COURT FILE NO.: 2388/10

DATE: 20180626

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Mary Patricia Rodrigues, Michael Fleming, The Estate of Alexander Gideon Fleming

-and-

Maximilian Fleming and Ethan Fleming, Minors by their Litigation Guardian, Mary Patricia Rodrigues

Plaintiffs

– and –

Bonita L. Purtill and Aviva Canada Inc.

Defendants

David B. Williams, for the Plaintiffs

R. Shawn Stringer, for the Defendants

HEARD: February 5, 6, 7, 8, 9, 12, 13, 20, and 22, 2018

hockin j.

1On October 13, 2008, the plaintiff Mary Rodrigues was operating the family vehicle on Huron Street in the city of Woodstock. Her husband, Michael Fleming, was seated to her right and their three sons, Alexander, Maximilian, and Ethan, were belted in the back seat in order from the driver’s side. As she entered the intersection of Huron Street and Devonshire Avenue on a green light, the defendant Bonita Purtill was driving on Devonshire Avenue and entered against a red light, and there followed a violent collision that caused injury to Mary, Maximilian, and Ethan and, tragically, the death of Alexander.

2This is the family’s action for damages arising out of the injuries suffered by Mary Rodrigues, Maximilian, and Ethan and their derivative claim and the derivative claims of Michael Fleming under s. 61 of the Family Law Act, R.S.O. 1990, c. F. 3 arising from the death of Alexander.

3Liability was admitted.

4This is my assessment of their claims.

5The following claims are advanced by the family:

1. Mary Rodrigues

(a) damages for her non-pecuniary loss from bodily injury and psychological injury arising from the accident;

(b) damages for past and future loss of income; and

(c) damages for loss of guidance, care, and companionship under s. 61(2)(e) of the Family Law Act arising from the death of Alexander.

2. Michael Fleming

(a) damages for loss of care, companionship and guidance arising from the injuries of Mary Rodrigues and the death of Alexander under s. 61(2)(e).

3. Maximillian and Ethan

(a) damages for non-pecuniary loss from their psychological injuries arising from the accident; and

(b) damages for their loss of guidance, care, and companionship arising from the death of their brother, Alexander, and the injury to their mother, Mary Rodrigues.

THE CLAIMS OF MARY RODRIGUES

Threshold

6As a result of the accident, Mary Rodrigues sustained two injuries—one orthopaedic in nature and the other psychological in nature. Her injuries are not compensable unless they meet the threshold test set out in s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8 and O. Reg. 461/96 under Court Proceeding for Automobile Accidents on or after November 1, 1996.

7I am instructed by this useful summary of the legislation in Valentine v. Rodriguez-Elizade, 2016 ONSC 3540 at paras. 17, 18, 19, and 21 per Firestone J.:

[17] The relevant statutory and regulatory provisions to be applied in determining the threshold are contained in sections 267.5 of the Act and sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 as amended by O. Reg. 381/03.

[18] Section 267.5(a) and (b) of the Act provide that the owner of an automobile, the occupants of an automobile, and any person present at the incident, are not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”

[19] Section 267.5(5)(a) and (b) provide as follows:

Non-pecuniary loss.

(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.

[21] Effective October 1, 2003, O. Reg. 381/03, amended Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 O. Sections 4.1 and 4.2 of Reg. 461/96, helps to clarify the meaning of the threshold wording in s. 267.5(5) (b) of the Act. In addition, section 4.3 stipulates the evidence which must be adduced to prove permanent serious impairment of an important physical, mental or psychological function. Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 provide as follows:

4.1 For the purposes of section 267.5 of the Act,

“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

1. The impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person’s age.

3. 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 1, and

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

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

8The purpose of the regulation is not to steepen the threshold for the injured person but “to provide clarification regarding the intended meaning of the threshold wording contained in the Act”. See para. 23 of Valentine, supra where Firestone J. writes:

[23] O. Reg. 461/96 as amended by O. Reg. 381/03 does not change the interpretation to be given the statutory immunity or “threshold wording” contained in s. 267.5 of the Act. This is clear from a reading of s. 4.1 of the regulation which states “For the purposes of section 265 of the Act, ‘permanent serious impairment of an important physical, mental or psychological function’ means impairment of a person that meets the criteria set out in section 4.2.” Section 4.2 goes on to provide clarification regarding the intended meaning of the threshold wording contained in the Act.

9The instructions set out in earlier case law remain unchanged. Again from Valentine, supra at paras. 24 and 25:

[24] In Adams v. Taylor, 2013 ONSC 7920, 118 O.R. (3d) 389, Smith J. refers to the decision of Morissette J. in Nissan v. McNamee, [2008] O.J. No. 1730, (2008), 62 C.C.LI. (4th) 135 (S.C.) and at para. 8 states as follows:

Justice Morissette in Nissan concluded [at para 37]: “In summary, most of the regulation does not appear to support any significant change in the interpretation of the threshold. In general terms, it suggests at best some clarification of the law regarding accommodation.” At para. 14, she stated: “there are some changes from the existing case law suggested by the wording of the definitions now found in the regulations… However… efforts to reframe the broad approaches that have been applied since Meyer, should be resisted.”

[25] I agree with the statement of Smith J. in Adams at para. 7 which rejects the notion that case law prior to the enactment of the applicable provisions contained in O. Reg. 461/96 is not relevant. This principle is also confirmed in Sherman v. Guckelsberger, [2008] O.J. No. 5322 (S.C.) and Ali v. Consalvo, [2009] O.J. No. 487 (S.C.) at para. 9. Prior case law, as confirmed in Sherman at para. 142, is of assistance to the court in helping to determine what constitutes “permanent”, “serious”, “continuous injuries”, as well as “important function”.

10Therefore, the inquiry set out by the Court of Appeal in Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.) remains the prescription. There is this short, useful summary of Meyer in Valentine supra at para. 27:

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

2. If yes, is the function which is permanently impaired important?

3. If yes, is the impairment of the important function serious?

11There are no “hidden meanings” in this language. On interpretation, there is this guidance from the Court of Appeal in Meyer at paras.12, 31, and 32:

[12] It is worth emphasizing here that when it created those statutory exceptions the Legislature did not choose to express itself in difficult or technical terms. It used words which are common and which are in everyday use. It does not seem to us to be desirable to seek hidden meanings for such common and ordinary words as “serious” and “important”.

[31] The words “important” and “serious” qualify bodily function and permanent respectively. They do not relate to the word “injury”. To examine a threshold which a judge thinks is significant can lead one to qualify words in the legislation in a fashion which was not contemplated by it. The inquiry was not to determine some general threshold. Rather it was to look at the words used in the legislation and apply them. Courts should refrain from looking for and then qualifying a concept which is not found in the language of the legislation.

[32] We stress that the word “serious” relates to impairment and not to injury and great care must be taken so that courts do not attach meanings to words which were not placed upon them by the Legislature.

12On the correct evidentiary approach to the threshold analysis, I am instructed at para. 18 of Meyer as follows:

[18] While we will have more to say about subjective and objective standards or tests later in these reasons, we think it necessary to emphasize that in formulating its answer to the first question a court will decide the issue based upon its assessment of the medical and other evidence presented to it. Section 266(1) does not affect any change in the methods whereby the courts have traditionally determined whether a plaintiff has sustained a particular injury and, if so, what is its nature, cause and extent. Some injuries which are physical in nature can be diagnosed objectively, some can be diagnosed only upon the basis of a patient’s subjective complaints and others are diagnosed on the basis of both objective observations and the patient’s subjective complaints. The courts have traditionally weighed and assessed such evidence and will continue to do so when deciding whether an injured person has sustained permanent impairment of a bodily function caused by a continuing injury which is physical in nature.

13The onus of proof rests upon the injured person to establish on a balance of probabilities that she is a person entitled for one of the exceptions.

