Meyer et al. v. Bright et al., (1993) 67 O.A.C. 134 (CA)

• Judge: Dubin, C.J.O., Lacourcière, Krever, Griffiths and Galligan, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Friday October 22, 1993
• Jurisdiction: Ontario
• Citations: (1993), 67 O.A.C. 134 (CA);1993 CanLII 3389 (NS CA);1993 CanLII 3389 (ON CA);15 OR (3d) 129;110 DLR (4th) 354;17 CCLI (2d) 1;[1993] OJ No 2446 (QL);45 ACWS (3d) 1136;48 MVR (2d) 1;67 OAC 134

Meyer v. Bright (1993), 67 O.A.C. 134 (CA)

MLB headnote and full text

Johann Meyer, Margaret Meyer, Frank Meyer, Uwe Meyer, Uta Devos and Una Johnston (plaintiffs/appellants) v. Carl M. Bright and Pollock Rentals Limited (defendants/respondents) and Insurance Bureau of Canada (intervener)

Anne Dalgliesh (plaintiff/respondent) and Andrea B. Green and Gordon D. Green (defendants/appellants) v. Insurance Bureau of Canada (intervener)

Dominic Lento, Mario Lento, Mariano Lento, Anthony Lento, Rita Lento and Franca Scalzo (plaintiffs/respondents) v. Stella Castaldo (defendant/appellant) and Insurance Bureau of Canada (intervener)

(C12788; C15018; C14943)

Indexed As: Meyer et al. v. Bright et al.

Ontario Court of Appeal

Dubin, C.J.O., Lacourcière, Krever, Griffiths and Galligan, JJ.A.

October 22, 1993.

Summary:

These appeals involved the interpretation and application of s. 266 of the Ontario Insurance Act. Section 266 limited the com­mon law right of a motor vehicle accident victim to pursue a tort action except in certain situations.

The Ontario Court of Appeal interpreted s. 266 and disposed of the appeals accordingly.

Insurance - Topic 5010.1

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - General - The Province of Ontario adopted a no fault insurance scheme, including s. 266 of the Ontario Insurance Act which limited the common law right of a motor vehicle accident victim to pursue a tort action except in certain situations - These excep­tions were where the injured person died, sustained permanent serious disfigurement or perma­nent serious impairment of an important bodily function caused by con­tinuing injury of a physical nature - The Ontario Court of Appeal interpreted s. 266 and discussed how to apply the exceptions created thereby - See paragraphs 1 to 52.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - [See Insurance - Topic 5010.1 ]

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Section 266 of the Ontario Insur­ance Act limited the common law right of a motor vehicle accident victim to pursue a tort action except in certain circum­stances - These exceptions were where the injured person died or sustained certain serious injuries - The Ontario Court of Appeal held that where an injured person established that he came within one of the exceptions, the immunity from tort action for potential defendants disappeared, and the injured person could sue for damages for loss or damage from bodily injury at large - The injured person was not restricted to suing only for damages for injuries mentioned within the exceptions - See paragraphs 47 to 49.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Section 266 of the Ontario Insur­ance Act limited the common law right of a motor vehicle accident victim to pursue a tort action except in certain circum­stances - Section 266(1)(b) created an exception where the injured person sus­tained perma­nent serious impairment of an important bodily function caused by con­tinuing injury which is physical in nature - The Ontario Court of Appeal held that the frustration of an injured person's chosen career path generally should be considered to be a serious matter within the meaning of s. 266(1)(b) - See paragraphs 106, 107.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Section 266 of the Ontario Insur­ance Act limited the common law right of a motor vehicle accident victim to pursue a tort action except in certain circum­stances - These exceptions were where the injured person died, sustained permanent serious disfigurement or permanent serious im­pairment of an important bodily function caused by continuing injury of a physical nature - The Ontario Court of Appeal held that the onus of proof rests upon the injured person to establish on a balance of probabilities that he is entitled to one of the exceptions found in s. 266 - See para­graphs 50 to 53.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Mr. Meyer, a 68 year old retired machinist, was injured in a motor vehicle accident - He sustained an open com­pound fracture of his right knee - He had three operations - Hospitalized 12 days - On crutches for two weeks, followed by the use of a cane for 5½ months - Physio­therapy - Good recovery with continuing intermittent symptoms - Meyers personal injury suit was dismissed at trial because his injuries were not considered serious enough to qualify him for one of the ex­ceptions to the limitation on tort actions in s. 266 of the Insurance Act - The Ontario Court of Appeal affirmed the dismissal of his claim - See paragraphs 54 to 64.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Mrs. Meyer, a 66 year old house­wife, was injured in a motor vehicle acci­dent - She sustained a fracture to her left patella, a fractured right wrist, soft tissue injuries to her left foot and ankle, her right shoulder, her right middle finger and bruising to her chest - Permanent impair­ment of important bodily functions detrimentally impacted on her enjoyment of life - Her personal injury suit was dismissed at trial because her injuries were not considered serious enough to qualify her for one of the exceptions to the limita­tion on tort actions in s. 266 of the Insur­ance Act - The Ontario Court of Appeal affirmed the dismissal of her claim - See paragraphs 65 to 72.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Dalgliesh, a 74 year old widow, was injured in a motor vehicle accident - She sustained a ruptured spleen which was removed, leaving a 15" scar down the centre of her abdomen - The trial judge held that her tort action for damages for personal injuries was not restricted by s. 266 of the Insurance Act because her case fell within the exception in s. 266(1)(a) (i.e., she had a permanent serious dis­fig­urement) - The Ontario Court of Appeal held that the scar was a disfigure­ment, however, the disfigurement was not serious enough, having regard to the cir­cumstances of her life, to entitle her to the exception in s. 266(1)(a) - See paragraphs 73 to 79.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Dalgliesh, a 74 year old widow, was injured in a motor vehicle accident - She sustained several injuries, including the loss of her spleen - Little long term risk in not having a spleen - The trial judge held that her tort action was not prohibited by s. 266 of the Insurance Act because she fell with the exception in s. 266(1)(b) (i.e., she had a permanent seri­ous impairment of an important bodily function) - The Ontario Court of Appeal held that the loss of her spleen did not amount to the impairment of a bodily function which was an important one for Dalgliesh - Her spleen injury therefore did not qualify her for the exception in s. 266(1)(b) - See paragraphs 73, 74, 80 to 89.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Dalgliesh, a 74 year old widow, was injured in a motor vehicle accident - She sustained several injuries, including soft tissue injuries to her neck and back - Bending and lifting permanently impaired - Before the accident she was very active - Continuing pain - The trial judge held that her tort action was not prohibited by s. 266 of the Insurance Act because she fell with the exception in s. 266(1)(b) (i.e., she had a permanent serious impairment of an important bodily function) - The Ontario Court of Appeal disagreed with the trial judge, holding that she did not qualify for the exception in s. 266(1)(b) because she did not have a "serious impairment" - See paragraphs 73, 74, 90 to 95.

