I am a Motor Vehicle Accident tort claimant. How can I meet the statutory threshold?

Why it is important for claimants to be accurate in communicating about their injuries

The owner or any occupant of a motor vehicle, or anyone present at a MVA, is not liable in an action in Ontario for damages for income loss, nonpecuniary loss and health care expenses unless, as a result of the use or operation of the automobile, the victim died or sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function.[1] The threshold issue is whether the plaintiff meets one of these exceptions.

Analysis of whether an injury is a permanent serious impairment of an important physical, mental or psychological function is broken down as follows:

• Has the plaintiff sustained a permanent impairment of a bodily function by continuing injury which is physical in nature?
• If yes, is the bodily function which is permanently impaired an important one?
• If yes, is the impairment of the important bodily function serious?[2]

If the plaintiff is trying to establish that they meet the threshold because they sustained a permanent serious impairment of an important physical, mental or psychological function, they bear the onus of proving, on a balance of probabilities, that their injuries satisfy these three criteria.[3]

The medical diagnosis of the plaintiff’s medical condition is an important piece of evidence for this legal issue. However, the diagnosis can depend to a large extent on the patient’s description of his/her pain to his/her doctor and, therefore, the weight that the trial judge will assign to the diagnosis can turn on the plaintiff’s credibility as determined by the trial judge.

This point is reflected by what a judge of the Superior Court of Justice recently said: ‘A plaintiff’s credibility is critical to his success on the threshold issue in circumstances where expert witnesses rely on the plaintiff’s subjective evidence to form their opinions. Medical evidence supporting a plaintiff’s impairment is “severely compromised” where a plaintiff provides a faulty history to his doctors and where he is deemed to be too unreliable’.[4] To paraphrase, this means that the plaintiff may not succeed in their MVA tort claim if they gave their doctors false information or if information that comes out establishes that the plaintiff is unreliable (uncapable of being truthful).

Some factors that can undermine a plaintiff’s credibility include:

• if the plaintiff is a “vague and inaccurate historian”;
• if he/she sometimes remembers details and other times does not;
• if he/she has major difficulty remembering a specific fact in one context (e.g. in courtroom testimony) but remembered it easily in another context (e.g. in an out-of-court interview).[5]

I am a MVA tort claimant. How important is an Offer to Settle?

Why you should pay close attention to the consequences of making/accepting/rejecting offers

When litigation is started, by the filing of a statement of claim, the case moves gradually towards a trial, an adversarial court process where each party presents evidence and makes argument to an impartial third party (trier of fact) who decides the facts and makes a final resolution of the issues. However, parties may resolve the issues in dispute on a temporary or final basis before trial by entering into a settlement. This involves a party making an offer and the other party accepting it.

There are many reasons for a party to make, and the other to accept, an offer. Litigation is expensive, time-consuming and risky. Thus, in a MVA claim, the defendant may make an offer to settle on terms that are between zero and what the plaintiff is asking for in the statement of claim.

In 1985, the Rules of Civil Procedure were amended to further encourage parties to reasonably make and accept offers. The Rules govern the conduct of civil proceedings in Ontario. The new rule, Rule 49, encourages settlement by setting out cost consequences for making r. 49 offers.

The rationale behind r. 49 has to do with costs (an order the judge can make at the end of an action or motion that directs the unsuccessful party to pay for the successful party’s legal fees). There are two different scales of costs: substantial indemnity costs (~90% of the opponent’s legal fees) and partial indemnity costs (~40% of the opponent’s legal fees).

If a plaintiff makes a r. 49 compliant offer and ‘beats it’ (i.e. gets a higher amount in the judgment than he/she asked for in the offer), the plaintiff is entitled to partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter. If a plaintiff makes a r. 49 compliant offer and obtains a judgment for an amount equal to or less than the amount he/she asked for in the offer, the plaintiff is entitled to partial indemnity costs up the date of the offer but the defendant is entitled to partial indemnity costs thereafter.

In order for r. 49 to operate, the offer to settle must be r. 49 compliant. It must: be in writing; be effectively delivered to the opposing party; be open to acceptance and binding if accepted; be served at any time after the start of litigation but at least seven days before the commencement of the hearing; and cannot expire, or be withdrawn, before the commencement of the hearing.

Hypothetical: Aaron is a plaintiff in a lawsuit in Toronto. He sustained a permanent serious disfigurement in an accident with another vehicle driven by Todd on Hwy 401. He sued Todd for $400,000 in damages on January 1, 2020. On December 1, 2020 he offered to settle with Todd for $300,000. Todd did not accept the offer to settle and the proceeding went to trial on April 24, 2021. Aaron won the lawsuit and was awarded $400,000 in damages. Aaron incurred $50,000 in legal fees up to December 1, 2020 and $50,000 in legal fees from December 1, 2020 to April 24, 2021. Since his offer was r. 49 compliant, he is entitled to a costs order of: $50,000 (0.4) + $50,000 (0.9) = $20,000 + $45,000 = $65,000. Now consider if things occurred differently – Aaron succeeded at trial but was awarded only $200,000. He did not beat his offer, which was for $300,000. Todd incurred legal fees from December 1, 2020 to April 24, 2021 of $50,000. Aaron does not get a costs award because Aaron is entitled to partial indemnity costs up to the date of his offer ($20,000) and Todd is entitled to partial indemnity costs after the offer ($20,000) and they cancel out.

[1] Insurance Act, R.S.O. 1990, Chapter I.8, s. 267.5.

[2] Meyer v. Bright, 1993 Can LII 3389 (ON CA).

[3] Ibid.

[4] Al-Radwan v. Wanless, 2018 ONSC 5464 (Can LII), para. 8.

[5] Nguyen v. Szot, 2017 ONSC 3705 (Can LII), para. 36.