COURT FILE NO.: 08-CV-350619 PD3

DATE: 20140303

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kaiser Khan, Plaintiff

– AND –

Diane Sinclair and Bruce Sinclair, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Kaiser Kahn, in person

James Dunn and H. Nguyen, for the Defendants

HEARD: February 28, 2014

ENDORSEMENT - THRESHOLD MOTION

[1] At the end of a five day trial concerning a motor vehicle accident, when the jury had retired to deliberate, the Defendants brought a “threshold” motion. The motion was fully argued on February 28, 2014, the last afternoon of the trial, and I reserved judgment until this morning.

[2] Ms. Nguyen, for the Defendants, argues that the Plaintiff’s claim does not fall within the relevant exception to the immunity from liability provided in section 267.5(5)(b) of the Insurance Act, RSO 1990, c. I.8 (the “Act”).

[3] Although the Plaintiff initially claimed for both general and special damages, there was no evidence adduced at trial to support any claim for lost income or health care-related expenses incurred by the Plaintiff. The only damages for which there was enough evidence to go to the jury were claims for non-pecuniary general damages relating to what the Plaintiff would characterize as a permanent serious impairment of an important physical, mental or psychological function.

[4] Section 267.5(5)(b) of the Act provides:

Protection from liability non-pecuniary loss

(5) Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,…

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

[5] In Myer v Bright, 1993 3389 (ON CA), [1993] OJ No 2446, the Court of Appeal set out a conjunctive, three-part test for meeting the standard required under this section of the Act: a) has the Plaintiff sustained a permanent impairment; b) if so, is the impaired function an important one; and c) if so, is the impairment of the important function serious? This test was effectively codified and elaborated on in Ontario Regulation 461/96 (the “Regulation”), which came into force on October 1, 2003.

[6] Among other things, the Regulation makes it clear that a person advancing a claim such as that of the Plaintiff must provide evidence that proves that he has suffered a serious impairment of an important physical, mental or psychological function. Furthermore, section 4.3 of the Regulation is very specific on the type of evidence that must be adduced to this end:

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c ) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine

(4) 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) In addition to the evidence of the physician the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

[Emphasis added.]

[7] The Plaintiff did not adduce the evidence of any physician at trial. There were four witnesses for the Plaintiff: the Plaintiff himself, his spouse, his father, and an occupational therapist who performed a home and work assessment for the Plaintiff’s insurer in the aftermath of the accident. None of these witnesses was a licensed physician, and none of them provided medical evidence in the case. The Plaintiff advised during the trial that he had one or more doctors lined up to give evidence on his behalf, but in the end none of them appeared in court to testify.

[8] The witnesses who did appear, including the occupational therapist who gave evidence as to the workplace and household needs of the Plaintiff shortly after the accident, are not trained for and experienced in the assessment or treatment of the type of impairment that is alleged. Since there was no evidence from a qualified physician or medical expert, no one opined or concluded that the impairment alleged by the Plaintiff is directly or indirectly sustained as the result of the use or operation of an automobile.

[9] Ms. Nguyen submits that a “physician”, as that term is used in the Regulation, is to be understood in its ordinary meaning, as found in the Merriam Webster dictionary, of “one educated, clinically experienced, and licensed to practice medicine.” Although the Plaintiff’s spouse and father both gave compelling testimony about the injuries that the Plaintiff has suffered, their lay descriptions do not count as the type of medical evidence required by section 4.3(2) of the Regulation.

[10] Ms. Nguyen further submits that the Regulation not only requires a licensed medical practitioner, but is very specific about the type of physician that can provide the requisite evidence. Section 4.3(3)(a) of the Regulation states that the requisite medical evidence must be provided by a specialist in the actual field implicated by the Plaintiff’s alleged impairment; this, she argues, shows that the government in promulgating the Regulation was very concerned that specialized medical evidence be adduced in support of any claim relating to a motor vehicle accident.

[11] The strict evidentiary requirements of section 4.3 of the Regulation for establishing the criteria for liability under section 267.5(5) of the Act may produce severe consequences for claimants in motor vehicle cases. Those consequences, however, appear to lie at the very heart of the policy embodied by the legislative provisions. In Page v Primeau, [2005] OJ No 4693, the court had occasion to analyze the intent and impact of the Regulation on persons claiming for injuries incurred in automobile collisions. At para 34, the court observed that, “the legislative purpose and intent of section 267.5(5) is to ‘reduce substantially the number of personal injury claims coming before the courts as a result of motor vehicle accidents’”.

[12] This policy goal is truly unfortunate for the Plaintiff. I have great sympathy for him and his family. However, it is not legally cognizable for a plaintiff to complain that the Act and the Regulation thereunder have the effect of eliminating his claim. That was the legislation’s very purpose. Claims not supported by a physician’s evidence do not meet the statutory threshold and cannot succeed.

[13] This conclusion is further supported by the Divisional Court’s judgment in Gyorffy v Drury, 2013 ONSC 1929. There, the court had to consider the nature of the corroborating evidence required by section 4.3(5) of the Regulation. The court accepted that the evidence of a plaintiff himself could corroborate the physician’s evidence of permanent serious impairment, but it was clear that first and foremost the evidence of a physician is required.

[14] The evidence of lay persons such as the Plaintiff and his family members can only be adduced as further support for a physician’s medical evidence, not in place of it. As the Divisional Court put it at para 18 of Gyorffy, “s. 4.3, read as a whole, is concerned primarily with the evidence of physicians and the requirements their evidence must satisfy. It requires that there be such evidence ‘in addition to any other evidence’”.

[15] Ms. Nguyen correctly points out that section 4.3 of the Regulation contains no relieving provision. The failure to adduce a physician’s evidence cannot be taken as a mere procedural oversight; rather, it is a failure to fulfill a key evidentiary requirement, specifically set out in the governing legislative instrument.

[16] Having failed to adduce any medical evidence from a physician, the Plaintiff has failed to support the claim that he suffered permanent serious impairment of an important physical, mental or psychological function. Accordingly, the Defendants cannot be held liable for the Plaintiff’s non-pecuniary losses.

[17] The Defendants shall have a declaration that the Plaintiff’s claims for non-pecuniary general damages are barred as a result of his failure to establish that his injuries fall within the exception to section 267.5(5)(b) of the Act. The need for the Plaintiff’s approval of the formal order as to form and content is hereby dispensed with.

[18] Costs of the motion will be deferred to be considered with costs of the trial.

Morgan J.

Date: March 3, 2014