If you are an Ontario motor vehicle accident victim, you probably received a letter from an insurance company telling you that you cannot sue for pain and suffering unless your injuries meet the legal “threshold”. The “threshold issue” is whether the plaintiff (I.e. the injured victim”) has sustained a permanent, serious impairment of an important physical, mental or psychological function as required under s. 267.5(5) of the Insurance Act.
Prior to October 1, 2003, the essential elements of the threshold were not defined in the legislation but had been shaped by threshold motions decided by judges, most notably, Meyer v. Bright; Lento v. Castaldo and Dagliesh v. Green.
Bill 198, the most recent amendments to the threshold, came into effect on October 1, 2003 by Ontario Regulation 381/03. This regulation defined the terms “serious”, “important” and “permanent.” The regulation also outlines the evidence that must be adduced to meet the threshold.
Since April 2008, we have seen the development of cases under Bill 198, in addition to continued case law under Bill 59. From the plaintiff’s perspective, the interpretation of Bill 198 has been mixed.
Virtually every case acknowledges that the Bill 59 case law remains relevant. No-one suggests that Bill 198 overrules Meyer v. Bright. However, there is a developing body of case law suggesting what plaintiffs’ lawyers feared. Namely, that the purpose of Bill 198 was to reduce the number of accident victims who can claim damages for their injuries.
Here are descriptions of some of the leading cases.
Nissan v. McNamee
The earliest Bill 198 case, Nissan v. McNamee decided by Justice Morissette on April 30, 2008 resulted in a finding that the threshold had not been met. However, the result was largely because the plaintiff’s evidence was not believed. Justice Morissette’s analysis of the defining regulation was largely encouraging.
Justice Morissette indicated that the “ultimate question” was whether the defining regulation was implemented to codify the court of appeal decision in Meyer v. Bright or whether the legislator’s intent was to substantially reduce the number of motor vehicle cases in court.
The answer to that question became an issue of statutory interpretation. The defendants argued that amendments to legislation are made for a reason and that the reason was to tighten the threshold. Justice Morissette’s response was that, in her opinion, “efforts to reframe the broad approaches that have been applied since Meyer should be resisted.”
Justice Morissette highlighted four distinctions between the de facto definition of serious in s. 4.2(1)1 of the regulation and the definition of “serious” in Meyer but in each case demonstrated that the apparent distinctions could be reconciled with Bill 59 case law. The reference to “accommodation” in the context of employment is simply a codification of the duty to mitigate. “Reasonable” efforts in relation to “accommodation” simply suggest that the plaintiff has to prove an effort was made to seek accommodation. Similarly, “age”, referenced in the regulation, was previously considered in the case law.
The fourth change, the addition of the word “most” to modify “daily activities” was identified as the most significant change. She characterized this change as a clarification that it is not enough to have “some” activities impacted.
Justice Morissette described the explicit definition of “important” at s. 4.2(1)(2) of the regulation as consistent with the guidance from Meyer.
Justice Morissette also characterised the definition of “permanent” at s. 4.2(1)(3) of the regulation as requiring that the impairment remain serious permanently which was not distinct from the existing jurisprudence. She also rejected the defendants’ submission that the definition of permanent imposed an objective element. The requirement that the impairment “be of a nature that it is expected to continue without substantial improvement when sustained by persons in similar circumstances” means that a plaintiff with chronic pain must be compared to persons with chronic pain, not with persons who recovered from an injury without chronic pain.
A number of Bill 198 cases followed Nissan v. McNamee with relatively little significant analysis. These cases are summarized below under the Case Summaries. However, more recently, there have been two decisions that suggest that Bill 198 was intended to “tighten up” the threshold and make it harder for motor vehicle accident victims to sue.
Sherman v. Guckelsberger
In January 2009, Madame Justice Milanetti decided Sherman v. Guckelsberger. Justice Milanetti determined that the plaintiff in Sherman did not meet the threshold. Significantly, she also held that the legislature had intended to “tighten up” the threshold by the introduction of the defining regulation.
The plaintiff had suffered soft tissue injuries (primarily back pain, shoulder pain, headache, neck pain) following a rear end collision. The Plaintiff’s expert diagnosed a WAD III injury, others diagnosed a WAD II injury.
Justice Milanetti expressly disagrees with the analysis in the Nissan decision, commenting:
[Morissette J.] concludes, in my view, that the Bill 198 legislative changes do little to change the Bill 59 legislation that predated it. Respectfully, I have a different view of the changes and their ramifications.
Similarily, Milanetti J. reasoned:
It is my view, 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.
In this case, Justice Milanetti held that the plaintiff’s soft tissue injuries did not satisfy the threshold. The plaintiff was asserting that she met the Bill 198 threshold on the basis of diminished work capacity. She had maintained function in her day to day life, such that she would not meet the threshold under the “daily life activities” criteria.
The plaintiff worked in a doctor’s office. She was off for a week, worked part time for two weeks and then went back to work full time, which was 4 days per week. She also had a second job, doing bookkeeping out of her home. 36 months after the accident, the plaintiff reduced her work hours. However there was no reduction in pay due to her bookkeeping job. Justice Milanetti was put out that the plaintiff’s decision to reduce her hours of work was taken “virtually unilaterally” and not on the advice of her heath care team.
Justice Milanetti reasoned that the evidentiary criteria in the regulation are mandatory and that the plaintiff did not have sufficient evidence. There was no evidence adduced of “reasonable accommodations to allow [the plaintiff] to continue her employment”. Justice Milanetti said that “I have difficulty accepting that Ms. Sherman has suffered a substantial interference in her ability to continue her usual employment despite reasonable accommodation efforts.