What is the “Threshold Test” and How is it Met?

November 10, 2018

What is the “Threshold Test” and How is it Met?

In addition to the physical pain and suffering that accompanies injury from a car accident, there are often medical expenses that are not covered by extended health plans. Seeking compensation for pain and suffering and health care expenses following a car accident in Ontario requires passing something called the “threshold test.”

Even minor accidents can have major repercussions when it comes to your health. Injury can severely impact your ability to earn an income and live your life fully. If you are hurt in a motor vehicle accident, hire a personal injury lawyer to overcome the legal hurdles and explain the process.

For a plaintiff to be successful in their claim for pain and suffering after a car accident in Ontario, they need to breach a “threshold” established by the Province. The threshold is described in Section 267.5 (3) and Section 267.5 (5) of the Insurance Act (Ontario) (and only applies to damages arising from motor vehicle accidents): “In order for there to be liability arising from injuries sustained in a motor vehicle accident, the injured person must have either died or sustained:

1. Permanent serious disfigurement; or
2. Permanent serious impairment of an important physical, mental, or psychological function.”

To meet the threshold, then, a plaintiff must pass the “threshold test.”

What is the “threshold test?”

Using three criteria, a judge decides whether or not a plaintiff has met the threshold to recover money for pain and suffering:

• Permanence: Is the impairment permanent? The judge will look at medical records, treatment, and hear witness testimony about the extent of the injury and the plaintiff’s prognosis for recovery.
• Seriousness: The judge will determine the seriousness of the injury and the effect the injury has had on the plaintiff’s work, hobbies, and family involvement.
• Importance: Is an “important” physical, mental, or psychological function impaired?

It is important to note that the decision about whether a plaintiff passes the threshold test rests with the judge. A 2001 Court of Appeals ruling states “the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury.” This means that even when a jury has decided in the Plaintiff’s favour and has awarded compensation, when the the defendant’s lawyer (usually hired and paid for by their insurance company) argues that the Plaintiff has not met the threshold, the judge has the final word.

In Ontario, there is also a mandatory deductible on damages awarded below a certain amount. For 2019 the amount of the deductible is $38,818.97 on any awards of $129,395.49 or below. This means that if a jury awards a plaintiff $25,000, the plaintiff walks away with nothing. Having a personal injury lawyer help you assess whether your case will return an award greater than the deductible can protect you from wasting time and being disappointed in the outcome. A lawyer will help you manage expectations and build a strong case.

How to prepare for court

It’s important to go to court prepared and in possession of all the information required to help your case be as successful as possible. In some situations, judges ruled against plaintiffs when they appeared to lack credibility or the judge believed that their injuries were not as serious as the claimant stated. Having experienced legal counsel guiding you is imperative to reduce the risk that things won’t go your way. It’s also incumbent upon you to provide evidence and give information that is timely, factual, and consistent.

Although each case will be treated independently, it’s worth noting that there are questions that you’ll invariably be asked. These inquiries establish how your particular impairment can or might negatively impact your life. These standard questions may include:

• Name, age, address, date of birth, marital status, and citizenship: These questions are important to simply establish identity, but the defendant’s team will also want to know citizenship and how long the plaintiff has been living in the country to determine if a “security for costs motion” is required. This is an amount the plaintiff must pay to cover costs in advance. If the plaintiff fails to do so, the case can be thrown out on this technicality.
• Describe your house?: Is the house where you live multi-storied? A bungalow? Where is the laundry room or washer/dryer located in relation to the living space? Are the floors hardwood or carpeted? These types of questions will help establish the plaintiff’s ability to navigate their home should the impairments be severe. If a doctor says the injured person needs assistance carrying loads of laundry or can’t manage stairs, that will go into the final assessment of the case, and therefore, the monetary award.
• Do you have any social media accounts (such as Facebook, Twitter, or Instagram)?: Plaintiffs will be asked about their online presence because anything they post about the accident or their injuries is relevant to the case and can be used either for or against them. Avoid posting any comment or picture about your accident on any social media platform.
• What is your highest level of education? Where did you work prior to the accident? How long did you work there?: These questions help to establish a plaintiff’s earning potential, what they’ve already lost, and what they stand to lose given the injuries from the accident.

• What is your pain level on a scale of 1-10?: This is where you must be honest. Saying that your pain is 10/10, twenty-four hours a day opens you up to a great deal of scrutiny. This information will be cross-referenced with doctor notes or surveillance video to determine if that response is accurate.
• Describe your daily schedule post-accident:This helps the court determine the impact that your impairment has on daily life. If the accident has left you unable to so much as make school lunches for your children, that’s a valid concern. If you start describing a wildly productive life, the damages awarded will likely be reduced. Again, be honest – there’ll likely be witnesses or surveillance that can corroborate or dispute your claim.
• Are you receiving money from any other sources?: The defendant will absolutely want to know if you’re receiving money from other sources like WSIB, ODSP, CPP Disability, Long Term Disability, etc. They may have even discovered this information ahead of time, so best be up front. The money you are already collecting will be taken into account when determining your compensation.

Knowing in advance the kinds of questions you’ll be asked can help you prepare and plan for your motor vehicle accident case to be heard. This will assist the jury and judge determine whether you meet the threshold to be compensated for pain and suffering. Be prepared, have all documentation required, answer the questions honestly, and enlist professional legal counsel to assist you.

Accidents resulting in personal injury can negatively affect livelihood and impact your day-to-day existence. Michelle Linka Law provides personal injury lawyers in Vaughan, Whitby, Newmarket and other locations in the Greater Toronto Area. We are a small firm dedicated to getting to know each of our clients personally and providing equal time and attention. We are dedicated to fighting for your rights and getting you compensation. Contact us at 416-477-7288 for a free consultation and more detailed information.