Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 224
FSCO A15-006454
BETWEEN:
J.C.
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Arbitrator Benjamin Drory
Heard:
In-person at ADR Chambers on May 10, 11, 12, 15 & 16, 2017
Appearances:
Mr. Jeffrey W. Strype and Ms. Amanda Neves participated for J.C.
Mr. Jonathan Barr and Ms. Jessica Kuredjian participated for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, J.C., was injured in a motor vehicle accident (“MVA”) on November 7, 2011 and sought accident benefits from State Farm Mutual Automobile Insurance Company (“State Farm”), payable under the Schedule.1 The parties were unable to resolve their disputes through mediation, and the Applicant, through her representative, applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c. I.8, as amended.
I have anonymized the Applicant throughout this decision owing to the sensitive nature of the information disclosed, much of which was disclosed by the Applicant in situations with expectations of confidentiality.
The issues in this Hearing are:
Is J.C. entitled to Income Replacement Benefits (“IRBs”) at a rate of $383.10 per week for the period from February 19, 2015 to date and ongoing?
Is J.C. entitled to interest for the overdue payment of benefits?
Is either party entitled to its expenses of the Hearing?
Result:
J.C. is not entitled to IRBs for the period from February 19, 2015 to date and ongoing.
J.C. is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code (“DRPC”).
EVIDENCE AND ANALYSIS:
BACKGROUND
The sole issue in this case is whether the Applicant is entitled to IRBs for the period from February 19, 2015 to date and ongoing, which is entirely beyond the 104-week mark from the November 7, 2011 MVA. At 8:58 pm on November 7, 2011, the Applicant was the sole occupant of a 2008 Toyota Yaris travelling eastbound on Gerrard St. E. in Toronto, when she attempted to drive around a stationary streetcar and rear-ended a parked, unoccupied car in the right lane.
The Applicant was 31 years old at the time of the MVA. The Applicant submitted that she is presently homeless, with a history of severe drug abuse including heroin. The Applicant’s counsel advised that the Applicant was incapable of attending the Hearing due to her psychiatric condition and physical deterioration. The Superior Court issued an Order dated September 26, 2016 appointing the Applicant’s mother, L.C., as her Litigation Guardian.
Pre-MVA, the Applicant was attending regularly for treatment at the Centre for Addiction and Mental Health (“CAMH”) in the Dialectical Behavioural Therapy (“DBT”) program, which is a program for people with Borderline Personality Disorder (“BPD”).
The Applicant takes the position that the MVA resulted in injuries including an acquired brain injury, and therefore she meets the test for post-104 IRBs. The Insurer paid the Applicant IRBs in the amount of $53,351.89, through February 18, 2015, when they were terminated. The Applicant’s counsel submitted that a combination of psychological disorders, cognitive impairment, and physical impairments significantly compounded the Applicant’s ability to care for herself; she eventually began living on the streets and is not currently job ready. He submitted that the Insurer’s assessor’s own opinion on November 9, 2014 was that the Applicant was “unemployable”.
The Insurer’s position is that the Applicant’s pre and post-MVA history support that she was unable to work before the MVA due to significant mental health problems and drug and alcohol addictions, and the MVA was neither the cause of, nor the contributing factor to her inability to work. Before the MVA the Applicant was regularly using cocaine and alcohol, and other drugs including ecstasy, speed, and GHB. The Insurer asserted that the Applicant had said herself these things prevented her from being able to do her jobs. The KM employment records show the Applicant didn’t leave on good terms, but rather was fired because she could not do her job.
The Insurer submits the MVA was best understood as a suicide attempt, done purposefully. The Applicant had suicidal ideations escalating regularly in the two years before the MVA. The MVA did not derail her life, but rather continued it—merely a link in the chain of events. At the time of the MVA, the Applicant was already incapable of working.
The Insurer asserted it regularly tried setting up Insurer Examinations (“IEs”) before the 104 week period, but was advised the Applicant was in the hospital, and in good faith the Insurer paid the IRB in the interim. However, there was never an acquiescence that the Insurer accepted her eligibility. In fact, until it received the medical records at the two-year mark, the Insurer had not been aware that the Applicant had any pre-MVA issues.
EVIDENCE
Applicant Witnesses
L.C. (Applicant’s mother and Litigation Guardian)
Examination-in-Chief
L.C. advised that until the night before the Hearing she did not know where the Applicant was, and would go months without knowing where she is; the Applicant has no phone and does not stay in one place. It was her opinion that the Applicant would fall to pieces in the Hearing environment.
L.C. stated that nothing has been easy for the Applicant since her dad died (when she was 11). She got by with a lot of supportive counselling. The Applicant suffered from depression, and took anti-depressants on and off, however, the Applicant was an adult and she couldn’t supervise her.
With respect to the pre-MVA employment, L.C. advised that the Applicant achieved employment in 2009 with Canada Health doing in-home assessments. She left because she didn’t have a home office, no peers, and was not getting support and had to do all her work in coffee shops. At Austin Rehab she did higher-level assessments; it was more team-based work, with case conferences. She loved her boss and her job. However, the company shut down in 2010 due to changes that were happening to the accident benefits regime at that time.
The Applicant worked at KM Medical Management in 2010 and 2011. L.C. said that, the Applicant told her she was having a hard time getting all her work done at KM, and had told her employer about it. After that, she worked as a server in a tent, at a food stand at Cirque de Soleil just to get some money to live on to pay her rent. L.C. was unaware of the Applicant having any other jobs before the MVA.
L.C. was unaware of the Applicant using drugs in 2011; she only saw beers out in her apartment. L.C. did not know what happened to the Applicant’s relationship with her boyfriend Colin; she only knew that it ended in 2011. The breakup caused depression problems for the Applicant because she was sad it didn’t work out. An old high school friend of the Applicant’s (Cordelia) got involved somehow. The Applicant felt Cordelia took Colin away from her, and L.C. heard about that for a long time. She didn’t know if it changed any of the Applicant’s habits; she was lonely.
On the night of the MVA, L.C. got a call from East General Hospital (“EGH”). The Applicant told her she was driving along Gerrard at night, and tried passing a streetcar but hit a parked car. The police attended, and were concerned it might have been a suicide attempt. The Applicant was very distraught and disoriented at the hospital. The Applicant denied it was a suicide attempt, and told L.C. she was wearing a seatbelt, which she believed.
The Applicant did not live with L.C. after the MVA. She was ultimately evicted from her apartment for not paying rent; she had no job and her EI ran out. She couch-surfed for some time. L.C. testified the Applicant was very teary about losing the car because she loved the car and needed a car for occupational therapy (lots of home assessment work).
L.C. said the Applicant has been in some physical altercations since the MVA. The Applicant has been living in the shelter system; she would be totally dirty, and lived in a ravine. She spent five days in hospital for sepsis because of unsanitary conditions. She also tried to strangle a random guy because “he could read her mind and was watching her”.
L.C. advised the Applicant has not been employed since the MVA. She can not get up in the morning, or keep track of the most basic things in her interest. Nobody would hire her.
Cross-Examination
L.C. conceded that the Applicant was sexually molested by her older brother when she was 7 years old, but was never put in treatment for that issue. L.C. denied having a “suicide pact” with her daughter. Everyone in the family agreed they would never commit suicide given how much damage it leaves. L.C. said the Applicant told her it wasn’t true that the MVA was a suicide attempt. She knew nothing about the suicide allegation initially, and did not know if it was intentional. She did not know what her son S.C. (the Applicant’s brother) told police, and S.C. could believe what he wants.
The Insurer counsel put to L.C. a series of entries from the Applicant’s progress notes obtained from the CAMH, for her understanding of the entries. L.C. commented to the extent of direct knowledge. Selections from among the notes discussed are reprinted over the next 23 pages. The Insurer’s purpose in submitting the notes, appeared to be to contrast the Applicant’s life before versus after the MVA, as well as portray the extent of L.C.’s knowledge of the Applicant’s life.
The first entry was by Carmen Wiebe, MD, FRCPC, dated November 29, 2011:2
At 12:03 pm today I received a call from L.C., J’s mother, who requested that I call her, stating J is a danger to herself others and needs to hospitalised.
At 1:53 pm I received another message from J’s mother. Stated the car accident had involved J intentionally driving her car into the back of another car; a police officer had been so concerned that he visited J’s mother personally to investigate. “You need to know that she is actively trying to kill herself and other people, and talks about it daily.”
CAMH entry by Dr. Wiebe dated on January 2, 2012:3
Voicemail received from J’s brother in Winnipeg, S.C. Said J has now been in police custody three times, deliberately smashed her car and made threats against her own life and others, but “nothing’s been done”. Requested a call back.
L.C. said she did not know anything about drug use in the two years before the MVA. She said that what the Applicant shows her is not necessarily the full picture; and the Applicant is ambivalent towards her, and she agreed the Applicant could be manipulative.
L.C. said she was not aware that the Applicant was on EI sickness benefits before the MVA. She was not helping support her after her dismissal from KM, but that the Applicant had enough to get by.
CAMH note from Michael Weyman, MSW, RSW dated January 22, 2009:4
Pt. reported: … (4) she has been using half a gram of cocaine per weekend and 8-10 drinks per week; (5) she would like to abstain from cocaine and moderate her alcohol consumption; (6) she is interested in non-12 step approach to substance treatment;
Risks identified: She endorsed passive SI (suicide ideation) with vague plan that she could take OD of seroquel.
CAMH note from Mr. Weyman dated February 11, 2009:5
Risks identified: Pt identified chronic SI but denied suicide plans or intent. She was future oriented speaking about job search and coping activities. She recently cut her arm once superficially to alleviate strong emotion.
February 17, 2009, Mr. Weyman:6
Pt reported: (1) she was offered and accepted new OT job at Austin Rehab during job interview last Thursday; (2) she used cocaine on weekend and is feeling badly about her continued use;
L.C. said she was surprised about this 2009 cocaine use; she only found out about cocaine use several years after the accident when her sister-in-law walked in on J.C. using cocaine at a family event on Christmas.
April 24, 2009, Kam Balchand, MD, FRCPC:7
With respect to substances, J reports a history of using cocaine, ecstasy, alcohol, marijuana, and other party drugs. She went into treatment in Bellwood in 2001, was sober for 3 months.
Her relapse was due to social isolation. ... All through school, she felt socially isolated, ignored. ... She did not fit in at school, nor did she fit in with her AA group. With her social isolation, she felt that she lost her identity.
With respect to previous diagnoses, she states that she was diagnosed with depression and with trauma and substance abuse by her psychiatrist. She revealed that she has also been diagnosed with borderline personality by a social worker who did not take the time to properly assess her. She hates the diagnosis of borderline personality.
April 24, 2009, Serena Coy, MSW, RSW:8
J arrived ½ hour late for her scheduled appointment. She reported 2/7 days of cocaine use last week. … Although she identifies being lonely when she is using she also reports that her past experience of extreme social isolation in recovery keeps drawing her back to using.
June 12, 2009, Evelyn Pancho, RN:9
Presently suicidal feeling hopeless, doesn’t want to be here, and depression becoming worst and worst. She also mentioned that she feels suicidal every 3 days. … Snort cocaine last used last night. Same with alcohol 5 drinks time 2 weeks and last drink last night.
June 13, 2009, Albert Wong, MD, FRCPC:10
Felt isolated last year because broke contact with substance-using friends and did not feel accepted at AA. Also didn’t make friends at school OT program. Now has begun seeing old friends and using cocaine again. Used maximum of 0.5g per session, 3x per week. Would like to be able to see friends, drink moderately and not use any cocaine. Feels tired when drinking and cocaine provides more energy and mental clarity.
Suicidal thoughts are prompted by loneliness and feeling that there’s no way to improve her situation (social circumstances primarily). Driving recklessly and looking-up possible drugs to “OD on”.
June 15, 2009, Julie Levene, RN:11
Patient expressed frustration with “AA and NA: I can’t stand abstinence-based programs.”
June 15, 2009, Marina Golts, MD, FRCPC:12
Need to keep job to pay for apt and bills. … Pt hates her job, c/o lack of time to self care. Discussed decreasing her work hrs to 4 days per week. Encouraged to speak to employer about this.
June 17, 2009, Jan Malat, MD, FRCPC:13
Feels AA doesn’t work anymore for her, but doesn’t know how to do sobriety either. Feels she can’t have relationships – feels she connects better with people who are flawed. Last use of cocaine last Thursday. Also mushrooms and K last month x1. Alcohol when tired, then goes to coke.
July 3, 2009, Dr. Malat:14
Celexa increased to 80 mg x 3 weeks, feeling less depressed and less suicidal used E Saturday (rarely does it), and cocaine week ago x1, reduced use. Ongoing social anxiety, feels very transparent to others, feels like they are reading her thoughts.
Working less hours than she should, 10 hrs per week, behind in her reports, having hard time concentrating in public felt too anxious, and at home falls asleep, but avoids it because feels like going back to school – does not like writing so much in her job.
