Court File and Parties
Court File No.: CV-15-534822 Date: 2019-10-23 Ontario Superior Court of Justice
Between: Matthew MacFarlane, Plaintiff – and – Sergiu Razmerita, Mohamed S. Bhaloo, Haeyonnge Kim and Kyend Ryel Choi a.k.a. Kyen Ryel Choi, Defendants
Counsel: Frank Loreto, for the Plaintiff Paul Barnes, for the Defendant, Sergiu Razmerita
Heard: October 21, 2019
Before: Sanfilippo J.
Ruling on Threshold Motion
Overview
[1] The Plaintiff, Matthew MacFarlane, brought this action for damages for personal injuries claimed to have been sustained as a result of a motor vehicle accident that occurred on August 24, 2013. Mr. MacFarlane was stopped in his pick-up truck on an exit ramp off Highway 401, with two vehicles similarly stopped or in the process of stopping behind him. A vehicle owned and operated by the defendant, Sergiu Razmerita, collided with the rear of the vehicle that was two vehicles behind Mr. MacFarlane. The result was that the vehicle rear-ended by Mr. Razmerita, rear-ended the vehicle behind Mr. MacFarlane that, in turn, rear-ended Mr. MacFarlane’s vehicle.
[2] By reason of this four-vehicle chain collision, Mr. MacFarlane sued Mr. Razmerita as well as the owners and operators of the vehicles that were impacted between him and Mr. Razmerita. Mr. Razmerita admitted liability for the motor vehicle accident, with the result that Mr. MacFarlane released all defendants except Mr. Razmerita, whom I will mainly refer to as the “Defendant”.
[3] The trial in this action proceeded with a jury for nine days, with the Plaintiff seeking damages for non-pecuniary loss, past and future income loss, and past and future health care expenses. The Plaintiff abandoned his claim for past and future health care expenses after the evidence was completed and before the closing addresses to the jury.
[4] The Defendant moved at the conclusion of the evidence for a determination of whether the Plaintiff’s claim for non-pecuniary loss was barred by reason of section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. I heard submissions on this motion after the jury commenced their deliberations.
[5] The jury returned its verdict and did not award the Plaintiff any amount.
[6] Even though the jury did not award Mr. MacFarlane any amount for non-pecuniary loss, I must nonetheless rule on this motion: Mandel v. Fakhim, 2018 ONSC 7580 (Div. Ct.), at para. 33: “The mandatory language of s. 267.5(15) requires the judge to decide the threshold issue. It was not open to the trial judge to declare the threshold issue as moot and refuse to decide it”. Indeed, even if no motion was brought by the Defendant, I would nonetheless be required under section 267.5(15) of the Insurance Act to determine whether the threshold has been met: Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at para. 16.
[7] On the basis of the reasons that follow, I grant the Defendant’s motion. I find that the Plaintiff’s claim for non-pecuniary loss is barred by reason of his failure to prove that his injuries fall within the exception set out in section 267.5(5) of the Insurance Act.
I. THE THRESHOLD MOTION
[8] The Defendant sought an Order that the Plaintiff’s claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the statutory immunity contained in s. 267.5(5) of the Insurance Act, and the regulations passed pursuant thereto. This is routinely referred to as a “Threshold Motion”.
[9] Section 267.5(12) provides as follows:
(12) Motion to determine if threshold motion met; non-pecuniary loss. 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, determined 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. [Emphasis added]
[10] The Plaintiff conceded that he has not sustained a permanent serious disfigurement. Accordingly, the sole issue on this Threshold Motion is whether the Plaintiff sustained, in the accident of August 24, 2013, a “permanent serious impairment of an important physical, mental or psychological function”.
[11] The applicable statutory provisions and regulations that must be considered in determining this Threshold Motion are contained in sections 267.5 of the Insurance Act and in sections 4.1, 4.2 and 4.3 of the pertinent regulations passed pursuant to the Insurance Act; specifically, Court Proceedings for Automobile Accidents That Occur on or After November 1, 1996, O. Reg. 461/96 (“O. Reg. 461/96”) as amended by Court Proceedings for Automobile Accidents That Occur on or After November 1, 1996, O. Reg.381/03 (“O.Reg. 381/03”). Section 267.5(5)(b) of the Insurance Act, provides that the Defendant will not be liable in this action for non-pecuniary loss unless the plaintiff has sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function.” In light of the Plaintiff’s concession, only the second element is pertinent to my analysis, as set out in section 267.5(5)(b):
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,
(b) permanent serious impairment of an important physical, mental or psychological function.
