Court File and Parties

Court File No.: CV-19-811
Date: 2025-05-12
Ontario Superior Court of Justice

Between:
Cory McGrath, Plaintiff
– and –
Kristen Norris and Michael Norris, Defendants

Appearances:
Maciek Piekosz and Victoria Edwards, for the Plaintiff
Nicole D. Rogers and Kristen Dearlove, for the Defendants

Heard: April 30, 2025

Ruling on “Threshold” Motion
Insurance Act, R.S.O. 1990 c. I.8, s. 267.5(15)

J. Ross Macfarlane

Introduction

[1] This case was tried by a jury in a trial that started on March 31, 2025 and concluded with a verdict on May 1, 2025. The plaintiff, Cory McGrath (“Ms. McGrath”), had alleged that she sustained both physical and psychological impairments as a result of a motor vehicle collision (the “Collision”) on November 20, 2018. The Collision was between the plaintiff’s vehicle and a vehicle owned by the defendants and operated by the defendant Kristen Norris (“Ms. Norris”). The plaintiff had alleged that the Collision was caused by the negligence of Ms. Norris, and claimed damages against the defendants.

[2] After the jury had retired to deliberate, I heard the submissions of counsel with respect to whether the plaintiff had sustained permanent serious impairment of an important physical, mental or psychological function arising from the Collision, within the meaning of ss. 267.5(3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8, as am. (the “Act”). The presence of permanent impairment is a requirement set out in s. 267.5(15) of the Act, and is widely known as a “threshold” motion. I then reserved my decision with a view to having an opportunity to consider the jury’s verdict, as part of my independent determination of whether the threshold had been met in these circumstances. This procedure was determined by me pursuant to the discretion confirmed by the Court of Appeal in Kasap v. MacCallum, at paras. 7-8.

[3] The nature of Ms. McGrath’s injuries is such that the credibility and reliability of the witnesses at trial was a significant issue. Although I am clearly not bound by the jury’s verdict, I do think it important to the administration of justice that the judges of the facts in this case be given their due, and that I consider their verdict as a factor in making my own decision on this motion. As stated by D.M. Brown J. (as he then was) in Clark v. Zigrossi, 2010 ONSC 5403, at para. 18, “…judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts.”

[4] In considering the verdict set out below, I am satisfied that the jury found the plaintiff to be a generally credible and reliable witness and that the jury was persuaded that the negligence of the defendant driver had caused her substantial damages.

The Jury Verdict

[5] The jury found that the defendant Kristen Norris was negligent, which caused or contributed to the Collision, and that the plaintiff was not contributorily negligent. The jury assessed Cory McGrath’s damages as follows:

• 100 percent of General Damages: $119,400.00
• 70 percent of Past Loss of Income: $33,500.00
• 100 percent of Future Loss of Income/Earning Capacity: $485,000.00
• 100 percent of Future Care Costs: $216,000.00

The Issue

[6] The issue is whether Cory McGrath sustained permanent serious impairment of an important physical, mental or psychological function, and is therefore entitled to recover both health care expenses and non-pecuniary loss from the defendants, pursuant to ss. 267.5(3) and (5) of the Act.

Discussion and Analysis

i) The Legal Framework

[7] The Act provides that no person is liable for damages for general damages or health care expenses arising from the use or operation of a motor vehicle, unless the plaintiff has sustained either a serious disfigurement or a permanent and serious impairment of an important physical, mental, or psychological function. The threshold is an exception to the statutory prohibition on recovery of such damages. General damages are subject to a further monetary threshold, which has the effect of reducing the amount payable to the plaintiff by a deductible if the damages are assessed under a prescribed amount.

[8] In Meyer et al. v. Bright et al. (1993), the Ontario Court of Appeal outlined the three-part inquiry to be undertaken in the threshold analysis, as the threshold was defined at that time, at p. 137 as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired important?
3. If yes, is the impairment of the important function serious?

[Emphasis added]

[9] As provided in Meyer, the burden of proof here rests with the plaintiff to establish, on a balance of probabilities, that she comes within the statutory exception.

[10] The Meyer analytical approach is still used today, but is informed by ss. 4.1 to 4.3 of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 (“the Regulation”), which sets out definitions of the elements of “permanent serious impairment of an important physical, mental or psychological function” for the purposes of s. 267.5 of the Act, and mandates the evidence needed to prove that the threshold has been met: see also Nissan v. McNamee.

[11] Section 4.2 of the Regulation provides as follows:

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

1. The impairment must, i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment, ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. For the function that is impaired to be an important function of the impaired person, the function must, i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment, ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, iii. be necessary for the person to provide for his or her own care or well-being, or iv. be important to the usual activities of daily living, considering the person’s age.

