Court File and Parties

COURT FILE NO.: 61916/09

DATE: 2013/10/31

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAMELA MAYER, RALPH WELCH and ALICIA LAUZON, a minor by her Litigation Guardian PAMELA MAYER (Plaintiffs)

• And –

1474479 ONTARIO INC. and ANWAR GEWARGIS SHEMON (Defendants)

BEFORE: JUSTICE I. F. LEACH

COUNSEL: Gordon Good, for the Plaintiffs Brian Sunohara and Moussa Sabzehghabaei, for the Defendants

HEARD: October 9, 2013

E N D O R S E M E N T

(Defendants’ motion for ruling on statutory threshold)

[1] This action stemmed from a motor vehicle accident in March of 2008 and proceeded to resolution by a civil jury trial; a trial which began with selection of a jury on September 16, 2013, and concluded with a jury verdict and corresponding judgment on October 10, 2013.

Background to motion and ruling

[2] During the course of trial, the defendants indicated their intention to move for a judicial ruling that the plaintiffs’ claims for future care costs (health care expenses) and non-pecuniary loss were barred by ss. 267.5(3) and 267.5(5) of the Insurance Act, R.S.O. 1990, which read in part as follows:

Protection from liability; health care expenses

267.5 (3) Despite any other Act …, the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained …

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

Non-pecuniary loss

267.5 (5) Despite any other Act …, the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury … arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person … has sustained,

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

[3] To use the vernacular, the defendants sought a ruling that the plaintiffs’ claims did not meet the statutory “threshold” applicable to claims of this nature.

[4] Subsection 267.5(12) of the legislation permits determination of such issues by a judge by way of a motion brought before trial, in certain specified circumstances.

[5] As no such motion was made in this case, the matter was governed by s.267.5(15) of the Insurance Act, supra, which reads in part as follows:

267.5 (15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has … sustained, …

(b) Permanent serious impairment of an important physical, mental or psychological function.

[6] Pursuant to the discretion confirmed by our Court of Appeal in Kasap v. MacCallum, [2001] O.J. No. 1719 (C.A.), I directed argument of the defendants’ motion to proceed after the jury had been charged and commenced its deliberations, with a view to my then delivering a ruling after having an opportunity to consider the jury’s verdict, as part of my independent determination of whether the threshold had been met in the circumstances.

[7] In that regard, I certainly did not consider myself bound by any implied findings of the jury; for example, in relation to the significant credibility and causation issues raised at trial. As emphasized in Kasap v. MacCallum, supra, the legislation clearly indicates that a judge must decide such a threshold motion, despite the obvious potential for overlap between considerations underlying that determination and considerations a jury must address in reaching their decision.

[8] The jury’s verdict nevertheless was a factor that I wished to consider.

[9] On October 10, 2013, the jury returned a verdict strongly suggesting that it took a very dim view of the plaintiffs’ credibility and/or causation arguments.

[10] In particular, despite the very substantial sums claimed for injuries and losses alleged to have been caused by the motor vehicle accident, (said to total well over two million dollars), the jury awarded the following:

1. For the plaintiff Pamela Mayer: a. general non-pecuniary damages in the amount of $5,800, (reduced to zero after application of the statutorily mandated deductible); b. special damages for past income loss to date of trial in the amount of $15,500, (reduced to zero after applying a credit for collateral income replacement benefits); c. damages for loss of future income, (loss of earnings, earning capacity and competitive advantage), in the amount of $45,000; d. zero damages for alleged pecuniary loss from loss of interdependent relationship; e. damages for future housekeeping care costs in the amount of $15,000; and f. damages for other future care costs in the amount of $56,000;

2. For the plaintiff Ralph Welch, (Ms Mayer’s now estranged spouse): a. zero damages for nursing, housekeeping and other services provided to Pamela Mayer; and b. zero damages for loss of care, guidance and companionship; and

3. For the plaintiff Alicia Lauzon, (Ms Mayer’s severely disabled daughter): damages for loss of care, guidance and companionship in the amount of $3,300, (reduced to zero after application of the statutorily mandated deductible).

