ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-09-376502
DATE: 20130228
BETWEEN:
JOHANNA PEREZ
Plaintiff
– and –
ANTONIO PINTO
Defendant
Ryan S. Breedon and Joseph Campisi, Jr., for the Plaintiff
Michael J.T. Best and Tasha Adams, for the Defendant
HEARD: January 23, 2013
t. mcewen j.
ruling on motion
overview
[1] The defendant moved at the conclusion of the evidence at this trial for a determination as to whether the plaintiff’s claim for non-pecuniary loss is barred by virtue of the provisions of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8. This action was tried before a jury and the motion was brought during the time the jury was deliberating.
[2] The plaintiff’s action arises out of a motor vehicle accident that occurred on April 17, 2007. As a result, the action is subject to the provisions of the Insurance Rate Stability Act, 1996, commonly referred to as Bill 59.
[3] Pursuant to bill 59, a plaintiff’s claim for non-pecuniary damages is prohibited unless the plaintiff can establish that her injuries fall within the statutory exceptions set out in s. 267.5(5) of the Insurance Act.
[4] Pursuant to s. 267.5(5), a plaintiff can maintain a claim for damages for non-pecuniary loss if, as a result of a motor vehicle accident, she has sustained:
(a) Permanent, serious disfigurement; or
(b) Permanent, serious impairment of any important physical, mental or psychological function.
[5] The plaintiff does not contend that she would qualify under s. 267.5(5)(a) above, and the argument of counsel focused on whether the plaintiff qualifies under s. 267.5(5)(b).
[6] In this regard, the plaintiff is not alleging impairment of mental or psychological function, but is advancing claims for permanent impairment of an important physical function.
[7] The defendant denies the plaintiff has sustained a permanent, serious impairment of an important physical function.
[8] In order to determine this issue, I must have regard fo the following three questions:
(i) Has the plaintiff sustained a permanent impairment of a physical function?
(ii) If yes, is the function which is permanently impaired an important one?
(iii) If yes, is the impairment of the important function serious?
[9] After deliberating a short time, the jury assessed the plaintiff’s damages for pain and suffering and loss of enjoyment of life at $2,500. In the circumstances, counsel advised that they would consider whether they required a decision on the defendant’s motion. Shortly thereafter, counsel for the plaintiff advised that they required my ruling on the motion.
analysis
[10] For the reasons below, I have concluded that the plaintiff did not suffer a permanent impairment. If I am incorrect in this regard any impairment suffered was not important, nor serious.
[11] The plaintiff’s credibility was a central issue at the trial, particularly, as to whether she sustained any form of serious injury that would have led to the chronic pain of which she now complains.
[12] Having considered all of the evidence, I cannot conclude that the plaintiff suffered either a permanent, or important, or serious impairment of the physical function.
[13] I reached this conclusion primarily for the following reasons:
(i) The plaintiff did not suffer any serious forms of objective physical injury such as fractures.
(ii) The medical testing, primarily the MRI studies did not disclose any evidence of any serious form of abnormality. I accept the evidence of Dr. Finkelstein that the abnormalities were, in fact, ones one could normally expect as people age and that the findings are non-specific.
(iii) Her complaints to treating doctors were inconsistent. For example, Dr. Grewal, a doctor who specializes in family medicine and saw the plaintiff between 2008 and 2012 testified that the first mention of a motor vehicle accident was in March of 2011. Further, when Dr. Grewal saw the plaintiff in February of 2010, the plaintiff denied that she had sustained an injury.
Dr. Asmal also saw the plaintiff post-accident and considered himself to be her family doctor. The plaintiff did not mention the motor vehicle accident when she first attended in April of 2007.
(iv) The plaintiff has not returned to her job, post-accident, as a janitor at the Toronto District School Board. I cannot, however, overlook the fact that the Board attempted to contact her on several occasions, both by telephone and by registered mail, to determine her status and she never responded. I do not accept her explanation that the correspondence did not come to her attention given the fact that it was sent to her home via registered mail. It is impossible to conclude that she was not aware of inquiries of the Board. Rather, I have concluded, that she was disinterested in returning to work.
(v) Notwithstanding the plaintiff’s failure to return to work, she has managed to regularly attend at college. She has completed degrees at Humber College in Visual Merchandising and Event Planning. She testified at trial that she believes that she is capable of working as an Event Planner. The plaintiff did testify that she was unable to complete her studies in Interior Design due to physical limitations. I do not, however, accept that explanation in light of my findings above and the evidence that illustrated she had problems with the curriculum.
(vi) From my observations at trial, it frankly did not appear as though the plaintiff suffers from any sort of pain, discomfort, or any limitation in her range of movement.
(vii) Although the issue of whether the plaintiff’s claim for non-pecuniary loss is barred by virtue of the provisions of the Insurance Act is mine alone to decide, the jury awarded the plaintiff a very modest amount for her claim for pain and suffering and loss of enjoyment of life. Although I put little weight of the verdict on the jury in coming to my conclusion, it is not a to be ignored: Kasap v. MacCallum, 2001 7964 (ON C.A.) and Duguay v. O’Neill (1996), 1996 8227 (ON SC), 31 O.R. (3d) 22.
[14] Although the plaintiff did adduce evidence to support her case, particularly the evidence of Dr. Kumbhare, I cannot conclude on the balance of probabilities that the plaintiff sustained a permanent, serious impairment of any important physical, function for the reasons alone. In my view, the plaintiff sustained modest injuries as a result of the motor vehicle accident and has exaggerated her symptoms. I do not find that she has met any of the three parts of the test set out above and as such, she is not allowed to claim damages for non-pecuniary losses under s. 267.5(5) of the Insurance Act.
T. McEwen J.
Released: February 28, 2013
COURT FILE NO.: CV-09-376502
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JOHANNA PEREZ
Plaintiff
– and –
ANTONIO PINTO
Defendant
RULING ON MOTION
T. McEwen J.
Released: February 28, 2013