Court File and Parties

COURT FILE NO.: 16-67152 DATE: 20200604 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

AMENDED threshold ruling

CATHERINE McNAMEE

The text of the original Ruling released April 21, 2020 is corrected as appended

Beaudoin J.

[1] The Defendant brings this motion wherein she seeks a declaration that the Plaintiff, Catherine 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 her failure to establish that her 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] Ms. McNamee seeks damages as a result of a 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 in support of this motion was heard by me at trial. While liability was not admitted, it was not seriously in dispute. Causation was the major issue at trial.

[3] On February 18, 2020, I ruled that there was insufficient evidence to put any question to the jury with respect to Ms. McNamee’s future treatment costs for physiotherapy, and future cost of medication.

[4] On February 21, the jury returned its verdict wherein it awarded Ms. McNamee $30,000 for general damages; $2,500 for past loss of housekeeping and home maintenance capacity; $0 for past medication; $3,900 for past massage and physiotherapy; $240 for past medication and parking. The jury 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, that verdict is a factor for me to consider in determining this threshold motion.

Position of the Parties

[6] The Defendant argues that Catherine McNamee had a long-standing, severe alcohol abuse disorder for several years prior to the motor vehicle accident and that the accident has not had any impact on the severity of that disorder – which is her most serious health condition. The Defendant further submits that Ms. McNamee had a significant pre-accident history of depression and a significant likelihood of having subsequent depressive episodes even if the motor vehicle accident had not occurred. The Defendant states that Ms. McNamee was then met with significant life stressors unrelated to the accident, which caused her to decompensate. The Defendant’s position is that Ms. McNamee sustained soft tissue injuries in the motor vehicle accident of February 11, 2014 which were resolved by the Fall of 2014 and that any damages beyond that period are not related to the motor vehicle accident of February 11, 2014.

[7] The Plaintiff submits that she sustained serious, continuing injuries in the accident which have impacted her function and have resulted in significant losses. Ms. McNamee argues that her pre-existing health conditions made her more vulnerable to sustain the injuries she suffered in the accident.

[8] Ms. McNamee argues that she suffered a new depressive episode, an aggravation of her Alcohol Use Disorder and that she developed a new mental illness of Somatic Symptom Disorder, predominantly with Pain as a result of the accident. She subsequently encountered life stressors, which exacerbated the symptoms of her mental illnesses. These illnesses caused her to be less capable of effectively coping with life stressors. As result of the injuries caused by the accident, Ms. McNamee says that she has suffered impairments in function in all spheres of her life.

The Legislative Framework

[9] 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.” These are set out below:

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; [1] 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.

[10] 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.

[11] 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.

[12] 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. [2] The plaintiff bears the onus of proof to establish on a balance of probabilities that their impairments meet the statutory exceptions or “threshold”.

[13] 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. [3]

[14] In Meyer v. Bright (1993), 15 O.R. (3d) 129 (Ont. C.A.), 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

[15] Sections 267.5(3) and 267.5(5), each incorporate a causation requirement. The plaintiff 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 where the court held at para. 16:

Elimination of proof of causation as an element of negligence is a “radical step that goes against the fundamental principle stated by Diplock, L.J., in Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), at 1094-95: ‘. . . A defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff’”: .. . For that reason, recourse to a material contribution to risk approach is necessarily rare and justified only where it is required by fairness and conforms to the principles that ground recovery in tort. (Internal citations omitted)

[16] I adopt the approach taken by other courts [5] that I should consider causation prior to undertaking the Meyer analysis. If the alleged impairments were not caused as a result of the subject collision, the subsequent analysis does not matter.

[17] The Defendant concedes that if Ms. McNamee persuades me on the question of causation, she currently suffers from a permanent serious impairment of an important physical, mental or psychological function.

The Evidence at Trial

A. Catherine McNamee’s pre-accident history

Alcohol Use Disorder

[18] There was extensive evidence at trial regarding Catherine McNamee’s pre and post-accident alcohol consumption. In January 2012, Ms. McNamee attended an alcohol cessation program at the Royal Ottawa hospital (ROH). She attended this program because her husband was complaining about her alcohol use.

