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: 

  1. 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,
  2. continue to meet the criteria in paragraph 1, and
  3. 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:

  1. 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,
  2. 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 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
  3. 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.

  1. 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.