SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-50518

DATE: 2018/03/02

COURT OF ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A.B.

Plaintiff

AND

KAITLIN WAITE and CAROL LEROUX

Defendants

Note: By order of the court, due to the nature of certain aspects of the evidence in this matter, the identity of the plaintiff is protected by a publication ban. It is forbidden for any person to publish information that may reveal the identity of the plaintiff or members of her family.

COUNSEL: David Cutler and Corey Groper, for the Plaintiff

Todd J. McCarthy, for the Defendants

BEFORE: Mr. Justice Calum MacLeod

HEARD: February 27, 2018

ENDORSEMENT

[1] This was a threshold motion pursuant to s. 267.5 of the Insurance Act. Pursuant to subsection 15, if no motion has been brought prior to trial then the trial judge must determine the question.

[2] Counsel are in agreement that I must be satisfied that the plaintiff has sustained permanent serious impairment of an important physical, mental or psychological function as the result of the use or operation of the defendants’ automobile. If I conclude that this is the case then the plaintiff may recover damages for non-pecuniary loss should the jury award such damages in excess of the statutory deductible. If I determine otherwise then those losses are non-recoverable.

[3] The judge’s determination is a question of law and is independent of the decisions which were in the hands of the jury when the motion was argued. In accordance with the evolving practice endorsed by both counsel, I reserved on the motion in order to receive the jury verdict and to be aware of their findings of fact. It is common ground that I am not bound by those findings although my decision may be informed by the verdict.[^1]

[4] The task of the judge hearing the threshold motion is a different task than the task of the jury in assessing non-pecuniary and pecuniary losses. The judge’s task is one of statutory interpretation and while the judge assesses the evidence for that narrow purpose, in doing so the motion judge does not make findings of fact in the same profound manner as would be required to decide the issues at trial. In any event the findings of fact in the threshold motion are not binding on the jury and the jury’s findings are not binding on the judge. The motion and the trial are independent processes.[^2]

[5] This was a rear end collision in which the plaintiff suffered cervical strain or whiplash. It was her evidence and the evidence of her treating physicians that she never recovered from this injury and went on to develop debilitating chronic pain. A significant issue at the trial was the extent to which she was already suffering from chronic pain and depression. While there is no doubt she had some back and neck pain before the accident and suffered occasional headaches and there is no doubt the plaintiff had longstanding treatment for anxiety and depression, her description of the pain post-accident was of a different order.

[6] Liability was admitted and it was also admitted that the plaintiff sustained cervical strain in the accident. For purposes of the threshold motion, the evidence demonstrates to my satisfaction that the plaintiff is now suffering permanent severe debilitating pain consequential to the whiplash injury sustained in the automobile accident of February 3^rd, 2009. The pain requires her to undergo regular injections and to take powerful pain killers simply to cope with the activities of daily living. I am also satisfied on the evidence that whatever pain and depression she may have experienced prior to the accident, the significant pain she now experiences is the result of injuries to the facet joints secondary to the whiplash sustained in the accident. As this was a rear end collision in which the defendant struck the plaintiff, the debilitating pain she now experiences is a result of the collision within the meaning of the statute. The threshold test is met.

[7] The defendant argues that the plaintiff has not satisfied the requirement of s. 4.3 (4) of Regulation 461/96. I disagree. While the opinion of Dr. Smith does not contain the precise words set out in the regulation, there can be no doubt that he is of the view that the plaintiff’s chronic pain condition is the result of the automobile accident. At page 24 of his report he opines that “had the accident in question not occurred, the client would not have developed the serious impairments described below in the foreseeable future”. He also states that he considers “the accident to be the tipping point beyond which she was unable to cope, in essence an example of the thin skull principle”.

[8] It is not necessary for a physician to use the precise words of the statute or the regulation. To require this would be a triumph of form over substance. In fact it would make a mockery of the need for a medical opinion if a physician was expected to simply parrot the words of the regulation as if it is some kind of formula. Medical conditions and medical opinions are frequently complex and nuanced as is the case here. I am satisfied that Dr. Smith’s report functionally complies with the intent of the regulation.

[9] It is clear from the expert report and from the evidence before the court that the plaintiff’s current medical condition substantially interferes with most of her usual activities of daily living and substantially interferes with her ability to continue her regular employment.

[10] Her impairment has been continuous since the accident because except for abortive attempts to return to work and a brief period when she would have been on leave for previously scheduled surgery, she has been unable to perform the regular tasks associated with her employment. Furthermore the evidence is clear that chronic pain conditions such as this seldom improve and may be expected to continue without substantial improvement for the indefinite future.

[11] As I indicated in my charge to the jury, the evidence in this case would clearly support a finding in favour of either the plaintiff or the defendants. To find in favour of the plaintiff, it would be necessary to accept the evidence of the plaintiff, her treating physicians and Dr. Smith and to prefer those opinions and diagnosis to the opinions of the two defence experts. That is a judgment call entirely within the discretion of the trier of fact. For purposes of the threshold motion, I accept the evidence of the plaintiff’s experts as sufficiently persuasive. The current debilitating chronic pain condition has both physical and psychological impact. On a balance of probabilities, for the purpose of the threshold, I find that the plaintiff has sustained permanent serious impairment of an important physical, mental or psychological function which has occurred as the result of the use and operation of the defendants’ automobile.

[12] In conclusion this matter meets the criteria for liability set out in s. 267.5 and in accordance with the jury verdict, the plaintiff may recover damages for her non-pecuniary loss after application of the statutory deductible.

Mr. Justice Calum MacLeod

Date: March 2^nd, 2018

[^1]: Kasap v. MacCallum, (2001) 28 CCLI (3d) 18, 2001 7964 (ON CA); Grieves v. Parsons, 2018 ONSC 26

[^2]: See Igbokwe v. Price, (2005) 2005 1044 (ON CA), 194 OAC 65; 2005 1044 (ON CA)