I’ve heard in order to successfully seek pain and suffering costs and health care expenses, the injured person must satisfy the threshold. What does threshold mean?

Acquire knowledge of the process for satisfying the threshold requirement of tort claims

To secure compensation for your pain and suffering costs and health care expenses, you must have sustained either a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function. This is called the threshold.

In a trial, the trial judge decides the issue of whether you meet the threshold. This means that, if the jury decides that you should be given damages, but the trial judge decides that you do not meet the threshold, you will not receive compensation. This is what happened in the case Ayub v. Sun (SCJ 2015).

The judicial inquiry for determining whether you have a permanent serious impairment of an important physical, mental or psychological function, involves three stages:

1. Have you sustained a “permanent impairment” of a bodily function by continuing injury?
2. Is the bodily function that is permanently injured an “important” one?
3. Is the impairment of the important bodily function “serious”?

To be awarded compensation, all three of these questions must be proved to be answered ‘yes’ (Mayer v. 1474479 Ontario Inc. (SCJ 2013)).

Section 4.2(1) of O. Reg. 491/96 breaks down the criteria for each element of the above legal test.

The “impairment” must either:

• substantially interfere with your ability to continue your regular or usual employment,
• substantially interfere with your ability to continue training for a career in a field in which you were being trained before the incident, or
• substantially interfere with most of the usual activities of daily living, given your age (such as employment or household responsibilities).

An example of a substantial interference with your employment is if you have a change in job function or job efficiency.

For the function that is impaired to be an “important” function to you, the function must either:

• be necessary to perform the activities that are essential tasks of your regular or usual employment,
• be necessary to perform the activities that are essential tasks of your training for a career in a field in which you were being trained before the incident,
• be necessary for you to provide for your own care or wellbeing, or
• be important to the usual activities of daily living, given your age.

In Mayer v. 1474479 Ontario Inc. (SCJ 2013), the court noted that the impairment must be important to you specifically.

For the impairment to be “permanent”, it must:

• have been continuous since the incident and must, based on medical evidence, be subject to your reasonably participating in the treatment, be expected not to substantially improve,
• continue to meet the above criterion, and
• be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

An impairment does not have to last forever, for the rest of your life, in order to be permanent. An impairment is permanent if it is unlikely to improve for the indefinite future. Evidence for a “permanent” impairment is a medical document that diagnoses your injury as being “chronic”.