COURT FILE NO.: CV-20-00645748-0000 DATE: 20241104 ONTARIO SUPERIOR COURT OF JUSTICE

RE: Patrick Addai, Plaintiff -and- Kelly Parkinson, Defendant

BEFORE: L. Brownstone J.

COUNSEL: Paul Giuliano and Jagpreet Sekhon, for the Plaintiff Michael Silver and Jeffrey Pasternak, for the Defendant

HEARD: October 25, 2024

Ruling on Threshold Motion

[1] The Plaintiff, Patrick Addai, brought this action for damages for personal injuries he claimed to have sustained as a result of a motor vehicle accident that occurred on August 25, 2018. Mr. Addai was stopped at a red light on Dundas Ave. W., west of the 427, when Ms. Parkinson rear-ended him.

[2] Although Ms. Parkinson did not formally admit that she breached the standard of care, she acknowledged that she was responsible for the accident and that Mr. Addai did nothing to cause it.

[3] The trial proceeded with a jury over the course of nine days. Mr. Addai sought damages for non-pecuniary loss, past income and future income loss/loss of earning capacity, out of pocket expenses, future dental care expenses, and past and future housekeeping expenses.

[4] Ms. Parkinson moved for a determination of whether Mr. Addai’s claim for non-pecuniary loss was barred by reason of s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. I heard submissions on this motion after the jury commenced its deliberations.

[5] The jury returned its verdict and did not award Mr. Addai any amount. This has no effect on the requirement that I render a decision on the threshold issue: Mandel v. Fakhim, 2018 ONSC 7580 (Div. Ct.).

[6] For the reasons that follow, I grant Ms. Parkinson’s motion, I find that Mr. Addai’s claim for non-pecuniary loss is barred because he did not prove that his injuries fall with the exception set out in s. 267.5(5) of the Insurance Act.

Governing Law

[7] The parties are agreed on the law that applies to this threshold motion.

[8] The governing provision of the Insurance Act, R.S.O. 1990, c. I.8 provides as follows:

(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,

(a) permanent serious disfigurement; or

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

[9] In order to meet the definition of “permanent serious impairment of an important physical, mental or psychological function” the impairment must meet all of the criteria set out in s. 4.2(1)(1.)(2.) and (3.) of O.Reg. 461/96 as amended. Section 4.3 of the regulation outlines the minimum evidence the plaintiff shall adduce to establish the requisite impairment. The plaintiff must provide evidence of a qualified physician or physicians that addresses specific issues set out in s. 4.3.

[10] The burden of proof is on the plaintiff to establish that his 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.), at para. 50.

[11] The trial judge must first answer whether the injured person sustained a permanent impairment of a physical, mental, or psychological function? If yes, the second question is whether the bodily function that is permanently impaired important? If yes, is the impairment of the important function serious?

[12] Each element of the threshold test incorporates a causation element: Parmar v Beach, 2017 ONSC 7810 at para. 14. The accident must be a cause, but does not have to be the sole cause, of the impairment. Causation may be indirect. The accident must be a necessary factor to bring about the injury: Clements v. Clements, 2012 SCC 32 para. 8. Scientific evidence of causation is not required.

[13] “Permanent” has been interpreted as meaning “indefinite”, as opposed to “forever”: Parmar v Beach, at para. 12. The symptoms may be intermittent: Noori v. Liu, 2020 ONSC 3049 at para. 101. Chronic pain has been found to be permanent for purposes of a threshold motion: Hartwick v. Simswer at para. 87.

[14] The importance of a function is related to whether the function is necessary to perform the essential task of a person’s employment, care for his wellbeing, or activities of daily living. Importance is subjective: Mann v. Jefferson, 2019 ONSC 1107 at para. 151.

