Court File and Parties

COURT FILE NO.: CV-15-00541672-0000 DATE: 2024-07-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Zorica Grujic, Plaintiff AND: Daniel M. Fine, Defendant

BEFORE: Carole J. Brown J.

COUNSEL: Lena Vartanian, Counsel for the Plaintiff Callum Micucci, Yasar Saffie and Troy Asselin, Counsel for the Defendant

HEARD: June 5, 2024

Endorsement

The Background

[1] The defendant brings this threshold motion in the above-captioned action.

[2] The plaintiff, Zorica Grujic, brought this action for damages for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on December 7, 2013. Ms. Grujic had attempted to cross Yonge Street in Toronto, at rush hour after sunset, not at a crosswalk. Due to the heavy traffic, she was forced to wait at the yellow dotted line in the middle of the road. While waiting there, the mirror of the defendant’s vehicle driving southbound on Yonge Street hit her.

[3] As a result of this impact, she commenced litigation against the defendant. The trial of this action proceeded with a jury for a period of nine days. The plaintiff sought non-pecuniary damages.

[4] The jury returned its verdict, finding the plaintiff 60% liable and the defendant 40% liable for the accident, and awarded the plaintiff $40,000 in non-pecuniary damages.

[5] At the beginning of trial, the defendant had indicated that, depending on the outcome, they would be moving for a determination of whether the plaintiff’s claim for non-pecuniary loss was statute-barred by reason of s. 267.5(5) of the Insurance Act, R.S.O 1990, c. I. 8.

[6] Based on the reasons herein, I grant the defendant’s threshold motion. I find that the plaintiff’s claim for non-pecuniary loss is barred by reason of her failure to prove that her injuries fall within the exceptions set out in s. 267.5(5) of the Insurance Act.

[7] In arriving at my decision, I have considered the caselaw relied upon by counsel for the plaintiff and the defendant.

The Threshold Motion

The Legislative Framework

[8] The defendant seeks an order that the plaintiff’s claim for non-pecuniary loss is barred on the basis that her injuries do not fall within the statutory immunity contained in s. 267.5(5) of the Insurance Act, and the regulations passed pursuant thereto. This is referred to as the “Threshold Motion”.

[9] Section 267.5(12) provides as follows:

(12) Motion to determine if threshold motion met; non-pecuniary loss. In an action for loss or damage from the bodily injury or death arising directly or indirectly from the use or operation of an automobile, a judge shall, on motion made before trial with the consent of the parties or in accordance with an order of a judge who conducts a pretrial conference, determine for the purpose of subsections (3) and (5) whether, 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.

[10] It is agreed that the plaintiff has not suffered a permanent serious disfigurement. The only issue in this motion is whether the plaintiff suffered permanent serious impairment of an important physical, mental or psychological function pursuant to s. 267.5(12)(b) as a result of the accident of December 7, 2013.

[11] The applicable statutory provisions and regulations that must be considered in determining this threshold motion are contained in s. 267.5 of the Insurance Act and in sections 4.1, 4.2 and 4.3 of the pertinent regulations passed pursuant to the Insurance Act; specifically, Court Proceedings for Automobile Accidents That Occur on or after November 1, 1996, O. Reg. 461/96 (“O. Reg. 461/96”) as amended by Court Proceedings for Automobile Accidents That Occur on or after November 1, 1996, O. Reg. 381/03 (“O. Reg. 381/03”). Section 267.5(5)(b) of the Insurance Act provides that the defendant will not be liable in this action for non-pecuniary loss unless the plaintiff has sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function”. Only the second element is pertinent to this analysis, as set out in section 267.5(5)(b):

Non-Pecuniary Loss

(5) 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,

(b) permanent serious impairment of an important physical, mental or psychological function.

[12] Section 4.1 of O. Reg. 461/96 explains that “permanent serious impairment of an important physical, mental or psychological function” means “impairment of a person that meets the criteria set out in section 4.2”. In order to be a “permanent serious impairment of an important physical, mental or psychological function”, the impairment must meet all of the criteria set out in sections 4.2(1)(1.), (2.) and (3.) of O. Reg. 491/96.