[12] Section 4.1 of O. Reg. 461/96 explains that “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”. In order to be a “permanent serious impairment of an important physical, mental or psychological function”, the impairment must meet all of the criteria set out in section 4.2(1)(1.)(2.) and (3.) of O. Reg. 491/96.
II. THE EVIDENCE
A. The Accident
[13] Mr. MacFarlane testified that after the collision of August 24, 2013, he got out of his vehicle, surveyed the damage, and then got back into his vehicle to await the police. He stated that he did not recall hitting his head and later reported consistently to his medical caregivers that he did not. He also reported that he did not lose consciousness and had no post-accident amnesia. He testified that he had an “instant headache and pain” after the collision.
[14] He did not seek or receive medical attention at the scene of the accident or in the days following. Mr. MacFarlane testified that he did not seek any medical attention until “about a week later” when he went to the emergency department at St. Joseph’s Hospital, complaining of head pain. He did not tender any evidence of his attendance at St. Joseph’s Hospital for emergency medical attention. Rather, this evidence was introduced by the defence expert physiatrist, Dr. Albert Cheng. The St. Joseph’s Hospital emergency department record showed that the Plaintiff first sought medical attention in relation to the August 24, 2013 Accident on September 22, 2013: almost a month post-accident. A CT Scan taken on September 23, 2013 was normal. Mr. MacFarlane complained of headaches, and that he had soft tissue injury resulting from whiplash, with pains to his neck, shoulder and back.
[15] Mr. MacFarlane testified that his head pain, with resultant memory loss, lack of focus and concentration, and his soft tissue pains, have continued unabated from August 24, 2013 to today. Mr. MacFarlane swore that all of his current conditions, which he says include acquired brain injury, chronic pain, depression, fatigue, sleep apnea, memory loss, concentration impairment, back, neck and shoulder pain, headaches, depressed moods, anxiety, and, irritability, were caused by the 2013 Accident.
[16] Mr. MacFarlane did not call to testify any of the physicians who treated him in the period from August 24, 2013 to October 2015. This 26-month period is important because within it Mr. MacFarlane would be involved in three more motor vehicle accidents.
B. The Subsequent Accidents
[17] On January 20, 2014, Mr. MacFarlane caused a motor vehicle accident when he rear-ended a vehicle. He did so again on March 25, 2015 and on October 26, 2015. Mr. MacFarlane testified that these three motor vehicle accidents, which I will refer to as the “Subsequent Accidents”, were “fender benders”. He admitted that he was at-fault for all of them. He testified that he did not recall whether he sustained any injuries in any of the Subsequent Accidents.
[18] In cross-examination, Mr. MacFarlane conceded that the property damage sustained by his truck in the accident of August 24, 2013 caused by Mr. Razmerita, which I will refer to as the “2013 Accident”, was $4,032.58, less than the $8,917.63 in property damage that he sustained in the March 2015 Accident and less than the $10,507.97 that he sustained in the October 2015 Accident. He acknowledged that the October 2015 Accident was the only accident in which Mr. MacFarlane was transported by ambulance to hospital. No evidence was presented concerning the injuries sustained by Mr. MacFarlane in this October 2015 Accident, including the distress that necessitated his transport to the emergency that day.
C. The Plaintiff’s Medical Evidence
[19] As I stated, the Plaintiff did not lead any medical evidence of the treatment of the injuries that he claimed to have sustained in the 2013 Accident in the period from when it occurred on August 24, 2013 to the date of the January 20, 2014 Accident. He did not lead any medical evidence of the injury or injuries he sustained, and the diagnosis and treatment that he received at the time in the 2013 Accident, in the January 20, 2014 Accident, the March 25, 2015 Accident or the October 26, 2015 Accident. The Plaintiff did not tender any treating physician’s medical evidence of whether the subsequent accidents had no impact on the injuries that Mr. MacFarlane claimed to have sustained in the 2013 Accident, whether they exacerbated or were incremental to existing injuries, or whether they caused new and unrelated injuries.
[20] Mr. MacFarlane presented the evidence of two physicians who treated him after he had been involved in all four accidents.
(i) Dr. Andrew Smolkin
[21] Dr. Andrew Smolkin is a medical doctor certified in Family Medicine and, for some 20 years, has practised as a General Practitioner Psychotherapist. He first treated Mr. MacFarlane in November 2015 and continued to do so until November 2018. Dr. Smolkin saw no objective evidence of a brain injury but stated that mild traumatic brain injury – a concussion – only shows through imaging when there is intracranial bleeding which, in Mr. MacFarlane’s case, was not present. Dr. Smolkin testified that Mr. MacFarlane had suffered a mild traumatic brain injury and continued to experience the consequences of this injury: including memory loss; depressed mood; headaches, and; diminished concentration. Dr. Smolkin testified that these injuries were attributable to the 2013 Accident.
