COURT FILE AND PARTIES
COURT FILE NO.: 07-CV-329547PD3
DATE: 20131004
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: SAVERIO STRANGIS, Plaintiff
AND:
JOSEPH PATAFIO, NANCY PATAFIO and AVIVA CANADA INSURANCE COMPANY, Defendants
BEFORE: D.L. Corbett J.
COUNSEL:
Sergio Grillone and Michelle F. Jorge, for the Plaintiff
James C. Dakin and T. Maurer, for the Defendants
HEARD: November 26, 27, 28, 29, 30, December 3, 4, 2012
RULING
[1] Mr Strangis sued the defendants for damages arising out of a car collision. The defendants acknowledged fault for the collision; the issues for trial were the amount of damages and whether this claim exceeds the “threshold” that applies in car collision cases.
[2] The jury found that general damages were $35,000, slightly more than the figure recommended by defence counsel during final argument. The jury awarded no damages for loss of competitive advantage or for handyman services. After the jury’s decision, I dismissed the action on the basis that the claim did not satisfy the threshold provided in the Insurance Act. I gave oral reasons with these written reasons to follow.
The Threshold
[3] The collision occurred on January 31, 2005. It is governed by s.267.5 of the Insurance Act[^1] and its Regulation.[^2]
[4] The issue of whether a claim meets the threshold is to be decided by the trial judge, not the jury.[^3]
[5] Under s.267.5(5) of the Insurance Act, the onus is of the plaintiff to establish that he sustained “a permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function” if he is to recover damages for non-pecuniary loss or health care expenses. There is no alleged disfigurement, so the question is whether Mr Strangis has shown, on a balance of probabilities, that he has suffered “permanent serious impairment of an important physical, mental or psychological function” from the car collision.
[6] The elements of the threshold are defined in the Regulation, material portions of which are as follows:
4.1 For the purposes of section 267.5 of the [Insurance] Act,
“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
- For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.[^4]
[7] Section 4.3 of the Regulation provides that a claimant must adduce evidence from one or more physicians attesting to the elements of the threshold (as specified in detail in paras. 4.3(2)(a) to (d)). In addition, s.4.3(4) provides:
The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.[^5]
[8] There are two reasons why the plaintiff’s case fails to meet this threshold. First, he has not shown that his permanent medical issues were caused by the car collision. Second, even if his permanent issues had been caused by the car collision, they do not, individually or in the aggregate, amount to a “serious impairment of an important physical, mental or psychological function”.
Causation
[9] Mr Strangis suffers from back, neck and leg pain. The pain is not trivial. It is ongoing. The defence accepts these facts.
[10] Mr Strangis injured his back in work-related incidents in 1988 and 1994. He was off work for more than three years after the second incident, during which he retrained for less physical work. He received a final settlement from the Workplace Safety Insurance Board (WSIB) to cover retraining costs and to compensate him for the permanent injury to his back.
[11] One of the issues in this case is the relationship between the prior injuries and the damage caused by the car collision. A defendant must take a plaintiff as he finds him. So if Mr Strangis had a predisposition to injury, that would be no bar to his claim. Still, it is for Mr Strangis to show, on a balance of probabilities, that the injuries of which he now complains were “caused” by the car collision.
[12] “Caused” here does not mean “sole cause”. If the car collision materially contributed to the current situation, then that is enough. On the other hand, if the car collision did not materially contribute to the permanent damage, then Mr Strangis is in largely the same situation today that he would have been in without the car collision and he has not established causation.[^6]
[13] The defence expert, Dr. McBroom, acknowledged that Mr Strangis suffered short- and medium-term pain from the car collision. He opined that this injury was fully resolved in a period of months. What Mr Strangis suffers now was caused by progression, rather than exacerbation, of the older injury.
[14] The plaintiff’s expert, Dr. Schacter, says that the current injuries were caused by the accident. But he does not explain why he comes to that conclusion. He mentions prior injuries in his report, but he did not have and did not review the medical records related to those injuries. The prior injuries are shown on diagnostic images in the WSIB file. They are in the same area of the spine that causes Mr Strangis’ ongoing pain (L4-S1). The car collision could have reinjured the old injury and made it worse. But Dr. Schacter does not express this opinion. Without explanation, his conclusory evidence on the causation issue takes no account of the prior injuries.