The Burden of Proof

[13] The burden of proof is on the plaintiff to establish that her impairments meet the statutory exception set out in section 267.5(5)(b) of the Insurance Act: Meyer v. Bright (1993), 15 O. R. (3d) 129 (C. A.), para. 50; Sabourin v. Dominion of Canada General Insurance, [2009] O. J. No. 1425 (S. C.), para. 78.

[14] The Court of Appeal in Meyer v. Bright, para. 50, set forth a tripartite analysis to determine whether the plaintiff had established the exception to the threshold as follows:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired important?
3. If yes, is the impairment of the important function serious?

[15] The evidence required to establish the tripartite test on this threshold motion is set forth at s. 4.3(1) of O. Reg. 461/96 which provides that the evidence that must be adduced by the plaintiff to prove permanent serious impairment of an important physical, mental or psychological function, is 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.

[16] Section 4.3 requires that the plaintiff must plead evidence of “one or more physicians” who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged” and who bases his or her opinion on “medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine”. This requirement may be satisfied by participant medical experts, as characterized by the Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R (3d) 721, just as it may be satisfied by the physician litigation expert retained to provide expert opinion evidence in accordance with Rule 53 of the Rules of Civil Procedure, R. R. O. 1990, reg. 194, and who satisfies the test for admissibility: R v. Abbey, 2017 ONCA 640, 140 O.R (3d) 241. Where the participant physician expert proffers an opinion extending beyond that formed as part of the “ordinary exercise of his or her skill, knowledge, training and experience while observing or participating” in the patient’s care and treatment, he or she must comply with Rule 53.03: Westerhof, at paras. 59-64.

[17] While permanent does not mean forever, impairment must last into the indefinite future, must be continuous since the accident based upon medical evidence and must not be expected to improve, subject to the plaintiff reasonably participating in recommended treatment: see Osmani v. State Farm, 2023 ONSC 5438, para. 18; Noori v. Liu, 2020 ONSC 3049, para. 39.

[18] Serious impairment must go beyond what is tolerable. The determination is made in light of the cumulative effect on a plaintiff’s life. A plaintiff must do more than simply experience pain in order to bring herself within the exception to the threshold. The onus is on the plaintiff to prove, on a balance of probabilities, that the pain experienced has substantially interfered with most of the plaintiff’s activities of daily living.

[19] Where the plaintiff is still able to work and enjoy many amenities in life, the plaintiff will have failed to establish a permanent serious impairment sufficient to recover damages for non-pecuniary loss: Strangis v. Patafio, 2013 ONSC 6240, para. 20.

[20] The importance of a bodily function is qualitative. It must be important to the plaintiff as a whole. In determining this, the court will review the domestic, social and employment activities of a litigant, before and after the collision and determine whether the impairment related to things the plaintiff rarely did, such that the plaintiff may now merely be inconvenienced or reduced in her opportunity to do them. In such a case, the statutory test may not be met: see Osmani v. State Farm, 2023 ONSC 5438; Mann v. Jefferson, 2019 ONSC 1107 at para. 151; Dennie v. Hamilton at paras. 33-34.

[21] The initial purpose of the statutory threshold provisions was to restrict tort claims by weeding out smaller ones, which is effected by balancing a denial of compensation in tort by providing more generous first party, no fault accident benefits: Sabourin v. Dominion of Canada General Insurance Co., para. 74, 170 6ACWS (3d) 1034. Only a serious and permanent impairment will qualify as an exception under s. 267.5. The Legislature intended that injured persons are required to bear some interference with their enjoyment of life without being able to sue: Meyer v. Bright (sub nom Lento v Castaldo), 1993 CarswellOnt 51, at para. 63, 15 OR (3d) 129 (Ont CA).

Causation

[22] The defendant submits that the plaintiff is unable to establish causation; i.e. that the plaintiff’s current complaints are the result of the MVA of December 7, 2013 nor that said injuries constitute permanent, serious impairment of an important function.