The accident

14At 7:00 p.m. October 13, 2008, Mary Rodrigues was operating the family car with her husband, Michael Fleming, and their three sons as passengers on their way home from picking up a pizza. The accident occurred within the four corners of the intersection of Devonshire Avenue and Huron Street in Woodstock. On a green light, travelling northbound on Huron Street, she entered the intersection. On a red light, the defendant Bonita Purtill, who was operating a pickup truck, entered the intersection, travelling eastbound on Devonshire Avenue and there followed a violent collision when the front of the pickup truck struck the driver’s side of Ms. Rodrigues’ vehicle. Photographs of the intersection and the vehicles were taken by the police.¹ The violence of the collision is depicted in the photographs. The defendant Purtill was impaired from alcohol.

15Ms. Rodrigues was removed from her vehicle by the fire department using the ‘jaws of life’. Her memory of the events that followed is vague, but she remembers worrying about her children and experiencing great pain in her low back. The Woodstock General Hospital triage note states that she presented there “shaking and tearful and covered in glass”. Alexander had been transferred to the London Health Sciences Centre, and she asked to be transferred there to be with him. They were united in the Paediatric Critical Care Unit. Alexander had sustained a brain stem injury and, after he was baptized, he died. She was discharged in the company of her husband, and they then returned to their children Ethan and Maximilian in Woodstock.

16As a result of the accident, Mary Rodrigues sustained an injury to her lower back with orthopaedic consequences. From the death of her son Alexander, she has sustained psychological consequences. The defendant does not dispute that this is the case. The plaintiff’s position is that one injury or the other or their cumulative effect qualify her as an “injured person”, and she is entitled to the exceptions to the defendant’s immunity. The position of the defence is that the plaintiff has not established that her injuries are permanent or reach the level of seriousness required to reach the extent of proof required by s. 267.5 and the threshold case law.

Evidence of physical complaints

17Ms. Rodrigues has experienced pain in her neck, lower back (particularly on the left side), and left leg.

18She was aware of the neck pain and some restriction in her range of movement, but a year after the accident, it was present only a couple of times a month and now it is “better” or felt “at random”.

19She has had headaches which travel from the back of her head forward; occur two to three times a week; and are relieved with Advil. At times, she awakens with a headache.

20She has experienced pain in her left leg especially through the left side of her left knee. This is a “dull” pain and comes on after driving two to three hours. She breaks up the driving by stopping and stretching.

21Ms. Rodrigues’ principal complaint is discomfort in her lower back, particularly on the left side, which persists. X-rays taken in the London Health Sciences Centre established that she sustained fractures of the transverse processes of the L2 and L3 vertebrae. When she was discharged, advice was given on how to deal with her back pain and the related pain in her left hip. There was bruising over her left side. She limped. She used a cane for a period of time to steady herself.

22She saw her family physician, Dr. Persaud. Three times a week for three months, she took physiotherapy. She was left with a “constant nagging pain, a dull ache” in her back, which has been the case ever since. She stretches in the mornings. She takes pain medication, which amounts to a bottle of 80 Advil every other month. With pain, she gets on with her day. Her back has interrupted her sleep; although, recently there has been improvement. She is unable to lift greater than 20 pounds. Vacuuming produces a dull ache. Her gardening is restricted. Lawn care and shovelling is not attempted. Her husband does the laundry, and Maximilian and Ethan help her out. She can bend over but not hold a bend and straightening up is painful.

23Ms. Rodrigues was an active person before the accident. She biked, but now cannot. She continues to enjoy walking, but her distances have been cut back. She is slower and at times is left with a limp. She has participated in several organized runs and walks. She trained for the events. She was determined that she would “not be beat by this injury”. Four or five years ago, with Maximilian, she participated in the Dairy Capital Run in Woodstock. She ran a third of the race and then walked. She experienced soreness in her back. She completed a downhill run in Hamilton several years ago, but walked 90% of the course, and a couple of short runs with her husband and sons since.

24She participated as a paddler briefly in a dragon boat, but switched to coaching. She supervised grades 2 to 6 wrestling. This did not involve demonstrations, but did involve coaching.

25Prolonged sitting and standing is difficult; she becomes uncomfortable. There is a “dull pain”, and she has to “shift around a lot”. She avoids standing, because it causes discomfort in her lower back and her neck hurts when she sits too long.

26Before the accident, Ms. Rodrigues enjoyed eight hours of uninterrupted sleep, but not since. Where before the accident she was asleep by 10:30 p.m., it is now 12:30 a.m. Her “mind races”, which contributes to this. Her left leg and lower back awaken her, and she finds it difficult to resume sleep. She awakens exhausted but allows that there has been improvement; she now sleeps six hours.

27Ms. Rodrigues was interviewed and assessed for the purpose of this case for her solicitor by Dr. Ogilvie-Harris on August 15, 2017. Dr. Ogilvie-Harris is an orthopaedic surgeon, who practices in Toronto. The complaints I have summarized from her evidence are consistent with the medical history he obtained from her, which is also described in greater detail below.

28Ms. Rodrigues denied any history of musculoskeletal difficulty before the accident, and there is no mention of any such pre-existing problems in the medical evidence offered by the plaintiff and the defence.

29The theme of the cross-examination of Ms. Rodrigues was that her lower back injury has not kept her from a physically active life. For a time, she was a member of the parent’s council for the school her sons attended. She was in charge of fundraising. She helped in the school library, and since November, 2009, she has held positions with Mothers Against Drunk Drive (MADD) and has been involved in public speaking engagements for MADD. For two and a half years, she has tutored students. She has been active athletically with limitations. She has, with her husband, worked limited hours for Roehill Farms organizing catered receptions.

30She is computer literate and has a background in public speaking and fundraising.

31The evidence of the plaintiff’s husband, Michael Fleming, was that before the accident she performed most of the domestic chores and he did 10%– 15% of what had to be done, but he now splits this equally with her. He does the laundry, for example, and dishes.

The psychological consequences to Mary Rodrigues from the death of Alexander

32Alexander was only five months old when he died. They were a Catholic family and before his death in the paediatric critical care unit, she and her husband arranged that Alexander be baptised and his last rites be administered. She has experienced the anguish and grief that always follow such circumstances, but, in this case, the plaintiff alleges that the nature and duration of the psychological consequences to her found a conclusion that she has suffered a “serious impairment of an important psychological function”.

33Her evidence was to the following effect.

34Alexander was born May 19, 2008 when she was 41 years of age. When he was conceived she and her husband agreed that Alexander would be their last child. In the second trimester of her pregnancy, Mr. Fleming had a vasectomy. After Alexander’s death, they decided to have another child and Mr. Fleming underwent a procedure to reverse the vasectomy. Ms. Rodrigues became pregnant in October 2009, but quickly lost the child. There was a consultation at a fertility clinic in June 2010, but she did not conceive and no further thought was given to a third child. This was a sad turn of events for them, and it, coupled with her poor self-image, has led to a loss of intimacy.

35The defendant was charged with a drinking and driving offence under the Criminal Code. She was impaired at the time of the accident. There were many court appearances for Mary Rodrigues. A not guilty plea was maintained, and Mary participated in a jury trial. Purtill was found guilty and sentenced to a term of imprisonment in the penitentiary. This was a pre-occupation for Mary and “very stressful”.

36As mentioned, she has been an active member of the MADD organization in the London area for nine years. She has served as the president of the local chapter. There have been public speaking engagements for MADD. In the several months before this trial, she has been “getting more emotional”. This concerns her.

37She continues with her husband and sons to visit Alexander’s grave a couple of times a year. He is remembered in their prayers.

38She described herself before the accident as an “optimistic person, the glass was always half full, a positive outlook”. Since the accident, she has become “moody, impulsive, and quick tempered”. She feels “great guilt and self-hatred” about the accident and, in particular, about why it could not be avoided. Her second-guessing of herself continues. Her mood can be dark. Over the last half year she has become “more emotional. I now feel like I am going to lose it, to break down”.

