Threshold Decision Underlines Dichotomy Within Ontario Insurance Act

The Ontario legislature has chosen to confer upon judges (alone) the right to decide whether or not a plaintiff in an MVA action meets the statutory “threshold”, making him or her eligible to receive an award of non-pecuniary general damages. But the jury, if there is one, has the power to decide what damages, if any, that plaintiff will receive. This “separation of powers” obviously has the potential to produce disagreements and O’Brien v. Charbonneau┬áis a very good example.

The plaintiff suffered soft tissue injuries in a car accident in 2000. At trial, the jury was asked the following question: “Are you satisfied the accident caused by the Defendant’s negligence materially contributed to the final condition of Connie Lyn O’Brien?” The answer it gave was, “No”.

The trial judge, Justice Robbie Gordon, had charged the jury that “answering this question would involve a two-step analysis. First, the jury had to determine what Mrs. O’Brien’s final condition is, and secondly, it had to determine if the Defendant’s negligence materially contributed to this condition.” His Honour interpreted the jury’s negative answer to mean that either the plaintiff was no longer suffering from “a condition” or that if she was, that “condition” had not been materially contributed to by the action.

The jury also made no award for future income loss, leading Justice Gordon to infer that it did not consider the plaintiff’s injuries to be permanent.

However, the jury did award general damages of $32,500. It is not clear from the reasons, just how that award could be reconciled with the answer given to the question above.

After the jury had rendered its verdict, Justice Gordon had to decide a threshold motion, brought by the defence.

His Honour reviewed the medical and non-medical evidence given at trial. He also said that he had “specifically considered the implied findings of the jury”. However, he ruled that the plaintiff had suffered a serious and permanent impairment of an important bodily function caused by a continuing injury, physical in nature.

His Honour obviously recognized that it was difficult (impossible?) to reconcile his view of the case with that of the jury. He said: “I recognize that my findings may well be inconsistent with findings made by the jury at trial. That is not to say that the jury was without grounds to make the findings they did. As I indicated earlier in my reasons, the jury had to have found either that the Plaintiff was no longer suffering from any condition or that any condition she was suffering from was unrelated to the accident. No doubt there exists evidence upon which either or both of those findings could be made. In this instance, to the extent that my finding is inconsistent with theirs, I happen to be of the view that the evidence leads to a different conclusion.”

As we have observed before, this kind of result just doesn’t make sense. By dividing the duties of the judge and jury as it has done, the legislature has invited such an outcome, in which each is entitled to evaluate the case in its own way and neither decision is subordinate to the other. How are the parties supposed to treat this decision (both aspects of it) seriously?

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