Court File and Parties

COURT FILE NO.: CV-15-00304-00 DATE: 2019/03/11 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PETER ST. MARTHE Plaintiff – and – LESLIE J. O’CONNOR Defendant

Counsel: Edward V. Bergeron and Warren Whiteknight, for the Plaintiff Vanessa Turner, Vanessa De Sousa and Jeremy Shaw, for the Defendant

HEARD at Kingston: November 19,20,21,22,23,26,27,28,29,30 and December 3, 2019

Hurley, j.

Reasons for Decision

Introduction

[1] The plaintiff, Peter St. Marthe, was riding his bicycle on Dupont Street in Toronto on the morning of November 9, 2011 when he was struck by the defendant’s car. He suffered a soft tissue injury to his back that has not healed. On July 14, 2015, he started this lawsuit.

[2] The trial commenced with a jury on November 16, 2018. On November 26, I discharged the jury in an oral ruling given on that date. The trial continued before me with final submissions made on December 3.

[3] At the outset of trial, the defendant admitted liability. I have to decide the following:

(i) what are the plaintiff’s non-pecuniary and pecuniary damages? (ii) should the plaintiff’s damages be reduced because he was contributorily negligent? (iii) has the plaintiff suffered “a permanent, serious impairment of an important physical, mental, or psychological function” entitling him to non-pecuniary damages? (iv) should the plaintiff’s lawsuit be dismissed because it was commenced beyond the time prescribed by section 4 of the Limitations Act, 2002, S. O. 2002, c. 24, Sch. B?

The accident and immediate aftermath

[4] Mr. St. Marthe was enroute to work when the accident happened at about 7:30 am on November 9, 2011. At the time, he worked for a landscaping business. He was riding his bicycle in a westbound direction on Dupont Street. As he approached a gas station that was on the north side of the street, he saw the defendant’s car near the exit to the lot.

[5] He was not sure what the defendant was going to do. He was wearing earbuds which he removed from his ears as he got closer to the gas station. He was bicycling at “cruising speed” and was not in a hurry to get to work. As he passed the exit, the defendant drove out of it onto the roadway, striking Mr. Marthe’s bicycle on the right side, knocking him to the ground.

[6] The defendant did not testify but a transcript of his examination for discovery was filed on consent. His description of the accident essentially matches that of Mr. St. Marthe except that he did not see him before he collided with his bicycle. He was intending to turn left and proceed east on Dupont Street. When he looked to the west, he did not see any oncoming traffic. He looked to the east immediately before exiting the lot. The point of impact was towards the middle of his car.

[7] At his examination, he said: I believe that I could see that I was okay. That’s why as I say, I was surprised when this gentleman on his bicycle appeared right in front of me because I did pull out. I did look to the left and I did… then I was concentrating on the right hand side because that’s where the traffic comes very quickly at you.

[8] Mr. St. Marthe testified that when he fell from his bicycle, he stretched out his arms in an effort to break his fall. He was unsure how he exactly fell but the impact with the ground was on his right side. He was not wearing a helmet.

[9] The defendant agreed that both the bicycle and Mr. St. Marthe fell to the ground. He got out of his car to speak to Mr. St. Marthe to see if he was okay. Mr. St. Marthe appeared “a little shaken up” and complained about an injury to his knee. He thought that Mr. St. Marthe’s pants had been torn and there was some damage to his bicycle.

[10] The defendant offered to call him an ambulance but Mr. St. Marthe declined the offer and, a short time later, Mr. St. Marthe’s employer arrived at the gas station and loaded the bicycle in the back of his truck. The defendant, who is a lawyer, gave this gentleman his card before he and Mr. St. Marthe left the station.

[11] Mr. St. Marthe testified that he had telephoned his boss, Steve Toss, after the collision who came immediately to the scene. Mr. Toss drove Mr. St. Marthe back to his apartment. He showered and lay down in bed. His back was painful.

[12] Mr. St. Marthe went to the emergency department at St. Michael’s Hospital later that morning, shortly before noon. The emergency department record indicates that he was complaining of back pain on his right side from the shoulder to his flank. No other visible injuries were noted. The nurse who saw him prescribed rest and over the counter pain medication and told him to return to the hospital if he developed new or worse symptoms.

Background and personal history

[13] On the date of the accident, Mr. St. Marthe was 33 years old and in good health. He was born and raised in St. Lucia. He came to Canada on a worker’s visa in 2007 and started working for a landscaping business in 2008 which operated from the end of the winter to late fall. During the winter season he worked for another business, tarping houses.

[14] He continued living in Canada and working for these businesses after his visa expired. He was paid under the table. He enjoyed the work. Both jobs involved heavy physical labour. He never experienced back pain working at either of them.

[15] He acknowledged at trial that he did not file any tax returns during the years that he worked nor did he have any records concerning his employment. He remembered that his boss’s name at the landscaping business was Steve Toss but only knew the first name of his boss at the tarping business which was Marlon. He no longer had any contact information for them. When he filled out an application to Aviva Canada Inc. for accident benefits, he indicated that he worked as a labourer for “Steve’s Landscaping” where he earned $750 based on a 50 hour work week. He testified that he earned a slightly higher hourly wage of $18 at the tarping business. [1]

[16] Mr. St. Marthe was cross-examined at some length about his employment history before the accident and inconsistent statements he had made in the past about the amount of his hourly wage and hours of work. In a written statement to the accident benefits adjuster he said that he earned $17 an hour at Steve’s Landscaping. At trial, he testified that it was $16. At his examination for discovery he testified that he was paid $500 a week. He agreed that, in a resume which he prepared in 2015, he did not identify the tarping business as one of his previous employers.

[17] He did not pursue a loss of income claim with Aviva because he returned to his job at Steve’s Landscaping the week after the accident. His back remained painful but he was able to cope because he was given light duties.

[18] He did not stay working at this business because he and his girlfriend Christine Willemson (now his wife who I will refer to as Ms. St. Marthe) had decided that he should move to Kingston and live with her. They had met that summer through a dating website and Mr. St. Marthe had been commuting by bus to Kingston every weekend. Ms. St. Marthe was, and remains, a hairdresser and operated her business from her home in Kingston. Mr. St. Marthe moved in with her in early December.

[19] The couple also decided that Mr. St. Marthe would not return to construction work but stay at home where he became responsible for all household maintenance and tasks, allowing Ms. St. Marthe to focus exclusively on her business. He also applied for permanent resident status in Canada. [2]

Mr. St. Marthe’s condition and treatment in the period 2011-2013

[20] Mr. St. Marthe did not have a family doctor and was not eligible for coverage under the Ontario Health Insurance Plan because of his immigration status. He had to pay $633 for his emergency department visit on the date of the accident.

[21] He was first seen by a physiotherapist at the request of Aviva on December 8, 2011. He described his primary complaint as pain on the right side of his back which prevented him from sitting or standing for long periods of time and disrupted his sleep. The physiotherapist who initially assessed him, Jennifer Rochefort, concluded that he had an injury to his right paraspinal muscles, particularly in the mid back area. She recommended physiotherapy and massage therapy treatments and gave Mr. St. Marthe a home exercise plan.

[22] Mr. St. Marthe underwent 18 physiotherapy and 9 massage therapy treatments at Limestone Health Physiotherapy (“Limestone”) between December 11, 2011 and April 23, 2012. [3] These helped but Ms. Rochefort did not see the progress that she hoped to. In an undated letter addressed “To Whom It May Concern”, composed in March 2012, she wrote:

Despite consistent physiotherapy and massage therapy treatments over the past 10 weeks, Mr. St. Marthe has made only minor improvements with respect to ROM and pain. He is not able to tolerate lying on his back, prolonged positions of sitting or standing, or lift without pain. His primary complaints today remain a dull ache that can be stabbing with certain rotational movements in his mid-right thoracic region. There is residual swelling along the right thoracic (T9 – 12) region and significant muscle tone/spasm of the paravertebrals bilaterally, with the right being greater than the left. Pain appears to be localized to this region with no neurological signs on examination.

