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April 29, 2015

Plaintiffs May Provide Corroborating Evidence of Threshold Impairment

The Insurance Act provides that in order to prove they meet threshold, plaintiffs must lead evidence from a qualified physician as well as “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.”  The Court of Appeal recently held that plaintiffs may provide such corroboration themselves. 

In Gyorffy v. Drury, 2015 ONCA 31 (C.A.), the plaintiff was in a car accident in November 2003.  The defence brought a threshold motion while the jury was deliberating.  The plaintiff and three physicians testified.  The trial judge ruled the plaintiff's injuries has satisfied the impairment threshold, but held that the plaintiff could not provide the corroborating evidence that ss. 4.2 and 4.3 of Ontario Regulation 461/96 required.  Accordingly, the action was dismissed.

The Divisional Court allowed the appeal, and the Court of Appeal dismissed a further appeal.  It confirmed that a plaintiff can provide corroborating evidence in order to prove he or she meets threshold.  The evidence that has to be corroborated is the physician's, not the plaintiff's.

Given the conclusion in Gyorffy, it is perhaps more important to focus on the quality of the evidence provided by the plaintiff rather than on the need for corroboration.

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