COURT FILE NO.: 07-31578

DATE: 2013-09-30

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michelle Blake, Plaintiff

• and -

Dominion of Canada General Insurance Co., Defendant

COUNSEL: Lou Ferro, Jordan Palmers and S. Oostdyk for the Plaintiff Lisa C. Pool and Lisa K. Van Arnhem, for the Defendant

HEARD: May 28, 29, 30, 31, June 21, 22 and December 13, 14, 17, 2012

BEFORE: Whitten J.

[1] Michelle Blake, born June 1, 1969, was injured in a motor vehicle accident on November 18, 2002 (the “accident”). At the time of the accident, Ms. Blake was insured under a motor vehicle liability policy (the “Policy”) with the Dominion of Canada, General Insurance Company (“Dominion”). The policy provided for statutory accident benefits set out in Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996. O.Reg. 462/96, s.2 (the “Schedule”).

[2] Ms. Blake seeks to recover caregiver benefits, provided for under Section 13 of the Schedule, for expenses incurred between January 2005 and July 2006 for the care of her three children. Ms. Blake also claims entitlement to non-earner benefits, provided for by Section 12 of the Schedule. Various forms of damages are also claimed by the Plaintiff, except for the claims for punitive and exemplary damages, which were abandoned at trial.

A. ISSUES

[3] (1) Is the Plaintiff’s claim for caregiver benefits statute barred by the two year limitation period set out in Section 281 of the Insurance Act, R.S.O. 1990, c. I-8 (the “Act”), and 51(1) of the Schedule?

(2) If the Plaintiff’s claim is not statute barred, does the Plaintiff qualify for caregiver benefits, as provided for under section 13 of the Schedule, for the period between January 2005 and July 2006?

(3) Does the Plaintiff meet the requisite criteria for non-earner benefits, as set out under Section 12(1) of the Schedule? If so, at which point does this entitlement commence?

(4) Does the evidence support the Plaintiff’s claim for: (i) Aggravated damages, (ii) damages for bad faith breach of contract, and/or (iii) damages for the defendant’s wrongful infliction of mental distress?

B. APPLICABLE LAW

Limitation Period

[4] The Act provides for mandatory mediation, after which a claimant may bring a court action or refer issues in dispute to an arbitrator, subject to a two year limitation period. In this regard, the Act provides:

Litigation or Arbitration

281. (1) Subject to subsection (2),

(a) the insured person may bring a proceeding in a court of competent jurisdiction;

(b) the insured person may refer the issues in dispute to an arbitrator under section 282; or

(c) the insurer and the insured person may agree to submit any issue in dispute to any person for arbitration in accordance with the Arbitration Act, 1991.

Limitation

(2) No person may bring a proceeding in any court, refer the issues in dispute to an arbitrator under section 282, or agree to submit an issue for arbitration in accordance with the Arbitration Act, 1991 unless mediation was sought, mediation failed and, if the issues in dispute were referred for an evaluation under section 280.1, the report of the person who performed the evaluation has been given to the parties

Limitation Period

281.1 (1) A mediation proceeding or evaluation under section 280 or 280.1 of a court proceeding or arbitration under section 281 shall be commenced within two years after the insurer’s refusal to pay the benefit claimed.

[5] The above provisions set out under the Act are echoed under section 51(1) of the Schedule:

Time Limit for Proceedings

51(1) A mediation proceeding or evaluation under section 280 or 280.1 of the Insurance Act or a court proceeding or arbitration under clause 281 (1) (a) or (b) of the Act in respect of a benefit under this Regulation, shall be commenced within two years after the insurer’s refusal to pay the amount claimed.

Caregiver Benefits

[6] The caregiver benefit provides reimbursement to insured persons “for reasonable and necessary expenses incurred as a result of the accident in caring for a person in need of care” (Schedule, s. 13(2)). The criteria for entitlement to and quantum of the caregiver benefit are stipulated under Section 13 of the Schedule:

13. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a caregiver benefit if the insured person meets all of the following qualifications:

14. At the time of the accident,

i. the insured person was residing with a person in need of care, and

ii. the insured person was the primary caregiver for the person in need of care and did not receive any remuneration for engaging in caregiving activities.

2. As a result of and within 104 weeks after the accident, the insured person suffers a substantial inability to engage in the caregiving activities in which he or she engaged at the time of the accident.

[7] Section 13(3) of the Schedule provides that the amount of the caregiver benefit shall not exceed $250.00 per week for the first person in need of care, plus $50 per week for each additional person in need of care.

[8] A definition for a person in need of care can be found under Section 2(1) of the Schedule. It means, in respect of an insured person, another person who is less than 16 years of age or who requires care because of physical or mental incapacity.

[9] The test for entitlement with respect to the caregiver benefit becomes more stringent after 104 weeks of accident-related disability. In this regard, Section 13(4) of the Schedule provides the following:

The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life.

[10] In accordance with Section 2(4) of the Schedule, the test for entitlement post-104 weeks is met “if, and only if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

Non-Earner Benefits

[11] The qualification criteria for the non-earner benefit are stipulated under Section 12(1) of the Schedule:

12. (1) The insurer shall pay an insured person who sustains an impairment as a result of an accident a non-earner benefit if the insured person meets any of the following qualifications:

13. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and does not qualify for an income replacement benefit.

14. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, received a caregiver benefit as a result of the accident and there is no longer a person in need of care.

15. The insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident and,

i. was enrolled on a full-time basis in elementary, secondary or post-secondary education at the time of the accident, or

ii. completed his or her education less than one year before the accident and was not employed, after completing his or her education and before the accident, in an employment that reflected his or her education and training.

[12] Section 12 (1)2 describes the point of transition whereby an insured person, formerly in receipt of caregiver benefits, qualifies for non-earner benefits. This transition point occurs where the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident, and there is no longer a person in need of care.

C. FACTS

Jeffrey Blake

[13] He is Ms. Blake’s youngest son and was seven years old at the time of the accident. He described his mother as being very positive and fun before the accident. She was active and engaged in sports such as basketball and baseball. Jeffrey testified that his mother worked at a special needs home at the time of the accident. After the accident, his mother did not engage in sports, and was not as positive in her outlook. Jeffrey knew that as of the time of the accident, his mother suffered from gastro paresis which meant that she could not digest certain foods. She also required surgical intervention because of her condition. Jeffrey did not know the duration of his mother’s employment before the accident.

Matthew Blake

[14] He was nine years old at the time of the accident. He described how before the accident his mother was in “good shape”. She was involved in the sports of himself and his sister. She would work with him to develop the skill-set he needed for his sports, for example soccer, baseball, and karate. After the accident, his mother was more emotional and less happy than she was before the accident. She now cries often and is anxious about money. As well, she is more easily annoyed and frustrated and having to relearn simple tasks. She lost her job. They could not afford their home. They lived with their grandparents for a time. (He could not remember if they lived with his grandparents before the accident.) His mother was no longer involved in sports, either his or her own. Matthew had to learn to prepare his own meals. He described his mother as having decreased energy, requiring assistance to dress, and suffering from dizzy spells.

[15] Matthew could not answer how his mother received Ontario Disability Support Program (ODSP) payments before the accident if she was working. His recollection as to her working and how much she earned was uncertain.

Michelle Blake

[16] On November 18, 2002, Ms. Blake was driving to pick up her children from school when she was rear-ended by another vehicle. Ms. Blake’s head slammed into the headrest on impact and, as the car lurched forward, her head hit the side window. Immediately following the accident, she accompanied the driver of the other vehicle to the police station to make a report. At the police station, she felt nausea and dizziness. After making the report, the other driver took her to the Hamilton General Hospital so she could be evaluated. At the hospital, she described herself as groggy, and dizzy. She was assessed, placed in a neck brace, and sent home later that day with a recommendation to follow up with her family physician. Ms. Blake saw her family physician the next day. Her physician referred her for physiotherapy.

[17] At the trial, Ms. Blake described herself prior to the accident as being very active, playing several sports with her three children, and regularly working out at her friend’s home gym. She played baseball in a league, ran a few times a week and practiced yoga. She took her children to the beach many times a summer and had a very active social life.

[18] After the accident, Ms. Blake found she was unable to be as active as before. While she tried to follow yoga exercises for people recovering from accidents, she stopped when it aggravated her right foot and knee. She tried to run several times after the accident but it was too painful to continue. She reported that migraines made all activities less enjoyable, even taking her children to visit her parents was difficult. She recalled that she and the children failed to make and decorate a tree several Christmases in a row, and she missed family Christmas dinner more than once due to pain.

[19] Starting in 1999, Ms. Blake received ODSP payments, as she suffered from gastroparesis, a chronic stomach ailment that was diagnosed well before the car accident. Gastroparesis affects the ability of the stomach to empty its contents, and consequently effects vital nutrition. Gastroparesis can also lead to fatigue.

[20] Exhibit 4, dated September 4th, 2001, is one of the clinical notes of her then treating physician. The physician noted, “wants disability form filled in…back pain given stomach swollen”. Due to gastroparesis she was hospitalized, suffered headaches, dizziness, and back pain. However, she insisted that in the two years prior to the accident, she had learned to manage her gastric condition by maintaining a careful diet.

[21] Ms. Blake was also diagnosed with fibromyalgia, irritable bowel syndrome and arthritis, although she disputes the accuracy of these diagnoses. Ms. Blake had also suffered whiplash as a consequence of an accident before the subject accident. She complained to her family doctor, Dr. Wolos, about back pain, and testified that she attended physiotherapy for a year or two. Ms. Blake related her prior back pain to her gastroparesis.

[22] Also, Ms. Blake testified that in March, 1989, during a college placement, a piece of wood fell on her head (Exhibit 31). Ms. Blake reported that there were no lasting effects from this incident.

[23] Ms. Blake testified that after learning to manage her gastroparesis, she began to volunteer two or three times a week at her children’s school with the special needs students. As well, once her youngest child was in school for the full day, she began working as a relief worker, filling in shifts at “Choices”, a home for adults with severe mental and physical limitations. She was responsible for assisting residents with hygiene, cooking, cleaning, laundry and other tasks. Prior to the accident, she had the intention of transitioning to full-time work and ceasing with ODSP. According to Ms. Blake, her ODSP payments would be reduced the more she worked.

[24] Though she did return to work shortly after the accident, she soon stopped. She explained that she needed to remember residents’ medications, and whether they had taken the medications. Ms. Blake testified that due to her brain injury, she was no longer able to perform this role. As well, she was incapable of assisting with the many tasks that required lifting and physical strength. She has not worked since leaving “Choices”, and continues to receive ODSP support.

[25] At trial, Ms. Blake explained that she felt betrayed by Dominion, as she obtained insurance for peace of mind, but felt that instead, she had to fight and dig in her heels for every single benefit. She felt that none of her claims were approved without a fight.

D. MEDICAL EVIDENCE AT TRIAL

[26] The following medical reports and testimony are organized chronologically to demonstrate the evolution of treatment and progress of Ms. Blake.

[27] As a result of the accident and this litigation, Ms. Blake was seen by numerous medical professionals, including psychologists, neurologists, and physiatrist. As mentioned above, previously, Ms. Blake had several medical problems, including gastroparesis which led to an appendectomy and, for a time, a J-tube for feeding. She also was in a car accident in 1997, suffering whiplash. Prior to the 2002 accident, she was diagnosed with irritable bowel syndrome, fibromyalgia and arthritis; however, as mentioned, Ms. Blake claims these diagnoses are incorrect. Ms. Blake testified that since managing her gastro paresis, the symptoms relating to these diagnoses have resolved. Four years after the subject car accident, Ms. Blake fell down stairs, hitting her head on a concrete floor, and suffered a concussion (Exhibit 34).

