Court File and Parties

Court File No.: CV11-0247 Date: October 22, 2018 Ontario Superior Court of Justice

Between: SARA WATT, Plaintiff And: JOSHUA BISSONNETTE, Defendant

Counsel: Scott Laushway and Bryan Laushway, for the Plaintiff R. Steven Baldwin, for the Defendant

Reasons for Judgment

ABRAMS, J.

Overview

[1] This matter was tried before a jury over a period of approximately two weeks. Following closing submissions and prior to the jury being charged, the defendant brought a motion to discharge the jury, which was granted for partial reasons set out in a separate decision. Immediately thereafter, the defendant brought a motion commonly known as a threshold motion. It is that motion which these Reasons deal with.

[2] Liability was not at issue in the trial. Rather, only the issue of damages was contested. To that end, counsel agreed that separate and apart from the court’s adjudication of the threshold issue, the question of whether or not the motor vehicle accident of August 14, 2009 (“the accident”) caused the injuries complained of by the plaintiff is central to the determination of the case.

[3] The plaintiff claims general, non-pecuniary damages for pain and suffering and loss of enjoyment of life. Further, she claims past and future loss of income, loss of earning capacity/loss of competitive advantage, and an amount for psychological services.

Facts

[4] The plaintiff was about to turn 21 years of age when the accident occurred. She was residing in her parents’ home following an unsuccessful first year of studies at the University of Calgary. There is no quarrel that her marks were so poor that she was advised by the university’s administration that she would not be allowed to return for her second year of studies.

[5] She did, however, return to Calgary during what would have been her second year of studies, where she found limited employment. Her parents eventually advised her that they were no longer prepared to support her living out of the home. Thus it was that she had returned to live with them at the material time of the accident.

[6] At the scene of the accident, the plaintiff did not sustain an injury requiring any medical attention. This was the evidence of the investigating police officer, the plaintiff’s mother, and even the plaintiff, herself.

[7] The plaintiff was taken home by her mother from the accident scene. Later that morning, she was taken to the Brockville Emergency department complaining of neck and shoulder discomfort. She was prescribed some medication for her discomfort and released.

[8] The plaintiff attended with her family physician, Dr. McMurray, on August 18, 2009, complaining of neck and shoulder discomfort. Dr. McMurray ordered an x-ray and physiotherapy. The x-ray was completely normal.

[9] The plaintiff attended with physiotherapist, Paul Goodyer, on August 26, 2009. Based on the subjective complaints of the complainant and the physical examination conducted by Mr. Goodyer, he concluded that the plaintiff had very minor limitations in some range of neck motion and very minor symptoms of pain as reported by the plaintiff on both the right and left side of her neck and right shoulder girdle, for which his diagnosis was whiplash.

[10] Over the next 8 weeks, the plaintiff attended with Mr. Goodyer and reported progressive improvements on each visit. By October 15, 2009, the whiplash was completely resolved with no pain reported and full range of motion. More specifically, Mr. Goodyer took the plaintiff through full range of motion exercises when the plaintiff reported no complaints of pain. Notably, the Rule 53 expert called by the plaintiff to opine on, inter alia, the issues of causation and physical impairments, Dr. Derek Cooke, orthopedic surgeon, testified that the ordinary and expected result of a whiplash injury is for full resolution within 6 to 10 weeks of the injury.

[11] Mr. Goodyer discharged the plaintiff, certifying that she could return to full-time employment, which the plaintiff reported to him consisted of babysitting, as well having been laid off from a business called “Camelor”.

[12] Following the accident, it was the plaintiff’s mother’s view that the plaintiff was in a bit of a “funk”, spending too much time in her room and not working. As a result, the plaintiff’s mother obtained full-time employment for the plaintiff at Motor Coils, in May, 2010. The plaintiff was assigned to work taping coils of locomotive engines, a job that required, on all of the evidence, repetitive, physically demanding strength. The plaintiff experienced symptoms from the heavy work, however, she did not want to complain of a workplace injury and initiate Worker’s Compensation because this would jeopardize her employment as a probationary employee.