[23] Ms. Rochefort testified that she wrote this letter in the hope that Mr. St. Marthe could attend a walk-in clinic or local hospital and obtain some form of diagnostic imaging to, in her words, “rule out any serious pathology of his thoracic spine”.

[24] Mr. St. Marthe agreed that he probably received a copy of this letter but he did not recall going to either a clinic or the hospital for this purpose.

[25] His pain lessened with the treatment. In a note dated April 26, 2012, which was his final physiotherapy appointment, Ms. Rochefort reported that Mr. St. Marthe was “feeling good” and had not had any pain for the last few weeks. She testified that he had improved significantly with respect to pain and range of motion but there was still residual swelling in the location of his back injury.

[26] The final appointment with the massage therapist, Katie Locke-McIntosh, was May 30, 2012.In a note from that date, she wrote that Mr. St. Marthe “feels much better”, did not have any pain and, in her view, “seems to be healed quite well”.

[27] Mr. St. Marthe agreed that his condition seemed to have improved over the course of this treatment. He had returned to playing soccer in a competitive league. He was able to accomplish all his household chores without difficulty but would experience pain with some of the heavier activities such as snow shoveling and pushing the lawnmower. He could cope with any back pain by pacing himself and lying down when necessary.

[28] He and his wife were married August 20, 2012. His role in the household remained the same; the couple had decided that he would not return to work until the following year when he expected to achieve his permanent residency status.

[29] Although Mr. St. Marthe did not recall contacting Limestone again that year, Ms. Rochefort testified that there was a telephone message in the file dated October 31, 2012 from him which indicated that his back was painful again and he would like to return to the clinic for additional physiotherapy. Ms. Rochefort did not speak to him nor did she recall contacting Aviva but interpreted the handwritten notes in the file to mean that Aviva agreed to another assessment. According to the file, that did not take place.

[30] The St. Marthes’ first child, Cataleya, was born June 20, 2013. Mr. St. Marthe became a permanent resident in December of that year. However, he and his wife decided that he would not return to the workforce until Cataleya was ready for daycare in 2014. In addition to his household responsibilities, he became the primary caregiver for their child.

Mr. St. Marthe’s return to employment and his condition in 2014

[31] Cataleya started daycare in April 2014 and, the following month, Mr. St. Marthe started working as a labourer for a local construction company, Hybrid Construction Group Ltd. (“Hybrid”). The owner of the company, Jeff McEwen, knew Ms. St. Marthe because she had cut his hair for many years. She asked him if there were any jobs available at his company for her husband and he agreed to hire Mr. St. Marthe. There was no formal hiring process. Mr. St. Marthe thought he was capable of returning to construction labour. He started at Hybrid on May 5.

[32] Hybrid operates on a year-round basis, with most of its business involving utilities and underground infrastructure, including water and sewer mains. As a general labourer, Mr. St. Marthe assisted in laying pipe, digging trenches and operating some equipment. His hourly wage was $16 and he worked on average 45 to 50 hours per week. The day usually started shortly before 7 a.m. and ended at 5:30 p.m. but there was regular overtime.

[33] According to Mr. McEwen, Mr. St. Marthe started out like a “firecracker”. He got along with his fellow workers and was well regarded by his foreman. Mr. St. Marthe was always willing to do whatever work was given to him. Mr. McEwen would see him at the start and end of the workday at the main office where the crew gathered to load and unload equipment and receive their work assignments. Mr. McEwen also visited the jobsites.

[34] Over the course of the year, he began to observe Mr. St. Marthe having difficulty lifting equipment. His foreman reported to him that Mr. St. Marthe also had difficulty operating a piece of equipment called a “tamper” which caused problems with his arms. As a result, he no longer operated this equipment but Mr. St. Marthe continued to have problems with lifting. Mr. McEwen testified that nothing could be done about this because of the nature of the construction work and Mr. St. Marthe’s position as a general labourer.

[35] It was apparent to Mr. McEwen that the job was “wearing on him”. He was aware, both through personal observation and what his foreman told him, that Mr. St. Marthe was physically struggling, especially with lifting, and he noticed a difference in him at the end of the day.

[36] Mr. St. Marthe came to him in November of that year and told him that he could not do the job anymore. In Mr. McEwan’s estimation, he appeared “worn out”. He testified that he believed Mr. St. Marthe was disappointed in himself for not being able to continue working at Hybrid.

[37] The company did not have any light duties available for Mr. St. Marthe. As a result, he was laid off on November 21. His record of employment indicated that the layoff was due to “shortage of work/end of contract or season” which was category “A” on the form. Mr. McEwen did not personally complete the document.

[38] Defence counsel, relying upon the record of employment, put to him that Mr. St. Marthe was laid off in November because he had been hired on a seasonal basis and that was the normal end of the work year for seasonal employees. Mr. McEwen firmly disagreed, stating that Mr. St. Marthe was a valued employee, who would have remained employed on a full-time basis for the whole year if he had been physically able to continue working. Mr. McEwen explained that his company operated on a year- round basis and he kept his good employees working throughout the year.

[39] Mr. St. Marthe testified that he had returned to construction labour because it was work he enjoyed. He had volunteered as a camera operator at a local cable television station in 2013. He experienced some discomfort when he lifted the camera above his shoulders but it was not until he started working in construction again that he had significant pain in his back.

[40] He initially thought that the pain would dissipate completely after a weekend of rest but found that it returned during the work week. He tried to cope with the pain. He took Advil and other over-the-counter pain medication but that brought him only temporary relief. When he came home at the end of the workday he would rest. He said that, because of the pain, he was “grumpy” and short tempered with his wife but did not complain because that is not the type of person he is.

[41] His wife testified that she observed him to be tired and in pain at the end of the workday. He often lay down on the couch or in bed. He was not as good-natured or talkative as he usually was.

[42] When Mr. St. Marthe met with Mr. McEwen in November 2014, he recalled that Mr. McEwen said that he could give him fewer hours but he told Mr. McEwen that he wanted to take time off to allow his back to heal. He had decided to return to physiotherapy that fall. A physiotherapist, Andrew Gaterell, assessed him on October 7, 2014 and recommended that he undergo another course of physiotherapy and massage treatment.

[43] Because Aviva denied the treatment plan of Mr. Gaterell, Mr. St. Marthe was examined by an orthopaedic surgeon, Dr. Steven Mussett, on November 28, 2014. In a report dated December 11, 2014, Dr. Mussett summarized Mr. St. Marthe’s reported symptoms under the category “Current Complaints”:

Mr. St. Marthe reports ongoing pain in his right upper back. The pain is present on a daily basis. He describes the pain as sharp and stabbing in nature. It occasionally awakens him from sleep. He obtains relief with a hot shower and the use of an ice pack. His pain is exacerbated by any repetitive activity requiring the use of his back or upper extremities. He feels the pain prevents him from participating in recreational sporting activity and interferes with his required task completion at work.

[44] In the category “Case Summary/Clinical Impression”, he wrote:

Mr. St. Marthe is a thirty six year old gentleman who presented with signs and symptoms of musculoskeletal impairment involving his right upper back and right upper extremity. He was involved in a bicycle collision with a motor vehicle in November 2011. Prior to this accident he did not have any musculoskeletal impairment or associated condition. His symptoms have been present since the time of injury and include pain involving his upper back, which is present on a daily basis and interferes with his work and recreational activities and, more recently, he has developed neurologic symptoms involving his right upper extremity. These symptoms have been exacerbated by his work activity. He obtained partial relief of his pain symptoms with physiotherapy treatment, which is currently not ongoing. He is currently undergoing further investigation by his family doctor for his associated neurologic symptoms.

My clinical impression, based on Mr. St. Marthe’s history and examination, is that he has right-sided recurrent thoracic muscle spasm. These symptoms are in all likelihood related to his whiplash type injury that occurred at the time of his accident. This recurrent muscle spasm causes pain and interferes with the normal function of his back and right shoulder girdle. What is concerning is the fact that he now has associated neurologic symptoms and posture related changes involving the radial artery in his right arm. The fact that his symptoms have not resolved, and the development of associated neurologic symptoms, suggest the possibility of spine and nerve root involvement. This requires further investigation including an MRI of his cervical and thoracic spine and nerve conduction studies of his extremity. The neurologic symptoms and arterial discrepancy suggest the possibility of a thoracic outlet syndrome which may be related to his injury and also warrants further investigation with an MR of his shoulder girdle and arterial doppler studies.

