He cannot prove his injuries exceeded the statutory threshold: court
The Ontario Superior Court of Justice has dismissed a plaintiff’s claim for damages because he cannot prove that his injuries exceeded the statutory threshold without presenting medical witnesses.
In Tous v Tabatabai, 2023 ONSC 433, Miroslav Tous was involved in a motor vehicle accident in 2012. Claiming that he had suffered injuries because of the accident, Tous sued Haider Tabatabai, who denied liability. In his statement of claim, Tous sought to recover damages for $1 million.
Tabatabai asked the Ontario Superior Court of Justice for an order dismissing Tous’ claim for general damages and health care expenses. Tabatabai argued that Tous could not prove that his injuries met the statutory threshold required by the Insurance Act.
Since 2015, there have been two judicial pre-trials. In January, Tous informed Tabatabai’s counsel that he would not call any witnesses at trial. Tous also confirmed that he would rely on the documentary evidence that had already been produced.
The superior court noted that the only medical records that Tous had provided in the proceedings were notes and records obtained by Tabatabai’s counsel through authorization issued by Tous. He also failed to produce any other medical notes or records for any medical attendance that may have occurred after 2016. In addition, Tous had not served any notice that he intended to introduce expert evidence, medical reports, or business records at trial.
Statutory threshold
The court pointed out that under the Insurance Act, the defendant would not be liable for general damages and health care expenses unless the plaintiff proved that he had sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental, or psychological function.”
The court said the burden is on Tous to prove that his injuries exceeded the statutory threshold. The court also pointed out that under the province’s rules on court proceedings for automobile accidents, a person who alleged that his claim exceeded the statutory threshold must produce evidence of one or more physicians that could explain the nature of the impairment, its permanence, the specific function that was impaired and its importance to the person.
No medical witness at the trial
The court said Tous would not be permitted to introduce any evidence from a physician during the trial because he had previously asserted that he would not call any medical witness at trial. He had also not served any notice showing his intention to introduce any medical report, business record, or expert evidence.
As a result, the court ruled that Tous could not comply with the evidentiary requirement to prove his allegation that his injuries exceeded the statutory threshold under the Insurance Act. The court ultimately dismissed his claim for general damages and health care expenses.
