COURT FILE NO.: CV-13-0398

DATE: 20151214

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BONNIE POMEROY-ARENES, Plaintiff

AND:

NICOLE VERNON and PETER BLAIR, Defendant

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL: M. Elkin and N. Skupsky, for the Plaintiff

K. Dickson, for the Defendant Blair

HEARD: December 4, 2015

ENDORSEMENT

[1] The defendant moved, after the jury had rendered its verdict, for an order or declaration that the plaintiff’s claim for non-pecuniary loss is barred by s. 267.5(5) of the Insurance Act, R.S.O. 1990, c.I.8. The jury awarded the plaintiff $700 for general damages, and $8,300 for past loss of income. The jury made no award for future wage loss or future care costs.

[2] Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719 (Ont. C.A.) at para. 8 makes clear that the timing of the hearing of such a threshold motion is in the discretion of the trial judge. Further, Kasap directs that in deciding the threshold motion, the presiding judge may, but is not required, to consider the jury’s verdict in the exercise of her judicial discretion.

[3] Defence counsel urges the court to adopt the approach taken in Shepstone v. Cook, 2013 ONSC 418 (S.C.J.) at para. 31, and Clark v. Zigrossi, 2010 ONSC 5403 (S.C.J.) at para. 18, whereby the jury’s verdict was taken into account by the trial judge, although acknowledging that the comments in Clark at para. 18 go beyond the direction from the Court of Appeal in Kasap.

[4] Defence counsel advises that his client made no Rule 49 offer. The purpose of hearing this motion is, first, to determine whether the defendant is liable for the non-pecuniary award, and if so, to permit the plaintiff’s counsel to argue, as they indicated they will, the issue of the retroactive application of an amendment to subsection 267.5(9), which now provides:

(9) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, the determination of a party’s entitlement to costs shall be made with regard to the effect of paragraph 3 of subsection (7) on the amount of damages, if any, awarded for non-pecuniary loss. 1996, c. 21, s. 29; 2015, c. 20, Sched. 17, s. 3(4).

[5] Plaintiff’s counsel indicated that they also will seek to argue the issue of the retroactive application of an amendment to the Insurance Act which has changed the rate of calculation of prejudgment interest. One analysis of the effect of this amendment is found in Cirillo v. Rizzo, 2015 ONSC 2440.

Legislative Framework

[6] This accident occurred on April 3, 2012 and is therefore governed by regulation 381/03, known as Bill 198 (the Regulation).

[7] The defendant submits that the plaintiff’s claim for general damages is barred by the Regulation, as the plaintiff cannot meet the exceptions to exempt herself from the statutory bar contained in s. 267.5(5) of the Insurance Act. Section 267.5(5) of the Insurance Act stipulates that the owner of an automobile is not liable for non-pecuniary losses unless the injured person has sustained “a permanent, serious impairment of an important physical, mental or psychological function”.

[8] The Regulation provides definitions for the terms “permanent”, “serious impairment”, and “important function”. To summarize, the statutory language set out in the Regulation, at s. 4.2(1), establishes that:

The impairment must,

(a) 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;

(b) 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

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

For the impairment to be of an important function, the function must,

(a) 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;

(b) 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;

(c) be necessary for the person to provide for his or her own care or well-being; or

(d) be important to the usual activities of daily living, considering the person’s age.

For the impairment to be permanent, the impairment must,

(a) have been continuous since the accident 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;

(b) continue to meet the above criteria; and

(c) be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

[9] The cases establish that courts hearing threshold motions are to apply the three-part approach first established by the Court of Appeal in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.): Hayden v. Stevenson, 2009 31990 (ON SC), [2009] O.J. No. 2571 at para. 7-13 (S.C.J.); Nissan v. McNamee (2008), 2008 20345 (ON SC), 62 CCLI (4th) 135 at para. 14 (S.C.J.); Ahmed v. Challenger, [2000] O.J. No. 4188 at para. 17 (S.C.J.); Frankfurter v. Gibbons (2004), 2004 45880 (ON SCDC), 74 O.R. (3d) 39, at para. 22 (Div. Ct.).

