ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Sauvé and Doreen Sauvé
Plaintiffs
– and –
Anthony Steele and Duff Contracting Ltd.
Defendants
B. Rumble and J. Bonniere, for the Plaintiffs
T. B. Horton and D. Paspalofski, for the Defendants
HEARD VIRTUALLY BY ZOOM:
March 24, 25, 26, 29, 30, 31, April 1, 6 and 7, 2021
Justice J. E. Mills
1This matter arises as a result of an unusual motor vehicle incident. In the early morning hours of January 17, 2014 while clearing snow, the hydraulic hoist attached to a snow plow became ensnared in overhead wires, bringing them down across all lanes of the road. The plaintiff Brian Sauvé happened upon the scene and brought his motor vehicle to an abrupt stop in an attempt to avoid striking the wires. He claims to have suffered permanent and life altering injuries as a result of this incident.
2Although not admitting liability, the defendants do not dispute the hydraulic hoist was the cause of the fallen wires. Duff Contracting Ltd. was charged with operating an over height motor vehicle contrary to s. 109(14) of the Highway Traffic Act. Duff admitted guilt and paid the fine as imposed. There was no real defence asserted with respect to the issue of liability and I find the defendants are liable for the incident. While the plaintiff may have been travelling at a speed somewhat over the limit, the evidence confirms he was wearing his seatbelt and I do not find that he was in any way contributorily negligent for the incident.
3The defendants do strenuously dispute that this seemingly innocuous event caused the plaintiff such serious and lasting injuries. They brought a motion at the conclusion of the trial for a determination that the claim of the plaintiff for non-pecuniary loss does not come within the statutory exemptions as set out in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8, as amended.
4As in all cases where reported injuries are subjective in nature and cannot be independently verified, the credibility of the witnesses is vitally important. Inconsistencies in the evidence, even if seemingly minor, can have a detrimental cumulative effect on the reliability of the evidence offered.
5As was said by the Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, at para. 20, “Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” Assessing credibility requires an assessment of the witness’s trustworthiness and the reliability of the witness’s memory and evidence (Shipley v. Virk, 2017 ONSC 4941 at para. 33).
The Evidence
The Evidence
6Mr. Sauvé presented as a likeable witness who experienced a very unusual incident while driving his pickup truck. He has an honest belief in his evidence and that was apparent in his testimony. He often struggled to explain his recollection of the events when confronted with independent third-party evidence which contradicted his evidence and candidly admitted that he just simply could not explain the contradictions. Unfortunately, Mr. Sauvé’s evidence is not reliable and therefore his credibility is poor.
7Mr. Sauvé gave evidence that he was driving between 60-80 kms/hr at approximately 4:00 a.m. on a snowy early morning of January 17, 2014 after a long overnight shift at Ford Motor Company where he was a trim assembly line worker. He saw a person standing on the median waving a cell phone to alert oncoming traffic. He now believes this person was the snow plow driver. Mr. Sauvé saw the wires hanging two to three feet off the ground at windshield height. He slammed on his brakes and depressed the clutch while gripping onto the steering wheel and the stick shift. He then ducked down and to his right as he feared the wires were going to come through the windshield. Mr. Sauvé was wearing his seatbelt, but he claims to have laid down on the bench seat and then hit his head on the dashboard or perhaps the glovebox. His evidence was that he then felt a huge jolt throughout his body. His body locked up, leaving him so dazed, he could not recall how to call the police. At trial, Mr. Sauvé said he was unsure as to what happened, but he believes he was electrocuted when his truck came into contact with the wires.
8Mr. Sauvé did call 911 to advise of the downed wires. In the call, he sounds calm, rational and fully aware of his circumstances. He advises the operator of the downed wires, he exits his vehicle and he calls out to the snow plow driver who was also on his cellphone. He expresses concern about other motorists approaching the scene. He does not mention any injuries arising from the incident and despite purportedly having just suffered a huge jolt throughout his body, Mr. Sauvé does not express any concern to the 911 operator that the downed wires may carry a live electrical current. The call is brief, lasting just over two minutes. He advised the 911 operator that a police car had arrived on the scene, so the call was terminated.
9At trial, Mr. Sauvé maintained the audio recording was not an accurate representation of the conversation he recalls having with the 911 operator. He maintained there are entire segments missing from the 911 recording. The operator was not called as a witness and there is no evidence to support Mr. Sauvé’s suggestion that the audio recording is inaccurate or incomplete. Mr. Sauvé could offer no explanation as to why the recording would have been altered. Having listened to the recording, I did not note any gaps or apparent breaks in the recording. While it may not accord with Mr. Sauvé’s recollection of the call, I am satisfied the audio recording is a true and complete representation of the interaction Mr. Sauvé had with the 911 operator.
10While on the telephone with the 911 operator, Mr. Sauvé stepped out of his vehicle and spoke with the snow plow driver, Mr. Anthony Steele. In his testimony, Mr. Steele, an experienced truck and snow plow driver, described both himself and Mr. Sauvé as being in shock and stunned by the fact there were wires across the road as neither of them had any idea as to what had happened. When speaking with Mr. Steele, Mr. Sauvé did not indicate he was injured nor did he mention that he had just experienced a huge jolt.
