COURT FILE AND PARTIES

COURT FILE NO.: CV-10-1103

DATE: 20130607

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: GREG GLASS and LEANNE GLASS, Plaintiffs

AND:

JASON GLASS and HARRY GOLZIN and TWD ROAD MANAGEMENT INC., Defendants

BEFORE: THE HON MR. JUSTICE G.M. MULLIGAN

COUNSEL:
M. Elkin and N. Skupsky, for the Plaintiff

J.C. Blouin and H. Nguyen, for the Defendant

HEARD: May 28, 2013

ENDORSEMENT on threshold motion

[1] The plaintiff, Greg Glass, moved at the conclusion of the trial evidence for a determination as to whether the plaintiff’s claim for non-pecuniary loss is barred by virtue of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. This was a jury trial where liability was conceded by the defendant. The issues for determination by the jury were damages. The motion was brought while the jury was conducting its deliberations. During the course of the motion the jury returned with its verdict awarding the plaintiff $125,000 for general damages and $150,000 for future care costs. The jury made no award for past or future wage loss.

LEGISLATIVE FRAMEWORK

[2] This accident occurred in 2008 and therefore is governed by Regulation 381/03, commonly known as Bill 198. Section 267.5 of the Act stipulates that the owner of an automobile is not liable for non-pecuniary losses unless the injured person has sustained “a permanent, serious impairment of an important physical, mental or psychological function”. The defendant submits that the plaintiff’s claim for general damages is barred by s. 266(1) of the Insurance Act.

[3] Section 267.5(5) 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,

permanent serious disfigurement; or

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

[4] Regulation 381/03, known as Bill 198, provides definitions for the terms “permanent”, “serious impairment”, and “important function”. It also provides direction as to the type of evidence must be called to establish an exemption under subparagraph 276.5(b).

[5] The essential elements of the definitions contained in Bill 198, as applied to the plaintiff’s case, require 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 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 reasonable 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.

POSISTION OF THE PARTIES

[6] On the facts of this case the defendant concedes that the plaintiff’s physical injuries were permanent and they were important to the plaintiff. However the defendant does not concede the ongoing injuries were a serious impairment as defined by the regulation. With respect to the psychological impairment the defendant submits that if there was psychological injury it was pre-existing and not caused by the motor vehicle accident, or alternatively, if it was caused by or made worse by the motor vehicle accident it was not a serious impairment as defined and has resolved to its pre-accident condition.

[7] It is the plaintiff’s position that both his physical and psychological impairments are serious, permanent and limit important physical, mental or psychological functions.

EVIDENCE OF THE CASE

[8] Greg Glass was a rear seat passenger in a truck driven by the defendant, his son Jason Glass. Jason Glass drove his truck into the rear end of a snow plough. He has admitted liability for the accident. Greg Glass sustained physical injuries as a result of the accident. He had a broken right ankle which required open reduction surgery involving the installation of plates and screws. Complications to his recovery required a further surgery on the ankle by an orthopaedic surgeon. This surgeon subsequently removed the plates and screws. The ankle problem led to a problem requiring arthroscopic surgery on his knee. In addition Greg Glass suffered a broken sternum in the accident. It resolved without medical intervention after about two months. Further he suffered neck pain which continues to limit his range of motion. He has flare ups of pain from time to time. At the time of the accident Greg Glass had been diagnosed as clinically depressed. He was under the care of his family doctor and his psychiatrist and was on medication. He was also on long-term disability benefits from the insurer for his previous employer.

[9] Both plaintiff and defendant called psychiatrists to give opinion evidence as to Greg Glass’s depression. It is not disputed that he was suffering clinical depression prior to the accident and that the accident worsened that depression. The issue in contention was whether or not Greg Glass, nine to fifteen months post accident, had recovered sufficiently from this worsened depression to his pre-accident condition.

EVIDENCE IN THE CASE

[10] Greg Glass gave evidence on his own behalf. His credibility was not seriously challenged. Prior to the accident he was not working and was on long-term disability. He was living on a farm property near Barrie. About two years before the accident a constellation of factors led to a mental breakdown and psychiatric care. He was not working at the time of the accident but he was able to do some chores around the farm property. He dabbled in raising dogs, collecting and reselling firework with the help of an employee. The son was a contractor and he would often visit the site to “give his two cents worth”. Although he was not able to return his previous work as a salesman, or to do any work at that time, the evidence suggests he had high degree of mobility.

[11] After the accident in December of 2011 he moved to a rural property near Sundridge where he resides with his son. By that point his marriage had permanently broken down. There were issues in his marriage prior to the motor vehicle accident which may have been one of the many factors contributing to his breakdown. He and his son take turns making meals and doing the dishes. He continues to take medication as prescribed by his psychiatrist and is virtually housebound. He told the court about his typical day and even the psychiatrist called for the defence said that he had a “crummy life”.