[10] The three-part approach from Meyer consists of asking sequentially the following questions:

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 an important one?

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

[11] The analysis must first consider whether the plaintiff, on the balance of probabilities, has proved that her impairment was caused by the automobile accident in question: Dinham v. Brejkalan (2005), 2005 46749 (ON SC), 33 CCLI (4th) 263, 2005 CarswellOnt 7604 at para. 20 (S.C.J.); Bissier v. Thorimbert, 2006 CarswellOnt 6135 at para. 19 (S.C.J.).

[12] Next, the plaintiff has the onus of proof to establish that her injuries or impairments meet the threshold. With respect to past or existing matters, this standard of proof is a balance of probabilities. With respect to what will happen in the future, a party can satisfy the onus by demonstrating, via expert or cogent evidence, that there is a real and substantial possibility that a particular event or condition may occur: Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, at para. 50 (C.A.); Chilman v. Dimitrijevic (1996), 1996 646 (ON CA), 28 O.R. (3d) 536 at para. 13 (C.A.); Sabourin v. Dominion of Canada, [2009] O.J. No. 1425 at para. 78 (S.C.J.).

“Permanent” Impairment

[13] Defence counsel submits that the plaintiff fails to meet the first branch of the Meyer test, as the accident did not result in a permanent impairment.

[14] Permanence means lasting or maybe a “sense of weakened condition lasting into the indefinite future without any end limit”: Morrison v. Gravina (2001), 2001 62749 (ON SC), O.J. No. 2060, 29 CCLI (3d) 129 (S.C.J.) at para. 10; Coulter v. Liberty Mutual Insurance, 2003 O.J. No. 2088 (S.C.J.) at para. 22; Trepkov v. Jaworski, 2015 ONSC 1746 (S.C.J.) at para. 50. A permanent injury meets the threshold if the limitation and function is unlikely to improve for the indefinite future: Nissan v. McNamee (2008), 2008 20345 (ON SC), 62 CCLI (4th) 135 (S.C.J.) at paras. 31-33; Brak v. Walsh, 2008 ONCA 221, [2008] O.J. No. 1173 (C.A.) at para. 4.

[15] If it is found as a matter of fact that the accident-related impairment has come to an end prior to trial, the inquiry ends. An injury that does not exist at the time of trial is not permanent and such fact is sufficient to support the conclusion that the plaintiff does not fall within the exception set forth in s. 267.5(5)(b): Xiao v. Gilkes, 2009 CarswellOnt 924 (S.C.J.) at para. 21.

[16] Chronic pain arising from injuries sustained in a motor vehicle accident, and which accounts for limitation and function unlikely to improve for the indefinite future, will meet the requirement of permanence under the threshold: Hartwick v. Simser, 2004 O.J. No. 4315 (S.C.J.) at para. 87; Tulloch v. Akogi, 2007 58408 (ON SC), [2007] 85 O.R. (3d) 793 (S.C.J.) at para. 87; Golab v. Schmidt, 2007 12206 (ON SC), [2007] O.J. No. 1412 (S.C.J.), at para. 10.

Impairment of an “Important Function”

[17] The determination of whether the impairment in issue is “important” is a subjective analysis. The court must determine whether the permanently impaired function is important to the particular injured person. An important function is one that plays a major role in the health, general well-being, and way of life of the particular injured plaintiff: Meyer, at paras. 19-27.

Serious Impairment

[18] The assessment of whether an impairment of an important bodily function is serious relates to the serious of the impairment, and not to the injury itself: Meyer, at para. 32. The definition in the Regulation of whether an impairment is serious is drawn directly from Meyer. A serious impairment is one which causes, generally speaking, substantial interference with the ability of injured person to perform his or her usual daily activities or to continue his or her regular employment: Meyer, at para. 34. The issue is to be resolved on a case-by-case basis.

