In an interesting case heard on March 20, 2013, Ontario’s Divisional Court was faced with the question of whether or not a plaintiff is precluded from corroborating a physician’s evidence in relation to change of function, in the context of a threshold motion.

The trial judge, the Honourable Justice Lemon, had earlier determined that the plaintiff was credible and had suffered a “permanent serious impairment of an important physical, mental or psychological function”, as defined by the Insurance Act. Still, as based on his interpretation of section 4.3(5) of Reg. 461/96, the plaintiff’s action was dismissed.

Section 4.3 of Reg. 461/96 provides as follows:

(1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

With respect to Justice Lemon’s interpretation of subsection (5), Justice Lemon reported as follows:

The plain reading of section 4.3(5) requires that “the person shall adduce evidence that corroborates the change”. Here we have only the evidence of the plaintiff about his pre-accident condition. There is nothing that corroborates his evidence.
…although I accept the evidence of the plaintiff with respect to his condition and I agree with the plaintiff’s submission that he suffered a permanent serious impairment of an important physical, mental or psychological function, he fails this onerous provision of the regulation.
Some might suggest that this leads to an absurd result. Here we have a plaintiff with a credible claim, but no family or friends to support the change in function. As a result, he cannot satisfy the evidentiary burden under section 4.3(5). On the other hand, one must consider that the entire aim of section 267(5) is to create a threshold between meritorious claims that can proceed and meritorious claims that cannot. The legislature, in its wisdom, has determined that conditions which are not permanent, serious and important can be excluded on the basis of the detailed definitions of those terms. No doubt, the legislature can also exclude those claims on the basis of evidentiary thresholds [Emphasis added].

The Divisional Court, in considering Justice Lemon’s interpretation, as well as the arguments of counsel for the parties and the intervenor, the Ontario Trial Lawyers Association, determined as follows:

  1. the term “corroborates” in s. 4.3(5) is not a term of art, and does not, in itself, preclude a plaintiff from providing corroborative evidence;
  2. the statute, properly construed, does not support the interpretation that a plaintiff cannot provide the corroboration required;
  3. such a construction is not supported by the clear wording of the statute, which does not preclude the plaintiff from providing corroborative evidence, or by the purpose and scheme of the legislation and the statutory threshold;
  4. such a construction is inconsistent with Charter values, and of equality principles in particular, as it is likely to have a disparate impact on particularly vulnerable and marginalized groups in society, such as the elderly or recent immigrants.

It was consequently held that Justice Lemon had erred in his interpretation of s. 4.3(5) and that, given his other findings of fact, “had he correctly interpreted s. 4.3(5), he would have concluded that the plaintiff had met the statutory threshold”.

The dissenting judge found that Justice Lemon was correct. This might trigger an appeal.

Source: Gyorffy v. Drury, 2013 ONSC 1929 (CanLII).