Mundinger v. Ashton

OSHAWA COURT FILE NO.: CV-17-3252

DATE: 2019-12-11

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Kasey Mundinger Plaintiff

– and –

Heather Ashton and L&A Mutual Insurance Company Defendants

Counsel:

K. Stoykov and G. Bushi, Counsel for the Plaintiff

S. Reisler and C. A. Stewart, Counsel for the Defendants

HEARD: November 18-22, 25-29, December 2-6, 2019

REASONS FOR DECISION

CHARNEY J.:

A. Overview

[1] This civil action relates to the plaintiff’s claim for damages in relation to a motor vehicle accident in Uxbridge, Ontario on July 9, 2010. The defendant admitted liability, but disputed the nature, seriousness and duration of the plaintiff’s injuries. The issues at trial were limited to causation and damages.

[2] The trial in this action proceeded before a jury for eleven days, with the plaintiff seeking damages for past and future lost income, loss of competitive advantage, future health care costs, and general damages (pain and suffering and loss of enjoyment of life).

[3] This decision addresses two issues that arose after all the evidence was called. The first issue relates to the questions that would be put to the jury. The second issue is the defendant’s threshold motion. I will deal with each of these issues in turn.

B. Jury Questions

[4] After both counsel closed their case, I heard submissions from counsel on the questions to be put to the jury. The plaintiff took the position that five questions should be put to the jury;

a. In what amount, if any, do you assess the damages of the plaintiff as a result of the accident on July 9, 2010, for loss of income between July 9, 2010 and the present time?

b. In what amount, if any, do you assess the damages of the plaintiff as a result of the accident on July 9, 2010 for loss of future income?

c. In what amount, if any, do you assess the damages of the plaintiff as a result of the accident on July 9, 2010 for loss of competitive advantage?

d. In what amount, if any, do you assess the damages for the plaintiff as a result of the accident on July 9, 2010 for future health care expenses?

e. In what amount, if any, do you assess the damages as a result of the accident on July 9, 2010, for general damages (pain and suffering and loss of enjoyment of life).

[5] After hearing argument I issued an oral decision with brief reasons, holding that the jury would not be asked any question related to future health care expenses, and would not be asked a separate question with regard to loss of competitive advantage (questions c and d above). The question regarding future lost income would include a reference to lost earning capacity as follows:

In what amount, if any, do you assess the damages of the plaintiff as a result of the accident on July 9, 2010 for loss of future income or earning capacity?

[6] I advised that written reasons would be provided at the end of the trial. These are those reasons.

Applicable Principles

[7] In M.B. v. 2014052 Ontario Ltd. (Deluxe Windows of Canada), 2012 ONCA 135, at para. 51, the Ontario Court of Appeal affirmed the general test to be applied to whether a question should be put to a jury:

Whether a jury in a civil case should be asked to decide on a particular issue is a question of evidence. There must be “reasonable evidence” to allow a question to go to the jury. As Meredith J.A. stated in Milligan v. Toronto Railway (1908), 17 O.L.R. 530, [1908] O.J. No. 78 (C.A.) [at para. 50]:

Although the jury are the sole judges of fact they are such judges only in cases in which there is a reasonable question of fact to be determined. It is the duty of the Court to determine whether there is any reasonable evidence to go to the jury, upon any question of fact; and no such question can be rightly submitted to them until that question has been answered in the affirmative.

[8] See also: Ayub v. Sun, 2016 ONSC 6598 at paras. 53 – 54; Johnston v. Walker, 2017 ONSC 3370, at paras. 3 – 5; Day v. Haiderzadeh, 2017 ONSC 7319, at para. 5.

[9] The test has also been stated as follows (see Walker v. Delic, [2001] O.J. No. 1425 (Ont. S.C.), at para. 5:

[A] question need not be put to the jury unless there is some evidence on which a jury, acting judicially in accordance with that judge’s instructions on the law could reasonably make a choice in arriving at a finding.

[10] On matters of economic loss, a jury cannot be asked to speculate and pull a dollar figure out of thin air. In this regard, the following statement from the Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, at para. 65, regarding the ability of a trial judge to quantify damages, applies with equal force to a jury:

[I]t is not open to a trial judge to postulate a method for the quantification of damages that is not supported by the evidence at trial. Nor is it open to a trial judge to employ an approach to the quantification of damages that the parties did not advance and had no opportunity to test or challenge at trial... To hold otherwise would sanction trial unfairness.

Future Health Care Costs

[11] The plaintiff takes the position that there is some evidence from which a jury could answer the question on future health care costs. The plaintiff’s family doctor testified as to the prescription drugs that have been prescribed to the plaintiff, and has recommended that the plaintiff undergo a neuropsychological assessment, which she testified is not covered by OHIP. The family doctor did not indicate the cost of either the prescription drugs or the proposed neuropsychological assessment.

[12] Dr. Romeo Vitelli, a clinical psychologist called by the plaintiff, testified that he recommended that the plaintiff receive weekly psychological counselling. No costs were attached to his recommendations, and he testified that he had not been asked to consider the costs of treatment.

[13] There is evidence that the plaintiff has attended for physiotherapy and chiropractic treatment in the past, but no invoice or other evidence regarding the cost of this treatment was adduced.

[14] In her examination in chief, the plaintiff was asked about her current medication costs:

Q. How much are you spending on medication, if you can give us an idea, let’s say monthly or weekly or whatever you feel comfortable?

A. Hundreds of dollars every month.

[15] No other evidence regarding the cost of past or future health care was proffered during the trial. No invoices for health care costs were entered as exhibits.

[16] The plaintiff submits that the evidence provided offers the jury some basis to estimate the cost of future health care.

[17] In my view, the evidence presented to the jury on future health care costs is not sufficient to permit them to do anything but pull a dollar figure out of thin air. There is no costing of the recommended therapies, and the estimate of “hundreds of dollars every month” for medication is simply too imprecise to permit any reasoned calculation. A plaintiff claiming damages for past or future health care costs must provide the jury with some precise calculation, either from an expert witness or through the introduction of relevant invoices from which an accurate calculation can be made. Future health care costs should be supported by expert evidence indicating the anticipated frequency and duration of the recommended health care.

[18] I find there is not sufficient evidence on which a properly instructed jury, acting judicially, in accordance with a judge’s instructions on the law, could reasonably calculate or quantify the plaintiff’s future medical treatment or health care costs claim. Accordingly, this question will not be put to the jury.

Loss of Competitive Advantage

[19] The plaintiff called Mr. Ian Wollach, a Certified Professional Accountant, as an expert witness to calculate the plaintiff’s past and future lost income. Mr. Wollach testified that his calculations were based on a number of assumptions and provided two schedules that explained how he calculated both past and future lost income. These schedules were entered as exhibits so that they would be available to the jury. Mr. Wollach explained that he was providing a methodology to help the jury calculate past and future lost income.

[20] Mr. Wollach explained that his past and future lost income calculations were based on two major assumptions.

[21] The first assumption was that, but for the July 9, 2010 motor vehicle accident, the plaintiff would have graduated from Wilfred Laurier University with a bachelor degree in advertising and communications in March 2013. As a consequence of the accident, the plaintiff withdrew from university in October 2010, and did not return to post-secondary education until September, 2015. Instead of a university degree, the plaintiff graduated with a college diploma from Centennial College in advertising and communications in 2018.

