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Motor Vehicle Accident Update – recent Bill 198 threshold decisions
We will review these five cases which deal with the Bill 198 threshold:
The Ontario regime governing motor vehicle accidents underwent significant change in 2003 under Bill 198 affecting the provisions of the Insurance Act and the Regulations.
As with the previous MVA regimes, it has taken some time for the current Bill 198 ‘threshold’ for pain and suffering damages to be reviewed but we now have what appear to be the first two cases dealing with the Bill 198 threshold.
From 1994 to 1996, the Bill 164 MVA regime introduced a threshold for entitlement to pain and suffering damages – the injury had to be ‘serious disfigurement or serious impairment of an important physical, mental or psychological function’ – as well as a $10,000 deductible. The Bill 59 MVA regime (from 1996 to 2003) made the threshold for entitlement to pain and suffering damages more difficult to meet – the injury had to be ‘permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function’ – as well as increasing the deductible to $15,000.
The Bill 198 MVA regime (starting October 1, 2003 and continuing to date) as defined, in the Regulations, what the threshold of “permanent serious” should consider. It also increased the deductible to $30,000.
It is the interpretation of the Bill 198 threshold for entitlement to pain and suffering damages that the above cases consider.
First Case to deal with Bill 198 Threshold. Nissan v. McNamee (Apr 30/2008) Ont. S.C., per Morissette, J.
The plaintiff lost the Trial, in that the Jury awarded zero damages for her loss (the plaintiff’s credibility was seriously challenged at Trial). The Trial Judge noted that this was the first known Bill 198 threshold case and then Her Honour embarked on an analysis of whether the Bill 198 regime changed the threshold test as interpreted under Bill 59 or whether Bill 198 was simply an attempt to codify the existing caselaw. The ruling indicates that Bill 198 does not impose a higher test or threshold than that found under the previous Bill 59 regime. Madam Justice Morissette compares Bill 198 and Bill 59 and states at paragraph 37:
 In summary, most of the regulation does not appear to support any significant change in the interpretation of the threshold. In general terms, it suggests at best some clarification of the law regarding accommodation. The one exception is the addition of the word “most,” which suggests a higher threshold where impairments affect daily living but not working.
 I would also note that I do not accept the defendant’s contention that the express requirements for proof suggest a higher standard as to the threshold itself. It seems to me that the requirements of s. 4.3 of O.Reg. 381/03 are for evidence that would be necessary to prove that the threshold is met in any case. The focus is on that evidence coming from a physician, and the source of the evidence should not change the standard on the threshold question.
Guerrero v. Fukuda (2008) Ont. S.C. per Mr. Justice Little.
This case involved common whiplash injuries which were held to surpass the Bill 198 threshold. The analysis regarding the permanence of a whiplash injury and the finding that this whiplash injury was both permanent and serious is of note. It is instructive to review this decision, including the first few paragraphs where Mr. Justice Little states:
 Section 267.5(5) of the Insurance Act R.S.O. 1990, c.1.8 (“the Insurance Act”) relieves defendants from liability for pain and suffering damages unless the plaintiff has sustained permanent, serious impairment of an important physical, mental or psychological function. By way of observation, I am uncertain as to what other functions might exist relating to the body.
 Whiplash may well incorporate all three of these functions to different degrees but the root cause is a physical one emanating from soft tissue, physical injury to the neck and shoulder.
 I think we have transcended the era when whiplash, due to the fact that it is often without objective findings, was equated with faking.
 A whole specialty in medicine now exists dealing with physical medicine and rehabilitation. This is sometimes referred to a s physiatry. Experts in this field are relied upon by litigants often. They do not rely upon the expert for treatment or rehab but rather to determine whether or not the expert believes pain exists.
 Pain, and its degree of severity, are subjective and can exist without any objective finding. Calling an expert to say that no objective finding equals no pain is on longer acceptable. That same expert will often treat the pain that exists even though it is without objective findings.
Sherman v. Guckelsberger, Dec/2008 Ontario Superior Court case, Madam Justice Milanetti.
At MVA, Plaintiff was 28 yr old married woman. Liability admitted - rear end. Soft tissue injuries. Plaintiff had pre-existing cardio (heart) issue though not significant. Was a medical secretary working for a GP, earning approx $31,000/yr at MVA. Was working 4 days/week at MVA b/c the GP office was only open 4 days/wk.
Post MVA, she RTW after 3 wks and worked FT (ie 4 days/wk) for 2.5 yrs until 2007. She then reduced her hours by 8 hrs/wk, as she reduced to 2 full days and 2 half days - reduction due to pain and fatigue. An important point - Trial Judge found no contemporaneous recommendation by her treating GP (who Judge found advocated excessively for the plaintiff at Trial) to reduce work hours on a medical basis; therefore a finding that plaintiff unilaterally reduced her hours on her own and not with medical advice.
Complicating matters, plaintiff was offered (before the MVA) a second PT job doing bookkeeping for four GP's, on her own time (ie at home, on weekends, outside of regular work hours). She apparently accepted the job before the MVA and it was anticipated to start after the MVA. Plaintiff did start this PT bookkeeping work about 3 months after the MVA (i.e MVA delayed her by about 3 months). She earned $6000-$7000/yr from this bookkeeping job and appears to have continued this work to Trial.
Her regular job at the GP's office accomodated her post-MVA by giving her lighter tasks, allowing her to take breaks, by allowing her (within the small GP's office) to do work she was able to perform.
Post-MVA, noted by the Trial Judge, the Plaintiff stayed active outside work, including going to the gym "five days per week" as reported to her cardiologist.
