COURT FILE NO.: CV-11-3552-00 DATE: 2019 02 19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BALBIR MANN, Plaintiff AND: JORDAN JEFFERSEN and JEFFREY JEFFERSON, Defendants

BEFORE: Trimble J.

COUNSEL: D. D'Urzo, for the Plaintiff M. MacDonald and J. Elsasser, for the Defendants

HEARD: January 9, 11, 2019

Endorsement

Nature of Motion

[1] In this action arises from an automobile accident. After the Jury retired to deliberate, the Defendants brought this motion for a declaration that the Plaintiff, Balbir Mann’s injuries do not meet the verbal threshold under section 267.5(5) of The Insurance Act, R.S.O. 1990, c. I 8, as amplified by Ontario Regulations 381/03 (Bill 198) and 461/96. If I determine that Mr. Mann has failed to discharge his onus to prove that his injuries fall within the threshold’s exemptions, his action for non-pecuniary general damages and healthcare expenses must be dismissed.

Applicable Law

1) The “Threshold”

[2] The parties agree that notwithstanding that the Defendants brought this motion, Mr. Mann has the onus of proving on a balance of probabilities that his injuries created a permanent serious impairment of an important bodily function, and therefore, fell within one of the exceptions to the statutory bar to recovery of general damages and health care costs (see: s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I 8; Meyer v. Bright, [1993] O.J. No. 2446 (C.A.), paras. 16, 63 and 70; Sabourin v. Dominion of Canada General Insurance Company, [2009] O.J. No. 1425 (SCJ), para. 73-76).

[3] Firestone J, in two decisions, conducted an exhaustive analysis of the law concerning the automobile insurance statutory regime in Ontario, and what the Plaintiff is required to establish in order to fall within one of the exceptions to the statutory bar for recovering general damages and damages for health care costs (see: Jugmohan v. Royale, 2015 ONSC 1497 (SCJ), at paras. 3-24, affirmed 2016 ONCA 827; and Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at paras. 6 – 43). I adopt and rely on his review of the law.

2) Causation

[4] The three question approach set out in Meyer v. Bright (1993), 15 O.R. (3d) 129 (Ont. C.A.), at para. 16, requires the judge to determine whether the impairment is permanent and serious, and the impaired function is important, still applies. As a preliminary matter, however a Plaintiff must show on a balance of probabilities that his impairments were caused or aggravated by the accident (see: Dinham v. Brejkaln, 2005 OJ 5409 (SCJ), at para. 8; Saleh v. Nebel, 2015 ONSC 747, at para. 20). He must prove this applying the “but for” test (see: Clements v. Clements, 2012 SCC 32, at paras. 8, 13).

3) The Effect of the Jury’s Verdict on the “Threshold” Motion

[5] The Defendants argued their threshold motion on 30 January 2019, while the Jury was deliberating. The Jury returned its verdict on 1 February, awarding Mr. Mann $15,000 for general (non-pecuniary) damages, $0 each for past and future income loss, past and future health care costs, and for past and future housekeeping expenses.

[6] The parties agreed that I could consider the Jury's verdict in deciding threshold.

[7] Whether, and to what extent, the trial judge may consider the jury's verdict on a threshold motion is not settled. In Chrappa v. Ohm, [1996] O.J. No. 1663 (S.C.J.), at para. 7, Lax J. said that threshold motions should be decided before the return of the verdict so that there is no perception that the judge was influenced by the findings of the jury. On the other hand, in Bishop-Gittens v. Lim, 2016 ONSC 2887 (S.C.J.), para. 5, the Court held that the trial judge may consider the verdict on the threshold motion but is not bound by it.

[8] Philosophically, once a party has indicated that s/he wishes to have liability and damages decided by a jury, and since the answers to those questions require the jury to determine causation and to perform an assessment of the severity of the impact of those injuries on the Plaintiff, then the jury's findings may be relevant to the threshold motion, does it behoove the trial judge to not be influenced by the jury’s verdict?

[9] Myers J. addressed this question in Mandel v. Fakhim, 2016 ONSC 6538 and said:

[8] Of greater concern to me is that in order to find that the Plaintiff met the threshold as he argues, I would necessarily be disagreeing with the jury’s findings. That is, to hold for the Plaintiff, I would have to hold both that the Plaintiff suffered at least most of the injuries he claims and that the contact between the cars was a cause of those injuries. Making at least one and perhaps both of those findings would necessarily put me in direct conflict with the jury’s verdict.

[9] … This jury has spoken and did so loud and clear. If I find that the Plaintiff has proven that he met the threshold, I would not only be making findings of law, but I necessarily would have to disagree with the findings of fact that are implicit in the jury’s decision. Yet I told the jury an obnoxious number of times in my charge that they, and only they, were the judges of the facts of the case. I told them that their community had called upon them to take 12 days out of their lives so that they could make findings that only they can make in an act of central importance to our democratic traditions. How can I legitimately now consider whether I find facts that the jury rejected?

[10] What does it say about what I told the jury and about the legitimacy of the jury’s role, if the judge may not only ignore their findings, but may make binding pronouncements that fly in the face of the jury’s findings? Facts cannot exist and not exist at the same time. The Plaintiff’s injuries exist or they do not; they were caused by the motor vehicle collision or they were not. I am being invited to find that facts were proven at trial when the jury has already found that those facts were not proven. I cannot do that without undermining the role of the jury as the exclusive finders of fact. I cannot do that without making portions of the standard civil charge to the jury untrue.

[10] Leach J. also addressed this question, albeit in obiter, in Mayer v. 1474479 Ont. Inc., 2013 ONSC 6806, at paras. 41 – 50. He recognized that the judge’s statutorily imposed obligation to decide the threshold issue means that there will be considerable overlap in the factual findings that both the judge and the jury have to make in discharging their separate duties. The judge and jury may perceive things differently and arrive at inconsistent conclusions on the same questions. This is an unavoidable result of the interface between the jury system and the threshold provisions of the Insurance Act and the Regulations.

[11] Ultimately, the jury’s verdict does not determine threshold; it is not binding (see: Jugmohan, at para. 9), especially where the finding depends on credibility (see: Kasap v. MacCallum, at para. 8; and Bishop-Gittens, supra, at para. 5). The trial judge may not abandon to the jury his or her statutorily imposed duty to make findings of fact necessary to decide the threshold.

4) The Effect of Pre-Existing Injuries and Conditions

[12] Mr. Mann’s case is a little more complex than others’. Mr. Mann was involved in a car accident on 15 October 2008 in which he injured his neck, shoulders, and low back, among other things. His evidence at trial was that while those injuries were still symptomatic at the 2011 accident (the accident at issue in this action), he had generally improved by 50% by at that time. His neck, shoulders and low back were still symptomatic.

[13] The decision of whether the Plaintiff has suffered a serious, permanent impairment of an important bodily function requires the judge to compare the Plaintiff’s post-accident function with his pre-accident function. Where a Plaintiff already suffered from injuries or conditions at the time of the accident the judge is required to determine the level of the Plaintiff’s functional abilities immediately before the accident (already compromised by the pre-existing condition) and determine if and how they have been compromised by the accident at issue (see: Austin-Cooke v. Reid, 2005 CarswellOnt 7923 (SCJ); Chrappa, supra.).

