About a year ago, Justice Johanne Morissette’s decision in Nissan v. McNamee was released. Her Honour concluded that the Bill 198 version of the Insurance Act threshold in MVA cases had not effected much of a change from the previous regime.
In January of this year, her colleague, Justice Jane Milanetti came to a different conclusion. In Sherman v. Guckelsberger, Justice Milanetti held that the Bill 198 provisions were meant to “tighten up” the threshold.
Now, a new decision, supporting Justice Milanetti’s interpretation of the legislation, will be applauded by insurers. Mr. Justice George Valin concluded, in Sabourin v. Dominion of Canada General Insurance Company, that the legislature’s intention, in enacting Bill 198, had been “to tighten up the threshold by reducing the number of litigants able to sue”.
This was a fairly typical soft tissue or “whiplash” case. The plaintiff’s car had been struck from the rear and had been moved ahead a short distance, striking the car in front of hers.
The plaintiff complained of severe headaches, neck and shoulder pain and disrupted sleep.
Justice Valin had some reservations about the plaintiff’s credibility, saying that “the nature and number of inconsistencies in the plaintiff’s evidence, and the contradictions with the evidence of other witnesses called on her behalf, are too numerous and too significant to ignore”. Despite this, he accepted that “she experienced and continues to experience some pain and discomfort from the soft tissue injury she suffered in the accident, and that it has had an impact on the quality of life she enjoyed before the accident.”
His Honour elaborated on his finding, that the plaintiff did have some real symptoms:
 It is clear that, as a result of the accident, the plaintiff suffered a soft tissue injury. I accept that a person can suffer pain from a whiplash injury in circumstances where there are no objective medical findings to support their complaint. I agree with the comment of Little J. in Guerrero v. Fukuda that “pain, and its degree of severity, are subjective and can exist without any objective finding”.
 In this case, I have no doubt that the plaintiff has experienced pain in her neck and right shoulder since the accident. The issue is the severity of the pain and whether it has substantially interfered with most of the usual activities of daily living for a person her age.
He went on to make it clear that pain alone will not be enough to satisfy the threshold requirements of the Insurance Act. In dismissing the plaintiff’s claim for non-pecuniary general damages, Justice Valin said:
The plaintiff must do more than simply experience pain in order to bring herself within the exception to the threshold wording. The onus is on her to prove on a balance of probabilities that the pain she is experiencing has substantially interfered with most of her activities of daily living. I find that she has failed to prove on balance that her case falls within the exception to the threshold set out in s. 4.2(1)1(iii) of Bill 198. By any definition of the word “most”, she has failed to prove on balance that the pain from which she suffers has substantially interfered with most of her activities of daily living. Her claim for non-pecuniary damages is therefore dismissed.
The plaintiff had also asserted a claim for the present value of future loss of household services. The defendant argued that this claim was subject to the threshold too and should, on that account, be dismissed. Justice Valin rejected the argument, saying:
I agree with counsel for the plaintiff that, if the legislature had intended to amend the Act with respect to claims for housekeeping and home maintenance expenses, it could easily have added those claims to the categories of protected claims when it enacted Bill 198. It is reasonable to infer that, by not having done so, the legislature intended that the exclusion of claims for future loss of housekeeping and home maintenance services in non-catastrophic cases from the categories of protected claims should stand. I agree with counsel for the plaintiff that, if the legislature had intended to amend the Act with respect to claims for housekeeping and home maintenance expenses, it could easily have added those claims to the categories of protected claims when it enacted Bill 198. It is reasonable to infer that, by not having done so, the legislature intended that the exclusion of claims for future loss of housekeeping and home maintenance services in non-catastrophic cases from the categories of protected claims should stand.
To assess the damages attributable to this head of damages, Justice Valin started with a figure representing the present value of a lifetime of household services. This sum was calculated by the plaintiff’s expert to be about $562,000. His Honour held that the plaintiff retained about 87.5% of her pre-accident housekeeping ability and so, awarded damages of $70,250, based on 12.5% of the base figure of $562,000.