Mayer v 1474479 Ontario Inc.: Judges’ Decisions on Threshold Issue Not Always Consistent With Size of Jury Awards

A fall 2013 decision of the Ontario Superior Court, Mayer v 1474479 Ontario Inc,[1] has confirmed that juries and judges do not always see plaintiffs in the same light.

Pamela Mayer was injured in a March, 2008 motor vehicle accident. Ms. Mayer sued for damages for soft-tissue injuries to her neck, shoulders, and back, injuries to her lumber spine (including disc bulging, herniation, and an annular tear), fibromyalgia, and chronic pain syndrome. Secondary effects of her injuries included sleep deprivation, limitations of movement, depression and anxiety.

On October 10, 2013, after a trial that began Sept. 16^th, a jury awarded Ms. Mayer $5,800 in general damages, $15,500 for past income loss, $45,000 for loss of future income, $15,000 for future housekeeping care costs, and $56,000 for other future care costs. After applying the statutory deductible and a credit for collateral income replacement benefits, Ms. Mayer’s total award was $116,000, despite a prayer for relief of over $2 million. Ms. Mayer’s daughter received a small damage award as a Family Law Actclaimant, which was reduced to zero under the statutory deductible.

The defence argued that Ms. Mayer’s injuries did not meet the threshold established by ss. 267.5(3) and 267.5(5) of the Insurance Act, RSO 1990, which relieve a defendant from liability for health-care expenses or non-pecuniary losses unless the injured person has sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function as a result of the use or operation of the automobile.

As the Ontario Court of Appeal confirmed in Kasap v MacCallum,[2] under s. 267.5(15) of the Insurance Act it is the trial judge’s duty to decide the threshold issue, which the trial judge may do before or after the jury returns its verdict. The jury’s verdict is a factor the judge may take into account when deciding the threshold issue, but the judge is not bound by the jury’s implicit findings of credibility or causation.

Regarding the judge’s role on the threshold issue, Leach J wrote:

While consistency between jury verdicts and threshold determinations is preferable in the abstract, in my view it must not be achieved or promoted by a trial judge simply abdicating his or her legislated responsibility to make an independent determination; for example, by simply deferring to the jury’s apparent perception of a matter.[3]

In Mayer, Leach J reserved his ruling on the threshold issue until after the jury returned its verdict. Leach J considered the jury’s verdict one of many factors relevant to a determination of the threshold issue.  After hearing the jury’s verdict, Leach J inferred “that it took a very dim view of the plaintiffs’ credibility and/or causation arguments.”[4]

Despite the jury’s modest damage award, Leach J “was inclined to accept that Ms. Mayer generally was credible, and that her subjective reports of pain and difficulty were both accurate and sincere.”[5] Consequently, Leach J ruled that Ms. Mayer had sustained a permanent serious impairment of an important physical function in the car accident, “if only because of her chronic low back pain.”[6] Regarding the existence, extent and cause of Ms. Mayer’s injuries, Leach J wrote that “there were…ample grounds on which a trier of fact, acting reasonable and judicially, legitimately may have decided such issues in a manner favouring or not favouring the plaintiffs.”[7]

If Leach J had ruled that Ms. Mayer’s impairment did not meet the threshold, Ms. Mayer would have been barred from receiving the jury’s award for general damages (which were already reduced to zero under the deductible) and future care costs. Therefore, the judge’s decision on the threshold issue meant the difference between a $116,000 award (with the future care costs) and a $60,000 award (no future care costs) for Ms. Mayer.

In Mayer, the judge found the plaintiff credible while the jury apparently did not. Interestingly, in Kasap v MacCallum,[8] the opposite result occurred. The jury in Kasap returned a verdict awarding what the Court of Appeal called “fairly substantial damages thereby suggesting that Kasap was a credible witness.”[9] However, the trial judge did not place any weight on the plaintiff’s subjective complaints, writing it would be “unsafe to rely to any meaningful degree upon the credibility of the plaintiff.”[10] Dismantling the plaintiff’s evidence of impairment in his written decision, the trial judge ruled that Mr. Kasap did not meet the threshold test. This result was upheld on appeal.

In Mayer, after the trial judge found Ms. Mayer met the threshold, the plaintiff unsuccessfully brought a motion seeking that the judge reject the jury’s verdict as unreasonable. Upholding the jury’s decision, Leach J wrote, “[a]s the trier of fact, the jury was perfectly entitled to reach its own independent and different assessments of credibility and/or causation, based on its view of the evidence.”[11]

The result in Mayer tempts one to wonder how much larger the plaintiff’s award might have been if it had not been a jury trial.

 

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[1] 2013 ONSC 6806.

[2] 144 OAC 369 (CanLII).

[3] Para 46.

[4] Para 9.

[5] Para 34.

[6] Para 39.

[7] Para 49.

[8] [1999] OJ No 847.

[9] [2001] 144 OAC 369, para 3.

[10] [1999] OJ No 847, para 17.

[11] Para 50.