CITATION: G.W. v. Rawlins, 2016 ONSC 705
COURT FILE NO.: CV-11-2858-00
DATE: 2016 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.W.
S. Alexanian , Counsel for the Plaintiff
Plaintiff
- and -
Kimo Syid Rawlins and Jasson Villeneuve
K. Dickson, Counsel for the Defendants
Defendants
HEARD: January 18th, 2016
REASONS FOR JUDGMENT
LEMAY J
[1] This case was heard before me, with a jury, for nine days starting on January 5th, 2016. It concerns an accident that took place on September 20th, 2009 on the Queen Elizabeth Way westbound. At approximately 9:45 that evening, the vehicle that Ms. G.W., the Plaintiff, was in was rear-ended after making a lane change. The Defendant, Mr. Rawlings, was the driver of the vehicle that Ms. G.W. was in. At the trial, he admitted liability.
[2] At the end of the case, the Defendant brought a motion claiming that the Plaintiff had not suffered permanent and serious impairment of an important physical, mental or psychological function. This is commonly called a “threshold motion” and requires me to determine whether section 267.5(5) of the Insurance Act applies to the Plaintiff.
[3] The motion was argued after the jury had returned with a verdict awarding the Plaintiff $10,000.00 in general damages, and denying her claims for past and future loss of income, and future housekeeping expenses.
[4] During the course of argument, I asked counsel whether this matter was now moot, as the deductible under the Insurance Act meant that the Plaintiff would not recover any damages. Indeed, I endorsed the record that the Plaintiff’s action was dismissed.
[5] Counsel for the Defendant submitted that the motion appeared to be moot. Counsel for the Plaintiff argued that the motion should be heard as there might be costs consequences to the outcome of the motion. I have reluctantly come to the conclusion that, in the circumstances of this case, the motion should be argued. I will address that issue more fully at the end of these reasons.
[6] As a result, there are two issues that arise in this case:
a) What effect, if any, should the jury’s verdict have on the adjudication of this motion?
b) More generally, does the Plaintiff fit within the exception in section 267.5(5) of the Insurance Act.
[7] The Defendant’s motion is granted. The Plaintiff has been unable to demonstrate that she has a permanent impairment as a result of the accident. Accordingly, she does not fit within the exception set out within section 267.5(5) of the Insurance Act.
Issue #1- The Effect of the Jury’s Verdict
[8] As I noted above, the jury delivered a verdict giving the Plaintiff the sum of $10,000.00 in general damages, and dismissing the remainder of her claims. This verdict followed more than four and a half hours of deliberation.
[9] The Court of Appeal has stated, in Kasap v. MacCallum (2001) 2001 CanLII 7964 (ON CA), 144 O.A.C. 369), that the judge is not bound by the verdict of the jury, but can consider that verdict in exercising his or her discretion. In other words, it is a factor that I can consider in reaching my own decision.
[10] Counsel for the Defendant pointed to the decision of D.M. Brown J. (as he then was) in Clark v. Zigrossi (2010 ONSC 6357). In that decision, which also addressed a threshold motion, Justice Brown analyzed a number of conflicting decisions about the timing of the threshold motion. He then noted that, in the general law, there are rare circumstances when a jury’s verdict can be set aside.
[11] Justice Brown went on to observe that the threshold motion is different than a normal jury verdict because the Legislature has specifically assigned the task of dealing with these motions to judges. He concludes by observing (at paragraph 18):
The danger of threshold motions after the jury has rendered its verdict is, as has been indicated in Justice Riley's decision in Parks v. Peter, the possibility of inconsistent findings of fact by the trial judge and by the jury. If a jury has been selected as the trier of fact and if we are to preserve the jury system in civil cases in this Province, in my respectful view judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury's verdict is met.
[12] I find this analysis quite logical. It is important to remember that in this case one of the parties selected a trial by jury. Regardless of the outcome of the case, an inconsistency between the judge’s determination on the threshold motion and the jury’s determination of general damages can have the effect of emasculating the right to a jury trial.
