THRESHOLD UPDATE: NISSAN AND ITS AFTERMATH

[Posted as relevant case law by the personal injury lawyers of Flaherty Slaon Hatfield]

The most recent amendments to the Insurance Act[1] otherwise known as Bill 198 came into effect on October 1, 2003. The amendments came by way of Ontario Regulation 381/03 which amended O.Reg. 461/96 and added definitions of the terms making up the general threshold identified in s.267.5(5) of the Insurance Act. The Regulation now defines the terms “serious”, “important” and “permanent”. The Regulation also sets out the evidence required to meet the threshold. For ease of reference, the defining regulation is attached at Schedule “A” to this paper. Prior to Bill 198, it was widely accepted that the Court of Appeal’s decision in Meyer v. Bright; Lento v. Castaldo; Dagliesh v. Green[2] was the starting point for any threshold analysis.

Nissan v. McNamee

Until the recent decision of Justice Morissette in Nissan v. McNamee[3], the first threshold decision under the new Bill 198 regime, there has been much discussion about what impact Bill 198 would have on threshold decisions. For the most part, it was felt that Bill 198 simply codified the decision in Meyer v. Bright. It is almost identical to the definition of a serious impairment set out in Meyer v. Bright. The question was whether or not the plaintiff would face a higher burden of proof, in other words, whether or not it would be harder for plaintiffs to meet the threshold.

Madame Justice Morissette was the first judge faced with the task of interpreting O.Reg. 381/03. Ms. Nissan was involved in a motor vehicle collision on November 2, 2003. She suffered whiplash type injuries. At the time of the collision she was employed part-time as a cleaner, prior to which she was employed for a number of years in a pizza shop. After the collision, Ms. Nissan returned to “work-like” duties at least five months post-accident at a pizza shop. She worked weekend shifts three nights a week and was not paid for her work (it was volunteer). She testified at trial that she could only engage in the physical aspects of this employment after consuming large doses of Percocet. Information regarding this volunteer work was not provided to Ms. Nissan’s health care professionals. Ms. Nissan advised, rather, that she was unable to return to work.

Surveillance videos viewed during the course of the trial showed Ms. Nissan engaging in all of the activities that would have been require of an employee at a pizza shop. Medical evidence tendered during trial also revealed that Ms. Nissan’s employer at the cleaning company agreed to accommodate Ms. Nissan through reduced hours and/or teaming her with another worker. Ms. Nissan never sought or made use of these accommodations.

Madame Justice Morissette concluded that Ms. Nissan did not meet the threshold as she misled her health care professionals. She felt that Ms. Nissan’s complaints did not prevent her from returning to employment of the same nature as she had before the motor vehicle accident. She agreed with Dr. Reznek, Dr. Upton and Drs. Clifford and Zabieliauskas in this regard and held that Ms. Nissan’s reports of injury were inconsistent with the level of function shown in the surveillance evidence. She went on to say that Ms. Nissan also did not have an impairment that substantially interfered with most of her usual daily activities.

Despite Justice Morissette’s conclusions regarding Ms. Nissan, she did provide much insight into the interpretation of the new Bill 198 regime and the definitions under O.Reg. 381/03. She reviewed, in detail, comments made by Ruth Sullivan in Dreidger on the Construction of Statutes 3d ed.[4] in her analysis of the purpose of legislative amendments. She ultimately determined that because the definitions were added by regulation as opposed to an amendment to the Act, the sections added by regulation are essentially confirmatory of the prior law and “efforts to reframe the broad approaches that have been applied since Meyer should be resisted”[5].

In addressing the distinctions that have arisen between the threshold approach taken in Meyer v. Bright and the definitions now contained in the Regulation, Justice Morissette concluded that

most of the regulation does not appear to support any significant change in the interpretation of the threshold. In general terms, it suggests at best some clarification of the law regarding accommodation. The only exception is the addition of the word ‘most’, which suggests a higher threshold where impairments affect daily living but not working.[6]

She also disagreed with defence counsel who argued that the express requirements for proof suggest a higher standard as to the threshold itself.  She held that the evidentiary requirements set out in s.4.3 of O.Reg 381/03 are for evidence necessary to prove the threshold in any case with the focus being on the evidence coming from a physician. She went on to state that “the source of the evidence should not change the standard on the threshold question”[7].

Saikaly v. Buck

Justice Morissette paved the way for cases that would follow. On May 16, 2008 in Ottawa Mister Justice H.R. McLean rendered an oral decision on a threshold motion in the absence of the jury following trial in Saikaly v. Buck[8]. Much of the argument before Justice McLean addressed what impact the amendments had on the threshold analysis rather than on the application to the facts of the case. Justice McLean had the benefit of having the Nissan case brought to his attention, having been rendered only sixteen days prior. He reviewed Justice Morissette’s decision and found it to be “highly persuasive with regard to her findings”[9]. He finds no reason why he should come to a different conclusion than Justice Morissette.  Justice McLean invited counsel to make further submissions as to the factual basis for a threshold finding based on Justice Morissette’s interpretation of the law.