[12] His current condition is not all psychological. He has lingering problems with his ankle and neck injury. He has some pain or tenderness at the site of the surgery which he describes as minor. He also has some instability at the ankle site requiring him to avoid uneven ground and wear proper footwear to avoid the ankle giving out. In addition, he has ongoing neck pain which somewhat limits his range of motion. The pain is chronic as described by the medical experts. However, the pain is sporadic and can be resolved by heat packs, hot showers and rest. In addition Greg Glass takes Lyrica which provides further assistance.

PSYCHOLOGICAL IMPAIRMENT

[13] The plaintiff’s treating psychologist Dr. Rodway-Norman gave evidence at trial about Mr. Glass’s psychological condition prior to the accident. He thought there was some improvement but he wasn’t out of the woods. The goal was to move his patient towards a full functional recovery. Immediately after the accident he thought that there was a radical shift in Mr. Glass’s condition. He was pessimistic and remains pessimistic now.

[14] Dr. Ross conducted a defence psychiatric assessment of Mr. Glass. He reviewed the medical notes and records and conducted an interview. His opinion was that nine to fifteen months post-accident Greg Glass had recovered to the same psychological condition as he was in prior to the accident. He acknowledged that the depression worsened because of the accident but that worsening had resolved and he had returned to his pre-accident condition. Based on his review his opinion was that Greg Glass was not on a trajectory to go back to work prior to the accident and would never have recovered to the point where he would have meaningful employment even if he had not been involved in this motor vehicle accident.

IMPACT OF THE JURY’S DECISION

[15] As noted the jury awarded general damages of $125,000 and $150,000 for future care costs. The Ontario Court of Appeal has provided guidance to trial judges on the use or consideration of a jury’s verdict in conjunction with threshold motions. In Kasap v. MacCullum 2001 7964 (ON CA), 2001 O.J. No. 1719 the court stated at para. 7 and 8:

[7] The Legislature has left to 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...

[16] In submissions the defendant relied on Shepstone v. Cook 2013 ONSC 418, 2013 O.J. No. 802. Edwards J. granted a threshold motion and denied the plaintiff’s recovery of general damages as awarded by the jury. However Edwards J. also referred to Kasap v. MacCullum (supra). In a case where the jury awarded only minor general damages and future care costs Edwards J. stated at para: 31:

It is clear to me that the jury did not accept that the plaintiff has suffered a serious injury, but rather simply concluded that the plaintiff suffered a relatively minor exacerbation of her medical condition as it existed immediately prior to the second accident. I have, in accordance with the guidance given to me in Kasap, supra, consider the jury’s verdict, denying any recovery for future loss of housekeeping services, as well as the relatively nominal awards made for general damages and future care costs in coming to the conclusion that the plaintiff’s injuries do not fall within the exception to the threshold set out in section 4.2(1)(1)(iii), of the Act.

DISCUSSION

[17] I conclude that the plaintiff did sustain a permanent, serious impairment of important physical and psychological function. I have reminded myself of the wording of the threshold legislation 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

[18] The plaintiff suffered “physical and psychological impairments” as a result of the accident. He continues to suffer residual problems from his ankle injury. He may require specialized footwear and he has to be cautious on uneven ground. He continues to suffer chronic neck pain which may flare up. He will continue to require medications such as Lyrica to manage the pain. His psychological condition worsened because of the accident. The accident added an element of pain to his clinical depression and I am satisfied that he has not recovered to his pre-accident condition.

OF AN IMPORTANT FUNCTION

[19] His neck and ankle issues add functional limitations to aspects of daily living that were not present prior to the accident. His is virtually housebound and does not enjoy the mobility he had prior to the accident.

THAT IS SERIOUS

[20] A serious impairment is one that substantially interferes with the plaintiff’s usual activities of daily living consistent with his age. Greg Glass is virtually housebound, continues to suffer depression, has limits on his mobility and has flare ups of neck pain from time to time. I am satisfied that the constellation of physical and psychological impairments substantially interfere with his usual activities of daily living. Although I am not bound by the jury’s verdict it is a factor which I can take into account in the context of a threshold motion. The jury made a substantial general damages award and an award for future care costs which perhaps recognized his need for services into the future including prescription medication, massage therapy, psychological counselling, assistive devices and other forms of support.

CONCLUSION

[21] I find that the plaintiff has established a permanent, serious impairment of an important physical, mental or psychological function resulting from the motor vehicle accident of December 7, 2008. As such the defence motion is dismissed.

COSTS

[22] The plaintiff was successful on this motion. Judgment at trial was reserved pending my ruling on this motion. The plaintiff is entitled to judgment in accordance with the jury’s verdict. In the event that the parties cannot resolve the issue of interest or costs then I invite the plaintiff to make written submissions within 30 days of today’s date. The defence will then have ten days to respond with written submissions. Cost Submissions should not exceed five pages.

MULLIGAN J.

Date: June 7, 2013