[22] Dr. Smolkin admitted in cross-examination that his assessment that Mr. MacFarlane’s injuries were attributable to the 2013 Accident was made without knowledge that Mr. MacFarlane had been involved in the three Subsequent Accidents that followed the 2013 Accident. This is because Mr. MacFarlane never told Dr. Smolkin that he had been involved in the three Subsequent Accidents. I conclude that the only accident that Dr. Smolkin could connect Mr. MacFarlane’s injuries to was the 2013 Accident because that is the only accident that Dr. Smolkin knew about.
[23] Dr. Smolkin stated that Mr. MacFarlane’s prognosis was guarded. He was not asked, and so did not provide an opinion concerning whether Mr. MacFarlane’s injury constituted a “permanent serious impairment of an important physical, mental or psychological function”.
(ii) Dr. Chanth Seyone
[24] Dr. Chanth Seyone obtained his medical degree in 1984 and completed his psychiatry residency in 1996. He is a certified neuropsychiatrist. He has treated Mr. MacFarlane since January 2018 and saw him last in the month before the trial. Dr. Seyone testified that Mr. MacFarlane had sustained a mild traumatic brain injury that had been complicated by depression, anxiety and chronic pain.
[25] Dr. Seyone knew of all four motor vehicle accidents in which Mr. MacFarlane had been involved. Mr. MacFarlane told him that the 2013 Accident was a “four car pile-up at high speed”, and that it was the most severe of the four motor vehicle accidents.
[26] Dr. Seyone stated that he had no opinion regarding which accident caused which injury, if any, to Mr. MacFarlane. He testified that he could not attribute injuries to specific motor vehicle accidents. He saw Mr. MacFarlane only after all four accidents had occurred and did not parse out the accidents and assign or attribute individual culpability to each or to any for Mr. MacFarlane’s conditions. Dr. Seyone could not say that one accident was more causative than another for the mild traumatic brain injury that he diagnosed, as he took the entirety of the accidents as a collective.
[27] Dr. Seyone testified that his prognosis of Mr. MacFarlane was “poor and guarded”. He was not asked, and so did not provide an opinion concerning whether Mr. MacFarlane’s injury constituted a “permanent serious impairment of an important physical, mental or psychological function”.
III. THE ISSUE
[28] The issue raised on this Threshold Motion is whether the Plaintiff has proven, on a balance of probabilities, that he has suffered a permanent serious impairment of an important physical, mental or psychological function as a result of the August 24, 2013 motor vehicle accident, in accordance with the requirements of section 267.5(5)(b) of the Insurance Act.
IV. ANALYSIS
A. The Burden of Proof
[29] The burden of proof is on the Plaintiff to establish that his impairments meet the statutory exception set out in section 267.5(5)(b) of the Insurance Act: Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.), at para. 50; Sabourin v. Dominion of Canada General Insurance, [2009] O.J. No. 1425 (S.C.), at para. 78.
B. The Test
[30] In Meyer, at para. 50, the Court of Appeal set out the three-part analysis to be advanced in order to determine whether the Plaintiff has established the exception to the threshold:
Has the injured person sustained permanent impairment of a physical, mental or psychological function?
If yes, is the function which is permanently impaired important?
If yes, is the impairment of the important function serious?
[31] Having established the three-part test that the Plaintiff is required to prove, on a balance of probabilities, I will now address the type of evidence that the Plaintiff must adduce to meet his burden of proof.
C. The Required Evidence
[32] The evidence required to establish the three-part test on this Threshold Motion is set out in section 4.3(1) of O. Reg. 461/96, which provides that the evidence that must be adduced by the Plaintiff to prove “permanent serious impairment of an important physical, mental or psychological function”, is as follows:
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. [Emphasis added]
[33] Section 4.3 requires that the Plaintiff must lead evidence of “one or more physicians” who is “trained for and experienced in the assessment or treatment of the type of impairment that is alleged” and who bases her or his opinion on “medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine”. I find that this requirement may be satisfied by a participant medical expert, as characterized by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, just as it may be satisfied by the physician litigation expert retained to provide expert opinion evidence in accordance with Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and who satisfies the test for admissibility: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40; R v. Mohan, [1994] 2 S.C.R. 9; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, 2 S.C.R. 182; Imeson v. Maryvale, 2018 ONCA 888, 143 O.R. (3d) 241. Where the participant physician expert proffers an opinion extending beyond that formed as part of the “ordinary exercise of his or her skill, knowledge, training and experience while observing or participating” in the patient’s care and treatment, he or she must comply with Rule 53.03: Westerhof, at paras. 59-64.
