Gyorffy v. Drury 2013 ONSC 1929: the Divisional Court rules that ‘corroborating’ evidence can be restricted to the testimony of the claimant and their Physician

This was an appeal by the Plaintiff to the Divisional Court arising from the trial judge’s decision to grant the Defendant’s ‘threshold’ motion. Although Justice Lemon found that the Plaintiff was credible, and had suffered a permanent serious impairment of an important physical, mental or psychological function, he dismissed the action on the basis that subsection 4.3(5) of Reg. 461/96 precluded the Plaintiff from corroborating his physician’s evidence that there had been a change to his level of functioning due to the accident.

Trial Judge’s Reasoning

Subsection 4.3(5) of Reg. 461/96 provides that:

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be permanent serious impairment of an important physical, mental or psychological function.

For various reasons, the Plaintiff did not call his wife, daughter, or former employer to testify with respect to his change in function. The only evidence came from the Plaintiff himself, and three physicians. Accordingly, there was “nothing to corroborate the plaintiff’s evidence of what he was like prior to the accident”. Justice Lemon applied a plain reading of section 4.3(5), accepting that while this approach may lead to an absurd result, it must be taken into consideration with the broader purpose of section 267(5) of the Insurance Act to a create a threshold between meritorious and non-meritorious claims.

Decision of the Divisional Court

The Respondent argued that the term “corroborate” was a term of art which, properly understood, should preclude a person in a plaintiff’s position from corroborating his or her own evidence. The Appellant submitted that the trial judge erred in assuming that it was the plaintiff’s evidence that must be corroborated. He argued that subsection 4.3(5) was concerned with corroborating the physician’s evidence with respect to the change of function following the accident. As an intervener, the Ontario Trial Lawyer’s Association (OTLA) additionally argued that the term “corroborate” did not on its face preclude a plaintiff from providing the corroboration or supporting evidence for a change of function, and was not a ‘term of art’ as argued by the Respondent.

Writing for the majority, Justice Harvison Young disagreed with what the majority perceived was a narrow construction of subsection 4.3(5) by Justice Lemon. The Court held that this section must be read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Legislature. The Court also relied on the Ontario Court of Appeal’s decision in Pepe v. State Farm Insurance Company, holding that if a legislator wished to specify or restrict who it was that could provide corroborating evidence, it would have done so expressly in the provision. As this was not done, the Court rejected a narrow interpretation and the trial judge’s reasoning that the overall purpose of the legislation was to restrict threshold claims.

The Court also considered additional arguments from the intervener OTLA, which argued that the effect of the narrow interpretation was absurd, in that it may potentially exclude credible threshold claims on the basis that independent corroborating evidence could not be adduced. It was OTLA’s position that such an interpretation was incompatible with equality principles expressed in section 15 of the Charter, as it would unfairly impact the most isolated and vulnerable groups in society. The majority of the Court agreed with OTLA, and found that the trial judge’s interpretation was inconsistent with Charter values.

However, the view of the majority was not shared by Justice Matlow, who determined that as a matter of logic, the Plaintiff was not capable of corroborating his own evidence, and that corroboration as required by subsection 4.3(5) was independent evidence that lent support to the primary evidence.

Potential Impact for Defendants

While one can appreciate protection of the most isolated and vulnerable groups in society who may not necessarily be able to adduce independent corroborating evidence out of circumstances beyond their control as an important objective, the Plaintiff in this case arguably did not meet the description of those persons the majority sought to protect. It appears that the Plaintiff chose not to call his wife, daughter or former employer to support his evidence and that of his three physicians that serious permanent impairments had brought about a change in his pre-accident level of function.

One question that arises from this is whether Gyorffy v. Drury will lead to a change in strategy for plaintiffs with questionable threshold claims, where the majority of the Divisional Court has arguably lowered the evidentiary burden to potentially meet the verbal threshold. Because the Defendant did not seek leave to appeal, what one might otherwise characterize as self-serving evidence can now be considered ‘corroborating’ evidence to support a change in function.