Persaud v. Bascom , 2021 ONSC 4398

ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-17-580134 DATE: 20210618

BETWEEN:

HARRY PERSAUD Plaintiff

– and –

KAREN BASCOM Defendant

COUNSEL: AUSTIN P. RILEY, for the Plaintiff Josiah T. MacQuarrie, for the Defendant

HEARD: June 1-11, 2021

REASONS FOR DECISION

J.E. Ferguson J.

1The defendant, Karen Bascom (the "defendant") brings this motion for an order declaring that the plaintiff, Harry Persaud (the "plaintiff") has not sustained a permanent serious impairment of an important physical, mental or psychological function pursuant to sections 267.5(3) and (5) of the Insurance Act, R.S.O. 1990, c.I.8, as amended (the "Act").

2The plaintiff brought this action for personal injuries sustained in a motor vehicle accident that occurred on December 1, 2015.

3The plaintiff alleges that he suffered new injuries as a result of the accident, as well as aggravation of pre-existing injuries that have not resolved. He alleges that he has pain and suffering and a significant loss of amenities and enjoyment of life.

4The plaintiff claims that he is further impaired from performing household and home maintenance activities due to this accident.

5The plaintiff claims future care costs.

6The defendant denies that the plaintiff has suffered the injuries as alleged. In the alternative, if the plaintiff did suffer injuries, the defendant further submits that the injuries alleged by the plaintiff do not constitute a permanent serious impairment of an important physical, mental or psychological function.

7The trial of this action commenced on June 1, 2021 and concluded on June 11, 2021.

8This accident occurred on December 1, 2015 and as a result any claim for general damages is governed by section 267.5 of the Insurance Act. Section 267.5 (5) of the Act reads:

(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).

9In determining whether a plaintiff falls within one or more of the statutory exceptions to the immunity for general damages, the Ontario Court of Appeal in Meyer v. Bright established a three‑part test which consists of sequentially asking the following questions:

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

(ii) if the answer to question number (i) is yes, is the bodily function which is permanently impaired an important one?

(iii) if the answer to question number (ii) is yes, is the impairment of the important bodily function serious?¹

10The test for determining threshold requires a case‑by‑case analysis. Meyer v. Bright does not establish a general threshold that injured persons must pass before they are entitled to sue for their injuries. Rather, the test requires that a determination be made in each case where the injured person falls within one or more of the statutory exceptions to the general immunity provided by the Act.²

11The plaintiff has the onus of establishing that his impairments meet the threshold. With respect to past or existing matters, the standard of proof is a balance of probabilities.³

12With respect to what will happen in the future, a party can satisfy the onus by showing upon expert or cogent evidence that there is a substantial possibility that a particular event or condition may occur.

13Although the threshold is the primary issue, it must not be overlooked that the analysis shall first consider whether the plaintiff has proven that his impairment was caused by the automobile accident in question. The test for causation is the "but for" test.⁴

14The Regulations to the Act outline the evidence required to substantiate the plaintiff's claim that his impairments meet the threshold. Section 4.3 requires that:

The person adduce evidence of one or more physicians 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.

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.

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.

15Section 4.3(5) mandates that a plaintiff must, in addition to establishing the requirements for medical evidence, also adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function

16The general approach to identify whether the plaintiff has sustained injuries falling within a statutory exception is to consider the three questions identified in Meyer.

17Section 4.2(1) sets out the definitions of the major components of the threshold by precisely defining "serious", "important" and "permanent". The legislation requires that all of the delineated criteria in section 4.2(1) be met for an individual to satisfy the threshold.⁵

18For the impairment to be permanent, the impairment must have been continuous since the accident and must be expected not to substantially improve, must continue to be a serious impairment, and must be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.⁶

19The words "permanent impairment" mean an impairment that lasts into the indefinite future as opposed to one predicted to have some definite end.⁷

20Permanent impairment of a physical function has been held to exist where there are soft tissue injuries, pre-existing degenerative changes and injuries that were not confirmed by objective findings. Some injuries can be diagnosed objectively, and some can be diagnosed only based on the patient's subjective complaints. The Act does not require that the issue be determined by the presence of "objective findings" and the absence of such findings is not determinative of the question.⁸

21Soft tissue injuries to the neck and right shoulder affecting mobility of the neck and shoulders and the full use of the plaintiff's hand have been found to constitute a permanent impairment of a bodily function caused by a continuing physical injury.⁹

22Chronic pain has been found to constitute a "permanent impairment of a bodily function caused by continuing injury which is physical in nature".¹⁰

23For the function to be considered important, the function must be necessary to perform the activities that are essential to the person's regular or usual employment, taking into account the above noted accommodations; must be necessary to perform the essential tasks of the person's training for a career; must be necessary for the person to provide for his own care or well-being; or must be important to the usual activities of daily living, considering the person's age.¹¹ (Only the third factor applies to this case.)

