COURT FILE NO.: CV-22-00675226-0000

DATE: 20220830

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ELLEN YEBIN PARK, a minor by her Litigation Guardian, EUN JUNG CHOI

AND:

PEMBRIDGE INSURANCE COMPANY

BEFORE: Justice A.P. Ramsay

COUNSEL: Michelle Arzaga, for the Applicant

Leandra Cusimano, for the Respondent

HEARD: In Writing

ENDORSEMENT

[1] On May 24, 2022, I made an endorsement with respect to materials filed on Caselines. As this endorsement has not been complied with, I will return to it below as a great deal of time was spent attempting to navigate the materials.

[2] The applicant, Ellen Yebin Park (“Ellen”), a minor, by her litigation guardian Eun Jung Choi, commenced this application seeking the court’s approval under r. 7.08 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 of a full and final settlement of her accident benefits with her statutory accident benefit carrier, the respondent, Pembridge Insurance Company (“Pembridge”). The court is also being asked to exercise its discretion under subrule 7.09(1) of the Rules of Civil Procedure and order that the settlement funds be paid to the litigation guardian rather than into court. The application is on the consent of the parties.

[3] On November 6, 2019, at the age of fourteen, Ellen was struck by a vehicle while a pedestrian. She apparently hit her head on the windshield of the car as well as the pavement. She sustained a hairline fracture of her left shoulder and fracture of her left pubic ramus. Ellen has since been diagnosed with severe depression, anxiety, posttraumatic stress disorder, and panic attacks related to the accident. At the time of the accident, Ellen was a grade nine student. She is currently 17 years old.

[4] Ellen applied for statutory accident benefits from Pembridge pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10, as amended (the “SABS”). The application is supported by an affidavit by the litigation guardian, Ellen’s mother, an affidavit from her lawyer, Michelle Arzaga (“Ms. Arzaga”), as well as a consent by Ellen (which is only initialed) as mandated by r. 7.08(4) (c) of the Rules of Civil Procedure, as she is over the age of 16.

[5] The proposed settlement is for $22,500. From that, I can deduce that Pembridge paid benefits in accordance with the non-catastrophic limits available to individuals who sustained physical or mental impairment in a motor vehicle accident that did not meet the catastrophic impairment designation as defined under the SABS. The application before me is not supported by any factum nor for that matter does the material assist the court in setting out what the requisite tests are for any benefits. The evidence before the court is that there are available limits of $65,000.00 for attendant care, medical and rehabilitation benefits.

[6] For the reasons below, the application is being adjourned to September 16, 2022, to permit further evidence to be filed.

[7] From the evidence before me, in February 2020 Ellen was diagnosed with severe anxiety and depression, posttraumatic stress disorder, and panic attacks. She has been seen by Dr. Owen Giddens, who appears to be a psychologist. A report of Dr. Giddens dated October 2, 2020, filed on this application, included the following comments:

“Ms. Park continues to suffer from chronic pain, severe depression and severe anxiety related to the sequelae of her motor vehicle accident. She maintains a fragile state and requires supportive counselling to prevent significant deterioration in her day-to-day functioning.”

[8] In July 2021, she was referred to her family doctor for depression, anxiety and post-traumatic stress disorder (PSTD). It is noted that: “She has passive death wishes” though she denied suicidal intent or plans. There are troubling references to previous attempts, but it is difficult to determine what some of the notes mean, given the short forms used.

[9] Pembridge arranged an in-home assessment in 2021, which was completed by occupational therapist, Christine Phinney, who authored a report dated September 3, 2021, to determine the reasonableness and necessity of further treatment. Ms. Phinney indicated that Ellen reported memory and concentration difficulties, but she apparently found “no evidence of problems with recall or distractibility during informal observations” (emphasis added). Ms. Phinney commented in her report: “As noted above, Ms. Park's mother expressed concern about her daughter's low mood and low motivation.” Ms. Phinney went on to conclude that Ellen would benefit from ongoing Rehabilitation Support Worker services to encourage participation in leisure activities.