39Michael Fleming described his wife as a “driven person”. Before the accident, she was a “great girl, outgoing, funny, and on the go all the time. She motivated me. Now she is not outgoing, but quick to anger and lacks patience. The intimacy in their marriage has suffered. She is no longer “comfortable with herself physically and emotionally and she lacks self-confidence”. She is “not as strong, she hasn’t the drive she had before the accident”.

“Regular or usual employment”: Education, history of employment, and future employment

40Mary Rodrigues graduated from high school and then moved to Toronto where she obtained employment in retail with The Bay. At twenty-one, she moved to London to work at The Bay store here. When her employment there ended, she managed a pool hall and then worked at The Rainy River clothing store. There followed a ten year career with Walmart. When she resigned from Walmart in December 2006, she was working fifty hours a week. She worked through 2004 and 2005 when Maximilian and Ethan were born. When she resigned from Walmart, her plan was to seek employment in the Woodstock area where she lived. She enrolled in two online courses for this purpose. From January 2007 to the fall of 2007 she studied and successfully completed training as a veterinary assistant and training in the field of forestry management. She worked as a volunteer with the SPCA in Woodstock. She loved animals. That fall, before she learned of her pregnancy with Alexander, she handed out her resume to local veterinary clinics for employment as a veterinary assistant. She was contacted by the Wellington Veterinary Clinic for an interview, but did not pursue the opportunity because she had learned only days before that she was pregnant.

41The pregnancy was a welcome event, but her evidence was that if there had not been a third child, she was going to return to work and thus fulfill the plan to retrain and look for work as a veterinary assistant. The incentive to return to work was the usual importance of a second income in the family and that she had always worked.

42The evidence of Michael Fleming was that their plan was always that she would return to work. He confirmed her evidence that Mary worked for the SPCA and was offered a job interview at a veterinary clinic.

43On the basis of this evidence and my impression of Mary Rodrigues, I make the following finds of fact:

1. Before the accident, Mary Rodrigues had a settled intention to return to work.

2. She worked continuously from high school until December, 2006 when she resigned from Walmart to find work in Woodstock. She had been a hardworking and diligent employee at Walmart. With travel, she worked there fifty hours a week. She was an attractive candidate for hire. In particular, she was an ideal candidate for hire as a veterinary assistant. In fact, she had been contacted by a veterinary clinic for a job interview.

3. Tragically, as a result of the accident, Alexander died and there disappeared any reason not to return to work save for the consequences of the accident. On the strength of her personality, her history of continuous employment, her training as a veterinary assistant, and her interest in animals, I find that she would have been employed as a veterinary assistant but for the accident.

44On the basis of these facts, I arrive at the following conclusion. For the purpose of determining seriousness under the criterion set out in Section 4.2(1)1 of the Regulation. I conclude that the plaintiff’s “regular or usual employment” was employment as a veterinary assistant. The phrase “regular or usual employment” is not a difficult or technical one. Employment in ordinary parlance is used in a vocational sense; it means a person’s regular trade or profession. Present or recent work is not necessary. For example, the answer of a medical school graduate to the question “what is your employment” before he or she has entered practice, is proudly answered, as “doctor”. There need only be a settled intention to enter the trade or profession trained for or to return to it. Mary Rodrigues had completed her training and has a diploma. She distributed her resume and received an interview offer, which she only turned down on account of her pregnancy. She had a settled intention to return to work as a veterinary assistant. To exclude Mary Rodrigues from inclusion under this section simply because she had paused between finishing her training and employment as a veterinarian assistant to have a child would create problematic outcomes for any woman who intends to return to work after having a child, but who is injured in the interim period between training or employment and return to employment after taking a period of time off to raise a young child. The exclusion of such women from the scheme cannot be the intention of the scheme and is not appropriate in the circumstances. Fairness and the ordinary meaning of these words point to this interpretation and conclusion.

Physical injury: Medical evidence

45The plaintiff was assessed for her solicitor by Dr. Ogilvie-Harris on August 15, 2017. He is an orthopaedic surgeon with a practice at Toronto Western Hospital. The plaintiff was assessed for the defence by Dr. Benjamin Clarke on June 21, 2017. Dr. Clark is a physical medicine and rehabilitation specialist.

46Both doctors are in agreement on the following matters:

1. She sustained, as a result of the accident, transverse process fractures at the 2nd and 3rd vertebrae of her lumbar spine.

2. Her lumbar spine complaints are important, and her other physical complaints are not.

3. The fractures have healed and are no longer important. That she sustained fractures, however, points to the application of great force to her lumbar spine, which caused significant injury to the soft tissue or muscles and ligaments in her low back. This explains her continuing complaints. She has been left with a mechanical lower back injury.

4. Dr. Ogilvie-Harris’ opinion is that Ms. Rodrigues’ symptoms are permanent and improvement is not expected; ten years have passed since the accident and her symptoms continue. The opinion of Dr. Clark is such injuries “do not uncommonly result in persisting symptoms despite the passage of time”.

5. Ms. Rodrigues’ expression of her lower back complaint to both doctors is the same: pain and stiffness in the lower back aggravated by sitting or standing for extended periods (30 to 45 minutes) with some relief by changing positions.

6. There is no evidence of exaggeration or simulated pain behaviour in the history or presentation of Ms. Rodrigues. Dr. Clark said “she was very pleasant and co-operative. There was no embellishment. There was no protective guarding of her lumbar spine on examination. Waddel signs were absent”. Dr. Ogilvie-Harris said, “Waddel signs, none. No distraction, simulation or overreaction. No psychological or emotional aspect to her pain”. In sum, both Clark and Ogilvie-Harris found the plaintiff’s description of her complaints and limitations reliable. I agree with their impression of Ms. Rodrigues. She was in all aspects of her evidence a straightforward and reliable witness. If anything, she understated her complaints.

7. Dr. Ogilvie-Harris administered two measures of pain: one, the pain disability questionnaire of the American Medical Association and two, the World Health Organization Disability Assessment Schedule. The tests and her results are exhibits 16 and 17. He found her results valid and reliable and consistent with her injury. On the AMA result, she fit the description of someone with “moderate pain–related functional limitations”. On the WHO test, she scored in the lowest 20th percentile for disability. Both scores are in his view scores that are consistent with a diagnosis of significant mechanical lower back pain. His evidence was that there is a well-understood relationship between a loss of movement or a restricted range of motion and pain. Dr. Clark found, as well, complaints of pain in the lower back in all directions.

8. Dr. Ogilvie-Harris was asked whether Ms. Rodrigues is able to return to work and whether the injury will affect her working life expectancy. His evidence was to this effect:

(a) She will be unable to work as a veterinary assistant since lifting and bending is expected.

(b) She is capable of sedentary work.

(c) On the basis of statistics from Statistics Canada for persons with mechanical low back pain, she will find it more difficult to get a job and to keep a job and there will be longer periods of time off work between jobs. Persons with mechanical lower back pain have an average working life expectancy loss of 5 to 10 years.

There was no mention in Dr. Clark’s reports of competitive disadvantage, but he agreed with Mr. Stringer and Mr. Williams that this should be taken into account. For example, on cross-examination, he agreed that if the plaintiff disclosed her history of mechanical low back pain on an application for sedentary employment that would put her at a disadvantage for hire.

47There were the following points of disagreement between them:

1. Dr. Ogilvie-Harris emphasized the importance of taking into account in assessing the plaintiff’s level of functioning and overall well-being that there are “psychological and psychiatric issues” in this case. In particular, it is important to recognize that the combination of physical and psychiatric problems is worse than either one alone. He put it aptly when he said that in this case, one and one is not two but three. Psychiatric difficulty will aggravate the effects of physical injury. There is a “direct interaction between the psyche and the physical side, one cannot take those things in isolation”. Disability and impairment is greater because of this combination. Dr. Clark in his assessment of Ms. Rodrigues and the threshold question did not take into account this complexity.