24The determination of whether the impairment in issue related to an "important" function is a subjective analysis. The court must consider the injured person as a whole and the effect which the functional impairment has upon that person's way of life in the broadest sense. If the bodily function is important to the particular person, then the impairment is an important one. The court should consider all aspects of the injured person's life and the degree to which previous activities have been compromised by the injuries in issue.¹²

25Essentially, the legislation is aimed at those bodily functions that play a role in the health and general well-being of the injured plaintiff. For example, pain and sleep disturbance that results in interference with employment, involvement in church, family life, and social activities has been found to be "important".¹³

26Pursuant to section 4.2, for the impairment to be serious, it must substantially interfere with the person's ability to continue his regular or usual employment, despite reasonable efforts to accommodate his impairment and reasonable effort to use the accommodations; substantially interfere with the person's ability to continue training for a career; or substantially interfere with most of the usual activities of daily living, considering the person's age.¹⁴ (Only the third factor applies to this case.)

27The determination of whether the impairment in issue is "serious" is a subjective analysis.

28An assessment of the seriousness of any impairment must focus on the individual's impairment and not the nature of the injury. In Meyer, the Court of Appeal stated that while there is no absolute formula in all cases, "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".¹⁵

29Regarding seriousness, one must be careful not to set the standard for determination too high. For example, a person who can carry on daily activities, but is subject to permanent symptoms such as sleep disorder, severe neck pain, headaches, dizziness and nausea which have a significant effect on that person's enjoyment of life must be considered to have a serious impairment.¹⁶

30Soft tissue injuries can be as "crippling and devastating as other major physical or mental injuries". The analysis of the seriousness of the injuries will depend on the effect of the injury on the plaintiff's life and activities. It is a subjective analysis.¹⁷

31Impairment caused by soft tissue injuries which affect the ability to shop, do household chores and maintain contact with family and friends has been found to be "serious".¹⁸

32Even when a plaintiff resumes all of her pre-collision activities and employment, the impairment may still be "serious" if he endures pain while engaging in those activities.¹⁹

33When a plaintiff suffers from chronic pain, it may be possible for him to do all of the things that he did before the injury on an occasional basis. However, if the activity cannot be done constantly and consistently and this is substantial interference with work and leisure functions, the impairment may be considered "serious".²⁰

34The courts have found that an injury which interferes with or restricts some of the following activities, or prevents the injured person from performing some of the following activities, constitutes a "serious injury":

(a) domestic chores;

(b) household cleaning and repairs;

(c) yard work;

(d) camping;

(e) boating;

(f) rollerblading;

(g) shopping;

(h) cycling;

(i) running;

(j) golfing the way that the plaintiff once did;

(k) socializing with friends; and

(l) working full time hours.²¹

35Regarding the test, the court has acknowledged that since implemented the only minor change to the threshold standard may be the use of the word "most" in section 4.3, which may have resulted in a slightly higher threshold for interference with activities of daily living as opposed to employment.²²

36In considering the impact of a collision on the plaintiff's health and functioning, the court must look at the cumulative effect on his life. A sore neck or a sore back, viewed in isolation, may not meet the statutory exemption, but when combined with other difficulties the court may reach a different conclusion.²³

Analysis

37The various medical records of the plaintiff were made an exhibit on consent and were admitted for both authenticity and the truth of the contents. They extensively set out the plaintiff's significant pain and other many problems pre and post accident.

38The defendant concedes that the impairment is permanent.

39The plaintiff's impairments are serious in that they prevent him from engaging in activities that are important to the usual activities of daily living, considering his age. They have interfered with his activities of daily living, housekeeping, home maintenance, playing with his grandchildren, going to the park, and walking in his neighbourhood. These things were very important to the plaintiff.

