Enns v. Goertzen, 2019 ONSC 4233

Court File No.: CV-15-22423

Date: 2019-07-15

Ontario Superior Court of Justice

Between:

Susana Enns, by her Litigation Guardian The Office of the Public Guardian and Trustee, and Susie Enns, a minor, by her Litigation Guardian Kelly Bashak Plaintiffs

– and –

Aganetha Goertzen and Cornelius Goertzen Defendants

Counsel:

Celina DeVuono, for the Plaintiffs

Michael E. Drake, for the Defendants

Heard: April 25, June 6 and November 22, 2018

REASONS ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

VERBEEM J.

Nature of the Motion

[1] The defendants move, pursuant to r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for summary judgment dismissing the bodily injury claim of the adult plaintiff, Susana Enns (“Ms. Enns”), and the derivative Family Law Act, R.S.O. 1990, c. F.3, as amended (“FLA”) claim of the minor plaintiff, Susie Enns (“Susie”), on the basis that this proceeding was commenced after the expiration of the limitation period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, as amended (the “Act”). The defendants do not seek an order dismissing the minor plaintiff’s own bodily injury claim.

[2] In the context of this motion, the plaintiffs posit that there are genuine issues requiring a trial in respect of both the date upon which Ms. Enns’ “claim” against the defendants was discovered (in accordance with s. 5 of the Act) and whether Ms. Enns was incapable of commencing a proceeding in respect of her claim at any time earlier than she did, because of her physical, mental and/or psychological conditions, thereby suspending the running of the limitation period (in accordance with s. 7 of the Act).

Nature of the Action

[3] The defendants’ motion is brought in the following context. In this action, Ms. Enns seeks general and special damages in the aggregate amount of 2.75 million dollars on account of non-pecuniary and pecuniary losses she alleges that she suffered and will suffer as a result of injuries and impairments that she is said to have sustained as a consequence of a motor vehicle accident that occurred on June 10, 2011 in the Town of Leamington, Ontario.

[4] Ms. Enns’ daughter, Susie, was a passenger in her vehicle at the time of the collision. Susie is a plaintiff in the action. She seeks general and special damages in the aggregate of $450,000 on account of non-pecuniary and pecuniary losses that she alleges she sustained as a result of the accident. Susie also seeks damages in the amount of $500,000, pursuant to the provisions of the FLA in a claim that is derivative of Ms. Enns’ bodily injury claim.

[5] The plaintiffs contend that the accident was caused by the negligence of the defendant, Aganetha Goertzen, who was operating a vehicle said to be owned by the defendant, Cornelius Goertzen, at the time of the accident. Mr. Goertzen is alleged to be vicariously liable for Ms. Goertzen’s asserted negligence.

[6] This proceeding was commenced by a Statement of Claim issued on July 3, 2015, more than four years after the date of the accident.

[7] Kelly Bashak, an occupational therapist who has provided post-collision professional services to Ms. Enns, has acted as Susie’s litigation guardian since the inception of this proceeding. Conversely, Ms. Enns’ proceeding was commenced and proceeded through Examinations for Discovery without a litigation guardian acting on Ms. Enns’ behalf. However, in 2017, the Office of the Public Guardian and Trustee (“PGT”) was appointed as Ms. Enns’ statutory Guardian for Property. The PGT now acts as Ms. Enns’ litigation guardian in this proceeding and a related order to continue was made in that regard on August 21, 2017.

Relevant Aspects of the Pleadings

[8] In their Statement of Claim, the plaintiffs allege, among other things, that:

(a) the accident was caused by Ms. Goertzen’s negligence;

(b) as a result of the accident and injuries sustained therein, Ms. Enns suffered catastrophic injuries and impairments which include but are not limited to: loss of consciousness; traumatic brain injury including injury to her left frontal lobe, deep white matter, ganglia, as well as hemiplegia on the right side of her brain; stroke; chest contusion; numbness, tingling, and loss of use of [her] right arm and leg; right side paralysis; spasticity; and pain to her system generally; among other things;

(c) as a result of the accident and her resulting injuries, Ms. Enns has experienced and will continue to experience, among other things: symptoms of paralysis; speech impediments; pain; stiffness to her system generally; sleep difficulties; reduced mobility; depression, anxiety and emotional upset;

(d) as a result of her injuries arising from the accident, Ms. Enns has sustained permanent and serious impairments of important physical and/or mental and/or psychological functions; and

(e) as a result of her injuries and impairments arising from the accident, Ms. Enns’ ability to manage her affairs has been limited, reduced, or eliminated such that she is either unable to manage her own affairs or lacks the acumen to invest funds awarded for her future care.

[9] The defendants delivered a Statement of Defence and Jury Notice on September 9, 2015.

[10] In their Statement of Defence, the defendants admit that a collision occurred between a vehicle operated by Ms. Enns and a vehicle operated by the defendant, Aganetha Goertzen, generally, at the time and place pleaded in the Statement of Claim.

[11] Apart from the foregoing admission, the defendants deny almost every other assertion made in the Statement of Claim, including the plaintiffs’ allegations that: Ms. Enns suffered a stroke as a result of the accident; the accident caused Ms. Enns to sustain a serious and permanent impairment of any of her important physical, mental or psychological functions (i.e. the defendants assert that Ms. Enns does not cross the verbal threshold required to maintain an action for non-pecuniary damages on account of bodily injuries arising out of the use or operation of a motor vehicle); and Ms. Enns’ capacity to manage her financial affairs has been limited, reduced, or eliminated.

[12] In addition, at para. 4 of their Statement of Defence, the defendants have pleaded an affirmative limitation period defence as follows:

The Defendants plead that the Plaintiffs have failed to commence their action arising from the June 10, 2011 accident within the two-year limitation period prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B, as amended, and as such their claims are barred by law.

[13] The Plaintiffs did not deliver a Reply to the Statement of Defence nor have they pleaded material facts in their Statement of Claim in support of a position that Ms. Enns’ claim was first discovered within the two-year period that preceded the date upon which the Statement of Claim was issued. Similarly, the Plaintiffs have not pleaded an assertion that during any period of time following the accident, Ms. Enns was incapable of commencing a proceeding in respect of her claim because of her physical, mental or psychological condition(s).

[14] The plaintiffs acknowledge that they have not pleaded material facts in support of their position on the disputed limitation period issues. However, they submit that this motion must be determined on the basis of the evidence before the court, not a deficiency in their pleadings.

The Core “Discoverability” Evidence Relied on by the Defendants

[15] Later in these reasons, I will detail the admissible medical and other evidence concerning the physical, psychological and cognitive symptoms that Ms. Enns reported to healthcare practitioners both before and after the accident, together with various diagnoses and prognoses that were made in respect of her post-accident condition.

[16] However, on the issue of “discoverability”, the defendants assert that the evidence discloses that Ms. Enns was diagnosed with depression and bipolar and schizoaffective disorders by her treating psychiatrist (Dr. Rai) in 2008. Immediately post-accident, Ms. Enns was assessed at hospital and diagnosed with soft tissue injuries. Approximately three weeks later, she was assessed by a neurologist Dr. B. Jeun, who diagnosed: (a) posterior neck, posterior shoulder girdle, thoracic wall and lumbar myofascia strain/pain syndrome, bilaterally; and (b) cerebral concussion.

[17] Notably, approximately one month after the accident, on July 10, 2011, Ms. Enns suffered a left-sided stroke which resulted in right-sided paralysis and rendered her unable to speak (aphasia). In the context of this motion, Ms. Enns’ litigation guardian also asserts that she sustained significant cognitive impairments as a result of the stroke. Following her stroke, Ms. Enns was hospitalized for ten days and then admitted to an in-patient rehabilitation program at Windsor Regional Hospital for approximately two months. Despite a recommendation that she be moved to a long-term care facility, Ms. Enns was discharged home without supportive services on September 17, 2011.

[18] The defendants contend that a key issue impacting discoverability is when Ms. Enns first knew about medical information, developed in April 2012, that causally linked her stroke to the accident.

[19] Prior to that time, an application for accident benefits was made by or on behalf of Ms. Enns to her own automobile insurer in December 2011. Her family physician, Dr. Leung, completed a disability certificate in support of the application on January 4, 2012, in which he endorsed that Ms. Enns suffered a complete inability to carry on a normal life that was expected to last for a period of more than 12 weeks. Dr. Leung made the following diagnosis:

(a) Cervical musculoligamentous strain;

(b) Shoulder girdle musculoligamentous strain;

(c) Lumbar musculoligamentous strain; and

(d) Cerebral-vascular accident with completed stroke causing right sided paralysis on July 10, 2011.

[20] Dr. Leung expressly endorsed that the musculoligamentous strains identified above were caused by the accident, and both they and her stroke-related paralysis contributed to her inability to carry on a normal life. Subsequently, in response to a specific inquiry made by Ms. Enns insurer, Dr. Leung opined that her subsequent stroke was not caused by the accident.

[21] In response to her benefits application, Ms. Enns’ own insurer arranged to have her examined by a number of medical specialists in February and March, 2012, including: neurologist Dr. Meloff; psychiatrist Dr. Kiraly; and orthopod Dr. Bartol.

[22] Dr. Bartol’s subsequent report reflects that Ms. Enns advised him that she could not recall the accident or what subsequently transpired at the hospital. He endorsed that any soft tissue injuries sustained by Ms. Enns in the accident had long since healed.

[23] Dr. Kiraly’s subsequent report indicates, among other things, that Ms. Enns presented with a documented history of pre-accident psychological difficulties. Subjectively, Ms. Enns reported post-accident impairments in her attention, concentration and memory. She stated that due to her difficulties concentrating, she had not been able to read since the accident. Her mood was low with increased irritability. She was not coping well. She had lost interest in her leisure activities and her participation in family and social functions had decreased.

[24] A mental status examination reportedly revealed that Ms. Enns’ cognitive functions were grossly intact and she was reportedly, oriented in time, place and person. However, her concentration and memory appeared to be affected. Her mini-mental status examination score was 25/30. On a short-term memory test she scored zero out of three. She could not perform serial 7’s. She could not spell the word “WORLD” backwards and she was unable to name the Prime Minister. Further, Ms. Enns’ scores on subjective report-based testing were indicative of severe depressive symptoms, moderately severe anxiety symptoms and severe trauma symptoms. Dr. Kiraly diagnosed Ms. Enns as suffering from a major depressive disorder and a pain disorder due to both psychological factors and a general medical condition. He endorsed that she required ongoing psychiatric care.

[25] In his report dated April 13, 2012, Dr. Meloff causally linked Ms. Enns’ stroke to the accident. In that regard, he expressly opined:

Motor vehicle accident with deployed airbags compressing chest and/or neck vessels aggravating a pre-existing cardiac and carotid disease and leading to an undiagnosed transient ischemic attack followed by a stroke in evolution, with permanent residual neurological impairment including a spastic right hemiparesis and aphasia. I suspect the mechanism of the stroke was the release of an embolus either from her heart or from the left carotid artery.

[26] Dr. Meloff opined that from a neurological perspective, Ms. Enns suffered a complete inability to carry on a normal life.

[27] Ostensibly, Ms. Enns’ insurer sent her correspondence dated April 17, 2012 confirming her eligibility to receive “Non-Earner” benefits, together with copies of the reports of Drs. Kiraly, Bartol, and Meloff, respectively. Ms. Enns does not recall receiving that correspondence or the reports and, in any event, she maintains that based on her documented and asserted profound difficulties with reading and comprehension, together with other cognitive symptoms and impairments, even if she read that documentation, she would have been unable to understand its content.

Overview of the Defendants’ Position on the Motion

[28] The defendants posit that the claim advanced by Ms. Enns and Susie’s derivative FLA claim are subject to a basic two-year limitation period that presumptively commenced on the day the accident occurred. Although the plaintiffs have not pleaded facts in support of a “discoverability date” that differs from the date of the accident, the defendants submit that based on the available and admissible evidence the latest date upon which a reasonable person with Ms. Enns’ abilities and in her circumstances first ought to have “discovered” her claim was in April, 2012, when her own insurer provided her with Dr. Meloff’s neurological assessment report.

[29] The defendants submit that acting with reasonable diligence, Ms. Enns could have discovered (or had already discovered) a substantial body of evidence which, if accepted, would entitle her to maintain a claim against them for non-pecuniary damages as a result of the injuries and impairments that she sustained as a result of the collision (in accordance with the provisions of the Insurance Act, R.S.O. 1990, c. I.8, which I will review later in these reasons). Therefore, even if Ms. Enns’ claim was not discoverable until April 2012, the applicable limitation period would have expired in April 2014, over one year before Ms. Enns commenced this proceeding in July of 2015.

[30] Further, the defendants assert that the available and admissible evidence does not disclose the existence of a genuine issue for trial concerning whether the operation of the limitation period applicable to Ms. Enns’ claim was suspended because she was incapable of commencing a proceeding in respect of it, as a result of her physical, mental, or psychological condition(s). In the context of this motion, Ms. Enns has failed to prove the contrary and, as a result, she is presumed to have been capable of commencing a proceeding in respect of her claim, at all times after the date of its discovery.

[31] In short, the defendants posit that there is no genuine issue that requires a trial to determine whether the limitation period applicable to Ms. Enns’ claim expired before she commenced a proceeding against them. The available evidence (and the lack of evidence concerning issues with respect to which Ms. Enns carries the onus) conclusively establishes that it did. With that finding, Ms. Enns’ action and Susie’s derivative FLA claim must be dismissed.

Overview of Ms. Enns’ Position on the Motion

[32] Conversely, through her litigation guardian, Ms. Enns asserts that although she did not specifically plead material facts in support of the following issues, the evidence adduced in the context of this motion raises genuine issues that require a trial to determine: the date upon which she discovered or ought to have discovered her claim against the defendants; and whether she was incapable of commencing a proceeding in respect of that claim any earlier than she did because of her physical, mental, and/or psychological conditions.

[33] As I will detail later in these reasons, in support of its position, Ms. Enns’ litigation guardian relies on aspects of an extensive documentary record primarily consisting of pre-accident and post-accident medical documentation concerning Ms. Enns’ physical, psychological, and mental conditions. Although the record is dense, it does not contain expert evidence directly opining on Ms. Enns’ capacity to commence a proceeding before the date that she did.

[34] Ms. Enns’ litigation guardian submits that despite the absence of such expert opinion evidence, the record on this motion contains a robust body of medical evidence derived from pre-accident and post-accident treating and assessing healthcare practitioners that establishes, among other things, that: Ms. Enns had significant psychiatric and psychological symptoms before the accident that were exacerbated as a result of the accident and again by her subsequent stroke; Ms. Enns’ post-accident physical condition was markedly impaired as a result of her subsequent stroke, which resulted in right-side paralysis and a prolonged inability to speak; Ms. Enns’ has been deemed to have an 81 percent whole person impairment as a result of her post-stroke neurological condition; Ms. Enns has continued to experience significant cognitive impairment and dysfunction following her stroke, including: an inability to read and comprehend; extreme memory loss; impaired working memory such that she cannot retain new information that she acquires; impaired judgment and decision-making ability; impaired executive functioning; an inability to manage her finances; communicative deficits; and an inability to concentrate.

[35] Additionally, in December 2016, a certified capacity assessor endorsed that Ms. Enns was incapable of managing her property. The PGT was appointed as her Guardian for Property. The capacity assessor also opined that Ms. Enns lacked the capacity to instruct legal counsel, owing to her inability to understand legal issues and the reasonably foreseeable consequences of actions and decisions concerning those issues. As a result, the PGT acts as her litigation guardian.

[36] Further, two different occupational therapists have determined that Ms. Enns requires 24-hour attendant care because of her significant physical and cognitive deficits.

[37] As a result of the foregoing, Ms. Enns’ litigation guardian asserts that there is evidence upon which a trier of fact can reasonably conclude that after her stroke, Ms. Enns was incapable of commencing a proceeding as a result of her physical, mental, and/or psychological condition(s).

[38] On the issue of discoverability, Ms. Enns’ litigation guardian submits that the determination of when a reasonable person would have discovered Ms. Enns’ claim against the defendants must be made in the context of a reasonable person with Ms. Enns’ abilities and in Ms. Enns’ circumstances, which include Ms. Enns’ profound post-stroke cognitive impairments. In that context, her litigation guardian asserts that her claim was not discoverable until Ms. Enns first consulted with legal counsel in 2015. The proceeding was commenced within two years of that date.

[39] Finally, Ms. Enns’ litigation guardian requests leave to amend the Statement of Claim or to deliver a Reply, in order to plead material facts in support of its position on “discoverability” and Ms. Enns’ lack of capacity to commence a proceeding.

The Issues

[40] In the foregoing context, the issues to be determined on this motion may be summarized as follows:

1. Is there a genuine issue that requires a trial to determine whether Ms. Enns was incapable of commencing a proceeding in respect of her claim against the defendants, any earlier than she did because of her physical, mental or psychological condition, as contemplated by s. 7 of the Act?

2. Is there a genuine issue that requires a trial to determine the earliest date upon which Ms. Enns knew, or a reasonable person with her abilities and in her circumstances first ought to have known, the information enumerated in s. 5(1)(a) of the Act (i.e. the earliest date upon which the claim was discovered)?

3. Should leave be granted to the plaintiffs to amend their Statement of Claim or to deliver a Reply to plead facts regarding “discoverability” and “inability” to commence a proceeding?

[41] In determining those issues, I will begin by reviewing the evidence available on the motion. In so doing, I will first resolve the parties’ respective positions that aspects of the evidence adduced by the opposite parties are inadmissible and ought to be struck. Then, I will summarize the admissible evidence. Following that, I will review the legal principles applicable to the disposition of a motion for summary judgment and the limitation period issues raised herein.

[42] Finally, I will explain why in applying those principles, the admissible evidentiary record discloses genuine issues that require a trial concerning: Ms. Enns’ capability to commence a proceeding prior to July, 2015; the date upon which Ms. Enns discovered her claim; and the date upon which a reasonable person with Ms. Enns’ abilities and in her circumstances first ought to have discovered the claim she asserts against the defendants. I will also explain why the plaintiffs are granted leave to deliver a Reply consisting of the material facts they intend to plead in response to the limitation period defence asserted.

Nature of the Evidence and its Disputed Admissibility

(i) Nature of the Evidence

[43] The evidentiary record generally consists of: three affidavits sworn by members of the law firms representing the respective parties (Mr. Cadden in respect of the defendants and Ms. Stewart in respect of the plaintiffs), to which exhibits cumulatively totalling over 1,000 pages are attached; a Notice of Intention, filed by the plaintiffs concerning reports from a certified capacity assessor and an occupational therapist; and a brief affidavit from the plaintiff’s family physician averring to the truth of his responses to a form of questionnaire authored by plaintiffs’ counsel, concerning Ms. Enns that he completed and appended to his affidavit.

[44] Ms. Stewart has sworn two affidavits in the context of this motion, specifically: on November 29, 2017, to which 84 exhibits are appended; and on March 27, 2018, to which two exhibits are appended. She was not cross-examined on either affidavit. Similarly, Mr. Cadden was not cross-examined on the affidavit that he swore on September 1, 2016, in support of the motion for summary judgment.

[45] The exhibits appended to the solicitors’ affidavits primarily consist of contemporaneous medical documentation in respect of Ms. Enns’ pre-accident and post-accident physical, mental and psychological conditions and concordant treatment for same.