11By happenstance, an EMS ambulance came upon the scene and remained to assist with stopping and redirecting traffic. Mr. Sauvé’s evidence was that he walked over to the EMS attendants to advise that his neck hurt. He claims one EMS attendant laughed at him, but the other attendant provided him with an ice pack. Mr. Sauvé gave evidence that he advised the EMS attendants that he had hit his head and that he experienced a jolt to his body. Despite this reporting, no assessments were made of Mr. Sauvé’s condition and no medical attention was provided at the scene of the incident. If they exist, the EMS notes of the interaction were not submitted into evidence and neither of the EMS attendants were called to provide evidence. I found it very difficult to accept that an EMS attendant would laugh at someone claiming to have been injured and even more difficult to accept that treatment would not have been administered if Mr. Sauvé did in fact advise that he had hit his head or suggested that he had been electrocuted at the scene. To accept this evidence at face value would require me to conclude that both the EMS attendants demonstrated a complete and utter disregard for Mr. Sauvé’s wellbeing despite it being their job and their professional duty to care for sick and injured people. In the absence of any evidence to corroborate Mr. Sauvé’s memory of this interaction, I do not accept that his recollection is sufficiently reliable to allow me to reach such a damning conclusion.
12Mr. Sauvé recalls briefly speaking to the police officer who attended at the scene, but he denies providing a statement to the officer. Halton Regional Police Constable Fretz produced a handwritten statement he said was taken from Mr. Sauvé at the roadside. The handwriting is that of Constable Fretz but his evidence was that the words were as expressed to him by Mr. Sauvé. In the statement, there is no mention of hitting his head nor of a huge jolt to his body. The report states Mr. Sauvé advised the wires first struck his front bumper before passing the windshield and over the cab of his truck. Further, he reported there was no damage to his truck and that he had no injuries. Mr. Sauvé’s evidence was that he absolutely did not provide this statement and that the notes of Constable Fretz were made up. There is no explanation offered by Mr. Sauvé as to why Constable Fretz would fabricate a statement in contravention of his professional and statutory obligations.
13I found Constable Fretz to be an excellent witness. He did not try to embellish his evidence in any way. He admitted when he did not know something and was confident in his testimony when he was certain of his evidence. I do not accept that Constable Fretz would fabricate a witness statement after the fact and misrepresent that it was taken contemporaneously from the plaintiff at the scene of the incident. Constable Fretz was a credible and disinterested witness. Where his evidence contradicts that of Mr. Sauvé, I accept the evidence of Constable Fretz.
14Constable Fretz gave evidence that he believed the downed wires were high tension wires and his belief was confirmed by the Oakville Hydro crew who attended at the scene. Constable Fretz had no concern the wires carried any electrical current and he watched the hydro crew cut the wires so they could be placed at the side of the road out of the way for traffic. He also confirmed that he did not notice any physical injury or impairment when he spoke with Mr. Sauvé. There was no mention of hitting his head nor of any jolt. Constable Fretz was confident in his testimony that had there been any indication of injury, he would have had the EMS attendants assess Mr. Sauvé as they were already on the scene, and had there been any suggestion of electrocution, Constable Fretz would have ensured Mr. Sauvé was taken to the hospital for evaluation and treatment.
15Oakville Hydro workers attended at the scene to assess and repair the damage. It was confirmed the downed wires were guy wires, attached to provide stability and tension to the poles on which the high voltage wires are affixed. It was confirmed by Mr. Dan Steele from Oakville Hydro (no relation to the defendant Anthony Steele) that guy wires do not carry electricity. There was no electrical current running to the downed wires. This fact was confirmed by Mr. Anthony Steele, the snow plow driver, as he recalled lifting the wires to allow another motorist to pass by the scene. He was not electrocuted. The repair invoices issued by Oakville Hydro confirm the guy wires were struck and the pole they were attached to was damaged, causing the underground street light supply to be impacted. Repairs were completed on the guy wires, the pole and the underground street light power supply.
16The plaintiff suggested the lowest wire on the pole was in fact an active power line to a light standard across the street, as shown in a Google Maps street view photo taken May 2015, some sixteen months after the incident. Another photo offered into evidence from August 2014 does not show a light standard in that precise location and therefore I must infer the light standard was installed some time between August 2014 and May 2015. The incident occurred on January 17, 2014. All the evidence from the scene and immediately thereafter confirm the downed wires were guy wires and not a power line to a light standard. This theory of the plaintiff does not withstand scrutiny and cannot be independently verified.
17There is no contemporaneous evidence to suggest any of the downed wires carried an electrical current. There is however overwhelming independent and credible evidence to confirm there was no electrical current in the downed wires.
18While waiting at the scene of the incident, Mr. Sauvé sent text messages to his work colleague and to his wife. He told both that he had struck downed hydro wires and that there was no damage sustained. He did not advise that he had hit his head nor did he say that he had experienced a huge jolt as a result of incident.
19As there was no visible damage to his vehicle, Mr. Sauvé was released from the scene and he drove home. He saw his wife who was getting ready to leave for her work as a registered nurse at St. Joseph’s Hospital in Toronto. She did not notice any bumps, bruises or gashes on his head. She advised him to take some over the counter medication for his neck pain, she left for work and he went to sleep.
20When he woke up later that day, Mr. Sauvé’s story started to evolve. His text messages indicate he was telling a friend the downed wires were live hydro wires.
