COURT FILE NO.: CV-04-CT005744 DATE: 20170420 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: YOLANDA GIRAO, Plaintiff AND: LYNN CUNNINGHAM and VICTOR MESTA, Defendants
BEFORE: Mr. Justice P.J. Cavanagh
COUNSEL: Yolanda Girao, In Person Michael Best, for the Defendant, Lynn Cunningham Stuart Aird, for the Defendant, Allstate Insurance Company of Canada
HEARD: March 10, 2017
Endorsement
Introduction
[1] The defendant Lynn Cunningham brings this motion for an order dismissing the plaintiff’s claims for non-pecuniary loss on the ground that the plaintiff has failed to prove that she falls within the statutory exceptions set out in subsection 267.5(5) of the Insurance Act, R.S.O. 1990, c. I8, as amended (the “Act”). The action was tried before a jury.
[2] The plaintiff’s action arises out of a motor vehicle accident that occurred on June 19, 2002 in Mississauga, Ontario (the “Accident”).
[3] The jury assessed the plaintiff’s general damages for pain and suffering and loss of enjoyment of life at $45,000. The jury did not make any award for damages for health care expenses.
[4] Judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. However, a judge still retains the ultimate discretion in ruling on a threshold motion: Clark v. Zigrossi, 2010 ONSC 5403, at para. 18.
[5] The questions to be decided on this motion are (i) whether the plaintiff has discharged her burden of proving that her injuries arose directly or indirectly from the Accident, and (ii) if she has, whether the plaintiff has discharged her burden of proving that her injuries constitute permanent serious impairment of an important physical, mental or psychological function.
[6] I incorporate by reference the review of the evidence in my jury charge, which I do not intend to repeat in these reasons.
Analysis
[7] Subsection 267.5(5) of the Act provides as follows:
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.
[8] Section 267.5(5) of the Act requires that the plaintiff’s alleged bodily injuries arise directly or indirectly from the use or operation of an automobile. Therefore, before determining whether the plaintiff has sustained a serious and permanent impairment of an important function, the court must first determine whether the plaintiff has proven on a balance of probabilities that the alleged bodily injuries arose directly or indirectly from the use or operation of an automobile.
Causation
[9] The test to be applied in deciding whether there is a causal connection between the Accident and the plaintiff’s injuries is the “but for” test. In order to succeed, the plaintiff must establish on a balance of probabilities that her injuries would not have existed “but for” the defendant’s negligent conduct: Hanke v. Resurfice Corp., 2007 SCC 7, at para. 21.
[10] The plaintiff submits that before the Accident she was physically and mentally healthy. She submits that following the Accident she experienced pain in her back and neck that became chronic, and that these pains were accompanied by many other symptoms that she had not experienced before, sinking her into a deep depression she had not experienced before. The physical symptoms, in addition to pain in her back and neck, which the plaintiff attributes to the Accident include myofacial strain disorder to her temporomandibular joint and chronic pain syndrome, fibromyalgia, and dizziness. The plaintiff submits that the evidence proves that her physical and mental deterioration has caused impairment to important functions necessary for her activities of daily living and has precluded her from enjoying her life – that the Accident ruined her life.
[11] In addition to her own evidence, and evidence from family members, the plaintiff relies upon the evidence of her family doctor, Dr. Malicki, and her treating psychiatrist, Dr. Manohar. Dr. Malicki and Dr. Manohar stopped treating the plaintiff when she moved to Ottawa in 2012. Both Dr. Malicki and Dr. Manohar agreed that they could not say whether the plaintiff’s health had improved or not over the last five years, and that they do not know what the plaintiff’s current health is.
[12] With respect to chronic pain and fibromyalgia, the plaintiff’s evidence concerning these conditions consisted substantially of her own reported symptoms. Dr. Malicki gave evidence that the neck, back and shoulder pain that the plaintiff reported was, to him, fairly trivial. His evidence was that if this was the only problem, the plaintiff would have been able to return to work. His evidence was that the more serious problems were those relating to the plaintiff’s temporomandibular joint and her depression. His evidence was that the plaintiff developed fibromyalgia which she did not have before the accident and, because it developed after the accident, he feels that in this way it is related.
[13] Dr. Lipson gave evidence that the plaintiff did not suffer from fibromyalgia or chronic pain syndrome as a result of the Accident. One of the reasons that he gave for this opinion was that on his examination of the plaintiff, she appeared to be experiencing the same level of pain no matter which area of her body he touched, thereby calling into question whether she was truly experiencing pain in these areas. The plaintiff did not call an independent medical expert to testify concerning these conditions and Dr. Malicki could not give evidence concerning the plaintiff’s condition in the five years prior to trial.