[13] On the other hand, however, the Legislature has specifically endowed judges with the ability to determine threshold motions, even when a jury is engaged as the trier of fact. As a result, the legislature must have intended to give judges more power than they normally have under the Rules of Civil Procedure to preempt the jury’s verdict with their own findings.
[14] In my view, these competing considerations require judges to consider the verdict of the jury as a factor in determining the threshold motion, but they do not bind the judge to that finding in every case. However, given the importance of the jury trial to our legal system, it will only be the exceptional case where the judge should decide the threshold motion contrary to the jury’s verdict if the jury’s view of the facts is clearly known.
[15] Counsel for the Plaintiff pointed to the decision of Kane J. in Bruff-Murphy v. Gunawardena (2016 ONSC 7), where Kane J. dismissed the threshold motion even though the jury had given general damages of only $23,000.00. In reviewing that decision, it is clear that Kane J. was very concerned about the conduct of the Defendant’s expert witness during the course of the trial, and the prejudicial effect that this conduct and the expert’s testimony more generally may have had on the jury (see, in particular, paragraphs 51, 68, 81 and 108).
[16] In this case, I do not have these concerns about the Defendant’s expert. In fact, I found her to be the most credible of the medical witnesses that testified.
[17] In responding to this decision, counsel for the Defendant referred to it as the “exception that proves the rule” that judges should give serious consideration to the jury’s verdict in adjudicating the threshold motion. I agree with this view.
[18] This brings me to one other issue with respect to the jury’s decision- do I have confidence that I know what their verdict means? Counsel for the Plaintiff argues that it would be speculative to read anything into the jury’s findings in this case, as all they did was assign a number for general damages and answer questions about whether there were any past and future income losses or future housekeeping losses. He argues that we do not know what the jury actually felt about whether the Plaintiff’s injuries were permanent.
[19] I disagree with that view because of the way that counsel argued their cases. The jury was told by both counsel that there were two competing views of the evidence. On the Plaintiff’s view of the evidence, the car accident was the source of substantially all of the Plaintiff’s current medical problems. Counsel asked the jury for general damages between $85,000.00 and $115,000.00, and proposed a number of $100,000.00. He also asked for lost income and housekeeping benefits totaling approximately an additional $80,000.00.
[20] Counsel for the Defendant conceded that the Plaintiff had suffered injuries as a result of the car accident, but he argued to the jury that they were minor and transitory, and that the Plaintiff had recovered from those injuries by the time of the trial. He suggested a range of general damages of between $5,000.00 and $7,500.00, and suggested that the jury should not award any amounts for the other heads of damage.
[21] The jury returned with a verdict that was completely contrary to the Plaintiff’s argument, and almost precisely what had been suggested to the Defendant. As will be seen when I review the evidence, it is clear to me that the likeliest ways to view the evidence that was tendered at trial was to adopt the theory of the case advanced by one side or the other.
[22] The parties presented diametrically opposed positions to the jury and, as noted in Shepstone v. Cook (2013 ONSC 418), in that type of case, the jury’s findings are usually clear. In this case, it appears likely to me that, in reaching its verdict, the jury agreed with the Defendant’s position that the Plaintiff had only suffered a minor and transitory injury. It would be a very difficult verdict to explain otherwise.
[23] As a result, I intend to take this verdict into account as one of the factors in exercising my discretion on the threshold motion. Although significant, it is only one factor in my consideration.
Issue #2- Does the Plaintiff Fit Within the Exception in Section 267.5(5) of the Insurance Act?
a) The Relevant Law
[24] Although there have been a number of legislative changes, the general test for determining whether the Plaintiff falls within the exception in section 267.5 has not changed since the Ontario Court of Appeal’s decision in Meyer v. Bright (1993) 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129).
[25] The three part test requires the judge hearing the motion to determine:
Has the injured person sustained a permanent impairment of a physical, mental, or psychological function?
If yes, is the function which is permanently impaired an important one?
If yes, is the impairment of the important function serious?
