CITATION: Malfara v. Vukojevic, 2015 ONSC 78
COURT FILE NO.: CV-08-358750
DATE: 20150108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE MALFARA
Plaintiff
– and –
NIKOLA VUKOJEVIC and RANKO VUKOJEVIC
Defendants
Andrew Suboch, for the Plaintiff
Blair Nitchke and Rabeena Mussalin, for the Defendants
HEARD: October 7, 2014
REASONS FOR DECISION – THRESHOLD MOTION
firestone j.
[1] The plaintiff Giuseppe Malfara (“Malfara”) brings this action for damages as a result of a motor vehicle collision which occurred on September 13, 2006. On October 7, 2014 the jury returned its verdict and awarded $7,700 for general damages,[^1] $1,326 for past loss of income and nil dollars for future loss of income including loss of competitive advantage.
[2] Following my jury charge and while the jury was deliberating, the defendant 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 his injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5) 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 2006, 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) and (b) of the Act stipulates that the owner of an automobile is 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] 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 which 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:
- 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.
[7] In DeBruge v. Diana Arnold, 2014 ONSC 7044, (the court confirmed that in making its threshold determination, the judge is not bound by the jury verdict. The verdict is, however, a factor the judge may consider in determining the issue. At para. 10 the court refers to the Ontario decision in Kasap v. MacCallum, 2001 CanLII 7964 (ON CA), [2001] O.J. No. 1719 and states in part as follows:
However, the Court of Appeal has made it clear in Kasap v. MacCallum, 2001 CanLII 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 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.
[8] O. Reg. 461/96 does not change the interpretation to be given 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.
[9] In Adams v. Taylor 2013 ONSC 7920, 118 O.R. (3d) 389, the court refers the decision in Nissan v. McNamee 2008 CanLII 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.”
[10] 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. Prior case law, as confirmed in Sherman at para. 142, is of assistance in determining what constitutes permanent, serious, continuous injuries, and what constitutes an important function.
[11] 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) 15 O.R. (3d) 12 (C.A.), at para. 50 and Page v. Primeau, 2005 CanLII 40371 (ON SC) para. 11.
[12] In Myer v. Bright, the court outlined the three part inquiry to be undertaken in the threshold analysis as follows:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired important?
If yes, is the impairment of the important function serious?
[13] Under s. 4.2(1)3 of O. Reg. 461/96, for the impairment to be permanent, 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.
[14] In Bos v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424 (Ont. Gen. Div.), the court at p. 169 and 170 confirms that the word “permanent” does not necessarily mean strictly forever until death. Permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit.
[15] 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.
[16] 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 his 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.
[17] 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.
[18] In Ahmed v. Challenger, [2000] O.J. No. 4188 (S.J.), the court at para. 18 in making reference to Meyer emphasized the necessity of distinguishing between functions which are important to the injured person and those that are not.
[19] The test of whether the impaired function is “important” is a qualitative test: Page, at para. 32.
[20] 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.
[21] 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, paras. 28-36; Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.), at para 56.
[22] 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 CanLII 45880 (ON SCDC), 74 O.R. (3d) 39 (Div. Ct.), at paras. 22-24.
[23] It is important to recognize that it is “the effect of the injury” on the person and not the “type of injury” or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which the plaintiff has been impacted. The threshold determination is to be done on a case by case basis.
The Evidence
[24] The plaintiff was 24 years old at the time of the collision and was completing his plumbing apprenticeship. He lived and continues to live with his parents and is engaged. As a result of the accident the plaintiff experienced neck pain and ongoing back pain which is alleged to be chronic. There was conflicting medical evidence regarding whether the plaintiff’s soft tissue injuries would get worse with time. Post-accident the plaintiff continued, following the two to three week period he was off work, to work full time as a plumber’s apprentice at the same hours as he did prior to the accident, but with pain. He eventually became a fully licensed plumber. His income has gone up over the two to three years prior to trial. He did not recall if any job modifications were necessary. His employer was not called to give any evidence about this. He currently does all of his job duties but with pain and currently works 7 a.m. to 3 p.m. He makes more now than he did at the time of the accident.
