For a long time, the idea of the injury threshold to tort claims in Ontario has been considered “under attack” by the legal system. The threshold, which outlines that a tort action cannot be commenced unless an injury is serious or permanent, has been something that has frustrated the plaintiff bar for years, and it appears that a somewhat sympathetic bench is forming as well. A looked at the issue of when to hear a motion to determine if the injury reaches the threshold, and the decision itself doesn’t set out any clarity on how to handle the actual threshold hearing.
Essentially, the judge has to choose if the motion will be heard before the jury renders the verdict, or after. If the motion is before, the jury has sat through the trial for nothing; if it is heard after, there may be influence on the judge given the damages rendered by the jury.
Fortunately, in the recent case the point is moot, as the jury returned damages that were below the $15,000 deductible. This brings up a point that isn’t mentioned in the article, namely – what if the jury knows that this is both a threshold claim and that there is a $15,000 deductible. What if the jury does know that it pierces the threshold, and therefore wants to ensure the claimant receives something?
There needs to be clarity around when these hearings are held. My opinion is that they should be held before the matter goes to trial, in front of the judge along – in some cases saving the trial expenses, and in others just dealing with the economic losses. If we are going to have a threshold, let’s keep it intact.