Unfortunately, the transcription of the second part of Justice McLean’s ruling has not yet been released; however, Justice McLean found that the Plaintiff met the threshold on the basis that her impairments substantially interfered with most of her usual daily activities. Briefly, the motor vehicle collision occurred on October 17, 2003. The Plaintiff suffered a serious knee injury requiring surgery but had a remarkable recovery. She suffered from chronic pain and depression. She returned to her pre accident employment with significant accommodation from her employer. Pre-accident the Plaintiff was very family oriented, taking care of the household, husband and two teenage children. She was social organizer for her group of friends. Following the collision, she continued to clean her home but at a significantly reduced capacity. She will nap every two to three hours every afternoon after finishing work. She became overwhelmed by her household tasks and had no intimacy with her husband. Justice McLean found the Plaintiff’s impairments relating to her knee (difficulty squatting, kneeling, climbing stairs) substantially interfered with most of her usual activities of daily living.[10]

Sherman v. Guckelsberger

The next decision to be made was by Madame Justice Milanetti on December 29, 2008 in Sherman v. Guckelsberger[11]. This case arose out of a motor vehicle collision that occurred on March 10, 2004. The plaintiff suffered from headaches, neck and shoulder pain, back pain and tingling in the arms. The only medication being taken at the time of trial was Tylenol for neck pain and headaches. At the time of the accident the plaintiff was employed as administrative staff at a doctor’s office. She was off work for a short period of time but eventually returned to work full time, four days a week, although she could fluctuate her hours depending on the volume of work. She also took on a bookkeeping job following the collision. She was able to do this job from home and it resulted in an additional income of $6,000 to $7,000 per year. In 2007 the plaintiff reduced her work hours from 4 full days to 2 full days and 2 half days. It was an 8 hour reduction per week and resulted in the loss of $150.00 per week. She made the decision to reduce her hours on her own (it was not encouraged by any physician) but it was supported by her family physician and her employer testified at trial that he provided the plaintiff with accommodations but the plaintiff had been complaining about the inability to continue working full time hours due to accident related pain and fatigue. The plaintiff continued to do the bookkeeping job.

The evidence at trial was that the plaintiff continued to go camping after the accident. She took a trip to Florida with her family in 2005 and she had regular attendance at the gym and massage therapy sessions. She had gone figure skating once a year since the accident. The evidence for the plaintiff, in addition to her physicians, came from her employer, mother, sister and boyfriend. Her mother and sister did not testify regarding the plaintiff’s ability to work or difficulties with her employment tasks. Ms. Sherman’s boyfriend testified that she had difficulty with coping with work in the first year following the collision such that she would go to sleep upon returning home from work, she had increased pain, she was limited in the housekeeping she could do and she had a decreased social life. He also said that the longer the plaintiff worked full time the less she was able to deal with the pain and the more tired she became. He did, however, admit that when the plaintiff cutback her hours at work it improved her life.

Justice Milanetti had some issues with the medical evidence presented. The plaintiff called Dr. Kumbhare as a medical legal expert. The Defendant called Dr. Upton, who conducted a paper review only, and Dr. Zabieliauskas. The plaintiff also called her family physician although Justice Milanetti had issues with the credibility and objectivity of the family physician, noting that the doctor was too much of an advocate for the plaintiff. Justice Milanetti was also disappointed that the plaintiff did not call the neurologists who had interpreted two conflicting EMG’s (one was normal and the other, conducted later, had positive findings). An MRI conducted in 2008 showed disc extrusion, posterior anal bulging and marginal osteophytes. Also at issue was the plaintiff’s pre-accident medical condition. She had been seeing a cardiologist for management of a congenital heart disease. Justice Milanetti found it troubling that the plaintiff had not mentioned her accident related symptoms to the cardiologist and the cardiologist had mentioned, on several occasions, that the plaintiff was doing well. The plaintiff explained that she did not make reference to the motor vehicle collision because the cardiologist was seeing her for her heart, not accident related impairments, and the references to her doing well related to her heart condition.

While Justice Milanetti felt the plaintiff was credible, save and except for the situation with the cardiologist, she was critical of the plaintiff’s unilateral decision to reduce her work hours three and a half years post-accident. She was critical of the fact that it took so long for the plaintiff to reduce her work hours and that she kept her bookkeeping job. She was not convinced of the severity of the whiplash injury suffered.

Counsel for the plaintiff conceded that the threshold would not be reached based on an impact on daily life activities and to the plaintiff’s high level of unaffected function. So the threshold analysis focused on the diminished work capacity of the plaintiff. Justice Milanetti felt that there were credibility issues in this regard because all of the information regarding the reduced work load came from the plaintiff and it was her decision alone to decrease her hours. She felt it was hard to believe that a woman functioning at such a high level was not capable of maintain the work she did for three and a half years post-accident and she was able to take on a second job. While she liked the plaintiff as a witness, she held that the plaintiff did not meet the threshold in this case.

