COURT FILE NO.: 174/11
DATE: 2014/04/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: STEVEN GILBERT (Plaintiff)
- and –
MICHAEL SCOTT SOUTH, CULLEN PRATT, EDWARD BROOMFIELD and YORK FIRE & CASUALTY INSURANCE COMPANY (Defendants)
BEFORE: JUSTICE I. F. LEACH
COUNSEL: Richard J.T. Shaheen, for the Plaintiff
Bruce R. Mitchell for the defendant York Fire & Casualty Insurance Company
HEARD: April 3, 2014
E N D O R S E M E N T
(Defendant’s motion for ruling on statutory threshold)
[1] This action stemmed from a motor vehicle accident in April of 2010 and proceeded to resolution by a civil jury trial; a trial which began with selection of a jury on March 17, 2014, and concluded with a jury verdict on April 4, 2014.
Background to motion and ruling
[2] By way of general context:
At the time of the accident, the plaintiff Mr Gilbert was employed as a letter carrier by Canada Post.
The accident occurred when Mr Gilbert, driving to a soccer practice, was stopped in his car at an intersection and waiting to turn left. Another car, driven by the defendant Cullen Brant and owned by the defendant Edward Broomfield, was stopped behind Mr Gilbert’s vehicle. A third car, driven by the defendant Michael South and approaching from behind the two stopped cars, ran into the rear of the Brant/Broomfield vehicle, which in turn then ran into the rear of Mr Gilbert’s car.
It was not disputed that, between the time of the accident and the date of trial almost four years later, Mr Gilbert successively transitioned into shorter and less challenging delivery routes as a letter carrier, before then transitioning into a light duties sorting clerk and retail position inside the Woodstock post office.
There was also considerable and generally unchallenged evidence indicating that Mr Gilbert had given up numerous family, athletic and social activities between the motor vehicle accident and time of trial, and was now leading a largely sedentary and somewhat isolated life.
Mr Gilbert claimed that these successive changes in his job duties, (towards less enjoyable, flexible and financially rewarding work), probable and possible loss of future employment, and significant permanent disruption of his formerly active family, athletic and social life, all stemmed from injuries sustained in the motor vehicle accident. In particular, it was the plaintiff’s contention that Mr Gilbert sustained various injuries in the motor vehicle accident which resulted in pain, (and debilitating low back pain especially), that began immediately after the accident but continued without interruption and then became chronic. This in turn was said to have caused numerous physical limitations and restrictions, as well as psychological disorders.
By the time of trial, the defendant South had been noted in default, and the defendants Pratt and Broomfield had been released from the action on consent, (with corresponding orders of dismissal). The only remaining defendant contesting the action was York Fire & Casualty Insurance Company (“York Fire”), the plaintiff’s own insurer. In that regard:
o York Fire was the plaintiff’s own insurer, whose policy of automobile insurance issued to the plaintiff included an OPCF 44R “family protection coverage” endorsement. Pursuant to that endorsement, York Fire had an acknowledged obligation to provide certain coverage to Mr Gilbert in relation to any damages sustained by reason of a motor vehicle accident caused by an uninsured driver.
o It was agreed and acknowledged that, because the accident giving rise to this litigation was caused entirely by Michael South, and Mr South was driving without insurance, the plaintiff was entitled to look to his own insurer for recovery in relation to the accident, pursuant to the OPCF 44R “family protection coverage” endorsement issued with Mr Gilbert’s policy.
o In effect, York Fire therefore “stepped into the shoes” of Mr South, as far as liability for the accident is concerned.
The plaintiff and York Fire nevertheless were unable to agree on the quantum of damages caused by the motor vehicle accident. Causation, in particular, was very much in dispute. In that regard:
o As noted above, the plaintiff took the position, supported by expert opinion, that the vast majority of his alleged physical and psychological difficulties, restrictions and disabilities stemmed from the underlying motor vehicle accident in April of 2010.
o However, it was York Fire’s contention, supported by contrary expert opinion, that most of the plaintiff’s problems were the result of other independent conditions and developments. In particular, York Fire took the position that the motor vehicle accident caused the plaintiff to suffer, at most, cervical and right shoulder soft tissue injuries that largely should have healed within 3-6 months after the accident, leaving Mr Gilbert with only modest residual discomfort. Mr Gilbert’s other complaints and conditions, and his debilitating low back pain in particular, were said to stem from a pre-existing back condition and/or various work-related mishaps that made his low back symptomatic for reasons entirely unrelated to the motor vehicle accident.
