De Brito v Demeester, 2019 ONSC 6253

COURT FILE NO.: CV-15-520484

DATE: 20191029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KELEN CRISTINA DE BRITO

Plaintiff

– and –

GEORGE J. DEMEESTER

Defendant

Gerald Sternberg, Counsel for the Plaintiff

Frank Del Giudice and Annie Padhani, Counsel for the Defendant

HEARD: October 10 to October 29, 2019

G. DOW, J.

REASONS ON THRESHOLD MOTION

1The plaintiff brought this action for damages following a motor vehicle collision on April 14, 2013. The action proceeded to trial between October 10 to October 25, 2019.

2The plaintiff was struck while in her vehicle was stopped waiting to get into a parking lot for the Direct Energy Center on the grounds of the CNE. The defendant, who was about 5 feet to one car length ahead of her, reversed and struck her 2001 Chevrolet Venture Minivan on its passenger side front corner with the rear of his 2007 Nissan Versa, a compact utility vehicle.

3The defendant admitted liability for the collision but maintained it was a minor collision which could not have resulted in any injury to the plaintiff. This was based on evidence from Dr. Parkinson, an expert in biomechanics who, with the assistance of an accident reconstruction engineer, concluded the maximum speed of the impact could not have exceeded 8 to 12 kilometers per hour. The minimum speed to cause any spinal injury is 13 kilometers per hour.

4The jury verdict of October 25, 2019 awarded Ms. De Brito $10,000 for general damages, $14,000 for past loss of income and zero for future loss of income.

5During deliberations, I heard submissions on whether the claim surpassed the verbal threshold under Section 267.5(5)(a) and (b) of the Insurance Act, R.S.O. 1990, c. I. 8 and the action for general damages ought to be dismissed.

6Given the evidence tendered was with regard to soft tissue injuries allegedly suffered by the plaintiff, the focus was on whether the injuries surpassed the verbal threshold contained in subsection (b) of Section 267.5(5) or a “permanent serious impairment of an important physical, mental or psychological function”.

7The interpretation to be given to this phrase is set out in Sections 4.1, 4.2 and 4.3 of Ontario Regulation 381/03, as amended.

8Briefly, Ms. De Brito gave evidence of having ended her employment with her (then) spouse’s landscaping company on April 7, 2013 or one week before the car accident. He had sold the company. She enrolled and successfully completed the first of six modules offered by the Institute of Energy Wellness Studies between April 19 to April 22, 2013. She enrolled and successfully completed a second module between June 7 to June 10, 2013 or eight weeks post-accident.

9The first module was before Ms De Brito sought any medical attention for her injuries. This was from her family physician, Dr. Peter Sy, on April 24, 2013, due to back pain and headaches which began that evening or the day after the accident. The records of Dr. Sy (who did not testify) detailed the number of visits and, after more than one year, a referral to Dr. Kekosz, a physiatrist who testified at the trial. That examination did not proceed until June 3, 2014.

10Dr. Kekosz recorded Ms. De Brito’s complaints and told her that she had been unable to return to any work since the accident. Dr. Kekosz testified having observed a variety of findings, made a diagnosis of Whiplash Associated Disorder, Type 2 (WAD II). An MRI was ordered which indicated bulging in the discs at L4-5 and L5-S1 with an annular tear. Ms. De Brito saw Dr. Kekosz again on December 16, 2014 but then not again until August 16, 2017, a period of more than two and one half years.

11In the interim, there had been a decision that custody of her two boys, born in 2005 and 2007, be granted to their biological father and her former spouse. She developed psychological issues which included a psychotic episode, not otherwise specified (NOS) requiring hospitalization for about one week, medication and ongoing psychiatric care. The subsequent examinations with Dr. Kekosz proceeded up to April 23, 2019 in which ongoing complaints were noted and findings made of limited mobility, mild weakness and absent reflexes.

12Dr. Kekosz opined a permanent injury had occurred but, as of April, 2019, with training, Ms. De Brito may be able to do part time sedentary work.

13Ms. De Brito was examined by Dr. Jaroszynski on November 15, 2017 at the request of the defendant. Dr. Jaroszynski found a minor cervical-lumbar sprain that would have healed within three months following the injury.

14Ms. De Brito was also examined by Dr. Anna Czok, physiatrist on March 18, 2019. Dr. Czok’s examination of Ms. De Brito on that date was normal. As a result, there was no musculoskeletal impairment and any prior sprain or strain had resolved.

15There was also evidence of surveillance of the plaintiff on 18 occasions between October 21, 2015 and August 8, 2018 of which 11 were successful in observing the plaintiff without any apparent restrictions. This included relatively brief observations of her conducting Zumba dance fitness sessions.

Analysis

16In my view, as suggested by the cases referred to by the parties, the questions to be addressed are set out by Justice Firestone in Malfara v. Vukojevic, 2015 ONSC 78 which are:

1. has the injured person sustained permanent impairment of a physical, mental or psychological function;

2. if yes, has the function which is permanently impaired an important one; and

3. if yes, is the impairment of the important function serious?

17It is clear that permanent impairment, here of a physical function, must be considered to have started with the tort committed by the defendant in the motor vehicle accident. It must continue to the time of trial and not be expected to improve or resolve. It is also clear there need not be objective findings in this regard as chronic pain, as stated by Dr. Czok, is a disorder from a subjective behavioral point of view. This can meet the requirements for permanence for the purpose of the verbal threshold. Mindful of the jury’s verdict, as finders of the facts, it is difficult to accept the evidence of Ms. De Brito and Dr. Kekosz that whatever soft tissue injury resulted from the motor vehicle collision of April 14, 2013, Ms. De Brito’s ongoing complaints were related to the motor vehicle accident.

18More precisely, mindful of Ms. De Brito’s ability to complete the two modules in the time frame most Whiplash Associated Disorders, Type 2 resolve, and Section 4.2(1)(i) of Ontario Regulation 381/03, the impairment from Ms. De Brito’s chronic pain did not “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”.

19I have the same concerns identified by Drs. Jaroszynski and Dr. Czok and apparently accepted by the jury. I conclude Ms. De Brito has not sustained permanent impairment of a physical, mental or psychological function as a result of the motor vehicle accident of April 14, 2013. As a result, it is not necessary to answer the second or third question.

20I conclude the plaintiff has failed to discharge her onus of proof on a balance of probabilities that her claim for general damages surpasses the requisite verbal threshold and it is thus dismissed.

21I would also note the fact the current and applicable deduction that would apply to the award, being less than $129,393.49, under section 265.5(8.3) of the Insurance Act, supra, would be $38,818.97 and eliminate any recovery under this head of damage regardless.

_____________________________ Mr. Justice G. Dow