CITATION: Berfi v. Muthusamy, 2015 ONSC 981

COURT FILE NO.: CV -12-463168

DATE: 20150212

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: JUSTICS O. BERFI, Plaintiff

AND:

SATHISWARAN MUTHUSAMY, Defendant

BEFORE: Stinson J.

COUNSEL: Albert M. Conforzi, for the Plaintiff

Michael Best and Christie Ngan, for the Defendant

HEARD at Toronto: February 6, 2015

ENDORSEMENT ON THRESHOLD MOTION

[1] The plaintiff Justics O. Berfi brought this action for damages as a result of a pedestrian-motor vehicle accident which occurred on October 28, 2010. On that date he was pushing a shopping cart across a parking lot when the cart, and then the plaintiff, were struck by the defendant’s car. On February 7, 2015, following an eleven-day trial, the jury returned its verdict and awarded the plaintiff $43,000 for general damages,$6,000 for past loss of income and zero for future loss of income. The jury found the defendant 80 % responsible for the accident and the plaintiff 20%.

[2] Following the charge to the jury 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.

Applicable Legislation and Regulations

[3] Given that the subject collision occurred in 2010, 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] Subsection 267.5(5)(a) and (b) of the Act provide 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.” Specifically, those provision read as follows:

Non-pecuniary loss

s. 267.5 (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.

[5] Effective October 1, 2003, O. Reg. 381/03 amended O. Reg. 461/96, Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996. O. Reg. 381/03 added new sections numbered 4.1, 4.2 and 4.3 to O. Reg. 461/96. These new sections now define (in ss. 4.1 and 4.2) 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 prescribe (in s. 4.3) the evidence that must be adduced to prove that the statutory exception or “threshold” has been met. Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 (“the Regulation”) provide as follows:

4.1 For the purposes of section 267.5 of the Act,

“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

1. The impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

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

2. For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

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

3. For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, and

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

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

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.

[6] As the opening language of s. 4.2 (1) of the Regulation makes clear, in order to overcome the statutory immunity, a plaintiff must satisfy all of the criteria as specified in items 1, 2 and 3.

[7] It is broadly accepted that the newer amendments to the Regulation do not dictate any significant change in the interpretation of the threshold, and that the analysis set out by the Court of Appeal in Meyer v. Bright (1993) 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) should still be applied: Nissan v. McNamee, 2008 20345 (ON SC), [2008] O.J. No. 1739, (2008), 62 C.C.L.I (4th) 135 (S.C.); Adams v. Taylor, 2013 ONSC 7920, 118 O.R. (3d) 389; Sherman v. Guckelsberger, [2008] O.J. No. 5322. As Firestone J. observed in Malfara v. Vukojevic, 2015 ONSC 78 (at para. 8):

[The Regulation] does not change the interpretation to be given the statutory immunity or “threshold wording” contained in s. 267.5 of the Act. [The Regulation] at s. 4.1, states that “[f]or 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.” Section 4.2 goes on to provide clarification regarding the intended meaning of the threshold wording provided for in the Act.

Prior case law is thus of assistance in determining what constitutes permanent, serious, continuous injuries, and what constitutes an important function.

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

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

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

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

[9] 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.

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

[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; Page v. Primeau, 2005 40371 (ON SC).

[12] As Firestone J. noted in Malfara, in DeBruge v. Arnold, 2014 ONSC 7044, Edwards J. confirmed that in making the threshold determination, the trial 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, Edwards J. referred to the Court of Appeal decision in Kasap v. MacCallum, 2001 7964 (ONCA), [2001] O.J. No. 1719 and stated in part as follows:

However, the Court of Appeal has made it clear in Kasap v. MacCallum, 2001 7964, [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.

Evidence and Analysis

[13] In the present case, the focus of the parties’ submissions was under s. 4.2(1)1. i. and iii. of the Regulation, which require, for the impairment to be serious (and the threshold to be met) that it:

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, [or]

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

The plaintiff asserts that his injuries from the car accident substantially interfere with his ability to work and substantially interfere with his usual activities of daily living. The defendant argues that they do not.

