The threshold exceptions for litigation created by s.267.5(3) and 267.5(5) of the Insurance Act, supra, each effectively incorporates a causation requirement.
In particular, the exceptions do not apply unless the specified impairments exist or occur “as a result of the use or operation of the automobile”. Demonstration of causation therefore is included in the elements a plaintiff must establish to satisfy the threshold for litigation.
The plaintiff’s burden in that regard is reinforced by the provisions of s.4.3(1)(4) of O.Reg 461/96, which provides that the evidence of a physician shall be adduced in support of any claim that the threshold has been satisfied, and must include a conclusion that the impairment was directly or indirectly sustained as the result of the use or operation of an automobile.
In the context of “threshold” determinations, adequate proof of causation also may turn significantly on the credibility and reliability of a claimant; e.g., where the claimant provides a subjective account alleging that his or her symptoms were brought about by the underlying accident and not by some other stressful event.