[13] The plaintiff went back to see Mr. Goodyer on August 16, 2010, while she was employed at Motor Coils. At that time, the plaintiff complained of pain on the right side of her neck, right shoulder girdle and right scapula at the T-8 (thoracic) level, which he agreed was different than her complaints in 2009. The plaintiff lead Mr. Goodyer to believe that these symptoms were related to the accident. However, there was nothing in his clinical notes and records to indicate that the plaintiff told him about the physically demanding nature of her work at Motor Coils. In any event, Mr. Goodyer was ultimately left to speculate about these symptoms possibly being related to thoracic outlet syndrome, cervical radiculopathy or myofascial pain, for which he had no explanation as to the cause.

[14] Mr. Goodyer last saw the plaintiff on March 21, 2011, and had no idea of the progression of her care or treatment after that date to the time of the trial.

[15] The plaintiff saw Dr. McMurray and complained of left-sided symptoms. An MRI of May 31, 2010, showed everything was normal except a possible left side muscle tear, which none of the treatment providers or Dr. Cooke attributed to the accident. Further, the plaintiff complained of bi-lateral knee pain in July 2010 when she exercised. The plaintiff agreed during her evidence that she had migraine headaches prior to the accident dating back to her early teens and that they were getting worse in advance of the accident. In any event, the plaintiff agreed that her headaches, her knees and her work related injuries had nothing to do with the accident.

[16] Currently, the plaintiff complains of right shoulder, right neck and right scapular pain, all of which she attributes to the accident. She denies ever having left sided symptoms, which is expressly contradicted by the May 31, 2010, MRI, Mr. Goodyer’s clinical notes and records, as well as those of Dr. McMurray. The plaintiff testified that her right sided pain has been seriously disabling since the accident.

Threshold

[17] The Legislature has reserved to the trial judge the sole and exclusive authority for determining whether or not a plaintiff’s injuries pass the threshold. This is particularly the case in determining a threshold motion under what is now described as Bill 198 because the plaintiff is required to call evidence of a medical practitioner to explain the nature and permanence of the impairment, the specific function impaired, and the importance of that factor: Ontario Regulation 381/03, s. 4.3(2) (“the Regulation”).

[18] Section 4.3 of the Regulation provides that:

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.

[19] Specifically, section 4.3 provides in subsection 2 the requirement that the plaintiff adduce evidence of at least one physician 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. Moreover, the evidence of the physician who is called to comply with the provisions of the Regulation must provide a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

Issue

[20] Has the plaintiff sustained a permanent and serious impairment of an important physical, mental or psychological function, within the meaning of s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, with reference to the Regulation, as a result of the motor vehicle accident which she was involved in on August 14, 2009? Moreover, inextricably intertwined in the question, in the circumstances of this case, is whether or not the plaintiff has proven that the accident caused or materially contributed to her injuries.

Positions of the Parties

Defendant

[21] Reduced to its simplest form, the defendant contends that because the plaintiff’s Rule 53 expert, Dr. Cooke, orthopedic surgeon, acknowledged at the conclusion of his testimony that he cannot not say the subjectively reported symptoms of the plaintiff were caused by the accident, then there cannot be a threshold injury by reference to the Act and the Regulation. Rather, the evidence supports a finding that the plaintiff suffered a whiplash injury that resolved in approximately 8 weeks with physiotherapy, which Dr. Cooke agreed would be the expected nature of such an injury.

[22] Thus, the defendant asserts that there should be a declaration that the plaintiff did not sustain a threshold injury directly or indirectly as a result of the accident. Accordingly, the amount of general, non-pecuniary damages for an 8 week whiplash injury would be nil when offset against the statutory deductible. Moreover, the only health care expense recommended by Dr. Holowaty (psychologist) for counselling services of approximately $9,500.00 should be disallowed, in the absence of a threshold injury. Finally, there is no quarrel that the plaintiff did not seek any loss of income until January 1, 2010. Given that the plaintiff’s whiplash injury was completely resolved by October 15, 2009, when she was discharged by Mr. Goodyer, there can be no claim for past loss of income. Further, given Dr. Cooke’s conclusion that he cannot say the current subjectively reported symptoms of the plaintiff were caused by the accident, there can be no claim for future loss of income. In the circumstances, the action should be dismissed.

