Court File and Parties
COURT FILE NO.: C-6918-17 DATE: 2022-01-10 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Katrina Pisani, Plaintiff – and – Holly McDaniel, Defendant
Counsel: Peter Denton, for the Plaintiff Scott Croteau, for the Defendant
HEARD: November 8, 9, 10, 12, 15, 16, 17 and 19, 2021
REASONS FOR JUDGMENT R.D. Gordon J.
Overview
[1] On November 22, 2015 Ms. Pisani was the front seat passenger in a vehicle stopped at a red light in downtown Toronto when the vehicle was hit from behind. Ms. McDaniel was the driver of the other vehicle and has admitted that fault for the accident lies with her.
[2] This trial was held to determine if Ms. Pisani is entitled to damages.
Issues
[3] There is no doubt that Ms. Pisani was injured in the accident. What is at issue is the extent of her injuries and what impact they have had on her life.
[4] According to Ms. Pisani she continues to suffer from constant chronic pain in her neck, back and right shoulder, anxiety, disrupted sleep, fatigue and exhaustion, impaired mood, depression, anger, and irritability. She says her injuries have had a significant impact on almost every facet of her life including travel, social activities, recreational activities, housekeeping, personal relationships, and her ability to work. She seeks damages under various heads amounting to more than $1.5 million.
[5] The defendant is of the view that Ms. Pisani suffered minor soft tissue injuries that were largely resolved within six months of the accident and that she has returned to most, if not all, her pre-accident activities. On behalf of Ms. McDaniel it was suggested that Ms. Pisani may have established a gross general damages’ claim of between $10,000 and $30,000 but has suffered no other loss. In any event, I was asked to find that Ms. McDaniel is not liable for any non-pecuniary loss suffered by Ms. Pisani as a result of the accident because she did not sustain permanent serious impairment of an important physical, mental or psychological function – that she did not meet the threshold established in s. 267.5 of the Insurance Act.
[6] The issues, then, are as follows:
a. What injuries did Ms. Pisani suffer in the accident? b. Do the injuries suffered by Ms. Pisani meet the threshold? c. What is an appropriate award for general damages? d. What is an appropriate award for Loss of Competitive Advantage and Loss of Income? e. What is an appropriate award for Loss of Housekeeping and Home Maintenance Ability? f. What is an appropriate award for the cost of assistive devices? g. What is an appropriate award for out-of-pocket expenses? h. What is an appropriate award for costs of future care?
Applicable Law
The Insurance Act Threshold
[7] As it applies to this action, s. 267.5(5) of the Insurance Act provides that an owner of an automobile is not liable in an action in Ontario for damages for nonpecuniary loss 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 sustained a permanent serious impairment of an important physical, mental or psychological function. Section 267.5(3) provides the same threshold for the recovery of damages for expenses for health care.
[8] In Meyers v. Bright, the Ontario Court of Appeal determined that the proper approach in analyzing a threshold claim is to determine first whether the plaintiff sustained a permanent impairment of a physical, mental, or psychological function. If this is established, the court must then determine if the permanently impaired function is important. Lastly, if it is important, the court must determine whether the permanent impairment of that important function is serious.
[9] Effective October 1, 2003 O. Reg. 381/03 introduced amendments to O. Reg. 461/96 to aid in defining the threshold set in s. 267.5(3) of the Insurance Act by adding new section numbers 4.1, 4.2 and 4.3.
[10] Section 4.1 provides that, for the purposes of s. 267.5, “permanent impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in s. 4.2.
[11] Section 4.2(1)1 speaks to the seriousness of the impairment and requires that it: (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 for 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 accommodations 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.
[12] Section 4.2(1)2 speaks to the importance of the function that is impaired and requires that it 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.
[13] Section 4.2(1)3 speaks to the permanency of the impairment and requires that it 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.
[14] As the criteria for permanency requires that the impairment continue to meet the criteria in paragraph 1 (that it be serious) the regulation effectively revises the order of analysis prescribed in Meyers v. Bright.
[15] In addition to setting out these criteria, regulation 461/96 also provides evidentiary requirements to meet those criteria. In particular, a person seeking nonpecuniary damages must 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. The evidence of the physician must 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 shall be based on medical evidence in accordance with generally accepted guidelines or standards of the practice of medicine. The evidence of the physician must include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile. In addition to the evidence of the physician, the person claiming damages must adduce evidence that corroborates the change in the function that is alleged to be permanent serious impairment of an important physical, mental, or psychological function.