[10] Of note, Ms. Phinney refers to more updated progress reports of Dr. Giddens in her report, not filed on this application. In particular, she referred to a psychological progress report dated February 26, 2021, in which Dr. Giddens apparently indicated that Ellen “continues to suffer from severe depression, chronic pain, and severe anxiety” and noted that she “requires further supportive counselling to prevent a significant deterioration in her day-to-day functioning” (emphasis added). Reference is also made to a progress report dated May 30, 2021, in which Dr. Giddens apparently indicated that Ellen continued to experience “low mood with little to no leisure activity engagement”.

[11] Ms. Arzaga deposes in her affidavit that: “In my opinion and based on my discussion with Dr. Giddens, Ellen would not meet the test. She has been able to continue her schooling and has been able to maintain relationships with her family, friends, and the boyfriend.” I am not satisfied, on the materials before me, that such a conclusion is supported by the evidence. The determination of whether a person meets the criteria for a CAT designation is a legal test: Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571 at para. 30. While the court is not required to decide the issue on this application, nonetheless, the court must decide whether the settlement is fair and reasonable to the minor plaintiff. Given the evidence before the court, the question is whether the settlement of Ellen’s accident benefit claims on a full and final basis at the non-CAT level fair and reasonable? The answer depends on whether there is a possibility that she has sustained CAT injuries which would afford her enhanced benefits.

[12] Ms. Arzaga refers to various insurer examination reports which relate to determining the reasonableness and necessity of ongoing treatment but from a physical perspective. Based on the evidence before me, Ellen’s primary issues appear to be psychological. I can only surmise, from the evidence, that any consideration of whether Ellen has an impairment that meets the CAT designation would be because of any psychological impairment that, that is, an impairment that is due to a mental or behavioural disorder. An insured person who sustains a class 4 or one “marked” level impairment in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993, would meet the catastrophic impairment designation: Pastore v. Aviva Canada Inc., (2012), 2012 ONCA 642 [Pastore].

[13] The onus is on counsel for the applicant to provide the necessary information for the court to be able to decide whether the settlement is fair and reasonable. What is the test that Ellen would have to meet to prove that she sustained a CAT impairment as defined by the SABS? What is the evidence being relied upon by counsel to suggest that any impairment sustained by Ellen would not meet a class 4 or “marked” impairment in one of the four domains set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the Guides), namely: her activities of daily living, social functioning, concentration, persistence and pain, or adaptation?

[14] On an application, affidavit evidence must comply with subrule 4.06(2), and, at a minimum, some evidence from Dr. Giddens would be of assistance as opposed to the double hearsay evidence from the lawyer. On the available evidence from Dr. Giddens, more questions are raised, and the evidence appears to be at odds with the statement by Ms. Arzaga. Dr. Giddens indicated that Ellen’s prognosis was guarded at that stage. He indicated there was a risk of her deteriorating.

[15] Ms. Arzaga deposes that Ellen is being treated by a psychiatrist and attaches the consultation note of July 2021. There is no evidence before the court as to whether the counselling, treatment with a psychiatrist, and medication prescribed, have resulted in any improvement to Ellen’s psychological symptoms. There is a gap of a year for any update on her psychological condition. The records end in July 2021 around the same time that Ellen was prescribed new medication to manage her symptoms. The evidence before me indicates that Ellen has been prescribed Amitriptyline, Remeron and Mirtazapine. She is under the care of a psychologist and a psychiatrist. The clinical notes and records of her family doctor ends in July 2021 with the prescription of Mirtazapine.

[16] The affidavit of the litigation guardian is brief and does not address Ellen’s status, nor does it address the impact, if any, of Ellen’s injuries on her day-to-day functioning, schooling or other activities. There is only the hearsay evidence from the occupational therapist retained by the insurer under the SABS which noted that Ellen’s mother was concerned in 2021 about her low mood and her motivation.

