Principles Relating to the Threshold

A helpful discussion of the principles relating to the Insurance Act threshold can be found in Malfara v. Vukojevic, 2015 ONSC 78 (S.C.J.).  The arose out of a 2006 motor vehicle accident.  A jury awarded $7,700 in general damages, $1,326 for past income loss and nil for future loss of income.  Justice Firestone heard a threshold motion while the jury was deliberating.  He held that the plaintiff had not met threshold.

Justice Firestone set out a number of principles with respect to threshold motions, including:

• the trial judge is not bound by the jury's verdict, but is a factor he or she can consider in determining the threshold motion;
• "permanent" does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;
• "serious" relates to the seriousness of the impairment to the person and not to the injury itself;
• the degree of the impairment must go beyond tolerable to be serious;
• it is the effect of the injury and not the type of injury that is the focus of the threshold inquiry.

The evidence was that the plaintiff was 24 years old at the time of the collision and was completing a plumbing apprenticeship.  He alleged he sustained chronic neck and back pain as a result of the accident.  He was off work for 2-3 weeks then returned to his apprenticeship, ultimately becoming a fully licenced plumber.  He currently performs all of his job duties but with pain.  He no longer participates in sporting activities, partly because of his injuries and partly because he is busy.  He continues to cut grass, shovel snow and help in the kitchen, although with pain.

Justice Firestone granted the defendant's motion, stating "I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages".  The evidence did not support that the injuries and impairments had a significant effect on the plaintiff's enjoyment of life, or that they substantially interfered with his capacity for work or pleasurable activities. The impairments were not serious.

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