Threshold Test

Information and Articles on The Threshold Test for Accident Victims

When a person is injured in a motor vehicle accident in the province of Ontario and wants to pursue compensation for their injuries, they can often face a challenging road through the legal system. In order to access compensation, the plaintiffs (or injured party or parties) must build a strong enough case to clearly demonstrate that their injuries sufficiently breach the “threshold”.

Threshold for personal injury claims is not an easy process to understand.  To help our clients with this concept and to improve their knowledge about it, and how it could affect their claim, we have provided the following information:

1. What is the Threshold Test and What is the Law Concerning Threshold?
2. Excerpt from the Ontario Insurance Act About Threshold
3. Blogs and Articles from the Ontario Trial Lawyers Association (OTLA)

1. What is the Threshold Test and What is the Law Concerning Threshold?

The recovery of general (monetary) damages for personal injuries arising out of a motor vehicle accident in Ontario along with monetary damages for future medical care costs must, by statute (Insurance Act and Regulations passed thereto), meet a certain “verbal” threshold, namely, that the relevant plaintiff must have sustained “permanent serious impairment of an important physical, mental, or psychological function.” This is otherwise known as the “Threshold”.

Criteria for the threshold test

For the Court is required to make the requested declaration, it must determine whether the plaintiff has sustained a “permanent serious impairment of an important physical, mental or psychological function”. Three questions must be answered:

1/ is the injury the plaintiff sustained permanent,

2/ is it important, and

3/ is it serious?

Caselaw reference – Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.), Adams v. Taylor (2013), 2013 ONSC 7920 (CanLII), 118 O.R. (3d) 389, and Malfara v. Vukojevic 2015 ONSC 78 (CanLII).

The determination of each of these components is governed by the requirements outlined in sections 4.1, 4.2 and 4.3 of O.Reg. 461/96, as amended by O.Reg. 381/03. These sections explain the criteria that must be met to show a “permanent, serious impairment of an important physical, mental or psychological function”. Section 4.3 outlines the evidence that a plaintiff must adduce to prove that their injuries meet the statutory threshold. In particular, a plaintiff is required to prove they have met the Threshold by providing a written report from a physician(s) trained for and experienced in the assessment or treatment of the type of functional impairment alleged which gives consideration to very specific questions.

Case law reference – Dimopoulos v. Mustafa et al, 2016 ONSC 429

Permanent

In relation to the first of the three criteria indicated above, (permanence), for the impairment to be permanent, the impairment must,

  1. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
  2. continue to meet the criteria in paragraph 1, and
  3. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances

The term “permanent” does not necessarily mean strictly forever until death. Rather, it means “lasting or intending to last or function indefinitely as opposed to temporarily”, or “lasting or meant to last only for a limited time”. It, therefore “bears the sense of a weakened condition lasting into the indefinite future without any end limit, as opposed to one predicted to have some defined end”.

Case law reference – Bos Estate v. James, [1995] O.J. No. 598 (Ont. Gen. Div.), Altomonte v. Matthews, [2001] O.J. No. 5756 (Ont. S.C.J.), and Brak v. Walsh, (2008), 234 O.A.C. 229 (CA).

The permanence of injury also is established where a limitation in function is unlikely to improve for the indefinite future.

Case law reference – Hartwick v. Simser, supra, Rizzo v. Johnson (2006), 82 O.R. (3d) 633 (Ont. S.C.J.), and Brak v. Walsh, (2008), 234 O.A.C. 229 (CA).

While in some situations the permanent nature of the impairment is readily apparent where for example there is a loss of an eye or limb, it will not be so clear in many cases where it will be necessary to establish that a condition will continue into the indefinite future.  A mere passage of time without further evidence to assess its significance, which may include a physician’s opinion regarding the injuries sustained and expectations of recovery, will be insufficient to establish a substantial possibility that the impairments are permanent. Objective medical evidence should be adduced to prove whether or not an impairment is permanent.

Case law – Seguin v. Vandinther, [2002] O.J. No. 3719 (Ont. S.C.J.), at paragraphs 41 and 43, Lento v. Castaldo, [1993] O.J. No. 2446 (Ont. C.A.),

Importance of function

In relation to the second of the three criteria indicated above, (importance of function):

  1. Not every function that is impaired is important. The Court must consider whether the bodily function is important to the injured person in question.

Case law reference – Lento v. Castaldo, [1993] O.J. No. 2446 (Ont. C.A.), at p.8.

2.The court must consider the effect the relevant bodily function has upon the plaintiff’s way of life in the broadest possible sense.

Case law reference – Nissan v. Mcnamee, [2008] O.J. No. 1739 (Ont. S.C.J.).

Serious

In relation to the third of the three criteria indicated above, (serious), in terms of whether these impairments reach the threshold for being a “serious” impairment Ontario Reg. 381/03 calls for the following.

4.2  (1)  A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:  The impairment must,

  1. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment; and
  2. substantially interfere with most of the usual activities of daily living, considering the person’s age.

The Courts have recognized in the context of determining the seriousness of impairment there is a need to consider “the effect of the injury” on the Plaintiff as opposed to the “type of injury,” see, Malfara v. Vukojevic, 2015 ONSC 78 (CanLII).

A change in job function or efficiency is sufficient to constitute a substantial interference with the ability of an injured person to continue his or her employment. Similarly, the frustration of an injured person’s chosen career path generally should be considered a serious matter.  See, for example: Patterson v. Sindall, [1999] O.J. No. 3992 (Ont. C.A.), at paragraphs 13-16; and Guerrero v. Fukuda, [2008] O.J. No. 3799 (Ont. S.C.J.), at paragraph 19, aff’d [ 2010] O.J. No. 2903 (Ont. C.A.).

2. Excerpt From the Ontario Insurance Act About Threshold

The insurance industry in Ontario is regulated by the Insurance Act (R.S.O. 1990, c. I.8).  The following information is taken from the Act, and it is specific to the matter of Threshold.

Click here to access the information:  threshold legislation

3. Blogs and Articles from the OTLA

Here are several blog articles from the Ontario Trial Lawyers Association and a case study from Ashley Gnys Personal Injury Law Firm Professional Corporation that provides additional information and context regarding “threshold”.

Updated: What is the Threshold Test and Who Meets It

How Insurance Companies Defend Car Accident Claims

Personal Injury Case Study: $1.5 Million Settlement

The “No Crash, No Cash” Rule on Public Transit Vehicles