L.C. stated that she didn’t know J.C. was only working part-time hours at that point.
July 13, 2009, Dr. Malat:15
Knows she needs to return to AA, but doesn’t like the way they force identity on her as alcoholic and fear-based, since loneliness drives her to use. … Motivated to be abstinent again, but afraid of losing peer group, impact on identity.
October 30, 2009, Ms. Coy:16
Client arrived ½ hr late for scheduled appointment. Client started session identifying need for a contract to keep her accountable to show up to my appts. on time. Upon further exploration, client admitted she is late for all her appts. not just mine, despite her sense of responsibility to her clients and employer. … Client reports using alcohol and cocaine on average 2x/week (1 weekday)
November 10, 2009, Dr. Malat:17
Arrived late for appointment, a chronic problem, brought up at work.
November 26, 2009, Linda Cartain, RSSW:18
Reported that alcohol is her gateway drug to use cocaine. Stated that she uses it twice is a week. Said she is seeing Dr. Malat and has a prescription for antabuse but hasn’t filled it. Almost lost her job yesterday due to being late and missing work because of her using.
December 9, 2009, Ms. Coy:19
Client arrived on time for her scheduled appointment. She reports 11 days cocaine free. … Client reports feeling more “grounded”. She has achieved clean time by avoiding using friends and expanding her social network.
January 25, 2010, Ms. Coy:20
Client arrived 25 minutes late and apologized for sleeping in. Client continues to use cocaine 2x/week. … Client expressed frustration and anger at her mother. According to client “everytime I start to get a little better she makes everything about her, she doesn’t want me to get better”. … She reports feeling “violated and invaded” by her mother’s intrusive questioning and over identification with client’s emotions and life experiences. Client voiced not wanting to see her mother at all and terminating family therapy.
March 15, 2010, Ms. Coy:21
Client reported using MDMA and alcohol on the w/e. She continues to use cocaine/alcohol 2-3x week. In addition, client cut herself in an episode of self harm a behaviour she has not engaged in since adolescence. …
Client considering filling her Rx of Antibuse, although still ambivalent.
March 23, 2010, Ms. Coy:22
Client arrived 25 minutes late for her session. Client apologized profusely for being late. This writer spoke with client about the limited usefulness of ½ an hour of therapy every 2 weeks.
March 29, 2010, Ms. Coy:23
Client reports an increase in her social and general anxiety. … Client’s brother and his fiancée are in town and staying with client’s mom. Client has noticed what she describes as her PTSD (resulting from her father’s suicide and her brother’s sexual interference from age 8-10) symptoms surfacing and highlights that this occurs when she gets sober again this was normalized.
June 29, 2010, Ms. Coy:24
Client remains ambivalent about working on substance abuse despite recognition that it is negatively impacting her work, interpersonal relationships and mental/physical health. Client fears a total loss of “self” in recovery as this is how she remembers her last period of abstinence. … Client described some aspects of the personality she has when using—creative (learning guitar, sings in the shower), “quirky” (silly sense of humour, “I am a goof”), sense of fashion/personal style.
October 8, 2010, Ms. Coy:25
Client attended her apt. 20 minutes late. … Client disclosed that a few days after our last session she went on a 5 day cocaine and alcohol binge. Client became dysregulated after a discussion with her b.f. Colin asking for him to define the relationship.
November 2, 2010, Ms. Coy:26
Client shared her worry thoughts about Colin “I am afraid he is going to leave me”, client’s fears he will become “fed up” with her drug and alcohol use and mental health issues (although client has not shared them with him).
Client was laid off from work this week. Client did not seemed concerned—eligible for EI, hopeful that it can be a new beginning, was unhappy in job.
January 12, 2011, Shira Green, MSW, RSW:27
She described the problems she is currently having in her relationship with her partner. … She also indicated that she is unhappy at work and is considering a new career. She stated that these stressors have contributed to suicidal thoughts. She described herself as being chronically suicidal and reportedly researches ways to kill herself on the internet.
January 12, 2011, Ms. Coy:28
Client was ½ hr late for her session. Client reports that she used cocaine on the last day of her trip in Mexico and had an adverse reaction.
L.C. advised that she was there with J.C. in Mexico; she couldn’t believe she used cocaine there, that was shocking to her. She observed her studying that weekend. These behaviours reminded L.C. of her own father, who she described as a “high-functioning alcoholic”.
February 1, 2011, Ms. Green:29
Ms. C indicated that she would attend. She then called at 11:30 when the appointment was scheduled to begin and indicated that she is having a hard time getting out the door. She described feeling depressed. She indicated that she is beginning to feel agoraphobic.
February 3, 2011, Ms. Green:30
Continued to discuss her substance use goals. … She explained that she is ambivalent about abstinence given that her 6 years of sobriety while in school for occupational therapy were miserable. She indicated that she got sober with the help of AA however was more miserable when sober. She has reportedly used substances consistently for the last 2 years and her use has escalated more recently.
February 9, 2011, Ms. Coy:31
Client arrived 30 minutes late to her apt. … [C]lient has a hard time going to work, attending counselling appts. and going to the gym. She reports sleeping 16-18 hrs a day. Client has been drinking daily and using cocaine weekly.
March 1, 2011, Robert Cardish, MD, FRCPC:32
She states that for the last 6 weeks she has been more depressed than she has felt in the last 10 years. The last time she felt this depressed was when she made her only suicide attempt. Currently she has symptoms of hypersomnia (16 hr/day vs. normal of 10), feeling sad more than half the time, difficulty with concentration, decreased energy and thoughts of suicide. Has thought that if she were to kill herself she would use a gun.
April 6, 2011, Ms. Green:33
She repeatedly catastrophized about her life, specifically that Colin will leave her and she will be completely ostracized.
April 12, 2011, Carmen Wiebe, MD, FRCPC:34
Said she was feeling “very suicidal”. Said she had to return her printer to her workplace today and the reports have to be finished by Friday—thinks she is losing this job. (But did add that she looked up EI and believes she would qualify for disability so would not be destitute if lost the job.)
She explained her three potential suicide plans (hanging – has no rope; OD on mother’s medications at mother’s house; drive car into wall) and committed to not taking any steps.
April 29, 2011, Dr. Wiebe:35
In December of 2001 she started AA and got sober, and by February 2002 she returned to university part-time. But states because of AA she lost her identity and her social network.
First job was for COTA in CCAC for five months. Did not like it due to long hours and feeling underpaid (many hours of work were unpaid for, so it amounted to about $20/hour). Until November 2010 she worked for 1.4 years in a business similar to her current position, very isolated and requiring a lot of report writing. She was laid off and got her current job two weeks later. …
Stopped getting paid at this job in February 2011 because she was so far behind with her reports. Has been struggling with severe low mood, suicidal thoughts, low energy, low motivation, oversleeping since then.
May 11, 2011, Ms. Green:36
With regard to her suicide ideation she explained that she is worried that her boyfriend will leave her and believes there is no point in living should he leave.
May 18, 2011, Ms. Green:37
Client denied any intent to kill herself when she put the exercise elastic around her neck. She described that the prompting event was receiving a good night text from her boyfriend that did not include “I love you”. She was already vulnerable because she had used cocaine on Sunday night. She was also already feeling insecure about her relationship.
L.C. said she never saw cutting on J.C.’s arms and legs before the accident, and only saw it after the accident. She said suicidal ideation is a stress release if a person like J.C. imagines it; it doesn’t mean they will actually do it.
Mr. Barr asked L.C. when she became aware that Cordelia was trying to steal Colin? L.C. said it was when J.C. and Colin broke up. She couldn’t identify exactly when it was. J.C. and Cordelia had been friends since they were small; L.C. recalled J.C. being very angry at Cordelia—she felt betrayed by an old friend. J.C. eventually stopped talking about Colin, but L.C. didn’t know when—J.C. spoke about Colin acutely for a couple of months after the breakup. L.C. couldn’t say if it was a long, protracted breakup with Colin.
May 25, 2011, Ms. Green:38
She reported impulsively putting a lamp cord around her neck the night before the break up while intoxicated. She removed the cord before pulling on it. She described this self harm as punishment when she was frustrated and angry at herself. She consequently felt worse about herself and more out of control.
June 21, 2011, Harriet Weaver, M.Ed:39
Client reported being in emotion mind stating that she had thoughts of driving into a wall or going and lighting her ex-boyfriends house on fire. Client stated that she wanted help not engaging in either of these above named behaviours.
L.C. stated she didn’t know of these thoughts J.C. had, and never knew of her expressing suicidal ideations prior to the accident.
July 13, 2011, Ms. Green:40
Client arrived on time. She stated at the outset of the session that she’s losing her mind and thinks she needs to be institutionalized. … She reportedly has been drinking daily and used cocaine approximately 8 times over the last two weeks. She stated that last night she drank 8 beers, used ½ gram of cocaine, went to Colin’s at 2:00am and had sex with him. She now feels ashamed, believes that he has lost all respect for her and reported losing respect for herself. … Client expressed that she is beginning to think that she needs to work on abstinence from drugs and alcohol. … Client expressed that it is difficult to accept that her substance use is problematic.
July 18, 2011, Dr. Wiebe:41
J left me a voicemail this morning stating she is “not doing well, really struggling”, wondering whether she should be an inpatient. … Stated she was not eating or sleeping, not able to function. … Thought about going straight to the ER instead, as both she and her mother think she should be admitted.
July 18, 2011, Dr. Wiebe:42
[E]ntered the office stating she is “the worst person alive”. … She said she doesn’t deserve to be alive, is “losing my sanity” and has “no boundaries”. She is also struggling with the fact that she does not have work or “anyone safe in my life”, and feels “humiliated in every single area of my life”. Also feeling disoriented and like “I don’t make sense”. She states that yesterday she was at a family BBQ in the afternoon and was apparently “wasted” so her uncle drove her home.
She recalled having two suicidal thoughts yesterday (before using), of imagining herself jumping in the subway or hanging herself, but was not clear on whether this was more intense than usual. … She also began to doubt whether she would be able to work if she did get a job.
August 11, 2011, Ms. Green:43
Client reported hitting herself numerous times on Monday. … She felt ashamed about sleeping with Colin a few weeks ago and began judging herself harshly for the behaviour. She thought that she needed to be punished and hit herself while swearing at herself. … Throughout the session today client expressed that losing Colin has been one of the most difficult experiences in her life.
August 16, 2011, Dr. Wiebe:44
Currently exquisitely miserable because of being broken up with Colin – feels they were meant to be together and her life is empty without him. Being with him was the first time she felt OK since her father died.
August 17, 2011, Ms. Green:45
Highlighted that while she may be morally opposed to driving while impaired, and does not want to do it again, when she starts using she engages in impulsive behaviours and becomes disinhibited. … Client stated that the more she thinks about it, the worse she feels about herself and she worries that she would engage in reckless driving to punish herself if she saw it on her diary card daily.
Client stated that she is at a point where she needs to get a job. … She agreed that once she has one drink it is more difficult for her to access wise mind and know when to stop.
L.C. said J.C. was afraid of losing friends if she abstained from drinking.
August 25, 2011, Dr. Wiebe:46
She said she was not at group because she wasn’t in a state to do anything because her life is meaningless. … Said she “didn’t think she was going to be on the planet much longer” but said she wasn’t going to kill herself today. Confirmed she is no longer committed to staying alive. She said “no one understands how bad it is” to lose Colin.
August 22, 2011, Dr. Cardish:47
States she has no identity now that she is not in a relationship. This is painful, associated with urge to self harm.
August 26, 2011, Dr. Wiebe:48
According to the file, the clonazepam/Gravol OD of June 26, 2001 was not her only overdose or suicide attempt. Around June 1, 2001 she described having intended to die from having a friend inject an unknown “lethal dose” of heroin. Also, on November 13, 2000 she presented to the ER after admitting to taking 8 clonazepam 0.5 mg (to try to make suicidal thoughts go away), however her mother reported J had picked up her prescription the previous day and there were 18 pills missing.
In her late teens, several interviewers elicited a history of mood episodes, particularly hypomania. … I was unable to find any notes corroborating a convincing, sustained problematic mood change in either direction. It seems most likely to me that her experiences of ‘hypomania’ are agitation and anxiety-related, and her ‘depressions’ are periods of being overwhelmed with emotions such as shame, anger and grief. Both are no doubt heightened by her substance use. I believe that rather than meeting criteria for an Axis I mood disorder, she suffers from intense mood reactivity, especially to interpersonal stressors involving loss (eg mother or therapist going on holiday) or intimacy (eg increased closeness with therapist or boyfriend).
I now think it is unlikely that J is suffering from an incompletely treated or chronic major depressive episode/disorder; rather, that her depressive symptoms are consistent with the affective instability of BPD.
August 30, 2011, Ms. Green:49
She indicated that her “soul is dying” without Colin in her life, she is not moving forward needs a job.
