Tyrell v. Bruce, [2010] O.J. No. 5245 (S.C.J.).
The defendants brought a motion alleging that the plaintiff failed to meet the threshold pursuant to section 267.5(5) of the Insurance Act.
The plaintiff was taken to hospital the night of the accident and released. He did not see his family doctor for 2 months. He continued taking courses at college and worked a telemarketing job and at a convenience store for a period of time. Over the years, he saw several health care providers and reported to them complaints of pain in his head, neck, shoulders, back, legs, knees and ankles. Various x-rays and MRIs showed no other evidence of injury other than soft tissue strain and sprain. The court held that most of the medical evidence relied on subjective reporting by the plaintiff, and the plaintiff was not a believable person. The plaintiff recorded four rap music videos which had been placed on YouTube which showed him able to walk and move about without difficulty. His explanation was that it was a good day for him.
The court found that the plaintiff claimed to be injured when it suited him; for example, when he was receiving Ontario Disability Support Program Benefits. On the other hand, when he ran into a legal problem with the criminal justice system he got a letter from the health care provider to say that he was financially independent and working.
The court held that the plaintiff had not proven on a balance of probabilities that he had a permanent, serious impairment of an important physical, mental or psychological function.
Credibility of the plaintiff is extremely important. Tyrell shows that presenting facts from a variety of sources, such as medical records, social services records, social networking and the internet can go a long way in assisting the defence.