COURT OF APPEAL FOR ONTARIO
CITATION: Jennings v. Latendresse, 2014 ONCA 517
DATE: 20140704
DOCKET: C56428/C56429
Doherty, Epstein and Benotto JJ.A.
BETWEEN
Lisa Jennings
Plaintiff (Appellant)
and
Donald Latendresse and Kingsway General Insurance Company
Defendants (Respondent)
Jane Poproski, for the appellant
Chris G. Paliare and Tina H. Lie, for the respondent
Heard: May 16, 2014
On appeal from the judgment of Justice John J. Cavarzan of the Superior Court of Justice, sitting with a jury, dated May 13, 2013.
ENDORSEMENT
A. Background
[1] The appellant claimed damages against the respondent as a result of a motor vehicle accident. After a nine-day trial, the jury returned a verdict by answering the following questions (answers in italics):
- What injuries, if any did [the appellant] suffer as a result of the accident?
Specify: Neck
Upper & Lower Back
Jaw
Whiplash
- Has [the appellant] recovered from these injuries?
Answer Yes or No: Yes
- If the answer to question no. 2 is “no,” at what amount, if any, do you assess the general damages of the [appellant] caused by the accident?
General damages for pain and suffering: N/A
- If the answer to question No. 2 is “no,” at what amount, if any, do you assess the damages of the [appellant] for loss of income for the period from the date of the accident (April 9, 2005) to date:
Past loss of income: N/A
- What amount, if any should be awarded to compensate [the appellant] for any loss of competitive advantage and loss of marketability in the workplace?
Loss of competitive advantage/marketability: $58,000
The jury would like to recommend that [the appellant] endeavor to seek out a psychological and pain management treatment program.
[2] While the jury was deliberating, the respondent brought a motion pursuant to s. 267.5(3) of the Insurance Act, R.S.O. 1990, c. I.8 requesting that the trial judge dismiss the action on the basis that the appellant had not met the “threshold” for damages because she had not sustained a “permanent serious impairment of an important physical, mental or psychological function” from the accident. The Act states:
(3) 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 expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[3] The trial judge reserved his decision and rendered it after the jury returned its verdict. He dismissed the appellant’s action on the basis that she had “failed to establish on a balance of probabilities that her injuries from the accident are permanent.”
[4] The trial judge awarded costs to the respondent in the amount of $61,912.64.
B. The appeal
[5] The appellant appeals:
the verdict of the jury finding that she had recovered from her injuries;
the decision of the trial judge on the threshold motion that dismissed the action, including the $58,000.00 award for loss of marketability and competitive advantage; and
the costs award.
(1) The Jury Verdict
[6] The appellant argues that the jury verdict was perverse as it was not supported by the evidence and is internally inconsistent because it was “inherently contradictory.”
(a) Perverse Verdict:
[7] In response to question two, the jury determined that the appellant had recovered from her injuries. The appellant argues that this conclusion was contrary to the evidence and is thus perverse. The appellant relies on the medical evidence that she was diagnosed with chronic pain. The appellant submits that a diagnosis of chronic pain, by definition, must indicate that the injuries are permanent. There was, however, evidence as follows:
• medical evidence that the appellant was improving and would continue to improve;
• evidence that her functional abilities showed no significant impairment;
• that the appellant had returned to her pre-accident employment;
• that the appellant’s medical examination showed full range of motion;
• expert testimony from a neurologist, Dr. Stewart, who said the fact that the appellant’s pain improved and then returned years later demonstrates that the recurring pain was not caused by the original injury; and
• that pre-accident and post-accident stressors, both physical and psychological had contributed to the appellant’s chronic pain but had nothing to do with the accident.
[8] There was therefore evidence on which the jury could have reached the conclusion that the appellant had recovered from injuries sustained as a result of the accident.
[9] It is also helpful to consider the charge to the jury in connection with question two. The trial judge instructed as follows:
If you are not satisfied that the motor-vehicle accident materially contributed to the overall condition, then you should answer question number 2 “yes” because you will have concluded that [the appellant] has recovered from the motor-vehicle accident injuries. If you are satisfied that the motor-vehicle accident materially contributed to the overall condition, then you should answer question number 2 “no” because you will have concluded that [the appellant] has not recovered from the motor-vehicle accident injuries.
