April 12, 2010 by Canadian Underwriter
The threshold in Ontario for determining whether injuries are “serious” enough to warrant jury awards are not supposed to be treated as barriers by insurance defence counsel, an Ontario Superior Court Justice remarked in the threshold case, Nicolas v. Bowers.
“I cannot leave this judgment without observing that the recent decisions of the Ontario Court of Appeal are reminders to trial judges that s. 267.5(5) of the Insurance Act exacts a threshold which an injured plaintiff must cross before recovering a jury award,” Ontario Superior Court Justice Arthur Gans wrote. “It does not by definition create a complete or even a partial barrier as is often implied in the arguments of counsel for the defendants.”
Defendant Joseph Bowers brought a motion to dismiss a jury award to plaintiffs Victoria and Carlos Nicolas, on the basis that Victoria Nicolas’ permanent injuries, sustained in a vehicle accident, were not “serious” enough to warrant a jury award.
Defence argued that although Nicolas’ soft-tissue injuries were permanent, they nevertheless did not “substantially interfere” with her enjoyment of life.
Gans noted in Brak v. Walsh that: “The requirement that impairment be ‘serious’ may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of household but continue to experience pain.”
Walsh goes on to note pain might “seriously affect” a person’s ability to socialize with others, have intimate relations, enjoy their children and engage in recreational pursuits.
Gans found that because Nicolas’ pain “and its consequence affects two very important pre-accident ‘life joys,’ namely her ability to fully experience the intimacy of sleeping with her husband, day to day, and entertaining her extended family on a weekly basis, without help from others,” her injury met the threshold for being “serious” and thus warranted a jury award.