Plaintiff

[23] The plaintiff asserts that she was a healthy and athletic 21-year-old at the time of the accident. Contrary to the position of the defence that her current symptoms are completely unrelated to the accident, the plaintiff points out that no evidence at trial has demonstrated any other potential cause of her pain, except to suggest a possible repetitive stress injury while working at Motor Coils.

[24] The plaintiff contends that she has persistent pain in her right shoulder and neck with numbness and tingling in her hands and arms. She has a constant “ball-like” digging feeling in her right shoulder. Further, her pain levels increase with prolonged standing and activity, driving, heavier household tasks, caring for children and reading. She asserts that she suffers from sleeping difficulties, waking from the pain during the night, and thus gets 3 to 5 hours of sleep. As a result, the plaintiff’s evidence is that her employment activities have been interfered with and her enjoyment of life and activities of daily living have been compromised due to her accident related impairments.

[25] The plaintiff contends that the lay witness evidence corroborates her position that her enjoyment of life and activities of daily living have been compromised.

[26] The plaintiff argues that Dr. Cooke opined that her impairments are permanent in that they are not expected to improve. Moreover, the plaintiff contends that Dr. Cook concluded that her impairments would substantially interfere with all of her functional activities of daily living requiring use of her right upper extremity and that there is a low likelihood of her succeeding with her employment opportunities. Further, the plaintiff asserts that, to the extent that Dr. Cooke gave a conflicting opinion during his cross-examination, the conflict can be explained away by him being confused by the manner in which defence counsel posed questions to him.

[27] The plaintiff asserts that her pre-accident activities of daily living, such as her recreational and social activities involving sports, have been compromised.

[28] The plaintiff contends that her future is unsure as there is little to nothing she can do to improve her symptoms. No treatment recommended by any of the doctors will give her any long-term improvement. As a result, the plaintiff asserts that the evidence supports the view that her symptoms will worsen as she gets older.

[29] In all of the circumstances, the plaintiff asks this court to find that she has sustained a permanent serious impairment as required by s. 267.5 of the Act, and therefore requests that the defendant’s motion be dismissed.

Analysis

[30] Section 267.5 of the Act provides, inter alia:

(3) 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 expenses that have been incurred or will be incurred for health care resulting from bodily injury 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 sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

(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 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 sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

[31] I agree with the view that since the accident occurred in 2009, Regulation 461/96, which was amended in 2003, applies and has effectively codified the prior case law such that the Regulation is the starting point in terms of authority.

[32] There is no dispute that the plaintiff bears the onus of proving an entitlement to the exception to sue for damages at large outside of the statutory threshold. To that end, the word “threshold” is not entirely apt. There is no general threshold which injured persons need pass before they are entitled to sue. Rather, the “real inquiry required by the legislation in each case is to determine whether the injured persons falls within one or more of the statutory exceptions to the general immunity”: Meyer v. Bright, [1993] O.J. No. 2446.

[33] The Regulation provides, inter alia:

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 O. Reg. 381/03, s.1.

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. O. Reg. 381/03. S.1.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s.1.

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. O. Reg. 381/03, s.1.

(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. O. Reg. 381/03, s.1.

(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. O. Reg. 381/03, s.1.

(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. O. Reg. 381/03, s.1.

(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. O. Reg. 381/03, s.1.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003. O. Reg. 381/03, s.1.

[34] When read together, section 267.5 of the Act requires that the permanent serious impairments complained of by the plaintiff must be sustained as a result the accident, and the Regulation repeats with more specificity that an appropriately qualified physician must also proffer an opinion with respect to causation.

Physical Impairment

[35] Dr. Cooke, the Rule 53 expert called by the plaintiff on causation and physical impairment, conceded during cross-examination that he did not have available to him a legible copy of Mr. Goodyer’s clinical notes and records when he provided his initial opinion. A legible copy of Mr. Goodyer’s clinical notes and records were not made available to him until the time of his cross-examination. Further, neither was Dr. Cooke made aware of certain inconsistencies between the plaintiff’s subjective complaints made to him versus statements made to her treatment providers, until the time of his cross-examination. Against this backdrop, the following exchange occurred between defence counsel and Dr. Cooke near the end of his cross-examination:

Q. Okay. So from the evidence you can’t say that she has continuing symptoms from the motor vehicle collision.

A. Correct.

Q. And if you can’t conclude that, then you must say, “I can’t conclude that she has continuing motor vehicle impairments or injuries”, can you?