[19] Ms. McNamee described her drinking pattern at that time in the following way. She would come home from work between 5:30 and 6:00 p.m. and start drinking while preparing dinner. She would continue drinking for the balance of the evening. She would sit in her lazy-boy chair and watch television and drink. She and Mr. McNamee sat in separate rooms because they did not like the same TV programs.

[20] The ROH notes record a twenty-year history of alcohol use and that Ms. McNamee was by that time consuming 1.5 liters of alcohol per day during the week and 2 liters per day on weekends for a total of 82 standard drinks per week. Ms. McNamee described herself as a functioning alcoholic and admitted that she craves alcohol when she stops drinking. She suffers memory lapses while she drinks and that remains true to today. She did not complete the ROH program. She has never sought treatment for her alcohol use disorder until very recently.

[21] Dr. Ken Suddaby, the expert psychiatrist called on her behalf, agreed that her pre and post-accident diagnosis for alcohol use disorder was in the severe range. This was the opinion of Dr. Michael Ross, the psychiatric expert called on behalf of the Defendant.

Headaches, Neck and Back Pain.

[22] Ms. McNamee had pre-accident history of pain in her neck and back as well as headaches that were exacerbated by stressful situations These were the result of a serious motor vehicle accident that occurred on January 12, 2006. The vehicle she was driving at that time was stopped to make a left-hand turn when it was struck by a truck on the left side. The impact pushed her vehicle 3 car lengths, where her vehicle then slammed into the side of a school bus. The extent to which she recovered from her injuries from that accident was a critical issue at trial. Ms. McNamee testified that this accident did not prevent her from doing anything. She reported that she saw a chiropractor a couple of times a year and this cleared everything up. This is the history she would have shared with her treatment providers and expert witnesses.

[23] Ms. McNamee reported that motor vehicle to her family physician, Dr. Charania, who made a record of her complaints and injuries. Dr. Charania’s’ notes reveal that by March 6, 2006, two months after the accident, Ms. McNamee was still in a lot of pain. She had attended for physiotherapy for only 2 weeks because she did not like the physiotherapist. Ms. McNamee reported experiencing 19-hour migraine headaches, increased depression and advised Dr. Charania that she was drinking every night to relax.

[24] Ms. McNamee made an application for accident benefits on or about April 18, 2006 wherein she reported experiencing severe back pain and significant neck pain, shoulder pain and headaches which required her to miss work or work shorter days. That application was included in Dr. Charania’s notes and records. Ms. McNamee’s wrote “PAIN” in capital letters in describing her condition. Ms. McNamee complained of difficulty bending, standing too long or looking down to read or see her computer. In answer to the question as to why she anticipated her disability to extend beyond 12 weeks, Ms. McNamee wrote: “So far nothing is improving. I have some days that are more severe than others. It already has been 14 weeks since the accident.”

[25] That record was not put to Ms. McNamee in cross-examination as it was only produced in the course of trial. While given an opportunity to recall Ms. McNamee in reply, her counsel chose not to recall her to explain or contradict that evidence. At trial, Dr. Charania agreed that all of Ms. McNamee’s complaints in 2006 were very similar to the complaints that Ms. McNamee made after the February 11, 2014 accident.

[26] When Ms. McNamee attended at the ROH in January 2012, Dr. Melanie Willows reported that Ms. McNamee suffered a chronic pain condition at that time, namely six years after the 2006 accident. This history of chronic neck and back pain is included in Dr. Willow’s DSM IV diagnosis which included alcohol dependence and major depression, currently in remission. Dr. Willows noted osteoarthritis, chronic pain, migraines, GERD, possible sleep apnea and moderate relationship difficulties. In cross-examination, Ms. McNamee agreed that she told Dr. Willows that alcohol helped her with her aches and pains; including arthritis as well as neck and back pain.

[27] The records from the February 11, 2014 accident disclose that Ms. McNamee told the paramedics that she had a history of chronic back pain. In her evidence in-chief, she claimed that she told the paramedics that her prior back pain had resolved. She agreed that there was no notation that her back pain had resolved in those notes. Ms. McNamee further reported a history of chronic back pain to the attending physician.

