Halley v. Toronto Transit Commission

Court File and Parties

COURT FILE NO.: CV-12-447350 DATE: 20181015 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Angela Fleming Halley, Plaintiff – and – Toronto Transit Commission and Natalie Chamber, Defendants

Counsel: Self-represented (for the Plaintiff) Stephen Sargent, for the Defendants

HEARD: October 12, 2018

Reasons for Decision

CAROLE J. BROWN, J.

[1] This jury trial, estimated to be two weeks in length, came before me on October 12, 2018. The defendant brought preliminary motions to have the matter dismissed or struck from the trial list. The two motions consisted firstly of a motion to have the matter dismissed on the grounds that the plaintiff had failed to comply with an order of Sanderson J to pay costs thrown away from an earlier adjournment. The second motion is a summary judgment or partial summary judgment motion dismissing all or part of the plaintiff’s action or, alternatively striking the action from the trial list.

The Action

[2] The plaintiff, Angela Fleming Halley (“Ms. Halley” or “the plaintiff)” brought this action on February 27, 2012, alleging that she had slipped and fallen on a Toronto Transit Commission (“TTC”) bus on September 29, 2010. The statement of claim alleges that, as a result of the fall, the plaintiff “sustained bruises, lacerations, injuries to various parts of her head and body and, more particularly, she sustained injuries to her head, neck, arms, hands, legs, back, shoulders, knees and feet, and, as a result, suffers from severe pain and headaches and sustained severe injuries causing a phobic anxiety state, depressive disorder and traumatic neurosis”.

[3] The statement of claim further alleges that “She has been and will be confined to her home. Her enjoyment of life has been and will be lessened. She has lost and will lose time from work, her earning power and ability to work have been and will be impaired. She has been and will be put to expense for hospital and medical attention, medicines and otherwise.” The plaintiff alleges that she has suffered a permanent serious impairment of a physical, mental and or psychological function, and seeks general damages in the amount of $1 million and special damages in the amount of $1 million.

The Proceedings

[4] This matter came on for trial on August 30, 2016 but was adjourned on consent. Thereafter, the plaintiff’s counsel removed himself from the record in November of 2016.

[5] On May 10, 2017, the matter came before Sanderson J. For trial. The plaintiff was unrepresented. Prior to selecting a jury, the TTC requested a witness list from the plaintiff. Sanderson J noted that the plaintiff was not ready for trial, had subpoenaed no witnesses, nor filed any documentation. The plaintiff had served no notices and, assuming medical reports or filing of clinical notes and records of the treating doctors, had made no arrangements for any medical witnesses to be available for trial for cross-examination by the TTC. Sanderson J wrote in her endorsement “I emphasized repeatedly that the onus is on the plaintiff to prove her case and if she wants to proceed she must marshal her evidence. While I refused to adjourn on a peremptory basis or to order costs thrown away to the defendant in any event of the cause, and left the costs of the adjournment to the trial judge, I wish to make it clear here that the plaintiff was not ready to proceed today. I have adjourned the commencement of this trial to May 7, 2018 for 10 days.”

[6] On June 6, 2018, this matter came back before Sanderson J for commencement of the trial. The trial was again adjourned to the next jury sittings starting on October 9, 2018 through November 2, 2018 peremptory to the plaintiff. The plaintiff was ordered to pay, forthwith, costs thrown away in the amount of $1500.

[7] Those costs were not paid and a motion was brought before Master Graham on September 17, 2018 to have the action struck for failure to comply with the court order. Master Graham found that he did not have jurisdiction to grant the order sought and left the issue to the trial judge. This is the second motion brought before me on October 12, at the commencement of the jury trial.

[8] The matter was scheduled for the October 9 sittings, and was called October 12.

The Positions of the Parties

The Position of the Defendant

[9] The Position of the Defendant, moving party, the TTC, that the plaintiff has not produced any evidence to establish her entitlement to any damages at law. The plaintiff intends to rely only on her own evidence. It is the position of the defendant that without any evidence from a physician, the plaintiff cannot induce the evidence required pursuant to the regulations to the Insurance Act to successfully make out a claim for non-pecuniary damages and healthcare expenses.

[10] It is the position of the defendant that the plaintiff has not complied with either the Rules of Civil Procedure or the Evidence Act with respect to entering documents into evidence at trial. The laws of evidence require the plaintiff to prove any document she intends to enter into evidence and to produce for cross-examination the author of any document she intends to enter into evidence.

[11] Further, it is the position of the defendant that the plaintiff will not, without evidence, be able to establish that she meets the statutory impairment threshold pursuant to the legislation, which would permit her to maintain a tort action. As well, there is no medical evidence of the plaintiff’s physical condition prior to and after the alleged fall. Nor is there any evidence of the plaintiff’s earning capacity, before or after the accident.

[12] Accordingly, it is the position of the defendant that without notice under the Evidence Act, a Request to Admit under the Rules of Civil Procedure, without witnesses to prove any documents and without any of the necessary opinions to establish that the plaintiff meets the threshold, there is nothing that could go to a jury and no questions that could be put to a jury.