Aside from her decision on the threshold, Justice Milanetti made some comments regarding the threshold analysis under Bill 198. Her comments seem to be in stark contrast to the conclusions made by Justice Morissette and Justice McLean in the two preceding Bill 198 threshold decisions. She held that

If the legislators saw fit to amend the legislation yet again increasing the deductible for claims under $100,000 and making it so much more specific, they did so with a view to tightening it up from the former version.[12]

She further stated that she took a different view of the changes to the legislation for that of Justice Morissette in Nissan. However, she does not expand on how her view is different. She did state that the “new legislation does not make prior case law irrelevant”. She referred to pre-Bill 198 cases of plaintiffs who met the threshold and continued to work despite pain. The significance of these comments is that pre-Bill 198 cases will continue to be relevant in the court’s analysis of the threshold on a case by case basis. The judge’s will continue to consider how judges in pre-Bill 198 cases applied the facts in each case to the threshold analysis.

In the Sherman case, Justice Milanetti looked at the definitions in the Regulations and the pre-Bill 198 case law. She held that she could see how the reduction of ¼ of one’s required work hours would constitute substantial interference with one’s regular job but the complicating factor for Ms. Sherman was that she reduced the hours of her normal job but picked up more hours at another job so for three and half years she did more than her usual work. Further, she could not find what “function” was impaired. She took issue with the level of activity of the plaintiff in her social/recreational life which was in stark contrast to someone incapable of maintaining her quite light duty employment four days per week. The plaintiff did not identify any tasks she could not do in her work, but rather gave a general description of ongoing pain symptoms that wore her down. Justice Milanetti accepted that this may be something that could satisfy the “function” test if the completion of the totality of the job requirements prevented the individual from any other aspects of her life, which was not the case for Ms. Sherman. Justice Milanetti felt that the plaintiff did not adduce sufficient evidence to satisfy s.4.2(1)2.

Burns v. McCormack

Two days after Justice Milanetti’s decision, on December 31, 2008, Madame Justice Rady of the Ontario Superior Court of Justice released her decision on a threshold application in Burns v. McCormack[13]. This case involved a motor vehicle collision that occurred on August 25, 2004. As a result of the collision, the plaintiff suffered from shoulder pain, hip pain, neck pain and headaches. She required trigger point injections. The shoulder and hip pain resolved but by the time of trial she continued to suffer from neck pain and headaches. Pre-accident the plaintiff was a receptionist at a dental office. She continued to work full-time post accident, with accommodation. Her intention was to reduce her work load to 80% in 2006 but was not able to do so by the time of trial. She was working at the expense of her family life. Evidence at trial suggested that her pain interfered with her pre-accident activities such as hiking, dancing and bowling. The plaintiff testified that she scaled back her activities at her church and in providing pastoral care and that her relationship with and ability to care for her children was negatively affected by her pain.  Together with her treating physicians, the plaintiff’s employer, co-workers, long time friend and former and present husbands testified on her behalf.

Defence counsel argued that the plaintiff did not meet the threshold as she continued to serve on the executive of her dental association, socialize with friends, worked full-time, went shopping and engaged in some housekeeping duties. He also argued that the plaintiff was able to re-marry following the collision and now had five children in her home (her own children and those of her husband). She was able to go on vacations with her family as well.

Justice Rady held that the plaintiff met the threshold. In her decision she noted that the plaintiff’s complaints were genuine and there was no contention by the defence otherwise. She had no doubt from the doctors as to the genuine nature of the plaintiff’s complaints. She preferred the evidence of treating physicians to that of Dr. Soric. Justice Rady further held that in a threshold analysis the starting point is Meyer v. Bright despite the evolution of the language in the Insurance Act. She went on to state that:

[t]he determination of what constitutes and important bodily function [now an important physical, mental or psychological function] is essentially one of the fact requiring a consideration of the ‘injured person as a whole and the effect which the bodily function involved has upon the person’s way of life in the broadest sense of that expression’.[14]

In her analysis of whether there was substantial interference, Justice Rady concluded that the fact the plaintiff continued to work was not determinative of the analysis. At paragraphs 14 and 15, she referred to the decision of Dennie v. Hamilton[15], in which Justice Whalen quoted from Hartwick v. Simser[16]:

A serious impairment is determined by reference to the condition and situation in the life of a particular injured person. What is serious to some will not be serious to others. What is serious must be resolved on a case by case basis. However, a serious impairment is generally one that substantially interferes with a person’s ability to perform his usual activities of daily living or continue employment. Even where full-time employment is resumed, albeit in a reduced capacity or in an altogether new area from that performed by a claimant pre-accident, this will constitute a ‘serious’ impairment” see Lento v. Castaldo, [1993] O.J. No. 2446 (C.A.).

