As five recent Superior Court decisions show, when determining whether a plaintiff’s injuries meet the statutory threshold, the medical facts make or break the case.
The statutory threshold as defined by section 267.5(5) of the Insurance Act determines that an injury must be a serious and permanent impairment of an important bodily function in order to qualify someone for compensation for general damages. So far in 2021, the court found that three plaintiffs met the statutory threshold and two did not.
In Legree v Origlieri, the court had no trouble finding that the plaintiff’s injuries were sustained in the subject car accident and were permanent. The plaintiff was diagnosed with chronic pain and post-concussion syndrome, and she had a limited range of motion post-accident. Following the accident, the plaintiff could no longer work as a dental assistant, the only job she had training for, and her chronic pain made “her ability to partake in the usual activities of daily living extremely difficult if not impossible.” The court found the plaintiff’s injuries serious as she was “unable to actively parent” and “cannot enjoy the activities she used to.”
In Persaud v Bascom, the plaintiff sustained soft tissue injuries to his neck and right shoulder, and even the defendant conceded that the plaintiff’s injuries were permanent. The court found that the plaintiff’s injuries were serious as his capacity for “housekeeping, home maintenance, playing with his grandchildren, going to the park” was diminished by his injuries.
In Solanki v Reilly, the plaintiff was diagnosed with chronic pain, but unlike Legree, he had worked for 5 years continuously following the accident. The court found the plaintiff’s injuries permanent. The court cited Persaud for the idea that a continuous impairment does not necessarily mean an “unbroken chain” of impairment since the accident. The court found the plaintiff’s injuries serious, since his dysfunction got in the way of his ability to perform the essential activities of his regular employment.
In contrast with these three cases, twice in the past year the court found that the plaintiff did not meet the threshold.
In Girao v Cunningham, the plaintiff claimed she was unable to work, but the court reasoned that it was not the whiplash she sustained in the accident keeping her out of a job. Rather, it was her depression and anxiety, which she experienced prior to the subject accident, preventing her from working.
In Sauvé v Steel, surveillance showed the plaintiff volunteering for several hours, taking out the garbage, and performing outdoor home maintenance. As the injuries from the accident had resolved, the court concluded that the plaintiff’s injuries were not permanent and he did not meet the threshold.
The five threshold decisions provide a few takeaways when considering bringing or defending a threshold motion. It remains a permanent and serious truth of law that the facts of the case matter. In order to meet the statutory threshold, plaintiffs must be able to prove the accident caused more than just a temporary pain in the neck.
So far in 2021, the court found that three plaintiffs met the statutory threshold and two did not.