November 11, 2013

SABS Update – Divisional Court overturns Threshold “absurd result”: a win for isolated and vulnerable plaintiffs

For the week of November 11 to November 15, 2013

Gyorffy v. Drury, 2013 ONSC 1929 (Div. Ct.)

The plaintiff, Bella Gyorffy was injured in a motor vehicle collision.  The defendants brought a “threshold” motion before Justice Lemon at trial.  While his Honour found that Mr. Gyorffy was a credible witness who had in fact met the threshold of “permanent, serious impairment of an important physical, mental or psychological function” required under the Insurance Act, he nonetheless dismissed the action.

Justice Lemon relied on section 4.3 of Ontario Regulation 461/96 (“Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996”) to justify his decision.  That section provides that the injured person shall adduce evidence of one or more physicians, and, “[i]n addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged…”

The only evidence adduced on behalf of the plaintiff was that of three physicians and Mr. Gyorffy himself.  Justice Lemon held that Mr. Gyorffy had failed to adduce corroborating evidence.  As none of the potential witnesses was willing to assist Mr. Gyorffy, there “was nothing to corroborate the plaintiff’s evidence of what he was like prior to the accident”.  Justice Lemon felt compelled to dismiss the action.

The Divisional Court rejected Justice Lemon’s interpretation of Section 4.3.  Justice Harvison Young for the majority observed that there is nothing in the section that expressly excludes a plaintiff for providing corroboration.  She further observed that the section is primarily concerned with the evidence of physicians, not of the plaintiff.  Therefore, she held that the section requires corroboration of the physicians’ evidence, not the plaintiff’s.

The Court agreed with the argument submitted by the intervenor, Ontario Trial Lawyers Association, that Justice Lemon’s interpretation is absurd and offensive to the Charter of Rights and Freedoms. Justice Harvison Young explained:

The intervenor submitted that the effect of this interpretation is absurd because it may eliminate, as it did here, plaintiffs who have met the exigent tests of establishing permanent serious impairment of an important physical, mental or psychological function if they do not happen to have people who knew them before the accident who can testify as to the change in function.  In the intervenor’s view, such an interpretation is also incompatible with equality principles as expressed in the Charter because it disparately impacts the most isolated and vulnerable groups in society.

Justice Arvison Young confirmed that where two possible interpretations of a statutory provisions are available, the interpretation that is consistent with Charter values is to be preferred.  As a result she allowed the appeal and the damages determined at trial.


Justice Lemon appears to have been aware of the absurdity of his decision but was unable to find a way to avoid it.  This appeal encourages us as trial lawyers to think creatively on behalf of our clients and strive for solutions in the face of absurdity, statutory or otherwise.  On a practical level, this decision legitimizes the use of a plaintiff’s own evidence as corroborative of the change in function post-collision- an encouraging development in the law.

Accessing This Decision

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