40Dr. Nesathurai testified that the plaintiff was unable to perform many activities around the household due to his pain arising from the injuries sustained in the motor vehicle collision. Dr. Nesathurai also testified that the plaintiff was not able to engage in certain recreational activities with his grandchildren which had been very important to him. Although he still drives, his driving has diminished. Even with the daily use of medications and extensive therapy, the plaintiff's pain continues. It curtails a significant number of activities that the plaintiff was able to do prior to the accident and the pain has resulted in the plaintiff isolating himself from other people. The plaintiff's wife, daughter and son‑in‑law also testified as to these restrictions and I accept their evidence.

41Dr. Nesathurai testified that the plaintiff experienced a decrease in his current functional level compared to his functional level before the accident. The plaintiff's wife noted that this decrease was from approximately 60% pre-accident to 30% to 40% post-accident. This is significant.

42The plaintiff has met his onus that his impairments meet the threshold. The defendant's motion is dismissed.

J.E. Ferguson J.

Released: June 18, 2021

COURT FILE NO.: CV-17-580134 DATE: 20210618

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HARRY PERSAUD Plaintiff

– and –

KAREN BASCOM Defendant

REASONS FOR DECISION

J.E. Ferguson J.

Footnotes

1. 1Meyer v. Bright, 1993 3389 (ON CA), [1993] 15 O.R. (3d) 129 at para. 16.
2. 2Meyer v. Bright, ibid at para. 12.
3. 3Meyer v. Bright, ibid, at paras. 50 and 87.
4. 4Clements v. Clements, 2012 SCC 32.
5. 5Sherman v. Guckelsberger, 2008 68165 (ONSC) at para. 105
6. 6Insurance Act, ibid, s 4.2(1)(3).
7. 7Skinner v Goulet, 1999 CarswellOnt 2753 at para. 33 (Sup. Ct. J).
8. 8Meyer v. Bright, supra; Chrappa v. Ohm, 1998 893 (ON CA).
9. 9Acitino v Howes Estate, 1996 CarswellOnt 4877 at para. 2 (Ct. J. (Gen. Div.).
10. 10Dickson v. Canada Life Casualty Insurance Co., 1996 8045 (ON SC).
11. 11Insurance Act, ibid, s 4.2(1)(2).
12. 12Meyer v. Bright, supra; Vandenberg v Montgomery, 1999 CarswellOnt 2298 at paras. 37-42 (Sup. Ct. J.).
13. 13Vandenberg, supra, para. 21 at paras. 38 - 42.
14. 14Insurance Act, O. Reg 461/96, s 4.2(1)(1).
15. 15Meyer v. Bright, supra.
16. 16May v Casola, 1998 CarswellOnt 2420 at para. 1 (Ont. CA.); Knudsen v. Tyckyj, 1994 7336 (ON SC).
17. 17Snider v. Salerno, 2001 28090 (ON SC).
18. 18Acitino, supra, para. 19 at para. 4.
19. 19Brak v. Walsh, 2008 ONCA 221; Pedisic, supra, para. 28.
20. 20Delange v Parkinson Estate, CarswellOnt 3150 at para. 44 (Ont. Gen. Div.).
21. 21Saikaly v. Buck, supra, para. 13 at paras. 25 to 27; Guerrero v. Fukuda, 2008 49158 (ON SC); Valdez v. Clarke, 2010 ONSC 174; Valdez v. Clarke, 2012 ONSC 1110; Ivens v. Lesperance, 2012 ONSC 4280; Hansen v Williams (23 April 2013), St. Catherines 09-51358 at pages 6 and 7 (Sup. Ct. J.), Hansen, et al. v. Williams, 2013 ONSC 4737; Austin-Cooke v. Reid, 2005 50211 (ON SC); O'Brien v. Charbonneau, 2009 10664 (ON SC); Hartwick v. Simser, 2004 34512 (ON SC); Hartwick v. Simser, ibid; Perger, supra, para. 13 at paras. 5, 6, 46-49, 52-54.
22. 22Nissan v. McNamee, 2008 20345 (ON SC).
23. 23Perger v. Olsen, 2004 36080 (ON SC).