Court File and Parties
COURT FILE NO.: CV-14-498203
DATE: 2019-10-17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YVETTE ROBICHAUD AND SANDRA MCAULAY
Plaintiffs
– and –
KYRIAKOS CONSTANTINIDIS, SOFIA CONSTANTINIDIS AND COSECO INSURANCE COMPANY
Defendants
Counsel:
Joseph G. Caprara and Andra N. Preda, for the Plaintiffs
Jonathan Schwartzman and Akari Sano, for the Defendant, Sofia Constantinidis
HEARD: October 11, 2019
Ruling on THRESHOLD ISSUE
SCHABAS J.
Overview
[1] After the jury retired to consider its verdict in this personal injury motor vehicle matter, the defendant brought a “threshold” motion, arguing that the plaintiff’s claim for non-pecuniary damages and health care expenses is barred on the basis that her injuries do not fall within the exceptions to the statutory immunity provided for in s. 267.5(3) and (5) of the Insurance Act, RSO 1990, c. I.8 (“the Act”) and the applicable regulations.
[2] The purpose of the threshold is to limit the rights of victims of motor vehicle accidents to obtain non-pecuniary damages and ongoing health care costs in exchange for “more generous first-party benefits, regardless of fault, from his or her own insurer”: Meyer v. Bright (1993), 1993 3389 (ON CA), 15 OR (3d) 129 (C.A.), also cited as Lento v. Castaldo (1993) CarswellOnt 51. The limitations, therefore, focus on the seriousness and permanence of the injury and its importance to the victim in allowing claims for damages only in more serious cases.
The [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)
[3] The Act sets out when and how the threshold determination under sections 267.5(3) and (5) of the Act, respectively, can be made, both before and at trial. The relevant sections of the Act are as follows:
Protection from liability; health care expenses
(3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function….
Non-pecuniary loss
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function….
Motion to determine if threshold met; non-pecuniary loss
(12) In an action for loss or damage from bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pre-trial conference, determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function….
Determination at trial; non-pecuniary loss
(15) If no motion is made under subsection (12), the trial judge shall determine for the purpose of subsections (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
The Jury Verdict
[4] No motion was brought prior to trial and the Act requires me to determine the threshold at this stage. However, prior to drafting these Reasons, the jury returned with a verdict awarding the plaintiff $35,000 in general damages and $20,000 in past loss of income. Although sought, the jury awarded no damages for future loss of income or for any cost of care in the future (none was claimed for the past). The claim for past loss of income was much larger than the sum awarded to the plaintiff and is less than the income replacement benefits she received following the accident.
[5] Although judgment has yet to be finalized in this matter, counsel for both parties acknowledged following the verdict that as the non-pecuniary damages are less than the deductible mandated by s. 267.5(7) of the Act, the plaintiff is not entitled to receive any non-pecuniary damages, despite the jury’s award.
[6] There is substantial case law suggesting that judges are not bound by the jury verdict, although it is something I may consider in determining the threshold issue, which requires me to make findings of fact on the evidence. As Edwards J. noted in DeBruge v. Diana Arnold, 2014 ONSC 7044, referring to the Ontario Court of Appeal decision in Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719 (C.A.):
However, the Court of Appeal has made it clear in Kasap v. MacCallum, 2001 7964 (ON CA), [2001] O.J. No. 1719, that a jury verdict at its highest is only one factor that the trial judge may consider, but is not bound to consider coming to its ultimate conclusion regarding the threshold motion. In that regard, the Court of Appeal stated as follows:
Nowhere does the legislature say that the judge is bound to consider the jury verdict much less that the judge is bound by an implied finding of credibility of the jury. By the same token the legislation does not suggest that the trial judge cannot, in the exercise of judicial discretion, consider the verdict of the jury. The legislation is clear: the judge must decide the threshold motion, and in doing so, the judge is not bound by the verdict of the jury. The timing of the hearing is in the discretion of the trial judge.
[7] This point was confirmed recently in Mann v. Jefferson, [2019] O.J. No. 1073 at para. 11 in which Trimble J. also noted that the trial judge “may not abandon to the jury his or her statutorily imposed duty to make findings of fact necessary to decide the threshold.”
The Threshold Test
[8] In Meyer v. Bright, at para. 16, the Court of Appeal set out three questions to be addressed:
(1) Has the injured person sustained permanent impairment of a function caused by continuing injury which is physical, mental, or psychological in nature?