Damages
[16] The plaintiff claims damages under several different heads.
[17] She claims general damages or nonpecuniary damages for pain and suffering and loss of enjoyment of life due to the injuries she sustained. As noted above, this is essentially a chronic pain case. In Rizzo v. Marvos, 2008 ONCA 172, the Ontario Court of Appeal accepted a range of general damages for chronic pain cases of $55,000 to $120,000.
[18] She claims for loss if income and loss of earning capacity due to the injuries she sustained. Under s. 267.5(1) of the Insurance Act she is not entitled to, (i) damages for income lost in the seven days following the incident, (ii) damages for income loss suffered more than seven days after the incident and before the trial of this action in excess of 70% of the amount of gross income that is lost during that period, (iii) damages for loss of earning capacity suffered after the incident and before the trial of the action in excess of 70% of the loss of earning capacity during that period. With respect to future loss of income and loss of earning capacity, the onus is on the plaintiff to establish a substantial possibility that the loss will be incurred [see Meyer v. Bright, supra]. In considering this head of damages I must have regard to the words of Finlayson J.A. in Martin v. Goldfarb, [199] O.J. 3403 (ONCA): “I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigation is entitled to nominal damages at best.”
[19] Ms. Pisani asserts a claim for loss of housekeeping and home maintenance ability, both past and future, including the costs of assistive devices. Like loss of income, damages under this heading are not subject to the threshold or the deductible. An award under this heading recognizes that work for which a person does not get paid nevertheless has value to that person and to others who benefit from it. [See Kim v. Lee, 2016 BCSC 2405, at para 191, affirmed on appeal).
[20] Ms. Pisani also asserts a claim for costs of future care. This would be the amount required to pay for medical and professional assistance and equipment that will, to the extent possible, restore her to the position she was before the accident occurred. Like other future pecuniary loss, the burden is on the plaintiff to establish a substantial possibility the loss will be incurred. The expense must be both medically justified and reasonable.
[21] Finally, Ms. Pisani asserts a claim for out of pocket expenses incurred as of the date of trial that she has been required to pay towards her rehabilitation.
Analysis
What Injuries Did Ms. Pisani Suffer?
[22] As counsel for the defendant put it in his opening statement and again in his closing address, this case is really about whether or not I believe the plaintiff is being truthful. Is she suffering from debilitating chronic pain that causes her to become fatigued, irritable and depressed? Or did she simply suffer soft tissue injuries which resolved within six months of the accident?
[23] For the reason which follow, I accept that as a result of the accident Ms. Pisani suffers from chronic pain in her right shoulder, neck and back. I accept that this pain makes it difficult for her to sleep and affects her mood. I accept that as a result of this pain and fatigue she is more irritable, less able to concentrate, and suffers from intermittent depression and anxiety.
[24] The uncontradicted evidence at trial was that before this accident, Ms. Pisani had everything going for her. She was happy and outgoing. She was fit and active. She had a large social circle and was in a long-term committed relationship. She loved to travel. She was successful academically holding a Bachelor of Arts and a master’s degree. She had full-time employment in her field and was highly regarded by her peers. She was close to her family and was looking forward to a long, happy and productive life.
[25] Although the defendant correctly points out that Ms. Pisani continues to be quite active, continues to travel, and has advanced in her employment, it is obvious to me that she is not the same happy and outgoing person she once was.
[26] I was struck by the evidence of Danielle Waltenbury and Amy Henson, Ms. Pisani’s past and current supervisors at work. Both indicated they maintained a friendly working relationship with Ms. Pisani but that they were not friends outside of work. Neither had any reason to misrepresent anything to the court. Both described Ms. Pisani as an exemplary employee prior to the accident who had become the “go to” person in her department. They spoke of her positive attitude, her energy and the esteem in which she was held by her co-workers. They testified to her ability to meet deadlines and her punctuality. Both described a very different person following the accident - a person who is now low-energy, irritable, often late to meetings and no longer able to complete many of the physical aspects of her job. A person no longer as well liked or as well respected by her co-workers.
[27] I was also struck by the evidence of Umberto Pisani, the plaintiff’s father - a 67-year-old veteran of the Sudbury mines moved to tears when speaking of his daughter’s pain, irritability and frustrations.
