Hoang Viet Nguyen

Following a jury trial in a motor vehicle accident action, the defendants brought a threshold motion under s. 267.5(5)(b) of the Insurance Act arguing that the plaintiff had failed to establish a permanent serious impairment of an important physical, mental or psychological function.

The plaintiff presented testimony from himself, family members, and an occupational therapist but called no physician to provide medical evidence.

The court held that Ontario Regulation 461/96 requires evidence from a qualified physician addressing the nature, permanence, and seriousness of the impairment.

Lay testimony may only corroborate, not replace, the required medical evidence.

Because no physician’s evidence was adduced, the statutory threshold was not met and the plaintiff’s claim for non‑pecuniary damages was barred.

Following a jury trial where the plaintiffs recovered damages for general damages and future care but failed on claims for wage loss, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs exceeding $247,000, while the defendants argued for partial indemnity costs around $105,300.

Applying the principles of reasonableness under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court held that substantial indemnity was not justified because there was no reprehensible conduct by the defendants.

The court emphasized that costs must be fair and proportionate to the result achieved.

Partial indemnity fees of $100,000 and disbursements of $50,000 inclusive of HST were awarded.

In a motor vehicle personal injury jury trial, the defendants brought a threshold motion under s. 267.5(5) of the Insurance Act seeking to bar the plaintiff’s claim for non‑pecuniary damages.

Liability had been admitted and the jury awarded $125,000 in general damages and $150,000 for future care costs.

The court considered whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function within the meaning of the statutory threshold under Bill 198 (Regulation 381/03).

Evidence showed the plaintiff suffered ongoing ankle and neck problems and an exacerbation of pre‑existing clinical depression that significantly limited his daily functioning.

The court held that the combined physical and psychological impairments met the statutory threshold and substantially interfered with the plaintiff’s usual activities of daily living.

The defendants’ threshold motion was dismissed and the plaintiff was entitled to judgment in accordance with the jury’s verdict.