[26] The first step of the analysis requires the judge to consider whether there is an impairment of a function, whether it is accident related and whether it is properly labelled as permanent.
[27] It is common ground between the parties that the Plaintiff must meet all aspects of the test. If she fails to meet any of them, then the analysis ends and the motion must be decided in the Defendant’s favour.
[28] In this case, it is also common ground that, if I determine that the Plaintiff’s current conditions are not related to the MVA then the motion should be granted. Conversely, the parties also agree that if I find the MVA caused the injuries then the Plaintiff would have strong grounds to resist the motion.
[29] I note that there have been some regulations introduced interpreting the various parts of the test in Meyer v. Bright. Given my observations in the previous paragraph, and given that I have found that the Plaintiff’s current conditions are not related to the MVA, it is not necessary for me to analyze these regulations in any detail as I do not need to consider the other elements of the test.
b) The Plaintiff’s Condition
[30] In this case, the Plaintiff is claiming the following disabilities as a result of the accident:
(a) lower back pain;
(b) neck pain;
(c) upper-right back pain;
(d) hip pain;
(e) headaches;
(f) anxiety; and
(g) depression.
[31] In addition to the diagnoses of the treating physicians, the Plaintiff has been diagnosed with:
(a) chronic pain disorder and fibromyalgia by Dr. Steve Blitzer, chronic pain physician; and
(b) somatic symptom disorder with predominant pain, severe; major depressive
disorder, recurrent episode, severe without psychotic features; and specific phobia, situational (driver and passenger), by Dr. Bodenstein.
[32] She has advanced a number of reasons why these conditions are related to the accident. To understand why I disagree with this position, some background facts are necessary.
c) The Plaintiff’s Personal Life
[33] The Plaintiff was born in Newfoundland and was raised by her grandparents. When she was approximately 10 to 12 years old, she was sexually assaulted by a friend of her grandparents.
[34] The Plaintiff entered into a common law relationship when she was quite young, and had two children. This relationship was abusive, and the Plaintiff suffered significant injuries (including a fractured jaw) as a result of a domestic assault.
[35] The Plaintiff had two children from this common law relationship, and she testified that while in Newfoundland, both children ended up having troubles with the law.
[36] In 2004, the Plaintiff had remarried, and in that year she relocated to Ontario. She worked in building management for a number of years, but was not working at the time of the accident.
[37] After the accident in 2009, the Plaintiff got a new job in building management, doing much the same work that she had been doing prior to the accident. However, her husband entered into a relationship with another woman and left the Plaintiff sometime in 2011.
[38] In addition, the Plaintiff’s eldest son was charged with assault and convicted. He went to jail for the assault. This all happened after the accident in 2009.
[39] The Plaintiff has been obese since well before the accident. Based on the medical evidence, this has had a negative effect on her health. This brings me to the medical evidence in this case.
d) The Medical Evidence
[40] I do not intend to review every aspect of either the medical or the non-medical evidence in this matter. Doing so would be contrary to my earlier observation that I should give serious consideration to the jury’s verdict. I do not need to (nor should I) analyze every piece of evidence to see if I believe that the jury’s decision is correct. Instead, I must consider whether there are good reasons to come to a different conclusion than the jury did.
[41] The Plaintiff called a number of doctors in support of her case. The Defendant called only one expert, Dr. Rajka Soric. Often, there is strength in numbers, but that was not the case here. The problems with the Plaintiff’s evidence include a number of inconsistencies between the doctors that were called, particularly with respect to the evidence relating to the Plaintiff’s psychological condition.