[14] In cases where a Plaintiff suffers limitations before the accident, the extent of any further impairment of the Plaintiff’s function caused by the accident at issue need not be a significant impairment in the eyes of an ordinary, able-bodied person to still qualify as being a serious and permanent impairment. One must approach the issue from the Plaintiffs’ perspective.

[15] In Briggs v. Maybee, [2001] O.J. No. 941 (S.C.J.), Mr. Briggs was injured in an automobile accident, but had suffered from many pre-accident conditions, including Crohn’s Disease and kidney malfunction, such that at the time of the accident he was on CPP disability benefits and his activities were seriously limited. Belch J. said at para. 29:

Is the injury one that has created a permanent serious impairments of important physical, mental or psychological functions? Again, the medical evidence presented at trial has suggested the injury is permanent. To decide whether it is serious to this Plaintiff, one must look at how it has affected his life. Acknowledging he was on CPP disability prior to the accident, he was already functioning at a level far below what a usual healthy person would enjoy. He could only participate in activities at his own pace, and while those activities may not be seen as significant to others who enjoy a more active lifestyle, free of disability, this injury has further marginalized the existence of this Plaintiff and has had a serious physical and psychological impact on the future enjoyment of his life. He cannot lift his son, cut grass, shovel snow, or do some of the housework. These had been his contributions to the marriage, given his disabilities.

5) The Role of Credibility Where there are no Objective Signs of Injury

[16] In any personal injury action, proof of the Plaintiffs claimed injuries and impairments comes from the Plaintiff’s own, subjective evidence. Therefore, the Plaintiff’s credibility is a key issue, and the success of the threshold motion (if not the entire action) may hang upon it.

[17] One does not need objective evidence of injury to meet the threshold. Pain that causes an impairment may meet the threshold (see: Vandenberg v. Montgomery, [1999] O.J. No. 2789 (SCJ) at para. 29 – 36). Injuries and impairments can be based on subjective evidence only, if proved in usual way (see: Mayer v. 1474, supra, para. 22).

[18] The cases show, however, that Plaintiffs generally lose threshold motions where the Plaintiff is an unreliable historian, gave contradictory evidence, was not candid with his doctors, gave inaccurate or incomplete information to doctors, did not follow doctors' recommendations, where surveillance clearly contradicts the Plaintiff’s report of pain, injury and disability, and/or the Plaintiff’s performance as a witness showed him to be argumentative and uncooperative (see, for example: Rajic v. Atking, 2011 ONSC 1024, at para. 34; and Smith v. Declute, 2012 ONSC 3308, at paras. 20-23).

The Issues on This Motion and the Positions of the Parties

[19] The Defendants admitted liability for the accident. The only issue before the jury whether the accident caused any of Mr. Mann’s injuries or aggravated his pre-existing injuries, and if so, what are the damages.

[20] The Plaintiff’s position is that as a result of the 8 February 2011 collision he suffered a permanent serious impairment of important physical functions; namely, a) an exacerbation of pain in his neck which reduces his ability to turn his head or maintain it in any position for a long period, b) and exacerbation of pain in his lower back which reduces his ability to turn his back and bend, or maintain it in any one position for a prolonged period, and/or c), pain which begins in his neck, proceeds through his right shoulder and down his right arm into his hand, accompanied by numbness and tingling, which prevents him from using his right arm for sustained effort. This is supported by the Plaintiff’s evidence, that of his family, and doctors Berbrayer, Getahun, Singh and Janelle, and Mr. Winch.

[21] The Defendants deny that the Plaintiff has suffered the injuries or exacerbations as alleged. If Mr. Mann suffered any injuries in the 8 February 2011 accident, he suffered an exacerbation pre-existing soft tissue injuries in his neck and his back, of an uncomplicated nature, which should have resolved between 8 to 12, and 14 to 20 weeks post-accident. There is no evidence of any objective findings of injury or exacerbation of injury caused by the 2011 accident. The opinions of doctors Berbrayer, Getahun, Singh and Janelle are not reliable in that they were based on Mr. Mann’s subjective self-reports of pain, a review of an incomplete medical record, and Mr. Mann’s incomplete history both in terms of his own report of his injury and recovery, the notes and records in the medical file.

Result

[22] For the reasons that follow, the Defendants’ motion is allowed. Mr. Mann has not met his burden to establish on a balance of probabilities that he suffered a permanent, serious impairment of an important bodily function. Accordingly, he is barred from recovering damages for health care costs and non–pecuniary general damages.

Analysis

[23] With the exception of Dr. Berbrayer, all doctors accepted that Mr. Mann had no objective signs of injury when they examined Mr. Mann. Dr. Berbrayer said that one could feel tenderness on palpation, which was an objective sign of injury. Dr. Berbrayer was not cross-examined on the statement. I do not accept this position, however, for two reasons. First, no other doctor who testified (and all were qualified as experts, on consent) supported this view. Second, the weight of the evidence of all of the experts is that a finding of “tenderness” arises from palpation, rests on the patient’s subjective complaint of pain on palpation.

[24] Since all doctors diagnose Mr. Mann based on subjective complaints, Mr. Mann’s credibility is critical to the threshold motion.

[25] A witness’ credibility comprises two aspects: the witness’s honesty or trustworthiness, and his reliability (see: Sopinka, Lederman & Fuerst, The Law of Evidence in Canada, 4th ed. Toronto: LexisNexis (2014), s.16.159 to 16.163).

[26] Subject to one instance which I address shortly, Mr. Mann appeared to be honest and trustworthy. While he may have had difficulty understanding questions from time to time, he appeared to be forthright in giving his answers. All doctors who were asked had the same opinion.

[27] The one exception to this observation is his evidence with respect to his post 2011 income.

[28] During his examination in chief, Mr. Mann spoke of his financial difficulty following his accidents. He was at pains to tell the Jury that he did not work after the 2008 accident. In 2010, he felt he could return to work in either 2012 or 2013, but his ability to return to work ended when he was injured in the 2011 accident. Further, in 2013 Mrs. Mann lost her job because of knee problems, and although she applied for CPP LTD benefits in 2013, they were not awarded until 2018, although retroactive to 2013.

[29] The result of this was that in order to survive financially, the Manns borrowed from credit cards and lines of credit, took out loans, and relied on money his children gave him. The picture was of a man scrambling, financially, to maintain his household.

[30] This picture, however, was not accurate. In cross-examination he admitted that a) in March 2013 he settled his accident benefits claim for the 2008 and 2011 actions, for a combined total of $125,000, which he said he used to by treatment and pay off debts; b) between 2009 and 2018, he and his wife had gross rental income from a rental property that they purchased off the plan in 2007 and closed on in 2009; c) in 2018, they sold the rental property netting slightly over $400,000 from that sale; and d) the home that they still live in has a value of approximately $800,000 and the remaining mortgage of $112,000. Presumably, they continued to make mortgage payments from 2008 to 2019 on both properties.