Justice Rady commented that the plaintiff “is to be credited for continuing to work, notwithstanding its toll”.[17] She felt it would be “counterproductive to penalize an injured person for making genuine attempts to resume and maintain employment, notwithstanding the toll by necessarily concluding that there could be no substantial interference by virtue of continued employment”.[18]

Justice Rady applied Justice Morissette’s approach in Nissan to her analysis of the threshold. She accepted that when looking at whether or not the plaintiff’s impairment is permanent and of a nature expected to continue without substantial improvement when sustained by persons in similar circumstances, the plaintiff would have to be compared to others with whiplash associated disorder who have developed chronic pain as opposed to those who sustained the same injury but who did not develop chronic pain. She noted that the words “similar circumstances” are not clear but it would be “difficult to accept that the intent of the drafters of Bill 198 was to eliminate, for example, compensation for persons suffering from chronic pain by requiring a comparison to those who have not developed chronic pain”[19].

The last comment made by Justice Rady was that chronic pain is a legitimate condition recognized by the medical profession and the courts, as outlined in Nova Scotia (Workers’ Compensation Board) v. Martin[20]. Not only is this decision important as it relates the new threshold under Bill 198 but it also gives credence to the Nova Scotia (Workers’ Compensation Board) case which is often referred to by plaintiff’s counsel but seemingly discounted by insurance companies.

Ali v. Consalvo

The most recent reported Bill 198 threshold case was released February 6, 2009, a decision of Justice Wilson in Ali v. Consalvo[21]. This case involved a motor vehicle collision that occurred on May 30, 2004. The plaintiff was a homemaker at the time of the accident and, as such, the focus was on the inability to do the usual activities of daily living. Justice Wilson only looked at Justice Milanetti’s decision in Sherman v. Guckelsberger. He did not consider Justice Morissette’s decision in Nissan. The only comment that Justice Wilson made regarding how to apply the threshold post-Bill 198 was that he agreed with Justice Milanetti’s comment that prior case law is not irrelevant because of Bill 198. He stated that “it is of great assistance in determining what constitutes permanent, serious, continues injuries and what constitutes an important function”[22]. He added that “each case must be determined on its own facts and the same injury does not result in an identical outcome in each person”[23].

Justice Wilson concluded, based on the facts presented to him, that the plaintiff did not meet the threshold. He had significant concerns about the plaintiff’s credibility. The plaintiff was 55 year of age at the time of the collision. She had seven children. The evidence presented by the plaintiff and her collateral witnesses was that she was a traditional Somali wife and mother responsible for all of the household duties, and teaching Somali customs, religion and language to her kids and grandkids. She was very religious, attending the Mosque, prayer five times a day, going to the Somali community centre for volunteering. She would go to the mall and care for her grandchildren regularly. After the accident, the plaintiff testified that she could not bend or kneel to pray, she could not carry out household tasks, she did not work, and did not organize or attend family functions. She also testified that she had not gone to the Mosque because she could negotiate the few steps to get to the bus stop. She had not gone to the community centre or mall and did not care for her grandchildren anymore.

The issue in the case was the plaintiff’s pre-accident medical condition and level of function. The plaintiff had pre-accident right knee and low back pain. She saw a chiropractor once and had a cortisone injection for the knee. The plaintiff’s evidence was that any problems she had pre-accident did not impact on her level of function. She was diagnosed with osteoarthritis of the back in 2000 but she testified that this was “not a big problem”. She denied any physiotherapy treatment which was recorded in the family physician’s notes. The family physician also prepared a note to Ontario Works in 2000 indicating the plaintiff’s functional limitations and the use of a cane. The plaintiff was requesting payments for medication. The plaintiff clarified at trial that by the time of the collision she was fine.

The plaintiff’s medical expert, Dr. Ogilvie-Harris, testified that the plaintiff suffered from chronic pain post-accident but he admitted that he was not aware of any of the plaintiff’s pre-accident medical history. Justice Wilson felt Dr. Ogilvie-Harris was too much of an advocate for the plaintiff. Further, the plaintiff did not disclose her pre-accident medical history to Dr. Soric. Despite the plaintiff’s comments regarding her post-accident level of function, she advised a kinesiologist and occupational therapist she saw shortly after the accident that she was able to ascend and descend a series of 15 stairs, was able to make all the meals for her family, take the bus, bend and clean and help her daughters with the laundry. At trial, the plaintiff denied making these statements. The plaintiff had no medical treatment after one year post-accident.

Justice Wilson did not accept that the plaintiff’s impairments were accident related and, even if they were, he felt that they did not substantially interfere with most activities of daily living given the medical evidence presented at trial.