[34] Whether as a participant expert or as a litigation expert, the evidence of the physician must address the elements specified in section 4.3.
D. Has the Plaintiff Established that the 2013 Accident caused a “Permanent Serious Impairment of an Important Physical, Mental or Psychological Function”?
(a) Analysis of the Plaintiff’s Medical Evidence
[35] The Plaintiff relied on the expert opinion evidence of Dr. Smolkin and Dr. Seyone in support of his submission that his impairments meet the statutory exceptions to the bar contained in section 267.5(5)(b). I do not accept that this evidence does so. I will explain why.
[36] Section 4.3(1)(4) of O. Reg. 461/96 requires that 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”: in this case, in the 2013 Accident. I do not accept Dr. Smolkin’s opinion that Mr. MacFarlane’s current conditions derive from the 2013 Accident as Dr. Smolkin was unaware that Mr. MacFarlane had been involved in the Subsequent Accidents. As such, the foundation on which his expert opinion was based, namely that Mr. MacFarlane was only involved in one accident, was not accurate. Accordingly, I do not attribute any weight to Dr. Smolkin’s opinion on the cause of Mr. MacFarlane’s impairments.
[37] Dr. Seyone did not provide an opinion regarding which of Mr. MacFarlane’s four accidents caused which injury or impairment to Mr. MacFarlane. He did not provide an opinion that Mr. MacFarlane’s impairments were caused by the 2013 Accident.
[38] The Plaintiff relies on two other sources of medical opinion. The defence litigation expert physiatrist, Dr. Albert Cheng, testified that, from his review of the medical records, the 2013 Accident was the initiating factor – it “got the ball rolling” – in Mr. MacFarlane’s mild traumatic brain injury and soft tissue injuries. However, he also testified that in his clinical experience, “uncomplicated mild traumatic brain injuries”, being those not objectively ascertainable through imaging, that involve no loss of consciousness or post-accident loss of memory, usually achieve full recovery within months of having been sustained.
[39] The Plaintiff relied on Dr. Cheng’s identification of a note dated May 7, 2014 by Dr. Raymond Zabieliauskas, a treating physiatrist, who opined that all the documentation pointed towards Mr. MacFarlane having sustained a “definite traumatic brain injury as a result of the subject motor vehicle accident”. However, this note was made after the second motor vehicle accident of January 2014. Dr. Zabieliauskas, like all of Mr. MacFarlane’s treating physicians from August 2013 to October 2015, was not called to testify at trial.
(b) Analysis of the Moving Party Defendant’s Evidence
[40] The Defendant adduced expert engineering accident reconstruction evidence as well as expert medical opinion evidence.
(i) Expert Engineering Evidence
[41] The Defendant presented Mr. Shady Atalla, who was qualified as an expert forensic engineer and was permitted to testify in the area of accident reconstruction. He testified to the speeds and movement of the vehicles involved in the 2013 Accident. Mr. Atalla provided his expert opinion evidence that the speed change of Mr. MacFarlane’s pick-up truck resulting from the rear impact in the 2013 Accident was less than 8 kilometres per hour.
[42] The Defendant also presented Mr. Sam Kodsi, who was qualified as an expert forensic engineer with expertise in biomechanical analysis, kinematics, and accident reconstruction. He was permitted to testify on the biomechanical aspects of the physical impact to Mr. MacFarlane of the 2013 Accident. On the basis that Mr. Atalla’s opinion was accepted, namely that the speed change of the rear impact was less than 8 kilometres per hour, Mr. Kodsi provided his expert biomechanical opinion evidence that the likelihood of Mr. MacFarlane suffering a concussion in the 2013 Accident was less than 1%.
[43] The Plaintiff did not lead any evidence challenging the expert opinion evidence presented by Mr. Atalla and Mr. Kodsi. The testimony of these engineering experts was unaffected by cross-examination and is consistent with the physical evidence of the property damage to the vehicles in the 2013 Accident. I accept the expert opinion evidence of Mr. Atalla and Mr. Kodsi.
(ii) Expert Medical Evidence
[44] The Defendant presented two medical experts: as indicated earlier, Dr. Albert Cheng, a qualified expert physiatrist, and Dr. Lawrie Reznek, a qualified expert psychiatrist.
