The Importance of Credibility in Threshold Motions

When a defendant brings a threshold motion at the end of trial, the plaintiff bears the onus of proving his injuries meet substantially interfere with work or activities of daily living.  As a result, the plaintiff's credibility can be highly relevant.  One such example is Berfi v. Muthusamy, 2015 ONSC 981 (S.C.J.). 

The plaintiff brought an action as a result of a pedestrian-motor vehicle accident that occurred on October 28, 2010.  The jury found the defendant 80% at fault and the plaintiff 20%, and awarded $43,000 in general damages, $6,000 for past loss of income and nil for future loss of income.  The defendant brought a threshold motion.  The plaintiff alleged he sustained injuries to his left shoulder, arm and hand.  He continued to work full time, apart from a 17-day period following surgery.  He testified he did so in order to reach age 55 when he could retire and receive a union pension.  His anticipated retirement date was March 1, 2015.

After the plaintiff testified, counsel received the union file which included a Notice of Election form which indicated he planned on returning to work in April 2015.  A union representative testified the plaintiff contacted her the day before to withdraw the Notice of Election.

Stinson J. held the plaintiff had not met threshold.  There were a number of conflicts in the plaintiff's testimony, and he had continued to work in the same job for four years after the accident; Stinson J. described this factor as a "strong indication" the injuries had not substantially interfered with the plaintiff's ability to continue his regular employment.  In addition, the award of zero for future income loss was consistent with the jury finding the plaintiff was capable of working.  Finally, Stinson J. held that the limitations the plaintiff had with respect to household chores, and social and sporting activities were related to problems that pre-dated the accident.

The defendant's motion was granted.

Principles Relating to the Threshold

A helpful discussion of the principles relating to the Insurance Act threshold can be found in Malfara v. Vukojevic, 2015 ONSC 78 (S.C.J.).  The arose out of a 2006 motor vehicle accident.  A jury awarded $7,700 in general damages, $1,326 for past income loss and nil for future loss of income.  Justice Firestone heard a threshold motion while the jury was deliberating.  He held that the plaintiff had not met threshold.

Justice Firestone set out a number of principles with respect to threshold motions, including:

• the trial judge is not bound by the jury's verdict, but is a factor he or she can consider in determining the threshold motion;
• "permanent" does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;
• "serious" relates to the seriousness of the impairment to the person and not to the injury itself;
• the degree of the impairment must go beyond tolerable to be serious;
• it is the effect of the injury and not the type of injury that is the focus of the threshold inquiry.

The evidence was that the plaintiff was 24 years old at the time of the collision and was completing a plumbing apprenticeship.  He alleged he sustained chronic neck and back pain as a result of the accident.  He was off work for 2-3 weeks then returned to his apprenticeship, ultimately becoming a fully licenced plumber.  He currently performs all of his job duties but with pain.  He no longer participates in sporting activities, partly because of his injuries and partly because he is busy.  He continues to cut grass, shovel snow and help in the kitchen, although with pain.

Justice Firestone granted the defendant's motion, stating "I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages".  The evidence did not support that the injuries and impairments had a significant effect on the plaintiff's enjoyment of life, or that they substantially interfered with his capacity for work or pleasurable activities. The impairments were not serious.

Plaintiffs May Provide Corroborating Evidence of Threshold Impairment

The Insurance Act provides that in order to prove they meet threshold, plaintiffs must lead evidence from a qualified physician as well as “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.”  The Court of Appeal recently held that plaintiffs may provide such corroboration themselves. 

In Gyorffy v. Drury, 2015 ONCA 31 (C.A.), the plaintiff was in a car accident in November 2003.  The defence brought a threshold motion while the jury was deliberating.  The plaintiff and three physicians testified.  The trial judge ruled the plaintiff's injuries has satisfied the impairment threshold, but held that the plaintiff could not provide the corroborating evidence that ss. 4.2 and 4.3 of Ontario Regulation 461/96 required.  Accordingly, the action was dismissed.

The Divisional Court allowed the appeal, and the Court of Appeal dismissed a further appeal.  It confirmed that a plaintiff can provide corroborating evidence in order to prove he or she meets threshold.  The evidence that has to be corroborated is the physician's, not the plaintiff's.

