Gyorffy v. Drury, 2015 ONCA 31

• Judge: Laskin, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 04, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 31;(2015), 329 O.A.C. 220 (CA)

Gyorffy v. Drury (2015), 329 O.A.C. 220 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JA.029

Bella Gyorffy (plaintiff/respondent) v. Marion Drury (defendant/appellant)

(C58228; 2015 ONCA 31)

Indexed As: Gyorffy v. Drury

Ontario Court of Appeal

Laskin, Rouleau and Epstein, JJ.A.

January 22, 2015.

Summary:

The plaintiff sued for damages suffered in a motor vehicle accident. Having decided that the plaintiff was credible and had suffered a "permanent serious impairment of an important physical, mental or psychological function", as defined by s. 267.5(5) of the Insurance Act and s. 4 of the Regulation, the trial judge nonetheless dismissed the action on the basis that the plaintiff had not met the requirement in s. 4.3(5) of the Regulation because he had not adduced any evidence, in addition to that of the physician, to corroborate the change in function alleged to be a permanent serious impairment of an important physical, mental or psychological function. The plaintiff appealed.

The Ontario Divisional Court, Cornell, J., dissenting, in a decision reported at 310 O.A.C. 233, allowed the appeal, set aside the judgment below and granted judgment to the plaintiff in the amount of $9,000. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Evidence - Topic 5202

Witnesses - Corroboration - General principles - When required - [See Insurance - Topic 5062.1 ].

Evidence - Topic 5203

Witnesses - Corroboration - General principles - What constitutes corroboration - [See Insurance - Topic 5062.1 ].

Insurance - Topic 5062.1

Automobile insurance - Compulsory government schemes - Bodily injury and death benefits - Permanent impairment defined - The plaintiff sued for damages suffered in a motor vehicle accident - Having decided that the plaintiff was credible and had suffered a "permanent serious impairment of an important physical, mental or psychological function", as defined by s. 267.5(5) of the Insurance Act and s. 4 of the Regulation, the trial judge nonetheless dismissed the action on the basis that the plaintiff had not met the requirement in s. 4.3(5) of the Regulation because he had not adduced any evidence, in addition to that of the physician, to corroborate the change in function alleged to be a permanent serious impairment of an important physical, mental or psychological function - At issue in the appeal was whether an injured person, the plaintiff, could provide the corroborating evidence - The majority of the Divisional Court allowed the plaintiff's appeal, holding that s. 4.3(5) of the Regulation did not preclude the plaintiff from providing corroborative evidence - The Ontario Court of Appeal agreed and dismissed the defendant's appeal - The plaintiff was entitled to corroborate his physician's evidence about his change in function.

Words and Phrases

Corroborates - The Ontario Court of Appeal discussed the meaning of the word "corroborates" as used in s. 4.3(5) of the Insurance Act Regulations (Ont.), Reg. 461/96 - See paragraphs 1 to 44.

Cases Noticed:

Allstate Insurance Co. of Canada v. Motor Vehicle Accident Claims Fund (2007), 84 O.R. (3d) 401; 2007 ONCA 61, refd to. [para. 30].

Meyer et al. v. Bright et al. (1993), 67 O.A.C. 134; 15 O.R.(3d) 129 (C.A.), refd to. [para. 31].

Pepe v. State Farm Mutual Automobile Insurance Co. (2011), 282 O.A.C. 157; 105 O.R.(3d) 794; 2011 ONCA 341, refd to. [para. 33].

Statutes Noticed:

Insurance Act Regulations (Ont.), Reg. 461/96, sect. 4.3 [para. 23].

Counsel:

Alan L. Rachlin, for the appellant;

Timothy H. Leigh-Bell, for the respondent.

Brian M. Cameron and Michelle Han, for the intervener Ontario Trial Lawyers Association.

This appeal was heard on June 4, 2014, by Laskin, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Laskin, J.A., on January 22, 2015.