21The next day, Mr. Sauvé attended at a local walk-in clinic to obtain medical attention. He advised that he did not lose consciousness as a result of the incident and that he was experiencing a stiff neck and a sore right wrist. Two days later, he attended the emergency department complaining of neck, low back and wrist pain as well as headaches. There was no mention in the medical notes of Mr. Sauvé advising he had suffered a jolt from electrocution, but it is noted that he presented with “major trauma – blunt” and that he did not lose consciousness as a result of the incident. The provisional diagnosis was noted to be “MVC/concussion”. X-rays were taken of his spine and his wrist, but no fractures or soft tissue swelling were indicated. Mr. Sauvé was diagnosed with a lower back strain, prescribed Tylenol #3 and referred to physiotherapy. Three days later, his family doctor noted Mr. Sauvé complained of intermittent headache and low back pain that improved when he was up and mobile. Two weeks of rest was prescribed.
22Mr. Sauvé called in sick to work at Ford and has never returned for another shift. Although he was prepared to return to work by September 2014, his job was fast paced and physically active. He sought out a job that was less demanding but unfortunately, there were no modified duties available to Mr. Sauvé as a result of his limited seniority at Ford. At the time of the incident, Mr. Sauvé had only worked at his job for ten months. He was told he could only return to work when he was fit to return to his trim assembly line worker position. By January 2015, Mr. Sauvé was terminated from Ford.
23Mr. Sauvé began a process of ever greater embellishment of the incident. To a friend, he said that a person at the Ministry of Energy advised the wires were live and that he was likely shocked. To his sister and to a friend, he said he had a fractured wrist, despite the x-rays confirming that was not the case. To each of his doctors, Mr. Sauvé advised that he was electrocuted or that he experienced a huge jolt to his body which he believed to be caused by electrocution. His intake form for physiotherapy notes he advised he felt a jolt, lost consciousness and had difficulty remembering the exact events. At his examination for discovery, Mr. Sauvé stated that he felt electricity going through his whole body causing a jolt to his whole body which he interpreted to be electrocution. There is no independent evidence to support or corroborate any of these statements.
24In his testimony, Mr. Sauvé was unable to explain how he hit his head on the dash while wearing a lap and cross-body style seatbelt but this too became a regular and integral part of his narrative when recounting the incident to his medical practitioners.
25Mr. Sauvé’s memory has been coloured and distorted by the version of events he has created subsequent to the incident. As such, there is a fundamental concern with the reliability of his memory. I accept that he has an honest belief in his version of events but in order for it to be reliable, I require independent corroborative evidence. I do not accept Mr. Sauvé’s evidence with respect to the incident where it is not otherwise corroborated by independent evidence.
26I am confident Mr. Sauvé did suffer a soft tissue injury to his neck and to his back, and that he jammed his right wrist on the stick shift when he aggressively braked his truck. The low back injury was resolved within a few weeks and the right wrist injury was fully recovered after a year. The neck injury was effectively resolved by July 2015 when Mr. Sauvé was assessed as having full range of motion.
27The primary ongoing complaint of Mr. Sauvé is debilitating headaches. To every medical practitioner treating or assessing Mr. Sauvé in respect of his headaches, he has stated, indicated or suggested that he was electrocuted. It is simply not true. There is no credible evidence to suggest the downed wires carried any electrical current and there is no basis upon which Mr. Sauvé can suggest he was electrocuted at the time of the incident.
28Some of Mr. Sauvé’s treating physicians and specialists gave evidence at trial that their diagnoses and treatment protocols would not be any different whether he had been electrocuted or not. Mr. Sauvé is telling them he is suffering with severe and persistent headaches which impact his ability to work and to enjoy life. The physicians and specialists are not concerned with the cause of the headaches; their function is to treat the symptoms expressed to them. This presumes the information conveyed to the doctors by Mr. Sauvé is reliable and credible.
29Mr. Sauvé gave evidence that he had never had a headache in over 50 years prior to the incident. This statement seems incredible however, there was nothing in his prior medical history to suggest that he had ever complained of headache pain in the past to his family doctor. He now claims to suffer with headaches on a daily basis, lasting several hours per day. He has taken Botox treatments for five years in an effort to relieve the frequency and severity of the headaches. He has been committed to regular and ongoing treatments to deal with his headache complaints.
Threshold Motion by the Defendants
Threshold Motion by the Defendants
30At the conclusion of the evidence, the defendants brought a motion seeking a determination that the plaintiff’s claim for non-pecuniary loss does not come within the statutory exemptions as set out in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c I.8, and an order dismissing the claim for non-pecuniary loss on the basis the plaintiff has not sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental, or psychological function.
31Pursuant to Regulation 381/3, a permanent serious impairment of an important physical, mental or psychological function must meet all of the following criteria:
a. 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.
b. 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.
c. 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 it is expected to continue without substantial improvement when sustained by persons in similar circumstances.
32Leach, J. in Mayer v. 1474479 Ontario Inc., 2103 CarswellOnt 15091 (Ont. SCJ), provided an analysis of the threshold regulations and confirmed that each of these criteria must be satisfied, however the sub-components of the first two criteria are disjunctive such that the first two criteria will be satisfied if any one of the sub-components can be established. The third of the criteria is conjunctive, such that all sub-components must be satisfied before it will be met.