The Position of the Plaintiff

[13] The plaintiff, in her submissions, made it clear that she intends to rely only on her own evidence and any evidence put forth by the defendant.

[14] She advised the court that the following her lawyer getting off the record, he provided her with three bankers boxes of documents in 2016. However, she stated that she has never looked at the documents in those boxes, despite being told by the court that it was her onus to establish her injuries and damages and that she should file all documentation upon which she tended to rely for the trial, and has done no work in this regard.

[15] She states that she has spoken to “thousands of lawyers” but has not been able to find one who will take her case, nor one she can afford.

[16] She states that she has had three TTC accidents, the one for which she is presently suing being the second.

[17] She states that she meets the threshold, that she has been on ODSP since 2017.

[18] She further states that she previously worked raising horses, has her own company and has recommenced that work. She further states that she trained as a paralegal.

[19] She states that she feels that she has been discriminated against and prejudiced by her previous lawyer, who got off the record, and by the courts. She wants to proceed with the trial.

The Legislative Framework

[20] The relevant statutory and regulatory provisions to be applied in the circumstances of this personal injury action are contained in sections 267.5 of the Insurance Act, R.S.O. 1990 c I.8 (“the Act”) and in regulations, ss 4.1, 4.2 and 4.3 of O.Reg. 461/96 as amended by O.Reg. 381/03.

[21] Sections 267.5 (5) (a) and (b) of the Act provide that the owner of an automobile is not liable in an action in Ontario for non-pecuniary loss resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function”.

[22] Section 267.5 (5) (a) and (b) provides as follows:

Non-pecuniary loss

(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

[23] The regulation helps to define what is meant by the threshold wording contained in section 267.5 of the act by defining the meaning of the words “permanent serious impairment of an important physical, mental or psychological function”. Sections 4.1, 4.2 and 4.3 of O.Reg. 461/96 (as amended by O. Reg. 381/03) (the (Regulation)) provide as follows:

(a) 4.1 For the purposes of section 267.5 of the Act,

(b) “permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.

(c) 4.2 (1) a person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

i. The impairment must,

ii. 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,

iii. substantially interfere with the person’s ability to continue training for a career in a field in 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 accommodation to allow the person to continue his or her career training, or

iv. substantially interfere with most of the usual activities of daily living, considering the person’s age.

b) 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 accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training or a career in a field in 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.

c) For the impairment to be permanent, the impairment must,

i. have been continuous sense the incident 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.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

[24] The regulation also sets out the expert medical evidence which must be adduced to prove that the statutory exception or “threshold” has been met.

[25] Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function:

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

(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 training 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 and on mobile.

(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, (6) this section applies with respect to any incident that occurs on or after October 1, 2003.

[26] The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. Meyer v Bright (1993), 15 O. R. (3d) 12 (C. A.), sets forth the three-part inquiry to be followed. And see: Grieves v Parsons, 2018 ONSC 26; Malfara v Vukojevic, 2015 ONSC 78.

a) has the injured person sustained permanent impairment of physical, mental or psychological function?

b) if yes, is the function impaired important?

c) if yes, is the impairment of the important function serious?

[27] Thus, the plaintiff must establish that the impairment is a serious impairment of an important physical mental or psychological function, and must also establish that the alleged condition was caused by the accident in order to meet the threshold. The legislation clearly sets forth that this must be established by a physician, who is in expert in the field of the alleged injury, and by some other evidence of change in function.

[28] The purpose or object of the statutory impairment threshold is to limit the right of persons injured in a motor vehicle accident to maintain a tort action and, by doing so, to control the cost of car insurance. In exchange for limits on their right to sue injured persons receive enhanced accident benefits regardless of fault: see Gyorffy v Drury, 2015 ONCA 31.

The Summary Judgment Motion

The Law

[29] Pursuant to Rule 20, summary judgment shall be granted where there is no genuine issue requiring a trial.

[30] In Hyrniak v Mauldin, 2014 SCC 7, [2014] S.C.J. No. 7, the Supreme Court of Canada determined that there would be no genuine issue requiring a trial where a judge is able to reach a “fair and just determination on the merits” of the case. This will be the case where the process: (1) permits the judge to make the necessary findings of fact on the basis of the evidence adduced, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[31] Pursuant to Hyrniak, the motion judge should first determine if there is a genuine issue requiring a trial based only on the evidence before the court, without using the new fact-finding powers set forth in Rule 20.04. There will be no genuine issue requiring a trial if the summary judgment process provides the court with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportional procedure. If there appears to be a genuine issue requiring a trial, the motion judge should determine if a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). The judge may, at his or her discretion, use those powers, provided that doing so does not offend the interest of justice, i.e., that it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[32] In this regard, I am cognizant of and have taken into consideration the findings of Karakatsanis J. addressing the “interest of justice” requirement in Hryniak v Maulden, supra., at paragraphs 48-51, as follows:

a) The “interest of justice” inquiry goes further and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of negative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a party could significantly advance access to justice and be the most proportionate, timely and cost-effective approach.

