Jones et al. v. Mazolla [Indexed as: Jones v. Mazolla]
78 O.R. (3d) 772
[2005] O.J. No. 5541
Docket: C41321
Court of Appeal for Ontario,
Borins, Feldman and Armstrong JJ.A.
December 23, 2005
Insurance -- Automobile insurance -- No-fault provisions -- Threshold requirements -- Court of Appeal's endorsement in May v. Casola not modifying test for "serious impairment" set out in Meyer v. Bright.
The trial judge found that the plaintiff suffered an injury in a car accident that caused "serious impairment" within the meaning of s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8. The defendant appealed.
Held, the appeal should be dismissed.
A "serious impairment" is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment. The Court of Appeal's endorsement in May v. Casola should not be taken to mean that a serious impairment need no longer affect the person's ability to perform daily activities, but need only affect the person's enjoyment of life. The trial judge did not err in finding that the plaintiff's impairment had a significant effect on her ability to perform her usual daily activities. [page773]
APPEAL from a judgment of Herman J., [2004] O.J. No. 366, [2004] O.T.C. 103 (S.C.J.) for the plaintiff in a personal injury action.
May v. Casola, [1998] O.J. No. 2475 (C.A.), consd Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446, 48 M.V.R. (2d) 1, 110 D.L.R. (4th) 354 (C.A.) [Leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi] (sub nom. Dalgliesh v. Green), apld Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5)
Alan L. Rachlin, for appellant. James L. Vigmond and Brian Cameron, for respondents.
[1] BY THE COURT:-- The issue in this case is whether the trial judge erred in finding that the respondent suffered an injury in a car accident that caused impairment that qualified as "serious" within the meaning of s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I.8, as amended. That section provides:
267.5(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(b) permanent serious impairment of an important physical, mental or psychological function.
[2] The test for determining whether an impairment meets the statutory "threshold" was set by this court in the case of Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.). The court rejected the trial judge's requirement that an impairment be catastrophic in order to qualify as "serious" within the meaning of the legislation. The court was not prepared to prescribe a formula and stated that the question of what is "serious" must be decided on a case-by-case basis. The court added at p. 142 O.R.:
However, generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.
[3] The appellant's submission is that a subsequent endorsement by this court in May v. Casola, [1998] O.J. No. 2475 (C.A.), has been interpreted by the personal injury bar and by several trial judges, including the trial judge in this case, as changing the [page774] interpretation of the "serious" component of the definition. The operative part of the endorsement in that case reads [at para. 1]:
In our view a person who can carry on daily activities, but is subject to permanent symptoms including, sleep disorder, severe neck pain, headaches, dizziness and nausea which, as found by the motions judge, had a significant effect on her enjoyment of life must be considered as constituting serious impairment. The motions judge's standard was too high and we consider that an error in principle.
[4] The appellant suggests that courts have interpreted and applied the May v. Casola endorsement to mean that a serious impairment need no longer affect the person's ability to perform daily activities, but need only affect the person's enjoyment of life.
[5] In our opinion, this court would not modify an important pronouncement of the test for determining the threshold for recovery for non-pecuniary loss under the Ontario auto insurance scheme, as determined by a five-judge panel in Meyer v. Bright, in a brief endorsement in a subsequent case.
[6] The endorsement in May v. Casola, which was an appeal from a decision on a motion, dealt only with the facts in the particular case. As in Meyer v. Bright itself, the court found that the trial judge had set the bar too high in determining what was a "serious" impairment within the meaning of the legislation. The symptoms suffered by the plaintiff in May v. Casola, such as nausea and dizziness, were the type of physical problems that did not prevent a person from carrying on daily life, as a person must, but made doing so very difficult and unpleasant. Although the court referred to the effect on the plaintiff's enjoyment of life, that was in the context of carrying out daily activities.
[7] In our view, the endorsement in May v. Casola does not change the approach set out by this court in Meyer v. Bright. Furthermore, the trial judge in this case did not misinterpret or misapply the May v. Casola case, as suggested by the appellant. In para. 47, the trial judge concluded her analysis of whether the respondent's impairment resulting from her injuries was "serious" as follows:
The impairment here has had a significant effect on Ms. Jones' enjoyment of life and her ability to perform her usual daily activities, in particular her activities outside of the workplace, and is therefore serious.
[8] The appellant also asks this court to review the evidence, and to find that the preponderance of evidence was that the respondent was able to perform all of her normal daily activities and that the trial judge erred in her conclusion in para. 47.
[9] In our view, the trial judge conducted a thorough review of the evidence and her findings and conclusions are entitled to deference. She made no palpable and overriding error in her appreciation of [page775] the evidence and in her findings of fact and no error in her application of the relevant law.
[10] The appeal is therefore dismissed with costs fixed in the amount of $15,000 inclusive of GST and disbursements.
Appeal dismissed.