[11] Following receipt of the verdict and discharge of the jury, but prior to any motion for judgment in accordance with that verdict, I ruled that the plaintiffs had met the statutory threshold, for written reasons to follow. These are those reasons.

Law – Legislation and general principles

[12] The relevant “threshold” provisions of the Insurance Act, supra, are set out above.

[13] They clearly were intended to control rising insurance premiums by “raising the bar” for prospective plaintiffs; i.e., by reducing the number of individuals able to sue for injuries sustained in motor vehicle accidents, in exchange for enhanced first party (“no fault”) statutory benefits. See Meyer v. Bright, [1993] O.J. No. 2466 (C.A.), and Sabourin v. The Dominion of Canada General insurance Company, [2009] O.J. No. 1425 (S.C.J.).

[14] In Meyer v. Bright, supra, our Court of Appeal also confirmed that a plaintiff has the burden of proving that he or she falls within the legislated threshold exceptions for the advancement of such claims, and indicated that the appropriate approach to such threshold determinations was to answer, sequentially, the following questions:

1. Has the injured person sustained permanent impairment of a bodily function by continuing injury which is physical in nature?
2. If the answer to question number 1 is “yes”, is the bodily function, which is permanently impaired, an important one?
3. If the answer to question number 2 is “yes”, is the impairment of the important bodily function serious?

[15] The underlying criteria of the threshold provisions also received further definition and clarification through the enactment of subordinate legislation. In particular, s.4.2(1) of O.Reg. 491/96, applicable to the underlying accident in this particular case, reads as follows:

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:

1. 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, ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, 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 his or her career training, or iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. 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 use the accommodation to allow the person to continue employment, ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, 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 his or her career training, 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.

3. For the impairment to be permanent, the impairment must, i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, ii. continue to meet the criteria in paragraph 1, and iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances

[Emphasis added.]

[16] As indicated by the wording emphasized above, each of the three criteria set out in O.Reg. 461/96 must be satisfied. However, the indicated sub-components of the first two criteria are disjunctive, such that the first two criteria will be satisfied if any of the sub-components indicated therein is true in a given case. It is only the third of the criteria which demands the satisfaction/presence of all its indicated sub-components.

[17] The three criteria also have been the subject of repeated judicial comment and exposition.

[18] For example, in relation to the first of these three criteria, (substantial interference):

a. Generally speaking, a serious impairment is one which causes substantial interference with the ability of the injured person in question, (and not some other objectively discernible “reasonable person”), to perform his or her usual daily activities or to continue his or her regular employment. See Meyer v. Bright, supra, at pp.10-11, and Lemire v. Roztek Ltd., [1997] O.J. No. 2307 (Gen.Div.), at paragraph 110.

b. A claimant must do more than simply experience ongoing pain or discomfort to bring himself or herself within the statutory exceptions permitting litigation. It is apparent that the Legislature intended injured persons to bear some interference with their enjoyment of life without being able to sue for it, and only a “serious” impairment will qualify. Tolerable symptoms that still permit a claimant to function well do not bring a claimant within the statutory exceptions. However, symptoms that go beyond the tolerable and significantly impair a plaintiff’s enjoyment of life will be sufficiently serious. A court must look at the totality of evidence, whether medical or lay, to assess and determine whether the interference with the plaintiff’s life is substantial. A person who can carry on daily activities, but is subject to permanent symptoms that have a significant effect on his or her enjoyment of life, (e.g., because of sleep disorder, headaches, dizziness and nausea), must be considered as having sustained a serious impairment, in the sense required. See, for example: Meyer v. Bright, supra, at p.19; May v. Casola, [1998] O.J. No. 2475 (C.A.); Hartwick v. Simswer, [2004] O.J. No. 4315 (S.C.J.); Frankfurter v. Gibbons, [2004] O.J. No. 4969 (Div.Ct.); Pinchera v. Langille, [2005] O.J. No. 521 (S.C.J.), aff’d [2006] O.J. No. 3948 (C.A.); and Vancsody v. Wrightman, [2012] O.J. No. 6517 (S.C.J.).