[3] During the course of trial, counsel for the defendant York Fire orally indicated his client’s intention to move for a judicial ruling that certain claims by the plaintiff did not meet the statutory litigation “threshold” established by provisions of the Insurance Act, R.S.O. 1990, c.I.8.
[4] No written motion record was tendered by the moving defendant. However, a subsequent factum confirmed that the defendant essentially was requesting a judicial determination that the plaintiff’s 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, supra, 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.
[5] 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.
[6] 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.
[7] Pursuant to the discretion confirmed by our Court of Appeal in Kasap v. MacCallum, 2001 CanLII 7964 (ON CA), [2001] O.J. No. 1719 (C.A.), I directed argument of York Fire’s threshold 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.
[8] 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.
[9] The jury’s verdict nevertheless was a factor that I wished to consider.
[10] On April 4, 2014, the jury returned a verdict strongly suggesting its acceptance of the proposition that the motor vehicle accident had caused the plaintiff to experience at least some significant and lasting injuries.
[11] In particular, the jury awarded the following:
a. General damages in the amount of $70,000, (reduced to $40,000 after application of the statutorily mandated deductible);
b. Future care cost damages, (for the plaintiff’s future treatment, medication, rehabilitation, intervention and aids from the date of trial onwards), in the amount of $57,250;
c. Damages for loss of housekeeping and handyman capacity, (including home maintenance costs, seasonal costs and handyman allowance from the date of trial onwards), in the amount of $85,000;
d. Pre-trial income loss damages, (modest in any event because the plaintiff has managed to keep working since the motor vehicle accident, albeit with modified job responsibilities and inability to earn certain additional income), in the amount of $5,800; and
e. Damages for loss of future income (including benefits and pension), earning capacity and competitive advantage in the amount of $250,000.
[12] 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 plaintiff had met the statutory threshold, for written reasons to follow. These are those reasons.
Law – Legislation and general principles
[13] The relevant “threshold” provisions of the Insurance Act, supra, are set out above.
[14] I had occasion to review and consider those provisions, as interpreted by numerous judicial authorities and supplemented by the subordinate legislation found in s.4.2(1) of O.Reg. 491/96, at length in Mayer v. 1474479 Ontario Inc., [2014] I.L.R. I-5518 (S.C.J.).
[15] That was the most recent “threshold” decision supplied to me by counsel in relation to the present motion and, although I certainly have reviewed and considered the helpful additional authorities submitted by the parties, I think the summary of relevant legislation and principles outlined in Mayer generally still applies.
[16] While confirming that I have regard to that summary, and intend to apply the legislation and principles set out therein, I otherwise do not intend to repeat it in its entirety here.
Party positions
[17] In broad terms, the plaintiff, (who has the burden of proving that he falls within the legislated exceptions for the advancement of such claims), relies on all of the alleged injuries he attributes to the motor vehicle accident, as confirmed by, inter alia, the assessment and opinion of his medical expert Dr Khumbare. These include the following:
chronic myofascial injury of the cervical spine;
post traumatic stress headaches;
right shoulder strain;
chronic myofascial injuries of the lumbar spine; and
psychological distress.
[18] It was the plaintiff’s contention that the alleged injuries to Mr Gilbert’s lumbar spine alone would suffice to meet the criteria of the legislated “threshold” provisions, insofar as the plaintiff’s evidence clearly showed it to be a permanent and serious impairment of an important physical function, continuing from the time of the accident and now of indefinite duration, that has substantially interfered with Mr Gilbert’s ability to continue his usual pre-accident employment duties and usual living activities.
[19] However, it was the plaintiff’s “fall back” position that, even if one took the more narrow view of causation advanced by the defendant York Fire, the acknowledged soft tissue injuries to Mr Gilbert’s neck and right shoulder would meet the requirements of the legislated “threshold”.
[20] In particular, the plaintiff says there is ample evidence to show that Mr Gilbert was experiencing accident-related pain sufficient to interfere with his employment duties and usual living activities even before the subsequent work-related mishaps relied upon by the defendant as suggested independent causes of Mr Gilbert’s low back pain and more serious right shoulder problems.