33The evidence required to support a claim that a person has sustained a permanent serious impairment of an important physical, mental or psychological function must be from one or more physicians explaining the nature of the impairment, the permanence of the impairment, the specific function that is impaired, and the importance of the specific function to the person. Further, the physician providing evidence must be trained for and experienced in the assessment or treatment of the type of impairment that is alleged, and the medical evidence provided must be in accordance with generally accepted guidelines or standards. The evidence must confirm the impairment is directly or indirectly sustained as a result of the use or operation of an automobile and the physician must corroborate the change in function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function (O.Reg. 381/03).
34The test for determining threshold was established in Lento v. Castaldo, 1993 CanLII 3389 (ON CA), 1993 CarswellOnt 51 (CA) [also referred to as Meyer v. Bright]. It is a three-part test to be satisfied:
a. did the injured person sustain a permanent impairment of a physical, mental or psychological function;
b. is the function which is currently impaired an important one;
c. if yes, is the impairment of the important function serious?
35Not surprisingly, there has been a plethora of cases interpreting these provisions. A serious impairment is one which causes substantial interference with the ability of the injured person to perform his or her usual daily activities or to continue his or her regular employment (Lento v. Castaldo, at para. 34). Looking at the totality of the evidence, the symptoms must go beyond the tolerable and significantly impair and substantially interfere with a plaintiff’s enjoyment of life and ability to continue working (Bridgewater v James, 2004 CanLII 48701 (ONSC) at para. 49; Pinchera v. Langille, 2005 CanLII 3391 (ONSC), aff’d [2006] O.J. No. 3948 (ONCA); Vancsody v. Wrightman, 2012 CarswellOnt 16906 (ONSC)).
36Not every bodily function is important and thus, when considering whether the impairment is important, the court must consider the effect the relevant bodily function has upon the plaintiff’s own personal way of life and conduct that examination in the broadest possible sense (Nissan v. McNamee, 2008 CanLII 20345 (ONSC)).
37Permanent has been interpreted to be “lasting or intending to last or function indefinitely as opposed to temporarily”, into the indefinite future without any defined or foreseeable end and where it is unlikely to improve (Brak v. Walsh (2008), 2008 ONCA 221, 90 O.R. (3d) 34 (ONCA)). Permanence should be determined on the basis of objective medical evidence as opposed to simply the passage of time (Seguin v. Vandinther, 2002 CarswellOnt 3183).
38The onus of proof lies with the plaintiff on a balance of probabilities to demonstrate the injuries sustained are sufficiently serious and permanent as to meet the criteria for the threshold statutory exemption (Fang v. Farkas, 2008 CanLII 6195 (ONSC), at para. 49). The plaintiff must also establish, on a balance of probabilities, that the injuries sustained, and the impairments suffered were directly or indirectly as a result of the use or operation of a motor vehicle.
39Subjective injuries, documented solely on the basis of complaints expressed by the plaintiff, may be compensable. The court must weigh and assess the evidence to make determinations about the existence, nature and extent of the injury. In cases where the existence and extent of injury and impairment are dependent largely or entirely on subjective reports of the plaintiff, credibility of the claimant will become of paramount importance (Murcell v. Leclair, 2009 CarswellOnt 9699; Smith v. DeClute, 2012 ONSC 3308).
Medical Evidence
Dr. Surbey
Medical Evidence
40Approximately one year prior to the incident, Mr. Sauvé attended with his then family physician, Dr. Surbey for a complete physical examination. It was noted Mr. Sauvé was somewhat overweight, but he was otherwise found to be in good health. His next visit to Dr. Surbey was six days after the incident. Mr. Sauvé complained of wrist, neck and low back pain with intermittent headaches. The clinical notes of the doctor indicate Mr. Sauvé ducked and came to an abrupt stop when he hit hydro lines travelling 60-65 kms while being belted. There was no mention of a jolt, of electrocution or of hitting his head. Dr. Surbey assessed Mr. Sauvé with a lumbar strain, a concussion and a right wrist abrasion/contusion. He directed Mr. Sauvé to take two weeks off to rest.
41Mr. Sauvé attended regular visits with Dr. Surbey and reports were provided to permit him to remain off work. Dr. Surbey’s assessment did not substantively change until May 22, 2104 when Mr. Sauvé reported his headaches were improving such that they were only at the end of the day and were minor in nature. He appeared to be getting better and a return to work was discussed but deferred until mid-June.
Dr. Yanover
Dr. Yanover
42Mr. Sauvé also relies on the evidence of Dr. Yanover, his former family physician as both a participant and a litigation expert. Dr. Yanover delivered a report together with a signed Acknowledgment of Treating Physician dated March 22, 2018. This form is, but for the title, identical in nature to Form 53 which is required by the Rules of Civil Procedure to be signed by an expert witness. Dr. Yanover signed a Form 53 on March 16, 2021. The defendants had notice the report was being relied upon for the purposes of expert evidence since the time of its delivery. While there was a defect in the title of the document, the contents were precisely as mandated by the Rules. There was no real prejudice suffered by the defendants and Dr. Yanover was accepted as a Rule 53 litigation expert in family medicine as well as a participant expert, being the plaintiff’s family doctor.