Dr. Alan J. McComas

[28] Dr. Alan McComas is a neurologist/neurophysiologist. Ms. Blake was referred to Dr. McComas by her counsel. Dr. McComas conducted two EMG’s, one on January 30th, 2003, of the right arm, and one December 13th, 2011, of both the right arm and right leg. The reports with respect with those EMG’s became Exhibits 8 and 9 respectively.

[29] In his report of January 30th, 2003 (Exhibit 8), Dr. McComas concluded that: “1) On the right side of her neck, Ms. Blake has EMG evidence of moderately severe C8 and T1 nerve root lesions. Since the dermatomal sensory response is of good amplitude, the root lesions must be situated pregangliotically. As such, they would be consistent with the effects of stretch injury. There may be mild involvement of the C6 root as well. 2) Peripheral nerve function was normal in the right arm.” These results were the same in the testing of December, 2011. Dr. McComas noted that since 2003, there had not been any significant progression (Exhibit 9).

[30] In cross-examination, Dr. McComas agreed that generally an EMG can detect abnormalities, but cannot determine the cause of such abnormalities. The doctor would not be able to rule out the possibility that such abnormalities were the result of degenerative changes.

[31] In response to a question from the court, the Doctor explained that with respect to the spinal cord, the nerve roots at the cord have a swelling, a ganglion which exists between the various vertebrae. Nerve fibres come through these ganglions. The nerve cells are located in the ganglion and these cells nourish the nerve fibres. Any injury which effects performance can be within the spine itself or beyond. The most vulnerable part of these nerve fibres is at the point where the nerve fibres enter into the spinal cord. A preganglionic lesion is, as the prefix “pre” suggests, before the ganglion. If the lesion is there, testing on the hands will not show damage to the nerve fibres coming from the hand, as the nerve cells in the ganglion are still able to nourish the stretch of nerve fibres from the spinal cord down the arm to the hand.

[32] The other type of nerve fibres are the motor nerve fibres, which originate in the spinal cord, and continue through the nerve branches. The type of EMG testing conducted by Dr. McComas can determine which set of nerve fibres are damaged. If the Doctor finds nerve damage in the motor nerve fibres, but not the nerve cell fibres, then he knows the damage is between the ganglion and the spinal cord.

[33] What Dr. McComas found in his initial testing was that Ms. Blake had experienced damage that was consistent with a typical whiplash (i.e. extension and flexion) injury. However, as he conceded in cross-examination, there could be other causes. For that matter he cannot say when and how the injury occurred. The best he can say is that the injury existed as of the testing in 2003 (i.e. that it had occurred prior to the testing). Dr. McComas was not aware of any previous EMG testing. There had been two prior motor vehicle accidents according to the medical history provided to Dr. McComas, one in 1996 (in all probability the accident of 1997), and one in 1988.

Dr. Rose Giammarco

[34] Dr. Giammarco is a neurologist. She is also the founder of a headache clinic at St. Joseph’s Hospital in Hamilton. Dr. Giammarco wrote five reports with respect to Ms. Blake (Exhibits 15-19).

[35] In report dated March 20th, 2003, Dr. Giammarco included Ms. Blake’s “Past Medical History” (Exhibit 15). Ms. Blake told the doctor of past accidents that included a whiplash injury in 1987, where she had physiotherapy for one year. Ms. Blake described this as a substantial injury, where her car was written off. As documented by Dr. Giammarco, Ms. Blake had some problems with her neck following this accident, but after physiotherapy for a year, her symptoms completely subsided and she resumed a normal function. Ms. Blake told Dr. Giammarco that she suffered from occasional headaches throughout her life prior to this motor vehicle accident, but with rest and cold packs, she found that the headaches were reasonably well controlled. Ms. Blake said that she had seen her family physician for treatment of the headaches in the past.

[36] In her testimony, Dr. Giammarco confirmed that she did not have access to any medical reports from before November 18th, 2002. Dr. Giammarco’s reference to Ms. Blake’s CT scan pre accident being normal was based on what Ms. Blake had told her.

[37] Ms. Blake reported that she had returned to work after the accident. Her duties were reduced because of her pain complaints. She had difficulty using her right arm in the satisfaction of her duties and she had problems with headaches.

[38] Since the accident, Ms. Blake reported she experienced:

1. headaches and neck pain

2. pain and numbness in the right arm

3. hearing loss

4. blurred vision, and

5. memory and word finding difficulty

[39] Those complaints were expanded upon in the report. Dr. Giammarco agreed that the blurred vision was not of such a magnitude that it would be reported to the Ministry of Transportation.

[40] Dr. Giammarco did have access to the report of Dr. McComas dated January 30th, 2003, and an EMG report suggesting severe C8-T1 root lesions on the right with possible C6 root injury. The latter suggestion was repeated in point 2 of Dr. Giammarco’s diagnosis along with 1) cervicogenic headache and post traumatic migraine, and 3) possible post traumatic syndrome with memory loss. This third diagnosis, the doctor agrees was based entirely on the subjective complaints of Ms. Blake, and furthermore this doctor would defer to the opinion of a psychologist in this regard.

[41] In her recommendations, Dr. Giammarco considered as one approach to managing the headaches, aside from alternative medications, that Ms. Blake continue her physiotherapy treatments. Dr. Giammarco testified that Ms. Blake was getting improvement and relief from physiotherapy, specifically with respect to her neck pain and headaches. Dr. Giammarco also recommended further neuropsychological testing.

[42] Dr. Giammarco’s next report was dated June the 2nd, 2003 (Exhibit 19). The Doctor reported to family physician, Dr. Wolos, as well as counsel for Ms. Blake.

[43] According to the report, the MRI scan had revealed a small cervical syrinx extending from the C4-5 to C5-6 disc space. Dr. Giammarco explained to the court that there is a central canal of fluid within the spinal cord. This fluid can be within the entire length of the spinal cord. It has the potential, if it widens, to compress vital functions of the cord. Exhibit 20 is a sketch the Doctor drew to illustrate the location of the canal and its fluid. This phenomenon can be congenital.

[44] Dr. Giammarco, in responding to questions posed by counsel for Ms. Blake opined, “At this time, I feel that the syrinx is small enough that it is unlikely it is causing significant symptoms of the headache, neck pain or right arm tingling since there is no obvious expansion of the spinal cord at this time. There is no significant bulging of the discs, and there is only minimal narrowing of the neural foramina….” Dr. Giammarco proceeded to conclude that the syrinx was not contributing to Ms. Blake’s symptoms, and it was unlikely the syrinx was caused by the accident in November, 2002.

[45] Dr. Giammarco again reported to Ms. Blake’s family physician on April 22nd, 2004 (Exhibit 16). (By this time, Ms. Blake had also been seen by Dr. Lo and Dr. Kean, whose evidence has also been summarized.) In April, 2004, Ms. Blake was continuing to report headaches, neck pain and jaw pain, as she did the year previously. It was suggested for the first time by Dr. Giammarco that Botox injections be tried.

[46] Dr. Giammarco explained in her testimony in-chief that there are limitations to the use of such injections. The administration of injections must be at minimum 3 months apart. There is no cumulative effect. There is no limit to the number of injections, and there are no long term problems. There may be some local wasting. The objective is to hit the nerve with the injection which is not something that the administrator can actually tell. The downside is that there are upwards to 30 injections per sitting. Sometimes there’s bruising and swelling. The major problem with Botox injections is the cost.

[47] Dr. Giammarco again reported to Dr. Wolos, Ms. Blake’s family physician, on August 31st, 2006 (Exhibit 17). By this time, Ms. Blake had received Botox on three occasions, which provided headache relief. Ms. Blake could not tolerate the neck injections. Dr. Giammarco, inclusive of these sessions, was seeing Ms. Blake for her headaches. Ms. Blake also reported arm pain which according to her was worse than three years previously. Ms. Blake reported to Dr. Giammarco that she had ongoing cognitive problems. It was necessary, according to Dr. Giammarco, to have a rehabilitation and cognitive assessment. For these reasons, Dr. Giammarco referred Ms. Blake to Dr. Parkinson. The treatment and assessment of Ms. Blake by Dr. Parkinson began the next month.

[48] Dr. Giammarco did not see or treat Ms. Blake between 2007 and January 25th, 2011. Dr. Giammarco reported to Dr. Dhalia on January 25th, 2011 (Exhibit 18). Dr. Giammarco spoke of her referral to Dr. Parkinson. The day of her report, Ms. Blake was complaining about her cognitive issues and a twitch in her left eye. There is no specific reference to the motor vehicle accident of November 18th, 2002, aside from Dr. Giammarco’s belief that the complaint of cognitive issues had been outstanding since her “injury”.

Dr. Raymond Lo

[49] Dr. Lo is a general neurologist. He saw Ms. Blake on one occasion in November, 2003 as a consequence of a referral from her family physician, Dr. Wolos. Dr. Wolos was concerned that Ms. Blake’s complaints were pathological, specifically functional (i.e. related to fibromyalgia or stress), or organic (something of a pathological or neurologic nature). Dr. Lo’s report became Exhibit 14.

[50] Dr. Lo testified that his practice is to rely principally on his physical examination of the patient, and the history provided. Additionally, diagnostic tests are tools which help the physician to localize the symptoms, and are useful. Dr. Lo, in re-examination, testified that he is dependent on the history provided by the patient to determine the cause of the problems espoused.

[51] On this occasion during the history-taking, in response to specific questions posed by Dr. Lo, Ms. Blake denied any prior head or neck injury on two occasions. Additionally, she denied any history of headaches. Ms. Blake did report that she had been previously diagnosed with fibromyalgia. Dr. Lo did not consider himself qualified to comment on that diagnosis, as he is not a rheumatologist. He did describe it as a controversial diagnosis.

[52] Dr. Lo agreed that an EMG can give a neurological finding, which in this case revealed a moderately severe C8 and T1 root lesion and mild C6 root irritation. Dr. Lo, however, could not determine what caused what was observed. The same could be said of an MRI of the lumbar spine, which again in this case showed degenerative disc disease at L4-5 and L5-S1 levels. A CT scan of the head was normal.

[53] Dr. Lo’s first impression was that Ms. Blake had experienced a soft tissue injury related to the motor vehicle accident. He concluded that his neurological findings supported that impression. He conceded in cross-examination that those findings were not necessarily tied to the subject accident. Obviously that observation would be especially so in light of the fact that there were two prior accidents that had not been disclosed by Ms. Blake.

Dr. Walter Kean

[54] Exhibit 5 is a report dated January 26th, 2004, from Dr. Walter Kean, a rheumatologist, to Dr. Wolos, the family physician. Under “Past Health”, Dr. Kean noted “arthritis, back pain, asthma, acid reflex, gastro paresis, injury to the neck-MVA 2002, fibromyalgia…”

[55] Physical examination revealed tenderness to light palpitation of the right hand and wrist, but no synovitis (i.e. inflammation). There was a good range of motion of the left fingers, left wrist, both elbows and left shoulder. Ms. Blake reported tenderness in right fingers, wrist, shoulder, and in the lower lumbosacral spine and right sciatic notch area.

[56] Dr. Kean concluded that there was clinical evidence of mechanical neck pain, right arm referred pain, mechanical low back pain, right leg reference pain, and right rotator cuff pain. He recommended the commencement of a structured rehab program of light weight training and aerobics (something that was ultimately achieved through Dr. Parkinson), and the possibility of injection at the site at the pain management clinic. The latter decision Dr. Kean left to Dr. Giammarco.

