Court File and Parties

LINDSAY COURT FILE NO.: CV-12-0105 DATE: 20180731 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Barry O’Brien and Cindy O’Brien Plaintiffs – and – Janet O'Brien, Estate Trustee of James O'Brien, Deceased, Ghulam Nabi, 6840981 Ontario Inc., and 655661 Ontario Inc. Defendants

Counsel: Joel H.J. Cormier and Samantha Shatz, Counsel for the Plaintiffs Martin Forget and Eric Boschetti, Counsel for the Defendant, Janet O'Brien, Estate Trustee of James O'Brien, Deceased

HEARD: January 25 and April 27, 2018

Reasons for Decision Re: Threshold Motion

MCKELVEY J.:

Introduction

[1] The plaintiff Barry O’Brien (“O’Brien”) has brought this action for damages as a result of a motor vehicle accident which occurred on October 14, 2010. The action was tried before a jury. Liability was admitted by the defendant at trial. As a result the only issue to be addressed by the jury was a quantification of the plaintiff’s damages. At trial the plaintiff submitted to the jury that the general damages should be assessed in the area of $140,000-$170,000. In addition the plaintiff claimed past loss of income in the sum of $65,544 plus a future loss of income claim of approximately $700,000. This was based on an assumption that the plaintiff would be forced to retire early from his employment at age 55. Finally a substantial amount was claimed for future care expenses.

[2] In its closing, the defence argued that the general damages ought to be assessed in the range of $35,000 to $45,000. It suggested to the jury that the past loss of income should be assessed in the area of $30,000 and that there was no basis for any claim for loss of future income or any significant future care expenses.

[3] In its verdict the jury awarded general damages to Mr. O’Brien of $50,000 and a past loss of income award in the sum of $30,000. He was awarded future care costs of $6,114, which consisted of some drug expenses, orthopedic devices and some allowance for orthopedic hardware removal and a debridement. I agree with the defence position that in the context of the parties respective positions, the jury’s verdict was very close to the defence position. The jury clearly rejected the plaintiff’s theory of the case.

[4] The defence has now brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5) of the Insurance Act, RSO 1990, c I.8 and the applicable regulations.

Applicable Legal Principles

[5] Section 267.5 of the Insurance Act provides that the owner of an automobile is 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. In the present case the plaintiff did sustain some scarring of his ankle as a result of the accident, but there is no suggestion that this would meet the definition under the legislation. Therefore, the question to be addressed is whether he sustained a permanent, serious impairment of an important physical, mental or psychological function.

[6] Section 4.2 of Regulation 461/96 sets out the criteria which must be satisfied in order to establish the permanent serious impairment test set out in s. 267.5(5) of the Insurance Act. This provision states,

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.

[7] In determining whether the threshold has been met a trial judge may consider the verdict of the jury. This is a consideration to take into account, but it is not binding on a trial judge’s determination. See Kasap v. MacCallum, [2001] O.J. No. 1719 (Ont. C.A.), a decision of the Ontario Court of Appeal and DeBruge v. Arnold, 2014 ONSC 7044 (Ont. S.C.J.).

[8] In the present case the defence argues that I should be cautious in interfering with findings of fact which are implicit in the jury’s verdict. They refer to the comments of the court in Clark v. Zigrossi, [2010] O.J. No. 4266, where the court states at para. 18 that judges must take great care in avoiding interfering with findings of fact made by a jury which are implicit in their verdicts. It states that where the trial judge, “can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury’s verdict is met”. In the Kasap case, however, the Ontario Court of Appeal clearly states at para. 8 that the legislation is clear: the judge must decide the threshold motion, “and in doing so, the judge is not bound by the verdict of the jury”. I have proceeded in this case on the basis that while a jury verdict is worthy of serious consideration my responsibility as a trial judge is to make a legal determination based on my analysis of the evidence as it relates to the statutory threshold.

[9] On this motion the burden of proof is on the plaintiff to prove on a balance of probabilities that he has satisfied the criteria and that he fits within one of the exceptions to s. 267.5 of the Insurance Act. In considering whether a plaintiff has met the threshold requirements, the caselaw has also established that the trial judge should sequentially answer the following questions:

1. Has the injured person sustained permanent impairment of a physical, mental, or a psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If the answer to question 2 is yes, is the impairment of the important bodily function serious?

See Meyer v. Bright, [1993] O.J. No. 2446 (Ont. C.A.)

Relevant Background Circumstances

[10] Mr. O’Brien was 39 years old at the time of the accident. In his evidence he described how he and his uncle Jim were travelling from Thunder Bay back to Lindsay from a hunting trip. He was asleep in the passenger seat when the accident occurred. He recalls the vehicle spinning and rolling. He did not know what was happening. When he opened his eyes he was staring at the highway and could not see his uncle Jim. The force of the accident was very severe. His uncle who was driving their pickup truck wandered into an oncoming lane of traffic, apparently because he fell asleep at the wheel. The pickup truck then collided with a transport truck which was travelling in the opposite direction. The damage to the pickup truck made it almost unrecognizable. The plaintiff’s uncle was killed and declared deceased at the scene. Mr. O’Brien survived the accident but found that his left leg was pinned inside the vehicle.