[42] More specifically, the problems with the Plaintiff’s medical evidence include the following:
a) All of the Plaintiff’s treating physicians, with the exception of Dr. Gupta, started treating the Plaintiff several years after the accident, which make their conclusions about causation less reliable.
b) The doctors did not agree on all of the diagnoses. In particular, Dr. Dhaliwal diagnosed the Plaintiff with PTSD, while Dr. Borenstein stated that the Plaintiff did not meet the criteria for PTSD.
c) The Plaintiff’s doctors did not seem to know about all of the post-accident problems that the Plaintiff had. The most compelling example of this is the testimony of Dr. Dhaliwal, who explained that he was there to assess the Plaintiff’s immediate interests, which were PTSD as a result of the accident. He was not concerned with any extraneous issues that the Plaintiff might have had, and was not aware of any physical injuries. I found Dr. Dhaliwal’s evidence to be unhelpful.
d) The most helpful of the Plaintiff’s expert was Dr. Bodenstein. He was quite clear and credible. However, he testified that the Plaintiff had not dealt with the sexual abuse from her childhood. Given this testimony, it is quite possible that this historical assault continues to have an effect on the Plaintiff’s health.
[43] When all of this evidence is weighed, it paints a somewhat contradictory picture. This brings me to the evidence of the Plaintiff’s family physician, Dr. Gupta. He testified that the Plaintiff’s problems were related to her accident. The problems with this testimony include:
a) Dr. Gupta’s notes disclosed pre-existing medical issues with the Plaintiff’s neck and shoulder, and that she was treated for these problems very shortly before the MVA.
b) The Plaintiff had ongoing headaches several times a week in 2006 and 2007, which was before the accident.
c) In the 2010 physical examination, Dr. Gupta does not record the Plaintiff as having any problems related to the MVA whatsoever. He explained this omission by saying that he only recorded new problems in the annual physical. I reject this evidence.
d) There is consistent reporting of medical problems both before and after the accident.
e) The Plaintiff’s level of activity was minimal prior to the accident, which supports the Defendant’s theory of this case.
[44] I then weigh these inconsistencies with Dr. Soric’s testimony. This testimony provides a clear picture of an alternate theory of what happened, which is that the Plaintiff had suffered a myofascial strain as a result of the MVA, and that this strain had resolved.
[45] Dr. Soric’s evidence explained both the issues in treatment and the Plaintiff’s external issues. On balance, it appears to me to be the most credible explanation of what happened.
[46] I would note, however, that unlike Gill v. Sivaranjan, (2015 ONSC 841), this is not a case where the Plaintiff had very limited credibility. Ms. G.W. genuinely believes that she was injured as a result of the car accident. She has just not proven her belief.
[47] This is a case where there is evidence to support the positions of both sides. My own view is that the factual conclusions to be drawn from that evidence support the Defendant’s position, and I come to the same conclusion as the jury. However, if I disagreed with the jury’s verdict the facts in this case do not support a decision for preempting that verdict. Accordingly, the Defendant’s motion is granted.
Necessity for the Motion
[48] As I noted at the outset, I reluctantly agreed that this motion was not moot. I made that decision based on the argument from Plaintiff’s counsel that there had been changes to the Insurance Act last year that might affect the outcome of the costs in this case.
[49] Normally, however, in the absence of a costs issue or some other issue such as those illustrated in Bruff-Murphy, supra, these motions generally appear to me to be moot when the jury returns a verdict such as the one in this case.
Disposition
[50] The Defendant’s motion is granted, and I find that the Plaintiff does not meet the threshold set out in the Insurance Act.
[51] The Defendant has fourteen days from the date of the release of these reasons to provide his costs submissions. Those submissions are not to exceed four (4) double spaced pages, exclusive of bills of costs and case law.
[52] The Plaintiff shall have fourteen days from the date that the Defendant’s costs submissions are served to provide her costs submissions. Those submissions are also not to exceed four (4) double spaced pages, exclusive of bills of costs and case law.
[53] There shall be no reply submissions on costs without leave of the Court.
LEMAY J
Released: January 27, 2016
CITATION: G.W. v. Rawlins, 2016 ONSC 705
COURT FILE NO.: CV-11-2858-00
DATE: 2016 01 27
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
G.W.G.W.
Plaintiff
- and -
Kimo Syid Rawlins and Jasson Villeneuve
Defendants
REASONS FOR JUDGMENT
LEMAY J
Released: January 27, 2016