c. A change in job function or efficiency is sufficient to constitute a substantial interference with the ability of an injured person to continue his or her employment. Similarly, frustration of an injured person’s chosen career path generally should be considered a serious matter. See, for example: Patterson v. Sindall, [1999] O.J. No. 3992 (C.A.), at paragraphs 13-16; and Guerrero v. Fukuda, [2008] O.J. No. 3799 (S.C.J.), at paragraph 19, aff’d [2010] O.J. No. 2903 (C.A.).

d. Activities of “daily living” to be considered in this context are wide-ranging, and include not only employment activities and household responsibilities, but also the ability to socialize with others, have intimate relations enjoy one’s children, and engage in recreational pursuits. See Brak v. Walsh (2008), 2008 ONCA 221, 90 O.R. (3d) 34 (C.A.).

[19] In relation to the second of the three criteria, (importance of function):

a. Not every function that is impaired is important. The Court must consider whether the bodily function is important to the injured person in question. See Meyer v. Bright, supra, at p.8.

b. The court must consider the effect the relevant bodily function has upon the plaintiff’s way of life in the broadest possible sense. See Nissan v. McNamee, [2008] O.J. No. 1739 (S.C.J.).

[20] In relation to the third of the three criteria, (permanence):

a. The term “permanent” does not necessarily mean strictly forever until death. Rather, it means “lasting or intending to last or function indefinitely as opposed to temporarily”, or “lasting or meant to last only for a limited time”. It therefore “bears the sense of a weakened condition lasting into the indefinite future without any end limit, as opposed to one predicted to have some defined end”. For example, see Bos Estate v. James, [1995] O.J. No. 598 (Gen.Div.), Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.), and Brak v. Walsh, supra.

b. Permanence of injury also is established where a limitation in function is unlikely to improve for the indefinite future. See Hartwick v. Simswer, supra, Rizzo v. Johnson (2006), 82 O.R. (3d) 633 (S.C.J.), and Brak v. Walsh, supra.

c. Although there may be situations where the permanent nature of the impairment is readily apparent, (e.g., complete loss of a limb or eye), other cases demand appropriate evidence that a condition will continue into the indefinite future. Mere passage of time, without evidentiary criteria to gauge or assess its significance, (e.g., a medical perspective regarding the injuries sustained and expectations of recovery in the normal course of events), is insufficient to establish a substantial possibility that the impairments are permanent. The question of whether or not an impairment is permanent should be determined on the basis of objective medical evidence. See Seguin v. Vandinther, [2002] O.J. No. 3719 (S.C.J.), at paragraphs 41 and 43.

[21] Although not expressly included or defined as part of these enumerated criteria, the relevant provisions of the Insurance Act, supra, also effectively make existence of injury and impairment, and causation of such injury by the relevant accident, additional pre-conditions of meeting the statutory threshold for litigation.

[22] In relation to the existence and extent of injury and impairment:

a. As indicated in the primary legislative provisions set forth above, the threshold exceptions for litigation created by s.267(3) and s.267.5(5) of the Insurance Act, supra, are entirely dependent on the existence of an injury and associated impairment, the qualities and impact of which then are examined to determine whether or not the threshold has been met. Both the existence and extent of an alleged injury and associated impairment therefore necessarily form a fundamental component of what a plaintiff must establish to demonstrate satisfaction of the litigation threshold.

b. The presence of “objective findings” may make it easier to establish injury and impairment in the sense required, but the existence of such findings is not necessary. The reality is that some injuries can be diagnosed based on objective findings, while others must be based on a patient’s subjective complaints. The “threshold” legislation does not change the process by which courts traditionally have weighed and assessed evidence to make determinations about the existence, nature and extent of injury. See Meyer v. Bright, supra, and Chrappa v. Ohm, [1996] O.J. No. 1663 (S.C.J.).

c. The Supreme Court of Canada has recognized the reality of chronic pain and related medical conditions, but simultaneously has acknowledged that, by definition, the existence of chronic pain is not supported by objective findings at the site of an injury, (at least under current medical techniques), such that those suffering from chronic pain often are subjected to persistent suspicions of malingering; see Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, [2003] 2 S.C.R. 504. In the context of “threshold” determinations, where the existence and extent of injury and associated impairment are therefore highly dependent on subjective reports of chronic pain, (on which treating physicians and others rely), credibility of the claimant often assumes paramount importance. See, for example, Murcell v. Leclair, [2009] O.J. No. 4809 (S.C.J.), Smith v. Declute, [2012] O.J. No. 2644 (S.C.J.), and Jennings v. Latendresse, [2012] O.J. No. 5892 (S.C.J.).