[28] I conclude that Ms. McNamee’s evidence that her neck and back pain from the 2006 had quickly resolved is unreliable.

[29] Ms. McNamee had a lengthy and complicated pre-accident history of major depressive disorders including after the birth of both of her children. Two major depressive disorders are documented by Dr. Charania in 1999. According to Dr. Suddaby, Ms. McNamee suffered another major depressive episode after her 2006 motor vehicle accident.

[30] Given that she had suffered from three prior major depressive episodes, Dr. Suddaby agreed that Ms. McNamee was 90% likely to suffer from another major depressive event, regardless of life events. Dr. Tammie Ricci, the psychological expert called on behalf of Ms. McNamee, was unable to dispute statistical likelihood.

[31] Dr. Charania documented Ms. McNamee’s long history of depression and anxiety extending as far back as 1999. She was prescribed Clonazepam for her anxiety and Effexor for her depression on a regular basis over twenty years. Ms. McNamee’s Effexor use had only been discontinued a few months before the accident.

B. Catherine McNamee’s Post-Accident History

Alcohol Use Disorder

[32] As noted above, Ms. McNamee, alcohol use continued after the accident. Dr. Suddaby agreed that Ms. McNamee met the criteria for a Severe Alcohol Use Disorder before the accident. The experts also appeared to agree that Ms. McNamee’s alcohol use disorder is her most serious medical condition. They all agree that her alcohol use disorder undermined the reliability of her history of alcohol use.

[33] I agree with the Defendant’s expert, Dr. Ross that a post-accident diagnosis of a Severe Alcohol Use Disorder changes nothing. Her existing Severe alcohol Use Disorder was not aggravated by the accident. As he put it: “It is what it is.”

Back and Neck Pain and Headaches

[34] Ms. McNamee was transferred to the hospital by ambulance from the accident scene. She was discharged the same day. X-Rays did not reveal any injury. I am satisfied that Ms. McNamee exaggerated the severity of the accident at trial and to her expert witnesses. Her vehicle was not pushed three car lengths. That evidence was contradicted by her own witness, Constable Jennifer Delia, whose drawing of the accident scene disclosed no movement of the vehicles after impact and minimal damage to the vehicles.

[35] Two days after the accident, Ms. McNamee saw Dr. Charania and then attended for physiotherapy. She did not seek treatment from anyone else. On February 13, 2014, Dr. Charania’s records that Ms. McNamee was very stiff that day and was complaining of low back pain. There was no mention of neck and back pain on a scale of 9 out of 10 as Ms. McNamee had testified at trial.

[36] Ms. McNamee completed a pain and neck disability questionnaire for physiotherapy treatments wherein she described her pain as moderate. On April of 2014, Ms. McNamee had a second accident. She said that this accident increased her neck and back pain for a couple of hours.

[37] The physiotherapy notes were reviewed at length with Ms. McNamee. On May 20, 2014, Ms. McNamee reported some improvement to her lower back. She described her neck pain as bearable and her left shoulder as a little sore. Continuous improvement is recorded. On July 29, 2014, Ms. McNamee reported being able to do everything.

[38] On August 5, 2014, Ms. McNamee reported having turned the corner and she admitted at trial that this was a true statement. She continued to report feeling better. On September 23, 2014, she did not want any further exercises prescribed for her. On September 30, Ms. McNamee reported being back to her normal pre-accident pain.

[39] Her last physiotherapy session was on October 7, 2014 where it is recorded that she was feeling all better; that she felt the same as before the accident.

[40] I find the evidence of Ms. McNamee’s post-accident employment to be significant. Ms. McNamee returned to work within days of the accident and she functioned well at work, missing only a day here or there and sometimes leaving work early. Ms. McNamee had a high level of responsibility for a wide range of professional and personal duties in the dental practice of Dr. Espie. She managed all aspects of the dental practice including assisting Dr. Espie in her divorce case. Ms. McNamee testified that Dr. Espie started to change after her divorce in November of 2014 when Dr. Espie then became abusive.