[14] Dr. Lipson acknowledged that the plaintiff suffered three soft tissue injuries as a result of the accident: to the cervical spine, the thoracic spine and the right shoulder. Dr. Lipson’s evidence was that the thoracic spine and right shoulder injuries have since resolved, and the plaintiff continues to suffer from a minor permanent injury to her cervical spine resulting in pain and a minor decrease in her range of motion. I conclude that these three soft tissue injuries were caused by the Accident.
[15] I conclude that the plaintiff has failed to discharge her burden of proving that her reported chronic pain and fibromyalgia, other than the three soft tissue injuries that Dr. Lipson attributed to the Accident, were caused by the Accident.
[16] With respect to the plaintiff’s temporomandibular joint issues, Dr. Malicki gave evidence in chief that, although these issues became very significant for the plaintiff, he had doubts about whether they were related to the Accident. Dr. Gryfe testified that, in his opinion, there was no connection between the Accident and the problems experienced by the plaintiff with her temporomandibular joint. Dr. Gryfe testified that the plaintiff does suffer from irreversible degenerative temporomandibular joint issues but that these issues are not related to the Accident. His evidence was that while she exhibits degenerative arthritic changes in her temporomandibular joint and appears to have an internal derangement, both are long-standing in nature and could not have been caused by the Accident. I accept the evidence of Dr. Gryfe and conclude that the plaintiff has failed to discharge her burden of proving that her temporomandibular joint issues were caused by the Accident.
[17] With respect to the plaintiff’s dizziness and balance issues, the plaintiff began experiencing falls as a result of dizziness and balance issues in June 2005, three years after the Accident. The plaintiff did not call evidence from a treating medical practitioner or from an expert medical witness who provided evidence that these issues were caused by the Accident. In the absence of such evidence, I conclude that the plaintiff has failed to discharge her burden of proving that these issues were caused by the Accident.
[18] With respect to the plaintiff’s psychological issues, in addition to her own evidence and evidence from family members, the plaintiff relies upon the evidence of Dr. Malicki, her family doctor, and Dr. Manohar, her treating psychiatrist. Both Dr. Malicki and Dr. Manohar stopped treating the plaintiff when she moved to Ottawa with her husband in 2012.
[19] Dr. Malicki gave evidence that at the time of the Accident, the plaintiff’s previous depression had largely resolved. His evidence was that her depression became much worse after the Accident.
[20] Dr. Manohar’s evidence was that, following the accident, the plaintiff suffered from psychological symptoms, mainly depression, anxiety, and posttraumatic stress disorder. Dr. Manohar testified that the plaintiff suffered from depression and, because the symptoms followed the Accident, she thought that it played a causative role. Manohar first saw the plaintiff as a patient November 2005. Dr. Manohar agreed that she had not been provided with the prior diagnosis of depression that the plaintiff had been given before the Accident and that she did not have knowledge of the plaintiff’s past psychological history. Dr. Manohar agreed that her final diagnosis before she stopped seeing the plaintiff was the same as the diagnosis that the plaintiff had been given before the Accident.
[21] The defendant relies upon evidence that approximately eight months before the Accident the plaintiff began taking anti-depressant medication and that in October 2001 she was diagnosed with major depressive disorder with psychotic tendencies in partial remission. The defendant also relies upon a traumatic experience that the plaintiff suffered in Peru when she was 18 involving a sexual assault. The plaintiff’s evidence was that, when the Accident happened, 31 years had already passed since this event, that she had overcome this event with the support of her parents and her religious faith, and that this event was unrelated to the mental illness that she suffered after the Accident.
[22] Dr. Finkel testified that the plaintiff may have suffered a short-term depression after the Accident, but his evidence was that the level at which she is still suffering is not causally related to the Accident but, instead, is a result of pre-existing issues.
[23] I am mindful of the evidence from the plaintiff that the incident that led to the pre-Accident diagnosis of depression was minor, and that she experienced only a bout of depression before the Accident that had fully resolved by the time that the Accident occurred. Dr. Malicki gave evidence as a treating family doctor and not as a treating psychiatrist or as an independent expert. Dr. Manohar’s evidence with respect to causation was entirely based upon the plaintiff’s evidence that she did not suffer from depression before the Accident. I therefore do not give significant weight to the evidence of these treating practitioners on the question of causation of the depression experienced by the plaintiff.
[24] I accept the evidence of Dr. Finkel who agreed that the plaintiff suffers from significant psychological issues but expressed the opinion that this type of minor accident would not have resulted in such a significant decrease in psychological functioning.
