Court File and Parties

Court File No.: CV-12-56361 Date: 2018/12/13 Superior Court of Justice – Ontario

Re: Mame v. Victorin CV-12-56361 Mame v. State Farm Insurance Company CV-13-59711

Appearances: Hassan Iman Mame, in person Mitchell Kitigawa and Lisa Langevin, amicus curiae (Pro Bono) David Zuber and Laleh Hedayati, for the defendants in the tort action Christopher Schnarr, for the defendant in the accident benefits action

Before: Mr. Justice Calum MacLeod

Threshold Ruling

[1] This was a combined trial of a tort action and an accident benefits action arising from a motor vehicle accident in January, 2011. The plaintiff is representing himself although he has had assistance from lawyers appointed as friends of the court through Pro Bono Law Ontario at the request of the pre-trial judge.

[2] I must now decide whether or not the plaintiff is entitled to general or non-pecuniary damages in the tort action as a matter of law. A threshold motion pursuant to s. 267.5 of the Insurance Act was argued after I had charged the jury and it had retired to deliberate. Pursuant to subsection 267.5 (15) of the Act, if no motion has been brought prior to trial then the trial judge must determine the question.

[3] In accordance with the evolving practice, I reserved on the motion in order to receive the jury verdict and to be aware of their findings of fact. I am not bound by those findings although my decision may be informed by the verdict. Kasap v. MacCallum; Grieves v. Parsons, 2018 ONSC 26. The judge’s determination is a question of law and is independent of the decisions which were in the hands of the jury when the motion was argued. See Igbokwe v. Price.

[4] The jury has returned a verdict in which they have assessed the plaintiff’s damages for non-pecuniary loss at $45,000.00. As I explained to the plaintiff, even if he survives the threshold, the non-pecuniary damages award is subject to a statutory deductible of $37,983.33. FSCO Auto Insurance Bulletin A-05/17, Attachment 1. This means that as a practical matter, even if his injuries meet the threshold, the best the plaintiff can obtain for this head of damages based on the jury verdict is $7,016.67.

[5] The jury also awarded $25,000.00 for past housekeeping expenses and $25,000.00 for reduction of his future earning potential. Those awards are unaffected by the threshold because they are pecuniary damages. See Hodgson v. Walsh, [1998] O.J. No. 3286. Regardless of my decision on threshold, the plaintiff is entitled to judgment for $50,000.00 for his pecuniary losses as assessed by the jury.

[6] The manner in which s. 267.5 (5) of the Act operates is to protect the owner and occupants of motor vehicles from liability for non-pecuniary loss in any court proceeding in Ontario unless the plaintiff has sustained an injury that meets the statutory test commonly known as the “verbal threshold”. In order for the plaintiff to be entitled to recover the net award of $7,016.67 for non-pecuniary loss he must satisfy the court that he has sustained “permanent serious impairment of an important physical, mental or psychological function as the result of the use or operation of the defendants’ automobile”. If I conclude that his evidence does not support such a finding then those losses are non-recoverable regardless of the amount assessed by the jury.

[7] Ontario Regulation 381/03 provides comprehensive definitions and procedures that must be followed in determining whether or not the threshold has been met and the plaintiff has the right to damages. Specifically, s. 4.3 of the regulation requires that the plaintiff seeking to prove that his injury exceeds the threshold must “adduce” the evidence of one or more physicians which explain how the injury meets the statutory test. In short, the regulation requires an expert opinion that the impairment meets the statutory test. The tests have been articulated in numerous authorities. See for example Saleh v. Nebel, 2015 ONSC 747, Grieves v. Parsons, 2018 ONSC 26 and the recent decision by Williams J. here in Ottawa in court file 14-61892 (not yet reported). The plaintiff must also meet every aspect of the statutory test in order to have the right to recover non-pecuniary damages.

[8] In this case the plaintiff called no medical evidence. He had an expert report from Dr. Kleinman which was prepared at the request of Mr. Mame’s then lawyer, Frank McNally in February of 2015. Dr. Kleinman provided the statutorily mandated opinions on threshold and causation at page 16 of his report. Although this report had been served on the defendants I did not allow the plaintiff to file it at trial because he had not served notice under the Evidence Act, R.S.O. 1990, Chapter E.23 and he indicated he had no intention of calling Dr. Kleinman as a witness. The jury did not see the report. The report was before the court indirectly because it had been read by the defence medical experts and they answered questions about Dr. Kleinman’s findings in cross examination. While they did not share Dr. Kleinman’s opinion on the seriousness of the plaintiff’s impairment, they did not disagree with the clinical findings and in fact they made similar findings concerning pain, lack of mobility and dysfunction. The defence medical experts confirmed that significant pain in the shoulder, neck and chest continuing post-accident for eight years was chronic pain that was unlikely to improve.

[9] For the purpose of the threshold motion, I am prepared to treat this medical evidence as being “adduced” by the plaintiff. There is no unfairness in this. The defendants have had Dr. Kleinman’s report for three years. In addition, Dr. Williams and Dr. Buenger reviewed the Kleinman report. As noted above, they made similar clinical findings although they reached different conclusions on the level of impairment. It is important to recognize that pain is subjective and what is disabling for one person may not be for another. What counts is the effect of the injury on the individual plaintiff and not the seriousness of the injury itself. The level of impairment and the impact of that impairment must be assessed on a case by case basis. That said, to be serious impairment, it must be more than an inconvenience and must approach intolerable. See Malfara v. Vokojevic, 2015 ONSC 78, Meyer v. Bright.

[10] The problem for the plaintiff is the regulation which governs the interpretation of the statute. Since the plaintiff was not working at the time of the accident and was not attending school or training within the meaning of s. 4.2 (1) of O.Reg. 381/03, he would have to prove that the impairment he suffers “substantially interfere with most of the usual activities of daily living, considering the person’s age.” If the plaintiff’s evidence is accepted at its highest, he is able to go about most of the activities of daily living albeit with occasional pain. At the trial he accepted that the video surveillance accurately depicted some of the activities he was capable of doing. In that brief video clip he is seen jogging, taking out the garbage, walking to the mosque and driving. He confirms that he can exercise, care for children, drive and walk though he testified that he cannot lift his children or vacuum without pain.

[11] “Interfere” is not synonymous with “prevent”. It is not necessary that he be unable to carry out the activities of daily living but he must prove impairment that interferes with “most” of those activities. His evidence supports some degree of ongoing impairment but it does not support a finding that the impairment interferes with “most” of the activities of daily living. In fact he was able to attend the trial, give testimony and address the jury. He can drive, take the bus, walk, stand, and attend appointments.

[12] I accept that he has residual impairment resulting from the motor vehicle accident. The jury obviously reached the same conclusion. His level of impairment does not however reach the threshold and he is not entitled to damages for non-pecuniary loss.

[13] As a consequence there will not be judgement for the general damages award of $7,016.67 (net of deductible). The plaintiff will have judgment against the tort defendants for $50,000.00 for his past and future pecuniary damages in accordance with the jury verdict.

[14] As the jury answered the accident benefits question in the negative, the action against State Farm (action no. 13-59711) is dismissed.

[15] It was agreed that the form of the judgments and the question of costs would be dealt with in writing. If necessary I may also convene a conference call. I will require the parties to agree on a timetable for costs submissions and if they cannot do so by December 31, 2018 they may contact me through my judicial assistant for further directions.

Mr. Justice C. MacLeod Released: December 13, 2018