CITATION: Paramandham v. Holmes et al., 2015 ONSC 1903

COURT FILE NO.: CV-14-502008

DATE: 20150320

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NISHANTHAM PARAMANDHAM[1], Plaintiff

AND:

JEFFREY HOLMES, MICHAEL HOLMES and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants

BEFORE: F.L. Myers J.

COUNSEL: Florence Chiu, for the Plaintiff

Todd J. McCarthy and Candace Mak, for the defendant State Farm Automobile Insurance Company

HEARD: March 18, 2015

Defendants

ENDORSEMENT

[1] The defendant State Farm Automobile Insurance Company moves for summary judgment dismissing the action against it. For the reasons that follow, the motion is successful.

[2] The action arises from a motor vehicle accident that occurred on April 14, 2012. As a result of the injuries sustained from the accident, the plaintiff made a claim for accident benefits with his own auto insurer, the defendant, State Farm. Although some benefits were provided during the immediate post-accident period, the plaintiff’s claim was denied in the main. A mediation took place on October 30, 2013 which was not successful. Accordingly, the plaintiff launched this action by statement of claim issued on April 11, 2014.

[3] This action includes tort claims against the parties who were involved in the car accident as well as the plaintiff’s claim against his own insurer for accident benefits.

[4] Accident benefits are part of the no-fault automobile insurance regime in place in Ontario. It is important to note that even if the plaintiff is limited in his recovery against his own insurer, he will remain entitled to make all claims allowed by law against the tortfeasors who are alleged to have negligently caused his injuries. Therefore, the outcome of this case does not necessarily affect the compensation that may ultimately be received by the plaintiff. Rather, the issue in this case involves the limits of the statutory obligations of an accident benefits insurer and, more specifically, the nature of proof required on a motion for summary judgment.

The Minor Injury Guidelines

[5] State Farm seeks summary judgment on the basis that the plaintiff’s claim falls within the Minor Injury Guidelines (Superintendent’s Guideline No. 2/11 (Financial Services Commission of Ontario) promulgated pursuant to section 268.3 of the Insurance Act, R.S.O. 1990, c. I.8 as referred to in the The Statutory Accident Benefits Schedule - Effective September 1, 2010 O.Reg. 34/10 as amended. If the plaintiff’s claim falls within the Minor Injury Guidelines, then the plaintiff will have no entitlement to benefits for Attendant Care and his other entitlements to benefits from his own insurer will be limited to the aggregate amount of $3,500 under subsection 18(1) of The Statutory Accident Benefits Schedule. State Farm has made partial payment already. It acknowledges its obligation to pay a total of $3,500 to the plaintiff’s treatment providers or as his counsel directs.

[6] The Minor Injury Guidelines provide the following definitions:

2. Definitions

(a) minor injury means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. This term is to be interpreted to apply were a person sustains any one or more of these injuries.

(b) sprain means an injury to one or more tendons or ligaments or to one or more of each, including a partial but not a complete tear.

(c) strain means an injury to one or more muscles, including a partial but not a complete tear.

(d) subluxation means a partial but not a complete dislocation of a joint.

(e) whiplash injury means an injury that occurs to a person’s neck following a sudden acceleration-deceleration force.

(f) whiplash associated disorder means that whiplash injury that:

(i) does not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and

(ii) does not exhibit a fracture in or dislocation of the spine.

3. Impairments that come within this Guideline

Subject to the exception in Section 4 below, an insured person’s impairment comes within this Guideline if the impairment is predominantly a minor injury.

The Positions of the Parties

[7] The plaintiff’s counsel argues that that the plaintiff suffered soft tissue injuries that have evolved into chronic pain and psychological injury that take his case outside the Minor Injury Guidelines. She argues that a trial is necessary to determine whether the Minor Injury Guidelines apply.

[8] The plaintiff has waived his claims to Income Replacement Benefits (beyond those already received) and Housekeeping Benefits as those terms are defined in The Statutory Accident Benefits Schedule. Accordingly, the plaintiff seeks approximately $7,000 in unpaid Medical Rehabilitation benefits and approximately $390 in Attendant Care benefits from State Farm. The plaintiff notes that there may be further Attendant Care benefits accruing, perhaps even on a monthly basis, and this might increase the claim to approximately $4,800 per year. So it is possible that this claim might increase to as much as $25,000 in past claims if the trial is next year.