(2) If the answer to question number 1. is yes, is the function, which is permanently impaired, an important one?
(3) If the answer to question number 2. is yes, is the impairment of the important function serious?
[9] In Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at para. 39 Firestone J. noted that “[i]t is the ‘effect of the injury’ on the person and not the ‘type of injury,’ or labels attached to it, which should be the focus of the threshold analysis.”
[10] The onus of proof on a threshold motion is on the plaintiff to establish, on a balance of probabilities, that her alleged injuries fall within the statutory exceptions in the Insurance Act. The plaintiff must prove that the injuries were caused by the motor vehicle accident in question: Meyer v. Bright, at para. 50. The test is the “but for” causation test: Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181.
[11] The provisions to be applied in determining the threshold are contained in sections 267.5 of the Act and sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 as amended by O. Reg. 381/03.
[12] Sections 4.1 and 4.2 of the Regulation, provide additional direction on determining the threshold issue. Section 4.3 identifies specific evidence which must be adduced to meet the threshold:
4.1 For the purposes of section 267.5 of the Act,
“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
- For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.
- For the impairment to be permanent, the impairment must,
i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
(2) This section applies with respect to any incident that occurs on or after October 1, 2003.
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.
Overview of the Facts
[13] This trial took 4 weeks. The plaintiff called 14 witnesses, including herself. Her witnesses included several treating physicians including an orthopedic surgeon, psychiatrist and a neurologist, as well as a chiropractor, occupational therapist, and an independent physician expert – an anesthesiologist with expertise in chronic pain. The defendant called one expert witness, an orthopedic surgeon, and put in reports, on consent, from a chiropractor who had conducted a job site assessment of the plaintiff’s job at the time of the accident, and a functional abilities assessment of the plaintiff herself.
[14] The plaintiff was rear-ended in a motor vehicle accident on November 7, 2012. She was 39 years old. She felt a headache immediately and over the next days and weeks developed pain in her neck, right shoulder, and back. She went back to work the next day and continued to work for 4 weeks after the accident. The plaintiff had a history of lower back pain and depression prior to the accident. However, she had an active life, working in what she described as a physically demanding, but part-time, job at a Weston Bakeries bread plant that she enjoyed, walking extensively with her dog, gardening, going to the gym, having a busy social life and attending to the needs of her children, especially her youngest child, a son who was 11 at the time of the accident. She did virtually all the housekeeping and home maintenance chores, and enjoyed woodworking.
[15] Since the accident, the plaintiff’s life has changed. She has been battling depression and chronic pain. She no longer works at Weston Bakeries, she can only walk shorter distances, she no longer gardens or goes to the gym. She could not continue to take her son to basketball, she rarely sees friends, and needs help with housekeeping, home maintenance and heavy shopping. She no longer does any woodworking. She has gained weight. She works limited hours at a retail job at Dollarama that is less satisfying than her work at Weston.
[16] The plaintiff attributes her condition to the injuries suffered in the accident. The injuries and complaints she suffers from are the same as the complaints she had in the days and weeks following the accident, and have not gone away. To the extent that her pre-existing conditions may be a cause of her pain and depression, she claims that they were exacerbated by the accident.
[17] The defendant’s position is that if the plaintiff suffered any injury in the accident, she sustained, at most, a minor and uncomplicated soft tissue whiplash injury to her neck. The injuries resolved within a short period of time after the accident, and any impairment she continues to have is a result of pre-existing or other conditions, including severe degenerative disc disease and spondylosis (arthritis of the spine), depression, and other injuries she sustained before or after the accident, and which are not attributable to the car accident in November 2012. The defendant also attributes the plaintiff’s ongoing difficulties to her being unwilling or unable to quit smoking, exercise and lose weight, all of which contributes to her continuing pain and impairment.
Analysis
Causation and Permanent Impairment
[18] Based on all the evidence in this case, I find that the plaintiff does not meet the statutory exception, or threshold, allowing her to recover non-pecuniary loss. While I accept, as did the jury, that the plaintiff suffered some injury in the accident, it was not long-lasting, or permanent. In short, while the accident caused pain which required the plaintiff to be off work for a period of time thereafter, the injuries were soft tissue injuries which would have resolved within, at most, six months of the accident.
