COURT FILE NO.: CV-20-28653 DATE: 20240117
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Lana Ingratta Plaintiff – and – Craig McDonald Defendant
Counsel: Steven D. Bezaire, Counsel for the Plaintiff Meredith Harper and Anthony Naples, Counsel for the Defendant
HEARD: September 27, 28, and October 5, 6, 2023
REASONS FOR DECISION mACFARLANE j.
Overview
[1] This is a car collision case. The plaintiff, Lana Ingratta (“Ms. Ingratta”), was driving her car on February 11, 2018, when it was struck on the passenger side by the defendant, Craig McDonald’s (“Mr. McDonald”), car (the “Collision”). Ms. Ingratta has sued Mr. McDonald for damages that she claims arise from injuries caused by his negligence.
[2] The issues for determination are:
(A) Was Mr. McDonald negligent, and if so, did his negligence cause the Collision? (B) What injuries did Ms. Ingratta sustain as a result of the Collision? (C) If Ms. Ingratta sustained injuries as a result of the Collision, did any of those injuries meet the threshold for recovery? (D) If all of the above are answered in the affirmative, what, if any, are Ms. Ingratta’s damages?
[3] I find that Mr. McDonald was negligent, and that his negligence caused the Collision and certain resulting injuries to Ms. Ingratta. However, Ms. Ingratta has not suffered from impairments that surpass the threshold for recovery. Therefore, Ms. Ingratta is not entitled to recover general damages or health care expenses.
A Procedural Note
[4] The trial proceeded under the “simplified procedure” pursuant to Rule 76 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”). Rule 76 provides for a time-limited trial process in which evidence-in-chief is given by affidavit and witnesses are then cross-examined viva voce at the trial. In addition to the affidavits filed, the parties filed a 12-volume “Trial Book of Documents”, which contained over 3,200 pages of income tax records, unexpurgated hospital and treating practitioners’ notes and records, insurance files, and the complete transcripts of the parties’ examinations for discovery. The pages were not numbered, and on the CaseLines online platform there were 50 items corresponding to the 30-some tabs in the 12 hard copy volumes. [1] The CaseLines version was practically unusable, as most of the hyperlinks in the index were incorrectly done. Due to a poor internet connection in the courtroom, one of the lawyers had great difficulty accessing CaseLines during the trial. Neither party provided a compendium of the documents they intended to refer to in argument required by para. 59(g) of the “Consolidated Civil Provincial Practice Direction”, (June 15, 2023). Both parties did, however, provide the Court, upon request, with a compendium of the excerpts from the discovery transcripts that they read in at trial.
[5] I asked counsel for both parties for what purposes the Court could rely on the documents in the brief. They suggested that the documents could be used for all purposes. Obviously, the complete discovery transcripts could not be used “for all purposes”, and it was also clear that only a very small fraction of the actual pages filed would be referenced at the trial. I therefore advised counsel that I would only consider:
- those documents that had been marked as exhibits to the affidavits filed, and
- those documents that were put to witnesses in their cross-examinations.
Neither party raised any objection.
[6] It was cumbersome and difficult to navigate the brief via CaseLines during the trial. Counsel for both parties should have given much more thought to what specific documents would be referred to in the course of the trial, both in evidence and in argument, and how to effectively guide the Court through the documents. CaseLines is not a perfect platform, but it is the one that we all must use, and in 2023 the effective use of that tool is a matter of basic advocacy. [2]
[7] In addition, if there were other documents that could have properly been filed as, for example, business records or medical reports under ss. 35 and 52 of the Evidence Act, R.S.O. 1990, c. E.23 (“Evidence Act”), none were specifically drawn to the Court’s attention during the trial. Neither party sought to mark any of the individual documents in the brief as a numbered exhibit, so the documents referred to were simply referenced by their location within the brief and have been admitted into evidence on consent.
