COURT OF APPEAL FOR ONTARIO

CITATION: Gyorffy v. Drury, 2015 ONCA 31

DATE: 20150122

DOCKET: C58228

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Bella Gyorffy

Plaintiff (Respondent)

and

Marion Drury

Defendant (Appellant)

Alan L. Rachlin, for the appellant

Timothy H. Leigh-Bell, for the respondent

Brian M. Cameron and Michelle Han, for the intervener Ontario Trial Lawyers Association

Heard: June 4, 2014

On appeal from the order of the Divisional Court (Justices Alison Harvison Young and R. Dan Cornell, Justice P. Theodore Matlow dissenting), dated July 2, 2013, with reasons reported at 2013 ONSC 1929, 116 O.R. (3d) 387, setting aside the judgment of Justice Gordon D. Lemon of the Superior Court of Justice, dated June 8, 2010.

Laskin J.A.:

A. Introduction

[1] Under Ontario’s Insurance Act,[^1] persons injured in a car accident can sue for damages for non-pecuniary loss only if they meet an impairment threshold: they must have sustained a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement. Beginning in October 2003, injured persons have also had to meet evidentiary requirements prescribed by regulation. They must lead evidence of their impairment from a qualified physician and, in addition to that evidence, they must “adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”[^2]

[2] This appeal raises a single question: can the injured person – the plaintiff – provide the corroborating evidence? The trial judge said “no” but the majority of the Divisional Court said “yes”. For the reasons that follow, I agree with the majority of the Divisional Court and would therefore dismiss the appeal of the defendant, Marion Drury.

B. Background

(i) The Accident

[3] The plaintiff, Bella Gyorffy, was injured in a car accident in November 2003. He sustained a severe whiplash injury, which caused continuous and permanent back pain, acute and chronic pain in his right shoulder, continuous headaches and decreased range of motion in his spine.

(ii) The Trial

[4] Gyorffy sued Drury, the at-fault driver, and his action was tried before a jury in February and March 2010. The jury awarded Gyorffy $39,000 in damages for non-pecuniary loss. While the jury was deliberating, however, the defence brought a “threshold motion” before the trial judge.

[5] The trial judge ruled that Gyorffy’s injuries had satisfied the impairment threshold: he had sustained a permanent serious impairment of an important physical, mental or psychological function. He had also met all the evidentiary requirements, except one: he had not provided evidence corroborating his change in function. Three physicians testified and Gyorffy testified,[^3] but Gyorffy did not call any other evidence. Although the trial judge accepted Gyorffy’s evidence about his pre- and post-accident condition, he ruled that a plaintiff could not provide the corroborating evidence the regulation required. He therefore granted the defence’s threshold motion and dismissed the action.

(iii) The Divisional Court

[6] The majority of the Divisional Court allowed Gyorffy’s appeal. Writing for the majority, Harvison Young J. held that the regulation “does not preclude the plaintiff from providing corroborative evidence”. The majority restored the jury’s award of $39,000 less the statutory deductible of $30,000,[^4] and thus awarded Gyorffy $9,000 for damages for non-pecuniary loss.

[7] Matlow J. dissented. He held that “as a matter of logic, [the plaintiff’s] evidence was not capable of corroborating his own evidence.”

C. Analysis

(i) Section 267.5(5) of the Insurance Act

[8] This subsection sets out the impairment threshold a person injured in a car accident must meet to receive damages for non-pecuniary loss.

(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,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

Gyorffy’s claim was made under s. (5)(b).

(ii) Ontario Regulation 461/96 (Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996)

[9] The two sections of the regulation relevant to this appeal are ss. 4.2 and 4.3. Both apply to accidents occurring on or after October 1, 2003. They therefore apply to the accident in which Gyorffy was injured, as it occurred in November 2003. The full text of both sections is reproduced at Appendix A.

(a) Section 4.2

[10] Section 4.2 of the regulation sets out a multi-part definition of “permanent serious impairment of an important physical, mental or psychological function”. Here, I discuss only those parts the trial judge relied on in finding that Gyorffy’s injuries had met the impairment threshold as defined in the regulation.

[11] Section 4.2(1) provides that a person suffers from a permanent serious impairment of an important physical, mental or psychological function if three criteria are met. The criteria relate to the seriousness of the impairment, the importance of the function impaired, and the permanence of the impairment. The first two criteria can each be met in different ways.

