ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NATALIE PARKINSON
Plaintiff
– and –
BRIAN SHERMAN and BRIAN LEILA and FAIR CLAIMS CONSULTANTS INC. and FAIR CLAIMS CONSULTANTS CORP.
Defendants
Ariane Wiseman and Nergiz Sinjari, for the Plaintiff
Fabian Otto and Brian Sherman, for the Defendants
HEARD: January 27, 28, 29, February 1, 2, 3, 4, 5, 8, 9, 10, June 22, and August 23, 2021
J. STEELE J.
Introduction
1The plaintiff, Natalie Parkinson, brings this action for professional negligence, breach of contract, negligent misrepresentation and breach of fiduciary duty against the defendants, Brian Sherman, Brian Leila, Fair Claims Consultants Inc. (“FCCI”) and Fair Claims Consultants Corp. (“FCCC”).
Overview
2The events culminating in this litigation began more than two decades ago. Ms. Parkinson was involved in two accidents in 2001. The first was a car accident in which she sustained a whiplash injury. The second was an incident when she was struck by her then-boyfriend’s car. She was quite seriously injured in the second accident, suffering an open tibia fracture and requiring emergency surgery.
3The presumptive limitation period in respect of both of these accidents has long since expired.
4Ms. Parkinson retained one or more of Mr. Leila, Mr. Sherman, FCCI and FCCC in respect of the First Accident (defined below) and claims to have retained one or more of them in respect of the Second Accident (defined below). Her position is that they failed to preserve the limitation periods for her accident benefits and tort claims and failed to advance her claims, which caused her damages.
5The defendants take the position that Ms. Parkinson is statute-barred with respect to her claims against them.
6The defendants, FCCI and Mr. Leila, were retained in respect of the First Accident. However, they argue that there was no negligence in their representation of Ms. Parkinson. In the alternative, they argue that Ms. Parkinson’s injuries in respect of the First Accident do not meet the threshold set out in section 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Insurance Act”).
7The defendants’ position is that they were not retained by Ms. Parkinson in respect of the Second Accident.
8For the reasons set out below, the plaintiff’s claims are dismissed, essentially for the reasons argued by the defendants:
a. First Accident: (i) her injuries do not meet the Insurance Act threshold; and (ii) the claims are statute barred, and
b. Second Accident: (i) the defendants were not retained; and (ii) the claims are statute barred.
Background
9Back in 2001, Mr. Sherman and Mr. Leila worked together out of offices at 222 Dixon Road, Toronto, Ontario. Mr. Leila was an accident benefits consultant. Mr. Sherman also worked as a consultant. At that time, Mr. Sherman was a lawyer under administrative suspension from the Law Society of Upper Canada (the predecessor to the Law Society of Ontario) (“LSUC” or “LSO”).
10FCCC is an active Ontario corporation. It was incorporated on February 28, 2007. The corporation profile report lists Brian Sherman as the director. The registered address for the corporation is 222 Dixon Road, Suite #208, Toronto, Ontario. Mr. Sherman’s testimony regarding FCCC was that he incorporated the company in 2007 but never did anything with it.
11FCCI was an Ontario private corporation, whose charter lapsed several years ago. FCCI was incorporated on June 15, 2000.
12On or about October 3, 2001, Ms. Parkinson was involved in a motor vehicle collision (the “First Accident”). At the time of the collision her then-boyfriend, Damian Martin, was driving the car and Ms. Parkinson was a passenger in the front seat. The car was rear-ended by a third party. Ms. Parkinson sustained soft tissue injuries. She was diagnosed with a whiplash associated disorder, level one.
13At the time of the First Accident, Ms. Parkinson was 22 years old and had a grade 10 education. She was living with Mr. Martin, in the basement apartment of his family’s home in Toronto. Her six year old son was living with Ms. Parkinson’s mother in Montreal.
14Following the first accident, Ms. Parkinson and Mr. Martin met with Mr. Leila, an accident benefits consultant, to discuss their potential claims.
15On or about October 12, 2001, Ms. Parkinson entered into a Retainer and Authorization document with FCCI, dated October 12, 2001, in respect of the First Accident (the “FCCI Retainer”). Although Ms. Parkinson testified that she did not meet Mr. Sherman until after the Second Accident, I am satisfied based on the evidence that she met Mr. Sherman on October 12, 2001 when this document was executed. The FCCI Retainer refers to Brian Sherman and FCCI but does not refer to Mr. Leila.
16Mr. Leila filed the Application for Accident Benefits form (OCF-1) in respect of the First Accident. He was listed as Ms. Parkinson’s representative on the document. His relationship to the applicant, Natalie Parkinson, is noted as consultant. In the margin beside where Mr. Leila’s name and address are listed, the words “Fair claims consultants” are written.
17Shortly after the First Accident, Ms. Parkinson was in another accident. On December 12, 2001 Mr. Martin drove into her, pinning her leg against a fence or wall (the “Second Accident”). While there are significant facts in dispute regarding the Second Accident, what is clear is that Ms. Parkinson was seriously injured, and suffered an open fracture of her tibia. She required emergency surgery for the injury and had a metal plate and screws inserted into her leg.
18There was no OCF-1 sent to TD Insurance in respect of the Second Accident.
19Ms. Parkinson’s statement of claim in this action was issued on August 9, 2012.
20Following consultation with legal counsel, Ms. Parkinson received an accident benefits settlement in or around 2015 in the amount of $5,000 in respect of the First Accident and approximately $75,000 for the Second Accident. She also received approximately $74,000 from Société de l’assurance automobile Québec (“SAAQ”) for caregiver benefits and impairment benefits.
Witnesses at Trial
21Ms. Parkinson was the first witness at trial. She was generally consistent and straightforward when talking about the injuries she suffered in the Second Accident and the continuing pain in her leg. However, on the whole I did not find her to be a reliable witness. I do not accept her version of events for the Second Accident. As discussed below, there is significant documentary evidence shortly after the Second Accident that contradicts the version of events she presented at trial. This is important because I have found that the Second Accident was intentionally caused by her then-boyfriend and that she was terrified of him. She was scared enough that despite having spoken with the defendants, she did not retain them in respect of the Second Accident.
22Ms. Parkinson was frequently evasive. She changed her account of events from prior statements. She took the position that documented statements made by others closer in time to the Accidents were incorrect, misunderstandings or mistakes. The following are a few examples of many:
a. There is letter to Dr. M. Lauzus, dated November 9, 2001 (prior to the Second Accident), from A. Mossanen at Dixon Rehabilitation Centre. In the letter he stated “[Ms. Parkinson] has personal problems with regards to the support she gets from her boyfriend. There is a suspicion on her part that her boyfriend is having other relationships, although he denies it”. When asked about this at trial, Ms. Parkinson’s response was that it was “incorrect” and Mr. Martin “was too attentive to me” to have been cheating.
b. In the June 21, 2006 SAAQ decision related to the Second Accident, a statement reports that Ms. Parkinson had consulted an attorney in Montreal in late 2005 and was informed that the lawyer could not take on her case. When asked about this at trial Ms. Parkinson stated that she never consulted a lawyer about anything other than the SAAQ application and that maybe the SAAQ “misunderstood what she was saying”.
c. Ms. Parkinson stated that no one at TD Insurance would speak with her when she called. However, there were numerous documented TD notes to file that were put to Ms. Parkinson in cross examination. When faced with the TD records, Ms. Parkinson indicated that she did not have the documented conversations with the TD representatives and that these documents were not true.