Judge liked the plaintiff and her husband, but found credibility problems - re if plaintiff was in so much pain, why did she work the second job and how did she carry on with so many non-work activities post-accident?
Past income loss - awarded about $300.
Future income loss – denied entirely (Plaintiff had sought $200,000 - $300,000)
Pain and suffering. Judge found plaintiff failed to show what "function" was impaired as a result of accident. Then Judge further found her injury to "not be permanent" - after assessing medical evidence, found that plaintiff's thoracic outlet issues improved with physiotherapy and Botox treatments; therefore not proven to be permanent.
Ali v. Consalvo, 2009 (Ont. S.C.)
This is a further decision rendered on the Bill 198 threshold for pain and suffering damages, with Madame Justice Wilson finding that the plaintiff did not meet the threshold in this situation.
Bill 198 applies to motor vehicle accidents in Ontario as of October 1, 2003. The test for pain and suffering damages has been expanded by Regulation and there are now a handful of recent decisions which have provided some guidance as to interpretation of the new test. Bill 198 also increased the deductible to $30,000 for damage awards that are less than $100,000; if the damage award for pain and suffering is $100,000 or greater, then the deductible is not applicable.
In this case, the 55 year old mother of 7 children was involved in a car accident on May 30, 2004. She came to Canada in 1991 and was a homemaker while in Canada. As a result, there were no income loss claims presented. It appears that this was a soft-tissue injury case, with a chronic pain diagnosis that was disputed on the medical evidence.
The Jury awarded the plaintiff $5,000 (gross) for pain and suffering damages, prior to the application of the $30,000 deductible. She was awarded zero dollars for future medical and rehab damages. Presumably a claim for housekeeping was presented and also awarded at zero dollars.
The plaintiff’s main activities pre-accident were taking care of her large family as well as attendance at her religious place of worship in accordance with her faith. She was unable post accident to perform her household chores (cooking, cleaning, laundry, etc) and also unable to attend at worship services primarily due to her inability to bend due to knee and back pain.
The plaintiff’s main complaint arising from the accident was back pain and right knee pain. Unfortunately, the plaintiff had some prior issues with the right knee and back, some of which was not disclosed (fully or at all) to her treating physicians as well as examining doctors. This included complaints of back pain and radiating pain into her leg in 2000 to her family doctor, leading to a diagnosis of osteoarthritis, as well as a prescription for medication and physiotherapy; 37 physiotherapy visits in the Fall, 2000 for those complaints; completion of an Ontario Works application form in late 2000 indicating back pain and leg problems (plaintiff was applying for medications to be funded); and attendance at a chiropractor in late 2002 for a series of treatments.
The plaintiff did not fully disclose these issues to her doctors, including the chiropractor and orthopaedic surgeon who testified on her behalf.
The Judge emphasized some inconsistencies with the plaintiff’s testimony and post-accident behaviour. A few months after the accident, the plaintiff was assessed by a kinesiologist as being able to ascend and descend 15 stairs. In contrast, the plaintiff had maintained throughout the litigation that she was unable, post accident, to address more than 3 stairs at one time.
Further, the plaintiff appears to have not attended for medical treatment after 2004 – neither for physiotherapy nor did she frequently attend at her family doctor with complaints. The Judge found that this was inconsistent with the expected behaviour of someone who was suffering and in pain over many years.
Finally, in a January, 2005 home assessment, the plaintiff underwent a two hour assessment during which she purportedly advised the assessor that “she was able to make all the meals for her family, go up and down stairs, take the bus, bend to clean and help her daughters with the laundry.” The plaintiff denied the accuracy of this report and stated that the assessment only lasted 10 minutes in total.
Based on these concerns, the Judge found the plaintiff not to be credible in her presentation of her claim and found that the Bill 198 threshold had not been met.
Sabourin v. Dominion of Canada General Insurance Company (2009 Ontario Superior Court)
This new Bill 198 threshold case found that the plaintiff did not meet the threshold. Brown, J. found there to be various credibility problems associated with the plaintiff. This was a minor rear-end accident whereby the vehicle damage to the plaintiff’s car was $2,300.
The analysis of the threshold test is helpful and includes a review of the White Paper proceeding the legislation change.
Interesting, the defence sought a ruling that housekeeping damages were subject to the Bill 198 threshold. After a thorough review of the issue, it was found that the tort claim for future housekeeping and house maintenance is not subject to the Bill 198 threshold.
The 42 year old (at Trial) plaintiff was awarded $70,250 for future housekeeping loss. She was in a stable, long-term marriage with 10 and 11 sons. They lived in Sturgeon Falls in a detached home that was 700 sq ft inside, with a 200 foot driveway and a lot measuring 75 x 300 feet.
The plaintiff performed 100% of the home maintenance work prior to the accident (indoor, outdoor, groceries, etc). She presented a claim of approximately $580,000 for loss of housekeeping services to age 60 based on $14.34/hr.
The Trial Judge lowered the hourly rate to $13.60/hr and found that she had lost a 12.5% ability to perform her pre-accident housekeeping and home maintenance duties, thereby arriving at the award of $70,250 (12.5% residual ability multiplied by the claim of approx $580,000 = $70,250).
Civil Litigation Update
• E-Laws. You can now use Ontario’s e-laws website as an official source of legislation
• Anticipated changes to Ontario’s Civil Litigation System. Starting January 1, 2010, they may include:
o Simplified Procedure jurisdiction being increased to $100,000;
o Small Claims Court jurisdiction being increased to $25,000; and
o limiting the scope of Discovery to 7 hours, after which leave is required.
• Review of Bill 198 regime (motor vehicle accidents). FSCO recently submitted their recommendations on same.