[46] In submissions, the parties agreed that: the authenticity of the exhibits was not in issue; the authors of medical and treatment related documentation (clinical notes, reports, treatment plans, physician statement forms, disability certificates, etc.) are qualified to render the opinions expressed therein; and the information that the authors of such documentation respectively report that they received (primarily from Ms. Enns and, at times, her family members), was, in fact, received by them. They do not agree that the information received by the authors of such documentation was necessarily reliable or true.

[47] In addition to medical documentation, each of the parties has filed a complete copy of the transcript of Ms. Enns’ Examination for Discovery as an exhibit to their respective solicitor affiants’ affidavits.

[48] It is clear, in reading the content of the exhibits as filed, that the entirety of the post-accident medical documentation related to Ms. Enns has not been put before the court in the context of this motion. For example, various exhibits refer to the content of an immediate post-accident ambulance call report, which is said by some assessors to be inconsistent with Ms. Enns’ subsequent reports that she lost consciousness in the accident. However, the actual ambulance call report is not included in the evidence filed. Similarly, a complete copy of Ms. Enns’ family physician Dr. Leung’s clinical notes have not been filed, nor have the records with respect to Ms. Enns’ prolonged post-stroke hospitalization and in-patient rehabilitation.

[49] Instead, in large part, the parties have put forth discrete aspects of the contemporaneous medical documentation that they assert support their respective positions with respect to the issues of capacity and discoverability.

[50] The solicitor’s affidavit evidence filed by each of the parties serves to identify and introduce aspects of the available medical documentation and provides some additional commentary concerning its contents. The affidavits sworn by plaintiffs’ counsel, Ms. Stewart, also contain evidence of information that she is said to have acquired directly through: her own interactions and observations of Ms. Enns; her review of medical documentation; her personal involvement in the action; and her interactions with certain of Ms. Enns’ treatment providers, most notably occupational therapist Kelly Bashak and speech and language pathologist Sarah Dupuis. Further, in her evidence, Ms. Stewart also opines on the “reasonableness” of inferences that she suggests can be drawn from the documentary evidence available on this motion.

[51] None of the parties have conducted any examinations of witnesses on a pending motion. Instead, through the exhibits appended to their lawyers’ affidavits, the parties have cumulatively adduced evidence derived from in excess of 25 “non-party” experts (in the form of notes, records, and reports made by healthcare practitioners who have assessed and/or treated Ms. Enns before and after the accident).

[52] The plaintiffs have delivered one Notice of Intention (pursuant to the Evidence Act, R.S.O. 1990, c. E.23) dated March 21, 2018, with respect to a report from capacity assessor Carol Caverzan, dated December 20, 2016 (opining that Ms. Enns lacks the capacity to instruct legal counsel) and an occupational therapy in-home assessment report prepared by Patricia Morand on March 6, 2018. Notices of Intention were not delivered with respect to any of the other exhibits appended to the affidavits of Ms. Stewart or Mr. Cadden.

[53] Finally, Ms. Enns’ litigation guardian delivered an affidavit sworn by Ms. Enns’ family physician, Dr. Michael Leung, on April 17, 2018. The content of Dr. Leung’s affidavit is atypical. The substantive portion of the affidavit, in essence, identifies as an exhibit a copy of correspondence authored by Ms. Enns’ counsel to Dr. Leung dated March 19, 2018. In turn, Dr. Leung has responded to various “yes or no” questions posed therein. Dr. Leung was not cross-examined.

(ii) The Defendants’ Challenges to the Evidence Adduced on Behalf of the Plaintiffs

[54] Within the context of the foregoing record, the defendants take issue with the admissibility of a substantial amount of the evidence deposed to by Ms. Stewart and seek to have it struck from the record. I will explain further below.

[55] Through their first and second supplemental facta, the defendants challenge the admissibility of:

1. Aspects of 35 of the 174 paragraphs contained in Ms. Stewart’s November 29, 2017 affidavit, on the basis that the information to which she deposes is not within her personal knowledge and the source of the information is not otherwise specified in her affidavit. In submissions, counsel narrowed the scope of this objection to 25 specific aspects of the affidavit contained in paragraphs 3, 16, 18, 24, 25, 27, 28, 29, 32, 40, 45, 53, 66, 68, 69, 70, 71, 154 (multiple parts), 155 (multiple parts), 156 (multiple parts) and 159.

2. Aspects of 18 paragraphs contained in Ms. Stewart’s November 29, 2017 affidavit on the basis that they contain legal arguments and conclusions and/or opinion evidence. In submissions, counsel narrowed the scope of this objection to 14 specific aspects of the affidavit set out in paragraphs 25, 28, 29, 53, 66, 69 (multiple parts), 70, 84, 85, 155, 159 and 169 (multiple parts).

3. An otherwise unspecified “significant portion” of Ms. Stewart’s November 29, 2017 affidavit that is alleged to contain “unnecessary and irrelevant background information concerning Ms. Enns’ upbringing”, among other things.

4. A report authored by certified and designated capacity assessor Carol Caverzan, dated December 20, 2016, in which she opines, among other things, that Ms. Enns lacks the capacity to instruct counsel. The defendants submit that the report should be struck on the basis that it is appended to an affidavit sworn by Ms. Stewart on March 27, 2018, thereby shielding Ms. Caverzan from cross-examination.

5. A report authored by occupational therapist Patricia Morand, dated March 6, 2018, at the request of Ms. Enns’ own accident benefits insurer, in which Ms. Morand discloses, among other things:

a) her impression that Ms. Enns does not have a full understanding or insight into the extent of her limitations from a physical, emotional, or cognitive perspective;

b) through standardized and non-standardized testing of Ms. Enns’ cognition, she determined that Ms. Enns presented with limitations in the areas of orientation, attention, language, memory, and reasoning; and

c) based on her physical and cognitive impairments, Ms. Enns requires 24 hour per day supervisory attendant care.

The defendants submit that the report should be struck on the basis that it is appended to an affidavit sworn by Ms. Stewart, thereby shielding Ms. Morand from cross-examination.

[56] In response to the defendants’ admissibility challenges, the plaintiffs concede that the challenged portion of paragraph 66 (specifically the portion of the last sentence beginning with, “Intact may have decided...”) and the challenged portion of paragraph 85 of the November 29, 2017 affidavit (the last sentence of that paragraph) may be struck, and they are so struck.

[57] Further, the plaintiffs append to their factum a Schedule, in which they summarize the sources of Ms. Stewart’s information and belief for those aspects the hearsay contained in her affidavit that the defendants assert are unsourced. They also append to their factum, a Schedule in which they take issue with the accuracy of the defendants’ description of the content of Ms. Stewart’s affidavit that is characterized as “improper opinion evidence” or argument.

[58] Finally, the plaintiffs challenge the admissibility of certain aspects of paragraphs 11, 12, 25 and 26 of Mr. Cadden’s affidavit on the basis that they constitute improper opinion evidence argument, or unsourced hearsay.

[59] During the course of submissions, plaintiffs’ counsel filed amended versions of the foregoing Schedules, in which they conceded that other aspects of Ms. Stewart’s November 29, 2017 affidavit ought to be struck. As a result, the following portions of that affidavit are struck on consent:

1. Paragraph 16 – the phrase, “almost none of whom were involved with her” is struck from the last sentence;

2. Paragraph 18 – the sentence, “Even before the accident, Susana [Ms. Enns] could not read or write well and required help from others.” is struck.

3. Paragraph 25 – the entire paragraph is struck;

4. Paragraph 28 – the second sentence beginning with, “Given her cognitive state in October of 2011...” is struck in its entirety;

5. Paragraph 45 – the first two sentences are struck in their entirety;

[60] The balance of the above identified aspects of Ms. Stewart’s affidavit and the exhibits appended thereto remain the subject of contested challenges to their admissibility.

[61] In determining those challenges, I remain mindful that there is a fundamental difference between the admissibility of evidence and the weight that should be afforded to the evidence once it is admitted. Nonetheless, after considering the parties’ submissions and carefully reviewing the challenged evidence, I am satisfied that portions of Ms. Stewart’s November 29, 2017 affidavit ought to be struck. I will identify those portions and further explain, below.

[62] Pursuant to r. 25.11 of the Rules, a court may strike out or expunge all or part of a pleading or other document on the grounds that the pleading or other document: (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous, or vexatious; or (c) is an abuse of the process of the court.

[63] The Rules require that evidence provided in affidavit form be confined to the statement of facts within the personal knowledge of the deponent, or to other evidence that the deponent could give if testifying as a witness in court, except where the Rules provide otherwise: see r. 4.06(2) of the Rules. The general provision set out in r. 4.06(2) of the Rules is subject to an exception permitting an affiant to depose to statements of his or her information and belief, if the source of the information and the fact of the belief are specified in the affidavit: see r. 39.01(4) of the Rules. That exception remains operable in the context of a motion for summary judgment brought pursuant to r. 20 of the Rules. However, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts: see r. 20.02(1) of the Rules.

[64] With those provisions in mind, I turn to the disputed issue of admissibility.

[65] Evidence is admissible if it is relevant, material and not otherwise the proper subject of an exclusionary rule.

[66] “Relevance” is a matter of every day experience and common sense. Evidence that is not logically probative of the fact requiring proof (a fact in issue) is generally inadmissible. To be probative, the evidence must increase or decrease the probability of the truth of the asserted fact to which it is said to relate: see Ontario v. Rothmans Inc., 2011 ONSC 2504, 5 C.P.C. (7th) 112, at para. 110. Indeed, in order for evidence to be “relevant” it must have some tendency, as a matter of logic and human experience, to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence: see R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47.

[67] “Materiality” is a legal concept that directs an inquiry into whether the fact that the party seeks to prove bears any relation to the issues in the proceeding as determined by both: the applicable substantive and procedural law; and the issues raised by the pleadings.

[68] An affidavit ought not to contain argument, speculation and irrelevant information. Legal arguments belong in a factum, not in affidavit form. Generally, legal submissions contained in an affidavit should be struck pursuant to r. 25.11 of the Rules, as scandalous, frivolous, or vexations: see Chopik v. Mitsubishi Paper Mills Ltd. (2002), 26 C.P.C. (5th) 104 (Ont. S.C.). Assertions in an affidavit that are irrelevant, argumentative or inserted for colour, or that constitute bare allegations may be struck out as scandalous: see George v. Harris, 2000 CarswellOnt 1714 (S.C.) at paras. 19-20.

[69] In applying the foregoing principles, there are aspects of Ms. Stewart’s affidavit that ought to be struck. Before identifying those specific aspects of her affidavit, I will address two of the defendants’ admissibility objections that can be readily determined.

[70] First, the defendants submit that Ms. Stewart’s affidavit contains a substantial amount of background information with respect to Ms. Enns which ought to be struck on the basis of its lack of relevance to the issues on the motion. The defendants do not expressly identify those aspects of Ms. Stewart’s affidavit that are said to be irrelevant. More fundamentally, one of the issues engaged on the motion is whether there is a genuine issue requiring a trial concerning the date upon which Ms. Enns’ claim was first discovered. s. 5(1)(b) of the Act injects a modified objective inquiry into the discoverability analysis. Specifically, it expressly contemplates the determination of “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause [5(1)(a) of the Act]”, when arriving at a finding with respect to the date a claim was first discovered.

[71] As I will set out later in these reasons, one of the significant disputed issues in this instance is whether Ms. Enns received, read, comprehended, meaningfully retained and/or had the capacity to appreciate the content of independent medical reports commissioned by her accident benefits insurer in early 2012, one of which causally linked her post-accident stroke to the accident.

[72] The background information with respect to Ms. Enns, as set out in Ms. Stewart’s affidavit, includes details such as: she was born in Mexico; English is not her first language; she has a Grade 8 education; she was in a marriage with a longstanding history of domestic abuse which resulted in her suffering certain documented on-going psychological and psychiatric symptoms; she presents with a longstanding history of pre-accident depression and anxiety (supported by medical documentation); she was suspected to have a bipolar disorder and she was diagnosed with a schizo-affective disorder prior to the accident (supported by medical documentation); she had difficulty maintaining employment in the time period immediately preceding the accident and applied for Ontario Disability Support Program (“ODSP”) benefits as a result (supported by medical documentation); several of her children were removed from her care by child protection authorities, primarily as a result of her husband’s conduct; and other information of that ilk.

[73] In my view, evidence of the foregoing background information is not irrelevant when considering what a reasonable person “with the abilities” and “in the circumstances” of Ms. Enns ought to have known in respect of the claim she now asserts, and when such a reasonable person first ought to have known it. Instead, such information bears relevance to the determination of Ms. Enns’ “abilities and circumstances”. Therefore, I am not inclined to strike any portion of Ms. Stewart’s November 29, 2017 affidavit evidence concerning Ms. Enns’ background, on the basis of “lack of relevance”.

[74] Second, the defendants seek to strike the capacity report and occupational therapist assessment report that are appended to Ms. Stewart’s affidavit sworn March 27, 2018. The primary basis for the defendants’ challenge to admissibility in that regard, is the form in which the evidence comes before the court. The defendants’ stated concern is that the authors of the reports have been shielded from cross-examination because the reports were adduced as exhibits to Ms. Stewart’s affidavit, for the stated purpose of informing her “information and belief”.

[75] I accept that the defendants’ submission that a physician’s report attached to an affidavit of a lawyer sworn on information and belief is generally not an appropriate way to put a medical opinion before the court on a motion for summary judgment: see Suwary v. Women’s College Hospital, 2008 8789 (ON SC), at paras. 25-30. However, in submissions, counsel for the defendants declined the opportunity to pursue leave to cross-examine Ms. Caverzan and Ms. Morand (the authors of the respective reports) when this court offered them the opportunity to do so. Further, Ms. Stewart’s affidavit is not the only mechanism by which the impugned reports have been filed in evidence. Instead, the reports have been filed pursuant to a Notice of Intention served in accordance with the provisions of the Evidence Act. There is no indication that the defendants sought to cross-examine the authors of the reports, once they were served with the Notice of Intention.

[76] In the foregoing circumstances, I decline to strike the reports as exhibits to Ms. Stewart’s affidavit. Even if I did so, those reports would remain as evidence on the motion for summary judgment because they were served and filed with the requisite Notice of Intention.

[77] I now turn to the defendants’ challenges to the admissibility of aspects Ms. Stewart’s November 29, 2017 affidavit that are premised on assertions of unsourced hearsay. At this stage, I am only dealing with the threshold issue of the admissibility of the challenged evidence, not weight, if any to be given to it. I do so in accordance with the principles and Rules to which I have previously referred, together with the following.

[78] The Rules must be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits: see r. 1.04(1) of the Rules. When an affidavit relied upon in support of a motion for summary judgment does not state the source of the information and the fact of the deponent’s belief, the court may, nevertheless, rely upon the substance of the exhibits to the affidavit in evaluating the merits of the applicant’s case: see Carevest Inc. v. North Tech Electronics Ltd., 2010 ONSC 1290, 103 O.R. (3d) 231 (Div. Ct.), at para. 16.

[79] In applying the principles stated above, I first observe that the majority of the statements that remain subject to the defendants’ admissibility challenge as “unsourced hearsay” do not begin with a refrain such as, “I am advised by [source] that...” prior to reciting the portion of the narrative contained in each of them. However, as Ms. Enns’ litigation guardian submits, many of the challenged portions of the affidavit are well-sourced in the voluminous documentation appended as exhibits to Ms. Stewart’s affidavit. Ms. Stewart also deposes to her belief in the truth of her averments that are sourced to anything outside her personal knowledge.

[80] Ultimately, I conclude that the majority of the remaining contested aspects of Ms. Stewart’s November 29, 2017 affidavit that are said to constitute “unsourced hearsay” ought not to be struck. I will explain my conclusion in that regard by referring to each specific aspect of the moving parties’ objections (lettered exhibit references relate to the exhibits to Ms. Stewart’s affidavit sworn November 29, 2017).

1. Paragraph 3 – the defendants challenge as unsourced hearsay, the averment that Ms. Enns was cognitively impaired secondary to her stroke. That position finds support not only in Ms. Enns’ evidence at Examination for Discovery, the entirety of which the moving parties themselves put into evidence (in which she deposes to significant post-stroke memory loss) but also Exhibits ‘N’, ‘DD’, ‘EE’, ‘PP’, ‘OO’, ‘SS’, ‘UU’, ‘XX’, ‘YY’, ‘AAA’, ‘GGG’, ‘TTT’, ‘WWW’, and ‘YYY’, among others. That aspect of the affidavit is not struck.

2. Paragraph 24 – the defendants object to the admissibility of evidence indicating that specified rehabilitation workers involved in Ms. Enns’ care believe that “she does not trust easily, resulting in social withdrawal and a lack of disclosure of information to her treatment providers and others.” However, those stated concerns are specifically endorsed by Ms. Enns’ treating occupational therapist (Ms. Bashak) and Ms. Enns’ treating speech and language pathologist (Ms. Dupuis) in reports that are filed as exhibits to Ms. Stewart’s affidavit. In addition, symptoms of social withdrawal were endorsed by Ms. Enns’ former treating psychiatrist in a report filed as Exhibit ‘KK’ at p. 381 of Ms. Stewart’s affidavit. This aspect of the affidavit is not struck.

3. Paragraph 27 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that after the accident Ms. Enns was unable to manage her own finances due to her impairments. However, the defendants do not expressly object to similar evidence contained in paragraph 29 of the affidavit, in which Ms. Stewart deposes that Ms. Enns’ sisters assisted her with her financial affairs for years after the accident. Further, Ms. Enns gave evidence at her Examination for Discovery that she required and received post-accident assistance with her financial affairs from her family members. This aspect of the affidavit is not struck.

4. Paragraph 27 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that “it appeared that Ms. Enns opened a joint bank account with one of her sisters or added her sister as a joint signatory to an existing bank account post-accident.” Ms. Enns provided evidence consistent with that proposition at her Examination for Discovery. Further, the impugned information is also set out in Exhibits ‘E’ (at pp. 230-231) and ‘EEE’ (at pp. 708-709) of Ms. Stewart’s affidavit. This aspect of the affidavit is not struck.

5. Paragraph 29 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that Ms. Enns’ sisters took money from her bank account, her home and/or her purse. They do not specifically challenge the portion of paragraph 29 indicating that Ms. Stewart was advised that Ms. Enns’ “sisters stole money from her on several occasions while assisting her with her financial affairs in the years following the accident.” Contextually, when the paragraph is read in full it is readily apparent that Ms. Enns is the source of the challenged information. Indeed, Ms. Enns gave evidence consistent with the challenged aspect of paragraph 29 of her Examination for Discovery. Further, similar information is set out in Exhibits “CCC” (p. 462), “FFF” (p. 469), “BBB” (pp. 625-626), and “EEEE” (pp. 708-709). This aspect of the affidavit is not struck.

6. Paragraph 32 – the defendants challenge as unsourced hearsay, Ms. Stewart’s summary of the injuries and impairments that Ms. Enns is said to have sustained as a result of the subject accident. The enumerated injuries and impairments appear to be excerpted from the substantial body of medical documentation adduced as evidence on the motion. However, the paragraph is drafted in the manner of a positive statement of fact as opposed to an expressed “summary” of medical documentation. This aspect of Ms. Stewart’s evidence is not admissible as “fact evidence”. Ultimately, it will be for the court to determine, based on primary evidence, the nature and extent of the injuries and impairments, if any, that Ms. Enns sustained as a result of the acts and/or omissions of the defendants. The challenged portion of paragraph 32 is admissible for the purpose of serving as a broad summary of the content of an otherwise extensive medical record, in order to put subsequent evidence to which Ms. Stewart deposes, in context. It does not serve as a substitute for the actual content of the exhibits as filed, which serve as the primary evidence of their content. Therefore, this aspect of the affidavit is not struck but it is only admissible for the limited purpose that I have identified.

