CITATION: Hinds v. Metrolinx, 2017 ONSC 6619

COURT FILE NO.: CV -11-2985-00

DATE: 2017 11 03

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

JANNETTE HINDS

G. Pappas and M. Wasserman, for the Plaintiff

Plaintiff

• and -

METROLINX

A. Yolles and M. Rodrigues, for the Defendant

Defendant

HEARD: July 20, 2017, at Brampton

REASONS FOR DECISION

Emery J.

1On July 23, 2009, Jannette Hinds boarded a GO Bus in Mississauga, Ontario to go to work as she did every morning. Unfortunately, the GO Bus driver engaged the bus in a forward motion, and then braked abruptly before Ms. Hinds had taken a seat. The driver’s operation of the GO Bus caused Ms. Hinds to fall in the aisle of the bus, striking a part of a passenger seat with her leg as she fell.

2Ms., Hinds commenced this action against Metrolinx as the owner and operator of the GO Bus. She did not name the driver, Mr. Sukhjinder Dhanoa, as a defendant. In this action, Ms. Hinds was seeking general damages and damages for past and future housekeeping and home maintenance expenses.

3Metrolinx admitted liability for Mr. Dhanoa’s negligent operation of the GO Bus. Although negligence was admitted, the causal link between the fall experienced by Ms. Hinds and the damages she was claiming has always been at issue.

4The trial proceeded before a jury on the issue of damages. After nine days of trial, the jury found that Ms. Hinds had suffered personal injuries as a result of her fall on the GO Bus. However, the jury also found that Ms. Hinds had recovered from those personal injuries. The jury awarded Ms. Hinds $35,000.00 for general damages and $5,000 for past housekeeping and home maintenance expense. The jury awarded Ms. Hinds nothing for housekeeping and home maintenance expenses in the future.

5There are three motions for this court to decide. These motions involve questions of law, having regard to the evidence at trial and the verdict returned by the jury:

1. A motion made by Jannette Hinds to determine if Metrolinx is vicariously liable for the negligence of Mr. Dhanoa as its employee, despite the fact that it is a protected defendant under s. 267.5(5) of the Insurance Act. This motion requires the court to consider if and how the decision in Vollick v. Sheard, 2005 13777 (ON CA), 75 O.R. (3d) 621 applies to these facts;

2. If it is found that Metrolinx is a protected defendant, the motion of the defendant to determine if Jannette Hinds did not suffer a permanent, serious impairment of an important physical, mental or psychological function. Jannette Hinds will not be entitled to general damages if her injuries do not meet that threshold. If they do, then the general damages awarded by the jury are subject to the statutory deductible in an amount that has been the subject of some dispute; and

3. A motion by Metrolinx reducing the damages awarded by the jury for past housekeeping and home maintenance expenses by the amount Jannette Hinds received from her own insurer under her own insurance policy.

SUMMARY OF THE EVIDENCE AT TRIAL

6Ms. Hinds gave evidence that as she fell on the GO Bus, her left leg hit a part of a bus seat.

7Ms. Hinds was employed at the time of the fall on a full-time basis as a customer representative at CIBC. After falling, Ms. Hinds rode the bus that morning to her transfer point at Yorkdale Mall, and continued on to her job at CIBC near Lawrence and Dufferin Streets in Toronto.

8On the date of her fall, Ms. Hinds also worked part-time at Swiss Chalet in Mississauga as a bartender.

9Ms. Hinds testified that she was in pain after the fall. However, she never attended on her doctor that day, or at a hospital.

10Ms. Hinds missed ten days of work at each of her jobs following the accident. After that absence, she returned to work at each job. She continued her full-time employment at CIBC until her retirement in 2016, except for a 3 ½ month period of time in 2014 for the surgical removal of a brain tumor.

11At CIBC, her employer accommodated her limitations caused by the GO Bus fall in various ways, which included providing her with a special chair.

12After the ten day absence in 2009, Ms. Hinds continued her part-time job at Swiss Chalet until her retirement from that employment in 2013.

13At Swiss Chalet, Ms. Hinds continued her duties as a bartender in the summer of 2009 until she was reassigned by the new franchise holder to be a hostess. The court heard evidence of her duties at Swiss Chalet as both bartender and hostess at trial.

14Ms. Hinds gave evidence about how her injuries had interfered with her life at home, and with her enjoyment of family and friends. She did not walk as much, and she could not enjoy watching TV and go to the movies as frequently as she participated in those activities before she fell.

15Her children, both adults, also testified at the trial. Her daughter Erin and son Shawn told the court how the injuries suffered by their mother when she fell had limited her ability to perform housekeeping and home maintenance work herself.

16The jury heard evidence from Ms. Hinds that she had accepted $15,000 from her own insurer, Allstate Insurance, for all accident benefits to which she was entitled to claim. Those accident benefits included her claims for past and future housekeeping and home maintenance expenses.

