenance and housekeeping costs.
In brief reasons, Sproat J. commented that of the witnesses, the plaintiff’s expert,
physiatrist Dr. Dinesh Kumbhare, “obviously” had the greater expertise in relation to
chronic pain. The experts (Dr. Soric testified for the defence) differed over whether the
low-speed collision caused the plaintiff’s chronic pain; Sproat J. preferred Dr.
Kumbhare’s conclusion that the low speed of the collision did not necessarily permit an
inference that the collision was not the cause of the chronic pain. Sproat J. felt that the
defence’s psychiatry expert, Dr. Stanley Debow, was an advocate because he disregarded
testing performed by others that showed cognitive impairment, and in his testimony
speculated on non-accident related explanations for why the plaintiff may be working less
post-accident.34
34
Ibid at paras 11-16.
13
Sproat J. did not accept that the plaintiff’s impairments were not caused by the accident,
noting that her functional decline coincided with the accident, and not other events in her
life such as addressing tax arrears or the end of a relationship.
It was conceded that chronic pain syndrome would be considered a permanent
impairment, and Sproat J. accepted that the seriousness and importance criteria were
satisfied, due to the long hours and flexibility required in the plaintiff’s job as a real estate
agent, and her evidence that her pain prevented her from working long hours or from
working reliably, her ability to work depending on whether she had a good day or a bad
day.
Corbett v Odorico, 2016 ONSC 196435
Homemaker with pre-existing pain and depression who returns to some pre-accident
activities passes threshold
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
December 5, 2009 (Bill 198)
Ottawa
Hackland J.
March 22, 2016
Female, age 40 at the time of the accident, homemaker and
caregiver of autistic son
Yes
The plaintiff alleged chronic pain syndrome and adjustment disorder as a result of what
was described as a “head on” collision, although the plaintiff was noted to have declined
to be transported to hospital from the scene of the accident. She alleged her pain caused
35
[“Corbett”].
14
or contributed to the breakup of her marriage. The plaintiff had pre-existing depression
and back pain, which Hackland J. accepted was “a ‘thin-skull’ scenario.”36
The defence did not call any witnesses, but challenged the plaintiff’s evidence through
cross examination. Hackland J. noted that “[d]efence medical examinations were carried
out and I draw the inference from the decision of the defendant not to call the two doctors
in question that their conclusions did not substantially differ from those of [plaintiff
expert witnesses] Dr. Swayze and Dr. Kleinman.”37
The jury awarded $33,000.00 for general damages, $22,000.00 for past housekeeping
and home maintenance expenses, $32,000.00 for past caregiving, $21,000.00 for future
housekeeping and home maintenance expenses, $12,000.00 for future caregiving,
Family Law Act awards in the amount of $7,500.00 for the plaintiff’s husband and
$7,000.00 each for the plaintiff’s two sons, nothing for loss of earning capacity and
nothing for loss of interdependent relationship.
Hackland J. accepted that the plaintiff’s somatic symptom disorder created a permanent
and serious impairment of her physical and psychological functioning, in a brief analysis
contained in paragraph 12 of the decision:
“She suffers from ongoing pain which depresses her and significantly restricts her
physical capabilities.
I appreciate that on her own evidence there are
circumstances, particularly concerning the needs of her children, which compel
her to perform physically exerting activities from time to time. I accept her
evidence that this is accompanied by significant pain experienced at the same time
or later in the day. This is still a permanent and serious impairment…”
36
Ibid at para 11.
37
Ibid at para 6.
15
This decision is also notable for following Vickers in concluding that the August 1, 2015
amendments affecting the statutory deductible apply retrospectively.38
Bishop-Gittens v Lim, 2016 ONSC 288739
Plaintiff who continued to work post-accident but was limited in her avocational activities
sustained a threshold impairment with respect to usual daily activities
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
November 18, 2009 (Bill 198)
Newmarket
McKelvey J.
April 28, 2016
Female, age 37 at the time of the accident, retail general
manager, returned to work with accommodation
Yes
The plaintiff alleged headaches, neck and shoulder pain, mid and lower back pain, sleep
difficulties and emotional instability, knee problems causing difficulty with stairs, and
foot problems impairing the plaintiff’s ability to wear high heels, as well as issues with
“psychological wellness.”
The jury awarded $40,000.00 for general damages and nothing for loss of competitive
advantage or future loss of income. This was significantly less than what had been sought,
namely $85,000 to $100,000 for general damages, $402,854 to $719,466 for loss of
competitive advantage and $522,534 to $743,763 for loss of income.40 McKelvey J.
commented that “[i]n my view the jury verdict recognized that the complaints expressed
by the plaintiff were genuine and serious although not as devastating as claimed by the
38
Ibid at para 17-18.
39
[“Bishop-Gittens”].
40
Very few of the other decisions reviewed indicated what had been sought by the parties.
16
plaintiff at trial” 41 although he did not state to what extent this factored into his decision
with respect to the threshold.
McKelvey J. undertook a detailed review of the evidence. With respect to the experts, he
preferred the evidence of the plaintiff’s expert, physiatrist Dr. Tom Chen, over the
evidence of the defendant’s expert, orthopaedic surgeon Dr. Michael Ford, stating that
Dr. Chen’s qualifications in the area of chronic pain disorder were superior. With respect
to Dr. Ford, McKelvey J. stated “while Dr. Ford stated that the plaintiff could return to
regular physical activities and while he also ruled out any organic problem or chronic pain
disorder, he did not specifically provide an explanation for the plaintiff’s ongoing
complaints.”42 Although McKelvey J. had earlier noted that Dr. Ford testified that in the
DSM criteria indicate that a diagnosis of chronic pain disorder is one of exclusion and
should not be made where litigation or compensation issues are pending, this statement
suggests that he rejected that explanation.
