Court File and Parties

Court File No.: 16-67152 Date: 2020-03-03 Ontario Superior Court of Justice

Between: Catherine McNamee and John McNamee, Plaintiffs – and – Pam Oickle, Defendant

Counsel: Colleen Burns / Éliane Lachaîne, for the Plaintiffs Tom Ozere / Erin Durant, for the Defendant

Heard: February 21, 2020

Threshold Ruling John McNamee Beaudoin J.

Reasons for Decision

[1] The Defendant brings this motion wherein she seeks declaration that the Plaintiff, Mr. McNamee’s claims for non-pecuniary general loss, claims for health care expenses, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) are barred as a result of his failure to establish that his injuries fall within the exceptions contained in s. 267 (3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8 (as amended) and the definitions contained in s. 4.1 of Ontario Regulation 461/96 of “permanent serious impairment of an important physical, mental or psychological function.”

Background

[2] Mr. McNamee seeks damages as a result of the motor vehicle accident that occurred on February 11, 2014. The trial proceeded with jury selection, opening statements and evidence called between January 13, 2020 and February 14, 2020. While the jury was deliberating, the Defendant brought this “threshold” motion. The evidence relied upon in support of this motion was heard by me at trial. While liability was not admitted. it was not in dispute. The seriousness and duration of Mr. McNamee’s injuries were the major issues.

[3] It is relevant that on February 18, 2020, I ruled that there was insufficient evidence to put any question for the jury with respect to Mr. McNamee’s future treatment costs for physiotherapy, future cost of medication, future treatment costs for massage therapy, and past or future economic loss.

[4] On February 21, the jury returned its verdict wherein they awarded Mr. McNamee $15,000 for general damages; $2,500 for past loss of housekeeping and home maintenance capacity; $0 for past medication and $3,100 for past massage and physiotherapy. They awarded Ms. McNamee $2,500 for her loss of care guidance and companionship of Mr. McNamee pursuant to s. 61(2)(e) of the FLA.

[5] While I am not bound by the jury verdict, the verdict is a factor for me to consider in determining this threshold motion.

Position of the Parties

[6] The Defendant submits that Mr. McNamee has failed to establish on a balance of probabilities that the injuries he sustained as a result of the motor vehicle accident, if any, meet the exceptions contained in the Insurance Act, namely, that he sustained a “permanent serious impairment of an important physical mental or psychological function.”

[7] It is the Defendant’s position that Mr. McNamee had long-standing medical issues prior to the subject accident. Mr. McNamee had sustained workplace injuries in 2004 and 2005 and had chronic neck and back pain and severe headaches for many years prior to the subject accident. His pain and reduced function varied for many years with temporary relief being obtained through facet joint injections. He will require facet joint procedures into the future regardless of the subject accident and on a permanent basis. Mr. McNamee has continued to work in his pre-accident position after the motor vehicle accident and the defendant submits that he also returned to his pre-accident level of function. The subject accident may have caused him increased pain in the period immediately after the motor vehicle accident as a result of soft tissue injuries, but he returned to his pre-accident levels of pain and function within months of the motor vehicle accident.

[8] As a result of this accident, Mr. McNamee submits that he suffered soft-tissue injuries to his back and neck and a permanent worsening of his pre-accident conditions. His injuries have caused a significant reduction in his ability to participate in his numerous hobbies and recreational activities. Mr. McNamee argues that Ms. McNamee suffered a loss of guidance, care and companionship as a result of his injuries.

[9] Mr. McNamee maintains that the evidence in this trial supports a finding, on a balance of probabilities that he has sustained “permanent serious impairment of an important physical mental or psychological function.”

The Legislative Framework

[10] The Defendant relies upon the protection against liability for general damages and health care expenses contained in ss. 267 (3) and (5) of the Insurance Act, and the definitions contained in s. 4.1 of Ontario Regulation 461/96 of “permanent serious impairment of an important physical mental or psychological function.” As set out below:

[11] Subsections 267.5(3) and (5) provide:

Protection from liability; health care expenses

(3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile unless, as a result of the use or operation of the automobile, the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function. 2002, c. 22, s. 120 (1); 2011, c. 9, Sched. 21, s. 3 (2).