VERDICT OF THE JURY

17The jury was given five questions to answer. Counsel for the parties agreed upon all five questions in form and content before they were given to the jury. The jury provided the following answers to those questions:

Q1: Has Jannette Hinds proven, on a balance of probabilities that the fall in the GO Bus on July 23, 2009, has caused her personal injury?

ANSWER: Yes

Q2: Has Jannette Hinds recovered from those injuries?

ANSWER: Yes

Q3: At what monetary amount, if any, do you assess the general damage claims by Jannette Hinds for pain and suffering and loss of employment of life arising from her fall on the GO Bus on July 23, 2009?

ANSWER: $35,000

Q4: At what amount, if any, do you assess the claim made by Jannette Hinds for past housekeeping and home maintenance loss arising from her fall on the GO Bus on July 23, 2009?

ANSWER: $5,000

Q5: At what amount, if any, do you assess the claim made by Jannette Hinds for future housekeeping and home maintenance loss arising from her fall on the GO Bus on July 23, 2009?

ANSWER: N/A

18After the jury returned their verdict by answering the five questions, counsel made submissions to the court to seek clarification from the jury about the answer they had given to question 4. The jury was therefore asked a further question (the “Supplementary question”) approved by the court as follows:

Q. Is the $5,000 awarded for past housekeeping and home maintenance loss in Question #4 in addition to the $5,000 received by Ms. Hinds from Allstate Insurance set out in Exhibit #3, Tab 19, page 2 under the heading “Offer to Settle Benefits for Payment of Other Expenses – Housekeeping and Home Maintenance Benefits?

19Boxes for the jury to answer yes or no were provided for the jury to answer the Supplementary question. The jury ticked the yes box to provide that answer. The jury then gratuitously wrote in the following remark:

June 6, 2017. The Allstate amount was not used in the calculations. (signed) Foreperson

MOTIONS BEFORE THE COURT

20There are essentially four questions on two motions brought by the parties after trial for the court to decide. Those questions are:

1. On the plaintiff’s motion, whether the decision of the Court of Appeal in Vollick v. Sheard, 2005 13777 (ON CA), 75 O.R. (3d) 621 applies in this case for the court to find that Metrolinx is vicariously liable under employment law principles as Mr. Dhanoa’s employer despite being a protected defendant under section 265.5(5) of the Insurance Act.

2. On the defendant’s motion, if the case of Vollick v. Sheard does not apply, whether the plaintiff Jannette Hinds has suffered injuries that meet the threshold requirements to make the defendant Metrolinx liable for that non-pecuniary loss;

3. Whether, as a matter of law, the new deductible of $37,385.17 prescribed by Ontario Regulation 461/96, as amended to apply for tort awards between January 1 and December 31, 2017 up to $124,616.21 should be applied retrospectively to the jury’s award of $35,000 to Ms. Hinds; and

4. Whether the $5,000 awarded to Ms. Hinds for past housekeeping and home maintenance expenses should be reduced by the amounts received from her own insurer for settling her claims for that accident benefit.

21The Court of Appeal released its decision in Cobb v. Long Estate, 2017 ONCA 717 while these reasons were under reserve. Cobb v. Long Estate answered questions 3 and 4 as matters of law. Therefore, I turn to the other two questions 1 and 2 first.

1. Whether Vollick v. Sheard Applies

22The motion made by Ms. Hinds initially requested a ruling on whether section 267.5 (6.1) , an amendment to the Insurance Act that received Royal Assent on May 12, 2011, applies retroactively or retrospectively to the liability of Metrolinx as a protected defendant on July 23, 2009. Subsection (6.1) reads as follows:

(6.1) In respect of an incident that occurs on or after the date this subsection comes into force, subsections (1), (3) and (5) do not protect the owner or driver of a public transit vehicle if it did not collide with another automobile or any other object in the incident. 2011, c. 9, Sched. 21, s. 3 (4).

23In this action, the GO Bus did not collide with another automobile. If this subsection was in force at the time, it would mean that neither Mr. Dhanoa as the operator, or Metrolinx as the owner of the GO Bus would be a protected defendant to limit their liability for damages payable to Ms. Hinds.

24The plaintiff no longer seeks this ruling. The language used in subsection (6.1) expresses the intention of the legislature to have the section apply to an incident involving an injury on a public transit vehicle that occurs on or after the subsection came into force. Subsection (6.1) came into force almost two years after the date Ms. Hinds fell on the GO Bus.

25Counsel for Ms. Hinds focuses the motion instead on the applicability of Vollick to the facts. His objective for doing so is clearly to preserve the liability that Metrolinx has admitted, and to insulate the non-pecuniary damages Ms. Hinds has been awarded by the jury from reduction. To preserve the damages for non-pecuniary loss, Ms. Hinds seeks an order that Metrolinx is liable despite being a protected defendant under section 267.5(5) of the Insurance Act under the principles set out in Vollick.

