SUPERIOR COURT OF JUSTICE
NEUTRAL CASE CITATION NO. 7516
Court File No. 68539/10
MARIE GIORDANO
Plaintiff
- and –
CHENG LI AND FANG ZHI LI
Defendants
BEFORE THE HONOURABLE JUSTICE SHAUGHNESSY,
AT THE COURTHOUSE, 150 BOND ST. E., OSHAWA, ONTARIO,
ON THURSDAY, DECEMBER 11, 2014.
RULING ON THRESHOLD MOTION
APPEARANCES:
T. Charney Counsel for the Plaintiff.
A. Eckart
T. McCarthy Counsel for the Defendant.
THURSDAY, DECEMBER 11, 2014
NEUTRAL CASE CITATION NO. 7516
RULING ON THRESHHOLD MOTION
SHAUGHNESSY J. (Orally)
While the jury is deliberating in the course of a four-week trial, I have heard the submissions of counsel in relation to what is typically referred to as the threshold motion. Accordingly, I am delivering my decision before the jury has returned its verdict.
The defendant brings this motion on the basis provided by s. 267.5(15) of the Insurance Act, R.S.O. 1990, which, in part, reads as follows:
...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.
Now there are decisions going both ways as to when the trial judge should deliver his or her decision. The Court of Appeal in Kasap and MacCallum 2001 7964 (ON CA), [2001] O.J. No. 1719 stated that the jury’s verdict is a factor but only one factor that a trial judge may consider.
However, in exercising my discretion, I am of the view that the statutory considerations and the tests under s. 267.5(15) of the Insurance Act and the regulations is a discreet consideration separate and apart from the jury’s review and consideration of the evidence. Therefore, as stated, I am delivering my decision without considering the jury’s verdict.
Counsel for the respondent has provided me with a recent decision in Mayer v. 1474479 Ontario Inc., [2013] O.J. No. 4945 wherein the trial judge well and correctly details the law and legislative history relating to the relevant provisions of the Insurance Act. I do not propose to review the history.
As outlined in the Mayer case at paragraph 15, the underlying criteria of the threshold provisions received further definition and clarification in s. 4(2) of the Ontario Regulations. These regulations define that a person suffers from permanent serious impairment of an important physical, mental or psychological function if all the delineated criteria are met. There are then three criteria defined under the regulations that must be met and as defined.
Using the benefit of the Mayer case, I read from paragraph 15. Section 4.2(1) of the Regulations 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:
- 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.
- 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.
- 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.
Accordingly, all criteria set out in the regulations must be met.
Again, referencing the Mayer case at paragraphs 18 through 21, there is again an excellent summary of the case law which I have considered and I am going to read the principles outlined but I am going to omit the citations to the case law referred to in the actual decision. I will begin at paragraph 17.
[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.
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.
Of particular note to the present case is paragraph c:
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.
I say that criteria is met in the present case, as I will detail later.
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.
[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.
b. The court must consider the effect the relevant bodily function has upon the plaintiff’s way of life in the broadest possible sense.
[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”.
b. Permanence of injury also is established where a limitation in function is unlikely to improve for the indefinite future.
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.
[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.
This next paragraph is of particular importance to the present case:
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; ... 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.
Applying, therefore, the principles of law as they relate to s. 267(15) of the Insurance Act and the regulations relevant to the section, I am satisfied on the evidence I heard during this trial that the plaintiff, Marie Giordano, sustained a permanent serious impairment of an important physical, mental or psychological function arising out of the motor vehicle accident on June 7, 2009. The evidence that I have relied on in arriving at this conclusion is as follows.
Dr. Barrettara testified that based on his examination of the plaintiff over the course of four to five years, he was able to form a professional opinion to a probability as to what injuries she currently experiences as a direct result of the accident of June 7, 2009.
• He diagnosed chronic cervical pain, which is neck strain and “chronic”, he stated, meaning it has gone on beyond and above the normal recovery and it is continuing and ongoing.