[22] Mr. Wollach presented two scenarios for future lost income. Mr. Wollach’s first future lost income calculation was based on the difference between what the plaintiff might have earned had she obtained a university level bachelor degree in advertising and communications, and what she was likely to earn with a college level diploma in advertising and communications. Based on this assumption, Mr. Wollach calculated the plaintiff’s future lost income as $1,013,476. This was scenario 1.

[23] Mr. Wollach’s second assumption was that, as a result of the July 9, 2010 motor vehicle accident, the plaintiff is partially and permanently disabled from gainful employment in a competitive employment environment, and no longer able to work at her pre-accident capacity. Based on this assumption, Mr. Wollach proposed a second scenario that increased the plaintiff’s future lost income by an additional 10% to take into account decreased earnings applicable to workers with a partial and permanent disability. His report explained: “As a partially disabled worker likely requiring workplace modifications in the future, she will face employment challenges when competing for employment against similarly qualified ablebodied workers in a competitive employment environment.” Based on this second scenario, he calculated the plaintiff’s future lost income as $1,167,067.

[24] Mr. Wollach did not simply pull the 10% number out of his hat. The figure was based on the Statistics Canada Canadian Survey on Disability data, and took into account several variables and contingencies including the level of severity of the assumed disability and the fact that a partially disabled worker is more likely to be unemployed at any point in time compared to a similarly qualified able-bodied worker.

[25] The defendant disputed all of the assumptions upon which Mr. Wollach’s future lost income calculations were based. The specifics of that dispute are not relevant to the analysis of this issue.

[26] There is no dispute that there is sufficient evidence to put the question of future lost income to the jury. Mr. Wollach has provided the jury with a methodology for calculating future lost income, and explained the assumptions upon which his calculations for each scenario were based. It is up to the jury to decide whether any of those assumptions are supported by the evidence in this case. There is certainly some evidence on which a jury, acting judicially in accordance with the judge’s instructions on the law, could reasonably make a choice in deciding whether to accept any of those assumptions.

[27] The issue is whether the jury should be asked one question about future lost income, or two questions: the first about future lost income and a second question about loss of competitive advantage. The plaintiff argues that Mr. Wollach’s evidence dealt only with lost future income, and that the jury should be invited to add an additional lump sum amount to Mr. Wollach’s calculations on the basis of their assessment of the plaintiff’s loss of competitive advantage.

Relationship between loss of future income and loss of competitive advantage

[28] The award for loss of competitive advantage is expressed as damages in recognition of the fact that the plaintiff’s competitive position in the open labour market has been compromised as a result of the plaintiff’s injuries in the accident; see: Conforti (Re), 2012 ONSC 199, at para. 33 and cases cited therein.

[29] An award for loss of competive advantage consititutes compensation for a component of lost future income: Conforti, at para. 46. The relationship between loss of future income and loss of competitive advantage was set out by Wilton-Siegel J. in Conforti, at paras. 36, 38 and 40 [emphasis added]:

Relationship of a Loss of Competitive Advantage to a Loss of Future Income

As described in the case law cited above, these concepts are distinct but related. An award for loss of future income relates to a probable loss of future earnings. On the other hand, a loss of competitive advantage, as demonstrated by the excerpt from Pallos, relates to a future contingency that could result in probable future income being more contingent than it otherwise would have been. Both concepts are addressed in the calculation of an injured party’s loss of future earnings, or diminished earning capacity, but in different ways.

The calculation of a loss of future income typically proceeds as a calculation of the difference between the net present value of probable earnings before the accident and the net present value of probable earnings after the accident.

Any such net present value calculation conceptually can include both an amount for loss of future income and an amount for loss of competitive advantage, if any. However, they are incorporated into the calculation in different ways.

[30] An award for loss of competitive advantage is usually awarded in circumstances where an injured party returns to her pre-accident level of income and receives compensation based on evidence that the plaintiff has a higher risk of being unemployed in the future as a result of the accident (Conforti, at paras. 33 and 45), although an injured person may receive compensation for both a lower income and a higher risk of being unemployed. As explained by Wilton-Siegel J. in Conforti, at paras. 41 – 44 [emphasis added]:

The net present value of the loss of future income is, in effect, the net present value of the probable foregone future income in each year discounted by a normal discount factor, for clarity not including any amount in the normal discount factor for a loss of competitive advantage. If an award is also made for a loss of competitive advantage, the value of such award conceptually (although I do not suggest that it is necessarily calculated in this manner) is the amount of the reduction in the net present value of the probable future income stream after the accident that results from the application of an additional i.e., an incremental, discount factor in each year that takes into account the additional risk to the party’s ability to earn income in that year resulting from his injuries (the “competitive advantage discount factor”).

The loss of competitive advantage is therefore also compensated for by an amount that is a net present value calculation. Conceptually, it is the reduction in the net present value otherwise determined that results when the normal discount rate applied against probable post-accident income is increased to reflect the additional or incremental contingency constituting the loss of competitive advantage. Because any given net present value calculation will be reduced as the discount rate used is increased, any incremental increase in the normal discount factor to include an amount on account of the loss of competitive advantage will increase the difference between the net present value of the future income before and after the accident and, therefore, the amount of the compensation to be paid to the injured party.

Viewed in this manner, a loss of competitive advantage is incorporated into a net present value calculation of the loss of future earnings to the extent that a court finds not only that there has been a probable loss of future earnings, but also that the injured party has suffered an increased likelihood of being unemployed in the future as a result of his or her injuries, i.e. a possible decrease in marketability.

A logical deduction from the foregoing analysis is that the concept of loss of competitive advantage is distinct from the concept of foregone future income that is probable as of the date of the calculation. To the extent that a court concludes that a party’s post-accident income will, on a balance of probabilities, be reduced to a specific level, the calculation of the present value of the loss of earning capacity is to be undertaken without regard to any loss of competitive advantage. A further contingency factor should only be introduced into the calculation of the party’s loss to address the loss of competitive advantage if the risk that the party will fail to earn income at that post-accident level, whatever that may be, is increased by the party’s injuries.

[31] I have four points to make with regard to the plaintiff’s position that the jury should be asked two separate questions, and invited to make separate calculations, about future lost income and loss of competitive advantage.

[32] My first point is that Mr. Wollach’s calculation of future lost income clearly includes loss of competitive advantage as the basis for his second scenario. The 10% reduction in income in the second scenario was, in part, based on the contingency that a partially disabled worker is more likely to be unemployed at any point in time compared to a similarly qualified able-bodied worker. Mr. Wollach’s proposed compensation for loss of competitive advantage constituted a component of compensation for lost future income, and, as such, Mr. Wollach’s methodology was consistent with the methodology set out by Wilton-Siegel J. in Conforti.

[33] My second point is that the advantage of Mr. Wollach’s approach to the methodology is that he kept the calculation simple so that the jury could understand the two components of future lost income without requiring a doctorate in economics. Any effort to explain the conceptual distinction between foregone future income and loss of competitive advantage (by, for example, instructing the jury in accordance with the terms of paras. 41 – 43 of Conforti) would be unnecessarily complicated and confusing. The single question asked of the jury - In what amount, if any, do you assess the damages … for loss of future income or earning capacity? – approaches the question in the same way as it was presented by the plaintiff’s own expert.

[34] My third point is that asking two separate questions – one about damages for future lost income and one about damages for loss of competitive advantage - would only confuse the jury and risk double recovery for the same head of damages.