A. Not with…

Q. One must follow the other.

A. Not with certainty.

Q. Well, forget about the certainty. When you say that it appears on the record that her symptoms from the motor vehicle collision resolved, you can’t say they’re continuing, can you?

A. Correct.

Q. Which means you must also say, “I can’t say to the court and I can’t say to this jury that Sara Watt has continuing symptoms from a motor vehicle collision, I can’t say that.” Isn’t that what you must tell this court?

A. I cannot say that definitely.

Q. Okay. So you’ll agree with me that you can’t say, “Sara probably has continuing symptoms from the motor vehicle” [accident], you can’t say that.

A. I cannot say.

Q. Being a medical-legal expert means you must consider all the evidence fairly.

A. Yes.

Q. And you can’t be an advocate for one party or the other.

A. Correct. [1]

[36] To recall, the plaintiff contends that the conflicting opinions expressed by Dr. Cooke can be reconciled as a result of the confusion created by defence counsel’s questions of him during cross-examination. I reject that argument entirely. In my view, Dr. Cooke fully appreciated the obligation that he owed to the court and not to either of the parties. Dr. Cooke is an orthopedic surgeon with some fifty years of experience. The transcript of his evidence, particularly the exchange set out above, does not do justice to the careful nature in which he answered the clear questions asked of him by defence counsel. I observed Dr. Cooke closely during the exchange. He took his time answering the questions. In my view, he weighed the gravity of having to change his opinion on causation and physical impairments when confronted with evidence that had not been made available to him previously, and which he agreed was material to his opinion. In the end he could not, in my view, reconcile the inconsistencies in the subjective complaints made by the plaintiff to him, versus the historical statements made to her treatment providers. There was no confusion when he agreed that he could not say that the plaintiff probably has continuing symptoms from the motor vehicle accident. Rather, I find as a fact that Dr. Cooke came to that conclusion based on a full appreciation of the medical record before the court, and in no way lightly. The strain on him was palpable. But, appreciating his obligation to the court, he gave his final opinion in a fair, objective, and impartial manner.

[37] This is not a case of the court having to reconcile conflicting opinion evidence between competing medical experts. Rather, the Rule 53 expert called by the plaintiff on causation and physical impairments fairly objectively and reasonably changed his opinion when presented with the full medical record before the court, which he was obligated to do in accordance with the duty owed to the court. Accordingly, for the plaintiff to assert that Dr. Cooke was confused, or alternatively that he lacked certainty in giving his final opinion on causation and physical impairments, does not square with my view of his evidence.

[38] Moreover, even if there were evidence of causation, which there is not, the plaintiff testified that she is capable of completing most, if not all, of her activities of house and home, albeit with pain, which by reference to the Regulation would not allow her to meet the criteria for being unable to do most of her activities of daily living. To that end, the plaintiff acknowledged that her primary occupation is that of a stay-at-home mother and homemaker, and thus she is fulfilling the obligations of her employment.

[39] To recall, the plaintiff attended with Mr. Goodyer on August 26, 2009, 12 days post-accident. On examination, Mr. Goodyer found very minor limitations in range of motion in respect of which the plaintiff reported minor symptoms of pain. Between August 26, 2009 and October 15, 2009, the plaintiff reported progressively getting better at every attendance with Mr. Goodyer, such that he recorded full resolution of her whiplash disorder. Indeed, by reference to the plaintiff’s discovery evidence read in at the trial and marked as Exhibit 14, the plaintiff agreed that there had been full resolution of her symptoms from the accident by October 15, 2009. [2]

[40] Again, Dr. Cooke was of the view that for a whiplash, the expected nature of the injury and resolution would be 6 to 10 weeks with physiotherapy or exercise. With reference to the Regulation, specifically 4.2 3 i., for an impairment to be permanent, the impairment must be continuous since the incident. On the evidence before the court, I find as a fact that the impairment has not been continuous since the incident, or accident. Further, the permanency of the impairment since the time of the accident must be based on medical evidence. On the evidence before me, it is not. Dr. Cooke, unreservedly in my view, answered that question in the following exchange:

Q. Well, forget about the certainty. When you say that it appears on the record that her symptoms from the motor vehicle collision resolved, you can’t say they’re continuing, can you?