[23] The plaintiff relies on the expert reports of Drs. Wilderman and Basile, both done in 2023, after the plaintiff had had four subsequent MVAs, after December 7, 2013. Both reports relied heavily on the plaintiff’s subjective recounting to the medical practitioners of her injuries before and after the December 7, 2013 MVA. Such subjective recounting calls into account her credibility, in the circumstances of this action.

[24] Dr. Wilderman is a chronic pain specialist. He assessed the plaintiff on September 12, 2023, after four additional motor vehicle accidents had occurred between the subject accident of December 7, 2013 and his assessment. The plaintiff reported to him that, on December 7, 2013, she struck her head. She reported that she had had back and leg pain from two prior motor vehicle accidents, and reported being involved in two additional motor vehicle accidents after December 7, 2013 which further aggravated her injuries. She complained of neck pain, lower back pain, upper back pain, bilateral shoulder pain, right foot pain, headaches, bilateral TMJ pain. He opined that the plaintiff had “sustained a serious and permanent impairment of an important physical and psychological function as a result of the MVA” of December 7, 2013. He further opined that “the degree of her functional limitations is considered serious as it interferes with a substantial amount of her pre-accident activities of daily living, particularly employment, and is associated with permanent symptoms, such as severe pain and sleep disorder. He failed to state the specific nature of the impairment, the permanence of the impairment, the specific function that is impaired, and the importance of the specific function to the plaintiff.

[25] In his report, he further stated that the plaintiff “notes that her pain and limitations prevent her from spending leisure time with family and friends, attending social and community events, going to movies and concerts, reading, rollerblading, dancing, playing beach volleyball, going to the gym 3-4 times per week, and performing pre-accident employment and housekeeping/home maintenance functions as she did previously”. He further noted that the plaintiff:

“reports that she resumed her employment functions, on a part time basis, a few months following the accident; however, she mentions that she has been losing clients due to poor concentration ability and fatigue. … She has lost a large portion of her income as a result. She suffers a substantial inability to perform the essential tasks of her pre-accident employment due to pain and ensuing functional physical limitations, psychological distress, persistent fatigue and decreased concentration and memory ability. As a result of the impairment arising from the accident, the patient has also become unfit to engage in any employment for which she is reasonably suited by education, training, or experience. This certainly affects her earning capacity, financial status, and employment plans, opportunities and competitiveness adversely.”

[26] In cross-examination at trial, Dr. Wilderman testified that the plaintiff had not advised him of all of the events that she had attended from early 2014, including concerts, dinners out with friends, social events, weddings, and other gatherings. Nor did she advise Dr. Wilderman prior to his report, that she had travelled to India in 2014, to Australia in 2015, and then to Morocco and Ibiza. He indicated that this would have been helpful before he wrote his report. He further stated in cross-examination that he had not been advised of her income from 2015 to 2023, and had not been advised that in 2023, when he opined on her permanent impairment, she had earned $127,508.37. Further, she did not tell him that she was, by 2023, living in Spanish, Ontario and would drive to Toronto, approximately four hours and 15 minutes distant. He stated that it would have been helpful to know all of this prior to writing his report. He further stated that if he learned that information given to him regarding the plaintiff was inaccurate or incomplete, he would be open to reconsidering his opinion, but would need sufficient evidence to do so.

[27] Given the assumptions and information with which he had to work and the foundations on which his expert opinion was based, which are not supported by the evidence at trial, I attribute little, if any, weight to Dr. Wilderman’s opinions.

[28] All of the foregoing further casts doubt on the plaintiff’s credibility, which is in issue given that her subjective accountings of the accident and her injuries and sequelae form a significant part of the medical practitioners’ reports and opinions of her complaints.