[35] My final point is that if, as the plaintiff contends, Mr. Wollach’s second scenario did not address loss of competitive advantage, then Mr. Wollach did not deal with this issue at all, and there is no evidence upon which the jury could decide on a dollar value for such a loss. Loss of competitive advantage is a pecuniary loss and must have some basis in empirical evidence, such as the Statistics Canada Survey relied on by Mr. Wollach. In the absence of such empirical evidence, the jury is being asked, once again, to speculate and pull a dollar figure out of thin air.

[36] For the foregoing reasons I declined to put a separate question to the jury regarding loss of competitive advantage, and asked the jury a single question about damages “for loss of future income or earning capacity”.

C. Threshold Motion

[37] While the jury was deliberating, the defendants brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for health care expenses and non-pecuniary loss is barred on the basis that the plaintiff has failed to establish on the evidence that, as a result of the collision, she has sustained a permanent, serious impairment of an important physical, mental or psychological function. Only if the plaintiff meets this threshold does she fall within the exceptions to the statutory immunity provided for in s. 267.5 (3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8 (the Act) and the applicable regulations and thereby entitled to either health care expenses or a non-pecuniary damages award.

[38] On December 6, 2019, the jury returned its verdict and awarded the plaintiff $29,000 for past lost income, $4,000 for future lost income, and $20,000 for general damages.

[39] After taking into account the current deductible provided in the regulations^1, the jury’s general damage award is netted to zero, and the plaintiff has not succeeded in obtaining any award for general damages in this case.

[40] Since no question regarding health care expenses was put to the jury, no award for health care expenses was made.

[41] Even though the plaintiff did not obtain any amount for health care expenses or general damages, the court must still rule on the threshold 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”. See also: MacFarlane v. Razmerita, 2019 ONSC 6160, at para. 6.

[42] But for the Divisional Court’s decision in Mandel, I would have agreed with the view expressed by Myers J., who was the trial judge in Mandel (2016 ONSC 6538). He held that where the jury’s general damage award is netted to zero, the determination of the threshold issue is moot, and need not be decided, since that determination will have no practical effect between the parties. I would have interpreted s. 267.5(15) as requiring the judge to decide the threshold issue only if the question of damages for health care expenses under s. 267.5(3) or non-pecuniary loss under s. 267.5(5) are live issues. Section 267.5(15) provides that the motion shall be determined “for the purpose of subsections (3) and (5)”. If, after taking into account the deductible, no damages are awarded under either of those subsections, the mandatory language of s. 267.5(15) should not apply because the determination would not be “for the purpose of subsections (3) and (5)”. It is not clear what purpose is served by deciding the threshold issue in these circumstances. That said, I am bound by the Divisional Court’s decision in Mandel, and will therefore proceed to determine the threshold issue.

Threshold Issues

[43] The defendant takes the position that the plaintiff has failed to meet the threshold for two reasons. Firstly, the defendant argues that the plaintiff has failed to adduce the evidence of a physician to prove a permanent serious impairment of an important physical, mental or psychological function as required by s. 4.3 of the Regulation. Instead, the plaintiff has relied on the evidence of a psychologist. The defendant takes the position that a psychologist is not a physician within the meaning of the Regulation.

[44] In the alternative, the defendant takes the position that, even on the evidence presented, the plaintiff has failed to meet her onus of proving that she meets the threshold. The defendant argues that the impairments complained of by the plaintiff are exaggerated, were not caused by the motor vehicle accident of July 9, 2010, and, in any event, the evidence does not support her contention that they are permanent or otherwise meet the criteria of the legislation.

Legislative Scheme

[45] The relevant statutory and regulatory 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 (the Regulation).

[46] Sections 267.5(5)(a) and (b) of the Act provide that the owner of an automobile is not liable in an action in Ontario for non-pecuniary loss resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.” It states:

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.

[47] The Regulation helps to define what is meant by the threshold wording contained in s. 267.5 of the Act by defining the meaning of the words “permanent serious impairment of an important physical, mental or psychological function”. Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 (as amended by O. Reg. 381/03) (the Regulation) provide as follows:

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:

1. 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.

2. 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.

3. 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.

[48] The Regulation also sets out the expert medical evidence which must be adduced to prove that the statutory exception or “threshold” has been met:

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.

Is a Psychologist a Physician?

[49] The plaintiff relied primarily on the evidence of a psychologist, Dr. Romeo Vitelli, to provide the evidence required by s. 4.3 of the Regulation. Dr. Vitelli was not the only evidence relied on in this regard, but he was the only expert who purported to address all of the issues set out in s. 4.3(2) – (4). For example, the plaintiff also relied on the evidence of two treating physicians, Dr. James Carson and Dr. Patricia Marchuk. While Dr. Carson diagnosed the plaintiff with post-concussion syndrome 7 weeks after the accident, and his evidence is relevant to the issue of causation under s. 4.3(4), neither he nor Dr. Marchuk gave evidence about the specific items listed in s. 4.3(2). “Whether as a participant expert or as a litigation expert, the evidence of the physician must address the elements specified in section 4.3”: MacFarlane, at para. 34.

[50] The question of whether a psychologist can qualify as a physician under s. 4.3 of the Regulation was recently addressed, but not decided, by the Ontario Court of Appeal in the case of Rodrigues v. Purtill, 2019 ONCA 740. In that case, the appellant argued that the trial judge improperly considered the evidence of a registered psychologist and a specialist in the treatment of children, who gave evidence on whether the injuries to the children met the threshold. Neither of these experts were physicians.

[51] The Court of Appeal refused to give effect to that ground of appeal for three reasons, stating at paras. 9 to 12:

We note, first, that the evidence of the psychologist was led by the plaintiffs, without objection by the appellant. The trial judge qualified the psychologist as an expert, capable of giving expert evidence on the issues. The appellant took no objection to the witness’s qualifications and the issue was not raised until closing arguments. The failure to object, when the witness was qualified, can reasonably be taken to be an acknowledgment that the witness was qualified to give the opinion she tendered.

Second, as the respondents note, evidence of psychologists has been accepted in other such cases, without objection: see e.g. Podleszanski v. Medley (2007), 2007 CanLII 46714 (ON SC), 88 O.R. (3d) 294 (Sup. Ct.); Hayden v. Stevenson, 2009 CanLII 31990 (ON SC), [2009] O.J. No. 2571 (Sup. Ct.); Zhu v. Matador, 2015 ONSC 178; and Mamado v. Fridson, 2016 ONSC 4080. The appellant has pointed to no authority holding that the requisite evidence must be given by a medical doctor as opposed to a psychologist.

Third, the psychologist’s evidence was confirmed by the evidence of the appellant’s own expert psychiatrist, which satisfied the requirements of the threshold.

We therefore find it unnecessary to consider the respondents’ submission that a psychologist can be considered a “physician” for the purpose of s. 4.3 of the Regulation.

[52] The Court of Appeal made the following obiter comment at para. 13, which is relied on by the defendant in this case:

Arguably, what is important for the purposes of the application of the legislation and the regulation is not whether the expert is labelled a “doctor”, a “physician”, a “psychiatrist” or a “psychologist”, but whether he or she has the requisite training and experience to assess the impairment, apply the established guidelines and standards of the profession, and to give expert evidence on the application of the criteria set out in the regulation to a particular case. The trial judge would make that determination in the exercise of his or her gatekeeping role over expert evidence. The purpose of the legislation might well support an interpretation of “physician” that would include a “psychologist”. In the circumstances of this case, however, we do not find it necessary to decide this issue.

