Ayub v. Sun, 2015 ONSC 1828
COURT FILE NO.: CV-11-427143
DATE: 20150320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMMAD MOHAMMAD AYUB
Plaintiff
– and –
YI-WEN SUN and 1638940 ONTARIO INC.
Defendants
Shahen A. Alexanian for the Plaintiff
K. Bruce Chambers for the Defendants
HEARD: March 12. 13, 16, 17 and 18 2015
REASONS FOR DECISION
diamond j.
[1] The plaintiff Mohammad Mohammad Ayub (“Ayub”) brings this action for damages as a result of a motor vehicle collision on June 3, 2009 (“the collision”).
[2] The defendants admitted liability for the accident. As such, the five day trial was limited to the issues of causation and damages.
[3] On March 18, 2015 the jury returned its verdict and awarded the plaintiff $25,000.00 for general damages and $5,000.00 for future health care expenses (“the damages award”).
[4] Following my charge to the jury, and while the jury was deliberating, the defendants brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claims for non-pecuniary damages and health care expenses are barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained and provided for in sections 267.5(3) (b) and 267.5(5) (b) of the Insurance Act, R.S.O. 1990 c.I.8 (“the Act”) and the applicable regulations.
[5] The defendants therefore seek an order pursuant to section 267.5(15) of the Act that the plaintiff has failed to establish on the evidence that as a result of the collision he has sustained a permanent, serious impairment of an important physical, mental or psychological function so as to entitle him to the damages award.
The Legislative Scheme
[6] Given that the collision occurred in 2009, 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.
[7] Sections 267.5(3)(a) and (b) of the Act stipulate that the owner of an automobile is not liable in an action in Ontario for expenses that will be incurred for health care resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”
[8] Sections 267.5(5)(a) and (b) of the Act stipulate that the owner of an automobile is not liable in an action in Ontario for non-pecuniary loss resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”
[9] Those sections explicitly provide as follows:
Protection from liability; health care expenses
(3) 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 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,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
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.
[10] Effective October 1, 2003, O. Reg. 381/03 helped 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 now assist in defining the meaning of the wording contained in sections 267.3(b) and 267.5(b) of the Act, and specifically the words “permanent serious impairment of an important physical, mental or psychological function”.
[11] These sections also set out the evidence which must be adduced to prove that the statutory exception or “threshold” has been met.
[12] 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:
- 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 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.
- 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.
The Law
[13] In Malfara v. Vukojevic 2015 ONSC 78 (S.C.J.), Justice Firestone set out a fulsome and helpful summary of the relevant jurisprudence relating to threshold motions, and the principles to be considered and applied by the motions judge. The highlights of this helpful summary are as follows:
• In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044 (S.C.J.) at para. 10.
• The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court set out the following three part inquiry:
a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?
b) If yes, is the function impaired important?
c) If yes, is the impairment of the important function serious?
• While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh 2008 ONCA 221 and Bos v. James (1995), 1995 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.).
• The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao 2005 40371 (Ont. S.C.J.) at para. 32.
• 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. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.J.) at para. 56.
• When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Givons (2004), 2004 45880 (ON SCDC), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.
[14] Finally, in Malfara Justice Firestone stated at paragraphs 16 and 23 that a diagnosis of chronic pain, by definition, does not indicate by itself that the injuries are permanent. While the effects of chronic pain are just as real and likely to meet or not meet the threshold as any other type of injury or impairment, it is the “effect of the injury on the person” and not the “type of injury” which forms the focus of the threshold analysis. The Court is concerned with the manner in which the plaintiff has been impacted, and the evidence presented at trial.
The Evidence at Trial
[15] The plaintiff was born in Afghanistan, and came to Canada as a refugee via Russia in 2007. Prior to arriving in Canada, after completing two years of university education the plaintiff had worked for 9 years in Russia. During the first six years he worked in the “shipping and receiving” industry (i.e. a warehouse) and in the final three years in a shoe store at a mall.
[16] After arriving in Canada, before searching for a job the plaintiff felt the need to improve his English and enrolled in government funded English as a Second Language (“ESL”) schooling in 2007. He saw the improvement of his English as a necessary step to obtaining employment in Canada.
[17] In early 2009 (and prior to the collision), the plaintiff married his current wife, Liliya Brovkina (“Liliya”) who has resided with him ever since. Liliya also testified at the trial of this action.
[18] At the time of the collision, the plaintiff was 32 years old and had finished the first year of the ESL program.
[19] Prior to the collision, the plaintiff testified that he played sports, engaged in leisure activities, was interested in body building and helped around the house with various duties.