[31] I do not want to overstate this issue. Mr. Mann had no income. Effective 2013 his wife had no income until recently. From 2013 until 2018, there was no regular earned income or wage replacement benefit in the house other than the rental income. After Mr. Mann settled his accident benefits case, the family had to liquidate assets to live.

[32] Mr. Mann’s failure to provide a balanced picture of his finances since his first accident, putting forward only that evidence which suggested that he was in desperate financial circumstances, cannot be inadvertent. His rental income was disclosed in the CRA assessments he produced. The fact that he received $125,000 in March 2013, and $400,000.00 six months before the start of this trial could hardly have slipped his mind.

[33] Setting aside his evidence regarding his income, Mr. Mann was not a reliable historian. His evidence in cross-examination with respect to his state of health and function at any given time often contradicted what he said in chief, and what he told doctors. Further, what he told one doctor about his state of health and function at any given time was often at odds with what he told another doctor. The contradictions are significant.

[34] The Plaintiff’s case is built on the opinions of doctors Berbrayer, Getahun, Singh, Chiropractor Janelle, and Vocational Assessor, Fred Winch. Generally, these professionals diagnosed Mr. Mann as having chronic pain (either caused by or aggravated by the 2011 accident) as a result of which he suffered a serious permanent impairment of an important bodily function. He was limited in his activities because of his pain in his neck, back, and arm, and hence could not work or do his regular activities. All of Mr. Mann’s experts and doctors agreed that their opinions are based on Mr. Mann’s subjective reports of his pain and abilities as he reported to them, and on documents that they were sent to review.

[35] Because Mr. Mann is an unreliable historian, those experts’ opinions based largely on his self-report, are unreliable.

[36] What are these contradictions?

1) Health and Abilities - 15 October 2008, and 8 February 2011

a) Evidence in Chief:

[37] Mr. Mann said in examination in chief that as a result of the 2008 accident, he suffered multiple injuries, including injuries to his neck, shoulders, right arm, and low back, but that by the time of the 2011 accident he had recovered 50% of his pre-2008 accident status, and thought that by the end of 2010, he thought that he could return to work in 2012 or 2013.

[38] Mr. Mann said that just before the 2011 collision, he could carry out some household chores. He was able to assist with such things as grocery shopping, vacuuming, mopping, sweeping, and doing dishes, but was unable to do these tasks by himself; for example, he could only wash a few dishes. Mr. Mann also testified that just before the 2011 accident he was participating in home maintenance chores such as cutting the grass and doing light snow shoveling. His children usually took care of these chores. He did as much as he could, doing more some days than others, depending on his health. His level of participation depended on his level of pain. He depended on his wife and sons to do the balance of the chores he used to do. When he did participate in these activities, he would often have to take medication and rest.

b) Report to Doctors

[39] Mr. Mann gave a detailed description of the state of his health and abilities to Dr. Chen on September 14, 2009, 11 months after the 2008 accident.

[40] Dr. Chen, a physiatrist, was retained by the company whom Mr. Mann’s representatives hired to coordinate his medical treatment and accident benefits claim, to provide an opinion with respect to treatment plans and accident benefits arising from or relating to his 2008 accident.

[41] Mr. Mann told Dr. Chen that he suffered from the following persisting injuries in the 2008 accident: bilateral headaches, neck pain, shoulder pain, arm pain, hand pain, leg pain, arm numbness, leg numbness, mid-back pain, and low back pain; and dizziness, sexual dysfunction, depression, poor memory, and fatigue. Mr. Mann reported that his pain was very severe. He could do all his self-care, but it was painful. He could lift only very light weight, could not read for long due to neck pain, had headaches almost all of the time, and had difficulty concentrating. He could not do his usual work, could not drive due to pain, and could engage in only a few of his social activities because of pain.

[42] Mr. Mann did not give this history to other doctors as to his post-accident condition, including to his G.P., Dr. Singh.

[43] Dr. Chen diagnosed stretch injuries of the spine and limb muscles, post-traumatic headaches, and post-traumatic anxiety and mood disturbances, but said that his prognosis was “guarded”.

[44] Mr. Mann was also seen by Dr. Jacobs, an expert in the diagnosis, treatment and management of chronic pain, who saw Mr. Mann at the request of Mr. Mann’s treatment and accident benefit claim coordinator in March 2010, one half years after the 2008 accident.

[45] Mr. Mann reported the following current problems to Dr. Jacobs: a) Neck Pain – it came and went, and was associated with physical activities and moving his neck, and referred to his right shoulder, b) Right Shoulder pain – described as diffuse pain around the shoulder made more severe by moving the neck, c) Low Back Pain – it came and went, mostly with physical activity such as bending, turning and lifting, d) Tail Bone Pain – which caused difficulty sitting and has not improved to date.

[46] This is a much reduced injury list from that given to Dr. Chen. He did not report to Dr. Jacobs about his status 6 months earlier, or the extent of his improvement. The complaint of tail bone pain was new.

[47] Mr. Mann reported to Dr. Jacobs that he went to the hospital and was examined after the 2008 accident. He attended physiotherapy for 14 months, was not in therapy at the time, but was starting at a gym within a few weeks of the examination.

[48] Mr. Mann told Dr. Jacobs that since the 2008 accident, he had difficulty doing his homemaking, stone removal and other physical activities that he did before the accident because of neck and low back pain, and because it was not safe to operate machinery while he was on his medication. He also said that he had not worked since the accident because of his low back pain and neck pain, and because of safety concerns at work for the same reason. By the time he saw Dr. Jacobs, he was on a muscle relaxant and an anti-inflammatory. Dr. Jacobs recommended adding Lyrica and gabapentin to his prescription regimen, and Botox injections in his neck and lumbar spine. Dr. Jacobs' assessment, too, is that Mr. Mann’s prognosis was “guarded.”

[49] The impression one gets from Mr. Mann’s report to Dr. Jacobs is that he is still severely disabled.

[50] Dr. Singh’s examination in chief, supported Mr. Mann. He said that other than high blood pressure, Mr. Mann’s health before October 2008 was good. In the 2008 accident, Mr. Mann suffered from neck and low back pain, a report much less serious than those reported to Dr. Chen or Jacobs. Dr. Singh prescribed muscle relaxants and anti-inflammatory medication, and physiotherapy. An x-ray done on 15 October 2008 (Ex. 16) was normal, aside from degenerative changes. An MRI done on 30 January 12 showed narrowing of the central canal and degenerative changes in the neck vertebrae.

[51] Dr. Singh’s cross-examination, however, indicated that his evidence was unreliable. His notes indicated how unreliable Mr. Mann’s memory was, too.

[52] Dr. Singh agreed that, as a general rule, if a physician keeps notes that comply with the Canadian Medical Association’s guidelines, they are often one of the most reliable contemporary sources of the Plaintiff’s subjective complaints, the doctor’s objective findings, and the diagnosis and prognosis. These notes permit the doctor to judge patterns, and the ebb and flow of the patient’s health and conditions over time. Dr. Singh said that he follows the CMA guidelines.

