The Corroborating Evidence Requirement
Pain and suffering and loss of enjoyment of life are non-pecuniary damages. Under Ontario’s Insurance Act, persons injured in a car accident can sue for these damages only if they meet an impairment threshold.
To meet the threshold the injured person must have sustained a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement.
Beginning in October 2003, injured persons must also meet additional requirements prescribed by regulation.
They must lead evidence of their impairment from a qualified physician. They must adduce evidence that corroborates the change in these functions.
What is Corroborating Evidence
Corroborating evidence is simply evidence that is separate from but strengthens or confirms what other evidence shows. For car accident cases the evidence of at least one physician and some other evidence of change in function is needed.
The physician’s evidence alone is not enough and the other evidence alone is not enough.
In 2010 a plaintiff named Gyorffy proceeded to trial with his case. He met all the requirements of the impairment threshold, except one. He had not provided evidence corroborating his change in function.
Two physicians testified on his behalf. The plaintiff did not call other evidence. The plaintiff gave evidence about his condition both before and after his accident. The trial judge accepted this evidence.
However the trial judge ruled that a plaintiff could not provide the corroborating evidence. He therefore dismissed the action.
An Important Victory
The plaintiff appealed the decision. The case reached the Ontario Court of Appeal. The Court of Appeal held that the trial decision was incorrect.
The court held that it is the physician’s evidence, not the plaintiff’s evidence, that requires corroboration. The court also noted that the wording of the regulation did not expressly preclude a plaintiff from giving corroborating evidence.
You can read more about the decision at Gyorffy v. Drury, 2015 ONCA 31 (CanLII).
The decision is important. As otherwise a plaintiff with a credible claim, but no family or friends to support the change in function would not be able to succeed in meeting the impairment threshold.
This is contrary to the values and principles of equality set out in s. 15 of the Canadian Charter of Rights and Freedoms.
In a car accident case the plaintiff must call a qualified physician witness.
The physician must explain,
(a) the nature of the person’s impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
The physician’s evidence must be corroborated. The corroborating evidence must help prove the change in the person’s function. A plaintiff may provide this evidence. Other witnesses are not required. Although it may be beneficial to have them.