23Ms. Parkinson also called Adam Wagman, who is a partner at the law firm Howie, Sacks & Henry LLP. Howie, Sacks & Henry LLP had been retained by Ms. Parkinson to investigate whether or not there was any negligence on the part of Brian Sherman or FCCC/FCCI. The original point of contact at Howie, Sacks & Henry LLP was George Pappas, a witness called by the defendants. However, when Mr. Pappas left Howie, Sacks & Henry LLP, Mr. Wagman assumed carriage of the file and authored the opinion letter to Ms. Parkinson. Mr. Wagman was an honest, knowledgeable and impartial witness. I have given significant weight to his evidence.
24Another witness for Ms. Parkinson was Donald Kwan. Mr. Kwan works at the Law Society of Ontario as the manager of membership services. He has been in this role since April 2012. The defendants had objected to the calling of Mr. Kwan as a witness. The parties provided written submissions and made oral submissions on the issue. I gave an oral decision at the trial. I determined that Mr. Kwan could testify for the limited purpose of setting out what the guidelines were for lawyers and suspended lawyers. However, I declined to allow Mr. Kwan to testify about prior decisions of the Law Society of Ontario related to Mr. Sherman. I made this decision on the basis that it was similar fact evidence, which is presumptively inadmissible, and the plaintiff was unable to satisfy the court that the probative value of the evidence outweighs its potential prejudice.
25Ms. Parkinson called Dr. Kaminker as an expert. Dr. Kaminker is an orthopedic surgeon who currently works at the Centenary Campus of Scarborough Hospital. He has worked there for about 20 years. Prior to that he completed his subspecialty training in lower and upper extremity reconstruction at St. Michael’s Hospital. Dr. Kaminker had been retained to do an independent orthopedic medical assessment of Ms. Parkinson. He performed a physical examination of Ms. Parkinson and produced a report. At the request of the defendant, a voir dire was held to determine whether the plaintiff could call Dr. Kaminker as a Rule 53 expert. The defendants acknowledged that Dr. Kaminker has the necessary qualifications as an orthopedic surgeon to give expert evidence. However, their primary concern was that Dr. Kaminker’s factual foundation was based on discussions with Ms. Parkinson. At the trial I gave an oral ruling accepting Dr. Kaminker as an expert with special knowledge able to assist the trier of fact. I found Dr. Kaminker to be a helpful witness in understanding the injuries Ms. Parkinson suffered from the Second Accident.
26Brian Sherman and Brian Leila gave evidence. Both of them stated that their memories improved over time with regard to this matter, as they have been immersed in this litigation. I have a very hard time with this position, as generally memories fade over time. The Accidents in question happened more than twenty years ago. The lawsuit was launched 9 years ago. There has been a significant passage of time and I have doubts regarding the reliability of their recall evidence.
Issues
27This trial had numerous issues, some of which were addressed in motions before, during and after the trial. The issues addressed in this decision are:
a. Are Ms. Parkinson’s claims statute-barred?
b. What was the nature of Ms. Parkinson’s retainer of the defendants?
c. Did the defendants owe Ms. Parkinson a duty of care in respect of the Accidents?
d. If so, what was the standard of care owed by the defendants to Ms. Parkinson?
e. Was there a breach of that standard of care by the defendants?
f. If so, what are Ms. Parkinson’s damages?
g. Has Ms. Parkinson sustained a permanent serious impairment of an important physical, mental or psychological function pursuant to section 267.5(5) of the Insurance Act?
Limitations Act
28The defendants submit that Ms. Parkinson’s claim was made outside the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Ms. Parkinson’s claim was made almost nine years after the presumptive limitation date of December 12, 2003 expired (two years after the Second Accident and no statement of claim having been issued).
29The Limitations Act provides in section 4 that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
30Section 5(1) of the Limitations Act provides that a claim is discovered on the earlier of
a. the day on which the person with the claim first knew,
i. that the injury, loss or damage had occurred,
ii. that the injury, loss or damage was caused by or contributed to by an act or omission,
iii. that the act or omission was that of the person against whom the claim is made, and
iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b. the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in in clause a.
31In Clarke v. Sun Life Assurance Company of Canada, 2020 ONCA 11, 149 O.R. (3d) 433, at para. 20, the Court of Appeal, considering the elements set out in section 5(1)(a) of the Limitations Act, stated:
Section 5(1)(a) identifies the four elements a court must examine cumulatively to determine when a claim was “discovered”. When considering the four s. 5(1)(a) elements, a court must make two findings of fact:
(i) The court must determine the “day on which the person with the claim first knew” all four of the elements. In making this first finding of fact, the court must have regard to the presumed date of knowledge established by s. 5(2): “A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved”; and
(ii) The court must also determine “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the four elements identified in s. 5(1)(a).
Armed with those two findings of fact, s. 5(1) then requires the court to compare the two dates and states that a claim is discovered on the earlier of the two dates: see Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-35.
32The two-year period does not start to run until the plaintiff is aware of all the elements in paragraphs 5(1)(a)(i) to (iv) or until a reasonable person with the abilities and in the circumstances of the plaintiff, first ought to have known of them. Under section 5(2) of the Limitations Act, the person with the claim is presumed to know of the matters set out in section 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. The onus is on the claimant to prove, on a balance of probabilities, that the claim was “discovered” after that date.
33As stated by the court in Kenderry-Esprit (Receiver of) v. Burgess, MacDonald, Martin and Younger (2001), 2001 28042 (ON SC), 53 O.R. (3d) 208 (S.C.), at para. 19: “The date upon which the plaintiff can be said to be in receipt of sufficient information to cause the limitation period to commence will depend on the circumstances of each particular case.”
34Just prior to oral closing arguments, the plaintiff brought a motion to amend her statement of claim to add certain provisions regarding discoverability. Prior to this motion the plaintiff had not filed a reply alleging that discoverability applied to her late filing of the statement of claim against the defendants. I allowed her to amend her statement of claim to include discoverability. However, I limited her position on discoverability. The plaintiff had sought to amend her statement of claim to plead that she did not discover her claim until she received her file from TD (the “TD File”). I stated, at para. 29:
“This is one of those rare instances where all the amendments sought by the plaintiff should not be permitted. The plaintiff can amend her statement of claim to plead discoverability and can amend her statement of claim to include her alternate position [that the limitation period commenced on the receipt of Adam Wagman, Howie, Sacks and Henry LLP’s letter dated August 16, 2010], as these were known, but cannot amend her statement of claim at this juncture to plead that she did not discover her claim until she received her TD file. This is a new position and it would be extremely prejudicial to the defendants at this stage to allow that amendment. The defendants based their discoveries, their cross-examinations, their witnesses, etc. based on the plaintiff’s known position with regard to discoverability. The trial of this matter took ten days and all the evidence has been introduced. Neither an adjournment nor costs can rectify this.”
