As the BC Government has introduced legislation that will impact motor vehicle accident claims by introducing a CAP on minor injuries, it is helpful to review the language in the legislation of other Provinces (specifically Ontario and Alberta) as it pertains to the definition of “serious impairment”. This article will review the law as it pertains to the Province of Ontario.
ONTARIO
This article is going to review the threshold test for “permanent serious impairment” in the Province of Ontario.
In Ontario, it must be determined whether the sustained injury meets the threshold test in order to seek compensation for it, as set out in s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8 and O. Reg. 461/96 under Court Proceeding for Automobile Accidents on or after November 1, 1996.
In other words, a Plaintiff in Ontario is not permitted to commence a tort claim after experiencing “pain” in a motor vehicle collision, even if there has been some interference with their enjoyment of life. In order for a Plaintiff to be entitled to bring a tort action and be compensated for the sustained injury, he/she must establish a “permanent, serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function.”
There are exceptions that are outlined in the Insurance Act and Regulations (Section 267.5 (5) in particular, but experiencing “pain” is not enough and does not satisfy the threshold test. If the pain symptoms are tolerable and the Plaintiff is able to function well, then the threshold wording of the test will not be satisfied, and there will be no claim in tort.
In Halley v. TTC, 2018 ONSC 6093 (CanLII), the defence succeeded in having the Plaintiff’s action dismissed as the Plaintiff failed to adduce evidence of an expert to establish that a “permanent, serious impairment of an important physical, mental or psychological function” had been sustained.
We will review the Insurance Act and Regulations of the Province of Ontario. We will look at the criteria that must be established:
4.2 (1) a person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- 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,
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 or 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, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
To succeed in satisfying the criteria, at least one qualified expert must adduce evidence that can confirm the following:
- the nature of the impairment;
- the permanence of the impairment;
- the specific function that is impaired; and
- the importance of the specific function to the person.
Evidence must also be adduced that the impairment was caused by the accident, as set forth above: See Gyorffy v Drury, supra.
Of course, the onus lies with the Plaintiff, and in this particular case, the Plaintiff did not establish that the injuries satisfy the threshold test on a balance of probabilities. Unfortunately, the Plaintiff was not well prepared and did not have the medical evidence required to establish that she was suffering from a permanent serious impairment of an important physical, mental or psychological function.
The Defendant’s Order was granted.
In a further decision Rodrigues v. Purtill, 2018 ONSC 3102 (CanLII) a very useful and helpful excerpt is noted:
“..the inquiry set out by the Court of Appeal in Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.) remains the prescription. There is this short, useful summary of Meyer in Valentine supra at para. 27:
- Has the injured person sustained permanent impairment of a physical, mental or psychological function?
- If yes, is the function which is permanently impaired important?
- If yes, is the impairment of the important function serious?
[11] There are no “hidden meanings” in this language. On interpretation, there is this guidance from the Court of Appeal in Meyer at paras.12, 31, and 32:
[12] It is worth emphasizing here that when it created those statutory exceptions the Legislature did not choose to express itself in difficult or technical terms. It used words which are common and which are in everyday use. It does not seem to us to be desirable to seek hidden meanings for such common and ordinary words as “serious” and “important”.
…
[31] The words “important” and “serious” qualify bodily function and permanent respectively. They do not relate to the word “injury”. To examine a threshold which a judge thinks is significant can lead one to qualify words in the legislation in a fashion which was not contemplated by it. The inquiry was not to determine some general threshold. Rather it was to look at the words used in the legislation and apply them. Courts should refrain from looking for and then qualifying a concept which is not found in the language of the legislation.
[32] We stress that the word “serious” relates to impairment and not to injury and great care must be taken so that courts do not attach meanings to words which were not placed upon them by the Legislature.