Dr. William Parkinson

[57] Dr. William Parkinson, a rehabilitation psychologist, provided four expert reports (Exhibits 10, 11, 12, 13). Dr. Parkinson is a specialist in exercise psychology, which relies on kinesiology and exercise to improve mental health. He is cognizant of the symptomatology of post traumatic stress syndrome, depression and other cognitive problems. He assessed and treated Ms. Blake’s psychological health after the accident. It should be noted; however, that he did not see Ms. Blake until September, 2006. Therefore, he would not have any firsthand observations or comments with respect to her first two years post-accident. In fact, Mr. Parkinson saw Ms. Blake for the first time almost four years later.

[58] Exhibit 10 is Dr. Parkinson’s report of October 26th, 2006. He noted under “Previous Treatment”, that Ms. Blake had attended Reinhold Physiotherapy for three or four months. She had received acupuncture and massage from Dr. Li. Ms. Blake had tried Botox injections for her head, neck and shoulder. The injections to the head had provided some headache relief. Dr. Sullivan had carried out neuropsychological testing.

[59] Under the heading “Medical Records”, Dr. Parkinson noted from Dr. Giammarco’s report that Ms. Blake had a “neck injury following substantial forces (car written off) in 1987”, and experienced some headache activity after that. This reference is likely with regards to the first of two prior motor vehicle accidents that Dr. McComas had also reported.

[60] Dr. Parkinson may have seen some of the pre-accident (i.e. November 18th, 2002) medical reports but he could not say for sure. He did, however, review the reports of Dr. Lo, Dr. Meloff, Dr. Kumbhare, Dr. Giammarco and Dr. Dobranowski. The latter conducted a lumbar spine MRI which revealed “no focal or diffuse brain abnormalities are identified”. A CT scan revealed no evidence of closed head injury.

[61] Dr. John Sullivan, the neuropsychologist, tested Ms. Blake and concluded that “the pattern of weaknesses on testing fit better with the effects of pain on her cognitive functioning than it did with the possibility of brain injury”. Dr. Parkinson explained that cognitive function relates to intellectual functioning, special perception, memory, and hand-eye coordination.

[62] Notwithstanding these findings, Dr. Parkinson noted at page 6 of his report that Ms. Blake was “not convinced that her cognitive symptoms are unrelated to brain injury”. In other words, despite receiving medical opinions to the contrary, Ms. Blake believed she had a brain injury.

[63] Dr. Parkinson concluded that Ms. Blake presented with “a pain disorder associated with medical and psychological factors”. There was no evidence of depression, anxiety disorder or post traumatic stress disorder. At most, she had suffered from mild depression. Consequently. Dr. Parkinson recommended cognitive therapy, and forwarded a treatment plan (OCF-18) to that effect.

[64] Dr. Parkinson’s conclusions in his first report (Exhibit 10) prevail throughout his reports.

[65] The report of December 12th, 2006 (Exhibit 11), was provided with a view to extend the treatment into its second phase, the goal of which was to try and help Ms. Blake to change her daily habits in her own environment.

[66] In response to questions from the court, Dr. Parkinson agreed that at that time, Ms. Blake was not coping well because 1) she had poor exercise habits; namely, she should be exercising more, and 2) her pattern of activity was too variable. With respect to the latter, she would have bad days with no activity, versus good days with activity. There was a need for consistency.

[67] On page 2 of his report, Dr. Parkinson noted that Ms. Blake demonstrated a low confidence level, and extreme guarding. For example, Ms. Blake’s hesitancy would inhibit her from moving her arms through full range of motion. Consequently, Dr. Parkinson had his therapist observe Ms. Blake in the gym. The therapist observed that Ms. Blake hesitantly used her arms in a guarded or fearful response. This fearfulness contributed to her headaches, the very symptom that, according to Dr. Parkinson, the exercise would help. Furthermore, as Dr. Parkinson also noted on page 2 of his report, Ms. Blake’s self-limitation affected her confidence and ability.

[68] In response to a question by the court as to how a therapist addresses these issues, Dr. Parkinson explained that he and his colleagues would try to help the patient to understand, or educate the patient as to the difference between hurt and harm. The patient has to learn or convince themselves that there will be no harm. Therefore, the goal was to have Ms. Blake as active as possible.

[69] Dr. Parkinson cannot say for sure if Ms. Blake’s guardedness or self-limitation was a phenomenon related to the accident of 2002.

[70] In same report, Dr. Parkinson noted on page 3 that the leg exercises, weight usage, and repetitions of Ms. Blake were consistent with her age and gender. Ms. Blake exhibited no fearfulness or signs of conditional avoidance.

[71] However, Ms. Blake could have made better use of aerobic exercise. Dr. Parkinson believed that aerobic exercise would provide promise for developing better control over her headaches. Dr. Parkinson observed that “she shows no ill effects during or after her gym sessions”.

[72] As it appeared that Ms. Blake was now rehabilitating her neck and shoulder, and she was apparently more productive on her bad days, Dr. Parkinson submitted a further treatment plan.

[73] The report of January 18th, 2007 (Exhibit 12), was completed at the end of the second phase of the treatment.

[74] Dr. Parkinson noted at page 2 “good attendance and participation”. Ms. Blake had “never shown serious low general activity”. Her pedometer, which counts the number of steps taken per day, demonstrated a result that was better than the average for women of her age. This level was inconsistent with a pain disorder.

[75] Dr. Parkinson explained that a pain disorder can be based on a medical or a psychological component, or a combination of the two. He believed that in Ms. Blake’s case, it was a combination of the two. His approach was to look for coping behaviour. The most recognized of which is activity regulation. The pedometer output indicated that Ms. Blake was doing well. He wrote of “a substantial improvement”. She was coping better.

[76] On page 3 of his report, Dr. Parkinson noted that her behaviour in the gym was less limited. However, she was not keeping up with self-exercise, which is “standard post training advice”. After encouragement by both himself and Dr. Giammarco, Ms. Blake started working with an elliptical machine, which is a challenging piece of exercise equipment. Dr. Parkinson reported that Ms. Blake was able to make “some increases on weight levels and repetitions on her abdominal, lumbar spine, and upper leg exercises that exceed our criteria for women”. It should be noted that the criteria referred to were with respect to women with pain disorders.

[77] Dr. Parkinson reported that Ms. Blake avoided less. “The biggest improvement she demonstrates is the reduction in immediate and delayed onset soreness with shoulder and arm exercises.”

[78] Dr. Parkinson’s observing therapist reported to him that “the left and right shoulder ranges are not restricted”.

[79] In summary, Dr. Parkinson opined that Ms. Blake was “progressing nicely… she was reconditioning… her behaviour reflects improved coping, and she is moving away from a pain disorder”. Not surprisingly, Dr. Parkinson supported Ms. Blake in her request for another phase of treatment.

[80] Dr. Parkinson’s report of January 25th, 2007 (Exhibit 113), notes that Ms. Blake had not completely abandoned the belief of having a brain injury. Dr. Parkinson had Ms. Blake perform the Micro Cog Assessment Battery. He explained that this is a test of a variety of cognitive functions, for example memory and reaction time.

[81] The test results and overall observations did not demonstrate “a pattern of findings that is suggestive of a closed head injury”. In fact, out of 35 subset discrepancy indicators linked to brain injury, there was no significant discrepancy on 33. Dr. Parkinson stated, “In short, while her overall cognitive performance fell in a low average range, this screening assessment revealed no signs suggestive of acquired deficits.”

[82] After an excess of four months of treatment, Dr. Parkinson was disinclined to recommend further neuropsychological testing.

Dr. Michel Rathbone

[83] Dr. Rathbone is a neurologist with an extensive curriculum vitae (Exhibit 27). He prepared a medical legal evaluation dated November 20th, 2011 (Exhibit 28), at the request of counsel for the Plaintiff. Counsel sought to have the evaluation of Dr. Rathbone admitted at trial, in addition to the testimony of Dr. Rathbone. A Form 53, Acknowledgement of Experts Duty, was filed (Exhibit 29).

Preliminary Objection to Dr. Rathbone’s Report

[84] Counsel for Dominion objected to the admissibility of Exhibit 28 as not having satisfied the requirements of Rule 53.03(2.1) of the Rules of Civil Procedure. O.Reg. 575/07, s. 6(1) (the “Rules”). It was noted that as is required pursuant to Rule 53.03 (2.1)(5), there was no range of opinion given, no summary of the range and the reasons for the expert’s opinion within that range.

[85] Pursuant to sub-Rule 53.03(2.16)(i), a description of the factual assumptions on which the opinion was based is to be provided. The use of the word “factual” presupposes that there is a basis in fact. As we are dealing with medical opinion, that would presuppose findings, evaluations and diagnoses obtained by persons appropriately trained. The instructions prepared by counsel (Exhibit 30) to Dr. Rathbone state, “The plaintiff had the following subjective complaints at the time of the accident.” Thirty items are listed as “physical”. It would have been far better to have the presenting symptoms identified by physicians at or about the time of the accident, instead of this catch-all list without verification.

[86] Under various headings: “Emotional/Psychological”, “Recreational/Lifestyle/Activities of Daily Living”, “Financial Economic Loss”, and “Social/Family Life”, another 25 items are enumerated ranging from anger and guilt to an inability to contact ex-husband regarding owed child support.

[87] In his testimony, Dr. Rathbone acknowledged that he reviewed this list with Ms. Blake. All 55 items are replicated at the outset of his report. The only item not replicated is under the heading “Bad Faith”, which inferentially pointed to Dominion as not paying certain expenses, and causing the Plaintiff to wait for reimbursements.

[88] At page 6 of his report, Dr. Rathbone states “that he used the list as a reference only”, and did not necessarily rely on it as complete or current. In his report, Dr. Rathbone provides that he added the list as a point of reference only, although he presumed it to be a reasonable and accurate list of problems provided by the Plaintiff to her lawyer during the course of preparing for trial.

[89] Although Dr. Rathbone describes a series of medical records under “Review of Medical Records”, one of which was his own from April 13th, 1989, the reader has virtually no idea how these records impacted upon Dr. Rathbone, aside from a fleeting reference to an EMG conducted by Dr. McComas in 2003. Dr. McComas, as noted above, testified that there could be other causes for the typical whiplash injury. Additionally, Dr. McComas referred to prior accidents in the history obtained. Dr. McComas was candid enough to state that his findings showed an injury at the time of the testing, but not the cause.

[90] Dr. Rathbone’s report provides a terse description of past medical history. In this regard he states, “Prior to the accident, Ms. Blake suffered from gastroparesis. However, she was working towards full-time reintegration into the workplace as she had already been working part-time at 20 hours per week as a personal support worker”. This description is coupled with a total absence of references to the prior accidents, fibromyalgia, and headaches as referred to by Dr. McComas, Dr. Giammarco and Dr. Lo. This suggests that Dr. Rathbone did not consider the past medical history in depth, and took the symptomatology provided by the law firm as his starting point of reference.

[91] The instructions prepared by the office of counsel for the Plaintiff also included, under the heading “Previous Medical Diagnosis”, a list of 49 supposed diagnoses. These “diagnoses” present as “cherry-picked” statements from various reports. Some of the “diagnoses”, for example, 1) Possible post traumatic syndrome with memory loss, and 5) Cervicogenic headache and post traumatic migraine. These statements were those of Dr. Giammarco (neurologist),) and come from the same report (Exhibit 15). However, the impression from the list would be that they originate from different reports. With respect to point 5, the author would not know that Dr. Giammarco conceded that this observation was based solely on the subjective complaints of Ms. Blake, and that a psychologist would be better qualified to form such an opinion.

