Scars attain the brink below the Insurance coverage Act – litigation, mediation and arbitration

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Extensive scars often indicate severe injuries reaching the threshold below s. 267.5 (5) (b) of the Insurance Act. But can the scarring be so great that it reaches the threshold in and of itself below ss? (5) (a)?

Yes, according to LaForme J (as he was then) in Zelney v Zelney, 1996 CarswellOnt 3848, and Doyle J in Carroll v Gilbert, 1994 CarswellOnt 3685. The leading case on this matter, however, remains Meyer v Bright, 1993 CanLII 3389 (ON CA ), which, together with Dalgliesh against Green and Lento against Castaldo, form the trilogy of decisions that first interpreted the then newly enacted “threshold” regulation under s. 266 (1) (now s. 267.1) of the Insurance Act.

In short, p.266 was enacted at the same time that Ontario was introducing the system of no-fault benefits. The five judges in Meyer found that the purpose of p.266 was intended to severely limit the right of vehicle collision victims to sue third parties regardless of their fault in exchange for more generous primary insurance benefits. As a reference, the current provision states:

(5) Notwithstanding all other laws and subject to paragraphs (6) and (6.1), the owner of a motor vehicle, the occupants of a motor vehicle, and anyone present in the incident shall not be liable for any damages for non-performance in a lawsuit in Ontario. Financial loss, including compensation for non-financial loss in accordance with Section 61 (2) letter e of the Family Act, through bodily harm or death resulting directly or indirectly from the use or operation of the motor vehicle, provided this is not due to the use or operation of the motor vehicle the injured person died or suffered,

(a) permanent severe disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function. 1996, c. 21, p. 29; 2011, c. 9, Sched. 21, p. 3 (3).

The Meyer panel came to the conclusion that the threshold below ss must be reached for an injury. (a) The disfigurement had to:

• affect or impair the appearance of the individual as a person, and
• cause a change in style, clothing, or lifestyle so that others cannot see the scars.

In Dalgliesh, it was found that the 74-year-old plaintiff’s 15-inch belly scar was not severe, although it was a disfigurement. This was because the scars did not cause any changes in clothing or lifestyle, and the plaintiff claimed that they would not be seen by anyone. In fact, the panel wrote:

This scar has little or no impact on Ms. Dalgliesh’s life. It’s in a place where it’s normally not seen by others, and in a part of her body that she didn’t want to expose to another person’s sight.

In contrast, scarring reached the threshold in Zelney and Carroll.

In Zelney, the plaintiff had scars on both legs and left elbow, and slight scars on her face. LaForme J found that the scars on the arms and legs met the test set out in Meyer because, due to their location and extensive nature, they would have serious negative and harmful effects on them. Describing the scars, LaForme J wrote:

It is clear that the scars on the plaintiff’s arms and legs could be covered with very specific clothing, but that they would be completely exposed and visible if the plaintiff were to wear shorts, a swimsuit, or indeed ordinary clothing that other women did in their age and circumstance would wear freely. As I found out, this woman is an active mother who is determined to continue her activities as before, but I am confident that she will always be confident and embarrassed by the scars. In my view, they will affect her ability to enjoy her normal life and it will take tremendous effort on her part to cope with the embarrassment and emotional stress she faces during warm times of the year Weather clothes are worn or when she is intimate with her husband.

In Carroll, the plaintiff reached the threshold due to scars on her left ear, right leg and left kneecap. When Doyle J concluded that the plaintiff had reached the threshold, he wrote:

Melissa Carroll had a job as a lifeguard teaching others to swim. Every single scar, except possibly the one on her right hip, couldn’t be hidden when she put on a bathing suit. She has already said that she was embarrassed about the scars when she was barely sixteen at the time of the accident. Since she can swim so successfully, she would likely swim for most of her life, unless the embarrassment causes her to avoid swimming pools. There is a disfigurement, it is permanent, and it is severe because of the impact it has on Melissa’s life.

Accordingly, the scarring on its own can reach the threshold where others are likely to see the scars, resulting in a change in the plaintiff’s behavior.

If you or a loved one has suffered a serious injury, contact McLeish Orlando lawyers for free consultation.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.

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