[11] Mr. O’Brien had significant pre-existing health issues before the accident. Specifically he experienced problems with both his knees before the accident. He testified that he injured one knee playing football in around 1999. He injured the other knee at work. He had at least four arthroscopic procedures performed on his knees up to the time of trial. At trial he described the condition of both knees as being good.

[12] Mr. O’Brien also had significant back problems prior to the accident. He described an incident in 2007 where he was trying to dig out a building on the ground and by noon hour he was not able to use his shovel. He described his back as being sore all that winter. The back pain progressed and by August he was not able to work. He then went to see a doctor who diagnosed a herniated disc and he was off work for about 13 months. In his evidence Mr. O’Brien stated that by the summer of 2009 his back was starting to feel better. He stated he was not one hundred percent pain free, but he was back at his regular duties at work. While he was off work, Mr. O’Brien did some re-training and got a DZ license to operate a truck and a license to operate heavy equipment. He was not successful in obtaining employment in this field, however. In cross-examination at trial Mr. O’Brien was referred to an application he submitted for disability benefits relating to a loan he was applying for in January 2009. The form indicated that he had limitations on walking, standing and sitting and severe limitations on bending and lifting. He agreed in his evidence that he was experiencing those symptoms at that time. In his evidence Mr. O’Brien testified that he has continued to experience back problems up to the present time.

[13] Mr. O’Brien also testified that he had a long history of anxiety before the accident. He has been taking Clonazepam since 2005.

[14] Following the accident in October, 2010, Mr. O’Brien was taken to Thunder Bay Hospital where he underwent surgery for a “pilon” fracture of his left ankle.

[15] Mr. O’Brien described in his evidence how shortly after the accident he made arrangements to purchase a property previously owned by his uncle in Bancroft and where a new home was being constructed. The terms of the purchase involved him paying all the expenses for the property and taking over a loan which his uncle’s wife had become responsible for. The property was transferred to him by his uncle’s wife in October, 2012. He started to work on the house in the spring of 2011 and the house was finished by October, 2012. In the spring of 2013 Mr. O’Brien sold his house in Lindsay.

[16] Mr. O’Brien is married. He has one son from a previous marriage and also acts in a parental capacity to his current wife’s son who is approximately the same age as his son.

The Plaintiff’s Credibility

[17] Mr. O’Brien was extensively cross-examined at trial. It was apparent that he had some difficulty recalling all of the relevant details of his medical history. At times during his cross-examination he was brought back to his evidence from examination for discovery. At trial the defence took the position that Mr. O’Brien had exaggerated his symptoms in his evidence at trial. During oral argument on this motion, however, defence counsel advised that they are not taking issue with the plaintiff’s credibility and they are not asking this court to disbelieve the plaintiff’s evidence. Instead they argue that even accepting his testimony there is insufficient evidence to satisfy the criteria under the Insurance Act.

[18] In my view the plaintiff came across as an honest but relatively unsophisticated witness. He finished high school in 1989 and then went to college to study and become an electrical technician. He left the program after one year and has basically worked in industrial and labouring positions ever since. During his extensive cross-examination Mr. O’Brien acknowledged statements that he made at discovery or to treating clinicians. He did not generally attempt to deny the statements or the truth of their contents, whether the comments were favourable to his position or not. In a number of significant respects his evidence was supported by other witnesses who knew him both before and after the accident. Overall I have concluded that in his evidence Mr. O’Brien underestimated the impact the injuries have had on him. One theme which came through in the evidence of other witnesses is that Mr. O’Brien is not a “complainer”. For example one of his employers, Dan Fertile was called by the defence as a witness. Mr. Fertile was the plaintiff’s employer at the time of trial. In cross-examination he described Mr. O’Brien as follows:

Question: Ok. Safe to say Barry – he’s not much of a complainer, eh? Answer: No. Question: So if he was hurting, he’s not the kind of guy who would make a fuss about it? Answer: You – you wouldn’t hardly know.

Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?

[19] Section 4.3 of Regulation 461/96 sets out the evidence a plaintiff must adduce to provide his injuries have met the threshold standard. This section states:

(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.

[20] In Meyer v. Bright, supra., the Ontario Court of Appeal noted that in formulating an answer to this first question a court will normally decide this issue based upon its assessment of the medical and other evidence presented to it. In the present case a number of health clinicians were called to give evidence at trial. This included the plaintiff’s family doctor, Dr. Peter McEnery who has been the plaintiff’s family physician for 43 years and practices as a family doctor in Bancroft, Ontario. The plaintiff also called an orthopedic surgeon, Dr. David Stephen who is an Orthopedic Surgeon at Sunnybrook Health Sciences Centre and who assessed Mr. O’Brien on two occasions, once in March of 2012 and once in February of 2016. The plaintiff also called Margaret Voorneveld who is a psychologist who focuses on rehabilitation of people who have experienced some form of injury. The defence relied on the evidence of an orthopedic surgeon on staff at Mount Sinai Hospital. Dr. Safir conducted an assessment of the plaintiff in July of 2012 for the plaintiff’s accident benefits insurer. The defence also called Dr. Robert Hines who is a psychiatrist. Dr. Hines conducted two psychiatric assessments of the plaintiff for his accident benefits insurer in July and December, 2012.