Important points from the case law under Bill 198

Although all but one of the above noted threshold cases found that the plaintiff did not meet the threshold, those cases all involved credibility issues and a failure to present sufficient evidence to satisfy the threshold as defined in the regulation. The majority of the cases support the propositions that the changes to the legislation are simply a codification of Meyer v. Bright and that the burden is no higher on the plaintiff post-Bill 198. While Justice Milanetti indicated that she viewed things differently than Justice Morissette, she did acknowledge the importance of considering case law as it relates to the analysis of the threshold pre-Bill 198.

Pre-Bill 198 Threshold Rulings

Given Justice Milanetti’s comment that it is important to consider these cases in a Bill 198 threshold analysis, I will outline a few pre-Bill 198 threshold decisions rendered in the last year. Of particular note is that, in some of the cases, the judges have actually commented that Meyer v. Bright is still the starting point and that there should be no change in approach despite the existence of Bill 198.

Brak v. Walsh

On April 1, 20008 the Court of Appeal rendered a judgment in Brak v. Walsh[24]. The trial judge had granted a threshold motion. The Plaintiff appealed. The Court of Appeal held that the trial judge erred in the standard he applied both with respect to permanency and seriousness of the plaintiff’s injuries. The Court of Appeal felt the trial judge’s analysis of the seriousness of the injury was too narrow. The judges would not render a final decision on threshold due to credibility issues; however, I include this case to outline some of the comments made by the Court of Appeal relating to “serious” impairments.

In this case, the plaintiff suffered a low back injury as a result of the accident. She returned to work and was able to engage in some domestic duties. The evidence was that the pain would decrease with time if she engaged in a reasonable exercise and weight loss program. In making his decision, the trial judge considered only that the plaintiff was able to carry on with her full range of activities but did not consider the evidence of the lay witnesses regarding the plaintiff’s overall enjoyment of life. The Court of Appeal held as follows:

The requirement that the impairment be ‘serious’ may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children, and engage in recreational pursuits.[25]

There have been no further reported decisions on this case.

Rosypskye v. Stewart

Justice Matheson made a decision on May 29, 2008 to grant the defendant’s threshold motion and dismissed the plaintiff’s action in Rosypskye v. Stewart[26]. The plaintiff had been involved in four motor vehicle collisions. The subject action involved the fourth collision only. The medical evidence was scarce regarding the impact of the fourth collision on the Plaintiff. Only one medical report was relied upon postdating the fourth collision. It was dated three months post accident. At the time of the trial the plaintiff was 71 years of old with limited English. She was the only witness called by plaintiff’s counsel. Counsel relied on the documentary evidence, which included medical records relating to the first three collisions. Justice Matheson found it hard to believe that the plaintiff, who received treatment following her first three collisions, had suffered a permanent and serious impairment following the fourth collision and not receive any treatment. He held that there was “a paucity of evidence that would lead [the court] to conclude that the plaintiff had overcome the burden of proof that was on her to establish that she had met the threshold”[27].

I mention this case to point out Justice Matheson’s comments regarding Regulation 381/03. He acknowledges that he is not bound by Regulation 381/03 as the collision occurred in September 2001, however, he felt the need to comment on Justice Morissette’s decision in Nissan. He agrees with Justice Morissette that the law is still that of Lento v. Castaldo and that the Regulation is simply “of assistance in giving guidance to the interpretation of the Act. He then goes on to refer to the particular references in Lento v. Castaldo he felt were pivotal to the threshold analysis.

Gaukel v. Thukral

This trial was heard by Justice Arrell in July and August 2008. He released his threshold ruling in Gaukel v. Thukral[28] on September 11, 2008. The case involved a 46 year old plaintiff, married with two teenage children. As a result of the injuries she sustained in the collision, including upper back pain, neck pain and headaches, she was required to change jobs two times. She ultimately returned to full time work in a sedentary job with flexibility to move as required. No claim was presented for loss of income, past or future.

Defence counsel raised a causation issue, which Justice Arrell disagreed with based on the medical evidence presented. The plaintiff had not mentioned her pre-accident shoulder injury to her treating physicians or the defence doctor, nor did she mention them on discoveries. Her explanation was that she had the problem which resolved after treatment and no longer were a problem at the time of the accident.

Defence counsel also conducted surveillance on the plaintiff on two occasions. On one occasion she was shown raking leaves with her family and on the second she carried a heavy water jug into her house. The plaintiff testified that she would try to do as much as she could and often suffered with increased pain the days following such events. Justice Arrell rejected defence counsel’s suggestion that the plaintiff was not believable and that the court should reject her evidence regarding pain and dysfunction.

The plaintiff led evidence, together with her treating physicians, husband and close friend, that she was an active individual pre-accident. She engaged in a number of sports, including competitive soccer, boating, skiing, and activities with her children. She was responsible for inside and outdoor maintenance, meals and shopping. She had an active social life and very close marriage. The evidence revealed that the plaintiff’s life changed significantly after the accident. She had to hire people to clean her house and she was in constant pain, worse at the end of the day. She no longer played sports with her children, skied or swam lengths. She was able to vacuum the pool and resumed playing soccer, having changed her position, which she ultimately quit. She and her husband had to undergo marriage counseling for a period of time due to stresses and pain resulting from the plaintiff’s pain.

Justice Arrell accepted the evidence from the doctor’s that the plaintiff’s pain was a permanent, physical impairment. He further accepted that the plaintiff’s impairment of her upper back is an important one. Given the totality of activities that are being affected, as well as the daily pain and disturbance of sleep led Justice Arrell the conclusion that the impairment was serious. He held that the interference with the plaintiff’s enjoyment of life is “well beyond tolerable. It is serious”[29].

Of note is that Justice Arrell relied on case law to support the proposition that the court is permitted to consider the jury verdict in arriving at its own decision on the threshold issue. The jury in this case awarded the plaintiff $40,000 in general damages, and thus, accepted the evidence of the plaintiff.

Guerrero v. Fukuda

On October 1, 2008, Justice Little rendered a decision on a threshold motion in Guerrero v. Fukuda[30] involving a plaintiff who had sustained a whiplash injury as a result of the collision. Justice Little made comments regarding whiplash injuries in general. He held that “calling an expert to say that no objective finding equals no pain is no longer acceptable. The same expert will often treat the pain that exists even though it is without objective findings”. Although this collision took place before October 2003, Justice Little relied upon the definitions contained in Regulation 381/03 in coming to a conclusion on the threshold. He also referred to the comments on what constitutes a serious impairment in May v. Cascola.

In this case, the plaintiff suffered an impairment that prevented her from working full time. She was in constant pain in the upper and lower back and in intermittent pain in most other parts of her body. She made several attempts to find employment and even took a heavy truck driving course. She was only able to obtain part-time employment working at a restaurant but does so with constant pain and serious lifestyle restrictions.

Justice Little accepted the evidence of the plaintiff’s family physician fining him to have given his evidence in a straightforward manner without allowing bias to impact upon the truth.  He rejected Dr. Clark’s evidence for the defence. He concluded that Dr. Clark’s “evidence was a classic example of a highly qualified doctor with a pre-existing bias, appearing as a hired gun to discredit Ms. Montero”[31].

Justice Little found the plaintiff suffered from a permanent impairment. He held that the impairment substantially interfered with most of the plaintiff’s usual activities of daily living considering her age. He held that the impairment substantially interfered with both the plaintiff’s employment and all activities of her daily life.

Keam v. Caddey

Justice Whitten was presented with a threshold motion in Keam v. Caddey[32]. He made his ruling on October 28, 2008 and found the plaintiff met the threshold. In his decision, Justice Whitten commented that “although Meyer and Bright in fact dealt with the predecessor section to the current legislation, the principles are still considered applicable and current”[33]. Regarding the analysis of the term “serious”, Justice Whitten made the following conclusion:

This analysis should not superficially focus on whether a person can perform their daily activities. The performance, per se, is not the complete question, it is more a question at what expense is this performance given the impairment. To hold otherwise would penalize those who push themselves, who have no choice but to push on, possibly given their economic situation.[34]

In this case, the plaintiff sustained injuries to his neck and shoulder. He developed post traumatic stress disorder and driver fear. Immediately following the collision there was some concern he had suffered a head injury. The medical evidence confirmed that he had ongoing cognitive difficulties, specifically with his memory and concentration. Following the accident, the plaintiff became concomitant, irritable, sleepless and angry. To support the impairments in function, plaintiff’s counsel called Mr. Keam’s wife, mother, brother-in-law and his employer. Pre-accident, the plaintiff was described as energetic, gregarious and extremely well motivated, qualities which disappeared following the collision. The medical evidence revealed that the plaintiff’s lack of concentration and pain have robbed him of the possibility of pursuing the professional career he dreamed of.

Justice Whitten held that the functions impaired by the injuries sustained were important to Mr. Keam. His intimacy with his wife had diminished. His relationship with his two infant sons is strained. His career plans have been torpedoed. While he returned to work following the collision, his employer testified that his employment was at risk due to his lack of attention to detail and his behavior is rife with anger. There was a possibility that he would have to retire early as a result. For the same reasons, Justice Whitten found that the plaintiff’s impairments were serious.

Holland v. Alfonso

The Hamilton courts were faced with another threshold motion on December 11, 2008 in Holland v. Alfonso[35]. In ruling made by Justice Festeryga, another plaintiff was found to have met the threshold. Prior to the collision the plaintiff was in excellent physical condition. He worked as a lifeguard and was an excellent swimmer. Following the accident, the plaintiff suffered from back pain, headaches, sleep problems, double vision and shoulder pain. He developed depression and anger problems. He was treated with opiates and botox injections.