[53] What do Dr. Singh’s notes show about the ebb and flow of Mr. Mann’s health and conditions from the October 2008 accident, onward?

[54] Between 15 October 2008 and 5 February 2011, Dr. Singh saw Mr. Mann every 4 to 6 weeks for his accident related complaints. They spoke in Punjabi, their mother tongue. Dr. Singh said in chief that while Mr. Mann continued with neck and back complaints after 2008, there was a general improvement over time such that he was "much better by the end of 2010." Dr. Singh conceded that this was based on Mr. Mann’s reporting to Dr. Singh of his abilities, but also on his assessment of Mr. Mann’s improvement over time in range of motion.

[55] Dr. Singh’s opinion is not reliable. Notwithstanding his letter of opinion to Mr. Mann’s solicitors dated 2 November 2010 (Ex. 14, pg. 1169) that said that Mr. Mann was improving, Dr. Singh still diagnosed chronic pain.

[56] Dr. Singh’s notes and records for the beginning at the outset of 2011, onward paint a picture of Mr. Mann that is inconsistent with both Mr. Mann’s and Dr. Singh’s evidence at trial. I pause to note that Dr. Singh’s handwritten notes from August 2009 to 30 September 2009 are illegible. The notes thereafter are typewritten.

[57] In cross-examination, Dr. Singh conceded that he has no independent memory of any visit with Mr. Mann. His sole memory of any visit is that which is recorded in his notes.

[58] His practice is to take a history from the patient and record subjective complaints; perform an examination including palpating Mr. Mann’s neck, shoulders, arms and back, and record objective findings; and record his assessment or prognosis and his plan for treatment. If there was a new complaint or change in an existing complaint since the last visit, he records that in his notes. If there was no new complaint or change in an existing complaint recorded in the note means that the complaint is still present and there was no change in the patient’s condition since the last visit.

[59] Dr. Singh’s notes for the 10 visits in the 9 months before the 2011 accident, and the notes following the 2011 accident are virtually identical.

[60] In his note for Mr. Mann, 7 February 2011, for example, Dr. Singh noted under the heading “Subjective”, Mr. Mann’s complaints as: “ C/o Pain and stiffness of neck, shoulders and back, with headaches and dizziness. Hurts to move neck or back, pain goes down both arms and legs. H/o MVA, in PT, MRI back – disc bulging. No nerve/spinal compression ”. Dr. Singh recorded under the heading “Objective”, his findings on examination as “…tenderness +ive over neck and back muscles. ROM – painful and decreased. Gait – wnl ”. Finally, under “Assessment” Dr. Singh recorded his diagnosis of “…Neck/Back sprain – Chronic ”.

[61] Based on Dr. Singh’s evidence concerning interpreting his notes, Mr. Mann had virtually no change in his symptoms from September, 2009 through to the day before the 2011 accident, and virtually no change in and in his symptoms, after the 2011 accident.

[62] Mr. Mann, was taken through Dr. Singh’s notes. Mr. Mann agreed that Dr. Singh’s notes accurately reflected his complaints to Dr. Singh at the time of each visit and reflect his state of health and function at the time of those visits.

[63] Aside from his recommendation that Mr. Mann take physiotherapy, and aside from his 2012 referral to Dr. Czok for an opinion as to how to manage Mr. Singh’s pain, Dr. Singh did not refer Mr. Mann to any other specialist or rehabilitationist. This is consistent with a static picture of Mr. Mann’s complaints and Dr. Singh’s findings as a result of the 2008 accident, and that the 2011 accident had little, if any, effect.

c) Reports to Others

[64] Mr. Mann’s statements to others, prior to the 2011 accident, also do not support Mr. Mann’s evidence about his pain and function, or as recorded in Dr. Singh’s notes.

[65] Between August 26 and October 15, 2010 (six and four months pre-2011 accident), Mr. Mann submitted applications for housekeeping services that his eldest son performed. Mr. Mann admitted in cross-examination that by circling the activities that he circled in the Application for Housekeeping and Home Maintenance Benefits (Ex. 10), he was telling his own insurer that he was completely unable to do those activities. The activities were: put the groceries away, wash dishes, tidy up the living room, vacuum, take out garbage, sweep the floor, water the grass, cut the lawn, take out the garbage, and shovel the snow. This contradicted his evidence in chief wherein he said he could do some or part of these activities at that time, and wherein he said by the end of 2010 (not long after he signed the applications) he felt he could go back to work by 2012 or 2013.

[66] Mr. Mann’s application to his accident benefit insurer for reimbursement for medications, sent to the insurer between September, 2010 and April, 2011 (the only such applications to be put before the court) lists the date of the loss as the 2008 accident notwithstanding that three applications were filed after the 2011 accident, the first of which was filed nine days after.

2) Health and Abilities – After 8 February 2011

a) Evidence in Chief

[67] Mr. Mann’s evidence with respect to his pain and abilities after the 2011 accident is also inconsistent.

[68] Mr. Mann testified that as a result of the 2011 accident, he suffered an aggravation of his neck, right shoulder and low back pain, which progressively got worse following the accident. He felt the increased pain at the scene of the accident. Dr. Singh referred him for therapy. He took physiotherapy for two or three years, twice a week, which included acupuncture and massages. His pain, however, increased through to 2013.

[69] Mr. Mann said that he changed physiotherapy to Chiropractor Janelle when his auto insurer stopped paying the cost. Mr. Mann said that since then, he has paid Dr. Janelle $55 per session. He said that in 2013, his right shoulder resolved, but he began to have neck pain and tingling that shot down his neck, into his right shoulder, and down his arm into his right hand and fingers. The pain arose each time he tried to use his right arm to do something or pick something up. Even brushing his teeth cause the pain to shoot from his neck down his right arm. His lifting is limited to 5 to 10 pounds. He has had no improvement since 2013. He continues to see his G.P., Dr. Singh, once a month for his medication and Dr. Janelle once a week. Both have said that he has chronic pain and must learn to live with it. He continues to take his medication. He suffered left shoulder pain following the accident, but it is resolved.

[70] Mr. Mann said he continues to have low/mid-back pain since the 2011 accident. Prolonged sitting, lifting, walking, laying on one side, or standing cause him to have tightness and soreness in his back, which makes walking difficult. His back has improved 50% since the accident.

[71] In addition to his physical injuries, Mr. Mann is sad. He does not want to visit and talk to people as before. He and his wife fight more. He feels worthless. His wife is now on disability. He wonders what his life will be like. He wonders how he will be able to afford to live once his sons marry and move out. He has not sought psychological or psychiatric treatment. Since 2011, he goes to temple infrequently. Some months, he does not even go. Before the 2011 accident, he went to temple once or twice a week.

[72] He rarely helps out around the house, inside or outside, since the 2011 accident because it hurts to bend and activity hurts his right arm. His children help with everything. Before the 2011 accident he was doing many light chores around the house, albeit with medication, pacing and rest.