[21] The evidence at trial suggests that as a result of the accident the plaintiff has suffered the following injuries:

1. A pilon fracture to his left ankle;
2. A reactive depression and post-traumatic stress disorder; and
3. An exacerbation of his low back symptoms.

[22] With respect to the orthopedic opinions I found both Dr. Safir and Dr. Stephen to be credible witnesses. However, Dr. Safir’s evidence was limited due to the fact that he only had an opportunity to examine the plaintiff in 2012. He therefore did not have information relating to the development of arthritis in the plaintiff’s ankle which I conclude is a very significant development. Further, Dr. Safir’s primary interest is in the treatment of hips and knees. He does not have a particular interest in ankle fractures and only treats these conditions when he is on-call. Dr. Stephen on the other hand conducted a more recent assessment in February of 2016 when the development of arthritis was confirmed. In addition, Dr. Stephen specializes in lower extremity injuries, including injuries to the foot and ankle. Where there is a difference between Dr. Stephen and Dr. Safir’s evidence, I prefer the evidence of Dr. Stephen.

[23] Dr. Stephen testified that Mr. O’Brien suffered from what is called a pilon fracture of his left ankle. He described this as a high energy injury which leaves fragments of bone in the joint’s surface and higher up in the shin bone itself. There is also impaction of the joint’s surface. It is recognized in the literature that pilon fractures are at higher risk for ankle arthritis, subsequent surgery, complications of delayed union and overall functional outcomes are lower than other ankle fractures.

[24] At the time Dr. Stephen assessed the plaintiff in February 2016, based on the plaintiff’s history and his clinical examination, Dr. Stephen concluded that the plaintiff did have post-traumatic arthritis in his ankle joint. This was based on his physical examination. It is significant, however, to note that this finding was subsequently confirmed radiographically in a report dated May 5, 2016 at Ross Memorial Hospital in Lindsay.

[25] The X-Ray taken on May 5, 2016 was requested by Dr. Al-Beer. Dr. Al-Beer was not called as a witness at trial, but a copy of his consultation note was introduced as an exhibit on consent. During argument, the defence referred to the final paragraph of Dr. Al-Beer’s report where it states, “He is pain free. His range of motion is acceptable. I will just keep on following him without any treatment. Future plan could include possible cortisone injection in the ankle joint”. The defence relied on this statement to call into question Mr. O’Brien’s complaints of chronic pain. However, that observation has to be read in context. In paragraph 2 of the same consultation note, Dr. Al-Beer refers to Mr. O’Brien and stated, “He is still suffering from that ankle with pain and discomfort and occasional attacks of severe sharp pain. He mentioned that he developed severe sharp pain around the lateral border of his ankle and he is concerned about it. But now his pain is better”. When placed in context, it is apparent that Dr. Al-Beer’s note that the plaintiff is pain free is limited to the time of his assessment on May 5. It does not represent a substantial recovery from pain as suggested by the defence, nor does it lead me to question the reliability of evidence given at trial by other physicians such as Dr. Stephen and Dr. McEnery.

[26] On both of his examinations Dr. Stephen noticed that the plaintiff had an abnormal gait on his left side. The plaintiff was observed limping on his left leg and had a decreased ability to stand on his left leg. He also documented a larger circumference of the left ankle as opposed to the right. There was reduced range of motion in the lower lumbar spine and good motion in both knees but this was associated with some pain. Dr. Stephen’s opinion was that Mr. O’Brien, at the time of his assessment in February, 2016, continued to have significant reduced range of motion in the left ankle which would affect his ability to climb stairs, walk on uneven surfaces, or walk on inclines. His left ankle suffers from what he described as a fixed flexion deformity.

[27] Dr. Stephen also stated that the evidence of arthritis in the left ankle means that the left ankle will worsen as Mr. O’Brien ages. He stated that given his findings it is virtually one hundred percent certain that Mr. O’Brien will need further surgery in his lifetime. He could also require bracing of his ankle or cortisone injections.

[28] With respect to surgery, Dr. Stephen stated that he expected later in life Mr. O’Brien will require one of the following surgeries:

1. A cleaning out or debridement of the ankle
2. An ankle fusion
3. An ankle replacement

[29] A surgical debridement is the least serious surgery. It generally entails a quicker recovery of about 6 to 12 weeks. An ankle fusion involves surgical fusion of the ankle joint and is good at relieving pain but results in a stiff ankle. An ankle replacement would allow the patient to regain motion in the ankle but there are long term consequences. The implant can become loose if subjected to heavy work. Given the plaintiff’s current age Dr. Stephen did not think the plaintiff was a candidate for ankle replacement at the present time, but as he ages this may become an option depending on the circumstances.