In accepting the evidence of the plaintiff’s expert witness, McKelvey J. also noted that the
plaintiff’s testimony as to her symptoms was corroborated by lay witnesses who withstood
cross-examination.
The defence had argued that the plaintiff’s impairment was not “permanent” within the
meaning of the threshold definition due to gaps in treatment, and the plaintiff raising
complaints at trial that were not mentioned in the medical records. McKelvey J. rejected
this argument, concluding that “[t]he Regulation does not mean that a plaintiff is required
41
Ibid at para 69.
42
Ibid at para 24.
17
to experience symptoms on a constant basis as suggested by the defence. Rather what is
required is a pattern of continuing symptoms in the areas described by the plaintiff which
may wax and wane over time but which persist on a long term basis.”43
McKelvey J. also conducted a thorough analysis of the “important” and “serious”
components of the threshold test. He concluded that the plaintiff did not sustain an
important impairment with respect to her employment, as she had returned to work (with
accommodations) and increased her earnings since the accident. In this respect he also
found it notable that the jury had not awarded any damages for loss of competitive
advantage or loss of future income. However, he accepted that the plaintiff did sustain an
important impairment with respect to her usual daily activities, citing the plaintiff’s
evidence of difficulties cleaning her home and cooking meals, and having reduced energy
to socialize or volunteer.
With respect to seriousness of the impairment, McKelvey J. accepted that the plaintiff
sustained a serious impairment of her usual activities. While the case was “close to the
line”44 and that the plaintiff tended to exaggerate her symptoms,45 the evidence of her
friends and coworkers was consistent with each other and convincing.
Nkunda-Batware v Zhou, 2016 ONSC 249246
Plaintiff on stress leave at work at the time of the accident and alleging chronic pain passes
threshold; serious impairment to both employment and usual daily activities
43
Ibid at para 34.
44
Ibid at para 62.
45
Ibid at para 55.
46
[“Nkunda-Batware”].
18
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
January 15, 2011 (Bill 198)
Ottawa
Hackland J.
May 2, 2016
Female, age 54 (not indicated when), social worker on stress
leave at the time of the accident
Yes
The plaintiff alleged neck and back pain eventually developing into chronic pain as a
result of a “moderate impact” rear-end accident. She claimed that but for the accident,
she would have returned from stress leave and continued to work, but as a result of the
accident she was unable to work at all.
The jury awarded $15,000.00 for general damages, $150,000.00 for past loss of income,
$150,000.00 for future loss of income, $1,830.00 for out of pocket expenses and
$101,500.00 for future care costs. Hackland J. did not comment on the verdict or to what
extent it influenced his decision with respect to the threshold.
Hackland J. in brief reasons stated that he preferred the evidence of the three physiatrists
who testified on behalf of the plaintiff, namely Drs. Ruggles, Firestone and Simard, to the
evidence of the defence’s physiatrist, Dr. Shanks. He preferred the evidence of plaintiff
psychiatrist Dr. Quan to defence psychiatrist Dr. Hershberg “principally because Dr.
Quan recognized the role of depression in the plaintiff’s chronic pain, something that was
clearly a major aspect of her ongoing problems.”47
47
Ibid at para 10.
19
There appears to have been a suggestion that the plaintiff’s condition would improve with
appropriate treatment, which she had not been receiving; Hackland J. nonetheless
concluded that the plaintiff’s impairment is permanent, stating “[t]he question of whether
or not the plaintiff may find her way to appropriate treatment of the sort recommended
by Dr. Quan is speculative.”48
Although Hackland J. accepted that the plaintiff’s impairment was serious with respect to
her employment, “[e]ven viewing the plaintiff as a homemaker, there appears to be a
substantial interference with her ability to perform her ordinary housekeeping and
maintenance responsibilities, in the opinion of the occupational therapists who
testified.”49
Arteaga v Poirer, 2016 ONSC 371250
Plaintiff who returns to work and suffers two subsequent motor vehicle accidents and two
subsequent slip-and-fall incidents passes threshold on basis of chronic pain interfering with
daily activities
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
48
Ibid at para 12.
49
Ibid.
50
[“Arteaga”].
March 15, 2011 (Bill 198)
Barrie
DiTomaso J.
June 3, 2016
Female, age at the time of the accident not stated; returned to
work two weeks after the accident
Yes
20
The plaintiff alleged injuries to her jaw, neck, left shoulder, and left side; as well as
numbness in her left arm and hand and driving anxiety and depression. The plaintiff was
involved in two subsequent motor vehicle accidents and two subsequent slip-and-fall
incidents within approximately two years of the motor vehicle accident in issue. The
plaintiff claimed that she was not injured in the subsequent motor vehicle accidents and
they did not contribute to her anxiety. While the plaintiff sustained apparently significant
injuries in the slip and fall incidents, namely a fractured right patella and then a fractured
right fibula, DiTomaso J. accepted that these were distinct injuries that did not overlap
the injuries sustained in the motor vehicle accident in issue.
