Court File and Parties
COURT FILE NO.: CV-14-505312 DATE: 20180918 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Khaled Al‑Radwan Plaintiff – and – Patricia Wanless Defendant
COUNSEL: David J. Levy, for the Plaintiff Michael Burgar and Andrew Franklin, for the Defendant
HEARD: August 20, 2018
REASONS for decision
[1] The plaintiff brings this action for damages arising from a motor vehicle collision (the “collision”) occurring on August 2, 2012. Liability for the collision is admitted. The trial was heard before a jury. The jury returned a verdict on June 21, 2018 awarding $50,000 for general damages and zero dollars under all other heads of damages. The statutory deductible amount for the relevant period of time is $37,983.33, leaving net general damages under consideration for judgment in the amount of $12,016.67.
[2] That amount is only recoverable if the plaintiff meets his burden of proof that his injuries and impairments meet the threshold.
[3] The defendant moves for the dismissal of the plaintiff’s award for general damages on the basis that those damages are barred by the plaintiff’s failure to establish that his injuries exceed the threshold exception, subsection 267.5(5) of the Insurance Act, R.S.O. 1990, C. I.8 (“Insurance Act”). I heard this motion almost two months after the jury returned its verdict. Counsel provided comprehensive facta and briefs of authority followed up by oral submissions.
[4] It is well settled law that the plaintiff’s injuries must surpass one of the thresholds set out in 267.5(5)(a) and (b) of the Insurance Act, 1990, c.I.8 in order to recover an award of general damages. Given the date of the accident, the applicable threshold as found in subsection (b) of the Insurance Act is the requirement for the injury to be a “permanent, serious impairment of an important physical, mental or psychological function”.
[5] The interpretation of the phrase is to be guided by sections 4.1, 4.2 and 4.3 of Ontario Regulation 381/03 as amended (“the regulation”). The plaintiff must adduce specific evidence to establish that his injury meets the threshold from one or more physicians. There must be other evidence corroborating the physicians’ evidence.
[6] The starting point for any threshold analysis continues to come from the Court of Appeal's decision in Meyer v. Bright ("Meyer"). The Court of Appeal in Meyer established the framework for analyzing the threshold. There are three questions for the trial judge to consider:
(i) has the injured person sustained a permanent impairment of a physical, mental or psychological function? (ii) if yes, is the function which is permanently impaired an important one? and (iii) if yes, is the impairment of the important function serious? [1]
[7] A jury verdict at its highest is only one factor that the trial judge may consider when determining the threshold motion. A trial judge is not bound to the verdict coming to its ultimate conclusion regarding the threshold motion. [2]
Plaintiff’s Credibility
[8] A plaintiff’s credibility is critical to his success on the threshold issue in circumstances where expert witnesses rely on the plaintiff’s subjective evidence to form their opinions. Medical evidence supporting a plaintiff’s impairment is “severely compromised” where a plaintiff provides a faulty history to his doctors and where he is deemed to be too unreliable. [3]
[9] In Jennings v. Latandresse, the court determined that the plaintiff failed to meet the criterion for her alleged impairment to be permanent. The plaintiff did not attend for recommended psychological treatment. The court also raised concerns about the plaintiff’s credibility in circumstances where she gave incomplete information to doctors about her pre‑accident medical history. Ultimately, the court could not rely on the plaintiff’s subjective reports of impairment. [4]
[10] In Houang v. Garcia, the plaintiff complained of accident-related neck, back and abdominal pain. The injuries were not supported by objective evidence. In deciding against the plaintiff on the threshold, the court determined that the plaintiff was unreliable as “she was frequently impeached on cross-examination. Examples of misleading testimony included her evidence on her pre-accident history. She frequently blamed others for inconsistencies in written documentation extending her criticism to doctors, therapists and, the court reporter at her examination for discovery.” The court rejected the opinions of the plaintiff’s expert psychiatrist which relied “in large measure” on the plaintiff’s veracity. [5]
[11] There are serious issues with this plaintiff’s credibility which will be dealt with below.