[28] These same observations were made by Ms. Pisani’s mother, sister and best friend. Although all might be naturally inclined to side with the plaintiff, I did not have the sense that any of them were trying to mislead the court or say anything but the truth as they know it.
[29] Ms. Pisani’s complaints are corroborated by the notes and records of her family Physician Dr. Kuchtaruk, a chronic pain specialist Dr. Marks de Chabris and her psychotherapist Vanessa Wilkins.
[30] Ms. Pisani’s complaints are further corroborated by her efforts to get help. She has sought relief through physiotherapy, massage therapy, chiropractic treatment, fitness programming and is on a waiting list to determine her suitability for a trial of nerve blocks. She has often paid for these treatments with her own money, not knowing if reimbursement would be forthcoming.
[31] I found Ms. Pisani herself to be a largely credible witness. She was appropriately emotional when detailing some of the difficulties she faces and was fair in conceding that she is still able to undertake many of the activities she enjoyed before the accident. She obviously has a stake in the outcome of this litigation, but it was not my sense that she was deliberately overstating her injuries or impairments. It would not be fair to expect from her a completely objective assessment of her situation when her perception is necessarily subjective.
[32] Counsel for the defendant offered many reasons why I should disbelieve Ms. Pisani and those who testified on her behalf.
[33] Counsel submitted that Ms. Pisani’s evidence was contrary to her social media posts which show her on several trips, baking, playing soccer and participating in yoga. Much was made of a five-kilometer mountain hike she undertook with friends while on vacation in St. Lucia. However, as Ms. Pisani explained, she like most people, posts her positive experiences on social media and keeps her personal difficulties private. Her testimony was not that she is unable to participate in most activities as she had before the accident – it was that she does her best to continue to live her life as before but that doing so causes her significant pain and frustration.
[34] Counsel suggested that she was combative and agitated during cross-examination and to a certain extent I would agree. She is an intelligent woman who often anticipated where a line of questioning was going and began offering an explanation before the questions were finished; however, in my experience this is a common issue with witnesses who have little experience testifying. Her agitation when she was asked to recall what she told treatment providers or experts in meetings that took place years ago was as supportive of the evidence of the ease with which she now becomes frustrated as it is with her being difficult or evasive. In my view, she fairly accepted that what was reported in their various notes and records must have been stated by her but was unwilling to concede that those notes and records contained everything she said. This did not strike me as unreasonable. Indeed, it would be unusual for there not to be some inconsistencies between what a witness says in a trial and what she may have said or was recorded by others as having said over several years.
[35] There is, however, one specific omission from her evidence that gives me pause and that is her failure to give evidence of the job promotion she was offered the evening of the first day of trial. This promotion was not mentioned in her direct examination and when cross-examined on it she, at first, seemed uncertain of what promotion was being discussed. Whether this was an innocent omission from her evidence or, as seems more likely, a deliberate and ill-advised omission of relevant evidence, it is not sufficient for me to discount all of her testimony and does not taint the testimony of all the witnesses who testified on her behalf.
[36] Counsel for the defendant also relied on certain defence witnesses to cast doubt upon the veracity of Ms. Pisani’s complaints.
[37] Jessica James is a physiotherapist who treated Ms. Pisani for a period of time following the accident. In her discharge summary from February 16, 2016 she indicated that Ms. Pisani’s injuries had almost fully resolved with her experiencing only slight discomfort in the right side of her neck. However, it is to be noted that Ms. James was not, at the time, a registered physiotherapist but a resident. She had just graduated and had little if any experience dealing with chronic pain cases. She acknowledged her lack of experience at the time and, given the additional experience she now has with accidents arising out of motor vehicle accidents, conceded that it is very possible Ms. Pisani’s symptoms continue.
[38] The defence also called Dr. Zeeshan Waseem whose expertise in physiatry was conceded by the plaintiff. Based on his interview with Ms. Pisani, his review of prior medical reports and his physical assessment of her he was of the opinion that she suffered from soft tissue trauma and chronic pain and associated headaches which he believed to be permanent but not serious as she had returned to her pre-accident activities and employment. His evidence was that although from a medical perspective she is physically able to do all the things she did before the accident, whether she can in fact do those things depends on the amount of pain she is able to tolerate. He conceded that her pain would worsen with activity and that chronic pain can affect sleep and cause fatigue, stress and irritability. His evidence essentially confirms that she suffers as she says she does but concludes that she has been resilient in resuming most of her usual activities despite the pain.
