Is there a permanent impairment arising from the accident?
Ontario, Canada
The following excerpt is from Hensworth v. Mismar, 2006 CanLII 38232 (ON SC):
It is clear from Meyer v. Bright at pages 145-46 that the onus of proof rests on the plaintiff to establish on a balance of probabilities that she is entitled to rely on the exemption in subsection 267.5(5)(b): The onus of proving damages always rests upon the plaintiff. We can see no reason why there should be any change in that rule in one of these cases. Moreover, the injured person would be seeking to come within a statutory exception. The onus of proof usually rests upon a person seeking to bring himself or herself within a statutory exception. It is our opinion that the onus of proof rests upon the injured person to establish upon the balance of probabilities that he or she is a person entitled to one of the exceptions found in [the predecessor of subsection 267.5(5)(a) and (b)]. Is There a Permanent Impairment Arising from the Accident?
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