[45] Dr. Reznek testified as to certain objective signs of a concussion, known also as a “mild traumatic brain injury”. He stated that there is typically the striking of the head or a deceleration that causes the brain to strike the interior of the skull; a loss of consciousness and, if not, a dazed consciousness, and; some post-traumatic amnesia. Dr. Reznek stated his opinion that Mr. MacFarlane did not sustain a mild traumatic brain injury in the 2013 Accident because all the characteristics of such an injury were absent. Dr. Reznek stated his opinion that “Mr. MacFarlane is not suffering from any psychiatric impairment attributable to the accident of August 24, 2013”.
[46] Dr. Cheng stated that all the injuries complained of by Mr. MacFarlane from the 2013 Accident had “long-since resolved” by the time of his examination of Mr. MacFarlane in 2019. None were validated by his examination. Dr. Cheng stated that he could not “parse out” the role of the various motor vehicle accidents in causing Mr. MacFarlane’s injuries. From the standpoint of physiatry, Dr. Cheng stated that, in his opinion, the injuries sustained by Mr. MacFarlane in the 2013 Accident were not permanent or serious.
[47] These medical experts were retained by the defence specifically to address the medical issues raised by the Plaintiff in this trial, including to provide evidence in accordance with section 4.3(1)(4) of O. Reg. 461/96: namely, whether the impairment complained of by Mr. MacFarlane was “directly or indirectly sustained as the result of the use or operation of an automobile” in the 2013 Accident. They both testified that the impairments were not so caused.
(c) Conclusion- The Plaintiff’s Claim for Non-Pecuniary Damages is Barred by Section 267.5(5) of the Insurance Act
[48] The three-part test set out in Meyer requires, as its first element, that the Plaintiff establish, on a balance of probabilities, that he has sustained a “permanent impairment of a physical, mental or psychological function” caused by the 2013 Accident. I have determined that the Plaintiff has not discharged his burden of establishing this element.
[49] The only physician evidence presented by the Plaintiff on this issue was the opinion of Dr. Smolkin. For the reasons given, I do not accept Dr. Smolkin opinion on the cause of Mr. MacFarlane’s impairments. I accept the expert opinion evidence provided by Dr. Cheng and Dr. Reznek and find that the Plaintiff has not established that he sustained an injury in the 2013 Accident that caused a “permanent impairment of a physical, mental or psychological function”.
[50] I have taken into consideration Mr. MacFarlane’s testimony that all his current impairments emanate from the 2013 Accident. I do not accept this evidence because it is not plausible. The Subsequent Accidents caused significant property damage to Mr. MacFarlane’s vehicle and, in the case of the October 2015 accident, treatment at a hospital. Mr. MacFarlane’s statement that the Subsequent Accidents were “fender benders” whereas the 2013 Accident was the biggest impact of all is inconsistent with the physical evidence adduced at trial and the engineering evidence, which I have accepted. Mr. MacFarlane’s attribution of his impairments to the 2013 Accident, alone, is not corroborated and, most importantly to my analysis on this Threshold Motion, is not proven by the medical evidence.
[51] Even if I had accepted Mr. MacFarlane’s evidence, this is not enough to meet the threshold set out in section 267.5(5)(b). Mr. MacFarlane was required, by O. Reg. 461/96, section 4.3(2) to adduce physician evidence of the nature and permanence of the impairment, the specific function that is impaired and the importance of this specific function, caused by the 2013 Accident, and did not do so. He was required by section 4.3(4) to adduce physician evidence that the impairment is “directly or indirectly sustained as a result of the use or operation of an automobile” caused by the 2013 Accident and did not do so.
[52] As Mr. MacFarlane has not established the first step in the three-step analysis set out in Meyer, namely he has not proven that he has sustained “permanent impairment of a physical, mental or psychological function” caused by the 2013 Accident, I am not required to determine steps 2 and 3. Namely, there is no need to assess whether the “function which is permanently impaired is important”, or whether the “impairment of the important function is serious”.
V. DISPOSITION
[53] In accordance with sections 267.5(12), (13) and (15) of the Insurance Act, I have determined that Mr. MacFarlane has not established that he sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental or psychological function arising out of the motor vehicle accident in which he was involved on August 24, 2013. As a result, Mr. MacFarlane’s claim in this action for non-pecuniary loss is dismissed as barred pursuant to section 267.5(5) of the Insurance Act.
Sanfilippo J.
Released: October 23, 2019