[53] Hockin J., who was the trial judge in Rodrigues, was alive to the fact that a psychologist is not a physician, but decided that s. 4.3 of the Regulation should be read to include a psychologist as well as a physician. He stated, at paras. 116 – 117:

The insurance scheme introduced in 1996 included an amendment to the statutory exception to tort immunity, which broadened the right to sue for damages for non-pecuniary loss to include loss arising from impairment of an injured person’s “mental or psychological function”. This is simple straight forward language. The Legislature did not choose to express itself in difficult or technical terms. Psychology is the “scientific study of the human mind”. A psychologist is one who practices in that field. A psychologist is a “health practitioner” under s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43 and may conduct for forensic purposes a mental examination of a party where the mental condition of a party is in question. A psychologist is a “health practitioner” under s. 2(1)(d) of Ont. Reg. 462/96 of the Statutory Accident Benefits Schedule under the Insurance Act.

It is presumed that regulatory provisions are meant to work with their enabling legislation, but where they do not stand coherently with the statute, the statutory provision prevails. The language of the exception is a clear invitation to include the evidence of a psychologist if there is to be a sensible application of the language of the section. Beyond a question of statutory interpretation, in the interests of fairness and justice, the trial record should include the evidence of Dr. Stewart. It is within the inherent jurisdiction of the court to do so to do justice between the parties. See the case of Ziebenhaus (Litigation Guardian of) v. Bahlieda (2015), 126 O.R. (3d) 511 (C.A.). Finally, I note this observation: the defence did not move to disqualify Dr. Stewart when she was called by the plaintiff to give evidence. This amounted to a tacit acceptance of the admissibility and relevance of her evidence.

[54] In the case before me the defendant did move to disqualify Dr. Vitelli as an expert under s. 4.3 at the outset of the trial and before Dr. Vitelli was called to give evidence. I decided that I would hear Dr. Vitelli’s evidence, and hear argument about whether a “psychologist” may qualify as a “physician” at the end of the trial when I heard the threshold motion.

[55] The issue of whether a health care practitioner other than a physician may qualify as a physician under s. 4.3 of the Regulation has also been addressed by Morgan J. in the case of Khan v. Sinclair, 2014 ONSC 1355. In that case he held that the strict evidentiary requirements of s. 4.3 can only be satisfied by a physician. He described the requirement as “a key evidentiary requirement, specifically set out in the governing legislative instrument”, and concluded that an occupational therapist did not qualify as a physician under s. 4.3. He stated, at paras. 11 -16:

The strict evidentiary requirements of section 4.3 of the Regulation for establishing the criteria for liability under section 267.5(5) of the Act may produce severe consequences for claimants in motor vehicle cases. Those consequences, however, appear to lie at the very heart of the policy embodied by the legislative provisions. In Page v. Primeau, [2005] OJ No 4693, the court had occasion to analyze the intent and impact of the Regulation on persons claiming for injuries incurred in automobile collisions. At para 34, the court observed that, “the legislative purpose and intent of section 267.5(5) is to ‘reduce substantially the number of personal injury claims coming before the courts as a result of motor vehicle accidents’”.

This policy goal is truly unfortunate for the Plaintiff. I have great sympathy for him and his family. However, it is not legally cognizable for a plaintiff to complain that the Act and the Regulation thereunder have the effect of eliminating his claim. That was the legislation’s very purpose. Claims not supported by a physician’s evidence do not meet the statutory threshold and cannot succeed.

This conclusion is further supported by the Divisional Court’s judgment in Gyorffy v. Drury, 2013 ONSC 1929. There, the court had to consider the nature of the corroborating evidence required by section 4.3(5) of the Regulation. The court accepted that the evidence of a plaintiff himself could corroborate the physician’s evidence of permanent serious impairment, but it was clear that first and foremost the evidence of a physician is required.

The evidence of lay persons such as the Plaintiff and his family members can only be adduced as further support for a physician’s medical evidence, not in place of it. As the Divisional Court put it at para 18 of Gyorffy, “s. 4.3, read as a whole, is concerned primarily with the evidence of physicians and the requirements their evidence must satisfy. It requires that there be such evidence ‘in addition to any other evidence’”.

Ms. Nguyen correctly points out that section 4.3 of the Regulation contains no relieving provision. The failure to adduce a physician’s evidence cannot be taken as a mere procedural oversight; rather, it is a failure to fulfil a key evidentiary requirement, specifically set out in the governing legislative instrument.

Having failed to adduce any medical evidence from a physician, the Plaintiff has failed to support the claim that he suffered permanent serious impairment of an important physical, mental or psychological function. Accordingly, the Defendants cannot be held liable for the Plaintiff’s non-pecuniary losses.

[56] The decision of Morgan J. in Khan was apparently not brought to the attention of the Court of Appeal in Rodrigues. Rodrigues and Khan appear to be the only two cases that have directly addressed this issue. The four cases listed in para. 10 of the Court of Appeal’s decision in Rodrigues do not actually address the issue or stand for the proposition stated. For example, while a psychologist testified in the Podleszanski case, the plaintiff also relied on the evidence of physicians to support his position. Similarly, in both the Mamado and Hayden cases, the plaintiffs relied on the evidence of both a psychologist and a physiatrist, the latter being a physician.

[57] Section 4.3 does not suggest that psychologists may not testify for plaintiffs on threshold motions, only that the plaintiff must have at least one physician to explain the application of the factors in s. 4.3(2). Nothing in s. 4.3 precludes psychologists from providing evidence to corroborate the evidence provided by a physician pursuant to s. 4.3. The three cases referenced above complied with the strict interpretation of s. 4.3, and do not support the plaintiff.

[58] The Zhu case dealt only with the defendant’s limitation period defence and permitted the plaintiff’s action to continue in the normal course to determine whether she had a claim that satisfied the threshold. It did not decide the threshold issue and there is no reported decision indicating whether the case ever proceeded on its merits.

Analysis

[59] While s. 4.3 of the Regulation does not define the word “physician”, that term is defined in both the Medicine Act, S.O. 1991, c. 30 and the Statutory Accident Benefits Schedule (both the version in force for accidents between November 1, 1996 and September 1, 2010: O. Reg. 403/96, and the version in force as of September 1, 2010: O. Reg. 34/10), enacted under the Insurance Act, R.S.O 1990, c. I.8. Both definitions make clear that a psychologist is not a physician.

[60] Section 1 of the Medicine Act provides the following definitions:

In this Act,

“College” means the College of Physicians and Surgeons of Ontario;

“member” means a member of the College;

“profession” means the profession of medicine;

[61] Section 9 (1) and (3) of the Medicine Act provides that no person other than a member of the College of Physicians and Surgeons may use the title “physician” or hold himself or herself out as a person qualified to practice as a physician. Section 9 provides:

9 (1) No person other than a member shall use the titles “osteopath”, “physician” or “surgeon”, a variation or abbreviation or an equivalent in another language.

(2) Subsection (1) does not apply to the use of the title “surgeon”, a variation or abbreviation or an equivalent in another language by a member of the Royal College of Dental Surgeons of Ontario.

(3) No person other than a member shall hold himself or herself out as a person who is qualified to practise in Ontario as an osteopath, physician or surgeon or in a specialty of medicine.