[21] In other words, the plaintiff says that, even if the injuries caused by the motor vehicle accident were limited to his neck and shoulder problems, they alone would be sufficient to satisfy the requirements of the “threshold” provisions.
[22] In response, defence counsel representing York Fire candidly acknowledged that “causation is key” to the threshold determination in this case.
[23] In particular, the defendant accepts that, if Mr Gilbert’s debilitating low back pain was caused by the accident, then it likely satisfies the other criteria of the primary and subordinate legislation relating to the litigation “threshold” for such claims.
[24] However, the defendant does not accept that the plaintiff’s low back pain was directly or indirectly caused by the accident.
[25] To the contrary, as noted above, York Fire says the injuries caused by the accident were limited to relatively modest soft tissue injuries to Mr Gilbert’s neck and spine that should have left him with nothing but a minor amount of residual discomfort more than 3-6 months after the accident.
[26] Relying on authority such as Strangis v. Patafio, [2013] O.J. No. 4498, which in turn echoes similar decisions referenced in paragraph 18(b) of my decision in Mayer case, York Fire submits that these more modest injuries were the sort of conditions the relevant provisions of the Insurance Act were designed to address. In particular, although the injuries may have left Mr Gilbert with ongoing but tolerable pain or discomfort, and associated symptoms, that alone does not suffice to meet the requirements of the legislated litigation “threshold” for certain claims.
Analysis
[27] I agree with both counsel that, if caused by the relevant motor vehicle accident, the plaintiff’s chronic low back pain constitutes a “permanent serious impairment of an important physical, mental or psychological function”, within the meaning of ss.267.5(3) and 267.5(5) of the Insurance Act, supra.
[28] In particular, insofar as the requirements of s.4.2(1) of O.Reg. 489/16 are concerned:
That low back pain clearly has interfered substantially with Mr Gilbert’s ability to continue with his usual pre-accident employment, despite reasonable efforts at accommodation. Prior to the accident, Mr Gilbert regularly walked a 15-18km postal delivery route, regularly carrying weight up to and sometimes in excess of 30 pounds. Debilitating back pain was the principal cause of his reluctant requests for progressive transfer to shorter and less demanding routes, and his eventual requested reassignment to indoor clerk and retail duties. All of this reflected reasonable efforts by Mr Gilbert and his employer Canada Post to accommodate the physical impairment. Moreover, it seemed quite evident to me that Mr Gilbert’s low back pain has substantially interfered with most of his usual pre-accident activities of daily living, including his employment, his regular soccer coaching, playing and referee activities, and his otherwise routine parenting activities, household duties and family outings. The disjunctive requirements of s.4.2(1)1 of O.Reg. 489/16 are therefore satisfied on at least two grounds; i.e., ss.4.2(1)1(i) and 4.2(1)1(iii).
Based on the testimony received at trial from Gilbert and others, freedom from such low back pain unquestionably was important to his functional capacity, as such pain made it impossible for him to cope with his physically demanding letter carrier responsibilities, or continue with most aspects of the very busy and athletic family and social life he was pursuing before the motor vehicle accident. The disjunctive requirements of s.4.2(1)2 are therefore also satisfied on at least two grounds; i.e., ss.4.2(1)2(i) and 4.2(1)2(iv).
Dr Khumbare, the plaintiff’s medical expert, testified that Mr Gilbert’s low back pain is now chronic, and accordingly is expected to continue indefinitely without substantial improvement. It seemed to me that this was not seriously disputed by the defendant’s medical expert Dr Clarke, (despite his view that the cause of such pain was unrelated to the motor vehicle accident). If so, the debilitating effects of such back pain, as outlined above in relation to ss.4.2(1)1 of O.Reg. 489/16, will continue to meet the criteria outlined therein. In the circumstances, if Mr Gilbert’s low back pain has been continuous since the motor vehicle accident, (another determination relating to causation), then all the conjunctive requirements of s.4.2(1)3 of O.Reg. 489/16 will have been satisfied.
[29] In short, if Mr Gilbert’s low back pain was caused by the motor vehicle accident, and has been continuous from that time forward, then all the definitional criteria in s.4.2(1) of O.Reg 489/16 will have been satisfied.
