Court File and Parties

Court File No.: 05-CV-295019PD3 Date: 2016-07-25 Superior Court of Justice – Ontario

Re: Thomas Thomas and Maria MMA Thomas, Plaintiffs And: Pin to Pin Express Inc. and Gary Hinrichsen, Defendants

Before: Firestone J.

Counsel: R. Ipacs, for the Plaintiff Thomas Thomas

Heard: April 21, 2016

Reasons for Judgment

[1] This is an undefended trial regarding the claim of Thomas Thomas (“Thomas”). Thomas seeks an award of general non-pecuniary damages as a result of injuries sustained in a motor vehicle collision which took place on August 12, 2003 (the “collision”). For the reasons set forth below, the claim of the Family Law Act, R.S.O. 1990, c. F.3 claimant, Maria MMA Thomas (“Maria”), did not proceed. No determination has been made regarding her action.

Procedural Background

[2] The defendant Gary Hinrichsen (“Hinrichsen”) was noted in default by the local registrar on November 16, 2010 by requisition dated November 10, 2010, on the grounds that he failed to file a Statement of Defence as required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”).

[3] The defendant Pin to Pin Express Inc. (“Pin to Pin”) was noted in default by the local registrar on January 30, 2012 by requisition dated January 26, 2012, given that their Statement of Defence was struck by Master Abrams by way of Order signed December 29, 2011.

[4] On June 10, 2014, an order was granted by the Court removing Ipacs Law Office as lawyers of record for Maria. At this undefended trial, Mr. Ipacs advised the Court that that this order was served on Maria and that she was aware of today’s attendance through her now former spouse Thomas. Maria was not in attendance at trial.

[5] This undefended claim came before Dunphy J. on September 14, 2015. At that time, Dunphy J. ordered that the trial be adjourned so that TD Insurance (“TD”), Thomas’s own insurer, could be served with a copy of the Court’s endorsement; the trial record; the Evidence Act, R.S.O. 1990, c. E.23, notice and brief (which had previously been served on the defendants); and an appointment for the next available trial scheduling court date (at least 10 days after the date of service).

[6] At the opening of trial before me, Mr. Ipacs advised that he is seeking judgment on behalf of Thomas against the defendants following which time, if successful, he will seek payment from TD pursuant to section 258 of the Insurance Act, R.S.O. 1990, c. I.8, as amended (“the Act”). Ms. M. Gust, counsel for TD, who has been retained to deal with this matter and who was present in Court to observe the default trial, advised after hearing Mr. Ipacs’ preliminary submissions that TD had no objection to the default trial proceeding.

Liability

[7] In the Statement of Claim (“claim”), Thomas pleads that at the time of the collision on August 12, 2003 he was operating his vehicle in a southerly direction on Airport Road near Steeles Avenue in the City of Brampton. At that time, as he slowed for traffic ahead, his vehicle was suddenly and without warning struck in the rear by the defendant’s vehicle, which was also travelling in a southerly direction on Airport Road.

[8] Pursuant to Rule 19.02(1)(a) of the Rules, as a result of the default, the allegations of fact in the claim are deemed to be admitted. As such, the defendants are jointly and severally liable for any judgment awarded.

General Non-Pecuniary Damages for “Pain and Suffering”

[9] At trial, the plaintiffs’ medical brief (“brief”) was filed and marked as an exhibit pursuant to sections 35 and 52(2) of the Evidence Act. The brief contained the following:

• Decoded OHIP Summary (January 1, 2003 to June 22, 2009);
• William Osler Health System Clinical notes and records;
• Toronto Western Hospital clinical notes and records;
• Reports of Doctor Steve Blitzer dated September 8, 2011 and January 9, 2015.

[10] Thomas testified at trial. He gave his evidence in a straightforward manner without embellishment or execration. I find his evidence to be credible and reliable.