43The report of Dr. Yanover indicates he commenced treating Mr. Sauvé on April 17, 2015 and thus the report was based only on the information provided by Mr. Sauvé as to his prior medical history and his recollection of the incident. He advised he had been electrocuted and has since suffered with chronic headaches and whiplash. He further complained of facial and head pain, neck stiffness and subsequent tremors which were first noted on March 24, 2016. Otherwise, the examinations conducted by Dr. Yanover were noted to have been unremarkable. It was Dr. Yanover’s opinion that Mr. Sauvé would be suited to employment that did not require a fast-paced environment or the wearing of head gear. The prognosis was indicated as a reasonable possibility to remain the same given the chronicity and that Mr. Sauvé had a reasonable possibility of requiring further treatment and incurring future health expenses due to his injuries.
Dr. Yanover referred Mr. Sauvé to two neurologists, Dr. Kronby and Dr. Lo. Having reviewed the CT scan, MRI and EEG, Dr. Kronby declined to see Mr. Sauvé as a patient. Dr. Lo performed a medical examination and found nothing remarkable from the physical examination or the various scans. In his report of July 9, 2015, Dr. Lo noted a full range of motion in the neck, concluded Mr. Sauvé’s headaches were likely caused by muscular tension and that no further neurological intervention was required.
Dr. John
Dr. John
44Dr. John saw Mr. Sauvé on two occasions, August 22, 2014 and June 24, 2105 at the request of the insurance company providing Mr. Sauvé with income replacement benefits. The nature of the assessments were to ascertain whether Mr. Sauvé had suffered any neurological impairment directly as a result of the motor vehicle incident, whether any impairment caused was within the Minor Injury Guidelines and whether Mr. Sauvé has a substantial inability to perform the essential tasks of his pre-accident employment.
45Mr. Sauvé advised Dr. John that he suffered a brief loss of consciousness and when he came to, he was quite confused and could not even remember the number for 911. He was unsure if the wires were live, but he felt a jolt throughout the car. Based on his subjective report and the notes and records of the treating physicians, Dr. John concluded Mr. Sauvé suffered with post-concussion syndrome, but that he had no objective neurological deficit and therefore, the injuries would fall within the Minor Injury Guidelines. She noted that a significant amount of symptoms had resolved by the time of her first assessment but that he was not yet ready to return to work as a result of his migraine headaches.
46At the second assessment, Dr. John noted that Mr. Sauvé’s low back and right wrist pain had resolved, and that his neck pain was improved as were his occipital neuralgia type headaches. With respect to his ability to return to work due to the migraine headaches, Dr. John was of the view Mr. Sauvé would not be able to perform the essential tasks of his pre-accident employment. She did continue to be optimistic of a good recovery given the fact he had already had recovery of a significant amount of symptoms.
Dr. Supala-Berger
Dr. Supala-Berger
47Mr. Sauvé attended at the ER department of St. Joseph’s Hospital for a second time on February 7, 2014 with complaints of severe headaches and nausea. He was referred to Dr. Supala-Berger, a neurologist at the hospital, to address the headache complaints. She continued to treat Mr. Sauvé until August 2015 for what she concluded, based on his subjective reporting, was post-concussion headaches. The MRI and neurological examinations were normal and thus her prognosis was favourable for a full recovery in time. Indeed, based on Dr. Supala-Berger’s evidence, Mr. Sauvé reported a steady improvement to his symptoms and that he only experienced headaches when performing heavy manual labour. In August 2015, one month after Dr. Lo found a full range of motion in the plaintiff’s neck, Dr. Supala-Berger notes he is suffering with significant neck pain. She accepted that what she was being told by Mr. Sauvé was indeed the truth. She never questioned any inconsistencies in his reporting of the incident or the means by which he claimed to have been injured. Dr. Supala-Berger was qualified as a participant expert and was a clear advocate for her patient, as she is required to be in her role as a treating physician. Dr. Supala-Berger ceased treating Mr. Sauvé in 2015, and therefore was not able to offer any insight into his current medical condition.
Dr. Gawel
Dr. Gawel
48In 2015, when referred to Dr. Gawel, a neurologist specializing in headache research, Mr. Sauvé advised he had hit hydro wires, ducked down when he saw the wires and felt a huge jolt. He did not know if he lost consciousness or not but there was no mention of hitting his head. Having been referred by Dr. Supala-Berger with a Botox recommendation, Dr. Gawel assessed Mr. Sauvé and recommended he consider Botox treatments.
Dr. Giammarco
Dr. Giammarco
49Mr. Sauvé then requested a referral to Dr. Rose Giammarco to obtain Botox treatments. Dr. Giammarco first saw him on February 8, 2016 and continues to treat him to date. She is Mr. Sauvé’s treating neurologist.
50The plaintiff sought to have Dr. Giammarco accepted as a participant expert as well as a Rule 53 expert in the field of neurology with a specialization in treating headaches. On February 7, 2018, Dr. Giammarco was requested by the plaintiff’s prior counsel to provide a written report, relying only on her own clinical notes and records, as to the nature of the plaintiff’s injuries, the treatments provided and her prognosis for recovery.
51At the time the report was delivered, Dr. Giammarco failed by inadvertence to sign the Acknowledgment of Treating Physician which had been provided to her by counsel. Dr. Giammarco confirmed she has previously provided evidence as an expert witness; she is familiar with Form 53 and is aware of her obligations to the court. Her report was delivered in 2018, two years after she had commenced treating Mr. Sauvé. Dr. Giammarco provided a properly executed Form 53 on March 18, 2021, four days prior to the scheduled commencement of the trial. This is not adequate notice of the plaintiff’s intention to rely on the report for the purposes of expert evidence. The failure to sign and deliver a Form 53 (or an identical facsimile) together with the expert’s report is fatal in these circumstances as Dr. Giammarco is a treating physician to the plaintiff. It was reasonable for the defendants to infer, in the absence of a Form 53, that the report delivered by Dr. Giammarco was a treatment opinion as opposed to a litigation opinion.