[62] Section 2(1) of the Statutory Accident Benefits Schedule in force for accidents prior to September 1, 2010 (O. Reg. 403/96) provides a definition for the terms “health practioner”, “physician” and “psychologist”. While both physicians and psychologists are “health practitioners”, psychologists are not physicians. The section in force for accidents prior to September 1, 2010 provides:

“health practitioner”, in respect of a particular impairment, means a physian or,

(a) a chiropractor, if the impairment is one that a chiropractor is authorized by law to treat,

(b) a dentist, if the impairment is one that a dentist is authorized by law to treat,

(b.1) an occupational therapist, if the impairment is one that an occupational therapist is authorized by law to treat,

(c) an optometrist, if the impairment is one that an optometrist is authorized by law to treat,

(d) a psychologist, if the impairment is one that a psychologist is authorized by law to treat,

(e) a physiotherapist, if the impairment is one that a physiotherapist is authorized by law to treat,

(f) a registered nurse with an extended certificate of registration, if the impairment is one that the nurse is authorized by law to treat, or

(g) a speech-language pathologist, if the impairment is one that a speech-language pathologist is authorized by law to treat;

“physician” means a person authorized by law to practise medicine;

“psychologist” means a person authorized by law to practise psychology;

[63] These definitions are identical (although in slightly different form) in s. 3(1) of the current regulation: O. Reg. 34/10.

[64] The term “physician” is defined in more than 40 other Ontario statutes. In all cases it is limited to persons entitled to practice medicine, and does not include psychologists. Where psychologists are referenced, they are identified by title or under the broader category of “practitioner”, but are never included under the term “physician”. Some examples include:

a. Health Insurance Act, R.S.O. 1990, c. H.6, s. 1:

“physician” means a legally qualified medical practitioner lawfully entitled to practise medicine in the place where medical services are rendered by the physician;

b. Ministry of Health and Long-Term Care Act, R.S.O. 1990, c. M.26, s.1:

“physician” means a legally qualified medical practitioner lawfully entitled to practise medicine in the place in which such practice is carried on by him or her;

“practitioner” means a person other than a physician who is lawfully performing health services in the place where they are rendered;

c. Chartered Professional Accountants of Ontario Act, 2017, S.O. 2017, c. 8, Sched. 3, s. 45(3):

(3) If the capacity committee determines that it is necessary to obtain the opinion of a physician or psychologist in order to determine whether a member is incapacitated, the committee may, on its own or on motion, order the member to undergo a medical or psychological examination.

d. Law Society Act, R.S.O. 1990, c. L.8, s. 1:

“physician” means a member of the College of Physicians and Surgeons of Ontario or a person who is authorized to practise medicine in another province or territory of Canada;

“psychologist” means a member of the College of Psychologists of Ontario or a person who is authorized to practise psychology in another province or territory of Canada

e. Employment Standards Act, 2000, S.O. 2000, c. 41, s. 49(4):

“qualified health practitioner” means,

(a) a person who is qualified to practise as a physician, a registered nurse or a psychologist under the laws of the jurisdiction in which care or treatment is provided to the individual described in subsection (2) or (5), or

(b) in the prescribed circumstances, a member of a prescribed class of health practitioners;

[65] Psychologists are one of the twenty-six self governing health professions under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Schedule 1. They are members of the College of Psychologists pursuant to the Psychology Act, 1991, S.O. 1991, c. 38. While psychologists qualify as health practitioners under s. 105 of the Courts of Justice Act, R.S.O 1990, c. C.43 and the Regulated Health Professions Act, 1991, they are not physicians or members of the College of Physicians and Surgeons, are not qualified medical practitioners and are not entitled to practice medicine.

[66] Section 4.3 of the Regulation was added in 2003 by O. Reg. 381/03, s. 1 to further regulate the type of evidence that a plaintiff must adduce to prove a permanent serious impairment of an important physical, mental or psychological function. It therefore post-dates the 1996 addition of “mental or psychological function” to 267.5(5)(b) of the Act and s. 4.1 of the Regulation.

[67] The Medicine Act is foundational legislation with regard to the practice of medicine in Ontario. Anyone who wants to know what a physician is or is qualified to do would begin by looking at the Medicine Act. If the legislature intended to depart from the definition of physician in that Act, one would expect an express exception. Given that psychologists are prohibited from holding themselves out to be physicians under the Medicine Act, it would be remarkable if the legislature intended the term “physician” to include psychologists or any other health practitioner.

[68] This conclusion is reinforced by the distinct definitions of “physician” and “psychologist” in the Statutory Accident Benefits Schedule, which is a regulation under the same statute as s. 4.3 of O. Reg. 461/96. “Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation”: R. v. Zeolkowski, 1989 CanLII 72 (SCC); [1989] 1 SCR 1378, at para. 19.

[69] If the legislature had intended to include psychologists or other health practitioners in s. 4.3 of the Regulation, it would have used the words “physician or psychologist”, or simply the more general term “qualified health practitioner”, as it did in the Statutory Accident Benefits Schedule and a variety of other statutes. This would avoid any conflict with the Medicine Act. This is also consistent with the long established principle of statutory interpretation that “when words of a provision are precise and unequivocal, the ordinary meaning of the words plays a dominant role in the interpretative process”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10.

[70] I also agree with Morgan J. in Khan, at para. 15, that “[t]he failure to adduce a physician’s evidence cannot be taken as a mere procedural oversight; rather, it is a failure to fulfill a key evidentiary requirement, specifically set out in the governing legislative instrument.” Contrary to the statement of Hockin J. in para. 117 of Rodrigues, the court does not have “inherent jurisdiction” to relieve against the substantive requirements of any statute.

[71] While Hockin J. has identified some valid policy reasons for adding “psychologist” to s. 4.3 of the Regulation, it is my view that any such addition would require an amendment to the Regulation and cannot be imposed by judicial fiat.

Conclusion

[72] For the foregoing reasons I conclude that a psychologist does not qualify as a physician under s. 4.3 of the Regulation. While a psychologist’s evidence may corroborate the evidence of a physician, a psychologist’s evidence cannot replace or be offered as a substitute for the evidence of a physician as required by that provision.

[73] Given that the Court of Appeal declined to resolve this question in Rodrigues, it is appropriate to consider the defendant’s threshold motion on its merits on the assumption that a psychologist may qualify as a physician under s. 4.3 of the Regulation.

Threshold Motion: Merits

Legal Principles

[74] In Malfara v. Vukojevic, 2015 ONSC 78, Firestone J. set out a summary of the relevant jurisprudence relating to threshold motions, and the principles to be considered and applied by the court. In Ayub v. Sun, 2015 ONSC 1828, Diamond J. set out the highlights of this summary as follows:

• In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044, at para. 10.

• The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court set out the following three part inquiry:

a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?

b) If yes, is the function impaired important?

c) If yes, is the impairment of the important function serious?

• While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh, 2008 ONCA 221 and Bos v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.).

• The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao, 2005 CanLII 40371 (ON SC), at para. 32.

• The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.J.) at para. 56.

• When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Givons (2004), 2004 CanLII 45880 (ON SCDC), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.

[75] In Meyer v. Bright, the Ontario Court of Appeal held, at paras. 70 and 93:

Because it is only serious impairment which will qualify as an exception under s. 266(1)(b) it is apparent that the Legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue for it.

[76] This observation has been repeated in several cases since. See for example Malfara at para. 28, Girao v. Cunningham, 2017 ONSC 2452, at para. 43.