Expert Opinion Evidence – Impartiality, Independence and Bias
[12] The Rules of Civil Procedure outline the duty of an expert as follows: (a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and (c) to provide such additional assistance as the court may require. [6]
[13] An expert witness’ duty prevails over any obligation owed by the expert to a party. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so. [7]
[14] In White Burgess, the Supreme Court of Canada cited the English case "Ikarian Reefer" for the impartiality and independence of expert opinion evidence:
- Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation . . . .
- An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his [or her] expertise… An expert witness in the High Court should never assume the role of an advocate. [8]
[15] In White Burgess, the Supreme Court of Canada stated that the three related concepts underlie an expert’s duties: impartiality, independence, and absence of bias:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her. [9]
[16] When considering the independence of an expert, the question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him incapable of giving an impartial opinion in the specific circumstances of the case. [10]
Advocate Experts and Threshold
[17] A plaintiff fails to meet the evidentiary requirements of the regulation in circumstances where the expert acts as an advocate and does not present his or her evidence in a fair, objective and non-partisan fashion. [11]
[18] In Debruge v. Arnold, the court did not accept the opinion of the orthopedic surgeon whose evidence conflicted with the plaintiff’s treating doctors. That expert struck the court as an advocate who “sought to justify his opinion at every opportunity regardless of other evidence that might call his opinion into question”. [12]
[19] In Nguyen v. Szot, 2017 ONSC 3705, the opinion evidence of Dr. Mamelak (one of the plaintiff’s experts in this case) was not accepted in circumstances where the court determined that Dr. Mamelak had crossed the line by vociferously advocating on behalf of the plaintiff. The court found that his “subjective advocacy greatly diminished his credibility” and did not accept Dr. Mamalek’s evidence on the plaintiff’s impairment. The plaintiff did not meet the threshold. [13] Dr. Mamalek’s role as an advocate is dealt with below regarding this plaintiff.
Background Information Regarding the Plaintiff
[20] The plaintiff was born on August 4, 1977 in Libya and was raised in Syria. He is married and has two young children.
[21] In 1999, he obtained a diploma in architectural technology. For the following 10 years, he was steadily employed as an architectural technologist in Abu Dhabi and Dubai.
[22] In 2009, the plaintiff, when returning to Syria, was detained in a Syrian prison for over a month for being associated with a political figure, during which time he was tortured. He escaped and came to Canada as a refugee.
[23] As a result of this detainment, he suffered from post-traumatic stress disorder (“PTSD”), depression and neck pain.
[24] In 2011, the plaintiff obtained permanent refugee status. In 2012, he was accepted as a permanent resident.
[25] One month prior to the accident, the plaintiff’s wife and daughter arrived in Canada. He was already studying English for Academic Purposes (“EAP”) at George Brown College (“GBC”), with the intention of completing the architectural technology program and then continuing with his career in Canada.
[26] While studying, the plaintiff was assisted by Ontario Works (“OW”). During this time he was also working on a part‑time basis, including a role in general maintenance at a yacht club (tiling and carpentry) and other part‑time “construction” type jobs.
The Plaintiff’s Pre-Existing Medical History
[27] The plaintiff acknowledged in his testimony that his imprisonment was a bad experience. He could not describe the torture during his examination for discovery nor at trial.
[28] After his arrival in Canada, the plaintiff experienced flashbacks of prison, had difficulty sleeping, was stressed and lonely. The plaintiff acknowledged that his pre-accident neck pain was caused by the torture and that he also had prior headaches and high blood pressure.
[29] In January of 2010 the plaintiff saw a psychiatrist, Dr. Hassan, displaying symptoms of depression and PTSD. Dr. Hassan diagnosed PTSD and a dysthymic disorder. Medications were prescribed.
[30] The plaintiff started treatment with Dr. Hassan and remained in his care for about 16 months. By April of 2011, the plaintiff’s diagnoses of PTSD; major depressive disorder; and generalized anxiety disorder remained in place. He remained on medications. Dr. Hassan provided a letter to support the plaintiff’s immigration hearing. The plaintiff stopped seeing Dr. Hassan in 2011.
[31] The plaintiff’s pre-accident medical records show very few attendances for almost a year prior to his accident and that a minor knee issue had resolved.
Injuries
[32] Paramedics attended the accident scene. The plaintiff complained of “muscular type pain to the back of both shoulders and upper left side of [his] back as well as back of [his] head”. In the hospital the plaintiff complained of bilateral shoulder pain, upper right back pain, and pain in the back of his head.