[11] Thomas, who is right hand dominant, was born on October 28, 1963. He confirmed that he was a seat-belted driver of a Plymouth motor vehicle and was coming to a stop when his vehicle was struck in the rear by the cab portion of a tractor trailer. There was no trailer attached to the cab at the time of collision. He described that his vehicle was “up in the air around” as a result of the impact. Thomas testified that he hit the divider and all four tires burst.

[12] He was subsequently taken by ambulance to Brampton Civic Hospital, where he remained for approximately six hours. The Ambulance Call Report confirms that at that time he had complaints of muscle stiffness to the left side of both the cervical and lumbar spine. There was muscular pain on palpitation to the left side of his spine as well as lower back stiffness to the left side of his lumbar spine. The Ambulance Call Report indicates that, at that time, there was no cervical spine pain on palpitation and no complaints of headaches or dizziness.

[13] Thomas testified that, on the next morning, “the whole of his neck was bruised”. He testified that two days after the collision he attended at a physiotherapy clinic where they treated his neck, upper back, lower back and right elbow. The treatment consisted of physiotherapy, chiropractic therapy and massage therapy. This treatment lasted for approximately three months. He was off work for approximately one month after the accident.

[14] Thomas testified that initially there was an improvement as a result of the therapy, but after that they stopped his therapy. He was put on homeopathic medications and given vibration therapy which he said he still does on and off.

[15] After the collision he attended his family doctor, Dr. A. Gupta. Thomas testified that when he first saw his family doctor less than a week after the collision he reported complaints of neck pain, upper and lower back pain as well as right elbow pain. Dr. Gupta referred Thomas to Dr. A. Czok, a physiatrist, regarding the complaints he had with his right elbow, neck and back.

[16] Dr. Czok, in her consultation report dated August 12, 2003, states that Thomas noted:

… that his right elbow is limited in motion and he cannot fully extend the elbow. He also has the impression that at times the elbow locks and he has to maneuver and shake the elbow in order to regain movement. It is also associated with pain to touch or pressure around the elbow area… [H]e describes the pain as constant but fluctuating in intensity. It is usually aggravated by standing for a prolonged time or sitting in one position. He continues to experience problems related to right elbow motion, otherwise he’s healthy. He is on no medication. He continues to work as a manager and he did not take any time off.

[17] Dr. Czok states that it is her impression that Thomas has myofascial pain syndrome involving the upper back, specifically the upper trapezius, which is resolving. She goes on to state that she cannot exclude an injury to the right elbow with a fracture and loose body which is now creating the limited range of motion.

[18] On January 20, 2005, an MRI of the right elbow confirmed the presence of a small joint effusion with multiple intra-articular bodies and mild ulno-humeral joint osteoarthrosis. A likely partial tear/strain to the radial collateral and ulnar collateral ligaments was suspected.

[19] The clinic note of orthopedic surgeon Dr. B. Meisami dated February 3, 2005, states:

As suspected, Mr. Thomas’s pain is related to lateral epicondylitis but he also may be symptomatic because of the minor degenerative changes as well as the loose bodies. Given the fact that the recurrent locking episodes are the main cause of concern for him, I feel that he is a very good candidate for an arthroscopic examination and the debridement of his elbow as well as removal of loose bodies.

[20] On March 8, 2005, Dr. Meisami preformed a right elbow arthroscopic synovectomy debridement and right arthroscopic removal of 5 loose bodies from the posterior compartment of the elbow.

[21] Thomas, who was living and working in Canada at the time of the collision, changed career paths. In 2011 he began medical school abroad. He graduated in 2014. He currently works at All Saints University in St. Vincent as a professor.

[22] Thomas testified that within the last year he continues to experience neck, back and right elbow pain. He experiences neck pain almost every day. His upper back is stiff all the time. His low back pain makes it difficult for him to sit continuously in one place.

[23] Regarding his right arm, he testified that the injury is like a handicap for him right now. He cannot work the way he used to. He keeps his arm in a semi-flexed position most of the time. He cannot keep his arm on the table continuously as this causes, as he described, “a kind of inconvenience while writing or typing”. When writing or typing he experiences numbness in the palm of his hand and pain in the ulnar region on the medial side of the elbow.