While undergoing further investigation, I believe Mr. St. Marthe would benefit from ongoing treatment utilizing a multi—modal approach. He may benefit from the use of an anti-inflammatory medication, which could be guided by his family doctor. He would benefit from ongoing physiotherapy including massage, pain and swelling modalities, upper extremity gait training and spine rehabilitation exercises.

[45] Under the category “Accident Related Impairment”, he wrote:

In my opinion his ongoing right upper back pain is related to his previous injury. The symptoms impair his ability to use his back and right arm with any strenuous activity. This has resulted in the inability to perform expected duties at work without experiencing pain and discomfort. It has also resulted in the inability to partake in recreational activities without experiencing pain and discomfort.

[46] Dr. Mussett concluded that the treatment plan prepared by Mr. Gaterell was reasonable and necessary. He testified that Mr. St. Marthe impressed him as a person who wanted to be physically active and keep working.

[47] As stated at the outset of this decision, I discharged the jury. The reasons for doing so are set out in the oral ruling I gave at the time but, briefly put, my decision was based on Dr. Musset’s cross-examination and the opinions elicited from him by the defendant’s lawyer. Dr. Musset agreed with counsel’s suggestions that Mr. St. Marthe’s condition would not preclude him from construction labour or playing sports.

[48] In the absence of the jury, in response to questioning by me, Dr. Musset explained that what he meant was that Mr. St. Marthe’s injuries did not result in a functional impairment which would prohibit him from these activities but his ability to engage in them would be subject to his pain tolerance.

Mr. St. Marthe’s condition and treatment in 2015

[49] Mr. St. Marthe’s treatment started in February 2015. He attended at Limestone from that month to the end of April 2015. During this period, he received physiotherapy from Kathryn Freeman Dunikowski, massage therapy from Stephanie Arruda and was also seen by a kinesiologist, Justin Moore. In a letter to his family physician, Dr. James Beliveau, dated April 20, 2015, Ms. Freeman Dunikowski wrote:

Your patient has been attending our facility for chronic right-sided T-Spine pain following an MVA in 2011. We have utilized a combination of acupuncture, ultrasound, taping, electric modalities, massage and exercises to manage the condition. These interventions temporarily decrease the spasming in the back, but do not translate into any long-term improvements with ADLs. Mr. St. Marthe is unable to perform physical labour due to the back pain. He would benefit from medical re-evaluation to determine other treatment avenues (perhaps injections at KOPI?).

[50] Dr. Beliveau became Mr. St. Marthe’s physician in April 2014. Up until that time, Mr. St. Marthe did not have a family doctor. He had become eligible for OHIP coverage in March 2014.

[51] Mr. St. Marthe decided to try manual labour again in the spring 2015. He started working on April 4 in the yard at Atkinson Home Building Centres (“Atkinson”) which operates two Home Hardware Building Centres, one in Kingston and the other in the village of Hartington. He had found out about the job from his neighbour who was the son of Darlene Atkinson, one of the owners of the company.

[52] Although the job entailed physical labour, it was less intense than the work he did at Hybrid. His main duties were loading the building supplies purchased by general contractors. He worked 40 hours a week and his hourly wage was $14.

[53] He remained working there until October but once again suffered back pain and muscle spasms during the workday. He decided that he could no longer perform manual labour and would have to retrain for another occupation. He stop working on October 9, 2015

[54] The defendant alleged this was another seasonal job and that was the real reason he left his employment. In addition to Mr. St. Marthe’s evidence on this issue, Ms. Atkinson testified that it was a full-time position; she was aware from the reports of other employees that Mr. St. Marthe had experienced difficulties with the job because of his painful back condition; he had told her this as well; and that she would have maintained his employment but did not have any light duties available for him to do. She considered him a good employee and described him as an “amazing young man”.

[55] Over the course of 2014 and 2015, Dr. Beliveau had arranged for Mr. St. Marthe to undergo the diagnostic testing and treatment recommended by Dr. Musset and Ms. Freeman Dunikowski. A MRI of his cervical and thoracic spine in July 2015 was normal as was one done of his right brachial plexus. Dr. Matthew Faris conducted electromyography testing in June 2015 and recommended that he be referred to a surgeon for a bilateral carpal tunnel release. In October 2015, Dr. Beliveau referred Mr. St. Marthe to the Chronic Pain Clinic at Hotel Dieu Hospital.

[56] Mr. St. Marthe was also assessed by a physiatrist, Dr. Markus Beseman, at the request of his legal counsel in September 2015. He concluded that Mr. St. Marthe had suffered a permanent injury to his thoracic spine from the T8 to T12 vertebrae and associated paraspinal muscle which caused not only pain but also spasmed with sustained physical activity. He did not believe the carpal tunnel syndrome was related to the accident. Because of the pain and muscle spasms associated with physical labour, he did not think Mr. St. Marthe could continue in this field of employment.

[57] In a report dated September 11, 2015, he stated:

Currently, he has quite focal complaints of paraspinal muscle pain along the border of T8 to T 12 spinous processes. There is also pain over the spinous processes at the segments. There is also associated tightness of his right hip flexors and quadriceps which may be secondary or compounding the issues at hand. The main problem appears to be one of mechanical pain ( i.e., worse with activity and better with rest) and significant muscle spasms which are interrelated not only with spinal movements but particularly right shoulder movements and any overhead activities or pushing and pulling, or resisted internal or external rotation of the shoulder.

As such, although the nature of the injuries would appear at first glance to be relatively minor, their impact on a day-to-day basis at least as far as pain is concerned are substantial. Despite this, he has been able to function relatively well although he pays the price in terms of aggravation of his pain following physical activity. Strictly speaking, he states himself there is nothing right now that he cannot do however this all comes at the cost of increased pain. His biggest concern is of whether or not he can sustain this over the long term and continue to work in a physical capacity into his later years.

He has had extensive physiotherapy and although this helps it is temporary and he always comes back to square one. He has not been as far as I can see given tools to manage his pain on his own in a self-directed fashion. This may prove beneficial over the long run although will not likely lead to a cure.

Mr. St. Marthe’s retraining

[58] In January 2016, Mr. St. Marthe met with a vocational advisor, Ross Skirda. This assessment had been arranged by his lawyer. He also went into what he described as “research mode” to plan his future employment. He decided that he would try and obtain a college degree and, in order to do so, he had to first upgrade his high school education.

[59] He first attended a program in Kingston known as “KEYS” (Kingston Employment and Youth Services) where he took two courses, math and English, for four months in 2016. He attended classes five days a week. He next went to St. Lawrence College, starting in the fall 2016 and continuing through 2017 in the Academic and College Career Entrance program. After successfully completing it, he enrolled in the Computer Networking and Technical Support program in September 2017. It is a two-year program but, because he failed some courses which he has had to repeat, he will not graduate until May 2020. He testified that he has been doing well this year and is confident he will graduate as planned.

Condition and treatment in 2016 and 2017

[60] Although Dr. Beliveau had made the referral in 2015, Mr. St. Marthe’s first appointment at the Chronic Pain Clinic was not until October 2016. He was examined on October 13 by a physiotherapist, Tom Doulas. Mr. Doulas testified that patients were first evaluated by the physiotherapy department in order to determine whether or not their condition could be adequately addressed through therapeutic treatments other than pain medication. If they could not, the patient would be seen by Dr. Richard Henry.

[61] Mr. Doulas treated Mr. St. Marthe on four occasions over the next three months with the final appointment on January 13, 2017. He made the same observations and reached the same conclusions as the other physiotherapists who had treated Mr. St. Marthe. As before, the treatment brought temporary relief but the pain returned upon physical activity. Because of this, he scheduled an appointment with Dr. Henry for trigger point injections.