[9] State Farm relies upon three defence medical opinions obtained pursuant to s.44 of The Statutory Accident Benefits Schedule. Although these opinions are not put before the court in the form of expert evidence under rule 53, and are merely appended to an insurance adjuster’s affidavit, the plaintiff agrees that they are admissible for the truth of their contents on this motion for reasons that will become apparent[2]. State Farm says that in light of the medical evidence, there is no serious issue to be tried as to whether the plaintiff’s injuries are covered by the Minor Injury Guidelines.

[10] State Farm relies in particular on the reference to “predominantly a minor injury” in section 3 of the Minor Injury Guidelines. It says that even if some of the plaintiff’s evidence is accepted on this motion, it never surmounts the hurdle of not being predominantly minor. Although ultimately unnecessary on the facts of this motion, State Farm also argued that chronic pain associated with minor injury falls within the Minor Injury Guidelines if it is “predominantly a minor injury” and especially if it is a whiplash associated disorder i.e. a whiplash with no clinically relevant neurological signs. While legal and medical theorists may argue over whether chronic pain associated with soft tissue injuries with no accompanying orthopedic or neurological symptoms is an independent medical condition (or not), it appears that the Province of Ontario has determined that statutory accident benefits will be quite limited if a plaintiff’s injury falls under the Minor Injury Guidelines. I leave to another day how a diagnosis of chronic pain associated with this type of injury may fit with the statutory accident benefits regime.

The Plaintiff’s Evidence

[11] The plaintiff did not testify on this motion. His lawyer submitted two affidavits. The lawyer’s affidavits cite double hearsay through a colleague setting out the plaintiff’s attendances at various treatment clinics and the invoices rendered by those clinics. In order to respond to the defendant’s medical opinions, the plaintiff relies upon clinical notes and records of healthcare providers appended to his lawyer’s affidavits. Without accepting the admissibility of State Farm’s experts’ reports as a quid pro quo for State Farm’s acceptance of the admissibility of the plaintiff’s healthcare providers’ clinical notes and records, the plaintiff would have had no evidence at all before the court of his medical condition.[3]

[12] The plaintiff relies upon four particular clinical notes and records to establish the nature of his injuries against his insurer:

a. undated Psychological Pre-Screen Interview Report;

b. Attendant Care Assessment Report dated May 28, 2012;

c. Disability Certificate (OCF-3) dated September 11, 2012; and

d. handwritten referral form dated October 22, 2014.

[13] The plaintiff attended Toronto HealthCare Clinic Inc. on April 25, 2012, some 11 days after the car accident. In a Psychological Pre-Screening Interview Report, Dr. Andrew Shaul, supervising psychologist, and Helen Ilios, therapist, advised that the plaintiff was asked a series of questions during an extensive screening interview. They determined that the plaintiff requires a comprehensive psychological assessment to help him overcome the difficulties he was then facing. They concluded as follows:

In summary, Mr. Paramananthan reported feelings of irritability, frustration, reduced energy, nervousness in a car, physical discomfort and difficulty coping with pain since his motor vehicle accident on April 14, 2012. He is experiencing difficulty engaging in many of his pre-accident activities of daily living. We strongly recommend that Mr. Paramananthan’s case be thoroughly reviewed and that an assessment be approved in order to support his overall recovery and return to his pre-accident status.

[14] An occupational therapist with the Toronto HealthCare Clinic Inc. completed an Attendant Care Assessment Report dated May 28, 2012. It quotes a treatment plan dated April 24, 2012 prepared by Dr. Saranjit Khaira, a chiropractor, that describes the request for attendant care as follows:

The client had injuries and Sequelae which included sprain and strain of lumbar spine, cervical spine and thoracic cage; sprain and strain of shoulder muscles on the right side; post traumatic headache; sprain and strain of thorax and chest; upper arm strain on the left side and nervousness.

[15] The assessment made by the occupational therapist was that the plaintiff should be provided with a long handled tub and toilet cleaner, a long shoehorn, and back support. The report also recommended attendant care in the amount of $390 per month as necessary. Follow-up was recommended. To date the plaintiff has only filed a claim for one monthly Attendant Care benefit of $390.

