This recent decision of Justice Lemon of the Ontario Superior
Court, dated June 8, 2010, signals the importance of adducing
evidence from lay witnesses where a plaintiff is seeking to
establish that their accident related injuries meet the statutory
threshold within the meaning of Bill 198.
In this decision the plaintiff's failure to adduce evidence
from a lay witness, to corroborate a change in the plaintiff's
function, was fatal even where the plaintiff had been able to
satisfy the Court that their accident related injuries reflected a
permanent serious impairment of an important physical, mental or
psychological function. The finding that the plaintiff failed to
satisfy the threshold was based entirely on the fact that the
plaintiff had failed to satisfy the evidentiary burden under
section 4.3(5) of Bill 198 more properly known as Regulation
381/03 ("the Regulation").
The plaintiff was employed as a heavy truck technician. After
the motor vehicle accident the plaintiff was off work for seven
weeks after which he returned to work on modified duties. The
plaintiff eventually resumed his usual duties although a helper was
hired to assist him with some of the heavier lifting involved in
As a result of the motor vehicle accident the plaintiff
sustained injuries that were consistent with whiplash associated
disorder superimposed on a pre-existing degenerative disc disease
in the cervical and lumbar spine.
All of the physicians who testified confirmed that the
plaintiff's injuries were caused by the motor vehicle collision
and that his symptoms were continuous from the date of the accident
and they were permanent.
In accordance with section 4.2(1)1 of the Regulation, the Court
was satisfied that the accident related impairments substantially
interfered with most of the plaintiff's usual activities of his
daily living, the back and neck injuries reflected impairments of
important functions and the medical evidence confirmed that the
plaintiff's injury was permanent.
Justice Lemon's decision turned on the interpretation of
Section 4.3 of the Regulation:
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 purpose of section 267.5 of the Act.
(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 [emphasis added].
Importantly, the decision highlights the fact that pursuant to
section 4.3(5) of the Regulation the plaintiff shall adduce
evidence in addition to that of a physician, to
corroborate the change in function alleged to be a permanent
serious impairment of an important physical or psychological
Interestingly, in this decision the Court indicated that it did
not draw any adverse inference from the fact that neither the
plaintiff's wife, daughter nor his co-workers gave evidence to
corroborate the plaintiff's condition prior to the accident and
concluded that the plaintiff had a credible claim. However, with no
family or friends to corroborate his change in condition the court
concluded that, "The legislature, in its wisdom, has
determined that conditions which are not permanent, serious and
important can be excluded on the basis of the detailed definitions
of those terms. No doubt, the legislature can also exclude those
claims on the basis of evidentiary thresholds. Accordingly, the
claim must be dismissed."
This decision appears to reflect the Legislature's intent to
"tighten up the threshold by reducing the number of litigants
who sue" as a result of motor vehicle accidents as noted in
the recent decisions of Sabourin v. Dominion of Canada General
Insurance Co. (2009) and Sherman v. Guckelsberger
(2008). We will watch closely to see if this most recent decision
is appealed and for future guidance from the Court of Appeal in
relation to this important issue.
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