Court File and Parties

CITATION: Calliste v. State Farm Mutual Automobile Insurance Company, 2016 ONSC 1854

COURT FILE NO.: CV-14-518975

DATE: 20160404

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Cecil Bernard Calliste, Plaintiff

AND:

State Farm Mutual Automobile Insurance Company, Defendant

BEFORE: Pollak J.

COUNSEL: N. Munshi, for the Plaintiff

Todd J. McCarthy and Candace Mak, for the Defendant

HEARD: March 14, 2016

ENDORSEMENT

[1] This is a motion for summary judgment brought by the Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”/“the Defendant”), for an order dismissing the Plaintiff’s claims for medical benefits.

[2] The Plaintiff, Mr. Cecil Bernard Calliste, claims that pursuant to his insurance policy with State Farm he is entitled to statutory accident benefits for income replacement at a rate of $400 per week from August 7, 2013 onward; as well as medical benefits in the amount of $1,947.55 with interest on those amounts due. State Farm has paid the Plaintiff’s medical rehabilitation benefits in the amount of $3,060.49 and has advised the court that it will pay a further $439.51 in additional benefits. The Plaintiff’s claim for punitive and aggravated damages has been withdrawn.

[3] With respect to the claim for medical benefits, the Defendant moves for summary judgment on the ground that no further amounts are owing to the Plaintiff by State Farm under his insurance policy as he has suffered only minor injuries. He is subject to the cap of $3,500 on benefits payable within the Minor Injury Guideline (“MIG”) pursuant to Ontario Regulation 34/10. There is a maximum limit of $3,500 for medical and rehabilitation benefits for persons who have minor injuries. The Defendant submits that the $3,500 maximum is applicable to the Plaintiff. The Defendant submits that based on the medical evidence on this motion it is clear that the Plaintiff suffered only minor injuries from the accident and that he did not have any pre-existing condition which would prevent him from treating effectively within the $3,500 limit. The Defendant relies on various reports from s. 44 assessors which show that the Plaintiff reported that he was not in any pain before the accident and the Plaintiff did not, on this motion for summary judgment, provide any medical opinion that his pre-accident pain was a pre-existing condition which would prevent him from treating effectively within the $3,500 MIG Limit.

[4] The Defendant submits that the Regulation provides that “the burden of proof is on the insured person (the Plaintiff) to provide compelling evidence provided by his or her health practitioner”.

[5] The Defendant submits that the Plaintiff did not provide a medical opinion which indicates that he sustained full thickness tears of any muscles, complete tears of any muscles or dislocations of any joints in his body as a result of the accident. He also did not provide any medical evidence that he had a pre-existing condition which would prevent him from treating effectively with the $3,500 MIG Limit. Further, the s. 44 reports relied on by State Farm, show that the Plaintiff suffered soft tissue injuries from the accident and did not have a psychiatric condition caused by the accident.

[6] I agree with the submissions of the Defendant that the Plaintiff has not met his burden of proving that he falls outside the MIG and that the $3,500 maximum on the medical benefits claimed is applicable. Further, the Defendant submits that the Plaintiff has not provided any evidence that he has lost any income to be entitled to receive income replacement benefits. The Defendant relies on the evidence, in this motion, with respect to the claim for income replacement benefits.

[7] The Defendant relies on the case of Paramandham v. Holmes et al., 2015 ONSC 1903, 47 C.C.L.I. (5th) 82, wherein the court granted State Farm’s summary judgment motion for a dismissal of an action where the Plaintiff did not provide the evidence necessary to establish that he fell outside of the MIG. In that case the court held that there was no medical evidence advanced by the plaintiff to rebut the medical observations and opinions submitted by State Farm. Similarly, in this case, there is no medical evidence produced by the Plaintiff to rebut the medical evidence relied on by State Farm. Rather, the Plaintiff argues that there are inconsistencies in the reports relied on by State Farm.

[8] These submissions do not however, provide this court with the evidence to reject the medical evidence produced by State Farm.

[9] The Plaintiff argues that in order for the court to get a full appreciation of the Plaintiff’s injuries, a trial is required.

[10] With respect to income replacement benefits, the Plaintiff argues that State Farm terminated these benefits on the basis of inconsistent medical reports. As a result, his income loss should properly be assessed in a trial. He claims he should get benefits for periods where he was underemployed and for periods where he had to hire other people to complete his job duties.

[11] As well, the Plaintiff relies on the fact that he has two actions against the tortfeasors for the two relevant accidents, which he argues will likely be heard together as both have overlapping issues of physical and psychological damages, economic damages, and damages relating to cost of future care. He submits that this action also has overlapping issues and subject matter with the tort lawsuits, relating to economic damages and cost of future care, which are likely to be of interest to the tort defendants as they are likely to seek contributions from the Defendant with respect to the Plaintiff's overall damages.

[12] The Plaintiff submits that findings in these actions with respect to the extent of his injuries may lead to inconsistent results and duplicity of process in evaluating the Plaintiff's injuries.

[13] This type of argument was considered by the court in the Paramandham case, which held that such was not a reason to find that there was a genuine issue requiring a trial and that the court was not in a position to grant summary judgment.

[14] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada gave us a roadmap of the approach to follow on a Motion for Summary Judgment. The court stated at para. 66:

"On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a).

If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness…”

[15] In this action, there are not many issues in dispute. The evidence on this motion advanced by State Farm deals with the material issues in dispute. The evidence before the court is not contradictory. Applying the roadmap from the Supreme Court of Canada, I must consider whether, on the basis of the evidentiary record, there are genuine issues that require a trial. I must also ask myself if the evidentiary record in front of me provides me with the evidence I need to "fairly and justly adjudicate the dispute."

[16] In my view, the answer is yes. I find that the evidence on this motion is sufficient and there are no genuine issues requiring a trial. I can make a fair determination on the basis of the record before me. I do not need to use my discretion to determine if the need for a trial in this case could be avoided by the use of these fact-finding powers.

[17] In the Paramandham case relied on by the Defendant, the court held that:

“[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.

[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.”

[18] I find that such reasoning is applicable in this case. I do not accept the submission that State Farm’s motion for summary judgment should be denied by reason of the other Actions of the Plaintiff. These Actions do not absolve the Plaintiff of his obligation to “put his best foot forward” and to produce the medical evidence he had the burden of adducing.

[19] There are no inconsistencies between the evidence relied upon by the parties. The evidence establishes that the Plaintiff suffered from minor injury or predominantly minor injury which I find falls within the definitions contained in the MIG. Further, the Plaintiff has not introduced the evidence required to support his claim for income replacement benefits.

[20] For all of these reasons, I find that the Defendant is not liable for the claims of the Plaintiff pursuant to the insurance policy. I find that the Defendant has met its burden of proof that summary judgment dismissing the Plaintiff’s action should be granted.

[21] The parties have agreed that if State Farm is successful on this motion, the Plaintiff shall pay the amount of $3,500 less the amount of $461 (the Defendant has agreed to pay the Plaintiff $461 for the medical benefits which I have referred to above) to the Defendant and I so order. This amount includes all disbursements and any applicable taxes.

Pollak J.

Date: April 4, 2016