[33] The moving party bears the onus of establishing that there is no triable issue. However, a responding party must “lead trump or risk losing”: 1061590 Ontario Limited v Ontario Jockey Club, [1995] O.J. No. 132, 21 O.R. (3d) 547 (Ont. C.A.). The responding party may not rest on the allegations or denials in the pleadings, but must present by way of affidavit or other evidence, specific facts and coherent, organized evidence demonstrating a genuine issue. The motions judge is entitled to assume that the record contains all evidence that the parties will present if there is a trial. It is not sufficient for the responding party to say that more and better evidence will be available at trial. The court must take a “hard look” at the evidence to determine whether there is a genuine issue requiring a trial.

[34] The Court of Appeal has recently held that a motion for partial summary judgment is a “rare procedure”:

a) A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hyrniak, and with the direction that the rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. : Butera v Chown Cairns LLP, 2017 ONCA 783, 2017 CarswellOnt 15856; Espresso Tax Credit Fund III Limited Partnership v Arc Stainless Inc., 2018 ONSC 415, 2018 CarswellOnt 462.

Analysis and Conclusion

[35] The plaintiff seeks general and special damages for personal injuries allegedly sustained when she fell on at TTC bus. Her claim for non-pecuniary damages, healthcare expenses and loss of income is restricted by section 267.5 of the Insurance Act, commonly referred to as the “threshold”, as explained above.

[36] The plaintiff indicated to the court at the beginning of this trial that she intended to proceed on the basis of her own viva voce testimony and that she will be the only witness in the case. She further advised the court that she had no documentation to file as evidence.

[37] Based on the Insurance Act and Regulations, a plaintiff must establish a permanent, serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function in order to establish that she is entitled to bring a tort action. The terms permanent, serious disfigurement or permanent serious impairment of an important physical, mental or psychological function is defined in the regulations, as set forth above. The alleged impairment must be established by at least one physician who is an expert in the field of the injury alleged, as well as other evidence of change in function. There must also be evidence that the impairment was caused by the accident, as set forth above: See Gyorffy v Drury, supra.

[38] The plaintiff has the onus of proof to establish and that the injuries satisfy the threshold on a balance of probabilities. The plaintiff must also adduce evidence that the impairment was caused by the accident: Meyer v Bright, supra.

[39] The plaintiff must do more than simply experience pain in order to bring him or herself within the exception to the threshold wording on the test provided. Injured Ontarians are required to bear some interference with their enjoyment of life without being able to sue for it. Tolerable symptoms do not bring up plaintiff within the exceptions in section 267.5 (5) of the act. The plaintiff is able to function well despite his symptoms, then the plaintiff does not come within the exception and the defendant will have been successful on the motion: Vancsody v Wrightman, [2012] O. J. No. 6517; 17 C. C. L. I. (5th) 120.

[40] In this case, the plaintiff intends to adduce only her own testimony, which is not sufficient to establish that she is suffering from a serious impairment of an important physical, mental or psychological function. She has no documentation to file, and no other witnesses to call, is not intending to call any medical experts or to make them available for cross-examination, assuming there are any medical reports or clinical notes and records to be filed. She has served no notices pursuant to the Evidence Act, no Request to Admit or any other evidence, despite the fact that she has been advised by the court that it is her onus to establish her case and that all documentation upon which she intends to the rely should be filed. While the plaintiff indicates that she does not intend to adduce evidence, such evidence, if adduced, could only be done if the author of reports to be adduced were available to be cross-examined, which will not be the case here, as the plaintiff will not call any witnesses other than herself: See Kapulica v Dumancis, [1968] 2 O.R. 438; Andreason v Thunder Bay (City), 215 ONSC 710; Mujagic v Kamps, 2014 ONSC 5504; Baines v Hehar, 2010 ONSC 2974.

[41] Without the evidence of a physician, she cannot adduce the evidence required to establish a serious, permanent impairment of an important function and without establishing this, her claim for non-pecuniary damages and healthcare expenses must fail.

[42] Further, she seeks special damages, including loss of income, but has no documentation as regards her income before or after the accident.

[43] This is a jury trial, where the jury will be instructed by me in the facts and law and thereafter, asked to answer questions. In this situation, there is nothing that can be put to them in order for them to determine whether any amount should be paid. I find, based on the plaintiff’s submissions as regards her intentions to rely only on her own viva voce testimony and any evidence it is by the defendants that there will be no reasonable evidence to go to the jury as regards her case. I am not satisfied that there will be any evidence in support of her case on which a jury, acting judicially in accordance with the instructions on the law given, could reasonably make a choice in arriving at a finding.

[44] Accordingly, I grant the defendant’s summary judgment motion, and, given all the circumstances of this case, dismiss the action.

[45] In the circumstances, I will not determine the second motion regarding whether the action should be dismissed for failure to comply with an order of this court, as I have dismissed the action, above.

Carole J. Brown, J. Released: October 15, 2018