[19] I accept, however, that the plaintiff suffers from a permanent impairment. She has had chronic pain for many years and the prognosis for recovery is mixed. There is now no question that chronic pain will meet the threshold of a permanent impairment (see, Hartwick v. Simser, [2004] O.J. No. 4315); however, as the plaintiff suffered from severe degenerative disc disease prior to the accident, and this was confirmed post-accident to be in both the lumbar and cervical spine, the plaintiff has not met her burden to establish, on a balance of probabilities, that her ongoing complaints are a result of the accident of November 7, 2012. While there may be continuity between her symptoms or complaints following the accident and the present, the evidence is that any whiplash injury she may have suffered would have healed within 6 weeks to 6 months of the accident. She suffered no displacement of the spine, or other objectively diagnosable long-term injury. Her pain is explained by her spondylosis, or arthritis in the cervical and lumbar spine, which is made worse by the plaintiff’s weight, lack of exercise, and smoking, as well as serious depression, of which she had previous episodes prior to the accident. She also has been treated for headaches, including migraine headaches, and is on anti-depressants and medication to help her sleep.
[20] The plaintiff’s expert painted a grim picture of “life-long pain” ahead, which supports a permanent impairment. The defendant’s expert was more optimistic, predicting that with exercise, weight loss, and a positive attitude the plaintiff could minimize the effects of her condition and lead a relatively normal life. In my view, the weight of the evidence supports a finding of permanence. Although her condition has “waxed and waned”, it will continue, in the “sense of a weakened condition” into the indefinite future: Bishop-Gittens v. Lim, 2016 ONSC 2887 at paras. 34, 67; Morrison v. Gravina, 2001 62749 (ON SC), 2001 O.J. No. 2060 at para. 10; Bos Estate v. James (1995) 1995 7162 (ON SC), 28 CCLI (2d) 166 (Ont. Gen. Div.) However, as discussed above, I find her current condition was not caused by the accident.
Important Impairment
[21] The plaintiff’s current impairment has a major role in her well-being. I accept that she does not carry on many of the functions she engaged in before the accident, such as gardening, woodworking, gym and Zumba classes, and long walks with her friends. Her limited ability to bend and lift are important in order to carry out activities of daily living, and to do her job. Considering the plaintiff’s life experience, and the impact her condition has on her daily life, I conclude that her impairments do affect important aspects of her life: Meyer v. Bright, at para. 25.
Serious Impairment
[22] The Court of Appeal in Meyer v. Bright noted that “serious” does not mean catastrophic or “very serious”, stating at para. 29:
“Serious” is a word that by its very nature imports a sense of degree and imports a range. The courts must avoid qualifying the word “serious”. If the Legislature had wanted to do so it could have said very serious to indicate that it was only those impairments which were at the upper end of the range which would permit an injured person to sue for damages.
[23] At the same time, however, the Court of Appeal commented, at para. 70, that by using the word “serious” “it is apparent that the legislature intended that injured persons are required to bear some detrimental impact upon their life without being able to sue for it.” On the other hand, in May v. Casola, [1998] O.J. 2475 the Court of Appeal stated:
In our view a person who can carry on daily activities, but is subject to permanent symptoms including, sleep disorder, severe neck pain, headaches, dizziness, and nausea, which, as found by the motions Judge, had significant effect on her enjoyment of life must be considered as constituting serious impairment.
[24] Assuming that the plaintiff’s impairments stem from the accident, in my view her impairments do not rise to the level of seriousness required by the Act. The plaintiff can perform most tasks of daily living, albeit some with pacing. While she has pain in her neck, shoulder and back, she takes medication which helps relieve it, and is able to work. Indeed, she works at least 25 hours per week, and often more, in a job that requires considerable standing, bending and interpersonal conduct. This is similar to her work hours before the accident, although that job may have been somewhat more demanding. To the extent she feels pain or fatigue, she is accommodated by her employer, and there is no evidence that her employer would not accommodate her if she wished to work more hours; to the contrary, her supervisor testified that she was a good employee and had no difficulty accommodating her by permitting her to sit at the cash register or take medication when she needed to do so. There is no evidence suggesting that, today, she would not be able to do the job she had before the accident, with or without accommodation. In this regard I note that s. 4.2(1) requires a plaintiff to make efforts to obtain accommodation if needed. In this case, no one was called from her original employer at the time of the accident to give evidence regarding the demands of her job or whether she could be reasonably accommodated on an ongoing basis. The evidence also disclosed that the plant has now closed down and there is no indication of whether the plaintiff would have been offered other work at a different location.