(A) The Collision and Mr. McDonald’s Negligence
[8] The first issue to be decided is whether Mr. McDonald was negligent, and if so, whether his negligence caused the Collision. The only evidence regarding the Collision itself came from Ms. Ingratta and Mr. McDonald.
a) The Collision – Ms. Ingratta’s Evidence
[9] The Collision took place on February 11, 2018. Ms. Ingratta was driving southbound on Mount Royal Drive across the intersection at Cabana Road in Windsor (the “Intersection”). The Intersection is controlled by traffic lights, and Ms. Ingratta entered the Intersection while the light was green. Her vehicle was a 2010 Dodge Journey (the “Ingratta Vehicle”). Her two children were in the back seat of the Ingratta Vehicle; they were traveling from a McDonald’s restaurant at 3354 Dougall Avenue when they reached the Intersection.
[10] According to Ms. Ingratta, the road conditions were slushy, and she confirmed having described them in a report given to a collision reporting centre (Exhibit A, Part 2 at trial) as “slushy and slippery”. She did not describe there being “freezing rain” at the time of the accident, and counsel for the defendant did not put that suggestion to her. Ms. Ingratta was taken to a photo taken at the accident scene, which was Exhibit A to the affidavit of Craig McDonald, sworn August 29, 2023 (“the McDonald Affidavit”). She confirmed that the photo accurately depicted the road conditions at the time of the accident, in that it was consistent with her evidence that the road was slushy.
[11] As the Ingratta Vehicle proceeded through the Intersection, Ms. Ingratta’s son yelled “Mom, look out!” moments before Mr. McDonald’s vehicle, a 2017 Chevrolet Cruze (the “McDonald Vehicle”), traveling eastbound on Cabana Road struck the rear passenger-side quarter of the Ingratta Vehicle, spinning it clockwise about 90 degrees. Ms. Ingratta’s airbags did not go off in the impact.
[12] Windsor Police Services and an Essex-Windsor Emergency Medical Services ambulance arrived, but Ms. Ingratta did not want to leave her children and declined the ambulance. The Ingratta Vehicle, although significantly damaged, was driveable and she drove it home.
b) The Collision – Mr. McDonald’s Evidence
[13] On the morning of February 11, 2018, Mr. McDonald got into the McDonald Vehicle to drive to work. According to his affidavit, the road conditions were poor due to freezing rain, although he said that he had no trouble stopping his car in the brief time he had been driving before he arrived at the Intersection. He drove north on Mount Carmel Drive and turned right onto Cabana Road West, heading east toward the Intersection. The lights at the Intersection were green, then yellow, then red. About 15-20 yards before the Intersection, traveling at an estimated speed of about 15-20 km/h, Mr. McDonald applied his brakes, and claimed that “[his] vehicle slid through the intersection due to the icy road conditions.” He then collided with the Ingratta Vehicle. Mr. McDonald admitted on his examination for discovery that based upon his many decades of experience as a driver and his driver training, Ms. Ingratta did nothing improper or contributing to the accident. Mr. McDonald observed two other cars traveling eastbound on Cabana Road West and two cars stopped at the Intersection traveling westbound on Cabana Road West. He acknowledged that he did not see any of those cars collide with any other vehicle.
[14] In cross-examination, Mr. McDonald denied that he was driving too fast for the conditions. He described the roads as being “wet”, but it is apparent from the photos attached to his affidavit that the roadway did not appear to be simply “wet” but rather covered in brown slush.
[15] Mr. McDonald offered no evidence as to what, if any, injuries he sustained; whether his own airbags deployed in the Collision; what the extent of physical damage was to the McDonald Vehicle; and whether anyone, including himself, found the condition of the roadway immediately after the Collision to be so slippery that it caused difficulty standing or walking.
c) The Collision – Mr. McDonald Was Negligent
[16] Mr. McDonald pleaded that he was not negligent in his operation of the McDonald Vehicle, that Ms. Ingratta caused the Collision through her own negligence, and that if Ms. Ingratta did not cause the Collision, it was “…the result of an inevitable accident for which no one is responsible in law.” No issue was raised at trial concerning the alleged negligence of Ms. Ingratta. Based upon Mr. McDonald’s own observations, I find that she was not negligent in the operation of her motor vehicle and that the manner in which she was driving did not cause or contribute to the Collision.
[17] The Highway Traffic Act, R.S.O. 1990, c. H.8, provides as follows:
Liability for loss or damage
192 (1) The driver of a motor vehicle or street car is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle or street car on a highway.