35Accordingly, Ms. Parkinson’s position is that she did not discover her claims against the defendants for purposes of the Limitations Act until she received the letter from Adam Wagman, dated August 16, 2010. The defendants argue that Ms. Parkinson knew or ought to have known of her loss and potential claim by around 2005. The presumptive limitation period expired on or about December 12, 2003 (two years from the Second Accident and no statement of claim in tort having been filed) and based on section 5(2) of the Limitations Act, Ms. Parkinson has the onus of proving that the claim was discovered after that date.
36After Ms. Parkinson moved to Montreal in 2002, there was little to no communication between the parties for some time. The defendants say this is because Ms. Parkinson fled to Montreal and did not provide any forwarding information. Ms. Parkinson says that there was some correspondence by telephone but that the defendants were not responsive. In any event, when Ms. Parkinson spoke with Mr. Leila in or around 2004, he provided her with the information from TD Insurance, including her TD claim number. Ms. Parkinson said that when she called TD Insurance, they would not speak with her and hung up on her. This is not consistent with the numerous file notes from TD insurance, which were made contemporaneously with the calls:
a. TD file note, dated March 29, 2005 (TD adjuster K. Jones): “Called claimant - Natalie Parkinson - Explained issues involved with this matter. Advised that she has two significant issues: (1) Proscription (2) Intentional Act. She is not happy with our position. I advised that she should speak with her solicitor regarding the matters I just went over. She will.” [emphasis added.]
b. TD file note, dated March 21, 2005 (TD adjuster K. Jones): “She advises that no settlement has ever been reached in this or the preceding MVA. Her lawyer will not return her calls. I asked why the delay in following up on this matter. She advises that she continuously attempted to reach her lawyer but he would never call her back. Eventually she got fed up and called us directly.”
c. TD file note, dated March 17, 2005 (TD adjuster A. Szydlik): “[Third party] Natalie called in to advise that on December 20th 2001 her boyfriend at the time (insd: Damian Martin) drove his vehicle over her. [Third party] advised the reason insd drove into her was because she found out insd was cheating on her and she confronted him. [Third party] advised that insd dragged her of his [vehicle] and drove into [her].”
37There are records of some activity and correspondence pertaining to the Accidents and Ms. Parkinson’s potential claims in and around 2004 to 2006. Ms. Parkinson received correspondence from Mr. Sherman in 2004 and 2005 regarding her potential claims related to the Accidents. The 2004/2005 FCCI Letters (defined below) were received by Ms. Parkinson both before and after the file notes from TD Insurance. After receiving the June 5, 2005 Letter (defined below), Ms. Parkinson claims she called Mr. Sherman right away, but was not advised of the limitations issue. Her evidence was that she last spoke with Mr. Sherman in 2005 and then after that he would never return her phone calls. There is no doubt that Ms. Parkinson was informed by TD Insurance of the limitations issue related to her claims in respect of the Accidents. It is probable that there was telephone correspondence with Mr. Sherman regarding the statement of claim and the money required to issue it around the time of the 2004/2005 FCCI Letters, but this would have occurred in or around 2005.
38Ms. Parkinson’s evidence was that she spoke with family and friends about not being able to reach Mr. Sherman and they told her to keep trying and to apply for benefits through SAAQ. When Ms. Parkinson applied to SAAQ in 2006, she stated in her application that her consultant in Toronto was “giving her the runaround” and that she believes she was “misguided on information for the last 4 years”. She also stated that she had “not heard from [the consultant in Toronto] in the last 1 ½ years so [she] was told to go to the SAAQ for help”. From the SAAQ documents, it appears that Ms. Parkinson consulted a lawyer in Quebec before reaching out to SAAQ, as the SAAQ review decision stated that “[w]hen [Ms. Parkinson] consulted an attorney in Montréal in late 2005, she was informed that this individual could not take on her case, but that she could try to file a claim with the SAAQ”. Ms. Parkinson’s evidence at trial was that maybe they had misunderstood. Ms. Parkinson also had a lawyer in Québec who assisted with her application for review of the SAAQ decision.
39Ms. Parkinson indicated that a friend suggested that she call Howie Sacks & Henry, which she did in April 2010. She made an appointment and met with George Pappas, a lawyer working at Howie, Sacks & Henry LLP at the time. Mr. Pappas left employment with Howie Sacks & Henry on or about July 7, 2010 and Ms. Parkinson’s file was transferred to Adam Wagman.
40Ms. Parkinson claims that she became suspicious that there may have been an issue in the defendants’ handling of her file when she received the letter from Adam Wagman. Prior to that time, when the evidence was that she was calling other lawyers and the LSUC, Ms. Parkinson indicated that she was just trying to track down Mr. Sherman. Ms. Parkinson stated that she went to Howie, Sacks & Henry to try to find Mr. Sherman. I find this completely unbelievable in the face of the other evidence at trial.
41Further, Mr. Wagman indicated that Howie, Sacks & Henry was retained to investigate whether there was negligence by FCCI or Brian Sherman. The letter from Adam Wagman to Ms. Parkinson, dated August 16, 2010, stated that “[y]ou retained [Howie, Sacks & Henry] to investigate whether or not there was any negligence on the part of Brian Sherman or Fair Claims.” In reference to the limitation period for her potential claim against the defendants, the letter further stated “[i]t sounds like you also got some advice along the way that the limitation period had expired.” Docket entries from Howie, Sacks & Henry LLP were provided which speak of paralegal negligence, although it is not clear whose dockets they were.
42When asked at trial whether his firm was retained to tell Ms. Parkinson where Mr. Sherman was located (as claimed by Ms. Parkinson), Mr. Wagman gave the following evidence:
“No. That would… not have been my understanding. I, again, have to repeat that I’m not sure that I ever spoke with Ms. Parkinson directly. And, so going by the documents that I had in my possession at that time, I understood that we were being retained to give the opinion that I ultimately gave, which related to …the negligence that was alleged that… you had committed, Mr. Sherman. And any appropriate limitation period in… that respect, including limitation period related to the … accident itself.”
43Ms. Parkinson’s claim was issued on August 9, 2012. She called Howie, Sacks & Henry LLP in April 2010 and met with George Pappas in May 2010. The letter from Mr. Wagman to Ms. Parkinson was dated August 16, 2010.
44Ms. Parkinson’s claim against the defendants in negligence is based on her position that they failed to take steps to protect her and, among other things, did not issue her statement of claim in respect of the Accidents in a timely manner. She would have known in 2005 that there had not been a statement of claim filed with the court in respect of the Accidents and that the defendants had failed to do this on her behalf. The 2004/2005 FCCI Letters were clear that no statement of claim had been filed. Ms. Parkinson and Mr. Sherman had at least one telephone conversation regarding the filing fee required for the statement of claim, which was never provided to Mr. Sherman. By the time she went to Howie, Sacks & Henry LLP it had been more than five years since Mr. Sherman had requested the filing fee to issue the statement of claim. She was aware that the defendants had not done anything further in respect of her Accident claims, as she stated on different occasions to different persons that her consultants were giving her the runaround or not returning her calls. She also was aware by sometime around 2005 of limitations being a potential hurdle at law, as evidenced by:
a. Her conversations with TD, where she was certainly alerted to the limitations issue regarding her claims for the Accidents; and
b. Her proceedings with SAAQ, which initially faced limitations issues.
