The Ontario Court of Appeal recently unanimously held that a plaintiff’s own testimony can be the corroborating evidence required to establish that he or she met the statutory threshold to recover non-pecuniary damages in claims arising from motor vehicle accidents.
In Gyorffy v. Drury, the plaintiff was involved in a motor vehicle accident and commenced a claim for damages, alleging that he sustained a whiplash injury resulting in complaints of back and shoulder pain, headaches and decreased range of motion in his spine. The matter went to trial before a jury. The plaintiff testified, as did his family doctor and two physiatrists. The jury found liability and awarded $39,000 in non-pecuniary damages. The defendant brought a motion to dismiss the claim for non- pecuniary damages on the basis that the plaintiff did not meet the statutory threshold under the Insurance Act.
Regulation 461/96 (the “Regulation”) provides that, in order to meet the threshold, a plaintiff must lead the evidence of a physician about an impairment, as well as “evidence that corroborates the change in function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.” In this case, although the trial judge accepted the plaintiff’s evidence about his pre- and post-accident condition, he ruled that the plaintiff could not himself provide the corroborating evidence required under the Regulation, and therefore dismissed the claim. On appeal, the Divisional Court set aside the trial judge’s ruling on the basis that the wording of the Regulation did not expressly preclude the plaintiff from giving the corroborating evidence.
The Court of Appeal upheld the Divisional Court’s decision. The Court of Appeal confirmed that it is the physician’s evidence, not the plaintiff’s evidence, that must be corroborated, and the Regulation does not expressly preclude a plaintiff from being the corroborating witness. In fact, the corroborating evidence can come from many sources, including the plaintiff, a family member, an employer or co-worker, another lay person, or perhaps even from surveillance or medical records. Finally, to the extent that a physician’s knowledge of the plaintiff’s condition comes from the plaintiff, the Court of Appeal noted that the trial judge would be sufficiently able to determine whether the evidence is in fact corroborative.