The Statutory Threshold Test and Recent “Threshold Test†Decisions
Most motor vehicle accident victims are surprised to hear that not all parties injured in a car collision have a right to sue. Although Ontario is an at fault jurisdiction (a victim who suffers damages as the result of a car collision can sue the driver who caused the accident), the Insurance Act imposes an impairment test in order to determine whether victims have a right to recover damages for the physical and psychological/mental damages sustained. Only the victims who meet this test are entitled to recover those damages caused by the collision.
Section 267.5(5) of the Insurance Act enshrines the €Threshold Test€ and states: €Despite any other Act and subject to subsection (6) and (6.1), the owner of an automobile, the occupant of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained: (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function.
The Threshold test is analyzed through a review of the medical evidence available regarding the victims injuries. The medical evidence is then reviewed in light of section 267.5(5). For injuries which do not involve a permanent serious disfigurement, the important criteria are defined at subsection (b) of section 267.5(5). The victim must demonstrate through a physician's report that the injuries sustained in the collision have caused him/her to sustain: 1) permanent impairment; 2) impairment that is serious; and 3) an impairment that relates to an important physical, psychological or mental function. These 3 criteria must be present and proven by way of a medical report. Should the medical evidence fail to identify that the 3 criteria are present in the case, the victim will likely not meet the €Threshold Test€. This result is the victims being unable, by law, to recover any monetary compensation for his/her physical and psychological/mental damages.
Through the year 2013, the Ontario Superior Court of Justice has analyzed the issue of the €Threshold Test€. The Court's recent decisions provide guidance on this important issue. In the matter of Glass v. Glass 2013 ONSC 2857, the Court found that the victim had suffered from a permanent serious impairment of an important physical, mental or psychological function and awarded him monetary compensation for his damages. However, in the matter of Perez v. Pinto 2013 ONSC 1243, the Court found that the victim did not suffer a permanent impairment as a result of the collision. If she did in fact suffer any impairment, it was not important, nor serious. Since the victim did not meet the 3 criteria of the €Threshold Test€, she was not allowed to recover damages for loss.
The Perez decision highlights the importance of being able to meet the 3 criteria stated in section 267.5(5) of the Insurance Act. Unfortunately, not all cases of injury lead to an impairment condition or an impairment that is serious and important. If the victim cannot prove by way of medical evidence that these criteria are present in the case, there can be no monetary recovery.
Section 267.5(5) of the Insurance Act enshrines the €Threshold Test€ and states: €Despite any other Act and subject to subsection (6) and (6.1), the owner of an automobile, the occupant of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained: (a) permanent serious disfigurement; or (b) permanent serious impairment of an important physical, mental or psychological function.
The Threshold test is analyzed through a review of the medical evidence available regarding the victims injuries. The medical evidence is then reviewed in light of section 267.5(5). For injuries which do not involve a permanent serious disfigurement, the important criteria are defined at subsection (b) of section 267.5(5). The victim must demonstrate through a physician's report that the injuries sustained in the collision have caused him/her to sustain: 1) permanent impairment; 2) impairment that is serious; and 3) an impairment that relates to an important physical, psychological or mental function. These 3 criteria must be present and proven by way of a medical report. Should the medical evidence fail to identify that the 3 criteria are present in the case, the victim will likely not meet the €Threshold Test€. This result is the victims being unable, by law, to recover any monetary compensation for his/her physical and psychological/mental damages.
Through the year 2013, the Ontario Superior Court of Justice has analyzed the issue of the €Threshold Test€. The Court's recent decisions provide guidance on this important issue. In the matter of Glass v. Glass 2013 ONSC 2857, the Court found that the victim had suffered from a permanent serious impairment of an important physical, mental or psychological function and awarded him monetary compensation for his damages. However, in the matter of Perez v. Pinto 2013 ONSC 1243, the Court found that the victim did not suffer a permanent impairment as a result of the collision. If she did in fact suffer any impairment, it was not important, nor serious. Since the victim did not meet the 3 criteria of the €Threshold Test€, she was not allowed to recover damages for loss.
The Perez decision highlights the importance of being able to meet the 3 criteria stated in section 267.5(5) of the Insurance Act. Unfortunately, not all cases of injury lead to an impairment condition or an impairment that is serious and important. If the victim cannot prove by way of medical evidence that these criteria are present in the case, there can be no monetary recovery.