[29] Dr. Basile is a neurologist and the Medical Director of the McKenzie Mind and Brain Clinic. He assessed the plaintiff on September 13, 2023. She reported to Dr. Basile that she had had no history of depression, anxiety or any psychiatric illness prior to the subject accident. She indicated having two previous motor vehicle accidents in 2009 and 2011, in which she sustained injuries leading to lower back pain and right lower extremity pain from which she had somewhat recovered and indicates that her pain was mild and manageable but got significantly worse after the subject accident of December 7, 2013. She reported having another MVA in 2019 in which she had hit her head and sustained a concussion leading to worsening of her memory, focus, balance, concentration and other concussion symptoms. Her other symptoms of neck pain and lower back pain also worsened. She stated to Dr. Basile that she did not know whether she had hit her head in the subject accident (this was one day after she had stated to Dr. Wilderman that she had hit her head); she reported to Dr. Basile that she did not lose consciousness.

[30] Based on the report of Dr. Chantal Vaidyanath, which Dr. Basile had reviewed, he opined that “it would seem probable that she suffered a mild traumatic brain injury affecting her fronto-temporal brain function. He was of the opinion, based on the plaintiff’s statements made to him, that other than back pain and right lower extremity pain, she had no significant complaints of neck pain, headaches, concentration/memory issues prior to the accident. However, he had not seen the Toronto Rehabilitation Form from 2011, in which she reported memory issues.

[31] It was his opinion that

“from a neurological perspective, Ms. Grujic has sustained a permanent and serious impairment of an important physical and cognitive function. The impairments have been continuous since the accident date of December 7, 2013…. The cognitive deficits have affected her ability to focus and concentrate as well as her ability to have social interaction and she has increased agitation which is secondary to her post concussive syndrome and her emotional ability/pseudo-bulbar symptoms.… As a result of the motor vehicle accident, the client has suffered an important impairment that has affected her ability to perform her personal care as well as housekeeping and home maintenance duties and she would have prior to the motor vehicle accident.… From a recreational standpoint she is not able to perform any tasks involving heavy lifting, bending, prolonged sitting, or standing and has not returned to any of her pre-accident recreational activities since the motor vehicle accident”.

[32] As regards employment, Dr. Basile opined that the plaintiff “has both physical and cognitive impairments that caused a substantial inability to perform the essential tasks of her pre-accident employment or alternate type of employment.” Further, he opined that the plaintiff “does have both physical and cognitive impairments that cause a complete inability to be gainfully employed or self-employed for which she is reasonably suited by education, training or experience”.

[33] In cross-examination, Dr. Basile stated that if he had learned after the assessment that information was incomplete or incorrect, he would be open to changing his opinion. He was only aware of motor vehicle accidents sustained in 2009, 2011, 2013 and 2019. He did not know about the 2023 motor vehicle accident, nor did he know about the other five accidents in which she had been involved. The plaintiff did not tell Dr. Basile that she had neck pain prior to the 2013 accident, and did not tell him that she had anxiety, nervousness, fatigue and memory issues prior to that accident. He stated that it would have been relevant to know these conditions as the memory is important in assessing concussion. She did not tell him that movement made her pain worse or that prolonged sitting and driving bothered her. She had told Dr. Basile that her back pain was better prior to the 2013 accident, but testified at trial that it was worse. Dr. Basile acknowledged that the information was incomplete and that it would have been important to some degree to know these things. The plaintiff told him that she had not returned to pre-accident activities, but failed to tell him that she continued to attend concerts, parties and other events and went on long trips such as to India, Australia, Morocco and Ibiza after the accident of December 7, 2013. He stated that this would have been important to know. She also told him that she was unable to work and that since the 2013 motor vehicle accident, she was only working part time and was barely working. She did not tell him about her income, nor did she tell him that in 2023, when he saw her, she earned $127,508.37.

[34] I do not find that Dr. Basile had sufficient or correct information about the plaintiff to provide his assessment as to whether she met the threshold test. As such, the foundation on which his expert opinion was based was not accurate or complete, and I do not place any weight on his opinion regarding the threshold questions.