[92] Listed items 13, 15 and 22 make reference to “small cervical syrinx extending from C4-C5 to C5-6”. This time, there is no reference as to the source. Nor is there any reference to the fact that Dr. Giammarco, in her report dated June 2nd, 2003, to counsel for the Plaintiff (same firm as the counsel providing instructions to Dr. Rathbone), concluded that it was unlikely that the syrinx was caused by the accident of November, 2002, and did not contribute to Ms. Blake’s symptoms (Exhibit 19).

[93] Dr. Rathbone, in his report nine years after the accident, concluded under point 4 that post-traumatic cervical syrinx was “a condition arising out of the accident”. A conclusion obviously at odds with Dr. Giammarco’s report to Ms. Blake’s counsel. In the list of the medical reports in Dr. Rathbone’s report, there is only one from Dr. Giammarco dated June 2nd, 2003. Did he receive the letter that date to counsel? If he did, there is no reference to a range of opinion in his report.

[94] With respect to point 16, “soft tissue injury to the neck related to the motor vehicle accident (Dr. R. Lo Neurology 2003)”, the author of the instructions would not know that this was Dr. Lo’s first impression nor would it be known that Dr. Lo conceded that this was not necessarily connected to the accident. Obviously the above would cause a jurist to look at the qualifications of the author of the “instructions”. Eric Gruszewski of the case management unit of the law firm of counsel for the Plaintiff is the author of the instructions. There is absolutely no reference to this person’s qualifications or expertise that would enable him/her to categorically pontificate on the “subjective complaints at the time of the accident” or “previous medical diagnoses”. This absence of information would cause a jurist to question the quality of the factual foundation upon which the opinion of Dr. Rathbone is based.

[95] Counsel for Dominion also refers to the fact that there is no evidence of research pursuant to Rule 53.03(6)(ii), specifically “a description of any research conducted by the expert that led him or her to form the opinion”. There is reference in the report to the general research or literature that supports general conclusions. For example, under the heading “mild traumatic brain injury with permanent cognitive and psychological impairments”, Dr. Rathbone states “(I)nitially over the first months after the accident she was not readily identifying cognitive impairments. However, this is typical in some patients with traumatic brain injuries who are unable to identify their symptoms because of attention difficulties.” This is followed by a reference to a 2009 study in the Journal of Neuropsychological Rehabilitation (Jan. 19(1):110-37).

[96] So the question becomes, is a reference by an expert to a particular study that supports his or her statement of a particular phenomenon, “research conducted by the expert that led him to that particular opinion”? Surely the research contemplated must be more specific than the research an expert conducts to maintain currency in his or her field. The rule contemplates “research” vis-à-vis the particular patient, in this case Ms. Blake. Without a detailed analysis of the pertinent medical reports of Ms. Blake, one wonders what in-depth research took place.

[97] The final complaint with respect to the report of Dr. Rathbone was that he ventured opinions in areas he was not qualified to opine in. As Form 53 indicates, the expert acknowledges his duty to “provide opinion evidence that is related only to matters within my area of expertise”. In cross-examination on his qualifications, Dr. Rathbone acknowledged that although as a medical student he studied psychiatry, he would defer to a psychiatrist in matters of treatment therapy. Dr. Rathbone also acknowledged that he is not licensed in orthopedics or rheumatology. At the end of the day, his principal area of expertise is that of neurology.

[98] This court is mindful of Rule 2.01(1) of the Rules which allows a degree of latitude insofar as compliance, to “secure the just determination of the real matters in dispute”. The court allowed the report of Dr. Rathbone to be filed as an exhibit. However, the weight to be attached to this report, given the lack of compliance with Rule 53.03 is reduced. Unfortunately Dr. Rathbone proceeded into his testimony with the limitations of his report. He appeared to assume throughout the “Prognosis and Discussion” that the subjective complaints of Ms. Blake, coupled with what his instructions told him, were all attributable to the accident in November, 2002. There was no consideration of these symptoms as being pre-existing phenomenon. Dr. Rathbone was definitely handicapped by his instructions.

Testimony of Dr. Rathbone

[99] Dr. Rathbone acknowledged transplanting the list of subjective complaints from the instructing letter to his report. Although he did ask the Plaintiff, nine years after the subject accident, to describe current health concerns.

[100] Dr. Rathbone acknowledged that of the medical reports he received, 16 reports were before the motor vehicle accident. (Regrettably, he did not refer to these in his report.)

[101] Dr. Rathbone acknowledged that Ms. Blake may have had episodes of passing out prior to the accident. He agrees there was no such reference in his report. He’s not sure, but these episodes may be part of why he saw Ms. Blake in 1989.

[102] Continuing with the focus on the pre-accident medical history, the February 19th, 1997 report of Dr. Kromby, a neurologist, was put to Dr. Rathbone. As mentioned in the report, it relates to a neurological consult in February of 1997 about an incident in March of 1989, when a wooden board fell on Ms. Blake’s head. That event generated headaches and neck pain. Since that event, Ms. Blake complained to Dr. Kromby that “nothing has been right with her stomach”. Dr. Kromby sent Ms. Blake for a CT scan. He was left with the “very strong feeling…that we are not going to come up with any significant neurological cause for Michelle’s difficulties”.

[103] One of the McMaster Hospital reports reviewed by Dr. Rathbone was that of Dr. Gervais Tougas, a gastroenterologist, who prepared a report dated March 12th, 1998 (Exhibit 32). The exhibit was put to Dr. Rathbone. In this report, Ms. Blake was continuing to experience severe vomiting. There was no clear diagnosis as to the cause of the vomiting. Dr. Tougas suspected that the primary cause was “psychiatric or functional”. He wondered if there was an element of “attention seeking” present. Possibly it was all a "psychiatric problem”.

[104] Exhibit 33 was a reassessment of Ms. Blake for the purposes of the ODSP prepared by the family physician, Dr. Wolos, on September 10th, 2001. This was put to Dr. Rathbone in cross-examination, and he acknowledged having reviewed this form. Dr. Wolos had listed the principal conditions that prevailed, and the dates of the original diagnosis, namely:

1. gastroparesis, July, 1994

2. hypokalemia, February, 1994

3. hypertension, July, 1994

4. anemia, 1997

5. arthritis, 2001

[105] The first four items are gastro-related. With respect to this list, Dr. Rathbone acknowledged that when he sees a patient that is passing out, if they have one of these conditions, there is a relationship to the condition.

[106] Dr. Wolos described Ms. Blake in his reassessment as being “very weak and chronically fatigued”. He characterized the conditions he noted as “chronic”, and would “cause Ms. Blake further disabilities in later life”.

[107] Dr. Wolos’ reassessment had a psychological component entitled “An Intellectual and Emotional Wellness Scale”. Dr. Wolos ticked off “mild symptoms” with respect to consciousness (attentional focus, levels of unconsciousness), “emotion” (affect, mood, anxiety and other emotions, associated psychological disturbances, panic phobia), and “impulse control” (difficulty with behaviour control).

[108] Dr. Rathbone acknowledged that the Ontario government takes these assessments seriously.

[109] Dr. Rathbone recollected Ms. Blake telling him that she had not been injured in her prior motor vehicle accident (an observation at odds with the history given to Dr. Giammarco).

[110] Dr. Rathbone did not recollect Ms. Blake telling him she had lost consciousness in her fall of 2006. In Exhibit 34, the records of the Hamilton Health Sciences for July 21, 2006, Ms. Blake tells the nursing staff of a loss of consciousness. In the physician assessment on this occasion, Ms. Blake spoke of “being awakened on the floor”, and that she kept passing out. Dr. Rathbone opined that loss of consciousness would be considered significant, and that “it occurs occasionally with migraine headaches”. Dr. Rathbone testified that he knew Ms. Blake had these problems before due to her gastroparesis. He acknowledged reviewing these records, but there is no indication of this in his report.

[111] Dr. Rathbone agreed that he did not see the Plaintiff within 104 weeks of the accident. He also agreed that it was possible that a physician evaluating Ms. Blake within those first two years would be better equipped to assess and diagnose the conditions presented. Dr. Rathbone also acknowledged that if the family physician “knew” the patient well, they would have a good sense of the patient’s overall health.

[112] Dr. Rathbone reviewed the records of Dr. John Sullivan, a neuropsychologist. Dr. Sullivan also did some neurological testing of Ms. Blake in June 2004 (i.e. two years after the accident), as did Dr. Parkinson in 2006. Dr. Sullivan believed that Ms. Blake showed signs of a dramatic change in behavioural sequelae.

[113] Dr. Rathbone explained to the court that when a patient has a mild head injury, or particularly a series of head injuries, the patient could go downhill or develop an acute physical change in the brain that lasts for a short while, while emotional changes can get worse over time. This may be the primary explanation for Ms. Blake’s post-concussion condition. Of course, these latter observations by Dr. Rathbone presupposes that the operative concussion was from the accident of November 2002, not her previous motor accident, head injury in 1989, or her fall onto a concrete surface in 2006.

Dr. Rehan Dost

[114] Dr. Rehan Dost is a neurologist; his curriculum vitae became Exhibit 35. His Rule 52.03(1) certification became Exhibit 36. Similarly to Dr. Rathbone, Dr. Dost diagnoses and treats patients with a broad spectrum of neurological disorders.

[115] Dr. Dost explained that he would seek to determine causality of an impairment/disability from a medical point of view.

[116] Dr. Dost was retained by counsel for Dominion. His report was filed initially as a lettered Exhibit A to aid the court. Ultimately, as a result of the cross-examination, the report was made Exhibit 37. From glancing at the report, it would appear to comply entirely with Rule 53.03.

[117] Dr. Dost saw Ms. Blake March 20, 2012. In completing his assessment, Dr. Dost reviewed the medical documentation received, acquired a history from the Plaintiff by asking her questions, and had her complete a questionnaire. Dr. Dost conducted a physical examination of Ms. Blake. All of this enabled Dr. Dost to come up with an impression, a summary and conclusions.

[118] Ms. Blake’s description of the circumstances of the accident was consistent with what she had told other physicians.

[119] With respect to her previous medical history, Ms. Blake reported that she had been misdiagnosed with suffering from fibromyalgia. She suffered from gastroparesis, which she was able to control through her diet. Four years after the accident, she had fallen down some stairs, lost consciousness and experienced a concussion. From his own review of the medical records, Dr. Dost did note the diagnosis of fibromyalgia.

[120] Dr. Dost conducted a mini mental status exam, which is a cognitive screen of a variety of cerebral functions. This test revealed that there were some cognitive issues. The main problems were with respect to attentional issues that would affect orientation as well. Ms. Blake scored 26 out of 30.

[121] Dr. Dost, as part of his neurological examination, examined some of the cranial nerves. He explained what function is associated with a particular nerve. These nerves were normal, with the exception of globally decreased vibrations through the entire right side of the head. This could not be explained by a neurological process (i.e. there was no physiological explanation for this). It is often seen in the context of psychological disorders.

[122] Dr. Dost conducted a complete motor examination of the Plaintiff, which is essentially testing power in various muscle groups. This is to see if there is any muscle weakness. The power of initial contractions was normal, which meant that the nerve signals were getting to the muscle groups. There was no neurological problem.

[123] Dr. Dost did discover a “give-way weakness”, which is a voluntary issue. It could be related to pain or other factors (for example, lack of effort), but it is not physiological or neurological. This is a factor described by other evaluators, namely Dr. Kleinman, Dr. Garner, Dr. Soric, and Dr. Rathbone.

[124] A vascular examination of Ms. Blake revealed normal findings. Although vascular refers to the circulation of blood, Dr. Dost explained that certain neurological disorders affect the autonomic nervous system, which affects vascular control.