[62] Dr. Henry first saw him on March 1, 2017. He is an anaesthesiologist who specializes in the treatment of chronic pain. He testified that it was his practice to first take a history from the patient before reviewing any records in the chart. After doing so with Mr. St. Marthe, he gave him three injections in the midback. These were directed at the right paraspinal muscles because he determined that they were the source of the pain. The injection, if it is quite painful, confirms his diagnosis which is what happened with Mr. St. Marthe. In a consultation note to Dr. Beliveau, he wrote that Mr. St. Marthe had “very typical spinal myofascial pain on the right hand side”.

[63] Dr. Henry saw him on two more occasions, March 22 and May 18, 2017. On the former date, the injections were made in Mr. St. Marthe’s abdomen because Dr. Henry thought they might be of some benefit in the treatment of his back pain. On the latter, the injections were into his paraspinal muscles again.

[64] In his consultation note to Dr. Beliveau following this visit, he wrote:

Peter was back with focal right-sided pain. The last treatment of his abdominal wall muscles did not really help that much. His pain occurs on straightening up, so it is likely still paraspinal or extensor muscles.

Examination confirmed exquisite tenderness and tightening of the paraspinal muscles from around T6 down to around T10. With his permission, we infiltrated these muscles with local anaesthetic magnesium solution and got his pain to settle completely.

Peter has typical myofascial pain. We have again attempted to address this today. We will get him back to the clinic when we can.

[65] Dr. Henry did not see him again. He did not know why but said the Chronic Pain Clinic had developed a very long waiting list and it had consequently become difficult to schedule appointments in a timely way for patients. He also left the hospital later that year.

[66] Because Dr. Beseman had made recommendations about further treatment, Mr. St. Marthe applied to Aviva for additional medical/rehabilitation benefits in 2016. An occupational therapist, Brent Lovell, met with him on February 26, 2016. In a report dated April 1, 2016, he agreed with most of the recommendations of Dr. Beseman and thought that Mr. St. Marthe would benefit from a TENS unit, KT tape, a heating pad, body pillow and additional physiotherapy and chronic pain management.

[67] Mr. Lovell assessed him again in December 2016. In a report dated January 10, 2017, he stated:

After two sessions, the client’s symptoms have been reviewed, range of motion and manual muscle testing have been completed, the client’s sleep system has been evaluated, and mattresses and snow blowers have been trialled. He continues to engage in acupuncture/chronic pain management program offered through Hotel Dieu. It is anticipated that Mr. St. Marthe will continue to benefit from engagement in this for the foreseeable future. As well, it is the opinion of this therapist that physiotherapy treatment may continue to be beneficial. He is independent in his personal care activities and is managing his household tasks, albeit with pain. Mr. St. Marthe demonstrates a good use of strategies to mitigate his pain (i.e. pain medication, TENS machine,KT tape); however, it is felt that he may still benefit from other goods/devices for symptom management and/or independence with activities of daily life. Specifically, it is this therapist’s opinion that Mr. St. Marthe would benefit from a snowblower, a supportive mattress, moving assistance/expenses, inversion table (to improve back pain), and KT tape. Depending on the results of the scheduled Insurer Examination, an OCF – 18 may be submitted in the future for the aforementioned goods.

[68] Aviva arranged for an assessment by another occupational therapist, Keith Welch, as a result of a treatment plan submitted by Mr. Lovell which recommended the purchase of a snowblower and KT tape. Mr. Welch met with Mr. St. Marthe on January 19, 2017. He did not testify but his report was included in the joint document brief. He opined that neither a snowblower nor the KT tape was “reasonable and necessary” under the Statutory Accident Benefits Schedule and, as a result, Aviva declined to pay for them.

Mr. St. Marthe’s current circumstances

[69] The St. Marthe’s second child, Zinnia, was born in July 2015. In 2016, the family moved from their home at 757 Sussex Boulevard, Kingston to 2741 Unity Road, Elginburg which is 25 acres in size. They did so because they wanted to raise their children in a more rural setting. Ms. St. Marthe continues to operate a hairdressing business from their home.

[70] In the summer 2018, Mr. St. Marthe worked at Mutch’s Auto Glass Ltd. where he cleaned cars. This job did not require heavy physical labour but it still caused him pain and discomfort. The owner of the business, Stewart Mutch, testified that he was a very hard worker and never complained but he could tell from observing him at work that he was in pain at times and had to get out of vehicles to stretch. Ms. St. Marthe said that he was not his usual pleasant self at night, similar to how he was when he was working before. However, because of their financial circumstances, they needed the income. Mr. St. Marthe also worked on four occasions that year for a local funeral home.

[71] His condition remains the same. He is capable of all the usual activities of daily living but some of them, like washing dishes, cause discomfort. Heavier maintenance tasks, such as lawn care, snow shovelling and carrying firewood will cause pain and spasms so he paces himself in order to complete the work. There is no ongoing medical treatment. He tries to stay physically active but has ceased playing competitive soccer which was a sport that both he and his wife were passionate about.

The litigation experts

[72] Dr. Beseman assessed Mr. St. Marthe again on September 19, 2018. He made the same objective findings as before following a physical examination of him. He concluded that his myofascial pain condition was likely permanent and, because of the pain associated with physical activity, he supported Mr. St. Marthe’s decision to retrain and seek employment in a sedentary occupation. In his testimony, he likened the severity of pain from the spasming in his back to what one would experience with a nocturnal leg cramp.

[73] At the request of the defendant, Mr. St. Marthe was examined by Dr. Drew Bednar on November 1, 2017. He is an accomplished orthopedic surgeon who specializes in spinal surgery. In preparing his opinion, he was provided with all the medical documentation that had been produced to that date.

[74] He found no evidence of any symptom exaggeration or misrepresentation by Mr. St. Marthe. He essentially made the same findings as Dr. Beseman and reached the same conclusion about the nature of the injury and that it was caused by the accident. He described it as a “chronic myofascial injury/strain in the right iliocosatalis cervicis muscle” with pain exacerbated by physical activity and that it was a permanent condition. [4]

[75] In his report dated November 2, 2017, he wrote the following in response to the question “In particular, please comment as to whether or not the patient is capable of performing his preaccident employment duties and hours. If not, can he be expected to return to this employment on a full-time basis in the near future? Please explain” :

Mr. St. Marthe has demonstrated the ability to perform his pre-accident employment by returning to such heavy work when he first rejoined the workforce in 2014, but he was able to do that only with considerable pain and discomfort. He would be best accommodated and safest in more sedentary work putting less aggressive physical demand on his right shoulder girdle. Hence his current enrolment in the computer services retraining is to be supported.

[76] Dr. Bednar was asked for a second opinion in October 2018. He had been provided with additional medical records including Dr. Beliveau’s file and the reports of Drs. Musset and Beseman. In a report dated October 23, 2018, he wrote:

These medicals all essentially concur with my own observations and opinion. The soft tissue injury here is unusually objective and consistently found by all observers. Described disability is consistent, though we have no objective FAE information to corroborate it. Several attempts to return to work in various fairly physical occupations have failed, and so retraining to more sedentary work seems indicated and is ongoing.

[77] At trial, during examination in chief, he testified:

Q. All right. So, tell us then in the end after doing all of that what do you, what is your assessment, prognostication, and management recommendations? A. I thought he had a very unusual, and by its timeliness, or persistence over time demonstratively chronic soft tissue injury. Q. Yeah A. Without secondary sequelae to it. Q. So, hold on. So, what is that, the secondary sequelae? A. Muscle atrophy, stiffness, loss of bulk, and tone in his shoulder girdle, et cetera Q. Okay. A. That had become part of his life, and just wasn’t going away. Q. Yep. A. Seemed seemingly permanent, and that by his description to me disabled him from regular very heavy physical exertions, as would be required in a labouring career. Q. All right. Now what about in terms of this type of – his rather you called it a chronic soft tissue sprain injury in your report? A. Right. Q. Is that accurate? A. That’s the term people use, and is probably as accurate as anything. We don’t really understand a lot of the soft tissue pain syndromes very well for their anatomy. Q. All right. What is your opinion, or assessment in terms of deterioration, or progress? A. They don’t evolve. Q. Okay. A. Once they’re established they sit there. Q. Okay. THE COURT: Sorry, they don’t devolve? A. No, they don’t evolve. They don’t get worse, and they don’t get better. The best comparator you might have is the classical whiplash injury in the neck where we know about 70% of people resolve in the first two years. That other 30% are still symptomatic 12 years later, and probably don’t change.