[16] In a Disability Certificate dated September 11, 2012, Dr. Khaira described the plaintiff’s injuries as follows:

Chronic thoracic spine sprain/strain

Chronic cervical spine strain/sprain

Chronic shoulder sprain/strain (Right)

Behaviour – Nervousness

[17] Finally, on October 22, 2014, Dr. T. Ganestram, of Rossland Physio & Wellness Clinic referred the plaintiff for chiropractic and massage therapy. A handwritten note on the pre-printed referral form says “MVA - - ongoing off/on right [unintelligible] levator scapula muscles pain”.

State Farm’s Evidence

[18] State Farm relies upon the following medical reports:

a. Insurer Examination Independent Medical Evaluation dated June 22, 2012;

b. Insurer Examination Independent Psychiatry Evaluation dated June 25, 2012; and

c. Insurer Examination Independent Medical Evaluation dated September 19, 2012.

[19] In an Insurer Examination Independent Medical Evaluation dated June 22, 2012 Dr. Roger Lam, a general practitioner specializing in chronic pain management and emergency medicine, describes an evaluation that he conducted of the plaintiff’s injuries. He reviewed various Treatment Plans and Disability Certificates that had been submitted to the insurer on behalf of the plaintiff. His report describes the history that he took and lists the complaints made by the plaintiff. He describes the physical examination that he undertook. His diagnoses were as follows:

a. Cervico-thoracic strain.

b. Right shoulder strain.

c. Lumbar strain.

d. Left chest/rib sprain - resolved.

e. Left elbow contusion - resolved.

[20] Under the heading “impairments” the doctor wrote, “[t]here was no identification of any significant ongoing accident-related musculoskeletal or neurological impairment during the present evaluation”. He summarized the results of his examination as follows:

Based on a review of the documentation and my June 8, 2012 assessment, it is my overall clinical impression that Mr. Paramananthan sustained myofascial strain injuries of his cervicothoracic, [sic] right shoulder, and lumbar spine, a left chest/rib sprain, and the left elbow contusion as a result of and following his April 14, 2012, motor vehicle accident. During the present assessment, there was no objective indication of any significant ongoing accident-related musculoskeletal or neurological impairment. Range of motion of the neck, back and upper and lower limbs was within normal limits. The neurological exam was unremarkable. There were no significant orthopaedic findings. There were no indications of any cervical or lumbar radiculopathy or peripheral neuropathy. Findings during the present assessment are consistent with resolving myofascial strain injuries to the right shoulder and cervico-thoracic and lumbar spine.

There are no indications of any complicating factors or pre-existing or concurrent medical conditions that would be felt to prolong recovery from the uncomplicated soft tissue injuries sustained. The accident-related myofascial strain injuries are considered predominantly minor in nature and would fall under the Minor Injury Guideline.

[21] In an Insurer Examination Independent Psychiatry Evaluation dated June 25, 2012, Dr. Allan Peterkin, a psychiatrist, described a psychiatric evaluation that he conducted upon the plaintiff. The doctor described the plaintiff’s then “current status” as follows:

Mr. Paramananthan now attends physiotherapy twice per week. He saw his doctor last Friday, who states that he can likely return to his workplace at the end of June 2012.

The claimant states that his left arm is 90% better, shoulder blade is 20% better, and neck is 20% better. He cannot perform heavier tasks, such as vacuuming or cutting the grass, but does light tasks.

The claimant states that his problems are now 100% physical. He describes no problems with his mood and no features of anxiety or insomnia. His weight and appetite are normal. He has no autonomic symptoms of anxiety or obsessive worry. He experiences no excessive anxiety as a passenger in a car and is now able to drive to his destinations. The claimant states that he reports no psychological distress from the accident or any need to see a mental health specialist related to the accident at this time.

[22] Dr. Peterkin opined that there is no psychological diagnosis. He found that the plaintiff suffered from “[n]o psychological impairment”.

[23] In a further Insurer Examination Independent Medical Evaluation dated September 19, 2012, Dr. Lam described the results of a further evaluation and examination that he conducted on September 7, 2012. In his summary he wrote the following:

On today’s evaluation, Mr. Paramananthan indicated a complete resolution of his neck and back pain. Range of motion of the neck, back, and upper and lower limbs was within normal limits. The neurological examination was unremarkable. There were no significant orthopaedic findings

Mr. Paramananthan indicated that he participated in a return to work program on August 7, 2012 and has been completing his regular full-time employment duties for the past two weeks. There was no identification of any significant ongoing accident-related musculoskeletal or neurological impairment that would preclude a continued resumption of Mr. P’s pre-accident employment duties.