[125] A sensory examination involves testing the small nerves and larger nerves. Dr. Dost discovered a diffuse loss of sensation on one side of the body commensurate with the vibration loss on the side of the head. This could not be explained on a physiological basis. It was not consistent with an organic neurological disorder.

[126] Ms. Blake’s reflexes were tested and were found to be normal and symmetric.

[127] Dr. Dost tested various muscle groups which were also found to be normal.

[128] Equally so was the central nervous system.

[129] Tandem and Romberg tests yielded normal results. Dr. Dost disagreed with Dr. Rathbone’s finding of post-traumatic syrinx resulting from the accident. Dr. Dost concluded that the syrinx was not traumatic. A trauma induced syrinx would only occur with a spinal cord injury. There was no evidence of a spinal cord injury. This absence was confirmed by the MRI which showed no traumatic change. Other neurologists, namely Dr. Meloff, Dr. Lo, and Dr. Giammarco, also made the same finding as Dr. Dost. Having examined Dr. Rathbone’s opinion, Dr. Dost noted there was a conclusion, but there was no analysis or revelation of the logic by which that conclusion was reached.

[130] With respect to Dr. Rathbone’s finding of radiculopathy in the lumbar spine as a result of the accident, Dr. Dost explained that radiculopathy means a localization of nerve damage within the spinal cord at points where the nerves come out. The historical description of the symptoms in the medical records was not consistent with such a finding. Specifically the patterns of pain complaints, sensory loss complaints and weakness, did not conform to the particular root territories. The history and the physical exam did not reveal such damage, nor did the MRI or EMG - they were normal. Dr. Dost testified that the motor unit estimation test (MUNE) conducted by Dr. McComas is not widely accepted within the medical community for the diagnosis of radiculopathy. There is no such utilization referred to in peer reviewed journals. Finally, the error rate (i.e. false positive or negatives) of the test is not known. The gold standard, which Dr. Dost explained to be nerve conduction, EMG, history, and physical exam, did not point to such a diagnosis. Dr. Dost did not agree with Dr. McComas’ findings using motor unit estimation (MUNE). Again, other neurologists, namely Dr. Lo, Dr. Giammarco, and Dr. Meloff, did not make such a diagnosis.

[131] These comments by Dr. Dost would be equally applicable to the finding of Dr. Rathbone of cervical radiculopathy. Again, the historical evidence was not consistent with this diagnosis, nor was the physical exam conducted by Dr. Dost. The EMG conducted by Dr. McComas in the year following the accident was normal. Again, the MRI did not show any compressive lesions or pinched nerves. Dr. Dost believes that Dr. McComas was in error to say that this was a traction injury, as the history of the complaints did not support that. A traction injury would have resulted in the immediate onset of the symptoms. Again Dr. Dost reviewed the findings of other treating neurologists who supported his view. The two outliers, Dr. Kumbhare and Dr. Rathbone, both relied on the MUNE test which is not appropriate for such a diagnosis. Dr. Rathbone failed to specify which muscles in the right arm and leg demonstrated decreased strength. According to Dr. Dost, Dr. Rathbone appeared to jump to the conclusion that cervical spinal nerves C6, C7, and C8 were affected, which if that were the case, would result in no sensation in the entire arm except for a patch on the deltoid. There was no physiological explanation for this, Dr. Dost explained. Dr. Dost believed that Ms. Blake’s loss of sensation was psychological.

[132] Dr. Rathbone had also diagnosed mild traumatic brain injury with permanent cognitive and psychological impairments. Dr. Dost explained his opposite conclusion to the effect that Ms. Blake had not sustained a brain injury of any severity. In order to make such a finding, the assessor would have to demonstrate a loss of consciousness, amnesia, and disorientation (results considered in the Glasgow Coma Scale). Ms. Blake’s actions in the post trauma period were not consistent with someone who had had a concussion. There was no mention of traumatic brain injury in the treatment notes or OCF forms. Nor did the MRI show evidence of a mild traumatic injury. The neuropsychological testing and cognitive testing did not reveal a profile consistent with traumatic brain injury. Other neurologists, specifically Dr. Giammarco and Dr. Meloff, did not diagnose traumatic head injury. The latter did speak of a head injury, but that means an injury far less severe. Dr. Meloff did proceed to find that there was no neurological impairment or disability. Dr. Lo was not sure about such a possibility. Apparently, symptoms of cognitive problems after the fact cannot be used to diagnose traumatic brain injury. There has to be a demonstration of neurological dysfunction.

[133] Dr. Dost pointed out that Dr. Rathbone failed to extract from Ms. Blake’s accident-related history, anything that fit the criteria for traumatic brain injury.

[134] Dr. Dost did concur with Dr. Rathbone’s finding of post traumatic headaches. As to whether there was any impairment as a result, Dr. Dost expressed difficulty in answering the question because such complaints are subjective. The answer would depend upon the credibility of the individual. There was no neurological basis for the associated generalization of dizziness. This comment was based on the description of the dizziness, the physical exam findings, the negative MRI, and the opinion of all other assessors. Headaches in the general population do not preclude basic activities of daily living.

[135] Dr. Dost concluded, realizing his opinion was retrospective and that he did not access Ms. Blake within 104 weeks of the accident, from a neurological point of view there was no impairment or disability arising as a result of the accident within the first 104 weeks. The caveat was with regards to Ms. Blake’s headaches. There was no indication of a complete inability to carry on a normal life from a neurological point of view.

[136] A psychiatric assessment would be necessary to opine as Dr. Rathbone had with respect to the existence of post traumatic depression, anxiety and adjustment disorder.

[137] Overall, Dr. Dost supported his conclusions with a logical analysis. His testimony based as it were on his report, fulfilled the objectives of Rule 53.01. There was a greater discussion of the views of others, both treating physicians and Dr. Rathbone. Inevitably, a jurist relies on the experts retained for an evaluation of a plaintiff, as the hope is that these experts will “pull it all together”.

E. HISTORY OF THE PLAINTIFF’S FILE WITH DOMINION

Mr. Gavin Mascarenhas

[138] Mr. Gavin Mascarenhas, an employee of Dominion since 2001, was the accident benefits adjuster assigned to Ms. Blakes file from January 9th, 2003 to mid-2005. At trial, Mr. Mascarenhas provided a detailed history of Ms. Blakes interactions with Dominion.

[139] On November 19th, 2002, the day following her accident, Dominion sent Ms. Blake a package that included an application for accident benefits, along with brochures explaining Ontario`s accident benefit laws. The package also included a description of benefits that may be available to her under the terms of the policy (Tab 1, Vol. 1, Exhibit 1).

[140] A Disability Certificate was received by Dominion from Ms. Blake’s family physician, Dr. Wolos, on December 30, 2002 (Tab 5, Vol. 1, Exhibit 1). The completed certificate described Ms. Blake as being in “severe pain”, and categorized her impairment as whiplash grade III. The form indicated that her impairment was such that it “substantially prevented her from performing pre-accident housekeeping and/or home maintenance activities”. Further, severe neck pain is listed as preventing Ms. Blake from engaging in pre-accident activities, or returning to work.

[141] In response to an inquiry from the court, Mr. Mascarenhas confirmed that the content and construction of the forms/certificates relied upon by the Insurer were statutorily defined.

Medical and Rehabilitation Benefits

Physiotherapy and Massage Therapy

[142] As confirmed by Mr. Mascarenhas, Dominion received two treatment plans in early December 2002 from Reinhold Rehabilitation Services Ltd. (Tabs 3 & 4, Vol. 1, Exhibit 1). In accordance with these treatment plans, Ms. Blake was to receive physiotherapy and massage therapy services at an estimated total cost of $4320.00. In correspondence dated December 12, 2002, Dominion approved the physiotherapy and massage therapy treatment plans as submitted. A subsequent massage therapy treatment plan was received and approved by Dominion in late March, 2003, in the amount of $720.00 (Tabs 29 & 35, Vol. 1, Exhibit 1).

Occupational Therapy

[143] On April 30th, 2003, Dominion received a treatment plan from occupational therapist Maureen Ward, in the amount of $2740.50 (Tab 44, Vol. 1, Exhibit 1). In correspondence dated May 12, 2003, Dominion denied the treatment plan. According to Mr. Mascarenhas, this was based on medical documentation on file that concluded that no further occupational therapy intervention was required (Tab 47, Vol. 1, Exhibit 1). Ms. Blake was given the option to attend at a designated assessment centre (DAC) for a second opinion (Tab 47, Vol. 1, Exhibit 1).

[144] At trial, Mr. Mascarenhas explained that if there was a denial of benefits, the insurer provided claimants with the option of attending a DAC of their choosing. There, an independent assessor would make a determination on whether or not the denial was appropriate. Mr. Mascarenhas described DAC assessments as essentially a “second opinion”. According to Mr. Mascarenhas, Dominion’s practice was to follow the findings of the DAC assessment.

[145] Ms. Blake attended a Medical Rehabilitation DAC for an independent second opinion on the occupational therapy treatment plan denial on July 16, 2003. The assessment found that the treatment was reasonable and necessary, and would help her function with more efficiency in the home. Based on these findings, Dominion approved the occupational therapy treatment plan submitted by Maureen Ward.

[146] There was some confusion regarding payment for services provided by Ms. Ward. Although the occupational therapy treatment plan was approved upon receipt of the DAC results, it appears as though Ms. Ward was notified in error by Dominion that a bill of $869.21, dated Sept. 20, 2003 and received by Dominion on November 28, 2003, could not be paid as the treatment plan had been denied. Mr. Mascarenhas could not explain this oversight, however, did express that it was not purposeful on his part.

[147] On February 5, 2004, Ms. Ward wrote to Dominion asking for prompt payment of invoices dated September 30, 2003 and December 12 2003, for a total of $1,845.94 (Tab 96, Vol. 1, Exhibit 1). Understandably, given prior correspondence, Ms. Ward was of the opinion that Dominion refused to pay this amount despite approving the treatment plan.

[148] Ms. Ward again sent Dominion treatment invoices, this time by fax, on February 8th, 2004. Dominion promptly issued payment to Ms. Ward on February 10th, 2004.

Botox Treatment

[149] In February 2003, Dominion received a treatment plan for Botox injections from Dr. Rose Giammarco (Tab 12, Vol. 2, Exhibit 1). The treatment plan was for a series of Botox injections over the course of 9 months. The treatment plan totaled $3150.00.

[150] Mr. Mascarenhas testified that he did not have sufficient medical evidence to justify the treatment plan, and the claim was denied. Ms. Blake was referred to a DAC for further medical evaluation. The assessment took place May 18, 2005.

[151] The assessor’s report, dated June 1st, 2005, found that the Botox treatment was reasonable and necessary for accident related impairments. Dominion subsequently approved the treatment plan as submitted (Tab 28, Vol. 2, Exhibit 1).

[152] Two additional Botox treatment plans were submitted by Dr. Rose Giammarco – one was received by Dominion on September 6, 2006, and the other on November 23rd, 2007 (Tabs 84 and 114, Vol. 2, Exhibit 1). Dominion initially denied the September treatment plan. Dominion disagreed that Botox injections remained reasonable and necessary. As confirmed by Mr. Mascarenhas, Dominion approved the September treatment plan on October 19, 2006. This was following receipt of the Insurer’s Examination report which concluded that further Botox injections were reasonable and necessary (Tab 96, Vol. 2, Exhibit 1).

