Superior Court of Justice - Ontario

COURT FILE NO.: 1376/16

DATE: 2019/11/12

RE: Mary Angela Ashburn and Stuart Allen Ashburn, Plaintiffs

AND:

Gregory Storrey, Defendant

BEFORE: Justice A. K. Mitchell

COUNSEL: Barbara MacFarlane and Katelynn Drake, for the Plaintiffs Daniel Reisler and Tino Kasi, for the Defendant

HEARD: October 8, 2019

ENDORSEMENT

Overview

[1] In this action, the plaintiffs, Mary and Allen Ashburn, bring an action for damages arising out of a motor vehicle collision which occurred on February 14, 2015. Ms. Ashburn sought general damages for pain, suffering and the loss of enjoyment of life together with damages for pretrial income loss, out-of-pocket expenses, future income loss and future health care costs. Mr. Ashburn sought non-pecuniary damages for the loss of guidance, care and companionship.

[2] While the jury was deliberating, the defendant brought this “threshold” motion and the issues on the motion were argued. After argument, I reserved my decision on the motion.

[3] After deliberating for nearly 8 hours, the jury returned its verdict awarding Ms. Ashburn $62,500 in general damages, $0 for past and future loss of income, $2,500 for out-of-pocket expenses and $23,400 for future health care costs. Mr. Ashburn was awarded $0 for his damage claim.

[4] Following discharge of the jury, counsel alerted me to two additional issues relevant to my decision on the “threshold” motion. They are:

(i) whether success on the “threshold” motion reduces the award for future health care costs? and

(ii) what amount of Ms. Ashburn’s collateral benefits, if any, is deductible from the jury award for future health care costs?

[5] For the reasons that follow, I find that Ms. Ashburn’s injuries arising from the collision meet the exception to the protection from liability provided for by ss. 267.5(3) and (5) of the Insurance Act. Having met the “threshold”, the issue raised in paragraph 4. above is moot.

The Law

[6] Section 267.5(5) of the Insurance Act provides as follows:

(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.

[7] The parties agree that even though the defendant brought the “threshold” motion, it is the plaintiffs who must satisfy the court that Ms. Ashburn has suffered a permanent serious impairment of an important physical, mental or psychological function within the statutory exception set out in subsection 265.5(5)(b) of the Insurance Act.

[8] The three-step analysis applied when dealing with a “threshold” motion was established by the Court of Appeal in Meyer v. Bright; Dalgliesch v. Green; Lento v. Castaldo (“Meyer”)[^1] as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the bodily function which is permanently impaired important?
3. If yes, is the impairment of the important function serious?

[9] In Brak v. Walsh the Court of Appeal stated that “permanent” means lasting indefinitely into the future as opposed to for a limited time with a definite end; the requirement of a permanent injury is also met when a limitation in function is unlikely to improve for the indefinite future.[^2] As was noted in Sheldon v. Reyna[^3]: “the word ‘permanent’ does not mean forever, but it does require that the impairment last into the indefinite future as compared to a predicted recovery with an end date.”

[10] With respect to the second prong of the Meyer test, the court must consider the importance of the function in issue as it relates to the particular individual who is affected by the impairment. The legislation is aimed at the important functions that play a major role in the health and general well-being of the injured plaintiff. The test for importance is a qualitative test.[^4]

[11] Turning to the third prong of the Meyer test, the caselaw makes it clear that the court must focus on the effect of the injury on the plaintiff. Firestone J. said in Valentine v. Rodriguez- Elizalde[^5]:

It 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.

[12] The requirement that the impairment must be serious may still be satisfied where an individual resumes his or her activities of employment and the responsibilities of the household but continues to experience persistent and unremitting pain. The issue is whether the pain seriously affects the individual’s enjoyment of life, their ability to socialize with others, have intimate relationships, and engage in recreational pursuits.[^6]

[13] 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 have a significant effect on the person’s enjoyment of life, constitutes a serious impairment.[^7]

[14] However, impairment must go beyond what is tolerable. Residual discomfort, even if frustrating or unpleasant, falls below the degree of impairment that can be regarded as serious.[^8]

[15] A plaintiff’s ability to return to work is not fatal to a threshold motion. The courts consider the totality of the evidence, including the impairment on the plaintiff’s ability to continue working and the impact of continued work on the plaintiff.