[15] To be serious, the impairment must substantially interfere with employment, despite accommodation, or activities of daily living. It is also a subjective assessment: Mamado v. Fridson, 2016 ONSC 4080 at para. 24. The totality of circumstances and cumulative effect should be considered: Arteaga v. Poirier, 2016 ONSC 3712 at para. 20. Ongoing and debilitating pain even in the absence of objective findings by medical experts, will constitute serious impairment serious impairments: Hartwick at para. 89.

[16] Mr. Addai states he suffers from chronic pain relating to pain in his left wrist, shoulders, neck, and back, as well as ongoing dental-related impairments, from the accident. He also states he suffers from headaches and migraines, and psychological impairments from the accident.

The Evidence

The Accident

[17] The accident occurred on August 25, 2018, around noon, when Mr. Addai was traveling in his blue 2004 Honda Civic westbound on Dundas Ave. West. He was stopped at a red light just west of the 427 when Ms. Parkinson's vehicle hit him from behind. Mr. Addai testified that he was holding the steering wheel very tight, and his hand or hands flew up and smashed his face. The movement of the car made it shaky in the car. His tooth became loose and later came out. Ms. Parkinson testified that she was stopped behind Mr. Addai's car when her foot slipped off the brake. She denied that her foot hit the gas. She described the accident as a “fender bender”.

[18] The parties pulled over and looked at the cars. There was no damage to Ms. Parkinson’s car. Ms. Parkinson took photographs at the scene of the accident that demonstrated a couple of dents in the back of Mr. Addai's car. The parts and labor estimate to repair the car was $1,5182.56. Mr. Addai acknowledged there had been some prior damage to the car as referred to in that estimate. Photographs Mr. Addai took at the scrap yard sometime later showed additional damage to the car.

[19] Ms. Parkinson's airbags did not deploy, and she was not hurt. No police or ambulance were called to the scene. Ms. Parkinson continued about her errands. Mr. Addai parked the car on a side street, feeling he could not continue to drive because of pain. Although Mr. Addai testified that he sought dental and medical attention immediately, the records indicate that he went to the hospital the next day and to the dentist a couple of weeks later.

The Medical Evidence

Initial Post-Accident Treatment

[20] Mr. Addai described having back pain, shoulder pain, neck pain, migraines, and headaches. He testified that he went first to the dentist who redirected him to the hospital. He testified that later, he had wrist pain. Mr. Addai claims dental repercussions from the accident.

[21] The medical evidence reveals that when the plaintiff attended Trillium Hospital on August 26, 2018, he could not stop sneezing. He was given ibuprofen and told to follow up with his family doctor. The record, with which he did not agree, states that he was sneezing, had no sob (shortness of breath) and was in no acute distress.

[22] Mr. Addai attended a dentist on September 4, 2018, complaining of loose teeth post-accident. On September 14, 2018, he saw his family doctor to whom he complained that his shoulders and back had been hurting since the accident, and that he broke his left front tooth.

Shoulders

[23] Mr. Addai had a pre-existing injury to his shoulders, stemming from a workplace incident in March 2018. The medical records indicate that in June 2019 his shoulder pain was very mild in his right shoulder, but activity worsened it. He had some pain in August 2019 but full range of motion. Various records refer to his workplace incident having caused shoulder pain, and WSIB being accessed in relation to this injury. In 2020, an MRI showed a tear in his right shoulder which was not found on an ultrasound in 2018. Dr. Ahmad, who first became Mr. Addai’s treating physician in February 2020, testified that Mr. Addai’s shoulder and other pain were chronic and could have been exacerbated by the car accident. He thought it likely that the accident accentuated Mr. Addai’s pain.

[24] Dr. Getahun, the orthopedic surgeon retained by Mr. Addai to examine him and provide expert evidence at trial, testified that in his opinion, the accident did not cause injuries to Mr. Addai’s shoulders. Mr. Addai had full range of motion in his shoulders, and they presented no issues.

[25] Dr. Finkelstein, the orthopedic surgeon retained by the defendant, similarly opined that there was no pain, no problem with the rotator cuff, and no impingement. The shoulder examination was normal.