[35] I do not find that the medical practitioners relied upon by the plaintiff were able to state that the injuries from which she was suffering 11 years later, when they assessed her, were attributable to the subject accident of December 7, 2013.

[36] Further, a significant amount of Dr. Basile’s information came from the plaintiff herself and I do not find her evidence to be credible or reliable. She continued to tell different parties different things about her injuries from 2013 onward. She appeared to be selective in her recounting of what had happened and how it had affected her. She told different doctors different things about the accident, her injuries and whether or not she had hit her head. She told different things to different doctors about her limitations and restrictions after the accident as regards work, leisure activities and travel.

[37] She told her colleagues and friends different things about her injuries. Her four lay witnesses did not know about all of her motor vehicle accidents. The two witnesses with whom she worked at Sutton Realty had submitted statements with respect to a prior motor vehicle accident, which statements seem to have been recycled for the purpose of the subject accident, pursuant to the cross-examination evidence.

[38] The plaintiff further failed to candidly state that she had had debts owing to the CRA in 2014, which caused a bankruptcy. She had attributed her bankruptcy initially to “a couple of credit cards”, when she actually owed the CRA over $100,000 and owed HST of approximately $19,000, which she testified in cross-examination that she had spent rather than remitting it. As indicated by several of her medical practitioners, as indicated above, this bankruptcy may have factored into her stress and memory and sleep issues in 2014. Based on these factors, among others, I find that the plaintiff is not credible or reliable.

[39] As regards a concussion suffered in the subject accident, I do not find Dr. Basile’s opinion to be well-founded. It was based, firstly, on the plaintiff reporting to him, 11 years later, that she felt dazed at the scene of the December 7, 2013 accident, and had a change in cognitive function after the accident. While he stated that he would generally look to the ambulance call reports, hospital records and family physician records in arriving at an opinion about a concussion, he conceded that in this case, to accept his opinion, the court would have to accept the plaintiff’s account over that of the ambulance call report, hospital records and the first nine months of the family physician’s records. I do not accept that and do not accept the plaintiff’s account over the medical records.

[40] The plaintiff’s treating physiatrist, Dr. Chantal Vaidyanath, testified that if the first documented signs of a concussion appeared nine months later, in the family doctor’s reports, as they did here, then the concussion diagnosis would become less and less reliable.

[41] Dr. Yufe, the expert neurologist called by the defendant, found no neurological impairment, explained the importance of the initial medical records prepared immediately after the accident, including the ambulance call report, hospital records and initial family doctor’s records, and stated that if symptoms of a concussion first emerged nine months later, there must have been another cause for them as they would not be related to the accident.

[42] Drs. Vaidyanath, Yufe and Pubben all testified that memory issues arising nine months after the motor vehicle accident would more likely come from other stressful events such as multiple lawsuits prior to this action, court dates for her other lawsuits, poor sleep and serious financial issues such as her bankruptcy in 2014.

[43] While the evidence would appear to support the fact that the plaintiff suffered a re-aggravation of soft tissue and back injuries sustained in motor vehicle accidents occurring prior to December 7, 2013, I do not find that the injuries sustained in the December 7, 2013 accident meet the requisite tests for a finding of serious and permanent impairment of an important function, as defined in the legislation. I do not find there to be serious impairment as defined in the legislation. I do not find there to have been an impairment that substantially interfered with most of her activities of daily living or of her ability to work and earn a living. I do not find that the plaintiff has established that she suffered an impairment that was important or permanent, again as described in the legislation, arising from the December 7, 2013 accident, as defined in the Act.

[44] Indeed, the plaintiff did not adduce specific information about what functions were impaired, or how seriously, and how important those bodily functions were to her employment and activities of daily life.

[45] Finally, I do not find that s. 4.3 of the Regulations have been satisfied by the plaintiff, as is her onus.

[46] Accordingly, I find that the plaintiff has failed to establish that she sustained a serious, permanent impairment of an important function as required by the legislation. As a result, the plaintiff’s claim for general damages must be dismissed as statute-barred.

C.J. Brown J. Date: July 9, 2024