[39] Dr. Jacqueline Auguste also gave evidence on behalf of the defendant. Her expertise in orthopedic medicine was conceded by the plaintiff. Dr. Auguste met with Ms. Pisani on two occasions and concluded that she suffers from no impairments from an orthopedic perspective. Following her first assessment she concluded Ms. Pisani suffered a WAD I whiplash/cervical strain, right shoulder strain/sprain and a mild impingement of the right shoulder from the accident. Following her second assessment she came to the same conclusions. On cross-examination Dr. Auguste conceded that her assessment was from an orthopedic perspective only and that she was unaware of any chronic pain diagnosis for the plaintiff. She confirmed that chronic pain is real. She acknowledged that Ms. Pisani complained of constant neck pain, shoulder pain and scapular pain, made worse with repetitive movements. In my view, her assessment of the plaintiff provided little insight into her complaints aside from excluding orthopedic issues as their root.
[40] Counsel for the defendant also argued that the extent of the injuries complained of by the plaintiff was inconsistent with the nature of the collision, which he described as minor. Counsel for the plaintiff countered that this was a very serious collision and the injuries are entirely consistent. No one filed a bio-mechanical engineering report or called an expert to address this issue. Although the collision was obviously not as serious as some, it did involve speed of approximately 50 kilometers per hour and, on the evidence, had the effect of propelling the plaintiff vehicle forward several feet. Without expert evidence, I am not able to say that the collision was unlikely to have caused the injuries complained of.
[41] Finally, counsel for the defendant submitted that I should draw an adverse inference from the plaintiff’s failure to call her family physician as a witness. I decline to do so for the following reasons. First, the evidence of Dr. Kuchtaruk was admitted, on consent, under the provisions of ss. 35 and 52 of the Evidence Act and accordingly, it is effectively before the court. Second, the defendant could have sought to cross-examine Dr. Kuchtaruk and did not do so. Third, given that the plaintiff’s complaints are of chronic pain, which Dr. Kuchtaruk would have no ability to objectively verify, the record of Ms. Pisani’s complaints as contained in his records are likely the only relevant evidence he could provide. Fourth, the plaintiff called an expert in chronic pain who is better able to provide the court with evidence pertaining to her condition.
[42] Similarly, reports from the plaintiff’s treating psychiatrist and psychotherapist were filed with the court, on consent, under the same provisions of the Evidence Act and therefore their evidence was properly before the court. Again, the defendant made no request to cross-examine either witness. Like Dr. Kuchtaruk, their diagnoses are based largely on what Ms. Pisani told them as indicated in their records and their oral examination is unlikely to have added materially to this evidence.
[43] In conclusion, it is my view that Ms. Pisani’s injuries did not simply resolve within four to six months of the accident. She continues to suffer from chronic pain in her neck, shoulder and back which, in turn, causes difficulty with sleep and affects her mood. She is fatigued, less able to concentrate, irritable, and suffers from intermittent depression and anxiety.
Do Ms. Pisani’s Injuries Meet the Threshold?
The Evidentiary Requirement
[44] The defendant submits that the plaintiff has failed to adduce the evidence required of a physician as set out in s. 4.3 of the Regulation. As to Ms. Pisani’s physical functioning the only witness called by the plaintiff to speak to the issue of the threshold was Dr. Marks de Chabris and the defendant contends that although he concludes that Ms. Pisani’s chronic pain is permanent, he does not make a finding that it is important or serious.
[45] As set out in s. 4.3(2), the evidence of the physician is to explain the nature of the impairment, the permanence of the impairment, the specified function that is impaired and the importance of the specific function to the person. In my view, although the physician is required to explain the permanence of the impairment, there is no requirement that he or she explain or offer an opinion on the seriousness of the impairment or an objective opinion of its importance.
[46] In his evidence, Dr. Marks de Chabris explained what physical functions of Ms. Pisani are impaired, the nature of the impairment, and why those physical functions are important to her. The regulation does not require that he go beyond that to conclude, in his opinion, that the physical function impaired is an important one. Nor does it require him to conclude that the impairment is serious. Those are for the court to determine based upon all of the evidence.