August 31, 2011, Ms. Green:50
Client reported cutting her arm with a key on Monday. She reported feeling more angry following the self-harm, wanted to be more destructive, told herself that she needs to calm down”
L.C. was unaware of J.C. expressing a desire to hurt herself to her before the accident, but she was aware of such afterward.
September 29, 2011, Ms. Green:51
Writer received a message from a social worker at the Toronto East General stating that client is in hospital, and indicating the client would miss her appointment with writer today.
Client reported feeling betrayed and abandoned by Colin. … [R]ealized this weekend that she has stopped being able to function. She reportedly stopped cooking, being with friends, jogging, etc. Client stated that all of the issues she struggles with have come up for her as a result of this break up.
October 5, 2011, Ms. Green:52
She reportedly told staff at Toronto East General that she has thoughts of suicide from time to time and was reportedly put on a form 1. She then went outside for a cigarette and was reportedly put in restraints by security because she had left hospital grounds. She was left in restraints all night and assessed in the morning at which point she was admitted. She described wanting to be hospitalized at that time to get help taking care of her basic needs.
October 6, 2011, Dr. Wiebe:53
She complained about feeling the worst she has ever felt. I noted she has said this before, and wondered if when she feels bad, it usually feels like the worst ever, but she disagreed.
October 12, 2011, Ms. Green:54
Client reportedly punched a mirror on Monday evening. She had used cocaine and drank alcohol prior to this incident. She reportedly went to Colin’s house at night, knocked on his door twice, went home and punched the mirror. … Her knuckles were bloody because she smashed the mirror. She still has not cleaned up her apartment however agreed to start cleaning today in an effort to start taking better care of herself.
October 21, 2011, Dr. Wiebe:55
She said she regretting meeting with [Colin] because she lost even more self-respect. Broke down in sobs stating she was suicidal, wanted to go to his place and scream at him or hurt him and Cordelia. “I don’t know what to do”, “there was no point going on”, “I’m not going to be here very much longer”, etc. Felt DBT was not enough support but didn’t think hospitalization would help.
November 1, 2011, Dr. Cardish:56
“I can’t stop hitting myself”, has been hitting head with bottle as recently as a minute ago.
November 2, 2011, Dr. Cardish:57
Feel extreme psychological pain (over 100%.) Feels she has been betrayed by her ex, and by all her friends. She has no life, is unable to bear this pain. Initially requires much coaching to focus on skills to use now.
November 6, 2011, Ms. Weaver:58
Client identified that she was very angry and sad and just wanted to die. Client stated that she can not stop thinking about her ex-boyfriend and her best friend betrayal. Client stated that she wanted to get her ex-boyfriend and friends back and die so that they never forget what they have done to her.
When writer asked her specifically if she had a plan to kill herself she reported that she did not but then started to cry and then became angry for feeling so sad and alone.
November 7, 2011 (9:30 am), Ms. Weaver:59
Client stated she was noticing she was ruminating again about her ex-boyfriend. The prompting event had been client calling her ex-boyfriend back after he text her with “XOX”. Client stated that she noticed her feeling of self-respect dropped by calling him after receiving his text.
November 7, 2011 (12:00 pm), Lyndsey Davies, MSW, RSW:60
Client called for coaching. Initially stated that she had ‘decreased my self respect last night’ and described having had sex w/her ex-b/f after texting him and turning up at his house. However, when writer clarified an aspect of this, she clarified that this had actually happened 2 days ago. Reported being in intense pain and feeling high levels of shame b/c her b/f is treating her ‘worse and worse’. Wanted to know what she should do about this ongoing contact.
That was the final note respecting the Applicant’s condition before the November 7, 2011 late-evening MVA. L.C. looked ahead in the notes in front of her and volunteered that she did not see any evidence of the Applicant speaking to CAMH about the MVA at all in the notes immediately following.
The Insurer’s counsel asked L.C. about the Applicant’s physical issues pre-MVA. L.C. said the Applicant calls ambulances a lot. But she was only aware of previous back pain. She knew that the Applicant attended physiotherapy, but it did not help much.
The Insurer counsel returned to the CAMH notes. He started with a note by Dr. Wiebe dated November 9, 2011, which contained no mention of any accident.61 He then referred to a November 15, 2011 entry by Ms. Green, which also did not refer to any accident:62
Client informed writer that she was discharged from the hospital on Friday. She asked for help today with opposite action stating she needs to find a job. She identified feeling afraid of getting a job. She agreed to use opposite action to go to the employment centre today and stated that she will not limit herself to occupational therapy jobs.
She also asked for help with her ruminations about Colin. … She explained that she is holding on because she feels like he is an attachment figure like her dad and unlike her dad, she knows Colin can come back. Reviewed some steps involved in getting to a place of radical acceptance.
Another entry from Ms. Green dated November 15, 2011 states the following, and also does not refer to any accident:63
Can’t get over loss of Colin. Client tearfully stated that she needs Colin back. ... She explained that nothing she does will make a difference without Colin. She initially expressed that she was unwilling to go to the employment centre due to fear however later asked for help to get willing.
A November 16, 2011 note from Ms. Green included the first recount of the accident:64
Client arrived on time. She stated at the outset of the session that she was going to “commit suicide”. She expressed feeling angry that she allowed Cordelia to steal her boyfriend and explained that her life has fallen apart as a result. Client described feeling like an empty shell.
With regard to least week’s hospitalization, client explained that she was in a car accident. She reportedly rear ended a parked car when trying to pass a streetcar on the right. She was reportedly taken to the hospital in an ambulance and currently has whip lash. She was discharged from the hospital and reportedly returned later in the day stating that she did not feel good. She denied expressing any suicidal ideation however was reportedly put on a form 1. She stated that being in the hospital was not helpful and made her feel worse.
Client described not wanting to live if Colin is not in her life.
L.C. agreed that these notes read similarly to the ones that preceded the accident.
November 22, 2011, Ms. Coy:65
Client informed writer that she is “doing really, really badly”. Client’s primary concern was about being unemployed and ‘needing’ a job. Writer inquired about client’s substance use and mood which client avoided answering—“yeah, I really just need a job”.
November 24, 2011, Dr. Wiebe:66
We spoke briefly at break and she mentioned distributing resumes on Queen West for serving.
December 1, 2011, Ms. Green:67
Client reportedly made plans for the weekend to play guitar with a musician friend. She loves playing guitar and has not played for a long time. She also made dinner plans for the weekend and stated she plans to continue looking for work today. She thought it would be useful to call the places on Queen Street where she left her resume to ask to speak to the manager.
January 3, 2012, Ms. Green:68
Returned S.C.’s call following session with the client. He indicated that he and his family are worried that the client may kill herself or someone else. He stated that she has described in detail how she wants to kill Cordelia.
He stated that Cordelia did not steal her boyfriend and that she can’t accept that her own mental state led to the ending of the relationship with Colin. Mr. C indicated that his sister has been involved in the mental health system for over 20 years and this is the worst state he has seen her in. He wondered if she needed to be hospitalized or reassessed stating that other friends and family members think she might be psychotic in addition to having BPD. Mr. C stated that Christmas time was very scary for the family because of the client’s angry behaviours and threats of suicide.
January 27, 2012, Dr. Wiebe:69
Another voicemail from L.C., J’s mother. Wants me to coordinate with the social worker at TEGH. Stated J is on Form 1, had her surgery last night, has nowhere to go in terms of housing. Wants me to arrange for “months and months of psychiatric care” and rehab help. States J has been “pulling the wool over your eyes” all year, has been spiraling, is now worse than she has ever been. Reiterated J cannot live on her second floor apartment with cast, can’t live with mother who is “afraid of her”, recognizes mother is better help not living with her. “CAMH must be able to help her” – needs a rehab hospital, mental hospital, keep her on a Form 1 for two months, “do whatever you have to do.” … “I am counting on you” to help.
L.C. didn’t recall the specifics of the call, and recalled writing a letter instead. But she didn’t assume the doctor was making up any of what was written.
With respect to why L.C. did not want the Applicant to live with her at the time, L.C. said she was afraid of the Applicant. The Applicant had strangled her once, although she did not recall if it was before or after this time. She said the Applicant can be a very scary person at times, and in the cast she was in (due to a knee injury suffered in an altercation with police two days earlier on January 25, 2012), she could not even get to the bathroom the way her house was laid out.
The Insurer introduced a final note, from Dr. Wiebe dated January 30, 2012:70
I then called her mother who picked up. Mrs. C was buying groceries for J whom she said was at home. … About the incident with police, mother said she believed J had been going to the subway platform to jump. Mother found a bag at J’s place containing a hammer, a book called “A Time to Kill” and a hat and other things for disguise. Also mentioned that J has a bit of money – inheritance from her grandfather and was paid out since her car was totalled. Recognizes this may not last long especially since J continues to use cocaine; worried that she will turn to “other things” to pay rent. She asked me why J can’t be committed for a long time “to stabilize”. … She recognized that J was not apparently working very hard on getting better. She said she is getting support from a social worker on being less involved with J, and also attends Al-Anon.
L.C. said the “other things” she was referring to was prostitution. She didn’t want the Applicant to stay with her, and thought she would be better off in a hospital. L.C. said she had to get therapy for herself for her own sanity—she needed to disconnect from the Applicant, and it would not be any good for anyone if she went down the tubes too.
Dr. Zohar Waisman (Psychologist)
Dr. Waisman has Fellowships in Psychiatry and Forensic Psychiatry from the University of Toronto Department of Psychiatry, and developed a 5-week course in Personality Disorders that is part of the core curriculum for clinical clerks at CAMH. He was identified as an expert witness in psychology.
Examination-in-Chief
Dr. Waisman examined the Applicant for the purposes of evaluating if she suffered a catastrophic impairment, but not specifically whether she met the post-104 weeks IRB test. Dr. Waisman said the difference between catastrophic and IRB impairment is catastrophic impairment uses the AMA Guides, which mandates an analysis of the 4 spheres (of activities of daily life)—but those impairments are also important to the IRB test too, because the sphere of adaptability relates to stressors in a work environment.
Dr. Waisman felt there were significant cognitive issues in the Applicant’s evaluation. He asked for a neurological assessment, and then to see the Applicant again; however, the Applicant could not engage and or tolerate the neurological assessment, and eventually became of no fixed address so that she was unreachable. Dr. Waisman confirmed he had wanted the neurological assessment, but still felt he had more than enough evidence to reach conclusions. He also met the Applicant’s mother in November 2016.
Dr. Waisman confirmed he reviewed some of the Applicant’s medical history, including records from CAMH, St. Michael’s, Dr. Betty Hum, CBI, her OHIP summary, the KM Medical Management employment file, and the IEs, including Dr. Hines’ report. The Applicant had a long-standing history of Post-Traumatic Stress Disorder (“PTSD”). Her father committed suicide when she was 11 years old, there was molestation by a family member, and multiple assessors concluded she had BPD. Dr. Waisman said he could comment on features of BPD, but did not actually diagnose it— the Applicant had depression over the years, substance abuse issues (cocaine), and back pain.
It was the doctor’s view that the Applicant had been a highly functional and bright lady despite the above issues and stated, she completed an OT degree at McMaster in 2008, which generates highly-respected professionals. You need to know psychology and science to complete that degree. She worked in areas with vulnerable/brain-injured individuals until 2009.
Dr. Waisman said that people with BPD fear rejection and abandonment. They are vulnerable to effects of trauma; often evidenced through suicidal gestures and chronic suicidality. There is a 40% suicide rate in BPD. The key is knowing when to intervene—i.e., when is something a cry for help vs. an actual suicide attempt? Dr. Waisman was aware that the Applicant tried suicide in 2001. Since then, her suicide ideation has been part and parcel of BPD. Regarding the Applicant’s self-harm behaviour (slashing to the point of bleeding), Dr. Waisman said that for BPDs this creates tremendous relief and emotional catharsis; it is a numbing of their turbulent emotional makeup.
Dr. Waisman said the Applicant made no further suicide attempts until after the MVA. She developed insights into her behaviour with therapists, and tried her best, but then the MVA occurred. She tried to get back to gainful employment and wanted work in the O.T. field.
Dr. Waisman had many concerns about the MVA. The Applicant was in a vulnerable state—she was depressed, there were changes in her life, and her relationship broke down. After the MVA she went into a consistent downward spiral; there was an exacerbation in her depression symptoms. He said that Dr. Bhalerao (neuropsychiatrist) and Dr. Waseem (neurosurgeon) both diagnosed the Applicant with Traumatic Brain Injury (“TBI”), which is a multi-disciplinary disorder.
Dr. Waisman testified about the Applicant’s serious suicide attempt in 2013. He concluded that there was a major exacerbation in the Applicant’s pre-existing conditions that led to this suicide attempt on the subway platform, and showed her depth of despair. He felt the Applicant’s pre-2012 psychological problems were worsened as a result of the MVA, and the Applicant suffered a TBI according to the treating hospital’s doctors.
