Court File and Parties

COURT FILE NO.: CV-15-527921 DATE: 20240702

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PORTIA YAA BOATENG Plaintiff – and – JOHN DOE, ANTHONY WILLIAMS, IVAN DIVKOVIC, DEIDRE RICHARDS and SECURITY NATIONAL INSURANCE COMPANY Defendants

Counsel: Natasha Germanski, for the Plaintiffs

Heard: In writing unopposed READ: June 24, 2024

Before: Papageorgiou J.

Overview

[1] The within action arises out of a motor vehicle accident that occurred on May 21, 2013.

[2] The Plaintiff, Portia Yaa Boateng, was the operator of a 2003 Mazda motor vehicle. The Co-Defendant, Ivan Divkovic, was the registered owner of a 2007 Yamaha motorcycle. On the day of the accident, the Co-Defendant, Anthony Williams, was the operator of the 2007 Yamaha motorcycle.

[3] The Plaintiff proceeded through an intersection, intending to make a left-hand turn, when the Yamaha motorcycle struck the Mazda motor vehicle on the front left side. The Co-Defendant, Anthony Williams, fled the scene of the accident on foot.

[4] Security National Insurance Company (“Security National”) was the Plaintiff’s insurer and also a defendant.

[5] The defendants Mr. Divkovic and Mr. Williams failed to defend the action. They were noted in default.

[6] Security National settled the Plaintiff’s claim by way of payment of $300,000 and took an assignment of her claim.

[7] Security National through the Plaintiff by virtue of Assignment dated December 28, 2022, sought Default Judgment against the at-fault operator of the Yamaha motorcycle, Anthony Williams.

[8] On April 17, 2024, I issued an endorsement indicating that the materials were deficient in that Security National had failed to provide any evidence, caselaw or factum supporting the reasonableness of the settlement.

[9] Security National then provided the materials. These materials showed that after Security National served its motion for default judgment, Mr. Divkovic responded, the matter was sent to a case conference and Mr. Divkovic is bringing a motion to set aside the noting in default which will be heard in January 2025.

[10] Security National now only seeks default judgment against Mr. Williams.

[11] Security National’s counsel advises that Mr. Divkovic’s counsel is aware of the motion for default judgment and does not take any position that the motion should not proceed as against Mr. Williams.

Decision

[12] I am satisfied that Security National has established that Mr. Williams is liable.

[13] I am also satisfied that the amount it paid, in the amount of $300,000 to settle the Plaintiff’s claim was fair and reasonable compensation for the injuries, impairments, losses and damages sustained by the Plaintiff.

Analysis

Liability

[14] As per Elekta Ltd. v. Rodkin, 2012 CarswellOnt 2928 (ONSC) the deemed admissions in the Statement of Claim as well as the affidavit evidence filed establish that Mr. Williams is liable.

[15] The Plaintiff pleaded that Mr. Williams was driving, that he struck the Plaintiff’s car, that he failed to exercise reasonable care, and that he fled the scene.

Damages

[16] The evidence filed supports the conclusion that the settlement in the amount of $300,000 was fair and reasonable.

[17] As stated in Bell v. Chatrie, 2019 ONSC 251 at para 10, where a claim for unliquidated damages proceeds by way of motion for judgment, facts going to damages must be proven. However, where an insurer is seeking default judgment in respect of a settlement it entered into, strict proof of damages may be impractical and expensive, therefore the amount of the settlement may be adopted as the measure of damages if it is established that the settlement was reasonable.

[18] Pursuant to section 267.6(5) of the Insurance Act, RSO 1990, c 1.8, the Plaintiff must have sustained a permanent and serious impairment of an important physical, mental, or psychological function in order to recover damages for non-pecuniary losses.

[19] Given the evidence discussed below, the Plaintiff reported ongoing physical complaints as well as psychological complaints. She is diagnosed with chronic pain and anxiety and depression. Her prognosis for recovery, several years after the accident, is unfavorable. I find that she sustained a permanent and serious impairment of an important physical, mental and psychological function, such that her claim for general damages surpasses the threshold in the Insurance Act.