[19] In determining whether the impairment is serious, it is important not to focus on any particular aspect of the plaintiff’s impairment, but rather the totality of his or her circumstances and the cumulative effect on his or her life: Sasso v. Copeland, 2005 45205 (ON SC), [2005] O.J. No. 5226 (S.C.J.), at para. 19; Rizzo v. Johnson 2006 34452 (ON SC), 2006, 82 O.R. (3d) 633 (S.C.J.) at para. 28. Where a plaintiff functioned at a low level pre-accident, the impairment is serious if the injuries have further marginalized her existence, and have had a serious physical and psychological impact on her future enjoyment of life: Briggs v. Maybee (2001), 2001 62751 (ON SC), 29 CCLI (3d) 104, [2001] O.J. No. 941 (Gen. Div.), at para. 29.

Ruling

[20] I find that the injuries sustained by the plaintiff in the accident of April 3, 2012 and resultant disabilities constitute a permanent and serious impairment of an important physical, mental or psychological function, as defined in the Regulation, and in accordance with the test set out in Meyer v. Bright.

[21] In reaching this decision, I have considered the jury’s verdict. While speculation into how the jury arrived at its verdict is problematic, the awards for general damages and past loss of income indicate that the jury believed that there were minimal effects from the 2012 accident. On the evidence heard, it is possible that they disbelieved the plaintiff’s evidence of her injuries, particularly since she was impeached a number of times using prior statements about the impact of the collision and the permanence of her injuries. It is also possible on the evidence heard that they evaluated the plaintiff’s position at trial as being no different than her pre-accident condition, and gave a minor award for the temporary exacerbation of her pre-existing conditions and injuries. Whichever may have been the case, I take a contrary view, taking into account all of the evidence heard in the case.

Evidence in the Case

[22] The plaintiff was involved in three accidents that occurred on October 2, 2010, October 2, 2011 and April 3, 2012.

[23] Preceding any of the accidents, the plaintiff had meningitis, related headaches from flare ups of that condition, and fibromyalgia.

[24] At the time of all three accidents, the plaintiff was employed by the Markham Stouffville Hospital as a speech language therapist. She had held this employment since 2000. She has a Master’s degree is speech pathology and had worked in that field ever since her graduation in 1993. Over the years the plaintiff had become a leader in her field, and was described as having considerable expertise in the area of feeding and swallowing. She had also helped to establish and was the head of a feeding clinic at the hospital where she was employed. She managed a case load of between 40 to 60 families in the York Region, and travelled out into the community to service her clients’ needs.

[25] Historically, the plaintiff had worked five days per week. In 2009 she decreased her work week to four days per week, with benefits, in response to a restructuring at the hospital. In September 2010 she reduced to three days per order in order to assist her son to make the transition to a new academic year. The uncontroverted evidence is that the plaintiff’s son Nicholas suffers from Tourette’s syndrome and ADHD, and the plaintiff has been involved in his care throughout the years, particularly assisting with his adjustment at the beginning of each school year.

[26] In the 2010 accident the plaintiff’s care was T-boned and written off. The plaintiff took no time off work after that accident. However, the collision left her with physical injuries to her neck, shoulder, back and left hip, which were treated through physiotherapy. Functional impairments were also seen; the plaintiff’s husband had to help her with some of her activities of daily living, including dressing, washing and brushing her hair, and assisting with household work to a greater degree than he had previously.

[27] After the 2010 accident she had restrictions in respect of her work activities. She had to carry less weight, needed help carrying her equipment to her car, and she saw fewer clients. She was to avoid getting down on the floor to be in contact with a child client.

[28] In January 2011 her work hours increased again to four days per week. However, both as a result of the physical difficulties that she was still experiencing from the 2010 accident, along with the beginning of new school year for Nicholas, her hours again reduced to three days per week in September 2011.

[29] The 2011 accident resulted in greater than $7,000 in damages to her car. She was stopped, with her foot on the brake, and was rear-ended.

[30] After the 2011 accident she took a couple of weeks off of work. She then worked from home for each of her three scheduled days, working on policies and reports and consulting with staff. By January 2012 she was starting to travel back down to the York Region one or two days per week, continuing to work the third day from home. This remained the case in the time period between January and March 2012, leading up to the third accident.

[31] After the 2011 accident the plaintiff continued to attend physiotherapy. She remained under restrictions in respect of her work activities.