[153] The treatment plan received by Dominion in November 2007 was also denied (Tab 115, Vol. 2, Exhibit 1). In their response, Dominion stated that they did not agree this type of treatment was necessary this long after the accident. Dominion requested an assessment to determine if the treatment was still reasonable and necessary.

[154] An assessment was scheduled for January 7, 2008, however, Ms. Blake was unable to attend (Tab 117, Vol. 2, Ex 1). In letter from Dominion dated February 27, 2008, Ms. Blake was informed of rescheduled assessment with Dr. Rehan Dost, a neurologist (Tab 122, Vol. 2, Exhibit 1). Mr. Mascarenhas testified that to his knowledge the rescheduled assessment did not take place.

[155] As confirmed by Mr. Mascarenhas, since 2008, Dominion has not received an application for mediation regarding Botox treatments. Also, no further Botox treatment plans have been received.

Travel Expenses To and From Medical Appointments

[156] In early 2005, Counsel for Ms. Blake claimed transportation expenses on her behalf. Dominion’s response, dated February 26, 2005, stated that under the Schedule, the insurer was not liable for “the first 50 kilometers of transportation in the insured person’s automobile to and from treatment” (Tab 11, Vol. 2, Exhibit 1).

[157] An application for mediation was filed March 4, 2005 (Tab 13, Vol. 2, Exhibit 1). As per mediation report dated June 24, 2005, Dominion agreed to pay taxi and bus fares to and from medical appointments. At trial, Mr. Mascarenhas testified that these claims were honored by the insurer.

Lost/Damaged Clothing and Tools

[158] Ms. Blake submitted an application for expenses on November18, 2004. This claim included costs associated with damaged clothing and tools, as well as medical rehabilitation expenses, specifically prescription medication, glasses and a recliner.

[159] Mr. Mascarenhas’ attention was drawn to Dominion’s response to Ms. Blake’s claim, dated December 3rd, 2004 (116, Vol. 1, Exhibit 1). Dominion agreed to reimburse Ms. Blake for the value of the clothing damaged in the accident, minus 20% depreciation.

[160] Dominion’s response also requested proof of payment for damaged glasses. This expense was ultimately approved by Dominion on January 16, 2005, upon receipt of requested documentation (Tab 4, Vol. 2, Exhibit 1).

[161] In response to Ms. Blake’s expense claim for compensation for a recliner chair, Dominion requested that she have her family doctor complete a treatment plan form to substantiate the claim (Tab 4, Vol. 2, Exhibit 1). Dominion also requested that the tools damaged in the accident be forwarded to their office, or a detailed description provided, in order to ascertain their value.

[162] As confirmed by Mr. Mascarenhas, ultimately expenses for the damaged tools, as well as the recliner were approved at mediation held March 10, 2005. The required information to substantiate these claims had been received by the mediation date.

Caregiver and Housekeeping Benefits

Application for Accident Benefits

[163] Ms. Blake`s completed Application for Accident Benefits was received by Dominion on December 30, 2002 (Tab 6, Vol. 1, Exhibit 1). In her application, Ms. Blake indicated that her injuries did not prevent her from working; however, her duties at work had been reduced. Ms. Blake's application provided that her injuries prevented her from performing caregiving duties without assistance. Ms. Blake also indicated in her application that she was not receiving coverage from any other benefit plan (including a disability plan).

[164] Mr. Mascarenhas confirmed that Dominion provided a response to Ms. Blake`s Accident Benefits Application on January 9, 2003 (Tab 16, Vol. I, Exhibit 1). At this time, Ms. Blake was deemed eligible for caregiving expenses - specifically reimbursement of reasonable and necessary expenses incurred as a result of the accident in caring for her three children. Included in this correspondence were the particulars with respect to the caregiving benefit. Ms. Blake was provided with the following information in this regard:

The maximum incurred expenses shall not exceed $350.00 per week ($250/wk for the first and $50/wk for each additional person in need of care.) This benefit is payable only during the period of time that you cannot provide care, for as long as the person remains dependent, and is payable for no more than 104 weeks unless you meet a more stringent disability test. You can re-apply for a non-earner benefit under certain circumstances.

[165] In response to an inquiry by the court, Mr. Mascarenhas clarified that of the three possible weekly benefits (income replacement, non-earner and care-giver), claimants may only receive one benefit at any one time.

Election of Benefit Form

[166] In correspondence dated March 26, 2003, Dominion requested that Ms. Blake complete and submit an Election of Benefits Form (Tab 36, Vol. I, Exhibit 1).

[167] In early April, 2003, Mr. Mascarenhas sent Ms. Blake an Election of Income Replacement, Non-Earner or Caregiver Benefit form for her to complete and return to Dominion. Ms. Blake submitted the form on April 9th, 2003, and checked off the Caregiver Benefit box on the election form. The completed election form was received by Dominion on April 25, 2003 (Tab 40, Vol. 1, Exhibit 1).

Insurance Medical Examinations

[168] On January 3, 2003, a letter from Ms. Blake’s counsel was received by Dominion listing her symptoms (Tab 12, Vol. I, Exhibit 1). Mr. Mascarenhas testified that there was not sufficient medical documentation on file to support all symptoms listed. Mr. Mascarenhas provided Ms. Blake with written notice to attend physiatry, functional abilities, and neurological examinations (Tab 18, Vol. I, Exhibit 1). Each examination was to take place in February, 2003.

[169] During cross-examination, counsel for the Plaintiff questioned the neutrality of Insurance Medical Examinations. Mr. Mascarenhas testified that Dominion did not select the medical professional performing the examination, nor did they have a say in the outcome.

[170] In his report, Dr. Klienman, a physiatrist, indicated that Ms. Blake had psychological symptoms that needed to be addressed. In light of this report, Mr. Mascarenhas arranged for Ms. Blake to attend a psychological assessment, scheduled initially for April 14, 2003. Ms. Blake did not attend this assessment, nor did she attend a re-scheduled assessment on May 14, 2003.

[171] In accordance with Section 24 of the Schedule, Ms. Blake’s rehabilitation and medical benefits were suspended since she failed to attend two scheduled assessments. As communicated to Ms. Blake, Dominion would reconsider this position should she comply.

[172] After missing another scheduled assessment on September 8th, 2003, Ms. Blake attended the psychological examination on November 20th, 2003. Dr. Goodfield, the psychologist who assessed Ms. Blake, provided Dominion with a report of psychological findings in January 2004.

[173] Mr. Mascarenhas testified that based on reports received from Dr. Goodfield (psychologist), Dr. Meloff (neurologist), and Dr. Klienman (physiatrist), Ms. Blake did not suffer a substantial inability to complete her caregiving duties. A notice to this effect was sent to Ms. Blake on January 14th, 2004. At this time, Ms. Blake was informed that she no longer qualified for a future caregiving or housekeeping benefit effective January 31, 2004 (Tab 95, Vol. 1, Exhibit 1). Ms. Blake was notified of her right to dispute the stoppage of benefits (Tab 8, Vol. 2, Exhibit 1).

Caregiving Expenses: November 2002 – January 2005

[174] Mr. Mascarenas’ attention was drawn to an Application for Expenses received by Dominion on November 11, 2004. The claim was for caregiving expenses from November 18, 2002 to November 11, 2004. In response, Dominion asked Ms. Blake to provide further information, including who provided caregiving services, their duties, and proof of payment (Tab 115, Vol. 1, Exhibit 1).

[175] Dominion received two separate and additional caregiving expense claims from Ms. Blake in December 2004 and January 2005. These claims were for expenses incurred between November 12, 2004 and January 11, 2005, and totaled $330.00 (Tab 119, Vol 1, Exhibit 1 & Tab 2, Vol. 2, Exhibit 1). In January 2005, Dominion also received an expense claim from Ms. Blake for housekeeping services in the amount of $60.00 (Tab 3, Vol. 2, Exhibit 1).

[176] On form dated January 16, 2005, Dominion responded to Ms. Blake’s caregiving and housekeeping expense claims. In this correspondence, Ms. Blake was reminded of Dominion’s position – that based on medical assessments she was no longer eligible for the caregiver benefit effective January 31, 2004.

[177] Ms. Blake’s housekeeping expenses were also not payable. As outlined in same correspondence, Ms. Blake was informed that she was no longer eligible for housekeeping expenses. This benefit was not payable under Section 22(3) of the Schedule for a period of more than 104 weeks after the onset of disability (Tab 4, Vol. 2, Exhibit 1).

[178] Ms. Blake disputed the denial of caregiver benefits by filing an Application for Mediation (Tab 1, Vol. 2, Exhibit 1). In accordance with the mediation, held on March 10, 2005, Dominion agreed to honor Ms. Blake’s reasonable caregiving expenses for the period between November 18, 2002 and January 31 2004. Once the requested particulars regarding these expenses were provided, Dominion forwarded Ms. Blake payment in the amount of $5200.00 (Tab 26, Vol. 2, Exhibit 1).

[179] At mediation, Dominion also agreed to pay Ms. Blake $398.00 (inclusive of interest) for caregiving expenses incurred between November 12, 2004 and January 11, 2005. In correspondence to Ms. Blake dated March 12, 2005, Dominion acknowledged they had approved these expenses in error. The period for which caregiver benefits were claimed was after the benefit denial date of January 31, 2004 (Exhibit 22). Mr. Mascarenhas testified that Dominion nevertheless agreed to cover the amount promised at mediation in good faith.

Caregiving Expenses: January 2005 – July 2006

[180] On August 10, 2006, Dominion received 19 separate applications for caregiving expenses from January 2005 to July 2006 totaling $6190.00 (Tabs 63-79, Vol. 2, Exhibit 1). Each application was dated August 1, 2006. At trial, counsel for the Plaintiff acknowledged that the applications were all completed at once and backdated.

[181] On August 21, 2006, Dominion responded to Ms. Blake’s expense application with the following:

We have received caregiver expenses in the amount of $6190.00 for the period from January 2005 to July 2006. Please be advised that you do not qualify for this benefit based on the Independent Medicals we received in our office. We have previously forwarded an OCF-9-Explanation of Benefits payable form on January 16, 2005 and advised you of our position with regard to this matter at that time. We provided an OCF17 - (Notice of Stoppage of Weekly Benefit and Request for Assessment form) and a blank OCF-3- (Disability Certificate). Should you wish to attend a Disability DAC [Designated Assessment Centre], we require the OCF-3 form to be completed by your health practitioner. To date we have not received the OCF-3 form and we therefore are unable to proceed to a Disability DAC. We again enclose a blank OCF-3 form. If you wish to dispute our position, please have your practitioner complete this form and return to our office.

We also wish to bring to your attention that Section 13(4) of the Statutory Accident Benefit Schedule says that: The insurer is not required to pay a caregiver benefit for any period longer than 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to carry on a normal life. Since you are past the 104 weeks, you would need to suffer a complete inability to carry on a normal life in order this qualify for this benefit.

(Tab 82, Vol. 2, Exhibit 1)

[182] Although no longer adjuster on the file at this time, Mr. Mascarenhas confirmed that an application for mediation was submitted August 18, 2006 (Tab 80, Vol 2, Exhibit 1). At mediation, Ms. Blake claimed entitlement to caregiver benefits in the amount of $350.00/wk from November 1, 2004 ongoing.

[183] In Mediator’s Report dated January 9, 2011, the mediator notes that Ms. Blake and Dominion of Canada were unable to resolve the issue (Tab 108, Vol 2, Exhibit 1).

F. ANALYSIS

Evidentiary Basis

[184] At the outset of the trial, counsel for the Plaintiff filed two volumes of documents with 120 tabbed items in Volume 1, and 126 tabbed items in Volume 2. Collectively the items were made Exhibit 1, with a proviso by the court that these 246 items would not necessarily become items of proof in the trial (i.e. evidence). In other words, the items in tabbed volumes would not become traditional exhibits, unless the item was specifically referred to by a witness.