7. Paragraph 40 – the defendants challenge as unsourced hearsay, Ms. Stewart’s averment that, “Although [Ms. Enns] signed [an] ODSP Self Report Form [in August of 2011], I am advised that the same was actually completed by her brother John....” However, the ODSP form itself (Exhibit ‘N’ at pp. 252-259) indicates that the form was completed by Ms. Enns’ brother John because Ms. Enns had suffered a stroke and was unable to write (see: p. 253, Question 1). This aspect of the affidavit is not struck.

8. Paragraph 53 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that although Ms. Enns does not dispute printing her name on an “OCF-3” insurance form, the handwriting on the document is not hers. The challenged aspect of the impugned paragraph is expressly offered in response to paragraph 12 of Mr. Cadden’s affidavit, in which he deposes, without further evidence, that in addition to signing the OCF-3 form, Ms. Enns also provided a description of the accident contained therein. In my view, it is clear when reviewing the identified OCF-3 form, that the “signature” attributed to Ms. Enns does not correspond to the handwriting that appears in the balance of the form, which is appended as Exhibit ‘X’ to Ms. Stewart’s affidavit (see: pp. 292-293). This is hardly surprising considering that the form was filled out on December 17, 2011, a time at which, as the uncontested medical evidence establishes, Ms. Enns’ dominant right arm was completely paralyzed. This aspect of the affidavit is not struck.

9. Paragraph 68 – the source of the contested information is expressly stated by Ms. Stewart to be Ms. Enns. This aspect of the affidavit is not struck.

10. Paragraph 69 – the defendants assert that Ms. Stewart’s evidence that: Ms. Enns’ first language is not English, rather it is German; Ms. Enns has limited formal education and limited literacy skills; and that post-stroke, Ms. Enns was reported to have been experiencing visual disturbances and cognitive deficits with reading and comprehension, is all unsourced hearsay. However, the exhibits appended to Ms. Stewart’s affidavit serve to source all of the foregoing aspects of her evidence. Specifically, Exhibit ‘T’ (p. 276 – “eighth grade or less education”), Exhibit ‘CC’ (p. 320 – Dr. Kiraly’s report from his psychiatric examination of Ms. Enns on February 9, 2012, “She states she has not been able to read since the accident due to difficulty concentrating”), Exhibits ‘II’, ‘OO’, ‘PP’ (pp. 392-401), and ‘BBBB’ (p. 626), combine to source the information to which Ms. Stewart deposes. Further, Ms. Enns herself deposed to much of the foregoing background information at her discovery. Ms. Stewart also specifically deposes that Ms. Enns herself advised her of her cognitive and comprehension difficulties. This aspect of the affidavit is not struck.

11. Paragraph 70 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that in April 2012, Ms. Enns was not managing her own finances. I have already concluded that that averment can be sourced to the exhibits appended to Ms. Stewart’s affidavit. However, Ms. Stewart goes on to depose that “as a result, it was unlikely that Ms. Enns was aware of her receipt of non-earner benefits in the amount of $185 per week, and even if she was it was doubtful that she would have understood their origin.” While I am mindful that a portion of Ms. Caverzan’s December 18, 2016 report concerning her assessment of Ms. Enns’ capacity to manage her own finances (Exhibit ‘EEEE’) touches on Ms. Enns’ potential lack of appreciation of her receipt of non-earner benefits, I am of the view that the second sentence of paragraph 70 of the affidavit ought to be struck. In that portion of her evidence, Ms. Stewart is engaged in both speculation and in identifying inferences which she asserts ought to be drawn from the available evidence. The former does not assist the court in reaching any factual determinations, in the context of the motion. The latter is appropriately the content of submissions, not an affidavit.

12. Paragraph 71 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that Ms. Enns did not know that periodic cheques that she received from her accident benefits insurer were for payment of non-earner benefits or that she was entitled to such benefits. However, Ms. Stewart expressly sources that information to Ms. Enns and her own discussions with Ms. Enns on October 21, 2016. This aspect of the affidavit is not struck.

13. Paragraph 154 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that during a meeting that she had with Ms. Enns on October 21,2016, together with Ms. Bashak and Ms. Dupuis, Ms. Enns was asked to read correspondence from her accident benefits carrier dated April 17, 2012. She attempted to do so and reported that after reading a few words her eyes began “spinning” and that she was “seeing triple”. On specific inquiry, Ms. Enns advised Ms. Stewart that those symptoms had been ongoing for approximately two years but she did not report them to her treating healthcare practitioners. The source of Ms. Stewart’s information in that regard is expressly identified in her affidavit as Ms. Enns herself, together with Ms. Stewart’s own observations and interactions with Ms. Enns on the subject date. This aspect of the affidavit is not struck.

14. Paragraph 155 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that she was advised by Ms. Enns that Ms. Enns did not recall receiving correspondence from her own insurer dated April 17, 2012 and if she had received it, she would not have read it. Ms. Enns is expressly identified as the source of the alleged unsourced information. This portion of the affidavit is not struck.

15. Paragraph 155 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that after unsuccessfully attempting to explain the content of the aforementioned April 17, 2012 correspondence to Ms. Enns, during their October 21, 2016 meeting, “it was clear to everyone in attendance [Ms. Stewart, Ms. Bashak and Ms. Dupuis] that [they] did not have a full appreciation and understanding of Ms. Enns’ struggles and impairments.” Ms. Stewart is capable of deposing to her own views in that regard and her impression of the views of Ms. Bashak and Ms. Dupuis that she formed as a result of their mutual attendance at the meeting. The latter of which can also be sourced to Exhibit ‘BBBB’ (p. 626). This aspect of the affidavit is not struck.

16. Paragraph 156 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence indicating that Ms. Enns’ driving privileges were suspended after her stroke, which is why various medical records indicate that she was accompanied to appointments by someone else. In response, Ms. Enns’ counsel submits that although Ms. Stewart’s affidavit inadvertently indicated that Ms. Enns’ driving privileges were suspended (apparently they were not), it remains she that did not drive for several years after her stroke. As a result, plaintiffs’ counsel acknowledges that the first two sentences of paragraph 156 of the November 29, 2017 affidavit are unintentionally inaccurate. They are struck on that basis.

17. Paragraph 156 – the defendants challenge as unsourced hearsay, Ms. Stewart’s evidence that she was advised by Ms. Enns that Ms. Enns often did not understand what she was being told by doctors upon whom she had historically attended, but she did not advise them of her inability to understand them, because she was embarrassed. The impugned evidence is sourced directly to Ms. Enns. This aspect of the affidavit is not struck.

18. Paragraph 159 – the defendants object to Ms. Stewart’s evidence that Ms. Enns advised her that she never filed her own Income Tax returns and she does not know how to complete such returns. Ms. Stewart further deposes that Ms. Enns advised her that she brings her documentation to an accountant who completes the returns and electronically submits them on her behalf. This is not unsourced hearsay. Ms. Enns is expressly identified as the source of the information to which Ms. Stewart deposes. This aspect of the affidavit is not struck.

[81] I will now address the defendants’ objection to the admissibility of aspects of Ms. Stewart’s November 29, 2017 affidavit on the basis that they contain unqualified opinion, speculation and/or argument. In my view, the following aspects of Ms. Stewart’s affidavit are inadmissible and are accordingly struck:

1. Paragraph 24 – the first sentence of paragraph 24 in which Ms. Stewart states, “[Ms. Enns’] Rehab workers Kelly Bashak, Sara[h] Dupuis and Psychologist Brenda Davies [sic], along with myself, verily believe that due to the abuse and betrayal to which [Ms. Enns] was subject at the hands of those closest to her, as well as the removal of her children by the CAS, she does not trust easily.” As I have stated above, there is documentary evidence that supports the contention that Ms. Enns has reported having “trust” issues. However, in this aspect of her affidavit, Ms. Stewart offers her opinion with respect to a causal connection between certain of Ms. Enns’ historical circumstances and her documented reports of “trust” issues. There is no evidence establishing that Ms. Stewart is qualified to render such an opinion.

2. Paragraph 28 – the second sentence of paragraph 28 of Ms. Stewart’s affidavit is struck, on consent. It provides, “Given her cognitive state in October of 2011, approximately 3 months after her stroke, it is unlikely that “Ms. Enns” understood the meaning and/or appreciated the consequences of signing said bank documents.”

3. Paragraph 29 – the second last sentence of paragraph 29 of Ms. Stewart’s affidavit is struck. It provides “Due to [Ms. Enns’] cognitive deficits post-MVA, it appears she was unable to comprehend the risks associated with keeping significant amounts of cash in her purse or home.” To the extent this aspect of her evidence constitutes Ms. Stewart’s opinion concerning Ms. Enns’ cognitive ability to appreciate a specified risk, there is no evidence that she is qualified to render such an opinion. To the extent that this aspect of Ms. Stewart’s evidence constitutes the identification of a reasonable inference that may be drawn from other available evidence on the motion, the court is equipped to identify that available inference on its own, without assistance from counsel. Her evidence in that regard is appropriately the subject of submissions.

4. Paragraph 69 – the second sentence of paragraph 69 is struck. In that sentence, Ms. Stewart offers her view with respect to what she believes to be a reasonable inference concerning Ms. Enns’ ability to read, comprehend and appreciate the content of her accident benefits insurer’s correspondence of April 17, 2012. It is for the court to determine what inferences are reasonably available from the evidence and whether they should be drawn in the context of the totality of the evidence. As a result, this aspect of Ms. Stewart’s evidence has no probative value, and is instead appropriately the subject of submissions.

5. Paragraph 70 – the second sentence of paragraph 70 is struck. In this aspect of her affidavit, Ms. Stewart deposes to the “likelihood” that Ms. Enns was aware of and/or appreciated the basis for certain payments made to her by her accident benefits carrier. For the same reasons set out immediately above, this aspect of her evidence has no probative value, and is properly the subject matter of submissions.

6. Paragraph 159 – the third sentence of paragraph 159 in which Ms. Stewart deposes, “Given her lack of education and cognitive deficits after her stroke, it is unreasonable to think that [Ms. Enns] was capable of completing and electronically filing her own tax returns”, is struck. In arriving at that conclusion, I am mindful that Ms. Stewart was specifically responding to paragraph 26 of Mr. Cadden’s affidavit in which he asserts that Ms. Enns completed her own tax returns on an annual basis, post-stroke. However, the determination of the reasonableness of that assertion falls within the purview of the trier of fact. As a result, Ms. Stewart’s evidence on the point has no probative value. It is properly the subject matter of submissions.

[82] I decline to strike the following aspects of Ms. Stewart’s affidavit:

1. Paragraph 53 – Ms. Stewart’s observation that there is evidence Ms. Enns did not complete an OCF-3 disability certificate on her own in December 2011. I have dealt with this aspect of her evidence previously. The content of the OCF-3 document itself indicates that it was completed by someone other than Ms. Enns. Further, the handwriting used to complete the document clearly and markedly differs from the “signature” attributed to Ms. Enns. Those conclusions can be reached on the face of the record without resort to “expert handwriting analysis”.

2. Paragraph 84 – I decline to strike Ms. Stewart’s evidence at paragraph 84, in which she indicates that based on her review of Ms. Enns’ accident benefits insurer’s file, no steps were taken to implement/conduct the recommended treatment, assistive devices, or the cognitive communication assessment endorsed by occupational therapist Matt Sutherland in a treatment plan, dated November 14, 2012. While the defendants objected to this evidence, it appears to involve a non-contentious fact. A complete copy of Ms. Enns’ accident benefit insurer’s file was not adduced in evidence before me (I infer from the record that the contents of that file would be quite extensive). The defendants have not adduced any evidence suggesting that Ms. Stewart’s description of the results of her review of the file, as it relates to the apparent lack of action taken in respect of Mr. Sutherland’s treatment plan, is false, inaccurate, misleading, or incomplete. In that context, this aspect of Ms. Stewart’s evidence is a much more efficient method by which to establish that proposition than filing a complete copy of the accident benefit insurer’s file, in order to evidence a specific period of “inaction”.

3. Paragraph 169 – I decline to strike any aspect of paragraph 169 of Ms. Stewart’s affidavit, in which she deposes to her belief that: Ms. Enns could not have appreciated the fact that her stroke suffered one month after the accident was causally connected to the accident; Ms. Enns could not read or understand the contents of her insurer’s April 2012 correspondence; and Ms. Enns was not aware that she could commence legal proceedings against the driver who injured her until at least her second appointment with Ms. Stewart in the spring of 2015. The foregoing evidence is admissible as evidence of Ms. Stewart’s belief, only. It remains that the determination of each of the issues to which she has expressed her “belief” must ultimately be determined by the court. When that occurs, it may very well be that little, if any, weight is afforded to Ms. Stewart’s stated beliefs in respect of the foregoing.

(iii) The Plaintiffs’ Challenges to the Evidence Adduced on Behalf of the Defendants

[83] I will now address Ms. Enns’ objections to the admissibility of certain aspects of Mr. Cadden’s affidavit sworn September 14, 2016, on the basis that they amount to inadmissible opinions, arguments, or unsourced hearsay.

[84] At paragraph 11 of his affidavit, Mr. Cadden avers, in part, “On December 17, 2011, [Ms. Enns] completed and submitted to her own Automobile Insurer Intact Insurance Company an Application for Accident Benefits in which she signed the Application dated December 17, 2011. In addition, she signed the Permission to Disclose Health Information Form (OCF5) on December 17, 2011.” He then identifies and attaches as an exhibit (Exhibit ‘G’) to his affidavit, a copy of an Application for Accident Benefits and OCF-5 form dated December 17, 2011. I have previously commented on the application for accident benefits above. In its body, the document contains a form of handwriting that is entirely distinct from the signature attributed to Ms. Enns, which is found on page 7 of the document. Mr. Cadden does not identify the source of his belief that the document was “completed” by Ms. Enns and that fact is not evidenced by the document itself. As a result, I am persuaded that the phrase “completed and” as set out in the foregoing portion of paragraph 11 ought to be struck.

[85] In paragraph 12 of his affidavit, Mr. Cadden identifies and attaches as an exhibit (Exhibit ‘H’) to his affidavit, a copy of a disability certificate (OCF-3) completed by Ms. Enns’ family physician, Dr. Leung, on January 4, 2012. In the last sentence of paragraph 12 of his affidavit, Mr. Cadden states, “It is noted at page 2 of the OCF3 Disability Certificate that a description of the accident is provided by the Plaintiff in the first person and she signed the signature of Applicant on December 17, 2012 [sic].” Mr. Cadden does not state the source of his belief that Ms. Enns “provided” the first person narrative with respect to the accident set out in the OCF-3 disability certificate. The handwriting in that portion of the certificate is patently and markedly different than Ms. Enns’ ostensible signature located at page 2. Therefore, I am persuaded that the phrase, “...a description of the accident is provided by the Plaintiff in the first person and...” ought to be struck from the last sentence of paragraph 12.

[86] In paragraph 25 of his affidavit, Mr. Cadden recounts the content of a record created by Ms. Enns’ treating physiatrist, Dr. Liem, on September 20, 2012. Mr. Cadden then states in part, “Dr. Liem noted that [Ms. Enns] was interested in pursuing injections of Botulinum toxin for medical treatment. Dr. Liem was able to discuss the pros and cons as well as the risks of the Botox. On that date, [Ms. Enns] was able to make the election to proceed forward with that treatment.” The plaintiffs object to the admissibility of the last sentence set out above. However, the source of Mr. Cadden’s belief in that information is evident on the face of the record to which he refers. Dr. Liem’s clinical notes and records are appended as an exhibit to Mr. Cadden’s affidavit. In her September 20, 2012 record, Dr. Liem states, among other things, “I have discussed pros and cons as well as risks of the Botox. She elected to proceed.” I therefore decline to strike any aspect of paragraph 25 of Mr. Cadden’s affidavit.

[87] Finally, at paragraph 26 of his affidavit, Mr. Cadden identifies and appends as exhibits, Ms. Enns’ income tax returns for the years 2009 to 2015, inclusive. He further states, “The income tax returns are all filed in April of the appropriate year and appear to show that [Ms. Enns] reported her own tax returns.” The actual income tax returns do not expressly state that they were completed and filed personally by Ms. Enns. Indeed, they do not indicate on their face that they were prepared or filed by any specific person. Mr. Cadden does not explain the basis for his belief that the tax returns “appear to show” that Ms. Enns “reported her own tax returns”. To the extent that the defendants submit that such an inference can be reasonably drawn from the content of the documents themselves, it is properly a matter for submission. As a result, the last sentence of paragraph 26 of Mr. Cadden’s affidavit is struck.

[88] With the scope of the evidentiary record determined, I will now summarize the evidence before me.

The Admissible Evidence Adduced by the Moving Parties

(i) Mr. Cadden’s Affidavit

[89] In support of their motion, the moving parties have delivered an affidavit sworn by Mr. Cadden to which he appends post-accident medical and other documentation concerning Ms. Enns. Mr. Cadden also appends to his affidavit as an exhibit, the complete transcript of Ms. Enns’ Examination for Discovery, which was conducted on February 11, 2016.

[90] Mr. Cadden recounts that the action arises out of a motor vehicle accident that occurred on June 10, 2011. Following the accident, Ms. Enns attended at Leamington District Memorial Hospital on June 10 and June 11, 2011. She was diagnosed with “extensive soft tissue bruises” on June 10 and “cervical strain” on June 11, 2011.

(ii) Dr. Jeun’s Report Dated June 30, 2011

[91] Eventually, Ms. Enns was referred by her family physician to a neurologist, Dr. B. Jeun, whom she saw on June 30, 2011. At that time, she presented with complaints of pain over her back, with numbness about her right lower face region and her hands and feet. She also endorsed functional restrictions, secondary to her pain. Based on Ms. Enns’ reported post-accident history and the neurological findings that he elicited on her examination, Dr. Jeun diagnosed Ms. Enns with posterior neck, posterior shoulder girdle, thoracic wall and lumbar “myofascia strain pain syndrome”, bilaterally. He opined that her condition was related to the accident. He also endorsed that she suffered a cerebral concussion as a result of the accident.

(iii) Dr. Desai’s Report Dated July 10, 2011

[92] Mr. Cadden then deposes that Ms. Enns was assessed by neurologist, Dr. Hiren Desai, on July 10, 2011, secondary to a stroke that she suffered that day. Dr. Desai obtained a history from Ms. Enns’ sister because Ms. Enns could not speak, as a result of the stroke. Her sister reported that Ms. Enns had a heart murmur since birth and that she had been having “seizures” and was under the care of Dr. Jeun. Dr. Desai opined that Ms. Enns appeared to have had a completed stroke with gradual evolution of two or different episodes. A CT scan of her brain, on admission to hospital, was unremarkable. An MRI of her brain and other investigations were arranged. Consultations with therapeutic services, including physiotherapy, speech therapy, and occupational therapy would be arranged.

(iv) Dr. Chetty’s Report Dated November 23, 2011

[93] Mr. Cadden then identifies a consultation report of cardiologist, Dr. R. M. Chetty, dated November 23, 2011, which is addressed to Ms. Enns’ family physician. In the report, Dr. Chetty records that he originally saw Ms. Enns when she was admitted to hospital, post-stroke. At that time, she presented with fairly extensive right paraplegia. Based on the results of an echocardiogram investigation, Dr. Chetty diagnosed Ms. Enns with a “fairly significant aortic stenosis”. However, he did not feel that anything could be done in that regard because Ms. Enns had recently suffered a “fairly extensive stroke”. He endorsed that rehabilitative efforts should be concentrated on musculoskeletal recovery from her stroke. He requested that Dr. Leung assist in arranging for physiotherapy in that regard.