45Sometime between 2005 and April 2010, Ms. Parkinson knew or ought to have known that a proceeding against the defendants would be an appropriate means to seek to remedy this omission.
46I am satisfied that Ms. Parkinson went to Howie, Sacks & Henry because she was aware at that time of all of the elements in section 5(1) of the Limitations Act and she was seeking legal assistance to pursue a claim in negligence against the defendants. While the precise date when all of the elements were met cannot be determined based on the evidence, it is clearly sometime prior to when she went to see Howie, Sacks & Henry LLP. Ms. Parkinson knew about the potential limitation issue related to her claims for the Accidents (see, for example, the reference to proscription on the TD file note, dated March 29, 2005, and the reference in Mr. Wagman’s letter to Ms. Parkinson having received advice along the way that the limitation period had expired), and that the defendants had not filed her statement of claim in respect of the Accidents, or done anything further. She knew that as a result of this, she would not be able to claim in tort or otherwise in respect of the Accidents. Based on the evidence at trial, it is likely that she went to Howie, Sacks & Henry LLP to take action against the defendants. Mr. Wagman’s letter stated that it was “[his] opinion that there is nothing that [Howie, Sacks & Henry LLP] can do to assist you in your claim against Mr. Sherman for not pursuing an action against the at-fault party arising from your car accident.”
47Ms. Parkinson is presumed to know of the matters referred to in clause 5(1)(a) of the Limitations Act on the day the act or omission on which the claim is based took place, unless the contrary is proved (section 5(2), Limitations Act). Ms. Parkinson has failed to prove on a balance of probabilities that the claim was only discovered when she received the letter from Mr. Wagman. Accordingly, she is presumed to know of all four of the elements in clause 5(1)(a) on or about December 12, 2003.
48Further, a reasonable person in her circumstances certainly ought to have known of the matters set out in section 5(1)(a) of the Limitations Act prior to when Ms. Parkinson retained Howie, Sacks & Henry LLP. Prior to Ms. Parkinson retaining Howie, Sacks & Henry LLP, many years had passed since the Accidents, she had consulted other counsel and had received “advice along the way that the limitation period had expired”, the defendants were “giving her the runaround”, and TD Insurance had discussed limitations with her related to the Accidents. I am satisfied that prior to the time Ms. Parkinson sought assistance from Howie, Sacks & Henry LLP, Ms. Parkinson certainly ought to have known all of the elements set out in section 5(1) of the Limitations Act.
49I find therefore that the claims against all the defendants are statute-barred.
What was the nature of Ms. Parkinson’s retainer in respect of the First Accident?
50As set out above, Ms. Parkinson entered into the FCCI Retainer in respect of the First Accident. The FCCI Retainer is entitled “Retainer and Authorization Fair Claims Consultants Inc.”. It sets out the terms of Ms. Parkinson’s retainer of FCCI and specifically refers to Brian Sherman. Based on the documentary evidence I am satisfied that the defendants FCCI and Mr. Sherman were retained by Ms. Parkinson in respect of the First Accident. The defendants, Brian Leila and FCCI, admit that they were retained by the plaintiff in respect of the First Accident.
51The FCCI Retainer, signed by Ms. Parkinson on October 12, 2001, provides:
I, the undersigned, hereby authorize Fair Claims Consultants Inc. and whomsoever they direct to be my agents in dealing with the applicable automobile insurance company (ies), the Financial Services Commission of Ontario and the Courts for the conduct of collection, mediation, arbitration or other necessary proceedings, (where applicable), with regard to my motor vehicle accident claim arising from an accident on Oct. 3/2011 and all insurance entitlement I have as more particularly set forth in the Statutory Accident Benefit Schedule and any other rights or benefits applicable as a result of this motor vehicle accident.
This authorization is not to be deemed an assignment of any rights I may have pursuant to the Statutory Accident Benefits Schedule, Fair Claims Consultants Inc. has been retained to act as my representative, as specifically set out in this authorization, regarding any disputes that may arise in regards to my entitlements set forth in the Statutory Accident Benefits Schedule and consultant and agent with respect to any third party or tort claims.
I hereby authorize Fair Claims Consultants Inc. to commence and conduct, on my behalf, any mediation, arbitration or court proceedings, which may be necessary to protect my right to entitlements. Fair Claims Consultants Inc. are hereby authorized to make binding decisions on my behalf with regards to the above-mentioned disputes.
I understand that neither Brian Sherman nor Fair Claims Consultants Inc. is a barrister and solicitor and further understand and acknowledge that Brian Sherman and Fair Claims Consultants Inc. may also, in other cases represent some of my treatment providers or assessors.
For the above this shall be your good and sufficient authority. [emphasis added]
What was the nature of Ms. Parkinson’s retainer of the defendants in respect of the Second Accident?
52Sometime shortly after the Second Accident, Ms. Parkinson met with Mr. Leila. Mr. Leila directed Ms. Parkinson to Mr. Sherman in respect of the Second Accident due to the complexity of the matter.
53There are conflicting accounts of what was said at these meetings and whether the defendants were retained by Ms. Parkinson. The defendants deny ever being retained by Ms. Parkinson in respect of the Second Accident. Ms. Parkinson says she retained the defendants in respect of the Second Accident and signed papers in this regard. However, Mr. Pappas’ new client notes taken when he was at Howie Sacks & Henry LLP states “no retainer signed”. Ms. Parkinson’s evidence was that the person taking down the information at Howie Sacks & Henry LLP must have misinterpreted. Mr. Pappas was called by the defendants at trial. Although Mr. Pappas conceded that it was possible he may have made an error in writing down “no retainer signed”, it seems far more likely to me, given the other evidence surrounding the Second Accident (discussed below) and the lack of any retainer agreement in respect of the Second Accident, that he did not make an error when he made the notation “no retainer signed” at the time of his meeting with Ms. Parkinson.
54Mr. Sherman and Mr. Leila both testified that Ms. Parkinson told them that she and Mr. Martin had a serious argument in the car in the driveway of their home at the time. This allegedly culminated in Mr. Martin dragging Ms. Parkinson out of the car and intentionally driving the car into her and threatening her life if she told anyone or reported the incident. They testified that when she met with each of them, they implored her to go to the police to report the incident but that she refused, stating that she was scared for her life. They both testified that Ms. Parkinson was adamant that there be no reporting to anyone of the Second Accident if it would get back to Mr. Martin. They both testified that Ms. Parkinson was clear that they were not to do anything with regard to the Second Accident.