[77] In this regard it is instructive to consider the facts set out by the Ontario Court of Appeal in Meyer v. Bright. In that case the court dealt with a number of factual scenarios. In one scenario the plaintiff complained that after the accident she could walk recreationally for only 30 minutes a day and in good weather whereas before the accident she walked more quickly and for much longer periods regardless of weather. After walking she had pain and swelling in her foot and ankle. The Court of Appeal concluded (at paras. 69 – 70) that while this qualified as a permanent impairment of an important bodily function, the detrimental impact was not of such a degree that it would qualify as a serious impairment.

[78] In a second scenario the evidence indicated that the plaintiff was no longer able to do gardening, snow shovelling and cutting the grass and she had to adjust her shopping habits, buying small amounts of groceries on a more frequent basis. She also had to do the indoor activities like vacuuming at a slower pace and could no longer clean windows or wash curtains. Again the Court of Appeal concluded (at paras. 92, 95) that while the impairment of the plaintiff’s important bodily functions had impacted detrimentally upon her life, it was not of such a degree that it would qualify as a serious impairment.

[79] Finally, in a third scenario, the plaintiff permanently injured his left foot and left hand, and these injuries prevented him from continuing in his profession as an auto body mechanic. The Court concluded:

[W]here … permanent impairment of important bodily functions frustrates the chosen career path of an injured person we think the impairment is properly described as being a serious one for that person… [W]e are of the opinion that the frustration of an injured person's chosen career path generally should be considered to be a serious matter.

[80] Not only must the plaintiff establish that the impairment is a serious impairment of an important bodily function, she must also establish that the condition that meets the threshold was caused by the motor vehicle accident on July 9, 2010 (Morgan v. Saquing, 2015 ONSC 2647, at para. 20).

Facts

[81] At the date of the accident, the plaintiff was 19 years old, just two months shy of her 20th birthday. She had completed her first year of university at Wilfred Laurier University (Laurier). She was originally enrolled in an honours bachelor of arts program, focussing on communications and advertising, but had done very poorly in her first year, and was put on academic probation. She took three courses in her first and second term, even though a full load is four or five courses. She explained that her grades in first year university were “horrible” because she had difficulty balancing her schoolwork with her social life. She would not be permitted to return to the honours program unless she raised her GPA from 2.7 to 4.0.

[82] Just prior to the accident, the plaintiff had three summer jobs. She was a camp counsellor at a dance/cheerleading camp run by the city, she had a part-time job on Friday evenings and Saturdays as a bartender, and she did occasional work for Molson’s/Coors special events.

[83] The motor vehicle accident on July 9, 2010 was a serious accident. The photographs taken of the plaintiff’s car after the accident show that the front end of her car was severely damaged by the impact. The car was a write-off. The front air bags deployed.

[84] There was no dispute that the plaintiff sustained a physical injury as a result of that motor vehicle accident. The parties do, however, dispute the nature, severity and duration of that injury, whether the plaintiff has any on-going symptoms, and, if she does, whether any of her current symptoms were caused by the injury sustained on July 9, 2010.

[85] The plaintiff testified that she hit the left side of her head on impact and believes that she lost consciousness at some point after impact. She called 911 to report the accident, although she does not remember this. She was put on a stretcher by the paramedics who arrived at the scene and taken to the hospital for examination. She was discharged that same day. She returned to the hospital the next day because she was foggy, her body hurt and she was coughing up blood. She was examined and discharged the same day.

[86] The medical report made by the paramedics at the scene indicated that the cabin of the plaintiff’s car was intact and that the plaintiff did not have head or neck trauma, headache or dizziness, but she did complain of pain near her right knee and back pain.

[87] The hospital record of July 9, 2010 indicated no loss of consciousness, no dizziness, good recall, but general soreness everywhere. The CT scan of her head taken that day was normal. The hospital record of July 10, 2010 indicates that the plaintiff was speaking in full sentences and did not have nausea or vomiting.

[88] After the accident the plaintiff had to give up her summer jobs for the balance of the summer.

[89] Dr. James Carson is a family physician with a focus on sports medicine, including concussions. He testified that he first saw the plaintiff on August 31, 2010, just seven weeks after the accident. The plaintiff was referred to him by her physiotherapist because the plaintiff was still complaining of headaches and memory loss, and was having trouble sleeping.

[90] Dr. Carson diagnosed the plaintiff with post-concussion syndrome, which he testified could affect her cognitive abilities, including memory and concentration. He explained that this could affect her ability to study, and do tests and group projects when she returned to school in September. Dr. Carson defined post-concussion syndrome as the persistence of symptoms in an adult for more than 14 days without improvement.

[91] Dr. Carson explained that a concussion is a mild traumatic brain injury. It does not appear on a CT scan or an MRI, because it disrupts the function and not the structure of the brain. There is no current diagnostic imaging that will show a concussion. A concussion often does not involve a loss of consciousness.

[92] Dr. Carson wrote a letter to the Laurier Accessible Learning Centre on September 14, 2010. In that letter he advised Laurier that he had diagnosed the plaintiff with post-concussion syndrome, and that she had particular difficulty with concentration and memory, which could affect her academically. He did not, however, anticipate that her injuries or symptoms were permanent. His letter concluded with the following statement:

I anticipate that if she fails to improve and needs to drop her courses for this semester, she will likely achieve symptom free status within several weeks and thus would be able to resume her studies in January.

[93] On October 26, 2010, Dr. Carson filled in a Disability Certificate for the plaintiff to enable her to apply for accident benefits from her insurer. The injuries identified in Part 5 of that report include “concussion”, “whiplash”, and “post-concussion syndrome”.

[94] Laurier offered to provide the plaintiff with a number of accommodations to permit her to return to school, but there is no record of her following up on these offers. Unfortunately for the plaintiff, she developed renal colic in October 2010, as a result of kidney stones. This caused her great abdominal pain, and she had to go to the hospital for surgery in October to have the kidney stones removed. Following the kidney stone surgery in October, the plaintiff withdrew from Laurier.

[95] The kidney stones were not the last of the plaintiff’s troubles for 2010. The plaintiff was hit on the head with a beer bottle on November 27, 2010 while visiting a nightclub with friends. The bottle was dropped from the second floor of the nightclub. The hospital report indicates that she reported feeling nausea and dizziness, and lacerations on her head were closed with a staple.

[96] The plaintiff did not tell Dr. Carson about the beer bottle incident. Dr. Carson testified that he did not find out about that injury until he was told by the plaintiff’s mother in May 2011. He agreed that it was possible that being hit on the head with a beer bottle could cause a concussion.

[97] Dr. Carson referred the plaintiff to a neurologist in May 2011 because a neurologist has extra training in the brain, and he wanted to make sure that he was not missing something. The neurologist did not testify at trial.

[98] Dr. Carson last saw the plaintiff on May 1, 2012. As indicated above, Dr. Carson’s testimony and clinical notes is evidence that the plaintiff had post-concussion syndrome following the accident and before she was hit on the head with a beer bottle in November 2010. That said, Dr. Carson’s testimony is of limited assistance with the threshold issue because he had not seen the plaintiff since May 1, 2012 and could not comment on her current status or functioning. Moreover, even his clinical notes from November 2010 to May 2012 are of little value because the plaintiff failed to disclose to him the beer bottle injury, which was an important and potentially relevant medical event that might have influenced his subsequent opinions.