[16] Bearing in mind these general principles, the jurisprudence on threshold motions is clear – whether a plaintiff has satisfied the burden of meeting the statutory threshold is to be determined on a case-by-case basis.

[17] It was not strenuously argued that Ms. Ashburn’s complaints of, among others, reduced function of her left arm and shoulder due to chronic pain during the four years since the collision, do not constitute an impairment of an important bodily function. Instead, the focus of the argument was on the third prong, namely, whether the impairment of her left arm and shoulder function is serious. I will now consider the evidence relating to “serious” impairment.

Evidence

[18] The trial in this matter spanned 10 days including 7 days of evidence. 13 witnesses testified and 30 exhibits were filed.

Ms. Ashburn

[19] Ms. Ashburn is 65 years old. On the date of the collision, she was 61 years of age.

[20] Ms. Ashburn says that as a result of the February 14, 2015 collision she injured her neck, left shoulder, lower back and left hip. She suffers from frequent and long-lasting headaches. She claims to have chronic pain in all injured areas which is unremitting.

[21] Because of her chronic pain, Ms. Ashburn has difficulty sitting, standing or walking for any length of time. She has limited use of her left arm. Almost any activity or prolonged posture aggravates her pain. Her pain is eased but never eliminated by medication, the application of ice and heat, or rest.

[22] In addition to her physical injuries, Ms. Ashburn says she has suffered psychological injuries as a result of the accident. She claims she is depressed and suffers from posttraumatic stress disorder. She has gained weight and has lost interest in activities from which she took great pleasure and enjoyment prior to the collision. She has difficulty concentrating. She has constant fatigue. She rarely socializes outside the home. Each day she arrives home from work and only wants to rest.

[23] The consequence of her injuries is that she can no longer maintain the house including attending to all the housework and yard work as she had done prior to the collision. She is no longer able to care for and enjoy the company of her husband, her two adult daughters and her grandchildren to the same extent as she did prior to the collision. She now requires assistance with meal planning and preparation and grocery shopping, and she requires assistance with the heavier aspects of housecleaning.

[24] Ms. Ashburn’s evidence as to the change in lifestyle and her inability to function at the same level as prior to the collision, was corroborated by and entirely consistent with the evidence of her spouse and daughters, whose collective evidence I accept.

[25] Furthermore, the medical notes and records of her family physician, Dr. Stephen Jones, revealed Ms. Ashburn had an unremarkable medical history prior to the collision. He noted she suffered from and was treated successfully for heavy menopausal bleeding and high blood pressure. She complained to Dr. Jones of anxiety relating to her husband’s workplace accident in 2010. However, no complaints of anxiety were noted at her last visit with Dr. Jones 6 months prior to the collision.

[26] Dr. Patrick Potter is a physiatrist with 39 years’ experience in assessing and treating soft tissue injuries and chronic pain, and who was retained by the plaintiffs to provide his expert opinion on a number of issues relevant to the “threshold” motion. Dr. Potter assessed Ms. Ashburn on June 11, 2018. His many opinions, included the following:

(i) Ms. Ashburn suffers from cervical and left posterior shoulder girdle sprain resulting in chronic myofascial pain; cervicogenic headaches; and left lumbosacral sprain resulting in chronic myofascial pain involving the left gluteal muscles concurrent with mechanical low back pain;

(ii) The injuries sustained as a result of the accident affect Ms. Ashburn’s ability to push, pull, reach and lift with the left arm resulting in fatigue and resulting in headaches and diminished sitting and standing tolerance. Her prognosis is guarded having regard to the timeframe since the accident; and

(iii) It is probable that Ms. Ashburn’s functional abilities would improve but her impairments would not be resolved with treatments implemented.

[27] The defendant retained Dr. Ato Sekyi-Otu, an orthopaedic surgeon with 22 years’ experience in orthopaedic surgery, who assessed Ms. Ashburn on February 13, 2019 and opined as follows:

From a musculoskeletal perspective, Ms. Ashburn sustained a cervical and left posterior shoulder girdle sprain with chronic myofascial pain, cervicogenic headaches, lumbar sacral sprain with mechanical low back pain...[h]owever presentations and observed inconsistencies do[^9] follow the signs of a chronic pain syndrome.[^10]

[28] Despite agreeing with Dr. Potter’s diagnosis of chronic myofascial pain, Dr. Sekyi-Otu was of the view that Mr. Ashburn does not suffer from a serious impairment in function from a physical perspective. And he could identify no objective signs of ongoing impairment that he could attribute to the collision that would account for her reported limitations and disability.