State Farm’s Submissions

[24] State Farm submits that the failure of the plaintiff to testify is virtually fatal to his claim. There is no evidence submitted by the plaintiff to rebut the medical observations and opinions submitted by the defendant. Moreover, even on the plaintiff’s evidence, at its highest, the plaintiff suffered sprains and strains that were predominantly minor in nature. If necessary, the court can use the expanded fact-finding powers in rule 20.04(2.1) to infer that the plaintiff suffered only minor injuries. He was back to work in August, 2012, some four months after the accident. Alternatively, the court should draw an adverse inference against the plaintiff due to his failure to submit evidence to establish that he suffers from any injuries outside the Minor Injury Guidelines.

[25] Looking at the specifics of the evidence relied upon by the plaintiff on this motion, the defendant says it amounts to no evidence at all. The psychologist’s referral of the plaintiff for an assessment reported symptoms some 11 days after the accident. The assessment was conducted by a psychiatrist in June, 2012, two months later, and by that time the plaintiff’s psychological symptoms had resolved completely. The reports are not contradictory in State Farm’s submission. The plaintiff did not deny or contradict the psychiatrist’s recitation of the plaintiff’s own statements indicating that he had no ongoing psychological issues.

[26] State Farm submits that the reference to “nervousness” in the chiropractor’s form provides no evidence of either a probative psychological diagnosis or of any relationship between the nervousness and the motor vehicle accident.

[27] The remaining diagnoses made by the Dr. Khaira are all expressly “sprains” and “strains” that fall within the Minor Injury Guidelines. The addition of the word “chronic” just four months after the accident provides no indication that the injuries are actually chronic in the sense of permanent, or that they are not minor.

[28] The Attendant Care Report is completely consistent with minor injuries in State Farm’s submission. It does not contradict the defence medical experts’ opinions.

[29] Finally, the handwritten note of a doctor’s referral of the plaintiff for chiropractic and massage therapy based upon off and on shoulder muscle pain is also consistent with injuries that are predominantly minor. Sporadic pain is not chronic pain.

[30] The defendant points out that there is no evidence from the plaintiff that he suffers any ongoing pain or injury related to the motor vehicle accident. There is no medical opinion indicating that the plaintiff suffers from “chronic pain” however it may be defined. All of the evidence is that the plaintiff suffered sprains and strains.

[31] State Farm relies upon its medical opinions and the doctors’ expressed views that the plaintiff’s injuries fall within the Minor Injury Guidelines. I do not rely upon the doctors’ opinions concerning the application of the guidelines to the facts that they found. It strikes me that the ultimate question is for the court in this case.

The Plaintiff’s Submissions

[32] The plaintiff argues that for the court to obtain a full appreciation of the plaintiff’s injuries, a trial is required. Counsel argued that the credibility of the plaintiff is the key to assessing chronic pain. Moreover, multiple witnesses are required to testify to their observations of the plaintiff. In addition, treating doctors’ evidence is required. In this case, there has been no discovery as yet. It is premature for the court to assess the quality of the plaintiff’s injuries.

[33] The plaintiff’s counsel also complained that because the defendant’s experts’ reports were delivered as exhibits to an insurance adjuster’s affidavit, they were denied the right to cross examine the doctors.

[34] The defendant notes that there is only one decision of the Financial Services Commission of Ontario concerning chronic pain under the Minor Injury Guidelines and that decision is under appeal to the Divisional Court. See Scarlett v. Belair Insurance Company Inc., 2013 CarswellOnt 17362 (Financial Services Commission of Ontario (Appeal Division)). The plaintiff argues that summary judgment should not be granted when the law is unsettled. See: Nadvornianski v. Stewart Title Guaranty Co., 2006 CanLII 21787 (ON SC), [2006] O.J. No. 2611.

[35] The plaintiff says that allowing a motion for summary judgment gives the defendant two kicks at the can and is a slippery slope to let insurers increase costs.

Analysis

[36] In my view, a motion for summary judgment is a most efficient and, especially, proportionate procedure for dealing with a case within the monetary jurisdiction of the Small Claims Court such as this one. I am confident that I can make the necessary findings and apply the relevant law on the record before the court. Of significance is that there are no real contradictions in the medical evidence that the parties have chosen to adduce.