[23] In relation to causation:

a. As also indicated in the legislative provisions set forth above, the threshold exceptions for litigation created by s.267.5(3) and 267.5(5) of the Insurance Act, supra, each effectively incorporates a causation requirement. In particular, the exceptions do not apply unless the specified impairments exist or occur “as a result of the use or operation of the automobile”. Demonstration of causation therefore is included in the elements a plaintiff must establish to satisfy the threshold for litigation.

b. The plaintiff’s burden in that regard is reinforced by the provisions of s.4.3(1)(4) of O.Reg 461/96, which provides that the evidence of a physician shall be adduced in support of any claim that the threshold has been satisfied, and must include a conclusion that the impairment was directly or indirectly sustained as the result of the use or operation of an automobile.

c. Causation in the context of “threshold” determinations should be determined by application of the same legal principles outlined by the Supreme Court of Canada for resolution of causation issues generally; see Bisier v. Thorimbert, [2006] O.J. No. 4026 (S.C.J.). This would include the Supreme Court’s relatively recent pronouncements and clarifications in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.

d. In the context of “threshold” determinations, adequate proof of causation also may turn significantly on the credibility and reliability of a claimant; e.g., where the claimant provides a subjective account alleging that his or her symptoms were brought about by the underlying accident and not by some other stressful event. See, for example, Tassone-Legace v. Vavala, [2002] O.J. No. 2220 (S.C.J.).

[24] With the above considerations in mind, I now turn to application of these general principles and observations in this particular case.

Application

[25] In broad terms, Ms Mayer’s physical injuries and complaints caused by the accident were said to include:

a. soft tissue injuries to her neck, shoulders and back, some or all of which may have resolved within a relatively short time after the accident;

b. injuries to her lumbar spine, including disc bulging and herniation which had waxed and waned, along with an annular tear, (conditions which do not seem to be disputed in terms of existence, as opposed to causation), as well as consequential problems to surrounding nerves leading to further complications such as widespread radiating pain, into her legs and elsewhere, and chronic low back pain and/or fibromyalgia and chronic pain syndrome, (the existence of which is disputed); and

c. whether related to the lumbar spine problems or not, disputed chronic low back pain, fibromyalgia and chronic pain syndrome.

[26] These various problems were said to have resulted in other disputed conditions and challenges, including sleep deprivation, limitations on movement, depression and anxiety.

[27] In my view, there was evidence lending objective support to the existence of such conditions and complaints. For example:

• Objective findings and depictions, (most notably the results of MRI scans), indicated that the disc bulging and herniation experienced by Ms Mayer were visible and real.
• Photographs clearly showed visible “pulling up” or protuberance, (swelling or bulging out), of muscles on one side of Ms Mayer’s back compared to the other. In evidence that was not challenged or disputed, Dr Delaney, the plaintiffs’ medical expert, indicated that this would be very difficult, if not “nigh unto impossible”, to bring about voluntarily in order to exaggerate symptoms or complaints. Palpitation testing also seemed to provide objective evidence of muscle swelling.
• Dr Delaney, Dr Patel, (Ms Mayer’s treating physician and a chronic pain specialist), and occupational therapists working with Ms Mayer outlined methodology, incorporated into physical testing and functional ability assessments, to detect inconsistent effort or inappropriate and exaggerated responses. In this case, such methods did not indicate any concerns. Nor, during scores of visits to Dr Patel’s office, did he or his staff observe, (directly or indirectly through office surveillance cameras), any behaviour inconsistent with Ms Mayer’s subjective complaints.
• In defence surveillance video taken when Ms Mayer apparently was unaware of events being recorded, she at times clearly seemed to walk with a limp or uneven gait, resting, or leaning on things like walls and shopping carts for support.
• Considerable amounts of medication had been prescribed for and apparently consumed by Ms Mayer since the accident, which seemed to reflect genuine complaints of pain and requests for relief.