52The intention of Form 53 is not only to ensure experts providing opinion evidence to the court do so in a manner that is fair, objective, non-partisan and within their area of expertise, but also to inform opposing counsel of the intention to rely on the report for the purposes of expert opinion evidence. I do not accept the submission that rule 53.03 is silent as to when the Form 53 must be delivered, and therefore it may be delivered at any time prior to trial. Rule 53.03(1) requires the expert report to be delivered 90 days prior to the pre-trial conference and that the report shall contain the information listed in rule 53.03(2.1), the seventh requirement being a Form 53 signed by the expert. The rule requires the Form to be delivered with delivery of the report at least 90 days in advance of the pre-trial. The delivery of a Form 53 by Dr. Giammarco four days prior to trial is not appropriate compliance with the requirements or the intention of the Rule. In the circumstances, Dr. Giammarco was qualified as a participant expert but not a litigation expert for this trial, in accordance with the decision of Westerhof v. Gee Estate, 2015 ONCA 206.
53Dr. Giammarco’s initial assessment report indicates the injuries were accident related and occurred after Mr. Sauvé “hit a hot wire and felt a jolt”. According to her evidence at trial, Mr. Sauvé also advised Dr. Giammarco that he suffered a second jolt when he touched the stick shift of his truck. Although he did not specifically say it, Dr. Giammarco was left with the impression Mr. Sauvé had been electrocuted. An MRI, CT scan and EEG results were reviewed and noted as being normal. Various other physical tests provided normal results. Mr. Sauvé inquired about Botox and was provided with a form to complete to ascertain if he qualified for the treatment. The medical threshold for Botox treatment of chronic headaches is fifteen or more headaches per month over a three-month period, with each headache lasting more than four hours per day and with eight headaches meeting migraine criteria. Based on his self reporting, Mr. Sauvé was approved for Botox treatments and has received injections for the last five years. Dr. Giammarco confirmed that Botox treatments are not a cure, but rather a preventative measure to improve lifestyle where a 50 per cent improvement is deemed to be successful.
54Mr. Sauvé complained to Dr. Giammarco of persistent headaches in the mornings. A sleep study resulted in a sleep apnea diagnosis and a CPAP machine was prescribed.
Dr. Attar
Dr. Attar
55By March 2018, Mr. Sauvé’s version of the incident had evolved to an even more elaborately calamitous event. Having developed hand tremors, he was referred to Dr. Attar at a movement disorder clinic for assessment. Mr. Sauvé advised Dr. Attar that he hit a hydro pole and was electrocuted when he placed his hand back on the stick shift. By this time, four years after the incident, Mr. Sauvé could not recall whether he lost consciousness or not, but he was certain there was a period of confusion in the immediate aftermath of the incident. None of this information can be verified. There is no evidence of electrocution, the contemporaneous medical notes confirm Mr. Sauvé did not lose consciousness, and the 911 call made from the scene of the incident belies any claims of confusion. Moreover, Mr. Sauvé’s own evidence at the time of the incident was that his hand was on the stick shift when he braked aggressively, thereby causing injury to his right wrist. He was not electrocuted by placing his hand on the stick shift.
56Dr. Attar notes the plaintiff advised the tremors started on the left hand more than the right hand and were intermittent, worsened or precipitated by anxiety. The tremors had become more noticeable in the six months preceding his assessment on March 5, 2018 and according to Dr. Attar’s report, the tremors had plagued Mr. Sauvé for almost four years. There is no other medical evidence to suggest the plaintiff has suffered with hand tremors since the time of the motor vehicle incident. On her examinations on August 22, 2014 and June 24, 2015, Dr. John indicated there were no involuntary movements noted. The first notation of hand tremors in the clinical notes of Dr. Yanover appears on March 24, 2016, more than two years after the incident. None of the various neurological examinations conducted in the two years post the incident by Drs. John, Lo, Gawel, or Supala-Berger indicated the presence of hand tremors. Dr. Giammarco first makes a reference to hand tremors in her report to Dr. Yanover dated September 19, 2016.
Dr. DiValentino
Dr. DiValentino
57Mr. Sauvé commenced seeing a new family doctor in August 2020. According to the notes of Dr. DiValentino, Mr. Sauvé advised he had hit a hydro pole, been electrocuted and has suffered with chronic headaches, short-term memory loss and tremors since the time of the incident. Dr. DiValentino characterized the medical history as “electrocution and nonfatal effects of electric current”. He also indicated the plaintiff suffered with anxiety/depression. Mr. Sauvé was referred to a pain clinic for assessment.
Drs. Lightfoot and Book
Drs. Lightfoot and Book
58Shortly after the incident, Mr. Sauvé was referred to a psychotherapist, Dr. Lightfoot, to deal with depression and anxiety. These sessions ended when they were no longer covered by insurance as Mr. Sauvé could not afford the costs associated with ongoing treatment. Dr. Yanover then referred the plaintiff to a psychiatrist, Dr. Book, for assessment and treatment. Dr. Book determined Mr. Sauvé suffered with a major depressive disorder with chronic headaches. He continues to see Dr. Book for prescription medication to address the depression diagnosis. To Dr. Book, Mr. Sauvé advised he has no family psychiatric history; however, Dr. Surbey’s notes indicate the plaintiff’s mother and brother both suffer with schizophrenia.
