BARRIE COURT FILE NO.: 08-0896

DATE: 20120719

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: SHAUN IVENS, Plaintiff/Responding Party

AND:

HYACINTHE LESPERANCE, Defendant/Moving Party

BEFORE: MULLIGAN J.

COUNSEL: A.W.H. Wong, Counsel for the Plaintiff/Responding Party

L. Matthews, Counsel for the Defendant/Moving Party

HEARD: July 6, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] In this action the plaintiff, Shaun Ivens sought damages for personal injuries arising out of an accident that occurred while he was riding his motorcycle on November 2, 2007. The matter proceeded before a jury in Barrie, who heard evidence over a three week period. The jury assessed Mr. Ivens’ damages at $100,000 and awarded him past lost of income of $56,000, future loss of income at $55,000, and $0 for future house-keeping and home maintenance. On the issue of liability, the jury found the defendant fifty five percent at fault and Mr. Ivens forty five percent at fault for the motorcycle accident.

[ 2 ] While the jury was deliberating defence counsel indicated that the defence would consider bringing a threshold motion. Due to scheduling difficulties the motion was heard after the jury rendered its verdict.

[ 3 ] The defendant seeks an order or declaration that the plaintiff’s claim for non-pecuniary losses is barred by s. 267.5 of the Insurance Act, R.S.O. 1990, c. I(8). This section of the Act stipulates that the owner of an automobile is not liable in an action for non pecuniary losses, unless the injured person has sustained “a permanent, serious impairment of an important physical, mental, or psychological function”. The defendant therefore submits that the plaintiff’s claim for general damages is barred by s. 266(1) of the Insurance Act.

LEGISLATIVE FRAMEWORK

[ 4 ] Before reviewing the facts in this case it is useful to review the legislative framework to provide context for the discussion that follows. Section 267.5 prohibits a person injured in a motor vehicle accident from suing for non-pecuniary damages unless he or she meets the threshold test established by ss. 5 of 267.5, which provides as follows:

(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 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.

[ 5 ] This accident occurred in 2007 therefore it is governed by Regulation 381/03 which is commonly known as Bill 198. The regulation provides definitions for the terms “permanent”, “serious impairment”, and “important function”. It also provides direction as to what types of evidence must be called to establish an exemption under sub-para. 276.5(5)(b).

[ 6 ] Essential elements of the definitions contained in Bill 198, as applied to Mr. Ivens’ case, requires the plaintiff to prove:

(i) a serious impairment – one that substantially interferes with his ability to continue his regular or usual employment, despite reasonable efforts to accommodate him, and despite his reasonable efforts to use the accommodation to allow him to continue employment; or, one that substantially interferes with most of the usual activities of daily living, considering the plaintiff’s age;

(ii) of an important function – one that is necessary to perform the activities that are essential tasks of his regular or usual employment, taking into account reasonable efforts to accommodate him, and his reasonable efforts to use the accommodation; or, one that is important to the usual activities of daily living considering his age, and;

(iii) that is permanent – one that has been continuous since the accident and must, based on medical evidence and subject to the plaintiff reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, must continue to meet the criteria of serious impairment, and must be expected to continue without substantial improvement when sustained by persons in similar circumstances.

THE IMPACT OF THE JURY’S DECISION

[ 7 ] In Kasap v. MacCullum, 2001 7964 (ON CA) , [2001] O.J. No. 1719, the Ontario Court of Appeal provided the following guidance at paras. 7 and 8:

[7] The Legislature has left to the judges to determine whether the threshold has been met. This will often overlap a jury’s considerations; and particularly where the symptoms are subjective.

[ 8 ] Nowhere does the Legislature say the judge is bound to consider the jury verdict much less the judge is bound by any implied findings of credibility of the jury. By the same token, the legislation does not suggest that a trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge ...

[8] In Parkes v. Peter, [2007] O.J. No. 4904, at para. 15 , Riley J. summarized the Court of Appeal’s decision in Kasap as follows:

The Ontario Court of Appeal has made it quite clear that the trial judge has an independent obligation to assess the threshold issue, which assessment and ruling might be in fact, inconsistent with a jury verdict (resulting in at least one case of “judge nullification” of a jury’s award of damages).

[ 9 ] In Clark v. Zigrossi, [2010] O.J. No. 4266 , D.M. Brown J. explored the tension between a judge deciding a threshold motion either before or after the jury’s verdict. At para. 9 he stated:

In light of the differing rules of judge and jury, the timing of the hearing of a threshold motion during a jury trial, takes on some significance. If the motion is heard and decided before the jury renders its verdict, then, one might argue, the jury has laboured for not. On the other hand, if the motion is heard and decided after the jury renders its verdict, might the judge be unduly influenced by the verdict?

