Frankfurter v. Gibbons

[Indexed as: Frankfurter v. Gibbons]

74 O.R. (3d) 39

[2004] O.J. No. 4969

Court File No. 138/03

Ontario Superior Court of Justice

Divisional Court

Then, Matlow and Jennings JJ.

December 3, 2004

Insurance -- Automobile insurance -- No-fault provisions -- Threshold requirements -- Plaintiff sustaining soft tissue injuries to neck in motor vehicle accident -- Plaintiff continuing to experience intermittent pain and stiffness in her neck -- Plaintiff going ballroom dancing less frequently after accident -- Impairment not "serious" -- Plaintiff failing to meet threshold in s. 267.5(5) of Insurance Act -- Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5).

The plaintiff sustained soft tissue injuries to her neck in a motor vehicle accident. She continued in her employment for several years before she quit to prepare for her upcoming marriage. On a "threshold" motion, the trial judge found that the plaintiff had suffered a chronic disability which took the form of stiffness and pain in her neck with pain radiating from time to time into her right shoulder blade or into her arm and central fingers. He found that the stiffness and neck pain curtailed the plaintiff's pre-accident level of ballroom dancing and her ability to do household chores. He concluded that she had sustained a permanent serious impairment of an important physical, mental or psychological function, thereby fitting into the exception to the ban on recovery imposed by s. 267.5(5) of the Insurance Act. The defendant appealed.

Held, the appeal should be allowed.

There was medical evidence to support the trial judge's finding of permanent impairment. "Permanent" does not mean "constant". A continuing impairment, albeit experienced intermittently, can satisfy the plain language of the statute. It was open to the trial judge to find on the evidence that the free use of her neck, right shoulder and arm were "important" to the plaintiff. However, the trial judge did not perform the required analysis to determine whether the impairment and interference with the plaintiff's enjoyment of life went beyond the tolerable to the serious. The plaintiff still went ballroom dancing, although less frequently than before the accident. Her difficulty performing household chores was apparently not so serious as to warrant a claim for housekeeping expenses or a claim under the Family Law Act, R.S.O. 1990, c. F.3. The degree of impairment in her daily life fell below what could be regarded as being serious to her. [page40]

APPEAL from a determination that the plaintiff sustained permanent serious impairment of an important physical, mental or psychological function.

Meyer v. Bright, (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446, 110 D.L.R. (4th) 354, 48 M.V.R. (2d) 1 (C.A.) [Leave to appeal to S.C.C. refused (1994), 17 O.R.(3d) xvi, 172 N.R. 160n], apld Other cases referred to Ahmed v. Challenger, [2000] O.J. No. 4188 (S.C.J.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 219 Sask. R. 1, 211 D.L.R. (4th) 577, 286 N.R. 1, 272 W.A.C. 1, [2002] 7 W.W.R. 1, 30 M.P.L.R. (3d) 1, 2002 SCC 33, 10 C.C.L.T. (3d) 157. Statutes referred to Family Law Act, R.S.O. 1990, c. F.3 Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5), (12) [as am.], (15) [as am.]

Andrea D. Davidson, for plaintiff. Donald Cormack, for defendant.

The judgment of the court was delivered by

JENNINGS J.: --

Overview

[1] The defendant ("appellant") appeals the determination by the trial judge that the plaintiff ("respondent") sustained a permanent serious impairment of an important physical, mental or psychological function, thereby fitting into the exception to the ban on recovery imposed by s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8 (the "Act").

[2] Subsequent to the determination under s. 267.5(15) of the Act, the jury returned a verdict which awarded the respondent $7,000 after both the statutory deduction and the allocation of liability determined by the jury were applied. The appellant has paid the judgment.

[3] On the hearing of this appeal, the appellant's counsel advised us that regardless of the outcome, there would be no attempt to recover the payment to the respondent.

Jurisdiction

[4] The relevant provisions of the Insurance Act are set out hereunder:

Protection from liability; non-pecuniary loss

267.5(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at [page41] 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.

Motion to determine if threshold met; non-pecuniary loss

(12) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsection (5) whether, 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.

Determination at trial; non-pecuniary loss

(15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsection (5) whether, 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.

[5] It will be observed that s. 267.5(12) permits the parties to move before a judge prior to trial for determination as to whether the injured person fits within the exemption in s. 267.5(5). Arguably, if the order is favourable to the injured person it is interlocutory in nature and an appeal from it would be to this court, with leave. However, the practice has evolved that defence counsel bring what has come to be called a "threshold" motion before the trial judge for a determination of s. 267.5(5) issues, presumably under s. 267.5(15). That is what happened in this case. The difficulty is that s. 267.5(15) does not refer to a motion. It imposes a positive obligation upon the trial judge to make a determination "for the purpose of subsection (5)".

[6] After hearing submissions following his charge to the jury, and while the jury was still deliberating, the trial judge said as follows: [page42]

At this point, I will simply say as follows: At the conclusion of the trial in this matter, before the jury had retired, I proceeded to consider a motion brought by the Defendant as to whether the Plaintiff has brought herself within the exclusion from the prohibition claim provided by section 267.5 of the Insurance Act.

After hearing submissions from counsel for the parties in this matter, I have determined that the Plaintiff has sustained a permanent and serious impairment of a physical, mental or psychological function for purposes of this section.

[7] Written reasons for the trial judge's decision were subsequently delivered. We raised the question with counsel as to the nature of the appeal and whether leave was required. Following discussions with counsel, we held that the appeal was not from an order, be it final or interlocutory, but in effect from that part of the judgment which is left to the trial judge to determine. That being the case, the appeal is from a judgment within the monetary jurisdiction of this court and was properly before us. As no judgment had yet been taken out, we advised counsel that we would hear the appeal but that [our] decision would not be released until the formal judgment had been signed and entered. This has now been done.