The plaintiff returned to work after the accident, but claimed that after work she was too
fatigued to enjoy the daily activities that she had engaged in before the accident.
The jury awarded $20,000.00 for general damages, $13,150.00 for future care costs and
nothing for future economic loss. DiTomaso J. did not indicate to what extent the jury’s
award may have factored in to his determination of the threshold issue.
DiTomaso J. found the plaintiff to be a credible witness, stating that he “did not share the
concerns of the defence that she exaggerated or magnified her complaints”51 and noting
that all of the medical experts, including the defendant’s expert, felt the plaintiff did not
exaggerate or magnify her complaints. He preferred the evidence of the plaintiff’s experts,
Dr. Howard Jacobs, a pain physician; Dr. Brian Alpert, an orthopaedic surgeon; and Dr.
Maneet Bhatia, a psychologist; to the evidence of the defence expert, orthopaedic surgeon
Dr. Erin Boynton. Specifically, he rejected the defence expert’s opinion that there was no
51
Ibid at para 73.
21
evidence of traumatic injury that interfered with the plaintiff’s ability to perform her
activities of daily living, and that the plaintiff’s pain complaints could be improved with
core strengthening and better posture.52
Mamado v Fridson, 2016 ONSC 408053
Plaintiff does not return to work after the accident and unsuccessfully attempts to return to
school; evidence of functional decline corroborated by lay witnesses and plaintiff expert
evidence preferred over “flawed” expert evidence of defence
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
November 1, 2010 (Bill 198)
Brampton
Baltman J.
June 21, 2016
Female, age 27 at trial, receptionist attending post-secondary
course in evening at the time of the accident
Yes
The plaintiff alleged chronic pain, depression, and PTSD as a result of the accident; it was
noted that she was active and “for the most part” was in good health before the accident.
She did not return to any form of gainful employment following the accident and she had
unsuccessfully attempted to return to her schooling.
The jury’s award of damages is not mentioned.
In analyzing the threshold test, Baltman J. commented that she found the opinions of the
plaintiff’s expert witnesses, physiatrist Dr. Tom Chen and psychologist Dr. Wendy Chan,
to be corroborated by the plaintiff’s own evidence and the evidence of her sister, her family
52
Ibid at para 72.
53
[“Mamado”].
22
doctor, a friend, and a former manager; all of whom Baltman J. found to be credible.
Baltman J. considered the evidence of the defence expert witnesses, physiatrist Dr. Soric
and psychiatrist Dr. Lawrie Reznek to have “serious flaws” including, for example,
misreading the plaintiff’s medical records, and the amount of income generated by the
witnesses from conducting medical-legal work for defendants.54 Notwithstanding this, she
felt that the core evidence of these doctors supported the plaintiff in that both had agreed,
in essence, that the plaintiff was suffering some degree of pain or distress.
Baltman J. rejected the defence’s argument that the plaintiff had failed to pursue
accommodation at work or at school, noting that rehabilitation sought through the
accident benefits claim was “largely denied,” and that the medical evidence indicated that
the plaintiff’s impairments cannot reasonably be accommodated. Baltman J. also dealt
briefly with a causation argument arising from what appear to be pre-accident complaints
pertaining to the back; she noted that the plaintiff was still able to work in physically
demanding jobs before the accident and that no complaints were reported in the five
months before the accident. “If anything, it amounts to a ‘thin-skulled’ back, in which case
the Defendant is liable for aggravating it.”55
Baltman J. also observed that the defendant had conducted 26 days of surveillance, none
of which was relied on at trial. She did not say whether she was drawing any sort of
inference from this; however, she returned to that point later in her decision noting that
Dr. Reznek had not been provided with the surveillance to review.
54
Ibid at para 28.
55
Ibid at para 33.
23
Thomas v. Pin to Pin Express Inc., 2016 ONSC 438556
Plaintiff in undefended action changes passes Bill 59 threshold
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
August 12, 2003 (Bill 59)
Toronto
Firestone J.
July 25, 2016
Male, age 39 at the time of the accident, changed careers
(previous career not indicated) and started medical school,
employed as professor at time of trial
Yes
This was a judge alone trial of an undefended action. The plaintiff alleged neck, back, and
right elbow pain as a result of the accident. He underwent arthroscopic synovectomy and
debridement of the right elbow approximately 19 months post-accident. He alleged that
he was unable to play sports, particularly cricket, as he used to before the accident; and
had difficulty with reaching, carrying and prolonged standing and sitting. Firestone J.
considered each component of the Bill 59 threshold definition as applied to the evidence
of the plaintiff, whom he found credible; and the plaintiff’s medical records, including a
report by rehabilitation specialist Dr. Steve Blitzer, and concluded the plaintiff met the
threshold test.
In the result, Firestone J. awarded general damages of $49,500.00, reduced to
$34,500.00 after applying the Bill 59 deductible of $15,000.00.57
56
[“Thomas”].
57
Ibid at paras 51-52, 58.
24
This decision is also notable for Firestone J.’s conclusion that the applicable pre-judgment
interest rate is 5% as set out in subsection 128(2) of the Courts of Justice Act58 in
conjunction with Rule 53.10 of the Rules of Civil Procedure,59 following the reasoning ElKhodr v Lackie,60 Vickers, and Markovic v Richards61 that the changes to s 258.3 of the
Insurance Act do not apply retrospectively.