26Vollick is a decision of the Court of Appeal that determined how an owner of a motor vehicle may be vicariously liable for the negligence of its employee in the operation of a motor vehicle involved in an accident despite each of them being a protected defendant under section 267.5(5). Vollick establishes that an owner may be vicariously liable for the negligence of its employee on employment law principles, even though they otherwise qualify as a protected defendant under the Insurance Act.

27In Vollick, Justice Catzman traced the evolution of vicarious liability borne by an employer in the “no fault” era since Harrison v. Toronto Motor Car Ltd. (1944), 1944 86 (ON CA), [1945] O.R. 1 (Ont. C.A.). Justice Catzman noted that the authorities have consistently applied the principle of vicarious liability of an employer arising from the negligent operation of a motor vehicle by its employee. The only noteable exception to this application of the law was made in Hechavarria v. Reale (2000), 2000 22711 (ON SC), 51 O.R. (3d) 364 (S.C.J.). Hechavarria is a case where Justice Nordheimer (as he then was) expressed difficulty with accepting the proposition that the same party on the same facts could be considered a protected defendant as owner of the vehicle, while at the same time an unprotected defendant as the employer of the driver of that vehicle.

28The legislature amended section 267.5 of the Insurance Act by enacting subsection (10.1) on October 1, 2003. I do not know if the amendment was made because of, or without regard to Justice Nordheimer’s remarks in Hechavarria. Subsection 267.5(10.1) provides that:

(10.1) Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person’s vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable.

29The court in paragraph 46 of Vollick recognized, but took care to avoid finding, that the enactment of s. 267.5(10.1) would alter the common law flowing from the principles set out in Harrison v. Toronto Motor Car Ltd. This is particularly significant after the legislature enacted the Ontario Motorist Protection Plan (Bill 68) in 1990 to introduce the concept of the “protected defendant”.

30The jurisprudence after the enactment of section 267.5(10.1) has not considered the application of the deductible on damages awarded against a person having vicarious liability under Vollick in a definitive manner. The subsection was enacted in juxtaposition with subsection (10) that preceded it. Subsection (10) provides that subsections (1), (3) and (5) relating to protected defendants having no liability unless the plaintiff has proven he or she has a threshold case does not relieve any other person from liability. That subsection would seem consistent with the judicial trend established by the Harrison case.

31In contrast, subsection 267.5(10.1) does not limit the exposure of a person having vicarious liability to the liability of a protected defendant, but to the amount of damages for which a protected defendant is liable, if found liable. For (10.1) to mean something in relation to subsection (10), the legislature must be taken to have intended that the vicariously liable person’s damages must be subject to the reductions found elsewhere in s. 267.5.

32In MacKinnon v. A.J. Bus Lines Ltd., 2010 ONSC 2802, 2010 CarswellOnt 3213 (S.C.J.), Justice Price made reference to the interplay between the vicarious liability of an employer who is otherwise a protected defendant under ss. 267.5(1), and 267.5(10.1). Justice Price made the comment that ss. (10.1) rendered Vollick inapplicable to the plaintiff’s claim because it places limitations on the vicarious liability of the employer.

33Justice Price made this determination for the purpose of deciding whether the plaintiff had a claim to advance in negligence against the defendant driver and owner for damages. He was called upon to decide if the claim was not frivolous or vexatious in the context of the defendants’ motion for security for costs under Rule 56.01. In that case, Justice Price held that he was not satisfied on the evidence before the court that the plaintiff’s claim was plainly devoid of merit, and dismissed the defendants’ motion. Consequently, I consider the comment made by Justice Price in the course of his decision to be obiter in nature.

34Counsel for Ms. Hinds urges me to consider the decision of Justice Akhtar in Zaravellas v. Armstrong, 2016 ONSC 3616. Justice Akhtar concluded that had the action against the TTC been allowed in that case, he would agree with the plaintiff’s submission that the TTC could not avail itself of the deductible applicable under the Insurance Act at the time of the accident under Vollick v. Sheard.

35I respectfully decline to follow Justice Akhtar’s conclusion for two reasons. First, I do not see where Justice Akhtar considers the applicability or effect of ss. 267.5(10.1) to the facts before him. Second, I do not see any reference to paragraphs 45 or 46 from Vollick in the Zaravellas decision. I do not know if counsel brought those paragraphs or that part of s. 267.5 to Justice Akhtar’s attention.

36The Court of Appeal did not consider the application of ss. 267.5(10.1) in Ksiazek v. Newport Leasing Ltd., 2010 CarswellOnt 2964 (Ont. C.A.). On dismissing the appeal from the order of the trial judge adding the Halton Regional Police Services Board as a defendant, the court remarked that under jurisprudence relating to an employer’s liability under s. 50 of the Police Services Act for the negligence of a police officer, “liability as an employer is not subject to the statutory deductible available to protected defendants”. The court did not provide a definitive analysis beyond that statement, or take subsection (10.1) into account to reach that conclusion.

