Court File and Parties
COURT FILE NO.: CV-17-00588805-0000 DATE: 20231024 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
KYRIAKI MOUSTAKIS Plaintiff – and – REYNALDO AGBUYA Defendant
Counsel: Joel Dick and Victoria Yang, for the Plaintiff Vanessa Tanner and Andrew Chau, for the Defendant
HEARD: October 4, 5, 6, 10, 11, 12, 13, 16, 17, 18, 19 and 20, 2023
Merritt J.
Reasons for Judgment
Overview
1The Plaintiff Kyriaki Moustakis (“Cindy”) sought damages for injuries she alleged were sustained in a motor vehicle accident on January 9th, 2016, including soft tissue injuries, chronic pain, and psychological injuries. Liability was admitted and the only issues related to Cindy’s alleged damages. The case was tried before a jury for 12 days. The parties agreed that the questions for the jury concerned general damages, past income loss and future income loss or loss of earning capacity. The jury awarded damages for pain and suffering in the amount of $100,000.00, damages for past lost income in the amount of $105,000.00, and damages for loss of future income/loss of earning capacity in the amount of $125,000.00. I heard the threshold motion orally while the jury deliberated.
Decision
2For the reasons that follow I deny the defendant’s threshold motion and find that Cindy’s claim for non-pecuniary loss is not barred as her injuries fall within the exception set out in section 267.5(5) of the Insurance Act, R.S.O. 1990, c. 1.8 (the "Insurance Act”).
The Issue
3The issue is whether the plaintiff has sustained a permanent serious impairment of an important physical mental or psychological function.
Positions of the Parties
4It is the defendant’s position that Cindy’s injuries do not meet the threshold. The defendant says Cindy was an unreliable historian, gave contradictory and inconsistent evidence, was not candid with her doctors and did not follow their advice. The defendant submits that I should accept the opinion of their expert Dr. Ross who opined that, after a year, Cindy had returned to her pre-accident status of having an Adjustment Disorder.
5The plaintiff’s position is that her injuries and resulting impairments are permanent, serious, and important. The plaintiff relies on the opinions of her treating psychiatrist Dr. Teshima and litigation expert Dr. Gerber.
Credibility
6The credibility and reliability of witnesses is central when dealing with soft tissue injuries, chronic pain and psychological injures. The reason for that is that these are invisible injuries, not detectable through objective testing. Furthermore, resulting limitations from ongoing pain and depression again cannot be measured in any objective fashion but depend on self-reports.
7Overall, I find that Cindy was a credible and reliable witness.
8The defendant pointed to what I would consider to be relatively minor differences in the descriptions of her injuries Cindy gave at different times. After the accident Cindy variously described her injuries as soft-tissue, not severe, and that she was sore or quiet sore and had pain.
9The defendant made much of the fact that Cindy told various people that she gained 30 pounds after the accident. This was not correct according to records taken of her weight at various times. However, there was evidence that Cindy was inactive and binge eating after the accident. Cindy explained that she believed that she had gained weight because her clothes were tighter. I find this to be a credible explanation of the inconsistency.
10The defendant pointed to a number of instances where Cindy did not produce records or call witnesses to corroborate her evidence. For example, she did not produce dental records which might have shown problems with her teeth as a result of not brushing. However, I note that Cindy did not claim she had dental problems. Cindy did not call evidence of her friends from her diet club or her parents and siblings. Cindy did call evidence of her brother and two individuals who worked/volunteered with her. I also note that Cindy’s treating psychiatrist Dr. Teshima also spoke to her mother. The failure to produce records or call witnesses is not evidence of an inconsistency.
11The defendant also pointed to Cindy’s self-limiting behaviour during the Functional Abilities Evaluation. However, Mr. Morris who conducted the evaluation agreed that people self limit due to pain.
12Cindy presented as a credible witness and the jury clearly accepted her evidence. None of the experts suggested that she was malingering or exaggerating her injuries in any way. One of the experts who testified for Cindy, Dr. Gerber performed a variety of psychological tests, two of which had validity indicators which are hidden questions designed to detect malingering. Cindy had perfect scores on both tests. The defence expert, Dr. Ross did not think such tests were necessary as he had no concerns that Cindy was exaggerating or malingering. He did not see any such suggestion in the voluminous medical records from more than a dozen medical professionals who assessed or treated Cindy over many years.
13There were a few instances where Cindy lied to Dr. Teshima, or others, primarily to present herself in a better light than she actually was. These lies were not about the accident or her injuries and impairments. Cindy was forthright about these prior instances of dishonesty and testified that she would never lie while under oath in court. I accept that evidence.
14In addition, Cindy’s evidence about her pre-accident and post-accident condition which speaks to the main issue on this motion, was largely corroborated by the lay witnesses, her treating psychiatrist and the records.