[37] Many cases have commented upon the inappropriateness of delivering a lawyer’s affidavit on a motion for summary judgment. e.g. Ferreira v. Cardenas, 2014 ONSC 7119 at para. 13. Rule 20.02(1) provides that on a motion for summary judgment, the court may, if appropriate, “draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.” There is an obligation on a party responding to a motion to summary judgment to “put his best foot forward” or to “lead trump or risk losing”. See: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 26. The plaintiff did neither. In light of the paucity of the evidence put forward by the plaintiff, I do not need to draw an adverse inference in this case. I can resolve the issues on the evidence before the court without making findings on contested facts. Were an inference required however, I would draw an adverse inference against the plaintiff in light of his failure to answer the defendants’ medical evidence of which he has had knowledge since 2012.

[38] The plaintiff’s argument that his credibility is key to the case rings hollow in light of his failure to adduce evidence. Neither does the argument that more evidence is required hold water. The plaintiff could have adduced whatever evidence he wished. The plaintiff could have cross-examined the defendants’ experts by summons to witness under rule 39.03(1). Alternatively, if he felt that summary judgment was an inappropriate procedure in light of the number of witnesses required and the lack of discoveries, he could have brought a motion for directions under rule 1.05 as discussed in Hryniak v. Mauldin, 2014 SCC 7 at para. 70. Moreover, the evidence to be obtained by examination for discovery of an insurance company executive or the opposite parties in a car accident has no bearing upon the injuries suffered by the plaintiff. The evidence of the plaintiff’s injuries is uniquely his to give and to support by appropriate objective, third-party and medical expert evidence.

[39] I see no risk of “two kicks at the can” or a “slippery slope” in allowing this motion to proceed. If the defendant succeeds, it has saved the parties significant time and cost in resolving the case at an early stage. If it does not succeed, it may be penalized in costs and/or the issue may be determined against it with finality. Moreover, in an unsuccessful motion for summary judgment, the court is required to consider ways to advance the case toward final resolution consistent with the goals of efficiency, affordability, and proportionality. See Hryniak, supra, at para. 79. Encouraging summary judgment is a slippery slope toward facilitating access to justice.

[40] Counsel for the plaintiff made strategic choices, perhaps cost based, or not, as to how to respond to this motion. The court will hold parties to those choices. See: ThyssenKrupp Elevator (Canada) Limited v. Amos, 2014 ONSC 3910 at para. 44. The alternative would indeed be a slippery slope in which counsel are encouraged to withhold their trump cards for trial. Trial by ambush tactics are the antithesis of efficient, affordable, and proportionate procedures.

[41] I agree with State Farm’s counsel that there is no inconsistency between the evidence relied upon by both sides. All of the evidence establishes that, at most, the plaintiff suffers from minor injury within the definitions contained in the Minor Injury Guidelines. Even if his injury were not entirely “minor injury” it certainly is “predominantly a minor injury”. There is no credibility issue. There is no evidence that the plaintiff suffers from “chronic pain” as described by the Supreme Court of Canada at para. 1 of Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54. Therefore the issue of whether chronic pain related to minor injuries and whiplash associated disorders falls within the Minor Injury Guidelines does not arise in this case. Accordingly, even if Nadvornianski, supra, survives Hryniak, supra, (which I doubt) the “unsettled” issue of how chronic pain is dealt with under the Minor Injury Guidelines does not arise in this case.

Costs

[42] State Farm sought costs of $3,500 for this motion, including HST, disbursements, and its assessable costs for the remainder of the action. The plaintiff, by contrast, sought costs, including disbursements and HST, of over $9,000 on a partial indemnity basis for this motion alone. In all, it strikes me as both fair and reasonable that State Farm should have its costs at the discounted amount that it sought.

[43] Summary judgment is granted dismissing the action against State Farm with costs payable by the plaintiff to State Farm in the amount of $3,500 inclusive of disbursements and HST. State Farm may set off against the costs that it is owed the amount remaining to be paid to or on behalf of the plaintiff recited in para. 5 above. Should it choose to do so, only the remaining balance will be payable by the plaintiff to State Farm.

________________________________ F.L. Myers J.

Date: March 20, 2015

[1] The plaintiff appears to also go by the surname Paramananthan. The two surname variants seem to be used interchangeably in the title of proceedings in various pleadings in the record. The name Paramananthan appears to be used in the medical records.

[2] In my view they can be likened to expert medical practitioners’ reports filed under s. 52 of the Evidence Act, R.S.O. 1990, c.E.23 in any event.

[3] Counsel agreed that these could be treated as business records under s.35 of the Evidence Act.