Citation and Court Information
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ABRAMS, MATHESON AND RYAN BELL JJ.
BETWEEN:
IMELDA DEBRUGE
Plaintiff (Appellant)
(Respondent by Cross-Appeal)
– and –
DIANA L. ARNOLD
Defendant (Respondent)
(Appellant by Cross-Appeal)
Counsel:
Andrew A. Iacobelli, for the Plaintiff (Appellant) (Respondent by Cross-Appeal)
Linda Matthews/Asher Honickman, for the Defendant (Respondent) (Appellant by Cross-Appeal)
Heard at Oshawa: January 24, 2018, followed by written submissions
DECISION ON APPEAL and cross-appeal
ABRAMS, J
Introduction
1This is an appeal by the plaintiff (appellant in the main appeal) of the decision of Edwards J. on what is colloquially known as a “threshold motion” brought by the defendant (respondent in the main appeal), following a three week jury trial in a motor vehicle accident case.
2Additionally, there is a cross-appeal brought by the defendant on the issue of whether the trial judge erred by excluding the decision on the threshold motion from the costs analysis.
3In his decision on the threshold motion, dated December 10, 2014, the trial judge found that the appellant’s injuries did not pass the statutory threshold articulated in s. 267.5 of the Insurance Act, as amended, s. 4.2(1) (“O.Reg. 461/96”). In the result, the trial judgment included the award of $8,300 for future housekeeping expenses only.
4In a separate endorsement, dated January 23, 2015, the trial judge awarded the appellant partial indemnity costs fixed in the amount of $40,000, $32,000 for disbursements, plus HST.
5This case is governed by what is often described as the “Bill 198” regime. Under O.Reg. 461/96 and its various amendments, the appellant bears the onus of demonstrating that she suffered a permanent serious impairment of an important physical, mental or psychological function.
6Pursuant to s. 4.3 of the Regulation, the appellant bears the onus of proving a threshold impairment by adducing evidence from one or more physicians who are trained and experienced in the assessment and treatment of the type of impairment alleged. The section also requires the appellant to adduce other evidence corroborating the physician’s evidence as to the change in the function alleged to be permanent and serious.
7For the following reasons, I am not persuaded that the trial judge committed an error such that we should interfere with the decision below in the main appeal.
8On the cross-appeal, however, this court recently released its decision in Saleh v. Nebel, 2018 ONSC 452, which I conclude is dispositive of the cross-appeal. Put simply, the trial judge erred in law by deciding the entitlement to costs without regard to the threshold determination.
Brief Background
9After a three week jury trial, the jury returned a verdict of $75,000 for general damages, nothing for income loss, $8,300 for future housekeeping and $5,000 for future medical rehabilitation expenses. As a result of the threshold motion, the appellant’s claims for general damages and future medical rehabilitation expenses were eliminated and she obtained a judgment of $8,300 for future housekeeping expenses.
10In adjudicating the threshold motion, the trial judge found that the appellant had failed to adduce credible medical evidence that she had in fact sustained a permanent serious impairment of an important physical function as a result of the accident.
11Dr. Fern, the expert witness put forward by the appellant on the threshold motion, opined that the appellant had sustained a threshold impairment by virtue of her chronic pain condition, a diagnosis that lay outside Dr. Fern’s expertise. Further, the trial judge found that even if Dr. Fern had been qualified to give this opinion evidence, which the trial judge found that he was not, the evidence would have been rejected on the basis that Dr. Fern was not a fair, objective and non-partisan witness. The trial judge found that Dr. Fern was an advocate. Moreover, the trial judge found that Dr. Fern’s opinion regarding the severity of the appellant’s neck, back and shoulder pain was completely at odds with what the appellant had reported to her own treating practitioners.
Issues
12Although initially advancing seven grounds of appeal, in oral submissions counsel for the appellant focused on the following three issues:
Did the trial judge err by misapprehending certain pieces of evidence?
Did the trial judge err by putting the appellant to a higher burden of proof by requiring that evidence on the threshold issue comes from a treating physician?
Did the trial judge err by granting the defendant’s threshold motion after receiving a jury verdict which implicitly concluded that the plaintiff’s injuries and claims exceeded the threshold?
Standard of Review
13The parties agree that the standard of review for this appeal is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 – for questions of law the standard of review is correctness; for questions of fact, palpable and overriding error; and for questions of mixed law and fact, the standard for that question is correctness. Where the issue is the application of correct legal principles to the facts, the standard is palpable and overriding error.
Threshold – The Test
14The parties agree that the trial judge correctly stated the test for the threshold motion at para. 44 of his reasons for decision, where he said as follows:
At the completion of the plaintiff’s evidence and after the defence had begun its case, I raised with plaintiff’s counsel a concern that he had not complied with s. 4.3 of the Regulation, which states:
A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
Specifically, section 4.3 goes on in subsection 2 to require the plaintiff to adduce evidence of at least one physician that explains: (a) the nature of the impairment; (b) the permanence of the impairment; (c) the specific function of the impairment; and (d) the importance of the specific function to the person.
As well, the evidence of the physician who is called to comply with the provisions of the Regulation must provide a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
Analysis
15The appellant contends that the trial judge misapprehended certain evidence resulting in findings of fact that are therefore contested on this appeal. I conclude that it was open to the trial judge to come to the conclusions that he did about the evidence and no palpable and overriding error has been demonstrated by the appellant. Significantly, it was ultimately conceded by plaintiff’s counsel that Dr. Fern was not qualified as an expert in the field of chronic pain, as set out in para. 46 of the reasons for decision, and the trial judge also made a finding of fact that Dr. Fern was:
…an advocate who believed he was in a better position to assess the plaintiff in the one hour time period that he spent with the plaintiff, than those medical practitioners who had seen her in the intervening time period from the time of the accident through to trial.