(v) The Application for Accident Benefits

[94] Mr. Cadden next identifies an Application for Accident Benefits, dated December 17, 2011 (approximately six months after the accident and five months after the stroke), ostensibly bearing Ms. Enns’ “signature”. The balance of the handwriting in the application substantially differs from its signature. The application discloses, among other things, the following:

1. Ms. Enns was born on July 6, 1963.

2. Ms. Enns’ is separated.

3. Prior to the accident, Ms. Enns was unemployed.

4. Prior to the accident, Ms. Enns was the primary caregiver for her daughter, Susie, born January 31, 2000 (the co-plaintiff).

5. Ms. Enns sustained injuries in the accident that prevent her from performing the caregiving activities that she did prior to the accident. The response, “I don’t remember” is recorded in a space marked “Explanation” in that regard.

6. In a space marked “Give a brief description of the accident. If you suffered any injuries as a result of the accident, describe the cause and extent of the injuries”, the following response is recorded: “I was driving. The other car ran stop sign. My injuries were memory issues, headaches, numbness, pain and sore, mouth bleeding, two loose teeth. Pain all over.” The stroke is not listed.

(vi) Dr. Leung’s Disability Certificate - January 4, 2012

[95] In furtherance of Ms. Enns’ application for accident benefits, her family physician, Dr. Leung, completed a disability certificate dated January 4, 2012. Dr. Leung endorsed that Ms. Enns suffered: (1) a cervical musculoligamentous strain; (2) a shoulder girdle musculoligamentous strain; and (3) a lumbar musculoligamentous strain, “from MVA June 10”. He also endorsed that Ms. Enns suffered a cerebrovascular accident (CVA) on July 10, 2011 causing right-sided paralysis. He did not specifically relate the stroke to the accident.

[96] There is no evidence Ms. Enns was contemporaneously provided with a copy of the completed disability certificate.

[97] In response to pre-printed questions set out on the disability certificate form, Dr. Leung also endorsed that Ms. Enns suffered a complete inability to carry on a normal life (i.e. she sustained an impairment that continuously prevented her from engaging in substantially all the activities in which she ordinarily engaged before the accident). He also endorsed that Ms. Enns suffered a substantial inability to engage in the caregiving activities in which she engaged in, at the time of the accident and that she suffered a substantial inability to perform the housekeeping and home maintenance services that she normally performed before the accident. None of the foregoing questions, to which Dr. Leung responded in the affirmative, specifically inquired as to whether the identified “substantial inabilities” resulted from the accident.

[98] In contrast to the foregoing questions, other aspects of the disability certificate are embedded with impairment based causation questions. For example, “Is the applicant substantially unable to perform the essential tasks of his/her employment at the time of the accident as a result of and within 104 weeks of the accident?”; and “Is the applicant, as a result of the accident, unable to continue in an...education program that the applicant was enrolled in at the time of the accident?”

[99] Dr. Leung opined that the “functional disabilities” that he endorsed were expected to last more than 12 weeks because Ms. Enns had not recovered from pain in her neck and back and she had not recovered from her stroke. She still presented with right-sided hemiparesis (paralysis) and speech deficit. Further examinations and investigations were required. Finally, Dr. Leung endorsed that Ms. Enns did not suffer from any pre-accident condition or injury that affected her ability to perform the activities that were the subject of her identified “substantial inabilities” and that since the accident she had developed a condition or injury not related to the accident that could affect her disability, specifically noting in that regard that the “stroke occurred on July 10, 2011”.

[100] In response to inquiries made by Ms. Enns’ accident benefits carrier, Dr. Leung provided further correspondence on January 24, 2012, confirming Ms. Enns’ stroke was not caused by the subject accident. He also opined that Ms. Enns suffered a complete inability to carry on a normal life as a result of her accident related injuries and impairments and the sequelae of her stroke.

(vii) Medical Examinations Arranged by Ms. Enns’ Own Insurer – Reports Dated April 2012

[101] In February and March of 2012, Ms. Enns underwent multi-disciplinary assessments at the request of her accident benefits insurer to determine whether she was entitled to a “non-earner benefit” as a result of the accident. Mr. Cadden extracts the following information from the reports authored by the respective assessors (which I will more fully detail later in these reasons):

1. An executive summary report authored by Medical Director Doug Friars, dated April 16, 2012, disclosed that from a neurological perspective, Ms. Enns suffered a complete inability to carry on a normal life as a result of the accident.

2. Dr. Leslie Kiraly conducted a psychiatric examination of Ms. Enns on February 20, 2012. He endorsed that Ms. Enns was aware of the nature of the assessment and signed a consent in respect of same. Mr. Cadden avers that Ms. Enns provided Dr. Kiraly with details concerning the nature of the accident and the nature of her ongoing disabilities. On examination, Dr. Kiraly found that Ms. Enns’ cognitive functions were grossly intact. He opined that from a psychiatric perspective she did not suffer a complete inability to carry on a normal life, as a direct result of the accident. He diagnosed Ms. Enns as suffering from a major depressive disorder; pain disorder due to both psychological factors and a general medical condition; obsessive compulsive traits; hypertension, heart ailments and stroke; stress due to the loss of health and role functions; and with a GAF of 50.

3. In his report dated April 13, 2012, neurologist, Dr. Meloff, recorded that Ms. Enns presented with impaired expressive language (aphasia) but had good comprehension. He further opined that from a neurological perspective, Ms. Enns suffered a complete inability to carry on a normal life as a result of the subject accident and made the following “diagnosis”: “Motor vehicle accident with deployed airbags compressing chest and/or neck vessels aggravating pre-existing cardiac and carotid disease and leading to an undiagnosed transient ischemic attack followed by a stroke in evolution, with permanent residual neurological impairment including a spastic right hemiparesis and aphasia. I suspect the mechanisms of the stroke was the release of an embolus either from her heart or from the left carotid artery.”

4. Mr. Cadden does not refer to an orthopaedic assessment conducted by Dr. Bartol, which was part of the insurer’s multi-disciplinary assessment package.

[102] Mr. Cadden deposes that by letter dated April 17, 2012, Ms. Enns’ accident benefits insurer wrote to her advising her that based on its examinations, she was eligible to receive a Non-Earner Benefit. That correspondence was ostensibly accompanied by an “Explanation of Benefits” form dated April 17, 2012 which indicated, among other things, that in accordance with insurer examinations, Ms. Enns met the test of “complete inability to carry on a normal life due to injuries sustained” in the accident. As a result, she was eligible to receive a benefit of $185 per week, commencing December 10, 2011. Ms. Enns was also provided with a cheque in the amount of $3,515 for retroactive benefits for the period of December 10, 2011 to April 21, 2012.

(viii) Dr. Chetty’s Consultation Report Dated July 9, 2012

[103] Next, Mr. Cadden refers to a consultation report from cardiologist Dr. Chetty to Dr. Leung, dated July 9, 2012. In the course of his report, Dr. Chetty relates a narrative summary sourced to Ms. Enns concerning: Ms. Enns’ progress and rehabilitation; and her current symptoms (right arm is still completely paralyzed and she has issues with some word finding); and level of function.

(ix) Dr. Liem’s Clinical Notes and Records

[104] Mr. Cadden also attaches as an exhibit to his affidavit, the complete records of Ms. Enns’ treating physiatrist, Dr. Liem, made in the period between July 10, 2011 and May 9, 2016. Mr. Cadden indicates that the records do not indicate that Ms. Enns presented on Dr. Liem with a “lack of capacity” nor “an inability” to: communicate properly; speak; or attend sessions with the doctor. Mr. Cadden observes that on December 19, 2011, Dr. Liem recorded that Ms. Enns was discharged home from the Windsor Regional Hospital Rehabilitation Program on September 17, 2011. On discharge, Dr. Liem states that Ms. Enns was able to independently complete her activities of daily living. Dr. Liem’s record dated September 20, 2012, indicates that on that date Ms. Enns expressed an interest in pursuing injections of Botox into her right fingers. Dr. Liem records that she discussed the pros and cons and risks of such treatment with her, and she elected to proceed. Subsequently, Ms. Enns attended on Dr. Liem (or one of her colleagues) for Botox injections on a once every three month schedule over the period of October 30, 2012 to March 2, 2016.

(x) Ms. Enns’ Tax Returns: 2009 - 2015

[105] Mr. Cadden also identifies and appends to his affidavit a copy of Ms. Enns’ income tax returns for the period of 2009 to 2015, inclusive. In the two years prior to the accident (2009 and 2010), Ms. Enns’ annual earnings totalled slightly in excess of $7,000, which consisted of social assistance payments. Post-accident, her annual income totalled in a range between $12,000 and $14,000, which similarly consisted of social assistance payments.

(xi) The Transcript of Ms. Enns’ Examination for Discovery

[106] Finally, Mr. Cadden appends to his affidavit a complete copy of the transcript of Ms. Enns’ Examination for Discovery and specifically quotes an exchange from counsel concerning the basis for Ms. Enns’ commencement of this proceeding more than two years after the subject accident (set out at pp. 114 to 116 – Q. 810). During that exchange, plaintiffs’ counsel indicated that the date upon which Ms. Enns “discovered or ought to have discovered her claim” was the date that plaintiffs’ counsel became aware of information that Ms. Enns’ post-stroke condition was causally connected to the accident and, therefore, she had a valid claim. Plaintiffs’ counsel did not provide a specific date in that regard. Rather, she stated that the date occurred in “April-ish” of 2015.

[107] Similar to Mr. Cadden, Ms. Stewart has also appended the transcript of Ms. Enns’ Examination for Discovery as an exhibit to one of her affidavits and the plaintiffs rely on its content on this motion.

[108] Generally, pursuant to r. 39.04(2) of the Rules, on a motion a party may not use in evidence, the party’s own Examination for Discovery, unless the other parties consent. Rule 39.04(2) applies to all motions, including motions for summary judgment: see Lana International Ltd. v. Menasco Aerospace Ltd. (2000), 2000 16845 (ON CA), 50 O.R. (3d) 97 (C.A.), at para. 18. Generally, if a party was permitted to rely on his or her own discovery evidence as evidence on a motion, the party would be shielded from full cross-examination because r. 31.06(1)(b) of the Rules prohibits cross-examination directed solely to the credibility of the deponent at an examination for discovery.

[109] Pursuant to r. 39.04(1) of the Rules, a party, on a motion, is permitted to use in evidence an adverse party’s Examination for Discovery. Rule 39.04(1) of the Rules adopts r. 31.11 (Use of Discovery at Trial) in its application, with necessary modifications. Rule 31.11(1) permits a party at the trial of an action to read into evidence as part of the party’s own case against an adverse party, any part of the evidence given on the discovery of the adverse party, provided that the evidence is otherwise admissible.

[110] In this instance, the defendants have filed the entire transcript of Ms. Enns’ Examination for Discovery and they have referenced other aspects of that transcript than the one specifically averred to by Mr. Cadden, during their submissions on this motion. Further, the defendants filed Ms. Enns’ Examination for Discovery transcript without a clear statement that they only intended to rely on certain portions of it. Therefore, it was reasonably open to the responding parties (plaintiffs) to operate on the assumption that the entire transcript was in evidence as part of the moving parties’ record and to take that into consideration in determining the contents of the responding party’s record. As a result of the foregoing, the entire filed transcript became part of the record available for use on the motion, by any of the parties, in the same manner as any other evidence: see Lawless v. Anderson, 2010 ONSC 2723, at para. 14, and Pereira v. Contardo, 2014 ONSC 6894, 123 O.R. (3d) 271 (Div. Ct.), at paras. 40-45.

[111] For the foregoing reasons, Ms. Enns’ litigation guardian may rely on Ms. Enns’ own Examination for Discovery evidence in response to the defendants’ summary judgment motion. In doing so, Ms. Enns’ litigation guardian generally relies on that aspect of the evidence to establish and/or confirm: Ms. Enns’ inability to recall details about her living arrangements at the time of her discovery; her difficulty comprehending certain questions posed to her at her discovery; her post-stroke communicative difficulties and her difficulty describing them during her Examination for Discovery; her inability to respond accurately to questions about her education; the memory impairments that she experiences post-stroke; her inability to recall attending on pre-accident and post-accident psychiatric/psychological healthcare service providers; her inability to recall most of the events in the time period beginning with her stroke in July 2010 and lasting until approximately February 2015; her confirmation that her writing does not appear on the disability certificate completed in December 2011; her inability to recall ever speaking with anyone from her own insurance company; and her inability to recall that she actually maintained her bank accounts at TD Canada Trust rather than the Bank of Montreal.

[112] In my view, the transcript of Ms. Enns’ evidence at her Examination for Discovery illustrates that she reported difficulties recalling information on a wide array of subjects and it further indicates the following:

1. Ms. Enns could not recall her residential address.

2. Ms. Enns has five children, the youngest of which is Ms. Enns’ co-plaintiff. Ms. Enns denied that her youngest daughter was residing with her at the time of the subject accident (although other evidence indicates that she was residing with her at that time).

3. Ms. Enns returned to driving a vehicle approximately four years after her stroke (i.e. 2015) (other evidence indicates she did so two years post-stroke).

4. One of Ms. Enns’ sisters managed her finances for approximately three years after her stroke. Ms. Enns believed she was able to independently do her own banking beginning in approximately February of 2014 (other evidence contradicts that belief and suggests that she remained unable to do so).

5. Ms. Enns has been separated from her husband for approximately 16 years. Prior to the accident, she had a boyfriend whom she saw two to three times per week. After the accident, he continued to visit her approximately two to three times per week because she could not leave her residence. They were not intimate after the accident. He passed away approximately three years before her Examination for Discovery.

6. Ms. Enns was born in Mexico. She is a Mennonite. She has a Grade 8 education, with some of her schooling taking place in Mexico. She was last employed, as a labourer, in approximately 2008. She does not know why she stopped working before the accident.

7. Ms. Enns initially denied making an application for ODSP benefits prior to the accident (although documentary evidence filed on the motion confirms that she did). Later in her evidence she recalled that she made an application for ODSP benefits before the accident but she could not recall the reason that she did so. She does not know why Dr. Leung endorsed physical restrictions for her in March 2010 (before the accident). Ms. Enns did not initially recall that she was a patient of psychiatrist, Dr. Rai in 2008. Later, in her Examination, she agreed that she saw Dr. Rai for depression until 2014 (when he passed away) and that she also saw him before the accident for “depression”. She acknowledged that she had pre-accident symptoms of depression, which had been ongoing since 1990 and were attributable to the conduct of her estranged husband. She did not recall being diagnosed as being “unfit for work” or having trouble maintaining a job prior to the accident.

8. Ms. Enns did not know the source of her income at the time of the accident but subsequently agreed that it consisted of “welfare” payments.

9. Ms. Enns did not have a specific recollection of the accident or what she did immediately prior to it. She simply recalls seeing another car coming and then blacking out and waking up in hospital.

10. When Ms. Enns first woke up in hospital post-accident, she was in discomfort, primarily with back pain. She was able to describe, in some detail, how she got home from the hospital on the day of the accident. She returned to hospital the following day with complaints of pain and was prescribed medication. Ms. Enns does not recall her appointments with Dr. Leung after the accident nor attending on neurologist Dr. Jeun at the end of June, 2011. She stated that she did not recall attending on psychiatrist Dr. Rai after the accident (although earlier in her evidence she agreed that she had done so). She specifically stated, “I don’t remember much about anything”.

11. Ms. Enns did recall the day that she suffered her stroke. She was at Tim Hortons with her daughter. She was able to recount some of the details of the events that immediately preceded the stroke, and concluded, “Then, everything went black.” Ms. Enns does “not remember much after the stroke” until approximately one year prior to her Examination for Discovery.

12. As a result of her stroke, Ms. Enns suffers from ongoing right-sided pain that varies in intensity. Her back pain is now worse than it was prior to the accident. She experiences neck pain approximately five times a week. She suffers from migraine headaches, which have become worse since her stroke. She uses a cane to walk. She could not speak for three years.

13. Ms. Enns has no recollection that following her stroke she was hospitalized until September 17, 2011. She has no recollection of the treatment she received after her stroke. She did not contact a lawyer while she was in hospital. She does not know if she went home or to some other facility when she was discharged from hospital in September of 2011. She recalls that someone came to her house to provide care services and she told the person that she did not want anyone there.

14. Ms. Enns has no recollection of attending on Dr. Leung in September 2011, nor how she got to his office in Windsor from her home in Leamington, Ontario. She does not recall ever attending on cardiologist Dr. Chetty or being advised that she suffers from aortic stenosis.

15. Ms. Enns denies that her handwriting appears on her initial application for accident benefits that was completed in December 2011. She does not know if someone helped her fill it in. She did not meet with a lawyer to complete her accident benefits application.

16. Ms. Enns agrees that she saw physiatrist Dr. Liem every three months for botox injections in her right hand, which provided her with some therapeutic benefit. She does not know who brought her to her appointments with Dr. Liem.

17. As at the time of her Examination for Discovery, Ms. Enns attended on speech and language pathologist Sarah Dupuis once a week; psychologist Dr. Brenda Davie two times a month; a physiotherapist two times a week; and occupational therapist Kelly Bashak one to two times a week. She was unable to articulate the purpose of her attendances with Ms. Bashak.

18. Ms. Enns has no recollection of being approved for Non-Earner Benefits by her accident benefits insurer, but she believed that she was receiving $1,400 per month from her insurer. She is not certain who initiated an application to determine if she was catastrophically impaired in October of 2014.

19. Ms. Enns sleeps less than four hours per night. The balance of the day she: “just sits there”; tries to engage in a little exercise; goes “for a little walk”; attempts to clean her house; and goes to Walmart for a little bit. Ms. Enns’ daughter, Susie, prepares all their meals and does their grocery shopping. Ms. Enns cleans the downstairs of her home and Susie cleans the upstairs.

20. Ms. Enns does not know when she first consulted a lawyer with respect to her claim against the defendants. Her counsel, Ms. Stewart, then advised: that she first saw Ms. Enns in January 2015 and that Ms. Enns had not seen a lawyer before that time; Ms. Enns did not have a copy of her accident benefits file when she initially attended on Ms. Stewart; Ms. Stewart had to obtain that documentation directly from Ms. Enns’ own insurer; Ms. Stewart did not appreciate that Ms. Enns’ stroke was potentially connected to the accident until she received a copy of that file in or about April of 2015.

21. Ms. Enns testified that at the time of her discovery, she independently did her own banking, although she could not recall the name of her bank. She ultimately, albeit incorrectly, agreed that it was the Bank of Montreal, when that institution was specifically put to her. Ms. Enns attends her bank once a month. Ms. Stewart advised defence counsel that there was a concern about Ms. Enns’ ability to engage in her own banking activities and indicated that she intended to have Ms. Enns assessed with respect to her capacity to manage her own financial affairs.

Evidence Adduced on Behalf of the Plaintiffs

(i) Ms. Stewart’s Affidavit Evidence

[113] In addition to Ms. Enns’ evidence at her Examination for Discovery, her litigation guardian relies on Ms. Stewart’s evidence with respect to her interactions with Ms. Enns and information that she has received from Ms. Enns, as well as, the content of an extensive body of medical documentation that was not referred to by Mr. Cadden in his affidavit, in order to establish the nature and severity of Ms. Enns’ observed and reported psychological, cognitive and physical impairments and dysfunction that are asserted to have been operable since the accident and/or the stroke. Those symptoms are said to be superimposed on Ms. Enns’ symptomatic pre-accident history of psychiatric/psychological conditions and other contextual circumstances that rendered Ms. Enns “vulnerable”, at the time of – and after – the accident.