[78] He went on to say that he would not recommend any therapy for Mr. St. Marthe because he did not know any that would benefit him. After confirming again that the condition was permanent, the following exchange took place:

Q. All right. What about the issue – so, we have your opinion on permanent, what about the seriousness of this? A. Seriousness is a bit of a grey question I suppose it goes to- THE COURT: Sorry, you said Doctor seriousness is a bit of? A. It’s a bit of a grey question. MS. TANNER: Q. Okay. A. But I suppose in a case like this it goes most pointedly to the client’s ability to earn a living, and look after his home, and family. It’s serious in the sense that his previous manual labour career is impacted, and basically stopped by it per his descriptions to me, so he needs to be looking at some sort of other work, plus minus [sic] retraining, or re-education for that.

[79] The other litigation expert was an occupational therapist, Dan Fyke. He prepared a report dated July 23, 2018 following a meeting with Mr. St. Marthe at his home and the review of Dr. Beseman’s report of September 11, 2015, the hospital and physiotherapy records, Dr. Beliveau’s clinical notes and records, a surveillance video and the reports of Messrs. Lovell and Welch.

[80] He concluded that Mr. St. Marthe did not require any assistance with self-care or performing routine daily tasks in the home but did with respect to outdoor work and substantial property maintenance and repairs. He prepared two scenarios, one which totalled $180,856.80 and the second, $162,260.64. These expenses were calculated up to age 75.

[81] Both scenarios included lawncare, snow removal, supplying and cutting wood to heat the home and what he described as heavy home maintenance. The recommendations were all based on the elimination or reduction in the pain that Mr. St. Marthe would experience if he had to perform the tasks himself or did not have suitable equipment to diminish the level of his physical exertion. He testified that if pain caused by a task abated quickly and could be reasonably managed, he would not recommend third party assistance or equipment but would if the pain was significant enough to affect an individual’s completion of the tasks or had a material impact on his personal life, including interaction with his family.

[82] In his report dated July 23, 2018, he summarized the two scenarios as follows:

Scenario 1 includes: ▪ Provide services in the total of $1,250.00 yearly for law maintenance (hand mower and trimming) to age 75. ▪ Provide services in total of $3,000.00 yearly for snow removal to the age 75. ▪ Provide three cords of wood cut and split at a cost of $1,137.50 a year to age 75. ▪ Provide 40 hours of assistance for heavier household maintenance chores at a cost of $1,050.00 a year to age 75.

SERVICE                     COST        REPLACEMENT     TOTAL COST TO 75 TOTAL 36 YEARS
Lawn Maintenance            $1,412.50   Yearly          $51,174.00
Snow Removal                $1,423.80   Yearly          $51,256.80
Wood                        $1,137.50   Yearly          $40,950.00
Heavy Home Maintenance      $1,050.00   Yearly          $37,800
TOTAL                       $5,023.80                   $180,856.80

Scenario two includes: ▪ Provide services in the total of $1,250.00 yearly for law maintenance (hand mower and trimming) to age 75. ▪ Provide a tractor with appropriate attachments replaced twice at an original cost of $19,855.36 once he has sold his current machines and then a second cost of $22,255.36 plus HST ▪ Provide three cords of wood cut and split at a cost of $1,137.50 a year to age 75 ▪ With providence of the front-end loader I will slightly reduce the need for assistance for heavier household maintenance chores since he will be more independent with some of the heavier lifting and carrying tasks with the use of the loader. I recommend providing 15 hours of assistance for heavier household maintenance chores at a cost of $787.50 a year to age 75.

SERVICE                     COST                        REPLACEMENT     TOTAL COST TO 75 TOTAL 36 YEARS
Lawn Maintenance            $1,412.50   Yearly                          $51,174.00
Snow Removal                $19,855.36/$22,255.36 ($1,169.74/yr. to age 75) Yearly $42,110.64
Wood                        $1,137.50   Yearly                          $40,950.00
Heavy Home Maintenance      $787.50     Yearly                          $28,350.00
TOTAL                       $4,507.24                                   $162,260.64

[83] Mr. Fyke considered the second scenario to be a more reasonable one because Mr. St. Marthe could accomplish the same tasks with the purchase of the recommended equipment and it would conform with Mr. St. Marthe’s stated desire to do most of the work himself rather than hire someone.

[84] Dr. Beseman reviewed Mr. Fyke’s report and in his report of October 3, 2018 stated:

I have reviewed the report and generally agree with the recommendations. All of the equipment suggested may be expensive and could be perceived as excessive under the circumstances. Given that Mr. St. Marthe will likely be continuing to do these for the rest of his life and that his condition is likely permanent and that engaging in these activities with assistive devices and tools at least precludes the need to purchase the services elsewhere. I would support these recommendations.

The loss of income claim

[85] Mr. St. Marthe conceded that he did not incur a loss of income from the date of the accident to November 21, 2014 because he and his wife had made the decision that he would stay at home until he achieved his permanent residency status and take care of their child. When he did return to work at Hybrid, he earned a wage comparable to his pre-accident employment in Toronto.

[86] There is no dispute about the amount of employment insurance benefits that he received ($19,059) or the amounts that he received from Atkinson ($12,962.04), Mutch Auto Glass Ltd ($6,033.30) and the local funeral home ($322). The total is $38,376.37.

[87] Mr. St. Marthe is not advancing a loss of income claim beyond his anticipated graduation date of May 2020 nor pursuing a loss of competitive advantage claim. He also acknowledged that it would be reasonable to find that he will earn a comparable income of $6,000 during the summer 2019.

[88] As a result, the calculation is essentially an arithmetical one: the income he earned at Hybrid should be extrapolated from November 2014 to his anticipated graduation date of May, 2020 and deducted from it would be the income he will have earned over the same period of time and the employment insurance benefits.

[89] The past loss of income would be $167,200, assuming a weekly wage of $800 (based on a 50 hour work week at $16/hr.) at Hybrid, and the future loss would be $54,800 assuming the same weekly wage and deducting the estimated $6,000 he will earn in the summer, 2019. With the application of section 267.5 (1) (ii) of the Insurance Act, which limits the claim to 70% of the gross amount, the past loss of income is reduced from $128,823.63 to $90,176.54. [5]

[90] The defendant asserted that there has been no loss of income because Mr. St. Marthe remains capable of seasonal manual labour and contrary to what both he and Mr. McEwen testified, he did not have a full-time position at Hybrid. Alternatively, it should be substantially reduced because he failed to take reasonable steps to mitigate his loss.

The surveillance evidence

[91] Counsel agreed to the following description of the surveillance when I was asked to rule on its admissibility before the jury:

Surveillance of the plaintiff was conducted on 13 days over three years with the plaintiff either being not observed, the camera being turned off, or the video edited, such that the defendant will show you 17 minutes 28 seconds of video from that 13 days of surveillance over three years.

[92] The surveillance depicts Mr. St. Marthe walking in a parking lot with his wife and children, at their house setting up Halloween decorations, riding a bicycle with the children in an attached trailer and washing a car at his home. He does not appear to have any physical difficulty in performing these activities.

The credibility and reliability of the testimony

[93] Before I turn to the legal issues, I wish to comment on the witnesses, starting with Mr. St. Marthe. I found him to be a credible witness. There were some discrepancies between his testimony at trial and what he had said in the past to the healthcare professionals and documents he completed at the time. They were not, in my view, significant. It is inevitable, with the passage of time, that a witness might not recall with precision some details, including what he said or wrote several years ago. Rather than insist that his testimony was correct, Mr. St. Marthe agreed that, if it was contemporaneously recorded by the healthcare professional, he said it.

