The Threshold in Ontario Motor Vehicle Accident Claims: What Injured People Need to Know

One common misconception I encounter with new clients in my practice is that anyone injured in a motor vehicle accident is automatically entitled to compensation for pain and suffering. In Ontario, however, that is not the case.. Before these damages can be recovered, the injured person must generally prove that their injuries meet a legal test commonly known as the threshold.

The threshold is specific to motor vehicle accident in Ontario (i.e. if you are injured in a slip and fall incident, the threshold will not apply to your case). The threshold can often become an important and heavily contested issue in a motor vehicle accident lawsuit. Even where it is clear that another driver caused the collision and the injured person continues to experience symptoms, an insurer may argue that the resulting impairment is insufficient to satisfy the test.

What Is the Threshold in an Ontario Car Accident Case?

Under section 267.5(5) of Ontario’s Insurance Act, a person injured in a motor vehicle accident is generally prevented from recovering non-pecuniary damages (commonly known as pain and suffering damages) unless the accident caused:

• A permanent serious disfigurement; or

• A permanent serious impairment of an important physical, mental or psychological function.

Whether the threshold has been met depends on the evidence and the effect of the injuries on that particular person’s life.

What Must an Injured Person Prove?

Ontario courts generally approach the threshold by asking three central questions:

1. Has the injured person sustained a permanent impairment of a physical, mental or psychological function?

2. Is the impaired function important to that person?

3. Is the impairment of that important function serious?

All three elements must be established.

1. Is the impairment permanent?

In this context, “permanent” does not necessarily mean that the condition must last forever. It generally means that the impairment is expected to continue into the indefinite future without substantial improvement.

The court may consider:

• How long the symptoms and limitations have continued;

• Whether the person has followed reasonable treatment recommendations;

• The medical prognosis;

• Whether further treatment is expected to produce substantial improvement; and

• Whether the impairment continues despite reasonable efforts at rehabilitation or accommodation.

A diagnosis alone may not establish permanence. The medical evidence should explain why the impairment is expected to continue and how it affects the injured person’s functioning.

2. Is the impaired function important?

The court considers the importance of the function to the particular injured person and not to an abstract or hypothetical person.

An impaired function may be important if it is necessary for the person to:

• Continue their regular employment;

• Pursue an intended career or education;

• Care for themselves or their family;

• Perform household responsibilities;

• Maintain relationships and social connections; or

• Participate in meaningful recreational and community activities.

For example, impaired memory, concentration and information processing may be especially important to a student, professional or person whose employment requires rapid decision-making. Physical mobility may be particularly important to someone working in construction, caregiving or another physically demanding occupation.

3. Is the impairment serious?

A serious impairment must substantially interfere with the injured person’s ability to continue their employment, pursue their intended career or education, or perform most of their usual activities of daily living.

The focus is not simply on the name or type of injury. The court examines the actual effect on the person.

An individual may still be able to perform some activities while suffering a serious impairment. Returning to work, for example, does not automatically mean that the threshold cannot be met. The court may consider whether the person:

• Requires significant accommodations;

• Works reduced hours;

• Has changed occupations or responsibilities;

• Performs tasks less efficiently;

• Experiences increased pain or psychological symptoms;

• Has withdrawn from family, social or recreational activities; or

• Can no longer function at their pre-accident level.

The overall impact of the impairment is more important than any single limitation.

What Evidence Is Needed to Meet the Threshold?

Sections 4.1 to 4.3 of Ontario Regulation 461/96 set out the criteria and evidentiary requirements applicable to the threshold.

Medical evidence is essential. One or more appropriately qualified physicians should address:

• The nature of the impairment;

• Whether the impairment is permanent;

• The specific function that has been impaired;

• Why that function is important to the injured person; and

• Whether the impairment was caused, directly or indirectly, by the motor vehicle accident.

The medical evidence should be supported by evidence showing how the person’s life has actually changed. This is often called corroborating evidence and may come from:

• Family members;

• Friends;

• Co-workers or supervisors;

• Treating professionals;

• School records;

• Employment records;

• Photographs or videos;

• Activity logs; and

• Evidence of unsuccessful attempts to return to work, school or normal activities.