[73] By the end of 2010, he was improved enough that he thought he could stop his medication and return to work in 2012 or 2013. He was told by supervisors at Kember Metal that once he was off his medication, he could return to work. He would work if he could. Kember Metal went bankrupt in July 2012. He has not been able to return to work because of the 2011 accident. Also, he has not looked for work since the 2011 accident.

b) Report to Doctors

[74] Dr. Singh’s evidence at trial generally supported Mr. Mann’s evidence. Dr. Singh testified that he saw Mr. Mann the day after the 2011 accident, at a different clinic, he recorded that Mr. Mann had an accident the day before, and made reference to the 2008 accident. Dr. Singh noted no loss of consciousness in the 2011 accident and diagnosed a moderate whiplash. He made no changes to medication and made no referrals to other doctors, aside from recommended continuing with physiotherapy.

[75] Dr. Singh said that after the 2011 accident, Mr. Mann complained that the pain in his neck, back and both shoulders were worse. The back pain radiated into his leg. Eventually, he complained of pain radiating from his neck into his right arm and hand. He had a reduced range of motion in his neck. He added Lyrica to Mr. Mann’s medication. Otherwise, medications did not change after 2011.

[76] The complaint of back pain radiating into Mr. Mann’s leg was not mentioned in Mr. Mann’s testimony. In fact, he denied it.

[77] In his 5 December 2011 letter to Mr. Mann’s lawyer (Ex. 18), Dr. Singh diagnosed chronic pain syndrome because Mr. Mann had injuries in two accidents, which increased after the second, and which had not resolved 6 months after the second accident. In his opinion, Mr. Mann has restrictions in his neck and back movement due to pain. He cannot sit, stand, or walk for more than 20 or 30 minutes without the onset of pain, and the need to change position. He cannot do repetitive movements without bringing on pain in his arm. Medication provides only temporary relief, but they make him dizzy. He is frustrated by his restrictions and sad. His symptoms are worse now than before the 2011 accident.

[78] As indicated earlier, Dr. Singh’s notes and records of the various visits by Mr. Mann do not support his opinion given at trial or contained in his December, 2011 letter to Mr. Mann’s lawyer.

[79] Mr. Mann told Dr. Berbrayer that as a result of the 2011 accident, he suffered an increase in his neck pain, shoulder pain (more right than left sided, which radiated into the right arm and hand) and low back pain. Mr. Mann said that while he had pain in these areas from the 2008 accident that had not completely resolved, the 2011 accident made things much worse. To this extent, Mr. Mann’s history to Dr. Berbrayer was consistent with Mr. Mann’s evidence at trial.

[80] Dr. Berbrayer recorded that Mr. Mann said that he had ongoing neck pain that radiated down into the shoulders, worse on the left than the right, and with any lifting or repetitive movement, radiated into his right arm and hand. He also said that he had low back pain, with no radiation into the legs. This aspect of his history does not conform to Mr. Mann’s evidence at trial.

[81] Mr. Mann does not appear to have mentioned to Dr. Berbrayer that his neck pain radiating into his arm began two years after the 2011 accident. Mr. Mann did not give to Dr. Berbrayer the detailed history of his complaints with respect to the 2008 accident that he gave to Dr. Chen or to Dr. Jacobs.

[82] Dr. Janelle, Mr. Mann’s treating chiropractor, was supportive of Mr. Mann’s case saying that Mr. Mann continued to require treatment for 2011 accident injuries.

[83] He first saw Mr. Mann on 22 March 2013. His notes and records indicate that Mr. Mann did not give him a complete history. Mr. Mann told Dr. Janelle that he had an accident "a couple of years" earlier (referring to the 2011 accident). He did not mention the 2008 accident. He complained of pain in his right neck radiating into his right arm that had persisted since his car accident, but that this pain and radiation into his arm started on 27 February 2013, two years and 19 days after the 2011 accident. He also complained of back pain but did not mention to Dr. Janelle that it had radiated into his leg, as he reported to Dr. Berbrayer.

[84] Mr. Mann consulted Dr. Getahun, an expert in Orthopaedics, who saw Mr. Mann on 11 April 2016 and provided a medical-legal report to Mr. Mann’s counsel. Mr. Mann was not forthright with his history.

[85] Mr. Mann described the 2008 accident and said he injured his neck and low back, but said that both were improving such that by the 2011 accident he had improved 50%, overall. He was unemployed since the 2008 accident from his job as a machine operator in a factory. He did not tell Dr. Getahun that he also injured his shoulder. He did not give Dr. Getahun the extensive list of injuries that he gave Dr. Chen in 2009.

[86] Mr. Mann also described the 2011 accident, said he reinjured his low back and neck, but developed pain and tingling radiating into his right arm and hand. By the time of the examination, his low back had improved 70%. It was aggravated by standing, sitting or walking too long, or heavy lifting. His neck pain was constant and radiated into his right hand.

[87] Mr. Mann did not tell Dr. Getahun that the shoulder-arm-hand disorder started two years after the 2011 accident. He did not tell any other doctor that by April 2016, his back was 70% better.

[88] Mr. Mann told Dr. Getahun that before the 2011 accident he was having difficulty performing his pre-accident housekeeping and home maintenance duties because of his 2008 accident injuries. He was relying on his wife to do those chores. Mr. Mann told Dr. Getahun that since the 2011 accident he has been unable to do any grocery shopping or laundry because of his pain. This is inconsistent with his evidence at trial.

[89] Based on a subjective history, Dr. Getahun diagnosed Mr. Mann as suffering, from the 2011 accident a) chronic myofascial strain to the neck, and aggravation of pre-existing degenerative changes, the aggravation from the 2011 accident was about 50%; and b) chronic myofascial strain of the lumbar spine and aggravation of pre-existing degenerative changes. Dr. Getahun was of the opinion that Mr. Mann’s 2011 injuries represent a permanent and serious impairment of important physical function and he is unlikely to return to the workforce considering the 2011 injuries and said that Mr. Mann would benefit from a multidisciplinary chronic pain programme to help him manage his pain and improve function.

[90] Dr. Getahun was shown the 2010 claims for housekeeping services in which Mr. Mann claimed a complete inability to do certain activities. He agreed that he expected that Mr. Mann could have done all of those activities, except vacuuming. All activities would have created pain. In fact, Mr Mann said that subsequent to 2011, he was unable to assist with the grocery shopping or the laundry.

[91] The Defendants called a number of doctors and professionals, whose notes also illustrate Mr. Mann’s unreliability as a historian.

[92] Mr. Kassam, an Occupational Therapist, performed an In-Home Assessment of Mr. Mann on 17 August 2011 (six months after the 2011 accident) at the request of Mr. Mann’s automobile accident benefit insurer, with respect to the necessity and reasonableness of treatment plans.

[93] Mr. Mann reported to Mr. Kassam that he was in a serious accident in 2008 in which he injured his low back, neck and right shoulder, but that he was 50% recovered by the 2011 accident. Before the 2008 accident, he shared housekeeping duties with his wife. She prepared the meals and did laundry. They shared grocery shopping and bathroom cleaning. He was fully responsible for dishwashing, vacuuming, sweeping, mopping and bed making, garbage removal, and all outside activities.