3. For the impairment to be permanent, the impairment must, i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, ii. continue to meet the criteria in paragraph 1, and iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

[12] On the question of evidence that must be led by a person seeking to establish that she meets the threshold, s. 4.3 of the Regulation provides as follows:

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains, (a) the nature of the impairment; (b) the permanence of the impairment; (c) the specific function that is impaired; and (d) the importance of the specific function to the person.

(3) The evidence of the physician, (a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and (b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

[13] In ruling on a threshold motion in the recent case of Trieu v. Aubin, 2025 ONSC 1141 (“Trieu”), my brother Doi J. stated at para. 11:

Diamond J. in Ayub v. Sun, 2015 ONSC 1828 at paras 13-14 adopted the fulsome summary that Firestone J. (as he then was) gave in Malfara v. Vukojevic, 2015 ONSC 78 at para 7 onwards, of the relevant jurisprudence and principles to consider on a threshold motion, and highlighted this summary as follows:

• In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044, at para. 10.
• The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court set out the following three part inquiry: a) Has the injured person sustained permanent impairment of a physical, mental or psychological function? b) If yes, is the function impaired important? c) If yes, is the impairment of the important function serious?
• While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh, 2008 ONCA 221 and Bos v. James (1995).
• The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao, at para. 32.
• The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (SCJ) at para. 56.
• When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Gibbons (2004), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.

[14] Finally, in Malfara Justice Firestone stated at paragraphs 16 and 23 that a diagnosis of chronic pain, by definition, does not indicate by itself that the injuries are permanent. While the effects of chronic pain are just as real and likely to meet or not meet the threshold as any other type of injury or impairment, it is the “effect of the injury on the person” and not the “type of injury” which forms the focus of the threshold analysis. The Court is concerned with the manner in which the plaintiff has been impacted, and the evidence presented at trial.

See also Osmani v. State Farm, 2023 ONSC 5438 at para 18 and Moustakis v. Agbuya, 2023 ONSC 6012 at para 17.

ii) Cory McGrath’s Injuries and Impairments

[14] I have considered all of the evidence led at trial, as well as the written reports of the various experts which were marked collectively as an exhibit on this motion. I have also considered the verdict returned by the jury.

[15] I observed Ms. McGrath to be both credible and reliable. I found her parents, Charlaine and Rob McGrath, also to be both credible and reliable. Although they all had a direct or indirect interest in the outcome of this proceeding, I found their testimony generally to be consistent, candid, and genuine.

[16] The following evidence was of considerable assistance to the court in assessing Ms. McGrath’s future vocational prospects and care needs: the testimony of Alan Mills, the plaintiff’s expert vocational evaluator; the testimony of Kecia Singh Leach, the plaintiff’s expert occupational therapist and certified life care planner; the medical and psychological evidence; and the testimony of the lay witnesses.

[17] I also found the evidence of Dr. Armagon (the plaintiff’s lifelong family doctor), Dr. Greenwood (the plaintiff’s former treating chiropractor), Dr. Sequeira (the plaintiff’s expert physiatrist), and Dr. Benn (the plaintiff’s expert psychologist), to have been thorough, relevant, and generally of great assistance to the court.

[18] Dr. Karabatsos, the defence expert orthopaedic surgeon, was very engaging as a witness, but given his specialty I find his evidence to have been of very little relevance to the issues in this proceeding.

[19] Dr. Duhamel, the defence expert neuropsychologist and psychologist, offered an opinion that, based on the lack of objective evidence to support the plaintiff’s complaints, the plaintiff had not suffered a concussion, or anything more than a trifling injury, in the collision. Regrettably, in my view, he essentially ignored the clinical notes of the primary treating physician, Dr. Armagon, either as being illegible or as being based on the subjective complaints of the plaintiff. This was so despite those clinical notes having been transcribed following his report as he had recommended; there is no evidence that they were ever provided to him. He initially testified as to having spent some 10 hours reviewing the medical documents provided to him, but admitted on cross-examination that his psychometrist had spent those hours and he had only reviewed the psychometrist’s summary. Moreover, during his testimony, he made thinly veiled suggestions that the plaintiff was malingering, something that was not set out in his written report to any degree. Although I accepted Dr. Duhamel’s qualifications to give expert testimony and permitted the jury to consider it in their deliberations, I reject his evidence in its entirety for the purposes of this motion.