[15] Dr. McBroom reviewed the medical records from the prior injuries, and he was confident that the car collision did not make matters worse in the long run. This conclusion is supported by Mr Strangis’ reports of the pain he was experiencing at the time that he settled his claim with WSIB.
[16] From the plaintiff’s side, since I am not prepared to place any weight on Dr. Schacter’s opinion on this point, I am left with Mr Strangis’ subjective reports of his current pain and the inferences that he would draw from them. As I indicate below, Mr Strangis’ testimony is exaggerated when it suits his interests, and so his evidence on this point does not provide him much assistance.
[17] It is Mr Strangis’ burden to show causation. He has not discharged it. On balance I accept the defence evidence that the injuries from the collision have resolved fully, and that Mr Strangis’ permanent issues were not caused by the car collision. The short- and medium-term pain caused by the car collision does not satisfy the permanency requirements of the threshold.[^7] For this reason Mr Strangis has not met the threshold.
[18] This decision is consistent with the jury’s finding of general damages of $35,000.[^8] In closing argument, defence counsel acknowledged that there was short- and medium- term pain caused by the collision, and on this basis he suggested general damages of $30,000.
The Continuing Pain Does Not Meet the Threshold In Any Event
[19] I do not doubt that Mr Strangis suffers pain. And pain can be a serious affliction. My conclusion that Mr Strangis’ pain does not meet the threshold is not to trivialize Mr Strangis’ situation. That which is not functionally “serious” is not thereby “trivial”. As many of the cases indicate, the threshold implies that some injuries that cause permanent pain are not compensable.[^9]
[20] Mr Strangis can still work. He can still enjoy many of the amenities he enjoys in life. Where he claims a diminution in his functional abilities, he tends to shade his evidence to make it seem worse than it is. There is some impairment of activities involving athletic or heavy physical activity. Other activities have not been impaired significantly. And, although I do not doubt that Mr Strangis sincerely grieves his reduced vitality, this does not elevate his functional impairments into the category of “serious”.
(a) Work
[21] Mr Strangis operated heavy equipment as a young man. It was during this work that he suffered his prior injuries.
[22] Mr Strangis cannot do this kind of work anymore. After the collision, his employer accommodated him. When Mr Strangis left this employment two years after the collision (because of an economic downturn), he pursued work that was less demanding physically. His new job involves some driving, and he reports that his new employer permits him to work from home some of the time to relieve this difficulty.
[23] Mr Strangis did not experience an interruption in income as a result of the collision. He missed one day of work. He now earns considerably more money in his new work. I accept that he will not be able to return to his old lines of work operating heavy equipment, but I also conclude that he would not choose to do so anyway, given that he has moved on to more remunerative work. There is no evidence that Mr Strangis faces risks of unemployment beyond the contingencies that might apply to anyone else.
(b) Loss of Amenities
[24] Mr Strangis testified that he cannot do the handyman work that he once did. The jury found no damages for loss of handyman services, but this could reflect an adverse finding on causation. On the other hand, Mr Strangis testified to the cost of services he purchased that, formerly, he would have performed himself. He did not provide receipts for this work. Nor did he provide an explanation for not having receipts.
[25] The defendants produced a video showing Mr Strangis installing drywall in his garage at home. He is working at a leisurely pace. He is drinking beer. He is talking with family members. Sometimes he sits down in a nearby lawn chair. But he also appears to have a free and easy range of movement and he is able to do the tasks associated with this work.
[26] Mr Strangis did not prove that he suffered loss for lack of handyman services. Through the video I conclude that he has not been robbed of the pleasure of doing this work. It may be that he works at a slower pace than before. He may experience some pain while he is doing this work, though the video does not show objective signs that he did so during the drywalling of the garage. I accept that Mr Strangis may not perform the heavier tasks associated with this kind of work. I conclude that he can do this kind of work and derive pleasure from it.
