Threshold Decisions

7/25/2019 Threshold Decisions

1/6

agC

O

Westlaw DeliverySummaly

Report

for

GMNATSTENDONA

Datefime of

Request

Client Identtfier

Database

Citation

Text

Lines

Documents

Images

Thematerial

accompanying

tlzis

summary

is

subject tocopyright

Usage

is

govenzedbycontract

with

Thomson

Reuters

West

alzd theiraffiliates

Wednesday

May

3 2 2 5 36Central

3 28

CARSZNIEMOONM

CARSZNIEMOONM3 5

l43

l

l


2/6

agC

O

CARSZNIEMOONM3 5

Page

l

CARSZNIEMOONM3 5

ViewMemorandum

Summary

MemopoLsumm

3 48Dsclaimer

Memorandum

of

Law

C

Thomson

Reuters

Canada

Linzited

or

itsLicensors

excluding

individual

court

doctmzents Al

rights

resenred

Classification

Insurance

A

utomobile

iasumnce

flzreshod

issues fleneral

principles

Author

TVA

The

Legal

Outsourcing

Network

Jurisdiction

Ontario

Date

of

Research

March l

Updated

Date

March l

Legal

Issue

Wzich tlzreshod

cases

have

found

a

serious

and

penzzanent

impainuent

under

the

Bll l98

regime

Fact

Scenario

Your

clients

were injured

in

moor velzicle

accidents

You

would like

a

chart

stmzmaly

of

the decisions where the

plaintiffs passed

thetlzreshod

Other

Key

Words

ilzstuunce

Statlztoly

AccidentBenefits Schedttle SABS

tlzreshod Bll

98 serious

penzzanent

impainuent

Subject

Insurance

CONCLUSION

Below is

a

chart

summaly

ofBll l98decisions inwlzich the

plaintiffs

have

passed

thetlzreshod

ANALYSIS

Case

Name Date

of

Description

of

Injuries

Tlueshod

Met

Y

q

Dscussion

Analysis

ofTlueshod

As

MVC

Reasons

for

Judgment

sessed

dnm

ages

Ca

Feblu

9

year

od

pedestrianwas

Fh

rhedeceaseds

injuries Although

thedeceased

clearly

Nl

marata

aly

l stmck

by

a

vecle

He were

such that

they

pre

met

the

tluvshod

discussion

Morgan

2 4

washospitalized

until

vented

lzimfrom

providing

centred

upon

a

discussionof

prin

2 8

March 5

2 4

was

read

for

lzis

owncare

andfrom

ciples relating to

R 2 motions

Carswel nzitted

onMay

2 4and

engagng

in lzis

pre

and linzitation

periods

lont

275

passed

away

on

June

accident activities

Ont

2 4

as

a

result

oflzis acci however motion

to

dis

C

2 2

Thomson

Reuters

No

Claim

toOrig

Gov Works


3/6

agC

O

CARSZNIEMOONM3 5

Page

2

S C

J

dent related

injuries

Injur

nziss

action

was

allowed

affd

k

7

ies

included

a

head

injttly

The

plaintiffs

did

not

issue

2 9

deep

veintlzrombosis alzd

a

Statementof

Claim

until

Carswel

pain

tlzroughout

lzis

body

two

years

and

a

month

lont77

He

also

displayed

confu after

theaccident

They

Ont CA

siono

depression

alzd disor failed

to

present

alzy

med

ientation

as

to

time

alzd

ical

evidence tlzat

could

place

Claim

by

lzis

fnmily provide

a

basis for

extend

members

was

issued

hvo

ing

the limtation

period

years

and

one

month

post

accident

Saikaly

Octo Plaintiffsttffered

a

serious

FfsAlthough

the second Justice

Mclseanagreed

with

n

a

Buck 2 8 ber l7 knee

injuly

She has

part

ofthe

ntling

has

not

Justice

Morissette

in

C

Nssan

Carswel

2 3

trouble

kneeling

since the been released Justice Mcnamee

that

thenmendments

to

lont9 3 accident she

tmdenvent

Mclsean

foundthePlaintiff theAct

are

essentially

cont

irmat

Ont knee

surgely

andhas dffi

met

the tluvshod

on

the

oly

ofthe law tlzat is found in

U

J

S C

J

culty using

the stairs

and

basis

that

her

impainzzents

Meyer

right

para

2

walking long

distances

substantially

interfered

She continues

to

workbut with

most

ofherusual

nzistakeshavebeenmade

daily

activities

at

