[41] I make this finding based on the following:
a. Both parties are able to work and continue with their daily activities. There is a concern that any lingering limitations in these areas are related to either a pre-existing condition or the natural aging process based on the expert evidence given. It was open to the jury to accept this expert evidence and they did so.
b. There were credibility issues at trial regarding both plaintiffs and their experts. It was open to the jury to reject some or all of that evidence and it is clear from the damage awards that they did not accept the evidence of plaintiffs with respect to the nature and severity of the complaints.
c. While the plaintiffs suffered injuries, they have not met the required threshold as there is insufficient proof that those injuries are at the level of being impairments. Further, if I am wrong and the injuries can be classified as impairments, given the evidence that the injuries may have been serious at one point but are now completely healed, are rooted in a pre-existing condition or are the result of the natural aging process, it is impossible for them to meet the third part of the test with respect to being “serious” impairments.
d. I agree with the defence that the Mandel v. Fakhim case cited above must give the court pause. As Myers, J. put it, “I am being invited to find that facts were proven at trial when the jury has already found that those fact were not proven. I cannot do that without undermining the role of the jury as the exclusive finders of fact.” (para 10). Given the low amount of damages awarded in this case, I find the court is put in a similar position here. That is, not only have the plaintiffs failed to satisfy their onus of proof, the matter may well be moot in any event.
Orders
[43] Given all of the above, I make the following orders:
a. Judgment shall be entered. A draft judgment to be directed to me for signing. In the event there is any dispute concerning the wording of the judgment, an appointment may be taken out with me for settlement.
b. The plaintiffs shall pay trial costs fixed at $253,120 inclusive of disbursements and HST.
c. The plaintiffs shall pay all-inclusive costs of $3,500 for the motion heard December 2, 2016.
d. The plaintiffs shall pay all-inclusive costs of $3,500 for the motion heard December 21, 2017.