Dr. Waisman said he respectfully disagreed with Dr. Hines’ conclusion that the Applicant suffered no disability as a result of the MVA. Both him and Dr. Hines only got to see snapshots of the Applicant; he said you cannot ignore multiple assessors from before the MVA, those were essential, and there was a very well-established history at CAMH. Saying the MVA did not contribute at all only focused on a snapshot interview, and was unfair to the patient and ignored the record. You have to be careful relying on one interview—neither he nor Dr. Hines did psychological evaluations.
Dr. Waisman found the Applicant was compromised in the “adaptation” sphere of the catastrophic impairment test. She had depression symptoms, anxiety, and was overwhelmed and unable to cope with stressors. He opined that the MVA had a material contribution that led to the precipitation in her symptoms.
Cross-Examination
Dr. Waisman stated he interviewed the Applicant for 2 hours. He was asked why he initially thought he needed a neurological assessment to be completed before he could issue a report. He said a neurological assessment could identify the area of impairment and comment on it using objective testing.
At first, Dr. Waisman said he read all the CAMH records—he said he reviewed all the documents provided to him from 2008-2013. However, later in cross-examination he contradicted this, and admitted he had not, saying the records were “overwhelming” and it was unfair to say he had made no attempts to do so.
Dr. Waisman said his perception of the Applicant’s mood was that she was depressed and frustrated, and anxious about the future. There were pervasive themes of depression and anxiety. Dr. Waisman was asked why he believed there was an exacerbation, but had not given details. Dr. Waisman said the Applicant tried stepping in front of a subway train in 2013, had lost her O.T. licence, and had interactions with the police. Prior to the MVA she was looking for work, had a driver’s licence, had no interactions with police, and was not wandering aimlessly in the TTC. She had had no suicide attempts since 2001—the suicide attempt on the TTC in 2013 was a significant event.
Dr. Waisman was asked why the 2001 incident constituted a “real” suicide attempt? Dr. Waisman said it was because it was planned, and was the closest she came to a suicide result.
The Insurer’s counsel provided Dr. Waisman with Dr. Wiebe’s note of August 26, 2011,71 which referred to other suicide attempts in the Applicant’s past. Dr. Waisman said BPD individuals have frequent suicidal ideation; the difference is having an intent vs. a plan. The only overdose on Clonazepam and Gravol was in 2001—she was trying to make her thoughts go away. A BPD who wants to kill themselves won’t actually say they intend to, since they know they’ll be stopped—it’s when they’re not talking that it’s most likely.
Dr. Waisman was asked how he knew the 2013 subway incident was a “serious” suicide attempt vs. a cry for help? Dr. Waisman said in 2013 the Applicant was hospitalized. The Insurer’s counsel noted she was hospitalized and Form 1’d72 after the November 7, 2011 MVA, and asked what was different? He put to Dr. Waisman that the Applicant had been in confrontations with police before, and that the Applicant had told the tow-truck driver at the scene of the MVA that she was suicidal. Dr. Waisman reiterated that when she jumped in front of a subway train that was an attempt to kill herself, and it wasn’t hypothetical. The Insurer asked if it could have been a cry for help or attention, since it appeared the Applicant only stood on the tracks and there was enough time that people pulled her back? He further asked Dr. Waisman how he could say for sure this was a suicide attempt, but 2011 wasn’t, when he didn’t know the full details of either event? Dr. Waisman said he thought there was an escalation, and the subway incident was much more serious. Dr. Waisman said he did not know if the Applicant drove into a stationary car on purpose.
The Insurer asked if the Applicant was ambivalent about abstinence from drugs. Dr. Waisman said it was the Applicant’s intention to get off substances, as evidenced that she made many visits to therapists, but she succumbs to relapses. There are stages to recovery from substance abuse, and she was going to the best doctors; but despite this she had relapses, and her usage increased after the MVA, since she started using heroin after Vancouver. When asked why this happened, Dr. Waisman speculated she got involved with people using heroin, but he did not inquire further.
Dr. Waisman concluded that the Applicant has been “unemployable” since the MVA, she needed urging to shower and wash her hair. He said L.C. told him the Applicant had become a totally different person after the MVA, that things really escalated and L.C. couldn’t control her. He acknowledged of course there would be things L.C. didn’t know about the Applicant pre-MVA.
The Insurer asked Dr. Waisman if he knew the Applicant was fired from KM Medical Management. Dr. Waisman said she left because of the timing of reports, but he did not have the records. The Insurer introduced email correspondence between two of the Applicant’s superiors dated March 6, 201173 (two weeks before her dismissal), which documented significant performance concerns, and specifically the Applicant’s failure to produce the required number of reports, and discussed between them whether or not to terminate her employment immediately.
Dr. Waisman said he did not know of her pre-MVA work issues, and had no records of what she did before. The Insurer’s counsel asked Dr. Waisman why he was assuming things. Dr. Wasiman said the Applicant graduated in 2008, and his conclusions were based on what the Applicant and L.C. told him. He said he saw a downward spiral after the MVA from the records and from what the Applicant and L.C. told him.
The Insurer referred to Ms. Coy’s note from November 22, 201174 that the Applicant said she “desperately needed a job”, and to Ms. Green’s note from October 5, 201175 that the Applicant was hospitalized on a Form 1 and held in constraints. Dr. Waisman said she was seeking help. The Insurer referred to Dr. Wiebe’s note from October 6, 201176 that the Applicant felt the “worst she had ever felt”. Dr. Waisman could not comment, and said he could only read the note. Dr. Waisman added there were thousands of notes, and he could not review all the progress notes. To which the Insurer asked, if this was an admission Dr. Waisman had not read all the CAMH notes. Dr. Waisman said the big picture was what was important here; no one could read them all, “we would still be here”. Dr. Waisman said it was the opinion of many providers that things were getting worse after the MVA. He looked at the whole file and assessors, but could not look at thousands of progress notes.
Dr. Waisman agreed that the Applicant’s breakup with her boyfriend made her more vulnerable to trauma, and was a major event; she had emotional issues because of it.
Dr. Waisman disagreed that the Applicant was “not succeeding before the MVA”—she got the 3-week job at Cirque de Soleil, and getting an O.T. job is not easy to do. She had been seeing multiple therapists; he suggested that the Insurer was focusing on massive personal notes, but not noticing that after the MVA she tried but stopped doing things, including therapies.
The Insurer’s counsel asked Dr. Waisman what he was basing his conclusions on, besides the Applicant’s self report. Dr. Waisman replied that of course it was based on her self report. He thought there was overwhelming evidence that her symptoms were serious, and he relied on his years of experience. Before the MVA she worked at KM and with clients. When asked if he knew if the Applicant had doubts whether she could even be an O.T., Dr. Waisman said he thought she had no choice, she wasn’t getting positions. When asked if BPD and substance use would affect this, Dr. Waisman said it contributed. He agreed that she was depressed before the MVA, but that meant she was more vulnerable to trauma, and the MVA was a trauma. When asked if this was based on what the Applicant told him, Dr. Waisman said yes of course he had to rely on that.
Dr. Waisman was asked why he drafted his report in 2017 (a couple of months before the Hearing) despite the fact he completed the assessment in 2015, and had been clear at the time he could not finalize his report without getting a neurological report that was never received. Dr. Waisman responded he was “not a lie detector”, and that he had sufficient information.
Insurer Witnesses
Dr. Robert Hines (Psychologist)
Dr. Hines has been in private practice in general psychology from 1986 to present. He is trending towards retirement, and is working 3 days/week now, mostly on IEs. I accepted that he was an expert in general psychology.
Examination-in-Chief
Dr. Hines confirmed he met with the Applicant twice, for one and a half hours each on June 6, 2012 and November 25, 2014. Dr. Hines was asked if, as a result of the MVA, the Applicant sustained a substantial inability to perform the essential tasks of her employment as an occupational therapist, and whether the Applicant suffered a complete inability to engage in any employment or self employment for which she was reasonably suited by education, training, or experience. To both questions Dr. Hines responded she did not.
Dr. Hines was unable to establish evidence of psychological injury on the basis of the MVA. He asked the Applicant about the history of the MVA, and reviewed her treatment and sequelae afterward. He could not relate the symptoms to the MVA. His observations were, there was no acute physical or mental distress at the times of the 2012 and 2014 appointments.
Dr. Hines was asked if he saw any indications of TBI in the clinical notes and records. He said the Applicant was assessed by a TBI clinic (St. Michael’s) which said she had TBI—but that was the only instance that attributed a TBI, and there was nothing else. Dr. Hines said the Applicant was fully-oriented and displayed no evidence of difficulty concentrating. She was attentive, not distracted, could retain questions, her memory was good, and all her responses to questions were spontaneous. She had no difficulties word-finding. Her CT scan was normal and showed nothing remarkable—there was no cranial bleed or skull fracture. He said the St. Michael’s head injury ambulatory report of April 30, 2013 showed her cognition grossly intact, and didn’t diagnose acquired brain injury; it diagnosed PTSD, major depressive disorder, and BPD. At the time of the report her cognition was fine. Dr. Hines didn’t find a TBI with the Applicant.
Dr. Hines was asked if the MVA made things worse regarding the Applicant’s BPD. Dr. Hines said he knew there were a lot of pre-existing conditions pre-MVA causing her difficulty. He could not see anything reliable that would indicate her emotional status was altered by the MVA. He looked for a direct connection but could not establish it. He did not see an exacerbation of BPD from the MVA. Dr. Hines said BPD is a disorder regarding emotional difficulty relating to other people. A regression (i.e., increase in difficulties) is related to interpersonal interaction. The core pathology of BPD is in the context of other people—not inanimate objects. The MVA did not affect the Applicant’s BPD because it did not involve another person. If she had been hit or another person was involved in the crash then perhaps there could have been; but there were only inanimate objects involved. The difficulties in BPD are always in the context of other people and relating to others.
Dr. Hines was asked what might set off BPD in the Applicant. He said, he knew she had a difficult upbringing with her mother. An interpersonal relationship with her mother was the most likely to impact, or possibly a relationship with the boyfriend. Even difficulties with housing, dealing with the “system”, getting money for support, those all involve dealing with other people.
Dr. Hines found that the only indication of TBI was by the Applicant’s self reporting. The only two diagnoses he could rely on were BPD and opioid/cocaine dependence. Dr. Hines did not find the Applicant had major depressive disorder. He believed the CAMH review was consistent with his findings. He suggested that BPD creates instability in moods, behaviour, self image, functioning, reactions, and relationships. A BPD person has difficulty regulating emotions, it can fluctuate a lot in response to interpersonal interactions. A decrease in mood is not necessarily a mood disorder. If depressive behaviour can be instantly gone (e.g., if mom apologizes, or boyfriend says let’s go out), then it was not a mood disorder, but rather a function of BPD. A mood disorder is depression for a long period of time; you can’t make such a person laugh. BPD depression will remit quickly with good interactions, which won’t happen with depressive disorder.
Dr. Hines concluded the Applicant had no barriers to returning to work as a result of the MVA.
Cross-Examination
Dr. Hines acknowledged he knew of the Applicant’s suicide attempt in 2001. He said a suicide attempt could be an indicator of major depressive disorder, but not necessarily. He acknowledged suicidal gestures can be common with a BPD.
Dr. Hines said the Applicant did not have suicidal thoughts at the time of his meeting with her. He did not think there was major depressive disorder. If the Applicant attempted suicide after that then that would be important, as it gives an indication of mental functioning; but it could also be an impulse, based on mental difficulties relating to her boyfriend, mother, money, housing, etc.
Dr. Hines said BPD develops early in life through a traumatic early environment and family situation. The Applicant’s father committed suicide, and the Applicant’s mom was also very depressed and had suicidal thoughts. BPD isn’t developed from one incident, but they can all contribute. He confirmed that BPD fluctuates.
Dr. Hines acknowledged that he knew most parts of the Applicant’s educational history (high school, University of Toronto, York, and McMaster). When asked if this indicated a significant level of function, he said that he thinks the Applicant is very bright, but also troubled. Her condition was not to the degree that it was compromising her intellectually at that time.
The Applicant’s counsel asserted that after the MVA, the Applicant had no car or licence, and significant drug problems, was it not possible that the MVA contributed? Dr. Hines said he did not see evidence of it; he saw evidence of ongoing emotional struggle. He acknowledged the Applicant degenerated into heavy drugs.
Dr. Hines acknowledged the Applicant’s attempted suicide in May 2013 in his report. He said yes it was an important change, and could be a deterioration in mental condition. But he didn’t find evidence that there was an exacerbation of emotional problems.
Dr. Hines had no opinion whether the Applicant could go out and work as an O.T. He just said there was no evidence of psychological illness secondary to the MVA at that time. There was no evidence of deterioration attributable to the MVA in any significant way. Even though he acknowledged the Applicant was living on the street and doing heroin post-MVA, he could not find reliable evidence that the MVA caused significant mental health difficulties. There was also no evidence that the January 25, 2012 interaction with the police, where they picked her up and broke her leg, was MVA-related. Dr. Hines said that for a BPD person, so many things in their life could contribute, you can’t assume that the fact it happened means it’s the cause. The MVA did not necessarily lead to a deterioration in the Applicant’s emotional condition. The broken leg could possibly lead to emotional deterioration, given that type of altercation.
Dr. Hines said that brain injury usually affects cognitive ability. He was only aware that the Applicant’s CT scan was normal. He did not know if the Applicant was Form 1’d. He just knew he did not find evidence of psychological illness secondary to the MVA, or that the MVA exacerbated the Applicant’s BPD.
Dr. Sherali Esmail (Neurologist)
On the basis of the parties’ submissions, I accepted that Dr. Esmail was an expert in neurology, but not in the field of psychology.
Examination-in-Chief
Dr. Esmail saw the Applicant on January 13, 2015, and wrote an assessment Report dated January 14, 2015 respecting whether the Applicant should be entitled to post-104 IRBs. The parties wanted to know if the Applicant sustained a concussion. Dr. Esmail concluded that the Applicant probably sustained a head injury, although the allegation that she “hit her head on the wheel” was difficult to understand since the air bag deployed.
Dr. Esmail stated that when someone sustains a head injury, the impact to the skull can cause brain injuries and impairment. What you need to know from the patient is how bad was the brain disruption? The Applicant could recount details of the event, so there was no effect on her ability to register and store information.
For a concussion, the normal recovery period is six to 12 weeks. It would be unusual to have concussive symptoms in 2015 from a 2011 MVA. Dr. Esmail said there were discrepancies in the reports he reviewed respecting whether or not the Applicant lost consciousness, and he could not conclude if she did.
Dr. Esmail stated that Dr. Henri-Bhargava’s impression (on December 14, 2011) was that the Applicant had classic symptoms of post-concussive syndrome; but Dr. Esmail said that post-concussive syndrome is usually diagnosed three months after an event. Dr. Henri-Bhargava’s report didn’t indicate a head injury, loss of consciousness, or early-grade retrograde amnesia—accordingly, Dr. Esmail didn’t believe Dr. Henri-Bhargava’s report was helpful, and he had to look to other reports. He stated that you can’t diagnose post-concussive syndrome after only six weeks, you need to do it after three months.
Dr. Esmail stated that among the other reports he reviewed was Dr. Selchen’s, which referenced a report of Dr. Waseem. Dr. Selchen found the Applicant’s symptoms were externally based—i.e., not based on physical injury to her brain, but more likely attributable to psychiatric factors.
Dr. Esmail said that in post-concussive syndrome, symptoms he commonly expects to see are headache, light and/or noise sensitivity, dizziness, issues with visual tracking, and some memory issues. If some of these linger beyond six to 12 weeks then that’s post-concussive syndrome. But you wouldn’t see these symptoms last four years after an accident, that would be highly unusual. Dr. Esmail thought that psychological co-morbidities probably led to persistence of the Applicant’s symptoms.
Dr. Esmail said there can be an acute period of symptoms, but in general most concussion symptoms are continuous, and lift continually. It would be strange to get “episodic” disruption of brain function—i.e., for a patient to be fine and then suddenly get bad and then fine.
Dr. Esmail stated that at least one MRI scan on J.C. was normal. There was no sign on the MRI of any micro-hemorrhages, brain cavity, or stroke. From a neurological perspective, Dr. Esmail did not believe the Applicant suffered a complete inability to work. There was no neurological impairment and no ongoing neurological issues.
Dr. Esmail said that while he is not an expert in psychiatry, psychological co-morbities can affect how a patient recovers, even though impairment is not neurological. To him, the presentation of the Applicant’s symptoms were mainly psychological. He did rotations in medical school in psychology; a lot of what he sees is psychological, but he doesn’t make psychological diagnoses.
Cross-Examination
Dr. Esmail confirmed that he saw a picture of the vehicle involved in the MVA. He said he knew the Applicant had BPD, but appeared unclear on the meaning. He knew that the Applicant’s training was in occupational therapy, and previously English, and agreed that there were past significant mental health issues, including a suicide attempt in 2001 by overdose.
Dr. Esmail disagreed once again with Dr. Henri-Bhargava’s concern that the Applicant was fragile and that she may suffer a setback due to a concussion; he was adamant that Dr. Henri-Bhargava could not have diagnosed a concussion and post-concussive syndrome six weeks post-MVA. Dr. Esmail accepted that there was a level 1 concussion, although he didn’t have expertise in that area. He agreed that he was not a psychiatrist, but reiterated that pre-existing psychological issues could affect a return to work.
The Parties’ Positions
For the Applicant
The Applicant’s counsel asserted that the Insurer’s position, in its Response to the Application for Arbitration (Form E), had been that the Applicant was not entitled to any further IRBs over and above what had already been paid. The Insurer paid the Applicant $53,351.89 in IRBs through to February 18, 2015, which was over three years after the MVA date. The Insurer had never disputed that the Applicant was entitled to IRBs through the two-year mark. As a result, he asserted they were not in a position to dispute causation with respect to the pre-104 week test, and accordingly the Insurer’s inquiry into the Applicant’s pre-MVA condition, through a review of the CAMH notes, was irrelevant to the issue in dispute. The Insurer was aware at all times, through the production of medical records, that the Applicant had a significant pre-MVA psychiatric history, and notwithstanding that paid the Applicant for the full 104 weeks and beyond and therefore, causation was not in issue.
During the Arbitration the CAMH records were introduced and reviewed, documenting the Applicant’s psychiatric history, which were notable for her abuse of alcohol and cocaine, but which otherwise demonstrated her understanding of her need to continue working, looking after herself, paying her rent, and functioning in a quasi-medical environment as an O.T. In or about July 2011, it was noted that the Applicant had recovered from her symptoms of major depressive episode, which should no longer be a barrier for her ability to work.77 The CAMH records indicated her continued participation in treatment and her attempts to return to her O.T. career. The CAMH notes indicate that the Applicant applied to four O.T. positions on October 26, 2011.78
On or about March 7, 2012, the Applicant attended at CAMH screaming about severe and permanent brain injury.79 By February 12, 2013, the Applicant was living on the streets of Vancouver injecting heroin and crystal meth. Steps were being taken to try and bring her back to Ontario.80 On February 17, 2013, she presented to the ER while experiencing withdrawal symptoms from opioid dependence and amphetamine abuse. She was using heroin daily and speed.81 She was referred to the women’s inpatient unit, where she stayed for what appeared to be several months.82 After J.C. left CAMH on May 7, 2013, she went to the subway and jumped on the tracks hoping to be struck by an oncoming train. Bystanders pulled her off the track back onto the platform. Thereafter, she attempted to obtain a police officer’s gun to shoot herself. Dr. Waisman indicated that this was a pivotal change in her condition. This was her second severe suicide attempt (the first one being in 2001).
L.C. testified that the Applicant is basically homeless, living in shelters or ravines. She is a consistent drug abuser. She is no longer involved in treatment, except on an emergent basis.
Dr. Waisman’s testimony was based on his extensive knowledge and treatment of personality disorders. Special note was made of his position as consultant forensic psychiatrist for the law and mental health program for CAMH. It was presented that Dr. Hines has been long removed from current academic instruction in this field, and Dr. Waisman’s opinion on the impact of the MVA should be preferred. Dr. Hines’ testimony was concerning as he found the Applicant to be almost completely normal, but within two months’ time the Applicant was Form 1’d and admitted to EGH, completely out of control and being taken into police custody for her disruptive and threatening behaviour.
The Applicant’s counsel asserted that the material contribution test is the applicable law in accident benefits, and presented relevant case law. He stated that it used to be that an accident had to “directly cause injuries”, but since Sabadash and State Farm83 impairments only need to result from the accident—that is the material contribution test. He said that the insurer would try to suggest the Court of Appeal decision in Blake v. Dominion84 is now the law (i.e., the but for test); however, Blake only concluded that the but for test could be applied in that case because the Applicant did not plead the material contribution test in the lower court, which made the but for test permissible in the absence of its argument. But he was arguing for the material contribution test presently.
The Applicant’s counsel put forward that in Sabadash, Arbitrator Smith said that any causal factor outside the de minimis range would be found to meet the material contribution test, and did not accept that the “but for” test endorsed by the Courts in accident negligence cases is to be applied to determine causation in the accident benefit context. Arbitrator Smith determined there was no clear direction from the Court of Appeal in Blake that the material contribution test no longer applied, and determined that the “material contribution” test has been consistently endorsed as a correct legal test for causation,85 which culminated in the Court of Appeal’s decision in Monks v. ING.86 He accepted, per Monks, that a “material contributing factor” should be defined as any causal factor outside the de minimis range, being defined as “a trifling consequence and a matter that is so small that the court does not wish to even consider it”.87
The Applicant’s counsel submitted that I had lots of latitude to award the benefits in dispute, on a fair, large, and liberal interpretation of the Schedule. Treating doctors said the Applicant may have suffered an acquired brain injury and post-concussive syndrome, and there was lots of evidence of the Applicant’s deterioration after the MVA. The Applicant cannot adapt to stressful settings or be compliant with the structures of work; she is totally functionally impaired for any line of work. She doesn’t have an O.T. licence anymore or a driver’s licence or even a photo ID.
For the Insurer
The Insurer submitted that the Applicant’s pre-and post-collision history support that she was unable to work before the MVA due to her significant mental health problems and drug and alcohol addictions, and her post-collision course was consistent with her pre-collision trajectory. At worst the Applicant suffered a minor concussion, but had the MVA not occurred her life would be no different.
The Insurer submitted there was a great deal of evidence that the Applicant’s MVA was an intentional suicide attempt. Following the MVA, the Applicant reported to the police officer on scene that she was attempting to commit suicide. She declined medical attention, but was taken by the police to EGH, where she was held on a Form 1 pursuant to the Mental Health Act, which permits authorities to detain a patient against their consent. According to hospital records, the Applicant told the tow truck driver and the police at the scene that she had been feeling suicidal at the time of the collision.88 Prior to the MVA, the Applicant had also reported that she was thinking about suicide, and one of her ideas was to drive her car into a wall. She reported that to her CAMH doctors on June 17, 2009, April 12, 2011, and June 21, 2011, and on August 17, 2011 she worried she would engage in reckless driving to punish herself. There were no ideations about driving into walls or reckless driving in the progress notes anytime after the MVA. On November 29, 2011, L.C. called Dr. Wiebe and told her the Applicant’s MVA involved the Applicant intentionally driving her car into the back of another car.89 S.C. also called Dr. Wiebe on January 2, 2012, and advised that the Applicant had been in police custody three times, deliberately smashed her car, and made threats against her own life and others.90 On January 31, 2012, S.C. called Dr. Wiebe back to reiterate his concerns about the Applicant’s welfare; he advised Dr. Wiebe that the Applicant expresses pride at being able to outsmart health professionals and say the right things to avoid getting committed.91
The Insurer suggested that the Applicant’s counsel’s theory of the case was, effectively, that the reason the Applicant cannot work is because she sustained a post-concussive syndrome, and as a result her addictions to drugs and alcohol worsened. However, he submitted that the evidence proved the MVA was neither the cause nor a contributing factor to her alleged inability to work. In spite of her ability to provide evidence, the Applicant did not attend the Hearing, nor either of the Pre-Hearings, despite being the most important witness to her own case, and an adverse inference should be drawn as a result. Nobody from CAMH nor her family doctor were called on the Applicant’s behalf either. In her absence, much of the evidence about the Applicant came from her CAMH clinical notes and records. The Insurer submitted, that after hearing the evidence, it was clear that the best depiction of who the Applicant is comes from her records, and not L.C. or Dr. Waisman. The records depict a woman who was severely incapable of maintaining an adult life—prior to the MVA, by all accounts the Applicant was an impulsive, alcoholic drug addict who was unable to fulfill her personal and professional obligations, and who had been rapidly spiraling downward for two years. A review of the Applicant’s clinical notes and records both preceding and following the MVA show serious inconsistencies, to the point where it was not really clear when the Applicant is lying and when she is telling the truth. In fact, the only thing consistent was that she was having issues with drugs and alcohol preceding the MVA, and continued to do so afterward. The Insurer’s counsel asserted it was foreseeable that the Applicant’s addictions would continue after the MVA.
At the time of the MVA, the Applicant was single and had just gone through a tumultuous relationship followed by a protracted break-up with her boyfriend. She was unemployed and had been collecting Employment Insurance Sick Benefits (“EI”) for a major depressive episode since March 22, 2011. The Applicant began working at KM Medical Management on November 26, 2010, and according to her employment file there were immediate issues with her performance; as of March 6, 2011 she had only submitted seven reports since starting, and her employer was already regretting hiring her and thinking of firing her.92 The Applicant was fired from KM Medical Management two weeks later on March 22, 2011. The last time she was paid was on February 28, 2011, because she was not finishing her reports. At the time of the MVA, the Applicant reported to CAMH that she was looking for a server job. Thus, at the time of the MVA, the Applicant was already unemployed, received EI sick benefits, and was unable to perform properly at her jobs, the reason largely attributable to her mental health and addictions to drugs and alcohol. The records showed the Applicant could not maintain a functional life. She was consistently late or failed to show up for scheduled appointments. She realized that her drug and alcohol addictions impacted her life, including ability to complete her work, but still remained ambivalent towards abstaining from drugs and alcohol. Her mental health issues appeared to be getting worse and worse leading up to the time of the MVA. The Insurer recounted the highlights of the Applicant’s CAMH file from February 2, 2009 to the date of the MVA, which was lengthy and notable.
The Insurer submitted it was clear that there were serious inconsistencies between the Applicant’s pre-MVA records and L.C.’s observations and memories of the Applicant from that period. L.C. was unaware of instances when the Applicant was hospitalized and held on Form 1s pre-MVA, and noted that the Applicant called ambulances all the time. L.C. denied being aware of the significant effect the breakdown of the Applicant’s relationship with Colin was having.
The Insurer submitted that the Applicant had an extensive pre-MVA history of chronic back, neck, and head pain dating back to the year 2000. As of January 14, 2010, she was reporting that her pain was so intense that she was too tired to hold her head up and she was sleeping sixteen to eighteen hours per day.93
The Insurer submitted that the Applicant’s post-MVA records show that nothing changed for her after the MVA. She was still obsessing over Colin, still having suicidal ideations, still significantly depressed, still suffered from BPD, still continued to abuse substances, and continued looking for a job and going to the gym. The MVA did not seem to hold much significance to the Applicant.
Following the MVA, the Applicant was held on a Form 1. On November 9, 2011, the Applicant called her team at CAMH and reported she could not attend for treatment, but she reported that she was in hospital because she was unsafe, and did not mention the MVA.94 Over the next several days she was still obsessing to her therapists over her breakup, which she obviously considered a more significant life stressor than the MVA, which she did not talk about until November 16, 2011. The Insurer submitted this also seemed to confirm Dr. Hines’ testimony—i.e., that a person with BPD is triggered by interpersonal relationships and not by inanimate objects (e.g., a MVA with an unoccupied car).
On December 19, 2011, the Applicant was seen for a neurology consultation by Dr. Henri-Bhargava at EGH. Dr. Henri-Bhargava had noted on December 14, 2011 that the Applicant attended at the EGH emergency room complaining of persisting neurological symptoms after the November 2011 MVA. However, the Insurer’s counsel submitted, that other than that report of Dr. Henri-Bhargava, the Applicant had not been complaining of persisting neurological symptoms. On December 14, 2011, the Applicant found herself wandering the street, unable to think of why she left her home. Following his examination of the Applicant, Dr. Henri-Bhargava concluded that the Applicant was displaying “all of the classic symptoms of post-concussive syndrome”, and referred her to the Acquired Brain Injury Network and commented that he was concerned the Applicant was going to suffer a major setback due to the concussion. However, the Insurer’s counsel submitted that Dr. Esmail provided evidence that post-concussion syndrome cannot be diagnosed until three months post-MVA. Dr. Esmail also criticized Dr. Henri-Bhargava’s diagnosis because the Applicant had never been properly diagnosed with a concussion. He noted that the Applicant’s reported episodic and bizarre symptoms were not in keeping with concussion symptoms, which resolve gradually over time and do not turn off and on like a light switch.
Over the holidays (2011) there was evidence of the Applicant giving out resumes, going to job interviews, and actively looking for employment.
At CAMH group therapy on February 2, 2012, the Applicant broke into a fit and screamed about how her ex-boyfriend needed to come home and his new girlfriend needed to die.95 This further demonstrated the Applicant continued to obsess over her break-up after the MVA the same way she did preceding it.
On April 3, 2012, the Applicant was seen by Dr. Zeeshan Waseem in the Head Injury Clinic at St. Michael’s Hospital. Dr. Waseem concluded that it was very likely the Applicant suffered a mild TBI or cerebral concussion from the MVA; but he noted that her symptoms, particularly her psychiatric complaints, were well outside of what he would expect to be normal for that kind of injury. He further commented that the protracted nature of her symptoms was atypical, and he suspected there were external factors at play and her pre-existing psychological comorbidities were contributing to her presentation.96 Dr. Waseem’s report was also consistent with Dr. Esmail’s evidence that post-concussive syndrome only rarely persists one year post-injury, and that it was clear the Applicant had other psychiatric co-morbidities.
On April 28, 2013, the Applicant underwent a normal MRI of her brain. The Insurer submitted that the Applicant’s emotionally-mediated symptoms were not the source of any objective neurological problems, and more likely related to her continued abuse of street drugs and alcohol, and the general instability of BPD.
Dr. Hines commented that the Applicant was an “unreliable historian” when he assessed her on June 6, 2012, but she functioned quite well emotionally regardless through his assessment, and there was no evidence of any significant psychiatric illness at that time.
The Insurer asserted that Dr. Waisman was not (and has never been) one of the Applicant’s treating professionals. His psychiatric evaluation report of March 5, 2017 was in support of a catastrophic impairment determination that was not the subject of this proceeding. Dr. Waisman only met the Applicant once, on October 28 2015, and did not even comment on her ability to participate in paid employment. The Insurer submitted that it was clear that Dr. Waisman did not fully appreciate the Applicant’s pre-MVA history. During his testimony he was unaware of periods of drug and alcohol abstinence the Applicant told her CAMH doctors were miserable and socially isolating for her. It appeared he was unaware that she was fired because she could not do her job properly. He was unaware she had been given accommodations in school giving her more time to complete assignments. Dr. Waisman’s report was also flawed in that he felt the Applicant needed a neuropsychological assessment in order to complete his opinion, yet when the Applicant was unwilling to attend said assessment, he completed his report anyway and concluded she suffered from significant cognitive issues. During cross-examination, Dr. Waisman continuously claimed that the Applicant’s pre-MVA issues were made worse following the MVA, but when asked directly what reports he was relying on to support that claim, Dr. Waisman was unable to point to a single one. Instead, it became clear that he was basing his opinion on the Applicant’s self report and L.C.’s reporting on her daughter. He refused to acknowledge that the MVA could have been a suicide attempt, and essentially stated that there is no rhyme or reason as to when someone is going to commit suicide versus when it’s just a cry for help. Dr. Waisman also failed to acknowledge that the Applicant was hospitalized psychiatrically after the 2011 MVA, despite focusing on her hospitalization after the 2013 subway incident. In all, the Insurer submitted, Dr. Waisman appeared quite biased in his opinion, and could not support his opinions with medical evidence.
The Insurer’s counsel submitted that the Applicant lost her O.T. licence for a failure to pay fees, not because of the MVA or anything else. He submitted there was no evidence provided by the Applicant’s counsel to explain the circumstances of her losing her driver’s licence. He submitted it was clear from all of the records that the Applicant became a different person when she was using drugs and alcohol.
He submitted that it was not until December 14, 2011, over a month after the MVA, that there was even a question that the Applicant had sustained any form of a head injury. On that date, the Applicant called into CAMH at 1:30 p.m. to advise that she was running late for her appointment because she was at the employment centre. Her CAMH doctor rescheduled her appointment to the next day; but there were no indications then that the Applicant was disoriented or didn’t know where she was. However, a mere hour later, she had already been triaged into the ER of EGH because she was allegedly found wandering around aimlessly down the street. The Insurer’s counsel submitted that it made no sense that the Applicant’s condition would have changed so significantly in 30 minutes’ time, and the more plausible explanation was that as soon as the CAMH appointment was cancelled, the Applicant was able to use drugs or alcohol and entered into a dissociative state, as she had done numerous times before the MVA. That theory was supported by Dr. Esmail’s testimony that concussion symptoms resolve gradually and are not episodic. The Applicant was subsequently referred to Dr. Henri-Bhargava, who prematurely diagnosed her with post-concussive syndrome, which per Dr. Esmail could not have been diagnosed until three months after a diagnosis of a concussion. The Applicant’s alleged symptoms were also not in keeping with post-concussive syndrome, as her behaviours did not change much after the MVA. Preceding the MVA, the Applicant was emotionally volatile and obsessive about her relationship; following the MVA, she remained equally volatile and obsessive.
The Insurer submitted, that aside from Dr. Henri-Bhargava, the other physicians that saw the Applicant since the MVA do not believe she is suffering from a post-concussive syndrome. On April 3, 2012, Dr. Waseem opined that the Applicant’s psychiatric complaints were well outside of what he expected to be normal for a post-concussive injury. Likewise, on March 25, 2013, the Applicant saw Dr. Daniel Selchen, who opined that her symptoms were emotionally-mediated. On January 26, 2015, the Applicant saw Dr. Rossen Roussev, neurologist, who stated that labelling the Applicant’s “behaviours and zoning-out symptoms as post-concussive or brain trauma should be done with considerable caution as the indication is not supportive of significant brain injury by the history provided.”97
The Insurer submitted that the MVA was not an intervening event that derailed the Applicant’s life. It was just another example of the Applicant’s ongoing depression and BPD. The reason the Applicant is not working today is because she made poor choices before the MVA that she continued to make after the MVA. The Applicant simply could not find a job before the MVA, and based on her poor performance at previous employment, there is no way the Applicant would have even been able to get a job reference in occupational therapy. From 2009 to November 2011, the Applicant’s substance abuse continued and became worse, she became suicidal and self-harmed, lost her boyfriend, was fired from her job because she wasn’t completing her work, suffered a major depressive episode, and had multiple emotional outbursts. By the time the MVA occurred on November 7, 2011, the Applicant was well-immersed in this downward spiral. Following the MVA, the Applicant’s psychiatric issues continued in the exact same manner as before. Her emotional outbursts caused her to be charged criminally; however, given her pre-MVA addiction problems, the Insurer asserted it was likely she would have continued to use drugs and alcohol. Her trajectory likely would have been the same.
Dr. Hines interviewed the Applicant twice, and his opinion was that there was no evidence to support the claim that the collision had any psychiatric affect on the Applicant nor on her ability to work. He specifically testified that any post-MVA incidents of behaviour were completely in keeping with someone with a BPD.
The Insurer submitted that no inferences should be drawn from the fact the Applicant was paid IRBs beyond the two-year mark of the MVA. The Insurer attempted to schedule assessments before the two-year mark, but the Applicant continually postponed them. Counsel for the Insurer submitted that the Insurer should not be prejudiced because it continued to pay the Applicant’s IRBs in good faith. He noted that the Disability Certificate Form (“OCF-3”) submitted in February 2012—the only OCF-3 ever submitted in support of the Applicant receiving IRBs—was entirely based on physical and not psychological injuries, and was submitted by a physiotherapist, at a time that the Applicant was non-weight-bearing for four to six weeks due to the January 25, 2012 altercation with police. The Insurer did not have access to any of the Applicant’s CAMH records at that time.
The Insurer asserted that the applicable legal test for causation in statutory accident benefits cases is the “but for” test. In Agyapong and Jevco,98 Arbitrator J. Wilson held that the “but for” test is the default test to prove causation in accident benefit cases. The “but for” test effectively requires an applicant to show that his or her injury would not have occurred but for the accident. The Insurer’s position was that had the MVA never occurred, the Applicant still would not be able to work. She had already been unable to work since March 2011 owing to her severe addiction to alcohol and drugs and BPD, both of which long preceded the MVA.
The Insurer submitted that McMichael and Belair99 involved an applicant who became severely addicted to crack cocaine after an accident and claimed ongoing entitlement to IRBs. Arbitrator Muir found that the applicant’s crack cocaine addiction was caused by the accident, and he was catastrophically impaired and entitled to ongoing IRBs. Mr. McMichael used cocaine recreationally before the accident, but began using crack cocaine after the accident and developed a serious addiction. Prior to the accident, the evidence was that Mr. McMichael was a father, husband, athlete, and employee who lived a busy and functional life. By contrast, by all accounts the Applicant was not a functional person at the time of the MVA. The most critical factor Arbitrator Muir considered in determining that Mr. McMichael was not a drug abuser preceding the accident was that it never interfered with his day-to-day life, noting he was an employed family man and athlete who maintained good relationships. In the Applicant’s case, she was a regular user, which had very negative effects on her pre-existing depression and BPD. She wasn’t able to perform her job at an acceptable standard, and was fired as a result. The Applicant needed constant coaching from her CAMH team to deal with the most basic elements of being a functional adult. By all accounts, her substance use was interfering with every element of her life at the time of the MVA.
The Insurer requested the dismissal of the Applicant’s Application, with expenses payable to it.
ANALYSIS
I have determined that the submissions in this case invite me to analyze three questions: (1) is the Insurer “estopped” from making a causation argument because it previously paid the Applicant IRBs for the entirety of the pre-104 week period, and also additionally a post-104 week period?; (2) what is the relevant legal test that should apply?; and (3) how does that legal test apply to the facts of this case? I will analyze those questions in sequence.
Is the Insurer “estopped” from making a causation argument by virtue of previous IRB payments?
Counsel for the Applicant asserted, in effect, that because the Insurer paid the Applicant over $50,000 in IRBs for a period covering beyond the 104-week mark, the Insurer could not make a causation argument because it had implicitly accepted there was causation, otherwise it would not have made the earlier payments. I do not accept this argument.
I accept the Insurer’s argument that it paid the IRBs initially on the basis of an OCF-3 from a physiotherapist that outlined physical injuries. I accept the Insurer’s assertion that it tried to set up IEs in the matter, but could not because the Applicant frequently could not be found, and continued paying the benefit in good faith and did not review the Applicant’s psychological history until far later—at which point the IRBs were terminated.
If an Insurer could not stop a benefit previously approved as it finds out new information, then such a right would not be in the legislation. The right to stop benefits suggests that decisions at one point in time do not bind insurers forever. There also needs to be a two-way street. It stands to reason that if an Insurer can be wrong about a denial (which are frequently disputed), then it can also be wrong about an approval. An Insurer’s decision to approve or deny a benefit claim is simply its assessment of the merits of the case at that point in time, in accordance with its interpretations of the laws and facts known. They do not carry the final weight of law.
My role is to analyze whether, on the facts presented to me, the Applicant is entitled to IRBs for the period from February 19, 2015 to date and ongoing, applying the test for IRBs after the 104-week mark. The Applicant must satisfactorily establish that based on evidence and the law. The payments in previous periods are irrelevant to that determination, especially in a context where the termination was based on facts the Insurer only became aware of after the payments were made.
What is the relevant legal test?
The parties’ submissions suggested an ongoing debate about the proper test to apply respecting causation in accident benefits disputes. But upon review I am not satisfied that there should be as much question about the law as was purported.
I agree that the Sabadash case referred to me is a good starting point. Arbitrator Smith stated:
[97] I cannot accept State Farm’s submission that the “but for” test endorsed by the Courts in negligence cases is to be applied to determination of causation in the statutory accident benefit context. I find that the correct causation test in determining Schedule benefits is whether or not the subject accident is a “material contributing factor” in the causation of the Applicant’s catastrophic impairment. In support of this finding, I note Lauwers J.’s statement in Greenhalgh v. Douro-Dummer (Township):
The task of the court in construing statutory and contractual language in a SABS case is radically different from its task in determining liability in a negligence action….. “legal causation” for SABS purposes can be quite different than “legal causation” for tort purposes.
[99] I also agree with Mr. Sabadash that, with respect to State Farm’s submission regarding a plain language reading of the legislation, the Courts and FSCO have provided an ample body of jurisprudence, as discussed supra, confirming how causation of impairments is to be interpreted in statutory accident benefits cases. The “material contribution” test has been consistently endorsed as a correct legal test for causation. This culminated in the Ontario Court of Appeal’s decision in Monks. In my view, it is clear that, notwithstanding the Blake decision, it is still open to a trier of law to apply either the “but for” or “material contribution” test depending on the facts of a statutory accident benefits dispute.
[100] I also accept that “material contributing factor”, as explained by the Ontario Court of Appeal in Monks, should be defined as any causal factor outside the de minimis range. De minimis is defined as “a trifling consequence and a matter that is so small that the court does not wish to even consider it.”
In opposition, the Insurer submitted to me that Arbitrator J. Wilson decided in Agyapong100 that the “but for” test is now the test for causation in accident benefit cases. With respect, though, while I find Agyapong extremely useful, for reasons to follow, Arbitrator Wilson did not actually say the “but for” test is now the causation test in accident benefit cases. What he stated was:
While the jurisprudence is clear that in most circumstances the “but for” causation test is the appropriate way of evaluating causation, accident benefits jurisprudence has remained fixated on the usually rare exception, the “material contribution” test as the appropriate test for causation. Indeed, this approach was approved by the Court of Appeal in Monks where Cronk J.A. stated:
More recently, in Resurfice Corpe. V. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, the Supreme Court of Canada clarified the exceptions to the “but for” causation test and the circumstances in which the material contribution test may be applied. I do not understand Resurfice to alter the basic causation principles that I have described.
Since 2009, both the Supreme Court and the Court of Appeal have spoken again on the issue of the “but for” test and in the process raised significant doubt about the jurisprudence supporting the “material contribution” test as the default in accident benefit matters.
In Clements (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181), Chief Justice McLachlin stated:
The legal issue is whether the usual “but for” test for causation in a negligence action applies, as the Court of Appeal held, or whether a material contribution approach suffices, as the trial judge held. For the reasons that follow, I conclude that a material contribution test was not applicable in this case. I would return the matter to the trial judge to be dealt with on the correct basis of “but for” causation.
As for the “material contribution test” the Chief Justice observed:
The idea running through the jurisprudence that to apply the material contribution approach it must be “impossible” for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test has produced uncertainty in this case and elsewhere.
As noted by Halsbury’s (Allen M. Linden, Bruce Feldthusen, Halsbury’s Laws of Canada):
As a result, the “but for” test once again reigns supreme in Canadian causation jurisprudence, perhaps even more so than before. Courts have almost never found occasion to employ the material contribution exception to the “but for” test, given the difficulty of proving that it is impossible for the plaintiff to prove causation with “but for” principles due to factors outside the plaintiff’s control.
While I accept that the days of the ritual application of the “material contribution” test in accident benefit matters are numbered at best, I do not believe that Mr. Agyapong has met either test in this matter.
I do not believe either party in this case accurately framed who said what, in which court. It is inaccurate to say that Arbitrator Smith stated the material contribution test is the causation test for accident benefit matters, nor is it accurate to say that Arbitrator Wilson stated the but for test is the causation test for accident benefit matters. Looking closely at their decisions, they both accepted that both tests can be validly used in an accident benefits case.
Arbitrator Wilson did not say that the material contribution test did not apply in accident benefits cases; rather, he only opined in obiter that the material contribution test’s days are numbered, and then analyzed the case from both but for and material contribution perspectives—and on the facts of that case determined that the applicant had satisfied neither.
Similarly, Arbitrator Smith did not say in Sabadash that material contribution is the only causation test that can be used in accident benefit cases. In fact, he specifically endorsed the potential use of both tests:
[99] … In my view, it is clear that, notwithstanding the Blake decision, it is still open to a trier of law to apply either the “but for” or a “material contribution” test depending on the facts of a statutory accident benefits dispute.
Having determined that it was open to a trier of law to apply either “but for” or “material contribution” to the facts of an accident benefits dispute, Arbitrator Smith then chose to apply the material contribution test to the facts of the case before him.
What is clear to me from a review of the jurisprudence is that the “but for” test is the traditional default causation rule in most legal matters. That was endorsed by the Supreme Court of Canada in each of Athey101 (outlined in Monks, per Agyapong), Resurfice, and Clements. However, starting from Athey, a negligence case, an opening was created where in certain circumstances, if the “but for” test was unworkable, causation could also be established where it was demonstrated that a defendant’s negligence “materially contributed” to the occurrence of a victim’s injury, and it was not necessary for the plaintiff to establish that the negligence was the sole cause of the injury. Over time, the strongest judgment in favour of using a different causation test in accident benefits seems to have come from Greenhalgh,102 where Lauwers J. stated that a court’s task in interpreting accident benefits is radically different from its task in determining liability in a negligence action—“‘legal causation’ for SABS purposes can be quite different than ‘legal causation’ for tort purposes”.
Very unfortunately, neither party presented me with the actual Monks case to review, so I am left to interpret it indirectly from what other cases subsequently said about it. Still, I received sufficient information that I am satisfied it appeared in Monks that the Ontario Court of Appeal affirmed the use of the material contribution test in accident benefit cases. But even Monks did not say that material contribution is the only test that can be used. Per Arbitrator Smith’s decision in Sabadash:
[93] The Applicant also submitted that according to the decision of the Ontario Court of Appeal in Monks, where a claimant’s impairment is established via either the “but for” or “material contribution” tests to have resulted from an accident in respect of which the claimant is insured, the Insurer’s liability is engaged pursuant to the Schedule.
[emphasis mine]
Therefore, it appears that even Monks, which seems to be the seminal case supporting the argument that “material contribution is the test in accident benefits”, also agreed that both the but for and material contribution tests can be used in accident benefits cases. There does not seem to be any factual dispute on that point, based on what I have seen.
I note, though, that it seems that the material contribution test might be better thought of in practice as simply the contribution test. If it is true, per Monks, that a “material contributing factor” should be defined as any causal factor outside the de minimis range—i.e., anything more than “a trifling consequence and a matter so small that the court does not even wish to consider it”—then that is an extremely low bar for an applicant to climb. It is basically saying that if an accident had any determinable (even if negligible) effect on an individual at all, then that would trigger full liability for the responding insurer. However, that seems to be at odds with any ordinarily understood, day-to-day meaning of “materiality”.
How should the relevant test be applied to the facts of this case?
Having found that either the but for test or the material contribution test can both validly be applied to this case, I find that ultimately it makes no difference to the result. I find that the Applicant would not satisfy either test, including the lower standard of the material contribution test. On the evidence, I cannot find that the MVA had any impact on the Applicant’s ability to engage in employment for which she was reasonably suited by education, training, or experience (i.e., occupational therapy) for the period after February 18, 2015. I am satisfied on the evidence that the Applicant already had no ability to work in the occupational therapy field before the MVA, and was already functionally unemployable. The MVA made no impact on the question in dispute.
I referred earlier to Agyapong for Arbitrator Wilson’s analysis of the relevant causation test. But I also found his analysis of the facts before him very cogent, and highly relevant to the present case. Arbitrator Wilson stated as follows:
While [Mr. Agyapong] had managed to obtain skilled, hard work with Maple Leaf Foods as a cutter in their meat processing facility, he also endured a series of industrial accidents, criminal assaults and a motor vehicle accident in the months and years prior to the July 12, 2005 motor vehicle accident that gives rise to his dispute with Jevco.
While there is no question that Mr. Agyapong, a pedestrian, was hit by a pickup truck while crossing a Hamilton street, there is also no question that this was only the culmination of a series of events that had already rendered him incapable of performing his duties as a cutter at Maple Leaf.
The “but for” analysis is the simplest to deal with and Mr. Agyapong has the burden of showing that but for the accident of July 12, 2005, he would not suffer the disabilities that he puts forward as the basis of this claim.
From these records, I find it impossible to ascertain if and why the subject accident had any significant effect on the ongoing difficulties experienced by Mr. Agyapong. His significant problems being much the same before and after the accident, I cannot find that but for the accident, they would not have happened.
Assuming however that the rationale in Monks still applies and that causation should be analysed on the basis of a material contribution to the disabilities suffered, I reach the same conclusion. While it makes sense that being knocked over by a motor vehicle will likely contribute to an accident victim’s overall level of complaint, credible evidence is lacking that this accident materially contributed to the ongoing knee, back and shoulder pain that Mr. Agyapong was experiencing.
The mere existence of complaints after an accident is not in itself sufficient to attribute causation. The use of the word “material” to modify “contribution” in the phrase “material contribution” suggests that the contribution of the subject accident must be more significant and not form simply a minor or insignificant part of the causation spectrum.
Notwithstanding Mr. Agyapong’s evidence to the contrary, I do not find that the July 12, 2005 accident was either significant or influential in creating the disability reported post-accident.
In the face of the confusing and sometimes conflicting information in the medical records, I have no choice but to find that Mr. Agyapong has simply not met the burden of proving that, more likely than not, his July 12, 2005 accident was a material contributor to his post-accident complaints and disability.
I am satisfied on the basis of the evidence presented to me that, as a practical reality, the Applicant was unemployable as an occupational therapist before the MVA. The MVA had no impact on this status, which is the only question before me—i.e., did the MVA cause the Applicant to be unable to work in the field she is qualified for by reason of education, training, and experience? The Applicant had already been fired from KM Medical Management in March 2011 for being unable to complete a sufficient volume of reports—a central feature of the job. I accept that was probably largely attributable to her alcoholism and drug abuse. It was also doubtful that the drug use and alcoholism was ever going to stop—there was strong evidence that the Applicant was ambivalent towards abstinence, and had been miserable and socially isolated any time she briefly tried to stop. It was also persistent throughout the CAMH records that the Applicant is frequently late for appointments, and her tardiness was also commented on by employers in the records. There was evidence the Applicant did not like the work of an occupational therapist—at least certainly not the kind of work she was receiving. The Applicant was unable to find a job in occupational therapy for the remainder of 2011, and in fall 2011 she herself doubted she could get or maintain a job in occupational therapy, and mostly shifted her mind towards working as a server—which, outside of a three week temporary position with Cirque de Soleil, she also had difficulty obtaining. While the Applicant’s counsel made efforts to paint the Applicant as a high-achiever, which may have possibly been true at one time (although that was also disputed by State Farm), I certainly do not accept that it was true at any time in 2011. I am satisfied from the employment record that the Applicant did a poor job at KM Medical Management, from which she was fired after only four months in March 2011, and am satisfied from the CAMH records that the Applicant’s mental health spiraled downward significantly throughout 2011.
The foundations of the Applicant’s theory of the case seem to stem from L.C.’s assertions that the Applicant’s downward spiral began after the MVA, and not before. L.C. first became concerned when a police officer advised her the MVA may have been a suicide attempt, and then she (and her son) became extremely concerned after a family Christmas gathering in Winnipeg in December 2011, when the family apparently saw the Applicant using cocaine for the first time. Their conclusion was that the Applicant spiraled downward significantly after the MVA, and therefore it must have been attributable to the MVA.
I do not agree. The Applicant’s medical records show her downward spiral commenced well before the MVA, and was already extremely serious before it, to the point she was socially dysfunctional. The CAMH progress notes—in the words of Dr. Waisman, “thousands of progress notes”—are extensive on that point. The fact the Applicant’s condition got worse after the MVA (e.g., 2012 and 2013) is in no way inconsistent with the fact she was already in a significant downward spiral before the MVA. If someone was on a downward spiral and getting continually worse throughout 2010 and 2011, then the fact they were worse in 2012 and 2013 can just as easily be interpreted as a continuation of the existing trajectory, as opposed to attributable to an intervening incident. There was no noticeable change in the trajectory that I can see attributable to the MVA.
The evidence was clear that L.C. was not fully aware of the extent of the Applicant’s substance abuse, difficulties at work, suicidal ideations, or the extent of her obsessiveness over Colin, all of which were extremely relevant to the sequence of events. Accordingly, her testimony about the history of events appeared deeply flawed.
I find the best explanation for the sequence of events was provided by Dr. Hines. Dr. Hines predominantly attributed the Applicant’s symptoms to her BPD, and could not find any evidence linking her conditions to the MVA. Dr. Hines described BPD as a disorder regarding emotional difficulty relating to other people, and regressions are related to interpersonal interactions. He felt the MVA did not affect the Applicant’s BPD because it did not involve another person, and difficulties in BPD are always in the context of other people and relating to others. I accept that.
I also question whether the Applicant ever suffered a concussion, as alleged. Much of the Applicant’s case emanated from Dr. Henri-Bhargava diagnosing her with “classic symptoms of post-concussion disorder” on December 14, 2011. But I accept Dr. Esmail’s testimony that post-concussion disorder cannot be diagnosed until three months following a concussion. It was unclear if a concussion had ever been diagnosed in the first place. Dr. Esmail also questioned how it was possible the Applicant could have hit her head on the steering wheel in the accident, given that the air bag deployed. CT scans on the Applicant’s brain came back normal. Dr. Esmail found no neurological basis for the Applicant’s impairments, and opined that her condition likely owed to psychological co-morbidities. Dr. Hines testified that the only evidence of TBI he could identify was by the Applicant’s own self-report. Members of the Applicant’s own family have said the Applicant takes pride in being able to outsmart health professionals,103 and that she had been “pulling the wool over” therapists’ eyes for a long time.104
Ultimately, I believe that the CAMH records are the best reflector of who the Applicant was, both before and after the MVA. Their content bears hallmarks of truth, and in the context of how and why they were created, there is no reason to think they would be inaccurate. They reflect a lot of the Applicant’s most personal thoughts and experiences, and provide a clear view of how deeply troubled she was in 2011 before the MVA. It was therefore notable that, for all of the detail the Applicant regularly told her therapists about problems in her life, it was not until her seventh interaction with CAMH after the MVA, on November 16, 2011, that the Applicant even mentioned the MVA to her therapists at all. Six other interactions with CAMH therapists between November 9, 2011 and November 15, 2011 show no mention of the MVA at all.105 A review of the CAMH records plainly demonstrates that the Applicant was comfortable telling her therapists about numerous difficult problems in her life, but immediately after the MVA it did not even register as a topic worth mentioning for her. That is telling in terms of the impact the incident had on the Applicant’s life. The notes from that week remain full of her ruminations about Colin and how her behaviours were out of control, which were already regularly the case before the MVA.
I ascribe little weight to Dr. Waisman’s testimony. My overall sense was that he was trying to make facts presented to him fit his theory of the case (i.e., that the MVA was the cause of the Applicant’s inability to work), rather than the other way around. Ultimately, his admission that he did not read all of the CAMH notes was extremely telling. I find the basis of his conclusions seemed entirely founded on the Applicant’s and L.C.’s self-reports—which I have determined were either incomplete or unreliable, and in many aspects self-serving. The Applicant’s counsel suggested that I should prefer Dr. Waisman’s testimony over that of Dr. Hines because Dr. Waisman has better professional credentials, and Dr. Hines may be biased because the majority of his work is IEs. My impression of the evidence was the opposite. I found Dr. Hines an extremely credible witness, and his testimony was measured and believable with reference to the facts of the case. Dr. Waisman came with a theory of the case and was unwilling to bend on any of it, even in the face of credible evidence that seemed directly at odds with what he was saying. His report was also completed in the absence of a neurological evaluation, which he had initially stated in 2015 he required before he could complete his assessment. Ultimately, I prefer the quality of a witness’ evidence over the quality of their credentials on paper.
The Applicant’s claims are dismissed. To paraphrase Arbitrator Wilson in Agyapong, I do not find that the November 7, 2011 accident was either significant or influential in creating the Applicant’s disability reported post-accident.
EXPENSES:
No expenses were requested with respect to this Hearing. If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the DRPC.
August 21, 2017
Benjamin Drory Arbitrator
Date
Financial Services Commission of Ontario
Neutral Citation: 2017 ONFSCDRS 224
FSCO A15-006454
BETWEEN:
J.C.
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c. I.8, as it read immediately before being amended by Schedule 3 to the Fighting Fraud and Reducing Automobile Insurance Rates Act, 2014, and Ontario Regulation 664, as amended, it is ordered that:
J.C. is not entitled to Income Replacement Benefits for the period from February 19, 2015 to date and ongoing.
J.C. is not entitled to interest for the overdue payment of benefits.
If the parties are unable to agree on the entitlement to, or quantum of, the expenses of this matter, the parties may request an appointment with me within 30 days of the date of this order for determination of same in accordance with Rules 75 to 79 of the Dispute Resolution Practice Code.
August 21, 2017
Benjamin Drory Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended.
- Exhibit 1—CAMH Progress Notes, Tab 53(M), p. 5
- Exhibit 1—Tab 53(N), p. 7.
- Exhibit 1—Tab 53(B), p. 10.
- Exhibit 1—Tab 53(B), p. 15.
- Exhibit 1—Tab 53(C), p. 1.
- Exhibit 1—Tab 53(C), p. 2.
- Exhibit 1—Tab 53(C), p. 3.
- Exhibit 1—Tab 53(C), p. 5.
- Exhibit 1—Tab 53(C), p. 7.
- Exhibit 1—Tab 53(D), p. 2.
- Exhibit 1—Tab 53(D), p. 3.
- Exhibit 1—Tab 53(D), p. 4.
- Exhibit 1—Tab 53(D), p. 6.
- Exhibit 1—Tab 53(D), p. 7.
- Exhibit 1—Tab 53(D), p. 9 .
- Exhibit 1—Tab 53(D), p. 10.
- Exhibit 1—Tab 53(D), p. 10.
- Exhibit 1—Tab 53(D), p. 11.
- Exhibit 1—Tab 53(E), p. 2.
- Exhibit 1—Tab 53(E), p. 8.
- Exhibit 1—Tab 53(E), p. 9.
- Exhibit 1—p. 53(E), p. 10.
- Exhibit 1—Tab 53(F), p. 2.
- Exhibit 1—Tab 53(F), p. 5.
- Exhibit 1—Tab 53(F), p. 7.
- Exhibit 1—Tab 53(F), p. 9.
- Exhibit 1—Tab 53(F), p. 8.
- Exhibit 1—Tab 53(F), p. 13.
- Exhibit 1—Tab 53(G), p. 2.
- Exhibit 1—Tab 53(G), p. 3.
- Exhibit 1—Tab 53(G), p. 10.
- Exhibit 1—Tab 53(H), p. 3.
- Exhibit 1—Tab 53(H), p. 5.
- Exhibit 1—Tab 53(H), p. 13.
- Exhibit 1—Tab 53(H), p. 20.
- Exhibit 1—Tab 53(H), p. 22.
- Exhibit 1—Tab 53(H), p. 27.
- Exhibit 1—Tab 53(I), p. 15.
- Exhibit 1—Tab 53(I), p. 25.
- Exhibit 1—Tab 53(J), p. 3.
- Exhibit 1—Tab 53(J), p. 3 (2nd note).
- Exhibit 1—Tab 53(J), p. 17.
- Exhibit 1—Tab 53(J), p. 20.
- Exhibit 1—Tab 53(J), p. 22.
- Exhibit 1—Tab 53(J), p. 28.
- Exhibit 1—Tab 53(K), p. 1.
- Exhibit 1—Tab 53(K), p. 1 (2nd note).
- Exhibit 1—Tab 53(K), p. 3.
- Exhibit 1—Tab 53(K), p. 4.
- Exhibit 1—Tab 53(K), p. 15.
- Exhibit 1—Tab 53(K), p. 18.
- Exhibit 1—Tab 53(K), p. 20.
- Exhibit 1—Tab 53(K), p. 23.
- Exhibit 1—Tab 53(L), p. 4.
- Exhibit 1—Tab 53(L), p. 8.
- Exhibit 1—Tab 53(L), p. 8 (2nd note).
- Exhibit 1—Tab 53(L), p. 11.
- Exhibit 1—Tab 53(L), p. 12.
- Exhibit 1—Tab 53(L), p. 13.
- Exhibit 1—Tab 53(L), p. 14.
- Exhibit 1—Tab 53(L), p. 16.
- Exhibit 1—Tab 53(L), p. 17.
- Exhibit 1—Tab 53(L), p. 19.
- Exhibit 1—Tab 53(M), p. 1.
- Exhibit 1—Tab 53(M), p. 3.
- Exhibit 1—Tab 53(M), p. 10.
- Exhibit 1—Tab 53(N), p. 14.
- Exhibit 1—Tab 53(O), p. 4.
- Exhibit 1—Tab 53(O), p. 6.
- Note 55, supra.
- Application by Physician for Psychiatric Assessment under the Mental Health Act, R.S.O. 1990, c. M.7.
- Exhibit 17—Employment File from KM Medical Management, Tab 41, p. 24.
- Note 73, supra.
- Note 60, supra.
- Note 61, supra.
- Note 49, supra, at pp. 12-13.
- Exhibit 1—Tab 53(L), p. 6, Ms. Green.
- Exhibit 1—Tab 53(P), p. 13, Dr. Wiebe.
- Exhibit 1—Tab 53(Q), p. 2.
- Exhibit 1—Tab 53(Q), p. 3.
- Exhibit 1—Tab 53(F), all.
- Sabadash and State Farm Mutual Automobile Insurance Company (FSCO A14-001839, March 7, 2016).
- Blake v. Dominion General Insurance Company of Canada, 2015 ONCA 165 (Ont. C.A.).
- Sabadash, at [99].
- Monks v. ING Insurance Co. of Canada, 2008 ONCA 269, [2008] 90 O.R. (3d) 689 (Ont. C.A.).
- Sabadash, at [100].
- Exhibit 4—Toronto East General Hospital Records, Tab 59(B).
- Exhibit 1—Tab 53(M), p. 5.
- Exhibit 1—Tab 53(N), p. 7.
- Exhibit 1—Tab 53(N), p. 7.
- Note 81, supra.
- Exhibit 3—Clinical Notes and Records of Dr. Betty Hum, Tab 52(E), p. 96.
- Exhibit 1—Tab 53(L), p. 15.
- Exhibit 1—Tab 53(O), p. 10.
- Exhibit 27—Tab 56(C), p. 111.
- Exhibit 4—Tab 59(B), p. 534.
- Agyapong and Jevco Insurance Company (FSCO A11-003445, January 25, 2016).
- McMichael and Belair Insurance Company Inc. (FSCO A02-001081, March 14, 2006).
- Note 111, supra.
- Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458.
- Greenhalgh v. Douro-Dummer (Township), 2009 CanLII 71014 (ON SC), [2009] O.J. No. 5438 (Ont. S.C.J.).
- Note 104, supra.
- Note 78, supra.
- Exhibit 1—Tab 53(L), pp. 14-17.