(a) Causation

[14] Before addressing the threshold issues themselves, I will deal with the preliminary question of whether the accident caused the plaintiff’s injuries.

[15] The plaintiff formerly worked as a forming carpenter in high rise building construction. He had a history of workplace accidents that caused him to have a significant impairment to his right shoulder and arm. He was left hand dominant, however, and thus despite this disability, he was able to continue his employment in construction, albeit as a supervisor and not as a carpenter. His employer accommodated his limitations.

[16] Following the October 2010 car accident in issue in this case, the plaintiff complained to a nurse in the emergency room and to his family doctor of left shoulder pain, which gradually became more problematic. He nevertheless continued to work. His family doctor referred him to specialists and ultimately, in October 2011 (one year post-accident), he underwent arthroscopic surgery to repair a rotator cuff tear in his left shoulder. He was back at work after missing only 17 days.

[17] The parties’ expert medical witnesses disagreed about the cause of the defendant’s left shoulder problem. As between those two witnesses, there was some common ground regarding certain matters. Where they disagreed, however, I preferred the evidence of the plaintiff’s expert, because I found him to be more objective and less of an advocate for the party who called him.

[18] According to the defendant’s expert, had the plaintiff suffered a rotator cuff tear in the course of the accident, he would have exhibited significantly more pain, external trauma and immediate shoulder problems than he did. This evidence was uncontradicted. Given the lack of immediately apparent problems, I find that the rotator cuff tear did not occur in the car accident.

[19] The defence expert did not assert that the rotator cuff tear occurred in the car accident. He explained, however, that an existing rotator cuff tear can be asymptomatic until something occurs, such as the accident in this case, which will cause it to become problematic. Plaintiff’s expert testimony was to the same effect.

[20] In view of the foregoing expert evidence and the facts described below, I find that the car accident was the cause of the left shoulder pain that the plaintiff has experienced post-accident. Prior to the car accident The plaintiff had suffered only minor and intermittent pain in his left shoulder. That changed in the wake of the accident. The likely mechanism of the accident – during which the plaintiff released the shopping cart he was guiding with his left hand and pushed his hand against the hood of the defendant’s car as it came toward him - is entirely consistent with the type of event that could cause an asymptomatic rotator cuff tear to become symptomatic. The onset of the left shoulder pain in the hours and days following the accident is also consistent with this phenomenon. I therefore accept the opinion of plaintiff’s expert that the car accident was the likely cause of his left shoulder difficulties. The jury’s award of general damages is also consistent with this conclusion.

(b) Threshold

[21] I now turn to the specific issues that arise for consideration in connection with the threshold motion. The plaintiff says that his left shoulder, arm and hand problems caused by the car accident, continued following his October 2011 rotator cuff repair surgery. Although the plaintiff did not follow up on a later further referral to his surgeon from his family doctor, and did not follow his family doctor’s advice to pursue further physiotherapy, he continued to work full-time as a supervisor up until trial (save for a 17-day recover period immediately post-surgery). He testified that he did so despite his painful condition and physical limitations arising from the accident, in order to reach age 55 (which he will attain on February 14, 2015) when he will be able to retire and begin to receive his union pension. As he put it, the right shoulder injury did not mean retirement, but the work is dangerous and since both shoulders bother him now, with the left shoulder also giving him problems, he decided to take care of his health instead of continuing to work, which he otherwise would prefer to do.

[22] He confirmed that he had “put in his papers” in order to collect his pension. The pension file that was ultimately produced contains a pension application signed by the plaintiff dated October 30, 2014, stating an anticipated retirement date of March 1, 2015. He maintained on cross-examination that he intended to retire and not return to the workforce. He testified that had no plans to withdraw his retirement papers and restated that he plans to retire.