[94] With respect to the reliability of his evidence, he could not recall certain details about his medical treatment and personal actions but again these were not significant and, to the extent there were gaps in his memory, they were filled by the contemporaneous records of the healthcare professionals.

[95] I also consider it important to view the evidence as a whole and avoid placing too much weight on isolated instances of alleged inconsistencies in determining the veracity of testimony in a case of this nature. What is more significant is whether the witness has given a consistent history over time about his symptoms, his activities and the impact of the injury on his life. This is what Mr. St. Marthe did. The surveillance evidence is of little assistance; it does not depict him doing anything that he said he could not do and is of short duration.

[96] Mr. St. Marthe’s evidence was also corroborated by other witnesses in important respects. A cogent example of this was the reason for leaving his employment at Hybrid and Atkinson. On their face, the records of employment could be interpreted to mean that he was only employed on a seasonal basis contrary to what he testified. However, both Mr. McEwen and Ms. Atkinson supported his testimony. Moreover, they and Mr. Mutch confirmed the impact of manual labour on him. [6]

[97] Independent medical confirmation was supplied by the testimony of Drs. Musset and Bednar. As experienced orthopedic surgeons, they would be alert to any embellishment or misrepresentation of symptoms, including pain. Neither observed this with Mr. St. Marthe and, indeed, made objective findings that confirmed not just the injury itself but also that physical activity would exacerbate the pain just as Mr. St. Marthe testified.

[98] I was impressed by all the healthcare professionals who testified. They made comprehensive notes and their evidence was in accord with these records. They were free of any apparent bias either for or against Mr. St. Marthe.

[99] I hold the same view of the civilian witnesses. They gave their testimony in a straightforward fashion and their cross-examinations did not reveal any reason to disbelieve them. Although they had an indirect connection to Mr. St. Marthe through his wife, it did not have any apparent influence on their testimony – they were businesspeople who, I find, came to court and gave honest evidence about a former employee. I would not discount Ms. St. Marthe’s evidence solely because of her spousal status. She was an excluded witness throughout the trial and, when she testified, did not say anything that contradicted her husband; like him, she testified credibly about how his condition has affected him and their life together, without any exaggeration.

The legal issues

[100] I set these out at the beginning of this decision. I will deal with them in reverse order, starting with the limitation period defence.

Is the action statute barred?

[101] As the accident happened November 9, 2011 and the statement of claim was not issued until July 14, 2015, the action was commenced beyond the two year limitation period prescribed by s. 4 of the Limitations Act, 2002, S. O. 2002, c. 24, Sch. B. Mr. St. Marthe relies upon the discoverability principle codified in s.5 (1) of the statute which provides:

A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[102] In a personal injury claim arising out of a motor vehicle accident, the plaintiff will not have discovered his claim until he knows that he has a substantial chance to succeed in recovering a judgment for damages. This will involve both a consideration of the statutory deductible under the Insurance Act and whether the plaintiff is aware that he has suffered a permanent and serious injury: Everding v. Skrijel, 2010 ONCA 437. [7] The onus is on the plaintiff to establish that the claim was not discoverable within the applicable limitation period and that he acted with due diligence to discover if he had a cause of action: Yelda v Vu, 2013 ONSC 4973.

[103] There is a patent incongruity in the defendant’s legal position. He submits Mr. St. Marthe should have known or, alternatively, with reasonable diligence would have discovered that he suffered a permanent, serious injury before July 14, 2013 but argues, just as forcefully, that he does not have such an injury.

[104] The defence places significant emphasis on a comment which Mr. St. Marthe made to his physiotherapist Ms. Rochefort on March 8, 2012 in which he said, according to her notes, “Reports feeling somewhat better. Has not returned to soccer and still cannot tolerate lying on back. He is looking into going back to school for media studies b/c he does not feel he will be able to return to construction with his back”. Once Mr. St. Marthe believed there was “some” damage or loss, the defendant argues, the limitation clock began to tick.

[105] I find that this was an extempore statement made at a time when Mr. St. Marthe did not think his condition was improving. But, within a few weeks, he was feeling much better and the pain had greatly diminished. Because of the family decision that he would stay at home and be a “househusband”, I am satisfied he did not become aware that the injury was serious and potentially permanent until he returned to work at Hybrid. It was not until the fall of 2014 that he realized he might be unable to do heavy construction labour because of the pain it caused. Further, before he was assessed by Dr. Musset, there was no medical opinion that the injury could be permanent and prevent him from continuing in the construction trade.

[106] Although there are legal claims where the discovery of “some” financial loss can trigger the limitation period that is not the case in a motor vehicle lawsuit. The law remains as set out in Everding. As a result, I conclude that Mr. St. Marthe’s claim is not statute barred because he did not have the requisite knowledge that his injury could be permanent and serious until, at the earliest, November 2014 when he had to stop working at Hybrid because of the pain he was experiencing. Once this happened, he exercised reasonable diligence in seeking further medical treatment; there was no reason for him to do so until that time.

Has Mr. St. Marthe suffered “a permanent, serious impairment of an important physical, mental or psychological function”?

[107] Mr. St. Marthe is only entitled to an award of non-pecuniary damages if he meets the requirements of section 267.5 of the Insurance Act. Regulation 381/03 sets out the criteria for determining if a person has :

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:

1. 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 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 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 persons regular her 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 for a career in the field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the persons impairment in 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 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.”

[108] Although decided before the passage of this regulation, the leading case is still Meyer v Bright. The Court stated at para. 16:

We conclude therefore that the appropriate approach in these cases is to answer sequentially the following questions:

1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?
3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?

[109] The determination of each question is fact driven. For Mr. St. Marthe, the medical evidence unanimously supports the conclusion that he has a chronic pain condition that is not curable; at best, he can expect temporary relief through the use of pain medication and physical therapy. The doctors made an identical diagnosis based on objective findings – a focal injury that, with physical activity, will result in pain that can be severe at times. For a young man like Mr. St. Marthe, who enjoys sports, takes pride in maintaining his home by performing all the necessary tasks himself and was a construction labourer, the bodily function that is impaired is an important one. The central issue, as is often the case, is the seriousness of the impairment.

[110] In Meyer, the Court stated at paras. 34 – 36:

It is simply not possible to provide an absolute formula which will guide the court in all cases in determining what is "serious". This issue will have to be resolved on a case-to- case basis. However, generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.

We emphasize that while the finding that the bodily function which is impaired is not an important one to the injured person is an end of that person's right to sue, the converse is not necessarily true. The finding that the impaired bodily function is an important one to the injured person does not necessarily mean that the impairment is a serious one. Once it is found that there is impairment of an important bodily function the court must then decide whether the impairment is a serious one to the particular person.

An impairment of an important bodily function which is serious to one person may not necessarily be a serious one for someone else. The task of the court in each case will be to decide whether the impairment is serious to the particular injured person who is before the court. In performing that task the question will always be the detrimental effect which the impairment has upon the life of the particular injured person. It is impossible for this court to lay down general guidelines of the concept of seriousness in all cases. Each case must be decided upon its own facts.

[111] Many trial judges have found that if the plaintiff cannot continue in his or regular employment or career path, as was the case in Meyer, the threshold is met: Branco v. Allianz Insurance Co. of Canada; Duguay v. O’Neill; Pupo v. Venditti, 2017 ONSC 1519; Parmar v. Beach, 2017 ONSC 7810 O’Brien v. O’Brien, 2018 ONSC 100; Grieves v. Parsons, 2018 ONSC 26. Even where the plaintiff resumes their pre-accident employment but continues to experience pain, the impairment can be serious: Brak v. Walsh, 2008 ONCA 221.

[112] Despite their own expert’s testimony that Mr. St. Marthe suffers from a chronic pain condition attributable to the accident that is exacerbated by physical activity and which is not amenable to any efficacious treatment, the defence submitted at the end of the case that none of this is true.

[113] According to the defendant, I should find that Mr. St. Marthe was not a credible witness and his complaints of pain are either exaggerated or simply untrue; his current condition is due to causes unrelated to the accident; he failed to undergo treatment that would have completely rehabilitated him; and he could have continued as a manual labourer but did not seek any accommodation that would have permitted this to happen.