[20] On the basis of the evidence which I do accept, I find the following facts to have been proven by the plaintiff on a balance of probabilities:

a) Ms. McGrath had a pre-accident history of two concussions, a fractured sternum which had fully healed, and anxiety and depression that were well-controlled and managed, including with medication, at the time of the collision.

b) As a direct result of the collision, Ms. McGrath sustained various injuries which have caused ongoing impairments. Her injuries include but are not limited to: a concussion; post-concussive syndrome; left-sided neck, upper parascapular, suboccipital and shoulder pain of a musculoligamentous etiology (soft tissue); post-traumatic cervicogenic and tension type headaches; an exacerbation of existing mood dysfunction and sleep dysfunction; post-traumatic stress disorder; adjustment disorder with mixed anxiety and depression; and somatic symptom disorder or chronic pain syndrome.

c) Ms. McGrath was regularly playing competitive hockey in a senior women’s league prior to the collision, and would likely have continued to do so but for the collision. She has not played since the collision and is unlikely to do so in the future, specifically because of the increased risks to her associated with a further concussion.

d) Ms. McGrath led a very active social life with her friends and family prior to the collision, which has been permanently diminished and impaired by the injuries she sustained in the collision.

e) Ms. McGrath returned to her interior design program at Fanshawe College after the collision and completed her program on time, but she required accommodations to complete her academic work and in connection with her co-op position.

f) Ms. McGrath would have likely graduated from Fanshawe and immediately entered an interior design position full-time upon graduation, but for the injuries sustained in the collision. Instead, she was delayed and impaired in her ability to work full-time in her field until October, 2023.

g) Although Ms. McGrath is currently working full-time in her field at Verbeek Kitchens, she is still in a probationary period, and continues to use accommodations such as a heating pad to address her ongoing impairments. Other areas of Ms. McGrath’s life, such as housekeeping, personal care, and socializing with family and friends, continue to be impaired as a result of her need to focus all of her energy on her full-time work. Ms. McGrath continues to regularly attend massage therapy treatments and, although not as frequently, cranio-sacral treatments with Marty Dudgeon.

h) Consistent with the opinions of Dr. Sequeira, Dr. Armagon, Dr. Benn, and Alan Mills, it is more likely than not that Ms. McGrath will need to reduce her working hours from full-time to part-time in the future to achieve a work/life balance that accommodates her ongoing impairments that resulted from the collision.

iii) Application of the Elements of the Test to the Facts

a) Has Ms. McGrath sustained permanent impairment of a physical, mental or psychological function?

[22] “Permanent” means lasting into the indefinite future. It does not mean forever. See the cases cited in Trieu at para. 11. Symptoms that wax and wane over time but persist on a long-term basis are permanent: Bishop-Gittens v. Lim, 2016 ONSC 2887, at para. 34.

[23] Further, as found in Hartwick v. Simser, at para. 87:

It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold [Citations omitted].

[24] I accept that the plaintiff, who was 21 at the date of the collision and is now 28, continues to suffer mental and physical impairments arising from post-concussive syndrome, post-traumatic stress disorder, depression, anxiety, and chronic pain or somatic symptom disorder, all of which were caused by, or contributed to by, the collision. She is permanently vulnerable to the risk of a fourth concussion, and she will likely have to scale back or modify her work to manage her symptoms and balance them against her other activities of daily living. I find that Ms. McGrath is as fully recovered as she is going to be, and her symptoms and impairments are likely to wax and wane, with flare-ups, but will generally deteriorate as she gets older.

[25] The impairments are permanent.

b) Were the impairments important?

[26] The issue here is whether the impairments and functional limitations affect the quality of Ms. McGrath’s life as she enjoyed it before the collision: Page v. Primeao, at para. 32, cited in Trieu.

[27] Before the collision, Ms. McGrath was all about goals. She was working hard toward her goal of graduating and working full time as an interior designer. She had recently rekindled her lifelong love of playing hockey, achieving her goal of making the cut on the St. Thomas senior women’s team, and scoring her first goal in the league just a week before the collision. She described returning to hockey as having been like therapy for her, and her team as a second family. As I have described, all of these goals were disrupted by the collision which the jury found to have been solely caused by the defendant Ms. Norris’ negligence.

[28] Before the collision and the ongoing impairments that continue to affect her, Ms. McGrath was an independent young woman with educational and career goals that she was well on the way to achieving. She had a very active recreational and social life, and had worked hard to pay her own tuition, buy her own cellphone, and buy and independently maintain her own car. Since the collision, she has lost a substantial degree of her independence, and now relies on the benevolence of her employers, her fiancé, and various therapies and aids such as a heating pad, to achieve something resembling a healthy work/life balance.

[29] There is no question that the impairments arising from the collision have been important.

c) Were the impairments serious?

[30] The question of seriousness is largely subjective. As stated by the Court of Appeal in Meyer, “… the seriousness of an impairment is to be determined in relation to, and only in relation to, the particular injured person who has sustained the impairment, and in relation to the condition and situation in life of that particular injured person.” The wording in s. 4.2(1)(1.) of the Regulation imposes a “substantial interference” test, and the impairment to the plaintiff’s function must go “…beyond the tolerable to the serious…”: Frankfurter v. Gibbons (2004), 74 O.R. (3d) 39, at para. 22 (“Frankfurter”), reversing 2003 15731 (ON SC).