[24] Thomas testified that the injuries sustained have affected his ability to complete his tasks as a professor. It takes him longer to study and prepare for a lecture.

[25] Thomas testified that he is unable to do the activities that he was able to prior to the collision, such as playing cricket. He can no longer play as he did before because of the restriction of movement and because the extension of his right arm is not complete. This was not fully corrected by the surgery. His inability to play has made him “nervous and depressed”.

[26] Thomas testified that he fell off a motorcycle in 1992. His left knee joint required a ligament repair. He completely recovered within six months.

[27] Thomas was assessed by Dr. Steve Blitzer, a specialist in rehabilitation and pain management, on September 7, 2011 and January 7, 2015. In his report of September 8, 2011, Dr. Blitzer states:

Thomas Thomas sustained injuries in a motor vehicle accident, on August 12, 2003. This is 8 years ago now. With injuries of this nature, healing would generally occur for 2-3 years after the accident. The majority of healing occurs over the first year where upon the healing curve slows down to a plateau.

Generally, the healing time after elbow surgery of the nature of what he had would be up to 1-2 years.

All this time passed for Thomas Thomas. He is thus clearly at the point of maximal medical recuperation. This is concordant with his history of not noting any improvement over the last years. He has actually noted some more deterioration.

Thus, I would not expect further improvement with the passage of the additional time.

[28] In Dr. Blitzer’s report of January 9, 2015, he states:

My comments with regards to Thomas Thomas status now are similar to those noted in my original report.

Mr. Thomas sustained injuries in a motor vehicle accident on August 12, 2003. This is over 11 years ago.

As noted in the prior report, with injuries of this nature, healing can occur up to 2 to 3 years after such an accident. The majority of recuperation occurs over the first year, after which the healing curve slows down to reach a plateau.

He has also passed the time which would occur for healing after his elbow surgery.

The time for natural healing has passed for Mr. Thomas. He is beyond MMR, the point of maximal medical recuperation. This is concordant with is not noting any net improvement over the last few years.

Thus, I would not expect any more improvement beyond his status at the present to occur just with the passage of additional time.

[29] Dr. Blitzer’s current diagnoses, which he states are directly related to the subject collision, are as follows:

• Mechanical and myofascial lumbosacral back pain.
• Sacroiliac joint irritation.
• Thoracic back spinal and myofascial pain.
• Cervical pain, myofascial and likely has some cervical facet joint irritation.
• Trapezius myofascial pain.
• Right elbow contusion/string/derangement, status post-operative.
• Right upper extremity symptoms maybe multifactorial. There are some neuropathic features, and he may have some nerve impingement at the elbow. There may also be some local injury/strain factors.
• Left upper extremity strain, may be related to overuse and/or less his original injury factors.
• Sleep disruption by pain, non-restorative sleep can be a component in his pain diathesis.
• Mood status, not assessed in detail. Some lower mood, motivation, and irritability issues were noted, daughter has been some improvement.
• Fatigue, not assessed in detail. This may be multifactorial related to the draining effect of persistent pain, non-restorative sleep, and at times mood factors and medication side effects.
• Chronic pain. Mr. Thomas has chronic pain in multiple areas over 11 years now and associated problems.
• Loss of function for activities of daily living and alteration in life situation associated with problems and diagnoses above.

[30] The record confirms that since the collision Thomas has been unable to participate in sports the way he did pre-accident. In particular he cannot play cricket. He used to play cricket very well. He has ongoing problems with standing and sitting, both of which exacerbate his back problem. Prolonged time at a computer hurts his neck. He has problems with reaching and carrying.

[31] I have considered the evidentiary record before me. Based on the medical evidence, the plaintiff’s viva voce testimony as well as the applicable case law regarding the appropriate assessment general damages, I award the plaintiff Thomas general non-pecuniary damages in the sum of $49,500.