[25] I conclude that the plaintiff has failed to discharge her burden of proving that the depression that she experienced in the years following the Accident was caused by the Accident and not by a predisposition to psychological injuries based upon a pre-existing condition or other causes: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 35.
Whether the plaintiff has satisfied her burden of proving that her injuries constitute permanent serious impairment of an important physical, mental or psychological function.
[26] The Accident took place in 2002 and the operative regime under which to consider the threshold is Bill 59 and not the since-enacted Bill 198: Del Rio v. Lawrence, 2009 CarswellOnt 851, at para. 3.
[27] If it is shown that the plaintiff’s injuries resulted from the use or operation of an automobile, the approach to be followed in order to determine whether a plaintiff has met the threshold set out in subsection 267.5(5) of the Act is for the court to answer the following questions:
a. Has the injured person sustained a permanent impairment of a physical, mental or psychological function?
b. If yes, is the function which is permanently impaired an important one?
c. If yes, is the impairment of the important function serious?
See Ahmed v. Challenger, 2000 CarswellOnt 3985 at para. 17.
[28] The plaintiff has the onus of establishing, on a balance of probabilities, that his or her injuries meet the threshold set out by the Act: Meyer v. Bright, 110 D.L.R. (4th) 354 (Ont. C.A.) at p. 369.
(a) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?
[29] In Brak v. Walsh, 2008 ONCA 221 the Ontario Court of Appeal wrote:
The jurisprudence establishes that permanent means lasting indefinitely into the future as opposed to for a limited time with a definite end … The requirement of a permanent injury is also met when a limitation and function is unlikely to improve for the indefinite future …
[30] The plaintiff submits that she sustained a permanent impairment as a result of various medical conditions, specifically, dizziness, temporomandibular joint issues, chronic pain and fibromyalgia, and psychological issues.
[31] With respect to dizziness, the plaintiff’s first complaints occurred two years after the Accident. Her first fall as a result of dizziness occurred three years after the Accident. The only medical evidence with respect to the plaintiff’s dizziness was provided by Dr. Malicki, who did not testify that this condition was caused by the accident. No evidence was provided that the plaintiff’s dizziness will last indefinitely into the future or is unlikely to improve for the indefinite future. There was no medical evidence provided from Dr. Malicki concerning the medical condition of the plaintiff over the five years before trial.
[32] I conclude that the plaintiff has failed to satisfy the burden of proving that she suffers from dizziness that is permanent because she has not tendered medical evidence to prove that her spells of dizziness are permanent.
[33] With respect to the temporomandibular joint issues, the defendant admits that, based on the medical evidence available to the court, the plaintiff has suffered an impairment as a result of her temporomandibular joint pain that is not expected to substantially improve. The defendant, however, denies that these issues are causally connected to the Accident.
[34] With respect to chronic pain and fibromyalgia, the defendant admits that as a result of the Accident, the plaintiff suffered soft tissue injuries that has resulted in permanent impairment to her cervical spine which has had a minor effect on her range of motion. Dr. Lipson testified that the soft tissue injuries to the plaintiff’s thoracic spine and right shoulder have resolved and that she does not suffer from chronic pain or fibromyalgia. I accept the evidence of Dr. Lipson and conclude that the plaintiff has suffered permanent impairment to her cervical spine.
[35] With respect to the plaintiff’s psychological issues, the defendant admits that these issues do create a permanent impairment. However, the defendant submits that the permanency of these issues is not causally related to the Accident.
(b) Is the function which is impaired an important one?
[36] In Hartwick v. Simser, 2004 CarswellOnt 4324 the court addressed the meaning of the word “important” as used in this context and wrote:
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.
In Dingham v. Brejkaln, 2005 CarswellOnt 7604 the court wrote:
The word “important” is intended to differentiate between those bodily functions which are important to the injured person and those which are not. What must be considered is the injured person as a whole and the effect which the bodily function involved has upon that person’s way of life in the broadest sense of that expression.
[37] The plaintiff submits that she has suffered permanent impairment of a number of important physical, mental or psychological functions as a result of her psychological issues, temporomandibular joint pain, chronic pain and fibromyalgia and dizziness. The plaintiff submits that her mental and physical deterioration has caused impairment to important functions that are necessary for her activities of daily living, for socializing, for housekeeping, for parenting, for chewing, for learning English, for continuing her education, and for getting a job. The plaintiff submits that all of this has precluded her from enjoying her life.
[38] With respect to the plaintiff’s depression and other psychological conditions, both Dr. Malicki and Dr. Manohar gave evidence that the plaintiff’s depression was serious and was affecting her in important ways. The plaintiff also gave evidence about how her social life has been affected seriously and that she is not able to maintain social norms including having a circle of friends, initiating social contacts, going out to social functions, being responsible for others or participating in group conversations. The plaintiff also gave evidence about having cognitive problems that prevented her from completing tasks at home, making decisions and managing her day-to-day life. I conclude that the plaintiff’s mental illness constitutes impairment of important mental and psychological functions.