2. Dr. Clark thought that 10-20 physiotherapy treatments might produce “partial improvement”. At this point, almost 10 years since the accident, Dr. Ogilvie-Harris disagreed.

3. Dr. Clark speaks in his report of January 17, 2018 directly to the threshold question. From p.2 of his report, he states as follows:

I agree with Dr. Ogilvie-Harris that her back pain could be a limitation with respect to returning to work as a veterinary assistant, due to the heavy lifting required. However, as stated in my report, her impairment does not prevent her from working on a full-time basis in a sedentary to light capacity. I agree with Dr. Ogilvie-Harris that there is no evidence that she will deteriorate or develop arthritis in the future or require surgical intervention. There is a difference of opinion in relation to the seriousness of the impairment. Based upon the legislative definition, I did not (and still do not) feel that it met the threshold from a physical perspective.

48This continued to be Dr. Clark’s opinion at trial.

49Dr. Ogilvie-Harris disagreed with Dr. Clark for these reasons:

1. Dr. Clark’s definition of impairment failed to take into account the plaintiff’s diminished range of motion. Lost range of motion correlates with long term disability and therefore impairment.

2. Although there is agreement that the plaintiff can work full time in a sedentary occupation, he failed to take into account her shortened working life expectancy. This is relevant to a determination of impairment.

3. Dr. Clark’s opinion is that the plaintiff does not meet the threshold from a “physical perspective”. This is too narrow a view in Dr. Ogilvie-Harris’ opinion. He considers it medically wrong to consider the physical alone: “every person is a continuation of the physical and the psyche. Dr. Clark disqualified half of the whole function”.

4. Dr. Clark accounts for their difference of opinion on their different definitions of “seriousness”. Dr. Clark is instructed by his interpretation of the legislation where Dr. Ogilvie-Harris choses to measure “serious impairment” from a medical perspective. This is all the court may reasonably expect from a physician, he pleaded.

Psychiatric evidence

50Ms. Rodrigues was assessed for the defence by Dr. Judy Wilkins on August 6, 2017 and by Dr. Ruth Lanius for her solicitor on October 15, 2009 and January 19, 2018 shortly before the trial. They are psychiatrists.

51Dr. Wilkins found her to have a spontaneous, engaging personality. The following information is taken from Dr. Wilkins’ evidence. Mary was not emotional, did not magnify her symptoms, and had a consistent history. Cognition was normal and there were no neuro-vegetative features to her personality (e.g. lack of sleep, appetite, and depression was absent). Mary described herself as “easy going”. She complained only that her case had not settled, that she was worried about her son Maximilian, and that there was still pain in her back and left leg. She was tearful once but only for a short period of time when she mentioned Alexander. Her activities of daily life had not been affected and though her grief continued it was a normal reaction from a psychiatric point of view. She was not disabled psychiatrically. There was no impairment of mental function. She did not meet the threshold. There were no features of PTSD or major depression when she interviewed Ms. Rodrigues. In sum, Mary was doing well.

52Dr. Wilkins delivered a second report after she reviewed the report of Dr. Lanius on her January 19, 2008 interview of the plaintiff. Where Ms. Rodrigues had not complained of depression or feelings of guilt and self-loathing to her she did to Dr. Lanius. What the plaintiff reported to Dr. Lanius was “a very different picture”. Perhaps the approach of the “court case was a reason”, she thought.

53On cross-examination, she recognized that her interview of the plaintiff was different in kind to the trauma-centered approach used by Dr. Lanius, which delved into the emotional consequences of the accident and Alexander’s death. Although she did not conclude that Ms. Rodrigues suffers from PTSD or a major depressive disorder, she agreed that if that is the case one should expect employment only on a part-time basis.

54The opinion of Dr. Wilkins was that Ms. Rodrigues continues to experience a natural albeit longstanding grief reaction arising from the death of her son, but that she does not meet the threshold in her view.

55The evidence of Dr. Lanius was that Ms. Rodrigues, as a result of the accident, suffers from three psychiatric conditions: persistent depressive disorder, major depressive disorder, and post-traumatic stress disorder. These are disorders which Dr. Lanius diagnosed on the basis of the diagnostic criteria set out in the DSM-V published by the American Psychiatric Association and two standard measures for depression and PTSD: the Hamilton Rating Scale for Depression and the Clinician-Administered PTSD scale for DSM-V. The plaintiff’s score on the Hamilton Rating Scale pointed to severe depression and the PTSD scale confirmed the PTSD diagnosis.

56Dr. Lanius found that Ms. Rodrigues was reluctant to reveal her feelings about the accident, her family, and the death of Alexander. She has coped by “avoiding symptoms” so there is only a “surface presentation”. This is typical of someone with PTSD. Dr. Lanius’ view was that all Dr. Wilkins got in her interview of Ms. Rodrigues was just that: a surface presentation. The individual’s “inner pain is walled off from the surface presentation”. This is how PTSD individuals survive, cope, and live in the present. Ms. Rodrigues’ pain was revealed to Dr. Lanius when she persisted with her questioning of Ms. Rodrigues beyond the surface presentation by following the trauma-centred approach. She revealed to Dr. Lanius, feelings of worthlessness and guilt and that she was responsible for the death of Alexander, which has given rise to self-hatred. She lacks concentration. She feels that she is a bad wife and has lost the ability to be intimate with her husband. It takes all her energy to work part time. These feelings are chronic, they will persist. There is significant sadness in her life. These feelings are symptoms that substantiate the diagnosis made opined Dr. Lanius.

57Since the accident, Ms. Rodrigues has been involved in the life of her family, volunteers, and has worked part time. When it was suggested to Dr. Lanius that this points to an ability to lead a normal life, she answered that this was Ms. Rodrigues’ way to survive. This was her coping strategy. It was a “front and her ability to cope is fading”. This was evident from her answer to question 462 on her examination for discovery where she acknowledged it was becoming more difficult for her to cope. It takes all her energy to do this and one must remember she has worked part time and not full time. Full time “would be very difficult for her”. Dr. Lanius agreed that counselling for Ms. Rodrigues may benefit her and that it may produce “some improvement” and that with counselling there is a significant possibility that she will maintain her present level of functioning.

58Dr. Lanius’ impression of Ms. Rodrigues was that she was honest and that her interview and her responses to the measures of depression and PTDS were valid.

59Dr. Lanius’ opinion was that Ms. Rodrigues sustained a permanent and serious impairment of an important mental or psychological function. Every aspect of her daily, domestic, marital, and employment life has been seriously and permanently impaired.

Conclusion: Threshold

60I am satisfied on a balance of probabilities that the plaintiff sustained bodily injury as a result of the defendant’s operation of an automobile, and as a result of the injury she has sustained a permanent serious impairment of an important physical function and an important mental or psychological function. I am satisfied that the threshold has been met on either aspect or, in the alternative, as a result of the cumulative effect of both.

61I have set out s. 267.5(5) of the Insurance Act and s. 4.2 of the Regulation, supra. On s. 4.2, Laskin J.A. in Gyorffy v. Drury, 2015 ONCA 31, 123 O.R. (3d) 721 (C.A.) at para. 31 observed that:

[31] While the regulation did not change the statutory standard of s. 267.5(5) of the Insurance Act, it firmed up that standard by introducing specific definitions concerning the degree of impairment and by outlining the evidence required to prove the impairment.

And at para. 11, as follows:

[11] Section 4.2(1) provides that a person suffers from a permanent serious impairment of an important physical, mental or psychological function if three criteria are met. The criteria relate to the seriousness of the impairment, the importance of the function impaired, and the permanence of the impairment. The first two criteria can each be met in different ways.

Impairment: Physical function

62Was there substantial interference with the plaintiff’s ability to continue his or her regular employment?