[ 10 ] With respect to threshold motions after the jury’s verdict, D.M. Brown J. provided this cautionary note in Clark v. Zigrossi at para. 18:

The danger of threshold motions after the jury has rendered its verdict is, as has been indicated in Justice Riley’s decision in Parkes v. Peter, the possibility of inconsistent findings of fact by the trial judge and by the jury. If a jury has been selected as a trier of fact and if we are to preserve the jury system in civil cases in this province, in my respectful view, judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury’s verdict is met.

[ 11 ] I am satisfied that, although I am not bound by the jury’s verdict, it is the factor which I can take into consideration in the context of a threshold motion.

POSITION OF THE PARTIES

[ 12 ] It is the plaintiff’s position that as a result of the motor vehicle accident of November 2, 2007, he suffered a left knee fracture, right knee contusion, back injury, sleep disorder, mood disorder, chronic pain disorder and loss of function. The left knee and back continue to cause him significant ongoing pain and limitation and function. He continues to have disturbed sleep, depression and headaches. The medical evidence called by the plaintiff suggests that his injuries are serious, permanent and limit important physical, mental or psychological functions.

[ 13 ] It is the position of the defence that the plaintiff has failed to adduce medical and lay evidence to establish he has sustained a permanent serious impairment of an important physical, mental or psychological function. He had a pre-existing injury from an earlier motorcycle accident from which he suffered chronic pain. As a result, he had some pre-existing limitations with respect to his employment and housekeeping and home maintenance issues. Further, Mr. Ivens’ injury from this accident went on to heal, and surveillance footage showed a level of activity inconsistent with his evidence at trial.

EVIDENCE IN THE CASE

[ 14 ] The plaintiff, Shawn Ivens, is 41 years of age. On November 2, 2007, he was involved in an accident while riding his motorcycle. He swerved to avoid the defendant’s pick-up truck, as the defendant was manoeuvring to back into his driveway on Champlain Road near Penetanguishene. Mr. Ivens lost control of his motorcycle. It slid on the roadway or gravel shoulder and Mr. Ivens ended up in the ditch.

[ 15 ] Mr. Ivens is a lifelong resident of the Penetanguishene area. After high school, he had a short period in the military and then began a career as a salesman. He progressed through a number of dealerships and by the time of the accident was employed by a large dealership in the Barrie area. Prior to this accident, Mr. Ivens had another serious motorcycle accident in 1999. He fractured both ankles and his right ankle required open reduction surgery. He was off work for three-and-a-half months. His accident benefits file remained open for several years thereafter. Although he continued to work, he reported pain in his ankles. He received a prescription for ankle braces and a knee brace, and requested accommodations from his accident benefits insurer, including a hot tub and other assisted devices. He lived in his own home, but obtained a riding lawnmower to assist him with outdoor lawn maintenance. During this period of time, he had a functional capacity assessment, indicating some limitations with respect to the ongoing effects of the ankle injury. He also had a career assessment and he explored the possibility of changing to a real estate salesperson on the basis that it may be less onerous than being a car salesperson. Ultimately, Mr. Ivens did not a career change and his income as a car salesman continued to increase.

[ 16 ] By all accounts, Mr. Ivens enjoyed numerous outdoor activities with friends and family members. As well as motorcycling, he enjoyed snowmobiling, mountain biking, boating and body building. He acted as a personal trainer to friends. His connections with family and friends in pursuing these activities was a benefit to his activity as a car salesman. The environment that he operated in with family members and friends produced a lot of leads for his business as a car salesperson. When he changed dealerships from a Midland dealership to a larger Barrie dealership, many of his customers followed him. At the time of the accident in 2007, he was considered to be one of the top six salespeople of an eighteen-person sales force at the dealership in Barrie.

[ 17 ] As a result of the accident, Mr. Ivens was taken by ambulance to the hospital. He was in considerable pain and was diagnosed with an undisplaced fracture of the right knee. He was seen by an orthopaedic surgeon, Dr. J.P. Delaney. Two months later, Mr. Ivens saw Dr. Delaney again, and the doctor noted that Mr. Ivens was limping and having trouble walking. The doctor noted in his chart that Mr. Ivens had “an undisplaced fracture through his medial femoral condyle that was causing him some of the discomfort that he is experiencing now, and this is going to heal in an excellent position.” Dr. Delaney saw Mr. Ivens again in June of 2008. His chart noted that Mr. Ivens was having trouble walking and he couldn’t fully flex his left knee. The doctor noted in his chart, “I don’t think there’s much more one can do here. His left knee is stiff and I don’t know if physiotherapy now will make that much difference to him, but I think it’s worth a try.”

