COURT OF APPEAL FOR ONTARIO

CITATION: Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662

DATE: 20131101

DOCKET: C54520

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Kameenee (Carmen) Wadhwani

Plaintiff (Appellant)

and

State Farm Mutual Automobile Insurance Company

Defendant (Respondent)

Kameenee Wadhwani, acting in person

Philippa G. Samworth and Jennifer Arduini, for the respondent

Heard: October 9, 2013

On appeal from the decision of Justice Carole J. Brown of the Superior Court of Justice, sitting with a jury, dated October 3, 2011.

ENDORSEMENT

[1] The appellant sued her motor vehicle insurer for income replacement benefits, damages for breach of contract, and reimbursement of certain expenses.

[2] The jury at the trial of the action was not satisfied that the appellant had suffered a substantial inability to perform the essential tasks of her employment as an aesthetician as a result of the accident and within two years of the accident. Further, the jury was not satisfied that the insurer breached the contract of insurance when it denied the SEMG assessment and the OCF-22, dated July 22, 2005. In accordance with the verdict of the jury, the trial judge dismissed the action.

[3] The appellant, who is now self-represented, relies upon the factum filed by her former counsel. We called upon the respondent to respond to two of the grounds of appeal.

[4] First, the appellant contends that the trial judge erred in ruling inadmissible the medical reports of the appellant’s family physician who was deceased at the time of the trial.

[5] We would not give effect to this ground of appeal.

[6] The trial judge recognized that her discretion on the issue was governed by s. 52(2) of the Evidence Act, R.S.O. 1990, c. E. 23. She declined to exercise her discretion to admit the reports as evidence on essentially three grounds:

i. the reports were little more than a distillation of the clinical notes of the deceased doctor that were admitted as evidence;

ii. the reports were not necessary for proper presentation of the plaintiff’s case in light of the clinical notes and records and the other viva voce evidence of medical experts who were to testify in support of the plaintiff’s claim; and

iii. the prejudice to the respondent caused by the inability to cross-examine the author of the reports to test the foundation for the opinions and conclusions expressed outweighed any prejudice to the plaintiff in not being permitted to file the reports, given the content of the clinical notes admitted at trial and the other expert opinion evidence to be given in support of the plaintiff’s case.

[7] The trial judge appreciated that she had a discretion to admit the medical reports compiled by the appellant’s deceased family physician. The trial judge recognized the hearsay nature of the reports and analyzed whether they met the requirements of necessity and reliability. She concluded that neither requirement had been met. That conclusion is fully supported by the record.

[8] As the trial judge pointed out, the reports were little more than a distillation of the clinical notes of the doctor. The clinical notes were filed as exhibits, thus available for other experts called by the plaintiff to take into account in formulating and expressing their opinion about the origins, nature, and extent of the plaintiff’s disability. The notes were in legible form. The family physician was not an expert in chronic pain syndrome. Other experts gave evidence on that issue and their opinions were available to the jury.

[9] The absence of the family physician as a witness in the proceedings would have occasioned significant prejudice to the respondent. The doctor could not be cross-examined on the extent of his experience with chronic pain cases or on other factors that were relevant to his credibility as a witness and the reliability of his evidence.

[10] We are satisfied that the trial judge applied the proper test to determine the admissibility of the deceased physician’s reports. She considered the governing principles, and took into account the relevant factors. Her conclusion was untainted by any irrelevant considerations. She did not misapprehend any of the evidence. It has not been shown that the trial judge exercised her discretion improperly.

[11] The second ground of appeal challenges the correctness of the trial judge’s interpretation of the interplay between ss. 4(1) and 5 of the Statutory Accident Benefits Schedule – Accidents on or After November 1, 1996, O. Reg. 462/96 (the “SABS”).

[12] The trial judge decided that to qualify for income replacement benefits under s. 5 of the SABS beyond a period of 104 weeks, an insured must establish eligibility for the benefits within the first 104 weeks after the accident under s. 4(1) of the SABS. The trial judge framed the first question for the jury accordingly.

[13] In our view, the trial judge was correct in her interpretation of the relationship between the two provisions.

[14] The argument for the appellant is that an insured can return to work during the initial 104-week period (as the appellant did here) and, if at some time thereafter she or he is entirely unable to work because of accident-related injuries, she or he can reassert a claim for income replacement benefits at any time, with the limitation period beginning to run only when the insurer refuses to pay the further benefits claimed.

[15] This argument was rejected by this court in Haldenby v. Dominion of Canada General Insurance Co. (2001), 2001 16603 (ON CA), 55 O.R. (3d) 470. A similar conclusion was reached by the Appeal Division of the Financial Services Commission of Ontario in Ladhar v. Economical Mutual Insurance Co., 2012 CarswellOnt 5805.

[16] We would not give effect to this ground of appeal.

[17] The appeal is dismissed. The respondent is entitled to its costs on a partial indemnity scale in the amount of $10,000.00 inclusive of disbursements and all applicable taxes.

“M. Rosenberg J.A.”

“David Watt J.A.”

“S.E. Pepall J.A.”