63For reasons mentioned, I have concluded that the plaintiff’s “regular or usual employment” at the time of the accident was employment as a veterinary assistant. She had completed her training; she added to her training practical experience with animals by volunteering with the SPCA; she had circulated her resume; and she had been offered an interview by a Woodstock veterinary clinic. She had a settled intention to work as a veterinary assistant. Her intended course of action was to work full time in that employment. The accident prevented her from continuing this course of action.

64The evidence of Dr. Ogilvie-Harris was that Ms. Rodrigues will be unable to work as a veterinary assistant since lifting and bending are expected. Dr. Clark agreed that her back pain was a limitation with respect to working as a veterinary assistant, because of the heavy lifting required. The opinion of Dr. Ogilvie-Harris was that this criterion of the regulation should be answered in the affirmative. The opinion of Dr. Clark was that it should be answered in the negative, because the plaintiff was capable of sedentary work, such as customer service. However, in my view, work in that capacity is not relevant to this question. Sedentary work was not her regular or usual occupation.

65Is the physical function impaired an important function? Was it necessary to perform the activity that is essential to the plaintiff’s usual employment?

66Yes. Both doctors agree that the plaintiff’s mechanical low back pain would prevent her from lifting animals. This is an essential part of work as a veterinary assistant.

67Is the impairment permanent?

68The opinion of Dr. Ogilvie-Harris is that the plaintiff’s symptoms are permanent. They are still present. We are now almost ten years since the accident and her low back complaints continue. The opinion of Dr. Clark awkwardly expressed is that her injuries “do not uncommonly result in persisting symptoms despite the passage of time”. Dr. Clark thought that 10 to 20 physical therapy treatments might produce partial improvement. Dr. Ogilvie-Harris disagreed. I accept his opinion on this and not that of Dr. Clark. In any event, Dr. Clark’s opinion that there might be some improvement does not remove their jointly held opinion that the plaintiff’s back injury is permanent.

Impairment: Mental or psychological function

69The plaintiff gave evidence over parts of two days. My impression of her was that she understated her emotional difficulties. As stated, she was a straightforward honest witness.

70The evidence of Dr. Lanius was that the inclination of individuals with PTSD and depression was to give a “surface presentation” of their emotional state. A reliable assessment of an individual who had suffered the death of an infant son in tragic circumstances required a probing, persistent interview. This required a “trauma-centered approach”.

71I accept, in all aspects, the evidence of Dr. Lanius. She has a wide and long clinical and academic background in the treatment and writing on PTSD. She had a hand in writing part of the DSM-V criteria for PTSD for the American Psychiatric Association.

72Such an approach was unknown to Dr. Wilkins. Where Dr. Lanius discovered on her interview of the plaintiff’s feelings of guilt, worthlessness, and self-hatred, Dr. Wilkins did not. Dr. Wilkins thought Dr. Lanius got “quite a different picture” of the plaintiff which she attributed to the proximity of the trial. I reject this view. I find that Dr. Wilkins got a “surface presentation” because she did not follow a trauma-centered approach. Beyond this, I find it puzzling that given the tragic circumstances of this case that she did not mention, consider, or investigate PTSD or PTSD symptoms as a possible explanation for the plaintiff’s mental state. For these reasons, I find the assessment of the plaintiff by Dr. Wilkins unreliable.

73Has the plaintiff sustained a permanent serious impairment of mental or psychological function?

74Dr. Lanius’ opinion is that the answer is yes, she has. She began after the accident with a significant grief reaction which “transitioned” into a major, severe depressive illness and PTSD. She has experienced severe survivor’s guilt, self-hatred, and a sense of worthlessness. These symptoms are not what one would expect in the case of a normal grief reaction. She may only work part time and part time work takes all her energy; it would be very difficult for her to work a full day. Her difficulties are chronic although with counselling there is a “hope for some improvement”. Her opinion is that there has been a serious impairment of how Ms. Rodrigues can function in all aspects of her daily life. The following exchange shows an instructive response by Dr. Lanius to a suggestion in cross-examination that on the basis of Ms. Rodrigues’ level of activity since the accident she has and will live a normal life.

Q. Well, they have families. They hold down jobs. They socialize.

A. Mmhmm.

Q. They contribute to society.

A. Yes, it’s that front again, that surface, right. You have to survive. You have to be there for your kids, especially if you’re as responsible as Mary is, right. You’re – you’re constantly expending all your energy to hold it together, because anything and you could lose control and so, you go through life very differently, as compared to before you have these disorders. So, you – you have a front – you preserve a front because so quickly you could lose control. You’re working so hard to suppress all that suffering that I think your life and your sense of self changes very significantly.

Q. But you say that she has this front and I take it the idea is that she’s been able to fool everyone for such a long time?

A. No.

Q. No? Okay.

A. She’s surviving. It’s not about fooling others, it’s about surviving.

75I find that there has been an impairment of the plaintiff’s psychological function from her persistent depressive disorder, major depressive disorder, and PTSD. The plaintiff’s emotional difficulties prevented her from accepting full time work immediately following the accident to the present and have substantially interfered with her usual activities of daily living. This has been a serious impairment of her psychological ability to work and enjoy life. The impairment on the basis of Dr. Lanius’ evidence has been continuous and is permanent.

76Finally, I am guided by this useful observation of Harrison Young J. in Sasso v. Copeland, 2005 CanLII 45205 (ON SC), 78 O.R. (3d) 263 (Sup. Ct. J.) at para. 19:

[19] In determining whether the plaintiff’s impairment of her important function is serious, it is important not to focus on any particular aspect of the plaintiff’s impairment but rather the totality of her circumstances and the cumulative effect on her life.

77The evidence of Dr. Ogilvie-Harris is that one should not forget on the assessment of either the orthopaedic or psychiatric consequences to the plaintiff that it is a mistake not to take into account the cumulative effect of both.

78For these reasons, I conclude that the plaintiff Mary Rodrigues has established that she sustained a permanent serious impairment of an important physical function and an important psychological function.

Assessment of the Non-Pecuniary Damages of Mary Rodrigues

79Section 267.5(7) provides that I must now determine the amount of damages for the plaintiff’s non-pecuniary loss without regard to the statutory accident benefits, provided for under subsection 268(1) and the deductible prescribed by regulation under paragraph 3 of this section.

80There is a useful reminder of the arbitrary nature of the exercise of quantifying non-pecuniary damages by Spence J. in Arnold v. Teno (1978), 1978 CanLII 2 (SCC), 83 D.L.R. (3d) 609 (S.C.C.) at p. 638:

There remains the assessment of the quantum of non-pecuniary damages. These damages are spoken of as “compensation” for pain and suffering, loss of amenities of life, loss of expectation of life – a grant of largely subjective considerations the very naming of which indicates the impossibility of precise assessments.

81In assessing the non-pecuniary general damages of Mary Rodrigues. I take the following matters into account as material to the assessment:

1. The injuries sustained have had physical and psychological consequences. She has been left with mechanical lower back pain, which requires medication for relief. At now almost 10 years since the accident, she suffers from symptoms of guilt, shame, low self-esteem, and PTSD.

2. Both problems are permanent and serious.

3. She is a relatively young woman. She is 51 years of age with a normal life expectancy.

82I assess her non-pecuniary general damages at $145,000.

Economic Loss Claims

1. Housekeeping

83The evidence in this case is that because of the injuries suffered by the plaintiff she has at times left some housekeeping tasks undone or she did them but experienced discomfort or difficulty doing so. Mr. Williams asks that her award include $15,000 to $20,000 for future housekeeping.

84There was no economic evidence on the cost of hiring someone to do this and no evidence that a third party had been hired or volunteered for the pre-trial period.

85Mr. Stringer’s position was that if anything was to be awarded the award should be very modest.