[25] Currently, he has ongoing back discomfort. He can still do things but pays for it later. He is still able to do his renovation side job but sometimes has a friend help him. He has turned down some side jobs because it is too much for him. He does not declare the income he makes from these side jobs.
[26] He does not participate in his prior sporting activities partly because of his injuries and partly because he is so busy.
[27] Prior to the collision he cut the grass, shoveled the snow and helped in the kitchen. There has been no period of time where he did not do these activities. However, when he does do them it hurts. He has continued to do them because his parents are elderly and he does not want them to.
Analysis
[28] Based on the evidence, I am not satisfied that the plaintiff has met all the requirements of s. 4.2 of O. Reg. 461/96 and the applicable jurisprudence which require that the impairment(s) be permanent, important and serious. To be serious the impairment(s) must substantially interfere with the plaintiff’s ability to continue his regular or usual employment or substantially interfere with most of his usual activities of daily living considering his age. I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages.
[29] The plaintiff has not sustained a serious impairment. He resumed his full-time physically demanding employment as a plumber’s apprentice within a few weeks without notable restriction, without ongoing debilitating pain and with no loss of pay. He went on to become a licenced plumber. The injuries sustained have not prevented him from becoming and working as a full-time plumber. There has been no or little restriction in his ability to carry out his duties as a plumber.
[30] There is pain and has been some restriction in the plaintiff’s ability to take on side jobs doing renovations. I do not accept that there has been a “substantial interference” as a result of the accident given that he still does these side jobs, despite the fact that a friend sometimes helps him. His last side job was a few weeks prior to trial.
[31] Regarding the plaintiff’s “activities of daily living” I agree with the court’s pronouncement in Sabourin v. Dominion of Canada General Insurance Co., [2009] O.J. No. 1425 (S.C.), at para. 99 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.”
[32] The plaintiff continued, with pain, to do his household activities following the accident. This includes yard work and snow shoveling.
[33] The evidence does not support the conclusion that there has been, as a result of the accident, a substantial interference with the recreational and sporting activities he participated in before the accident.
[34] The plaintiff no longer plays hockey, basketball or soccer and does not go to the gym as often in part because he is too busy.
[35] As in Bridgewater v. James, [2004] O.J. No.5282 (S.C.), at para. 49: “[t]he issue for the Court is whether the effect on the plaintiff’s employment or the interference with the plaintiff’s enjoyment of life go beyond the tolerable to the serious: see Frankfurter v. Gibbons, 2004 CanLII 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 qualify as “serious” according to the standard in Meyer v. Bright.”
[36] The evidence does not support the conclusion that the 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.
[37] I do accept, based on the medical evidence, that the back pain the plaintiff has experienced and continues to experience is permanent and that it is expected to last into the indefinite future, and that his impaired back function is an important function given the physical nature of his job as a plumber.
[38] As a result I find that the plaintiff has failed to discharge his onus of proof on a balance of probabilities that his 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. The defendant’s threshold motion is therefore granted.
[39] In my collateral benefit endorsement dated January 8, 2015 it was determined that the plaintiff is entitled to nil dollars for past loss of income. In light of that determination as well as my determination on this threshold motion the plaintiff’s action is dismissed.
[40] The defendant’s shall deliver their written costs submissions totaling no more than six pages by January 23, 2015. The Plaintiff shall deliver their costs submissions of the same length by February 6, 2015. Any brief reply shall be delivered by defendants by February 12, 2015.
Firestone J.
Released: January 8, 2015
CITATION: Malfara v. Vukojevic, 2015 ONSC 78
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE MALFARA
Plaintiff
– and –
NIKOLA VUKOJEVIC and RANKO VUKOJEVIC
Defendants
REASONS FOR DECISION
Firestone J.
Released: January 8, 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.