[18] The question of “inevitable accident” was addressed by counsel for both parties. Clearly, the burden on a defendant seeking to establish the “defence” of inevitable accident is high. As the Supreme Court of Canada noted in the leading 1956 decision of Rintoul v. X-Ray & Radium Industries Ltd., [1956] S.C.R. 674, at p. 678:
The defence of inevitable accident has been discussed in many decisions. A leading case in Ontario is McIntosh v. Bell, which was approved by this Court in Claxton v. Grandy. At page 187 of the report of McIntosh v. Bell, Hodgins J.A. adopts the words of Lord Esher M.R. in The Schwan, as follows: —
…In my opinion, a person relying on inevitable accident must shew that something happened over which he had no control, and the effect of which could not have been avoided by the greatest care and skill.
In my view, in the case at bar the respondents have failed to prove two matters both of which were essential to the establishment of the defence of inevitable accident. These matters are (i) that the alleged failure of the service brakes could not have been prevented by the exercise of reasonable care on their part, and (ii) that, assuming that such failure occurred without negligence on the part of the respondents, Ouellette could not, by the exercise of reasonable care, have avoided the collision which he claims was the effect of such failure.
See also Graham v. Hodgkinson (1983), 40 O.R. (2d) 697 (C.A.), at pp. 703-704; and Jones v. Jones, 2021 ONSC 2115, at para. 28.
[19] I note that the doctrine of “inevitable accident” seems to arise most frequently in situations where, due to the circumstances of the accident, there is a reverse onus – that is, the defendant bears the burden of proving an absence of negligence. In such cases, “… the expression ‘inevitable accident’ simply denotes a defendant’s ‘lack of negligence’”: Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 14. Counsel for the defendant conceded that they had found no cases in which freezing rain had “caused” an inevitable accident in any circumstances similar to the case at bar.
[20] Mr. McDonald knew that there was freezing rain. He knew that there was slush on the roadway. He owed Ms. Ingratta and other users of the road a duty of care not to cause a collision. The resulting standard of care required that he travel at a speed that would allow him to safely come to a stop when necessary, taking the weather and road conditions into account. Mr. McDonald’s inability to stop could have been prevented by the exercise of reasonable care on his part. Even though he had been able to safely stop in the few hundred metres he had travelled before he entered the Intersection, he was simply going too fast and was unable to stop his vehicle when the light turned yellow, then red, at the Intersection. Given the limited evidence of the damage to the two vehicles, and the evidence that the Ingratta Vehicle was spun ninety degrees by the force of the impact, I conclude that Mr. McDonald’s estimate of his speed was inaccurate, and he was travelling faster than 15-20 km/h. Even if I accept Mr. McDonald’s evidence, he was evidently driving too fast for the conditions. Therefore, he breached the standard of care required of him. This directly caused the Collision.
[21] If the Collision was “inevitable”, that was only because Mr. McDonald was going too fast for the conditions. I find that the “defence” of “inevitable accident” has not been established in this case, and it does not assist Mr. McDonald. Mr. McDonald’s negligence caused the Collision and any injuries sustained by Ms. Ingratta therein.
(B) Ms. Ingratta’s Injuries
a) Ms. Ingratta’s Condition Pre-Collision
[22] Ms. Ingratta was 39 years old at the time of the Collision, and 45 as of the date of trial. Her two children were 9 and 11 years old, respectively, at the time of the Collision. They are now 15 and 17, respectively. Ms. Ingratta resides with her children in a subsidized duplex paying $171 per month, and Ms. Ingratta receives funding of $970 per month from the Government of Ontario’s “Assistance for Children with Severe Disabilities” program.
[23] Ms. Ingratta suffered from significant pre-existing health challenges prior to the Collision.
[24] On her own evidence, Ms. Ingratta admitted to the following relevant incidents/physical issues:
a) Two C-section births, 2006 and 2008; b) Tubal ligation, 2008; c) Rib fractures, 2008; d) Lower back pain, ongoing since a 2010 incident when she “wrenched” her back helping her father out of a chair; e) Bartholin cyst removal, 2011; f) Prior car accident in 2011, followed by a sliding door falling on her the same year; g) Prior alcohol abuse (has quit drinking and smoking, 2012); h) Right ankle injury after falling off her porch in 2012, with surgery to repair a torn ligament taking place in 2015; i) Cholecystectomy, 2014; j) Septoplasty, 2016; k) Interstitial cystitis, causing frequent bladder infections; l) Ongoing neck pain and soreness, with symptoms radiating down her arms, and a surgical consult for same in 2017; and, m) Investigations 18 months pre-accident for ongoing soreness and dull aching in forearms.