Westmount Physio & Fit For Life
Westmount Physio & Fit For Life
59Mr. Sauvé was committed to and attended extensive physiotherapy sessions. He received treatment from Westmount Physio for his neck and wrist injuries from June 19, 2014 until March 26, 2015. He ceased attending when the insurance denied further treatment plans. Mr. Sauvé then attended Fit For Life from July 28, 2015 until March 3, 2016 where he engaged in physical and stretching exercises and received acupuncture treatments. Shoulder soreness was a regular complaint. On the Neck Pain Disability Index Questionnaire completed November 13, 2015, he noted he was able to attend to his personal care, operate a motor vehicle, fully concentrate and work without excessive pain. He noted he could lift moderate weights and he described his headaches as moderate but frequent.
Dr. Carlen
Dr. Carlen
60The defendants engaged Dr. Carlen to provide a medical assessment of Mr. Sauvé. Dr. Carlen was qualified as an expert witness in neurology. He acknowledged he did not specialize in the treatment of headaches. He met with Mr. Sauvé for one hour, during which Mr. Sauvé advised unequivocally that he had been electrocuted in the incident and that he had lost consciousness. Dr. Carlen reviewed the medical records and found no physical evidence of disability and no organic neurological evidence to support the plaintiff’s subjective complaints. It was Dr. Carlen’s view that the ongoing complaints were significantly out of proportion to the nature of any flexion injury that may have been sustained and from which Mr. Sauvé ought to have recovered within one to two years. There was no independent or reliable evidence to support a serious head injury and therefore the cause of the headaches was more likely psychological or psychiatric in nature. In Dr. Carlen’s opinion, there was nothing neurological to prevent Mr. Sauvé from returning to some form of work.
61All the doctors were qualified and conscientious in giving their evidence. The weight to be given to the evidence of Mr. Sauvé’s treating physicians is negatively affected by the subjective history they were provided with respect to the motor vehicle incident and the injuries Mr. Sauvé’s claimed to have suffered. Every medial practitioner was expressly told or led to believe that Mr. Sauvé had been electrocuted and that he had hit his head on the dashboard of his truck. These are material misstatements that will have impacted the veracity of the views and opinions given with respect to the cause of the debilitating headaches which Mr. Sauvé claims to be suffering.
Conclusion re: Threshold Issue
Conclusion re: Threshold Issue
62Having reviewed the medical evidence, I am not satisfied the plaintiff has met his onus to establish on a balance of probabilities that the injuries he alleges to have sustained from the motor vehicle incident meet the necessary threshold to surpass the statutory exemption of paragraph 267.5(5) of the Insurance Act.
63The credibility of the plaintiff is in serious issue. He has created a version of events that simply does not accord with the contemporaneous evidence from the time of the incident. The medical reports all rely on Mr. Sauvé’s subjective reports of the severity of the incident and of the injuries sustained. In order for the medical reports to be compelling in the determination of whether the plaintiff suffered a permanent impairment of an important physical, mental or psychological function, the plaintiff must have been entirely forthright with his treating physicians. I cannot conclude that he has been in this case.
64I am certain Mr. Sauvé has an honest belief in his version of events but it is a recreation which cannot stand scrutiny when examined against the contrary, credible and compelling evidence from the defence witnesses and when measured against common sense (Love v. Acuity Investment Management Inc., 2009 CanLII 28211 at paras. 92 & 93).
65I cannot conclude based on the evidence before me that on a balance of probabilities the headaches Mr. Sauvé complains of are as a result of the motor vehicle incident as opposed to being psychological or psychiatric in nature. There is no reliable evidence to establish causation. In this respect, I prefer the evidence of Dr. Carlen who offered his expert opinion that there is no organic neurological explanation for the severe headache complaints and as such, they are more likely to be psychological or psychiatric in nature. I also accept Dr. Carlen’s opinion that Mr. Sauvé ought to have fully recovered from a flexion type soft tissue injury within two years.
66I do acknowledge Mr. Sauvé is fully committed to his narrative. He has sought out extensive medical treatments and he has undertaken a dedicated regime of Botox treatments at not an insignificant financial cost. It would be easy to ask why he would have done so and maintained this ruse for so many years without any guarantee of financial recovery. This is a question that was not asked, and it is one that I certainly cannot answer.
67I do not doubt Mr. Sauvé suffers with headaches for which he is seeking treatment. I do not however accept the headaches are as a result of the motor vehicle incident. There was no expert evidence confirming causation of the headaches. There was no independent expert psychiatric evidence called at trial. Dr. Book was confirmed as a participant expert who noted Mr. Sauvé suffered with excessive worry and he was diagnosed with a major depressive disorder, which Dr. Book did not correlate to the motor vehicle incident.
68There is no credible or reliable evidence to support that the hand tremors Mr. Sauvé now complains of are in any way related to the motor vehicle incident.
69Based on the medical evidence and Mr. Sauvé’s own reporting, the back, neck and wrist injuries the plaintiff did suffer as a result of the sudden braking of his truck resolved after approximately eighteen months and they do not in any way interfere with his ability to carry out the daily activities of his life, having consideration to his age. Mr. Sauvé was ready to return to work in September 2014 if a modified duty position had been available to him at Ford. By November 2015, he self-reported that he was able to attend to his own personal care, operate a motor vehicle, remain focussed and attentive, and he could work without pain if he paced himself.
