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Juries and the “Verbal Threshold” as [Dealt with in Gilbert vs South et al, 2014 ONSC 2431(CanLii)]

In Ontario a Plaintiff must satisfy the Court before being entitled to sue that he or she has suffered a “permanent serious impairment of an important function”. This verbal threshold was created to prevent small injury claims. The Courts have been challenged in interpreting that verbal description. As you know, there is also a $30,000 monetary deductible in the event that your general damages (for pain and suffering) claim does not exceed $100,000. After your claim is assessed as being worth $100,000 you are entitled not to have the deductible applied.

In this case of Gilbert, the Defendant brought a Motion at the conclusion of Trial to declare that the Plaintiff did not meet the verbal threshold. During the Trial the Jury awarded general damages for pain and suffering of $70,000 (which would be reduced by $30,000 for the monetary deductible); the Jury also awarded future care of $57,250, damages for loss of housekeeping in the amount of $85,000 and loss of income in the amount of $255,000.

In the face of these Jury findings, the Judge was called upon to declare that the verbal threshold had not been reached. In considering this Motion the Judge indicated he was not bound by the findings of the Jury but that they were a factor that he could consider in assessing whether or not the verbal threshold had been met. In this case, the injured victim had significant pre-accident injuries and pain but had been able to continue to work in a physically demanding job. This collision in and of itself, and albeit a low impact collision, was still sufficient to cause injuries of a soft tissue nature to prevent the Plaintiff from working when combined with his pre-existing conditions. The Judge then noted the Jury’s significant future awards and concluded that their view of the injuries coincided with and reinforced his own decisions that the verbal threshold had been met. Consequently the Judgment followed in favour of this Plaintiff.