[114] In that regard, Ms. Stewart deposes that Ms. Enns was born in Mexico to Mennonite parents and her first language is Low German. She is right-hand dominant. She came to Canada when she was approximately three years old and returned to Mexico when she was nine years old. She then returned to Canada at the approximate age of 12 years old. Her pre-accident vocational experience primarily consisted of working on farms and in greenhouses.

[115] Ms. Stewart testified that she was advised by Ms. Enns that she married her husband at a young age. Together they have five children. Ms. Enns advised Ms. Stewart that her husband was physically and sexually abusive towards her during the relationship and that he also abused their children. As a result, the children were ultimately apprehended by the Children’s Aid Society and apart from their youngest daughter, Susie, they were all made Crown wards and ultimately adopted. Ms. Enns’ husband was said to have been charged criminally with respect to his conduct towards both her and their children, but he fled to Mexico. He returned to Canada in approximately 2015 and eventually assaulted Ms. Enns, for which he was ultimately charged, convicted, and incarcerated.

(ii) The Available Pre-Accident Medical Documentation Concerning Ms. Enns

[116] On May 25, 2010, psychiatrist, Dr. Rai, completed a “Health Status Report” in support of an application for ODSP benefits made on behalf of Ms. Enns. In his report, Dr. Rai indicated that Ms. Enns had been his patient since December of 2008 and that he had seen her approximately six to ten times, dating back to May 2009. He diagnosed Ms. Enns as suffering from depression, and a schizoaffective disorder, and he queried a bi-polar disorder. At the time of his report, Ms. Enns’ symptoms included: a depressed mood “on and off”; decreased attention/concentration and energy; sleep disturbance; frequent crying spells; racing thoughts; and at times increased energy. He endorsed that she had been depressed on and off since 1990 and she had been unable “to hold a job”. She presented with decreased attention and concentration, variable mood states and unpredictability. Her symptoms were continuous and expected to last for more than a year. She was taking prescribed medication for both depression and schizoaffective disorder.

(iii) The Accident and Acute Symptoms Thereafter

[117] The documentation filed by the parties does not include a copy of a motor vehicle accident report with respect to the accident or an ambulance call report with respect to Ms. Enns. However, other documentation suggests that she was transported to hospital by ambulance post-accident.

[118] An Emergency Room record from Leamington District Memorial Hospital, dated June 10, 2011, records that Ms. Enns drove a vehicle that collided with another vehicle in a “t-bone fashion”. X-rays of her cervical and lumbar spine did not reveal a fracture. She was diagnosed with soft tissue injuries and discharged with a prescription for Tylenol 3. Ms. Enns returned to hospital on June 11, 2010. She was diagnosed with cervical strain and prescribed Naproxen and Oxycocet.

[119] On a referral from her family physician, Ms. Enns attended on neurologist Dr. Jeun on June 30, 2011, secondary to complaints of pain over her entire back since the accident. She also reported numbness in her right lower face, her hands and the bottom of her feet. Dr. Jeun recorded that she reported that her air bag deployed in the collision and she “was unconscious for a few hours”. She woke up in hospital. She reported that she was unable to do the “normal things that she used to do because it was too painful when she tried to bend down.” She denied any impairment of her vision, hearing or speech. Dr. Jeun’s diagnosis has been previously set out above. He recommended that Ms. Enns complete short term use of Naproxen for myofacial pain and he arranged to follow up with her two weeks later. Her stroke intervened.

(iv) Ms. Enns’ Acute Post-Stroke Assessments and Condition

[120] Following her stroke, Ms. Enns was admitted to Hotel Dieu Grace Hospital in Windsor, Ontario, where she was assessed by a neurologist, Dr. Desai. In a consultation report dated July 10, 2011, Dr. Desai indicates that owing to Ms. Enns’ aphasia, he obtained a history from her sister. On examination, Ms. Enns presented with dense aphasia, poor comprehension, and perseveration. She also presented with dense right upper paralysis and a loss of all right upper extremity strength, and reduced tone and power in her right leg. Dr. Desai’s diagnosis has been previously set out above.

[121] While in hospital, Ms. Enns was assessed by psychiatrist, Dr. Omoseni, on July 19, 2011. In his report, he indicates that he developed collateral information from Ms. Enns’ sister, because Ms. Enns could not speak. On examination, Ms. Enns presented with significant psychomotor retardation and expressive aphasia. She was unable to provide a detailed history. She denied symptoms of depression, anxiety, or other features suggestive of a panic attack. However, hospital physiotherapy and nursing staff had reportedly observed her in a state of panic, in which she described chest pain and cardiac symptoms, with no acute cardiac abnormality on investigation. Her denial of depressive or anxiety symptoms was deemed unreliable because of: her expressive aphasia; the potential that she was unable to identify emotions; and it was inconsistent with collateral information suggesting that she presented with overwhelming anxiety. A detailed cognitive assessment was not completed. Dr. Omoseni diagnosed Ms. Enns with: a history of major depressive disorder; past episodes of severe depression without psychosis; query a relapse of mild to moderate depression; past history of multiple dependence on pills (abstinent for close to 15 years); query underlying anxiety disorder not otherwise specified.

[122] On July 20, 2011, Ms. Enns was discharged from Hotel Dieu and admitted to the Windsor Regional Hospital Rehabilitation Program with a diagnosis of “left MCA stroke”. Contemporaneous documentation reveals that at the time of her transfer, Ms. Enns presented with expressive aphasia, and confusion. Once transferred to Windsor Regional Hospital, Ms. Enns came under the care of physiatrist, Dr. Liem, who, among other things, assisted her in applying for benefits through the ODSP program.

[123] Ms. Enns’ ODSP application, dated August 30, 2011, which was completed with the assistance of her brother, indicates that she had not worked in the past five years because of: heart problems; carpal tunnel syndrome in both wrists; migraine headaches; a pinched nerve in her lower back; a severe stroke; an inability to speak, walk or use her right arm; and severe memory loss. The application records that Ms. Enns had physical, emotional, psychological and developmental disabilities, together with severe pain and that she had severe memory loss “to the point that she only recognized family members by name about 50 percent of the time”.

[124] Dr. Liem completed an Activity of Daily Living Index form in support of Ms. Enns’ ODSP application, in which she endorsed a “Class Four Impairment (severe or complete limitations on most occasions to completion of a task)” with respect to, among other things: Ms. Enns’ ability to comprehend, express or communicate orally; her physical strength; her ability to physically participate in sustained activity; her ability to utilize commercial services such as banks; her ability to be financially responsible for her own affairs; her ability to do housekeeping; and her ability to stand.

[125] She endorsed a “Class Three Impairment (requires consistently longer time to complete a task and may on some occasions be unable to complete the task with or without accommodation and with or without moderate pain)” with respect to a number of functions, including, among others: Ms. Enns ability to exhibit normal limits of function with respect to intelligence; and her ability to take medication as directed and handle/store medication safely.

[126] During the course of her rehabilitation at Windsor Regional Hospital, Ms. Enns also underwent psychometric cognitive testing on August 11, 2011. She was observed: to have difficulties expressing herself; to be easily frustrated; and to give up easily on tasks. She presented with right-handed weakness and she had difficulty using her left hand. On testing, she scored in: the low average or mildly impaired range on a non-verbal reasoning test; the moderately impaired range on a visual constructional ability test; the severely impaired range on a speeded visual scanning task that involved a motor component; the severely impaired range in each of an immediate verbal attention task, a visual short-term memory task, and a delayed recall and recognition task. Complete cognitive testing was limited by Ms. Enns expressive language difficulties and weakness in her dominant right hand.

[127] Ms. Enns was discharged from the Windsor Regional Hospital Rehabilitation Program on September 17, 2011. In her rehabilitative discharge report to Dr. Leung, Dr. Liem recommended that Ms. Enns be transferred to a long-term care facility because of her ongoing difficulties. Instead, she was discharged home. No specific cognitive deficits are recorded in the discharge report.

[128] On September 19, 2011, Ms. Enns, accompanied by one of her sisters, attended on Dr. Leung. At that time, she presented with symptoms of slurred speech, decreased memory and right upper and lower limb hemiparesis. Dr. Leung referred her to psychiatrist Dr. Rai, and endorsed that she proceed with home-based physiotherapy and speech language therapy.

[129] On September 26, 2011, Nancy Baker, a nurse with Erie Shores/St. Clair Community Care Access Centre (CCAC), completed a CCAC Homecare report with respect to Ms. Enns, in which she recorded, among other things:

1. Ms. Enns had a Grade 8 (or less) education.

2. Ms. Enns only understood one of the six goals of her care (specifically rehabilitation).

3. Ms. Enns lived with a child but not a spouse.

4. Ms. Enns presented with problems associated with her short term memory.

5. Ms. Enns had “modified independence” with respect to the cognitive skills required for her daily decision making.

6. Ms. Enns was often understood but had difficulty finding words or finishing thoughts and prompting was usually required.

7. Ms. Enns usually understood/comprehended others but missed some parts or the intent of a message.

8. Ms. Enns’ vision had worsened since her stroke.

9. Ms. Enns exhibited sad/pain/worried facial expressions.

10. Ms. Enns engaged in reduced social interaction.

11. Ms. Enns had limited informal support available through friends and family members.

12. Ms. Enns experienced great difficulty with a number of specified activities of daily living.

13. Ms. Enns had a condition that made her cognition, activities of daily living, mood and her behaviour patterns unstable.

14. Ms. Enns was reportedly taking six different medications, including an anti-depressant.

[130] CCAC speech pathologist, Melissa Disher, assessed Ms. Enns on October 8, 2011. In her initial report, dated October 8, 2011, Ms. Disher records that Ms. Enns presented with expressive and receptive language difficulties and with the following symptoms: decreased word retrieval; reduced naming; decreased problem solving skills; decreased reading and writing abilities; reduced short term memory skills; and reduced executive functions.

[131] On November 23, 2011, Ms. Enns was assessed by Dr. Chetty, cardiologist. In a consultation report addressed to Dr. Leung on that date, Dr. Chetty recorded that one of Ms. Enns’ sisters was present at the appointment and reported that Ms. Enns was having considerable difficulty with short term memory deficits. He also observed that after discharge from hospital, Ms. Enns initially refused to get any professional home help. She presented with almost complete paralysis of her right arm and considerable weakness in her right leg. Dr. Chetty opined that Ms. Enns had a significant aortic stenosis and that rehabilitative efforts should be concentrated on musculoskeletal recovery from her stroke.

[132] Similar to Mr. Cadden, Ms. Stewart appends to her affidavit copies of the application for no-fault benefits submitted on behalf of Ms. Enns in December 2011, and the corresponding disability certificate completed by Dr. Leung in January 2012, the content of which has been previously summarized above.

[133] Similar to Mr. Cadden, Ms. Stewart also provides commentary with respect to the various medical assessments of Ms. Enns that were conducted in February and March of 2012 at the request of her accident benefits insurer. I will now address the content of those reports in more detail, beginning with the psychiatric report authored by Dr. Kiraly on February 20, 2012.

(v) Dr. Kiraly’s Report Dated February 20, 2012

[134] During the course of Dr. Kiraly’s assessment on February 9, 2012, Ms. Enns ostensibly provided him with the following narrative concerning the accident and her stroke. She was operating an Intrepid vehicle in which her daughter, Rosie [Susie], and sister Lisa, were passengers. Another vehicle ran a stop sign causing a t-bone collision on the driver’s side. Ms. Enns’ air bags deployed and she was injured. She reported being in and out of consciousness and she was taken to a local hospital and subsequently discharged to her family doctor’s care. She reported numbness in her right hand and fingers post-accident. Dr. Kiraly observes that an ambulance call report indicated that Ms. Enns did not lose consciousness. Ms. Enns then suffered a stroke on July 10, 2011. Following the stroke, she had speech problems. She was referred to a neurologist who opined that “a clot” had caused her stroke.

[135] Ms. Enns’ older daughter Sarah also participated in Dr. Kiraly’s clinical interview. She assisted Ms. Enns complete a pain diagram indicative of head and right upper and lower extremity pain. Ms. Enns’ daughter also reported that Ms. Enns had become depressed after the accident. The stroke made her depression worse. Ms. Enns’ sleep was disturbed and her appetite was not good. Her mood was depressed and she experienced episodic crying and a lack of interest and motivation. Ms. Enns reported that she had become forgetful. She denied nightmares or flashbacks, although she found it difficult to sit in a car. She denied any episodes of anxiety.

[136] On psychological testing, Ms. Enns achieved results on various self-reporting inventories that were consistent with: severe depression; moderate anxiety; severe trauma; a lack of bipolarity; and markedly affected social and family life. Among other things, Ms. Enns endorsed that: she found it more difficult than usual to make decisions; she did not have much energy; she slept a lot more than usual; she was more irritable than usual; it was hard for her to keep her mind on anything for very long; she was too tired or fatigued to do a lot of the things she used to do; a moderate level of dizziness or light-headedness; unsteadiness; nervousness; feelings of choking; difficulty breathing; difficulty concentrating; she avoided thinking about or talking about stressful experiences; and she felt distant and emotionally numb.

[137] During her clinical interview, Ms. Enns reported that her activities of daily living were significantly compromised as a result of her stroke-related physical impairments. She also reported that her attention, concentration and memory were affected and she had not been able to read since the accident due to difficulty concentrating.

[138] Dr. Kiraly reported that on a mental status examination, Ms. Enns’ cognitive functions were grossly intact. She was oriented in time, place and person, but her attention, concentration, and memory were affected. On administered testing she: scored 0/3 on a short-term memory component; could not perform “serial 7’s”; could not spell the word “WORLD” backwards; and she was unable to name the Prime Minister.

[139] Dr. Kiraly’s diagnosis has been previously set out above. He also opined that Ms. Enns had pre-existing depression which was exacerbated by the accident. Her situation was further complicated by the ensuing stroke. He felt that with appropriate medication, Ms. Enns may be able to overcome some of her depressive symptoms. Her previous depression and exposure to abuse from her ex-husband were important predisposing factors which, in his view, would delay her recovery. He concluded that from a strictly psychiatric perspective and in direct relation to the motor vehicle accident, Ms. Enns did not suffer a complete inability to carry on a normal life.

(vi) Orthopaedic Surgeon Dr. Bartol’s Report Dated March 14, 2012

[140] Ms. Enns was examined by Dr. Bartol, orthopaedic surgeon, on March 14, 2012. She was accompanied by her sister, who provided Dr. Bartol with a narrative history of the accident. Ms. Enns herself reported that she only recalled another vehicle pulling out in front of her and then waking up in a hospital. She had no recall of what transpired at the hospital. Her sister provided a narrative to Dr. Bartol in that regard. Ms. Enns could not recall if she attended on any doctors between the time of the accident and the date of her stroke. She could not recall what medications she was taking at the time of Dr. Bartol’s assessment.

[141] After physically examining her, Dr. Bartol opined that Ms. Enns likely sustained soft tissue injuries as a result of the subject accident that were minor in nature and considered resolved at the time of his assessment. He concluded that from an orthopaedic perspective, Ms. Enns did not suffer a complete inability to carry on a normal life as a result of her accident related injuries.

(vii) Neurologist Dr. Meloff’s Report Dated April 13, 2012

[142] Dr. Meloff examined Ms. Enns on March 23, 2012. In his report, dated April 13, 2012, he recorded that Ms. Enns had a poor memory for the details of the accident and she believed that she sustained a loss of consciousness. He observed that in his post-stroke report on July 10, 2011, Dr. Desai did not mention the antecedent accident.

[143] On examination, Ms. Enns presented with a spastic right hemiparesis with increased reflexes on the right side: right arm and right leg. She had a slight right facial droop with no visual field loss on the right. She had impaired expressive language but good comprehension. She knew the season, the day of the week, and that the current assessment was taking place on the main floor of a building. Her fine and gross motor coordination on the right side was impaired.

[144] Dr. Meloff’s diagnosis and causation opinion have been set out previously above. He further opined that Ms. Enns had a pre-existing cardiac and carotid disease that were “activated by the impact of the airbags on her neck and chest”. Her impairments were described as permanent and resulted in impaired expressive language, word finding difficulties and marked impairment of right-sided mobility, including fine and gross motor activities on the right side. He concluded that from a neurological perspective, Ms. Enns suffered a complete inability to carry on a normal life, but it was too soon to provide an accurate opinion as to whether she would eventually be able to return to engaging in substantially all of the normal life activities in which she ordinarily engaged prior to the accident. He recommended that Ms. Enns be referred to a stroke rehabilitation program in order to improve her strength, mobility and coordination of her right-sided weakness, but deferred to her treating neurologist in that regard.

[145] In her affidavit, Ms. Stewart deposes that on the face of the record, Dr. Meloff did not specify what, if any, testing he undertook to assess Ms. Enns’ overall comprehension or the anticipated level of her comprehension when and if she were faced with complex medical, insurance, financial, or legal matters.

(viii) Ms. Enns’ Insurer’s Correspondence Dated April 17, 2012

[146] By correspondence dated April 17, 2012, Ms. Enns’ accident benefits insurer ostensibly forwarded her copies of the reports of Drs. Kiraly, Meloff, and Bartol. The insurer further advised, “Based upon the insurer’s examination reports as per s. 37 of the Statutory Accident Benefits Schedule, please accept this correspondence as confirmation that you are eligible to receive the Non-Earner Benefit.” A copy of that correspondence was ostensibly sent to Dr. Leung, as well. The correspondence does not expressly indicate that Dr. Meloff drew a causal connection between the accident and the stroke, nor does it expressly outline the eligibility requirements for the Non-Earner Benefit.

[147] An Explanation of Benefits ostensibly accompanied the insurer’s April 17, 2012 correspondence. In the middle of that document, in relatively small font, Ms. Enns’ insurer specifies, “as per Insurer Examination you meet the test of ‘complete inability to carry on a normal life due to injuries sustained in the above noted accident’.” The Explanation also indicates that Ms. Enns would remain eligible to receive a Non-Earner Benefit in the amount of $185 per week, until she no longer met the test of complete inability. The document does not expressly disclose a potential causal connection between the accident and the stroke.

[148] Ms. Enns’ litigation guardian posits that despite the content of the Explanation of Benefits, Ms. Enns never appreciated the reason she was paid $185 a week by her insurer. In that regard, Ms. Stewart deposes that during a meeting with Ms. Enns on October 21, 2016, Ms. Enns advised her that she had been receiving cheques from her insurer in the amount of $370 every two weeks for some time (which was equivalent to her weekly entitlement of non-earner benefits). When Ms. Stewart asked her what she thought the payments were for, Ms. Enns said that she believed they were to reimburse her for mileage and transportation expenses related to travelling from her home in Leamington to attend on Dr. Liem and Dr. Leung in Windsor, Ontario. Ms. Stewart testifies that Ms. Enns stated that she did not know that the payments were for non-earner benefits; that she was entitled to non-earner benefits; or that she even knew what non-earner benefits were. Her evidence in that regard was not challenged by the defendants through cross-examination or otherwise.

