In the recent Superior Court decision, Valentine v Rodrigues-Elizalde, Justice Firestone clarifies the different ways to bring a threshold motion, and the principles that underlie their determination.
From this Decision three takeaways emerge that theoretically favour defendants:
(1) Judges should order threshold motions at Pre-Trial Conferences if the issue is a barrier to settlement;
(2) An injury can be permanent, but still not be serious (therefore not meeting threshold); and
(3) The new statutory deductible of $36,540.00 (which remains indexed to inflation on a go forward basis) applies retroactively to all accidents occurring since October 1, 2003.
Justice Firestone delineates the different ways the threshold can be determined under section 267.5 of the Insurance Act (the “Act”), which includes two ways to determine the threshold before trial, though if no motion precedes trial then a threshold determination must be made by the trial judge:
(1) on consent of all parties; and (2) failing consent, by order of a judge at a pre-trial conference.
In Valentine, Justice Firestone determined the threshold issue at trial. In obiter, he emphasizes the value of ordering threshold motions at the Pre-Trial Conference in cases where failure to resolve the threshold can jeopardize the resolution of a claim without trial. It was opined that the threshold can be a discreet, single issue – resolution of which would obviate the necessity of trial. It was opined that Rule 50.07(1)(c) of the Rules of Civil Procedure empowers a judge to make any order necessary or advisable – including ordering a threshold motion under the expanded summary judgement powers in Rule 20.05. Justice Firestone stated that ordering a threshold motion may avoid an unnecessary trial comports with the objectives of summary judgement: proportionality, cost-effectiveness and timeliness.
Justice Firestone concluded in Valentine that the Plaintiff’s injuries, for which the jury awarded $30,000.00 in non-pecuniary damages, although permanent, did not create impairments sufficiently serious to clear the threshold. The finding further crystallizes that a jury verdict is just one single factor to assist in determining threshold.
The Plaintiff, Amanda Valentine, was a 17 year-old high school student when she sustained injuries to her neck, shoulder and back in a rear-end collision. Before the accident, she played varsity-level soccer and basketball. She had been working at McDonalds for 7 months, and had no plans of leaving. She had extensive housekeeping responsibilities.
At trial, she was still experiencing daily back pain, and neck pain 3-4 times per week. She unsuccessfully tried returning to McDonalds after physiotherapy. She tried working at eight different jobs (i.e. restaurants, retail, and a recycling plant), but quit each time due to reported pain. She found employment as a door framer from August 2014 – October 2014, working 9.5 hours per day. Her employer noted her to be quite good at her job. She never requested accommodation in relation to the accident.
The medical experts disagreed on threshold. Arguments for exceeding the threshold were typified by the views of her family doctor, who concluded her back pain prevented her from doing certain types of work, and subjective complaints that there was no chore that would not cause her pain, and the argument she was unlikely to return to competitive sports. Arguments against crossing the threshold were that she had returned to work on modified duties, and performed quite well, and had resumed most of her housekeeping responsibilities. Also, despite not returning to competitive sports, she was able to kick a soccer ball and shoot a basketball. It is worth noting that there was no evidence she was going to play competitive sports after high school in any event.
Justice Firestone held that her injuries were permanent, but not serious.
The precedent set in Valentine sets a high bar for Plaintiffs to clear in arguing the threshold in the future. Despite experiencing frustration and pain, her injuries were not debilitating and her performance of her household chores was not intolerable. Her injuries did not substantially prevent her from performing regular employment on a fulltime basis. Further, she adduced no evidence that she requested accommodation from her employers.
Although her injuries undoubtedly prevented her from doing physically-intensive jobs in the future, the recourse for this was thought to be through special damages, both by way of income loss and a loss of competitive advantage claim. After offsetting her collateral benefits received the Plaintiff was awarded $4,684.17 for past loss of income, and $50,000.00 for loss of competitive advantage. Valentine is notable because it establishes that even when there is some form of employment-related impairment, the threshold will not necessarily be met.
Finally, Justice Firestone confirms the recent decisions of Vickers v. Palacious, 2015 ONSC 7647 and Corbett v. Odorico, 2016 ONSC 2916. Both of these decisions establish that the statutory deductible is procedural, not substantive. Therefore, section 267.5(7) of the Act is to be interpreted retroactively. When awarding non-pecuniary damages (and future health-care costs), all accidents occurring since October 1, 2003 are subject to the new statutory deductible of $36,540.00 (plus annually indexed increases) – rather than $30,000. This is purely academic, as the Plaintiff failed to clear threshold, and even if she did, the jury’s non-pecuniary award of $30,000.00 would have been wiped out regardless of which deductible applied.
If you have any questions about this blog or a similar file please contact David Zarek.