37In view of the absence of any discussion or conclusion with respect to the effect of ss. (10.1) to reduce the amount of damages for which a vicariously liable person may be liable in Zaravellas and in Ksiazek, I have considered the various parts of the subsection as follows:

a. The subsection opens with the words “despite any provision of this part”. I take from this language that the legislature intended for the subsection to stand alone from any of the other provisions of s. 267.5 that govern protected defendants;

b. The words “a person vicariously liable for the fault or negligence of a protected defendant” refers to different persons. One would be an employer of another person. The other person would be that employee who would be considered a protected defendant under s. 267.5(5), being either the operator, occupants of an automobile or any person present at the incident.

c. The owner of the motor vehicle would otherwise be liable for the negligence of its driver under employment law principles in addition to how that person would have been liable under s. 192 of the Highway Traffic Act;

d. If the protected defendant is found at fault or negligent, the subsection refers only to that persons vicarious liability as an employer under the common law and not as an owner of the automobile or otherwise as a protected defendant;

e. The person vicariously liable is not liable for any amount greater than the amount of damages for which the protected defendant is liable. This clause involves a determination of the amount of damages for which the protected defendant is liable to limit the liability of the vicariously liable person from any greater amount.

38The phrase “amount of damages” as a concept or a term of usage, the nature of the deductible, and the amount for which a protected defendant may be found liable, are relevant to the calculations of the amount owing for damages under s. 267.5(7). In s. 267.5(7) the legislature has mandated that the court shall determine the “amount of damages for non-pecuniary loss” to be awarded against a protected defendant in accordance with certain rules. The court is therefore directed to apply those rules to determine the “amount of damages” which are “to be awarded” after the rules are applied.

39In Rule 1, the court is directed to first determine the amount of damages for non-pecuniary loss for which the protected defendant would be liable without regard to that part of the Insurance Act. The amount of damages is then reduced by the application of Rules 2, 3 and 4.

40The same term “amount of damages for non-pecuniary loss” used in subsection (10.1) is also found in the overarching direction for ss. 267.5(7) and then again in each of the rules that follow. I conclude from that uniformity of language that the legislature intended the “amount of damages for non-pecuniary loss” to be the same amount that is subject to reduction upon the application of the rules under s. 267.5(7).

41On reading ss. (10.1), a person vicariously liable for the fault or negligence of a protected defendant can be liable for no amount greater than the amount of those damages. It follows that to place a person with vicarious liability in no worse a position than a protected defendant as to the amount of damages, the court must subtract the applicable amount for the statutory deductible from the amount of damages awarded by the jury. The end result after reduction by the statutory deductible becomes the net amount of damages for non-pecuniary loss for which a protected defendant would be liable.

42The decision of the Court of Appeal in Cobb v. Estate of Martin T. Long, has provided clarity to this area of the law. The regulations prescribe an amount under s. 267.5(7)3(i) for a deductible to reduce damages for non-pecuniary loss against a protected defendant. The court concluded that the amendment to the deductible amount applies retrospectively at the time of the judgment. The amount of the deductible that would be applicable when the jury returned its verdict to Ms. Hinds and Metrolinx on June 6, 2017 would be $37,385.17.

43The fact that Mr. Dhanoa was not named as a defendant does not matter in my view. The term “protected defendant” is a defined term that is expressed in s. 267.3 to mean “a person who is protected from liability from subsections 267.5(1), (3) and (5). I conclude that the driver was a protected defendant whether he was named as a defendant or not. This issue was rendered academic in any event when Metrolinx admitted liability for the negligent operation of the GO Bus by its driver.

44I also reach the conclusion that the deductible of $37,385.17 must be applied to the jury’s award for non-pecuniary damages awarded to Ms. Hinds under subsection (10.1) from a reading of the authorities. When Justice Catzman in Vollick referred to Justice Brockenshire’s decision at trial in Walker v. Ritchie, he did so without reference to ss. (10.1) that came into force on October 1, 2003. The appellate decision in Walker v. Ritchie released contemporaneously with the Court of Appeal’s decision in Vollick contains no reference or analysis with respect to the applicability in effect of ss. (10.1).

45The accident in Walker v. Ritchie giving rise to the damages for non-pecuniary loss occurred in April, 1997, before subsection (10.1) was enacted. I do not know if Justice Brockenshire turned his mind to the applicability or effect of subsection (10.1) in the trial decision, or if he concluded it would not apply retrospectively when the trial took place in 2004.