• The Plaintiff was 29 at the time of the accident. At the time of the subject accident, she suffered from neck pain, left ear popping sound, lower, middle, and upper back pain, bilateral knee pain, left forearm bruise, left forearm pain, and concentration problems.
• Following the accident, she was sent to Humber River Hospital via ambulance due to complaints of facial pain and neck pain.
• The Plaintiff’s injuries then developed into chronic pain with psychological overlay.
• She has been prescribed several different types of pain medication to treat her symptoms and has received pain injections. The Plaintiff has undergone chiropractic treatment as well as massage therapy treatment. She has visited multiple medical professionals and has been referred to a chronic pain clinic.
• She attended Islington Chiropractic twice per week for her hip and low back pain. She also attended Canadian Memorial Chiropractic College. There was limited improvement.
• The Plaintiff was referred to Dr. Pierre Kirwan, Physiatrist, by her family doctor. She attended regular sessions with Dr. Kirwan between 2014 and 2015. He initially diagnosed her with chronic mechanical cervical thoracic lumbar pain, cervicogenic headache and a left rotator cuff tendinosis plus possibility of a left TMJ syndrome.
• She was also referred to Karmy Pain Clinic. Nerve block and trigger point injections were recommended to assist in the management of her chronic pain. She was also prescribed Baclofen.
• She also attended the Centre for Pain Management where she received pain injections.
• A chronic pain assessment completed by Dr. Gregory Karmy, dated October 17, 2019, makes the following diagnosis, all caused by the subject accident:
  • persisting symptoms following mild traumatic brain injury.
  • chronic post-traumatic headache.
  • chronic mechanical neck pain, associated with possible bilateral radiculopathy likely originating from the cervical discs and facet joints.
  • chronic mechanical back pain, likely originating from the spinal disc and facet joints.
  • myofascial pain syndrome.
  • sacroiliac joint dysfunction.
  • chronic pain syndrome.
  • sleep disorder.
  • adjustment disorder with mixed anxiety and depressed mood and symptoms of passenger and driving anxiety and posttraumatic symptoms.
• In his report, Dr. Karmy indicated that given the length of the Plaintiff’s impairments and their multifactorial nature, her prognosis for full recovery, complete functional restoration and being pain free is guarded.
• The Plaintiff continued to attend treatment 1-2 times per week at Canadian Memorial Chiropractic College in 2021. The Plaintiff was taking several medications and supplements for her pain symptoms, including Tylenol, CBD oil, Naproxen 500 mg, Vitamin D, FK7 Vitamin, protein vitamin, and Cymbalta 60 mg. The Clinical Notes and Records from Canadian Memorial Chiropractic College further indicate chronic grade II mechanical low back pain with associated myofascial pain, chronic grade II mechanical neck pain with associated cervicogenic headaches, chronic mechanical thoracic spine pain, and osteochondral defect of L medial distal tibia.
• The Plaintiff obtained psychological treatment at the University of Toronto with Dr. Anita Gupta, while she was a student. She also saw Dr. Arpita Biswas and Dr. Tiffany Florindo for her psychological issues. Dr. Florindo diagnosed the Plaintiff with depression and PTSD. She indicated that her chronic pain is affecting her mood and sleep. She was prescribed Cymbalta and Imovane. It was also recommended that she engage in CBT for her anxiety.
• A Psychological Report completed by Dr. Jacqueline Brunshaw, dated October 14, 2019, makes the following diagnosis: 1. Adjustment Disorder with Anxiety; 2. Major Depressive Disorder; and 3. Specific Phobia (Driving, Being a Passenger, Being a Pedestrian).
• The Plaintiff had a Bachelor of Science in Nursing. She was working as a full time Registered Nurse at Toronto Western Hospital, earning $31.00 per hour at the time of the accident. She took 4-5 months off work before attempting to return on modified duties (clerical work and no heavy lifting) in September 2013. However, she struggled to work, even on modified duties. The following year, in September 2014, the Plaintiff became a Patient Navigator. She tried to build up her hours to 8 hours per day. She was fired in November 2015 for cause. The Plaintiff indicated that she was wrongfully dismissed due to her pain and inability to perform her normal duties.
• The Plaintiff returned to school to complete a master’s in health information in 2014 at the University of Toronto. It was an 18-month program, but it took the Plaintiff longer to complete due to her ongoing pain symptoms. She graduated in November 2016 and obtained a job in informatics at Humber River Hospital. However, she was unable to commit to full-time hours due to her symptoms and instead, obtained a part-time position as a Resource Nurse at the same hospital. She later returned back to the informatics department in 2017. Although she found it difficult to sit for prolonged periods of time, she found it less physically demanding. She worked there until the department closed in 2018. She reportedly worked at CareCor Health in 2020. As of July 2022, she has been working as a Registered Nurse at Humber River Hospital.
• The Plaintiff has provided evidence of past and future economic loss, based upon a reduction in work hours, from full-time following the subject accident. She changed jobs several times, based on her physical capabilities. Her income tax returns between 2013 and 2021 show her income fluctuated considerably since the subject accident and that she was earning less in the last few years, despite the high demand for nurses in the years since the onset of the COVID-19 pandemic.
• While it is difficult to quantify, the Plaintiff’s relatively young age represents a significant risk of exposure to a future possibility of ongoing economic loss.
• She has housekeeping difficulties for which she sought assistance from family members. In accordance with the decision of McIntyre v. Docherty, 2009 ONCA 448, a Plaintiff can be compensated for inefficiencies even where she “may perform some or all of the housekeeping functions, but with increased pain and decreased efficiency.”
• Given her injuries, the Plaintiff is likely to have ongoing medical expenses.
• The insurer’s overall assessment of the individual heads of damages for general damages ($90,000-$110,000), past economic loss ($112,000), future economic loss ($50,000-$60,000), housekeeping ($20,000), future medical bills and rehabilitation ($15,000) net of the statutory deductible plus HST exceeds the amount of the settlement.

[20] I am further satisfied that the settlement of her claim is fair and reasonable based upon the above evidence and submissions.

[21] Security National seeks costs in the amount of $7,322.40 which I find is fair and reasonable and which I award.

Papageorgiou J. Released: July 2, 2024