While it is not groundbreaking, the Superior Court’s recent decision in Trieu v. Aubin should serve as a reminder, to plaintiff’s counsel, of the risks of taking a meritless claim to trial. It is also an excellent refresher on the damages threshold applicable in MVA tort claims, under s. 267.5 of the Insurance Act:
267.5 (3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
…
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
The case arose from an MVA that occurred on March 3, 2015. The Plaintiff was T-boned, as a seat belted driver. His airbags did not deploy, but his vehicle was “quite damaged”. Nonetheless, he did not sustain a head injury or lose consciousness. He did not report any injuries to the police.
The Plaintiff attended hospital on the evening of the accident, where he was diagnosed with soft tissue injuries. He commenced physiotherapy around one-week post-accident. About three weeks after the accident, his family physician diagnosed soft tissue injuries and advised him to continue physiotherapy. He completed 30 sessions of physiotherapy and regained full range of motion.
The Plaintiff next visited his family doctor around a year after the accident. He reported low back pain radiating to his thigh, about 70% of the time, with restricted range of motion. By this point, he had been in three further MVAs. Roughly two months later, he told his doctor that his condition had plateaued. He was instructed to continue physiotherapy, and to stretch. He underwent imaging, which revealed mild, age-related degenerative disc disease. He was seen at a pain clinic, where he was advised to exercise and lose weight. He settled his accident benefits claim in 2018, for about $4,500.
At the time of the accident, the Plaintiff was 25 years old, and in fourth year university. He took two weeks off post-accident. His graduation was not delayed. After graduation, he worked in his family’s restaurant, mostly in a managerial capacity. In 2017 he started a “modestly profitable” children’s party equipment rental business. He went on vacation that year. He got married in 2018 and had a son. In 2019, he started a high-end auto detailing business, travelled to Japan for three weeks, and played laser tag. He started an online business in 2020. This business’ sales increased dramatically in 2022 and 2023. He separated from his wife and re-partnered in 2023.
Pre-accident, the Plaintiff had been obese and suffered from depression related to relationship issues. He continued to have some career and relationship issues post-accident, impacting his health. In 2021, he was diagnosed with ADHD, Diabetes, OCD and Graves’ disease. Despite regular visits to his family doctor, he did not mention pain, or the accident, between May 2017 and July 2024.
In November 2024, the matter was heard by a jury, over 12 days. The Defendant conceded liability. The Plaintiff maintained that he was entitled to damages. His expert physiatrist testified that the accident had caused mild to moderate back pain, and myofascial sprains/strains, which would not improve further. The Defendant’s expert physiatrist disagreed, testifying that the Plaintiff’s soft tissue injuries had resolved within a few months of the accident.
Although the jury returned a verdict of no damages during the Defendant’s threshold motion, the judge still rendered a decision on the issue, finding that the threshold was not met. He accepted that the Plaintiff was experiencing back pain of “some permanence”, involving “a weakened condition lasting into the indefinite future without a definite end”.1 His pain was at least partly caused by the accident and had been continuous since. The permanence requirement was satisfied.
In the judge’s view, however, the Plaintiff had not established a serious impairment of an important function. The Judge recognized that serious did not mean catastrophic but maintained that a person who was able to carry on their daily activities while subject to permanent symptoms was not seriously impaired.2 He noted that
[the Plaintiff had] been able to independently perform most if not all tasks of daily living with pacing and the occasional use of over-the-counter Tylenol and marijuana. He performed work and entrepreneurial activities with accommodations or self-accommodations as required.
He concluded that the Plaintiff’s impairment did not substantially interfere with his work or life to satisfy the threshold test.
Following trial, the parties provided written submissions on costs. The Judge noted that the “nil” judgment placed the Plaintiff in the same position as if the action was dismissed. Because of this, Rule 49 did not apply. Nonetheless, he considered the settlement offers made over the course of the litigation.
The defendant’s last offer before trial was for a dismissal without costs, open until April 1, 2024, after which it became an offer of dismissal and partial indemnity costs payable to the defendant up until the acceptance date. The Judge concluded that the defendant’s offers were “reasonable, by correctly predicting the outcome of the litigation”.
The Judge also considered that the Plaintiff had claimed $1 million in damages; that the Defendant had admitted liability; and that the action was “moderately complex”. Despite the parties’ submissions on same, he decided that the availability of legal expense insurance was irrelevant. Ultimately, he awarded the Defendant $150,000 in partial indemnity costs.
Above all, this decision should help plaintiff’s counsel think twice – or more – before taking an MVA claim to trial. That said, a key takeaway for insurers / defendants is the importance of serving a reasonable and timely Rule 49 offer to protect your costs.
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1Brak v. Welsh, 2008 ONCA 221 (CanLII) at para 4; and Bishop-Gittens v. Lim, 2016 ONSC 2887 at para 67.
2May v. Casola [1998] OJ No 2475 (CA) at para 1; Robichaud v. Constantinidis, 2019 ONSC 5995 at para 23; Persuad v. Bascom, 2021 ONSC 4398 at para 33; and Fraser v. Persaud, 2023 ONSC 1449 at para 498-504.
3Dermann v. Baker, 2019 ONCA 584 at para 25.
