Nissan v. McNamee is, so far as we know, the first decision to interpret the “gloss” on the Insurance Act threshold that was enacted by regulation O.Reg. 381/03 (the package of legislative changes commonly referred to as “Bill 198”). The regulation took effect on October 1, 2003. While the wording of the threshold in s. 267.5(5) of the Act did not change, the regulation spells out, in much greater detail than had formerly been the case, the meaning of the three elements of the threshold: “permanent”, “serious” and “important”.
Nissan was decided by Madam Justice Johanne Morissette.
The ruling came in the context of a threshold motion following a jury trial. The jury apparently determined that the plaintiff was not entitled to any general or special damages. After an analysis of the wording of Bill 198, Justice Morissette found that the plaintiff did not meet the threshold because her injuries had not produced a “serious” impairment of function.
In a nutshell, Justice Morissette was of the view that the Bill 198 gloss on the threshold wording did not represent much of a change from the way that the caselaw had already interpreted the previous incarnations of the threshold. She said that in her opinion, “efforts to reframe the broad approaches that have been applied since Meyer, should be resisted”.
There were two aspects of the new wording that, in the view of Justice Morissette, had changed the threshold. The first (and most important) was the use of the word, “most” to modify the phrase, “daily activities”. This appears in the portion of the “gloss” that deals with “seriousness”. In one of three types of situations in which an impairment will be considered to be “serious”, the regulation says that the impairment must “substantially interfere with most of the usual activities of daily living, considering the person’s age”. Justice Morissette thought that the introduction of this language might suggest that a “quantitative analysis” must now be undertaken by the court, as to what daily activities had been affected and the importance of those activities.
Her Honour also thought that the regulation had made “a slight change” in its introduction of “accommodation” as a factor to be considered in determining whether or not an impairment is “serious”. The regulation says this:
The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment.
According to Morissette J., this provision:
raises the threshold for plaintiffs, but in my opinion, only does so modestly given the existence of prior decisions that have considered accommodation. It seems that this provision has added a positive obligation on plaintiffs to make reasonable efforts to use accommodation measures.
Justice Morissette summarized her conclusions about the effect of the regulation as follows:
In summary, most of the regulation does not appear to support any significant change in the interpretation of the threshold. In genera! terms, it suggests at best some clarification of the law regarding accommodation. The exception is the addition of the word “most,” which suggests a higher threshold where impairments affect daily living but not working.
 I would also note that I do not accept the defendant’s contention that the express requirements for proof suggest a higher standard as to the threshold itself. It seems to me that the requirements of s. 4.3 of O.Reg. 381/03 are for evidence that would be necessary to prove that the threshold is met in any case. The focus is on that evidence coming from a physician, and the source of the evidence should not change the standard on the threshold question.
Applying her interpretation to the case at hand, Justice Morissette held that the plaintiff did not meet the requirement of a “serious” impairment. The plaintiff had evidently failed to seek accommodation or to take advantage of accommodation offered by her employer. Surveillance evidence proffered by the defence was also telling and found by Her Honour to be inconsistent with the reports of her symptoms made by the plaintiff to her doctors.