[28] However, the defendants relied on the undeniable reality that the existence and extent of many of Ms Mayer’s complaints necessarily were grounded, in large measure, in highly subjective “self-reporting” accounts of pain and other feelings which emanated directly or indirectly from Ms Mayer and/or those close to her, (including her estranged spouse and fellow plaintiff Mr Welch, or her niece and close friend Ms Morin Goss).

[29] This inherently made credibility a serious issue in this case.

[30] In particular, the defence contended that such reports were inaccurate and/or exaggerated by self-interest or loyalty of others to Ms Mayer, and that this in turn undermined the reliability of treating and examining physicians, therapists and other experts, who based their reports and recommendations in whole or in part on the information provided directly or indirectly by Ms Mayer.

[31] In that regard:

• Numerous professionals who gave evidence in this case, (including Dr Patel and Dr Delaney), acknowledged that fabrication and exaggeration of subjective complaints in such cases is not unknown, and that even those genuinely suffering from conditions are sometimes inclined to “oversell” their pain in an effort to convince physicians and others that their pain is real. For example, although clearly inclined to believe the reality of Ms Mayer’s complaints, Dr Delaney noted the difficulty of accepting, at face value, that Ms Mayer was experiencing constant pain on a scale of 10 out 10, (defined as a constant feeling of having a limb amputated without anesthetic). This did not mean that reports of pain should be discounted entirely, but did underscore the subjectivity and potential unreliability of taking pain reports by a claimant such as Ms Mayer at face value.
• The defence relied on an activity log or diary maintained by Ms Mayer, which mentioned Ms Mayer doing various activities, and going on various social and other outings, after the accident. Such entries offered indications that her life was far less constrained by her alleged physical problems than some of her statements at other times after the accident might suggest, (although other entries in the diary arguably were consistent with her complaints).
• The defence also relied heavily on surveillance video. This showed Ms Mayer spending time outside of her home, walking and standing for periods of time in excess of the tolerances suggested to and relied upon by others, (sometimes without any apparent abnormal quality such as a limp or other gait restriction), going up and down stairs, squatting and bending, lifting and pushing various objects of unknown weight, (but also the obviously considerable and vigorous task of pushing her disabled daughter and her chair up a steep ramp on at least one occasion), performing various other movements, and engaging in various activities and tasks, (shopping, dog walking and taking public transport), all of which, the defendants argued, were not indicative of a person in constant pain or largely housebound. Moreover, all of this was said to contradict, at least to some extent, Ms Mayer’s sworn evidence on discovery as to her “typical” days, and indications in words or conduct made or presented to physicians and others such as Ms Musgrave, (the occupational therapist who carried out a functional abilities evaluation).

[32] On the other hand:

• Ms Mayer emphasized in her testimony that she is in constant pain, even if it cannot be seen externally, and that she is working through it to accomplish certain tasks – such as sitting in court for an extended period, giving her testimony.
• The plaintiffs also pointed to the fact that the defence surveillance depicted only a very small fraction of the total time over which Ms Mayer was being watched, arguably warranting an inference that she was doing little or nothing that was remarkable, or inconsistent with her alleged conditions and disability, for the majority of that time.
• The plaintiffs emphasized that the incident of Ms Mayer pushing her daughter and daughter’s wheelchair up the ramp was an isolated “one time” incident, done out of necessity and a mother’s concern for her child, (as Mr Welch and others were not available to help bring Alicia in from the cold at that time), and that it just happened to be caught on video that day.
• More generally, Ms Mayer and Ms Musgrove emphasized that the demonstrated ability to do an activity once or from time to time does not necessarily mean that it can or should be done regularly, or on a more extended basis, by a person in Ms Mayer’s alleged condition – as might be required by an employer.
• Similarly, Ms Mayer emphasized that she has “good days” and “bad days”, and the fact that she may be able to do activities on a “good day” does not mean that she is not in pain, or that she does not “pay for it” later, by experiencing pain resulting from over-exertion. This was a phenomenon and possibility which Dr Patel, Dr Delaney and indeed Dr Deathe all acknowledged as something commonly reported by those suffering from chronic pain. This in turn raised an obvious question as to whether Ms Mayer’s situation and arguably inconsistent demonstrations of ability genuinely fell within that acknowledged phenomenon, or simply provided a convenient explanation behind which Ms Mayer was sheltering to neutralize evidence potentially harmful to her case.

