ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-1447-11

DATE: 2014-12-30

BETWEEN:

Richard Dubreuil

– and –

Julien Lalande and Michel Lalande
Defendants

P. Poupore, for the Plaintiff

J.C. Simmons, for the Defendants

HEARD: December 9, 2014

REASONS ON SUMMARY JUDGMENT MOTION

O’NEILL, J.

A. Introduction

[1] This motion for summary judgment was argued before me on December 9, 2014, at Sudbury. The defendants moved to dismiss the plaintiff’s action on the basis that it was barred by the expiry of the two year limitation period set out in the Limitations Act, 2002. The motor vehicle accident occurred on June 19, 2007, and the plaintiff issued his statement of claim on July 29, 2011.

B. Background Facts

[2] The background facts are not in dispute. What is in dispute is the parties’ interpretation of the plaintiff’s medical status at various points between his first attendance at a walk-in clinic on the evening of the accident date, and the securing of the results of MRI testing on October 4, 2010.

[3] To provide a factual overview, I reproduce below certain paragraphs from the defendants’ supplementary factum:

1. The Defendant, Julien Lalande, was following the Plaintiff, Richard Dubreuil, when suddenly and without warning the Plaintiff’s vehicle came to an abrupt stop, as a result of which there was contact between the Defendant’s vehicle and the rear end of the Plaintiff’s vehicle.

2. The Examination for Discovery of the Plaintiff took place on April 12, 2013.

3. It is the Plaintiff’s evidence that he experienced pain to his neck within an hour after the accident of June 19, 2007, and attended at the Brady After Hours Clinic, where he saw Dr. Franklyn. The Plaintiff was prescribed painkillers and anti-inflammatory medication and advised to follow-up with his family doctor.

4. The Plaintiff testified that despite the painkillers and anti-inflammatory prescription medication, he continued to have pain in his neck and had pinching in his left shoulder akin to a pinched nerve. He further stated that this pinching sensation was something he noticed shortly after the accident, and that he had never experienced this sensation before.

5. The Plaintiff testified to seeing his chiropractor approximately twenty (20) times over the course of his treatments in 2007 and 2008. The Plaintiff stated that he paid for the treatments himself and stopped in March 2008 because they were not helping.

6. In December of 2007, the Plaintiff was playing and lifting his children when he felt a very strong pinch on the left side of his neck, which resulted in a burning sensation throughout his arms causing him to black out and drop his son.

7. The Plaintiff also stated that he experienced numbness in his hands soon after the accident, which he attributed to the accident. On or about August 7, 2007, the Plaintiff saw Dr. Bonin, his family physician, and complained of numbness in his hands since the motor vehicle accident of June 2007.

8. …, the Plaintiff testified that the pain which he attributed to the accident was affecting his ability to function at work in the spring of 2008. During his course of employment at a company called Hard-Line, the Plaintiff stated that he had to modify his physical movements in order to complete tasks which required him to use his arms above shoulder level.

9. The Plaintiff was involved in another accident on or about June 11, 2009, wherein a trailer door fell on to his right ankle. The Plaintiff stated that the pain from his neck and shoulder caused him to black-out and drop the trailer door and subsequently fall backwards, resulting in a right ankle injury.

10. On December 3, 2009, the Plaintiff was the subject of a nerve conduction study at the Sudbury Regional Hospital. The report of Dr. William T. Nolan revealed that the Plaintiff was in a motor vehicle and complained of “symptoms of pain in his neck” and “pain shooting down either arm when he is using the arms extended above shoulder level”.

11. The Plaintiff was referred to CBI Health Clinic by his insurance company. The Plaintiff filled out an Intake Questionnaire on March 15, 2010, … The Plaintiff confirmed at his Examination for Discovery that in the Intake Questionnaire he was referring to the pain he had been in since the subject accident and that the pain from the time of the accident had interfered with his leisure and social activities.

12. The Plaintiff did not contact the law firm of Wallbridge Wallbridge, his legal counsel, until May 13, 2010.

13. The Plaintiff underwent a Magnetic Resonance Imaging (MRI) scan on September 7, 2010, at Health Sciences North, in the City of Greater Sudbury where it was discovered that he had a C5-6 level small central disc protrusion causing an effacement of the anterior thecal sac and contact and deformity of the spinal cord.

14. On October 4, 2010, the Plaintiff completed a disability certificate application with his family physician, Dr. Abdulhusein. This questionnaire asked the Plaintiff to identify any injuries sustained as a direct result of the accident. The Plaintiff described his injuries as a pinched nerve in his “upper back/left shoulder” from the seatbelt. His physician indicated that the Plaintiff had a cervical disk protrusion with radiation of pain into his left arm and that the Plaintiff’s symptoms first appeared on the day of the accident.