86Such a claim is not claimable as special damages for the pre-trial period and is at least in this case a claim in the nature of a claim for non-pecuniary damages. The housework will get done but with increased pain and suffering or the home will be left in an untidy state and so there will be a loss of amenity. There is a useful discussion of the basis of such claims by S.E. Lang J. in McIntyre v. Docherty (2008), 2009 ONCA 448, 97 O.R. (3d) 189 (C.A.) and in Fobel v. Dean (1991), 83 D.L.R. (4th) (Sask C.A.)

87On this basis, I accept Mr. Williams’ invitation and have included $10,000 for housekeeping in the general damages figure assessed.

2. Income loss claims

88Determination of past and future loss of income does not take into account the threshold. Calculation of the claim for loss of income before the trial is a calculation of net loss of income or net loss of earnings capacity. The calculation is governed by s. 267.5(1) of the Insurance Act and s. 4 of Ont. Reg. 461/96. Calculation of the future loss of income is based on the conventional approach of applying working life expectancy to present values of the annual loss with contingencies (positive and negative) if relevant.

89Mr. J. B. Hoare of the Hoare Dalton firm provided this evidence. He is a chartered accountant with a wide experience in claims of this sort.

(a) Past income loss

90The plaintiff’s evidence was that her intention was to remain out of the work force at home with Alexander until he entered junior kindergarten in September 2012 at age 4 years. The claim is based on what she would have earned as a veterinary assistant in September 2012 to the time of trial and what her actual earnings from part time work for that period were. The difference is the claimed loss. Framed in this way, the claim is in the nature of a special damages claim. It was perhaps open to the plaintiff to characterize the claim as a loss of pre-trial earning capacity. In the event such a claim had been made, its valuation would begin before 2012 since the plaintiff’s reason for not returning to work until 2012 tragically was not a factor in her life. The position taken was one that followed the evidence and was a reasonable and conservative approach.

91Mr. Hoare’s calculation of her lost income reasonably assumed an hourly wage rate at the entry level for a veterinary assistant. That was $12.50 per hour in 2017. This rate was backed off to $11.31 per hour in 2012 to account for lower annual wage settlements with increases to 2017 and then the actual minimum wage this year, $14.00 per hour.

92The prescribed deductions were applied and the actual earnings from 2012 to 2018 to the time of trial with deductions were subtracted. The 80% multiplier was then applied to produce a pre-trial loss of income figure of $70,000.

93The position of Mr. Williams for Ms. Rodrigues was that this figure was supported by the evidence and was conservative. Mr. Stringer’s position for the defence was that this figure was high. His position was that from 2012 to February 2018 the plaintiff was “underemployed” and that her earning capacity was greater than the actual income of the plaintiff.

94The opinion of Dr. Lanius was that because Ms. Rodrigues suffers from psychological illness she is left “without energy” and it takes “so much more effort for her” to work part time and do her volunteer work. Fulltime work “would be very difficult for her”. I do not overlook the view of Dr. Ogilvie-Harris that from an orthopaedic point of view she could try sedentary work, but I accept the opinion of Dr. Lanius that at this point her psychological impairment predominates and does not permit full time work.

95I accept that her pre-trial loss of income is $70,000.

(b) Future loss of income

96The standard of proof for prospective loss of earnings is a real and substantial possibility or risk such losses may occur (Schrump v. Koot (1997), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.)).

97S. E. Lang J.A. in McIntyre, supra, at para. 62 observed that “the modern law of damages recognizes that work… provides a human being with an important sense of purpose and contribution”. The plaintiff’s history proves the wisdom of this observation. The plaintiff always worked and worked well. She worked her way up to the position of assistant manager at Walmart, and, as soon as she could, she retrained for her next employment in Woodstock, that of a veterinary assistant. Once she had established herself in 2012 as a veterinary assistant I am satisfied she would have worked as a veterinary assistant fulltime to retirement.

98Mr. Hoare for his purpose fixed the level of her earnings as of the date of trial at the prevailing minimum wage of $14.00 per hour or $29,100 annually. He assumed for the purpose of illustration a working life of 12 years to age 62 and 15 years to age 65. The present value figures provided assume two situations; one, standard mortality and two, standard mortality and non-participation rates in the work force by females. The most important factor in the participation rate is the presence of a pension. The plaintiff is without one. To fix a retirement age is to “gaze deeply into the crystal ball” to borrow from Dickson, J. in Andrews v. Grand and Toy Alberta Ltd., (1978) 1978 CanLII 1 (SCC), 83 D.L.R. (3d) 452 at p. 469.

99I think it is reasonable to assume the plaintiff would retire at age 62.

100Mr. Hoare’s figures correctly took into account the plaintiff’s present earning capacity to arrive at the actual earning capacity of the plaintiff. That figure annually is $6,700. The position of the defence is that the plaintiff is “underemployed”. It is the case that the plaintiff for several years now has spent some of her time volunteering at her sons’ school and has done useful work for MADD. That time could be usefully spent working. She need not of course, but for my purpose it represents additional earning capacity. I fix her additional earning capacity annually at $9,000 currently. The post-trial value of the plaintiff’s lost earnings is therefore calculated as follows for 2018: $32,300, from 2019 to 2029, age 62 years, $336,300 less the present value of $9,000 or $97,803. The post-trial lost earning capacity is $238,497 rounded to $238,500.

101The position of the defence was that this was not a case that deserved assigning a present value but one where the evidence justified fixing an arbitrary or conventional figure for loss of competitive advantage. I disagree for two reasons. This approach would require me to ignore the weight of the medical evidence; in particular, the evidence of Dr. Laniusthat she will struggle to maintain her present level of functioning and the evidence of Dr. Ogilvie-Harris that her working life will likely be cut short by 5 to 10 years. Accepting this evidence, as I do, this result is a conservative one.

102Therefore, I fix the plaintiff’s prospective loss of earnings at $238,500.

Family Law Act claim of Mary Rodrigues arising from the death of Alexander

103What is a reasonable and conventional amount to compensate Mary Rodrigues for the loss of care, guidance, and companionship she might reasonably have expected had Alexander survived the accident?

104I am guided by this short summary of companionship as it was explained by Osborne J.A. in To v. Toronto (City) Board of Education (2001), 55 O.R. 93d) 641, 107 A.C.W.S (3d) 1000 (C.A.) at para. 36:

Companionship, as it was defined in Mason v. Peters in a fatal accident context, consists of the deprivation of the society, comfort and protection which might reasonably be expected had the child lived. Robins J.A. described it as “the loss of the rewards of association which flow from the family relationship”. Care was referred to by Linden J. in Thornborrow v. MacKinnon (1981), 1981 CanLII 1945 (ON SC), 32 O.R. (2d) 740 (Ont. H.C.) as including “feeding, clothing, cleaning, transporting, helping and protecting another person”, Thornborrow was cited with approval by Robins J.A. in Mason v. Peters. See also Huggins v. Ramtej (Ont. S.C.J.). In Thornborrow, Linden J. described guidance as including such things as education, training, discipline and moral teaching.

105Alexander was to be the last child for Mary Rodrigues and Michael Fleming. He represented for them the opportunity to educate and enjoy the love, comfort and society they expected had Alexander lived. He was very young but had entered their lives. The relationship with Mary Rodrigues was short, but significant and his loss over her lifetime is significant.

106I am instructed again by Osborne, J.A. in To, supra and Laforme, J.A. in Fiddler v. Chinnetti, 2010 ONCA that, on a reasonable range, the award should be a conventional one and from the benchmark figures struck in Mason v. Peters (1982), 1982 CanLII 1969 (ON CA), 39 O.R. (2d) 27 (C.A.) and To, supra the range must be adjusted upward to award equivalent dollars.

107I assess the damages of Mary Rodrigues under s. 61(2)(e) of the Family Law Act, R.S.O. 1990 c.F.3 at $130,000 arising from the death of Alexander.