55Ms. Parkinson, on the other hand, in respect of the Second Incident, testified that she and Mr. Martin had had an argument in the car but had made up and hugged. She further testified that after she got out of the car he unintentionally drove the car into her, pinning her against the wall. Ms. Parkinson’s evidence was that “as [she] was coming out of the car to go towards the house, all [she] could remember is that [she] was pinned up against the wall. How? I don’t know but I was just pinned up against the wall”. The neighbour heard the fighting or screaming and said she was calling the police. Ms. Parkinson’s evidence was that Mr. Martin threatened to kill her if she said anything to the police.
56Ms. Parkinson testified that at the meeting with Mr. Sherman she provided him with the background on the Second Accident and that he informed her that the accident was worth over $1 million and would be covered under Mr. Martin’s insurance. She testified that her understanding was that Mr. Sherman was going to guide her through the claim process.
57Based on the evidence presented at trial, I am satisfied on balance that Ms. Parkinson was intentionally struck by the car driven by her then-boyfriend. This evidence includes:
a. In the telephone intake form for Howie, Sacks & Henry LLP, there are notes on it, including “intentional tort”, “ex-boyfriend hit her with car, ran her over”, and in response to the question of “was def. [defendant] charged?”: “NO she was too afraid of him @ time. Moved away to Montreal. Police did attend @ scene”.
b. In her claim for compensation for SAAQ benefits in Quebec, dated March 10, 2006, in her handwriting, Ms. Parkinson gave the following account of the Second Accident: “The Driver of the car was my boyfriend, we got into an [argument]. He got into his car and [drove] towards me. Intentionally hitting me with the front end of the car leaving me with my right leg braking [sic].” On that same form, Ms. Parkinson noted that the accident occurred as the result of a criminal act. When asked about this at trial Ms. Parkinson’s response was that she was in a “very dark place” and Mr. Martin “was there for [her]”.
c. In the SAAQ decision, allowing Ms. Parkinson’s claim for compensation even though it had been filed more than three years after the accident had occurred, it stated: “A period of 5 to 6 months had elapsed because she feared for her life at the time. She was apprehensive about discussing the accident or what had happened to her”. When asked in cross examination, Ms. Parkinson stated that she did not deny having told SAAQ that she feared for her life at the time.
d. In her application to the Criminal Injuries Compensation Board, dated August 9, 2010, Ms. Parkinson stated that the reason for the delay in reporting the incident was “because [she] was afraid for [her] life he told [her] he would kill [her] if [she] told the Police”. On the form she ticked off the type of crime as being a domestic assault, although her evidence on re-examination was that this was only because Mr. Martin “verbally assaulted her with words”.
e. In various TD notes, including the TD notes, dated March 17, 2005 (TD Adjuster A. Szydlik) and March 21, 2005 (TD Adjuster K. Jones), the description of the Second Accident and Ms. Parkinson’s fear of Damian Martin closely align with the defendants’ recollection. For example, in the March 21, 2005 TD note, the following was noted: “Claimant - N. Parkinson. Claimant called - she advises that she was involved in an incident in December 2001 in which her and insd [insured] were arguing in vehicle when he told her to get out of car. She refused and insd [insured] then started hitting her and dragged her out of the car by her hair. Insd [Insured] then drove vehicle into her pinning her against a fence. Resulted in claimant fracturing her right leg. Insd [Insured] apparently threatened to hurt claimant if she told anyone what had happened. Thus claimant never reported this matter to police. Claimant was involved in an MVA in October 2001 in which both her and boyfriend were rear-ended. Both suffered whiplash.” When Ms. Parkinson was asked why more than one TD claims adjuster would have recounted the Second Accident in their notes in this manner, Ms. Parkinson’s response was that they must have misinterpreted what she said, or there were inaccuracies or she did not speak with that particular claims adjuster.
58As I mentioned above, I did not find Ms. Parkinson, Mr. Leila or Mr. Sherman to be particularly reliable witnesses. However, because Mr. Leila’s and Mr. Sherman’s versions of events are supported by documents, including documents created much closer to the time of the Accidents, I find on a balance of probabilities that Ms. Parkinson was intentionally struck by her then-boyfriend and was very afraid of him at the time.
59In the spring of 2002, Ms. Parkinson moved to Montreal, where her son was living with Ms. Parkinson’s mother. I am satisfied that Ms. Parkinson made this move as she was scared following the incident with Mr. Martin. Although Ms. Parkinson stated that she was not afraid of Mr. Martin and did not flee to Montreal to get away from him, the documents that were created closer in time with the events strongly suggest that she did.
60Ms. Parkinson testified that she spoke with Mr. Sherman before moving to Montreal and provided him with her mother’s address and contact information. Mr. Sherman and Mr. Leila testified that she disappeared and they did not know her new contact information. As I conclude below that there was no retainer in respect of the Second Accident, it is not necessary for me to make a factual finding on the issue of whether she provided her contact information or not.
61While there was a written retainer agreement in respect of the First Accident, there was no written retainer agreement in respect of the Second Accident. The defendants’ position is that this is because they were never retained by Ms. Parkinson in respect of the Second Accident. Their evidence was that she was terrified of Damian Martin and would not proceed with any action or claim if he was to be informed through the insurer. As Mr. Martin was the insured, the defendants informed Ms. Parkinson that he would be notified if any steps were taken. Not only is there no written retainer agreement, there is no evidence of the defendants taking any steps on Ms. Parkinson’s file in respect of the Second Accident, such as filing an OCF-1 or other information with TD Insurance on her behalf.
62Mr. Sherman destroyed all of FCCI’s documents approximately seven years after matters were closed. Ms. Parkinson’s file was destroyed in approximately 2009. Mr. Sherman testified that as FCCI was a business, and as he was not a practicing lawyer governed by the LSUC’s retention rules at the time, FCCI’s practices regarding record retention were based on the Canada Revenue Agency’s requirements.
63There is no record of any correspondence between Mr. Sherman and Ms. Parkinson or between Mr. Leila and Ms. Parkinson until 2004 (however, as mentioned above, Ms. Parkinson’s file was destroyed). Mr. Sherman testified that Ms. Parkinson called him in 2004 stating that she wanted insurance money. Mr. Sherman testified that he was surprised to hear from her. Ms. Parkinson’s evidence was that she spoke with each of Mr. Leila and Mr. Sherman after moving to Montreal. She indicated that she spoke with Mr. Sherman in 2003 regarding continuation of therapy, following which she attended therapy at Sacré-Coeur clinic in Montréal.
