Desbiens et al. v. Mordini et al.
[Indexed as: Desbiens v. Mordini]
66 O.R. (3d) 796
 O.J. No. 3369
Court File No. 00-CV-185811
Ontario Superior Court of Justice
C. Campbell J.
August 22, 2003
Insurance — Automobile insurance — No-fault provisions — Threshold requirements — Summary determination of threshold issue before trial inappropriate where trial date would probably be lost as result and desired result of efficiency would not be achieved. [page797]
The plaintiff was injured in a motor vehicle accident. A jury trial was scheduled to commence in February 2004. The defendants moved for summary determination before trial of the issue of whether the plaintiff had sustained a catastrophic impairment arising from the motor vehicle accident.
Held, the motion should be adjourned to the trial judge.
Section 267.2 of the Insurance Act, R.S.O. 1990, c. I.8 contemplates an expedited process for determination of the “catastrophic” issue. The expedited process is to be preferred when it will bring efficiency in terms of time and cost to the case as a whole. However, pre-trial determination of the threshold issue was inappropriate in this case, given
that the action was commenced in 2000 and the motion would not be heard until late 2003, within two months of the trial date, and both counsel had indicated that they would likely receive instructions to appeal the threshold determination. Any appeal
could put the trial date in jeopardy. The procedure proposed by the defence would not achieve the desired result of efficiency. The trial judge would be in the best position to determine whether the “catastrophic” evidence was best dealt with by way of a voir dire prior to trial, along with the trial evidence, or at the conclusion of the evidence to be heard by the jury.
Cases referred to
Bourne v. Saunby (1993), 23 C.P.C. (3d) 333, 49 M.V.R. (2d)
65,  O.J. No. 2606 (QL) (Gen. Div.); Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986), 55 O.R. (2d) 56, 16 O.A.C. 69, 9 C.P.C. (2d) 260 (C.A.), revg
(1985), 31 C.C.L.T. 201, 47 C.P.C. 256 (Ont. H.C.J.) (sub
nom. Elcano Acceptance Ltd. and Perlmutter et al. v. Richmond, Richmond, Stambler & Mills); Morniga v. State Farm Mutual Automobile Insurance Co. (2002), 26 C.P.C. (5th) 143,  O.J. No. 2094 (QL),  O.T.C. 369 (S.C.J.); Sempecos v.
State Farm Fire and Casualty Insurance Co. (2002), 29 C.P.C. (5th) 99,  O.J. No. 4498 (QL) (Div. Ct.); Snushall v.
Fulsang,  O.J. No. 1493 (QL) (S.C.J.)
Statutes referred to
Insurance Act, R.S.O. 1990, c. I.8, s. 267.5
MOTION by the defendants for a summary determination before trial of the issue of whether the plaintiff had sustained catastrophic impairment arising from a motor vehicle accident.
Neil P. Wheeler, for plaintiffs. Cameron C.R. Godden, for defendents.
 CAMPBELL J.: — The defendants move for determination of an issue before trial. That issue involves the application of
s. 267.5 of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”)
whether the plaintiff has sustained a catastrophic impairment arising from a motor vehicle accident. The motion is opposed by the plaintiff.
 Section 267.5 of the Act provides as follows:
(11) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge [page798] shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre- trial conference, determine for the purpose of subsection
(4) whether the injured person has sustained a
catastrophic impairment arising directly or indirectly from the use or operation of the automobile.
. . . . .
(13) The determination of a judge on a motion under subsection (11) or (12) is binding on the parties at trial.
(14) If no motion is made under subsection (11), the trial judge shall determine for the purpose of subsection (4) whether the injured person has sustained a catastrophic impairment arising directly or indirectly from the use or operation of the automobile.
 The motion before me was made at a pre-trial hearing in respect of a case scheduled to commence February 14, 2004, with a jury and to occupy more than 15 days at trial. At the time of the accident at issue, the plaintiff was confined to a wheelchair as a result of a 1986 workplace injury.
 As a result of the “no fault” automobile insurance regime in place in Ontario, absent determination before trial, there would of necessity be two separate issues to be heard at trial.
 The first involves a determination by judge alone as to whether the plaintiff has suffered a catastrophic impairment under the Act, being a 55 per cent or more impairment of the whole person pursuant to prescribed guidelines of the American
 The second issue involves a traditional tort assessment by a jury of the appropriate non-pecuniary general damages arising if liability is found. In addition, once a judge has determined catastrophic impairment, the jury will be asked to assess damages for past and future health care expenses (principally medical, rehabilitation and attendant care expenses).