[33] On August 2, 2012, the plaintiff underwent a neck x-ray which showed no acute compression or other visible bony fractures.
[34] On August 3, 2012, the plaintiff attended with Dr. Al-Hellawi (his family physician) and complained of muscle pain. Dr. Al-Hellawi diagnosed “soft tissue injury” and prescribed Tylenol #3.
[35] On August 13, 2012, the plaintiff underwent an x-ray of his neck and low back. The neck x-ray revealed a loss of lordosis and no other remarkable results. The lumbar spine x-ray revealed degenerative changes such as mild narrowing and sclerosis of the facet joints in the lower lumbar spine at L4-L5.
[36] The plaintiff testified that he felt low back pain in the hospital on the day of the accident which continued with pain occasionally radiating to his right leg. An MRI of the lumbar spine dated August 28, 2012 indicated posterior right bulging of the L5-S1 and L4-L5 annuli.
[37] The plaintiff alleges that he developed psychological issues after the accident. In November of 2013, the plaintiff saw a psychiatrist, Dr. Mamelak who provided counselling. He testified that the counselling sessions improved his mood and helped him to control his anger.
Employment and Educational Upgrades
[38] The plaintiff did not have an established work history in Canada at the time of the accident. He applied to OW within 2 months of his arrival in Canada and received approximately $600 per month. The plaintiff’s goal was to work as an “architect” in Canada. His education certificate was not accepted and he needed to improve his proficiency in English. He started taking English as a Second Language (ESL) courses before the accident.
[39] The plaintiff also took a construction course before the accident through the Ability Learning Network.
[40] Before the accident the plaintiff completed a number of small jobs doing renovation work, drywalling and painting. He testified that he completed the work in order to repay money that he had borrowed from friends. The plaintiff testified that it was his goal to have his own construction company and that he took steps in January of 2012 to obtain a business licence and registration through the City of Toronto.
[41] The plaintiff did not have “regular or usual employment” in Canada at any time prior to the accident. At the time of the accident, he was on OW which did not result in any steady work. His statements to medical practitioners (including experts) about: (a) his work as “construction worker”; (b) his training as an architect and owning a renovation company; (c) his self-employment in the “construction trade”; and (d) his background as a “former architect” who was “looking for work in renovations” are not reliable. The plaintiff did not submit any documentary evidence of his regular or usual employment. There were no lay witnesses called to support any statements made about his capacity to complete renovation/construction-type work.
[42] I further agree that Dr. Kekosz’s opinion on the plaintiff’s inability to return to regular or usual employment as a “building renovator” should be given no weight as it relies heavily on his subjective and inaccurate history of employment prior to the accident.
[43] The plaintiff became a permanent resident in 2012 which allowed him to work in Canada without a permit. He applied to GBC. He needed to have better academic english skills in order to enter the architectural technologist program at GBC. He entered the EAP at GBC approximately two months before the accident.
[44] The plaintiff was in EAP level 3 at the time of the accident which he completed after the accident. He started level 4 in March of 2013. He completed levels 4 to 6. He enrolled in level 7 in January of 2014 and later withdrew.
[45] The plaintiff did not lead any evidence that he sought out or made use of any accommodations available through GBC that might have assisted him in completing that program.
[46] The plaintiff did not lead evidence about how his physical injuries substantially interfered with most of his usual activities of daily living. He confirmed during cross‑examination that he could tend to bathroom hygiene independently, could be alone at home without risk to his safety; and that he could dress himself. He could not identify any sport or recreation activity that he had to stop due to an accident-related injury. There was no information from any lay witnesses about the impact of the plaintiff’s physical impairments on his activities of daily living.
Medical Experts
[47] Dr. Mamelak prepared medical-legal reports dated December 4, 2014 and November 20, 2017.
[48] I agree that Dr. Mamelak’s advocacy in the trial bears striking similarity to his conduct which was criticized and rejected by the court in Nguyen v. Szot, 2017 ONSC 3705. Frankly, I have never been exposed to such an advocate who was defensive, combative and launched into speeches. I put no weight on his evidence (see pages 24, 25, 45, 46, 51-53, 74-77, 80 from his transcript of his trial evidence).
