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BILL 198 FINALLY INTERPRETED

Madam Justice Morissette recently oversaw the first threshold Decision under Bill 198 in Nissan v. McNamee . As expected, she concluded that Bill 198 does not represent a significant departure from existing case law on the threshold, but she did add comment that the wording poses a higher hurdle to cross.

The words “accommodation”, “reasonable” and “most” as they appear in the test, amplify whether the impairment is serious and important. “Accommodation” was found to be similar to the principle of mitigation. “Reasonable” accommodation means that the victim must present evidence that reasonable efforts have been made to mitigate their damages by accessing accommodation measures.

Daily activities is modified by “most” – a significant change in the eyes of the Court. This suggests that it is not enough for an impairment to substantially interfere with only some activities. Whether the impairment is permanent was interpreted to be similar to existing case law.

In Nissan , the Plaintiff failed to satisfy the “serious impairment” test. Her credibility was seriously put into question when she misled her health care professionals by failing to advise them that she was performing volunteer work, which surveillance evidence demonstrated was very similar to her regular employment duties. In addition, no evidence was put forth that accommodation was accessed. The Plaintiff failed to show that the impairment substantially interfered with most of the usual activities considering her age.

It is clear from this case that the new legislation does not depart from existing interpretation of the law. However, there are certain victims who will face a more stringent test to win their cases including the unemployed, stay at home moms and the elderly. They will need to demonstrate that most of their activities of daily living have been compromised, not just some . Mitigation plays a larger role; medical documentation must support evidence that a plaintiff could not do modified or other work.

Events

HSH was a proud sponsor of the Brain Injury Society of Toronto / Ontario Brain Injury Association's Annual Fundraising Event in May -- yet another successful celebration!  HSH's Adam Wagman sits on the BIST Board of Directors. 

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