[94] Mr. Mann said that as a result of the 2008 accident his function was limited. By the 2011 accident he performed only light grocery shopping, light vacuuming, occasional sweeping and mopping. His wife and children performed heavier chores. In other words, in the picture he painted for Dr. Kassam he was less active than he described to others, and his function was more restricted immediately before the 2008 accident, then he said in his examination in chief. As a result of the 2011 accident he was completely unable to participate in his pre 2011 accident household activities. This too conflicted with his evidence at trial.

[95] At the time of Mr. Kassam’s examination, Mr. Mann complained of:

1. Low back pain, which was constant, aggravated by bending and lifting, which he rated as 5/10 before the 2011 accident and 8/10 after.
2. Neck pain, which was constant, aggravated by repetitive and sustained activity, which he rated at 5/10 before the 2011 accident and 8/10 after.
3. Right shoulder pain which was intermittent, aggravated with overhead activity, and which he rated at 4/10 before the accident and 7/10 after.

[96] Mr. Kassam performed functional, neurological and range of motion testing, which showed no objective findings of any impairment. All results were normal. Only evidence of any continuing effect of either of the two actions was Mr. Mann’s complaints of pain at the extreme range of motion testing, and in doing some functional tests. Functional abilities testing revealed that Mr. Mann’s testing performance exceeded his own reports of his limitations, although he did so with complaints of pain.

[97] Mr. Mann told Mr. Kassam that he could no longer do certain activities that he could do before the 2011 accident, which his wife had to do following the accident: grocery shopping and putting away, sweeping, washing floors & mopping, vacuuming. Further Mr. Mann reported that there were other activities he was unable to do before or after the 2011 accident (laundry, changing bed linens, dusting, garbage removal, and outdoor maintenance). This conflicts with his trial evidence.

[98] Dr. Czok, a physiatrist, saw Mr. Mann at the request of Dr. Singh for an opinion as to the cause and management of Mr. Singh’s complaints arising from the two accidents.

[99] Mr. Mann told her that he was in an accident in 2008 in which he developed pain, which was exacerbated by the 2011 accident. She noted that he reported current of predominantly neck and right shoulder pain, which was intermittent but daily, and fluctuated in intensity, being worse at night, which disturbs his sleep. He obtains relief with hot showers and medication. He had been in physiotherapy for two years by the time of the examination, which only provided one or two days relief per session. He does home based exercises daily. He stretches every morning, which help. He also walks although with pain in his legs so his walking is sometimes restricted.

[100] Mr. Mann did not mention his arm pain which, according to testimony at trial, was a significantly disabling pain.

[101] On examination, Mr. Mann was in no distress. She performed similar functional, range of motion, neurological and strength testing as Mr. Kassam. She too could find no objective findings of any limitation or disability, other than Mr. Mann's subject of complaint of pain at the extremes of movement. She thought that he was deconditioned and should have a self-directed, at-home, active, and aggressive exercise program including cardio conditioning. He should discontinue his medication. Since he takes Lyrica only a few times a week, he does not obtain any pharmacological benefit. He should resort to Tylenol as needed.

[102] In cross-examination, Mr. Mann agreed with Dr. Czok’s description of his accidents, his symptoms and his abilities. He also agreed with her diagnosis and recommendations.

[103] Dr. Finkelstein, an orthopaedic surgeon, saw Mr. Mann on 1 October, 2013 for a defence medical examination. Mr. Mann told him that in the 2008 accident he had low back pain, pain in both shoulders, and neck pain from which he did not recover by the time of the 2011 accident and remained off work. He estimated that he recovered 50% by the 2011 accident. As a result of the 2011 accident, he suffered neck and low back pain and, a few months later developed pain into the right arm.

[104] Mr. Mann advised Dr. Finkelstein, however, that by the time of the 1 October 2013 examination with Dr. Finkelstein, the pain in the right arm had resolved and he suffered pain into the left arm, with tingling in all fingers. That pain in the left arm was not present at the time of the examination. Dr. Finkelstein opined that the pain in the right arm, that resolved but later appeared in the left arm, was irregular and not anatomical.

[105] Mr. Mann told no one else about the shift in pain from his right to his left arm, and denied that this shift in arm pain occurred.

[106] Mr. Mann said he no longer does any activities around the house such as cutting the grass or shovelling the snow, and does not provide any help to his wife in the house. This contrasts with his evidence at trial.

[107] Mr. Mann was muscularly, skeletally, and neurologically normal. He showed no objective signs of impairment and thought that his complaints of pain were disproportionate to the objective findings.

[108] Dr. Finkelstein diagnosed that as a result of the 2011 accident, Mr. Mann suffered an uncomplicated soft tissue strain of his neck and back that ought to have recovered in 8-12 weeks. He had no new injuries from that accident. He had no objective abnormalities as of the date of the examination. Before the 2011 accident, he was permanently disabled because of his back and neck pain. The 2011 accident did not aggravate that.

[109] Dr. Cheng, a Physiatrist, provided a defence medical opinion. He saw Mr. Mann on 17 November 2017, at which time Mr. Mann told Dr. Cheng that he lost consciousness, momentarily, following the 2001 accident. He reported that he had no outward signs of trauma and was able to get out of his car and examine the damage. He was given a ride home by the tow truck driver.

[110] Mr. Mann told no one else about a loss of consciousness after the 2011 accident. In fact he told other doctors that he did not lose consciousness.

[111] Mr. Mann followed up with his family physician. He reported complaints of pain and stiffness in his neck, shoulders and back, pain going down both arms and legs, headaches and dizziness. He indicated that his symptoms have not improved significantly from a physical perspective since the 2011 accident. He had localized neck pain as a result of the 2008 accident that did not travel down his arm and low back pain. That conflicts with what he told Dr. Chen.

[112] By the 2011 accident, Mr. Mann said that his 2008 injuries had improved by 50%, but that he had not returned to work. By the time of the 2011 accident, Mr. Mann was still suffering from his 2008 injuries such that he was only doing 5-10% of his housekeeping duties and 20% of his home maintenance tasks which included vacuuming, dusting, lawn care and light snow removal. He had not returned to doing any of his pre-2008 extracurricular activities by the time of the 2011 accident.

[113] Ultimately, Dr. Chang thought that there was no objective sign of injury or of a permanent serious disfigurement nor a permanent and serious impairment of an important bodily function as a result of the injuries sustained in the 2011 accident.

c) His Statements in Other Places.

[114] Mr. Mann’s evidence is also different from that reported in his January 6, 2014, Application for CPP disability benefits (Ex. 12). In question 5 of the Application, submitted almost 3 years after the 2011 accident, Mr. Mann indicated that he stopped working as a machine operator because of the 2008 accident. He does not mention the 2011 accident.

[115] In question 18 of the Application, Mr. Man listed the illness and impairments that prevented him from working as “neck, back and shoulder, tailbone. See medical brief.”