[41] Ms. McNamee did not take any extended time off work until the winter of 2014-2015 when she took a compassionate leave to spend time caring for her mother who had been diagnosed with cancer and who had limited time to live. Ms. McNamee was very close to her mother and that they were best friends. Dr. Charania’s clinical notes of January 19, 2015 and June 23, 2015 contain notations of additional stressors including a friend who is very sick, Ms. McNamee’s torn ACL, a sister who was living on the street, and her father with Parkinson’s disease.

[42] Ms. McNamee eventually quit her job because of Dr. Espie’s conduct and she advised Service Canada that she had left the job as a result of this abuse and not as a result of a motor vehicle accident.

[43] Ms. McNamee had subsequent employment with Dr. Bracanovich. That position also required high levels of responsibility. In April of 2016, there was an issue with a patient who had been very critical of her. Ms. McNamee felt that Dr. Bracanovich did not support her in that dispute. She stayed on for a few months and then she eventually left that job.

[44] She then worked for another dentist. The prior office manager had not done a good job and the accounts receivables were out of control. Ms. McNamee put everything in order. The business was expanding. That dentist was under a lot of stress and tension was increasing. That employment was terminated on February 28, 2017 as the dentist could no longer afford her services.

[45] Ms. McNamee was back to work in December of 2017. Once again, there were problems with patient records and patient files; a situation that she resolved. She helped prepare the office to go paperless. She encountered staff resistance. By November of 2018, the dental practice was growing but the dentist could no longer afford to continue her employment. She last worked on January 3, 2019.

[46] In summary, Ms. McNamee worked in demanding jobs for almost five years after the accident. Every doctor that she had worked for had been very pleased with her work. None of the reasons for the termination of her employment were related to her accident-related injuries.

[47] Ms. McNamee testified that she could not face another job; she claimed to be suffering from deeper depression. She was drinking more. She suffered from anxiety.

[48] Dr. Ricci, Dr. Suddaby and Dr. Kevin Smith, the experts called by the Plaintiff, concluded that Ms. McNamee had “excessive absences” from her employment. That was not the evidence at trial. Dr. Suddaby conceded that his notes did not support that conclusion.

[49] Moreover, Dr. Suddaby did not have all of Dr. Charania’s notes and records when he testified. These were then produced to him. Once again, the Plaintiff was given an opportunity to call Dr. Suddaby in reply, but he was not called.

[50] In April of 1999, those records reveal that Ms. McNamee was reporting that her long-time job was extremely stressful. Dr. Charania recorded that Ms. McNamee felt overwhelmed and was starting to “decompensate”. Ms. McNamee left that job because of the many stressors in her life. This is essentially the same reason that Ms. McNamee gave about not seeking further employment at the end of 2018.

[51] As noted, Dr. Suddaby did not have access to Ms. McNamee’s extensive pre-accident history. Dr. Suddaby agreed that he had little or no information about what Ms. McNamee was able to withstand in terms of work stressors before the accident. Had he reviewed Dr. Charania’s notes from 1999, he would have found that information.

[52] While Dr. Suddaby testified as to the importance of contemporaneous notes and records, when he was referred to Dr. Charania’s notes and the absence of any complaint of pain except a reference to an injection in 2015, he explained that away by stating that “just because Dr. Charania did not document it, that does not mean that the pain was not there”.

[53] The Plaintiff’s experts concluded that Ms. McNamee should have left her employment sooner, sometime in 2017. It is not clear why that date was chosen when the evidence revealed that Ms. McNamee continued to work until November 2018.

[54] Dr. Smith had not seen the records from the ROH with respect to Ms. McNamee’s attendance at their inpatient program in January 2012. He too concluded that Ms. McNamee required excessive absences from work in order to cope. When referred to her evidence at trial that she only took a day off here or there and sometimes left early, he acknowledged he did not know her work pattern before the accident and would not agree that her absences from work were not excessive.