[ 18 ] During this period of time, Mr. Ivens was also seeing his family doctor, Dr. B. Golisky. He sought a referral to another orthopaedic surgeon and was referred to Dr. John McCall. During this period of time, Mr. Ivens attempted to return to work in the spring of 2008, but was unsuccessful and did not return to work as a car salesperson until 2011.

[ 19 ] Dr. McCall saw Mr. Ivens as his treating orthopaedic surgeon. Prior to trial, he again saw Mr. Ivens for a medical assessment. Dr. McCall gave evidence at trial. His initial report to the family doctor after first seeing Mr. Ivens in October of 2008 indicated:

I’ve explained to him that he has a difficult problem which may be impossible to fix. I have agreed to bring him in for an arthroscopic evaluation of his left knee, with a manipulation in an attempt to try and give him a bit more movement.

[ 20 ] Dr. McCall performed the arthroscopic surgery on the left knee and reported to the family doctor in January of 2009, “He has full extension. He can flex to 80 or 90 degrees. He is going to go back to the gym and start working out again.” On his visit with the doctor in March of 2009, he began to mention back pain as well as the knee problems. Dr. McCall ordered an MRI and learned that Mr. Ivens had a compression fracture, possibly from wedging or crushing. He noted in evidence that this is not the type of injury that requires surgery. His recommendation was that Mr. Ivens should achieve a higher level of fitness and weight reduction to alleviate the back pain problem. When the doctor was pointed to the record indicating there was no report of back pain after the accident, it was his view that any pain from the back would have been secondary to the more immediate pain from the knee, which would have been the pressing concern at the time.

[ 21 ] However, he acknowledged that the back injury could have happened before or after the accident in question.

[ 22 ] In subsequent visits with Mr. Ivens about the knee pain, Dr. McCall discussed issues such as knee replacement which he felt was not an option, or possibly reconstruction of the knee, or an osteotomy. The purpose of these procedures would be to resolve pain and reduce the medications to enable Mr. Ivens to increase his level of activity. In any event, Dr. McCall gave an opinion that the knee would get worse over time.

[ 23 ] As well as the knee fracture from the accident and the subsequently discovered back injury, Mr. Ivens reported at trial that he suffered continuous pain, depression, sleep disorder, as well as the loss of the ability to enjoy recreational activities that occupied most of his pre-accident life. A number of lay witnesses and medical experts were called on Mr. Ivens’ behalf. To challenge the plaintiff’s evidence, the defence called two medical experts as well.

FAMILY AND FRIENDS

[ 24 ] Several friends, as well as Mr. Ivens’ brother, testified as to his high level of fitness and activity prior to the accident. None of them noticed any lingering effects from his fractured ankles as a result of the 1999 accident. Mr. Ivens acted as a personal fitness trainer for some of his friends and did workouts with his brother. He was involved in mountain biking, boating and in the winter enjoyed snowmobiling on the trails and lakes, which were easily accessible from his home near Penetanguishene.

[ 25 ] All of these witnesses testified that Mr. Ivens was no longer as physically active after the accident. His friend, Jeffrey Arbour said that although they still hung out together, they were no longer involved in any boating or snowmobiling activity. His friend, Jason Dickey said they no longer did hiking or biking, or cycling after the accident. His friend, Roger Laughlin, a friend for twenty years, said that after the accident, Mr. Ivens just disappeared. His friend, Jason Dolson said that after the accident, he was a different person. His brother, Grant Ivens, who used to go to the “Y” with his brother for weight training, said that after his accident, his brother’s attitude changed. He said, “The fun part of Shaun was gone.” Shaun’s mother, Mary Anne Ivens also gave evidence at trial. They had a close relationship and she continued to do his bookkeeping and helped with some housework, but she said he went downhill after the accident. He was anxious and depressed, and family relationships had broken down because of the rift between Mr. Ivens and his brother, Grant Ivens.