[116] In paragraph 22 he said that:

a. he cannot sit in one place or stay in one spot for more than 20 to 30 minutes, b. he can only walk “very short distances then I have to rest”, c. he cannot lift and carry anything, d. he can reach if he moves slowly, e. he cannot bend, f. with respect to his ability to do household maintenance such as cooking cleaning shopping and similar activities, he says “spouse does it. I cannot."

[117] Mr. Mann agreed that he was telling Canada Pension Plan that he was completely (not partially) disabled. His submissions to the Canada Pension Plan are contrary to his evidence at trial and given to most doctors.

[118] The Defendants commissioned surveillance video footage which was taken on 26 April, 2013 (26 months after the 2011 accident), and on 5, 21, and 29 July, 2017. Mr. Mann introduced the videos into evidence, testifying that the surveillance showed typical activities on typical days, 2012 to 2019.

[119] The April, 2013 surveillance shows Mr. and Mrs. Mann walking in their neighbourhood for 49 minutes. Mr. Mann accepted that his route as shown on the video was 3.4 km long. At the end of that walk Mr. and Mrs. Mann turned around, retraced their steps in a homeward direction for a short time, and took a footpath back into the residential survey, at which time the recording ends.

[120] Mr. Mann said that they visited with a friend for 20 minutes, had tea, and walked home. He accepted that the return trip would have been about the same distance. He said that he walked 2 to 3 times per week. When cross-examined about this, Mr. Mann said that he walks as much as he can. Some days he walks a long time, others a short time, and some days not at all. It depends on how he feels. He admitted that he does this sort of walk two to three times a week, his health permitting.

[121] At no time during this video did Mr. Mann appear to have any difficulty walking nor did he stop to rest. The walking shown is not vigorous, but is sustained and his pace, even. There is no outward indication that he is suffering while walking.

[122] Mr. Mann conceded that anybody looking at this video would not be able to conclude that he was in pain. He also conceded that he did not tell any doctor that he was capable of walking as it a sustained leisurely pace for 49 minutes with a 20 minute rest and then another sustained 49 minute pace, for a total walk of 3.4 to 6.8 km, 2 to 3 times a week.

[123] The second video taken in July, 2017, shows Mr. Mann over three days. One day, he is seen grocery shopping, by himself, walking through the store pushing a buggy. He is seen standing in front of the dairy counter where he lifts four 3 L bags of milk from the refrigerator into the buggy, with his right hand. He also purchases eggs. He is seen pushing the buggy out to his car and unloading the bags of milk into the trunk and back seat of the car. At home he is seen carrying some of the milk in the house, at one point carrying two 3 L of milk in his right hand. His son helps with the remainder.

[124] Later, Mr. Mann is seen entering the garage, retrieving a gasoline powered lawn mower, using his right hand to pull the start cord, and, for approximately 20 minutes, mowing front lawn. He pushed, pulled, and turned the lawnmower across his front lawn for over 20 minutes. He used two hands, his left hand, and his right hand, alternately. At no time during this relatively heavy work, did he show any sign of discomfort. There were no guarded movements. He pushed the lawnmower fluidly. He did not stop and rest as he said at trial he had to do, nor did anyone help him.

[125] A few moments later, Mr. Mann is seen dragging the hose around the back yard where he watered the garden and hosed down lawn furniture. At no time during this activity is did he show any sign of discomfort. His movements were fluid and without apparent difficulty.

[126] When cross-examined about these videos, Mr. Mann said that he tries to do as much as he can. When he does something, however, he feels pain, takes medication, and rests. Afterward, his pain is increased for 2 to 4 days such that he can do nothing. He said that in 2017 (and today) he is limited to carrying only light things. He can only help with groceries, he cannot do them by himself. He cannot carry bags of milk all the time. He cannot tidy a room by himself all the time.

[127] Mr. Mann did not tell any of his doctors that he was cutting the grass by himself for 20 minutes or more, hosing down lawn furniture, carrying 3 or 4 3 L bags of milk, or that he was walking 3.4 to 6.8 km two to three times per week.

Plaintiff’s Expert Opinions.

[128] Mr. Mann’s unreliability as a historian undermines the opinions of the doctors that testified on his behalf. I also found the opinions of his doctors less reliable than those called by the Defendants.

[129] At other times, his doctors’ evidence undermined Mr. Mann’s. For example, Dr. Janelle’s evidence did not how that Mr. Mann visited the chiropractor once a week. Dr. Janelle’s invoices and notes show that Mr. Mann attended in three discreet periods, with long interludes in between in which Mr. Mann sought no treatment. For example, he sought no treatment from Dr. Janelle in 2014.

[130] Further, Dr. Janelle’s accounting records indicate that the total billing from 2013 through to the end of 2018 totaled $1,475.00. Dr. Janelle charged $55 a session. Grossing the session fee up to $62 to account for HST, Mr. Mann had approximately 23 chiropractic treatments over five years.

[131] Dr. Berbrayer, Mr. Winch and Dr. Getahun were not asked, nor did they say what Mr. Mann’s prognosis was or what his restrictions would have been had the 2011 accident never occurred, or offer an opinion only on the extent to which the 2011 accident aggravated existing injuries.

[132] In cross-examination, Dr. Berbrayer and Dr. Getahun conceded that they accepted the history and complaints Mr. Mann gave them and that much of their opinion depends on Mr. Mann’s credibility.

[133] Dr. Berbrayer said that he reviewed the extensive medical brief he was sent and commented in his report on relevant aspects of it. He agreed that it is important to look at all relevant documents to get a complete picture of the patient’s health.

[134] Notwithstanding this evidence, Dr. Berbrayer admitted that he did not mention in his report receiving and reviewing Dr. Singh’s clinical notes and records, only the 5 December 2011 letter from Dr. Singh to Mr. Mann’s lawyers. When Dr. Singh’s notes were put in front of him, Dr. Berbrayer had two comments that indicated he had not reviewed Dr. Singh’s notes. First, he said that he did remember looking at them but found them "challenging at best to read" because of the handwriting. This comment applied to Dr. Ahluwalia’s notes (the previous G.P.) and to Dr. Singh’s notes only before 2009. The remaining notes were typed.

[135] Second, when Dr. Berbrayer reviewed Dr. Singh’s note for 7 January 2011(Ex. 14, pg. 1172) with defence counsel which contained Dr. Singh’s standard notation of complaints, assessment and diagnosis regarding the auto related injuries, he said that all of these things are likely related to the primary reason for the visit – a cold. He did not remember that Dr. Singh’s notations regarding Mr. Mann’s auto related complaints did not change after September 30, 2009, or after the 2011 accident. He agreed that this was the case.

[136] Dr. Berbrayer also admitted that he did not receive Dr. Czok’s 12 November 2012 report, prepared 18 days before his, nor did he receive copies of the surveillance. When he reviewed the videos, he admitted that there was a difference in the abilities Mr. Mann showed on the screen than those he reported during the examination.