Did the Plaintiff Suffer an Impairment of a Physical, Mental or Psychological Function?
[47] As I have noted above, I accept that the plaintiff has suffered physical impairments to her neck, right shoulder and back. The chronic pain arising from her injuries has resulted in difficulties with sleep. Her sleep disruption results in fatigue which in turn affects her mood and ability to concentrate.
[48] I also accept that Ms. Pisani has suffered mental or psychological impairments as a result of the accident, namely adjustment disorder with mixed anxiety and depressed mood with symptoms of posttraumatic stress disorder. This is evident from the records of Vanessa Wilkins, her psychotherapist, and the reports provided by psychiatrist Dr. Ramamohan Veluri.
Are the Impairments Serious?
[49] One way in which Ms. Pisani’s impairments may be found to be serious is if they substantially interfere with the her ability to continue her regular or usual employment, despite reasonable efforts to accommodate the her impairments and the her reasonable efforts to use the accommodation to allow the her to continue employment.
[50] In this case, Ms. Pisani returned to full-time employment shortly after the accident and has remained there since. She has been provided with and has accepted reasonable accommodations to allow her to continue to work. In these circumstances it cannot be said that her impairments substantially interfere with her ability to continue her regular employment.
[51] The second way in which her impairments may be found to be serious is if they substantially interfere with most of her usual activities of daily living, considering her age.
[52] The plaintiff’s impairments interfere with practically all of her usual activities of daily living. Her pain and fatigue reduce the enjoyment of many of the activities she is able to undertake, renders many of them more difficult to undertake, and in some respects prevent her from participating at all.
[53] I acknowledge that Ms. Pisani is able to look after all aspects of her personal care. She is able to shop but requires assistance handling some heavier items. She is able to cook, although some repetitive activities like cutting vegetables or stirring batter can exacerbate her pain. She is quite restricted in her ability to do heavier household cleaning and is unable to tend to winter or summer yard work. Although she continues to be reasonably physically active, she cannot participate in sports or other recreational activities to the extent she once did. Her social life, which was based in no small part on these physical activities, has been adversely impacted. Although she continues to travel, she cannot travel as frequently, her activities while travelling are restricted, and the enjoyment she derives from it are significantly reduced.
[54] As stated by Firestone J. in Malfara v. Vukojevic, 2015 ONSC 78: “It is important to recognize that it is “the effect of the injury” on the person and not the “type of injury” or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which the plaintiff has been impacted. The threshold determination is to be done on a case by case basis.”
[55] In all of the circumstances I am satisfied that Ms. Pisani’s impairments substantially interfere with most of her usual activities of daily living and therefore meet the definition of serious.
Are the Impaired Functions Important?
[56] I am similarly satisfied that Ms. Pisani’s impairments are important to her usual activities of daily living, considering her age. The pain she experiences and the fatigue, depression and irritability arising from it, affect virtually all of her activities of daily living. As I have noted, those activities she can perform take longer and are completed at the cost of additional pain. Some she cannot perform whatsoever. She is caught in an unpleasant cycle where the more she does the more she suffers, and the more she suffers the more her sleep is affected. The more her sleep is affected the greater her depressed mood and irritability. The greater her depressed mood and irritability the more profound the impact on her social and family life.
Are the Impairments Permanent?
[57] There are three criteria that must be met for an impairment to meet the test of permanence.
[58] First, it must have been continuous since the accident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected to not substantially improve.
[59] The chronic pain expert called by the plaintiff, Dr. Marks de Chabris, in his report dated February 1, 2019 indicated that her recovery has plateaued at 60 to 70% improvement, that there is no clear evidence that further improvement is to be expected, and that her impairments may worsen over time.
[60] Dr. Waseem, the expert in Physiatry called by the defendant, in his report dated September 1, 2020, indicated that given the long-standing nature of her physical impairment it would appear to be permanent.
[61] Based on these medical reports, the first criteria for permanence is met.
[62] Second, the impairments must continue to meet the criteria for seriousness. Based upon my analysis above this criteria is also met.
[63] Finally, the impairments must be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances. I have little difficulty in finding this criteria to also be met. Ms. Pisani has been diligent in her efforts to reduce her pain and the various issues that arise from it.
[64] In my view, the impairments suffered by Ms. Pisani are permanent.