Wrist

[26] Mr. Addai has a tear of his scapholunate ligament in both wrists. Mr. Addai states that his left wrist pain stems from the accident. In September 2022, a patient grabbed him by the right wrist, leading to pain in that wrist.

[27] Medical notes from the day before the accident indicate his wrists were pain-free; and medical notes of Dr. Belcon from a year after the accident note the wrists are painless and have full range of motion.

[28] The first time wrist pain was mentioned was in physiotherapy in February 2019, where Mr. Addai is noted to have bilateral wrist pain. In about May of 2020 wrist pain was first mentioned to a physician. On September 3, 2020, Mr. Addai attended Brampton Civic Hospital with left wrist pain and was seen by Dr. Guay. Dr. Guay’s note indicates that the reason for consultation is left wrist pain, and there has been no significant medical history or hand trauma.

[29] In December 2021, Mr. Addai was seen by Dr. Ng, a plastic and reconstructive surgeon. Dr. Ng discussed Mr. Addai’s chronic left wrist pain related to the ligament disruption that Mr. Addai felt had begun after the car accident in August 2018. Dr. Ng’s record notes that one option is reconstruction, but Mr. Addai was hesitant about it and wanted to talk to his legal representation.

[30] On February 9, 2024, Dr. Ahmad, Mr. Addai’s family physician, wrote to WSIB seeking to have treatment or benefits approved regarding Mr. Addai’s right wrist, which was his workplace injury, advising that his right wrist injury is preventing him from performing his job duties.

[31] That is consistent with what Mr. Addai told Dr. Magder, a dental litigation expert retained by the defendant, when Dr. Magder saw Mr. Addai for examination in 2024. At that time, Mr. Addai told Dr. Magder that his right wrist problem caused him not to work.

[32] Dr. Getahun opined that Mr. Addai’s left wrist injury was caused by the accident. He notes that Mr. Addai told him that the pain in his left wrist started after the car accident. He noted full range of motion in the wrists, but tenderness and decreased grip strength. He opined that Mr. Addai suffered from left wrist strain with scapholunate disruption, which he said was an accident-related diagnosis. Dr. Getahun acknowledged that Mr. Addai did not tell him when the left wrist pain started, just that it was after the accident and got worse and worse. Dr. Getahun did not know that in September 2020 Mr. Addai’s family doctor had a note indicating that there was a six-month history of left wrist pain. He was not aware that on July 8, 2021, Mr Addai’s family doctor said the wrist pain was improving.

[33] When Dr. Finkelstein examined Mr. Addai in 2024, Mr. Addai advised he continued to have right wrist pain, but his left wrist had improved. Dr. Finkelstein reported that there was tenderness when he pressed on Mr. Addai’s left wrist, which he described as an objective finding that corresponded with Mr. Addai’s torn ligament. Dr. Finkelstein testified that Mr. Addai had full movement in both directions of his wrist and no tenderness at any other parts of the wrist. There was a clicking sound with rotational movement. Mr. Addai could make a full grip in that he could fully close his fist. His grip strength on the left side was weaker than on the right side. The right wrist was the same as the left but with no tenderness. Dr. Finkelstein disagreed with Dr. Getahun. In Dr. Finkelstein’s view the left wrist injury was not from the accident. This is because in his opinion, the mechanism of the accident would not cause this injury and because there was no record of wrist pain until long after the motor vehicle accident.

[34] Dr. Finkelstein testified that this kind of injury becomes painful immediately when it occurs. He conceded that while he believed left wrist pain was first noted to be painful in May 2020, bilateral wrist pain was mentioned to the physiotherapists in February 2019. He stated that this did not change his opinion that the left wrist pain did not come from the accident.

[35] Mr. Addai testified that since late 2023, he has been unable to work because he cannot pass a physical assessment. Mr. Addai testified that he wants to work but is unable to get a job. He states his back pain, shoulder pain, wrist pain and neck pain prevent him from working. He states that he has been unable to get work because of physical assessments and because of his pain, especially his right wrist.