[29] He went on to further opine that Ms. Ashburn has had an appropriate course of treatment to date and further supervised physical therapy is unlikely to improve her functional outcome or facilitate symptom resolution. Despite agreeing with Dr. Potter’s diagnosis of chronic myofascial pain, Dr. Sekyi-Otu opined that prognosis for complete resolution of symptoms remains fair. This evidence is internally inconsistent. “Chronic” suggests persistent and of long-lasting duration. I accept the expert opinion evidence of Dr. Potter where it differs from the evidence Dr. Sekyi-Otu. Specifically, I find that Ms. Ashburn’s prognosis is guarded and that it is likely she will continue to have limited function of her left arm for the indefinite future.

[30] I have further considered the evidence of the psychologists who testified as to any mental health condition from which Ms. Ashburn suffers collateral to her chronic pain condition. Dr. Joseph Enright, a psychologist with 3 years’ experience, testified in support of the plaintiffs’ case. Dr. Enright performed psychometric testing of Ms. Ashburn in September 2018 and diagnosed her with major depressive disorder and insomnia,[^11] both conditions being associated with her chronic pain brought about by the collision.

[31] In support of the defendant’s case, Dr. Curtis West, a psychologist with 18 years’ experience conducted psychometric testing of Ms. Ashburn in July 2019. Unlike Dr. Enright his testing included administering the MMPI-2-RF, being the most widely-used measure for the assessment of psychopathology and personality disorders. Dr. West concluded there was no evidence Ms. Ashburn met the criteria for any specific DSM-IV or DSM-5 diagnosis of mental disorder. That is, he concluded she does not suffer from either major depressive disorder or insomnia.

[32] I accept the expert evidence of Dr. West over that of Dr. Enright with respect to any diagnosis of mental disorder (or lack thereof) in light of the recency of his testing, the use of the MMPI tool and his extensive experience. I find that Ms. Ashburn does not suffer from any mental health disorder; however, do find that she does experience symptoms of depression and insomnia associated with her chronic myofascial pain on a persistent basis.

Analysis

[33] Before considering these factual findings in the context of the legal principles outlined above, I am reminded of the danger of threshold motions being decided after the jury has rendered its verdict as is the case here. As was noted by Brown J. (as he then was) in Clark v. Zigrossi[^12],

… If a jury has been selected as the trier of fact and if we are to preserve the jury system in civil cases in this Province, in my respectful view judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts. Where the trial judge can infer what those findings of fact were, a jury verdict should not be interfered with, directly or indirectly, unless the rigorous test for setting aside a jury’s verdict is met.

[34] Liability was admitted at the commencement of trial. The issues put to the jury were restricted to causation and damages. The plaintiffs advanced a claim for general damages for loss of enjoyment of life in the range of $140,000-$150,000. The defendant suggested a range of $20,000 - $25,000 for general damages. The jury awarded Ms. Ashburn $62,500 for general damages for her pain and suffering and loss of enjoyment of life arising from the injuries suffered in the collision. This award is materially in excess of the range suggested by the defendant and far more than nominal or trifling. From this award, I may reasonably infer the following findings of fact by the jury:

1. Ms. Ashburn’s injuries were caused by the collision of February 14, 2015;
2. Ms. Ashburn has endured pain, suffering and loss of enjoyment of life arising from those injuries; and
3. Her losses will endure indefinitely.

[35] The defendant invites me to find that Ms. Ashburn is not a credible witness and her complaints of pain are either exaggerated or not true. I am unable to make that finding. Instead, I find Ms. Ashburn to have been a credible witness. I accept her evidence that while she has been able to and will continue to work at the LCBO and the general store performing modified duties and will continue to perform light housekeeping tasks, these activities cause her pain, extreme at times, and discomfort.

[36] As earlier noted in these reasons, I accept the evidence of Dr. Potter that Ms. Ashburn suffers from chronic pain and her pain symptoms are unlikely to improve. Her chronic pain has caused her serious impairment of the use of her left arm.