Conclusion
[65] Ms. Pisani has suffered a permanent serious impairment of an important physical, mental or psychological function. She has met the threshold for recovery set out in section 267.5 of the Insurance Act.
General Damages
[66] Ms. Pisani’s life is not the same as it once was. She has good days and bad, but her pain is chronic, her sleep disruption is constant, and the impact of these impairments on her life are not insignificant.
[67] That said, it must be recognized that Ms. Pisani continues to do many of the things she did before. She may enjoy them somewhat less, or they may cause some residual pain, but she is able to do them. She continues to work. She continues to travel. She continues to play some organized sport. She is able to go to the gym regularly. She continues to socialize.
[68] Considering all of the facts and allowing for appropriate increase in the range of damages set out in Rizzo v. Marvos, supra, I assess Ms. Pisani’s general damages at $80,000.
Loss of Income Claims
Past Loss of Income
[69] At the time of the accident Ms. Pisani was paid hourly for her work as Science North and was to work 35 hours per week. Excluding the first seven days following the accident, those records reveal that she worked less than 35 hours per week for several weeks. Her evidence was that she missed work due to her injuries and no other explanation was explored with her or put forth by the defendant. I accept that she missed 71 hours of work due to injuries suffered in the accident. Her rate of pay was then $18.94 per hour. Her loss was $1,344.74. 70% of her loss is recoverable, which is equal to $941.31.
[70] I am not satisfied that Ms. Pisani has suffered any other loss of income since the accident. To the contrary, she has been promoted at least three times resulting in a significant increase in her income from employment. Although it was suggested she be awarded compensation for part-time work foregone as a result of her injuries there is little to suggest that she regularly engaged in such part-time work before the accident, and no evidence of part-time employment offers that she was unable to accept.
Future Loss if Income
[71] There can be little doubt that Ms. Pisani has suffered a loss of competitive advantage.
[72] With the assistance of certain accommodation, she has maintained her employment at Science North. Although it was argued that the contract nature of her position makes her continued employment there fragile, I note that she has continued to be employed through the pandemic and has received regular promotions since the accident. The evidence of her supervisors is that she is a bright and talented individual who has a skill set that is of value to the employer. In my view, it is unlikely that her employment there will be terminated.
[73] However, her supervisors also indicated that her injuries have affected her potential for management positions. In particular, their evidence was that her irritability with co-workers and issues with punctuality make it unlikely she would receive a promotion to senior scientist in the future. That is a position to which she aspired and to which she appears to previously have been suited. It is a position that would typically pay her about $20,000 per year more than her present position.
[74] Quantifying the loss of competitive advantage is not a precise exercise. One cannot say with any confidence when management positions will become open, whether they will be for positions that would have been of interest to Ms. Pisani or whether she would have been awarded the position absent her injuries. However, she is a young woman with many working years ahead of her. There is a substantial likelihood that had she not suffered these injuries she would have advanced further in her employment and that she will suffer an economic loss as a result. In my view, a reasonable assessment of her loss of competitive advantage is $100,000. Given her regular promotions since the date of the accident, this loss is assessed as of today and would not attract pre-judgment interest.
Loss of Housekeeping and Home Maintenance Ability
[75] Although I am persuaded that Ms. Pisani is unable to do some of her household maintenance and housekeeping, I am not persuaded that her inability is as all-encompassing as has been suggested by her counsel.
[76] I accept that the chronic pain in her shoulder, made worse with physically repetitive motion, would make things like shovelling snow, mowing grass, and scrubbing quite difficult for her to undertake or tolerate. However, it strikes me that if she is able to go to the gym regularly, play some organized sports and travel fairly extensively, she should also able to do such things a cook for herself, wash her own dishes, dust, sweep, do her own laundry and tend to most all lighter household chores. This accords with what she is said to have reported to most of the experts whose evidence was provided.
[77] In my view, an average of two hours per week for fifty weeks per year would be sufficient to provide the assistance necessary to complete those heavier indoor and outdoor tasks. I am not persuaded that she should be compensated at $44.33 per hour for those services. Given that the work does not require a high degree of training and that minimum wage in Ontario is now $15.00 per hour, the sum of $25 per hour would be adequate. This amounts to $2,500 per year. The plaintiff will be entitled to damages to address this future loss to the age of 70, at which time it is likely that she would have been required to obtain this assistance in any event.
