Donald Cormack

The plaintiff sustained soft tissue injuries to her neck in a motor vehicle accident.

At trial, the judge found she had suffered a permanent serious impairment of an important physical function, meeting the threshold under s. 267.5(5) of the Insurance Act, and the jury awarded her $7,000.

The defendant appealed the threshold determination.

The Divisional Court allowed the appeal, finding that while the impairment was permanent and affected an important function, the trial judge failed to properly analyze whether the impairment was 'serious' as required by Meyer v. Bright.

The court concluded the plaintiff's impairment, which primarily reduced her frequency of ballroom dancing, did not meet the threshold of seriousness.

The plaintiffs sought leave to appeal a trial judge's decision declaring a mistrial and awarding costs to the defendants.

The mistrial was declared due to the plaintiffs' counsel's inflammatory and prejudicial opening address to the jury.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions that mirrored the cumulative impact of the prejudice in this case, and no good reason to doubt the correctness of the trial judge's exercise of discretion.