Malfara v. Vukojevic, 2015 ONSC 78
Released January 8, 2015 | CanLII
This case contains a good refresher on the principles which will be considered in threshold motions. Justice Firestone set out the following principles:
- the trial judge is not bound by the jury’s verdict, but is a factor he or she can consider in determining the threshold motion;
- “permanent” does not necessarily mean forever until death; a permanent impairment is a weakened condition lasting into the indefinite future without end or limit;
- “serious” relates to the seriousness of the impairment to the person and not to the injury itself;
- the degree of the impairment must go beyond tolerable to be serious;
- it is the effect of the injury and not the type of injury that is the focus of the threshold
The Plaintiff returned to work a few weeks after the collision and performed all of his job duties, albeit with pain. He no longer participated in sporting activities (only in part due to his pain) and continued to complete household duties with pain. Justice Firestone granted the defendant’s motion, as the evidence did not support that the injury significantly effected the Plaintiff’s enjoyment of life or capacity for work.