[99] The plaintiff testified that she did not return to school in January, 2011, but took time off to recover from the accident. She went to Florida in November, 2010, and then returned home for Christmas. She then returned to Florida in December and went on a cruise. She remained in Florida with family friends for approximately 10 months in 2011. While there she received no medical treatment. She testified that she could not afford it.

[100] In 2012 the plaintiff obtained a seasonal job as a server at the Tangle Creek Golf Club. She continued to work there for three summers.

[101] Beginning in 2015, the plaintiff began working on the production crew for the television show “Survivor”. She worked several seasons on the show from 2015 to 2019. Her work on Survivor included working for the wardrobe department, working as a production assistant doing delicate painting on puzzle pieces, and sometimes testing the challenges that make up the premise of the series. She worked for 4 or 5 months per season. Her work on Survivor took her to Cambodia and Fiji, where the show was filmed. During her time off she travelled to Thailand, New Zealand, South Africa, Australia, Viet Nam and Indonesia.

[102] During her testimony, the plaintiff was presented with an email that she wrote to the producer of Survivor in October 2016 to thank him for the opportunity to work on the show. The letter is relevant to the threshold issue. It states in part:

About six years ago I was in a car accident. A lady ran the stop sign into the intersection that caused me to walk away with a brain injury. I experienced the standard aches and pains and body restrictions that go along with this type of event, and for over three years I had trouble with my memory. I felt as though I did not have control over my brain, and I was constantly self-conscious about repeating myself or forgetting important things.

Coming to Survivor was the scariest thing I have ever done. I wanted the chance to prove to myself that I was physically back to my original self, and I wanted to test myself mentally as well. It was things like the puzzles I tested…that forced me to get over my fears and tackle the insecurities head on. I still remember feeling sick to my stomach during the first test block when I was asked to memorize all the pieces of your new challenge myself. I was so relieved when only one was wrong. Physically, after Survivor I had never felt better. Carrying all the gear and testing all the challenges was exactly what my body needed. I know that this may sound silly but I came home a different person…

[103] Also in 2015 the plaintiff returned to post-secondary school, taking a program in Communications, Media Arts and Design; and Advertising and Marketing at Centennial College. She required and was given accommodations. These accommodations included extended time on tests and assignments, being permitted to write her tests in a separate, quiet space, as well as short breaks when working at the computer for lengthy periods of time.

[104] The plaintiff’s Disability Verification Form for Centennial College was completed by her family physician, Dr. Marchuk, in September 2015. Dr. Marchuk indicated that the plaintiff’s disability was expected to last for the duration of the program or longer, and was classified as a “mild” disability. She described the “Daily Functional Impact” as “difficulty focusing/concentrating if distractions re: noise/activity”, “may fatigue earlier” and “prolonged computer screen time exhausts due to brain over stimulation”. Although there are boxes for memory loss and chronic pain under “Daily Functional Impact”, Dr. Marchuk did not check these off. Dr. Marchuk also indicated that she did not believe that the plaintiff required a reduced course load.

[105] With these accommodations, the plaintiff did extremely well in her program at Centennial College. Most of her grades were A+ and A. Her instructor, Dean Cowell, testified that she was an excellent student and did extremely well.

[106] As part of her program at Centennial College, the plaintiff obtained a four month internship at a marketing and advertising company in December 2018. She had to leave the program early to return to Survivor in March 2019. When that season at Survivor ended, she was rehired at the marketing and advertising company as an Account Coordinator on a fixed term contract commencing October 2019, and ending on March 13, 2020. She testified that she does not work on digital accounts because of her migraine headaches, and she has ongoing issues with respect to lights and loud noises. She is accommodated at work with a stand-up desk and printouts of computer screens so that she does not have to look at the screen for prolonged periods.

[107] The plaintiff testified that she lacks confidence at the marketing and advertising company and does not know if she will be able to do the job because up until now she has only had entry level responsibilities. She continues to have migraine headaches, difficulty concentrating, and looking at the computer screen. She attributes these symptoms to the motor vehicle accident of July 9, 2010.

[108] The plaintiff also testified that since the car accident she has anxiety being in a car, and generally drives herself only about three times per year. She also testified that she is an anxious car passenger, and prefers to take public transit. Fortunately, her current job is a seven-minute walk from where she lives in downtown Toronto.

[109] The plaintiff testified that she was an active child, involved in curling, golf, swimming, badminton, dance, soccer, and church plays and other activities. Since the automobile accident she has not returned to any of these activities, and is not as social as she was before the accident. She still has back and neck pain, difficulty sleeping and staying asleep. She testified that she feels like she does not have control over her brain anymore and feels like she has lost a part of her life. She has never been able to return back to the person she was before the accident.

[110] There is much evidence that the plaintiff has exaggerated her continued symptoms. For example, there is video evidence of the plaintiff dancing at a charity event sponsored by the Survivor production in Fiji, and participating in testing a “Challenge” on the Survivor show with other members of the crew. There are also numerous photographs taken from social media of the plaintiff’s travels while working on Survivor, as well as various other vacations and cruises in Europe, the Caribbean, and the United States since 2010. There are photographs of her participating at various social events – including concerts, sports events, skiing and parties – with friends during these years. Her travel records indicate annual road trips to the United States, often to attend football games with her mother in Ohio. Viewing all of this evidence as a whole, together with her October 2016 letter to the producer of Survivor, it is difficult to believe that the plaintiff continues to have any serious physical or psychological limitations as a result of the July 9, 2010 accident.

[111] Moreover, s. 4.2 of the Regulation states that any assessment of an alleged impairment must take into account “reasonable efforts to accommodate the person’s impairment” and the persons “reasonable efforts to use the accommodation” in the context of both employment and education or training.

[112] There is no suggestion that the plaintiff was unable to perform any of her work for Survivor, or that she required any accommodation to perform her work. Her success is demonstrated by the fact that she has been hired back season after season. She did require accommodation at Centennial College, but with that accommodation was able to continue and complete her education and training with excellent grades. She does require accommodation at the advertising and marketing firm – the stand-up desk and printouts of computer screens – but her success at employment is demonstrated by the fact that she was hired back after completing her internship. With these accommodations, there is no evidence of “substantial interference” with her ability to continue with her employment.

[113] In her examination in chief, the plaintiff testified that she left her job at the advertising and marketing company a week or so before the trial began because she was getting migraine headaches. In cross-examination, however, she acknowledged that she took a leave of absence from her job in order to meet with her lawyers and attend the trial. She testified that she was hoping to return to work after the trial.

[114] The plaintiff testified that she did not return to her pre-accident activities such as curling, golf, swimming, badminton, dance, soccer, and church plays. The difficulty here is that the plaintiff sustained her injury when she was 19 years old, and in a transitional period of her life. Few of us in our twenties engage in all the same activities that we did when we were children or in high school. Few of us in our twenties maintain the same social life that we did in first year university. That is usually a good thing. Interests and opportunities change. Section 4.2(1)(iii) requires that the impairment must “substantially interfere with most of the usual activities of daily living, considering the person’s age” (emphasis added).

[115] The evidence presented does not indicate how frequently the plaintiff engaged in activities such as curling, golf, swimming, badminton, dance, soccer, and church plays in the year or so immediately before the accident. Nor does the evidence indicate that the plaintiff has any current physical limitations that would prevent her from participating in such activities on a social level if she chose to do so. It would appear from the record that the plaintiff has, quite appropriately for her age, chosen to focus on school, work and travel over the past few years.

