C.A. Says Trial Judge Applied Wrong Test in Determining Whether Injury “Serious” and “Permanent”

Brak v. Walsh is a short decision of the Court of Appeal (Justices Karen M. Weiler, Michael J. Moldaver and Russell G. Jurianz), on appeal from a ruling by Mr. Justice Gordon Killeen on a threshold motion brought at the end of trial. Justice Killeen had ruled in favour of the defence, that the plaintiff in this MVA action had not suffered a “permanent serious impairment of an important physical, mental or psychological function”.

The Court held that Justice Killeen had erred in finding that the plaintiff’s injuries were not permanent and not serious.

On the issue of permanence, Killeen J., following what the Court said was a “careful review of the medical evidence”, concluded that the plaintff’s low back pain would “clear up with time”.

Before the Court of Appeal, counsel for the respondent conceded that there had been no evidence that the plaintiff’s condition would “clear up”, only that her pain would diminish with time. The Court said that the caselaw had established that the requirement of permanency is met when a limitation in function is unlikely to improve for the indefinite future. As a result, Killeen J. was found to have applied the wrong standard on this element of the Insurance Act threshold.

With respect to the requirement that the impairment be “serious”, Justice Killeen had “focused on the appellant’s ability to resume ‘almost all’ of her domestic duties and the fact that she was able to hold gainful and steady employment.” Again, the Court of Appeal said that the trial judge had applied the wrong test:

So here, as well, the trial judge’s focus was too narrow in determining whether the appellant’s injury was serious. The requirement that the impairment be “serious” may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children, and engage in recreational pursuits.

The appeal was allowed and the case was ordered to be “reconsidered by a different judge”. Somewhat cryptically, the Court then said:

We cannot finally decide this matter because of the credibility issues involved, however, given the amounts involved, the parties may see fit to resolve the matter without a rehearing.

Neither the reasons of the Court of Appeal nor those of Killeen J. say what amounts were involved. But we have ascertained that at trial, the jury apportioned liability 75-25 against the defendant. It assessed general non-pecuniary damages of $35,000, past income loss of $10,000 and FLA damages of $2,500, $15,000 and $5,000 for the husband, a 2-year old son and a 14-month old son, respectively.

Assuming that these assessments do not reflect the Insurance Act deductibles, that would mean that the non-pecuniary general damages awarded to the injured plaintiff would have a net value of $20,000, the FLA claims of the husband and the 14-month old son would be reduced to zero and the 2-year old’s claim would become $7,500. Thus, the total damages would be $37,500 or $28,125 after being reduced for contributory negligence.

It does not appear that Killeen J. factored the jury’s assessment of damages into his threshold ruling and so, this was not the subject of comment by the Court of Appeal (although the Court does seem to have been aware of what the assessment was). It would have been interesting to know what the views of the Court of Appeal would have been, had Killeen J. placed reliance on the jury’s assessments as part of his threshold ruling. A number of other trial judges have followed this approach: Dennie v. Hamilton, Bisier v. Thorimbert and Parks v. Peter, to name a few. It does seem rather illogical for a judge to conclude that a plaintiff’s injuries constitute a permanent serious impairment of an important function while, in the same proceeding, the trier of fact (the jury) values that injury at an amount that suggests only minor impairment. It would have been helpful to received some guidance from the Court of Appeal on the respective roles of judge and jury in these types of cases.

For now, perhaps the best defence strategy in these types of cases  is to ask the jury to decide the issue of causation, as was done in Campbell v. Julta. There, the jury apparently assessed non-pecuniary damages of $45,000 but when asked to determine whether the accident had materially contributed to the plaintifif’s condition as of the time of trial, answered in the negative.  Although the trial judge had found that the plaintiff’s injuries did meet the threshold, the Court of Appeal upheld the jury’s decision on the causation issue and leave to appeal to the Supreme Court of Canada was refused.

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