Defence counsel made a causation argument. However, Justice Festeryga held that the “defendant must take the victim as he finds him”[36]. He also made comments regarding the plaintiff’s use of opiates. Justice Festeryga opined that due to the plaintiff’s age and physical condition he should have recovered within a short time. He felt that had the plaintiff not been prescribed narcotics he would not have experienced the degree of pain for the length of time he had but he did not blame the plaintiff for this. His narcotics were being prescribed by a physician and the plaintiff “is not bound to employ the most skilful surgeons who can be found or to incur lavish expenditures of any kind in obtaining treatment for injuries he has sustained”[37].

Justice Festeryga held the plaintiff’s pain was physical in nature and chronic. He found that it interfered with the plaintiff’s ability to work as a computer operator and that accommodations have to be made for him to maintain his job. The chronic pain affects his social life with respect to the interaction with his children.

Del Rio v. Lawrence

On February 18, 2009, Justice Gans made a determination that the plaintiff met the threshold in Del Rio v. Lawrence[38]. In his reasons, Justice Gans acknowledges that he is bound by Bill 59, however, he commented that “Bill 198 appears to be a codification of the principles set out by the Court of Appeal in Meyer v. Bright”[39].

Justice Gans made findings that the accident did not result in a substantial interference with the plaintiff’s ability to continue her regular employment and that the plaintiff suffers from chronic pain. The analysis focused, therefore, on whether the plaintiff’s enjoyment of life was seriously affected. The evidence before the court was that the plaintiff’s usual activities of daily living outside of work had been curtailed markedly. She returns from work unable to do anything but lie down as a result of pain. Accordingly, Justice Gans held that the plaintiff’s condition substantially interfered with her quality of life and continued to do so. Of note is that on cross-examination, Dr. Soric responded positively to the following question: “and would you agree with me Doctor, that symptoms like neck pain, intermittent occipital headaches, pain in the left shoulder, low back pain, depression, lack of sleep would affect this woman’s quality of life?”.[40]

The court then considered the issue of permanency. Defence counsel argued that since there was no evidence of physiatrist or psychiatrist/psychologist on this issue then this element was not proven by the plaintiff. Dr. Ogilvie-Harris did give evidence that the condition would persist. Justice Gans was not persuaded that a plaintiff suffering from chronic pain was obligated to lead evidence from a physiatrist or a psychologist/psychiatrist in support of the issue of permanence. He accepted the evidence of Dr. Ogilvie-Harris who he felt was well versed in the diagnosis and treatment of chronic pain syndrome, but did find that it would have been prudent for the plaintiff to at least lead this evidence given the case law that suggests that the absence of such evidence could be fatal to a threshold motion.

The jury awarded $22,500.00 in general damages and $1,940.46 for past loss of income.

Xiao v. Gilkes

The most recent Bill 59 threshold decision was given by Justice MacDonnell on February 24, 2009 in Xiao v. Gilkes[41]. In this case, the plaintiff suffered injuries to his neck, shoulder and back. He received three months of chiropractic care and was under the care of his doctor for approximately 14 months. Prior to the collision the plaintiff was working 60 hours per week. He was forced to reduce his hours post-accident.

The plaintiff was involved in a second accident eighteen months following the first. He suffered an exacerbation of his neck and back injuries. There is no evidence that the plaintiff saw any doctors between November 2002 and November 2006 when he had a medical legal assessment.  The plaintiff was back to work full-time, 60 hours a week, without interruption in his pre-accident capacity by January 2005. The plaintiff argued that he continued to suffer from chronic pain which impaired his ability to perform his duties as a chef and to engage in the daily activities he engaged in prior to being injured.

Defence counsel argued that the plaintiff was faking his condition and that he did not have a serious impairment of his ability to work or carry out his daily activities. There, of course, were conflicting expert opinions on the issue. The plaintiff alleged that the physical function impaired was the ability to bend at the waist, to lift heavy objects, and to stand for extended periods of time. There is no doubt that these functions are important to the plaintiff as a chef. Justice MacDonnell also found that the plaintiff’s impairment caused a substantial interference with his ability to carry out his duties at work on a full time basis and to participate in the daily activities of his life and, therefore, that it was serious. However, he was not satisfied that the impairment was permanent. Justice MacDonnell was of the opinion that the plaintiff was not a credible witness as he had difficulty maintaining a consistent account of the relevant history and was dishonest regarding reporting his income to Revenue Canada. He declined to give any weight to Dr. Finklestein’s opinion on behalf of the plaintiff.

Conclusion

In my opinion, there has been no change to the analysis of the threshold based on the definitions in the regulation. The definitions set out in the regulation simply provide more guidance to the judiciary in making their decisions on threshold motions. Of the above Bill-198 cases that did not meet the threshold, it would be hard to say that any of them would have met the threshold pre-Bill 198 given the credibility issues and lack of proper evidence.  Most telling is that in looking at most pre-Bill 198 cases in the last year the judges have looked at all of the same issues in their analysis of the threshold. They consider the medical evidence, the activities engaged in pre-accident and how those have been impacted post-accident, whether or not there were accommodations made or sought in employment, treatment efforts, the permanence of the impairment and what functions have been impaired and how important they are to the plaintiff. Looking at the regulation, these are the same considerations that should be made in a Bill-198 analysis.

