What is the threshold and who meets it?

The threshold is a test used by the court to determine whether an accident victim should be allowed to recover money for pain and suffering, also known as “general damages”. The threshold is sometimes a controversial test, because even in a jury trial it is decided by the judge after the verdict has been delivered. Therefore, a jury may award a large amount of money but if the judge disagrees, and the Plaintiff fails to ‘meet’ the threshold – they will not be entitled to the money awarded by the jury. According to the Court of Appeal, “The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury.” (Kasap v. MacCallum, 2001 CanLII 7964 (ONCA))

The threshold test looks at the injuries or impairment suffered by the Plaintiff in three ways. First, the judge must be satisfied that the impairment is permanent. This will involve a review of medical records, treatment, and what the witnesses had to say about the prognosis for the Plaintiff. (Insurance Act, section 267.5(5))

Second, the judge must be satisfied that the impairment is serious. This is a bit more difficult to define, but it involves a judge considering what the level of impairment or injury is. The judge will consider what kind of effect the injury has had on the life of the Plaintiff including hobbies, work and family.

Lastly, the impairment must be to an important physical, mental or psychological function. This is a broad part of the test – it would be difficult to think of an injury or impairment that did not affect someone in one of these ways.

Defence lawyers often talk about Plaintiff’s not “meeting the threshold” as a litigation position. The three part test that is the threshold has been determined hundreds if not thousands of times in Ontario, so it is best to look at previous cases to see who meets the test.

In Mamado v. Fridson, 2016 ONSC 4080, the Plaintiff was employed full time as a receptionist and completing a course in psychology at a university in the evening. After her accident, she was unable to return to work or her studies. The Plaintiff’s impairments were mainly related to chronic pain, and she was held to be credible. The Plaintiff met the threshold.

In Perez v. Pinto [2013] O.J. No. 1348, the Plaintiff’s credibility was a central issue at the trial. The jury only awarded $2,500 in general damages, and the judge noted that the Plaintiff had “exaggerated her symptoms”. The judge considered the jury’s verdict in coming to a finding on the threshold motion. The Plaintiff did not meet the threshold test.

In Antinozzi v. Andrews [2011] O.J. No. 3335 the Plaintiff was found to be a credible witness who had moved homes because of a problem with walking stairs. She had an uninterrupted work history before the accident, and had not worked since. The Plaintiff did meet the threshold test for her impairments.