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

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions