Court File and Parties

Newmarket Court File No.: CV-11-00107056 Date: 2016-04-28 Ontario Superior Court of Justice

Between: Marlene Bishop-Gittens, Plaintiff And: Jimmy Kyin Hlaing Lim, Defendant

Counsel: Erin M. Neal, for the Plaintiff Sara Pottle, for the Defendant

Heard: January 8 and 25, 2016

Reasons for Decision

McKelvey, J.

Introduction

[1] This case involves a claim for personal injury by the plaintiff Marlene Bishop-Gittens, which is alleged to arise out of a motor vehicle accident, which occurred on November 18, 2009. Liability in the action was admitted by the defendant. The only issue at trial was the assessment of damages. At the trial the plaintiff sought general damages in the range of $85,000 to $100,000. The defence position was that the damages should be assessed in the range of $5,000 to $7,500. The plaintiff also sought damages for future loss of income and loss of competitive advantage. The amount claimed for loss of competitive advantage was $402,854 to $719,466. The amount claimed for loss of income by the plaintiff was $522,534 to $743,763. The defence position was that no award should be given for loss of competitive advantage or future loss of income. After a three week trial the jury returned a verdict of $40,000 for general damages and no award for loss of competitive advantage or future loss of income.

[2] The defence has now brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss is barred on the basis that her injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5) of the Insurance Act, R.S.O., 1990, chapter I.8 and the applicable regulations.

Applicable Legal Principle

[3] Section 267.5 of the Insurance Act provides that the owner of an automobile is not liable in an action for non-pecuniary loss unless the injured person has sustained permanent serious disfigurement or permanent serious impairment of an important physical, mental or psychological function. In the present case the plaintiff did not sustain any permanent serious disfigurement. Therefore, the question to be addressed is whether she sustained a permanent serious impairment of an important physical, mental or psychological function.

[4] Section 4.2 of regulation 461/96 sets out the criteria which must be satisfied in order to establish the permanent serious impairment test set out in s.267.5(5) of the Insurance Act. This provision states,

1. The impairment must, (i) Substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment; (ii) Substantially interfere with the person’s ability to continue training for a career in a field for which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodations to allow the person to continue his or her career training, or (iii) Substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. For the function that is impaired to be an important function of the impaired person, the function must, (i) Be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodations to allow the person to continue employment, (ii) Be necessary to perform the activities that are essential tasks of the person’s training for a career in a field which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, (iii) Be necessary for the person to provide for his or her own care or well-being, or, (iv) Be important to the usual activities of daily living, considering the person’s age.

3. For the impairment to be permanent, the impairment must, (i) Have been continuous since the accident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, (ii) Continue to meet the criteria in paragraph 1, and (iii) Be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

[5] In determining whether the threshold has been met a trial judge may consider the verdict of the jury. This is a consideration to take into account, but it is not binding on a trial judge’s determination. See Kasap v. MacCallum, [2001] OJ 1719, a decision of the Ontario Court of Appeal and DeBruge v. Arnold, 2014 ONSC 7044.

[6] The burden of proof is on the plaintiff to prove on a balance of probabilities that she has satisfied the criteria and that she fits within one of the exceptions to s. 267.5 of the Insurance Act. In considering whether a plaintiff has met the threshold requirements the case law has also established that the trial judge should sequentially answer the following questions:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If the answer to question 2 is yes, is the impairment of the important bodily function serious?

See Meyer v. Bright, [1993], 15 OR (3rd) 129 Ontario Court of Appeal, Malfara v. Vukojevic, 2015 ONSC 78 and Berfi v. Muthusamy, 2015 ONSC 981.

Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?

[7] Section 4.3 of regulation 461/96 sets out the evidence a plaintiff must adduce to prove her injuries have met the threshold standard. This section states;

4.3 (1) a person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental, or psychological function for the purposes of s. 267.5 of the Act

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains, (a) The nature of the impairment; (b) The permanence of the impairment; (c) The specific function that is impaired; and, (d) The importance of the specific function to the person.

(3) The evidence of the physician, (a) Shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and, (b) Shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

[8] In Meyer v. Bright the Ontario Court of Appeal noted that in formulating an answer to this first question a court will decide the issue based on its assessment of the medical and other evidence presented to it. The Court of Appeal noted that some injuries which are physical in nature can be diagnosed objectively while some others can be diagnosed only upon the basis of a patient’s subjective complaints and others are diagnosed on the basis of both objective observations and the patient’s subjective complaints. In the present case the plaintiff asserts that she suffered chronic pain disorder as a result of the accident. As a result, the diagnosis rests heavily on the plaintiff’s subjective complaints.

[9] In her evidence the plaintiff described her current symptoms which include the following;

1. Severe headaches;
2. Neck and shoulder pain;
3. Pain in the middle of her back;
4. Lower back pain;
5. Sleep difficulties and emotional instability;
6. Problems with her knees so that going downstairs is a challenge;
7. Problems in her feet that preclude wearing high heels.

[10] The plaintiff’s most serious complaints appear to relate to her neck and back. Psychological wellness also appears to be a significant issue.

[11] The plaintiff described taking Advil as a muscle relaxant and for pain on a frequent basis. She also described having a significant increase in her weight which she attributed to a lack of physical activity resulting from the accident. She subsequently lost about 33 pounds, but is not yet back to her pre-accident weight.

[12] The plaintiff currently takes medication for high cholesterol as well B-12 injections. She was also diagnosed subsequent to the accident with a large fibroid in her abdomen. This problem appears to be associated with vaginal bleeding which stopped after the plaintiff had surgery to remove the fibroid in 2013.

[13] The plaintiff adduced evidence at trial from work colleagues, friends and relatives who corroborated many of the problems described in her evidence.

[14] In answering this first question it is apparent that a good deal turns on a consideration of the medical evidence adduced at trial. The plaintiff called Dr. Tom Chen, who is an expert in physical medicine and rehabilitation. Dr. Chen testified that as a result of the motor vehicle accident the plaintiff has developed a chronic pain disorder. He stated that it is not unusual to see a whiplash injury evolve over time as a result of soft tissue injuries. He explained that headaches are a common symptom associated with chronic pain. He noted that the plaintiff at the time of the accident had degenerative disc disease. This is not an unusual finding for adults as they age. In the present case the plaintiff was 37 years old at the time of the accident and was 42 years old at the time of trial. Dr. Chen stated that in the case of an accident what often happens is that previously non-symptomatic, non-painful findings will become a trigger resulting in pain in the neck and the low back area.

[15] In his physical assessment of the plaintiff Dr. Chen found reduced range of motion in the neck and low back. The range of motion of the plaintiff’s legs and knees were both within normal limits.

[16] Dr. Chen said that he looked for evidence of pain magnification but did not see anything on his examination to suggest this.

[17] Dr. Chen stated that in his medical opinion the plaintiff’s impairments were serious and permanent.

[18] Dr. Michael Ford was called by the defendant. He was qualified as an expert in orthopedic, spine and trauma surgery with experience in the assessment of chronic pain and chronic pain disorder.

[19] Dr. Ford did an orthopedic assessment of the plaintiff on January 15, 2013. He did not prepare a report until June 16, 2013. The delay in preparing the report was caused by other priorities in Dr. Ford’s practice.

[20] Dr. Ford suggested that the plaintiff had suffered soft tissue injuries as a result of the accident. These types of injuries typically resolve. He would have expected a complete resolution of the injuries over a period of 6 to 12 weeks. He stated that there was no organic explanation for the plaintiff’s continuing complaints which were 5 years post-accident. He suggested that there were no limitations to prevent the plaintiff from returning to her normal activities or work and did not see any relationship between the motor vehicle accident and the plaintiff’s current complaints.

[21] Dr. Ford also testified that chronic pain is pain which persists over a period of time more than 6 weeks. With respect to Dr. Chen’s diagnosis of chronic pain disorder, Dr. Ford stated that this was first described by the American Psychological Association. In the latest DSM-V, it identified the criteria for a diagnosis of chronic pain disorder. In order to make this diagnosis, Dr. Ford stated that there should be no organic source for the pain. Dr. Ford stated that the diagnosis was one of exclusion and that the DSM criteria indicate that a diagnosis of chronic pain disorder should not be made where litigation or compensation issues are pending. In the circumstances of this case, therefore, he asserted that chronic pain disorder was not an appropriate diagnosis.

[22] It is apparent that the opinions of Dr. Chen and Dr. Ford cannot be reconciled. In considering those opinions, I prefer the opinion of Dr. Chen over that of Dr. Ford. I conclude Dr. Chen’s qualifications in the area of chronic pain disorder are superior to those of Dr. Ford. Dr. Chen’s practice involves patients with difficult and complex pain problems. He routinely gets referrals from family physicians and experts who rely on his expertise in the field of chronic pain. Much of his practice is focussed on the assessment and treatment of chronic pain. Dr. Ford on the other hand focuses his practice on spinal and orthopedic trauma and his major focus appears to be on surgery. In his evidence he explained that he needs to be able to identify chronic pain disorder because it has a profound effect on the outcomes from surgery. He stated in his evidence,

We’re operating on the whole person, and if a significant component of the person has altered behavioral response to pain - they’re typically - they typically will not do well with any treatment period because that is one of the definitions of chronic pain disorder is that invariably they do not respond to treatment.

[23] Dr. Ford’s involvement in the diagnosis of chronic pain disorder is therefore limited and ancillary to the main focus for his practice. Dr. Chen’s experience on the other hand is far broader and chronic pain disorder is a major part of his practice. In addition, Dr. Ford’s involvement with the plaintiff was limited to 30 minutes which included all of his physical examination.

[24] Further, while Dr. Ford stated that the plaintiff could return to regular physical activities and while he also ruled out any organic problem or chronic pain disorder, he did not specifically provide an explanation for the plaintiff’s ongoing complaints. One was left to wonder at the end of his evidence what was the reason for the ongoing symptoms the plaintiff described.

[25] I therefore accept Dr. Chen’s opinions including his diagnosis that the plaintiff suffers from chronic pain disorder which was caused by the motor vehicle accident.

[26] In accepting Dr. Chen’s opinions and rejecting those of Dr. Ford, I have also taken into account that the plaintiff’s symptoms are supported not only by her own evidence but also by a number of witnesses who were in a position to observe the plaintiff’s condition following the motor vehicle accident. While there might be some reason to suspect the plaintiff tended to exaggerate her complaints at times during her testimony her evidence was supported in large part by other witnesses who were called at trial. The evidence of these witnesses was not successfully challenged in my view on their cross-examination. In a number of cases these witnesses were work colleagues who had no apparent reason to favour the plaintiff’s position in this litigation.

[27] The defence argues that the evidence in this case is that any injury suffered by the plaintiff is not permanent and refers to s. 4.2(3) of the regulation 461/96 which states that for the impairment to be permanent it must have been continuous since the accident. The defence is correct that some of the available medical records do not mention all of the complaints raised at trial. In addition there are periods of time when the plaintiff was not regularly attending therapy.

[28] In some cases there is an explanation as to why the plaintiff might not be reporting her symptoms to an attending physician. Thus, when the plaintiff was attending for treatment relating to the fibroid it seems unlikely that her gynecologist would be particularly interested in the plaintiff’s sequelae from a motor vehicle accident. However, it is somewhat surprising that there are few entries in the clinical notes and records of her family doctor, Dr. Ansari which relate to her symptoms from the motor vehicle accident.

[29] The records of the plaintiff’s chiropractor, Dr. Dean Antoniazzi, however do provide compelling evidence that the plaintiff was experiencing the symptoms described in her evidence up until the date of trial. Dr. Antoniazzi first saw the plaintiff in December, 2009. The plaintiff’s last visit to Dr. Antoniazzi prior to the trial was in April, 2015. In his evidence Dr. Antoniazzi noted that he treated the plaintiff for symptoms in her neck, back, right shoulder and left knee. She was also complaining of blurred vision, dizziness and headaches. In total the plaintiff attended on 86 visits with Dr. Antoniazzi prior to trial. While not all the plaintiff’s complaints were documented on each visit, it is apparent that the plaintiff did attend regularly for treatment. The nature of the treatment was consistent over time.

[30] On cross-examination Dr. Antoniazzi agreed there were some breaks in his treatment of the plaintiff. He was referred to one 6 month period where the plaintiff did not attend for treatment and Dr. Antoniazzi had no personal knowledge as to why this was the case.

[31] In the present case the plaintiff acknowledged in her evidence that there are occasions when her symptoms improved. For example summertime is a better season for her and she stated,

I am not feeling as much pain. The pain is still there. In the wintertime it’s a lot.

[32] This was also reflected in Dr. Chen’s evidence who testified on cross-examination that for chronic pain it is not unusual to have different pain characteristics and pain levels over the course of four years.

[33] I accept that the plaintiff’s symptoms fluctuated. They varied both in terms of intensity and frequency. However, I reject the defence suggestion that the requirement for the impairment to be “continuous” means that the symptoms must be constant and unrelenting. In Frankfurter v. Gibbons, [2004] 74 O.R. (3d) 39, the divisional court rejected the suggestion that “permanent means constant”. The court noted that a continuing impairment, albeit experienced intermittently, can satisfy the requirements of the Statute.

[34] I agree with that analysis. The Regulation does not mean that a plaintiff is required to experience symptoms on a constant basis as suggested by the defence. Rather what is required is a pattern of continuing symptoms in the areas described by the plaintiff which may wax and wane over time but which persist on a long term basis. I accept the opinion of Dr. Chen that the plaintiff’s prognosis is poor and she is not expected to substantially improve. I therefore conclude that the plaintiff has satisfied me that she has sustained a permanent impairment of a physical, mental or psychological function. The functions impaired by her symptoms include bending, walking, sleeping, lifting and psychological well-being.

Is the function which is permanently impaired important?

[35] Under s. 4.2 of the Regulation and in the context of this case, for the function that is impaired to be an important function of the impaired person the function must either be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment or be important to the usual activities of daily living, considering the person’s age.

[36] In dealing with the issue of the effect of the accident on the plaintiff’s employment, I have concluded that she has not met the required threshold.

[37] In her evidence at trial the plaintiff testified that at the time of the accident she had just recently been hired as general manager of the flagship retail store operated by Nygard. She was responsible for supervising approximately 30 employees. She took one day off and returned to work after the accident, but had to be accommodated on her return to work because of the pain she was experiencing. Two assistant managers were hired to take care of many of the physical aspects of her job.

[38] The plaintiff worked at Nygard until July, 2011. She had been working as an acting district manager prior to leaving Nygard. The position required a lot of driving and the plaintiff stated that it took a toll on her. She was subsequently recruited to work as a general manager at a retail GAP store. This position was attractive because she was only required to spend about 25 per cent of her time on the floor and it was less physically demanding than her job at Nygard. Nevertheless, she expressed concern in her evidence about her ability to get the job done as the general manager at the GAP store.

[39] While the evidence indicates that the plaintiff has required significant accommodation in the work place following the motor vehicle accident it is also apparent that she has not taken a large amount of time off work. It is also clear that she has been very successful in her career since the accident. In 2004, her total earnings were $9,595. This increased in 2005 to $16,896. By 2009, which is the year of the accident, the plaintiff earned $47,811. By 2011, when she started work at the GAP, her income increased $51,251. In 2013 her earnings were $72,764. Her earnings dropped in 2014 to $67,626.

[40] In her evidence, the plaintiff stated that her goal is still to become a district manager. However, she is not sure she is ready, physically or mentally, to take on such a new challenge.

[41] While I accept that the plaintiff has required significant accommodation at her work place it also appears clear based on the evidence that with the benefit of this accommodation she has been able to carry out the essential tasks of her regular or usual employment. This is reflected in the fact that her income from employment has increased substantially since the time of the accident. The evidence does not suggest that she is at any future risk of unemployment which would exceed the usual contingencies that apply to the general population. The evidence of her co-workers supports a conclusion that she is a respected and effective manager in the retail store environment. For example Tamatha Goudie, who worked with the plaintiff at the GAP, testified in cross-examination that the plaintiff was an effective manager and the store performed very well under her management.

[42] The plaintiff argues that the evidence of accommodation supports the conclusion that her injuries constitute an impairment in relation to her employment. I disagree. The plain wording of the regulation suggests to me that a person who is able to perform the essential duties of her usual employment with the assistance of accommodation does not meet the requirements of s. 4.2(2) of the regulation and does not satisfy the requirement under that heading to qualify the impairment as relating to an important function.

[43] I also find it significant that the jury did not make any award for loss of competitive advantage or loss of future income. All of these factors convince me that the plaintiff has not established that she has met the standard required with respect to her employment.

[44] This leaves the issue as to whether the plaintiff has established that most of her usual activities of daily living have been impaired. I have concluded that the plaintiff has succeeded in demonstrating that most of her usual activities of daily living have been affected and that the functions impaired are important.

[45] In her evidence the plaintiff testified that she moved to a one bedroom condo of about 500 square feet. Part of the reason for the move to a small apartment was her difficulty in cleaning. In her evidence the plaintiff testified,

Cleaning I have to do it in portions. So if you understand, like, I’d like to get the whole house done so I’ll say, okay, let’s go into the living room. Sometimes I have friends who will come over and say, oh, we will help you clean today or - but for the most part I just try to do it. I just don’t want to be a bother to anyone, and I don’t want to – I don’t always have the money to ask or pay someone to come and do it.

[46] The plaintiff gave evidence that it takes up to 6 hours to clean her apartment. She also described in her evidence how her ability to cook meals has been severely impacted. Further, she described how she has to substantially restrict her activities. Prior to the accident she described having a lot of energy and always wanting to go out and party with her friends. These activities have been seriously curtailed and evidence from some of her friends who testified at trial support the plaintiff’s assertions in this regard. I accept that the plaintiff’s ability to cook and manage her household has been impacted by the accident. I also accept that her extra-curricular activities outside the home such as going out with friends have been significantly impacted as a result of the accident.

[47] I also accept that a number of important extra-curricular activities have been affected. For example, the plaintiff in her evidence referred to the fact that she recently had to resign from a position on what was called Heart to Heart which is an orginization set up to help inner city youth. She also described how her impairments limit in a significant way her activities while on holiday. She further described how her inability to walk quickly has resulted in her not being able to get to the bathroom on time.

[48] All of this evidence leads me to the conclusion that the plaintiff has established that the functions which have been impaired are important considering her pre-accident abilities, lifestyle and her age. This conclusion is supported by the evidence of Dr. Chen. In his evidence he stated that the plaintiff was noted to have impairments in range of motion, physical endurance, sitting and standing tolerance, in the sleeping function and in psychological wellness. He concluded that the plaintiff had lost the ability to fully perform all the activities of housekeeping such as preparing meals, cooking, vacuuming, mopping floors, scrubbing tiles, cutting grass and other daily activities. He noted that while the plaintiff may be able to do some of these activities the plaintiff suffers a disability in this regard from what a normal person would be able to do.

Is the impairment of the important bodily function serious?

[49] In order to answer this question consideration must be given to the nature of the impairment. Thus, the issue is whether the impairment identified in the plaintiff’s activities of daily living as noted previously are “serious”. In the Meyer v. Bright case the Ontario Court of Appeal explains that a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual activities of daily living. The court must decide whether the impairment is a serious one to the particular person. In the Meyer v. Bright case the trial judge accepted Ms. Meyer’s evidence about the effects of her injuries which included not being able to carry on work with heavy things such as carrying loads of wash, or holding pots and pans in order to scrub them. The trial judge also described that the plaintiff was able to walk recreationally for only 30 minutes a day and in good weather. She controlled the pain with the Tylenol and found that her swimming was restricted but that this impairment was not a permanent one. He found that the plaintiff still enjoyed meal preparation and did as much of it as she could, but when entertaining large numbers of people she needed some help. Finally he noted that the plaintiff could do most things if she wanted to do so, but that her enjoyment of them was dramatically different from before.

[50] In accepting the decision of the trial Judge that the impairments of the plaintiff were not serious the Ontario Court of Appeal stated,

We would conclude from the findings of fact, made by Bowne, J, that the permanent impairment of important bodily functions has detrimentally impacted mainly upon Mrs. Meyers’ enjoyment of life. Because it is only a serious impairment which will qualify as an acceptation under s. 266(1) (b) it is apparent that the legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue for it. We are not satisfied that the detrimental impact of the permanent impairment of Mrs. Meyers’ important bodily functions was of such a degree that we would call it a serious impairment.

[51] The serious nature of the impairment has been emphasized in other cases as well. In Strangis v. Patafio, 2013 ONSC 600 the court commented that the intent behind the threshold is clear. People are required to bear some non-trivial non-pecuniary losses arising from car collisions without compensation. It is not for the court to read down the provision so that it applies only to trivial functional impairments. The statutory framework in the case law makes it clear that the plaintiff must establish a serious impairment in order to satisfy the statutory criteria for the exception.

[52] On the other hand, the Court of Appeal in Meyer v. Bright makes it clear that serious does not mean catastrophic or an impairment at the upper end of the range. In their decision the court states:

“Serious” is a word that by its very nature imports a sense of degree and imports a range. The courts must avoid qualifying the word “serious”. If the Legislature had wanted to do so it could have said very serious to indicate that it was only those impairments which were at the upper end of the range which would permit an injured person to sue for damages.

[53] In considering whether the restriction for the activities of daily living is serious it is important to consider the credibility of the plaintiff as a good deal turns on this issue.

[54] In my view the plaintiff was generally a credible witness, but there was a tendency at times for her to exaggerate her symptoms arising out of the accident. As noted earlier, the plaintiff’s reports of her symptoms to her attending physicians were not all consistent and there were other inconsistencies in her evidence as well. Her tendency to exaggerate is best illustrated by comparing some portions of her evidence-in-chief to her cross-examination. In her examination-in-chief, and as noted previously, the plaintiff testified that during the summertime her symptoms improved significantly and she did not feel as much pain as during the wintertime. This variation in pain levels from time to time is also reflected in some of the medical records. In cross-examination, however, while being questioned about her level of pain the plaintiff responded,

I’m sorry, I, you know, I’m – I’m in constant pain. This is not just about me, just, you know, coming here and wanting to waste your time and the courts time. I’m in constant pain. I didn’t ask to be hit.

[55] I have therefore concluded that at some points there was a tendency by the plaintiff to exaggerate her symptoms.

[56] There is also evidence to suggest that the plaintiff suffered from other conditions which are unrelated to the accident. As noted previously the plaintiff suffered from a fibroid which was surgically removed in 2013. She appears to have made an excellent recovery from that surgery. There was no evidence to suggest that the fibroid had any relation to her continuing symptoms nor does it explain her ongoing impairments following her recovery from the surgery. The plaintiff also suffers from a B-12 deficiency. In the evidence of Dr. Chen he agreed on cross-examination that this could be related to nerve disease. He also stated that it was possible that the complaints of leg and hand numbness might be related to nerve disease and this is why he recommended an EMG nerve conduction study. However, the evidence of Dr. Chen which I accept is that the B-12 deficiency does not have a significant bearing on the plaintiff’s impairments. When questioned on this Dr. Chen stated,

But even if it was, and now that you’ve confirmed like okay does if she has B-12 deficiency, can that explain these symptoms, I would say, maybe some, but not a whole lot.

[57] The impairments and limitations of the plaintiff were observed and reported by the plaintiff’s colleagues, friends and relatives in evidence given at trial. I considered this evidence to be particularly important in light of the fact that there were inconsistencies in the plaintiff’s evidence. Some of these witnesses commented on the changes observed in the plaintiff’s activities of daily living. For example Dawn Griffith has been a friend of the plaintiff for over 20 years. She described the plaintiff as bubbly and vivacious prior to accident. They used to go out dancing and partying until the time of the accident. Subsequently she described the plaintiff as being not very outgoing. The plaintiff stays at home and does not do things like travelling as they used to. She described how the plaintiff has gained weight and is not as physically active and also described the plaintiff as being “reclusive”.

[58] Cassandra Asgari was a work colleague of the plaintiff’s. She did not consider her to be a personal friend. However, she worked at Nygard and as of November, 2009 was required to assist the plaintiff in her job responsibilities. During her cross-examination, she testified that she observed the plaintiff being in pain and having difficulty doing things such as bending and lifting. She also noted that the pain appeared to be primarily in the plaintiff’s back, legs and neck. She described the plaintiff as an individual who moved very slowly.

[59] Valentina Bona was the regional manager at Nygard. She also stated that she was not a personal friend of plaintiff’s. Her relationship was always at a very professional level. Prior to the accident she described the plaintiff as very upbeat and hardworking. She would work up to 12 hours a day if needed. She arranged for the accommodation necessary for the plaintiff in her employment after the accident. She said that the plaintiff could not carry out her shipping and receiving responsibilities nor her merchandising responsibilities. She also observed that the plaintiff moved very slowly and appeared to be in pain. She had a hard time bending down. She would frequently have to tell the plaintiff to sit down and take a break. She described how sometimes the plaintiff was not even able to move. She also described how the plaintiff was often very moody because of her pain and was rude.

