CITATION: Jugmohan v. Royle et al. 2015 ONSC 1497

COURT FILE NO.: CV-10-399617

DATE: 20150317

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MAHADEI JUGMOHAN

Plaintiff

– and –

GORDON ROYLE, FRANK

NACCARATO and IVAN BASCOM

Defendants

Robert Besunder and Jeffrey Raphael, for the Plaintiff

Nicholas Mester, for the Defendants G. Royle and F. Naccarato

Peter Yoo for the Defendant I. Bascom

HEARD: February 18, 2015

REASONS FOR DECISION – THRESHOLD MOTION

firestone j.

[1] The plaintiff Mahadei Jugmohan (“Jugmohan”) brings this action for damages as a result of a motor vehicle collision which occurred on February 15, 2008. On February 18, 2015, the jury returned its verdict and awarded nil dollars for all claims which included general damages,[^1] future housekeeping and home maintenance and future cost of care.

[2] Following my charge to the jury and while the jury was deliberating, the defendants Royle and Naccarato brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss is barred on the basis that her injuries do not fall within the exceptions to the statutory immunity provided for in s. 267.5(5)(b) of the Insurance Act, R.S.O. 1990 c. I. 8 (“the Act”) and the applicable regulations.

The Applicable Legislation and Regulations

[3] Given that the subject collision occurred in 2008, it is governed by the changes brought about by Bill 198, An Act to Implement Budget Measures and Other Initiatives of the Government. This regime applies to motor vehicle collisions on or after October 1, 2003.

[4] Section 267.5(5)(a) and (b) of the Act stipulates that the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”

[5] Section 267.5(5)(a) and (b) provide as follows:

Non-pecuniary loss

(5) Despite any other Act and subject to subsections (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.

[6] Section 267.5(3) of the Act stipulates that the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable for health care expenses unless the injured person has sustained the same threshold-crossing injuries.

[7] The parties agree that the claims for future cost of care which are comprised of attendant care and medical and rehabilitation benefits fall within the definition of “health care expenses” and are therefore subject to the threshold. It is further agreed that the claim for housekeeping and home maintenance is not subject to the threshold. Under the Act, the statutory deductible does not apply to a claim for health care expenses.

[8] Effective October 1, 2003, O. Reg. 381/03 amended Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96. O. Reg. 461/96 helps define what is meant by the threshold wording contained in s. 267.5 of the Act. O. Reg. 381/03 added new section numbers 4.1, 4.2 and 4.3 to O. Reg. 461/96. These sections help define the meaning of the wording contained in s. 267.5(b) of the Act, namely “permanent serious impairment of an important physical, mental or psychological function,” and confirm the evidence that must be adduced to prove that the statutory exception or “threshold” has been met. Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 provide as follows:

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 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.

[9] This court in its decision in DeBruge v. Diana Arnold, 2014 ONSC 7044, confirmed the principle that in making the threshold determination, the judge is not bound by the verdict delivered by the jury. That verdict is, however, a factor the judge may consider in deciding the threshold issue. In this regard, at para.10, the court refers to Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, 144 O.A.C. 369 (C.A.) and states in part as follows:

However, the Court of Appeal has made it clear in Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, that a jury verdict at its highest is only one factor that the trial judge may consider, but is not bound to consider in coming to its ultimate conclusion regarding the threshold motion. In that regard, the Court of Appeal stated as follows:

Nowhere does the legislature say that the judge is bound to consider the jury verdict much less as the judge is bound by an implied finding of credibility of the jury. By the same token the legislation does not suggest that the trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge.

[10] O. Reg. 461/96 does not change the interpretation to be given to the statutory immunity or “threshold wording” contained in s. 267.5 of the Act. O. Reg. 461/96 at section 4.1 states that “[f]or the purposes of section 265 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.” Section 4.2 goes on to provide clarification regarding the intended meaning of the threshold wording provided for in the Act.

[11] In Adams v. Taylor, 2013 ONSC 7920, 118 O.R. (3d) 389, the court refers to the decision in Nissan v. McNamee, 2008 20345 (ON SC), [2008] O.J. No. 1739, (2008), 62 C.C.L.I (4th) 135 (S.C.) and at para. 8 states as follows:

Justice Morissette in Nissan concluded at para [37]: “In summary, most of the regulation does not appear to support any significant change in the interpretation of the threshold. In general terms, it suggests at best some clarification of the law regarding accommodation.” At para.14, she stated: “there are some changes from the existing case law suggested by the wording of the definitions now found in the regulations… However… efforts to reframe the broad approaches that have been applied since Meyer, should be resisted.”

[12] I agree with the court’s statement in Adams at para. 7 that case law prior to the enactment of the applicable provisions of O.Reg.461/96 is not irrelevant. This principle is also confirmed in Sherman v. Guckelsberger, [2008] O.J. No. 5322, at para. 142, which stated that prior case law is of assistance in determining what constitutes permanent, serious, continuous injuries, and what constitutes an important function.

