Judge should determine whether injury is serious and permanent prior to jury deliberations

Ontario courts should consider if it would be best for a trial judge to determine whether or not an injury meets Ontario’s threshold test of a “permanent, serious impairment” prior to a jury deliberating on the outcome of the case, an Ontario Superior Court Justice has mused in Guerrero v. Fukuda.
Ontario Superior Court Justice T. David Little made his observations in the context of discussing the trial judge’s role in determining the threshold for serious and permanent and impairments under Section 267.5(12) and (15) in the Insurance Act.
Little noted the way in which thresholds are usually determined in jury cases is that the determination is not done until all of the evidence has been heard. The threshold issue is then argued in the absence of the jury, often while the jurors are deliberating.
“This can easily result in conflicting decisions,” Little noted, “as effectively both judge and jury are separately determining the existence and severity of the alleged injuries.
“The trial judge may well find that the threshold ‘was not met’ and then be confronted with a substantial jury award [that] would indicatethe jury believed otherwise.”
Little said he suspected in many cases the trial judge prefers to await the verdict of the jury before rendering a decision on the threshold issue to avoid a situation in which he or she is unduly influenced by the jury findings.
“Perhaps the threshold issue should be decided by the judge before the jury is permitted to retire to consider its answers to the questions,” Little submitted in his judgment. “This could resolve the issue of the non-pecuniary loss and limit the questions to be answered by the jury to pecuniary damages.”
The drawback with the suggestion, Little added, is that this “would probably defeat the purpose of having a jury at all, as most often I suspect the purpose of selecting a jury relates directly to the assessment of general damages.”
Elsewhere in his decision, Little suggested pain no longer requires any objective verification in the courts. “Pain, and its degree of severity, are subjective and can exist without any objective finding,” he wrote. “Calling an expert to say that no objective finding equals no pain is no longer acceptable.”