work She

camzot play

gof

like

she

dd

she

does

noshop

or

keep

herhouse

in the

order

she

once

did

Plaintiff

is

nocapable

of

waslzing

theclothes

pre

paring

meals

or

soclaliz

ing

C

Guerrero Un

Plaintiffsustained

wlzip

Ffrlantiffs

injuries

are

Pain alzd its

degree

of

severity

6

ttkuda known lash

injuries

inMVC She

genuine

andhaveexisted

are

subjectiveand

can

exist

past

2 8 alsosttfferedfromlower since

the

accident Plaintiff without

alzy objective

finding

lossof

Carswel back

pain

andradiationof isunable

to

work lzard

Calling

an

expert

to

say

that

no

income

lont

57 6

pain

into

both

nrms

and

evenona

part

timebasis

objectivefinding

equals

no

pain

Ont

legs

Plaintiff

could

no

with accommodations

Her

is

no

longer acceptable

That

S C

J

work

full time Sheworked

pain impacts negatively

same

expert

wll

often

treat

the

affd

2

part

timewith constant

upon

her

ability

tofunction

pain

that exists

eventhough

itis

Carswel

pain

and

serious

lifestyle

such that

itis

a

substantial

without

objectivefindings

para

lont

484

restrictions She

had

some

interference

with

her

usual

5 Courtof

Appeal

found

no

Ont CA

pre

existing

arthritic

con

employment injobs

reqr

basis

to

interferewith trial

dition alzd

pain

wlzich

were

ing

alzy

physical

activity judges

tlzreshoddetenzzination

found

not to

becomzected

para

29

Doing

an

activ

Judges

reasons

alzd the

plaintifcs

to

the

injuries

sustained

in

ityonarepeated

basis

e

g

medical

evidence

adequately

ad

the

colision

neck

ttmzing leg

nnm

rais dressed

evidentiaryrequirements

ing

wllile

incurring

pain

is

of

applicable

reg

ulation

C

2 2

Thomson

Reuters

No

Claim

toOrig

Gov Works


4/6

agC

O

CARSZNIEMOONM3 5

Page

a

restriction

that

negatively

impacts

her

lifestyle

C

Barkley

July

2 Plaintiff

was

at

the

time Fhrheback

pain

would

na na

Litigation

2 4

of

the

MVC

She

sustained interferewith

most

of

the

Guardian

a

nzinimal

compression

usual

activities

of

daily

liv

o9

o

fracture

ofthe

superior

end

ing

especiallyconsidering

gel

2 8

plate

of

L

land

a

lesser

the

plaintiffs

age

The

Carswel

fracture

of

Tl

with

asso impainzzent

has

been

con

lont

8774 ciated

soft

tissue

injuries

tinuous

since the

incident

Ont

She

continued

to

sttffer alzd is

not

expectedto

sub

S C

J

fromback

pain

after

as

stantially improve

There

little

as

tvventy

nzinutesof is

a

real riskof

it

increas

sitling

or

prolonged

stand

ing

as

the

plaintiff

ages

ing

Cnmpbell July

2 The

female

plaintiff

wasa

Ffhqhe

plaintiff

wascon na

General

oivin 2 5

housekeeper

in

a

hospital

sistent

both

intenzally

in dnm

2 8

part

time

at

the

time

ofthe herevidenceand

vis

a

vis

ages

Carswel

MVC She

was

also

a

rtln

theevidenceof

six

lay

wit

5

lont

7875

ner

alzd

was

training

for

a nesses

Prior

to

theacci

past

Ont triatlzlon

at

the

time

ofthe dent she

was

active

in

a

lossof

S C

J

accident She sustained

wide

range

of

sports

She income

soft

tissue

injuries

at

the is

now

described

as

inact 2446

neck shoulder back alzd

ive

and

sedentaly

The

fu

lzip asa

resultof

the

rear

court

accepted

theevid tttre

end

colision Shemade

ence

ofthe

gastroenterolo

lossof

two

attempts

toretunlto

gist

who

made

an

objective

income

work

The

key injuly finding

ofdiastasis recti 52 l

wlzich continued

to

bother

But

for theaccident the

her

was

pain

inher

abdo

plaintiff

wottld

no

have

men

sttfferedtraumato