[12] On the correct evidentiary approach to the threshold analysis, I am instructed at para. 18 of Meyer as follows:
[18] While we will have more to say about subjective and objective standards or tests later in these reasons, we think it necessary to emphasize that in formulating its answer to the first question a court will decide the issue based upon its assessment of the medical and other evidence presented to it. Section 266(1) does not affect any change in the methods whereby the courts have traditionally determined whether a plaintiff has sustained a particular injury and, if so, what is its nature, cause and extent. Some injuries which are physical in nature can be diagnosed objectively, some can be diagnosed only upon the basis of a patient’s subjective complaints and others are diagnosed on the basis of both objective observations and the patient’s subjective complaints. The courts have traditionally weighed and assessed such evidence and will continue to do so when deciding whether an injured person has sustained permanent impairment of a bodily function caused by a continuing injury which is physical in nature.
[13] The onus of proof rests upon the injured person to establish on a balance of probabilities that she is a person entitled for one of the exceptions.
WHIPLASH INJURIES
In Watt v. Bissonnette, 2018 ONSC 6258 (CanLII) the Plaintiff was not able to establish that her injuries met the threshold test resulting in a NIL award. The Court determined, as a finding of fact, that the Plaintiff sustained a whiplash injury that lasted for not more than 8 week’s time.
Conclusions
[59] For all of these reasons, Judgment will issue for the following relief:
(1) Declaring that the plaintiff has not sustained a permanent and serious impairment of an important physical, mental or psychological function, within the meaning of s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, with reference to the Regulation, as a result of the motor vehicle accident which she was involved in on August 14, 2009;
(2) Assessing the plaintiff’s general, non-pecuniary damages for a whiplash injury of approximately 8 weeks duration arising from the accident at $10,000.00, that with the application of the statutory deducible reduces the award to nil;
(3) In the absence of a threshold injury, there is no entitlement to health care expenses;
(4) In the absence of proving causation, the balance of the action is hereby dismissed.
CHRONIC PAIN – PERMANENT SERIOUS IMPAIRMENT
In Mousseau v. Morrison, 2018 ONSC 1274 (CanLII), the Plaintiff attended a jury trial and was successful in an award $212,350.00. Following the jury trial, however, the defence brought a motion application for a ruling on whether the Plaintiff met the requirements of s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended. This was a chronic pain case and the Court found that the Plaintiff was successful in proving on a balance of probabilities that the chronic pain she sustained as a result of the motor vehicle collision she was involved in was appropriately defined as a condition that caused her a “permanent serious impairment”.
The injuries sustained by the Plaintiff were noted:
Fibromyalgia;
Subluxation complex (vertebral), cervical region;
Whiplash associated disorder [WAD2] with complaint of neck pain with muscul;
Subluxation complex (vertebral), thoracic region;
Subluxation complex (vertebral), lumbar region;
Sprain and strain of sacroiliac joint
In this case, the Plaintiff was forced into early retirement, and had significant impact on her usual activities of daily living and the medical evidence supported that the Plaintiff was not expected to substantially improve.
A helpful case that was quoted in support of the Plaintiff’s chronic pain being deemed a “permanent serious impairment” is:
In Brak v. Walsh, 2008 ONCA 221 (CanLII), the court held at paras. 21 and 22,
21 For some plaintiffs with chronic pain, it may be possible for them to do all of the things that they did before the injury on an occasional basis. The requirement that the impairment be “serious” may be satisfied even though, through determination, the plaintiff resumes the activities of employment or the responsibilities of the household but continues to experience pain.
22 A return to work, even where a person actually earns more money, will not necessarily result in a finding that the plaintiff does not have a permanent and serious impairment of an important physical, mental or psychological function. The plaintiff’s ability to return to work and continue his or her employment is not fatal to a threshold motion. The courts look at the totality of the evidence, including the impact of the impairment on the plaintiff’s ability to continue working and the impact of continued work on the plaintiff.
[47] I find that the plaintiff continued to work over the ensuing approximate 4.5 years through her perseverance, fortitude and sheer determination, in furtherance of her admirable work ethic, and that the impairment of the important function is indeed serious.
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