[49] Dr. Kekosz (physiatrist) who testified for the plaintiff prepared medical-legal reports dated March 11, 2015 and April 8, 2015. She indicated that “until the plaintiff completes a rehabilitation program of intensive psychological counselling using cognitive behavioral techniques and involvement in a multidisciplinary program with active exercise etc. one cannot make a final conclusion as to his final level of impairment both physically and psychologically.” She further provides that the plaintiff’s final prognosis is “yet to be determined.” It is significant that the plaintiff has not done any of this despite having available funds to pay for such treatment.
[50] Dr. Kekosz’s reports and testimony do not specifically address how the plaintiff’s physical impairments substantially interfere with his ability to continue his career training or his daily living. Her report of March 11, 2015 states that her “prognosis for return to his previous activities of daily living is still unknown.” The issue was addressed by Dr. Kekosz during her direct examination in a very general way. She conceded on cross-examination that she had not met with the plaintiff in person since November 2015 and, as such, her prognosis on his return to his activities of daily living was still unknown. In her first report, Dr. Kekosz notes that the plaintiff has not been able to return to his studies but does not offer any opinion on how the plaintiff’s physical injuries substantially interfere with his ability to do so. The issue was also not addressed in Dr. Kekosz’s second report nor in her trial evidence.
[51] I agree with the defendant that there is no acceptable opinion evidence of a physician trained for and experienced in the assessment of either a mental or psychological impairment caused by the accident. As such, the plaintiff has failed to meet the evidentiary requirements of O. Reg. 461/96 (amended).
[52] Dr. Kekosz was the only physician called by the plaintiff qualified to give opinion evidence of the plaintiff’s physical impairments. She only saw the plaintiff for one in-person examination on November 5, 2014. I agree that her reports do not provide an opinion on the “serious”, “important”, and “permanent” prongs of the definition provided by s. 4.2 of O. Reg. 461/96 (amended). Her trial evidence did not satisfy the requirements.
[53] The defendant called two medical experts at trial. Dr. Roscoe (orthopaedic surgeon) and Dr. Rosebush (psychiatrist), and they concluded that the plaintiff did not sustain a serious and permanent physical, psychological or mental impairment as a result of the accident.
[54] Dr. Roscoe testified for the defendant that as a result of the accident, the plaintiff suffered strains to his neck, shoulder girdle and lumbar spine. He further agreed that the plaintiff’s back pain was asymptomatic before the accident, and that the trauma of the accident could make such a condition symptomatic. That is the strongest his opinion got. He did not believe that the plaintiff met the requirements of the threshold. I agree that plaintiff cannot rely on Dr. Roscoe’s evidence that the plaintiff has met the threshold. It falls short of proving an important, serious impairment of a physical nature. Dr. Roscoe was not an advocate and he fulfilled his requirements as an expert.
[55] The opinion of Dr. Rosebush, the defence psychiatric expert, prevails, over the opinion of Dr. Mamelak. I suspect that had a voir dire taken place regarding Dr. Mamelak’s ability to testify as an expert that it would have resulted in an exclusion of his evidence.
Other Serious Issues Regarding the Plaintiff's Credibility
(i) Jeff Cohen and Ian Wolloch (the plaintiffs’ vocational expert and actuarial experts) testified that their opinions included the plaintiff working 20 hours per week. The plaintiff testified that he could not work at all; (ii) His lying to the bank in order to obtain a credit card – what he called a life’s regret; (iii) His lies to his OW’s benefit worker as to working (not working); (iv) his non-disclosure to ODSP as to his settlement of his AB claim in the amount of $225,000 and his bizarre testimony regarding this. (which is just a lie); (v) his inconsistent reporting of medical problems to his treating doctors and experts; and (vi) his non-disclosure of income (about $30,000) to CRA.
[56] The plaintiff has not met the threshold with respect to his claim for general damages.
[57] If the parties cannot agree on costs, I am prepared to receive the defendant’s submissions within 20 days and the plaintiff’s responding submissions within 10 days thereafter. The defendant’s response, if any, can be provided within 7 days thereafter. They can be sent by email to my assistant at lorie.waltenbury@ontario.ca.
J. E. Ferguson J.
Date: September 18, 2018