[78] In terms of past loss, this same means of calculation will provide adequate compensation to the plaintiff for the work done by her father. The Ontario Court of Appeal decision in McIntyre v. Docherty, 2009 ONCA 448 indicates that an award for such assistance may be made where there is sufficient evidence provided at trial to substantiate it. Mr. Pisani’s evidence of the assistance he has provided to his daughter support an award in this range. Past loss of housekeeping and maintenance is assessed at $2,500 per year for 6 years for $15,000 total.
Assistive Devices
[79] Jane Gobbo, a rehabilitation consultant, provided evidence on the various assistive devices that Ms. Pisani would benefit from having. Little evidence was provided by Ms. Pisani with respect to the various devices in question.
[80] In my view, most of the items listed by Ms. Gobbo are items one might reasonably expect to find in the home of a young, active professional regardless of whether an injury has been suffered. Accordingly, I would not expect any pecuniary loss for these items.
Out of Pocket Expenses
[81] Ms. Pisani advances a claim for out of pocket expenses she has paid towards her rehabilitation since the accident of $23,551.61. In support of those expenses she filed a number of documents which included various receipts and claims forms. Her counsel submitted that she has spent $32,396.88 but has been reimbursed or had amounts paid by her insurers of $8,845.27, leaving the balance owing to her of $23,551.61.
[82] There are several aspects of this part of the claim that trouble me. To begin with, at tabs 43 and 44 of the joint document brief, and admitted as business records, are a letter from counsel for Ms. Pisani’s accident benefits insurer along with a partial release indicating settlement of certain claims made by her totalling $20,599.28. Clearly, she was paid or had paid on her behalf far more that the $8,845.27 included in counsel’s calculations. Second, that settlement is for OCF claims that predated October 15, 2018 and yet Ms. Pisani’s documents include several OCF claims submitted after October 15, 2018 and for which no accounting is provided. Third, during cross-examination Ms. Pisani admitted that she had claims outstanding with her accident benefits insurer that may include claims for some of these expenses.
[83] On the evidence before me I am unable to determine what, if anything, is owing to Ms. Pisani for out of pocket expenses.
Costs of Future Care
[84] Counsel for the plaintiff says the plaintiff will continue to require a personal trainer, massage therapy, chiropractic treatment and psychotherapy until the age of 70. Using $5,000 as the approximate annual cost she has incurred for these services since the accident and accounting for a present value calculation, he suggested the sum of $150,000 is appropriate.
[85] In my view, an award is appropriate with respect to the personal trainer, massage therapy and chiropractic treatment. She has attended for these treatments regularly since the accident and they have provided welcome relief to her. As her injuries are permanent the continuation of these treatments is required to provide her relief into the future. They are recommended both by Dr. Marks de Chabris and by Jane Cobbo and as such I find them to be medically justifiable.
[86] With respect to the psychotherapy costs I am not satisfied, based upon the evidence before me, that they continue to be medically justifiable as they pertain to any impairment arising from the accident. It may well be that continued psychotherapy would be beneficial to Ms. Pisani, but it is clear from the records that in addition to issues arising out of the accident, the therapy has been directed to other such things as well- such things as work issues and relationship issues. The only evidence suggesting it continues to be required for accident-related issues are the reports of her psychotherapist and psychiatrist from January of 2018 which I consider to be not sufficiently recent to be of much value.
[87] Using plaintiff counsel’s method of calculation but reducing the annual costs by backing out the costs attributable to psychotherapy, the expected future annual costs of care would be $3,000 to age 70.
Conclusion
[88] The plaintiff’s injuries meet the threshold and she is entitled to the following damages:
a. General Damages of $80,000 (gross) plus prejudgment interest. b. Past loss of income of $941.31 plus prejudgment interest from March 1, 2016. c. Loss of competitive advantage of $100,000. d. Past loss of housekeeping and home maintenance of $15,000. e. Future loss of housekeeping and home maintenance of $2,500 per year to age 70. f. Costs of future care of $3,000 per year to age 70.
[89] If counsel are unable to agree on prejudgment interest, deductible, present value of future awards or any other issue, they may seek an appointment from the trial coordinator to meet with me. If the parties are unable to agree on costs, they may make written submissions to me, not to exceed five pages plus attachments each, within 45 days.
The Honourable Mr. Justice R.D Gordon Released: January 10, 2022