(ix) Psychiatrist Dr. Rai’s Assessment – April 16, 2012

[149] Ms. Enns returned to her psychiatrist, Dr. Rai’s care on April 16, 2012. In his clinical note dated April 16, 2012, Dr. Rai records that Ms. Enns reported experiencing frequent crying spells, decreased attention, decreased concentration, some social withdrawal and decreased energy. She denied suicidal ideation. During a mental status examination, he observed that she was well-dressed, pleasant and cooperative. She had spontaneous and coherent speech and her thoughts were normal in form. She denied delusions or hallucinations. Subjectively and objectively, her mood was depressed. He endorsed normal orientation. He diagnosed Ms. Enns with depression, and an adjustment disorder. Dr. Rai’s findings and conclusions were subsequently recorded in a report to Dr. Leung dated June 16, 2012.

(x) Dr. Liem’s Record – April 30, 2012

[150] On April 30, 2012, Ms. Enns attended on her treating physiatrist, Dr. Liem, for a scheduled three month follow-up. At that time, she was reportedly “doing well”, her walking tolerance had reportedly increased and her speech continued to improve. She was still awaiting occupational, physical, and speech therapy. Her main question was with regard to her right upper extremity.

[151] Notably, Dr. Liem’s clinical note also records the following: “Apparently, there is a settlement, and there is a possibility that the motor vehicle accident one month prior was associated with the stroke. Insurance company forms were present today, however I have not followed up with this.” There is no evidence regarding the specific interaction between Ms. Enns or any other person and Dr. Liem, if any, which led to that aspect of her record nor is there any other evidence with respect to: the particulars of a “settlement”; the nature of the “insurance forms” that were said to be present; Dr. Liem’s expressed opinion or comments, if any, with respect to possibility of a causal connection between the accident and the stroke; or any potential claim or proceeding against the defendants.

[152] There is no evidence as to whether or not Dr. Liem learned of the information contained in her note by reading Dr. Meloff’s report herself. Further, the possibility of a causal connection between the accident and the stroke is not the subject of further comment in any of Dr. Liem’s 16 subsequent reports made in respect of her ongoing assessment of Ms. Enns.

(xi) Occupational Home Assessment – May 10, 2012

[153] On May 10, 2012, Ms. Enns underwent an occupational therapy home assessment conducted by occupational therapist Patricia Morand, at the request of her own insurer for the purpose of determining her attendant care needs. In her corresponding report, Ms. Morand indicates that the assessment was completed in the presence of both Ms. Enns and her older daughter Sarah Neufeld (who does not reside with Ms. Enns). A consent form was read to Ms. Enns and her daughter because Ms. Enns reported that she did not read well. The nature of the assessment was explained to her and Ms. Enns consented to proceed.

[154] During the course of the assessment, Ms. Enns presented in a forthright manner but with difficulty expressing herself and answering the assessor’s questions. Ms. Enns presented with significant physical limitations secondary to the CVA, which posed both functional difficulties and safety concerns within the home. Supervisory care was recommended based on the identified safety issues particularly, with respect to mobility and communication skills. Ms. Enns reported, among other things, that she experienced difficulty with recall and she did not feel as sharp cognitively as she did before the stroke. Ms. Enns also endorsed that her depression had worsened since the stroke.

[155] On specific inquiry by Ms. Morand, Ms. Enns was unable to recall the accident but she recalled being taken to hospital. She did not recall what tests were done, the length of time she was in hospital or what her injuries were as a result of the accident. There is no indication that Ms. Enns or her daughter advised Ms. Morand that they were aware of information concerning a possible causal connection between the accident and the stroke. Ms. Enns reported that her family members stayed with her on a daily basis, usually from 7:00 a.m. until 8:00 p.m. to 9:00 p.m., and her youngest daughter was with her through the night. Ms. Morand endorsed that Ms. Enns required 24 hour supervisory care and also required attendant care for a number of her activities of daily living.

(xii) Occupational Therapy Treatment Plan – November 14, 2012

[156] On November 14, 2012, occupational therapist Matt Sutherland submitted a treatment plan to Ms. Enns’ insurer, under a diagnostic code of “intracranial injury”, in which he stated that Ms. Enns’ unilateral paralysis impacts her capabilities and functional mobility; personal care; and all activities of daily living. He recommended, among other things, that Ms. Enns undergo a cognitive communication assessment. In her affidavit, Ms. Stewart deposes that despite Mr. Sutherland’s treatment plan, Ms. Enns’ needs were not addressed until April 2013, when Sarah Dupuis, a speech and language pathologist with Lifemark Health Centre became involved in Ms. Enns’ care.

(xiii) Speech and Language Pathologist Sarah Dupuis’ Initial Assessment – April 2013

[157] On April 2, 2013, Ms. Dupuis submitted a treatment plan for speech language therapy to Ms. Enns’ insurer under a diagnostic code of “intracranial injury”. In her proposed plan, Ms. Dupuis recorded that Ms. Enns’ “cognitive functioning deficits (eg. memory, receptive and expressive language skills) and speech impairment are limiting activities of daily living”. The proposed treatment plan was accepted and therapy commenced.

[158] Ms. Dupuis also authored a speech language pathology assessment report dated April 10, 2013, addressed to Ms. Enns’ insurer. Ms. Enns consented to the assessment. At that time, Ms. Enns was receiving occupational therapy services from Mr. Sutherland. She reported that she did not experience vision problems but reading had become difficult since her stroke. She relied on family members to assist with many of her activities of daily living. Ms. Enns’ also reported ongoing challenges including: difficulty remembering what others had said; difficulty remembering directions; difficulty remembering written text; difficulty finding words; difficulty expressing herself; and impaired speech production.

[159] During the course of her assessment, Ms. Dupuis believed that Ms. Enns put forth her best effort on all assessment tasks and that the assessment was a valid representation of Ms. Enns’ abilities. During the assessment, Ms. Enns demonstrated an inability to maintain focus and attention on given tasks and she expressed that some tasks were too difficult to complete.

[160] Ms. Dupuis’ testing revealed deficits in Ms. Enns’ receptive language skills. She had difficulties with two-part and three-part commands, simple math equations and answering questions about paragraphs presented to her both visually in writing and aurally (hearing).

[161] Ms. Dupuis opined that deficits in this area were most likely affecting Ms. Enns’ ability to: understand and remember what others had said; understand and remember written text; follow spoken/written multi-step directions; and organize her thoughts.

[162] The results of Ms. Enns’ testing also evidenced deficits in her expressive language skills, including: describing a sequenced task; providing definitions; describing objects; reading out loud (word substitutions were observed); and formulating written sentences. When asked, Ms. Enns also incorrectly described the number of grandchildren that she had. Ms. Dupuis opined that deficits in this area were most likely affecting Ms. Enns’ ability to express herself, both verbally and in writing. Ms. Enns also presented with deficits in motor planning related to her speech mechanism.

[163] On memory testing, Ms. Enns presented with deficits in recall. She made errors repeating back a short series of numbers and words. Ms. Dupuis opined that deficits in this area were most likely affecting Ms. Enns’ ability to remember previously learned directions to a location, provided orally and in writing.

[164] Ultimately, Ms. Dupuis opined that Ms. Enns required support in the form of cognitive communication therapy to improve her cognitive skills.

[165] Ms. Dupuis provided an updating report to Ms. Enns’ insurer, dated August 23, 2013, in which she recorded that Ms. Enns’ reading fluency and speech production had improved since her initial report. Ms. Enns was utilizing a journal, in part, to compensate for her frequent inability to keep track of her previous day’s activities and to serve as a tool to refresh her memory. Through therapy, Ms. Dupuis felt that Ms. Enns had made good progress in her ability to follow both spoken and written directions. She reported that subjectively, Ms. Enns felt that her own ability to understand and remember what others had said was improving. She continued to demonstrate difficulty with word finding, spelling and grammar and she required support in formulating written sentences for her journal entries.

[166] Ms. Enns continued to have difficulty expressing herself especially in stressful and emotional situations. Social scripting in preparation for doctors’ appointments and other scheduled communicative interactions was discussed. Finally, Ms. Dupuis recorded that Ms. Enns had returned to driving (i.e. approximately two years post-stroke).

(xiv) Dr. Leung’s Health Status Report Dated December 17, 2013

[167] On December 17, 2013, Dr. Leung completed a Health Status Report and Activities of Daily Living Index in support of Ms. Enns continued receipt of ODSP benefits, in which he identified Ms. Enns’ current conditions (and concordant impairments) as follows: stroke (speech deficit); loss of use of right upper and right lower extremity; hypertension (may cause headache and stroke); aortic stenosis (may cause chest tenderness and shortness of breath); and bipolar illness (may have both depression and manic symptoms).

[168] In addition, Dr. Leung endorsed, among other things, that Ms. Enns presented with “moderate symptoms or signs” related to:

• emotion (affect, mood, anxiety, and other associated psychological disturbances, panic phobia)

• impulse control (difficulty with behavioural control)

• lack of insight (grandiosity, excessively negative self-evaluation, difficulty in understanding one’s own mental problems)

• intellectual function (cognitive disturbance, planning, organizing, sequencing and abstracting difficulties)

• judgment (difficulties anticipating impact of one’s behaviour on self and others)

• learning (language processing, mathematics, attention difficulties)

• memory (amnesia, hyper-vivid flashback, disassociation)

• motivation (depressive avolitional problems)

• perception (visual processing, hallucination, allusion, disassociation, sensory distortions, pain amplifications)

[169] Dr. Leung also opined that Ms. Enns had “moderate limitations (or required a considerably longer time to complete a task)” in relation to: normal limits of functioning related to intelligence; normal limits of functioning related to impulse control and behaviour; sustainable attention span; management of her medication; and financial responsibility for her own affairs. Additionally, he opined that Ms. Enns had a “severe or complete limitation on most occasions” with respect to: the completion of tasks associated with utilizing commercial services (banks, hydro, phone company, etc.); and housekeeping.

(xv) Speech and Language Pathologist Dupuis’ Subsequent Treatment Plan and Report – February 2014

[170] In a treatment plan dated February 7, 2014, speech and language pathologist Ms. Dupuis recommended further cognitive communicative therapy for Ms. Enns and again observed that her cognitive functioning deficits and speech impairment were limiting her activities of daily living. The treatment plan was approved and services continued.

[171] On February 25, 2014, Ms. Dupuis submitted a speech and language pathology progress report to Ms. Enns’ insurer, in which she recorded in part, that Ms. Enns’ “memory and receptive language deficits continue to affect her communicative interactions and activities of daily living.” However, the report supported that, with therapy, Ms. Enns’ overall condition was improving. Ms. Dupuis endorsed that: Ms. Enns made good progress with her overall speech production abilities; she demonstrated a decreased need for support in the formulation of written sentences; she subjectively reported that her ability to understand and recall spoken information had improved significantly; and she had transitioned from printing to writing with her left hand.

[172] Despite her noted improvements, Ms. Dupuis endorsed that Ms. Enns still presented with cognitive challenges. Further, Ms. Enns endorsed feelings of depressions and anxiety since the accident which she subjectively attributed to her physical and cognitive limitations.

[173] In a subsequent speech language pathology progress report dated July 31, 2014, Ms. Dupuis recorded Ms. Enns’ ongoing cognitive issues. Specifically, under the heading “Reading and Writing”, Ms. Dupuis records that Ms. Enns required frequent breaks when reading due to “cognitive overload”. In addition, she observed that Ms. Enns continued to demonstrate difficulty with reading comprehension, which was often associated with working memory deficits. Ms. Enns continued to utilize her journal and she had shown improvement in her ability to correctly formulate written sentences independently. The quality of Ms. Enns’ handwriting with her left hand was steadily improving.

[174] Under the heading “Language Skills and Executive Functions”, Ms. Dupuis recorded that Ms. Enns’ memory and language deficits were affecting her communicative interactions and activities of daily living. Under the heading “Social Scripting”, Ms. Dupuis recorded that Ms. Enns described often avoiding conversations with others due to her language deficits and slower rate of speech. Further, Ms. Enns reported continuing difficulty expressing herself, especially in stressful and emotional situations. Under the heading of “Stress Management”, Ms. Dupuis recorded that Ms. Enns continued to describe feelings of depression and anxiety.

(xvi) Treatment Plan of Occupational Therapist Kelly Bashak – August 26, 2014

[175] On August 26, 2014, occupational therapist Kelly Bashak submitted a treatment and assessment plan to Ms. Enns’ insurer in support of occupational therapy services, in which she describes Ms. Enns’ “cognitive functioning deficits” as limiting her activities of daily living.

(xvii) Disability Certificate Completed By Dr. Leung – September 17, 2014

[176] Dr. Leung completed a further disability certificate on behalf of Ms. Enns on September 17, 2014, in which he repeated his diagnosis of cervical musculoligamentous strain and lumbar musculoligamentous strain as a result of the June 10, 2011 accident. He indicated that Ms. Enns also had a stroke resulting in permanent right-sided spastic hemiparesis. He did not expressly draw a causal connection between the stroke and the accident in his certificate. To the contrary, he endorsed that Ms. Enns’ stroke on July 10, 2012 was a condition that could affect her disability that was not related to the accident. He endorsed that she sustained a complete inability to carry on a normal life and that she had reached maximum medical recovery. He opined that no further progress was expected and he considered Ms. Enns to be permanently disabled. There is no evidence that Ms. Enns contemporaneously received a completed copy of that disability certificate.

[177] In her affidavit, Ms. Stewart deposes that in a portion of the disability certificate that was completed by Ms. Enns, she misstated her own phone number and mistakenly indicated that she was not a primary caregiver at the time of the accident. Ms. Stewart’s evidence in that regard is not contradicted or challenged in the context of this motion.

[178] Subsequently, in October 2014, Dr. Leung submitted an Application for Determination of Catastrophic Impairment to Ms. Enns’ own insurer, on her behalf, indicating that she suffered a whole person impairment of 55 percent or greater. His opinion in that regard appears to be primarily premised on Ms. Enns’ stroke-related impairments.

(xviii) Partial Clinical Notes and Treatment Plan of Psychologist Dr. Davie – December 2014

[179] Ms. Enns’ treating psychologist, Dr. Davie, completed a treatment plan on December 8, 2014 in support of continued psychotherapy services for Ms. Enns, in which she recorded that Ms. Enns had ongoing symptoms of anxiety and depression and was struggling significantly with motivation and concentration, which interfered with many aspects of her daily living, as well as, family and social relationships. In a clinical note dated December 17, 2014, Dr. Davie recorded that Ms. Enns remained very cautious about her sister who was said to have allegedly stolen money from her while acting as her power of attorney after the accident.

(xix) Speech Language Pathology Progress Report – March 2015

[180] In her speech and language pathology progress report dated March 20, 2015, Ms. Dupuis recorded that Ms. Enns reportedly continued to make steady gains towards achieving her therapeutic goals. Specifically, she continued to demonstrate gains with her verbal fluency resulting in a more naturalistic rate of speech.

[181] Conversely, Ms. Enns continued to demonstrate difficulty with reading comprehension, which was often associated with working memory deficits. She continued to require maximum support to implement strategies aimed at improving her comprehension of written material. Ms. Enns’ memory and language deficits continued to affect her communicative interactions and activities of daily living and she continued to experience problems with word finding and word recall.

[182] Ms. Dupuis reported that her therapy often targeted cognitive programming for Ms. Enns’ executive functions (memory, planning, mental flexibility, and problem solving) and Ms. Enns had shown good improvement in many of these areas. Nonetheless, Ms. Enns continued to avoid conversations with others when possible due to her language and memory deficits and slower rate of speech. Social scripting therapy continued. Ms. Enns continued to describe feelings of depression, anxiety and severe insomnia related to the accident.

(xx) Assessment by Psychiatrist Dr. Gnam – January 15, 2015 (Re: Catastrophic Impairment)

[183] At the request of Ms. Enns’ insurer, multi-disciplinary assessments were conducted to determine whether Ms. Enns sustained a catastrophic impairment as a result of the accident. As part of the assessment process, Ms. Enns was examined by psychiatrist Dr. William Gnam, on January 15, 2015.

[184] Dr. Gnam interviewed Ms. Enns for 110 minutes and her sister, Tina Neufeld, for an additional 20 minutes. During her interview, Ms. Enns appeared to struggle in her attempts to respond to open-ended questions. She did not have a recall of the accident. She reported: feeling depressed on most days; she cried frequently; she did not derive enjoyment from any activity; and she had almost daily suicidal ideations. She also reported that “her concentration has greatly improved since the accident and her memory is now good.” She thought of herself as useless and worthless and felt guilty about the functions she could no longer fulfill. She experienced daily flashbacks and intrusive thoughts about the accident. She experienced panic attacks approximately once a week. Nonetheless, she had returned to driving a vehicle.

[185] During her assessment, Ms. Enns described a pre-accident psychiatric history that included panic attacks and chronic depression that persisted for nearly 20 years, which originally developed in the context of an abusive marriage. She advised Dr. Gnam that she had not received psychological assistance since the accident (although that appears to be inconsistent with her documented post-accident attendances with psychologist, Dr. Davie). In recounting her activities of daily living, Ms. Enns indicated, among other things, that she is “only able to read for a few minutes before her vision becomes blurred.” She reported that she managed her own scheduling, banking, and medication compliance.

[186] Dr. Gnam records that on a mental status examination that he administered, Ms. Enns did not present with clear evidence of cognitive impairment. She scored 15/30 on a neurocognitive screening measure known as the “Montreal Cognitive Assessment” (MOCA). In that regard, she lost points on testing related to: visuospatial and executive functioning; attention; language; abstraction; her ability to recall five words after a five minute delay (she scored 0 out of 5); and orientation (she could not specify the location of the interview).

[187] On self-reporting psychometric tests, Ms. Enns endorsed depressive symptoms in the “extremely severe range”, anxiety symptoms in the “extremely severe range”, and a severe level of subjective stress. Her pain catastrophizing scale was elevated, and her results indicated that Ms. Enns likely had dysfunctional pain rumination and “cognitions associated with sub-optimal pain outcomes.” Dr. Gnam was also of the view that Ms. Enns presented with clinically significant post-traumatic symptoms.

[188] Ms. Enns’ sister, Ms. Neufeld, advised Dr. Gnam that since the stroke, Ms. Enns had experienced mood swings, cried frequently and slept poorly. She had developed a somewhat exaggerated emotional range and at times, she would laugh at situations that were not humorous. Further, Ms. Enns’ judgment appeared to be compromised and she had been observed to spend recklessly and to misplace personal items such as her purse, in a public place.

[189] In his report, Dr. Gnam acknowledges Ms. Enns’ subjective reports of a post-stroke deterioration in her memory and sustained attention but he concluded that those symptoms could not be verified objectively due to invalid test results that were potentially indicative of either sub-optimal effort or possible conscious amplification of cognitive problems. He did not elaborate further in that regard.

[190] Dr. Gnam opined that Ms. Enns’ presentation supported a diagnosis of major depressive disorder, repeat episode, chronic. He acknowledged Dr. Rai’s previous diagnosis of schizoaffective disorder but he opined that he did not have any additional information that allowed him to confirm or exclude that diagnosis, or Dr. Rai’s prior diagnosis of suspected bipolar disorder. He opined that Ms. Enns did not satisfy all of the criteria for a diagnosis of post-traumatic stress disorder (PTSD) and as a result, he diagnosed her with an anxiety disorder, not otherwise specified (with features of PTSD). Finally, he diagnosed Ms. Enns with a pain disorder associated with both psychological factors and a general medical condition.

[191] Dr. Gnam reasoned that Ms. Enns’ clinical course was complicated by the stroke that occurred one month following the accident. From a strictly psychiatric perspective, Ms. Enns did not suffer a complete inability to carry on a normal life. She needed to be under the ongoing care of a psychiatrist, with an emphasis on pharmacological treatment of depression.