[17] As for Ellen’s schooling, Ms. Arzaga deposes at paragraph 19 of her affidavit that: "Ellen has continued attending school and there has been no appreciable change in her grades since the accident". On the record before the court, Ellen has told at least one health care practitioner that she failed a course and had to do summer school. Of course, there is no evidence from the litigation guardian, or given her age, Ellen herself on how she is doing in school. An exhibit merely affixed to an affidavit is not evidence, and the bald statement by the applicant’s lawyer that there has been “no appreciable change in her grades since the accident”, especially divorced from a discussion of the four domains, does not assist the court in deciding.

[18] Ms. Arzaga deposes that Ellen continues to receive treatment, which is covered by OHIP. Again, this evidence should come from the litigation guardian who would also be in the best position to provide information, based on first-hand knowledge, as to what treatment Ellen is receiving, the efficacy of the treatment, and whether any further treatment is contemplated, and if so, for what injury or impairment.

[19] Given Ellen’s ongoing psychological complaints, the court requires a more cogent explanation, with consideration of the test under the SABS and updated medical evidence, and any supporting authority, addressing why she would not meet the eligibility test for a catastrophic designation. On the evidence, Ellen was diagnosed with severe depression, anxiety and chronic pain, and is being treated by a psychiatrist and a psychologist. There are troubling self-harming behaviours referred to in the records. She has been on different medications to manage her symptoms. Her prognosis was guarded. Dr. Giddens mentioned the risk of deterioration without treatment. There is a one-year gap in the medical evidence. There is no updated prognosis. Given Ellen’s constellation of symptoms, which are ongoing, it is not clear why the applicant has not applied to Pembridge to have an assessment undertaken to determine whether Ellen has sustained a catastrophic impairment or, failing that, an explanation as to why one was not requested.

[20] Ms. Arzaga also deposes that Ellen does not qualify for non-earner benefits. There is no explanation provided to the court as to why not having regard to the requisite test.

[21] The solicitors are seeking 30% of the recovery for their legal fees. A Contingency Fee Agreement (“CFA”) has been filed. To assist the court in determining whether the CFA is reasonable as of the time of the settlement, the court must consider the applicable principles which have been helpfully summarized by Trimble J. in Fairweather v. Davies, 2017 ONSC 7051 at paragraph 12, and will not be repeated here. Given the amounts involved, and the nature of the proceedings, counsel may submit dockets or computer-generated pre-bills.

[22] Lastly, by endorsement dated May 24, 2022, I directed that counsel upload hyperlinked materials to Caselines. That has still not been done despite assurances that this was completed. In the result, an inordinate amount of time was spent trying to navigate the documents. The Application Record is well in excess of two hundred pages. The Application Record could not be downloaded as one document. The documents mentioned in the Index are not hyperlinked to the exhibits. There are no page numbers contrary to r. 38.09(2). There were issues opening some of the exhibits on Caselines. A great deal of time was also devoted to scrolling back and forth to access the information in the Application Record. An incomplete affidavit of the litigation guardian is included in the Application Record and on Caselines (part of paragraph 3 to paragraph 11 appear to be missing).

DISPOSITON

[23] The applicant is directed to file supplementary evidence by September 16, 2022, which addresses the concerns raised.

[24] Any supplementary material filed must also be uploaded to Caselines.

[25] Counsel shall notify Ms. Diamante, at Polly.Diamante@ontario.ca once the documents are uploaded to Caselines.

[26] Any index shall include a hyperlink to each exhibit, linking back to the index of the volume in which they are contained. Counsel for the applicant must confirm that the hyperlinks are working on CaseLines, and specifically that in uploading the documents to CaseLines, the hyperlinks have not been scrubbed.

[27] I remain seized.

Justice A.P. Ramsay

Date: August 30, 2022