[39] With respect to the plaintiff’s temporomandibular joint issues, Dr. Gryfe testified that the plaintiff has severe degenerative osteoarthritis with changes in her left temporomandibular joint and significant degenerative changes in her right temporomandibular joint. His evidence was that these changes are likely to create pain and some restricted movement in her mandible. His evidence was that there was no indication from his examination or his discussion with the plaintiff that she was not able to maintain her body weight and so from a nutritional standpoint and ability to maintain health, there was no problem. His evidence was that there was no problem in communication. He did not see any basis for impairment in her ability to work as a result of these issues. The plaintiff testified that her temporomandibular joint issues became very serious, and that she developed difficulty swallowing as well as pain and other symptoms. The plaintiff’s evidence was supported by Dr. Malicki who described the pain as very significant and disabling.
[40] I conclude that the temporomandibular joint issues that the plaintiff experienced constituted impairment of important physical bodily functions.
[41] With respect to the plaintiff’s issues with fibromyalgia and chronic pain, the evidence from Dr. Malicki was that the neck, back and shoulder pain experienced by the plaintiff were, to him, fairly trivial. Dr. Lipson gave evidence that the impairment that the plaintiff has would not reasonably be expected to interfere with her ability to work or to interfere with her normal recreational activities, housekeeping chores or activities of daily living. I accept the evidence of Dr. Lipson and conclude that the plaintiff has not satisfied her burden of proving that she is suffering from fibromyalgia and chronic pain that constitute impairment of important physical functions.
[42] With respect to the plaintiff’s issues with respect to dizziness, the plaintiff’s evidence is that these issues are ongoing and that she continues to have dizziness and issues with balance. There was little evidence from Dr. Malicki concerning these issues and no evidence from him concerning the five-year period of time before trial. I have concluded that the plaintiff has not discharged her burden of proving that her issues with respect to dizziness and balance constitute impairment of important physical functions that affect her way of life.
(c) Is the impairment of the important functions serious?
[43] In Meyer v. Bright, the core clarified that the term “serious” related to the impairment and not to the injury. The court wrote:
It is simply not possible to provide an absolute formula which will guide the court in all cases in determining what is “serious”. This issue will have to be resolved on a case-to-case basis. However, generally speaking, a serious impairment as one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment.
The court in Meyer provided the following example:
Where … permanent impairment of an important bodily function frustrates the chosen career path of an injured person, we think the impairment is properly described as being a serious one for that person.
The court in Meyer cautioned, however, that it is expected that an injured person will have some interference with his or her enjoyment of life:
Because it is only a serious impairment which will qualify as an exception under s. 266(1)(b) [now s. 267.5(5)], it is apparent that the Legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue for it.
[44] I have considered the evidence outlined above with respect to the plaintiff’s issues relating to depression and other mental conditions, temporomandibular joint issues, fibromyalgia and chronic pain and dizziness. I have concluded that her issues with respect to depression qualify as serious ones that caused substantial interference with the ability of the plaintiff to perform her usual daily activities including securing regular employment. I conclude that the plaintiff has not discharged her burden of proving that her issues with respect to temporomandibular joint symptoms, fibromyalgia and chronic pain, and dizziness qualify as serious impairments which caused substantial interference with the plaintiff’s ability to perform her usual daily activities or to secure regular employment.
Conclusion
[45] For the foregoing reasons, I conclude that the plaintiff has failed to discharge her burden of proving that, as a result of the use or operation of an automobile, she sustained permanent serious impairment of an important physical, mental or psychological function. Therefore, the plaintiff does not fall within a statutory exception set out in subsection 267.5(5) of the Act. As a result, the defendant is not liable for any damages for non-pecuniary loss.
Disposition
[46] I therefore dismiss the claim for damages for non-pecuniary loss as against the defendant Lynn Cunningham.
[47] If costs are not resolved by the parties, the defendant may make written submissions within 30 days. The plaintiff may make written submissions in response within 30 days following receipt of the defendant’s written submissions. The defendant, if so advised, may make written reply submissions within 15 days.
[48] The parties should also consult with each other concerning the form of judgment to be issued. If the parties are able to agree upon the form of judgment, I request that a draft form of judgment be provided to me with the costs submissions. If the parties are not able to agree, I direct that separate draft forms of judgment be provided with the costs submissions and I will consider them when I consider the costs submissions.
Mr. Justice P.J. Cavanagh Date: April 20, 2017