In Ontario, a plaintiff claiming damages arising from a motor
vehicle accident ("MVA") must satisfy the statutory
threshold in accordance with section 267.5(5) of the Insurance
Act (the "Act"). Briefly, pursuant to the Act, a
plaintiff must demonstrate that he or she has sustained a
"permanent and serious impairment of an important physical,
mental or psychological function" in order to recover either
general damages or health care expenses.
The recent decision of Mamado v. Fridson, decided by
Justice Baltman of the Ontario Superior Court, provides insight in
relation to the Court's analysis of the statutory
Mamado v. Fridson involved an MVA which occurred on
November 1, 2010. Following the MVA, it was the plaintiff's
evidence that as a result of her injuries she was unable to resume
her post-secondary studies or return to any form of gainful
employment. Medical experts retained by counsel for the plaintiff
provided evidence that the plaintiff's impairments, which
related mainly to chronic pain, sprain and strain of the spine,
stress and depression, satisfied the statutory threshold.
Following the trial of the action, the defendant brought a
"threshold motion", alleging the plaintiff had not
demonstrated that her injuries met the criteria of the threshold.
In support of this position, the defendant relied upon the evidence
of two medical experts, a psychiatrist and physiatrist. The
Court determined that, in their evidence, neither of the defence
experts had addressed the question of whether the plaintiff's
injuries met the statutory threshold and, further, both had
provided evidence that was, overall, determined to be supportive of
the plaintiff's claim. In the Court's decision, Baltman J.
further expressed concern with the fact that the majority of annual
income for both of the defendant's experts was derived from
conducting medical-legal work for defendants, stating:
Even though half of [the defence
medical expert's], time and two-thirds of his annual income (of
approximately $400,000) is devoted to medical-legal work for
defendants, he insisted that does not influence him "in any
[The defence medical expert], appeared
indignant when it was revealed that out of her income last year,
which was in the range of $450,000 - $470,000, the majority came
from assessments for defence lawyers and insurance companies. (She
has never testified on behalf of a plaintiff, except on one
occasion when the plaintiff also happened to be her patient).
Incredibly, she is of the view that she can be seen as entirely
neutral no matter to whom she owes much of her
In reaching the Court's decision, Baltman J. identified this
evidence as one of several factors which evidenced a "serious
flaw" in the defendant's expert evidence and ultimately
found the plaintiff's injuries met the threshold. The
defendant's motion was denied.
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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