When a person is injured in Ontario in a motor vehicle accident and wants to pursue compensation for their injuries, they face a challenging road through the legal system. In order to access compensation, plaintiffs must build a strong enough case to clearly demonstrate that their injuries breach the “threshold”. At the end a trial, even if successful before the jury, the defendant can ask the judge to determine whether or not the plaintiff breaches the “threshold” before any damages can be collected.
The “threshold” does not apply to general damage claims in general, it only applies to claims for general damages arising from a motor vehicle accidents. The threshold is described in Section 267.5 (3) of the Insurance Act (Ontario) wherein it is stated that, in order for there to be liability arising from injuries sustained in a motor vehicle accident, the injured person must have either died or sustained:
(a) permanent serious disfigurement; or
(b) Permanent serious impairment of an important physical, mental or psychological function.
There is no formal requirement that an injured person must hire a lawyer to represent himself in court, as any individual may represent themselves, however, considering how complicated any legal action is, the depth of knowledge one must have in order to successfully manage a claim to the conclusion of trial and the fact that for any serious claim one is more than likely to be facing a defendant who has experienced counsel representing them with the backing of an insurance company, hiring a lawyer is highly recommended.
In addition to the formal “threshold” there is an informal barrier to recovery in the form of the deductible, which, in plain language is the first portion of any general damages claim the defendant does not have to pay. Currently, the deductible is set at $37,385.17; this means, that even if injuries breach the “threshold” a plaintiff does not realize any award for general damages unless the jury awards them more than the deductible amount. Analyzing whether or not an individual’s claim can be quantified as being in excess of the deductible requires a deep understanding of how to read, interpret and apply case law to the case at hand, again, hiring a lawyer would be highly recommended as a personal injury lawyer has the training and experience necessary to perform this analysis.
In the 2001 Court of Appeal case Kasap v. MacCallum, it is stated that “the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury.” In other words, even if a jury has accepted your testimony and awarded compensation for your injuries, you won’t be allowed to collect that compensation without the judge’s approval. This can complicate your personal injury lawyer’s approach, as it often leads defence lawyers to argue that plaintiffs do not meet the threshold.
What does the threshold test consist of?
In an excellent blog for the Ontario Trial Lawyers Association, Brendan Sullivan explains that the threshold test holds plaintiff’s injuries to three standards.
First, the judge will look at medical records, treatment histories, and witness testimonies to determine whether the impairment caused by the injuries can be considered permanent. Unless the plaintiff has incurred some form of permanent impairment, the injuries will not pass the threshold.
Next, the judge must determine whether the impairment is serious. This is step is more subjective than the previous one, and the judge will consider the impact the impairment has had on the plaintiff’s day-to-day activities and the wellbeing of the plaintiff’s family.
Finally, the judge must affirm that the impairment has affected the plaintiff’s physical, mental, or psychological function. This is perhaps the easiest standard to meet – as Sullivan puts it, “what injury or impairment wouldn’t affect someone in one of these ways?”
Judges rarely overturn their jury’s decision based on the threshold test, but it is certainly not unheard of. Sullivan provides the 2013 case Perez v. Pinto as an example. The jury awarded $2,500 in general damages, though the judge noted that the plaintiff had “exaggerated her symptoms.” The judge then considered the verdict, and determined that the plaintiff did not pass the threshold test. The plaintiff was therefore unable to access compensation.
If you or a member of your family has suffered an injury and are considering a lawsuit, contact a personal injury lawyer at Nanda & Associate to find out how we can help.
