Bill 198 Decision – Ali v. Consalvo, 2009 (Ontario Superior Court)

This is a further decision (found here) rendered on the Bill 198 threshold for pain and suffering damages, with Madame Justice Wilson finding that the plaintiff did not meet the threshold in this situation.

Bill 198 applies to motor vehicle accidents in Ontario as of October 1, 2003.  The test for pain and suffering damages has been expanded by Regulation and there are now a handful of recent decisions which have provided some guidance as to interpretation of the new test.  Bill 198 also increased the deductible to $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.

In this case, the 55 year old mother of 7 children was involved in a car accident on May 30, 2004.  She came to Canada in 1991 and was a homemaker while in Canada.  As a result, there were no income loss claims presented.  It appears that this was a soft-tissue injury case, with a chronic pain diagnosis that was disputed on the medical evidence.

The Jury awarded the plaintiff $5,000 (gross) for pain and suffering damages, prior to the application of the $30,000 deductible.  She was awarded zero dollars for future medical and rehab damages.  Presumably a claim for housekeeping was presented and also awarded at zero dollars.

The plaintiff’s main activities pre-accident were taking care of her large family as well as attendance at her religious place of worship in accordance with her faith.  She was unable post accident to perform her household chores (cooking, cleaning, laundry, etc) and also unable to attend at worship services primarily due to her inability to bend due to knee and back pain.

The plaintiff’s main complaint arising from the accident was back pain and right knee pain.  Unfortunately, the plaintiff had some prior issues with the right knee and back, some of which was not disclosed (fully or at all) to her treating physicians as well as examining doctors.  This included complaints of back pain and radiating pain into her leg in 2000 to her family doctor, leading to a diagnosis of osteoarthritis, as well as a prescription for medication and physiotherapy; 37 physiotherapy visits in the Fall, 2000 for those complaints; completion of an Ontario Works application form in late 2000 indicating back pain and leg problems (plaintiff was applying for medications to be funded); and attendance at a chiropractor in late 2002 for a series of treatments.

The plaintiff did not fully disclose these issues to her doctors, including the chiropractor and orthopaedic surgeon who testified on her behalf.

The Judge emphasized some inconsistencies with the plaintiff’s testimony and post-accident behaviour.  A few months after the accident, the plaintiff was assessed by a kinesiologist as being able to ascend and descend 15 stairs.  In contrast, the plaintiff had maintained throughout the litigation that she was unable, post accident, to address more than 3 stairs at one time.

Further, the plaintiff appears to have not attended for medical treatment after 2004 – neither for physiotherapy nor did she frequently attend at her family doctor with complaints.  The Judge found that this was inconsistent with the expected behaviour of someone who was suffering and in pain over many years.

Finally, in a January, 2005 home assessment, the plaintiff underwent a two hour assessment during which she purportedly advised the assessor that “she was able to make all the meals for her family, go up and down stairs, take the bus, bend to clean and help her daughters with the laundry.”  The plaintiff denied the accuracy of this report and stated that the assessment only lasted 10 minutes in total.

Based on these concerns, the Judge found the plaintiff not to be credible in her presentation of her claim and found that the Bill 198 threshold had not been met.

This case is instructive on the ongoing interpretation of Bill 198 threshold matters.  It is a useful case for counsel who practice in the area of motor vehicle accidents.

Gregory Chang

Toronto Insurance Litigation Lawyer