Threshold Decisions: Threshold Decision Moot
Mandel v Fakhim, 2016 ONSC 653862
Plaintiff’s evidence of ongoing pain that prevented him from engaging in sports but did not
prevent him from working as a plumber was not sufficient to meet the threshold
Accident Date:
Court:
Judge:
Decision Date:
Plaintiff:
Threshold Met:
2009 (Bill 198)
Toronto
Myers J.
October 20, 2016
Male
Declined to consider threshold
This decision is notable for Myers J.’s comments in declining to decide the threshold issue
and has been receiving some attention for His Honour’s quip that “jury trials in civil cases
58
RSO 1990, c C.43.
59
RRO 1990, Reg 194.
60
2015 ONSC 4766.
61
2015 ONSC 6983.
62
[“Mandel”].
25
seem to exist in Ontario solely to keep damages awards low in the interest of insurance
companies, rather than to facilitate injured parties being judged by their peers...” 63
The plaintiff alleged what Myers J. described as “very substantial physical and emotional
injuries from the minor physical contact”64 between the plaintiff’s vehicle and the
defendants’. The jury awarded $3,000.00 for general damages, and nothing for past
income loss, future income loss, medical care and housekeeping. Myers J. commented
that “[i]t is perfectly clear in this regard that the jury believed that the minor contact
between the vehicles caused Mr. Mandel only very minor injuries and it awarded him very
modest damages accordingly.”65
After a thorough discussion of the applicable law and principles, Myers J. concluded “this
is precisely the case where the doctrine of mootness requires full application. If the
decision that I am called upon to make risks undermining the jury’s clear findings and my
decision has no effect in any event because plaintiff will receive no damages as a result of
the jury’s verdict and the statutory deductible, then not only is there no purpose in making
the threshold decision, but making the decision risks undermining the important and
singular function of the jury.”66
The Mandel decision is also notable for Myers J.’s finding that the August 1, 2015 change
to s 267.5(9) which provides that the determination of a party’s entitlement to costs shall
63
Ibid at para 9.
64
Ibid at para 2.
65
Ibid at para 5.
66
Ibid at para. 18.
26
be made with regard to the effect of the deductible, applies retrospectively.67 Additionally,
he found, as other decisions discussed herein have done, that the August 1, 2015
legislative changes affecting the deductible apply retrospectively.68
Threshold Decisions: Appeals
Ayub v Sun, 2016 ONSC 6598 (Div Ct)69
Divisional Court upholds finding of trial judge that a plaintiff who was able to continue and
complete his ESL course post-accident despite chronic pain did not meet threshold
Accident Date:
Trial Court:
Trial Judge:
Decision Date:
Plaintiff:
Threshold Met:
June 3, 2009 (Bill 198)
Toronto
Diamond J.
October 27, 2016
Male, age 32 at the time of the accident, English as a Second
Language (ESL) student
No; upheld on appeal
This appeal by the plaintiff before a three-judge panel of the Divisional Court raised
several issues, including seeking a finding that the trial judge erred when concluding that
the plaintiff did not prove a threshold impairment, which is the issue that will be
discussed here.
DiTomaso J. writing for the Court observed that the trial judge’s conclusion that the
plaintiff failed to meet the threshold is a question of mixed fact and law, and therefore
should not be disturbed unless the trial judge committed a palpable and overriding
67
Ibid at paras 33-36.
68
Ibid at paras 23-32.
69
[“Ayub”].
27
error.70 He then analyzed several alleged errors by the trial Judge, generally that the trial
Judge had misapprehended, mischaracterized, or failed to consider certain evidence; and
concluded in each instance that there had been no error. Furthermore, even if the trial
Judge had erred in finding that the impairment was not “serious,” the Court would still
uphold the trial Judge’s ruling, because the plaintiff did not lead sufficient evidence to
establish that the functions impaired were “important” within the meaning of the
threshold definition.71
Jugmohan v Royle, 2016 ONCA 82772
Court of Appeal dismisses appeal of threshold decision by plaintiff who was found at trial to
have failed to prove a serious impairment; pre-existing conditions were to account for her
post-accident complaints
Accident Date:
Trial Court:
Trial Judge:
Decision Date:
Plaintiff:
Threshold Met:
February 15, 2008 (Bill 198)
Toronto
Firestone J.
November 4, 2016
Female, age 65 at the time of the accident; retired
No
In brief reasons, the Court of Appeal rejected the plaintiff’s appeal which alleged in part
that the trial Judge erred by disregarding relevant medical evidence and arrived at an
unsupported conclusion. The Court noted that the trial Judge made repeated reference
throughout his reasons to all of the evidence he heard at trial, and that there was “ample
evidence upon which the trial judge could properly rely to find that the threshold was not
met, particularly in light of the jury award.”73
70
Ibid at para 22, citing Baines v Hehar, 2012 ONSC 6775 (Div Ct) at para 12.
71
Ibid at para 32-33.
72
[“Jugmohan”].
73
Ibid at para 11.
28
Comments: Themes and Trends
Credibility
Credibility is a perennially important factor when considering the threshold; this is
particularly so in the case of chronic pain, whose existence is not supported by objective
findings.74 Each of the decisions reviewed for this paper involved allegations of chronic
pain in some form, and it is the writer’s anecdotal observation that most of the threshold
decisions released in recent years concern chronic pain cases.