[32] It is clear that the 2011 accident had an impact on her physically. She agreed that she had no energy left at the end of the day, and fell asleep early every evening. I accept that all of the limitations that she had after the 2012 accident existed before that accident, but not to such a severe degree. She also complained of tingling in her limbs after the 2011 accident.

[33] The 2012 accident involved a very minor collision. The plaintiff was hit from behind when her car was either stopped at red light or was moving forward very slowly. The defendant described the pace as a slow walk. The plaintiff described the contact as mild. The plaintiff also described the force as feeling as though she was “tapped”. No part of her body struck the inside of the car. She was able to later drive the car to her home. The cost of repair to the vehicle from the 2012 accident was approximately $700, and necessitated repair to the rear bumper cover of the plaintiff’s vehicle. The plaintiff testified that within a short time of the accident she had increased pain in her neck, shoulder and hip, together with a tingling in her legs. She felt drained and had no energy and was exhausted. She was unable to return to work that week because of her pain and fatigue; she testified that she had no endurance or energy. She testified that she indicated that her symptoms were worsened and the pain was intensified as a result of the 2012 accident.

[34] Dr. Brian Alpert, an orthopaedic surgeon, opined that the plaintiff had significant chronic pain after the 2010 accident in the areas of her neck, left shoulder and left hip. He testified that she had chronic disability and was in moderate to severe chronic pain, but was still able to work with modifications. She had to modify her job duties and reduce her case load, obtaining help from co-workers to take things to her vehicle, and was to avoid heavy lifting. He testified that after the 2011 accident, there was only limited improvement, although her functioning was stabilizing. However she was not at that point substantially disabled because she was able to get back to some level of function with her job, although on a modified basis.

[35] The plaintiff was working under this modified schedule at the time of the 2012 accident. In considering his evidence, I have noted that he agreed that the plaintiff told him that the pain in her shoulder blades, neck, shoulder and low back had been worsening before the 2012 accident occurred. Despite that, she continued to leave her home for the community- based work two days per week, right up until the third accident.

[36] None of the medical doctors who examined the plaintiff, including the physiatrist who testified for the defence, Dr. Lipson, found that the plaintiff showed any evidence of symptom magnification, malingering or motivation for secondary gain. Dr. Alpert found the testing of her musculoskeletal limitations to be consistent with chronic pain. The fact that her complaints continue to exist three years after the motor vehicle accident was significant in his opinion, in that she has failed to improve functionally, both objectively and subjectively.

[37] Dr. Alpert testified that she has a poor outlook or prognosis in terms of her orthopaedic future. The pain will remain in her neck, shoulder, upper back and lower back, worsening with time and leading to a speeding up of the aging process in her body. He testified that he did not see her ever returning to her career or any gainful employment, and that she is permanently disabled. She will not improve and it will be a slow downhill course, with permanent physical restrictions.

[38] Mr. Walton, a registered psychotherapist who completed a psycho-vocational assessment of the plaintiff, confirmed that she neither over-reported nor under-reported when responding to the psychological questionnaires. It was his evidence that she had improved both emotionally and psychologically over the past three years following the 2012 accident, and at the time of her assessment in 2014 she did not meet the diagnostic criteria for any psychological disorder. He testified, however, that the plaintiff is in pain and incredible fatigue, and that her chronic fatigue and fibromyalgia create problems with her brain function, affecting her ability to concentrate and to use her memory. He testified that she stoic by nature and in his assessment, has had to reluctantly accept the fact that she could not work after the third accident. Mr. Walton has treated the plaintiff since 2012 and saw her most recently two months prior to the trial. He testified that he has spent approximately 50 hours with the plaintiff. It is his opinion that she will never return to work as a speech pathologist because her pain, fatigue and memory function will not let her return. Her ability to access her intelligence is seriously impaired by her chronic pain and fatigue.