[114] As already stated, I found Mr. St. Marthe to be a credible witness. I accept his evidence that he continues to do most of his usual daily activities but some of them cause pain which can be severe at times depending on the type of activity and the level of physical exertion. He testified that he grew up without a father and it is important to him that he fulfill a traditional paterfamilias role in taking care of his family. Thus, he spends time with his young daughters and engages in activities that can cause him pain and discomfort. Similarly, he continues to perform household maintenance and repairs that have the same consequences for him.

[115] I also find it is not in his nature to complain to others when he is in pain or to shirk from doing things because they might cause him pain. This is why he did not go to his employers until the pain became intolerable. They were aware he was having problems without any complaint by him. When the therapy brought relief from pain, he told the healthcare professionals but sought their help again when it persisted. Drs. Mussett, Beseman and Bednar considered him a reliable historian whose reported symptoms were consistent with the injury he suffered. As his wife observed, when the pain reached a certain level, which occurred when he was working, he did not whinge about it but it was clear to her that it took a serious toll on him.

[116] Drs. Beseman and Bednar both opined that there is no effective treatment for his condition. Physical therapy and pain medication provide only transient relief. To paraphrase Dr. Bednar, “it doesn’t get worse and it doesn’t get better.”

[117] Dr. Bednar supported his decision to retrain in the computer field because he could not continue to do manual labour with his condition. So did Dr. Beseman. The defence did not ask either doctor whether there were accommodations that might be made to allow Mr. St. Marthe to remain working in the construction industry. Both Mr. McEwen and Ms. Atkinson testified they did not have light duties he could perform. Although temporary accommodations can likely be made at many workplaces, there was no evidence that long-term modified duties are available to workers in the construction field. I find that, despite a genuine effort on his part, Mr. St. Marthe is incapable of employment as a manual labourer. The pain would just be too great after a few weeks or, at most, a few months. Given his background and education, it was a reasonable decision to return to school in order to obtain competitive employment.

[118] I find that he has suffered a permanent, serious impairment of an important physical function primarily because his injury disables him from employment as a construction labourer. His condition also impacts on the usual activities of daily living but he can still do them, albeit with pain and discomfort of varying intensity.

Was Mr. St. Marthe contributorily negligent?

[119] In Snushall v.Fulsang, Jurianz,J.A. stated at para. 26: “The plaintiff’s contributory negligence is the failure to take reasonably prudent steps to protect herself from injuries that might result from an accident caused by another’s negligence.”

[120] The defendant submits that Mr. St. Marthe was contributorily negligent in two respects: he was not wearing a helmet and he did not take reasonable steps to avoid the collision. He cited the decision in Nitamo v. Insurance Corp. of British Columbia, [2003] B. C. J. No. 913 in support of his position. In that case, the plaintiff bicyclist, who was not wearing a helmet, was struck by a car when going through a crosswalk. The trial judge assessed contributory negligence at 15%.

[121] Mr. St. Marthe did not suffer a head injury in the accident but, according to the defendant, the failure to wear a helmet contributed to the injury which he suffered because of the steps he took to protect his head when he was knocked off his bicycle. None of the doctors said that the absence of a helmet or the manner in which he tried to break his fall caused or contributed to his back injury. It is obviously prudent to wear a helmet when bicycling but the defendant has not proven the necessary causal link between the alleged contributory negligence and the injury: see Snushall at paras. 25-27.

[122] Although the defendant acknowledges that Mr. St. Marthe took his earbuds off and slowed down as he approached the exit, he contends that he should have done more but does not specify what, other than stopping before he reached it. Mr. St. Marthe did not have to do so because he could reasonably assume that the defendant would comply with his legal duty to yield the right-of-way to him. Moreover, it was not until Mr. St. Marthe was passing by the exit that the defendant decided, at that moment, to leave the lot and enter the public roadway. There was nothing Mr. St. Marthe could have done to avoid the collision. The reliance on Nitamo is misplaced. In that case, the trial judge found that the plaintiff bicyclist did not have the right-of-way and was therefore contributorily negligent. There was also uncontradicted medical evidence that his injuries might not have been as extensive if he had been wearing a helmet.

What are Mr. St. Marthe’s damages?

[123] I will deal first with non-pecuniary damages. Mr. St. Marthe submitted that his general damages should be assessed at $80,000, based on a range of $70-$90,000. The defendant maintained his position that Mr. St. Marthe has not suffered any compensable loss but, if he did, the damages would be below the current statutory deductible of $37,983.33 and therefore the award should be zero. [8]

[124] Mr. St. Marthe is a young man with a chronic pain condition that is aggravated with physical activity. He has young children. He likes to be physically active and to keep his house well-maintained. He will probably experience pain on a daily basis because he is prepared to pay that price for his family and his own sense of self-worth. He and his wife shared a passion for soccer and he was used to playing at a competitive level. He can no longer do that. I expect that with his work ethic and personality, he will likely succeed in his new career path but I also find that he enjoyed working in construction as many people do. In all the circumstances, I assess his non-pecuniary damages at $70,000. Applying the statutory deductible, the net award will be $32,016.67.

[125] I turn next to the claim for past and future income loss. It has been greatly simplified by Mr. St. Marthe’s concessions that the start date for his past loss is the cessation of his employment at Hybrid and the future loss does not extend beyond his graduation date of May 2020. There is no loss of competitive advantage claim being advanced.

[126] The defendant submits that he has not proven any loss of income and relies upon multiple grounds for this contention: he did not establish that he had steady employment before the accident; his employment was limited to seasonal work; his inability to continue as a manual labourer is due to his untreated carpal tunnel syndrome which is unrelated to the accident; he should have completed his program at St. Lawrence College by May 2019; he did not make reasonable mitigation efforts and there is no expert evidence to support the claim. In short, he has always been a seasonal manual labourer and could have remained one.

[127] Mr. St. Marthe testified that he worked on a year-round basis before the accident and I believe him. The lack of documentation is not surprising given that he worked under the table. His wage rate in Toronto was comparable to what he could, and did, earn in Kingston. The medical evidence overwhelmingly supports his position that he suffered an injury in the accident that prevents him from engaging in manual labour without significant pain and that it was reasonable for him to retrain for a more sedentary occupation.

[128] There was no medical evidence that Mr. St. Marthe’s carpal tunnel syndrome would prevent him from continuing as a construction labourer. This could have been easily addressed by Dr. Bednar if the defendant intended to raise it as an issue at trial to support its submission that it was this condition, not Mr. St. Marthe’s back injury, that prevented him from continuing to work in construction. As is apparent from Dr. Bednar’s reports, he was aware of this medical condition and indeed commented in his first report that it is “very common in labourers”. Mr. St. Marthe testified that it was his back pain and not any problem with his hands or wrists that prevented him from working as a manual labourer.

[129] Mr. St. Marthe’s education in St. Lucia was limited and he returned to school after many years of working in unskilled labour. The program which he chose is one that will likely lead to gainful employment. That he has struggled academically is not surprising given his extended absence from school. His claim should not be reduced because it will take him an extra year to complete the program. Nor should it be because he focused on his studies instead of trying to find part time employment. The defendant has the burden of proof on the issue of mitigation: Red Deer College v. Michaels. He did not to lead any evidence to establish that Mr. St. Marthe did not take reasonable steps to mitigate his damages.

