The Court of Appeal recently affirmed a trial judge's decision to dismiss an action based on the failure to meet threshold.
In Jennings v. Latendresse, 2014 ONCA 517 (C.A.), the plaintiff was in a motor vehicle accident in 2005. The defendant admitted liability. While the jury was deliberating the judge heard a threshold motion, and ultimately dismissed the action after the jury rendered a verdict. The jury held that the plaintiff had recovered from her injuries and did not award any amount for general damages or past loss of income, although they valued a loss of competitive advantage at $58,000.
The plaintiff submitted that her diagnosis of chronic pain, by definition, must indicate the injuries were permanent. The Court of Appeal disagreed. There was evidence that the plaintiff was improving and continued to improve, her functional abilities showed no impairment, she had returned to her pre-accident employment, her medical examination showed full range of motion, expert evidence stated recurring pain was not caused by the original injury, and pre-accident physical and psychological stressors contributed to the chronic pain but had nothing to do with the injury. The evidence supported the trial judge's decision the plaintiff did not meet threshold.
One of the arguments made by the plaintiff on appeal was that the jury verdict was inconsistent when it found the plaintiff had recovered from her injuries but awarded an amount for loss of competitive advantage. The Court of Appeal held that there was nothing inconsistent in finding a loss of competitive advantage but that it was not caused by the accident.
Jennings shows the importance of marshalling the evidence at trial as well as conducting a causation analysis, especially in chronic pain cases.