[25] In terms of psychological issues, according to a consultation report dated July 27, 2015, Dr. Shenava, a psychiatrist, formally diagnosed Ms. Ingratta as suffering from “Major Depressive Disorder and ADHD symptoms”: see Affidavit of Lana Ingratta, sworn September 15, 2023 (“Ingratta Affidavit”). Another psychiatrist, Dr. Rizvi, in a report dated August 14, 2017, diagnosed her as having, inter alia, “History of Major Depressive Disorder, Chronic (stable)” and “Chronic Body Pain”. Ms. Ingratta also suffered from infrequent panic attacks, as well as anxiety, but according to Dr. McGrory, a psychologist who assessed her on behalf of her accident benefits insurer on August 15, 2019, these were likely below the relevant diagnostic threshold before the Collision.
[26] Ms. Ingratta has long been a recipient of various forms of social assistance. After leaving home at the age of 15, she received Ontario Works benefits “on and off”, and from 2015 forward, she received benefits under the Ontario Disability Support Program (“ODSP”), the application for which was supported by Dr. Shenava’s report noted above.
[27] At trial, counsel for the defendant referred to Ms. Ingratta as suffering from a “constellation of pre-accident health issues.” This is a fair characterization. At the time of the Collision, she had not worked at all for three years, and was receiving ODSP benefits due to depression, ADHD, and various physical ailments. Although she had completed a Personal Support Worker program at St. Clair College in 2007, for most of the 11 years between completing that program and the date of the Collision, she was not working and was in receipt of social assistance.
[28] Under cross-examination, Ms. Ingratta had generally poor recollection of various maladies and events recorded in her pre-Collision medical records, and in many cases denied things that were recorded by medical professionals in their notes and records. This included the following: numbness and weakness in her hands into late 2017; lower back pain; a spinal injury; arthritis; seeing a doctor in preparation for an MRI in 2017; impaired mobility; tinnitus; ankle pain; chronic body pain; physical restrictions and treatments recommended; and migraine headaches. At times she relented and said things like “[i]f it is in the records, I must have said it,” but in most instances she denied the matters recorded, sometimes adamantly.
[29] Ms. Ingratta was insistent that the only reasons she was on ODSP at that time of the Collision were ADHD and depression. She flatly denied that any bladder issues she suffered from prevented her from working. She was successfully impeached on this point on cross-examination, and finally adopted her evidence on her examination for discovery that she has “interstitial cystitis and it causes [her] to have bladder infections quite regularly so [she] was quite sick … on an antibiotic monthly that was stopping [her] from working.” She went on to admit that her right ankle had prevented her from working in the years leading up to the Collision.
[30] Ms. Ingratta testified that she enjoyed gardening before the Collision. Jackie Reardon (“Ms. Reardon”), a friend of Ms. Ingratta’s, gave an affidavit sworn September 14, 2023, and was cross-examined at trial. She corroborated Ms. Ingratta’s love of gardening before the Collision.
b) Ms. Ingratta’s Condition Post-Collision
[31] It is clear that Ms. Ingratta sustained some injuries that were caused by the Collision. Although she did not attend at the hospital the day of the Collision, she went to an urgent care clinic the following day and followed up with her family doctor, Dr. Aboobakar, in the weeks that followed. Some diagnostic tests were completed but did not show significant objective findings.
[32] Ms. Ingratta attended two physiotherapy appointments shortly after the Collision but has not had further physiotherapy treatments.
[33] Although Ms. Reardon gave evidence that she had enjoyed going for walks in Malden Park with Ms. Ingratta before the Collision, and did not do that anymore, both she and Ms. Ingratta acknowledged that they had done that for a period of time after the Collision as well. Ms. Ingratta acknowledged that they met together for walks at Malden Park four to five times in the summer of 2021.
