The threshold is a test used by the court to determine whether an accident victim should be allowed to recover money for pain and suffering.
The threshold test looks at the injuries or impairment suffered by the Plaintiff in three ways.
• First, the judge must be satisfied that the impairment is permanent. This will involve a review of medical records, treatment, and what the witnesses say about the prognosis for the Plaintiff.
• Second, the judge must be satisfied that the impairment is serious. This is a bit more difficult to define, but it involves a judge considering what the level of impairment or injury is. The judge will consider the effect the injury has had on the life of the Plaintiff including their hobbies, work, and family.
• Lastly, the impairment must be to an important physical, mental, or psychological function. This is a broad part of the test – what injury or impairment wouldn’t affect someone in one of these ways?
The threshold test is decided by the judge, even if the case is being decided by a jury. A jury might award a large amount of money but if the judge disagrees, and the Plaintiff fails to ‘meet’ the threshold – they will not be entitled to the money awarded by the jury.
Three examples of the threshold test in action:
• In Mamado v. Fridson, 2016 ONSC 4080, the Plaintiff was employed full-time as a receptionist and completing a course in psychology at a university in the evening. After her accident, she was unable to return to work or her studies. The Plaintiff’s impairments were mainly related to chronic pain, and she was held to be credible. The Plaintiff met the threshold and was eligible for recovery.
• In Perez v. Pinto, 2013 ONSC 1243, the Plaintiff’s credibility was a central issue at the trial. The jury only awarded $2,500 in general damages, and the judge noted that the Plaintiff had “exaggerated her symptoms”. The judge considered the jury’s verdict in coming to a finding on the threshold motion. This Plaintiff did not meet the threshold test and could not receive recovery.
• In Antinozzi v. Andrews, 2011 ONSC 3296, the Plaintiff was found to be a credible witness who had moved homes because of a problem with walking stairs. She had an uninterrupted work history before the accident and had not worked since. The Plaintiff met the threshold test for her impairments and therefore was eligible for recovery.
The threshold is just one of the barriers facing injured people from obtaining fair compensation.