[30] Dr. Stephen felt that the plaintiff’s injury was permanent and that overtime Mr. O’Brien’s ability for prolonged walking and standing would deteriorate over time.

[31] At the time of his assessment in 2016 Dr. Stephen was of the opinion that Mr. O’Brien wouldn’t be able to continue in his current labouring job. Based on his experience with other individuals that have sustained this kind of fracture, he estimated that Mr. O’Brien would have to retire from his labouring job within a five year period from the time of his assessment.

[32] With respect to the pain which would be experienced by Mr. O’Brien, Dr. Stephen stated that the symptoms of pain would be associated with the progression of his arthritis. Arthritis is not a condition which will be cured in the absence of a joint replacement or a fusion. A debridement will not cure the arthritis but is a way of trying to improve the symptoms.

[33] In cross-examination Dr. Stephen was referred to his 2012 report where he gave an opinion that Mr. O’Brien would not be able to return to his previous employment. In fact, however, the plaintiff returned to work about 9 or 10 months following his assessment. Dr. Stephen agreed that his opinion with respect to the plaintiff’s ability to return to work in 2012 turned out to be wrong. He acknowledged that the plaintiff’s subsequent return to work exceeded what he had predicted at the time and represented an impressive recovery from this type of injury. Nevertheless Dr. Stephen explained in re-examination that while people can sometimes outperform expectations, based on the injury pattern and the development of arthritis it would be very surprising if Mr. O’Brien was able to continue working at his existing job until normal retirement age and that he will likely have to transition from a heavy demand occupation to a low demand occupation.

[34] Dr. Safir supported Dr. Stephen’s opinions in a number of significant respects. He confirmed that when he prepared his two reports in June and August of 2012 he felt that Mr. O’Brien would have difficulty with prolonged standing, walking and climbing up and down stairs. His opinion was that Mr. O’Brien could return to work with breaks as needed and that he would be able to perform the central tasks of his employment. He stated that he thought the plaintiff would be able to manage his own homemaking and housekeeping services using appropriate pacing and load splitting techniques. However, he acknowledged that he had not had an opportunity to review updated radiology films and without those films it was not possible to give a prognosis for the plaintiff’s injury to his ankle. He proceeded on the basis that there was no evidence of arthritis. Based on that assessment Dr. Safir did not feel that any further surgery was indicated. He acknowledged, however that there was a risk of developing arthritis with this type of injury and that arthritic changes can occur without symptoms being noticed by the patient.

[35] Dr. Safir also agreed that his opinion about the ability of Mr. O’Brien to return to work was based on the work requirements as reported by Mr. O’Brien. If Mr. O’Brien had to return to work with heavier duties his opinion might be different.

[36] Dr. Safir also agreed in cross-examination that the motor vehicle accident likely caused an exacerbation of the plaintiff’s chronic low back symptoms, but he felt the effect of the accident on the plaintiff’s back would have resolved by the time of his assessment. He felt that continuing back issues in 2012 are likely not accident related.

[37] The plaintiff’s family doctor was a very credible witness who gave his evidence without favouring either the plaintiff or defendant positions. Dr. McEnery described the plaintiff’s medical history before the motor vehicle accident. This involved problems in his knees and lower back. He also described the emotion and anxiety issues which led to the prescription of Clonazepam. This medication appeared to stabilize Mr. O’Brien’s symptoms. Dr. McEnery stated that Mr. O’Brien never suffered from depression before the accident and he was never prescribed anti-depressants.

[38] In December, 2007, following an incident at work Mr. O’Brien suffered from back pain which radiated down both legs and was consistent with his history of a herniated disc. Mr. O’Brien was experiencing pain with heavy lifting. Dr. McEnery suggested that the plaintiff be seen by a WSIB back specialist to come up with a working diagnosis, prognosis and treatment plan for Mr. O’Brien.

[39] As of February, 2009, Dr. McEnery felt that Mr. O’Brien suffered from a mechanical back problem which was not going to get better. He suggested to Mr. O’Brien that he look for some other occupation to do and thought that he likely had these discussions in early 2009 with Mr. O’Brien.

[40] As of March 2016 Dr. McEnery’s opinion was that the plaintiff was suffering from anxiety, ongoing depression and chronic ankle pain. He commented that the information given to him by Mr. O’Brien matched what was found physically.

[41] Dr. Robert Hines is a psychiatrist and assessed Mr. O’Brien in connection with an assessment for his insurer. Dr. Hines described the criteria for the diagnosis for post-traumatic stress disorder. On his initial assessment Dr. Hines felt that the plaintiff had experienced symptoms of post-traumatic stress disorder and a major depressive episode which was in partial remission. From a psychiatric perspective he felt that Mr. O’Brien could return to work in his other normal activities.