C. Framing the Issue

[4] The defendants framed the issue before me as follows:

The central issue to be decided on this Motion for Summary Judgment is the discoverability of the Plaintiff’s injuries for the purposes of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.

[5] The plaintiff framed the issue(s) as follows in his factum:

54. There are three issues to be resolved on this motion. Namely,

a. Was the severity and permanence of the Plaintiff’s injuries discoverable prior to October 4, 2010 and, were they of such a degree that the injury was likely to exceed the $30,000.00 statutory deductible?

b. In the alternative, is there a triable issue as to when it was that the Plaintiff knew, or ought reasonably to have known, that his injury was serious, permanent and to a degree that it would surpass the $30,000.00 statutory deductible?

c. In the further alternative, and pursuant to Rule 20.05(1) of the Rules of Civil Procedure, can the Court make an Order specifying that the issue of discoverability is no longer a material issue?

D. Serious and Permanent Injury (the Threshold)

[6] At paragraphs 60-63 of his factum, the plaintiff set out the particulars with respect to Bill 198 as well as the provisions of Regulation 381/03, which defines permanent serious impairment of an important physical, mental or psychological function:

60. In October 2003, the Ontario government passed Bill 198 as the successor to Bill 59 for dealing with automobile insurance claims in Ontario that occur on or after October 1, 2003.

61. The threshold limits claims by imposing a standard of severity and permanence of injury that must be met for a plaintiff to be entitled to non-pecuniary (general) damages.

62. Bill 198 has not changed the wording of the threshold test in section 267.5(5) of the Insurance Act. What has changed is that there are now regulations that contain specific requirements to demonstrate that the threshold has been met. Section 267.5(5) of the Insurance Act provides:

Non-pecuniary loss

(5) Despite any other Act and subject to subsection (6) and (6.1), 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,

(a) permanent serious disfigurement; or

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

63. Under Bill 59, the important terms in the legislation (“permanent”, “important” and “serious”) were not defined. Regulation 381/03, which was promulgated to take effect at the same time that Bill 198 came into force, attempts to provide guidance in the analysis and application of these terms by specifically defining them. The provisions of this regulation must be met in order to satisfy the statutory threshold test.

Definition of Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.1 For the purposes of section 267.5 of the 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:

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 accommodate the person’s impairment and the person’s 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 it is expected to continue without substantial improvement when sustained by persons in similar circumstances.

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

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

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.

Ontario Regulation 461/96 as amended by Ontario Regulation 381/03, s.4.1-4.3

E. Analysis

[7] It is presumed that the claim herein was discovered on June 19, 2007, unless the contrary is proved.

• 5(2) Limitations Act

[8] I concur with the defendants’ statements, found at paragraphs 36, 37 and 38 of the supplementary factum that:

• The limitation period begins when the plaintiff first knew or had an objective appreciation that a proceeding would be an appropriate means to seek a remedy.

• The plaintiff must have an appreciation that his impairments reach a point that they could be considered serious and permanent.

• The plaintiff must also persuade the court that he or she acted with due diligence to discover if there was a cause of action.

[9] This test is not met, or stated differently, a claim under Bill 198, subject to a threshold, is not discovered on the basis that an injured person has sustained ongoing and consistent pain since an accident. The regulation produced above defines and describes the nature of permanent serious impairment of an important physical, mental or psychological function. It is against this mirror that the impacts and effects of the plaintiff’s injury must be viewed, having regard to the plaintiff’s evidence as well as the medical evidence.

[10] The defendants’ position is that the consistent neck pain, the occasional blackouts, the ongoing medical treatments, and the pain shooting down either of the plaintiff’s arms when they are extended above his shoulder level, meets the threshold and claim definition sufficient to have brought the plaintiff to claim “discovery” more than two years prior to July 29, 2011.

[11] At paragraph 44 of the factum, defendants’ counsel wrote:

[44] Any reasonable person involved in an accident such as this who had ongoing pain from the date of the accident would conclude eventually that he may well have a serious problem which might be permanent. At the very least, a reasonable person in the shoes of the Plaintiff, assuming her [sic] complaints of pain as he describes them are believed, would conclude that he needed to have his medical situation investigated much earlier than he actually did.