[55] Dr. Smith was unaware that Ms. McNamee reported that she left her job in 2015 due to severe stress, and that in her application for employment insurance, she reported that her illness was not a result of a motor vehicle accident.

[56] In his report, Dr. Smith believed that Ms. McNamee had physiotherapy treatments for one and half years after the accident. This was not the evidence at trial. He did not have the specific notes from the physiotherapist where Ms. McNamee reported in late September 2014 and October 2014 that she was back to her normal pain as she was prior to the accident except for vacuuming and sweeping. When confronted with that evidence, it did not alter his opinion. I found Dr. Smith to be quickly dismissive of any evidence that did not coincide with his own opinion.

[57] Moreover, the Plaintiff’s experts advanced an opinion that Ms. McNamee was sacrificing her home and personal life in order to maintain her high level of performance at work. The evidence at trial did not support that conclusion. Long before the February 2014 accident, Ms. McNamee’s severe alcohol use disorder had established a pattern of drinking once she got home after work and then spending the rest of the evening in her lazy-boy, drinking and watching TV.

[58] The evidence with respect to her post-accident activities and functioning was limited to a few undated photographs and the vague and sometimes contradictory evidence of sympathetic family members and friends. While it was clear that her functioning declined significantly in 2019, evidence of her activities in the post-accident years of 2014 to 2018 was vague.

[59] In Dr. Ross’ view, Ms. McNamee had some soft tissue injuries in February of 2014 superimposed on a prior vulnerability. She may have taken a bit longer to get better. She did everything that was expected of her. In the light of multiple stressors, she still functioned. She endured all those consequences and she got better. There was no hospitalization as a result of Ms. McNamee’s injuries. By the Fall of 2014, she had recovered to where she had been prior to the accident.

Depression

[60] Ms. McNamee’s history of post-accident depression was unreliable. She told her assessors that she began to take Clonezepam daily after the accident, but she admitted at trial that this was not true. Ms. McNamee’s physiotherapist had noted in the Fall of 2014, that she appeared depressed and recommended that she should be prescribed something for pain. Ms. McNamee said that the first anti-depressant (Elavil) did not work and she gave it up after one week. Dr. Charania then prescribed another anti-depressant, Cymbalta, but Ms. McNamee gave up on it because it was too hard on her.

[61] Clonazepam was not prescribed until the Fall of 2017 when other stressors at work were taking place. While Ms. McNamee reported to Dr. Suddaby that she had taken medications continuously after the accident, namely Cipralex, Dr. Suddaby had to acknowledge that this was incorrect; Ms. McNamee did not take Cipralex until January 2015.

[62] The opinion of Dr. Michael Ross, the psychiatric expert called on behalf of the Defendant, is that Ms. McNamee did not begin to decompensate until after the stressful life events late in 2014 and early in 2015 after her mother was diagnosed with cancer and had limited time to live. Ms. McNamee took time off from work to be with her mother in her final days. Ms. McNamee also had a close friend who was very ill, her sister who was living on the street, and her father had Parkinson’s disease. Dr. Ross said that those life events set off another major depressive disorder. Her increased stress resulted in increased pain complaints, just as they had in the past.

[63] Dr. Ross noted that throughout this time, Ms. McNamee continued to work at a very high level. By June 2015, he concluded that, once again, Ms. McNamee was starting to decompensate. She was upset with her mother dying. There were stressors in the workplace. It was then that Dr. Charania started to prescribe medication to deal with her depression. Having had the benefit of hearing all the evidence, I prefer Dr. Ross’s opinion that Ms. McNamee’s depression developed later as results of stressors that were not related to the accident.

The Expert Evidence

[64] The experts called by Ms. McNamee, namely Dr. Ricci, Dr. Suddaby and Dr. Kevin Smith provided diagnoses of a persistent depressive disorder moderate to severe; severe alcohol use disorder and a somatic symptom disorder, predominantly with pain, moderate to severe. They opined that these were as a result of the motor vehicle accident of February 11, 2014.

