What is the threshold and who meets it?

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 is sometimes a controversial test because even in a jury trial, the test is decided by the judge after the verdict has been delivered.

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. According to the Court of Appeal, “The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury.” (Kasap v. MacCallum, 2001 CanLII 7964 (ONCA))

The Threshold Test

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?

Meeting the Threshold

Defence lawyers often talk about Plaintiffs not “meeting the threshold” as a litigation position. The three-part test has been determined hundreds if not thousands of times in Ontario, so it is best to look at previous cases to see who meets the test.

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] O.J. No. 1348, 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] O.J. No. 3335, 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 can be an effective means of screening for vexatious litigants. Unfortunately, injured victims are already subject to a cap on their damages that accomplishes the same goal, and this setup is ripe for abuse by insurers.

Next: How Insurers Deduct Thousands from Accident Victims’ Compensation

Brendan Sullivan
Written by

Brendan is a lawyer working in Hamilton Ontario at Harvey Katz law office. He has had the privilege of working closely with Harvey Katz and assists seriously injured people with claims arising from motor vehicle accidents, slip and falls, dog bites, life insurance denials and long-term disability. Brendan completed his articles in 2016 with a large insurance defence firm where he assisted with a seven week jury trial in Toronto. Brendan is a member of the Hamilton Law Association and the Ontario Trial Lawyers Association.