[30] As I noted in the Mayer case:
a. 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 CanLII 33773 (ON SC), [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.).
[31] Applying those general principles and observations to this particular case, I find that the plaintiff’s chronic low back pain was caused by the motor vehicle accident, (i.e., that it would not have been experienced “but for” the accident), and that Mr Gilbert’s low back pain been continuous since the time of the accident.
[32] In that regard, my considerations include the following:
Although the defendant highlighted various injuries and ailments experienced by Mr Gilbert prior to the relevant motor vehicle accident, (including a possible T-9 compression fracture resulting from an earlier work-related “slip and fall” accident, which admittedly left Mr Gilbert with some pain in his upper back that he experienced from time to time and occasionally managed with medication), the totality of the evidence made it abundantly clear to me that none of these conditions or injuries was debilitating or having any significant impact on Mr Gilbert prior to the motor vehicle accident. To the contrary, by all accounts, Mr Gilbert was leading an extraordinarily active life in which he regularly was able, without any apparent difficulty, to manage all the demands of a very physically demanding job, as well as an extremely busy athletic and family life. Having regard to the totality of the evidence led at trial, it was quite clear to me that, to the extent Mr Gilbert developed debilitating chronic low back pain, it was not present before the motor vehicle accident – and in my view the emergency room note suggesting the contrary, (“has pain in lower back – chronic”), must have been an error; e.g., an error resulting from Mr Gilbert reporting that he was suffering low back pain in the wake of the accident, mistakenly coupled with Mr Gilbert likely indicating that he already was suffering from intermittent higher back pain as the result of his earlier slip and fall.
Despite suggestions by the defendant that the motor vehicle accident was relatively modest, (based on testimony from Mr Pratt and reliance on the comparatively low cost of repairs made to Mr Gilbert’s vehicle), I think it was more than sufficient to inflict soft tissue injuries of the lower back such as those described by Mr Gilbert, and which have since gone on to become chronic in the manner described by Dr Khumbare. Regardless of the relatively inexpensive manner in which Mr Gilbert’s car was repaired, the rear impact from the collision was sufficient, according to the testimony of Mr Lucier, (who effected the repairs), to cause a bending of the metal “bumper filler bar” running across the width of the vehicle behind its rear bumper, as well as misalignment of the vehicle’s metal trunk and a rear quarter panel. It also resulted in complete failure of the driver’s seat, which no longer remained upright and had to be replaced. All of this suggests a substantial impact, which was supported by the testimony of Mr Gilbert, (who said the impact was sufficient to send his eyeglasses on to the dashboard in front of him), and Jeannie Bekris-Lucier, (who witnessed the accident from her vehicle and said it caused Mr Gilbert’s vehicle to move forward by approximately half a car length). I preferred such evidence to that of Mr Pratt, whose suggestion of no impact at all with Mr Gilbert’s vehicle was clearly inaccurate, and probably reflective of his own indication that he was really in a state of shock after he himself was struck from behind.
Mr Gilbert himself testified that he began experiencing significant low back pain in the immediate wake of the accident; pain which he described as being at the “bottom” or “very low part of his back”, which “went right across the waist of his back and down into his legs, hip and knee”. Mr Gilbert described the pain as a “stabbing” sensation, like a “knife going in”, and he was adamant that he had never felt pain “that low or that much” before it began immediately after the accident. He also testified that this debilitating pain has never really gone away, despite his hopes to the contrary and various attempts to treat it with time, physiotherapy and medications, and that it is the principal source of his problems. In my view, Mr Gilbert gave his evidence in a very credible way, in a manner that was more self-effacing and understated than prone to exaggeration. I found his testimony to be not only credible but consistent with that of other witnesses.