Of the twelve decisions reviewed (excluding appeals), seven75 were identified that
considered credibility in some portion of the analysis, although the extent to which
credibility weighed in the ultimate threshold analysis varied. In two other cases,76 the
plaintiff’s evidence appears to have been accepted without explicit comment on
credibility; this may suggest that the plaintiffs in those cases were considered credible or
that no serious issues with respect to credibility were raised.
The credibility factor in the decisions reviewed did not always predict the result; for
example in GW the plaintiff was described as credible and in Valentine there was no
indication that the plaintiff had not been credible; however in both decisions the plaintiffs
were ultimately found not to have proven threshold impairments.
74
See, e.g., Dimopoulos at para 56.
75
GW (see para 46); Bruff-Murphy (see paras 25-26); Dimopoulos (see para 57), Bishop-Gittens (see
paras 57-61); Arteaga (see para 73); Mamado (see para 27); Thomas (see para 10).
76
Valentine (see paras 77-86); Corbett (see para 12).
29
It is also notable that in two decisions, namely Bruff-Murphy and Bishop-Gittens,
inconsistencies in the evidence of the former and a tendency to exaggerate by the latter
were compensated for by the corroborating evidence of lay witnesses.77 None of the
decisions reviewed contained a finding that the plaintiff was not credible, although one
only need to look back to 2015 to locate several decisions in which poor credibility on the
part of a plaintiff was a material factor in a determination that the plaintiff did not meet
the threshold.78
What these cases appear to demonstrate is that while credibility is not necessarily
conclusive, it remains an important factor.
Expert Witnesses
The treatment of expert witnesses was less consistent across the cases reviewed. It is no
secret that courts have been regarding expert witnesses with increasing scepticism;79 but
the cases reviewed suggest a more nuanced approach. The overall theme is that judges are
highly critical of experts who are not perceived to be impartial, resulting in the rejection
of their opinion. The converse, however, is not necessarily true: in none of the decisions
77
See Bruff-Murphy at paras 22, 25-26; Bishop-Gittens at paras 54-55, 57-61.
78
See, e.g., Saleh v Nebel, 2015 ONSC 747 [Saleh] (see paras 15-24); Gill v Sivaranjan, 2015 ONSC 841
[Gill] (see paras 27-32); Berfi v Muthusamy, 2015 ONSC 981 [Berfi] (see paras 30, 32, 36); Jugmohan v
Royle, 2015 ONSC 1497 [Jugmohan trial] (see para 26); Lee v Rezai, 2015 ONSC 1926 [Lee] (see para 12);
Ramrup v Lazzara, 2015 ONSC 2573 [Ramrup] (see paras 45-46); Beach v White, 2015 ONSC 3450
[Beach] (paras 13-14).
79
See, e.g., Hon. Coulter A. Osborne Q.C., Civil Justice Reform Project Summary of Findings and
Recommendations, Ontario Ministry of the Attorney General, November 2007: “A common complaint
was that too many experts are no more than hired guns who tailor their reports and evidence to suit the
client's needs.” At p 71.
30
reviewed was it identified that a strong expert had been singularly determinative in the
outcome of the threshold motion.
The consistency of the expert opinion evidence with the evidence as a whole was another
theme that emerged from the cases reviewed. Of the decisions identified where a
plaintiff’s expert evidence was relied upon in concluding that the plaintiff had proven a
threshold impairment, several decisions noted that the expert evidence was consistent
with the other evidence, including the plaintiff’s, the other expert(s)’, and the lay
witness(es)’.80 Conversely, where expert evidence presented an inconsistent picture, as in
GW, the evidence was not preferred: where the plaintiff’s expert witnesses gave differing
diagnoses Le May J. commented that “often there is strength in numbers, but that was
not the case here.”81
Expert Witness Impartiality and Reliability
Bruff-Murphy and Mamado highlight situations where an expert witness’ perceived lack
of sufficient impartiality or reliability of their opinions has affected their efficacy. In
Bruff-Murphy, Kane J. spent several pages criticizing the defence’s psychiatrist’s
methodologies and evidence, for example not reading the records prior to examining the
plaintiff; not recording the answers of the testing that was administered, only the scoring;
or expressing an opinion on the plaintiff’s credibility. He concluded his analysis by stating
80
See, e.g., Bruff-Murphy at para 46; Bishop-Gittens at para 26; Nkunda-Batware at para 9; Arteaga at
paras 52-53; Mamado at para 27.
81
GW at para 41.
31
“I will not qualify witnesses as experts in the future” whose reports present an approach
similar to the defence’s expert.82
Similarly, in Mamado, Baltman J. was critical of the defence experts, whose evidence she
characterized as containing “serious flaws,” such as misreading the plaintiff’s medical
records, not having performed more extensive testing that may have yielded a more
definitive result, or having failed to document testing that the expert claimed to have
administered.83 Baltman J. also noted the amount of income each expert generated from
performing medical-legal work for defendants, the phrasing of which suggests she did not
feel these experts could be entirely impartial.84
Other Factors
The genesis of an expert’s involvement may also play a role in how their opinion is
received: in both the Bruff-Murphy and Mamado decisions it was noted that the plaintiffs
had adduced evidence from insurer’s examination assessors originally retained in
connection with the plaintiff’s claim for statutory accident benefits.85 While not explicitly
stated, the implication is of course that this evidence, secured by an insurer whose interest
82
Bruff-Murphy at para 125. The plaintiff had unsuccessfully moved to exclude the witness’ evidence for
bias, however after analyzing the applicable authorities, including White Burgess Langille Inman v Abbot
and Halliburton Co., 2015 SCC 23, Kane J concluded that the threshold to exclude expert testimony for
bias is very high, and permitted the expert to give evidence: see paras 53-58.
