Threshold Update: Valdez v. Clarke

March 1, 2010 | Randall Carter | Kitchener-Waterloo

A very interesting threshold decision of Justice Milanetti
was released on January 6, 2010 following a three week trial in September
2009.  At the end of the trial, the jury
came in with a verdict of $25,000.00 for non-pecuniary damages and nothing for
past or future loss of income.  The
defence moved to dismiss the action on the basis that it did not meet the
threshold.  While Justice Milanetti
indicated that it would be easy to simply decide that the case did not meet
threshold, taking the jury’s verdict into consideration, she further indicated
that she was not bound by the verdict and that it was just a factor for her to
consider.

At trial, a wealth of evidence was called, including the
Plaintiff’s family, friends and medical care providers/assessors.  No defence medical evidence or surveillance
was tendered. The diagnosis of the Plaintiff’s condition was that of chronic
pain syndrome with possible nerve root involvement.  There was certainly some pre-existing
“baggage” which was explored at length by defence counsel.  Justice Milanetti did not feel that the
Plaintiff’s credibility was substantially diminished and she felt that all of
the medical evidence was given in an objective and professional way.  Obviously, the jury was not sympathetic to
the Plaintiff’s position and it can be inferred that they did not believe the
Plaintiff, for reasons which will never be known. 

Justice Milanetti reiterated her position as set out in the Sherman case that, in enacting Bill 198,
the legislature intended “to tighten up the threshold by more precisely
defining its components” as well as reducing judicial interpretive discretion
and articulating the types of evidence required for a Plaintiff to succeed.

Following
the accident, Mr. Valdez was off work for six months from his production
supervisor job, returned to work full-time but was laid off about one year
later.  He then got back into his former
and more physical occupation as a long-haul truck driver but, according to the
judge “at the end of the day, it seems he is able to do little else”.  Additionally, and most significantly, the
Plaintiff was completely unable to return to his part-time office cleaning
business which he had been running with his wife for a couple of years and
which small business he had hoped to grow. 
Justice Milanetti felt that this small business was a significant part
of his overall usual and regular employment and its loss constituted substantial
inference.  Therefore, that part of the
threshold test was met. 

In addition, the Plaintiff gave up his passions of cooking
and photography following the accident and there was a major reduction in his
level of socializing, walking, dancing and playing with his 10-year-old
son.  He was described as no longer being
a fun-loving individual.  Justice
Milanetti found that this was substantial interference with most of his usual
activities of daily living, having had a serious effect on his enjoyment of
life.  This part of the test was met,
also.  Success under either part of the
test would be sufficient to meet the threshold. 

In addition to illustrating that jury verdicts on damages and
judicial determinations on threshold can sometimes reach significantly
different conclusions, this case also reinforces the fact that chronic pain can
most certainly give rise to a threshold claim, but that the trial result can
still be disastrous for the Plaintiff. 
This is a useful case to take along to mediations and settlement
conferences.