[20] The plaintiff further testified that prior to the collision, he was in “very good health” although he had previously been diagnosed with Hepatitis B, a condition which the plaintiff stated did not cause him to suffer any related ill effects.
[21] After the plaintiff’s vehicle was rear-ended, he stepped out of the vehicle to inspect it, walked around and then suffered from dizziness and pain requiring him to return to the vehicle until an ambulance was called. The damage to the vehicle did not indicate a very significant collision, as the back bumper was bent and slightly crushed.
[22] An ambulance transported the plaintiff to Toronto East General Hospital where X-rays were taken. Those X-rays proved negative; after spending approximately two hours at the hospital, he was prescribed pain medication, told to see his family doctor, and released.
[23] In the six years since the collision, the plaintiff has been referred by his family doctors to various specialists including neurologists, rheumatologists, sleep clinics and psychiatrists. The plaintiff states that he continues to experience and suffer from headaches, lower back pain and pain in his left leg, knee and ankle. The plaintiff attended physiotherapy for approximately one year after the collision (and then stopped), and has been taking medication for his symptoms up to the present date.
[24] While the plaintiff did obtain a work permit after arriving in Canada, he has never worked either before or after the collision. The plaintiff testified that sometime after the collision, he attended a two hour training session at a local Tim Horton’s operation, but was forced to leave and return home after only two hours due to, inter alia, lower back pain.
[25] Both the plaintiff and Liliya testified that in recent years, during a typical day the plaintiff wakes up late as he has difficulty sleeping at night, watches TV, uses his computer and lays down.
[26] The plaintiff has been receiving social assistance since he arrived in Canada. Liliya does not receive any social assistance, and complains of her husband being in a “bad mood” most of the time.
[27] Finally, the plaintiff testified that after the collision, he was able to return and complete the ESL course. While this specific testimony was lacking in particulars, he was able to physically attend the ESL course and complete whatever assignments or tasks were necessary to complete the requirements.
Expert Testimony
[28] The plaintiff called two experts, Dr. Steven Blitzer and Dr. David Berbrayer, qualified in the treatment and assessment of chronic pain, to testify with respect to their assessment of the plaintiff’s injuries and resulting prognosis. The plaintiff’s experts concluded that the plaintiff suffered from chronic pain syndrome, as more than sufficient time had passed to permit the natural healing of the plaintiff’s injuries. While Dr. Blitzer opined that the plaintiff would be unable to perform the physical work he carried out in Russia in the shipping and receiving field, there is no evidence that the plaintiff ever sought to secure such employment in Canada.
[29] Both Dr. Blitzer and Dr. Berbrayer performed physical examinations of the plaintiff. Dr. Blitzer’s examination, conducted in late 2012 found that the plaintiff’s back movement was partially limited, but during leg exercises he also found the presence of shooting pain through the left leg but no knee or ankle problems. According to Dr. Blitzer, pain can be both a symptom and diagnosis, and chronic pain can be present “even without an X-ray to prove it”.
[30] Dr. Berbrayer’s examination, conducted in early 2015, showed tenderness along the medial joint of the plaintiff’s left knee and a restricted range of motion for his cervical spine and back, along with tenderness evidenced by his examination of the plaintiff’s sacroiliac joints.
[31] Dr. Berbrayer believed that there was nothing stopping the plaintiff from performing light work as long as he did not sit for too long, and normal daily housekeeping and related light activities were permissible for the plaintiff to carry out.
[32] The defendant’s called Dr. Michael Devlin, who was qualified as an expert in the assessment and treatment of musculoskeletal impairment. Dr. Devlin met with the plaintiff for an assessment on April 4, 2014, and the assessment was conducted in English. Dr. Devlin found that the range of motion of the plaintiff’s spine was well maintained, albeit with some stiffness. He did not find any local tenderness around the cervical spine or palpable muscle spasm(s). Dr. Devlin did find that the plaintiff had a minimal decreased range of motion with complaints of lower back pain when his lumbar spine was examined.
[33] All three experts found, in some form or another, that the plaintiff was experiencing chronic pain.
Analysis and Decision
[34] As stated above, while the defendants have the legal onus associated with bringing this motion, the evidentiary onus of satisfying the statutory threshold lies upon the plaintiff. The defendants concede that the plaintiff has adduced evidence of impaired functions as a result of headaches and back pain with consequential difficulties associated with movement, sleep and mood.
[35] The defendants further concede that the impairments occasioned by the plaintiff’s chronic pain meet the definition of “permanent” in that there is medical evidence that the pain has been continuous and is not expected to improve.
[36] Insofar as the plaintiff’s impairments occasioned by chronic pain meeting the definition of “important”, the defendants submit that the plaintiff was not actually rendered incapable of performing the essential tasks of his regular training or daily living activities.