[10] Although question two speaks in terms of recovering from the injuries suffered in the car accident, the instructions speak in terms of causation. The jury’s answer to question two in the face of this instruction can only be understood as a finding that the appellant had failed to establish that the injuries suffered by her in the accident materially contributed to her “overall condition”. In short, the appellant failed to show a causative link between her medical problems as described in the evidence at trial and the injuries she suffered in the accident. The evidence was open to that interpretation.
[11] A high degree of deference is accorded to the jury verdict, even if there is another conclusion that the evidence could have supported: see Lazare v. Harvey, 2008 ONCA 171, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 320.
(b) Inherent contradiction:
[12] The appellant submits that a finding that she had recovered from her injuries is inconsistent with the jury’s award of $58,000 for loss of competitive advantage and marketability and its “recommendation” that she seek further treatment.
[13] The appellant’s submission that the jury’s award is internally inconsistent must be considered in the context of the jury’s answers to all of the questions and the specific instructions provided to the jury on each question. Question two is a causation question. The jury’s answer demonstrates that it found against the appellant on causation. Unlike questions three and four which required the jury to assess damages only if it found in favour of the appellant on causation, question five, which also addressed damages, said nothing about question two. The jury followed its instructions and assessed damages for “loss of competitive advantage/marketability” without regard to its causation finding.
[14] There is nothing inherently inconsistent in a jury’s finding that the appellant had suffered a loss of competitive advantage and marketability in the workplace, but that the appellant had failed to demonstrate that the loss was caused by the injuries she suffered in the accident.
(2) The Threshold Ruling
[15] The appellant argues that the trial judge erred in law in concluding that her chronic pain was not permanent. As set out above, this conclusion was supported by the evidence.
[16] Significantly, the trial judge was also aware of the causation requirement. He stated that “[t]he central issues in this case are the cause of that condition and whether or not the condition is permanent.” Section 267.5(5) of the Insurance Act provides that the permanent impairment must have been “a result of the use or operation of the automobile”. The trial judge’s conclusion that the appellant’s chronic pain was not caused by the motor vehicle accident is supported by the evidence and consistent with the jury verdict.
[17] The appellant further submits that even if the threshold applies, the action should not have been dismissed because the $58,000 award is for pecuniary damages and thus not subject to the threshold. The appellant relies upon the trial judge’s charge to the jury when he said the following:
The [appellant] asks you to award for loss of competitive advantage or loss of marketability a sum calculated by multiplying by 60 months, that is, the number of months in a five-year period, a monthly income in the range of $1,700 to 1,900 per month.
The position of the [respondent], which follows necessarily from the position of the [respondent] on the past loss of income claim in question 4, is that there should be no award under this heading.
[18] On this basis, the appellant argues that the award of $58,000 is a pecuniary award for loss of future earning capacity and is not subject to the threshold.
[19] The respondent submits that the award of $58,000 was for health care expenses and thus subject to the threshold under section 257.5. The trial judge did not characterize the award of $58,000 in his reasons.
[20] In our view, the claim was properly dismissed even if one assumes, in the appellant’s favour, that the $58,000 related to a pecuniary loss and was, therefore, not subject to the “threshold” requirement in s. 267.5. The jury’s answers to the questions posed particularly question two, compel us to the conclusion that while the jury assessed the appellant’s loss of competitive advantage/marketability at $58,000, the jury was not satisfied that the loss was caused by the injuries suffered in the accident.
[21] In other words, the answers to questions two and five can only be reconciled on the basis that the $58,000 awarded for loss of competitive advantage/marketability did not reflect a loss arising from injuries caused by the accident, but rather a loss caused by the appellant’s various other medical problems that both predated and postdated the accident. There was ample evidence to support this view.
[22] The respondent is, of course, not responsible for losses not caused by the accident. The answer to question two effectively doomed the appellant’s case. Absent causation, the appellant was not entitled to recover any amount from the respondent.
[23] The action was properly dismissed.
(3) Costs
[24] We see no reason to interfere with the trial judge’s award of costs. Leave to appeal the costs award is granted but the appeal as to costs is dismissed.
C. Disposition
[25] The appeal is dismissed with costs payable to the respondent in the amount of $8,000 inclusive of disbursements and applicable taxes.
“D. Doherty J.A.”
“Gloria Epstein J.A.”
“M.L. Benotto J.A.”