[137] Dr. Getahun, too, agreed that it is critical to review all possible information about the patient. He admitted that much of his opinion depends on Mr. Mann’s credibility. He agreed that the Family doctor’s notes are a good collateral source for a patient’s status and progress over time. The notes are usually the best contemporary recording of symptoms and conditions.

[138] Dr. Getahun reviewed Dr. Singh’s notes (Ex. 14 pages 1164 to 1176, 1179) and admitted the notes as they pertain to the injuries from auto accidents from before and after the 2011 accident are almost identical. He minimized Dr. Singh’s notes as lacking in detail. Therefore, he relied, instead on the 5 December 2011 letter Dr. Singh wrote to Mr. Mann’s lawyers. Dr. Getahun did not know that Mr. Mann had verified the accuracy of Dr. Singh’s notes.

[139] Dr. Getahun was not given Dr. Czok’s report of 12 November 2012, nor was he shown the surveillance.

[140] Finally, Mr. Mann called Fred Winch, an expert in vocational assessments and valuation who met with Mr. Mann in July, 2016 and again in April 2018, and concluded that Mr. Mann was completely unemployable. Mr. Winch’s opinion is of only modest assistance:

a. He relies on medical opinion to express his opinion. He is not qualified to disagree with doctors Getahun and Berbrayer. He read their reports and accepted what they said; b. He included the details of the 2011 accident in his report only to understand the medical history. He did not, however, describe the 2008 accident in the same detail; c. His opinion that Mr. Mann was unemployable was based on the cumulative effects of both accidents. He was not asked to offer an opinion on Mr Mann’s employability had the 2011 accident not happened, nor what contribution to Mr. Mann’s employability the 2011 accident made; d. He did not review the complete medical file. He reviewed only what he was sent. He did not review Dr. Singh’s notes and records and agreed that they showed that Mr. Mann was on a "level trajectory" before and after the 2011 accident and afterward. He did not review Dr. Czok’s report. It would have been useful to see that report but it merely showed that there was a difference of medical opinion; e. He was not given the surveillance videos; and f. Mr. Mann did not tell Mr. Winch that he earned rental income and performed some property management functions. Mr. Winch merely asked if Mr. Mann was working.

Causation

[141] Mr. Mann’s position is that his chronic pain since the 2011 accident has created serious permanent impairment of an important bodily function. He does not advance the position that his impairment is psychological in nature. No psychiatric or psychological evidence was led.

[142] Where I left to decide the question of causation on Mr. Mann’s evidence alone, because Mr. Mann is not a reliable historian, I would have found that Mr. Mann has not discharged his onus to establish, on a balance of probabilities, that the accident in 2011 caused any injuries or aggravated any pre-existing conditions.

[143] Notwithstanding the various versions of his history that he gave various doctors, the consensus among doctors is that because of the 2011 accident, Mr. Mann, at minimum, suffered an aggravation of his neck shoulder and lower back symptoms originally caused by the 2008 accident. This caused an impairment in his ability to bend, reach, lift, walk or sit for sustained periods of time.

[144] I find that Mr. Mann suffered an impairment of a bodily function as a result of the 2008 injuries by the 2011 accident.

Permanent

[145] The word "permanent" does not mean "forever." However, the impairment must last into the indefinite future, as opposed to a predicted time period, with a definite end (see Brak v. Walsh, 2008 ONCA 221, at para. 4).

[146] In this case, the Plaintiff has failed to meet his onus of establishing that the aggravation of his 2008 injuries that the 2011 accident caused, was permanent. I say this for several reasons.

[147] First, the opinions of physicians upon whom Mr. Mann relied pursuant to section 4.3 of O. Reg. 461/96, to prove the existence of a permanent serious impairment of an important bodily function, those of doctors Berbrayer and Getahun, are not reliable, for the reasons I have stated.

[148] Second, I prefer the evidence of doctors Czok, Chang, and Finkelstein. They had fuller medical records available to them (at least to the date that the reports were prepared). The full record allowed them to test the accuracy of Mr. Mann’s reliability as a historian. It also allowed them to assess the reliability of Mr. Mann’s self-report of pain and limitations on examination.

[149] I accept that their view, as well as the view of Dr. Safir, that at best, Mr. Mann sustained a temporary aggravation of his 2008 accident related neck, shoulder, and back injuries in the 2011 accident. I accept that in the normal course, these aggravations would have lasted not more than 8 to 12, or 14 to 20 weeks after the 2011 accident. I accept their evidence of Mr. Mann’s description of his neck – shoulder – arm – hand condition is non-anatomical and is not based on any objective sign of impairment.

[150] Based on the totality of the evidence, I do not accept that the aggravation of Mr. Mann’s neck, shoulder, and low back pain from the 2008 automobile accident caused by the 2011 accident is a permanent impairment.

Important

[151] The court must consider the importance of the bodily function in issue as it relates to the particular individual. Is it one that plays a major role in the health, general well-being, and way of life of the Plaintiff? The analysis is subjective and qualitative. What must be considered is whether the injured person, as a whole, and the effect which the bodily function involved has upon the person/s way of life broadly (see: Vandenberg v. Montgomery, [1999] O.J. No. 2789 (SCJ), at paras. 37 – 42; Ahmed v. Callenger, [2002] O.J. No. 4188 (SCJ), at para. 18).

[152] In Mr. Mann’s case, I conclude that the functions that were impaired (ability to do work around the house, to go to Temple more) are important to his life and wellbeing as it existed at the time of the 2011 accident. Therefore, they were important.

Serious

[153] In order to determine whether the impairment is “serious”, the court must consider the seriousness of the impairment to the person, as opposed to the injury in isolation (see: Meyer, at paras. 28-36; Mohammed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (SCJ), at para. 56). Further, the impairments must go beyond tolerable. Interference may be frustrating, and even unpleasant, but if it does not go beyond tolerable, it is not serious (see: Frankfurter v. Gibbins, 74 O.R. (3d) 39 (Div. Ct.), at paras. 22-24; Branco v. Allianz Ins. Co. of Can., [2005] O.J. No. 3056 (SCJ), at para 25).

[154] In Mr. Mann’s case, I do not find that Mr. Mann has met his burden to prove, on a balance of probabilities, that his impairment was serious as defined in the legislation and the case law, as compared to his condition immediately before the 2011 accident. The notes and records of the family doctor, which Mr. Mann confirmed were correct, showed little change in his condition before and after the accident. These notes and records are the only contemporary record of the ebbs and flows in Mr. Mann’s health and function before and after the two accidents.

[155] Mr. Mann’s own evidence, and the reports he made to doctors such as doctors Berbrayer, Getahun, and Janelle, are not reliable, for the reasons already stated.

Trimble J. Date: February 19, 2019

COURT FILE NO.: CV-11-3552-00 DATE: 2019 02 19 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RE: BALBIR MANN, Plaintiff AND: JORDAN JEFFERSEN and JEFFREY JEFFERSON, Defendants COUNSEL: D. D'Urzo, for the Plaintiff M. MacDonald and J. Elsasser, for the Defendants ENDORSEMENT Trimble J.

Released: February 19, 2019