[192] Dr. Gnam was of the view that Ms. Enns suffered from a pre-accident history of chronic depression including a history of a disabling major depressive disorder, that was “very likely worsened” by the accident and the stroke that occurred one month later, although he could not meaningfully apportion that level of exacerbation between those two events.

[193] Dr. Gnam opined that Ms. Enns had mental impairments in the form of motivational, sleep and pain-related impairments that collectively caused moderately severe functional impairments in daily activities, concentration and task persistence, and in her ability to manage work/life stresses. Accordingly, he felt that Ms. Enns did suffer from functional mental impairments as a consequence of the injuries sustained in the accident. Overall, he concluded that Ms. Enns’ mental impairments warranted a whole person impairment rating that ranged from 26 to 29 percent.

(xxi) Assessment by Orthopaedic Surgeon Dr. Paitich – January 15, 2015 (Catastrophic Impairment)

[194] In a report dated April 9, 2015, orthopaedic surgeon Dr. Cameron Paitich set out the findings, opinions, and conclusions that followed his January 15, 2015 assessment of Ms. Enns. At the outset of his report, Dr. Paitich indicates that he explained the nature of his examination to Ms. Enns and she was aware of its purpose and possible ramifications. She subsequently provided him with both written and verbal authorization to release information to her own insurer.

[195] Dr. Paitich reports that Ms. Enns advised him that she was involved in a motor vehicle accident in which the passenger side of her vehicle was impacted but she did not recall it. She reported that she lost consciousness and woke up in the hospital, four or five hours after the accident. She denied experiencing pain initially after the accident. Over the following day, she developed pain “all over” and returned to the hospital. Two weeks later, she reported sustaining an ischemic stroke resulting in right-sided hemiparesis. At the time of Dr. Paitich’s assessment, she denied any pain. Her primary complaint was loss of function of her right upper and lower extremities.

[196] After examining Ms. Enns, Dr. Paitich concluded that at most, she had sustained myofacial strain injuries and contusions as a result of the accident, which, in his view, had long since healed. Her current impairments were neurologically based and secondary to the ischemic stroke. From a musculoskeletal and orthopaedic perspective, she sustained soft tissue injuries and contusions with no residual orthopaedic or musculoskeletal impairment arising as a consequence of the accident.

(xxii) Assessment by Occupational Therapist Vitali-Perrier – December 15, 2014 (Catastrophic Impairment)

[197] By report dated April 9, 2015, occupational therapist Mary Vitali-Perrier set out the findings, opinions and conclusions that followed her December 15, 2014 in-home occupational therapy assessment of Ms. Enns. She reports that prior to commencing the assessment, she explained its purpose to Ms. Enns who provided her with written and verbal consent to proceed, and she agreed to participate in the assessment to the best of her ability. Ms. Enns also executed a consent for the collection and disclosure of personal health information, and indicated that she understood the terms outlined in the forms.

[198] As a result of her assessment, Ms. Vitali-Perrier opined that Ms. Enns suffered a complete inability to carry on a normal life as a result of the accident and required assistance with some aspects of her personal care. During the course of her assessment, Ms. Vitali-Perrier administered the Montreal Cognitive Assessment neurocognitive measure, on which Ms. Enns scored a 17/30 (broken down as 1/2 on visuospatial and executive function; 0/3 on naming; 5/6 on attention; 2/3 on language; 0/2 on abstraction; 0/5 on memory/delayed recall; and 6/6 on orientation). Ms. Vitali-Perrier endorsed that her score was in the “below normal range” for cognitive function, as an average score for individuals with “normal” cognitive function was 26/30.

(xxiii) Assessment by Neurologist Dr. Meloff on December 11, 2014 (Catastrophic Impairment)

[199] In a report dated April 9, 2015, neurologist Dr. Meloff set out the findings, opinions and conclusions that he reached following his re-examination of Ms. Enns on December 11, 2014. He reports that his previously stated diagnosis remained essentially the same. In addition, he clearly and expressly opined that the accident contributed to Ms. Enns’ stroke because of the impact of the forces applied to Ms. Enns chest and neck, therein. From a neurological perspective, Ms. Enns suffered a complete inability to carry on a normal life. She presented with aphasia and a right hemiplegia. Her impairments were permanent and resulted in impaired expressive language and word finding difficulties and marked impairment of right-sided mobility including fine and gross motor activities. Her prognosis was poor. She would never return to substantially all of the activities that she engaged in prior to the accident.

(xxiv) Consensus Opinion Regarding Catastrophic Impairment Determination

[200] The reports of Drs. Gnam, Paitich and Meloff and occupational therapist Ms. Vitali-Perrier were forwarded to Ms. Enns’ insurer on April 9, 2015 together with a “multi-disciplinary consensus opinion concerning catastrophic impairment determination” authored by Dr. Paitich. In the latter, the assessors concluded that for the purpose of her accident benefits claim, Ms. Enns was catastrophically impaired as a result of the accident because she suffered a whole person impairment (WPI) that was determined to be greater than 55 percent. Specifically, she was determined to have an 81 percent neurologic WPI, including a 17 percent WPI related to aphasia or dysphasia (moderate impairment in comprehension and production of language symbols of daily living) and mental impairments constituting a WPI in the range of 26 percent to 29 percent, inclusive (based on Dr. Gnam’s opinion).

[201] The catastrophic impairment-related insurer examinations were ostensibly sent to Ms. Enns by her insurer under cover of correspondence dated April 14, 2015 (a copy of which Ms. Stewart appends to her affidavit). Unlike the correspondence that accompanied the medical examination reports related to Ms. Enns’ entitlement to non-earner benefits, which her insurer ostensibly sent to her in April 2012, its April 14, 2015 correspondence expressly states, “Dr. Meloff, neurologist, indicates that the motor vehicle accident contributed to your cerebral vascular accident...this led to an undiagnosed transient ischemic attack followed by a stroke with permanent residual and neurological impairments....” The correspondence ostensibly sent to Ms. Enns in April 2012 did not expressly disclose an apparent causal connection between the stroke and the motor vehicle accident.

(xxv) Ms. Enns’ First Attendance with Counsel – January 16, 2015

[202] In the contextual background of the foregoing assessments and treatment, Ms. Enns first attended on counsel in January 2015 (before the catastrophic impairment reports were released by her insurer).

[203] In her affidavit, Ms. Stewart deposes that she first met with Ms. Enns who was accompanied by speech and language pathologist Ms. Dupuis on January 16, 2015. No medical documentation was provided to Ms. Stewart during the course of that meeting. There is no evidence that Ms. Enns reported that she had been assessed by Dr. Gnam the previous day or that a catastrophic impairment assessment had been undertaken. Indeed, Ms. Stewart avers that she experienced difficulty obtaining information from Ms. Enns during their meeting. Ms. Stewart deposes that she was eventually advised about the following (although it is unclear if the source was Ms. Enns or Ms. Dupuis): the accident; that Ms. Enns was entitled to non-earner benefits and had been determined to have a complete inability to carry on a normal life; no “in-home” service providers assisted Ms. Enns with her post-accident needs; occupational therapist Matt Sutherland referred Ms. Enns to Ms. Dupuis for speech therapy; the dysfunctional family interactions within Ms. Enns’ family; substance abuse allegations with respect to Ms. Enns’ siblings; and some “allusion” to abuse by her husband. Ms. Stewart deposes that during their meeting, Ms. Enns retained her to “investigate and act for her in respect of the accident”.

[204] Ms. Stewart deposes that Ms. Enns advised her she had not consulted any other lawyers with respect to her accident-related or stroke-related impairments before January 16, 2015. Ms. Enns also denied being advised by her family members, accident benefits adjusters, treatment providers, doctors or anyone else that she may have had legal rights as a result of the accident or that she was entitled to, or should, consult legal counsel in that regard.

[205] On January 22, 2015, Ms. Stewart wrote to Ms. Enns’ own insurer and requested a complete copy of her accident benefits file. On March 16, 2015, Ms. Stewart received some but not all of the accident benefit file. For instance, she did not receive: documentation (including reports) related to the assessments for catastrophic impairment determination; any log notes; any documentation related to a power of attorney on behalf of Ms. Enns; or any details of benefits paid to date. However, she did receive a copy of Dr. Meloff’s report of April 13, 2012 which she subsequently reviewed with Ms. Enns. When she did so, Ms. Enns advised her that she was not aware of the report. Ms. Stewart avers that after reviewing that report with Ms. Enns, she recommended that the balance of the accident benefits file be obtained and a claim be commenced against the defendants with respect to the accident and Ms. Enns’ resulting injuries and losses. The action was subsequently commenced on July 3, 2015. There is no evidence about any specific instructions she may have received, if any, in that regard.

(xxvi) Assessment by Occupational Therapist Ms. Bashak – June 29, 2015

[206] In a report dated June 29, 2015, occupational therapist Bashak set out her findings, opinions, and conclusions following a two-day in-home assessment of Ms. Enns’ attendant care and housekeeping needs, secondary to the determination that she had sustained a catastrophic impairment as a result of the accident. On specific inquiry, Ms. Enns reported that her current symptoms included: daily headaches and constant neck, right arm, right leg, and lower back pain of varying intensity. She reported no specific concerns with respect to attention and concentration although “prolonged reading” caused fatigue. Ms. Enns reported no concerns with respect to short term memory although she had some challenges with her long term memory. She also experienced some difficulties with organization, time management and word finding. Ms. Enns reported that following the accident she shared management of her finances with her sister, however she was currently independent with money management, as her sister had [allegedly] been stealing from her. As set out further below, as a result of a subsequent assessment in 2016, Ms. Bashak ultimately concluded that Ms. Enns had significantly under-reported her cognitive symptoms to her during her June 2015 assessment.

[207] On examination, Ms. Enns presented with severe limitation of motion in her right upper extremity and mild range of motion restrictions in her lower back and right knee. Ms. Enns scored a 20/30 on a Montreal Cognitive Assessment administered by Ms. Bashak (0/5 on delayed recall; 1/3 on language task; 4/6 on attention; 1/2 on abstraction; she did not make errors on the visuospatial and executive functioning, naming or orientation components of the cognitive screen). Ms. Bashak determined that Ms. Enns expressed “adequate judgment” with respect to emergency situations, and as a result, 24-hour supervision was not required. In Ms. Bashak’s view, Ms. Enns also presented with the “cognitive wherewithal to independently organize attendant care support”.

[208] Ms. Bashak opined that Ms. Enns required ongoing occupational therapy treatment to assist in returning her to her pre-accident personal care, housekeeping and leisure tasks, as well as, to improve her cognitive functioning. Again, as detailed later below, Ms. Bashak’s opinion substantially and retroactively changed in 2016.

(xxvii) Speech and Language Pathology Progress Report – July 17, 2015

[209] In a speech language pathology progress report, dated July 17, 2015, Ms. Dupuis recorded that Ms. Enns continued to demonstrate difficulty with reading comprehension, which was often associated with working memory deficits. She observed that Ms. Enns’ memory and language deficits were negatively affecting her communicative interactions and activities of daily living. Ms. Enns even reported difficulty recalling her oldest daughter’s first name.

(xxviii) Report of Psychiatrist Dr. Burdett – October 2015

[210] In a report to Dr. Leung, dated October 1, 2015, psychiatrist Dr. Burdett, who became Ms. Enns’ treating psychiatrist after Dr. Rai passed away, records that she assessed Ms. Enns on that day, secondary to a referral for chronic depression and bipolar illness. At that time, Ms. Enns reported that: she slept three hours a night; her concentration was fine; and her memory was good. She denied suicidal ideation. She denied reckless activities or psychotic symptoms. She reported worrying about everything and had panic attacks with varying frequency. Generally, she did not talk to people and disliked crowds. She claimed to have “overdosed” in 2014, in an effort to take her own life and was admitted to hospital (there are no other records available in that regard, in the context of this motion).

[211] Dr. Burdett reported that on a mental status examination, Ms. Enns presented with unremarkable thought formation and content and moderate judgment and insight. She was diagnosed with: a mood disorder not otherwise specified (query bipolar disorder); anxiety; and contributory personality factors. Ms. Enns could not recall what medications she was taking. Dr. Burdett endorsed a new mood stabilizer and continuation of a low-dose antidepressant.

(xxix) Occupational Therapy Treatment Plan – December 16, 2015

[212] In a treatment plan dated December 16, 2015, occupational therapist Ms. Bashak endorsed that Ms. Enns had demonstrated an improved willingness to share the functional and cognitive limitations and pain that she experienced, with Ms. Bashak and other care providers. Ms. Enns continued to present with “cognitive deficits that impaired her memory, executive functioning attention (alternating, divided, complex, sustained), oral and written communications, etc.”

(xxx) Speech and Language Pathology Progress Report – May 11, 2016

[213] In her speech and language pathology progress report, dated May 11, 2016, Ms. Dupuis reported that Ms. Enns was utilizing her planner with moderate support, to document pertinent information about her activities of daily living. Comprehending written information remained a challenge for Ms. Enns, especially while reading out loud. Ms. Dupuis opined that Ms. Enns’ deficits in working memory, sustained attention, executive function, and self-regulation were negatively affecting her ability to correctly understand written information.

[214] Ms. Enns also reportedly demonstrated a decreased ability for memory recall, especially when information was provided to her verbally. Conversely, Ms. Enns demonstrated improvement in all areas of executive functioning. Ms. Enns continued to rely on and employ social scripting strategies. She reported feeling overwhelmed by the demands of others who were less aware of her limitations. She also described feelings of depression, anxiety, and severe insomnia since the accident.

[215] Ms. Dupuis reported that Ms. Enns’ rehabilitation team had recently been focusing on money management and with the support of healthcare providers (primarily Ms. Bashak) Ms. Enns opened up a bank account. Ms. Enns continued to require therapeutic intervention with respect to the decision making, planning, and reasoning skills involved in money management.

(xxxi) Cognitive Symptom Checklist – October 26, 2016

[216] At the direction of members of her rehabilitation team, Ms. Enns completed a Cognitive Symptom Checklist on October 26, 2016, in which she endorsed difficulty with aspects of the following (which are further detailed on the checklist): processing speed/reaction time; initiation/follow through; self-correction; mental flexibility; planning; sequencing; problem solving; organization; and reasoning.

[217] Ms. Enns also described difficulty with remembering: the side effects of her medication; whether she had already eaten; whether doors and windows were locked; to wear her life-line emergency device; how and when to add, subtract, multiply and/or divide; how to reconcile her bank statement with her check book; where she placed her keys; what entrance she may have used in a store; where she put things in her home; the day, month, year, or time of day; to schedule appointments; to keep appointments once scheduled; to record appointments on a calendar; to set her alarm clock; to check her voice mail; the name of a person to whom she had been introduced; the content of telephone conversations; the plot of television programs; the content of conversation with others; information she had read; a word she wished to say; her train of thought while she was speaking; the name of a familiar object or person; how some words are spelled; what she intended to write; new and old phone numbers; addresses of friends; birthdays and anniversaries; and important personal identification information.

[218] In terms of attention and concentration, Ms. Enns endorsed that she could concentrate on a task for approximately five minutes before she lost focus or became tired. She felt tired most of the day. She also indicated that she experienced difficulty: focusing on a task when she was in a large area; staying focused in places where there are many sights and sounds; finishing a task because she felt frustrated; reading a newspaper in one sitting; reading a short magazine article; reading a chapter in a book; reading a novel; staying focused on a telephone conversation; staying focused on a conversation during a meeting; focusing on a task when there is a loud noise or too much detail or clutter; shifting concentration among three or more things; and doing several tasks at the same time. She indicated that she often experienced: fear, sadness, depression; stress; flashbacks; frequent worries; and racing thoughts.

[219] In respect of her visual process, Ms. Enns reported: sensitivity to light; eye pain; headaches; eyes pulling; nausea; dizziness; and eye burning. She had difficulty: organizing her household files so she could find information when needed; recognizing a part of an object; and understanding illustrations.

(xxxii) Occupational Therapy Progress Report – November 28, 2016

[220] On November 26, 2016, Ms. Bashak authored an occupational therapy progress report in which she opined that Ms. Enns required 24 hour a day basic supervisory care as a result of her cognitive impairments. Further in that regard, Ms. Bashak wrote:

Ms. Enns has demonstrated difficulty with developing trust in interpersonal relationships, including with her treatment providers. As the therapeutic relationship has been established and Ms. Enns has shared more and more information about her daily functioning and activity engagement, this therapist has come to realize that Ms. Enns demonstrates with more impaired problem solving, judgment and planning skills than initially demonstrated and than would be required in order to safely and effectively respond in an emergency situation. Though she was able to provide appropriate verbal responses to questions regarding emergent and non-emergent situations, it has become increasingly apparent that Ms. Enns lacks the ability to apply her knowledge in situations that require executive functioning skills.

[Emphasis added.]

[221] Ms. Bashak then detailed several issues and incidents that had occurred over the course of several months preceding the date of her report, which caused her to opine that Ms. Enns required 24 hour supervisory care, owing in part to her cognitive impairments, including the following commentary, among others:

• Ms. Enns has demonstrated impaired ability to check her voicemail messages and subsequently follow through on doing so once provided with education and practice. In late September 2016, this therapist became aware that Ms. Enns’ voicemail had been full for at least a few weeks. Ms. Enns stated that she had been checking her voicemail and it indicated there were no messages but was agreeable to this therapist assisting her with determining the issue. Once the issue was uncovered, this therapist assisted the client with listening to voicemails which dated back as far as April, 2016. Basic instructions were written for the client and the importance of regularly checking voicemail was reinforced. Ms. Enns demonstrated understanding of how to check her voicemail, using the provided instructions (which were taped next to her telephone) and why it is important to do so consistently. Nevertheless, the client’s voicemail was again full and no longer accepting messages and Ms. Enns admitted that she had not been checking the messages as she had forgotten how to do so (despite written instructions next to the phone). The skill was reviewed with Ms. Enns and this therapist continues to provide ongoing cueing to complete the task during weekly visits.

• A letter was discovered by Ms. Dupuis and this therapist dated November, 2015, which was from a credit collection company. The letter specifically indicated (with bold formatting) that the client had 72 hours to respond. Ms. Enns then admitted that she usually does not actually read her mail, simply opens it. Furthermore, she was unaware of the reason for the letter, having not been aware of the debt it was referring to. Both Ms. Dupuis and myself stressed the significance of the letter and the importance of following up, however, upon meeting with Ms. Enns a few days later she stated that she had still not done so.

• In January and February, 2016, Ms. Enns reported that she was choking on an occasional basis when she was eating and throwing up afterwards. Ms. Enns was unable to provide details on foods that tend to cause her symptoms and did not report any medical history that would suggest cause for her symptoms. Ms. Dupuis completed a bedside swallowing assessment and the client was subsequently referred to Dr. Martha Leadman, for swallowing assessment of her esophagus and pharynx to determine the cause of her symptoms. When later provided with her medical history, these therapists learned that Ms. Enns’ stomach issues well pre-dated the accident and the swallowing assessment was likely not necessary.

• Ms. Enns has unfortunately been the victim of theft by a family member on numerous occasions. These therapist’s [sic] encouraged Ms. Enns to more consistently use her bank to store her money and Ms. Enns did demonstrate understanding of why that was being recommended. Despite this, she is unable to comprehend the need to not carry cash and or to be around the known family member that will and has stolen from her; theft of her money continues to be an ongoing concern. Unfortunately, she has to date declined consultation with a financial advisor for long term financial planning.