A. Correct. [3]

[41] Regulation 4.2 (3)(iii) goes on to say that to meet the criteria of continuous, the impairment must be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. Dr. Cooke was of the view that a whiplash injury, such as the one complained of by the plaintiff, would be resolved within 6 to 10 weeks, when sustained by persons in similar circumstances. Notably, that view accords with Mr. Goodyer’s assessment of the plaintiff, based on her subjective reporting over an 8 week period, as does the plaintiff’s evidence on discovery of full resolution of her symptoms by October 15, 2009.

Psychological Impairment

[42] Dr. Holowaty is a psychologist called by the plaintiff to provide an opinion regarding a diagnosis of depression and somatoform disorder. Dr. Holowaty agreed that her assessment of the plaintiff was limited to a 4 hour attendance with her in August of 2017. Thus, Dr. Holowaty was engaged as a medical legal expert and not as a treating psychologist.

[43] Before assessing Dr. Holowaty’s evidence, I return to section 4.3(3)(b) of the Regulation, which says: “The evidence of the physician shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.” Notably, there was no disagreement as to whether or not Dr. Holowaty fell within the definition of “physician” for purposes of providing her opinion. However, my ruling on her qualifications included the following admonition:

Dr. Holowaty may refer to the medical records before the court, however, her expertise does not extend to the point of interpreting comments recorded or treatment provided by treating health care professionals, but rather is restricted to a simple observation that the note was made.

[44] Unlike Dr. Cooke, Dr. Holowaty did not present as an objective and impartial medical legal expert. Rather, Dr. Holowaty struck me as a witness who sought to justify her opinion regardless of other evidence that might have called her opinion into question. Specifically, Dr. Holowaty failed to include in her report any inconsistencies in the medical record before the court that contradicted the plaintiff’s current subjective complaints of pain, notwithstanding her assurance to the court that she had reviewed the entire medical record. What follows are examples of her failure to report on inconsistencies found in the medical record:

Q. But if you read the record, you would know that her treating physiotherapist indicated that she had a full resolution by October 15, 2009, which was a minor limitation in movement and minor pain of a “1” or “2” out of “10” with a couple of spots that resolved.

A. Perhaps I could have made note of that. [4]

Q. But you didn’t identify that her own family physician in December of 2016 identified no problem with her mood.

A. I read that, I made note of it.

Q. Where did you make note of that?

A. I guess I made note of it more in my head when I was coming to my conclusions. [5]

Q. You never made any notes with respect to the recording of the plaintiff’s mood in any of the medical record did you?

A. I didn’t make any note of those on my report. [6]

Q. And, again, her family physician, Dr. McMurray, under “Mood” says euthymic, no concerns. So, again, on that day, the family physician had no concerns about Sarah Watt’s mood. Do you see that?

A. Yes.

Q. You didn’t report that to Mr. Laushway either?

A. I didn’t make particular note of that, no. [7]

Q. And do you see under “Patient Complaints” that indicates that she’s feeling well?

A. Yes, I see that.

Q. Okay. So there’s no, there’s no complaint about mood disorder or psychological concerns on this date either, is there?

A. No, not on that date. [8]

Q. And on this date, she’s having her six-week postpartum check. I think from the evidence before this court, this would be after her third child.

A. Okay.

Q. And do you see there, “mood is good”?

A. I see that.

Q. You didn’t record, report that to Mr. Laushway?

A. I could have made note to that. [9]

Q. And on that date, the family physician had recorded “Sara Watt’s mood is good”.

A. Yes.

Q. And assuming that’s accurately recorded, that is inconsistent with there being a mood disorder? Did you hear my question?

A. It is one inconsistency. [10]

Q. In any event, during the year 2012, Dr. McMurray has signed his name to an assessment indicating that the plaintiff has no intellectual or emotional symptoms.