 The determination of both the issues of catastrophic impairment and tort damages in one action has only recently come before the courts under the applicable provisions of the Act (“Bill 59”).
 In Snushall v. Fulsang,  O.J. No. 1493 (QL) (S.C.J.), Madam Justice Lax commented on the process following her determination of the “catastrophic” issue following a trial on the tort issues with a jury. Justice Lax noted, at para. 55 of her reasons:
With the benefit of hindsight, it may be preferable for the trial judge to hear the evidence on catastrophic impairment on a voir dire or by way of a trial of an issue before a jury is selected.
 Wilkins J., in a case styled Fumerton, made such an order and directed that a motion in the nature of a voir dire be brought [page799] before trial. He provided directions for the timing of, and evidence to be heard on the motion.
 There is no doubt that there may well be in most such cases, as here, competing issues on the part of the plaintiff and the tort defendant. The plaintiff seeks to have the jury hear all the evidence notwithstanding that some of it is only involved in the judge’s “threshold” determination. It is urged that the same medical witness will give evidence on both issues, which issues both involve the credibility of the plaintiff.
 Counsel for the plaintiff also raises the legitimate
concern that given the timetable proposed on behalf of the defendant, including a possible appeal, there is a real risk of loss of the trial date, which may involve a postponement of many months.
 The defence urges that a determination of the threshold issue prior to trial may well give rise to a settlement, making the trial unnecessary. In addition, it is submitted that the trial of both issues together before a jury will unduly complicate and prolong the trial.
 Counsel for the plaintiff takes the position that this request is akin to a motion for bifurcation of issues, which on the authorities is to be exercised sparingly, particularly where there is a jury involved. The test as set out in Elcano Acceptance Ltd. v. Richmond, Richmond, Stambler & Mills (1986),
55 O.R. (2d) 56, 9 C.P.C. (2d) 260 (C.A.) and elaborated on in Bourne v. Saunby,  O.J. No. 2606 (QL), 23 C.P.C. (3d) 333 (Gen. Div.) has been widely followed. See: Morniga v. State Farm Mutual Automobile Insurance Co.,  O.J. No. 2094 (QL), 26 C.P.C. (5th) 143 (S.C.J.) and Sempecos v. State
Farm Fire and Casualty Insurance Co.,  O.J. No. 4498 (QL), 29 C.P.C. (5th) 99 (Div. Ct.).
 To my mind, there is a distinction to be drawn between bifurcation that is to be exercised with sparing discretion and a statutory regime that contemplates a summary determination of a significant trial issue.
 In the ordinary case, it is preferable that all issues between parties be tried in one trial at the same time. “Catastrophic impairment” raises different considerations since there will be two different triers of fact arriving at their decisions on two different evidentiary bases.
 Section 267.5 contemplates an expedited process for determination of the “catastrophic” issue. The expedited process is to be preferred when it will bring efficiency in terms of time and cost to the case as a whole. The procedure endorsed by Justice Wilkins in Fumerton is one example of that efficiency. [page800]
 I am concerned that the proposal by the defence in this case, for determination of the catastrophic issue prior to trial, may well not in this case achieve the time and cost efficiency anticipated under the section. The proposed timetable of the defence suggests affidavit material being prepared and delivered in September and October, with cross- examinations to be completed by mid-November and factums exchanged in time for a five-day hearing during the week of December 15, 2003. I agree that in the factual circumstances of this case, much of that evidence would be duplicated at trial.
 In addition, both counsel have indicated that the facts of this case are such that they would likely receive instructions to appeal the “catastrophic” determination. Such an event would put in jeopardy the February 14, 2004 trial date.
 I would have hoped that the parties could have agreed to an expedited efficient process for determination of the “catastrophic” issue well before trial but that is not the case. While in general I support the concept of the summary process before trial, I am not satisfied that it is appropriate in this case for the following reasons:
1. The action was commenced in 2000, and the motion would not be heard until late 2003, within two months of the trial date;
2. Any appeal from the ruling could put the trial date in jeopardy; and
3. I am not satisfied that procedure proposed by the defence would in fact achieve the desired result of efficiency.
 The motion for determination of the “catastrophic” issue prior to trial is therefore adjourned to the trial judge. She or he will be in the best position to determine whether the “catastrophic” evidence is best dealt with (a) by way of a
voir dire prior to trial, (b) along with the trial evidence, or
(c) at the conclusion of the evidence to be heard by the
 In the circumstances, since this issue arose during a pre-trial conference, I am satisfied that any claim for costs associated with the motion should be dealt with by the trial judge following determination of the trial.
Motion adjourned to trial judge. [page801]