[130] There was no need for Mr. St. Marthe to call expert evidence in support of his loss of future income claim because it is an arithmetical calculation that is contingent on my factual findings. I have concluded that, but for the injury that he suffered in the accident, he would have continued full-time employment with Hybrid. However, because it is a company that specializes primarily in outdoor construction, he would not have likely worked an average of 50 hours a week year- round. As a result, there should be a reduction in the baseline amount and I find that a fair and reasonable amount would be six months at 50 hours a week with the balance at 40 hours. This translates into an annual remuneration of $37,440 rather than the $41,600 being claimed by Mr. St. Marthe. The period of the loss is from November 21, 2014 to May 31, 2020. Deducted from the total will be the employment income that he has earned and will earn in the summer of 2019 and the employment insurance benefits. I decline the request for reimbursement of the OSAP loans because there was no documentation about them or the repayment terms and in any event, I do not consider them a proper mitigation expense since Mr. St. Marthe is receiving compensation for his loss of income over the same period. In summary, the past loss is $80,990 and the future loss is $47,040, for a total of $128,030. [9]

[131] The remaining pecuniary claim is for the housekeeping and home maintenance expenses. In McIntyre v. Docherty, 2009 ONCA 448, Lang,J.A. stated at paras. 21 – 23:

Different housekeeping losses may arise in different scenarios. In some households, the injured plaintiff may have been a full-time or sole homemaker whose work permitted a spouse or partner to maintain employment outside the home. In other households, the plaintiff may also have worked outside the home and shared responsibilities for housekeeping with other family members. In one-person households, the plaintiff may have been responsible for both housekeeping and outside employment.

Whatever the household circumstances, an injured plaintiff will cope in one or more of the following three ways. First, the plaintiff may leave some or all of the housekeeping undone. Second, the plaintiff may perform some or all of the housekeeping functions, but with increased pain and decreased efficiency. Third, the plaintiff may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of the housekeeping.

In each of these scenarios, the plaintiff will suffer losses arising from the inability to do work that she or he previously undertook within the household.

[132] The plaintiff does not have to prove that he or she has a firm intention to employ a third party to perform the necessary labour: McIntyre at para. 58. Further, as noted by Doherty, J.A. in Graham v. Rourke, the assessment of future pecuniary loss is a “somewhat speculative exercise” and the plaintiff need only establish a real and substantial risk of it. Finally, the expense must be a reasonable one: Pelletier v. Her Majesty The Queen, 2013 ONSC 6898 at paras.346-349: Kwok v. Abecassis, 2017 ONSC 164 at paras. 130-133.

[133] The defence’s primary position is the same as for the other heads of damages – Mr. St. Marthe did not suffer a serious injury in the accident that entitles him to any such future assistance. Further, the bulk of the expenses arise from the family decision to move to a larger property. If he had remained living in Kingston, he would not require the proposed equipment or services.

[134] I consider Mr. Fyke’s report to be a balanced one but the amounts proposed by him should be reduced because I believe that Mr. St. Marthe will likely continue doing many of the tasks despite experiencing pain and discomfort when he does so. His spouse and children will help them with some of the less strenuous exterior chores (use of the hand mower, trimming and raking). I find that the expense of one Kubota tractor with the specified attachments to be reasonable because he will be able to use it for much of the lawn care and snow removal which are two activities that he would be primarily responsible for and would cause an intolerable level of pain. Because this equipment will last 20 years, I do not consider the cost of a second one to be a reasonable expense. The amount for heavy home maintenance tasks is reasonable because of the level of pain they would likely cause but I find age 65 to be more appropriate. I do not consider the cost of wood to be a reasonable claim because it is an expense that Mr. St. Marthe would incur regardless of his condition and, although he can experience significant pain in chopping wood, it is probable that he would buy cords of wood that are cut and split in the future. In summary, the amount for future loss of home maintenance expenses is $45,615.56 consisting of the cost of the tractor and equipment ($25,140.56) and the heavy home maintenance expense ($20,475). [10] There are no grounds for adjusting these amounts based on either specific or general contingencies. I considered reducing the claim because some of the expenses might not have been incurred if the St. Marthes had remained living in the city but, on further reflection, their choice to move to the country was a reasonable one and any reduction would not be consistent with the overriding principle that an injured plaintiff should be put in the same position he would have been in but for the injury: Andrews v. Grand & Toy Alberta Ltd. at p. 19 and McIntyre at para. 29. [11]

Conclusion

[135] As set out in these reasons, I order that the defendant pay to the plaintiff:

(i) general damages of $32,016.67 (ii) past loss of income of $80,990. (iii) future loss of income of $47,040 (iv) future housekeeping and home maintenance expenses of $45,615.56

[136] If there are any issues with respect to the arithmetical calculation or the statutory deductibles, counsel can advise me in writing. In addition, prejudgment interest and costs remain to be determined. If counsel cannot agree, the plaintiff shall deliver written submissions, not to exceed five pages exclusive of a bill of costs, written settlement offers, dockets and caselaw within 45 days of the release of this decision. The defendant has 30 days to deliver a reply of the same length.

[137] I wish to make a final comment about Dr. Bednar. In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 28, Cromwell, J., in reiterating the long standing concerns about the independence and impartiality of expert witnesses, cited the observation made by Sir George Jessell, M.R. in a case decided almost 150 years ago: “undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them”. Despite subrule 53.03 (2.1) of the Rules of Civil Procedure, this remains a common concern, particularly in personal injury lawsuits, and the Court of Appeal has emphasized that trial judges must be vigilant in exercising their gatekeeping role to ensure that experts comply with their duty to the court to give fair, objective and non-partisan evidence: Bruff-Murphy v. Gunawadena, 2017 ONCA 502 and R v. Natsis, 2018 ONCA 425. Both in his reports and his testimony, Dr. Bednar displayed an exemplary commitment to independence and impartiality which deserves special recognition.

Hurley, J.

Released: March 11, 2019

St. Marthe v. O’Connor, 2019 ONSC 1585 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PETER ST. MARTHE Plaintiff – and – LESLIE J. O’CONNOR Defendant REASONS FOR decision Hurley, J.

Released: March 11, 2019

[1] Aviva Canada Inc. is both the accident benefits and tort insurer. Nothing turns on this. [2] The parties referred to it as “landed immigrant status” at the trial but I will use the proper legal classification which is “permanent resident”. [3] This business later changed its name to Centric Health but I will refer to it as Limestone in these reasons. [4] Dr. Bednar expanded on the location of the injury in his report, stating “This fellow has a soft tissue injury to the paraspinous musculature running alongside the medial border of his right scapula.” [5] The past loss is $167,200- 38,376.37 and the future loss is $60,800- $6,000. [6] Mr. St. Marthe’s employment insurance file was included in the brief of documents but no witness from Service Canada testified. The file indicates that, when he completed the applications after he left his jobs at Hybrid and Atkinson, he chose the category “regular benefits” rather than “sickness benefits”. The defendant argued that, if he quit working due to his back injury, he should have applied for the latter and, because he did not do so, this is further proof that the jobs were seasonal. However, I interpret the document to mean that “sickness benefits” are available only if the person cannot work at all due to the injury or illness as opposed to being unable to work at a particular job because of an injury. In any event, the viva voce testimony of Mr. St. Marthe, supported by Mr. McEwen and Ms. Atkinson, is persuasive on this issue. [7] In the recent decision of Presley v. Van Dusen, 2019 ONCA 66, Sharpe,J.A reiterated that consideration of when a proceeding is an appropriate means to remedy the claim is an essential element in the discoverability analysis and that subsection 5(1)(a)(iv) serves to deter needless litigation. If Mr. St. Marthe had started a lawsuit within the two year limitation period, the defendant would have been in a position to bring a successful summary judgment motion because he had no medical opinion that he had suffered a permanent and serious injury nor had he incurred any loss of income. Although it was not a motor vehicle lawsuit, Presley affirms how important this analysis has become whenever a limitation period is relied upon by a defendant. [8] The amount increased to $38,818.97 for the period January 1 – December 31, 2019. Neither party made submissions about whether or not this is the deductible that should be applied. I will apply the deductible in place at the time of trial but if it is the defendant’s position that the 2019 deductible is the proper one, I will decide this issue by written submissions. [9] I have calculated these amounts by assuming 208 weeks at $720 per week for his past loss and 17 months for his future loss and applying s. 267.5(1)(ii) of the Insurance Act. [10] The tractor and equipment would be an immediate cost but the amount for heavy home maintenance might have to be reduced because it assumes future payments. If the parties cannot agree on a discounted amount, they can make written submissions to me about this issue [11] Mr. Fyke reduced the cost of the tractor and equipment based on the trade in value of the snowblower and lawn tractor that Mr. St. Marthe currently owns but I have concluded that Mr. St. Marthe should not be required to sell or transfer equipment that was given to him.