83
Mamado at para 28.
84
For example, with respect to the defence’s physiatrist: “Incredibly, she is of the view that she can be
seen as entirely neutral no matter to whom she owes much of her livelihood” (at para 28). The amount of
income that the plaintiff’s experts earned from medical-legal work was not referenced in the decision.
85
Bruff-Murphy at para 46; Mamado at para 15.
32
would arguably be better served if no injury were found, carries particular weight when
an injury is supported.
It is also notable that in Corbett, an adverse inference was drawn from the failure of a
defendant to call expert evidence. Hackland J. observed that “[d]efence medical
examinations were carried out and I draw the inference from the decision of the defendant
not to call the two doctors in question that their conclusions did not substantially differ
from those of [the plaintiff’s expert witnesses].”86
Overall, in most of the cases reviewed, the expert evidence was considered and weighed
but does not appear to be particularly determinative.87 This suggests that judges will not
defer to or uncritically accept expert opinions; rather they are weighing the evidence
providing the foundation for the opinion and the expert witness’ evidence in conjunction
with the evidence as a whole.
Court Location
Do the cases reviewed support the conventional wisdom that threshold motions are less
frequently successful outside Toronto? It is difficult to draw any conclusions, even
acknowledging that a selection of cases based on the calendar year is rather arbitrary.
86
Corbett at para 6.
87
An expert opinion is, however, required for a plaintiff to prove a threshold impairment in cases falling
under Bill 198: see O Reg 461/96, s 4.3.
33
Of the twelve decisions reviewed, three originated from Toronto; one (Valentine)
concluded the plaintiff had not proven a threshold impairment; another (Thomas)
concluded the plaintiff did prove a threshold impairment; and in the third, Myers J.
declined to determine the threshold (Mandel).
The remainder of the decisions originated from Ottawa,88 Brampton,89 Newmarket90 and
Barrie.91 Of these, only Brampton was the source of a decision which concluded that the
plaintiff did not pass the threshold.
Jury Verdict
Perhaps the most interesting trend to note in the decisions reviewed is whether there was
consistency with jury awards of damages.
It is well-established in the case law, most recently in Edwards J.’s thorough analysis in
DeBruge v Arnold,92 that a judge may, but is not bound to, consider a jury’s verdict in
arriving at a conclusion on a threshold motion. In some decisions, the fact that the
88
Bruff-Murphy, Parra, Corbett, and Nkunda-Batware.
89
GW, Dimopoulos, and Mamado.
90
Bishop-Gittens.
91
Arteaga.
92
2014 ONSC 744
34
conclusion regarding the threshold issue appeared to be consistent with the jury’s verdict
was noted, although without significant discussion.93
However, what is striking is the number of decisions in which the trial judge found the
plaintiff passed the threshold, and the jury’s award of general damages was so low as to
have been fully or almost fully negated by the deductible. In eight94 of the ten decisions in
which a jury verdict for general damages was reported,95 the damages awarded were
below the statutory deductible as prescribed in the August 1, 2015 changes to the
Insurance Act and Regulations.96 In the remaining two cases, the general damages awards
by the jury exceeded the $36,905.40 deductible by only $3,094.60 and $94.60.97 The
highest general damage award of all the cases reviewed was the $49,500.00 award in
Thomas, which was an undefended, judge alone trial of an accident that came within Bill
59.
Therefore, even in cases where the Plaintiff did prove a threshold impairment and
recovered general damages in excess of the deductible, the net recovery of general
damages to the Plaintiffs was still quite modest. In fact, in only four of the decisions
93
See, e.g., GW at paras 8-23; Valentine at para 77.
94
G.W., Valentine, Bruff-Murphy, Parra, Corbett, Nkunda-Batware, Arteaga, and Mandel.
95
Mamado did not identify the jury verdict amount.
96
Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O Reg 461/96, s
5.1 prescribes that the deductible set out in s 267.5(7)(3)(i)(B) of the Insurance Act is $36,540 until
December 31, 2015 and indexed annually thereafter; as per the Ontario Gazette in after January 1, 2016
the amount was $36,905.40.
97
Bishop-Gittens ($40,000) and Dimopoulos ($37,000).
35
reviewed did the total jury award exceed the Small Claims Court jurisdiction of
$25,000.00.98
On a related point, Myers J. in Mandel expressed concern over making a threshold
determination when the jury verdict resulted in the plaintiff recovering no damages,
recognizing some overlap between the fact finding role of a judge and a jury:
“[T]o hold for the plaintiff, I would have to hold both that the plaintiff suffered at
least most of the injuries he claims and that the contact between the cars was a
cause of those injuries. Making at least one and perhaps both of those findings
would necessarily put me in direct conflict with the jury’s verdict… Facts cannot
exist and not exist at the same time. The plaintiff’s injuries exist or they do not;
they were caused by the motor vehicle collision or they were not. I am being invited
to find that facts were proven at trial when the jury has already found that those
facts were not proven. I cannot do that without undermining the role of the jury as
the exclusive finders of fact.”99
Other Trends
Return to Work
Another factor that often receives attention is whether a plaintiff does or is able to return
to work.