Analysis
15Section 267.5(5)(b) of the Insurance Act provides as follows:
(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,
(b) permanent serious impairment of an important physical, mental or psychological function.
16Sections 4.1, 4.2 and 4.3 of Court Proceedings for Automobile Accidents That Occur on or After November 1, 1996, O Reg 461/96 as amended by Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg 381/0 define the words "permanent serious impairment of an important physical, mental or psychological function” as follows:
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:
- The impairment must,
i. substantially interfere with the person's ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person's impairment and the person's reasonable efforts to use the accommodation to allow the person to continue employment,
iii. substantially interfere with most of the usual activities of daily living, considering the person's age.
- 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,
iii. be necessary for the person to provide for his or her own care or well-being,
or
be important to the usual activities of daily living, considering the person's age.
- 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.
17In Osmani v. State Farm, 2023 ONSC 5438 L. Shaw J set out the correct approach based on Diamond J.’s summary in Ayub v. Sun, 2015 ONSC 1828, at para. 13 of the findings of Firestone J. in Malfara v. Vukojevic, 2015 ONSC 78 as follows:
- In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Arnold, 2014 ONSC 7044 (Ont. S.C.J.) at para. 10.
- The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Lento v. Castaldo (1993), 15 O.R. (3d) 129 (Ont. C.A.), the Court set out the following three-part inquiry: a) Has the injured person sustained a permanent impairment of a physical, mental or psychological function? b) If yes, is the function impaired important? c) If yes, is the impairment of the important function serious?
- While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh, 2008 ONCA 221 (Ont. C.A.) and Bos Estate v. James (1995), 22 O.R. (3d) 424 (Ont. Gen. Div.).
- The test of whether the impaired function is “important” is a qualitative test. See: [Page v. Primeau, 2005) at para. 32.
- The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (Ont. S.C.J.) at para. 56.
- When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious,” the degree of impairment must be beyond tolerable. See: Frankfurter v. Gibbons (2004), 74 O.R. (3d) 39 (Ont. Div. Ct.) at paras. 22-24.
18In order to assess whether Cindy has suffered a permanent serious impairment of an important mental or psychological function I must examine her pre-accident and post-accident functioning.
19Cindy was 29 years old when she was hit by the defendant’s car while she was a pedestrian crossing at the intersection of Don Mills Ave and Finch Avenue on January 9. 2016 at approximately 7:15 p.m. The defendant was making a left hand turn from Finch and intended to proceed southbound on Don Mills Ave. Cindy was crossing from the southeast corner of the intersection to the southwest corner. The defendant did not see Cindy until she was 6 feet in front of him.
20Cindy turned as the car approached, it struck her in the front of her body and she bounced off the hood of the car onto the ground. She was described by a witness at the scene as being panicked, distraught and bewildered.
21Cindy did not sustain major injuries. She was transported by ambulance to the Scarborough Grace Hospital where she was examined and released with a diagnosis of soft tissue injuries.
22At the time of the accident Cindy was working as a mystery shopper going into businesses undercover to observe the premises and operations. She was also very active in politics.
23At the time of the accident Cindy was under the care of a psychiatrist Dr. Teshima. Cindy first saw Dr. Teshima once in 2000 and then again in 2004 up until the trial. Cindy saw Dr. Teshima regularly between 2004 and 2016 and his extensive records were marked as an exhibit at trial.
24Before the accident, Dr. Teshima treated Cindy for a variety of emotional and stress related issues. At the time of the accident, he did not diagnose her with any psychiatric condition or illness and he did not prescribe any medication for her. Cindy’s issues related to a history of PTSD from childhood, and ongoing interpersonal issues with family and co-workers. Cindy was also struggling with her career path having been unable to find employment in her field of study journalism. Dr. Teshima testified that Cindy was improving. Prior to the accident she was more consistently employed, she was functioning independently with respect to her day-to-day needs and was coping more effectively with family conflicts. At the time of the accident, she was not having any PTDS symptoms. She was gradually making progress towards her life goals. She was optimistic and seemed positive to him.
25According to Cindy, she led an active life before the accident. She worked, she volunteered, she had a social life and she spent time with her family. She had no issues with pain, no problem taking care of herself, and was able to help with household chores.
26Cindy was also very close to her family. She lived with her parents and cooked for them about 3 times per week. She spent time with the whole family on special occasions. They had dinner together as a family with her brother coming over for dinner as well. She spent time with his children at their sporting events and provided after school childcare when her nephew was 5 years old. She went out for meals and shopping with her mother and sister and the family took trips together.
27Cindy’s brother John Moustakis testified about Cindy’s pre-accident condition describing her as normal and energetic. He said she would wake up looking to do things and go about her business. He said they had a great relationship. They regularly spent time together as a family with their parents and other sister. Cindy often cooked on these occasions. John said that Cindy also spent with him and his children.
