When a defendant brings a threshold motion at the end of trial, the plaintiff bears the onus of proving his injuries meet substantially interfere with work or activities of daily living. As a result, the plaintiff's credibility can be highly relevant. One such example is Berfi v. Muthusamy, 2015 ONSC 981 (S.C.J.).
The plaintiff brought an action as a result of a pedestrian-motor vehicle accident that occurred on October 28, 2010. The jury found the defendant 80% at fault and the plaintiff 20%, and awarded $43,000 in general damages, $6,000 for past loss of income and nil for future loss of income. The defendant brought a threshold motion. The plaintiff alleged he sustained injuries to his left shoulder, arm and hand. He continued to work full time, apart from a 17-day period following surgery. He testified he did so in order to reach age 55 when he could retire and receive a union pension. His anticipated retirement date was March 1, 2015.
After the plaintiff testified, counsel received the union file which included a Notice of Election form which indicated he planned on returning to work in April 2015. A union representative testified the plaintiff contacted her the day before to withdraw the Notice of Election.
Stinson J. held the plaintiff had not met threshold. There were a number of conflicts in the plaintiff's testimony, and he had continued to work in the same job for four years after the accident; Stinson J. described this factor as a "strong indication" the injuries had not substantially interfered with the plaintiff's ability to continue his regular employment. In addition, the award of zero for future income loss was consistent with the jury finding the plaintiff was capable of working. Finally, Stinson J. held that the limitations the plaintiff had with respect to household chores, and social and sporting activities were related to problems that pre-dated the accident.
The defendant's motion was granted.