[12] To meet the first criterion, under s. 4.2(1)1(iii), “[t]he impairment must … substantially interfere with most of the usual activities of daily living, considering the person’s age.”

[13] Before the accident, Gyorffy was employed by Scotia Tire as a heavy truck mechanic and alignment technician. After the accident, he was off work for seven weeks. He returned to work with modified duties. Eventually, he resumed his old job, but he required help lifting heavy objects. To relieve pain, he spends most of his time on weekends lying down and resting.

[14] Gyorffy’s family doctor and a doctor specializing in physical medicine both testified for the plaintiff. Their evidence supported Gyorffy’s testimony about his impairment. In their opinion, Gyorffy should not continue with his previous employment because it requires lifting heavy objects and making repetitive movements. To control his pain, he needs heavy doses of drugs. They recommended more sedentary work.

[15] The trial judge assessed Gyorffy’s evidence. He found him to be “a credible witness.” And he concluded, at para. 40 of his reasons, that Gyorffy’s impairment substantially interferes with most of his usual activities of daily living:

I am satisfied that Mr. Gyorffy’s requirement to maintain high levels of pain killing medication (referred to by the defendants medical expert as “powerful morphine based medications”) to “slug” through his day and then spend significant periods of the weekend resting up for the next work week, substantially interferes with most of the usual activities of his daily living according to section 4.2(1)1.

[16] For the second criterion, under s. 4.2(1)2(iv) of the regulation, “[f]or the function that is impaired to be an important function of the impaired person, the function must … be important to the usual activities of daily living, considering the person’s age.”

[17] The trial judge found this criterion was met. At para. 46 of his reasons, he wrote:

Mr. Gyorffy meets criteria 4.2(1)2(iv) since his back and neck are important to the usual activities of his daily living. Without the medications referred to above, his back and neck pain does not allow him to carry on with those usual activities.

[18] For the third criterion, under s. 4.2(1)3 of the regulation, for the impairment to be permanent, it 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.

[19] The trial judge found, at paras. 52 to 53 of his reasons, that the “permanent” criterion was met:

Both the plaintiff and defence medical evidence confirm that the injury is permanent. Mr. Gyorffy explained that after getting through his work day, he could not tolerate physiotherapy. I accept this evidence and cannot find that his failure to attend was unreasonable.

The evidence of Doctors Garner, Easterbrook and McBroom was that physiotherapy would not assist him at the present time; that his condition was continuous and was not likely to substantially improve. Accordingly, Mr. Gyorffy has met these criteria.

(b) Section 4.3

[20] Section 4.3 of the regulation sets out the evidence a plaintiff must adduce to prove a permanent serious impairment of an important physical, mental or psychological function. This appeal turns on the interpretation of s. 4.3(5). The entire section states:

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

[21] Gyorffy led the evidence of Dr. Garner, a specialist in physical medicine and particularly in chronic pain. The defence accepted, and the trial judge found, that Dr. Garner met the criteria in s. 4.3(3)(a) of the regulation. The trial judge also found that his evidence satisfied the requirements of ss. 4.3(2), (3)(b) and (4) of the regulation.

[22] The narrow issue for the trial judge was whether Gyorffy had adduced evidence that corroborated his change in function.

(iii) The interpretation of s. 4.3(5) of the regulation

[23] For convenience, I reproduce ss. 4.3(4) and (5).

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

[24] None of Gyorffy’s wife, daughter or coworkers testified. The trial judge accepted that there were valid explanations for why they did not testify and did not draw an adverse inference from their failure to do so. The absence of their testimony, however, meant the trial judge had no evidence about Gyorffy’s condition other than Gyorffy’s own evidence and that of his expert physician. And although he accepted Gyorffy’s evidence about his condition, the trial judge held that Gyorffy had not met the “onerous” requirement of s. 4.3(5) because “[t]here is nothing that corroborates his [Gyorffy’s] evidence”. The trial judge recognized, at para. 68 of his reasons, that the result he reached might seem absurd:

Some might suggest that this leads to an absurd result. Here we have a plaintiff with a credible claim, but no family or friends to support the change in function. As a result, he cannot satisfy the evidentiary burden under section 4.3(5). On the other hand, one must consider that the entire aim of section [267.5] is to create a threshold between meritorious claims that can proceed and meritorious claims that cannot.