46The answer that has proven so elusive since Vollick is perhaps answered by Vollick itself. In paragraphs 45 and 46, Justice Catzman writes:

45Section 267.5(10.1) was added to the Insurance Act by S.O. 2002, c. 22, and came into force on October 1, 2003. It answered, in the negative, the question whether an employer's exposure for vicarious liability was any greater than his exposure as owner of the vehicle. The amendment reads:

Vicarious liability

267.5 (10.1) Despite any provision of this Part, a person vicariously liable for the fault or negligence of a protected defendant is not, in respect of the person's vicarious liability, liable for any amount greater than the amount of damages for which the protected defendant is liable.

46Both sides sought to take comfort from this amendment. Counsel for Atherley Towing argued that it was a statutory confirmation of the legislature's original intention to put persons vicariously liable in the same position as any other protected defendant. Counsel for the Vollicks argued that it was a statutory innovation, reversing the previous position that excluded persons vicariously liable from the protection conferred on protected defendants. Neither counsel provided the court with any reference source that would help us to divine what the legislature had in its collective mind when it enacted the amendment. Without the comfort of such reference material, I am not prepared to speculate whether the amendment was meant to have the effect that Atherley Towing urges or the effect that the Vollicks urge, and I have been uninfluenced by s. 267.5(10.1) in reaching my decision.

47Metrolinx is a protected defendant as the owner of the GO Bus. However, as the driver’s employer, Metrolinx is nonetheless vicariously liable for his negligence in the operation of the GO Bus that caused Ms. Hinds to fall. Metrolinx is therefore liable to Ms. Hinds for the amount for non-pecuniary damages the jury awarded to Ms. Hinds. However, by operation of s. 267.5(10.1), the amount of those damages for which Metrolinx is vicariously liable under common law principles can be no greater than the amount for which its driver is liable as a protected defendant. As Mr. Dhanoa was a protected defendant who is entitled to a reduction of the amount of damages for non-pecuniary loss by the statutory deductible of $37,385.17 at the time judgment was rendered, this has the effect of reducing the jury award to zero.

2. Would the injuries of Ms. Hinds have met the Threshold under section 267.5(5)?

48The defendant Metrolinx has brought a motion to determine that Ms. Hinds did not sustain a permanent serious impairment of an important physical, mental or psychological function as a result of her fall on the GO Bus. If it is found that she has not met that threshold, then Metrolinx cannot be liable as an owner of the GO Bus for the non-pecuniary damages the jury awarded to Ms. Hinds.

49In view of my conclusions on the Vollick motion, I would ordinarily conclude that the threshold question is moot. Ms. Hinds will not recover general damages from Metrolinx after the deductible of $37,385.17 reduces the jury award under s. 267.8(4) and (6). There are authorities, including Mandel v. Fakhim, 2016 ONSC 6538 that support the decision of the trial judge to decline making a decision on whether the plaintiff’s impairment meets the statutory threshold, or if that impairment is permanent or serious, where the deductible reduces the jury’s award to nil.

50If I am wrong that Metrolinx is not vicariously liable and therefore entitled to treatment solely as a protected defendant, or that Metrolinx is not entitled to a reduction of the jury’s award by the deductible similar to the amount for which a protected defendant would be liable for non-pecuniary damages, I propose to address whether Ms. Hinds sustained a permanent serious impairment that meets the threshold established by s. 267.5(5). In particular, I intend to consider whether she has suffered an impairment within the meaning of that term under s. 267.5(5), and whether that impairment is permanent.

What Evidence is Required

51The onus is clearly on a plaintiff to satisfy the court on the balance of probabilities that the evidence given on motion or at trial establishes that the impairment at issue meets the statutory exceptions, or “threshold” to make the protected defendant liable for non-pecuniary damages: Malfara v. Vukojevic, 2015 ONSC 78 and Lento v. Castaldo (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (Ont. C.A.).

52Ms. Hinds makes a claim for the pain and suffering she attributes to the fall caused by the operation of the GO Bus on July 23, 2009. Ms. Hinds testified how she has endured that pain and suffering, as well as how that injury has impacted on her daily activities and her enjoyment of life.

53Counsel are in agreement that the review of legislative provisions by Justice Charney in Johnston v. Walker, 2017 ONSC 3494 provides an accurate overview of the statutory regime that applies to threshold motions. The necessary evidence on which the court determines whether an impairment meets the definition of the necessary threshold was changed with amendments to Ontario Regulation 461/96 on October 1, 2003, which introduced sections 4.1, 4.2 and 4.3 to that regulation. Those new sections define the purpose of s. 267.5 of the Insurance Act, what must be established to satisfy each component of the threshold, and the expert medical evidence that must be adduced to prove that the statutory exception or “threshold” has been met.

54Justice Charney goes on in Johnston v. Walker to review the following authorities that provide guidance on how to apply the statutory test for determining whether the plaintiff’s injuries meet the required standard:

The Law

10In Malfara v. Vukojevic, 2015 ONSC 78, Firestone J. set out a summary of the relevant jurisprudence relating to threshold motions, and the principles to be considered and applied by the court. In Ayub v. Sun, 2015 ONSC 1828, Diamond J. set out the highlights of this summary as follows:

• In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044, 2014 ONSC 7044 (S.C.J.) at para. 10.