In that regard, various witnesses, in addition to Mr Gilbert, gave evidence supporting a strong temporal connection between the motor vehicle accident and significant changes in Mr Gilbert’s behavior owing to apparent physical difficulties and pain not previously demonstrated. Such witnesses included his wife Kristi, daughter Shaunnie, fellow soccer coach and refereed Sean Gannon, and friend Ms Bekris-Lucier. All gave evidence indicating, in various ways, that Mr Gilbert began experiencing problems and demonstrating disability in the wake of the motor vehicle accident. This included surprising cessation of various previous activities, such as the regular extended driving and parent support he had been extending regularly to his daughter Shaunnie in her various soccer activities, all further playing and referee activity in his own adult soccer league, and all physical (as opposed to managerial) soccer coaching activities. (Although the defendant relied on testimony from Mrs Gilbert and Ms Bekris-Lucier that they realized Mr Gilbert was “no longer the same person” 6-12 months after the accident, I agree with plaintiff counsel’s view that those references need to be viewed carefully and in context. Both ladies testified in different ways that Mr Gilbert in fact began to experience problems in the wake of the accident, and made reference to the later time periods as being when they themselves realized the lasting significance of Mr Gilbert’s injuries, for different reasons. (Mrs Gilbert was struck by Mr Gilbert’s refusal to coach soccer at all anymore, and Ms Bekris-Lucier attributed her realization to the simple fact that Mr Gilbert himself realized that, despite his hopes to the contrary, his condition was unlikely to get better.)
Although the defendant’s medical expert Dr Clark placed significant reliance at trial on the hospital’s failure to order x-rays or scans of Mr Gilbert’s lower back in the wake of the accident, (as opposed to his upper spinal areas), I did not share his view that this necessarily was indicative of Mr Gilbert not complaining of low back pain immediately after the motor vehicle accident. I think it equally consistent with a concern by the treating emergency physicians that the possibility of further injury to his already damaged T-9 error needed to be investigated and hopefully eliminated, given Mr Gilbert’s previous medical history.
Similarly, although Dr Clark placed reliance at trial on what he suggested was a complete absence of recorded complaints of low back pain by Mr Gilbert after the accident and prior to later work-related mishaps, I agree with and accept the plaintiff’s view that such a suggestion effectively was negated by at least two records generated shortly after the accident; i.e., a chart forming part of the physiotherapy record prepared by the McKenzie Institute Assessment one week after the accident, (which to me clearly indicated that Mr Gilbert was complaining of pain throughout his low back area extending down to his right hip), and a Treatment Plan prepared by a physiotherapist and submitted to York Fire one week after the accident, confirming that injuries which were the “direct result” of the motor vehicle accident, requiring treatment, included “dislocation/sprain/strain of the lumbar spine”. Despite Dr Clark’s suggestions to the contrary, it seemed to me that there really is no other reasonable way to read that notation except as an indication that Mr Gilbert clearly was indicating, within one week of the motor vehicle accident, that he now was experiencing low back pain/problems as a direct result of that motor vehicle accident.
Dr Clark and the defendant suggested that Mr Gilbert’s current disability stemmed from independent work-related mishaps that took place long after the motor vehicle accident; e.g., a slip and fall literally caused by a banana peel, a slip and fall on urine left behind on a washroom floor by another Canada Post employee, and an incident where Mr Gilbert felt additional (but he says different and temporary) back strain after bending down to open the door of a grey mailbox that had been knocked on its side. However, nothing in the clinical notes or records, or the testimony of Mr Gilbert, suggested to me that the first two mishaps were of any lasting significance – and they do not explain why Mr Gilbert already had begun to demonstrate behavior changes, and the start of progression to lighter and lighter duties in his employment, before those accidents. The same is true, I think, of the later “grey box incident”, on which the defendant placed considerable reliance. Again, Mr Gilbert himself testified that this incident did not cause long-lasting aggravation of the complaints he already had in the wake of the accident. Moreover, although the defendant suggested the incident was the real motivation for Mr Gilbert’s transfer thereafter to inside duties, (as suggested by the notes and testimony of Mr Gilbert’s psychologist, Dr Bromley-Little), the reality is that Mr Gilbert had initiated the process to request such a transfer well before then, and must simply not have informed Dr Bromley-Little of the pending change until it was imminent. (Although the defendant also relied on additional indications in the clinical notes and records made by Mr Gilbert’s family physician, in December of 2010 and early January of 2011, suggesting that there had been some kind of other work-related occurrence in December of 2010 requiring treatment, and which was assigned a WSIB file number, the references are very vague, and Mr Gilbert testified that he likely was seeing his doctor not because of any particular mishap but because the problems stemming from the motor-vehicle accident had been aggravated by the weight of pre-Christmas mail he had been obliged to deliver. It struck me as a reasonable explanation. In any event, the references in question – particularly given the absence of any later or other references suggesting a marked change in condition or treatment - did not persuade me that there had been some kind of other independent intervening cause of Mr Gilbert’s condition that occurred in December of 2010.)