[25] I note that in Meyer v. Bright, at paras. 90 – 96, the Court of Appeal considered similar restrictions on one of the litigants who had suffered soft tissue injuries and found them not to be serious. That case involved a woman who was very active prior to the accident but then suffered from permanent back and neck pain which prevented her from gardening and shovelling snow, required her to do housework at a very slow pace, and prevented her from doing certain tasks and activities that she would otherwise have done. This has many similarities to the plaintiff’s situation.
[26] Similarly, in Valentine v. Rodriguez-Elizalde, at para. 82, the plaintiff was found not to have a “serious” impairment where she could, “albeit with pain and modification,… sweep, mop, do laundry, wash dishes, make her bed, cook, grocery shop, drive and cut the grass…[T]he interference she experiences as a result of the accident-related injuries, while clearly frustrating and unpleasant, are not beyond tolerable.”
[27] In my view, therefore, the plaintiff’s impairment does not “substantially interfere” with her work or life to the extent necessary to meet the “serious impairment test”.
Evidentiary Requirement: Section 4.3
[28] I wish to address one other point regarding causation and the need for expert evidence as required in the Regulation.
[29] The Regulation creates a requirement in s. 4.3 that certain evidence come from a physician. As the plaintiff’s independent expert on chronic pain was not qualified by me to give an opinion on causation, it is argued that the requirement in s. 4.3(4) is not met. The defendant also argues that there was no evidence from the chronic pain specialist on the criteria in subsection (2), nor was he qualified to provide such evidence as required under subsection (3).
[30] In my view, the plaintiff did adduce evidence that met the requirements of s. 4.3 of the Regulation.
[31] I qualified Dr. Stephen Brown, an anesthesiologist, as an expert in the diagnosis and treatment of pain and chronic pain. In this case, Dr. Brown examined the plaintiff and reviewed her medical file in 2019, over 6 years after the accident. Exercising my gatekeeper function I did permit him to testify that the accident was a direct cause of the injuries of which the plaintiff complained of. In limiting his evidence, I noted that this was the ultimate issue for the jury and that “connecting the dots” was their job. Nor did I permit him to specifically answer the questions as to whether, in his view, the injuries or impairments suffered by the plaintiff were “serious”, “important” or “permanent”. I did, however, permit him to describe the plaintiff’s symptoms, her physical and psychological condition, including her history, and her prognosis. Further, he discussed his recommendations for future treatment.
[32] Dr. Brown effectively testified to all of the above, without objection by the defendant. He described the plaintiff’s symptoms and their impact on her life in considerable detail, which addressed all of the points in subsection (2) of s. 4.3. And he was qualified to do so.
[33] He also testified as to the consistency in the plaintiff’s symptoms since the accident, based on his review of her medical records, and that there was no other apparent cause for her injuries than the car accident. Indeed, he gave extensive evidence about the onset of chronic pain and how it continues following a physical injury. He used the analogy of a stove and smoke alarm, noting that a pot may catch fire on a stove, setting off a smoke alarm and damaging the stove. Although the fire may be put out and the stove repaired, the alarm may continue to ring. Dr. Brown’s opinion was that the plaintiff’s alarm was continuing to ring in her nervous system – the injury may have healed but the pain signals continue. Furthermore, the plaintiff called other physicians, including an orthopedic surgeon who treated her following the accident in 2013 and 2104, who testified that the plaintiff’s symptoms were consistent with a whiplash injury. Even the defendant’s expert conceded that she may well have suffered a soft tissue whiplash injury to her neck.
[34] Accordingly, there was medical evidence, from “one or more physicians” concluding that her impairments were “directly or indirectly sustained as the result of the use or operation of an automobile.” Having said that, I find that while the plaintiff sustained injuries in the accident of November 7, 2012, her ongoing impairments are due to pre-existing conditions. It appears the jury was of the same view, in making a relatively modest award of general damages and loss of income, and not making any award that would reflect a finding of ongoing and permanent harm from the accident.
Conclusion
[35] For the reasons set out above, I find the plaintiff has not met her evidentiary burden to establish that her continuing impairments were caused by the motor vehicle accident. Further, while she has impairments which are permanent and affect an important physical, mental or psychological function, her impairments are not “serious” so as to meet the threshold for exemption from the effect of sections 267.5(3) and (5) of the Act.
Schabas J.
Released: October 17, 2019