[12] This issue relating to a duty to investigate the underlying cause of the plaintiff’s ongoing pain and symptoms suggests that the plaintiff either failed in this duty, or otherwise did not follow medical recommendation and advice. But the record indicates otherwise. The plaintiff sought out (or at least underwent) chiropractic and physiotherapy treatments. He attended with his family physician. He followed up with EMG testing on March 12, 2009. He underwent a nerve conduction study on December 3, 2009. He complied with his referral to CBI Health Clinic by his insurance company.

[13] This brings us to the issue of undergoing a timely x-ray. In this regard, and certainly for the purposes of this motion, the letter from Dr. Bonin takes on some significance. In his letter dated November 5, 2013, the plaintiff’s former physician wrote, in part, as follows:

… I should add that Mr. Dubreuil is a very responsible and compliant patient and he was always receptive to advice and direction given to him.

… Several issues were dealt with over a year later on October 29, 2008… His range of motion in the neck and arms was deemed within normal. I noted that I would, keeping the nature of his work as a mechanic in mind, consider x-rays of the bony structures to look for chronic changes should the problem persist. Seeing there was no urgency, no requisition would have been given at this time.

… It is clear to me that my opinion was consistent, as relayed to the Mr. Dubreuil, that I had no reason to believe that his complaints were related to his motor vehicle accident of June 2007.

[14] Dr. Abdulhusein saw the plaintiff on June 14, 2010, and wrote in his notes:

… was seen by F.D. (Dr. M. Bonin) no xrays have [sic] done will do xray c/spine MRI neck injury –→ investigate.

[15] The plaintiff underwent the MRI on September 7, 2010. He obtained his results on October 4, 2010, when Dr. Abdulhusein advised him that he had sustained a C5-6 disc bulge – disc protrusion.

[16] The plaintiff was referred to physio. It is to be noted that on June 18, 2010, his physiotherapist wrote, in part, as follows:

• significant improvement in joint mobility since onset.

[17] The record before me confirms that to a large extent, the plaintiff’s injuries since the date of the motor vehicle accident have not prevented him from working, nor have they required him to take time off work. He has been able to assist in housekeeping and child care work since the accident.

[18] There is also medical and treatment information in the record before me that the plaintiff had some reason to believe or expect that given time and further treatments, his medical situation and symptoms would improve. At paragraph 38 of the decision, Huang v. Mai, 2014 ONSC 1156, Perell J. stated as follows:

“Under the case law, for the limitation period to begin to run the plaintiff must have knowledge that his or her damages could be considered permanent and serious. I emphasize that the plaintiff must have knowledge because the limitation period does not begin simply because the plaintiff believes or ought to believe that he or she has a claim. Rather, the limitation period begins when the plaintiff first knew – which I take to be when he or she had an objective appreciation – that a proceeding would be an appropriate means to seek a remedy.

[19] I accept the plaintiff’s position that the result of the further neck investigation, by means of an MRI, established the possibility that he might have in fact sustained a serious and permanent injury that would both substantially meet the threshold monetary limit, as well as the definition terms with respect to permanent, serious impairment of an important physical function. While it is true the plaintiff consulted with counsel on May 13, 2010, one month before he saw Dr. Abdulhusein and five months before he received his MRI results, that consultation does not, in my view, in and by itself, bring the plaintiff to “discoverability” within the meaning of the Limitations Act, 2002. It is to be noted, however, that the statement of claim was issued approximately 14 months after the plaintiff’s first consultation or meeting with legal counsel.

F. Conclusion

[20] For the reasons herein given, I am satisfied that the earliest the plaintiff discovered that he may have sustained a serious and permanent injury in the motor vehicle accident of June 19, 2007, and that this injury might exceed the $30,000.00 deductible, was on October 4, 2010. It was on this date that he obtained objective MRI confirmation of the nature of his neck injury. Accordingly, the defendants’ motion for summary judgment is herein dismissed.

[21] The plaintiff is entitled to the costs of this motion on the partial indemnity scale. If the parties cannot agree to or settle these costs, they may secure a date from the trial coordinator to appear before me for a costs determination. In the event of this occurring, costs submissions of the parties shall be restricted to five pages each, in addition to the filing of a Bill of Costs from the plaintiff.

[22] Order to go accordingly.

The Honourable Mr. Justice J.S. O’Neill

Released: December 30, 2014

COURT FILE NO.: CV-1447-11

DATE: 2014-12-30

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Richard Dubreuil
Plaintiff

– and –

Julien Lalande and Michel Lalande
Defendants

REASONS ON SUMMARY JUDGMENT MOTION

O’Neill, J.

Released: December 30, 2014