[13] The onus of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests with the plaintiff: Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.), at para.50 and Page v. Primeau, [2005] O.J. No. 4693 (S.C.) at para.11.

[14] In Meyer v. Bright, the court outlined the three-part inquiry to be undertaken in the threshold analysis as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?

2. If yes, is the function which is permanently impaired important?

3. If yes, is the impairment of the important function serious?

[15] Under s. 4.2(1)3 of O. Reg. 461/96, 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.

All of these components must be satisfied: Sherman, at paras.142 and 146.

[16] In Bos v. James (1995), 1995 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.), the court at pp. 169-170 confirms that the word “permanent” does not necessarily mean strictly forever until death. Permanent impairment means a weakened condition lasting into the indefinite future without any end or limit.

[17] While the word “permanent” does not mean forever, it does require that the impairment last into the indefinite future, as opposed to a predicted time period with a definite end. See: Skinner v. Goulet, [1999] O.J. No. 3209 (S.C.), at para.33; Brak v. Walsh, 2008 ONCA 221, 90 O.R. (3d) 34, at para 4.

[18] In Jennings v. Latendresse, 2012 ONSC 6982, aff’d, 2014 ONCA 517, the trial judge dismissed the plaintiff’s claim because she failed to establish on a balance of probabilities that her injuries were permanent. The jury had determined that the plaintiff had recovered from her injuries. On appeal, the appellant plaintiff argued that a diagnosis of chronic pain, by definition, must indicate that the injuries are permanent. In dismissing the appeal, the Court of Appeal stated that the trial judge’s conclusion that the plaintiff’s chronic pain was not permanent was supported by the evidence. That evidence was that:

• the appellant was improving and would continue to improve;

• her functional abilities showed no significant impairment;

• the appellant and returned to her pre-accident employment;

• the appellant’s medical examination showed full range of motion;

• expert testimony demonstrated that the recurring pain was not caused by the original injury; and

• both pre-and post-accident physical and psychological stressors have contributed to the appellant’s chronic pain but have nothing to do with the accident.

[19] Under s. 4.2(1)2 of O. Reg. 461/96, 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 the 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.

[20] In Ahmed v. Challenger, [2000] O.J. No. 4188 (S.C.), the court at para. 18 made reference to Meyer and emphasized the necessity of distinguishing between functions that are important to the injured person and those that are not.

[21] The test of whether the impaired function is “important” is a qualitative test: Page, at para. 32.

[22] Under s. 4.2(1)1 of O. Reg. 461/96, to be “serious” the impairment must:

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite recent 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 training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

[23] The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself: Meyer, at paras.28-36; Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.), at para 56.

[24] Regarding the degree of impairment in the plaintiff’s daily life which is necessary in order to be serious, it must go beyond tolerable: Frankfurter v. Gibbons (2004), 2004 45880 (ON SCDC), 74 O.R. (3d) 39 (Div. Ct.), at paras.22-24.

Positions of the parties

[25] The plaintiff was born on March 23, 1942 and was 65 years old at the time of the subject collision. She stopped working prior to the collision. The plaintiff submits that notwithstanding any pre-accident osteoarthritis and degenerative changes in both her right shoulder and right knee, she was in essence “asymptomatic” and these pre-existing conditions were not the source of any symptomatic complaints pre-accident. Following the collision she developed symptomatic complaints in both her right shoulder and right knee. The plaintiff subsequently underwent a total right knee replacement on August 18, 2011 and right shoulder rotator cuff repair on January 10, 2013. She had previously undergone a left knee replacement in 2006. The plaintiff submits that had this collision not occurred she would not have required her right shoulder and right knee surgeries. In the alternative she argues that she would have required them at a later time. The plaintiff also submits that following the collision she has experienced neck and back pain.

[26] The moving party defendants argue that the plaintiff is in the same position she would have been in had the subject collision not occurred in terms of her alleged injuries and lifestyle. They submit that the plaintiff had a significant pre-accident history and that both her right rotator cuff and right knee surgery would have been required at the time these surgeries took place irrespective of this collision. The plaintiff complained of right knee pain for several years prior to the collision. Reference is made to Dr. Barrington’s April 18, 2001 report to the plaintiff’s family doctor. That report states in part that the plaintiff continues to have problems in her knees, particularly on the left side, and that she is headed for knee replacements before too long. Regarding the plaintiff’s right shoulder, there were significant pre-accident issues which included a diagnosis of bursitis and steroid injections. She had several diagnostic images, which illustrated degenerative changes in her right shoulder. The defendants submit that the diagnosis of rotator cuff tear is unrelated to the accident. In addition, the plaintiff has had complaints of low back pain since 1990 following a work-related injury. The defendants further submit that the collision did not cause the alleged injuries and all of the plaintiff’s complaints pre-dated the collision. There are significant credibility issues given the contradictions in the discovery, trial and surveillance evidence.