A strong threshold case connects the medical diagnoses to concrete functional limitations.

Can Psychological Injuries Meet the Threshold?

Yes. The legislation expressly includes impairments of mental and psychological functions.

Depression, anxiety, post-traumatic stress symptoms, cognitive impairments and other psychological conditions may satisfy the threshold where the evidence establishes that the resulting impairment is permanent, serious and affects an important function.

Psychological injury cases can be especially complex when the injured person had pre-existing symptoms or mental health concerns. A pre-existing condition does not automatically defeat the claim. The court must determine whether the collision caused a new impairment or materially worsened the person’s previous condition.

Evidence comparing the person’s functioning before and after the accident can be particularly important.

A Successful Threshold Decision: Marcantonio v. Li

Daniel Rabinovitch acted as co-counsel for the plaintiffs in Marcantonio v. Li, 2025 ONSC 3303, an Ontario Superior Court of Justice decision involving the motor vehicle accident threshold.

The threshold motion followed an 11-day jury trial where the injured plaintiff alleged significant psychological, cognitive and functional impairments following the accident.

Before the collision, she had graduated from high school with honours, received multiple university offers and a scholarship, and was working. After the accident, the evidence showed significant difficulties with memory, mood, information processing, employment, education, personal care and social functioning.

The Court considered evidence from the plaintiff, family and friends, a treating social worker, and several medical experts. Although there was evidence of some pre-accident psychological concerns, the Court found that the collision caused the significant deterioration in the plaintiff’s functioning.

Applying the three-part threshold test, the Court found:

• The impairment was permanent;

• Functions involving memory, mood and information processing were important; and

• The impairment of those functions was serious.

The Court ultimately concluded that the plaintiff had suffered a severe, permanent impairment of an important mental or psychological function because of the collision.

The decision demonstrates that psychological and cognitive impairments can meet Ontario’s motor vehicle accident threshold when supported by persuasive medical, functional and corroborating evidence.

Who Decides Whether the Threshold Is Met?

The trial judge decides whether the threshold has been met.

In a jury trial, the jury may determine liability and assess damages, but the judge separately determines the threshold issue. The judge is not bound by the jury’s verdict, although the verdict may be considered as part of the judge’s independent analysis.

This means that a jury’s assessment of pain and suffering damages does not necessarily resolve whether the injured person is legally entitled to recover those damages.

Is the Threshold the Same as the Statutory Deductible?

No. The threshold and statutory deductible are separate legal issues.

The threshold determines whether the injured person is permitted to recover damages for pain and suffering. If the threshold is met, a statutory deductible may still reduce the amount payable, depending on the amount of the award and the applicable indexed figures.

A person can therefore meet the threshold but still have their pain and suffering award reduced by the deductible.

The threshold is also different from the Minor Injury Guideline and the definition of catastrophic impairment used in the accident benefits system. Each involves a different legal test and serves a different purpose.

How Can an Injured Person Strengthen a Threshold Case?

Every case is different, but several practical steps can help preserve important evidence:

• Report all symptoms accurately and consistently to treating professionals;

• Attend recommended medical treatment and assessments;

• Discuss barriers to treatment, including cost or availability, with your lawyer;

• Keep a record of changes in work, education, household responsibilities and daily activities;

• Identify family members, friends and co-workers who have observed those changes;

• Preserve employment, attendance and accommodation records; and

• Obtain legal advice before communicating with the other driver’s insurer.

Threshold cases are built over time. Gaps in treatment, incomplete medical histories or a lack of evidence about day-to-day functioning can make it more difficult to establish the claim.

Speak With an Ontario Motor Vehicle Accident Lawyer

If you have suffered lasting physical, psychological or cognitive injuries in a collision, it is important to understand how Ontario’s threshold may affect your claim.

DR Injury & Disability Law represents people injured in motor vehicle accidents across Ontario. We can review the circumstances of your collision, explain your legal options and help determine what evidence may be needed to advance your claim.

Call (416) 668-3944 or visit www.drinjurylaw.ca to request a free consultation.

This article provides general legal information only and is not legal advice. The outcome of any case depends on its particular facts and evidence. Past results are not necessarily indicative of future results.