Nonetheless, he dismissed Gyorffy’s action.

[25] The majority of the Divisional Court took a different view. They noted – correctly – that under s. 4.3(5) of the regulation, what requires corroboration is the evidence of the physician, not, as the trial judge appeared to hold, the evidence of the plaintiff. They also noted that the wording of s. 4.3(5) did not expressly preclude a plaintiff from giving corroborating evidence. Corroborating evidence is simply evidence that is separate from but strengthens or confirms what other evidence shows. The regulation requires the evidence of a physician plus the evidence of one other witness. A plaintiff could be that other witness.

[26] Finally, the majority of the Divisional Court held that the trial judge’s interpretation of s. 4.3(5) of the regulation was contrary to the values and principles of equality set out in s. 15 of the Canadian Charter of Rights and Freedoms.

[27] The majority of the Divisional Court concluded that in the light of his other findings, had the trial judge interpreted s. 4.3(5) correctly, he would have found Gyorffy had met the evidentiary requirements of s. 4.3 of the regulation as well as the impairment criteria in s. 4.2. The majority, therefore, awarded Gyorffy damages of $9,000 for non-pecuniary loss.

[28] The appellant, Drury, submits that the Divisional Court’s interpretation of s. 4.3(5) of the regulation renders the corroboration requirement irrelevant. Corroborating evidence must be evidence from a source independent of the witness whose evidence requires corroboration. As the physician’s evidence is invariably based on facts the plaintiff relates to the physician, the corroboration required by s. 4.3(5) cannot also come from the plaintiff.

[29] I do not agree with Drury’s submission. To put my opinion in context, I make three preliminary points, on which both sides agree. First, the standard of review of the Divisional Court’s interpretation of s. 4.3(5) is correctness. The majority is either right or wrong; it is owed no deference.

[30] Second, the guiding principle of statutory interpretation applies, with appropriate modification, to the interpretation of a regulation. Thus, the wording of s. 4.3(5) must be read in its entire context, and in its grammatical and ordinary sense, harmoniously with the scheme and object of the regulation and its enabling statute (the Insurance Act), and with the intention of the Lieutenant Governor-in-Council. See Allstate Insurance Co. of Canada v. Motor Vehicle Accident Claims Fund, 2007 ONCA 61, 84 O.R. (3d) 401, at para. 36.

[31] Third, the purpose or object of the statutory impairment threshold is to limit the right of persons injured in a car accident to maintain a tort action and, by doing so, to control the cost of car insurance. In exchange for limits on their right to sue, injured persons receive enhanced accident benefits regardless of fault. See Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.). And while the regulation did not change the statutory standard of s. 267.5(5) of the Insurance Act, it firmed up that standard by introducing specific definitions concerning the degree of impairment and by outlining the evidence required to prove the impairment.

[32] I turn now to why I reject Drury’s submission and instead agree with the interpretation of s. 4.3(5) by the majority of the Divisional Court. I reject Drury’s submission for three related reasons.

[33] First, corroborative evidence – who and what has to be corroborated? Corroborative evidence is “evidence from a source extraneous to the witness whose evidence is to be corroborated, that is relevant to a material fact in issue” – it thus strengthens or confirms the evidence of that witness on a material fact. See Pepe v. State Farm Mutual Automobile Insurance Co., 2011 ONCA 341, 105 O.R. (3d) 794, at para. 15.

[34] Under s. 4.3(5) of the regulation, the witness whose evidence is to be corroborated is the physician, not the plaintiff. That is evident from the opening words of s. 4.3(5): “In addition to the evidence of the physician…”.

[35] And the “material fact” to be corroborated is the injured person’s change in function. Thus, implicitly, if not explicitly, the physician’s conclusion under s. 4.3(4) that the impairment is “sustained as the result of the use or operation of an automobile” is a conclusion about the injured person’s change in function from before to after the accident.

[36] Second, the words of the regulation. The words of s. 4.3(5) do not expressly preclude the plaintiff or the injured person from being the corroborating witness. Section 4.3 requires the evidence of at least one physician and some other evidence of change in function. The physician’s evidence alone is not enough and the other evidence alone is not enough.