[37] I conclude, based on the evidence at trial and from the facts which may be inferred from the jury’s award, that Ms. Ashburn suffered in the collision on February 14, 2015 “a permanent serious impairment of an important physical function” and has therefore, met the threshold and is exempt from the application of ss. 267.5(3) and (5) of the Insurance Act.

[38] The jury awarded Ms. Ashburn $62,500 for general damages. After application of the statutory deductible of $38,818.97 (confirmed by counsel to be the applicable amount), Ms. Ashburn is entitled to receive net general damages of $23,681.03.

[39] Ms. Ashburn settled her statutory accident benefits claim for the sum of $3000, comprised of $1,500 paid on account of all past and future income replacement benefits and $1500 paid on account of all past and future medical benefits. At trial, Ms. Ashburn was awarded nil damages for past and future income loss. However, Ms. Ashburn was awarded $23,400 for future health care costs. As required by s. 267.8(4) of the Insurance Act, the jury’s award must be reduced by the amount received for medical benefits as part of her accident benefits settlement. In the result, Ms. Ashburn’s damages award for future health care costs is reduced to $21,900.

[40] Additionally, the defendant has asked that the amount of $1,861.35, being the amount paid to Ms. Ashburn as of October 4, 2016 on account of medical and rehabilitation benefits by her accident benefits insurer, be deducted from the jury’s award for future health care costs. Evidence that this amount was, in fact, received by Ms. Ashburn was not presented at trial. This is the first time the court was made aware of any amount paid to Ms. Ashburn for her pretrial health care costs. This is the first time the issue of its deductibility was raised. This issue was not raised during argument of the “threshold” motion and the plaintiffs have not been given an opportunity to respond. In these circumstances, the defendant has not met the burden of proof entitling him to the requested deduction and this relief is denied.

Disposition of the Motion

[41] The defendant’s “threshold” motion is dismissed.

Judgment

[42] Judgment shall issue as follows:

1. The defendant shall pay to the plaintiff, Mary Angela Ashburn:

(a) $23,681.03 for general damages;

(b) $0 for past and future loss of income;

(c) $2,500 for out-of-pocket expenses; and

(d) $21,900 for future health care costs.

2. The claims of the plaintiff, Stuart Allen Ashburn, are dismissed.

Costs

[43] If the parties cannot agree on an appropriate disposition of the issue of costs, submissions shall be filed in accordance with the following timetable:

(a) Within 30 days, the plaintiffs shall serve and file their cost submissions not to exceed 15 pages in length (exclusive of any offer(s) to settle, time dockets, bill of costs and caselaw);

(b) Within 15 days thereafter, the defendant shall serve and file his cost submissions not to exceed 15 pages in length (exclusive of any offer(s) to settle, time dockets, bill of costs and caselaw); and

(c) Within 5 days thereafter, the plaintiffs shall serve and file any reply submissions not to exceed 5 pages in length.

­­­­­­­­­­­“Justice A.K. Mitchell”

Justice A. K. Mitchell

Date: November 12, 2019

[^1]: 1993 3389 (ON CA), [1993] O.J. No. 2446 (C.A.) at para. 16. [^2]: 2008 ONCA 221 at para.4. [^3]: 2018 ONSC 5611 at para. 77(5). [^4]: Meyer, supra, at para. 24. [^5]: 2016 ONSC 3540 (S.C.J.) at para. 39. [^6]: See Brak, supra, at para. 7; and St. Marthe v. O’Connor, 2019 ONSC 1585 at para. 111. [^7]: May v. Casola, [1998] O.J. No. 2475 (C.A.) at para. 1. [^8]: Frankfurter v. Gibbons, 2004 14383 (ON CA), [2004] O.J. 39 (Div. Ct.) at paras. 22 and 26. [^9]: During cross-examination Dr. Sekyi-Otu corrected his evidence contained in his written report claiming he had inadvertently omitted the word “not”. [^10]: Page 13 of Report of Dr. Sekyi-Otu dated March 4, 2019. [^11]: An updated interview with Ms. Ashburn in August 2019 resulted in Dr. Enright abandoning an earlier diagnosis of post-traumatic stress disorder. [^12]: 2010 ONSC 5403 at para 18.