[34] I note that Dr. McGrory’s report was attached as Exhibit C to the Ingratta Affidavit. He did not testify at trial. Dr. McGrory was not a treating physician but gave an opinion to Ms. Ingratta’s accident benefits insurer. His report does not comply with the requirements of Rule 53.03 concerning expert evidence, but notice was served in accordance with s. 52 of the Evidence Act, and Dr. McGrory can be considered a “participant expert”: see Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at para. 6. Having said that, the report is of limited value to the Court because it was prepared for a specific purpose relating to Ms. Ingratta’s claim for accident benefits. It does not assist the Court in determining whether Ms. Ingratta meets the threshold for recovery, as will be discussed below.
[35] Ms. Ingratta says that she is not able to garden or perform housework to the same level that she did before the Collision. She has also been found by Dr. McGrory to have met the diagnostic criteria for generalized anxiety disorder since the Collision. Dr. McGrory found that Ms. Ingratta “requires a mental health intervention to address her heightened levels of anxiety,” and approved a treatment plan to allow Ms. Ingratta to be assessed for social work intervention relating to her driving-related anxiety. Ms. Ingratta did not complete the treatment plan or receive further treatment other than periodic counselling with a social worker, Mr. DiPierdomenico.
[36] Since the Collision, Ms. Ingratta has continued to be independent with her own personal care; drive her car, although not on highways; go for long walks in Malden Park and her neighbourhood (at least until the summer of 2021); attend the gym and exercise on an elliptical machine; socialize and attend events with friends such as Ms. Reardon; care for her two special-needs children normally; grocery shop; shovel snow; perform catering functions three to four times a year; take trips with her children and friend, Ms. Reardon; travel twice to Africa, getting married during one of the trips to her husband, Courteny Jackson; and, since late 2018 or early 2019, work as a light-duty PSW and assistant to her social work counsellor 10-15 hours per week (except during the COVID-19 pandemic when she received CERB benefits).
[37] Similar to her testimony regarding her pre-Collision medical history, Ms. Ingratta disagreed in cross-examination with multiple entries in her medical records pertaining to the post-Collision period. In the clinical notes of Dr. Coates dated February 11, 2019, there was reference to Ms. Ingratta stepping on a clothing security tag and puncturing her right foot in the summer of 2018. Ms. Ingratta insisted that this incident happened “during COVID”, but offered no explanation as to how that note could have been made in February 2019 if that was the case. She denied the arthritis in her right shoulder and bone spurs in her hip that were mentioned in the 2021 notes of her treating occupational therapist and did not recall giving a medical history or experiencing arthritis in her right hip and right shoulder as noted in Mr. DiPierdomenico’s notes from September 2019. Ms. Ingratta did not recall having chest pain and inflammation in June 2020 as noted by Dr. Coates.
c) The Medical Experts and the Injuries Sustained
[38] Two orthopaedic surgeons (one called by the plaintiff, and one called by the defendant) physically examined Ms. Ingratta, reviewed medical documentation and other information provided to them by counsel, and gave expert opinions at trial. I have reviewed in detail and considered the evidence of both experts.
[39] Ms. Ingratta’s own expert was Dr. Pradeep Alexander, who authored a report dated August 3, 2022, and appended it to his own affidavit sworn September 15, 2023. The defence expert was Dr. Johnny T.C. Lau, who authored reports dated July 12, 2023, and September 7, 2023, appended as exhibits to his affidavit sworn September 7, 2023. Both Dr. Alexander and Dr. Lau were cross-examined at trial.
[40] In his report, Dr. Alexander opined that:
Ms. Ingratta has multiple impairments as a result of the accident that occurred on February 11, 2018. She continues to have severe headaches. She has a soft tissue injury to her cervical spine. She has a soft tissue injury to her lumbar spine. She has worsening neuropathy of her right ankle, and a Morton’s neuroma of her left foot. She reported driving anxiety and memory concentration issues.
She did not describe any neuropathic-type symptoms and was doing well at the time of the accident. She has weakness in her hands which I believe has worsened since the accident. She also had an EMG which showed a proximal carpal tunnel syndrome, I believe her weakness is worse now. She also had neuropathic symptoms in both of her legs. I believe this is new and a direct result of the 2018 accident.