The Threshold

[32] For the reasons below I find that the impairments which Thomas continues to experience meet the Bill 59 threshold applicable to non-pecuniary loss set forth in section 267.5(5)(b) of the Act.

[33] The Bill 59 verbal threshold applies to collisions which take place on or after November 1, 1996.

[34] Section 267.5(5) of the Act provides as follows:

Despite any other Act and subject to subsection (6), the owner of an automobile, the occupants of an automobile and any other 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 user operation of the automobile the injured person has died or sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

[35] 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, in order to clarify the meaning of the threshold wording contained in section 267.5(5)(b) of the Act. In addition, O. Reg. 381/03 set forth the evidence which must be adduced to prove the threshold under the Act, namely “permanent serious impairment of an important physical, mental or psychological function”.

[36] Sections 4.2(2) and 4.3(6) of O. Reg. 461/96 stipulate that these October 1, 2003 amendments clarifying the threshold and providing the evidence which must be lead to prove it apply only to incidents that occur on or after October 1, 2003. As a result, they have no application to the threshold determination I am required to make in this case.

[37] I agree with the approach taken by Gans J. in Del Rio v. Lawrence, where at para 3 he states: “The subject MVA took place on October 5, 2001 and hence the operative regime under which to consider the threshold in other issues is Bill 59 and not the since-enacted Bill 198”.

[38] In Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), the court outlined the three-part inquiry to be undertaken in determining whether the threshold has been met. The questions to be answered are:

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?

[39] In Brak v. Walsh, 2008 ONCA 221, 90 O.R.(3d) 34, at para. 4, the court confirmed the long standing principle that “permanent” means lasting indefinitely into the future as opposed to for a limited time with a definite end. The court also confirmed that the requirement of a permanent injury is also met when a limitation in function is unlikely to improve for the indefinite future.

[40] Thomas testified that he continues to experience neck, back and right elbow pain and described the negative effect this has had on him.

[41] In addition, Dr. Blitzer has confirmed that Thomas is beyond the point of maximal medical recuperation, which is concordant with his not noting any net improvement over the last few years. Dr. Blitzer’s opinion is that he would not expect any further improvement beyond Thomas’s status at the present to occur just with the passage of additional time. I find that the plaintiff’s impairments are permanent.

[42] Regarding the issue of importance, in Hartwick v. Simser, Toscano Roccamo J. states, at para. 88:

In Meyer, supra, it was held that an “important” bodily function is one that plays a major role in the health, general well-being and way of life of the particular injured plaintiff. The determination of what is an important function invokes a subjective analysis, as there are bodily functions important to some but not others.

[43] It is clear from the evidentiary record that the functions which have been permanently impaired play a major role in the health, general well-being and way of life Thomas enjoyed prior to the subject collision. I find that the functions which have been permanently impaired are important to Thomas.

[44] The evidentiary record also establishes that the impairment of the important functions is serious. In making the determination of whether important bodily function(s) is “serious”, the court is to consider the seriousness of the impairment to the plaintiff and not just the injury itself in isolation: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.), at para. 56.

[45] The Court of Appeal in Meyer confirmed, at para. 34, that it is not possible to provide an absolute formula which will guide the court in assessing importance. However, generally speaking, a serious impairment is one which causes a substantial interference with the ability of the injured person to perform his or her usual daily activities or continue his or her regular employment.

[46] This concept was explored further by the Court of Appeal in Brak, where at para. 7 the court states in part:

… The requirement that the impairment be “serious” may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of [a] household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children, and engage in recreational pursuits.

[47] It is “the effect of the injury” on the plaintiff 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. The threshold determination is to be done on a case-by-case basis and is fact specific: Malfara v. Vukojevic, 2015 ONSC 78, at para. 23, and Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at para. 39.

