Court File and Parties

COURT FILE NO.: CV-13-489944 DATE: 20220420 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: DOMINIC NYARKO Plaintiff – and – AYAN M. ABSHIR Defendant

Counsel: Ryan M. Naimark, Counsel for the Plaintiff Sarah Reisler, Counsel for the Defendant

HEARD: March 29 to April 20, 2022

G. DOW, J.

Reasons for Decision - Threshold Motion

[1] The plaintiff brought this action for damages following a motor vehicle collision on October 4, 2011. The action proceeded to trial between March 29 to April 20, 2022.

[2] The plaintiff was a passenger in the rear passenger side of a vehicle owned by Comfort Antepim that was struck on the passenger side by the defendant’s Jeep. The defendant admitted liability for the collision but maintained it was a minor collision as evidenced by the damage to each vehicle at the contact points.

[3] The jury verdict of April 19, 2022 awarded Mr. Nyarko $38,000 for general damages, including loss of housekeeping capacity, $13,000 for past loss of income and zero for future loss of income.

[4] During deliberations, I heard submissions on whether the claim surpassed the verbal threshold under Section 267.5(5)(b) of the Insurance Act, R.S.O. 1990, c. I. 8 and that the action for general damages ought to be dismissed.

[5] Briefly, Mr. Nyarko gave evidence that following the accident he was no longer able to work at his job. This involved picking up and driving six person crews to various locations to clean those premises. He was employed by Prime-Time Multi Services. Pay stubs were produced and marked as an exhibit indicating he was earning $11.00 per hour and working about 40 hours per week. He generally worked 11:00 pm to 5:30 or 6:00 am during the week.

[6] Mr. Nyarko also allegedly assisted a friend “Jimmy” with picking up and delivering scrap metal bins and delivering Globe & Mail newspapers. He admitted returning to accompany Jimmy in his vehicle some weeks following the accident. While he denied returning to any other work, banking statements in the Ontario Works file indicated he was regularly making almost weekly cash deposits of up to about $845.00 beginning in 2013 until August. At this time, he suffered a stroke.

[7] The stroke was likely caused by poorly controlled hypertension which existed before the car accident and appears to have been a result of Mr. Nyarko’s inability to afford the required medication. He has not worked since.

[8] Investigation of his post-car accident, complaints of neck, back and right shoulder pain led to a referral to Dr. Picard, a neurologist. That referral led to the eventual diagnosis of cervical myelopathy or narrowing of the bone around the spinal cord such that the signals from the brain are compromised. This can cause pain and an abnormal stance and gait.

[9] Mr. Nyarko was referred to a neurosurgical team at Toronto Western hospital led by Dr. Fehlings after the stroke. They recommended surgery involving decompression, instrumentation and fusion of the spine in the C3-T1 levels. While the pre-surgery MRI was completed on November 19, 2017, the surgery has yet to be scheduled.

[10] The plaintiff called Dr. Manu Mehdiratta, a neurologist, who opined the car accident rendered the cervical myelopathy symptomatic and was both a permanent injury and a serious impairment to Mr. Nyarko’s neurologic function.

[11] Similarly, Dr. Getahun, an orthopedic surgeon called by the plaintiff, opined the injury to the neck was a myofascial soft tissue, flexion and extension injury which became chronic and was superimposed on the now symptomatic cervical myelopathy which was a serious impairment to an important physical function. It was also permanent.

[12] To the contrary, the defendant relied on the assessment and opinions of Dr. Neil Finkelstein, spinal surgeon. He opined that the cervical myelopathy was mild and subtle and would not improve with surgery. Further, given the absence of clinical abnormalities, it should not be surgically repaired. He speculated that was why the surgery had not proceeded.

[13] Dr. Finkelstein opined the plaintiff had suffered an uncomplicated soft tissue sprain and strain which resolved without impairment or an inability to work in the six to eight weeks following the accident.

Analysis

[14] In my view, as suggested by the cases referred to by the parties, the questions to be addressed are set out by Regional Senior Justice Firestone in Malfara v. Vukojevic, 2015 ONSC 78 which are:

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

b) if yes, has the function which is permanently impaired an important one; and

c) if yes, is the impairment of the important function serious?

[15] It is clear that permanent impairment here of a physical function must be considered to have started with the tort committed by the defendant in the motor vehicle accident. It must continue to the time of trial and not be expected to improve or resolve. There should be evidence that it is expected to continue indefinitely. It is also clear there need not be objective findings as chronic pain, as stated by Mr. Nyarko’s family physician, Dr. Ampofo and Dr. Getahun can be subjective and behavioural. This can meet the requirements for permanence for the purpose of the verbal threshold. Mindful of the jury’s verdict, as finders of the facts, it is not difficult to conclude that Mr. Nyarko’s had complaints related to the motor vehicle accident after it occurred. However, in light of the jury’s assessment of general damages in an amount much closer to the range put to them by counsel for the defendant than the range suggested by counsel for the plaintiff, it is even more difficult to conclude that there has been serious impairment to an important function.

[16] More precisely, mindful of Mr. Nyarko’s apparent ability to deposit regular cash amounts into the bank account held jointly with his spouse, the clear inference is that he had returned to working at something for which he was being paid before the stroke. He did not admit to this at the trial. As a result his credibility was in question. Under Section 4.2(1)(i) of Ontario Regulation 381/03, the impairment from Mr. Nyarko’s neck and back pain did not “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” as the regulation requires.

[17] I have the same concerns identified by Dr. Finkelstein and apparently accepted by the jury. I conclude Mr. Nyarko has not sustained permanent impairment of a physical, mental or psychological function as a result of the motor vehicle accident of October 4, 2011. As a result, it is not necessary to answer the second or third questions.

[18] I conclude the plaintiff has failed to discharge his onus of proof on a balance of probabilities that his claim for general damages surpasses the requisite verbal threshold and it is thus dismissed.

[19] I would also note the fact the current and applicable deduction that would apply to the award, being less than $138,343.86, under section 265.5(8.3) of the Insurance Act, supra, would be $41,503.50 and has resulted in a net recovery of zero under this head of damage regardless.

Mr. Justice G. Dow

Released: April 20, 2022