64There were four letters to Ms. Parkinson from FCCI, per Brian Sherman, entered as exhibits:
a. Letter of February 24, 2004, wherein Mr. Sherman encloses signature pages from the application for mediation and application for arbitration for Ms. Parkinson’s signature. This letter specifies that it is in respect of the First Accident. The letter also purports to enclose a draft statement of claim to be issued and requests that Ms. Parkinson send $300 to Mr. Sherman so that the statement of claim may be issued. (the “FCCI Feb. 24, 2004 Letter”)
b. Letter of March 23, 2005, which states that they have misplaced the signature pages in respect of the mediation and arbitration applications and requesting Ms. Parkinson to sign and return them again. (the “FCCI March 25, 2005 Letter”)
c. Some 5 days later, the letter of March 30, 2005, which states, in its entirety:
“An act which causes you damages may be actionable whether it is intentional or not. If you punch someone in the mouth and damage their dental structures you can be sued for it, intentional as it is. If you choose to deal directly with the Insurer then you may be lead astray. If you choose to believe them it is up to you. I have told you long before that I will try to help you but that I need the signed forms, the fees to commence and the medical evidence. I have some of the medical evidence but not the fees or the signed forms.” (the “FCCI March 30, 2005 Letter”)
d. Letter of June 3, 2005, thanking Ms. Parkinson for the signed forms and indicating that the mediation papers are at FSCO (the Financial Services Commission of Ontario). The letter notes that Mr. Sherman expects to hear from FSCO within the next few weeks to schedule the telephone conference. It further states that he is still awaiting the fees of $300 to issue the statement of claim and that “time is pressing on.” (the “FCCI June 3, 2005 Letter”) (the four letters collectively, the “2004/2005 FCCI Letters”)
65These four letters were all sent after the presumptive limitation period would have expired in respect of both Accidents and no statement of claim had been issued. Mr. Sherman’s evidence was that he was offering Ms. Parkinson his services in respect of the First Accident. Specifically, he was offering to mediate and perhaps arbitrate the clinic bills she left behind in Toronto. He further testified that by sending her the draft statement of claim, which covered both Accidents, he was offering to help her start an action in her name as a self-represented litigant, so that they could get going on negotiating a settlement. He testified that he was not retained at that time. He further testified that he told her on the phone when they spoke, prior to the letters, that she was beyond the presumptive limitation period. Ms. Parkinson’s evidence was that she was not informed about the limitation period issue and that she understood that Mr. Sherman was taking care of filing her claim. Ms. Parkinson indicated that subsequently she tried to call Mr. Sherman many times to follow up.
66On balance, I am not satisfied that Ms. Parkinson retained the defendants in respect of the Second Accident. There is no question that Ms. Parkinson went to see Mr. Leila after the Second Accident. Mr. Leila informed her that he would not represent her on the Second Accident given the more complex nature of this claim, but suggested Mr. Sherman. Ms. Parkinson met with both Mr. Leila and Mr. Sherman. However, I find that there was no retainer agreement. I accept Mr. Sherman’s and Mr. Leila’s evidence that she was terrified of Damian Martin and did not want them to take any steps if Mr. Martin would be notified. The reason that I have accepted their evidence over Ms. Parkinson’s in this regard is because it is consistent with many of the documents completed by Ms. Parkinson herself and by third parties in the years closely following the Accidents.
67As I have determined that the defendants were not retained by Ms. Parkinson in respect of the Second Accident, the balance of this decision relates only to the First Accident.
Duty of Care
68Whether the defendants owed Ms. Parkinson a duty of care is a question of law. Generally, this issue is determined by resort to the Anns test. However, where the relationship between the parties is one that is already recognized as giving rise to a duty of care, then a full-fledged analysis is not required: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114.
69The law recognizes that paralegals and solicitors owe a duty of care to their clients: Norley v. Lamb, 2009 CarswellOnt 2551 (S.C.) and West v. Eisner, [1999] O.J. No. 4705 (S.C.).
Standard of Care
70As set out above, Ms. Parkinson retained the defendants to assist her in respect of the First Accident. Under the FCCI Retainer, FCCI was retained to assist Ms. Parkinson with statutory accident benefits, and any third party or tort claims. The FCCI Retainer states clearly that neither Brian Sherman nor FCCI is a barrister or solicitor.
71Mr. Leila has never been a lawyer. He has operated as a consultant and a paralegal. Ms. Parkinson stated that Mr. Leila introduced himself as a paralegal, and later testified that Mr. Leila said he was a lawyer. Mr. Leila indicated that he never held himself out as a lawyer. I accept Mr. Leila’s evidence in this regard. I think that the distinction between a lawyer and a paralegal or consultant providing certain legal-related services may be too fine a distinction for some people who do not have experience or knowledge about the law and legal services.
72Ms. Parkinson’s evidence was that Mr. Sherman introduced himself as a lawyer. Mr. Sherman consistently testified that while he was under administrative suspension from the LSUC from 1995 to 2012 he was very careful to observe the guidelines placed on him by the Office of the Trustee at the LSUC. Specifically, he would never refer to himself as a lawyer and he would only provide consulting services in permissible areas, such as small claims cases, appearances before administrative tribunals, etc. Further, the FCCI Retainer specified that neither FCCI nor Brian Sherman were barristers or solicitors.
73As they were providing seemingly legal advice, it is understandable that Ms. Parkinson may have been confused as to whether they were lawyers or consultants. Ms. Parkinson had a grade 10 education at the time and by her own account did not have experience dealing with the law or lawyers. In her application for SAAQ benefits, Ms. Parkinson described Mr. Sherman as a lawyer in one sentence and a consultant in another sentence.
74On balance, I am satisfied that neither Mr. Sherman nor Mr. Leila (nor FCCI) held themselves out to Ms. Parkinson to be lawyers.
75The FCCI Retainer was a contract for services with FCCI as Ms. Parkinson’s representative, agent or consultant. It would include an implied undertaking that the services would be performed according to a reasonable standard of care applicable to a consultant of similar legal services during the applicable time frame.
76The general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. The court stated, at para. 69:
the general rule is that the standard of care in negligence is that of the reasonable person in similar circumstances. In cases of professional negligence, this rule is qualified by an additional principle: where the defendant has special skills and experience, the defendant must “live up to the standards possessed by persons of reasonable skill and experience in that calling”. (See L.N. Klar, Tort Law (3rd ed. 2003), at p. 306.)
77In 2001, there were no regulatory or insurance requirements for consultants in the accident benefits field. Neither Mr. Sherman nor Mr. Leila had errors and omissions insurance at that time. The testimony of both Mr. Sherman and Mr. Leila was that there was not insurance available at that time for consultants or paralegals. Further, they testified that “paralegals” did not exist until LSUC regulations were made, in approximately 2007, to create this class of professionals.
78The court in West v. Eisner (supra), at para. 22, described the paralegal world at the time as follows:
Paralegals operate in a legal ‘no-man’s land’. They are not licensed. They are unregulated. They may well be uninsured. The Law Society of Upper Canada has no authority over them, save in the problematic area of initiating prosecutions for unlicensed practice as a barrister or solicitor. There are no professional or quasi-professional standards by which their conduct can be measured, nor any penalties for professional misconduct. Anyone who chooses to do so can set up shop as a paralegal, with no training or qualifications whatsoever.
79There were no standards for paralegals or consultants in existence in 2001. Accordingly, where the standard of care can be determined based on the court’s ordinary knowledge or common sense, it is appropriate to “fix the standard on the basis of common sense and … ordinary understanding”: Ter Neuzen v. Korn, 1995 72 (SCC), [1995] 3 S.C.R. 674, at para. 52. For unlicensed paralegals, and based on common sense and ordinary understanding, courts have fixed the standard of care as an ethical and competent paralegal: Elliott v. Chiarelli (2006), 2006 34426 (ON SC), 83 O.R. (3d) 226 (S.C.). Ms. Parkinson was entitled to expect that the consultants retained to assist with her First Accident would apply the relevant knowledge and skills of an ethical and competent paralegal to her matter.
