DATE: 20061004

DOCKET: C43262

COURT OF APPEAL FOR ONTARIO

RE:

VITTORIO PINCHERA, MARIA PINCHERA personally, GIANLUCA PINCHERA AND PAOLO ONCHERA minors by their Litigation Guardian MARIA PINCHERA (Plaintiffs/Appellant in Appeal) – and – WADE D. LANGILLE (Defendant/Respondent in Appeal)

BEFORE:

LABROSSE, ROSENBERG AND MACFARLAND JJ.A.

COUNSEL:

James Vigmond and Brian Cameron

for the appellant

Alan L. Rachlin

for the respondent

HEARD & RELEASED ORALLY:

September 28, 2006

On appeal from the judgment of Justice Ellen Macdonald of the Superior Court of Justice, dated February 14, 2005.

E N D O R S E M E N T

[1] The appellant, Vittorio Pinchera, appeals the decision of the trial judge that he had not met the burden of proof to establish that he had sustained a permanent and serious impairment of an important physical, mental or psychological function, as a result of a motor vehicle accident (s. 267.5(5) of the Insurance Act, R.S.O. 1990, c.18).

[2] The words of the trial judge that are complained of are contained in paragraph 10 of her reasons:

Some time was taken at the trial on the question of what the future may hold for Mr. Pinchera. However, it must be remembered that for purposes of determining whether or not Mr. Pinchera’s injuries fall within the exemption contained in s. 267.5(5) of the Act, one must look at Mr. Pinchera’s condition at the time of trial. In other words, it is not open for me to make a determination under s. 265.5(5) on the basis of conjecture as to what the future may bring Mr. Pinchera. While it is clear from the medical evidence and from Mr. Pinchera’s testimony that he suffers from considerable recurring discomfort as a result of this accident, this recurring discomfort is tolerable and does not prevent him from continuing with the operation of his catering business.

[3] We are satisfied that the trial judge did consider future events but found the evidence in support of the appellant’s position no more than conjecture. Thus, for example, at paragraph 7, she referred to the evidence that the greatest likelihood is that the appellant may experience recurring episode of back pain in the future. At paragraph 14, she held that this would not be a serious impairment of an important function.

[4] The trial judge’s wording may be unfortunate but in fact, she set out her findings with respect to the appellant’s condition and the evidence supports her conclusion that the appellant had not established upon a balance of probabilities that his impairment came within the mandated exceptions of the statutory bar to bring an action.

[5] In the result, the appeal is dismissed. Costs fixed at $11,467.16, all inclusive.

“J.M. Labrosse J.A.”

“M. Rosenberg J.A.”

“J. MacFarland J.A.”