• The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court set out the following three part inquiry:

(a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?

(b) If yes, is the function impaired important?

(c) If yes, is the impairment of the important function serious?

• While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh, 2008 ONCA 221 and Bos v. James (1995), 1995 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.).

• The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao, 2005 40371 (ON SC), at para. 32.

• The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.J.) at para. 56.

• When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Givons (2004), 2004 45880 (ON SCDC), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.

11In Meyer v. Bright the Ontario Court of Appeal held (at paras. 70 and 93):

Because it is only serious impairment which will qualify as an exception under s. 266(1)(b) 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.

12This observation has been repeated in several cases since. See for example Malfara at para. 28, Girao v. Cunningham, 2017 ONSC 2452 at para. 43.

13In this regard it is instructive to consider the facts set out by the Ontario Court of Appeal in Meyer v. Bright. In that case the Court dealt with a number of factual scenarios. In one the plaintiff complained that after the accident she could walk recreationally for only 30 minutes a day and in good weather whereas before the accident she walked more quickly and for much longer periods regardless of weather. After walking she had pain and swelling in her foot and ankle. The Court of Appeal concluded (at paras. 69-70) that while this qualified as a permanent impairment of an important bodily function the detrimental impact was not of such a degree that it would qualify as a serious impairment.

14In a second scenario the evidence indicated that the plaintiff was no longer able to do gardening, snow shovelling and cutting the grass and she had to adjust her shopping habits, buying small amounts of groceries on a more frequent basis. She also had to do the indoor activities like vacuuming at a slower pace and could no longer clean windows or wash curtains. Again the Court of Appeal concluded (at paras. 92, 95) that while the impairment of the plaintiff’s important bodily functions had impacted detrimentally upon her life, it was not of such a degree that it would qualify as a serious impairment

Plaintiff’s evidence

55Ms. Hinds described the injuries that she suffered, and continues to suffer from following the GO Bus accident, as follows:

a. Left leg pain, numbness and tingling;

b. Lower back pain;

c. Left shoulder pain;

d. Left foot pain;

e. Difficulty sleeping;

f. Difficulties walking; and

g. Neck pain.

56Her evidence described her regular or usual employment, and her usual activities of daily living before the accident as follows:

a. Working at Swiss Chalet and CIBC;

b. All indoor household chores;

c. Gardening;

d. Playing with grandchildren;

e. Going to the movies;

f. Watching television with her children;

g. Going to comedy clubs;

h. Reading;

i. Going to church;

j. Going out to restaurants; and

k. Going to the gym and being physically active.

57Ms. Hinds gave evidence that she had difficulty with sitting in her chair at CIBC after the accident. However, her employer provided her with a chair that was more ergonomically suitable. With that accommodation, Ms. Hinds continued to work on a full-time basis until her retirement in 2016, except for three and a half months off work for unrelated surgery in 2014.

58Ms. Hinds also continued working as a bartender at Swiss Chalet. She had taken the job at Swiss Chalet to pay for car repairs in 2011, but continued working there after those car repairs had been paid because she enjoyed the work and the people. Ms. Hinds would work at Swiss Chalet for a full shift on Friday and Saturday evenings after the fall on the GO Bus, and continued working until her retirement from Swiss Chalet in 2013.

59There is no evidence that her reassignment from bartender to hostess at Swiss Chalet during those years was made for any other reason than the decision of the franchise holder of that location.

60I therefore conclude that the injuries that Ms. Hinds suffered as a result of the fall on July 23, 2009 did not substantially interfere with her regular or usual employment.

61Ms. Hinds also gave evidence that her injuries limited her ability to perform all indoor household chores she could perform before July 2009. Those injuries affected her enjoyment from playing with her grandchildren and watching television. However, the evidence given at trial by Ms. Hinds as well as by her son and daughter suggests that she was able to perform certain household chores and to watch television with members of her family just as she had before.

62The jury heard from Erin, Ms. Hinds’ daughter, and from Shane, Ms. Hinds’ son, about her life before the fall on July 23, 2009, and her life after. The jury also heard those witnesses testify about the allocation of housekeeping and home maintenance between Ms. Hinds and members of her family both at the townhouse on Palmerston where Ms. Hinds resided with her husband and son, Shane, and in the basement apartment she now occupies with Shane. That apartment is located in the home on Bittersweet Road in Brampton owned by Erin and her husband. The jury heard from Erin, Ms. Hinds’ daughter, and from Shane, Ms. Hinds’ son, about her life before the fall on July 23, 2009, and her life after. The jury also heard those witnesses testify about the allocation of housekeeping and home maintenance between Ms. Hinds and members of her family both at the townhouse on Palmerston where Ms. Hinds resided with her husband and son, Shane, and in the basement apartment she now occupies with Shane. That apartment is located in the home on Bittersweet Road in Brampton owned by Erin and her husband.

