Judge Finds that Threshold Motion Must Succeed Where Jury Assesses Damages at Zero

Bisier v. Thorimbert was an action for personal injuries arising out of a motor vehicle accident. At the trial, Mr. Justice J.R. Henderson of the Ontario Superior Court granted the defendant’s motion for dismissal of the plaintiffs’ claim, on the basis that the injuries did not meet the “threshold” under s. 267.5(5) of the Insurance Act. The injuries were soft tissue–WAD II, according to one of the plaintiffs’ experts–but the injured plaintiff had been able to return to work. She claimed that she had had a significant change to her life, that she experienced pain at work and was limited in her home and recreational activities.

There was also evidence that the plaintiff had suffered from pre-existing conditions.

The threshold motion was brought while the jury was deliberating. The jury returned with its decision before Justice Henderson had ruled on the motion and assessed both general damages and damages under the FLA at zero.

Justice Henderson held that there was ample evidence to show that the injured plaintiff’s condition was permanent, so the jury must have found that the MVA injuries had not materially contributed to the plaintiff’s current condition.

What is interesting about the case is that Justice Henderson found that “the decision on the threshold issue must be consistent with the jury verdict”. Accordingly, based on his inference, that the jury must have concluded that the MVA had not materially contributed to the plaintiff’s present condition, he ruled that she had not suffered a permanent impairment of a physical, mental or psychological function.

In the alternative, he said it was abundantly clear that if the jury was satisfied that there was a causal connection between the accident and the plaintiff’s condition, it must have determined that the impairment was not serious. Hence, the threshold was not met and the action must fail.

Insurers tend to serve jury notices in these sorts of cases, involving soft tissue injuries. Justice Henderson’s decision will probably encourage them to continue to do so, since the ruling results in the jury being indirectly empowered to decide the threshold issue (even though the Insurance Act expressly confines that power to judges).

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