Car Accident Victims in Ontario Face Legal Hurdles After Their Injuries

The summer has officially arrived.  Along with the arrival of summer comes the thrill of driving; the long weekends; the cold beers; and of course lots of tragic car accidents. Who will sustain “permanent and serious impairment of an important physical, mental or psychological function or sustain permanent serious disfigurement” and be entitled to general damages for pain and suffering? The answer to this question is dependent on how the Ontario courts apply what has become known as the “Threshold Test.”

If one is involved in a motor vehicle accident, the law will permit recovery from the negligent party for pain and suffering so long as the court is satisfied that the injury sustained was “Permanent”, “Serious” and affects an “Important” function. These qualifications constitute what has become known as the “Threshold Test”. This test creates a barrier for a plaintiff to claim damages for pain and suffering unless each of these factors are met. These terms have been defined in Section 4.2(1) of the Insurance Act Regulations.

Needless to say, it was the insurance industry that lobbied hard to have these “hurdles” codified into the Insurance Act, which now make it more difficult for accident victims to sue for their injuries.

In a nutshell, impairment will be considered serious if it substantially interferes with most of the usual activities of daily living; with the ability to continue regular or usual employment or with continuing training for a career in a field the person was being trained in before the accident; or substantially interferes with most of the usual activities of daily living.

For an impairment to be considered “Permanent”, it must have been continuous since the incident and be of a nature expected to continue without substantial improvement.

An impairment will be considered “Important” if it is necessary to perform the activities essential to the person’s regular or usual employment; the person’s training for a career in a field in which the person was being trained before the incident; necessary for the person to provide for his or her own care or well-being; or important to the usual activities of daily living.

In addition to the abovementioned definitions, it will also be the court’s application of these definitions to the facts of each case before it to determine whether or not the Threshold Test has been met. The case law has been mixed, and is still evolving. As such, it’s hard to predict for certain how a court will or will not treat an impairment in different situations.

For example, returning to work after an injury may create a bar from recovering for pain and suffering on the basis that the impairment cannot be said to be “serious” as it would not “substantially interfere” with the ability to continue regular or usual employment. However, it can also be argued that one should not be prevented from recovering for trying to persevere and return to work when at the same time their impairment “substantially interferes” with most of the usual activities of daily living such as socializing, enjoying life, having an intimate relationship etc, even though they return to work.

Another big challenge is overcoming the “Permanent” hurdle. Just because an injury sustained causes significant distress and restrictions immediately following an accident, many times, a substantial recovery is made after some time. Therefore the effect of the injury may not be carry the degree of permanence required by the courts to award damages.

One other disincentive plaintiffs should be aware of is the “Vanishing Deductible”. Basically, if you sue a negligent party for injuries sustained in a motor vehicle accident and recover less than $100,000 at trial, the court will strip an additional $30,000 off your damage award. For example, if you are awarded $40,000, you will only take home $10,000.The purpose of this is to dissuade those with claims below $100,000 in value from clogging the court system and acts as a “tax” on your damages. If however you are awarded $100,000 or more, you will not be subject to this “tax”.

Have a great summer and safe driving!

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