[42] Dr. Hines conducted a further assessment in December of 2012. At this point Mr. O’Brien had been given additional medication for depression and said his mood had improved and that he “felt real again”. He no longer wished he was dead and indicated he was feeling optimistic. He reported to Dr. Hines that his wife and sons were also happy with how he was doing, He reported discomfort in his left foot and ankle and told Dr. Hines that he had moved to Lindsay in September.

[43] At that point Dr. Hines was of the view that Mr. O’Brien had suffered a major depression which was in remission. In order to prevent a relapse his recommendation was that Mr. O’Brien should be kept on anti-depressant medication for 9-12 months and then discontinue the medication. He also felt that Mr. O’Brien’s post-traumatic stress symptoms were in remission.

[44] In his evidence at trial Dr. McEnery reported that he has continued to prescribe anti-depressants for Mr. O’Brien.

[45] Based on the medical evidence I have reached the following conclusions with respect to the nature of the injuries and impairments suffered by Mr. O’Brien in the accident:

1. Mr. O’Brien suffered an exacerbation of his chronic back problem as a result of the motor vehicle accident. I accept Dr. Safir’s opinion that this exacerbation had resolved by the time of his assessment. There was no evidence to suggest the contrary. The chronic back issues do not, therefore, represent a permanent impairment caused as a result of the motor vehicle accident.
2. As a result of the motor vehicle accident, Mr. O’Brien has suffered from depression and post-traumatic stress disorder. This condition has been controlled effectively through medication.
3. As a result of the accident, Mr. O’Brien suffered a pilon fracture of his left ankle. I accept Dr. Stephen’s opinion that as a result of the ankle fracture Mr. O’Brien suffers from a fixed flexion deformity. This represents a permanent impairment. The injury has left Mr. O’Brien with an abnormal gait and limits his ability to do heavy activities. It also affects his ability to climb stairs or walk on uneven surfaces. He suffers chronic ankle pain which is exacerbated by standing or walking on uneven terrain. The development of arthritis means that the condition of the ankle will deteriorate in the future and that further surgery will be required. As his condition deteriorates he will no longer be able to continue in his current occupation although the exact timeline when he will need to transition to a light duty job cannot be definitively ascertained. I view Dr. Stephen’s estimate of five years, however, as a reasonable estimate in this regard. I therefore conclude that Mr. O’Brien has sustained a permanent impairment of the physical functioning in his left ankle.

Is the function which is permanently impaired important?

[46] Under s. 4.2 of the Regulation and in the context of this case, for the function that is impaired to be an important function of the person, the function must 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 or be important to the usual activities of daily living, considering the patient’s age. In Meyer v. Bright, supra., the Court of Appeal held that the use of the word “important” is intended to differentiate between those bodily functions which are important to the injured person and those which are not.

[47] It is apparent that in considering the importance of the bodily functions to the injured person it is essential to have an understanding about the activities that are essential tasks of the person’s employment as well as their activities of daily living.

[48] In the present case, Mr. O’Brien’s regular or usual employment was in the construction of steel buildings. His job required him to work at heights and to do heavy lifting. According to a job description marked as Exhibit 5, the lifting required two men to lift as much as 120 to 140 pounds. The plaintiff’s work also requires him to work on construction sites where according to one of his past employers Jeffrey Langner, the ground could be mud, gravel, stone or a concrete floor. When working on a roof the plaintiff is required to work on a slippery surface. Mr. O’Brien testified that he suffers chronic pain in his ankle and limps at work about 50% of the time.

[49] With respect to his recreational activities, Mr. O’Brien had two great passions in his life. These were hunting moose and deer as well as fishing. Hunting would normally involve walking long distances over rough and uneven terrain. To deal with this he drags his injured foot up or down hills and crawls over logs.

[50] I have concluded that Mr. O’Brien’s mental health issues do not satisfy the importance requirement. Mr. O’Brien testified in his evidence that the mental health issues affected his family relationships extensively after the accident. This included thoughts of suicide and significant marital problems. However, these problems gradually resolved over time with the help of medication. The family issues subsequently subsided and he agreed in his evidence that he now has a good relationship again with his wife and family. Although he continues to be on medication it would not appear that mental health issues have played a significant role in his life nor with the benefit of medication is there any evidence that these issues are likely to recur in the future.

[51] The defence acknowledges at para. 83 of their factum that, “it is not in dispute that ankle function is important”. I agree with that conclusion. The importance of ankle function in a heavy labouring job is readily apparent. Similarly the importance of ankle function in Mr. O’Brien’s recreational and day to day activities is readily apparent.

Is the impairment of the important bodily function serious?

[52] In order to answer this question consideration must be given to the nature of the impairment caused by the plaintiff’s left ankle fracture. The issue is whether the impairment substantially interferes with the plaintiff’s ability to continue his regular employment despite reasonable efforts to accommodate his impairment or whether it substantially interferes with most of his usual activities of daily living, considering his age.

