Bill 59 Threshold – Interpretation – Pain and Suffering Damages

Case Comment – Xiao v. Gilkes (2009 Ont. S.C.)

This case is an interesting review and interpretation of the Bill 59 threshold for pain and suffering damages, arising from a motor vehicle accident which occurred on November 20, 2000.

In Ontario under the legislation governing motor vehicle accidents, the “Bill 164” regime was for accident which occurred between January 1, 1994 to October 31, 1996; a deductible of $10,000 applied to pain and suffering damages.  The “Bill 59” regime applied to accidents occurring between November 1, 1996 to September 30, 2003; the deductible for pain and suffering damages increased to $15,000.  The current “Bill 198” regime is for accident which occurred on October 1, 2003 and thereafter; the current deductible is $30,000 for damage awards that are less than $100,000; if the damage award for pain and suffering is $100,000 or greater, then the deductible is not applicable.  As background, you may wish to read the Insurance Bureau of Canada’s information page or a fairly recent Toronto Sun newspaper article commenting on Ontario’s system.

There have been dozens of decision on the Bill 59 threshold and these have been reviewed extensively by lawyers practicing personal injury law.

In this case, this rear-end car accident on November, 2000 injured the (then) 24 year old male plaintiff resulting in soft tissue injuries.  He claimed a chronic pain condition arising from this accident.  Complicating the issue was a second motor vehicle accident which the plaintiff was involved with in May, 2002 – the plaintiff claimed this aggravated his symptoms only for two months and then his status returned to the level it was prior to May, 2002.

As of the November, 2000 accident, the plaintiff was a dishwasher in a Chinese restaurant.  His goal was to work as a cook and rise through the ranks, eventually opening his own restaurant.

At Trial, the Jury awarded $20,000 in damages to the plaintiff and this appears to be prior to the application of the Bill 59 deductible.  The Family Law Act plaintiffs were awarded $10,000 and $12,500 respectively, again apparently prior to the application of the $7,500 deductibles.

The Trial Judge found the plaintiff’s testimony at Trial to lack credibility.  Problems with the plaintiff’s evidence included: an inconsistent history of events; a return to work after the first accident between 30-40 hours per week for a time; an indication in the medical records that therapy after the first accident resulted in an improvement in his health by late 2000 or early 2001; an absence of any medical treatment from November, 2002 until Trial except for a medical visit in November, 2006 (when he was sent by his lawyer for a medical assessment used in the prosecution of this case); no follow-up by the plaintiff on the medical recommendations of the examining specialist from the November, 2006 visit; the plaintiff earned $7,000 in 2004 from babysitting his young child (for which he would have been responsible to lift up, carry and care for); and starting January, 2005 up to the Trial the plaintiff worked 60 hours/week as a chef in a Chinese restaurant – a period of four years to the date of Trial.

While the Trial Judge found that the injury suffered by the plaintiff did meet part of the Bill 59 test, the Judge also found that this injury was not permanent – either the injury had resolved by November, 2002.  In the alternative, if the injury had not resolved but continued, the Trial Judge found that is was not “serious” in its effect upon the plaintiff and his lifestyle and occupation.

This case is of interest to lawyers practicing personal injury law in Ontario.

Gregory Chang

Toronto Insurance Litigation Lawyer