28At trial Cindy testified passionately about her political activities. It was clear that this work was very important to her. She volunteered at her local riding association and had a position on the executive as Secretary. She also worked on various campaigns both as a volunteer and in paid positions. At times, Cindy worked 12 hours, 7 days a week when working on campaigns. At one point she also worked in the constituency office of an M.P.
29Phil Pothen and Matthew Kellway are former politicians who knew Cindy well as a result of working with her in the local riding association. They testified about Cindy’s pre-accident condition and, in particular, her political activities - both volunteer and work related. Their descriptions of her were similar. They described her as a busy, effective worker and volunteer. She was well liked and had significant influence in the community. They both considered her a friend and colleague.
30By all accounts of those who knew her well, Cindy was a changed person after the accident.
31Cindy testified that after the accident she became very fearful of leaving the house. She did not want to go out walking and found crossing streets and intersections particularly difficult.
32Cindy described pain in her back, shoulders, arms, and neck that has not resolved since the accident despite treatment including, physiotherapy, massage therapy and psychotherapy which Cindy did for about two years after the accident.
33Although Cindy tried to continue her mystery shopping work from home after the accident, she found it difficult to sustain and had difficulty completing the necessary reports in a timely fashion. She has not done any mystery shopping that involved her leaving the house, after the accident.
34More recently Cindy has started an eBay business which involves buying and reselling items on the internet. Cindy does this on a part time basis from home and works when she feels able to do so. Her father and brother have assisted her with delivering packages for her eBay business.
35Cindy has not returned to volunteering at the riding association after the accident. Cindy has not worked in politics after the accident except for one attempt described further below.
36Cindy testified that since the accident she has become depressed and feels “stuck.” She lacks motivation and sleeps for 16 – 18 hours a day. She goes weeks or longer without showering and washing her hair. She rarely brushes her teeth.
37Cindy’s brother testified that Cindy changed after the accident. He described her as not being the sister he once had. He described her temperament as being much shorter. He said that when he visited his parents’ home a couple of times a week, Cindy would be on her own in the basement or in her bedroom. He said that Cindy now lacks endurance or interest in going out.
38He has noticed that when crossing major intersections Cindy grabs him by the arm and seems fearful. She only attends about one half of the family get togethers. When she does attend, she only stays for a couple of hours and is not engaged. She does not spend any time with his children now. He says her hygiene is poor since the accident. Her bedroom is dark, cluttered, and messy. He has not seen her do any household chores.
39Phil Pothen coaxed Cindy into working on his school board trustee campaign after the accident even though she was reluctant to do so; saying she did not know if she could do it. Mr. Pothen testified that Cindy really did no work on the campaign and her invoice for 19 hours over a two-month period corroborates that evidence. This amount of work is in stark contrast to the invoices submitted for similar work before the accident.
40Dr. Teshima was immediately concerned when he saw Cindy shortly after the accident. He testified that her fear of leaving the house was a warning sign. After the accident Dr. Teshima diagnosed Cindy with PTSD, increasing depressive symptoms and eventually, Major Depressive Disorder which he attributes to her difficulties caused by the accident. Dr. Teshima explained that Major Depressive Disorder is a permanent diagnosis although the degree of the symptoms may fluctuate. He described Cindy as much less functional and has prescribed 5 different anti-depressants in the years after the accident. After the accident Cindy developed passive suicidal ideation.
41Dr. Teshima explained that Cindy now has low energy, she sleeps for excessive lengths of time, does not shower for weeks at time, goes long periods without brushing her teeth, has low motivation and a negative outlook on her future and potential for recovery.
42Dr. Teshima said that Cindy is still having PTSD symptoms including re-experiencing the accident and avoidance. She is avoiding leaving the house and crossing streets.
43Dr. Gerber is a psychiatrist who was called by the plaintiff as a litigation expert. He reviewed the records up until 2020, assessed Cindy twice on October, 28, 2019 and February 23, 2022 and spoke with various collateral sources. He diagnosed Cindy with moderate to severe Major Depressive Disorder, persistent Somatic Symptom Disorder (previously known as Chronic Pain Disorder) with predominate pain and PTSD symptoms all of which are caused by the accident.
44It is Dr. Gerber’s opinion that Cindy developed pain as a direct response to the accident and then depression as a clear direct result of the accident. The combination of pain and limitations and PTSD increased her depression to a Major Depressive Disorder. His opinion is that the accident was the clear precipitant to her developing those conditions but she was predisposed to having more problems give her difficulty coping with stress before the accident.
45Dr. Gerber’s prognosis is guarded meaning there is not necessarily room for optimism. Although Cindy is working at her eBay business now, he is concerned about how sustainable it is. He said that at age 37 she may still be hopeful that she can somehow have a relationship and family and move ahead career wise. His real concern is what will happen over the next five years when Cindy sees that these things do not happen and are not likely to happen in the future. He says that her depression will worsen once that window closes. His prognosis about her ability to work and earn an income is guarded.