[23] On Wednesday, January 28, 2015, the plaintiff completed his trial testimony. On Friday January 30, 2015, the union pension office sent to the plaintiff’s counsel a copy of his pension file. It had been requested previously by counsel for the defendant and immediately on its receipt a copy was provided to the defence. On Tuesday, February 3, 2015, in response to a summons by the defendant, a union representative attended to give evidence as part of the defence case, During the course of her testimony, a copy of the pension file was entered into evidence. It contained a document dated January 7, 2015, entitled “Re-Employed Pensioner – Notice of Election” bearing the plaintiff’s signature. The Notice of Election included the name of the plaintiff and his current employer, as well as a “Return to Work Date” of April 2015. On the form, Option 2 has been selected. It provides as follows:

I choose to continue to receive my monthly pension during my period of re-employment.

[24] Although this document contains the plaintiff’s signature, it was not produced by the plaintiff prior to trial. I do observe (and I attribute no fault whatsoever to plaintiff’s counsel, who had no knowledge of his client’s action) that, as soon as he signed it, the plaintiff should have disclosed the Notice of Election form to the defendant. The plaintiff’s failure to do so was a breach of his obligations under rule 30.07(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. I accept without hesitation the assurance of plaintiff’s counsel that he was unaware of the Notice of Election until the file was forthcoming from the union pension office, and he immediately passed the file along to defence counsel. Since the Notice of Election form had not surfaced before the plaintiff left the witness stand, he was not cross-examined about it.

[25] The morning after the testimony of the union representative, counsel for the plaintiff raised a Browne v. Dunn (1893), 6 R 67 (H.L.) objection to the defendant’s use of the Notice of Election document, since it had not been put to the plaintiff on cross-examination to contradict his testimony that he had no plans to return to work. As a consequence, the submission continued, the plaintiff had no opportunity to explain why he had signed and submitted the document to the union.

[26] Pursuant to rule 30.08(b), where a party fails to disclose a document that is not favourable to the party’s case – as the Notice of Election plainly is – the court is empowered “to make such order as is just.” Given that, due to the plaintiff’s failure to disclose it, the document was unavailable when the plaintiff had initially been cross-examined, in the exercise of my discretion under rule 30.08, I offered to permit the plaintiff to return to the witness stand to be cross-examined about the document and then re-examined by his own counsel. I qualified my offer with the restriction that plaintiff’s counsel could not discuss the document with his client before he returned to the stand. My intention in imposing that restriction was so that the resumed cross-examination and re-examination of the plaintiff could proceed on the same basis as an ordinary cross-examination and re-examination, namely, there could be no discussion between counsel and witness about the witness’s evidence during the course of the cross-examination or before the re-examination was conducted.

[27] Despite my offer, the plaintiff did not return to the witness stand.

[28] I should add that it further emerged on the examination of the union representative that on the day before her testimony (and after the file had been disclosed and she had been summoned to testify), the plaintiff had contacted the union seeking to withdraw the Notice of Election.

[29] In the context of the foregoing evidence, I am required to decide if I am satisfied that, by reason of the car accident, the plaintiff suffered an injury that substantially interferes with his ability to continue his regular or usual employment, or with his usual activities of daily living. For the reasons that follow, I find that I am not.

[30] I will begin with the alleged interference with the plaintiff’s ability to continue with his regular employment, as contemplated by s. 4.2(1)1.i. of the Regulation. First of all, I have considerable hesitation in relying on a significant portion of the plaintiff’s evidence regarding his symptoms. He gave conflicting answers to a number of questions under cross-examination. He also gave several answers that were at variance from his discovery testimony. He often was, to borrow a phrase from the defendant’s expert witness, a “vague historian.” While I accept the plaintiff’s version of the circumstances of the accident (as plainly did the jury, given its findings on liability) his testimony regarding the severity of his subsequent difficulties due to the accident is not persuasive.