[65] As noted, these experts relied on Ms. McNamee’s self-reports with respect to her pre-and post-accident history which was demonstrated to be unreliable and contradicted by other evidence. Dr. Suddaby testified without the benefit of the full extent of Ms. McNamee’s pre-accident history detailed in Dr. Charania’s notes.

[66] Dr. Michael Ross limited his criticism to Dr. Suddaby, a fellow psychiatrist. Dr. Ross reviewed Ms. McNamee’s medication. He noted that she was taking Cipralex which helps with anxiety and the effect is felt almost immediate, which is what Ms. McNamee was reporting. He testified that depression can cause pain. Anxiety can cause a person to become tense and develop tension headaches and problems in the back and neck pain. He said that emotions can cause physiological impairments. He said that it is in the nature of the pain disorder that it is determined by the psyche.

[67] In Dr. Ross’ view, Ms. McNamee’s decline in her functioning was not related to the motor vehicle accident. He did not see a pain disorder with secondary depressive symptoms being manifested until much later; sometime in 2017. This was in line with Dr. Suddaby’s opinion. He disagreed that it was caused by the accident. He said it was because of the long list of things that had affected her.

[68] Dr. Ross described this as an onslaught of extreme extra stressors that caused McNamee to develop her pain disorder. Were it not for these massive stressors, she would not have decompensated in the way that she did. He said that her injuries were not of the kind that led to the progression described by others. He said it was more probable than not that she would be where she is today even without a motor vehicle accident. In his view, the motor vehicle accidents did not provide a material contribution to her impairment. I accept his conclusion that Ms. McNamee’s alcohol abuse disorder was and remains her worse health problem.

Conclusion

[69] In my opinion, Ms. McNamee’s claim fails on the issue of causation. I prefer, on balance, the expert opinion of Dr. Ross that Ms. McNamee’s injuries as a result of the accident were resolved by the Fall of 2014. Dr. Ross did not seek to discredit Ms. McNamee and consistently referred to her a credible witness. His opinion is more closely aligned with the entirety of the evidence presented at trial.

[70] Dr. Ross concluded that Ms. McNamee’s decline in her functioning was not related to the motor vehicle accident. Dr. Ross concluded that Ms. McNamee’s injuries were not of the kind led to the progression described by others. He said it was more probable than not that she would be where she is today even without a motor vehicle accident. In his view, the motor vehicle accidents did not provide a material contribution to her impairment.

[71] For these reasons, I concluded that Catherine McNamee’s claim does not fall within the statutory exceptions in s. 267(3) and (5) of the Insurance Act and the Defendant’s motion is granted.

[72] In addition to the costs of this motion and a similar motion brought against the Plaintiff, John McNamee, there are other costs issues that need to be decided. If the parties are unable to agree on costs, counsel are to arrange an appointment through the trial coordinator for a teleconference to discuss the form and procedure for the costs submissions.

Mr. Justice Robert N. Beaudoin

Released: June 4, 2020

APPENDIX

The correction occurs at paragraph 69 where the name of Dr. Smith was replaced with the name of Dr. Ross as follows:

In my opinion, Ms. McNamee’s claim fails on the issue of causation. I prefer, on balance, the expert opinion of Dr. Ross that Ms. McNamee’s injuries as a result of the accident were resolved by the Fall of 2014.

COURT FILE NO.: 16-67152 DATE: 20200604 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: CATHERINE McNAMEE AND JOHN McNAMEE Plaintiffs – and – PAM OICKLE Defendant AMENDED threshold ruling catherine mcnamee Beaudoin J.

Released: June 4, 2020

Footnotes

[1] There is no claim of any permanent serious disfigurement in this case.

[2] Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, 2016 CarswellOnt 8792 at paras. 11, 13 and 16.

[3] Robichaud v. Constantinidis, 2019 ONSC 5995 at para. 2.

[4] Meyer v. Bright (1993), 15 O.R. (3d) 129 (Ont. C.A.).

[5] Saleh v. Nebel, 2015 ONSC 747 at paras. 23 and 41. Dinham v. Brejkaln at paras. 19-20 and 27-28. Grieves v. Parsons, 2018 ONSC 26 at para. 110.