[185] Counsel for the Plaintiff protested, arguing these were all business records pursuant to s. 35 of the Evidence Act. R.S.O. 1990, c.E-23 (the “Evidence Act”), and consequently should be admitted into evidence without such a caution imposed by the court.

[186] Section 35(2) of the Evidence Act provides,

Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual course of such business to make such a writing or record at the time of such act, transaction, occurrence or event within a reasonable time thereafter.

[187] Subsection (3) provides for a notice requirement with respect to the tendering of such documentation. It does not appear that such notice was given in the case at hand, but counsel for the defendant did not appear to rely on this absence.

[188] Subsection (4) provides, “The circumstances of the making of such a writing or record including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.” This subsection appears to suggest that the documentation in question is entered via a witness. That seems sensible, as how else would the document in question be established to be a document made “in the usual course of business”. Presumably the witnesses in this case, either the insurance company personnel or health care professionals, would be able to describe the circumstances under which the particular document is generated. The court would then readily determine its admissibility pursuant to Section 35. Indeed, Williston and Rolls, the authors of The Conduct of an Action, (Toronto: Butterworths, 1982), state at page 19,

It is clear from the wording of s. 35 that it is not necessary that the maker of the writings or records be called to identify the documents personally. The usual procedure is to call a person with personal knowledge of the business of the party producing the record and who has personal knowledge of the circumstances surrounding the preparation of such records.

[189] This observation by the learned authors is consistent with Rule 53 of the Rules, which establishes what is “evidence at trial”. Evidence consists of: the evidence of witnesses, affidavits with leave of the court, and expert witnesses. This would include evidence that is agreed as between the parties to not require formal proof.

[190] The vast majority of the 246 documents were not introduced through witnesses. Counsel blithely assumed that they could be “dumped”, deposited at the foot of the bench and all would be considered in their entirety.

[191] The initial proviso that the court had raised at the outset of the trial, was again raised by the court at the conclusion of the evidence. Granted some of the documentation had been referred to by the various witnesses during the course of the trial, and would be admissible pursuant to Section 35 of the Evidence Act. Fortunately for counsel for the Plaintiff, by virtue of an agreement between counsel, Exhibit 1A was generated. This exhibit is essentially a list of those documents out of the 246 that were referred to by witnesses, or were agreed to be part of the record. Medical reports on this list were not admissible for the “truth of their contents”, but were received to explain why certain actors had acted the way they did. Naturally, if a witness was an author of a document, he or she could adopt the report as part of their “truth”.

Limitation Defence

[192] Counsel for Dominion has consistently advanced that this matter is statute barred. As was referred to before, the accident which founds the claim for benefits was November 18th, 2002. The Plaintiff completed an OCF-10, and elected to receive caregiver benefits.

[193] The Plaintiff was advised by Dominion January 14th, 2004, that the company had determined that she no longer met the disability test to receive caregiver benefits, and those benefits would be terminated/stopped as of January 31st, 2004. With that notice, the Plaintiff was provided with an OCF-17 and OCF-19, setting out the procedure in the event the Plaintiff wanted to challenge the decision. The Plaintiff did actually file an OCF-17 over a year later. January 31st, 2004 represents the date of the refusal to pay by the insurer. It’s not suggested that the Plaintiff comes within any of the enumerated exceptions (for example, a failed mediation relative to that termination pursuant to s. 281.192)). The sole issue is whether or not a mediation after the date of refusal, or subsequent application for benefit extends the limitation period.

[194] In Haldenby v. Dominion of Canada General Insurance Co., 2001 16603 (ON CA), [2001] 55 O.R. (3d) 470, the Ontario Court of Appeal had occasion to consider limitation periods and the applicability to similar phraseology to what was set out before from the Insurance Act and its Schedule.

[195] The rationale and general principles for limitation periods were set in paragraph 17 through 19:

[17] Limitation periods play an important role in the administration of justice by achieving a balance between every individual’s right to justice on one hand and the systemic need for finality on the other. In their operation, limitation periods encourage the timely resolution of legal controversies and reconcile the competing interests of potential claimants, potential defendants and society at large.

[18] The application judge properly outlined the three rationales underlying limitation periods, as set out by La Forest J. in M.(K.) v. M.(H.) (1992), 1992 31 (SCC), 96 D.L.R. (4th) 289 (S.C.C.), at pp. 301-2. . They are:

1. Certainty rationale: “a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations.”

2. Evidentiary rationale: this “concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim.”

3. Diligence rationale: “plaintiffs are expected to act diligently and not sleep on their rights; statutes of limitation are an incentive for plaintiffs to bring a suit in a timely fashion.”

[19] Also, in a more general sense, the SABS must be read in accordance with the modern approach to statutory interpretation. Thus, the “court’s interpretation should comply with the legislative text, promote the legislative purpose, reflect the Legislature’s intent and produce a reasonable and just meaning.” Ontario (Minister of Transportation) v. Ryder Truck Rental Canada Ltd. (2000), 47 O.R. (3d) 254 (Ont. C.A.).

[196] At paragraph [23], the panel noted that notwithstanding some degree of ambiguity, “it is the insurer’s refusal which triggers the limitation period”.

[197] Furthermore, there was no provision with the SABS regime to reapply for further benefits after an insurer’s benefits had been terminated. “The only remedy for the insured person is to appeal the termination of benefits within the two year period.”

[198] These reasons are quite sensible. To hold otherwise, that a mediation whatever the result, or a reapplication extends a limitation period would allow for a “rolling limitation period”. Such a phenomenon would defeat the rationale for a limitation period referred by the Court of Appeal.

[199] Given that the Statement of Claim in this matter was issued on May 30, 2007, the matter is statute barred.

Caregiver Benefits/Non-Earner Benefits

[200] Leaving aside the fact that the matter is statute barred, it is appropriate that the court consider the entitlement of the Plaintiff to the above benefits.

[201] The evidentiary burden is upon the Plaintiff to establish entitlement on a balance of probabilities.

[202] With respect to Section 13 of the Schedule, a caregiver benefit is payable to an insured who at the time of the accident was residing with, and was a primary caregiver to a person in need of care, and who within 104 weeks of the accident experiences a substantial inability to engage in their caregiving activities.

[203] What is at issue is the entitlement beyond the initial timeframe of 104 weeks. Section 13(4) requires a disability resulting from the accident in which the injured person is suffering “a complete inability to carry on a normal life”. That requirement also applies to non-earner benefits ( s. 12(1)).

[204] Section 2(4) defines that phraseology as follows,

A person suffers a complete inability to carry on a normal life as a result of an accident if, and only if, as a result of the accident the person sustains an impairment that continuously prevents the person from engaging substantially all of the activities in which the person ordinarily engaged in before the accident.

[205] Subsection 12(1)2 describes how a person who is receiving caregiver benefits within the first two years would, as counsel for the Plaintiff puts it, morph into a recipient of non-earner benefits. This is feasible where there is no longer a person in need of care that would justify a caregiver benefit, and a person suffers a complete inability to carry on a normal life (resulting from the accident), which arises within that first two years.

[206] Therefore, 104 weeks post-accident, “a complete inability to carry on a normal life”, is a common requirement for either benefit.

[207] Justice Simmons writing for the panel in Heath v. Economical Mutual Insurance Company (2009), 2009 ONCA 391, 95 O.R. (3d) 785 (Ont. C.A.) (“Heath v. Economical”), sets out at paragraph 50 a principled approach to the application of Section 12, (Section 13(4) and Section 2(4) of the Schedule):

• Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident. This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant’s pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant’s post-accident condition.

• Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snap-shot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case.

• In order to determine whether the claimant’s ability to continue engaging in “substantially all” of his or her pre-accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life.

• Although this approach differs somewhat from the approach taken in Walker v. Ritchie, [2003] O.J. No. 18, 2003 17106 (S.C.J.),., in which the trial judge focused on those activities that were “most important” to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focused inquiry.

• It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase “continuously prevents” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted”.

• The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity. Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity.

• In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time, or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities.

[footnotes omitted]

[208] Counsel for the Plaintiff appropriately encourages the court to apply the above principles and “conduct a holistic comparison of a claimant’s pre-accident life activities, with their post-accident activities.”

[209] Ms. Blake’s view of her life pre-accident, and the view of her children, projects a picture of vitality. Ms. Blake was involved in the sports activities of her children, and with her own athletic activities. That being said, Ms. Blake had experienced some significant health issues before the subject accident in November, 2002, all of which would impact upon that purported vitality.

[210] There was the car accident in 1987 in which she suffered a whiplash, which resulted in physiotherapy for a year, as reported to Dr. Giammarco.

[211] Dr. Kromby, a neurologist, reported as to his consult with Ms. Blake in February of 1997 (Exhibit 31) about an incident in 1989 where a board fell on her head generating headaches neck pain, and a continuing stomach problem.

[212] Dr. Tougas, a gastroenterologist, reported March 28th, 1998, about severe vomiting (Exhibit 32) and a concern that the patient was possibly “attention seeking”.

[213] Dr. Wolos, her family physician, completed the Ontario Disability Program form September 10th, 2001 (Exhibit 33) in which he listed the principle conditions of Ms. Blake as 1) gastroparesis 1994, 2) hypokalemia 1994, 3) hypertension 1994, 4) anemia 1997, and, 5) arthritis 2001. Dr. Wolos described his patient as very weak and “chronically fatigued”. She would in his opinion have further disabilities in later life.

[214] Dr. Dost noted in his medical history fibromyalgia.

[215] Ms. Blake claims that the diagnosis of fibromyalgia, irritable bowel and arthritis were misdiagnoses. Certainly she’s entitled to disagree with the opinions of her treating physicians, but with the repetition of such diagnoses, it raises doubt regarding the reliability of her belief.

[216] The medical opinions of Dr. Alan McComas, Dr. Giammarco, Dr. Lo and Dr. Kean did not help with understanding the picture post-accident. In some of the reports, there is a concern there may be a psychological component at work. The pathological evidence of injury was detected, but it could not be related specifically to the accident. There is no description in the medical reports generated within the two years’ post-accident which actually touch upon “the complete inability to carry on a normal life” as further defined by Section 2(4) of the Schedule, and in Heath v. Economical. There’s no “snapshot” post-accident except perhaps through Dr. Rathbone’s evidence offered retrospectively nine years after the evidence. It is extremely difficult, if not impossible, to obtain that holistic impression.

[217] If anything, there is indication in the evidence of Dr. Parkinson (see Exhibits 10- 13), a rehabilitation psychologist, suggesting that with exercise Ms. Blake’s condition improved during a treatment regime of approximately three months. In fact, according to the test data of Dr. Parkinson, the pedometer reported better than average output. During that period, Ms. Blake also started working out on an elliptical machine. As noted by Dr. Parkinson, Ms. Blake was “progressing nicely”.

[218] Dr. Parkinson’s final report dated January 25th, 2007 (Exhibit 113), referred to the fact that Ms. Blake believed she had experienced a brain injury. This was not borne out in his opinion or by the test results.

[219] This belief on Ms. Blake’s part, coupled with her disbelief of prior diagnosed conditions is concerning. Dr. Rathbone was supportive of Ms. Blake’s beliefs, but his opinion was nine years after the fact, and he is alone in that opinion. He did not necessarily have the “feel” that was suggested to him that a treating physician would have.