Standard of Review

[8] The respondent did not address the standard of review. We accept the submission of the appellant that with respect to questions of law, the standard is correctness. In reviewing findings of fact, we must defer to the trial judge unless the judge has committed "palpable and overriding error". That, on the facts before us, we each might have arrived at a different conclusion than did the trial judge is not a ground to interfere with his decision. On questions of mixed fact and law, the standard ranges from "correctness" to "palpable and overriding error" depending upon whether there is a misapplication of a legal standard or a misapprehension of the facts (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31).

Facts

[9] At the time of trial in October 2002, the respondent was 39 years old, single, unemployed and living on her own.

[10] On March 6, 1999, she was involved in what was apparently a minor collision at a gas pump. The medical evidence accepted by the trial judge was that she sustained soft tissue injuries to her neck.

[11] She continued in her employment until 2002 when she quit her job to allow her to prepare for her forthcoming marriage. At trial, she pursued a claim only for non-pecuniary damages. [page43]

[12] The trial judge found that as a result of the accident she had "suffered a chronic disability which takes the form of stiffness and pain in her neck with pain radiating from time to time into her right shoulder blade or into her arm and central fingers". He found that she had periodic insomnia and would have to make adjustments to her lifestyle to accommodate "intermittent discomfort".

[13] The trial judge accepted evidence that the respondent's symptom magnification was attributable to her low pain threshold. He found that the stiffness and neck pain curtailed the respondent's pre-accident level of Latin ballroom dancing which she used to do three to four nights a week for social and fitness reasons, and her ability to do household chores for herself and her mother.

[14] There was ample evidence to support the findings that her injuries were related to the accident.

Law

[15] The parties are agreed that to determine if the injured person can pursue a claim for damages, the trial judge must address three questions:

(a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?

(b) If yes, is the function which is permanently impaired an important one?

(c) If yes, is the important function serious?

(See: Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.); Ahmed v. Challenger, [2000] O.J. No. 4188 (S.C.J.).)

Analysis

[16] There was medical evidence before the trial judge to support his finding of permanent impairment. I do not accept the appellant's submissions that permanent means constant. A continuing impairment, albeit experienced intermittently, can satisfy the plain language of the statute.

[17] Having rejected the evidence of Dr. Cameron as to the respondent's range of movement, it was open to the trial judge to find that on the evidence the free use of her neck, right shoulder and arm were important to the respondent. That he found these to be "bodily functions" (the wording used under the old Act, s. 266(1)) rather than a physical function, (the language in s. 267.5(5)) is, I find, of no consequence. [page44]

[18] Where I have difficulty with the ruling of the trial judge is in his finding that the impairment of the important function is serious.

[19] The respondent was not employed at the time of trial. Although the trial judge accepted her evidence that her sales job was difficult for her to perform because of her neck and shoulder pain, and that she was exhausted at the end of her workday, she left her job not because of her impairment, but solely in order to plan her forthcoming wedding. Confronted with surveillance, the respondent agreed that she still went out to clubs to do ballroom dancing but, as found by the trial judge, she danced far less frequently and with considerably less vigour than was the case pre-accident.

[20] Although there was a finding supported by the evidence of the respondent's difficulty performing household chores both for herself and her mother, apparently the problem was not so serious as to warrant a claim for housekeeping expenses or a claim under the Family Law Act, R.S.O. 1990 c. F.3.

[21] Seriousness relates to the particular claimant before the court. Nevertheless, it is only a serious impairment which will permit an injured person to take advantage of the exception under s. 267.5(5) of the Act. At p. 148 O.R. of the decision in Meyer v. Bright (supra), the court said:

When the legislature qualified "permanent impairment" by the word "serious" it obviously intended that injured persons must endure some permanent impairment without being able to sue.

At p. 150 O.R., the court continued:

We would conclude from the findings of fact . . . that the permanent impairment of important bodily functions has detrimentally impacted mainly upon Mrs. Meyer's enjoyment of her life. Because it is only a serious impairment which will qualify as an exemption under s. 266(1)(b), it is apparent that the Legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue for it.

(Emphasis added)

[22] Although he correctly referred to the three-step process in Meyer v. Bright, I am persuaded that the trial judge failed to perform the analysis set out by the Court of Appeal to determine whether the impairment and interference with the enjoyment of life of the respondent, in a factual context very similar to that of the plaintiffs in Meyer v. Bright, went beyond the tolerable to the serious. Indeed, this issue was not specifically averred to by the trial judge at all. [page45]

[23] The enactment of the legislation was said by the court in Meyer v. Bright, at p. 134 O.R., to be "for the purpose of significantly limiting the right of the victim of a motor vehicle accident to maintain a tort action against the tortfeasor".

[24] In the light of that statement, in my opinion the failure of the trial judge to view the degree of impairment through the lens of Meyer v. Bright constituted an error in law.

[25] As was the case in Meyer v. Bright, the clear factual findings made by the trial judge enables this court to decide the issue by applying the statutory provisions to the findings of fact. As well, the circumstances of this case, including the amount at issue, do not warrant the expense to the parties of directing a new trial.

[26] In my view, the degree of impairment in her daily life experienced by the respondent, although undoubtedly frustrating and unpleasant, falls below what could be regarded as being serious to her. I would allow the appeal, set aside the determination made by the trial judge and dismiss the action.

[27] I understand the trial costs have been paid. Under the circumstances pertaining on this appeal, I would make no order as to costs in this court.

Appeal allowed.