Canada: Threshold Motions - A Recap On The Factors The Court Considers

Last Updated: June 29 2015
Article by Sudevi Mukherjee-Gothi

Malfara v. Vukojevic, a 2015 decision of the Ontario Superior Court encapsulates the factors required for the Plaintiff to meet threshold in a motor vehicle accident case. Firestone J identified the following factors:

1. Although permanent does not have to mean forever, there has to be a medical opinion to support that there is no definitive end.

2. If there is evidence of improvement and the Plaintiff has been able to return to work, with little or no restrictions, then there are more challenges to the Plaintiff being able to meet the onus of proof regarding threshold.

3. The test of whether the impaired function is "important" is a qualitative test.

4. The degree of impairment on daily life must go beyond tolerable.

The jury in his case returned its verdict to the Plaintiff for a motor vehicle accident that occurred on September 13th, 2006. The jury awarded $7,700.00 for general damages, $1,326.00 for past loss of income and nothing for future loss of income including loss of competitive advantage. Following the jury charge and while the jury was deliberating, the Defendant brought a "threshold motion":

for a declaration that the plaintiff's claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 ("the Act") and the applicable regulations.

The action was governed under Bill 198 of the Insurance Act. Firestone J relied upon the decision in DeBruge v. Diana Arnold, 2014 ONSC 7044 where the court confirmed that in making its threshold determination, the judge is not bound by the jury verdict. The verdict is, however, a factor the judge may consider in determining the issue.

Firestone J laid out the foundations for the threshold motion as found in Meyer v. Bright:

The onus of proof to establish that the plaintiff's impairments meet the statutory exceptions or "threshold" rests with the plaintiff: Meyer v. Bright (1993) 15 O.R. (3d) 12 (C.A.), at para. 50 and Page v. Primeau, 2005 CanLII 40371 (ON SC) para. 11.

[12] In Myer v. Bright, the court outlined the three part inquiry to be undertaken in the threshold analysis as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?

2. If yes, is the function which is permanently impaired important?

3. If yes, is the impairment of the important function serious?

[13] Under s. 4.2(1)3 of O. Reg. 461/96, for the impairment to be permanent, 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.

However, Firestone J also looks at some of the other applicable caselaw to determine other principles:

1. The word "permanent" does not necessarily mean strictly forever, until death. Permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit Bos v. James (1995), 22 OR (3d) 424

2. What factors are used to consider permanent? In Jennings v. Latendresse 2014 ONCA 517 the Court of Appeal stated that the trial judge's conclusion that the Plaintiff's chronic pain was not permanent was supported by evidence, such as:

  • the appellant was improving and would continue to improve;
  • her functional abilities showed no significant impairment;
  • the appellant had returned to her pre-accident employment;
  • the appellant's medical examination showed full range of motion;
  • expert testimony demonstrated that the recurring pain was not caused by the original injury; and
  • both pre-and post-accident physical and psychological stressors have contributed to the appellant's chronic pain but have nothing to do with the accident.

3. The difference between distinguishing between functions which are important to the injured person and those that are not. This is discussed in Ahmed v. Challenger, [2000] O.J. No. 4188 (S.J.). The test of whether the impaired function is "important" is a qualitative test.

Under s. 4.2(1)1 of O. Reg. 461/96, to be "serious" the impairment must:

i. substantially interfere with the person's ability to continue his or her regular or usual employment, despite recent 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

iii. accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue his or her training, or

iv. substantially interfere with most of the usual activities of daily living, considering the person's age.

The determination of whether the impairment of an important bodily function is "serious" relates to the seriousness of the impairment to the person and not to the injury itself.

4. The degree of impairment on daily life: It must go beyond tolerable: Frankfurter v. Gibbons (2004), 74 O.R. (3d) 39 (Div. Ct.)

Firestone J concludes that:

it is important to recognize that it is "the effect of the injury" on the person and not the "type of injury" or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which the plaintiff has been impacted. The threshold determination is to be done on a case by case basis.

In this case, the Plaintiff had neck pain and ongoing chronic back pain. There was conflicting medical evidence regarding the Plaintiff's soft tissue injuries and whether there would be deterioration. He returned back to his pre-accident employment, albeit with pain. His income continued to increase. There were no job modifications. He worked, but with pain. He did not participate in sporting activities because of the pain and because he was busy. He continued to cut the grass, shovel the snow and help in the kitchen, just as he did pre accident, but now with pain.

Firestone J concluded that the Plaintiff did not meet the threshold requirement.

1. He did not sustain a serious impairment.

2. There have been no employment restrictions.

3. There has been no substantial interference on his workplace abilities.

The defendant's threshold motion was granted.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Sudevi Mukherjee-Gothi
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.