[116] As indicated above, the plaintiff relied on the evidence of Dr. Vitelli, a clinical psychologist, to provide the evidence required by s. 4.3 of the Regulation. Dr. Vitelli assessed the plaintiff on December 1, 2010, and again on November 28, 2018.

[117] Dr. Vitelli testified that while the plaintiff continues to have headaches rated at a 7 or 8 in severity, they were more manageable then they had been in 2010, and she has them every 10 to 12 days. Her back pain had largely resolved.

[118] Many of the tests conducted by Dr. Vitelli relied on self-reporting by the plaintiff. On the Rehabilitation Checklist, in November 2018 the plaintiff identified 7 items that she perceives prevents or discourages her from returning to her pre-accident functioning, a decrease from 25 items endorsed in December 2010. In 2018 the plaintiff fell within the mild range for depression as compared to the severe range in 2010. In 2018 the plaintiff fell within the moderate range for anxiety, as compared to the severe range in 2018. Her score on the depression and anxiety scales fell on the average range for pain patients, as compared to the above average range in December 2010. He felt that she was able to cope with her pain for the most part.

[119] Dr. Vitelli concluded that the plaintiff’s current psychological profile is one of moderate symptoms of anxiety, with mild symptoms of depression, post-traumatic stress, and an overall improvement in her mood since 2010. From a neurocognitive perspective, her performance ranged from low to mid-average, which was a significant improvement since 2010. He stated that he felt the plaintiff had “plateaued”, although he could not speculate whether she will improve or deteriorate over time. He opined that the plaintiff would benefit from long-term psychological counselling.

[120] Dr. Vitelli concluded that the plaintiff had sustained serious impairments of important mental and psychological functions, and that there had been substantial interference in her engagement in academic, employment, social and recreational activities normally expected of a person of her age.

[121] Notwithstanding that conclusion, Dr. Vitelli’s report contains the following statement, just three paragraphs later:

From a neuropsychological perspective, Ms. Mundinger is not considered to have sustained a substantial inability to engage in activities of normal life given that she has successfully attended school since 2016, manages self-care and household tasks independently, has maintained employment each summer since 2015 and has travelled extensively over the past several years.

[122] I am unable to reconcile Dr. Vitelli’s conclusion regarding serious impairment with that statement.

[123] On cross-examination, Dr. Vitelli agreed that the plaintiff had improved significantly between 2010 and 2018.

[124] He also testified that he had no information about the beer bottle incident in November 2010, and he had not reviewed the plaintiff’s employment files or her university or college records. He did not know that the plaintiff’s family physician had diagnosed the plaintiff with Attention Deficit Disorder (ADD) in 2017, and did know that the plaintiff was prescribed Concerta and Ritalin for ADD. He did not know that the plaintiff’s family physician first suspected that the plaintiff had ADD in 2005. He testified that he could not speculate whether lingering deficits were the result of ADD or the motor vehicle accident, and he would have to defer to the family doctor on this issue.

[125] On cross-examination, Dr. Vitelli testified that he found the plaintiff to be an accurate historian, and he did not observe any problems with her memory.

[126] While Dr. Vitelli concluded that there has been substantial interference with the plaintiff’s engagement in academic, employment, social and recreational activities, these conclusions focused on the plaintiff’s feelings given her age. Dr. Vitelli did not know about the plaintiff’s academic record or her employment record since she completed her college program, and agreed that he would need more information to make these conclusions. He testified that he would need more information before he could provide an opinion on whether the plaintiff would be able to work in her current job in advertising. This would include a site assessment and a review of her employment records, which he had not undertaken.

[127] Most significantly, Dr. Vitelli explained that when he used the words “substantial interference”, he meant only that it “may interfere to some extent”, and that depended on how well, in the long run, the plaintiff held on to the gains she has made.

[128] The term “substantial interference” does not mean “may interfere to some extent”. Such an interpretation would render the threshold meaningless. That is clear from both the legislation and the cases interpreting the legislation. This clarification by Dr. Vitelli renders his conclusions unusable for the purposes of s. 4.3 of the Regulation.

[129] I prefer the evidence provided by the defendant’s expert witness, Dr. Jeremie Larouche, who was qualified as an expert in orthopaedic surgery and orthopaedic trauma surgery.

[130] Dr. Larouche conducted an orthopaedic assessment of the plaintiff on February 5, 2019. He testified that, based on his examination of the plaintiff and her medical records, she did not have a significant closed head injury in the July 9, 2010 motor vehicle accident. He described her injuries as minor soft tissue injuries. In his view, any ongoing complaints are more likely the result of the head injury caused by being hit on the head with a beer bottle in November, 2010. Unlike the motor vehicle accident, the plaintiff reported nausea and dizziness after being hit on the head with the beer bottle, and these symptoms are associated with head injuries and concussions.

[131] In Dr. Larouche’s opinion, the soft tissue injuries the plaintiff sustained on July 9, 2010, did not lead to a long-term impairment and would be expected to heal in a few weeks or months. He was also of the view that there were discrepancies between what she told him she could do and what she is documented doing.

The Jury Verdict

[132] While the Court is not bound by the jury verdict, the verdict is a factor the trial judge may consider in determining the issues on the threshold motion.

[133] As indicated above, the jury awarded the plaintiff $29,000 for past lost income, $4,000 for future lost income, and $20,000 for general damages.

[134] At trial, the plaintiff put to the jury that damages in the range of $50,000 - $100,000 for past lost income and $50,000 - $100,000 for future lost income would be fair. She suggested general damages in the range of $65,000 - $100,000.

[135] The defendant argued that past lost income should be in the range of $2,000 to $3,000, and $0 - $5,000 for general damages. The defendant argued that there should be no award for future lost income.

[136] In my view the jury verdict reflects a result much closer to the position advanced by the defendant than to the position of the plaintiff in this case. In particular, the jury appears to have rejected the plaintiff’s position that the motor vehicle accident on July 9, 2010 has resulted in a permanent impairment that will prevent her from working until her normal retirement age of 65 or cause substantial pain and suffering in her future.

Conclusion

[137] 2010 was a horrible year for the plaintiff. In the span of only five months she was involved in a serious motor vehicle accident, required surgery to remove kidney stones, and was hit on the head with a beer bottle, requiring staples to close her wound. None of those incidents were her fault. She experienced more physical adversity during those five months than most young adults will endure in a lifetime.

[138] That the plaintiff was able to recover from those setbacks is a testament to her resilience and intelligence. She found employment on Survivor that enabled her to travel the world, she excelled in her program at Centennial College, and immediately found a job in her chosen profession. In many ways she has, since 2015, led a life that most young adults would envy.

[139] I do not doubt that she continues to suffer from migraine headaches, or that she is anxious and uncertain about her ability to succeed in the future. Based on the evidence, however, I am unable to conclude that she has met her onus of proving that, as a result of the motor vehicle accident of July 9, 2010, she sustained a permanent serious impairment of an important physical, mental or psychological function, as that phrase is defined in the regulations and case law.

[140] For these reasons I conclude that the plaintiff does not fall within the statutory exception set out in s. 267.5(5) of the Insurance Act and the defendants’ motion to dismiss the plaintiff’s claim for non-pecuniary damages is granted.

[141] Following the trial, the plaintiff’s counsel requested an opportunity to make written submissions on the question of the deduction of collateral benefits. I have established a schedule for the exchange of factums on that issue. The question of costs will be addressed after I have decided the collateral benefits issue.

Justice R.E. Charney

Released: December 11, 2019