Insurance - Topic 5010.2

Automobile insurance - Compulsory gov­ernment schemes (Incl. no-fault schemes) - Limitation on causes of action - Excep­tions - Lento, a 28 year old licensed jour­neyman auto body mechanic, was injured in a motor vehicle accident - He perma­nently injured his hand and foot - The Ontario Court of Appeal affirmed that Lento's tort action was not prohibited by s. 266 of the Insurance Act because he fell with the exception in s. 266(1)(b) (i.e., he had a permanent serious impairment of an important bodily function) - His impair­ment was serious because of its impact on his career - See paragraphs 98 to 110.

Words and Phrases

Important bodily function - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 266 of the Insurance Act, R.S.O. 1990, c. I-8 - See paragraphs 22 to 27.

Words and Phrases

Serious impairment - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 266 of the Insurance Act, R.S.O. 1990, c. I-8 - See paragraphs 28 to 39.

Words and Phrases

Permanent serious disfigurement - The Ontario Court of Appeal discussed the meaning of this phrase as it was used in s. 266 of the Insurance Act, R.S.O. 1990, c. I-8 - See paragraphs 40 to 46.

Cases Noticed:

Meyer v. Bright (1992), 9 O.R.(3d) 225 (Ont. Gen. Div.), refd to. [para. 1].

Dalgliesh v. Green et al. (1993), 12 O.R.(3d) 40 (Ont. Gen. Div.), refd to. [para. 1].

Lento et al. v. Castaldo (1993), 12 O.R.(3d) 321 (Ont. Gen. Div.), refd to. [para. 1].

Cassidy v. McGovern (1982), 330 N.W.2d 22 (Mich. S.C.), refd to. [para. 5].

DiFranco v. Pickard (1986), 398 N.W.2d 896 (Mich. S.C.), refd to. [para. 5].

Berardinelli v. Ontario Housing Corp. et al., [1979] 1 S.C.R. 275; 23 N.R. 298; 90 D.L.R.(3d) 481, dist. [para. 7].

Schrump et al v. Koot et al. (1977), 18 O.R.(2d) 337 (C.A.), refd to. [para. 87].

Statutes Noticed:

Family Law Act, R.S.O. 1990, c. F-3, sect. 61 [para. 54].

Insurance Act, R.S.O. 1990, c. I-8, sect. 266 [para. 11].

Public Authorities Protection Act, R.S.O. 1970, c. 374, sect. 11 [para. 7].

Authors and Works Noticed:

Jowitt's Dictionary of English Law (2nd Ed. 1977), vol. 1, p. 625 [para. 41]

Shorter Oxford English Dictionary (3rd Ed. 1973), vol. 1, p. 566 [para. 41].

Counsel:

Earl A. Cherniak, Q.C., Kirk F. Stevens and Nigel G. Gilby, for the appellants Johann Meyer, Margaret Meyer et al.;

Norman C. Brown, Q.C., for the respon­dents Carl M. Bright and Pollock Rentals Limited;

Terence J. Collier, for the appellants And­rea B. Green and Gordon D. Green;

Roger G. Oatley, for the respondent Anne Dalgliesh;

Gary R. Will, for the appellant Stella Castaldo;

Anthony P. Potestio and Kristopher H. Knutsen, Q.C., for the respondents Dom­inic Lento et al.;

Neil Finkelstein, R. Allan O'Donnell, Q.C., and Jeff Galway for the intervener in each appeal, Insurance Bureau of Canada.

These appeals were heard together on May 10, 11 and 12, 1993, before Dubin, C.J.O, Lacourcière, Krever, Griffiths and Galligan, JJ.A., of the Ontario Court of Appeal. The following decision was released by the court on October 22, 1993.