A. I see that.

Q. Now, given that this is what was recorded by the family physician, you make absolutely no reference to it in your report dated August of – September 2017.

A. No, I did not.

Q. And you made no report of it to Mr. Laushway.

A. No, I did not. [11]

[45] Further, with reference to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), Dr. Holowaty did not, in my view, follow the generally accepted guidelines or procedure in coming to her diagnosis of the plaintiff by virtue of failing to mention malingering, when three of the four factors supporting that diagnosis were admittedly present, as the following exchanges detail:

Q. Well. This [DSM-5] is a diagnostic manual.

A. Yes, I am aware of that.

Q. That governs your profession when it comes to diagnoses?

A. Yes.

Q. Which means these are the rules you must follow when you’re making a diagnosis?

A. I guess I can agree to that.

Q. Okay. Will you follow the rules?

A. Yes. [12]

Q. Now when you go back to your rule book, the rule book says: “Malingering should be strongly suspected if any combination of the following is noted” and you’ll have to agree with me that on the evidence we, that you’ve been through in this courtroom today, that there are at least two, if not three, combination of those factors.

A. There’s a possible three, yes.

Q. So if you’re going to follow the rules, you must strongly suspect malingering where Sara Watt is concerned, as a psychologist…

A. I did…

Q. …trained in this field?

A. I did consider and suspect malingering.

Q. But you didn’t say in your report to Mr. Laushway that malingering should be strongly suspected whenever it’s a lawsuit for money and there’s a marked departure between what the subject says and what the record reflects. You didn’t say to Mr. Laushway, you need to suspect malingering here, did you?

A. I didn’t make specific note of that, no.

Q. And this is where we get to where we were earlier today when it comes to personal opinions. You’re not allowed a personal opinion as a psychologist in a legal context, are you?

A. No.

Q. You have to follow the rule book, don’t you?

A. Yes. [13]

Q. Right. All of this to say if we’re following the rule book when it comes to a diagnosis of depression or somatoform disorder, the rule book says if we meet these criteria, you must strongly suspect malingering affecting the diagnosis. Agree?

A. You must suspect it, you can suspect it. [14]

Q. Right. And now we go back to where we started. You didn’t say any of this to Mr. Laushway in your review of the records and in your report to him.

A. No, I did not state that in particular. [15]

[46] In my view, there was a marked departure between what the plaintiff subjectively reported to Dr. Holowaty versus what the plaintiff told her treatment providers. Dr. Holowaty had a duty to raise those inconsistencies both in her report to counsel and in her evidence before the court, which she failed to do until pressed during cross-examination. Further, Dr. Holowaty had a duty to raise the potential for malingering on the part of the plaintiff as affecting her diagnosis when, by her own admission, three of the four criteria supporting a finding of malingering were present. Again, Dr. Holowaty failed to do so until forced to admit her omission during cross-examination.

[47] There has been a growing recognition in the jurisprudence from our Court of Appeal of the responsibility of trial judges to exercise a more robust “gatekeeper” role in the admission of expert evidence. Having regard to this admonition, I cannot accept Dr. Holowaty’s opinion evidence, for the following reasons:

1. Dr. Holowaty’s opinion was not based on medical evidence, that being the medical record before the court, in accordance with generally accepted guidelines or standards of the practice of medicine, as required by Regulation 4.3(3)(b);

2. Dr. Holowaty’s opinion in fact ignored inconsistencies between what the plaintiff reported to her and clinical assessments completed by the plaintiff’s treatment providers and prior subjective reports of the plaintiff;

3. Dr. Holowaty failed to note the potential for malingering on the part of the plaintiff as affecting her diagnosis, when three of the four criteria were present, contrary to the DSM-5;

4. In all of the circumstances, Dr. Holowaty was not, in my view, a fair, objective nor non-partisan expert witness. Rather, Dr. Holowaty failed to understand the role of an expert, that being to assist the court in an unbiased manner. Dr. Holowaty’s role confusion is perhaps best highlighted by the following exchange:

Q. No. But that’s the problem here today. You’re not a treating psychologist. Do you understand that today? Do you understand that your role in this court is not to be a treating psychologist?