Given the conclusion in Gyorffy, it is perhaps more important to focus on the quality of the evidence provided by the plaintiff rather than on the need for corroboration.

 

 

 

Plaintiff Failed to Meet Threshold

The Court of Appeal recently affirmed a trial judge's decision to dismiss an action based on the failure to meet threshold. 

In Jennings v. Latendresse, 2014 ONCA 517 (C.A.), the plaintiff was in a motor vehicle accident in 2005.  The defendant admitted liability.  While the jury was deliberating the judge heard a threshold motion, and ultimately dismissed the action after the jury rendered a verdict.  The jury held that the plaintiff had recovered from her injuries and did not award any amount for general damages or past loss of income, although they valued a loss of competitive advantage at $58,000.

The plaintiff submitted that her diagnosis of chronic pain, by definition, must indicate the injuries were permanent.  The Court of Appeal disagreed.  There was evidence that the plaintiff was improving and continued to improve, her functional abilities showed no impairment, she had returned to her pre-accident employment, her medical examination showed full range of motion, expert evidence stated recurring pain was not caused by the original injury, and pre-accident physical and psychological stressors contributed to the chronic pain but had nothing to do with the injury.  The evidence supported the trial judge's decision the plaintiff did not meet threshold.

One of the arguments made by the plaintiff on appeal was that the jury verdict was inconsistent when it found the plaintiff had recovered from her injuries but awarded an amount for loss of competitive advantage.  The Court of Appeal held that there was nothing inconsistent in finding a loss of competitive advantage but that it was not caused by the accident.

Jennings shows the importance of marshalling the evidence at trial as well as conducting a causation analysis, especially in chronic pain cases.

Threshold Motion Successful

The defendants in a recent jury trial succeeded on a threshold motion.  In Ryckman v. Pottinger, 2013 ONSC 2857 (S.C.J.), the plaintiff had been in two motor vehicle accidents 11 months apart.  The plaintiff entered into a Pierringer Agreement with the first defendant and proceeded to trial against the second defendant.   The jury assessed global damages at $175,000 and the defendant at trial was responsible for 10% of the figure.  General damages would have been $3,500.

In granting the threshold motion, Justice Parayeski noted that an accident by accident analysis is required; just because a plaintiff met threshold in one case does not mean she will in another. Justice Parayeski inferred from the jury awards that they did not accept the submissions of the plaintiff as to her damages. It appeared the jury did not find the plaintiff credible. There was an observable difference between the plaintiff's appearance at court versus on surveillance. Ultimately, the damages awarded were so small as to lead to the conclusion that the plaintiff did not meet the threshold.  The second accident caused no more than a minor exacerbation of the injuries she sustained in the first accident.

Threshold Motion Successful

Surveillance evidence can be useful in showing that the plaintiff does not meet the Insurance Act threshold.

In Dahrouj v. Aduvala, 2012 ONSC 4090 (S.C.J.), the plaintiff was injured in a minor rear end collision.  She was a homemaker and alleged she developed chronic pain which impaired her functioning in the home and her social interaction in the community.

The evidence at trial was that the plaintiff visited her family doctor on multiple occasions prior to the accident complaining of head, neck and back pain.  She made similar complaints post-accident.  The defendant obtained surveillance showing the plaintiff engaged in a variety of activities, including scraping snow and ice off her car, pumping gas, reaching for groceries on an upper shelf and carrying groceries.  Justice Hackland described the video as “particularly devastating” to the plaintiff’s credibility, as it showed the plaintiff stretching and lifting, the activities she alleged restricted her functioning as a homemaker.

The plaintiff’s expert diagnosed her with “central sensitization”, based on a 45 minute interview and relying only on the plaintiff’s self reports.  Justice Hackland preferred the defence expert, who conducted a more thorough assessment and whose opinion was corroborated by the surveillance evidence.

Justice Hackland held the plaintiff had not proved she sustained a serious, permanent impairment of an important physical function.  As a result, she was not entitled to general damages and her recovery was limited to $32,000, the amount the jury awarded for past housekeeping. 

Surveillance of the plaintiff can be extremely important in defending claims, especially those alleging chronic pain.  When surveillance can be combined with expert opinion, it can be effective in showing that the plaintiff’s claim does not meet the threshold.