[48] In Hartwick at para. 89, Toscano Roccamo J. states:

The more litigious component of the threshold test surrounds the question of what functional limitations will constitute a “serious” impairment. It is now clearly established the one who can carry on daily activities, but is subject to permanent symptoms including sleep disorder, severe pain, headaches, having a significant effect on the enjoyment of life, will demonstrate symptoms constituting a serious impairment. Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute serious impairment: see Chrappa v. Ohm, [1996] O.J. No. 1663 (Ont. Gen. Div.); Skinner v. Goulet, [1996] O.J. No. 3209 (Ont. S.C.J.); May v. Casola, [1998] O.J. No. 290 (Gen. Div.).

[49] On the record before me, I am satisfied that the impairments caused by the subject collision have substantially interfered with the plaintiff’s activities of daily living and enjoyment of life in a manner consistent with the principles set forth above.

[50] The medical evidence of Dr. Blitzer, which is uncontroverted, is that Thomas has reached maximum recovery and that further improvement beyond his current status cannot be expected to occur just with the passage of time.

The Deductible

[51] Based on the reasoning in Valentine at paras. 87-101, I find that the statutory deductible to be applied to the general damage award in this case is $15,000.

[52] As stated in Valentine, effective October 1, 2003, O. Reg. 312/03 clearly stated that the $30,000 deductible applicable to the award of general non-pecuniary damages is prescribed “in respect of incidents that occur on or after October 1, 2003” [emphasis added]. The intention to be taken from this wording is that the increase in the deductible from $15,000 to $30,000 is not to apply to collisions which take place prior to October 1, 2003. This conclusion is supported by the fact that similar wording was not included in the amended version of section 5.1 brought about by O. Reg. 221/15. The statutory deductible in place at the time of the subject collision under the Bill 59 regime for collisions occurring between November 1, 1996 and September 30, 2003 was $15,000.

Pre-Judgment Interest

[53] Effective January 1, 2015, section 258.3 of the Act was amended to include the addition of subsection (8.1). This subsection provides that subsection 128(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, does not apply to the calculation pre-judgment interest for damages for non-pecuniary loss. The practical effect of the amendment is that the pre-judgment annual interest rate of 5 per cent on damage awards for non-pecuniary loss pursuant to Rule 53.10 no longer applies to actions arising directly or indirectly from the use or operation of an automobile.

[54] I agree with the reasoning and determination of Toscano Roccamo J. in El-Khodr v. Lackie, 2015 ONSC 4766, as adopted in Vickers v. Palacious, 2015 ONSC 7647, and Markovic v. Richards, 2015 ONSC 6983, that entitlement to a particular pre-judgment interest rate is a matter of substantive law. As a result, the amended pre-judgment rate under section 258.3(8.1) does not apply. The pre-judgment rate to be applied in this case is 5 percent.

Costs

[55] I have reviewed the bill of costs submitted by Mr. Ipacs on behalf of the plaintiff Thomas. Costs are within the discretion of the Court pursuant to s. 131(1) of the Courts of Justice Act. The Court has a broad discretion when determining the issue of costs. Rule 57.01(1) sets out the factors I may consider in determining the appropriate amount for costs.

[56] A successful party is entitled to costs unless there are very good reasons not to award them: Schreiber v. Mulroney, at para. 2.

[57] This was a relatively straightforward matter. The evidence was adduced mainly by affidavit. There was some viva voce evidence. In my view, the sum of $13,000 inclusive of HST on a partial indemnity basis is reasonable. The sum of $7,852.04 for disbursements inclusive of HST is allowed.

Disposition

[58] The plaintiff Thomas is to have judgment for his damages claim in the sum of $34,500 after application of the statutory deductible. Thomas is entitled to pre and post judgment interest. Pre-judgment interest is to be calculated on this sum at the rate of 5 per cent per year in accordance with Rule 53.10. Costs are awarded in the all-inclusive sum of $20,852.04.

[59] Mr. Ipacs is to serve the plaintiff Maria Thomas with a copy these reasons for judgment within 10 days of their release. Maria Thomas is to advise the trial coordinator within 60 days of service whether she intends to proceed with her Family Law Act claim, failing which her action is to be struck from the trial list.

Firestone J. Released: July 25, 2016