The threshold is a test found in the Insurance Act to determine whether a car accident victim is allowed to recover money for their pain and suffering.
Even in the case of a jury trial, the threshold is decided by a judge after a jury verdict has been delivered.
Section 267.5(5) of the Insurance Act in Ontario provides as follows:
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile, and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained:
- Permanent serious disfigurement
- Permanent serious impairment of an important physical, mental or psychological function
The nature of the injury for which a claim may be based is not only physical but can also include the mental and psychological functioning and impairment from that after the car accident.
Limits on Pain and Suffering Damages in an Ontario Motor Vehicle Accident
The system in Ontario is set up that there are limits to the amounts that are provided for pain and suffering for non-pecuniary general damages.
Even those injuries which meet the threshold test may be subject to a monetary deductible if the valuation of the claim is under the determined value as noted.
What Is the Minor Injury Threshold?
The Minor Injury Guideline (MIG) is part of the Statutory Accident Benefits Schedule (SABS) and is in place to guide how accident victims are covered for goods and services by their insurers if their injuries fall within the definitions in the MIG.
3-Step Analysis When Evaluating Pain and Suffering Threshold
There is a 3 step analysis applied when dealing with a threshold motion that was set up by the Court of Appeal in Meyer v. Bright ; Dalgleish v Green, and Lento v. Castaldo. The analysis is as follows:
- Has the injured person sustained permanent impairment of a physical, mental, or psychological function?
- If yes, is the bodily function that is permanently impaired important?
- If yes, is the impairment of important function serious?
The requirement that the impairment must be serious may still be satisfied when an individual resumes their activities of employment and the responsibilities of the household but continues to experience persistent and unremitting pain. The issue is whether the pain seriously affects the individual’s enjoyment of life, their ability to socialize with others, have intimate relationships, and engage in recreational pursuits.
A person who can carry on daily activities, but is subject to permanent symptoms including difficulties with sleep, severe neck or back pain, headaches, dizziness, or nausea which have a significant effect on that person’s enjoyment of life would constitute a serious impairment.
The impairment must go beyond what is tolerable. Having said that, an injured person’s ability to return to work is not the end of the issue of the threshold. The courts will consider the totality of the evidence, including the impairment of the injured person's ability to continue working and the impact of continued work on that person.
Medical records and opinion reports from treating physicians and experts would be important in the determination of this issue.
Concepts Related to Injury Threshold Compensation
A monetary deductible applies to all claims for pain and suffering damages.
For actions before 2015, a deductible of $30,000 is applied for all damages for pain and suffering that are assessed at $100,000 or less.
For example, if a plaintiff’s damages for pain and suffering are assessed at $80,000, they will only be entitled to receive $50,000. Even if a plaintiff is found to meet a threshold, if their damages are assessed at less than $30,000 no damages will actually be awarded. The deductible is increased annually for inflation.
As of 2020, with inflation, a deductible of $39,556 applies for any claim assessed at under $131,854.
Pecuniary vs Non-Pecuniary Damages
The first and main category that impacts all injured persons is what is called non-pecuniary general damages. The term non-pecuniary is a reference to non-income-related losses for the injured person. This is the legal term that is often commonly referred to as pain and suffering.
The valuation of non-pecuniary general damages is a factor of several components that include the nature of the injury that was sustained. For example, did the person suffer from soft tissue injuries to the back and neck, did the person have a broken bone or a torn ligament, did the person suffer a concussion or a brain injury from the impact. All cases and individuals are unique. The experience of the team at Chodola Reynolds Binder that has been involved in over 1000 cases would be able to provide an accurate and educated assessment of your value of compensation after a thorough interview and review of your medical records and any reports related to the injuries from your accident.
The second category of damages is called pecuniary general damages. The term pecuniary is a reference to income-related losses for the injured person.
The valuation of pecuniary damages is a factor of several components that involve the impact of the accident on the individual’s ability to work. Did the accident result in you being completely off work and not able to return to the job that you would still be working today but for the car accident? Did the accident result in you only partly being able to work? Did the accident result in you having to change your job to a less physically demanding job?
An impact on your chosen career path can be devastating. An analysis of your situation along with the medical opinion of the treating doctors to provide any medical restrictions for what work you can or can not do is key to determining what your allowed income loss would be and an assessment of your pecuniary damages.
The Law Surrounding Personal Injury Claims Is Complex
You should consult with a personal injury lawyer to help navigate this complicated system. Contact the team at CRB Law at 519-254-6433 or contact us on our website for a private and free consultation to determine your legal rights.