Understanding Chronic Pain Claims in Ontario Courts
Chronic pain claims present unique challenges in Ontario courts due to their subjective and often "invisible" nature. Unlike injuries with clear objective evidence, such as fractures visible on imaging, chronic pain relies heavily on the plaintiff's subjective experience, making credibility and reliable evidence critical to success at trial. This article explores how Ontario courts assess chronic pain claims, the legal threshold for recovering damages, and the types of evidence that maximize a plaintiff's chances of success.
The Subjective Nature of Chronic Pain
Chronic pain is inherently individualized, often lacking objective markers on medical imaging (Fraser v. Persaud, 2023 ONSC 1449, para 413). Courts recognize that medical diagnoses of chronic pain depend significantly on the plaintiff's self-reported symptoms (Fraser v. Persaud, para 414). As a result, the credibility and reliability of the plaintiff are central to the court's evaluation of the evidence (Fraser v. Persaud, para 415). A plaintiff's consistent and believable testimony is foundational to establishing the legitimacy of their claim.
The Statutory Threshold for Non-Pecuniary Damages
To recover non-pecuniary damages for chronic pain in Ontario, plaintiffs must meet the "verbal threshold" outlined in the Insurance Act. This requires proving a "permanent serious impairment of an important physical, mental, or psychological function" (Solanki v. Reilly, 2021 ONSC 6694, para 16; Legree v. Origlieri, 2021 ONSC 7650, para 74). Courts assess this threshold through a three-step process:
Permanent Impairment: The plaintiff must demonstrate a permanent impairment of a bodily function caused by a continuing physical injury. "Permanent" is defined as lasting indefinitely or unlikely to improve (Solanki v. Reilly, para 83; Legree v. Origlieri, para 85).
Importance of the Impaired Function: The impaired function must be significant to the plaintiff's personal way of life, such as their ability to engage in daily activities or maintain their lifestyle (Legree v. Origlieri, para 87).
Seriousness of the Impairment: The impairment must have a detrimental effect on the plaintiff's life, impacting their ability to perform usual daily activities or continue regular employment. Notably, an impairment can still be considered serious even if the plaintiff resumes work through determination but continues to experience pain (Solanki v. Reilly, paras 98, 100; Legree v. Origlieri, para 89).
Effective Evidence for Chronic Pain Claims
To succeed in a chronic pain claim, plaintiffs must present a combination of expert and non-expert evidence that is consistent, credible, and corroborative. Courts rely on the following types of evidence to assess the genuineness of the claim.
Expert Medical Evidence
Longitudinal Evidence from Treating Physicians and Specialists: Courts give significant weight to testimony and reports from treating physicians, such as family doctors, physiatrists, neurologists, psychiatrists, psychologists, or chronic pain specialists, who have a long-term relationship with the plaintiff. These professionals can provide detailed insights into the evolution of symptoms, treatment compliance, and functional limitations (Legree v. Origlieri, paras 44, 61, 66).
Objective Testing and Standardized Assessments: Evidence from standardized tests, such as neuropsychological batteries, cognitive assessments, and functional capacity evaluations, is persuasive when it corroborates the plaintiff's subjective complaints.
Individualized Expert Reports: Reports that are tailored to the plaintiff's specific condition and avoid generic or boilerplate language carry more weight in court.
Admissibility of Medical Reports: Medical reports signed by a practitioner are admissible with court approval and at least ten days' notice to other parties (Evidence Act, R.S.O. 1990, c. E.23, s. 52(2)). However, parties are generally limited to calling no more than three expert witnesses without judicial permission (Evidence Act, R.S.O. 1990, c. E.23, s. 12).
Non-Expert Evidence
Plaintiff's Credibility: The plaintiff's own testimony about their pain and impairments is fundamental. Courts assess the consistency and believability of the plaintiff's account to determine the validity of the claim (Fraser v. Persaud, paras 413-415; Legree v. Origlieri, para 13).
Corroboration from Lay Witnesses: Testimony from family, friends, and co-workers about the plaintiff's pre- and post-accident functioning, personality, and ability to engage in daily activities, work, or social and recreational activities is highly persuasive. This evidence supports the plaintiff's subjective complaints and is often a regulatory requirement to establish a permanent and serious impairment (Fraser v. Persaud, paras 413-415; Solanki v. Reilly, para 17; Legree v. Origlieri, paras 31-35, 77).
The Importance of Consistency
Consistency across the plaintiff's testimony, lay witness accounts, and medical evidence is critical to establishing the authenticity of a chronic pain claim. Discrepancies or inconsistencies can undermine the plaintiff's credibility and weaken their case. Courts look for a cohesive narrative that demonstrates the impact of chronic pain on the plaintiff's life, supported by both expert and non-expert evidence.
Conclusion
Navigating chronic pain claims in Ontario courts requires a thorough understanding of the legal threshold and the types of evidence that resonate with judges. By presenting credible plaintiff testimony, corroborative lay witness accounts, and robust medical evidence from treating physicians and standardized assessments, plaintiffs can strengthen their case and improve their chances of recovering damages. While the subjective nature of chronic pain poses challenges, a well-prepared case with consistent and compelling evidence can effectively demonstrate the profound impact of these "invisible" injuries.
If you or a loved one was injured in an accident, please contact the legal representatives at Porcelli D'Angela LLP at info@pdlaw.ca or call us at 647-490-9444.
Legal Disclaimer: This article is for informational purposes only and does not constitute legal advice. Laws and regulations vary by jurisdiction, and legal matters can be complex. You should consult a qualified lawyer for legal guidance tailored to your specific situation. The author and publisher of this article assume no responsibility for any actions taken based on its content.