46There are various recommendations for treatment that Cindy has not followed, including further rehabilitation, cognitive behavioural therapy, and more psychotherapy. At the present time Cindy’s treatment consists of therapy with Dr. Teshima and anti-depressant medication.
47Cindy explained that despite wanting to participate in more treatment, she has not done so because she feels stuck. Dr. Teshima explained that Cindy feels stuck because she struggles with motivation, she is unsure what to do, she has been socially isolated for years, and she lacks energy to do things. He says the symptoms themselves are a barrier to treatment. Cindy is depressed and less able to do things and less able to pursue treatment. He described it as a vicious cycle.
48Dr Teshima’s prognosis is guarded, meaning there is room for improvement because there are treatments that Cindy has not tried but he is cautious about the degree, given how difficult it has been for Cindy in the past.
49Dr. Gerber explained that after 2 or 3 years of chronic low functioning and depression the situation becomes much less optimistic. In Cindy’s case it is now almost 8 years post accident, she is depressed and part of that depression is a lack of motivation. In describing Cindy’s failure to follow recommendations for treatment he said, “that is the depression talking.”
50Dr. Ross is a psychiatrist who testified for the defendant. He saw Cindy once on July 3, 2019. He also reviewed records including records up to the end of 2022. He diagnosed Cindy with an Adjustment Disorder. It was Dr. Ross’ opinion that after approximately one year Cindy had returned to her pre accident condition. Dr. Ross’s opinion was based largely on his erroneous assumption that Cindy gave up the position on the executive because she had too much on her plate and was overwhelmed.
51At trial, Cindy’s evidence was that, while she resigned from the position of Secretary on the executive, she had no intention of giving up her volunteer and paid work in politics. Dr. Ross’s conclusion is not supported by Dr. Teshima’s evidence about Cindy having no psychiatric diagnosis at the time of the accident and his evidence that she was doing well before the accident. Dr. Ross acknowledged he was unable to read Dr. Teshima’s notes and may have wrongly concluded that Dr. Teshima diagnosed Cindy with anxiety and depression before the accident.
52Dr. Ross’ pre-accident diagnosis is also not consistent with the evidence of the lay witnesses who described Cindy’s high level of functioning. I note that John Moustakis, Phil Pothen, and Matthew Kellway who all knew Cindy well, were not aware of any psychological difficulties.
53For all of these reasons I prefer the evidence of Dr. Teshima and Dr. Gerber over the evidence of Dr. Ross.
54Both Dr. Teshima and Dr. Gerber testified about the clear change in Cindy’s functioning after the accident which they attribute to the accident. Cindy sleeps excessively, she avoids leaving the house, she does not take care of her personal hygiene, she has problems with motivation and following through on tasks. She cannot work a full-time work week. She has not been active in her social circle.
55Cindy has sustained a permanent impairment of a mental or psychological function. The impairments in Cindy’s mental health and functioning substantially interfere with her ability to continue her regular or usual employment as a mystery shopper and in politics.
56Cindy’s work and volunteering required her to wake up, shower, get dressed, interact with people, plan ahead to meet deadlines, stay organized, manage competing priorities and problem solve. I find that since the accident Cindy sleeps excessively, goes weeks without showering or changing her clothes, avoids interacting with people, is disorganized and messy, lacks focus and motivation and avoids leaving her house.
57The impairments have also substantially interfered with most of Cindy’s usual activities of daily living including leaving her house, showering, and brushing her teeth, spending time with her family, engaging with people while volunteering and in her social activities.
58The impairments have been continuous since the incident and according to Dr. Teshima and Dr. Gerber are not expected to substantially improve. In fact, there is a concern Cindy will get worse over the next 5 years. There are significant barriers to Cindy participating in recommended treatment as described above. Both Dr. Teshima and Dr. Gerber explained the vicious cycle of depression, lack of motivation and lack of function. Cindy’s impairments will last into the indefinite future without any end or limit.
59The functions impaired are important. Leaving the house, taking care of hygiene, being out of bed for more than 8 hours a day, and being engaged with people are all necessary to perform the tasks of employment, to care for oneself and to participate in the activities of daily living.
60The limitations in Cindy’s functioning are serious and go well beyond a tolerable level.
Deductions
61There are deductions which must be made to account for the deductible and accident benefits. The parties are encouraged to agree on these amounts.
Costs
62The parties are also encouraged to agree on costs including the defendant’s entitlement to costs of the plaintiff’s motion to amend the pleading prior to trial.
63If the parties cannot agree on the deductions or costs, they may arrange a case conference with me to narrow the issues and determine a process for making submission on these issues.
Merritt J. Released: October 24, 2023