This is a factor that received discussion the decisions reviewed, but did not appear to be
singularly determinative in any of them. In both of the cases in which the plaintiff was
found not to pass the threshold, namely GW and Valentine, the plaintiffs had worked after
98
Valentine (special damages awards totaling $65,222), Dimopoulos (net general damages of $94.60 plus
special damages award of $30,000), Corbett (special damages awards totaling $87,000 excluding Family
Law Act claims), and most notably Nkunda-Batware (special damages awards totaling $403,330).
99
Mandel at paras 8, 10.
36
the accident. In Valentine, the fact that the plaintiff was able to work in physically
demanding work post-accident does appear to have been a material factor in the threshold
decision. However, in six of the cases reviewed – half of them - plaintiffs who were able
to work after the accident were also found to pass the threshold.100 In Bishop-Gittens
McKelvey J. explained the rationale quoting from the Court of Appeal in May v Casola:
“In our view a person who can carry on daily activities, but is subject to permanent
symptoms including, sleep disorder, severe neck pain, headaches, dizziness, and nausea,
which, as found by the motions Judge, had significant effect on her enjoyment of life must
be considered as constituting serious impairment.” 101 Therefore, return to work was not
always a determinative factor in the decisions reviewed.
Other factors that are often discussed did not seem to play a particularly central role in
the cases reviewed. While causation arguments were raised in some of the cases
reviewed,102 overall none of the decisions appeared to have turned on a serious causation
issue. Particularly, in three decisions103 arguments that pre-existing conditions accounted
for post-accident complaints were rejected on the basis that the accident had exacerbated
the condition, or that the plaintiff was a “thin skulled” plaintiff in that regard.
None of the decisions reviewed devoted much analysis to the mechanism or severity of
the accident as it related to the plaintiff’s injuries.
100
Dimopoulos, Parra, Corbett, Bishop-Gittens, Arteaga, and Thomas.
101
[1998] OJ No 2475 (CA) at para 1; quoted in Bishop-Gittens at para 63.
102
See, e.g., GW at para 42 (plaintiff did not prove impairments were caused by the accident); BruffMurphy at paras 8, 31 (accepting that the plaintiff’s pre-existing symptoms were exacerbated by the
accident), Corbett at para 11 (pre-accident depression created a thin skull scenario), Mamado at para 33
(the plaintiff’s pre-existing back complaints, if anything, amounted to a “thin-skulled” back).
103
Murphy, Corbett, and Mamado.
37
Surveillance was only commented upon in two of the decisions reviewed: Dimopoulos and
Mamado. It does not appear to have been material in either of these. In Dimopoulos
Tzimas J. accepted the plaintiff’s explanation that he was in pain while engaging in the
activities depicted in the surveillance, and noted that the surveillance tended to support
the plaintiff’s complaints as it did not show him engaging in any heavy labour and showed
him moving in a slow and guarded manner.104
In Mamado, Baltman J. noted that the defence conducted 26 days of surveillance of the
plaintiff over a four year period, but did not rely on any of it at trial;105 although she did
not say whether she drew an inference one way or the other as a result of this.
Conclusion: Final Thoughts
In 2015 the writer undertook a similar analysis of threshold decisions. We identified
twelve reported threshold decisions,106 and eleven of those resulted in a finding that the
plaintiff did not meet the statutory threshold.107
104
Dimopoulos at paras. 16, 54.
105
Mamado at para 5.
106
Malfara v Vukojevic, 2015 ONSC 78 [Malfara]; Saleh v Nebel, 2015 ONSC 747 [Saleh]; Gill v
Sivaranjan, 2015 ONSC 841 [Gill]; Berfi v Muthusamy, 2015 ONSC 981 [Berfi]; Jugmohan v Royle, 2015
ONSC 1497 [Jugmohan]; Ayub v Sun, 2015 ONSC 1828 [Ayub]; Lee v Rezai, 2015 ONSC 1926 [Lee];
Ramrup v Lazzara, 2015 ONSC 2573 [Ramrup]; Beach v White, 2015 ONSC 3450 [Beach]; Morgan v
Saquing, 2015 ONSC 2647 [Morgan]; Abousamak v Izzo, 2015 ONSC 3884 [Abousamak]; Vickers v
Palacious [2015] ONSC 7647 [Vickers].
107
All but Vickers found that the plaintiff did not pass the threshold.
38
In 2016 so far, we again identified twelve reported threshold decisions, however only
three of them resulted in a finding that the plaintiff did not meet the statutory threshold.
Yet, jury awards of general damages did not exceed $40,000.00 in any of the 2016
decisions reviewed.
While it is tempting to prognosticate based on the themes and trends from the year as it
draws to a close, each decision is a unique product of its facts and its context. The main
trends comport with the conventional wisdom: credibility is a critically important factor
where chronic pain is alleged; and an expert witness may not appreciably help, but can
certainly harm, one’s case. What each case does show is a careful and thorough analysis
of the threshold as it pertains to the specific case under consideration; and our own review
reveals that many factors contribute to these outcomes.
39
Appendix: Case Chart
Passed
Threshold?