[37] That other evidence may come from the plaintiff, a family member, an employer or coworker, another lay person, or even, I suppose, from surveillance or medical records. Section 4.3(5) does not exclude anyone or anything. Indeed, undoubtedly there are cases where a plaintiff cannot provide corroborating evidence – for example, if the plaintiff is a minor or was severely brain damaged in the accident.

[38] The decision in Pepeprovides a useful contrast. That case concerns unidentified driver coverage under the Family Protection Endorsement OPCF 44R. That coverage was available only if the evidence of the “eligible claimant” was corroborated by “other material evidence”. The OPCF 44R endorsement, however, specifically provided that “the other material evidence” meant either physical evidence or “independent witness evidence, other than evidence of a spouse… or a dependent relative”. In other words, the endorsement excluded some categories of witnesses from providing the corroboration required to access the coverage.

[39] Sections 4.2 and 4.3 of the regulation set out a detailed scheme for meeting the impairment threshold under the Insurance Act. Yet, nowhere in that detailed scheme does the regulation limit the sources of proof by excluding categories of witnesses. For the defence to succeed in this appeal, we would have to read excluding words into s. 4.3(5) to parallel the unidentified driver endorsement in Pepe. Certainly, the Lieutenant Governor-in-Council could have precluded a plaintiff or anyone else from providing the necessary corroborating evidence. But it chose not to do so.

[40] Third, the physician’s knowledge of the plaintiff’s change in function. Drury contends that the physician’s opinion typically relies on hearsay evidence from the plaintiff about the plaintiff’s pre- and post-accident condition. Thus, if plaintiffs are allowed to be corroborating witnesses under s. 4.3(5), they would be corroborating themselves; their evidence would not be from an extraneous source or independent.

[41] I do not accept this contention. In many cases, the physician will have direct knowledge of the plaintiff’s change in function and will not have to rely on the plaintiff’s account. For example, the physician may be the plaintiff’s family doctor and, because of their ongoing relationship, have knowledge of the plaintiff’s condition both before and after the accident. Even in cases where the physician does not know the plaintiff before the accident, the physician’s opinion may not be based solely or even primarily on what the plaintiff tells the physician. The change in function may be obvious from the nature of the injury, or the physician may be able to discern the change in function from an MRI, rehabilitation records or a physical examination.

[42] In other cases – for example, some cases of chronic pain – the physician will have little or no independent knowledge of the plaintiff’s change in function, and will be relying largely or entirely on the plaintiff’s account. Nonetheless, the trial judge will be able to assess the plaintiff’s evidence and determine whether it corroborates that of the physician. But the focus in s. 4.3(5) is on whether the evidence is truly corroborative, not on a particular category of corroborating witness.

[43] For these reasons, I conclude that the majority of the Divisional Court correctly interpreted s. 4.3(5) of the regulation. The majority of the Divisional Court also relied on s. 15 of the Charter, as did the intervener, the Ontario Trial Lawyers Association. In my view, it is unnecessary to consider s. 15 in interpreting s. 4.3(5).

D. conclusion

[44] I agree with the majority of the Divisional Court that under s. 4.3(5) of the regulation, the plaintiff, Gyorffy, was entitled to corroborate his physician’s evidence about his change in function. I would therefore dismiss the appeal. If the parties cannot agree on the costs of the appeal, they may make brief submissions in writing.

Released: January 22, 2015 (“J.L.”)

“John Laskin J.A.”

“I agree. Paul Rouleau J.A.”

“I agree. Gloria Epstein J.A.”

Appendix A: Sections 4.2 and 4.3 of Ontario Regulation 461/96

Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

SECTION 4.2

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. 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,

ii. substantially interfere with the person's ability to continue training for a career in a field in 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 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,

ii. be necessary to perform the activities that are essential tasks of the person's training for a career in a field in which the person was being trained before the incident, 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 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.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

SECTION 4.3

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person's claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

[^1]: R.S.O. 1990, c. I.8.

[^2]: Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96, s. 4.3(5).

[^3]: Two of the physicians testified for the plaintiff, Gyorffy. The other physician testified for the defence.

[^4]: Insurance Act, supra note 1, s. 267.5(7)3; and O. Reg. 461/96, supra note 2, s. 5.1(1).