[39] The plaintiff has been under the care of a family physician since the 2012 accident, although switched to a new doctor at the beginning of 2013. She presently sees a nurse practitioner in that office, every four to six weeks. Cheryl Carlos, the nurse practitioner, testified that the initial plan to was to get the plaintiff back to work. It then became apparent that return to work was not a realistic goal, as the plaintiff was unable to reach that level of functional ability. Mrs. Carlos described the plaintiff as an intelligent and articulate woman who is always looking for ways to get better or improve.

[40] Dr. Gordon Ko, the physiatrist who provided expert opinion evidence with respect to the plaintiff, testified that the plaintiff’s chronic pain has developed into chronic pain syndrome, meaning that she has another constellation of symptoms including sleep and mood disturbance. He agreed that in a questionnaire completed by the plaintiff prior to the 2012 accident, she reported a similar constellation of symptoms.

[41] Dr. Ko testified that the prognosis for the plaintiff from a physical perspective is guarded, meaning that her likelihood of recovery is low. He testified that with respect to the 2011 motor vehicle accident, the fact that she was slowly making improvements shows that she was motivated and had the reserves to do so, and that she was trying to get better. Dr. Ko found evidence of facet joint injury to the plaintiff. It was his evidence that this may have occurred during the 2011 accident. However, the lack of healing of the facet joints means that they became unstable, and accordingly, after the second accident the plaintiff was at risk for further facet injury. It was his view that she did not need much force to cause further strain to those neck joints, which occurred during the 2012 accident.

Discussion

[42] I agree with the analysis set out by Mr. Dickson in his memorandum of law, necessitating a five-stage evaluation process for each accident related difficulty to which the plaintiff points as justification for relying upon the statutory exception to the bar on awards of general damages.

[43] This is case in which successive accidents led to successive degrees of impairment. The plaintiff has a functional impairment, which is an inability to perform her regular occupation, or any other occupation due to chronic pain in her neck, shoulder, upper back, lower back and left hip, as well as chronic fatigue exacerbated by her chronic pain. Accordingly, I determine first as a matter of fact that the plaintiff has a functional impairment.

[44] Second, I accept that the functional impairment was caused by the accident in question. The evidence of the plaintiff’s exceptionally strong work ethic, commitment to her career and the families and colleagues that she worked with, and the satisfaction that she derived from her job, was highly compelling. I accept, therefore, that if she could choose to work, she would be working. She was able to work, albeit with difficulty and with accommodation, prior to the final accident. The most cogent and believable cause for why she is no longer able to do so is the intervention of the third accident. I accept the evidence of Dr. Alpert, Dr. Ko and Mr. Watson that there was a measurable adverse effect on the plaintiff from the final accident. Even though it involved a light impact, her already injured body was negatively and seriously affected. Those areas of her body already vulnerable to pain – neck, shoulder, upper back, lower back and hip – developed heightened pain and increased chronicity. I accept that the only area that resolved to a pre-accident level was the plaintiff’s hip, on her evidence. Her chronic fatigue increased in severity. Her chronic pain syndrome increased in severity. Even though the plaintiff’s overall psychological profile appears to have improved through psychological therapy and a non-traditional treatment method for managing pain, her physical functioning remains fully compromised after the 2012 accident, rendering her unemployable.

[45] Third, the plaintiff’s impairment has not resolved in the three and a half years preceding the trial. The evidence of Dr. Alpert and Dr. Ko is that it will not improve, and I accept that to be the case.

[46] Fourth, the impairment is of an important function, being the ability to remain awake, focused and attentive on one’s job, to be able to drive consistently, and to be able to perform the activities necessary to service clients and her employer’s needs.

[47] Last, the impairment is serious in that it wholly prevents the plaintiff from carrying out gainful employment.

[48] For the foregoing reasons, the defence motion is dismissed.

Costs

[49] In the event that the parties cannot resolve the issue of costs, they are to contact the trial co-ordinator in Barrie to arrange a date (2 hours allotted) to make oral submissions. In the event that the plaintiff’s counsel seek to raise the arguments set out in paras. 4 and 5 herein, they shall serve and file a factum at least 7 business days prior to the hearing.

The defendant’s factum shall be served and filed at least 3 business days prior to the hearing.

HEALEY J.

Date: December 14, 2015