[41] Dr. Alexander went on to confirm that in his opinion, Ms. Ingratta’s prognosis was “guarded”. He is of the view that as a result of the Collision, Ms. Ingratta sustained serious permanent impairment of important physical functions.
[42] In his report, Dr. Lau opined that “Ms. Ingratta sustained cervical and lumbar strain as a direct result of the accident on February 11, 2018, resulting in her ongoing chronic pain.” He does not consider her injuries to constitute serious permanent impairment of important physical functions.
[43] Both Dr. Alexander and Dr. Lau were cross-examined at trial. I prefer the evidence of Dr. Lau. There were significant issues with Dr. Alexander’s evidence. Most importantly, I agree with the submission of counsel for the defendant that Dr. Alexander purported to give opinions with respect to memory issues, concentration issues, driving anxiety, headaches, and neuropathy, which he admitted were outside the scope of his expertise. Although Dr. Alexander opined that the Morton’s neuroma of the left foot was caused by the Collision, there was really no evidentiary foundation for this conclusion – it was not diagnosed or treated until years after the Collison. Moreover, Dr. Alexander admitted that he did not have any of the reports of Dr. Ropchan, who diagnosed a Morton’s neuroma in 2022 and made no mention of the Collision at all.
[44] Finally, Dr. Alexander’s conclusions drew heavily upon the self-reporting of Ms. Ingratta. I find that although Ms. Ingratta was generally credible, her evidence at trial with respect to her medical history was not reliable, given the multiple instances in which she was contradicted by entries in her medical records and her own earlier testimony. While it was not unreasonable for Dr. Alexander to have taken Ms. Ingratta at her word, her lack of reliability with respect to her medical history necessarily undermines his opinions and conclusions. For those reasons, I reject Dr. Alexander’s evidence.
[45] Dr. Lau gave his evidence succinctly and clearly and was not shaken at all on cross-examination by counsel for the plaintiff. He based his conclusions on his review of the records provided to him and his examination of Ms. Ingratta; he did not rely significantly upon her own self-reporting. He explained why he disagreed with certain of Dr. Alexander’s findings, and I agree with and accept his explanations. He did not stray from his area of expertise, other than by way of reciting relevant parts of Ms. Ingratta’s significant history. Finally, his conclusion with respect to the relationship between the Collision and a Morton’s neuroma was much more consistent with the totality of the evidence. For those reasons, I find him to have been a credible and reliable witness.
[46] In summary, I accept Dr. Lau’s diagnosis, and find that Ms. Ingratta sustained cervical and lumbar strain resulting in an exacerbation of her ongoing chronic pain as a direct result of the Collision. On the basis of Dr. McGrory’s evidence, I accept that to some extent, the Collision caused or contributed to her generalized anxiety disorder, headaches, and driving anxiety. I reject Ms. Ingratta’s claims that the Collision caused or contributed to her alleged neuropathy and Morton’s neuroma.
(C) The Injuries Do Not Meet the Threshold
[47] The threshold for recovery in an action for general damages or health care expenses is mandated by ss. 267.4 to 267.12 of the Insurance Act, R.S.O. 1990, c. I.8 (“Insurance Act”). The Insurance Act provides that no person is liable for damages for general damages or health care expenses arising from the use or operation of a motor vehicle, unless the plaintiff has sustained either a serious disfigurement, or a permanent and serious impairment of an important physical, mental, or psychological function. The threshold is an exception to the statutory prohibition on recovery of such damages. General damages are subject to a further monetary threshold, which has the effect of reducing the amount payable to the plaintiff by a deductible if the damages are assessed under a prescribed amount.
[48] In Meyer et al. v. Bright et al. (1993), 15 O.R. (3d) 129 (C.A.) (“Meyer”) the Ontario Court of Appeal outlined the three-part inquiry to be undertaken in the threshold analysis, as the threshold was defined at that time, as follows, at p. 137:
- Has the injured person sustained permanent impairment of a physical, mental or psychological function?
- If yes, is the function which is permanently impaired important?
- If yes, is the impairment of the important function serious?
[Emphasis added].