[33] In short, this case presented fundamental questions of credibility, with substantial evidence offered in support of the competing contentions.

[34] On balance, and despite the extreme terms in which she occasionally described her complaints to others, I nevertheless was inclined to accept that Ms Mayer generally was credible, and that her subjective reports of pain and difficulty were both accurate and sincere.

[35] While not attempting any exhaustive outline of my reasons for doing so, they include not only reliance on the considerations set forth in paragraphs 27 and 32, but also the following:

a. In my view, the surveillance relied upon by the defence was not particularly damning, especially in comparison with that which substantially undermined the credibility of other plaintiffs in other cases to which I was referred. In particular:

i. This was not a case where the plaintiff had sworn under oath or indicated to her physicians that she was categorically or utterly incapable of doing certain things, only to be confronted with blatant and glaring contradictions caught on surveillance recordings. To the contrary, the relevant discovery answers and indications relied upon by the defence were less than absolute. For example, on discovery, the defence asked only for descriptions of a “typical” day at a particular point in time, thereby leaving open the obvious possibility that the surveillance captured atypical and perhaps rare moments of activity; (a possibility which in my view strengthened to an inferential probability when I factored into consideration that only a minute fraction of the total surveillance time commissioned by the defence generated any video upon which they were intent to rely). In the result, I thought the surveillance did little to substantially undermine Ms Mayer’s credibility.

ii. With the exception of the ramp incident, most of the activities depicted in the video that was relied upon by the defence seemed relatively benign; e.g., gentle walking, lifting and moving of relatively small and light objects, ascending and descending only 2-3 stairs, or holding a very small dog on a leash. As for the ramp incident, Ms Mayer provided an explanation which in my opinion was both reasonable and credible in the circumstances. In particular, it was entirely consistent with ample indications throughout the evidence that Ms Mayer was willing to sacrifice her own interests to those of her disabled daughter whenever that proved necessary.

iii. As noted above, numerous aspects of even the limited surveillance seemed to support rather than undermine Ms Mayer’s credibility. In particular, in the absence of any indication whatsoever that she was aware of the surveillance, there are clear indications in my opinion of impaired ability to walk, reliance on objects for support, and the need for period rest even in public places where companions were required to stand and wait.

b. To me, the diary entries similarly were either ambivalent or of limited value, insofar as they focused on a limited time period, and contained indications of both activity and limitation/restrictions.

c. In my view, Ms Mayer’s presentation at trial did not suggest exaggeration, overstatement and a desire to overreach in the presentation of her case. To the contrary, while her answers were spontaneous, they also were somewhat soft-spoken and understated. Her overall affect, in the presence of the jury and otherwise, was that of someone who was weary and who did not really wish to be at trial. Indeed, apart from her attendance to give testimony, and a short-lived appearance at the commencement of my charge, Ms Mayer was not present for most of the trial.

d. On the whole, having regard to the particular circumstances of this case, I found the defence theory of deliberate and sustained malingering implausible. In that regard, I was influenced in particular by Ms Mayer’s obvious, long-standing and over-riding concerns about keeping her daughter at home and out of institutional care. Expression of such concerns surfaced repeatedly in evidence of life before and after the accident. With that pervasive backdrop in mind, I found it hard to believe that, in the wake of a somewhat modest accident, and at a time when her husband had been laid off from his employment with no alternate work on the horizon, Ms Mayer made a conscious decision to deliberately abandon her existing stable employment and the principal source of family income, and embark on a sustained 4-5 year period of constant malingering and false complaints, with no return to any form of work, a progressive descent into financial straits, and the fostering of tensions that eventually drove her husband and major source of care support away - - all of which have endangered Ms Mayer’s ability to keep her daughter at home - - in the simple hope that there might possibly be some form of litigated damages award somewhere far down the road.