THE CLAIMS OF MICHAEL FLEMING

108Michael Fleming is 50 years of age. He married Mary Rodrigues on August 28, 2004. Like Mary, he has a history of steady employment. Before the accident, most of the housework was done by Mary, but he now shares this responsibility equally. He does the laundry, including folding; snow shovelling; and the lawn. He is now the sole support for the family.

109Their relationship has changed. Before the accident, she was a “first grade, outgoing, funny, and vibrant but now she is less so, impatient and quick to anger.” Intimacy before the accident was “very regular” but is now absent. He explained “she is not comfortable with herself and lacks confidence”.

110I assess his derivative claim for the loss of Mary’s guidance, care, and companionship at $25,000. Their loss of intimacy figures largely in this assessment.

111The loss of Alexander has been suffered in the same way and to the same extent as Mary. I assess Mr. Fleming’s damages under s. 61(2)(e) in the same amount, $130,000.

112There should be added to his reward the cost of the vasectomy reversal, $4,800. It was not covered by OHIP, but was reasonably the responsibility of the defendant in the circumstances. This was not disputed.

THE CLAIMS OF ETHAN AND MAXIMILLIAN FLEMING

113The claims of Ethan and Maximilian are claims that they have sustained a permanent and serious impairment of an important psychological function.

114The evidence adduced to establish this was the evidence of Shannon L. Stewart, Ph.D., C. Psych. She is not a physician, but she is a registered member of the College of Psychologists of Ontario and has been for twenty-three years. She has a wide experience in teaching and clinical psychology. She has a particular interest in the assessment and treatment of children with an impairment of psychological function. The defence takes the position that as important and relevant as her evidence may be, Ethan and Maximillian have not satisfied the requirement set out in s. 4.3 of Ont. Reg. 461/96 that to answer the threshold question the plaintiff must “adduce evidence of one or more physicians”. That she is not a “physician” is not in dispute.

115Section 4.3 of the regulation is set out above but the relevant parts are repeated for ease of reference.

4.3(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

4.3(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

4.3(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

4.3(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

116The insurance scheme introduced in 1996 included an amendment to the statutory exception to tort immunity, which broadened the right to sue for damages for non-pecuniary loss to include loss arising from impairment of an injured person’s “mental or psychological function”. This is simple straight forward language. The Legislature did not choose to express itself in difficult or technical terms. Psychology is the “scientific study of the human mind”. A psychologist is one who practices in that field. A psychologist is a “health practitioner” under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and may conduct for forensic purposes a mental examination of a party where the mental condition of a party is in question. A psychologist is a “health practitioner” under s. 2(1)(d) of Ont. Reg. 462/96 of the Statutory Accident Benefits Schedule under the Insurance Act.

117It is presumed that regulatory provisions are meant to work with their enabling legislation, but where they do not stand coherently with the statute, the statutory provision prevails. The language of the exception is a clear invitation to include the evidence of a psychologist if there is to be a sensible application of the language of the section. Beyond a question of statutory interpretation, in the interests of fairness and justice, the trial record should include the evidence of Dr. Stewart. It is within the inherent jurisdiction of the court to do so to do justice between the parties. See the case of Ziebenhaus (Litigation Guardian of) v. Bahlieda (2015), 126 O.R. (3d) 511 (C.A.). Finally, I note this observation: the defence did not move to disqualify Dr. Stewart when she was called by the plaintiff to give evidence. This amounted to a tacit acceptance of the admissibility and relevance of her evidence.

118The nature of the impairment alleged by Ethan and Maximillian is impairment of psychological function. Dr. Stewart’s evidence may be used to decide the issue of their impairment.

119Maximillian was sitting in the middle of the back seat with Ethan to his right during the accident. They suffered minor physical injuries in the accident, but allege that they have since the accident suffered behavioural, social and emotional problems to such an extent as to amount to a permanent serious impairment of their psychological function.

120They were assessed by Dr. Stewart on April 26, 2017 for Mr. Williams and by Dr. Stephanie Wiesenthal for Mr. Stringer for the defence June 23, 2017.

121On October 13, 2008, the date of the accident, Ethan, born June 5, 2005 was three years of age and Maximillian, born April 23, 2004 was four years of age. They are today almost 13 and 14 years of age respectively. They were not called as witnesses, but were introduced at the start of the trial and then left. There was wisdom to this, and the defence cooperated.

122Maximillian and Ethan separately and Ms. Rodrigues and Mr. Fleming together were interviewed by Dr. Stewart and Dr. Wiesenthal. I take into account that the histories obtained covered almost ten years and that memories fade with time but memorable events and emotions have remained with them.

Ethan

123Dr. Stewart spent an hour and a half with each boy.

124Dr. Stewart’s evidence on Ethan was to this effect.

125The accident was almost ten years ago. Ethan and his brother have experienced “multiple traumas”: the death of Alexander, the injury to their mother, her loss of another child, a four year long criminal trial process, which was taxing to the family, and the overprotectiveness of their parents.

126Ethan remembered the accident. He felt a sudden push, but it was too late for Alex. He described the accident poignantly. There has been no grief counselling. His grief remains unresolved. He has been tearful, restless, and overactive. One bout of tearfulness at school led to bullying. At one point, there was an expression of self-injury but it was determined he was not suicidal. He has wished that Alex “could be brought back because he died so early”. He underreports or avoids expressing his feelings. He has demonstrated inattention and distractibility at school. He struggles with his school work. He related to Dr. Stewart that he has “a good family but tragic”. He has trouble controlling his emotions. He has demonstrated signs of depression, but he is not clinically depressed. There is a risk of missed school or dropping out at some point. He has felt guilt and anguish over his failure to prevent the accident. There has been sibling conflict.

127Dr. Stewart noted that his recent change of school has been helpful.

128Dr. Stewart’s impression of Ethan and his family is that there is “loneliness, they cope on their own”. Counselling is recommended. Ethan will never get over the death of Alexander, but he may learn to cope. Ethan’s symptoms are consistent with the difficulties identified in traumatized children. They are permanent. His symptoms of sadness, anxiety, anger, inattention, and distractibility put him at risk of future mental health difficulties. Her conclusion is that they define an “impairment of his psychological functioning”, which is serious and permanent.

129Dr. Stewart did not take issue with Dr. Wiesenthal’s diagnosis for Ethan of unspecified anxiety disorder. Dr. Wiesenthal’s view that Ethan’s presentation supported that conclusion supports Dr. Stewart’s view that Ethan meets the threshold test.

130Dr. Wiesenthal’s time with Ethan and Maximillian in total was about one and a half hours. This included the time each boy spent alone filling out a questionnaire. The oral histories obtained from Ethan and Max, Ms. Rodrigues, and Mr. Fleming were similar to the histories obtained by Dr. Stewart. Dr. Wiesenthal concentrated her inquiry on whether based on what she heard, what she asked and what the questionnaires revealed a diagnosis of post-traumatic stress disorder on the DSM-V criteria could be made. On the basis of the history Ethan provided and her questioning of Ethan, the diagnosis could not be made. The great surprise to her was Ethan’s score of 39 on the CPSS-5 questionnaire. This is a self-reporting questionnaire based specifically on questions relevant to PTSD. A score of 31 established PTSD and a score of 39 meant that Ethan had scored in the “severe range” for PTSD. The questionnaire on its face notes somewhere that the questions relate only to the last month but Dr. Wiesenthal allowed that it was possible Ethan’s answers were in relation to his lifetime. She did not caution him before he went away to complete the questionnaire that this was the case and when she interviewed him, she did not ask whether his answers covered only the last month. This unusual, really aberrant result prompted her to give Ethan the benefit of the doubt, so she made a diagnosis of unspecified anxiety disorder.