[49] The Meyer analytical approach is still used today, but is informed by ss. 4.1 to 4.3 of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 (“the Regulation”), which sets out definitions of the elements of “permanent serious impairment of an important physical, mental or psychological function” for the purposes of s. 267.5 of the Insurance Act, and mandates the evidence needed to prove that the threshold has been met: see also Nissan v. McNamee (“Nissan”).
[50] Section 4.2 of the Regulation provides as follows:
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
The impairment must, 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 in 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 accommodation 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.
For the function that is impaired to be an important function of the impaired person, the function 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.
For the impairment to be permanent, the impairment 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.
[51] On the question of evidence that must be led by a person seeking to establish that she meets the threshold, s. 4.3 of the Regulation provides as follows:
4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, 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.
(3) The evidence of the physician, (a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and (b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.
[52] I will now consider each element of the threshold analysis in turn.
a) Has Ms. Ingratta sustained permanent impairment of a physical, mental or psychological function?
[53] Dr. Alexander’s report was the only evidence adduced by Ms. Ingratta from a physician in attempted compliance with s. 4.3 of the Regulation. Dr. Alexander commented on certain mental and psychological functions, but these are clearly not within the scope of his expertise. I do not accept the report of Dr. McGrory as fulfilling the mandatory requirements of s. 4.3, and therefore am unable to find that there has been a permanent impairment of a mental or psychological function.
[54] The remaining question is whether Ms. Ingratta has sustained a permanent impairment of a physical function, considering the evidence at trial and the criteria in paragraph 4.2(1)(3) of the Regulation as set out above.
[55] As noted previously, Dr. Lau’s opinion was that “Ms. Ingratta sustained cervical and lumbar strain as a direct result of the accident on February 11, 2018, resulting in her ongoing chronic pain.” Counsel for the plaintiff argued the phrase “resulting in her ongoing chronic pain” was effectively an admission that Ms. Ingratta’s condition was permanent. However, Dr. Lau also noted that:
The accident of February 11, 2018 caused an exacerbation of her pre-existing chronic cervical and lumbar pain. However, after the accident of February 11, 2018, Ms. Ingratta returned back to work part time as a PSW in November 2018. Before the accident of February 11, 2018, Ms. Ingratta had so much cervical and lumbar spine pain that she was on ODSP/disability payments and not working. After the accident of February 11, 2018, despite Ms. Ingratta’s cervical and lumbar spine pain, she was able to return part time to PSW work in November 2018. Thus it is difficult to determine how much of her current cervical and lumbar spine pain is due to her baseline chronic pain that was present before the accident of February 11, 2018 since her functional abilities improved after the accident of February 11, 2018. [Emphasis added].
[56] I accept the general principle elucidated in Hartwick v. Simser, at para. 87:
It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold. [Emphasis added, citations omitted].
[57] I am mindful of the concerns expressed by Dr. Lau and have some concerns about Ms. Ingratta’s inconsistent participation in recommended treatments. Although I have found Ms. Ingratta sustained injuries in the Collision (cervical and lumbar strain exacerbating existing chronic pain), I have a great deal of difficulty accepting that the impairments resulting from these injuries meet any of the criteria set forth in ss. 4.2(1) of the Regulation. Specifically,
- Ms. Ingratta did not have “regular or usual employment” at the time of the Collision;
- Ms. Ingratta was not “training for a career” at the time of the Collision; and,
- the impairments interfere with some of Ms. Ingratta’s usual activities of daily living (e.g., gardening), but even if that interference is substantial, the impairments do not interfere with most of her usual activities of daily living: see Nissan, at paras. 25-26 and 37.
[58] Since continuous fulfilment of the criteria in para. 4.2(1)(1) is one of the criteria for finding an impairment to be permanent under subpara. 4.2(1)(3)(ii), I am unable to find that the impairments are permanent. I am also not satisfied that the impairments have been continuous since the Collision, or that Ms. Ingratta has reasonably participated in recommended treatment.
[59] In the event that I am wrong about the permanence of the impairments, I will move on to briefly consider the other elements of the threshold analysis.
b) Were the impairments important?