A. I understand that’s my role but I guess that’s part of what informs my….

Q. So you can’t….

A. It would be hard to disentangle the experience I’ve gained from treating people from the, because the assessment and treatment go hand-in-hand, they go together, one, they’re not separate. (emphasis added) [16]

[48] In the result, Dr. Holowaty’s opinion was merely personal, as opposed to what is expected of a medical legal expert, based in large part, if not entirely, on the current subjective complaints of the plaintiff.

[49] I should also say what might seem obvious, but is important to remember. In my view, the starting point for the plaintiff to prove causation and to establish a threshold injury is Dr. Cooke. Dr. Cooke, in his final opinion to the court, could not say that the plaintiff’s current symptoms were caused by the accident. It is axiomatic, therefore, that If Dr. Cooke cannot connect the plaintiff’s current complaints of pain to the accident, then Dr. Holowaty’s opinion that depression and somatoform disorder are somehow connected to the accident does not follow. Put another way, it would be impossible for Dr. Holowaty to attribute cause of depression and somatoform disorder to the accident because there is, on the evidence before the court, a complete absence of causation.

[50] With reference to our Supreme Court’s decision in Snell v. Farrell, [1990] 2 S.C.R. 311, the plaintiff contends that it is not essential in every case that medical experts provide a firm opinion supporting the plaintiff’s theory of causation. Rather, as the court said at para. 34:

Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law. The judge or jury’s power to draw an inference is not impaired by the failure of any medical witness to testify that a defendant’s breach was in fact the cause, or by a lack of medical unanimity. The matter does not turn on the particular form of the words used by the physician in giving their testimony. The judge or jury, not the medical witnesses, determine the issue of causation.

[51] The traditional principle in the law of torts is that the plaintiff must prove on a balance of probabilities that, but for the tortious conduct of the defendant, the plaintiff would not have sustained the injury complained of. That is the traditional “but for” test.

[52] As the court articulated in Snell v. Farrell at para. 15:

The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles.

[53] Respectfully, this case does not warrant a departure from the traditional “but for” test in order to ensure that the plaintiff is not deprived of relief. This is not a case of medical malpractice, as in Snell v. Farrell, dealing with statistical probabilities and competing medical opinions. Neither is it a case such as Cook v. Lewis, [1951] S.C.R. 830, wherein the court altered the ultimate burden of proof in circumstances where the plaintiff was struck by a bullet fired by one of two defendants, who fired simultaneously in the plaintiff’s direction. As the court reasoned, if it could not be determined which defendant fired the shot that struck the plaintiff, both defendants must be found liable.

[54] When considering the “but for’ test and applying a robust and common sense approach to the evidence, I cannot conclude that the plaintiff has proven on a balance of probabilities that the current symptoms complained of were caused or materially contributed to by the accident. Firstly, the plaintiff’s current complaints are at odds with what she reported historically to her treatment providers, particularly Mr. Goodyer and her family physician. Secondly, I did not find the plaintiff to be a particularly credible witness. One observation stands out above all others in coming to this conclusion.

[55] Dr. Holowaty confirmed during cross-examination that she observed the plaintiff over a period of 4 hours in August, 2017. During those 4 hours, Dr. Holowaty observed no external evidence of a pain disorder, which she agreed she would have made note of. The following exchange encapsulates Dr. Holowaty’s observations:

Q. If she [the plaintiff] had been bending forward at the waist and using her left arm to grab her right shoulder and rub her right shoulder and grimace, you would have recorded that, wouldn’t you?

A. If someone does that…

Q. Yes.

A. …I might have made note of it, yes.

Q. No, you would have recorded it – if you have a person there with a pain disorder and they’re bending at the waist and grabbing and rubbing their shoulder, over a period of 4 hours, if you saw that behaviour, you would have recorded it, wouldn’t you?

A. If I had seen it, I likely would have, yes.

Q. Okay. And you didn’t record it.

A. No.

Q. You didn’t record anything in her physical presentation that was anything other than ordinary, did you?

A. I didn’t see any of those kinds of behaviours. [17]

[56] Bearing in mind that the plaintiff was able to engage in a 4 hour assessment, complete with paper and pencil exercises, in August of 2017, without any manifestation of pain behaviour, it defies credibility that rarely during the trial, when she was present in the courtroom, why she did just that in front of the jury. I observed the plaintiff grimacing, rubbing her right shoulder with her left hand, grabbing her right shoulder, and at times bent forward at the waist in a display of embellished pain behaviour that was, in my view, completely out of proportion with her subjective complaints.