[53] In the Meyer v. Bright decision, supra., the court defines a serious impairment as one that causes substantial interference for the injured person to perform his or her usual daily activities or to continue his or her regular employment. It is apparent that this definition is consistent with the regulation as referred to above.

[54] The position of the defence is that the plaintiff’s ankle injury does not support a conclusion that his impairment is serious. As set out in para. 83 of their factum the defendant position is as follows:

The evidence overwhelmingly supports that he is able to do all of his pre-accident activities. He returned to work about two years after his accident. Since his return to work, he has increased his pay year over year. He has taken on more responsibilities at work than he did prior to the accident. He is a supervisor/foreman now and invaluable to his current employer. He is able to manage slow times by finding alternate employment. Whatever symptoms Mr. O’Brien experiences are clearly tolerable. As in Frankfurter, Bridgewater, Pinchera and more recently Malfara, returning to activities with frustration and unpleasantness does not mean the impairment is serious.

[55] The defendant also states at para. 78 of its factum:

He is extremely active. Since the accident he constructed a new house for his family in Bancroft with friends. This included framing, installing flooring and insulation, landscaping, mounting drywall, and completing electrical and plumbing work on the Bancroft property from 2012 to the end of 2014. Not only did he construct a home for his family, he renovated his duplex in Lindsay for sale so he could move the family fulltime to Bancroft where he was happier. He has chopped wood to heat his home and hunt camp in Bancroft since about 2012. He with a friend was able to cut 18 cords of wood which was enough firewood for about two years. He was also able to clear portions of trail between his house and a nearby lake using a chainsaw and an axe.

[56] In my view the defendant’s depiction of the plaintiff’s activities is not entirely accurate. For example, while it is true that the plaintiff was involved in constructing a new home in Bancroft between 2012 to 2014, the evidence suggests that he was quite limited in his activities associated with the home construction, especially early on in the process.

[57] Barry Carpenter is a friend of Mr. O’Brien’s and was called as a witness by the plaintiff. He testified that he and others carried a considerable load in carrying out the work in building the home at Bancroft. This is reflected in his evidence in chief as follows:

Q: And what sort of things did you help with? A: I helped with everything. Q: Everything? And so besides building at the Bancroft property, did you help with anything else there? A: Yeah. I helped Barry do firewood. Q: How did you help with that? A: I brought – Me and Dennis – I’ve got a – a four-wheeler, and we – I’ve got little trailers, and we brought out about – I would say about 18 cord or better of firewood, and we brought it out in blocks, and then we took and split it out in the backyard. Q: How much is 18 cords? A: About two years of firewood. Q: Okay. So what was Barry doing while you were building? A: He wasn’t doing much. When he – Just watching us put the drywall up ‘cause he – he couldn’t lift it, and we put the drywall up. And in the kitchen, me and Dennis, it being a cathedral ceiling, we were up on scaffolding, and we’d holler a measurement down to Barry, and Barry would cut the board and hand it up to us, and we put the boards up.

[58] Later in his evidence Mr. Carpenter testified:

Q: Ok. And so was that kind of work physical? A: For him it was because he’s hobbling around with one – with his leg. For me and Dennis, like I say, we’re up on the scaffolding, so two of us are putting the boards together. Q: And so who – who was doing the heavy work at the Bancroft house? A: Pardon me? Q: Who was doing the heavy work at the Bancroft house? A: Me – Like I say, the heavy work was the drywalling, and me and Dennis and another guy, Lewis, we did the drywall. Q: And so what was Barry like at the end of the day helping with the house? A: He was tired, wore out. After, like I say, walking, being on – on his leg as long as what he was, he – he was tired.

[59] I do accept, however that over time Mr. O’Brien has made impressive strides and showed great determination to achieve the best recovery possible from his ankle injury. This is reflected by his successful return to work in January, 2013. The defence is correct in stating that since his return to work the plaintiff has increased his pay year over year and is highly regarded by his current employer. The work he returned to involves heavy labour on his part. He has defied Dr. Stephen’s initial expectation that he would not be able to return to his original job.

[60] The plaintiff has also returned to a number of his usual chores and recreational activities. He acknowledged on cross-examination that he is able to cut the grass using a riding mower without a problem. He also returned almost immediately after the accident to his recreational activities of hunting and fishing, although not in the same way that he had participated in these activities before.

[61] Mr. O’Brien’s determination to overcome any disabilities was illustrated at a number of points in his evidence. In discussing the problems with his knee, Mr. O’Brien testified as follows:

Q: Yeah. Did your knees improve after the final scopes? A: Yeah, better than what they were. The one was locking on me all the time. My knee, it would lock. Sometimes I could straighten it out. Other times people would have to put my ankle on a block and then push on my knee and then it would snap back into place. So that one needed to be done real bad. But that don’t happen anymore. No. Q: And just before the accident in 2010, did your knees interfere with your work? A: No, not that I can think of. Q: Did they stop you from working? A: No. They never stopped me from working.

