Parra v. Laczko, 2016 ONSC 911

CITATION: Parra v. Laczko, 2016 ONSC 911

COURT FILE NO.: CV-13-2158

DATE: 20160205

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: PARRA v. LACZKO

BEFORE: Sproat, J.

COUNSEL: J. Shinehoft, for the Plaintiff

W. Jesseau and J. Querney, for the Defendant

HEARD: January 28, 2016

ENDORSEMENT – THRESHOLD MOTION

1Ms. Parra brought an action claiming damages arising out of a May 24, 2008 motor vehicle accident. She claimed general damages, past and future loss of income, future medical and rehabilitation costs and future home maintenance and housekeeping costs. A threshold motion by the defence was argued while the jury was deliberating.

2The jury returned a verdict awarding Ms. Parra only $10,000 in general damages and $5,000 on account of future medical and rehabilitation costs. Given the deductible relating to general damages, and given a settlement already paid to Ms. Parra for accident benefits, the net result was that no amount of damages was owing and the action was dismissed.

3While that would seem to render the threshold motion moot, counsel asked that I provide a ruling. Mr. Shinehoft suggested that it might have some relevance to costs. I, therefore, provide my ruling and reasons in the form of an Endorsement which means that my reasoning will be clear to the parties but I will not endeavour to set out all of the background and refer to all of the evidence.

4Ms. Parra started what was, at least in terms of gross commissions, a very successful real estate career in 2002. She earned approximately $200,000 in commission in her first year. She described herself as having no functional limitations and working long hours, six or seven days a week. She was very happy at her work prior to the accident. She also described herself as active physically.

5Ms. Parra was rear-ended in a low speed collision. She felt intense pain in her neck and back. She immediately arranged for her sister, who was a novice real estate agent, to assist her. Her sister estimated that she took over 80 per cent of Ms. Parra’s work. Ms. Parra might come along in the car to show houses but her sister would take the clients into the home.

6Dr. Toledano, Ms. Parra’s long time family doctor, testified that during the five years preceding the accident Ms. Parra did not have any conditions that raised any concern about her ability to carry on her normal activities of life. On May 2, 2008, only a few weeks before the accident, he filled out a life insurance form indicating that she was in excellent health with no active medical issues.

7Mary De Felice, who managed 120 Re/Max agents including Ms. Parra, described her prior to the accident as being lively, friendly, disciplined, working hard on deals and being one of the top producers.

8Following the accident Dr. Toledano prescribed medication and physiotherapy. He later referred Ms. Parra to a pain clinic, to a psychiatrist and ultimately to a psychologist. Nothing worked. Ms. Parra’s condition of suffering constant pain continued.

9Dr. Khumbare, who testified for the plaintiff, is a physiatrist and was the witness who obviously had the greatest expertise in relation to chronic pain. He is the professor at the University of Toronto medical school who instructs on pain related topics. He also headed a pain clinic at a Hamilton hospital. Dr. Khumbare testified that the fact the collision was at a relatively low speed does not permit one to infer that it was not the cause of the chronic pain. To the extent of any conflict I would prefer the evidence of Dr. Khumbare to the other expert witnesses. Dr. Khumbare diagnosed Ms. Parra as suffering from chronic pain syndrome.

10Dr. Soric, who testified for the defence, agreed that Ms. Parra suffered from chronic pain syndrome. She, however, parted company with Dr. Khumbare as to whether the motor vehicle accident played a significant role in causing her chronic pain syndrome.

11The other defence medical witness was Dr. Debow who was a psychiatrist. I conclude that he was an advocate for the defence for the following reasons.

12Dr. Debow administered a “mini-mental status” exam to Ms. Parra on which he said she scored accurately. He agreed the Montreal Cognitive test is more complex and takes longer to administer. He was asked why he didn’t place some weight on Ms. Parras’ results on the Montreal Cognitive test, administered by an occupational therapist who was called as a defence expert, which showed some cognitive impairment. He responded that he was not sure of the qualifications of an occupational therapist to administer the test.

13Dr. Debow was asked why he didn’t place some weight on findings by a speech and language pathologist that Ms. Parra had severe cognitive impairment. Dr. Debow responded that he didn’t know what testing the speech and language pathologist was qualified to do and so he disregarded it.

14An impartial expert who didn’t know if prior, and potentially highly relevant, testing was valid would try to find out if it was. Dr. Debow was content to simply dismiss the testing out of hand.

15Dr. Debow testified that Ms. Parra told him she could only work 4-8 hours a week. It was pointed out to him in cross-examination that pre-accident she reported working 8-12 hours a day for six days a week. Dr. Debow was challenged as to how this difference (4-8 hours a week as opposed to 48 to 72 hours a week) could not be regarded as significant. Dr. Debow testified that was not a big difference from his perspective. He then proceeded to offer up that in a poor market an agent might not be busy and might not have any transactions for a month or two. Dr. Debow was obviously prepared to step way outside of his area of expertise to try to help the defence. As such, I place no weight on the evidence of Dr. Debow.

16I, therefore, accept the evidence of Dr. Khumbare and Dr. Soric on this point and find that Ms. Parra suffers from chronic pain syndrome. The question then is whether this condition was caused by the May 24, 2008 accident.

17In the opinion of Dr. Khumbare the chronic pain syndrome was caused by the accident. In the opinion of Dr. Soric it was not. The weight of the non-expert evidence, however, strongly supports the conclusion Ms. Parra’s chronic pain, which developed into chronic pain syndrome, was caused by the accident.

18Ms. Parra, her sister, her son and her manager at Re/Max all gave evidence that there was a night and day change in Ms. Parra following the accident. She required assistance with her work. She was no longer able to, or interested in, meeting new clients. She was becoming frustrated and depressed at being limited in her ability to work and carry on the normal activities of life. The documentation of Dr. Toledano and his evidence indicate that she was fully functional prior to the accident and not functional after.

19The motor vehicle accident is, therefore, the probable cause of the chronic pain which developed into chronic pain syndrome. While it is possible that matters such as her tax arrears, and the ending of a relationship, may have affected her mental state they are only possibilities. Ms. Parra’s functional decline coincided with the accident and not these other events. I, therefore, find that but for the May 24, 2008 accident Ms. Parra would not have developed chronic pain syndrome.

20With respect to the threshold, defence counsel conceded that the chronic pain syndrome would be considered a permanent impairment. I am also satisfied that Ms. Parra’s chronic pain syndrome substantially interferes with Ms. Parra’s ability to continue her regular employment. She is able to work fewer hours, on an erratic schedule, depending on whether she is having a good or bad day. Common sense supports the conclusion that the greater time and energy devoted to a profession or business the better the results are likely to be. Her average gross commission income from 2009 to 2015 is down $60,000 from her 2002 - 2007average. This is in the context of evidence that the real estate market has been active with house prices and commissions increasing.

21The evidence also strongly supported that it is important to the function of a real estate agent to be able to work long hours, to be able to schedule appointments on short notice and be reliable in terms of being able to keep scheduled appointments. Meeting clients, driving them around, showing them properties, and working outside of normal business hours are all necessary to perform the activities that are essential tasks of a real estate. Ms. Parra no longer has this functionality. As such she has lost the functionality necessary to perform the essential tasks of her regular employment as a real estate agent.

22I am, therefore, satisfied that Ms. Parra has, on a balance of probabilities she sustained a serious impairment of an important physical, mental or psychological function as a result of the May 24, 2008 motor vehicle accident. As such she has discharged her onus to establish that her damages and losses meet the statutory threshold.

Sproat, J