the

ab

donzinal wall

and

wottld

no

sttffer

the

constantpain

she

now

has There

had

been

a

complete

reversal

in

hernonual

lifestyle

H

Hayden

Novem

Male

plaintiff

with

ongo

Ffhrespite

sunreillance Justice

Fergusonwas

persuaded

n

a

teven ber 8

ing

symptoms

ofnzid

to

videos

ofPlaintiff

bending by

Justice

Morissettes

viewof

son

2 9 2 3 lowback

pain nnxiety

de

sitling crouclng

reach

the

new

amendment in

C

Nssan

Carswel

pression

and

sleep

dffl

ing

etc

Justice

Ferguson

Bll l98does

not

make

prior

case

lont3578 culties Afteraccident

accepted

lzis evidence

that

law irrelevant

case

law

remains

Ont plaintiffattempted to

re

he

canperfonu

theseactiv

of

great

assistance in

detenmining

S C

J

ttmz to

co

op

progrnm

in

itieswith

pain Even

ifhe

what constitutes

penuanent

seri

automotive fieldbut

cottld

was

wrong

in

finding

that

ous

and

important

nocomplete

itdue

to

back

the

regttlation

is

a

codifica

C

2 2

Thomson

Reuters

No

Claim

toOrig

Gov Works


5/6

agC

O

CARSZNIEMOONM3 5

Page

4

pain

tion

vs

a

toughening

up

of

thecriteria the

plaintiff

wouldstill have

passed

tlzreshod

C

Valdez

May

Trial

concemedOctober

FfslusticeMilanetti

found

Milanetti

concludedthe

new

e 25

larke l5

2 3

accident alone

May

Plaintiffdid

not

have

a

gislation

did

not

make

prior

case

for

2

2 3

l72 4accident settled

pre

existing

lzistoly

of law irrelevant Further

support

to

pain

Carswel Octo alzd

May

2 3

Paintiff clzronic

pain

Turning

the

line

of

cases

that

hodtlzat and

lont

3 ber

was

at

fattlt downaltenzate

cleaning

Bll

l98tltreshod

is

not

substan

sttffer

Ont

2 3

driverl

plaintiff

retumed

to

workdue

to

back

pain

con

tially

more

onerous

than

Bll59

ing

S C

J May

lzis

primazy

work

but

was

stitutes

a

substantial inter tlzreshod

provisions

before

l7 unable

toretunlto

lzis ad ferencewith

reg

ular

or

deduct

2 4 ditional

part

time

position

usual

employment

ible

alzd turlzeddownaltemate thus

cleaning

work

as a

result

Paintif

oflzis back

pain

was

barred

from

alzy

fin

ancial

ICCOV

C

Van

n

a

As

a

resultof

MVC FFSCOUICdescribedback JusticeHockin

was

iastmcted

by

n

a

Winckle

Plaintiffsttfferedmechan

painas

clzronic

Back

pain

Bll59

case

law

of

7

Meyer

Siodlowski ical

lowback

pain

pain

is

significant

andPlaintiff

Bright

alzd

U

May

asoa

2 9 from

groin

alzd

leg

are

has

penuanent

injuries

Carswel disc

protmsionat

L2L3

lont7 l

slight

knee strain

depres

Ont sion

adjustment

disorder

S r

J

p

k

k

j

ij

k

j

r jj

k

Q

auo

j

kl i

j

y j k j

jj

j

g

lt t

E g

a

l

I o j l

t l i

sctllrzlllrl

zt

lllr

t

k

f

k

k

tb

8

lk

i

i

rt

lt

t

ty

C

L

i

l

4 3

8 k

Request

update

of

tlzis

memorandum

for

your

scenario

orjurisdiction

Dsclaimer Carswell is no

engaged

in

rendering

legal or

other

professional

advice

and

tlzis

research document is not

a

substitute for

independent

legal

research Carswell distributes

tlzis

research document

and

provides

the software and

con

tents

as

Carswell disclaims

any

representations

warranties

or

conditions

ex

press

or

implied including

those

of

per

C

2 2

Thomson

Reuters

No

Claim

toOrig

Gov Works


6/6

agC

O

CARSZNIEMOONM3 5

Page

5

fonuance

accuracy

completeness ctmentness

or

fitness

or

applicability

for

a

particular

purpose

or

situation

with

re

spect

to

the

contents

ofthe researchdocument

and

or

the software

ENDOF

DOCUMENT

C

2 2

Thomson

Reuters

No

Claim

toOrig

Gov Works