The Court set out how to analyze whether or not the exacerbation of pre-existing injury would exceed the minor injury threshold under Ontario legislation, which provides guidance for the same issue under Alberta’s minor injury cap.

Mann v. Jefferson, 2019 ONSC 1107, per Trimble, J.

Facts + Issues

The Plaintiff claimed for injuries arising from a motor vehicle collision in 2011 with the Defendants. The Plaintiff had previously suffered injuries in a motor vehicle collision in 2008. The injuries, in part, were sustained to the Plaintiff’s neck, shoulders, and back. The Plaintiff alleged that the motor vehicle collision in 2011 exacerbated his previous injuries from the 2008 motor vehicle collision, causing him to suffer from a permanent serious impairment of important physical functions.

The Defence admitted liability for the accident. The only issue to be determined was whether the 2011 accident caused any of the Plaintiff’s injuries or aggravated his pre-existing injuries, and if so, what damages should be awarded as being above the Ontario threshold for claims for general damages and health care costs for a minor injury set out in 267.5(5) of the Insurance Act, RSO 1990, c I.8, which states:

267.5(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants 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 Plaintiff has the onus of proving on a balance of probabilities that his injuries created a permanent serious impairment of an important bodily function, and therefore, fell within one of the exceptions to the statutory bar to recovery of general damages and health care costs.

HELD: For the Defendant; Plaintiff not entitled to general damages and health care costs.

1. The Court held that the Plaintiff had failed to meet the onus of proving he had suffered from a permanent, serious, impairment of an important bodily function, and was barred from recovering damages for health care costs and non-pecuniary general damages. 
2. The Court held that to determine whether the Plaintiff had suffered a serious, permanent impairment of an important bodily function for alleged exacerbation of prior injuries, the Court must compare the Plaintiff’s post-accident function with his pre-accident function.

[13] … Where a Plaintiff already suffered from injuries or conditions at the time of the accident the judge is required to determine the level of the Plaintiff’s functional abilities immediately before the accident (already compromised by the pre-existing condition) and determine if and how they have been compromised by the accident at issue. [Footnotes omitted].

[14] In cases where a Plaintiff suffers limitations before the accident, the extent of any further impairment of the Plaintiff’s function caused by the accident at issue need not be a significant impairment in the eyes of an ordinary, able-bodied person to still qualify as being a serious and permanent impairment. One must approach the issue from the Plaintiffs’ perspective.

3. The Court held that in such a personal injury claim the credibility of the Plaintiff is crucial.
   1. The Court held that in order to determine the effect of pre-existing injuries or conditions, the Court must examine the evidence provided by a plaintiff with respect to his or her claimed injuries and levels of impairment, in light of the expert evidence provided. As the evidence provided by a plaintiff as to their condition is subjective, the plaintiff’s credibility becomes a key issue.

[18] The cases show, however, that Plaintiffs generally lose threshold motions where the Plaintiff is an unreliable historian, gave contradictory evidence, was not candid with his doctors, gave inaccurate or incomplete information to doctors, did not follow doctors’ recommendations, where surveillance clearly contradicts the Plaintiff’s report of pain, injury and disability, and/or the Plaintiff’s performance as a witness showed him to be argumentative and uncooperative. [Footnotes omitted].

2. The Court found that the Plaintiff was an unreliable historian. The Plaintiff’s evidence in cross-examination with respect to his state of health and function at any given time often contradicted what he said in direct, and what he told doctors. Further, what he told one doctor about his state of health and function at any given time was often at odds with what he told another doctor. The Court found that the contradictions were significant.  
3. The Court, however, accepted the opinions of the doctors’ findings that notwithstanding the various versions of his history that the Plaintiff provided, the Plaintiff suffered an aggravation of his neck shoulder and lower back symptoms originally caused by the 2008 accident. In finding the same, the Court considered the permanency, seriousness, and importance of the Plaintiff’s injuries.

4. The Court found that the Plaintiff had failed to meet the onus of establishing that the aggravation of the 2008 injuries caused by the 2011 accident were permanent within the meaning of the legislation.
   1. In determining the permanency of an injury, the Court provided:

[145] … the impairment must last into the indefinite future, as opposed to a predicted time period, with a definite end. [Footnotes omitted].

2. The Court held that there were issues with the reliability of the Plaintiff’s physician evidence, as they had not reviewed all available evidence. The Court ultimately preferred the findings of the Defendants’ expert physicians, as they had reviewed a more fulsome record which enabled them to test the accuracy of the Plaintiff’s reliability as a historian.  
3. The Court found that the Plaintiff sustained a temporary aggravation of his former injuries which were likely to last between 8 – 20 weeks post the 2011 accident.

5. The Court found that the Plaintiff failed to prove that the impairment from the 2011 accident was serious within the meaning of the legislation as compared to his condition immediately before that accident.
   1. The Court held that in order to determine an impairment is serious:

[153] … the court must consider the seriousness of the impairment to the person, as opposed to the injury in isolation. Further, the impairments must go beyond tolerable. Interference may be frustrating, and even unpleasant, but if it does not go beyond tolerable, it is not serious. [Footnotes omitted].

2. The Court found that the medical records of the Plaintiff showed little change in his condition before and after the accident.

6. The Court found that the functions of the Plaintiff that were impaired were “important” within the meaning of the threshold legislation.
   1. The Court held that:

[151] The court must consider the importance of the bodily function in issue as it relates to the particular individual. Is it one that plays a major role in the health, general well-being, and way of life of the Plaintiff? The analysis is subjective and qualitative. What must be considered is whether the injured person, as a whole, and the effect which the bodily function involved has upon the person’s way of life broadly. [Footnoted omitted].

2. The Court held that the functions impaired were important as impairments faced by the Plaintiff affected his ability to carry out housekeeping, and to attend to matters which were important to his life and wellbeing;

COMMENTARY: 

Despite the different legislative wording in Ontario, this case is useful for Alberta as it sets out a rational approach to determining whether or not an exacerbation of pre-existing injuries will be considered a “minor injury” under Alberta legislation such that general damages are capped.

Pursuant to the Alberta Insurance Act, RSA 2000, and the Minor Injury Regulation, Alta Reg 123/2004, there is a cap on the amount of damages payable for soft tissue injuries, including sprains, strains, and whiplash or WAD related injuries.

Section 3 of the Minor Injury Regulation provides that for a sprain, strain or WAD injury to be considered to have resulted in a serious impairment, the sprain, strain or WAD injury must be the primary factor contributing to the impairment. Serious impairment is defined in the legislation as:

(j)    “serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function

(i)    that results in a substantial inability to perform the

(A)    essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession,

(B)    essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, or

(C)    normal activities of the claimant’s daily living,

(ii)    that has been ongoing since the accident, and

(iii)    that is expected not to improve substantially.

It is likely that the aggravated injuries of the Plaintiff in this case would qualify as a minor injury. The Alberta application of “serious impairment” is similar to that of the Ontario’s “permanent, serious, and important” application. It is likely the decision would have been decided in the same manner in Alberta.