[36] Contrary to the submissions of the defence, I therefore believe Ms Mayer has been experiencing, since the accident, physical problems, limitations and impairments that are quite real.

[37] That fundamental assessment of credibility has, in turn, other implications for the required threshold analysis. These include the following:

a. Consistent with that credibility finding, I similarly am disposed to believe Ms Mayer’s claim that she was asymptomatic prior to the accident. In my view, and the views of Dr Patel, Delaney and even Dr Deathe, such a reality in turn supports a finding that, at the very least, her sustained low back pain – which has now become chronic - was caused by the motor vehicle accident. (I am not convinced that Ms Mayer’s disc bulging and herniation – which were confirmed only many months after the accident and which now apparently in remission – similarly were caused by the accident. To the contrary, in that regard, I prefer and accept the evidence of the defendants’ accident reconstruction and biomechanics experts that the forces created by the underlying accident were minimal and insufficient to cause such difficulties, and Dr Deathe’s evidence that they were likely caused instead by pre-existing degenerative disc disease and some other unrelated movement trigger. Still, that leaves the chronic back pain which, even according to Dr Deathe, was likely caused by the accident, on a balance of probabilities, and capable in turn of becoming more widespread.)

b. I similarly am disposed to believe Ms Mayer’s claim that her back pain has indeed, at the very least, substantially interfered with most of the usual activities of her daily living, within the meaning of s.4.2(1)1(iii) of O.Reg. 491/96, and the authorities described above. In particular, if Ms Mayer, Mr Welch and Ms Morin-Goss are telling the truth, (and I believe they are), then symptoms associated with Ms Mayer’s chronic low back pain are indeed well beyond “tolerable” pain and discomfort, and are instead having a significant impact on her enjoyment of life which has manifested itself in various pervasive ways; e.g., restricting her ability to continue with employment that involved extended sitting, care for her daughter, perform housekeeping, enjoy intimacy with her spouse, socialize, go on outings, and sleep. As the components of s.4.2(1)1 of O.Reg. 491/96 are alternatives, rather than cumulative requirements which must each be satisfied, this makes it unnecessary for me to determine whether the circumstances of s.4.2(1)1(i) are also satisfied in the circumstances. However, I note in passing that the evidence in that regard was, in my view, unsatisfactory in term of the plaintiffs satisfying their burden in that regard. In particular, there was evidence suggesting the possibility of reasonable accommodation by Ms Mayer’s employer, (Lifetouch), which in turn suggested that Ms Mayer should have made more reasonable efforts in turn to make use of such accommodation. In particular, the employer’s representative, Ms Veenhof, seemed to indicate that further accommodation was a possibility, (in terms of providing such things as an ergonomic chair, periodic breaks and opportunities to stand), and that it might have facilitated a return to some level of work, (so long as Ms Mayer’s condition did not entail an inability to sit at all, or on a regular intermittent basis).

c. Once one accepts the validity and accuracy of Ms Mayer’s subjective complaints and reports, it seems to me that the requirements of s.4.2(1)3 are also satisfied in the circumstances, at least insofar as Ms Mayer’s chronic low back pain is concerned. In particular, Ms Mayer has been complaining of low back pain and its extremely debilitating effects since the day of the accident, which in my view satisfies the demands of s.4.2(1)3(i) and (ii), and I accept the expert evidence of Dr Patel and Dr Delaney that, 4-5 years out from the accident, Ms Mayer’s condition is expected to continue without substantial improvement, for the indefinite future, thereby satisfying the demands of s.4.2(1)3(iii). Although the defence suggested that Ms Mayer had not been “reasonably participating” in recommended treatment of the impairment, I was not persuaded, on the evidence relating to this “failure to mitigate” argument, that this was the case. In that regard, the defence emphasized that Ms Mayer had missed numerous recommended and scheduled appointments for treatment; e.g., for therapy offered by the Canadian Back Institute, for counseling sessions with her psychologist Dr Benn, and to be seen by a rheumatologist, Dr Hart, and that all of these recommended treatments had been approved by Ms Mayer’s disability insurer, thereby ensuring that they would be funded. In response, however, Ms Mayer vehemently asserted that she never willingly missed a recommended treatment appointment, and that her failures in that regard were in fact due to circumstances beyond her control, such as difficulties with transportation, (an assertion which Dr Patel seemed to support), or overwhelming feelings of incapacity and/or depression. I also accept Dr Delaney’s evidence that missing such appointments likely would not have made much of a difference in any event, especially if Ms Mayer already had experienced the onset of chronic pain.