[62] Later in his evidence Mr. O’Brien was asked why he continues to work in his usual job given the issues with his ankle. His evidence was as follows:

Q: Barry, if your ankle bothers you, why don’t you try something else? A: That’s all I know. I am in my 40s, and that’s all I do. So I’m not going to sit in a job. I don’t want to sit in a job. I want to work. So I am going to – I’ll work as long as I can. That’s my plan. And I do work hard at work.

[63] While Mr. O’Brien has continued to work fulltime since the accident I have concluded that it has not been without serious difficulty. Mr. Jeffrey Langner is Mr. O’Brien’s current supervisor at work. He described Mr. O’Brien as extremely hard working and that he physically works alongside all the other workers. On out of town jobs Mr. Langner described how he sees Mr. O’Brien after work. He described Mr. O’Brien after work as being, “exhausted, generally kinda of hobbling around a little bit disappears to generally go to bed”.

[64] Daniel Fertile who as previously referenced was a past employer of Mr. O’Brien, testified in cross-examination that when Mr. O’Brien returned to work he struggled with his ankle. He described him as being slower and he has to stop and rest. He also stated that Mr. O’Brien had a problem getting around while on the jobsites because the ground is usually rough.

[65] Mr. O’Brien in his evidence about his hunting activities in the last year testified that he does not stay at the hunting camp at night. Instead he stays at his house which is now very close by because he’s “wore out at the end of the day”. He testified that he did not want to be “cooking, cleaning dishes, staying up, sitting with the boys. I want to lay down. I’m done.” All the evidence noted above is consistent with the initial opinion of Dr. Stephen that the plaintiff would have difficulty returning to a job involving heavy labour.

[66] In the Ontario Court of Appeal decision in Brak v. Walsh, 2008 ONCA 221, the court states that the requirement that the impairment must be “serious” may be satisfied even though a plaintiff, through determination, resumes the activities of employment and the responsibilities of the household but continues to experience pain. In those cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children and engage in recreational pursuits. I have concluded that while the plaintiff has returned to work on a fulltime basis since the accident, he has overcome the confines of his disability through a determination to continue working despite the fact that his ankle injury represents a substantial interference with his ability to do so. I therefore conclude that the ankle fracture does substantially interfere with the plaintiff’s ability to continue his regular employment.

[67] A further issue which needs to be addressed, however, is whether a future inability by Mr. O’Brien to continue in his regular job can properly be taken into account for purposes of this motion. This is significant in light of my acceptance of Dr. Stephen’s opinion that Mr. O’Brien will likely be required to transition to another more sedentary position as the condition of his ankle deteriorates over time. The defence takes the position that a future inability to continue working cannot properly be taken into account for purposes of this motion. The defence argues that the impairment must crystalize at least by the time of trial. In support of this proposition it relies on section 4.2(3) of the Regulation which states that for the impairment to be permanent the impairment must have been “continuous” since the accident and must, based on medical evidence be expected not to substantially improve.

[68] Neither counsel has provided clear authority on this issue.

[69] The Court of Appeal in Meyer v. Bright, supra., does find that where a permanent impairment of an important bodily function frustrates the chosen career path of an injured person, the impairment is properly described as being a serious one for that person. The court in that case was commenting on a factual situation where the plaintiff as a result of the injuries sustained in the accident had acted on professional advice to move out of his chosen career and undertake re-training. The court commented that the frustration of an injured person’s career path generally should be considered to be a serious matter. In that case, however it is apparent that the plaintiff had been required to undergo the re-training prior to trial and it was not a situation where the re-training was likely going to be required in the future in the face of a deteriorating condition.

[70] In support of its position that the threshold motion must be decided on the basis of the plaintiff’s condition at trial, the defendant made reference to a decision of the Ontario Court of Appeal in Pinchera v. Langille, [2006] O.J. No. 3948. In that decision the Court of Appeal quoted from the decision of the trial judge who in the course of her decision stated,

Some time was taken at the trial on the question of what the future may hold for Mr. Pinchera. However, it must be remembered that for purposes of determining whether or not Mr. Pinchera’s injuries fall within the exemption contained in s. 267.5(5) of the Act, one must look at Mr. Pinchera’s condition at the time of trial. In other words, it is not open for me to make a determination under s. 265.5(5) on the basis of conjecture as to what the future may bring Mr. Pinchera.

[71] In responding to the comments of the trial judge, however, the Court of Appeal stated,

We are satisfied that the trial judge did consider future events but found the evidence in support of the appellant’s position no more than conjecture.

[72] The Court of Appeal then went on to comment that the trial judge’s wording may have been unfortunate but that the evidence supported her conclusion that the appellant had not established on a balance of probabilities that his impairment came within one of the mandated exceptions. Putting the Court of Appeal’s comments in context it would appear that a court may properly consider future events if a proper evidentiary foundation is laid.