63After moving to her daughter’s house on Bittersweet Road, she became part of an extended family with various household tasks allocated to each of them. These tasks were assigned inside and outside the home suitable to their ages and physical abilities.

64In view of all of the evidence, I do not see how any injuries suffered by the fall on the GO Bus in 2009 has substantially interfered with Ms. Hinds usual activities of daily living, having regard to her age. I therefore conclude that Ms. Hinds did not suffer an impairment as that term is defined in section 4.2(1)1 of Regulation 461/96 or the test in Meyer v. Bright (1993), 15 O.R. (3d) 12 (Ont. C.A.).

Doctor’s evidence

65Ms. Hinds complains of chronic pain and of a continuing ache in her left leg. The evidence given by Dr. Jamsheed Desai, a neurologist, and by Dr. Steve Blitzer, a chronic pain specialist was directed to these ongoing symptoms to prove that Ms. Hinds had suffered a permanent serious impairment of a physical function within the meaning of section 267.5(5).

66The court heard the evidence of Dr. Desai, a neurologist, on his one examination of Ms. Hinds. Dr. Desai described how he interviewed Ms. Hinds as well as provided testing. He concluded from that interview and his testing that she had suffered nerve damage. Dr. Desai discussed how this nerve damage has exposed her to pain, as well as numbness and tingling in the injured area of her left leg.

67Dr. Desai diagnosed Ms. Hinds as suffering from damage to her peroneal nerve resulting from the trauma she suffered as a result of her fall on the GO Bus. He also concluded that Ms. Hinds suffers from hyperalgesia and paresthesia in that leg. Dr. Desai stated that he had no reason to believe that Ms. Hinds was fabricating or over exaggerating her symptomology during his assessment. Dr. Desai further confirmed that he is of the opinion that, on the balance of probabilities, the fall Ms. Hinds suffered on the GO Bus in 2009 has caused her injuries and ongoing symptoms.

68Dr. Blitzer is a chronic pain specialist. Dr. Blitzer was called to give expert evidence about the chronic pain that Ms. Hinds had testified about when she gave her evidence.

69Dr. Blitzer diagnosed Ms. Hinds as a person who suffers from chronic pain after he examined her left leg and left knee contusions, strains to her upper back, lower back and leg shoulder. Like Dr. Desai, Dr. Blitzer found Ms. Hinds to be a credible patient, not given to fabricate or to exaggerate her symptoms. Dr. Blitzer expressed his expert opinion that Ms. Hinds met the threshold under the Insurance Act for non-pecuniary loss, as she has suffered a permanent serious impairment of an important physical, mental or psychological function.

70Dr. Ford disagreed with the diagnosis given by both Dr. Desai and Dr. Blitzer. He gave his opinion as an expert called by Metrolinx. Dr. Ford disagreed with the nerve damage Dr. Desai diagnosed for Ms. Hinds. He testified that if Ms. Hinds had suffered nerve damage to her peroneal nerve, she would suffer from a drop foot, which she clearly does not do.

71Dr. Ford also disagreed with Dr. Blitzer’s diagnosis that she suffers from chronic pain. Dr. Ford did not find any evidence given by Dr. Blitzer to establish a causal relationship between the fall on the GO Bus in 2009 and the subsequent back pain and other symptomology Ms. Hinds now describes.

72Although Dr. Ford did not state or categorically deny that Ms. Hinds has suffered all or any component of suffering from a permanent serious impairment of an important physical, mental or psychological function, he questioned the veracity of the evidence given by Dr. Desai and Dr. Blitzer. He also questioned the causal link between symptoms that Ms. Hinds reportedly suffers now, and the event that took place in 2009.

73The jury was also invited to compare the evidence given by Dr. Desai and Dr. Blitzer with the evidence given by Dr. Ford, as well as any of the evidence given by Ms. Hinds in cross-examination. The jury also heard Ms. Hinds admit in cross-examination that she had not mentioned any injury she attributed to the fall to Dr. So, her family doctor, until approximately one year later. Dr. So was not called to testify at trial.

The Test for Permanent Impairment

74Section 4.2(1), paragraph (iii) of Regulation 461/96, as amended, also provides that for the impairment to be permanent, the impairment must:

(i) have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

(ii) continue to meet the criteria in paragraph (i), and

(iii) be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

75The court in Bos Estate v. James (1995), 1995 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.) held that the “permanent” does not necessarily mean strictly forever. The court in that case held that permanent impairment means a weakened condition lasting into the indefinite future, without any limit or end. See also Skinner v. Goulet, [1999] O.J. No. 3209 and Brak v. Walsh, 2008 ONCA 221.