As plaintiff’s counsel, the following comments are being made from that perspective and which I hope will be helpful to plaintiff’s counsel in preparing their cases in light of the decisions post Nissan. I do not believe that Plaintiff’s counsel should approach their cases any differently. Most counsel will have put forth the same evidence and prepared their case pre-Bill 198 as they would now. Prepare your case from the get-go and ensure that you are aware of any potential credibility issues. Ensure your doctors are properly prepared with respect to pre-accident history and the definitions in the regulation. Plaintiff’s counsel will to have to ensure that they have sufficient evidence to meet the test set out in the regulation. The cases referenced above illustrate the importance of collateral witnesses as to the inability to engage in daily activities, especially in cases where the plaintiffs continue to work.

Oftentimes, and as evidenced in the history of threshold decisions over the years, the cases that go to trial are those that have serious credibility issues or where sufficient evidence has not been adduced pre-trial. Do not give the insurance companies the chance to question credibility. Attempt to give them all of the medical evidence as far in advance as possible. Where the plaintiffs have returned to work, ensure to compile as much evidence as to the inability to engage in usual activities as possible and ensure that the plaintiff has sufficiently attempted to accommodate him or herself in the workplace. What I find is that a failed work attempt is the most telling evidence of the inability to work.

Given the Nissan decision, and the cases that followed, it is likely that the courts will continue to form their analysis based on the approach taken in Meyer v. Bright and consideration of the pre-Bill 198 cases, taking guidance from the definitions set out in Regulation 381/03.

For more information of our services see Motor Vehicle Collisions at www.FlashLaw.ca

SCHEDULE “A”

Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.1 For the purposes of section 267.5 of the Act,

“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2. O. Reg. 381/03, s. 1.

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:

1. 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, or

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 for 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. O. Reg. 381/03, s. 1.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act. O. Reg. 381/03, s. 1.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person. O. Reg. 381/03, s. 1.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine. O. Reg. 381/03, s. 1.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. O. Reg. 381/03, s. 1.

(5) In addition to the evidence of the physician, the person shall 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. O. Reg. 381/03, s. 1.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s. 1.

5. Revoked: O. Reg. 381/03, s. 2.

[1] R.S.O. 1990, c.I-18. [2] (1993), 15 O.R. (3d) 129, (1993), 110 D.L.R. (4th) 354 (ON C.A.) [3] (2008), 62 C.C.L.I. (4th) 135, 2008 CarswellOnt 2520 (Ont. S.C.J.) [4] Toronto: Butterworths, 1994 [5] Supra note 3 at para. 14 [6] Ibid at para. 37 [7] Ibid at para.38 [8] Unreported, Court File #05-CV-32474 (Ont. S.C.J.) [9] Ibid. [10] As an aside, at trial the jury found no liability on the basis of an inevitable accident defence. The Plaintiff is appealing the jury verdict on liability and damages and it is anticipated that the Defendant, will appeal the threshold defence. [11] [2008] O.J. No. 5322, 2008 CarswellOnt 7969 (Ont. S.C.J.) [12] Ibid at para. 86 [13] Unreported, Court File #50810 (Ont. S.C.J.) [14] Ibid at para. 11 [15] [2006] O.J. No. 4227 (Ont. S.C.J.) [16] [2004] O.J. No. 4315 (Ont. S.C.J.) [17] Supra note 13, at para. 19 [18] Ibid at para. 21 [19] Ibid at para. 31 [20] [2003] 2 S.C.R. 504 [21] 2009 CarswellOnt 604 (Ont. S.C.J.) [22] Ibid at para. 9 [23] Ibid at para. 11 [24] (2008), 90 O.R. (3d) 34, 2008 CarswellOnt 1685 [25] Ibid at para. 7 [26] 2008 CarswellOnt 3089 (Ont. S.C.J.) [27] Ibid at para. 21 [28] Unreported, Court File No.CV-03-2321 (Ont. S.C.J.) [29] Ibid at para. 51 [30] 2008 CarswellOnt 5706 (Ont. S.C.J.) [31] Ibid at para. 24 [32] Unreported, Court File No. 12444/04 (Ont. S.C.J.) [33] Ibid. [34] Ibid. [35] Unreported, Court File No. 01-4642 (Ont. S.C.J.) [36] Ibid. [37] Ibid. [38] 2009 CarswellOnt 851 (Ont. S.C.J.) [39] Ibid at para. 3 [40] Ibid at para. 9 [41] 2009 CarswellOnt 924 (Ont. S.C.J.)