[60] In considering the importance of an impairment in the context of a case involving a plaintiff with significant pre-existing health issues, Trimble J. held in Mann v. Jefferson, 2019 ONSC 1107, at para. 151 (“Mann”):
The court must consider the importance of the bodily function in issue as it relates to the particular individual. Is it one that plays a major role in the health, general well-being, and way of life of the Plaintiff? The analysis is subjective and qualitative. What must be considered is whether the injured person, as a whole, and the effect which the bodily function involved has upon the person/s way of life broadly. [Citations omitted].
[61] In Ms. Ingratta’s case, based upon her evidence and the evidence of Ms. Reardon, and taking into account subpara. 4.2(1)(2) of the Regulation, I find that the functions that were impaired (particularly gardening and walking) were important to her life and well-being at the time of the Collision. Accordingly, they were important for the purposes of the Insurance Act and the Regulation.
c) Were the impairments serious?
[62] Again in Mann, Trimble J. considered the question of the seriousness of an impairment, at para. 153:
In order to determine whether the impairment is “serious”, the court must consider the seriousness of the impairment to the person, as opposed to the injury in isolation. Further, the impairments must go beyond tolerable. Interference may be frustrating, and even unpleasant, but if it does not go beyond tolerable, it is not serious. [Citations omitted].
[63] I find that Ms. Ingratta has failed to prove, on a balance of probabilities, that her impairments were “serious” as defined in the Insurance Act and the relevant jurisprudence, as compared to her condition immediately prior to the Collision. The lack of meaningful treatment, coupled with what appears to be an overall improvement of her functional abilities marked by her travels to Africa and a return to employment after many years of receiving disability benefits, and the unreliability of Ms. Ingratta’s evidence with respect to her own medical condition, all lead me to this conclusion.
d) Conclusion (Threshold)
[64] I find that Ms. Ingratta has failed to prove, on a balance of probabilities, that she suffers from a permanent serious impairment of an important physical, mental or psychological function as a result of the Collision.
(D) Damages
[65] Mr. McDonald caused the Collision and the cervical and lumbar strain suffered by Ms. Ingratta.
[66] Although Dr. McGrory’s evidence was limited and was not sufficient in its content to use in the threshold analysis, he did conclude that Ms. Ingratta now meets the diagnostic criteria for “generalized anxiety disorder” following the Collision, particularly related to driving anxiety. However, he also approved a treatment plan that was not pursued and recommended further mental health intervention that Ms. Ingratta has not obtained. For these reasons, even if I accept that Ms. Ingratta’s anxiety was exacerbated to some degree by the Collision, I would not award any damages for this injury due to her failure to mitigate to any appreciable degree.
[67] Counsel for the plaintiff submitted that general damages, including a component for loss of competitive advantage, should be assessed in the range of $75,000-$100,000. There was no income loss claim presented and no evidence to support any claim for loss of competitive advantage.
[68] Having considered all of the evidence, I would assess Ms. Ingratta’s general damages at $50,000, prior to any applicable statutory deductible. [3] No evidence was led to support a claim for special damages, including any claim for healthcare expenses.
Conclusion
[69] The defendant’s threshold motion is granted, and the action is dismissed.
[70] My presumptive view is that costs should follow the outcome, and I expect that experienced counsel will be able to agree on costs. Should they be unable to do so, the parties may make submissions with respect to the scale and quantum of costs in writing of no more than five (5) double-spaced pages (exclusive of any costs outline, bill of costs, dockets, offers to settle, or authorities), in accordance with the following schedule:
a. The defendant shall deliver his submissions within thirty (30) days following the release of these reasons; b. The plaintiff shall deliver her submissions within twenty (20) days following service of the defendant’s submissions; c. The defendant shall deliver his reply submissions, if any, which shall be limited to no more than three (3) pages, within five (5) days following service of the plaintiff’s submissions; and, d. If either party fails to deliver their submissions in accordance with this schedule, they shall be deemed to have waived their rights with respect to the issue of costs, and the Court may proceed to make its determination in the absence of their input or give such directions as the Court considers necessary or advisable.
Original Signed by “Justice J.R. Macfarlane”
J. Ross Macfarlane Justice
Released: January 17, 2024
Footnotes
[1] The documents were marked collectively at Exhibit “A” at trial. [2] I appreciated the efforts of Mr. Naples to assist with navigating the documents during the trial. [3] I was advised at trial that the deductible under the Insurance Act for 2023 was $44,367.24.