Analysis

[27] After considering all of the evidence in this case, I find that the plaintiff has not satisfied the requirements of s. 4.2 of O. Reg. 461/96 and the applicable jurisprudence which require that the impairment(s), if any, be permanent, important and serious. To be serious in this case the impairment(s) must substantially interfere with most of her usual activities of daily living considering her age. The legislature intended that persons who are injured in motor vehicle collisions will experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages of health care expenses.

[28] The plaintiff has not, in my respectful view, sustained a serious impairment. I find on the evidence that the plaintiff had pre-existing osteoarthritis and degenerative changes in her right shoulder and knee. Even if it is accepted that the subject collision led to an exacerbation or worsening of her pre-accident condition, resulting in new or increased impairment, such impairments have not “substantially interfered with most of the plaintiffs usual activities of daily living” notwithstanding her housekeeping and home maintenance tasks, self-care and recreational activities may be more difficult for her to do.

[29] I do not accept the position that the collision led to the right shoulder or right knee surgeries or that the need for same was accelerated as a result of the collision. Regarding the plaintiff’s right knee, the report of Dr. Barrington to the plaintiff’s family doctor dated April 18, 2001 is significant. It states in part that that the plaintiff continues to have problems in her knees, particularly on the left side and that she is headed for knee replacements before too long.

[30] In considering “activities of daily living” specified in O. Reg. 461/96 the court in Sabourin v. Dominion of Canada General Insurance Co., [2009] O.J. No. 1425 (S.C.), at para. 99 states that “[t]he plaintiff must do more than simply experience pain in order to bring herself within the exception to the threshold wording. The onus is on her to prove on a balance of probabilities that the pain she is experiencing has substantially interfered with most of her activities of daily living. I find that she has failed to prove on balance that her case falls within the exception to the threshold set out in s.4.2(1)1(iii) of Bill 198.”

[31] I do not, with respect, accept the plaintiff’s evidence that as a result of this collision she has been and will be unable to do her own cleaning, cooking or self-care as she did prior to the collision. This conclusion is consistent with the jury’s verdict. The plaintiff testified that she was not able to grocery shop for months after the collision and that she was able to do some cooking on her own a few weeks after the collision but to this day Mr. Bascom, her boyfriend, helps her. She testified that she was unable to do her laundry for approximately three to four weeks because she could not carry the laundry to the laundry facility. After three to four weeks following the collision she was able to use a cart to bring the laundry to the laundry room. The plaintiff testified that her daughter took care of her following the collision. Her daughter was not called to corroborate the plaintiff’s evidence in this regard.

[32] I do not accept that as a result of the collision that there has been a substantial interference with the recreational and sporting activities she participated in before the accident. These included fishing, dancing and going to the movies.

[33] As pronounced in Bridgewater v. James, [2004] O.J. No. 5282 (S.C.), at para. 49: “[t]he issue for the Court is whether the… interference with the plaintiff’s enjoyment of life go beyond the tolerable to the serious: see Frankfurter v. Gibbons, 2004 45880 at para.22 (Ont. Div. Ct.). The impairments suffered by the plaintiff undoubtedly are frustrating and unpleasant. Without doubt, at times they render the plaintiff’s life more difficult. However, in the particular circumstances of this action, I do not believe that either of the impairments suffered by the plaintiff qualifies as ‘serious’ according to the standard in Meyer v. Bright.”

[34] The totality of the evidence does not, in my respectful view, support the conclusion that the injuries and impairments have had a “significant effect” on the plaintiff’s enjoyment of life given her age and pre-existing condition.

[35] Even if it is accepted that the plaintiff’s right shoulder and right knee complaints are permanent in the sense that they are expected to last into the indefinite future, I find that substantially all of these complaints would have occurred in any event. There is no doubt that her right shoulder, right knee and back function are necessary for the plaintiff to provide for her own care and are important to the usual activities of daily living, considering the plaintiff’s age and are therefore “important” as defined in the regulations.

[36] I therefore find that the plaintiff has failed to discharge her onus of proof on a balance of probabilities that her case falls within the exception to the statutory immunity (threshold) provided for in s. 267.5(5) of the Act and O. Reg. 461/96 regarding non-pecuniary loss and health care expenses. This threshold motion is therefore granted.

[38] The parties are to submit within the next 10 days a proposed timetable for the delivery of cost submissions regarding this action.

Firestone J.

Released: March 17, 2015

CITATION: CITATION: Jugmohan v. Royle et al. 2015 ONSC 1497

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

MAHADEI JUGMOHAN

Plaintiff

– and –

GORDON ROYLE, FRANK

NACCARATO and IVAN BASCOM

Defendants

REASONS FOR DECISION

Firestone J.

Released: March 17, 2015

[^1]: Pursuant to O. Reg. 461/96, s. 5.1(1) a deductible in the amount of $30,000 is applicable to this sum.