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. 1996, c. 21, s. 29; 2011, c. 9, Sched. 21, s. 3 (3).

Insurance Act, R.S.O. 1990, c. I. 8. Section 267.5 (3) and (5). Schedule B.

[12] There is no claim for any permanent serious disfigurement in this case.

[13] Effective October 1, 2003, Ontario Regulation 461/96 was amended and ss 4.1 and 4.2 of that regulation clarify the meaning of the threshold wording in s. 267.5. Section 4.2 provides:

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. O. Reg. 381/03, s. 1.

[14] In addition, s. 4.3 stipulates the evidence which must be adduced to prove permanent serious impairment of an important physical, mental or psychological function. That section sets out the following:

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. O. Reg. 381/03, s. 1.

(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. O. Reg. 381/03, s. 1.

(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. O. Reg. 381/03, s. 1.

(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. O. Reg. 381/03, s. 1.

[15] Section 267.5(15) of the Insurance Act provides that “the trial judge shall determine for the purposes of ss. (3) and (5) whether, as a result of the use or operation of the automobile, the injured person has sustained a permanent serious impairment of an important physical, mental, psychological function.” The trial judge is accordingly required to determine the threshold issue irrespective of any motion being brought by a party to determine if the threshold has been met or not.[^1] The plaintiffs bear the onus of proof to establish on a balance of probabilities that their impairments meet the statutory exceptions or “threshold”.

[16] It has been held that the purpose of the threshold is to limit the rights of victims of motor vehicle accidents to obtain non-pecuniary damages and ongoing health care costs in exchange for “more generous first-party benefits, regardless of fault, from his or her own insurer.” The limitations focus on the seriousness and permanence of the injury and its importance to the victim in allowing claims for damages in more serious cases.[^2]

[17] In Meyer v. Bright,[^3] the Court of Appeal outlined the three-part inquiry which is to be undertaken in the threshold analysis as follows: (1) Has the injured person sustained permanent impairment of a physical, mental or psychological function? (2) If yes, is the function which is permanently impaired important? (3) If yes, is the impairment of the important function serious? This decision remains the proper framework in analyzing whether a case meets the threshold.

Causation

[18] Sections 267.5(3) and 267.5(5), each incorporate a causation requirement. The plaintiffs must prove that their injuries were caused by the motor vehicle accident in question. The test is the “but for” causation test as outlined by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.

[19] I adopt the approach of other courts[^4] that trial judges should consider causation prior to undertaking the Meyer analysis. If the alleged impairment was not caused as a result of the subject collision, the subsequent analysis does not matter.

The Evidence

[20] The evidence at trial has been that Mr. McNamee has had chronic pain in his neck and back and severe headaches dating back to workplace injuries in 2004 and 2005. He claims the same injuries in this action.

[21] The pre-accident records demonstrate an ongoing history of procedures organized by Dr. McKee, his treating physiatrist, to deal with repeated flare-ups of Mr. McNamee’s neck and back pain. Dr. McKee recommended physiotherapy treatments during these flare ups. In January of 2014, one month before the subject motor vehicle accident, Dr. McKee recorded that Mr. McNamee had a successful radiofrequency ablation procedure on the right side of his neck and back and reported that those procedures would need to be repeated indefinitely.

[22] Dr. McKee also testified at trial. He said that relief from this ablation procedure is typically felt for anywhere between 3, 6, 9 and 12 months. This procedure was never meant to be a “cure” for Mr. McNamee, although Mr. McNamee seemed to believe that the procedures would give him relief for 3 to 5 years.

[23] Although Mr. McNamee indicated at trial that immediately before the accident he was “excited, wasn’t in pain, and felt amazing”, his family doctor’s note of November 19, 2013 indicates that he continued to have pain on his non-radio-ablated side (on the left). Dr. Wooltorton testified about his note that Mr. McNamee was walking stiffly, was tender along his spine on the left and had a significant ache in his spine on the left. Dr. Wooltorton advised him at that time to continue taking his Tylenol 3, and if the pain became severe, to substitute with Percocet.