70Mr. Sauvé is able to perform both indoor and outdoor household chores. He is able to drive and to care for his children. He cooks simple meals for his family. The surveillance videos show him volunteering at a school barbeque for several hours, attending to the garbage and recycling, and performing outdoor home maintenance. While nothing remarkable is shown in the videos, they do confirm Mr. Sauvé is able to carry on with the usual activities of daily life. Mrs. Sauvé confirmed he can do yard maintenance and handyman type chores around the house, although he takes longer to complete these tasks than he would have in the past.
71Mr. Sauvé has failed to prove on balance that the debilitating headaches he complains of were caused by the motor vehicle incident. The medical evidence supports, and I find as a fact that the injuries he did sustain all resolved within approximately 18 months to two years of the incident. He would have been able to return to some form of work at that time. The injuries sustained in the incident were not permanent in nature.
72Therefore, the defendant’s motion is allowed. The plaintiff has not met his onus to establish, on a balance of probabilities that the injuries he sustained from the motor vehicle incident surpass the threshold.
73The non-pecuniary loss does not come within the statutory exemptions as set out in s. 267.5(5) of the Insurance Act. Therefore, the claim for non-pecuniary loss is dismissed on the basis the plaintiff has not sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental, or psychological function as a result of the motor vehicle incident.
Pecuniary Damages
Pecuniary Damages
74The plaintiff also claims for the loss of past and future income arising from the motor vehicle incident. This claim for economic loss is not subject to the threshold analysis.
75I have already concluded, based on the medical evidence, the neck, low back and wrist injuries Mr. Sauvé sustained in the incident were resolved within 18 months to two years at the most. His past loss of income is therefore limited to two years post the incident. He could have returned to gainful employment by January 1, 2016 but did not do so. In the circumstances, there is no future loss of income.
76Mr. Sauvé received short term disability benefits from his insurance with Ford for ten months after the incident, at a rate of 70% his usual earnings. This amounted to $514 per week from January 20, 2014 to November 28, 2014. He received income replacement benefits from his motor vehicle insurer for the period from January 24, 2014 to February 26, 2016, plus a lump sum settlement amount of $20,800 on May 30, 2016. In total, Mr. Sauvé received $45,375 in income replacement benefits.
77There was evidence submitted on a speculative basis that Mr. Sauvé would have been promoted to a zone supervisor position had he remained at Ford. He interviewed for the position eleven days after the incident but was not successful in advancing to the second round of interviews. Mr. Greg Harding gave evidence that in his 25 years of working at Ford, it would be most unusual for someone with only ten months of experience as a unionized employee on the assembly line to be elevated into a supervisory position. Further, based on his review of Mr. Sauvé’s employment file, it was Mr. Harding’s view that Mr. Sauvé was an average employee and he was not qualified at that time for the line supervisor position.
78Based on this evidence, I conclude that Mr. Sauvé’s loss of income claim must be limited to a status quo analysis presuming that but for the incident, he would have remained employed at Ford as a trim assembly line inspector working an average of 48 hours per week. As noted above, I further conclude that he would have fully recovered from his motor vehicle incident injuries and been able to return to work by January 1, 2016, being approximately two years after the incident.
79The expert evidence on economic loss submitted by the plaintiff assumed Mr. Sauvé would never be able to return to gainful employment after the incident. I do not accept that premise and therefore I prefer the expert evidence submitted by Mr. Gary Phelps, on behalf of the defendants.
80Mr. Sauvé income replacement benefits were terminated as at February 26, 2016 and thus that is the date on which Mr. Phelps assumed Mr. Sauvé could have returned to some form of employment. I have found that he could have returned to work by January 1, 2016.
81With respect to the calculation of past income loss, the analyses contained in the two expert reports were comparable. For the purposes of calculating past income loss for Mr. Sauvé from the date of the incident to December 31, 2015, I accept the calculations expressed by the plaintiff’s expert, including the loss of employer sponsored benefits. The total lost income from January 17, 2014 to December 31, 2015 is $38,561. Mr. Sauvé received $45,375 in income replacement benefits for all past and future loss of income claims and has therefore been fully compensated for his past loss of income.
82Mr. Sauvé has not pursued his claims for past or future cost of care, housekeeping and home maintenance assistance, caregiving and transportation cost. No damages are awarded in respect of these claims.
Conclusion
Conclusion
83Having found that Mr. Sauvé has failed to satisfy his onus to establish the injuries he sustained in the motor vehicle incident meet the threshold for non-pecuniary damages, and that he has been fully compensated for his past loss of income without any entitlement to future loss of income, this action is dismissed.
84Having been wholly successful in this matter, the defendants are entitled to their costs. If the parties are not able to agree on costs, written submissions may be made by the defendant within 30 days and the plaintiff within 30 days thereafter.
_(Original signed by)
Mills J.
Released: June 3, 2021
COURT FILE NO.: CV-16-226
DATE: 2021-06-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian Sauvé and Doreen Sauvé
Plaintiffs
– and –
Anthony Steele and Duff Contracting Ltd.
Defendants
REASONS FOR JUDGMENT
Mills J.
Released: June 3, 2021