[38] As the defendants conceded satisfaction of s.4.2(1)2 of O.Reg. 491/96 in the circumstances of this case, (i.e., that the alleged impairments related to important functions in the sense required), all three requirements of s.4.2(1 of O.Reg 491/96 therefore have been satisfied.

[39] In particular, in my view, if only because of her chronic low back pain, Ms Mayer suffers from permanent serious impairment of an important physical function, which in turn satisfies the requirements of s.267.5(3)(b) and s.267.5(5)(b) of the Insurance Act, supra.

[40] It was common ground, during argument of the threshold motion before me, that once Ms Mayer had brought herself within a threshold exception permitting litigation, she had cleared that bar for all purposes.

Relation between jury verdict and threshold determination

[41] Before leaving this matter, it may be appropriate and desirable to make certain final comments, in light of a request made by plaintiff counsel, (following my ruling on the defendants’ threshold motion after the jury verdict but before the motion for judgment), that the jury’s verdict be rejected as unreasonable.

[42] As noted above, the jury’s verdict was one factor I wished to consider in making my independent threshold determination.

[43] This was because there clearly was considerable overlap, in my view, between:

a. The jury’s necessary consideration of such matters as the existence and extent of the bodily injuries and associated disabilities alleged by Ms Mayer, and whether any such injuries were caused by the accident; and

b. My necessary consideration of such matters as whether Ms Mayer did in fact have “bodily injuries” and “impairments”, and whether they “arose directly or indirectly” or “as a result of” the use or operation of a motor vehicle, as alleged.

[44] Such overlap obviously gives rise to the distinct possibility that a jury, charged with factual determinations in such cases, and a trial judge, charged with making a legal threshold ruling effectively requiring underlying factual determinations of a similar nature, may perceive such matters differently and arrive at separate conclusions that appear to be inconsistent.

[45] However, that is an unavoidable reality of our civil jury system and the superimposed legislative scheme now embodied in the threshold provisions of the Insurance Act, supra.

[46] While consistency between jury verdicts and threshold determinations is preferable in the abstract, in my view it must not be achieved or promoted by a trial judge simply abdicating his or her legislated responsibility to make an independent determination; for example, by simply deferring to the jury’s apparent perception of a matter.

[47] In this particular case, the jury and I may have had different perceptions of the case; for example, in terms of our respective assessments of whether Ms Mayer’s subjective complaints of pain and disability were sincere and accurate, and/or the extent to which any such injuries and loss were caused by the accident.

[48] However, this is not to say that the jury’s verdict was unreasonable, (as plaintiff counsel asked me to find, and I declined to find).

[49] As noted and explained at some length in the course of my extended jury charge, the evidence led at trial was by no means one-sided, either in relation to the existence and extent of Ms Mayer’s alleged injuries or in relation to causation. To the contrary, there were, in my opinion, ample grounds on which a trier of fact, acting reasonable and judicially, legitimately may have decided such issues in a manner favouring or not favouring the plaintiffs.

[50] While the jury may have taken a different view than mine or vice versa, that does not mean the jury’s view was unreasonable. As the trier of fact, the jury was perfectly entitled to reach its own independent and different assessments of credibility and/or causation, based on its view of the evidence.

“Justice I. F. Leach”

Justice I. F. Leach

DATE: October 31, 2013