[73] In reviewing the Regulations which govern this motion, I do not see any provision which would restrict a court’s consideration of evidence relating to a plaintiff’s prognosis for future events which are likely to occur. The criteria relating to the definition of “serious” involves a consideration of whether the impairment substantially interferes with the person’s ability to continue his regular employment. To hold that a court’s consideration must be limited to the time up to the date of trial would mean that the timing of a trial might ultimately determine whether or not a plaintiff meets the requirements under the legislation. In the absence of some specific wording that restricts a court’s consideration of future events, I am not inclined to accept this interpretation. In my view in considering this motion a court is entitled to consider all of the evidence including evidence with respect to the plaintiff’s future impairment.

[74] The defence has referred to the fact that the jury verdict contained no award for future income loss. It therefore takes the position that a finding of serious impairment in relation to the plaintiff’s employment runs directly contrary to the jury verdict.

[75] It is apparent that the jury may have taken a number of paths in concluding that no future loss of income award was justified in this case. For example one possibility is that the jury may have rejected the evidence of Dr. Stephen. Another alternative is that the jury may have found that the plaintiff would have been disabled from his employment in the future by some other condition. At trial the defence argued that if the plaintiff was disabled from employment in the future it would more likely be as a result of his chronic low back problems.

[76] With respect to the plaintiff’s low back problems, the evidence would suggest that a chronic low back problem was diagnosed well before the motor vehicle accident. Although there was a period of significant disability due to the chronic back problem following an incident in 2007, it is apparent that he returned to work well prior to the motor vehicle accident. There was no evidence at trial to suggest that the back problem was a degenerative condition. It is always possible, of course, that in Mr. O’Brien’s employment he could have re-injured his back. In my view, however it is no more than speculation to suggest that a further injury or deterioration in his back would occur prior to any forced retirement as a result of the degenerative problem in his ankle.

[77] I accept, however, that the jury verdict does suggest that in its view Mr. O’Brien’s employment prospects were not affected in a significant way by the motor vehicle accident. It is significant to note that in addition to rejecting the claims for future loss of income, the jury also rejected the claims for vocational re-training. However, while I have seriously considered the jury verdict it does not persuade me based on my analysis of the evidence that the plaintiff’s employment prospects are unaffected as a result of the accident. To the contrary, I have concluded that the plaintiff’s impairments are serious and do substantially interfere with his ability to continue his regular employment.

Conclusion

[78] For the above reasons I conclude that the plaintiff has met his burden of establishing on a balance of probabilities that he did suffer a permanent serious impairment of an important physical function in relation to his employment.

[79] With respect to the issue involving the plaintiff’s usual activities of daily living I accept the defence position that the plaintiff does not fulfill the criteria for an exception under the Regulations.

[80] While I accept that the plaintiff’s ability to hunt has been affected by the ankle injury, the hunting season is a relatively short period of time (about 3 weeks per year). Further the plaintiff’s evidence would support that he continues to hunt, although significant accommodation has been required. Under the Regulations, the impairment must substantially interfere with “most of the usual activities of daily living”. On its own the impairment with respect to the plaintiff’s recreational hunting activities would not meet this requirement.

[81] As I also noted in this report, there is evidence that the plaintiff’s work activities cause him serious difficulties at the end of the day when he often is unable to carry out his normal activities of daily living after work. However, as referenced above I view this impairment as related to his employment activities as opposed to his usual activities of daily living. In the absence of his impairments arising out of his employment, I have concluded that Mr. O’Brien would be able to carry out his normal activities of daily living.

[82] In his evidence the plaintiff acknowledged that he is able to carry out many of his daily activities. For example he agreed in cross-examination that he is able to cut the lawn using a riding mower. Dr. Safir’s evidence as previously noted suggests that the plaintiff would not have any difficulty managing his own homemaking and housekeeping services using appropriate pacing and load splitting techniques. There was no expert opinion to contradict his views on this issue. These views also appear to be consistent with the opinion of Dr. Stephen that the plaintiff could transition to light duty work. Most of the plaintiff’s usual activities of daily living would appear to be within the parameters of light duty work. Overall I am satisfied that the evidence does not support a conclusion that there has been as a result of the accident a substantial interference with the plaintiff’s ability to participate in the usual activities of daily living, including his recreational activities as a result of the accident. Those impairments may have affected the plaintiff’s activities of daily living to some degree and are frustrating and unpleasant. However, I do not believe that the impairment with respect to the usual activities of daily living would rise to the level of “serious” according to the standards set out in Meyer v. Bright.

[83] I conclude that the plaintiff did suffer a permanent serious impairment in relation to his employment but not in relation to his usual activities of daily living. Based on these findings the defence motion is therefore dismissed.

[84] If counsel cannot agree on their costs of this motion, then an appointment should be taken out through the trial coordinator within 30 days of the release of this decision to address the issue of costs, not only of this motion but of the action itself. Of course, if there are any other outstanding issues they should be addressed before dealing with costs. Prior to any hearing on costs, counsel are to deliver written briefs with respect to costs at least five days in advance of the hearing.

Justice M. McKelvey Released: July 31, 2018