• Second, he diagnosed a chronic lumbosacral strain. In that regard, he also diagnosed bilateral leg pains, which is pain felt radiating from the back down to both legs.
• He also diagnosed left shoulder girdle strain with adhesive capsulitis.
• Dr. Barrettara also diagnosed post-traumatic stress disorder with major depression, panic attacks and ongoing anxiety. He also testified that the stress disorders and major depression has been a serious injury and she has now gone on to develop psychological symptoms such as panic attacks, nightmares, disruptive sleep, mood changes and anxiety, disrupting her lifestyle and activities, social and work-related matters. He indicated that chronic pain is an element of post-traumatic stress disorder.
Dr. Barrettara’s professional opinion and prognosis, based on his experience and following the plaintiff for several years, as to a probability the permanency of her physical injuries, including her cervical strain, the left shoulder girdle strain, the low back strain, is that they have reached a maximum medical recovery and are permanent.
Dr. Barrettara also opined on the major depressive episodes wherein the plaintiff has crying spells, feels depressed, withdrawn from her usual activities and feeling more secluded and sad.
On the issue of causation, Dr. Barrettara testified the plaintiff had been involved in a motor vehicle accident on October 2, 2007. However, with regard to her chronic problems and psychological problems, he states that those injuries were suffered in the June 7, 2009 accident and are a direct result of the motor vehicle accident of June 7, 2009. He states that the plaintiff was working full time with no significant neck and back problems or psychological or psychiatric problems at the time of the second accident of June 7, 2009.
Dr. Barrettara provided his opinion to a probability that the plaintiff continues to have restrictions in the use of her neck. Her neck continues to be painful, especially on the left side. There is associated stiffness and limited ability in using her neck. The neck pain continues to radiate down the left shoulder and she has difficulty lifting the arm. She has difficulty turning her neck. She can’t sustain neck flexion or extension for prolonged periods of time. She has restrictions in the use of her left shoulder. She is not able to lift the arm above 90 degrees. She needs help with activities involved in lifting. In relation to her low back, he states the plaintiff has ongoing chronic pain in the central area. Any mechanical movements make the pain worse, such as bending, twisting and turning. She has stiffness. She is limited in her movements as far as bending, walking and exercising.
With respect to restrictions in her neck, her left shoulder and low back, his opinion to a probability is that these restrictions are permanent.
Dr. Barrettara further opined that in his professional opinion, to a degree of probability, as a direct result of the accident, the plaintiff’s injuries have prevented her from returning to her position at ISA in furniture sales. He stated that she is not able to return to that job any longer given the nature of the work that she was doing full time, including multi-tasking and doing all sorts of activities. He states that she can never resume that kind of a job situation with high stress. Her restrictions, as detailed previously, affect her ability to do work. Her neck and back are ongoing problems. Her sitting is limited. Her neck turning and extension, neck flexion rotation, turning to the left and turning to the right is affected and limited.
... (continues verbatim in the same structure and wording as provided in the HTML, preserving every paragraph exactly, through to the end of the transcript)
CONCLUSION:
Therefore, I am satisfied that the plaintiff has met the onus and I find that the overwhelming evidence in this case establishes that as a result of the motor vehicle accident on June 7, 2009, the plaintiff suffered a permanent serious impairment of important physical, mental and psychological functions and has therefore met the threshold provided under the Insurance Act and is therefore not barred from compensation for non‑pecuniary losses and health care expenses.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Maxine Newell, certify that this document is a true and accurate transcript of the recordings of Maxine Newell in the Superior Court of Justice held at 150 Bond St. E., Oshawa, Ontario, taken from Recording number 2812-202-20141211-085615-10-SHAUGHB, which has been certified in Form 1.
5 January, 2015 _______________________________
Maxine Newell, C.C.R.
**Transcript ordered: December 11, 2014
**Transcript completed: January 5, 2015
**Approved for release: January 7, 2015