DR. B. GOLISKY

[ 26 ] As previously noted, Dr. Golisky was Mr. Ivens’ family doctor. Mr. Ivens first came into his care shortly after the accident. Dr. Golisky made the referral to Dr. McCall, the orthopaedic surgeon when the knee issues had not been resolved. He gave Mr. Ivens prescriptions for Tylenol 3 from time to time, and in December of 2011, issued a prescription for morphine to assist Mr. Ivens with pain management. Dr. Golisky’s chart first noticed that Mr. Ivens mentioned back pain about four months after the accident. He allowed that back pain may have been mentioned earlier and he may not have noted it, giving priority to the left knee injury. However, he was unsure whether or not the back injury was the result of the accident.

DR. KATHRYN WILKINS

[ 27 ] Dr. Wilkins is a physiatrist who saw Mr. Ivens on referral from his family doctor in September of 2010. Her report was tendered as an exhibit. Her impression in her report states in part:

This gentleman appears to have ongoing mechanical neck and low back pain. He is complaining of significant headaches. He has plateaued with his therapies. It is now three years since the time of the accident. It is very likely he will have ongoing chronic pain no matter what type of treatment he has and I would expect treatments to give him perhaps some degree of improvement but certainly not return him to normal.

DR. DAVID KURZMAN

[ 28 ] Dr. Kurzman is a clinical psychologist who gave evidence at trial. His conclusion was that Mr. Ivens had an adjustment disorder with mixed anxiety and depression (chronic).

CLAUDIA MAURICE

[ 29 ] Claudia Maurice is an occupational therapist who did an assessment of Mr. Ivens. She noted that his behaviour was showing frustration and pain, and she recommended that he required assistance around the home.

DR. MAREK GAWEL

[ 30 ] Dr. Gawel was qualified as a neurologist. He noted that Mr. Ivens had daily headaches and reported pain in his lower back and left knee. His prognosis was that ongoing headaches would not improve significantly without intervention, and the headaches would have significant impact on his ability to function and focus on his career.

DR. STEVE BLITZER

[ 31 ] Dr. Blitzer is a general practitioner who focuses on chronic pain management. He saw Mr. Ivens in December of 2010 for assessment purposes. He reported that Mr. Ivens was suffering from chronic pain and it is a serious long-term problem without complete recovery.

DR. HAMDI BEN-FAYED

[ 32 ] Dr. Ben-Fayed is an orthopaedic surgeon who was qualified as an expert on behalf of Mr. Ivens. He examined Mr. Ivens in May of 2010. He noted that Mr. Ivens had a soft tissue injury of the cervical spine and the lower spine, as well as the tibial plateau fracture with residual arthritis. He felt that these impairments would be permanent.

LAURA PRESUTTI

[ 33 ] Laura Presutti is an occupational therapist who was qualified as an expert. She is a kinesiologist. She did an assessment of Mr. Ivens in July of 2011. She noted that he had difficulty with squatting and kneeling, and would have difficulty doing some heavy cleaning and maintenance tasks, both the inside and outside of his residence.

JOEL KUMOVE

[ 34 ] Joel Kumove is a rehabilitation counsellor who was qualified as an expert. He did a report and an updated report, noting that Mr. Ivens had returned back to work, but was using a golf cart around the dealership lot, was wearing sunglasses and working shorter hours.

DEFENCE MEDICAL EXPERTS

[ 35 ] The defence called two medical experts, Dr. Henry Berry and Dr. David Stephen.

Dr. Henry Berry

[ 36 ] Dr. Berry was qualified as an expert in internal medicine, neurology and psychiatry. His opinion was that the back issue was unlikely to have been caused by the accident. A compression fracture would have caused immediate pain, and no pain was noted by the patient until he began discussing the issue several months after the accident. Dr. Berry noted the symptoms of depression but in his view, it was mild depression and not clinically significant. Dr. Berry noted that Mr. Ivens had ongoing left knee pain which would be permanent and serious.

Dr. David Stephen

[ 37 ] Dr. Stephen is an orthopaedic surgeon who was qualified as an expert. He reviewed the notes and records of Mr. Ivens and felt that there was significant improvement to the knee after the subsequent procedure by Dr. McCall. He did not agree that the back injury was caused by this accident. A wedge or compression fracture would lead to immediate pain which would manifest itself either at the time of the accident or a few days thereafter. Because there was no report of pain for quite some time, it was his view that the back injury occurred possibly years before. With respect to the left knee, he disputed Dr. McCall’s evidence that an osteotomy may be required. His view was that an osteotomy would not be required. The left knee would not require surgery but he acknowledged that it would be bothersome.

[ 38 ] In cross-examination, he noted that Mr. Ivens had an obvious limp, there was a difference in the circumference of his thigh, and noted issues with respect to range of motion.