[31] Counsel for the defence pointed to Frankfurter as well as Kourtesis v. Joris (“Kourtesis”), as having striking factual similarities to the present case. For example, the plaintiff in Frankfurter had a major avocation in Latin ballroom dancing before the accident, which counsel in this case says is analogous to Ms. McGrath’s love of playing hockey. Furthermore, in Kourtesis, the plaintiff was studying in an interior design program at the time of trial.

[32] I note that in both Frankfurter and Kourtesis, the judges considered the jury’s verdict in concluding that the threshold had not been met. In Frankfurter, the jury had awarded $7,000 for general damages only after taking into account contributory negligence and statutory deductible; in Kourtesis, liability had been admitted and the jury awarded $30,000 (net) for generals, $25,000 for future loss of income, and $0 for costs of future housekeeping capacity. Both cases involved very minor “fender benders”. Neither case involved a concussion or a diagnosis of post-traumatic stress disorder. I also note that Doi J.’s determination, that the plaintiff in Trieu had not met the threshold, followed a jury verdict that awarded no damages: see Trieu at para. 51. I therefore find all of these cases to be factually distinct from the subjective circumstances of the present case.

[33] Before the collision, Ms. McGrath was very physically active; now, she will never play hockey again, and only has limited ability to play soccer on a reduced-size field. She had an active social life, frequently going out with friends and traveling; although she can still do this to some extent, it continues to be limited. She enjoyed shoveling the snow, which she will no longer be able to do, and she will likely have ongoing significant limitations with any gardening, housework, and home maintenance – which will pose challenges given that she and her fiancé are moving from an apartment to a house. She continues to have difficulties with personal hygiene, not being able to bring herself to shower or brush her teeth more than once a week.

[34] Ms. McGrath is currently working full time in her field with accommodations, but I have already found that it is probable that she will have to scale back her regular employment as time goes on. From the standpoint of her career goals, the collision and its resulting injuries and impairments could not have happened at a worse time. In my view, a substantial interruption to a clear career path, whether it happens once a person has graduated into the workforce or while pursuing a diploma or degree, is likely serious.

[35] The loss of independence I have described above in considering the “importance” question is also directly relevant to the “seriousness” question.

[36] As stated by DiTomaso J. in Arteaga v. Poirier, 2016 ONSC 3712, at para. 20, “In determining whether the impairment is serious, it is important not to focus on any particular aspect of the plaintiff’s impairment, but rather the totality of his or her circumstances and the cumulative effect on his or her life.”

[37] All of my conclusions as to the totality of Ms. McGrath’s circumstances and the cumulative effect of her impairments on her life are consistent with the implicit factual findings underlying the jury’s verdict, which awarded significant amounts for general damages ($119,400 before statutory deductible), past loss of income ($33,500 before deduction of collateral benefits received), future loss of income/earning capacity ($485,000), and future care costs ($216,000), amounting to a gross award of $853,900.

[38] I am satisfied that the impairments sustained by Ms. McGrath are more than merely tolerable inconveniences, and are serious because they substantially interfere with most of her activities of daily living, considering her age.

Conclusion

[39] I am satisfied that Ms. McGrath has proven, on a balance of probabilities, that she sustained permanent serious impairment of an important physical, mental or psychological function, and is therefore entitled to recover both health care expenses and non-pecuniary loss from the defendants, pursuant to ss. 267.5(3) and (5) of the Act.

[40] I am hopeful that counsel may be able to resolve the outstanding issues of deductions for collateral benefits, prejudgment interest, and costs. I received Ms. Rogers’ submissions orally with respect to collateral benefits, and have received written submissions dated May 9, 2025 from Mr. Piekosz. If the parties are unable to resolve the issue of collateral benefits deductions, I would invite reply submissions from Ms. Rogers limited to five pages in length within one week of this ruling.

[41] If the parties are unable to resolve either or both of the remaining issues (prejudgment interest and costs), I would invite submissions in writing collectively on any outstanding issues as follows to be delivered to my attention via the London court office:

a) from plaintiff’s counsel not to exceed 10 pages exclusive of bills of costs, costs outlines, offers to settle, and legal authorities to be delivered within 15 days of this ruling;

b) from defendants’ counsel not to exceed 10 pages exclusive of bills of costs, costs outlines, offers to settle, and legal authorities to be delivered within 15 days of the plaintiff’s counsel’s submissions; and,

c) brief reply submissions, if any, from plaintiff’s counsel not to exceed two pages to be delivered within five days of defendants’ counsel’s submissions.

[42] All submissions shall comply with the mandatory document standards of r. 4.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 as am.

J. Ross Macfarlane
Justice

Released: May 12, 2025