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Personal Injury

Ruling highlights 'absurd mess' of threshold test

An Ontario Superior Court decision overruling a jury’s award to a woman injured in a motor vehicle accident will only drive up the cost of personal injury court battles, Toronto litigator Michael Lesage tells AdvocateDaily.com.

The matter involved an appeal of a trial judge’s finding that a plaintiff’s injuries did not pass the statutory threshold articulated in the Insurance Act. The defendant tabled what is colloquially known as a “threshold motion,” following a three-week jury trial.

Lesage explains that it is a legal manoeuvre to ask the court to rule that under Ontario law the nature of the injury sustained fails to pass the threshold of what is considered a serious and life-altering impairment.

“The problem was only one expert witness testified as to the limitations faced by this woman and her frozen shoulder,” he says. “The fact is these injuries are life-changing. Everything becomes difficult — even reaching for the salt shaker or washing your hair — because you cannot lift one shoulder.”

Lesage, whose practice at Michael’s Law Firm includes insurance, business law, personal injury, malpractice and other liabilities, says the ruling casts a light on the disadvantage of plaintiffs seeking legal recourse.

“The court heard the plaintiff has a frozen shoulder as a result of a car accident. But the judge at trial decided she wasn’t injured enough and threw out the jury’s award of $75,000 plus $5,000 for future medical therapy, leaving her with $8,300 for future housekeeping," Lesage says.

“It makes you wonder what the value is of any kind of insurance,” he adds.

Lesage, who was not involved in the matter and comments generally, says this is just another example of “the absurd mess the Ontario government has created with its handling of legislation regarding insurance companies by even introducing this threshold concept.” 

The original judge in Oshawa accepted the threshold motion in throwing out the jury award in his December 2014 decision. The woman appealed to the Ontario Superior Court where a two panel bench upheld the original decision on April 19, 2018, primarily because she had only one expert witness testify to the extent of her injuries.

“The expert witness opined that the appellant had sustained a threshold impairment by virtue of her chronic pain condition,” the court wrote in its decision.

Further, the court found the witness was an advocate for the victim and thus biased.

“The trial judge found the opinion regarding the severity of the appellant’s neck, back and shoulder pain was completely at odds with what the appellant had reported to her own treating practitioners,” the court found. “He believed he was in a better position to assess the plaintiff in the one-hour time period that he spent with her, than those medical practitioners who had seen her in the intervening time period from the time of the accident through to trial.”

As such, the threshold argument prevailed because the woman had failed to bring the right expert testimony to support her position, Lesage says.

“The problem was not brought about by calling evidence in support of the threshold from a retained expert as opposed to a treating physician,” the court ruled. “Rather, the problem arose from proffering evidence solely through a retained expert whose evidence was ultimately rejected by the court.”

Lesage says the case also highlights the need to modernize the court process, especially in terms of getting expert testimony digitally.

“Treating physicians don’t want to go to court to testify,” he says. “They’re busy. They have patients, staff and so many other responsibilities. They don’t want to have to pack up and go to court and wait around to be called.”

As a result, he says lawyers go shopping for experts whose main calling is to hire themselves out, often casting themselves in the role of patient advocate.

“You have to wonder why we can’t hold depositions  — which are much more convenient to the treating physicians — and then record their testimony with both sides present,” he says. “It’s so easy to do and is done that way in many other jurisdictions.”

The upshot, he says, is that plaintiff lawyers will have to weigh the costs of bringing two or three experts to court in case one of them is found unqualified, driving up the cost of litigation further.

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