131I make this finding. It could only have been that the severe range score of 39 under the CPSS-5 was based on Ethan’s lifetime history of difficulties arising from the death of Alexander. Dr. Wiesenthal offered this explanation as a “possible” explanation, but in my view it is the only explanation. Ethan was only 12. Dr. Wiesenthal did not direct his attention to provide answers for only the last month and strangely, in my opinion, once she had the questionnaire in hand did not ask him to explain the great differences between her DSM-V focussed interview of Ethan and what he revealed on the CPSS-5 questionnaire. I accept that Ethan scored in the severe range for PTSD on the basis of difficulties experienced over his lifetime. It is evidence of a nine year history of emotional difficulty as a result of the accident.

132I accept the opinion of Dr. Wiesenthal that Ethan suffers from an unspecified anxiety disorder. Dr. Wiesenthal explained that this means Ethan has symptoms of anxiety which do not meet a specific category of the diagnostic manual but cause clinically significant distress or impairment in social, occupational or other important areas of psychological functioning.

133Dr. Stewart has a wealth of experience in the treatment and assessment of children. Where she disagrees with Dr. Wiesenthal, I accept Dr. Stewart’s evidence. In any event, I conclude on the strength of Dr. Stewart’s impression of Ethan, the diagnosis of Dr. Wiesenthal of unspecified anxiety disorder, the PTSD score of 39, and the long and significant history of behavioural and emotional difficulty that Ethan suffers from, a permanent impairment of an important psychological function exists. All his difficulties point only to that conclusion and on any reasonable view of the nature of his difficulties and their duration, the impairment is serious and permanent.

Maximillian (“Max”)

134Max’s history matches closely Ethan’s history.

135He has a memory of the accident. He was aware early on that his mother had suffered a broken back. When he went upstairs, he saw his mother in Alexander’s bedroom crying.

136His behavioural and emotional history includes the following difficulties. He has trouble with his temper. He gets angry when he is upset or frustrated. There was a public display of his temper at school in the lunch room when he swiped all the lunch boxes from a table. He is very protective of Ethan and Dr. Stewart is concerned that as Max put it he might “go full rampage” on someone. There is a long history of being bullied. He has written about his brother’s death. He has expressed a desire to kill himself. He visited a hospital in London and the school has watched for this. This was triggered it would seem by overwhelming grief. He experiences guilt and blames himself for Alex’s death. He keeps to himself. He is hyper-vigilant, but is doing reasonably well at school. On testing, there is evidence of anxiety and depression at a borderline clinical level. There is a high level of sibling conflict. There was a problem with Ethan at the back of a bus. The death of the family cat caused Max to worry about death and dying. Dr. Stewart indicated that since Max has experienced multiple traumas that there is an “exponential” or magnified result. At times, he is a tearful, sad boy. He can be disobedient at home. He remains angry about the criminal trial and the defendant driver. He is at risk of mental health difficulties including depression.

137Dr. Stewart’s opinion is that the many behavioural and emotional difficulties Max has experienced now over a period of almost 10 years have been caused by the accident. She believes that he sustained a serious and permanent impairment in “psychological functioning”.

138The opinion of Dr. Wiesenthal is that Max too has an unspecified anxiety disorder.

139For the same reason that such a diagnosis supports a finding of a permanent serious impairment of psychological function for Ethan, it applies equally to Max.

140In sum, I am satisfied on a preponderance of the evidence that Ethan and Maximillian satisfy the threshold.

141I see no difference in the value of their claims. I assess for each child non-pecuniary general damages of $65,000. This amount includes $5000 for counselling.

142Ethan and Maximillian advance derivative claims arising under the Family Law Act from the death of their brother and the injury sustained by their mother, Mary Rodrigues.

143I do not think the claims of Ethan and Maximillian for Alexander can be based on a loss of care and guidance arising from Alexander’s death but a loss of his companionship. As Dr. Stewart pointed out the longest relationships are sibling relationships. These claims are not insignificant. I note that Osborne J.A. in To, supra, assessed the derivative claim of an 11 year old sister for the death of her 14 year old brother at $25,000. In today’s dollars this would be about $35,000. As best I can, the claims of Ethan and Maximillian are fixed at $35,000 each.

144Their claims arising from the injury to Mary Rodrigues, their mother I fix at $30,000 each. There has been appreciable loss of care, companionship, and guidance. Mary Rodrigues has been at times pre-occupied with her difficulties which inevitably have affected adversely the length and quality of time she can give them.

PREJUDGMENT INTEREST

145It is not clear to me that Cobb v. Long Estate, 2017 ONCA 717 has settled the question of what the pre-judgment rate should be in this case. MacFarland J.A. at para. 73 stated:

[73] Therefore, the effect of s. 258.3(8.1) of the Insurance Act is that, in an action for damages arising out of a motor vehicle accident, the prejudgment interest rate on non-pecuniary damages will now be the rate provided for in ss. 127 and 128(1) of the Courts of Justice Act, subject to the overriding discretion of the court in s. 130 of the same statute to increase or reduce the rate, to change the interest period, or to disallow interest altogether.

146The trial judge in Cobb exercised his discretion and applied a rate of 3%, which I assume was greater than the rate provided for in ss. 127 and 128(1) of the Courts of Justice Act. The reasons of the trial judge Belch J. are set out at paras. 23 and 24 in Cobb v. Long Estate, 2015 ONSC 6799 as follows:

[23] Section 130(1)(b) of the Courts of Justice Act provides the court may, where it considers it just to do so, in respect of the whole or any part of the amount on which interest is payable, allow interest at a rate higher or lower than that provided in either section 128 or 129. For the purposes of this section, the court shall take into account the factors identified in section 130(2)(a-g) of the Courts of Justice Act.

[24] This motor vehicle collision occurred seven years ago and the plaintiff has been without compensation from the defendant tort insurer for this entire period of time. There has been no interim payment from the defendant. I exercise my discretion and order prejudgment interest be paid at the rate of 3%. I have taken into account the factors set out in section 130(2) of the Courts of Justice Act. I have considered the overall circumstances of the case. Prejudgment interest is to compensate for the loss of use of money. It is not to be used as a means of punishing or rewarding a party. Having been the trial judge during this civil jury trial which lasted in excess of four weeks, I am of the view I am in a position to take into account and balance the various factors set out in the section. I am satisfied the rate of 3% is entirely just and reasonable after taking all of the considerations into account.

147I will hear from Mr. Williams and Mr. Stringer on this issue. Please arrange a date through the office of Ms. Beattie, trial coordinator in the near future.

SUMMARY OF AWARD

148This is a matter of arithmetic and assumes as correct the deductible figures provided to me by Mr. Williams in his Closing Submissions Brief.

1. Mary Rodrigues

(a) Non-pecuniary damages (no deductible; exceeds threshold) $145,000.00

(b) Past income loss $70,000.00

(c) Future loss of income $238,500.00

(d) Family Law Act s. 61(3)(a) (no deductible; exceeds threshold) $130,000.00

Total $583,500.00

2. Michael Fleming

(a) Family Law Act, s. 61(2)(e), Mary Rodrigues $25,000.00

(deductible applies) - $18,991.67 Total $ 6,008.33

(b) Family Law Act, s. 61(2)(e), Alexander $130,000.00

Total $136,008.33

Rounded to $136,000.00

3. Ethan and Maximillian (each)

(a) Non-pecuniary damages $ 65,000.00

(deductible applies) -$37,983.33

Total $ 27,016.67

Rounded to $ 27,000.00

(b) Family Law Act, s. 61(2)(e), Alexander $ 35,000.00

(deductible applies) -$18,991.67

Total $ 16,008.33

Rounded to $16,000.00

(c) Family Law Act, s. 61(2)(e), Mary Rodrigues $30,000.00

(deductible applies) $18,991.67

Total $ 11,008.33

Rounded to $11,000.00

COSTS

149I will deal coincidentally with the question of costs when counsel attend to speak to the issue of prejudgment interest.

Footnotes

1. 1Exhibit 1, Tab 2, photographs 1-4