[37] As I expressed to counsel during argument of the defendants’ motion, the evidentiary record supporting the “narrative” of the plaintiff’s life both before and after the collision is significantly lacking. While the plaintiff provided a description of his daily routine over the last few years, there was little to no evidence of his daily routine prior to the collision other than general statements supporting him “playing sports and leisure activities”. Evidence of most, if not all, of the plaintiff’s pre-collision activities was, for the most part, unspecified and vague.
[38] The only consistent piece of evidence running through both the pre-collision and post-collision periods is the plaintiff’s attendance at the ESL course. While the plaintiff is obviously to be commended for trying to improve his chances of employment by learning the English language, after the collision the plaintiff continued with the ESL course until its completion. As the plaintiff never repaired his vehicle and did not purchase a new vehicle until very recently, I find that whatever limitations the plaintiff was experiencing post-collision did not hinder or limit his ability to physically leave his house, travel to the ESL courses (presumably by public transportation), attend the courses, carry out whatever tasks were necessary, and complete any tests or examination. To the extent that the ESL course could constitute “regular training”, there is no evidence that the plaintiff’s chronic pain interfered with his ability to continue and eventually complete that training.
[39] The plaintiff relies upon the recent decision of the Court of Appeal for Ontario in Gyorffy v. Drury 2015 ONCA 31 in support of the proposition that an individual who returns to employment, while maintaining high levels of medication, and “slugs through the day…resting during off periods” can still be considered to meet the definition of “serious” required by the legislation.
[40] In Gyorffy, the trial judge found that prior to the accident the plaintiff was employed as a heavy truck mechanic and alignment technician and that post-accident (after being off for seven weeks), the plaintiff returned to work with modified duties, eventually resuming his old position but requiring assistance lifting heavy objects. The plaintiff would then spend most of his weekend time laying down and resting.
[41] In the within proceeding, as stated there is no evidence of any employment history on the part of the plaintiff in Canada. There is little to no evidence of the plaintiff’s employment history in Russia, although I question whether such additional evidence would be relevant for the threshold analysis as the plaintiff has not worked in the shipping and receiving field since 2004.
[42] According to the evidence of Dr. Blitzer, when interviewing the plaintiff prior to his assessment, the plaintiff advised that he was able to do some lesser amounts of housekeeping after the collision. The plaintiff further advised Dr. Devlin in his interview that he participated in laundry, housework and grocery shopping.
[43] Based upon the evidence at trial, I am not satisfied that the plaintiff has met all of the requirements of Section 4.2 of O.Reg.461-96 and the applicable jurisprudence which require that the impairment(s) be permanent, important and serious. Specifically, I do not find that the plaintiff has sustained a serious impairment with continuous severity. There is evidence that the plaintiff continued albeit with pain, to participate in his household activities following the collision. As stated in Sabourin v. Dominion of Canada General Insurance Co., [2009] O.J. 1425 (SCJ), the onus is on the plaintiff to prove on a balance of probabilities that the pain he is experiencing is substantial and interfering with most of his activities of daily living. While the plaintiff no doubt suffers from the lingering effects of the collision, I do not accept that there has been a “substantial interference” as a result of the collision given that, inter alia, he was able to complete the ESL course without incident, or at least without evidence tendered at trial showing any difficulty in doing so.
[44] While I accept, based on the medical evidence, that the lower back pain and knee/ankle pain the plaintiff continues to experience is ongoing and that it is expected to last into the indefinite future, I do not find that the evidence tendered supports a conclusion that the plaintiff’s injuries and impairments have had a “significant effect” on the plaintiff’s enjoyment of life given his age, or that such impairments have interfered or will substantially interfere with his pre-accident combined capacity for work or pleasurable activity.
[45] Accordingly, I find that the plaintiff has failed to discharge his onus of proof under the legislation, and I grant the relief sought on the defendants’ motion. The plaintiff’s action is thus dismissed.
[46] The defendants shall serve and file their written costs submissions totaling no more than five pages within ten business days of the release of this decision. The plaintiff shall serve and file his responding costs submissions also totaling no more than five pages within ten business days of the receipt of the defendants’ costs submissions.
Diamond J.
Released: March 20, 2015
CITATION: Ayub v. Sun, 2015 ONSC 1828
COURT FILE NO.: CV-11-427143
DATE: 20150320
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMMAD MOHAMMAD AYUB
Plaintiff
– and –
YI-WEN SUN and 1638940 ONTARIO INC.
Defendants
REASONS FOR DECISION
Diamond J.
Released: March 20, 2015