[24] The pre-accident employment file also contains a significant history of workplace accommodations and functional limitations – including functional abilities forms completed by his physicians prior to the motor vehicle accident. The employment file also outlines a long history of absenteeism in the years leading up to the motor vehicle collision.

[25] Immediately after the collision it was Mr. McNamee’s evidence that he was complaining of chest pain, neck pain, back pain and right knee pain (although the claim with respect to the knee was abandoned). Dr. Wooltorton’s records indicate only stiffness in Mr. McNamee’s neck, back, chest and a mild increase in his baseline headache. The family doctor records indicate improvement. Mr. McNamee was eventually given a renewal of his Tylenol 3s on July 28, 2014 (a total of 90 pills) which would last him until July 6, 2015. Between July 2014 and July 2015, he would not attend to see his family physician at all. On July 6, 2015, he was making complaints of neck pain following physical labour.

[26] As a result of a pre-accident referral by Dr. McKee, Mr. McNamee received a medial branch block on April 23, 2014 to his left lower back. Dr. McKee testified that the procedure was successful, and he booked Mr. McNamee in for a radiofrequency ablation in that location. Mr. McNamee would not attend at Dr. McKee’s office again until May 11, 2016, more than 2 years post accident, just prior to his scheduled radiofrequency procedure. Dr. McKee had also offered Mr. McNamee the opportunity to attend in Kingston for Facet Joint procedures while waiting for radiofrequency procedures. Mr. McNamee did not take up this opportunity post-accident.

[27] At an appointment with Dr. McKee on August 31, 2016, a radiofrequency ablation appointment for his neck on the right side was cancelled as the pain had settled.

[28] Mr. McNamee has called one expert, Dr. Kleinman (physiatrist), in support of his claim. Dr. Kleinman accepted all information provided to him by Mr. McNamee as accurate. I have found Mr. McNamee to be an unreliable historian. It was Dr. Kleinman’s opinion on May 29, 2017 that the collisions exacerbated/aggravated his pre-existing neck and back issues and led to “a delayed and incomplete recovery.”

[29] Dr. Kleinman noted that Mr. McNamee had previous neck pain. When asked if this pain disorder had changed, he reported that Mr. McNamee was unable to relate his neck pain to his pre-existing neck pain. More significantly, Dr. Kleinman relied on Mr. McNamee to tell him about his pain levels before the accident and Mr. McNamee was unable to do so. Dr. Kleinman was unable to apportion contribution between the subject accident and a later accident in April of 2014.

[30] Dr. Kleinman described a biomechanical disorder of Mr. McNamee’s lumbar sacral spine. It was his opinion that the muscles, ligaments and capsules of Mr. McNamee’s cervicothoracic and lumbosacral spine underwent certain overstretching and partial tearing and straining as a result of the forces involved in the indexed collision. The initial soft tissue pathology had now given way to the development of chronic scar tissue that impacts Mr. McNamee and a way that is both physically painful and functionally disabling.

[31] Dr. Kleinman was not provided with Mr. McNamee’s pre-accident employment file or WSIB file. There was a report of a workplace incident in September 27, 2011 due to a broken chair at work. This caused a flareup in his back pain and triggered an ergonomic assessment where precautions with respect his walking, sitting and standing were noted. Dr. Kleinman had not seen Mr. McNamee’s work attendance records and how these had improved since the accident.

[32] Dr. Kleinman could not recall seeing a medical assessment by Dr. Hooper dated March 19, 2012 where Mr. McNamee is reporting severe headaches and requires accommodations at work. He could not recall if he saw a report from Dr. Patten of June 2013. Dr. Patten reports that Mr. McNamee’s ability to function is impaired, and as a result, an accommodation plan was prepared. Mr. McNamee was absent from work for 60.71 days that year.

[33] That same assessment by Dr. Patten, (8 months before the accident) refers to lumbar disc disease as well as cervicogenic headaches that are similar to what Mr. McNamee was reporting to Dr. Kleinman in 2017. Dr. Kleinman did not observe that Mr. McNamee had seen Dr. McKee 25 times before the accident. He did not dispute that the radio-frequency ablations would need to be repeated regardless of the accident. Dr. Kleinman was not provided with the report of Dr. Devlin and he had no opportunity to comment on it.