[31] A second (and very significant) reason for my finding is the fact that the plaintiff has continued to work in the same job in which he was engaged pre-accident, for more than four years since the accident. By itself, that is a strong indication that his injuries have not substantially interfered with his ability to continue his regular employment.

[32] Thirdly, the plaintiff’s evidence about his intention to retire due to his left shoulder problems is suspect. The Notice of Election (while admittedly not put to the plaintiff while he testified, for the reasons indicated above) is entirely consistent with an underlying intention to go back to work, something the plaintiff professes he is unable and unwilling to do. The sole reason for submitting such a form is to address the consequences for a retired worker’s pension income arising from a return to work. Put another way, there is no need to complete such a form if the worker has no plans to return to the workforce. The fact the plaintiff did so, therefore, is completely consistent with his being able to continue work, as he has for the four years since the accident, and contrary to his evidence at trial that he is unable to continue.

[33] Finally, I note that, despite awarding general damages to the plaintiff arising from his pain and suffering due to the car accident, the jury awarded him nothing for future income loss. That award is consistent with the jury finding that, going forward, the plaintiff is capable of working. As the case law cited above indicates, I am not bound by the jury’s determination of this factual issue. I do, however, find it to be a relevant consideration that is consistent with my finding.

[34] The other alleged substantial interference relied upon by the plaintiff is addressed in s. 4.2(1)1.iii. of the Regulation. He asserts that the injuries arising from the car accident substantially interfere with most of his usual activities of daily living. In my view, the evidence does not support this contention, either.

[35] While I acknowledge that the plaintiff is limited in the extent to which he can assist in household chores and engage in various other social and sporting activities, to a large extent those limitations existed before the October 28, 2010 car accident, and arose from his unfortunate, but well-documented history of prior work-related accidents. This leads me to doubt that most of his current problems are attributable to the car accident.

[36] I also have concerns about the credibility and reliability of his evidence regarding the extent of his ongoing limitations - as confirmed by my previous analysis of his evidence concerning his ability to work, including his true intentions regarding re-employment. I further note that the plaintiff continues to drive. That activity, it seems to me, is at odds with the claimed level of substantial interference with most of his usual activities of daily living that the plaintiff must establish to succeed.

[37] On a motion such as this, the plaintiff bears the onus of persuading me that his accident-caused injuries substantially interfere with his ability to work or his usual activities of daily living. In light of the foregoing, I conclude that he has not so persuaded me. He has therefore not met the tests set out in either s. 4.2(1)1 i. or iii. of the Regulation.

Conclusion and Disposition

[38] For the foregoing reasons, I conclude I am not satisfied that the plaintiff’s injuries attributable to the car accident have resulted in an impairment that substantially interferes with the plaintiff’s ability to continue his regular or usual employment or that substantially interferes with most of his usual activities of daily living. It follows that the plaintiff has failed to bring his action within the exceptions to the statutory immunity contained in s. 267.5(5)(b) of the Insurance Act. The motion of the defendant must therefore be granted.

[39] I invite the parties to agree on the form of formal endorsement that should be made on the Trial Record and to inform me of their agreement. If they are unable to agree on the form of the endorsement, or on costs, they should make written submissions, as follows:

(a) The defendant shall serve his proposed draft endorsement and a bill of costs on the plaintiff, accompanied by written submissions, within fifteen days of the release of these reasons.

(b) The plaintiff shall serve his response on the defendant within fifteen days thereafter.

(c) The defendant shall serve his reply, if any, within ten days thereafter.

(d) If required or appropriate, the plaintiff may serve a sur-reply within ten days thereafter.

(e) In all cases, the written submissions shall be limited to four double-spaced pages, plus bills of costs.

(f) I direct that counsel for the defendant shall collect copies of all parties' submissions and arrange to have that package delivered to me in care of Judges' Administration, Room 170 at 361 University as soon as the final exchange of materials has been completed. To be clear, no materials should be filed individually: rather, counsel for the defendant will assemble a single package for delivery as described above.

Stinson J.

Date: February 12, 2015