[220] The Plaintiff testified as to matters that are extremely personal. At the outset, it is appropriate to be mindful of the fact that giving evidence in a courtroom is not an experience that citizens would necessarily seek out or be accustomed to. Judges routinely charge juries that the manner in which a witness testifies, or how a witness appears, is not determinative as to the credibility of that witness. Obviously, the human condition is such that all witnesses are different in their temperament, confidence, abilities, values and life experiences.

[221] Given that the events attested to in this matter occurred possibly up to ten years ago, a lack of detail or difficulty in recalling may not be a function of credibility, but rather a reflection of the fact that all our memories diminish with the passage of time.

[222] All of the above requires a healthy mix of common sense and compassion. Having said that, there is still the possibility that a witness may deliberately lie or may genuinely believe something which in fact did not take place or exist. Self-deception is not a rare phenomenon and can, with the passage of time, become vested in the consciousness or unconsciousness of an individual. Repetition of a belief may contribute to the investment process, but it does not make the base assertion necessarily a reality. Screening for self-deception and falsehood is invariably part of the assessment of the credibility of a witness. The object of that exercise is to determine whether the witness is a credible and reliable historian. That is the prism through which the plaintiff is viewed in assessing whether or not the claim has been established on a balance of probabilities. This is far from a standard of perfection, but a standard where one decides at the end of the day, is an assertion more likely or not.

[223] The editor of Black’s Law Dictionary, 7th Edition (St. Paul, Minnesota: West Group, 1999), defines credibility as follows: “The quality that makes something (as a witness or some evidence) worthy of belief.” Reliability is a component or an adjunct to this quality. It would be hard to imagine that something could be worthy of belief without the element of reliability.

[224] There are no hard and fast rules as to what makes an assertion by a witness reliable. However, one element of reliability is the reasonableness of the assertion.

[225] “Reasonableness” has both subjective and objective components. From the subjective point of view, an assertion may be reasonable as it explains the actions, thoughts or the statements of the witness. However, the same assertion must be objectively reasonable. Not only is it subjectively reasonable to the witness himself or herself, reasonableness must also be apparent to the average person, detached from the particular circumstances of the witness.

[226] Because of the absence of medical evidence regarding Ms. Blake’s “complete inability to carry on a normal life” within 104 weeks of the accident, a question as to causality between her symptoms and the accident, and concern with respect to the reliability of the Plaintiff’s evidence as to her health status pre and post-accident, it cannot be said that the Plaintiff has met the evidentiary burden to establish entitlement to benefits beyond the initial 104 weeks.

The Duty of Good Faith

[227] In Whiten v. Pilot Insurance Company 2002 SCC 18, [2002] 1 S.C.R. 595 (“Whiten v. Pilot”), the insurer acknowledged a contractual duty of good faith and fair dealing. Justice Binnie writing for the majority went further. He stated, “A breach of the contractual duty of good faith is independent of and in addition to the breach of contractual duty to pay the loss” (Whiten v. Pilot, para. 79).

[228] So what are the elements of this duty? An insurer is entitled to “thoroughly investigate a claim and exercise caution in evaluating the circumstances. The insurer is not bound by the initial findings of its investigators.” Further inquiries can be pursued (Whiten v. Pilot, para. 102).

[229] This investigation should be guided by “due diligence” rather than “tunnel vision” (Whiten v. Pilot,para. 103).

[230] In Justice Binnie’s outline of those factors which contribute to the possibility of punitive damages, one gleans prohibitive aspects of the exercise of the duty of due diligence:

1. planned and deliberate misconduct in the treatment of the insured;

2. an intent and motive in that treatment which is contrary to the duty;

3. persistent and prolonged outrageous conduct;

4. attempts or acts on the part of the insurer to hide its misconduct;

5. an awareness on the part of the insurer as to its bad behaviour;

6. the insurer profiting from its misconduct, and;

7. the irreparable violation of a deeply personal interest of the insured (Whiten v. Pilot, para. 113).

[231] Associate Chief Justice O’Connor had also written of the good faith expected of the insurer in 703535 Ontario Inc. v. Lloyd’s Non-Marine Underwriters et al. (2000) 2000 5684 (ON CA), 184 DLR (4th) 687 (Ont. C.A.). At paragraph 27, Justice O’Connor writes:

The duty of good faith requires an insurer to act promptly and fairly when investigating, assessing and attempting to resolve claims made by its insureds.

[232] At paragraph 28, Justice O’Connor provides that “the first part of this duty speaks to the timely processing of a claim”, as a loss will frequently leave the insured financially vulnerable. This vulnerability merits reasonable promptness in payment in the absence of a reasonable basis to challenge coverage.

[233] As mentioned, the duty requires fairness in both the manner of the investigation of the claim, and the decision as to whether or not to pay. Refusal must be based on a balanced and reasonable assessment. There is no room for profiting from the economic vulnerability of the insured. Further, the Court of Appeal provides,

This duty of fairness, however, does not require that an insurer necessarily be correct in making a decision to dispute its obligation to pay a claim. Mere denial of a claim that ultimately succeeds is not in itself an act of bad faith (703535 Ontario Inc. v. Lloyd’s Non-Marine Underwriters et al, para. 29).

[234] This assessment of the existence of bad faith is invariably contextual.

[235] The contextual approach merits that the conduct of the insured be assessed in its entirety. It is regrettably a part of modern day life replete with interactions between individuals and organizations, private or public, that there are errors. Things do fall between the cracks. An error in the processing of a claim may not be illustrative of bad faith in itself if it is an isolated event in the course of conduct. That observation would probably apply to Dominion’s failure to pay Maureen Ward, the occupational therapist, until reminded of the DAC assessment.

[236] Another error was committed on the part of Dominion’s representative at the mediation of March 10th, 2005. In that instance the representative erroneously approved an expense. Dominion instead of proclaiming an error, paid the expense as a sign of good faith.

[237] Dominion required DAC assessments of the subsequent treatment proposals by Dr. Giammarco for Botox treatment to address Ms. Blake’s headaches. However, one notes that these additional requests were approximately a year apart. It is not presented as unreasonable to request an assessment, especially given the expense of those treatments as acknowledged by Dr. Giammarco, and the fact that within the treatment regime of Dr. Parkinson, Ms. Blake had gained relief through consistent exercise. The insurer should be able to make cost effective decisions. In any event, Dominion did approve the Botox treatments following the DAC assessments.

[238] The conduct of the insured can contribute to a lack of timeliness in the processing of a claim. As was mentioned, Ms. Blake was tardy in submitting her claims for childcare, OCF6 (Tab 20, Vol. I, Exhibit 1). The application, although dated January 31st, 2003, was not received until April 14th, 2005. At times, Ms. Blake also missed scheduled appointments.

[239] The processing of Ms. Blake’s claim was not straightforward. There were pre-accident medical issues and events. There was the suggestion from time to time by certain treatment providers that there were likely psychological issues involved. It would be inevitable that the company would engage in further investigation, or request independent assessments as part of its due diligence.

[240] The treatment of Ms. Blake does not in any way approach the severity of the treatment of Daphne Whiten in Whiten v. Pilot, which demonstrates the “hardball” approach on the part of the insurer. Overall, this is not a picture of bad faith treatment of Ms. Blake.

Damages for Mental Distress

[241] Starting with the general principle of the reasonable expectation of contractual parties as established in Hadley v. Baxendale (1854), 9 Ex. 341, 156 E.R. 145, Chief Justice McLaughlin and Justice Abella in Fidler v. Sunlife Assurance Co. of Canada, 2006 SCC 30, 271 D.L.R. (4th) 1 (“Fidler v. Sunlife”), noted that there are some contracts where the parties may well have contemplated at the time of the contract that a breach in certain circumstances would cause a plaintiff mental distress. That possibility may well be within their reasonable expectations.

[242] The measure of such damages would be subject to the analysis as to remoteness. Not all mental stress is compensable. Understandably, incidental frustration is not compensable (Fidler v. Sunlife, paras 44 and 45).

[243] The evidentiary burden is on the plaintiff to prove his or her loss. “The court must be satisfied, 1) that an object of the contract was to secure a psychological benefit that brings mental distress upon breach within reasonable contemplation of the parties, and 2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation” (Fidler v. Sunlife, para. 47).

[244] Such a contemplation of harm is absent from commercial contracts. However, it is within the class of “peace of mind” bargains. A disability insurance contract (as was the case in Fidler) is such a contract. While the essential bargain is payment of premiums with benefits in the case of disability, the intangible benefit is the knowledge of financial security in the event of disability. If the benefits are not paid, the individual will have difficulty meeting his or her ordinary living expenses. Inevitably, that difficulty would contribute to the individual’s stress (Fidler v. Sunlife, para. 57).

[245] As mentioned above, having established that a contract has that piece of mind component, the next question is whether the mental distress at issue was of such a magnitude to justify compensation. In Fidler v. Sunlife, the trial judge was able to find as a fact that Ms. Fidler “genuinely suffered significant additional distress and discomfort arising out of the loss of the disability coverage”. In point of fact, Ms. Fidler was out of benefits for five years. The finding of the trial judge was observed by Justices McLaughlin and Abella to be “amply supported in the evidence, which included extensive medical evidence documenting the stress and anxiety that Ms. Fidler experienced” (Fidler v. Sunlife, para 59).

[246] The only evidence of mental distress comes from Ms. Blake and her sons. The latter recalled their mother crying, possibly when she had received correspondence from the insurance company. Their evidence is not of a caliber that one can safely say this distress should be compensable.

[247] There is absolutely no medical evidence of this form of distress. There are no notations of any complaints by Ms. Blake to her treating physicians of such distress. It would be hard to say that Ms. Blake experienced anything more than frustration, which as we all know is inevitable in life.

Aggravated Damages

[248] Aggravated damages were also discussed by the Supreme Court of Canada in Fidler v. Sunlife. The court referred to the definition of such damages by Professor Waddams in his work, The Law of Damages (Toronto: Canada Law Book, 1983):

Aggravated damages in the context of damages for mental distress arising out of a breach of contract…describe[e] an award that aims at compensation but takes full account of intangible injuries such as distress and humiliation, that may have been caused by the defendants insulting behavior (Fidler v. Sunlife, para. 51).

[249] Case law describes two types of “aggravated damages”. The first arises out of aggravating circumstances, not based on a contract but on a separate cause of action, such as the torts of defamation, oppression or fraud (Fidler v. Sunlife, para. 52).

[250] Mental distress damages are the second form of aggravated damages that arise as a result of a breach of contract, as per the principle of expectation that the court expanded upon. “They exist independent of any aggravating circumstances, and are based completely on the parties’ expectations at the contract formation. With respect to this category of damages, the term “aggravated damages” becomes unnecessary and, indeed a source of possible confusion.” (Fidler v. Sunlife, para. 53).

[251] So it would appear that with a “peace of mind” contract, as was the case in hand, aggravated damages are synonymous with the damages arising out of mental distress.

[252] Obviously, the comments made with respect to the lack of an evidentiary basis for compensable damages for mental distress would be equally applicable to this heading of damage.

CONCLUSION

[253] For all of the above reasons, the action on behalf of the Plaintiff is dismissed in its entirety.

[254] Counsel are to exchange cost submissions and Bills of Costs within 30 days of the receipt of this judgment. Failure to reach accord as to entitlement, level, and quantum of costs will require the parties to file their submissions with the court within 60 days of the receipt of this judgment.

Whitten J.

Released: September 30, 2013

COURT FILE NO.: 07-31578

DATE: 2013-09-30

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Michelle Blake

Plaintiff

• and –

Dominion of Canada General Insurance Co.

Defendant

REASONS FOR JUDGMENT

Whitten J.

ACRW:mw

Released: September 30, 2013