76This action is similar in this respect with Jennings v. Latendresse, 2012 ONSC 6982, affirmed at 2014 ONCA 517. In Jennings, the trial judge dismissed the plaintiff’s claim because she failed to establish on the balance of probabilities that her injuries were permanent. The jury had determined that the plaintiff had recovered from his injuries. The plaintiff argued on appeal that her diagnosis of chronic pain, by its very definition, must mean that the injuries she suffered are permanent. The Court of Appeal disagreed, and dismissed the appeal having regard to the evidentiary record from the trial that:

• The appellant was improving and would continue to improve.

• Her functional abilities showed no significant impairment.

• The appellant had returned to her pre-accident employment.

• The appellant’s medical examination showed full range of motion.

• Expert testimony demonstrated that the recurring pain was not caused by the original injury; and

• Both pre and post-accident physical and psychological stressors had contributed to the appellant’s chronic pain that had nothing to do with the accident.

77It is not lost on me that the jury awarded only $35,000 for general damages to Ms. Hinds. The jury also

• found as a fact that Ms. Hinds had recovered from the injuries that were caused by her fall aboard the GO Bus on July 23, 2009, and

• awarded no damages to Ms. Hinds for future housekeeping and home maintenance loss.

78The verdict returned by a jury is a factor for the presiding judge to consider when answering this question, but that finding does not bind the judge hearing the threshold motion in every case. Although it is only one factor, it is an important factor. It would be an exceptional case for the judge to decide the motion in a manner inconsistent with the verdict of the jury if the facts found by the jury were known: Mandel v. Fakhim.

79The injuries suffered by Ms. Hinds would not have met threshold under section 265.5 (5) of the Insurance Act. The evidence given on her injuries do not show that she suffered a substantial interference within her regular or usual employment, or with her usual activities of daily living to meet the definition of “impairment”. Therefore, had I not found that Metrolinx was vicariously liable as the driver’s employer, or that Metrolinx is entitled to a reduction of the jury’s award for non-pecuniary damages, I would conclude that Ms. Hinds has not suffered a serious impairment of an important mental, psychological or physical function that was permanent. Metrolinx as a protected defendant under section 265.5(5) would therefore have no liability to Ms. Hinds, and I would dismiss her claim for damages.

3. Is the Jury Award for $5,000 a collateral benefit to be set-off?

80The housekeeping and home maintenance expenses for which Ms. Hinds has claimed damages included cleaning the bathroom and the rest of the apartment, making the bed, cooking meals and washing dishes. They also included expenses for lawn care at Palmerston, as well as snow shoveling at Palmerston and at Bittersweet Road.

81The jury awarded Ms. Hinds $5,000 for past housekeeping and home maintenance expenses. This award was made without reference to any amounts paid by her own insurer, Allstate as accident benefits. Allstate had paid daughter Erin $3,176 for housekeeping work over one year following the accident, Ms. Hinds received a further $5,000 for future housekeeping and home maintenance expenses when she settled her claim for accident benefits. Ms. Hinds gave evidence that she never paid any of this amount to Erin or to any other member of her family.

82The Court of Appeal’s decision in Cobb v. Long Estate is again applicable to this case. The $5,000 awarded by the jury for future housekeeping and home maintenance expense is subject to the statutory set-off for collateral benefits for the same loss under section 265.8 (4). This award is subject to a reduction of all amounts Ms. Hinds received from her own insurer for past and future housekeeping and home maintenance expenses. Since the amount received from Allstate for this accident benefit exceeded the $5,000 awarded, the damages under this category must be reduced to nil.

CONCLUSIONS ON MOTIONS

83On the motion made by Ms. Hinds, an order is granted to find Metrolinx vicariously liable for the negligence of its driver, Mr. Dhanoa. There shall also be an order reducing the amount of the damages of $35,000 for which Metrolinx is vicariously liable by the deductible of $37,385.17 applicable to its employee as a protected defendant. This reduction results in a net sum of 0 payable for non-pecuniary damages.

84On the motion brought by Metrolinx to determine the threshold, an order shall go finding Metrolinx not liable in its capacity of a protected defendant under section 265.5 (5) of the Insurance Act.

85An order shall also go deducting the $5,000 that Ms. Hinds was awarded by the jury for past housekeeping and home maintenance expense pursuant to section 267.8 of the Insurance Act. This deduction is made for collateral benefits she has already received from her insurer.

COSTS

86I advised counsel when they appeared before me to argue the defendant’s motion that I would deal with the costs of the trial including all motions brought and determined in the course of the trial, and the post-trial motions decided in these reasons at the same time. I would urge counsel to exercise their best efforts to resolve the issue of costs having regard to the results of the trial, and in view of the results achieved on these motions.

87In the event that counsel cannot come to terms on the costs, they are directed to contact my judicial assistant, Ms. Kim Williams, at (905) 456-4835 in Brampton to schedule a conference call with me. On that call, I will set a hearing date to make submissions on costs, and establish a timetable for the exchange and filing of materials.