16Having reviewed the contemporaneously prepared clinical notes and records of the practitioners who testified, it was open to the trial judge to come to the conclusion that he did. Given the findings with respect to Dr. Fern, the appellant failed to discharge the onus of proof on the threshold motion in any event.
17Further, I do not agree that the trial judge put the appellant to a higher standard of proof by requiring that evidence on the threshold issue come from a treating physician. This is a misreading of his reasons. Rather, the trial judge merely questioned the strategic decision taken by the appellant in this case to rely entirely upon Dr. Fern to prove the threshold issue when, in the result, Dr. Fern presented as an advocate and Dr. Fern’s evidence was rejected by the court. He said, inter alia:
Doctor Fern was retained on behalf of the plaintiff by her lawyer. A conscious decision was therefore made by the plaintiff, through her lawyer, to call the essential evidence concerning the threshold as required by the Regulation through an expert who had seen the plaintiff for little more than an hour. One might rhetorically ask the question as to who is in a better position to deal with the evidence required by the Regulation; an expert who has been retained by the plaintiff or the plaintiff’s treating doctors.
18In his reasons for decision, the trial judge indicated that where a medical legal expert “like Dr. Fern” is retained to provide the only opinion evidence on the threshold it would be a rare case where that opinion evidence would carry the day, particularly when that opinion evidence conflicted with the evidence of the treating physicians. This observation did not shift the burden of proof.
19Thus, the problem was not brought about by calling evidence in support of the threshold from a retained expert as opposed to a treating physician. Rather, the problem arose from proffering evidence solely through a retained expert whose evidence was ultimately rejected by the court.
20Finally, in my view, the trial judge committed no reviewable error by granting the threshold motion after receiving the jury verdict which the appellant submits implicitly concluded that the appellant’s injuries and claims exceeded the threshold. The trial judge addressed the issue squarely in his reasons by specifically referencing the Court of Appeal’s decision in Kasap v. McCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, which stands for the proposition that a jury’s verdict is only one factor that the trial judge may consider, but is not bound to consider, in coming to his or her ultimate conclusion regarding the threshold motion. To that end, the Court of Appeal said, inter alia:
The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge.
21Admittedly, Kasap was decided under section 266(3) of the Insurance Act, which is commonly referred to as the OMPP regime. However, as the trial judge reasoned, the Legislature has had at least three separate occasions when it could have stipulated that the trial judge hearing a threshold motion must, before arriving at his or her decision, consider the implications of the jury’s verdict before deciding whether the plaintiff’s injuries pass the threshold. The Legislature having made no such amendment, the trial judge concluded that Kasap remains good law. Further, the trial judge reasoned that:
This is more particularly the case in determining a threshold motion under what is now described as Bill 198. This is because the plaintiff is required to call evidence of a medical practitioner that explains the nature and permanence of the impairment, the specific function of the impairment, and the importance of that factor – see Ontario Regulation 381/03 and section 4.3(2)…
22The appeal is therefore dismissed.
Cross-appeal
23The cross-appeal of the costs order is affected by the recent decision in Saleh v. Nebel. That decision was released shortly after oral argument on this matter, and the parties were therefore given the opportunity to make written submissions on the import of that decision.
24Leave to appeal the costs order is required, and is granted sparingly: Saleh v. Nebel, at para. 14. However, leave is appropriate if the trial judge made an error of principle, which applies here. Leave to appeal is therefore granted.
25The cross-appellant submits that it is presumptively entitled to costs as the successful party, and relies on a Rule 49 offer to settle in the amount of $50,000 plus interest and costs. The cross-appellant submits that she is entitled to costs on a partial indemnity costs from the date of her settlement offer pursuant to Rule 49 because her offer exceeded the judgment obtained by the plaintiff of $8,300.
26In short, the cross-appellant submits that the trial judge erred in law in failing to take into account his decision on the threshold motion when determining the significance of the offer to settle. The recent decision in Saleh v. Nebel addresses that issue, in the cross-appellant’s favour, at paras. 96 - 109. In doing so, the Court considered the cases that were the focus of the decision below: Rider v. Dydyk, 2007 ONCA 687 and Dennie v. Hamilton (2008), 2008 5964 (ON SC), 89 O.R. (3d) 542 (S.C.). I agree with and adopt the reasoning of the Divisional Court in Saleh v. Nebel. The decision on the threshold motion should have been taken into account. It was an error of principle not to do so.
27The cross-appeal is therefore granted and the issue of costs of the trial is sent back to the trial judge to be determined in accordance with this Court’s decision in Saleh v. Nebel.
28Costs of this appeal and cross-appeal shall be to the defendant, in the total sum of $20,000, all inclusive.
ABRAMS J.
I agree. ______________________________
MATHESON J.
I agree. ______________________________
RYAN BELL J.
Released:
CITATION: Debruge v. Arnold, 2018 ONSC 2357
COURT FILE NO.: DC-17-00001020-0000
DATE: 20180419
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISION COURT
ABRAMS, MATHESON AND RYAN BELL JJ.
B E T W E E N:
IMELDA DEBRUGE
Plaintiff (Appellant)
(Respondent by Cross-Appeal)
– and –
DIANA L. ARNOLD
Defendant (Respondent)
(Appellant by Cross-Appeal)
DECISION ON APPEAL AND CROSS-APPEAL
ABRAMS J.
Released: April 19, 2018