Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff needed to meet the threshold under s. 267.5(3) and (5) of the Insurance Act to claim non-pecuniary damages.

• Evidence showed the plaintiff's soft tissue injuries resolved within four months of the accident.

• Surveillance and social media content contradicted the plaintiff’s claim of ongoing impairment.

• Expert opinions were conflicting, but the jury’s award of no damages weighed heavily.

• The threshold motion succeeded, barring claims for general damages and healthcare expenses.

• Defendant’s reasonable pre-trial offers and the plaintiff’s rejection led to a $150,000 cost award against the plaintiff.

Facts and outcome of the case

Background and the accident

The plaintiff, Phillip Trieu, brought a personal injury claim after being involved in a motor vehicle accident on March 3, 2015. The defendant, Hayden Aubin, admitted liability for the accident. Despite this, the jury awarded no damages to the plaintiff following a 12-day jury trial. The defendant subsequently brought a threshold motion under s. 267.5(3) and (5) of the Insurance Act, arguing that the plaintiff did not sustain injuries that met the statutory threshold for non-pecuniary damages.

Threshold motion and court’s analysis

To meet the statutory threshold, the plaintiff had to prove he suffered a permanent serious impairment of an important physical, mental, or psychological function. The court examined the medical evidence, surveillance materials, and social media content.

The court found that while the plaintiff initially suffered soft tissue injuries, he had recovered by July 7, 2015, as indicated by his discharge from physiotherapy. His complaints of intermittent back pain were not supported by any substantial functional limitations. Surveillance footage and posts on social media depicted the plaintiff engaging in physical activities that were inconsistent with his claimed impairments.

Although expert medical opinions were divided, the jury’s decision to award no damages significantly influenced the court’s view. The court concluded that the plaintiff did not meet the threshold, and the motion was granted. As a result, his claims for non-pecuniary damages and healthcare expenses were barred under the Insurance Act.

Costs award and settlement considerations

Despite seeking $1 million in damages, the plaintiff rejected multiple pre-trial settlement offers from the defendant, including an offer to dismiss the action without costs. Citing Rule 49.13 and relevant case law, the court awarded the defendant $150,000 in costs. It considered the complexity of the case, the 12-day jury trial, and the proportionality and reasonableness of the defendant’s pre-trial conduct.

Conclusion

The court found that the plaintiff did not meet the statutory threshold for general damages under the Insurance Act. Consequently, all non-pecuniary and healthcare claims were barred, and the plaintiff was ordered to pay $150,000 in costs to the defendant.