• Ms. Enns was recently requested to read her mail aloud to determine her functional reading skill and ability to comprehend documentation provided to her. She was able to read a few sentences at a very slow pace but discontinued the task due to reported visual symptoms which make it very difficult to focus. She had not reported these symptoms to any treatment provider in the past and became tearful when describing them. Historically, Ms. Enns has rarely disclosed symptoms without her therapists asking numerous probing questions, so it is not uncommon to learn of symptoms for the first time that she has reportedly been experienced for years. Ms. Enns was reminded that it is important to advocate for herself when she is experiencing symptoms, that her care team is willing to help her receive any services required in order to return to her pre-injury status, and that services can only be provided if she discloses all concern as she experiences them.

• Ms. Enns’ fridge stopped working and rather than contacting the landlord for repair or speaking with her rehabilitation team on what she could/should do she purchased a new fridge. Similarly, the water in her kitchen stopped working and she went 3 weeks without running water in the kitchen before advising her treatment team and determining the appropriate course of action.

• Ms. Enns advised that in the past her prescriptions from her psychiatrist were regularly prescribed, however she was not taking them, while informing her psychiatrist that she was continuing to take them. Ms. Enns has also required consistent reinforcement from outpatient service providers to refill her own prescriptions and the prescriptions of her daughter.

[Emphasis added.]

[222] Finally, Ms. Bashak observed that Ms. Enns reported no concerns with respect to her short term memory at the time of the November 2016 assessment, yet she had a clearly demonstrated “impaired short term memory”. Ms. Enns did report continuing difficulties with her long term memory, word finding abilities, household budgeting, organization and time management. Ms. Bashak also recorded that Ms. Enns “recently admitted that she is unable to read more than a few sentences at once due to significant visual symptoms”, which she had not disclosed previously. A referral was made to an ophthalmologist for visual rehabilitation secondary to traumatic brain injury.

[223] The foregoing aspects of Ms. Bashak’s report are generally consistent with aspects of Ms. Stewart’s evidence that I will now set out.

(xxxiii) Evidence of Ms. Enns’ Disclosure That Her Cognitive Deficits Were Historically Greater Than She Previously Disclosed

[224] In her affidavit, Ms. Stewart deposes that she became “more and more aware of [Ms. Enns’] lack of insight and her inability to comprehend things” after Ms. Enns’ Examination for Discovery in February 2016. Eventually, she met in that regard, with Ms. Enns, Ms. Bashak and Ms. Dupuis on October 21, 2016. During that meeting, Ms. Enns attempted to read a copy of the correspondence from her own insurer dated April 17, 2012, which has been detailed earlier in these reasons. Ms. Enns then reported that after reading a few words her eyes began “spinning” and she was “seeing triple”. She stated that those symptoms had been occurring for approximately two years, but she did not tell anyone because “it was better for her to keep everything quiet”. Ms. Enns also advised Ms. Stewart that she did not have any recollection of ever receiving her insurer’s April 17, 2012 correspondence and that even if she had received it, she would have been unable to read it. Ms. Stewart then read the content of the correspondent to Ms. Enns, after which Ms. Enns stated that she did not understand it.

[225] Ms. Stewart deposes that during their October 21, 2016 meeting, Ms. Enns also advised her, Ms. Bashak and Ms. Dupuis that since her stroke, she has attended some doctor’s appointments on her own, and on those occasions, she often did not understand what she was being told by the doctors, but she did not tell them she was unable to understand because she was too embarrassed to do so. Ms. Enns is also said to have advised Ms. Stewart that during the course of her Examination for Discovery, she agreed with many of the suggestions made by defence counsel, even if she did not understand the questions being asked. Ms. Enns advised Ms. Stewart that she has never filled out her own tax returns and had no idea how to do so. Instead, she brings her documentation to an accountant who completes and electronically submits her returns on her behalf.

(xxxiv) Assessment by Capacity Assessor Carol Caverzan – December 2016

[226] As a result of Ms. Enns’ disclosures during their October 21, 2016 meeting, Ms. Stewart arranged to have Ms. Enns assessed by a certified capacity assessor. On December 2, 2016, Ms. Enns was assessed by Carol Caverzan, a designated capacity assessor pursuant to the Substitute Decisions Act, Ontario, 1992, S.O. 1992, c. 30, who ultimately determined that Ms. Enns was incapable of managing property. At Ms. Enns’ request, Ms. Dupuis was also present during the assessment.

[227] In her assessment report dated December 18, 2016, Ms. Caverzan references several aspects of the prior independent medical assessment reports and other medical documentation evidencing Ms. Enns’ ongoing difficulty with memory and her inability to retain new information. Ms. Caverzan also documented her direct observations of Ms. Enns’ cognitive challenges as follows:

It was readily observed from the outset of the interview that Ms. Enns had challenges with her long-term memory. This was noted when posing queries relative to pre-accident life events. Ms. Enns also demonstrated significant ‘word-finding’ difficulty throughout the assessment. Finally, Ms. Enns demonstrated deficits with decision-making, planning, and reasoning pertaining specifically to management of her finances. This writer was also particularly concerned with the amount of information (in her response to queries) that Ms. Enns initially ‘left out’. Interestingly, however, from time to time during the remainder of the interview, Ms. Enns would suddenly ‘fill-in’ the missing information, ‘out of context’. In other words, this Assessor was required to be skilled in fitting together Ms. Enns’ ‘pieces of information’, like the pieces of a puzzle, in order to acquire an understanding of the ‘whole’ story/picture. To some extent it appeared that Ms. Enns engaged in selective processing of a question posed, that is, her receptive language was compromised.

[228] Ms. Caverzan recorded the following observations, with respect to Ms. Enns’ “general orientation”:

Ms. Enns was unable to recall the first name of her daughter (who lives with her). She was unable to state her home address and could not identify the name of her banking institution. After two attempts to educate Ms. Enns as to the purpose of my attending to her, she was unable to recall the information after 10 minute periods. When asked, at the beginning of the interview, to identify the number of children she has, Ms. Enns stated, “A daughter who lives with me.” Approximately 20 minutes subsequent to her response, she began to talk about another daughter and sometime later, about a son. It took several attempts by this writer to finally establish that Ms. Enns had given birth to 5 children in total.

Ms. Enns was confused regarding ‘time’. Initially she stated that she had added her sister […] to her bank account directly following her motor vehicle accident; later, she stated that she had done so ‘prior’ to her motor vehicle accident. Still later, she noted that this action had occurred ‘not’ after her motor vehicle accident, but after her stoke [sic]. Also, initially she stated that she had added her sister […] to her bank account ‘after’ she had (allegedly) discovered that […] had been stealing money from her handbag.

[229] Ultimately, Ms. Caverzan concluded that throughout the assessment, Ms. Enns demonstrated a lack of knowledge and understanding of her property/finances and she clearly lacked an appreciation of the reasonably foreseeable consequences of her actions or lack therefore pertaining to the management of same. She also detailed Ms. Enns’ inability to accurately describe her sources of income (she concluded that Ms. Enns did not appreciate that she had been in continuous receipt of a non-earner benefit) and to protect herself from repeated theft by her sister. Ultimately, she concluded:

At the time of the assessment interview, the need for great concern with respect to Ms. Enns’ challenges with her executive functioning, was clear. Her working memory challenges, her inability to prioritize and plan, her inability to self-monitor, her lack of problem solving skills shown for example in her inability to organize and initiate tasks vital to the protection of her in-home assets, all render Ms. Enns at serious risk of financial instability if left to conduct the management of her property on her own.

Given my observations on 2016/12/02, supported by external report findings noted in Section 5.1 of this document, I have determined that Susana Enns is ‘incapable’ of managing her property pursuant to section 16 of the Substitute Decisions Act, 1992.

(xxxv) Report of Capacity Assessor Caverzan Regarding Ms. Enns’ Inability to Instruct Counsel

[230] Ms. Caverzan authored a second report dated December 20, 2016, opining that Ms. Enns lacked capacity to “instruct counsel”. In so doing, she observed that:

“...instructing counsel requires a higher level of capacity [than managing property] in that a client must demonstrate an understanding of both financial and legal issues. The client must also demonstrate an appreciation of the reasonably foreseeable consequences of his or her actions or decisions. The ‘appreciate’ standard focuses on the ‘reasoning process’ behind the individual’s decisions, and in addition, explores the particular personal weights that the person attaches to one outcome or another. However, choice also reflects value considerations, therefore, assessors must broaden their inquiry to include them. Foolishness, riskiness, or social deviance may be grounds to examine ‘appreciation’ more closely, but do not substitute for incapacity. The assessor is not judging whether or not the person’s decisions or actions appear reasonable but whether they are reasoned.” (Capacity Assessment Office, Ministry of the Attorney General, May 2005) [Emphasis added.]

[231] Ms. Caverzan then expressly reviewed the cognitive deficits that were recorded by: psychiatrist Dr. Gnam (2015/01/15); occupational therapist Kelly Bashak (2016/11/23); and neurologist Dr. Meloff (2014/12/11) (which are set out previously above) followed by the results of her assessment in that regard (which are set out below).

[232] In her report, Ms. Caverzan records that during her assessment interview on December 2, 2016, Ms. Enns’ orientation to person, place and time was “sporadic at best”. She was inconsistent in recalling the first name of the daughter with whom she resided. Ms. Enns could not be educated to retain new information for more than a ten minute period. On two distinct occasions, Ms. Enns was unable to adequately or accurately paraphrase the purpose of Ms. Caverzan’s attendance after being advised of that purpose ten minutes earlier. Ms. Enns did not provide a coherent or meaningful response to Ms. Caverzan’s inquiries concerning the progress that had been made by her lawyer in terms of a settlement of her “personal injury claim”. Finally, Ms. Enns was incapable of making sound decisions related to the management of her finances.

[233] In the context of the foregoing, Ms. Caverzan was of the view that Ms. Enns lacked the capacity to appreciate the reasonably foreseeable consequences of her actions or decisions with respect to legal issues and, as a result, lacked the capacity to instruct counsel in this proceeding.

(xxxvi) Occupational Therapy Assessment by Patricia Morand – February 16, 2018

[234] In a report dated March 6, 2018, occupational therapist Patricia Morand outlined the findings, opinions, and conclusions that she reached as a result of her assessment of Ms. Enns on February 16, 2018. The assessment was conducted at the request of Ms. Enns’ own insurer to determine her entitlement to certain attendant care benefits.

[235] In her report, Ms. Morand records that in response to specific questions that she posed, Ms. Enns reported that from a cognitive perspective she thought things were “great now”, although there were still occasional times when she could not remember something. Yet, as a result of her assessment, Ms. Morand reports that she was left with the impression that Ms. Enns did not have a full understanding or insight into the extent of her limitations either from a physical, emotional, or cognitive perspective. She opined that “cognitively through standardized and non-standardized testing”, Ms. Enns presented with limitations in the area of orientation, attention, language, memory and reasoning. As a result, Ms. Morand endorsed that Ms. Enns required 24-hour supervisory attendant care.

[236] As part of her assessment, Ms. Morand administered a standardized cognitive screening (COGNISTAT 2016), in which Ms. Enns scored: in the moderate impairment range for orientation; the mild impairment range for attention; the average range for comprehension; the average range for constructional ability; between the moderate impairment and severe impairment range for memory; the average range for arithmetic calculations; the severe range on two tests related to reasoning – in fact, she scored zero on both of those tests (Ms. Morand specifically states, “Her responses did not support her ability to reason through scenarios she was provided. Her responses were vague at best”).

[237] In addition, Ms. Morand viewed Ms. Enns’ responses to certain questions that she posed, to be indicative of Ms. Enns’ poor judgment. For example, when asked what she would do if she needed medical attention and she was home alone, Ms. Enns simply responded, “I am hoping it won’t happen”. Ms. Morand also asked Ms. Enns how she manages her banking. Ms. Enns advised her that she receives assistance. She recalled her bank was in Windsor but she could not recall its name. She was also unable to recall the names of her healthcare providers despite the fact that she had been working with some of them for years. On specific inquiry, Ms. Enns could not recall some of her children’s ages.

[238] In endorsing 24 hour basic supervisory care (less calculated required “hands on care”), Ms. Morand opined that Ms. Enns’ cognitive assessment demonstrated that she has cognitive deficits that impact her safety. Ms. Enns had difficulty appropriately responding to any scenarios that required problem solving and she had difficulty thinking in an abstract generalized manner specific to the problems to which she was asked to respond.

(xxxvii) Affidavit of Dr. Leung Sworn April 17, 2018

[239] The plaintiffs have adduced an affidavit from Ms. Enns’ family physician, Dr. Leung, sworn April 17, 2018, to which he appends as an exhibit a copy of correspondence dated March 19, 2018 addressed to him from Ms. Enns’ counsel. In her correspondence, Ms. Enns’ counsel poses a number of questions to Dr. Leung and his responses, made on April 16, 2018, are recorded on the face of counsel’s correspondence.

[240] In her correspondence, counsel advised Dr. Leung that its purpose was to solicit Dr. Leung’s opinion concerning whether Ms. Enns had capacity to understand the contents of Dr. Meloff’s report dated April 13, 2012, in the event that Ms. Enns actually received it in 2012. In response to a number of pre-printed questions that followed that disclosure, Dr. Leung endorsed the following:

1. It was not probable or likely that Ms. Enns could have read and understood the contents of Dr. Meloff’s report dated April 13, 2012 in the time period beginning July 2011 and ending in 2015.

2. As of March 19, 2018, it was still not probable that Ms. Enns could read and understand the content of Dr. Meloff’s April 13, 2012 report.

3. Ms. Enns suffered from “bipolar illness” prior to the accident.

4. Ms. Enns suffered from “chronic depression” prior to the accident.

5. Ms. Enns did not advise Dr. Leung that: she had been sexually assaulted by her husband in 2015 or 2016; she had been sexually assaulted by her brother-in-law in 2015; her father died in 2011 or 2012; her boyfriend “Jose” died; her sisters stole from her bank account; her sister stole large amounts of cash from her home and purse; criminal charges were laid against her sister for theft; Ms. Enns suffered from blurred/double vision after the accident until at least October 2016; she (Ms. Enns) had been found incapable of managing her own financial affairs; and she (Ms. Enns) had been found incapable of instructing counsel with respect to legal proceedings. [I observe that several of the assertions above are not the subject of any evidence on this motion.]

6. Dr. Leung never advised Ms. Enns that her stroke was related to the accident.

7. Dr. Leung never advised Ms. Enns that her stroke was not related to the accident.

8. Dr. Leung never advised Ms. Enns that she should consult a lawyer.

[241] Dr. Leung was not asked whether Ms. Enns was incapable of commencing a proceeding at any time as a result of her physical, mental or psychological condition.

(xxxviii) Involvement of the PGT on Behalf of Ms. Enns

[242] Finally, Ms. Stewart deposes that the Office of the Public Guardian and Trustee now acts as Ms. Enns’ guardian for property. Further, the title of proceeding in this action was amended pursuant to an order to continue, on August 27, 2017, with the Public Guardian and Trustee now acting as Ms. Enns’ litigation guardian.

[243] In the context of the admissible evidence set out above, I must now determine whether that evidence discloses a genuine issue that requires a trial to determine, by applying the law applicable to a motion for summary judgment pursuant to r. 20 of the Rules, which I will review below.

The Legal Principles Applicable to a Motion for Summary Judgment

i) The Applicable Principles

[244] Rule 20.01(3) of the Rules of Civil Procedure provides that:

A defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[245] Rules 20.04(2) – (2.1), in part, provide:

(2) The court shall grant summary judgment if,

a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence;

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of the deponent.

3. Drawing any reasonable inference from the evidence.

[Emphasis added.]

[246] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, Karakatsanis J. observed that the judicial determination of civil disputes must embrace processes other than a traditional trial where such processes may result in more accessible, proportional, timely and affordable modes of adjudication that yield fair and just resolutions of disputes. Several principles emerge from Hryniak including the following:

a) The procedure used to adjudicate a civil dispute must fit the nature of the claim. If the process is disproportionate to the nature of the dispute and the interest involved then it will not achieve a fair and just result (para. 29);

b) A genuine issue requiring a trial will not exist when the judge is able to reach a fair and just determination of an action on the merits on a motion for summary judgment. This will occur when the process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result than a trial (para. 49);

c) When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. However, a process that does not provide a judge with confidence in her conclusions can never be a proportionate method to resolve a dispute (para. 50);

d) On a summary judgment motion, the evidence need not be equivalent to that at trial, but it must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact finding tools, including ordering oral testimony [pursuant to r. 20.04(2.2) in Ontario] is often sufficient to resolve material issues fairly and justly (para. 57);

e) The standard of fairness is, therefore, not whether the procedure utilized to resolve the parties’ dispute is as exhaustive as a trial but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute (para. 50);

f) The fact finding powers under r. 20.04(2.1) are discretionary and are presumptively available to the motion judge. They “may” be exercised unless it is in the interest of justice for those powers to be exercised only at trial (para 45);

g) In determining whether “it is in the interest of justice” that the r. 20.04(2.1) fact-finding powers only be exercised at trial, the motion judge may be required to assess the relative efficiencies of proceeding by way of summary judgment, as opposed to trial (including the cost and speed of both procedures). The determination may also involve a comparison of the evidence that will be available at trial and the evidence available on the motion, as well as the opportunity to fairly evaluate that evidence. However, even when the evidence available on the motion is limited, there may be no reason to think better evidence will be available at trial (para. 58);

h) When a judge is able to fairly and justly adjudicate a claim through the use of the new fact finding powers it will generally not be against the interest of justice to do so. What is “fair and just” turns on the nature of the issues, the nature and strength of the evidence and the correspondingly proportional procedure in all the circumstances (para. 59);

i) In considering whether the use of the fact-finding power accords with the “interest of justice” a judge must consider the consequences of the motion and the context of the litigation as a whole. For instance, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact. Conversely, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost efficient approach (para. 60);

j) On a motion for summary judgment the judge should first determine if there is “a genuine issue requiring trial” based only on the evidence before her, without using the new fact finding powers. If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the fact-finding powers under r. 20.04(2.1) and (2.2). She may, at her discretion use those powers provided that their use is not against the interest of justice (para. 66); and

k) While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary, thereby giving the judge some flexibility in deciding the appropriate course of action in the context of a particular motion (para. 68).

[247] Notwithstanding the “culture shift” away from the primacy of trial and towards a proportional adjudicative process that yields a fair and just result, there will still be cases that must go to trial. Evidence by affidavit, prepared by the parties’ legal counsel can obscure the affiants’ authentic voice making the judge’s task of assessing credibility and reliability difficult. Accordingly, the motion judge must take care to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters the procedure in a way that would not likely occur in a full trial when the judge sees and hears it all: see Yusuf (Litigation guardian of) v. Cooley, 2014 ONSC 6501, 123 O.R. (3d) 474, at paras. 8 and 21, and Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.

[248] The evidentiary principles applicable to motions for summary judgment that were developed prior to the enactment of the current provisions of r. 20.04 continue to apply. The motion judge must still take a “hard look” at the evidence to determine whether the moving party has met its onus to demonstrate that there is no genuine issue requiring a trial. Each party must still put its best evidentiary foot forward and submit cogent and compelling evidence to support or oppose the relief sought. The motion judge is entitled to assume the record contains all the evidence the parties will adduce at trial. The responding party cannot reasonably rely on the position that a genuine issue requiring a trial exists because additional supportive evidence may emerge at trial: see Aranas v. Kolodziej, 2016 ONSC 7104, at para. 34; [Mazza v. Ornge Corporate Services Inc., 2015 ONSC 7785, at paras. 48-50](https://www.canlii.org/en/on/onsc/doc/2015/2