[34] In re-examination, Dr. Kleinman summarily dismissed all this information and stated that it would not change his opinion. Given that he could not even remember reviewing these relevant pre-accident documents, his opinion can be given very little weight.

[35] The Defendant called Dr. Devlin who did have the pre-accident employment file and WSIB records. Dr. Devlin also had an opportunity to comment on the report of Dr. Kleinman and disagreed with Dr. Kleinman’s analysis that Mr. McNamee had “initial restriction and tearing of the muscles, ligaments and capsules.” Dr. Devlin was not able to disentangle Mr. McNamee’s pre-accident neck and back issues from his condition as of the date of his August 24, 2017 assessment. Dr. Devlin disagreed with Dr. Kleinman’s assessment regarding Mr. McNamee’s ability to participate in his activities of daily living and homemaking activities. Dr. Devlin did not identify any function which was impaired as a result of the motor vehicle accident.

[36] With respect to Dr. Kleinman’s report, Dr. Devlin noted he and Dr. Kleinman concurred in many areas, but Dr. Devlin disagreed with Dr. Kleinman’s conclusion that there had been an initial tearing of the muscles, ligaments and capsules and then replaced with the painful scar. Dr. Devlin said that this theory is based on a very bad experiment that had been conducted in the 1960s. He did not see any evidence that the injuries such as Mr. McNamee suffered were characterized by overstretching or tearing of the muscles, ligaments, capsules or replaced with a scar.

[37] Dr. Kleinman may have come to his conclusions based on Mr. McNamee’s history of the subject motor vehicle collision but Mr. McNamee’s evidence about the severity of the collision is not reliable and is contradicted by the evidence of his own witness, Constable Delia who observed moderate damage and little movement of the vehicles after impact. I accept Ms. Oickle’s evidence that she could not have been travelling at more than 5 km per hour at that time.

[38] As between Dr. Kleinman and Dr. Devlin, I prefer, on balance, the evidence of Dr. Devlin.

[39] The only injury which was discussed at trial which “may” have been a new complaint from Mr. McNamee was with regards to his right knee which required two surgeries in 2017. Mr. McNamee himself seemed to believe that this knee injury was a result of the subject accident, but no medical evidence was presented which would demonstrate this to be the case. Plaintiff’s counsel conceded that they were not taking the position that Mr. McNamee’s knee problems were related to the car accident. Mr. McNamee’s longest work absence post-accident – by far – was during the timeframe when he was recovering from his right knee surgeries. Mr. McNamee’s continued attempts at trial to relate the knee injury to the subject motor vehicle collision further undermines the reliability of his evidence.

[40] When asked by counsel for the Plaintiff about his condition towards the end of his examination in-chief, Mr. McNamee focused primarily on the impact that Ms. McNamee’s condition has had on him. His evidence throughout his examination in-chief was unclear as to what exactly “hurt” at what time and what was preventing him from carrying on certain activities and tasks that he wished to do.

[41] I find that Mr. McNamee has not proven on a balance of probabilities that his current ailments are as a result of the February 11, 2014 accident.

Is there permanent or Serious Impairment of an Important Physical Mental or Psychological Function?

[42] In the event that I accept that Mr. McNamee’s current neck and back issues were caused by the motor vehicle accident, the Defendant acknowledges that Mr. McNamee will meet the test for permanence. The question then becomes whether Mr. McNamee has met the test of an impairment of an “Important Function or a “Serious Impairment”.

[43] In order for an impairment of a function to be important in Mr. McNamee’s case, the function must be “necessary to perform the activities that are essential tasks of the person’s regular or usual employment (taking into account accommodation)”, “be necessary for the person to provide for his or her own care or well-being”, or “be important to the usual activities of daily living, considering the person’s age.”

[44] In order to meet the Insurance Act threshold test for serious impairment, Mr. McNamee must establish that his accident-related impairments “substantially interfere with most of the usual activities of daily living, considering the person’s age”. As Justice Valin said in Sabourin v. Dominion of Canada General Insurance Co.[^5]:

I conclude that the insertion of the word “most” in that definition is in keeping with the legislature’s intention, as expressed in the White Paper, to tighten up the threshold by reducing the number of litigants able to sue.