[33] The above is not meant to be an exhaustive list or summary of the evidence and considerations on which I rely for my view that Mr Gilbert’s debilitating low back pain was caused by the motor vehicle accident, and has been continuous since the accident.
[34] The “bottom line” is that there was more than sufficient evidence at trial, in my opinion, to warrant such conclusions – and I was persuaded that Mr Gilbert’s debilitating and continuous low back pain would not have occurred “but for” the motor vehicle accident.
[35] As all other criteria of s.4.2(1) of O.Reg. 489/16 are satisfied, for the reasons outlined above, Mr Gilbert’s debilitating low back pain constitutes a “permanent serious impairment of an important physical, mental or psychological function”, for the purpose of ss. 267.5(3) and 267.5(5) of the Insurance Act, supra. To use the vernacular, Mr Gilbert’s claims for the damages referenced by those provisions therefore meet the litigation “threshold” established therein.
[36] In the circumstances, it is not necessary for me to consider whether Mr Gilbert’s other injuries independently would have sufficed to satisfy the requirements of that threshold.
Relation between jury verdict and threshold determination
[37] As noted above, the jury’s verdict was one factor I wished to consider in making my independent threshold determination, given the considerable overlap between their task and mine – including necessary consideration of whether various injuries and damages alleged by Mr Gilbert were caused by the relevant motor vehicle accident.
[38] I commented on those overlapping duties in Mayer v. 1474479 Ontario Inc., supra, at paragraphs 41-50, noting the distinct but unavoidable possibility, created by the legislative scheme superimposed on our civil jury system, that a jury and trial judge may perceive matters differently and arrive at separate conclusions that appear to be inconsistent.
[39] In this case, it seemed to me that the jury’s independent views on causation effectively coincided with mine.
[40] I see no other reasonable inference to be drawn from the fact that, after being instructed repeatedly to consider the question of causation throughout their assessment of damages, the jury thought it appropriate to award damages that included significant sums, “arising out of the motor vehicle accident of April 27, 2010”, under various heads of damages.
[41] For example, the jury awarded the full amount of pre-trial income loss being claimed. That claim, while numerically modest in the circumstances, was premised entirely on arguments that, contrary to the opinion of the defendant’s medical expert, (accepted by the defendant’s economic loss quantification expert), Mr Gilbert’s inability to continue with his original letter carrier responsibilities and use of paid sick leave, between the accident and time of trial, stemmed from ongoing disability caused by injuries sustained in the motor vehicle accident. The jury necessarily must have rejected the causation argument being advanced by the defendant, and the opinion of the defendant’s medical expert.
[42] Similarly, the jury awarded a substantial amount of damages for various future losses – including a substantial present value sum relating to future income loss that, even on the plaintiff’s theory of the case, probably would not be experienced for many more years. (The plaintiff was only 42 years old at the time of trial. Relying on the evidence of Dr Khumbare, the plaintiff argued that he would not be able to continue working past the age of 55, which was five years short of his anticipated retirement age before the accident. The plaintiff also argued that there was an additional real and substantial risk that he might have to stop working even earlier than that - perhaps as early as the age of 47 – because his disability would make it impossible for him to survive anticipated restructuring and other developments at Canada Post.)
[43] The jury rationally could not have awarded such sums for future loss – and future income loss in particular - unless it accepted that Mr Gilbert was suffering from debilitating injuries, caused by the motor vehicle accident, that were expected to last well into the future.
[44] As noted above, I certainly did not consider myself bound by the views of the jury, in making my determination concerning the defendant’s “threshold” motion. To the contrary, as I noted in the Mayer case, at paragraph 46, I am very mindful of the legislated obligation of a trial judge to make an independent determination in that regard.
[45] In this case, however, the jury’s perception of the matter, in relation to causation, coincided with and therefore reinforced my own independently formed preliminary views, having regard to the evidence at trial.
Conclusion
[46] For the reasons set out above, I decided, as indicated at the conclusion of trial, to dismiss the defendant’s motion for a judicial determination that the plaintiff’s 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, supra.
“Justice I. F. Leach”
Justice I. F. Leach
DATE: April 22, 2014