[60] Another co-worker who testified was Tamatha Goudie, whose evidence was referred to earlier. She described the plaintiff’s physical limitations when she was working with the plaintiff. She stated that the plaintiff couldn’t bend down. This meant that she could not lock or unlock the door to the store because the lock was at the bottom. She stated that the plaintiff could not pick up hangers off the floor. She couldn’t help out with any physical activities such as moving tables or setting up walls. She also testified that on many occasions the plaintiff was not even able to help with even the sweeping of the floors.

[61] Overall I found the evidence of the friends and colleagues of the plaintiff convincing. Their stories were generally consistent with each other and the plaintiff’s evidence about the nature and extent of her impairments and no major inroads on their credibility were made on cross-examination.

[62] I acknowledge that the case before me is close to the line. However, I have concluded that the plaintiff’s impairments in her activities of daily living are serious and that they have caused a substantial inability for her to carry out most of her usual activities.

[63] In the Ontario Court of Appeal in May v. Casola, [1998] O.J. No. 2475, the court stated,

In our view a person who can carry on daily activities, but is subject to permanent symptoms including, sleep disorder, severe neck pain, headaches, dizziness, and nausea, which, as found by the motions Judge, had significant effect on her enjoyment of life must be considered as constituting serious impairment.

[64] Similarly in this case I find that the plaintiff’s continuing impairments have had a serious effect on her enjoyment of life. She is no longer able to enjoy the activities she used to participate in such as dancing and her extracurricular activities such as participation in groups such as Heart to Heart. Further, her level of activity and enjoyment of holidays has been significantly affected. I also find that her impairments have caused her personality to change. She has become less social and more reclusive. I therefore accept there has been a serious adverse impact on her psychological well-being.

[65] There are also serious impairments in her ability to do activities of daily living such as housecleaning, cooking and maintaining her home. These limitations have meant that she has been required to live in a small 500 square-foot apartment . While I acknowledge that many single persons live in a small apartment the plaintiff’s decision in this regard was motivated to a large extent by her physical limitations as opposed to other economic or personal reasons.

[66] I accept that the plaintiff has genuine physical limitations relating to her ability to bend and her ability to walk quickly. Her complaints of pain have also affected her ability to sleep which in turn has had a significant adverse effect on her energy level.

[67] While I recognize that the plaintiff may have exaggerated her pain complaints at points during her evidence, I accept that, overall, her continuing complaints of pain and functional impairment are genuine. Although these may wax and wane over time, they are persisting and significantly impact on the plaintiff’s quality of life. They are supported by friends and colleagues whose evidence I find to be credible and reliable.

[68] While the plaintiff has experienced other health issues since the accident such as a B-12 deficiency and a fibroid which was removed surgically in 2013, I have concluded that these other conditions have not significantly contributed to the plaintiff’s ongoing problems.

[69] The jury verdict of $40,000 for general damages would suggest that the jury rejected the defence position that the plaintiff suffered minimal injury as a result of the accident. While it is accurate to say that the plaintiff’s position was also rejected by the jury, the defence acknowledged in its submissions that the jury verdict, “slightly favours the plaintiff”, a conclusion I agree with. In my view the jury verdict recognized that the complaints expressed by the plaintiff were genuine and serious although not as devastating as claimed by the plaintiff at trial.

Conclusion

[70] For the above reasons, I conclude that the plaintiff has met her burden of establishing on a balance of probabilities that she did suffer a permanent serious impairment of an important physical, mental or psychological function in relation to her usual activities or daily living. The defence motion is therefore dismissed.

[71] If counsel cannot agree on their costs of this motion, then an appointment should be taken out through the trial coordinator within 30 days of the release of this decision to address the issue of costs. Prior to the hearing on costs, counsel are to deliver written briefs with respect to costs at least 5 days in advance of the hearing.

Mr. Justice M.K. McKelvey

Released: April 28, 2016

Newmarket Court File No.: CV-11-00107056 Ontario Superior Court of Justice Between: Marlene Bishop-Gittens, Plaintiff And: Jimmy Kyin Hlaing Lim, Defendant

Reasons for Decision Justice M. K. McKelvey

Released: April 28, 2016