80The LSUC did, however, have guidelines for suspended lawyers, called “Guidelines for Suspended, Resigned or Disbarred Members and Members who have given an undertaking not to practise” (February 18, 2000). These guidelines provide that a suspended lawyer is prohibited from, among other things, accepting new clients or legal work for existing clients or giving legal advice. The guidelines also prohibit a suspended lawyer from providing any legal services unless they are acting as an agent and the client has been advised in writing that the suspended lawyer is not acting as a barrister and solicitor and that the “representation will not afford [the client] the protection of the Lawyers’ Professional Indemnity Company” in the event of the lawyer’s negligence or “the protection of Lawyers’ Fund for Client Compensation in the event of dishonesty or fraud.”
81Although the FCCI Retainer did state that neither FCCI nor Mr. Sherman was a barrister and solicitor, it did not advise that Ms. Parkinson would not have the protection of the insurance fund covering lawyers. Neither Mr. Leila nor Mr. Sherman informed Ms. Parkinson that they did not have any professional indemnity insurance. Accordingly, Ms. Parkinson was unaware that the consultants she retained did not have insurance in place.
82With regard to the First Accident, Mr. Leila filed the OCF-1 in respect of the statutory accident benefits. There was no evidence to suggest that had the accident benefits been handled in a different manner Ms. Parkinson would have received a higher recovery. Other than the accident benefits, no other steps were taken on Ms. Parkinson’s file. No statement of claim in tort was filed in respect of this occurrence.
83Ms. Parkinson claims that she was not informed of the limitation period issue by the defendants. There is nothing in writing that suggests that the defendants informed her of the limitation period. In fact, the 2004/2005 FCCI Letters, sent after the presumptive limitation period had expired, do not refer to the potential limitations issue. The evidence of Adam Wagman, to which I give significant weight, was that every letter after the two-year presumptive limitation period was further misleading Ms. Parkinson that something more could be done on her file. She was given the impression that there was nothing amiss. Mr. Wagman’s view was that the 2004/2005 FCCI Letters were vague and minimally informative. I agree that sending the 2004/2005 FCCI Letters without specifically referencing the limitations issue and the urgency of the matter continued to further mislead Ms. Parkinson and fell below the standard of care.
84Filing a statement of claim in a timely manner in respect of the First Accident would have preserved Ms. Parkinson’s rights. This was not done.
85The defendants also failed to advise Ms. Parkinson that they had no insurance. Mr. Sherman was required to do this. Mr. Leila ought to have done this. Ms. Parkinson was entitled to make an informed choice in selecting her representative for her claim. In my view, this omission falls below the standard of care of a reasonably competent and ethical consultant providing paralegal services.
86By not informing Ms. Parkinson of the limitation issue, not filing the statement of claim in respect of the First Accident and failing to inform Ms. Parkinson that they were not insured, the defendants fell below the standard of care expected of a reasonably competent and ethical consultant providing these services at the relevant time.
Causation
87In order to establish negligence, Ms. Parkinson must prove on a balance of probabilities that the defendants’ breach of the standard of care caused her loss in fact and law.
88With regard to causation in tort law, the relevant test is the “but for” analysis. The Supreme Court of Canada explained this test in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181 (at para. 8):
The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence as necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis in original.]
89As discussed in Folland v. Reardon (2005), 2005 1403 (ON CA), 74 O.R. (3d) 688 (C.A.), at para. 61, the “but for” test is generally employed in solicitor’s negligence cases:
‘But for’ factual causation has been employed in solicitor’s negligence cases, particularly those where the plaintiff contends that he received negligent advice and would have acted differently had he received appropriate advice. In those cases, the plaintiff must show on the balance of probabilities that if properly advised, he would have proceeded in a manner that avoided the damages suffered or obtained the benefit lost as a result of the negligent advice.
90The Court of Appeal in Jarbeau v. McLean, 2017 ONCA 115, 410 D.L.R. (4th) 246, at para. 26, extracts certain key principles from Folland:
In most cases of solicitor’s negligence, liability rests on both a tort and contractual basis.
The imposition of liability grounded in the loss of a chance of avoiding a harm or gaining a benefit is controversial in tort law, particularly where the harm alleged is not purely economic.
Whatever the scope of the lost chance analysis in fixing liability for torts claims based on personal injuries, lost chance is well recognized as a basis for assessing damages in contract. In contract, proof of damage is not part of the liability inquiry. If a defendant breaches his contract with the plaintiff and as a result the plaintiff loses the opportunity to gain a benefit or avoid harm, that lost opportunity may be compensable.
A plaintiff can recover damages for lost chance in an action for breach of contract if four criteria are met:
a. The plaintiff must establish on the balance of probabilities that but for the defendant’s wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss.
b. The plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation.
c. The plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff himself or herself.
d. The plaintiff must show that the lost chance had some practical value.
91In Jarbeau, at para. 27, the Court of Appeal goes on to state that if the plaintiff can establish “on the balance of probabilities that but for the negligence he or she would have avoided the loss, he or she should be fully compensated for that loss.”
92I agree with the plaintiff that there is no evidence to suggest that Ms. Parkinson did not want to proceed with the claim in respect of the First Accident.
93The FCCI Retainer provided that FCC would protect Ms. Parkinson’s interests. Mr. Sherman’s evidence was that he had not issued her statement of claim in respect of the First Accident as it was his view that her injuries did not meet the threshold of permanent and serious impairment and that therefore there were no interests to protect. However, Mr. Sherman had not retained a medical expert to opine on this. Although I determine below that Ms. Parkinson has not met the threshold in respect of the First Accident, this does not mean that had she commenced her claim in a timely manner that there would not have been some sort of settlement possible.
94Had the defendants carried out the terms of the contract and issued a statement of claim in respect of the First Accident, Ms. Parkinson’s interests would have been protected. They did not do this.
Damages
95The defendants argue that since Ms. Parkinson filed her accident benefit claim in respect of the First Accident within the appropriate time frame and received a settlement, there ought to be no recovery on the accident benefits portion of the case. I agree.
96The plaintiff has also sued for damages available in tort in respect of the First Accident. In this regard, the defendants submit that the plaintiff does not meet the threshold requirement, which I will now address.
Threshold
97After closing submissions, the defendants brought a threshold motion for determination of whether the plaintiff has met the threshold in accordance with the provisions set out in section 267.5(5) of the Insurance Act, which provides:
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.
98As the First Accident took place in October 2001, the applicable regime under which to consider the threshold is Bill 59, not Bill 198, which was subsequently enacted: Del Rio v. Lawrence, 2009 6833 (Ont. S.C.), at para. 3 (see also, Thomas v. Pin to Pin Express Inc., 2016 ONSC 4385 (S.C.), at para. 36). The court in Del Rio set out the applicable test, at para. 4, as follows:
The test to be applied is threefold:
(a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?