[57] There was also a moment during the plaintiff’s cross-examination that seemed unexpected, and frankly difficult, if not impossible, to reconcile with her current subjective complaints regarding her physical limitations:

Q. Okay. And did I understand you to say a moment ago that you are running now?

A. Now I am.

Q. Okay. So you’re running two-kilometer distances or longer than that?

A. Approximately, yes.

Q. So notwithstanding your pain and symptoms, you do go running as a recreational sport activity.

A. I take my dog who needs to go for a walk and she jogs, yes. [18]

[58] Later, during the evidence of Tamara Coville, the plaintiff’s neighbour and close friend, the dog was described as medium in size and a “real puller”, or words to that effect, describing the manner in which the dog pulls on the plaintiff’s arm as they run together. In my view, it is incredible that a woman who complains of increased pain levels with prolonged standing and activity including, but not limited to, carrying her children to the house from the car and reading, would run for pleasure 2 kilometers, while being pulled along by a medium sized dog.

Conclusions

[59] For all of these reasons, Judgment will issue for the following relief:

(1) Declaring that the plaintiff has not sustained a permanent and serious impairment of an important physical, mental or psychological function, within the meaning of s. 267.5 of the Insurance Act, R.S.O. 1990, c. I. 8, as amended, with reference to the Regulation, as a result of the motor vehicle accident which she was involved in on August 14, 2009;

(2) Assessing the plaintiff’s general, non-pecuniary damages for a whiplash injury of approximately 8 weeks duration arising from the accident at $10,000.00, that with the application of the statutory deducible reduces the award to nil;

(3) In the absence of a threshold injury, there is no entitlement to health care expenses;

(4) In the absence of proving causation, the balance of the action is hereby dismissed.

[60] If counsel cannot agree on the issue of costs, written submissions may be filed with the court, limited to 5 pages in length, double-spaced, 12 point font or larger, complete with any offers to settle and bills of costs, within 30 days.

The Honourable Mr. Justice B. W. Abrams

Released: October 22, 2018

COURT FILE NO.: CV11-0247 DATE: October 22, 2018 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: SARA WATT, Plaintiff – and – JOSHUA BISSONNETTE, Defendant Reasons for judgment Abrams, J.

Released: October 22, 2018

[1] Transcript of Dr. Cooke, p.116, lines 13-32; p.117, lines 1-8

[2] Transcript of Examinations for Discovery, dated October 19, 2012, Exhibit #14, Questions 318-321

[3] Transcript of Dr. Cooke, p. 116, lines 22-25

[4] Transcript of Dr. Karen Holowaty, p. 40, lines 31-32; p. 41, lines 1-4

[5] Transcript of Dr. Karen Holowaty, p. 43, lines 26-32

[6] Transcript of Dr. Karen Holowaty, p. 44, lines 11-14

[7] Transcript of Dr. Karen Holowaty, p. 44, lines 25-31

[8] Transcript of Dr. Karen Holowaty, p. 45, lines 12-18

[9] Transcript of Dr. Karen Holowaty, p. 45, lines 24-32

[10] Transcript of Dr. Karen Holowaty, p. 48, lines 12-18

[11] Transcript of Dr. Karen Holowaty, p. 51, lines 2-11

[12] Transcript of Dr. Karen Holowaty, p. 61, lines 19-28

[13] Transcript of Dr. Karen Holowaty, p. 68, lines 3-29

[14] Transcript of Dr. Karen Holowaty, p. 71, lines 26-31

[15] Transcript of Dr. Karen Holowaty, p. 72, lines 1-4

[16] Transcript of Dr. Karen Holowaty, p. 59, lines 27-32; p. 60, lines 1-5

[17] Transcript of Dr. Karen Holowaty, p. 67, lines 8-25

[18] Transcript of Sara Watt, p. 125, lines 6-21