Knowing The Threshold

By Albert Conforzi | December 16, 2013

Toronto personal injury lawyer Albert Conforzi: In order to excel at the practice of personal injury law, you need constant education and re-education. In my nearly 30 years of practice, I have seen no less than six separate auto insurance regimes in Ontario. That’s a lot of late night reading. To quote an old shipping phrase, “Eternal vigilance is the price of safety.”

The five legislative changes since 1990 all have a common thread: the introduction of a threshold to the right to sue another driver for injuries sustained in a motor vehicle accident. In claims for pain and suffering, the current version of the restriction on the right to sue requires victims to establish that they have sustained a permanent, serious impairment of an important physical, mental or psychological function.

The Shocking Revelation

There are also threshold wordings with respect to disfigurement and death, but for today, I am referring only to the consideration of physical, mental or psychological functions.

Victims should also be aware that there is a monetary threshold, which currently stands at $30,000 for the injured party. This means that in any general damage award for pain and suffering under $100,000, the insurer for the defendant driver who caused the injury does not have to compensate a victim for the first $30,000. For example, a $50,000 assessment by a court would result in a payment to the victim of only $20,000. Newly injured clients and potential clients are always shocked when this aspect of the automobile insurance legislation is explained to them. The deductible does not apply to general damage assessments in excess of $100,000.

It is also important to know that while the issue of calculating damages might fall to a jury in a personal injury case, the decision of whether or not a victim’s injuries constitute a permanent serious impairment is one that is left to the trial judge. In making this decision, the judge “may” consider the jury’s verdict, but they are not bound to do so. Accordingly, there have been cases where substantial damages have been awarded by the jury, and the judge has found the injuries not to meet the threshold. Similarly, there have been cases where virtually no damages have been awarded by a jury,  yet the judge has found the injuries to have resulted in permanent serious impairments.

Burden Of Proof

It is up to the victim to prove that he or she has sustained a permanent serious impairment. The burden of proof is on the balance of probabilities, meaning better than 51%, with respect to past or current matters. With respect to what might happen in the future, the burden of proof is cogent evidence that there is a substantial possibility that a particular event or condition may occur.

It is vitally important that your lawyer be expert in bringing forward the evidence required to meet the burden of proof.

The judge who decides whether or not the injuries will pass the threshold asks three questions:

1) Whether or not the injured person has sustained a permanent impairment of a physical, mental or psychological function. This does not necessarily mean forever unto death. The word permanent has been held to mean as lasting indefinitely into the future. Even if the impairment bothers an individual intermittently, if it is serious and important then it can still meet the test for the threshold.

2) Whether the function that is permanently impaired is an important one or not. Important functions are those necessary to perform the essential tasks of regular employment, taking into account reasonable efforts to accommodate; perform the activities that are essential for training for a career; provide for your own care or well-being; or the usual activities of daily living considering the person’s age. These important functions are always looked at in the context of the particular injured person. It is subjective. Accordingly, the courts have held a wide range of activities as “important,” including enjoyment of life, ability to socialize with others, have intimate relations, enjoy their children, recreational pursuits, and reduction in such things as participation in church activities, family activities and recreational activities. Of the three questions that are asked in consideration of the threshold, this is perhaps the easiest question to address.

3) Whether or not the permanent impairment of the important function is serious. This is the most difficult question to address. Another surprising fact for newly injured victims is that Ontarians are required to bear some degree of interference with their life because of pain, without the ability to sue for it. Again, creativity by your lawyer and a keen understanding of every aspect of your life will lead to the best results.

Certainly, an impairment which interferes with your ability to pursue your employment or frustrates your career path are the easiest ones to deal with. But courts have held that if a victim has resumed employment and responsibilities, even with pain, it can nevertheless be found to be a serious impairment if accommodation is required. This includes such things as frequent breaks, requiring assistance at work, or whether there is an interference with work and leisure qualitatively. A person who carries on their daily activities but who is nevertheless subject to permanent symptoms such as a sleep disorder, neck pain and headaches, or dizziness and nausea, has been found to nevertheless have a serious impairment because of the effect on enjoyment of life.

The fact that someone has returned to work and uses all of their available energy to maintain their employment, at the cost of everything else outside of employment, has also been found to meet the threshold. I usually described this as: “I gave at the office.” The individual has no gas left in the tank for any of the other aspects of daily living that make their life worthwhile.

Succeeding in a threshold claim requires both intimate knowledge of the law, as well as all the facts surrounding your life both pre-and post accident. Make sure that you have discussed all aspects of your life with your lawyer. If your lawyer is truly interested in these details, this will indicate that your lawyer probably knows what they’re doing.

Albert Conforzi is a personal injury lawyer with Pace Law Firm in Toronto. His posts generally appear on Mondays. Pace’s personal injury lawyers have been helping accident victims since 1980.