(b) If yes, is the function which is permanently impaired an important one?
(c) If yes, is the impairment of the important function serious?
99The key words in the threshold test have been judicially interpreted as follows:
a. A permanent impairment will last indefinitely into the future. It does not, however, mean it must last until death. “Permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit” (Valentine v. Rodriguez-Elizalde, 2016 ONSC 3540, at paras. 29-30).
b. An important bodily function is one that plays a major role in the health, general well-being and way of life of the particular person who is injured. As stated in Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 C.A.):
Because of the infinite variety of the human condition and of human activities, it is impossible for the court to lay down any general guidelines to the application of “important bodily function” to all injured persons. Each case will essentially be one of fact. What must be considered is the injured person as a whole and the effect which the bodily function involved has upon that person’s way of life in the broadest sense of that expression. If the bodily function is important to the particular injured person, then, the bodily function in question is an important one within the meaning of the expression contained in s. 266(1)(b).
c. A serious impairment is one that causes a substantial interference with the ability of the injured person to perform their usual daily activities or continue their regular employment: Meyer. The impairment of the person’s daily life must be beyond tolerable to be considered serious: Valentine (at paras. 37-38).
100The plaintiff has the onus of proof to establish that her impairments satisfy the “threshold”: Jugmohan v. Royle et al., 2015 ONSC 1497 (S.C.), at para. 13.
101The threshold determination is a fact-specific analysis. Further, the focus of the analysis is on the “effect of the injury” on the person and not on the “type of injury”: Pin to Pin Express, at para. 47.
102I accept the plaintiff’s submission that because the applicable threshold regime in this case is under Bill 59, there is no specific requirement in the regulation to adduce evidence from a physician, nor is there a requirement to adduce lay witness evidence. However, given the proximity between Ms. Parkinson’s Accidents and the serious nature of the Second Accident, it would have been very helpful to have heard corroborating evidence with regard to the effect of the injuries sustained in the First Accident.
103Ms. Parkinson testified that she sustained injuries to her neck, back, head, and jaw and suffers from headaches and psychological issues. Her evidence regarding the impact of the First Accident included the following:
a. After the First Accident she experienced difficulty with bending and standing as a result of her neck and back pain.
b. She sometimes gets migraines and has difficulty eating, as her jaw will click.
c. She sometimes experiences pain leading from her neck down her spine.
d. Prior to the First Accident she participated in sports, such as basketball, running, swimming and soccer and did approximately 60% of the housekeeping chores. After the First Accident she did not immediately return to her sports and required some assistance from Mr. Martin with her housekeeping chores.
e. Ms. Parkinson’s evidence was that hairdressing was her passion and prior to the First Accident she aspired to be a hairstylist and open a clothing shop. She was doing hairstyling on the side in order to build up a clientele.
f. Prior to the First Accident, she also had worked at Tim Horton’s, which she described as very fast paced. After the accident she left that job as she wanted a more sedentary job. She worked with Financial Debit Recovery for a brief period but left sometime shortly after the Second Accident as she was stressed and uncomfortable and had to keep her foot elevated on a chair.
104Ms. Parkinson went for physiotherapy at Dixon Rehab Centre following the First Accident. However, her visits stopped in or around November 2001.
105Ms. Parkinson was involved in the Second Accident shortly after the First Accident. There is no doubt that the Second Accident was serious and continues to have an impact on her life. She has not been able to maintain several jobs, that required her to stand and/or lift. In light of the severe nature of the injuries in her leg, including hardware that remains, and having heard expert evidence on these injuries, I find that it is this Second Accident that has had the long term impact on her ability to work and participate in her regular daily activities. In her evidence Ms. Parkinson indicated that she has a lot of difficulty with her leg and the fact that it continuously swells, which has prevented her from holding down a job. She has been diagnosed with chronic pain due to her tibia and fibula fracture. While Dr. Kaminker’s evidence was that Ms. Parkinson would have legitimate complaints of pain and difficulty performing activities that require prolonged standing, walking, stair climbing or heavy lifting, these issues relate to the serious injuries suffered by Ms. Parkinson in the Second Accident, not the First.
106As noted above, I did not find Ms. Parkinson to be a reliable witness. Some corroborating evidence of her claims related to the First Accident would have been helpful. There is no evidence of the plaintiff seeking any formal medical relief to deal with the injuries she claims in respect of the First Accident after November 2001. There is no corroborating evidence of any lasting impairment from the First Accident, other than an entry by Dr. Gopinath in or around November 13, 2012 that referenced neck and mid-back pain. Further, Dr. Kaminker’s report stated:
Ms. Parkinson states that her back pain has resolved. She has intermittent complaints of neck pain. Approximately once every six months, she will experience an episode of pain and stiffness in the neck that can last several days.
Dr. Kaminker did not comment on the permanent and serious nature of Ms. Parkinson’s injuries from the First Accident.
107There was also no evidence from any lay witnesses speaking of any difficulties faced by Ms. Parkinson and how the injuries may have affected her life. Given that I did not find Ms. Parkinson to be a reliable witness, and given that there is no evidence of any continuing medical treatment of any sort in relation to the soft tissue injuries suffered in the First Accident, Ms. Parkinson has failed to satisfy me on a balance of probabilities that she sustained a permanent serious impairment of an important physical, mental or psychological function.
108As stated by the court in Malfara v. Vukojevic, 2015 ONSC 78, at para. 28:
To be serious the impairment(s) must substantially interfere with the plaintiff’s ability to continue his regular or usual employment or substantially interfere with most of his usual activities of daily living considering his age. I accept that the legislature intended that injured persons in motor vehicle collisions may experience some negative or detrimental impact on their lives without the ability to recover non-pecuniary damages.
109While I accept that Ms. Parkinson may continue to have some soft tissue pain as a result of the First Accident, she has not met the threshold requirements set out in the Insurance Act. The impact of the injuries sustained in the First Accident is perhaps unpleasant at times, but, in my view do not rise above what is tolerable. Ms. Parkinson has not established on a balance of probabilities that she has a permanent serious impairment of an important physical, mental or psychological function.
110The defendants’ threshold motion in respect of the First Accident is therefore granted.
Disposition and Costs
111For the reasons set out above, the plaintiff’s claims against the defendants are dismissed.
112The defendants are entitled to costs. I would encourage the parties to settle the issue costs. However, if they cannot reach an agreement on costs by February 14, 2022, the defendants shall notify my judicial assistant and the parties may file written submissions as follows: (1) the defendants may file written submissions (not to exceed 5 pages double spaced) and their bill of costs by February 28, 2022; (2) the plaintiff may file written submissions (not to exceed 5 pages double spaced) by March 14, 2022.
J. Steele J.
Released: January 24, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
NATALIE PARKINSON
Plaintiff
– and –
BRIAN SHERMAN and BRIAN LEILA and FAIR CLAIMS CONSULTANTS INC. and FAIR CLAIMS CONSULTANTS CORP.
Defendants
REASONS FOR JUDGMENT
J. Steele J.
Released: January 24, 2022