[45] It is not clear to the defence exactly what function Mr. McNamee claims to be impaired as a result of the accident. Dr. Kleinman testified that Mr. McNamee has “difficulties” with activities that involve repetitive strain involving the neck, upper and lower back and that he has “difficulty” with activities involving lifting, bending, pushing, pulling, as well as sustained and repetitive postures. Dr. Kleinman does not say that Mr. McNamee is not able to complete those functions. Dr. Kleinman states Mr. McNamee reported severe pain while doing so. Dr. Devlin indicates that Mr. McNamee has no impairments.

[46] As said in Mayer v. 1474479 Ontario Inc., 2013 ONSC 6806, Leach J. states, at para. 18:

A claimant must do more than simply experience ongoing pain or discomfort to bring himself or herself within the statutory exceptions permitting litigation. It is apparent that the Legislature intended injured persons to bear some interference with their enjoyment of life without being able to sue for it, and only a “serious” impairment will qualify. Tolerable symptoms that still permit a claimant to function well do not bring a claimant within the statutory exceptions. However, symptoms that go beyond the tolerable and significantly impair a plaintiff’s enjoyment of life will be sufficiently serious.

[47] Mr. McNamee continues to work in his pre-accident employment with accommodations. In deciding to remove any question to the jury about past or future loss of income for Mr. McNamee, I noted Mr. McNamee’s own evidence that he has not been promoted due to his enrollment in the Management Absence Program which predated the motor vehicle accident. But for his absence for unrelated knee surgeries, his workplace absences have declined since the subject motor vehicle accident and he has even received recognition for his workplace recommendations. Since 2007, his employer has, and continues, as recently as 2018, to accommodate him for medical reasons. He agreed that his employer is “flat-lining” the organization and that fewer promotions are available.

[48] The evidence at trial is that Mr. McNamee continues to socialize with friends; he is able to complete lighter housekeeping tasks, care for himself, prepare food, shop, drive, take care of others in his family, spend time with his wife, children and friends, travel extensively, participate in activities while travelling, attend sporting events as a spectator and do some light woodworking such as making gifts for his work friends. Mr. McNamee’s sons testified that they were doing household chores before the accident and that their father had already stopped coaching them before the accident.

[49] The restrictions in his housekeeping capacities are outlined in the expert report of the Occupational Therapist, Donna Matheson. I conclude that her report is unreliable. Ms. Matheson assessed Mr. McNamee after he had an acute flare up as a result of an incident that occurred at the Toronto airport only 13 days prior to her assessment. Mr. McNamee described that incident as causing overwhelming pain to such a degree that he was unsure if he could continue with his flight. Mr. McNamee reported this incident to his family doctor’s office on June 1, 2018 and told him that he had been taking increased amounts of Tramadol since the incident. On a June 20, 2018 visit with his family doctor, Mr. McNamee reported that his pain had been worse since the airport incident and sought accommodations at work. At this visit, for the first time in his lengthy health history, Mr. McNamee inquired about a handicapped parking pass.

[50] Mr. McNamee also re-attended at physiotherapy as a result of the airport incident for the first time since July of 2017. He advised his physiotherapist that he had to use a wheelchair after the incident and that he had to take time off work. None of these issues were reported to Ms. Matheson and she operated under the assumption that all his restrictions during her assessment were as a result of the motor vehicle accident.

[51] Ms. Matheson learned of the May 1, 2018 incident for the first time at trial and expressed her surprise and disappointment in becoming aware of that information. She had agreed that her assessment was dependent on Mr. McNamee’s self-reporting. She conceded that she conducted the longer of her two assessments of Mr. McNamee after he had spent a day at work, and she made no allowance for that. She did not have Mr. McNamee’s pre-accident employment records which would have disclosed many of the same functional limitations Mr. McNamee was reporting to her.

[52] It was difficult to assess which of Mr. McNamee’s functions are now limited by his injuries. Mr. McNamee placed a great deal of emphasis on his inability to continue his exterior landscaping and maintenance work. The court heard a great deal of evidence about the extensive landscaping he had completed in the backyard including the building of exterior furniture. Most of these items were already completed before the accident. Mr. McNamee spoke of a retaining wall in the front yard that still needed repair. There were no other household projects planned.