PLAINTIFF’S CREDIBILITY

[ 39 ] Mr. Ivens’ credibility was challenged on a number of fronts by the defence. It was put to him that he was lying or exaggerating with respect to a number of issues at trial. He was challenged on whether or not he had a mortgage on his house. Subsequent evidence confirmed that he did have a mortgage. He was challenged that he only saw the physiotherapist a few times. Subsequent evidence showed that he visited the physiotherapy clinic over forty times.

[ 40 ] Mr. Ivens did exaggerate his income in interviews with a number of medical service providers, a characteristic, perhaps not uncommon for people earning commissioned sales. It is clear that chronic pain is subjective. It is easy to envision situations where an individual may exaggerate pain in seeking some economic advantage. However, in this case, Mr. Ivens’ complaints have an objective component as well as his subjective report of pain.

[ 41 ] A constellation of factors including the medical evidence, and the jury’s verdict awarding significant general damages lead me to accept Mr. Ivens as a credible witness with respect to his chronic pain complaints.

HIS KNEE INJURY

[ 42 ] According to all medical experts, his right knee continues to be bothersome, and I am satisfied that it is the source of much of his pain complaints. It is not clear whether or not the back injury was caused by this accident. However, the injury to the knee cannot be disputed and in my view, it is the source of much of the functional capacity limitations that Mr. Ivens has. Although he was subject to surveillance over several dates in the years prior to trial, there was no evidence that he was seen doing the high level of activity he previously enjoyed. Although he was seen walking around the dealership, his evidence and the evidence of his employer was that a golf cart was available as an accommodation to him and any other salespersons who wished to take advantage of it. Mr. Ivens’ evidence was that he requested the golf cart and used it frequently to get around the large properties that this dealership maintained for their inventory of cars.

DISCUSSION

[ 43 ] I conclude that the plaintiff did sustain a permanent, serious impairment of important physical and psychological functions. I have reminded myself of the wording of the threshold legislation, commonly known as Bill 198, applicable to this accident, as well as the test set out in Myer v. Bright (1993), 1993 3389 (ON CA) , 15 O.R. (3d) 129 (C.A.).

PERMANENT IMPAIRMENT

[ 44 ] The plaintiff suffered a left knee in the accident, an injury that has not resolved notwithstanding medical intervention. I am satisfied that this objective element provides support for the chronic pain reported by Mr. Ivens. It is unlikely that the knee will improve, and he may suffer from arthritis, and he may need further surgical interventions in the future. In addition, the unresolved knee problems and the chronic pain serve to explain his depression, even if diagnosed as mild.

OF AN IMPORTANT FUNCTION

[ 45 ] The plaintiff has returned to work with accommodation from his employer. He uses a golf cart. He does not work the long hours that he previously put in. He has difficulty standing for long periods of time, and is tired at the end of the workday. He is unable to perform many of the housekeeping tasks he previously looked after. More importantly, he cannot engage in the high level of physical activity he previously enjoyed, such as weight training, snowmobiling, bicycling and other outdoor activities with family and friends.

THAT IS SERIOUS

[ 46 ] A serious impairment is one that substantially interferes with the plaintiff’s ability to continue his regular or usual employment despite reasonable efforts to accommodate him, or that substantially interferes with most of the usual activities of daily living considering the plaintiff’s age. The plaintiff’s employer has accommodated him, but reports that he is now in the bottom third of the sales force for the dealership. Because he is on commissions, it is up to the plaintiff to seek out clients and work with clients to complete the sale of a vehicle. As Shaun’s sales manager stated in evidence, Mr. Ivens is no longer “on top of his game”. In addition, because Mr. Ivens can no longer participate in the outdoor activities with friends, he is missing out on the usual activities of daily living which he enjoyed not only for recreation, but as a source of contacts for his commissioned sales employment. On all the evidence, I am satisfied that his physical impairments, coupled with the chronic pain, substantially interfere with his usual activities of daily living.

CONCLUSION

[ 47 ] I find that the plaintiff has established a permanent, serious impairment of important physical, mental or psychological function resulting from the motor vehicle accident of November 2, 2007. As such, the defence motion is dismissed.

COSTS

[ 48 ] The plaintiff was successful on this motion and received an award from the jury for general damages, previous wages and future wage loss. In the event that the parties cannot resolve the issue of costs, then I invite the plaintiff to make written costs submissions within 30 days of today’s date. The defence will then have 15 days to respond with written costs submissions. Costs submissions should not exceed five pages together with any authorities that the parties may wish to rely on.

MULLIGAN J.

Date: July 19, 2012