(c) Social Impacts
[27] Mr Strangis advised that he could no longer coach his son’s sporting teams. He misses this activity, and feels that his relationship with his son has suffered as a result.
[28] I accept that Mr Strangis was actively engaged in his son’s sporting activities when the boy was young. By the time of the accident, the child was in his early teens. I do not accept that Mr Strangis would have continued in his coaching during this period in his boy’s life.
[29] There is not much that can be said about the relationship between Mr Strangis and his son. There were no counseling records on this issue. The young man did not testify. Evidence from Mr Strangis, his wife and a coach on this issue was unconvincing – there was nothing concrete described about deterioration in the relationship. It was described in generalizations. The young man has continued to live at home and there is no evidence that there is discord in the household. I do not accept that this deterioration reflects a “serious functional impairment” or that it has been caused by the collision. It may be no more than the changes that can accompany adolescence.
[30] Mr Strangis also reported a reduction in his intimate relations with his wife. This was corroborated in vague terms by Ms Strangis. It is not clear whether there has been a reduction in desire, a loss of potency, or whether pain is a deterrent. I do not know the extent of the problem. I do know that Mr Strangis has not consulted with his doctor to see what might be done about it.
(d) Self-esteem
[31] Mr Strangis says that he feels “less of a man” because of his functional impairments. This is not rational but it is understandable. Anyone who has lived long enough to crest physically and experience the inevitable losses in strength and vitality wrought by the aging process can identify with Mr Strangis’ feelings. We all wish to retain the health, vitality, and exuberance we had when we were 25 (so long as we get to retain the wealth, security and wisdom that we have gathered since that time). I accept that these natural feelings are based on functional limitations, and that Mr Strangis’ pain bears on these issues. But this is not, itself, a functional impairment. It is an incident of damage that arises from functional impairments: how Mr Strangis feels about the losses he has experienced.
(e) Impairments in the Aggregate
[32] Mr Strangis was a physically fit and active man who enjoyed sports and activities like his handyman work. He characterizes himself as being a shell of his former self. I do not accept that. I do accept that he experiences some limitations because of his pain, and that these limits really do chafe for him. But that does not raise his impairment into the category of “permanent serious impairment of an important physical, mental or psychological function”. His impairment, while not trivial, is not serious. He can do most of what he could do formerly. His grief over his losses, while no doubt real, is not“impairment” in a “function”.
[33] The intent behind the threshold is clear: people are required to bear some non-trivial non-pecuniary losses arising from car collisions without compensation. The policy debate behind this provision is one which has been ongoing for many years. It is not for the court to read down the provision to apply it only to trivial functional impairments: that is not the language of the section, and clearly not the legislative intent. The case law establishes that there are three questions to be asked here:
(1) Has the injured person sustained permanent impairment of a physical, mental or psychological function?
(2) If yes, is the function which is permanently impaired an important one?
(3) If yes, is the impairment of the important function serious?[^10]
[34] I would answer the first question “no” because causation was not established. In the alternative, I would answer questions 2 and 3 “no” for the reasons set out above.
[35] In the result the action is dismissed.
Costs
[36] In my handwritten endorsement of December 4, 2012, I directed that the plaintiff pay costs on a partial indemnity basis to November 15, 2012 (the date of the defendants’ offer to settle), and substantial indemnity costs thereafter. I understand that the parties have settled the quantum of costs in the wake of this decision.
Delay Releasing This Decision
[37] I regret the delay in releasing this decision. I have been on a medical absence following a heart attack in August 2012 and a premature return to work in October to December 2012. I am just now returning to work full-time; hence the delay.
D.L. Corbett J.
Date: October 4, 2013
COURT FILE NO.: 07-CV-329547PD3
DATE: 20131004
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAVERIO STRANGIS
Plaintiff
AND:
JOSEPH PATAFIO, NANCY PATAFIO and AVIVA CANADA INSURANCE COMPANY
Defendants
ENDORSEMENT
D.L. Corbett J.
Released: October 4, 2013