In Gyorffy v. Drury, 2013 ONSC 1929 (CanLII), the majority of a Divisional Court panel held that on a “threshold motion” under the Insurance Act, the injured plaintiff can, himself or herself, provide the corroborative evidence required by s. 4.3(5) of Reg. 461/96. The latter provides:
In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
At trial, the jury had awarded general non-pecuniary damages of $39,000 (so, $9,000 after the Insurance Act deductible). The trial judge, Justice Gordon D. Lemon then had to decide a “threshold motion”. He found that the plaintiff “was credible and had suffered a ‘permanent serious impairment of an important physical, mental or psychological function’.” However, he dismissed the action on the basis that the plaintiff had not met the requirements of s. 4.3(5) of the Regulation, quoted above, in that the only evidence at trial on the issue of the plaintiff’s “change in function” had been from the plaintiff himself and from three physicians. Justice Lemon reasoned that the plaintiff could not corroborate his own evidence, nor could his testimony corroborate that of the physicians.
In the Divisional Court, Justices Alison Harvison-Young and R. Dan Cornell held that s. 4.3(5) does not preclude a plaintiff himself or herself from providing the necessary corroboration. They said that the trial judge’s approach offended s. 15 of the Charter, in that plaintiffs who have no close family or other acquaintances (the elderly, recent immigrants) who could speak to their change in function would be barred from recovering damages in otherwise meritorious cases.
The majority allowed the appeal and awarded the plaintiff damages of $9,000.
Justice Ted Matlow dissented. He would have dismissed the appeal. He said:
The corroboration that was required by section 4.3(5) was independent evidence that lent support to the primary evidence adduced by the plaintiff with respect to “the change in the function” specified. The only evidence, and therefore the only primary evidence on this issue, was the evidence of the plaintiff himself. Therefore, as a matter of logic, his evidence was not capable of corroborating his own evidence. It would be apt to apply, in these circumstances, the story of the proverbial person who tried to pull himself up by his own bootstraps.
It does not seem to me that Justice Matlow’s concerns were fully addressed in the reasons of the majority. Counsel for the respondent made the point that the section could not have intended that the evidence of physicians be corroborated because typically, any evidence that they are able to give with respect to a change in function on the part of the plaintiff will come from the plaintiff himself or herself. Thus, allowing a plaintiff to provide testimony corroborative of the physicians’ evidence amounts to self-corroboration. The majority reasons do not really come to grips with this problem. The majority acknowledged that a medical report will likely contain self-serving evidence from the plaintiff as to a change in function and that that evidence is really hearsay. But Justices Harvison-Young and Cornell felt that allowing the plaintiff to provide the necessary corroboration means that “those statements will be subject to cross-examination in open court. It is open for the trier of fact to reject such evidence and conclude that a change in function has not been established.”
This approach seems to me to give rise to the very “bootstrap” criticism raised by Justice Matlow.
It should be noted that the Ontario Trial Lawyers’ Association intervened in this case and the submissions made by its counsel were obviously quite persuasive for the majority.