MVA Date &
Legislation
G.W. v. Rawlins
2016 ONSC 705
Le May J. (Brampton)
January 27, 2016
Jury trial
No
September 20, 2009
Bill 198
Valentine v. RodriguezElizalde
2016 ONSC 3540
Firestone J. (Toronto)
June 2, 2016
Jury trial
No
January 21, 2011
Bill 198
Mandel v. Fakhim
2016 ONSC 6538
Myers J. (Toronto)
October 20, 2016
Jury trial
N/A;
decision
moot
Bruff-Murphy v.
Gunawardena
2016 ONSC 7
Kane J. (Ottawa)
January 5, 2016
Jury trial
Dimopoulos v Mustafa
2016 ONSC 429
Tzimas J. (Brampton; trial
heard in Orangeville)
January 19, 2016
Jury trial
Name
Factors/
Comments
Damages
Plaintiff Details
Return to Work?
Female, age not
stated
Not working at MVA,
previous experience
in building
management
Female, 17 at MVA
High school student
working part time at
McDonalds
Returned to work
after MVA
Causation
Expert
Witnesses
Jury Verdict
$10,000 General Damages
$0 Past Economic Loss
$0 Future Economic Loss
$0 Future Housekeeping
Yes, attempt to
return to several
jobs after MVA
(some physically
demanding)
Return to Work
Jury Verdict
2009 (not specified)
Bill 198
Male
No
Jury Verdict
Yes
October 14, 2008
Bill 198
Female, “mid-thirties”
and 7 months
pregnant at MVA
Unsuccessful
return to work at
Rogers and other
retail
positions
after MVA
Expert
Witnesses
Credibility
Causation
Jury Verdict
$30,000 General Damages
$14,022 Past Loss of Income
$50,000 Loss of Competitive
Advantage
$0 Past Housekeeping
$1,200 Future Housekeeping
$3,000 General Damages
$0 Past Income Loss
$0 Future Income Loss
$0 Medical Care
$0 Housekeeping
$23,500 General Damages
Dismissed all other claims
Yes
October 18, 2003
Bill 198
Male, 49 at MVA
Intermittent general
labourer, unemployed
at MVA
Alleged unable to
return to physical
work; worked as
inspector 5 years
after MVA
Expert
Witnesses
Surveillance
Credibility
Jury Verdict
$37,000 General Damages
$30,000 Future Health Costs
Parra v. Laczko
2016 ONSC 911
Sproat J. (Brampton)
February 5, 2016
Jury trial
Yes
May 24, 2008
Bill 198
Female, age not
stated
Real estate agent
Yes, in reduced
capacity
Expert
Witnesses
Causation
Corbett v. Odorico
2016 ONSC 1964
Hackland J. (Ottawa)
March 22, 2016
Jury trial
Yes
December 5, 2009
Bill 198
Female, 40 at MVA
Homemaker and
caregiver for autistic
sons
Yes
Causation
Expert
Witnesses
Bishop-Gittens v. Lim
2016 ONSC 2887
McKelvey J. (Newmarket)
April 28, 2016
Jury trial
Nkunda-Batware v. Zhou
2016 ONSC 2492
Hackland J. (Ottawa)
May 2, 2016
Jury trial
Yes
November 18, 2009
Bill 198
Female, 37 at MVA
Retail
general
manager
Yes,
with
accommodation
after
MVA;
income increased
Yes
January 15, 2011
Bill 198
Female, 54
Social worker on
stress leave at MVA
No,
alleged
unable to resume
work due to MVA
Expert
Witnesses
Credibility
Jury Verdict
Causation
Causation
Expert
Witnesses
$10,000 General Damages
$5,000 Future Health Costs
$0 Past and Future Economic
Loss
$0 Future Housekeeping
$33,000 General Damages
$22,000 Past Housekeeping
$32,000 Past Caregiving
$21,000 Future Housekeeping
$12,000 Future Caregiving
Family Law Act claimants:
$7,500 husband, $7,000 son,
$7,000 son
$0 Loss of Earning Capacity
$0 Loss of Interdependent
Relationship
$40,000 General Damages
$0 Loss of Competitive
Advantage or Future Loss of
Income
$15,000 General Damages
$150,000 Past Economic Loss
$150,000 Future Economic
Loss
$1,830 Out of Pocket
$101,50 Future Health Care
41
Arteaga v. Poirer
2016 ONSC 3712
DiTomaso J. (Barrie)
June 3, 2016
Jury trial
Yes
March 15, 2011
Bill 198
Female, age not
stated
Employed at
rehabilitation clinic
Mamado v. Fridson
2016 ONSC 4080
Baltman J. (Brampton)
June 21, 2016
Jury trial
Yes
November 1, 2010
Bill 198
Female, 27 at trial
Receptionist,
attending
postsecondary course in
the evening
Thomas v. Pin to Pin
Express Inc.
2016 ONSC 4385
Firestone J. (Toronto)
July 25, 2016
Judge alone
Yes
August 12, 2003
Bill 59
Male, 39 at MVA, 52
at trial
Employed
(unidentified)
Yes, returned to
work two weeks
after MVA;
alleged risk of
forced early
retirement due to
MVA
No,
alleged
unable to work
due to MVA;
unsuccessful
attempts
to
resume studies
Expert
Witnesses
Credibility
$20,000 General Damages
$13,150 Future Care Costs
$0 Future Economic Loss
Expert
Witnesses
Credibility
Causation
Not mentioned
Changed careers;
started medical
school after MVA,
employed
as
professor at trial
Credibility
Expert
Witnesses
*Undefended
action
$49,500 General Damages
42