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:
With respect to Justice Lemon’s interpretation of subsection (5), Justice Lemon reported as follows:
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:
- 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;
- the statute, properly construed, does not support the interpretation that a plaintiff cannot provide the corroboration required;
- 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;
- 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.