[53] Mr. McNamee testified that he used to be able to lift 75-pound blocks prior to the accident and that he could no longer do that. However, in a workplace accommodation assessment carried out prior to the accident, it is reported that Mr. McNamee is unable to lift or pull anything exceeding 10 kilograms in weight. These workplace assessments are being undertaken during in 2012 and 2013, the time period when Mr. McNamee is reported to have completed all these household renovations and exterior construction projects.

[54] Mr. McNamee made a great deal of his inability to participate in sports and athletic adventures and in the coaching of his two sons. Both his sons testified that he had stopped coaching them before the subject motor vehicle accident. Troy McNamee described his father as starting to diminish with age before the accident. Doctor Wooltorton’s pre-accident notes contain references that Mr. McNamee was cautioned to sit down when coaching football or to stand on the sidelines.

[55] There were no witnesses from any sporting organization who testified on Mr. McNamee’s inability to participate in any coaching activities post-accident. We are left with Mr. McNamee's self-reports and I have already flagged the unreliability of his evidence.

[56] Mr. McNamee’s friend, Jim Shaheen, testified that he and Mr. McNamee used to work out together, but on cross-examination, he clarified that this was back in their high school days. Other than one incident in 2019 at the Montreal airport when Mr. McNamee relied on a motorized cart to get from one gate to the next, Mr. Shaheen did not observe any change in his friend since the accident other than he appeared to have gained weight. On a recent trip to Florida in 2019, Mr. Shaheen said that Mr. McNamee was able to go fishing for an entire day and was able to join his friends for one-hour bike rides on at least two occasions.

[57] On February 23, 2016, (two years post the subject motor vehicle accident) Mr. McNamee reported to Dr. Wooltorton that he was climbing five flights of stairs twice a day and attending at the gym in the mornings and exercising on a recumbent bike. On December 5, 2018, Mr. McNamee reported that he was doing 100 to 150 push-ups, working with resistance bands, and attending the gym on a weekly basis.

[58] We also heard that Mr. McNamee can no longer carry out social activities and that he and Ms. McNamee no longer entertain in their home like they used to do. While the evidence from all witnesses was clear about the lack of any celebrations in 2019, the picture between 2014 and 2018 was vague. Ronnie Shaheen testified that there was no big birthday celebration for Mr. McNamee in August of 2019, but it had otherwise continued as it always had in previous years. Although he was a close friend, Mr. Shaheen did not know anything about Mr. McNamee’s workplace accidents of 2004 and 2005.

[59] Melissa Durnion, Mr. McNamee’s workplace colleague since 2017, testified that Mr. McNamee continues to socialize with colleagues after work and that he had planned to have a big Christmas party at his house in 2019 but cancelled the party at the last minute because he wanted to prepare for trial. Ms. Durnion had no knowledge of his pre-accident functioning.

[60] Video surveillance reveals McNamee interacting with others, displaying no restriction of movement in his neck or back and walking without difficulty. He is seen taking what appears to be a gym bag to work.

[61] I have been provided with other reported decisions where the court has concluded the evidence did not meet the “serious” requirement of the threshold as the impairments did not impede “most” of the plaintiff’s activities of daily living, but in the end, each case must be decided on the evidence that is presented at trial. On all the evidence, I am not satisfied that Mr. McNamee has met his burden to establish that the has suffered a serious impairment of an important physical, mental or psychological function and the relief sought by the Defendant is granted.

Mr. Justice Robert N. Beaudoin Released: March 3, 2020

[^1]: Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, 2016 CarswellOnt 8792 at paras. 11, 13 and 16. [^2]: Robichaud v. Constantinidis, 2019 ONSC 5995 at para. 2 [^3]: Meyer v. Bright (1993), 15 O.R. (3d) 129 (Ont. C.A.) [^4]: Saleh v. Nebel, 2015 ONSC 747 at paras. 23 and 41. Dinham v. Brejkaln, 2005 46749 (S.C.J.) at paras. 19-20 and 27-28. Grieves v. Parsons, 2018 ONSC 26 at para. 110. [^5]: 2009 15902 at paras. 83-84