Dental Complaints

[36] Mr. Addai testified that his left hand flew back and smashed his teeth during the accident. His tooth or teeth were loose, and at least one fell out at some point. According to medical records, by September 14, 2018, one of his left front teeth was missing. Mr. Addai testified that he has bone loss which makes him prone to losing teeth.

[37] In his evidence, Mr. Addai did not mention any jaw pain or bruxism (teeth grinding). However, he called an expert, Dr. Raichelson, who examined him in March 2024 and who I qualified to provide opinion evidence on diagnosing temporal mandibular dysfunction (TMD) and bruxism. Dr. Raichelson testified that Mr. Addai told him that issues with his TMJ (temporal mandibular joint) started after the accident. Dr. Raichelson testified that Mr Addai told him of headaches, inability to sleep, pain in his neck and the area in front of the ear. Mr. Addai also told Dr. Raichelson that he lost some front teeth in the accident.

[38] Dr. Raichelson examined Mr. Addai in 2024, with a focus on TMD and bruxism, and had Mr. Addai point out the areas of pain. Dr. Raichelson testified that force from an accident can impact the TMJ, causing inflammation, discomfort, grinding or clenching, which in turn causes the TMJ to worsen. Dr. Raichelson was of the opinion that Mr. Addai suffers from a condition similar to TMD and from bruxism. His tooth enamel was worn, which is a sign of wear and tear. Because the symptoms appeared after the accident, he felt it obvious the accident had something to do with the cause. He had no dental records available from previous dentists Mr. Addai had seen. His sources of information were observations, X-rays he took, and what Mr. Addai told him.

[39] In cross-examination Dr. Raichelson acknowledged that he did not observe any clicking or deviation in Mr. Addai’s TMJ but said that Mr. Addai told him he hears clicking. He testified that bruxism is caused by many things, stress being its number one cause.

[40] The defence called Dr. Magder as a litigation expert. Dr. Magder was qualified to provide opinion evidence in the same areas as Dr. Raichelson. Dr. Magder examined Mr. Addai twice, once in 2020 and again in 2024. In 2020, there were no signs of wear on the enamel (a sign of bruxism) but there was such wear in 2024. Dr. Magder agreed that Mr. Addai’s teeth were worn down in 2024 and that he had not noted this in 2020. He did not believe Mr. Addai’s teeth grinding existed in 2020.

[41] Dr. Magder testified that Mr. Addai told him he was involved in a car accident, that he had had immediate pain, blood from his mouth and nose, back and chest pain, and that he drove to Trillium Hospital where he was referred to a dentist.

[42] Dr. Magder's opinion was that Mr. Addai did not suffer any dental injuries as a result of the accident. Dr. Magder concluded, based on his examination, that Mr. Addai did not have TMD. Dr. Magder expressed the view that Mr. Addai’s teeth grinding was not a result of the accident, because the TMD was not a result of the accident, and the TMD could have been the cause of the teeth grinding. Other causes of teeth grinding are stress and sleep apnea.

[43] Although in his report, Dr. Magder stated he did not agree with Dr. Raichelson, Dr. Magder agreed in cross-examination that he did agree with Dr. Raichelson that Mr. Addai had bruxism. In cross examination, he agreed that he did not ask Mr. Addai whether he had taken any pain medications that day. However, I note there was no evidence from Mr. Addai that he had taken any medications that day.

[44] In terms of treatment, Dr. Raichelson testified that he would expect Mr. Addai’s discomfort to improve with the use of an appliance, and Dr. Magder agreed that this was the standard treatment for bruxism.

Back and Neck Pain

[45] Mr. Addai described having back and neck pain after the accident. He reported back pain to his physician on September 14, 2018. In 2019, he described neck and back pain from a workplace accident the year before. In 2019 he advised the physiotherapists whose treatment was covered by WSIB that he had neck and back pain, among other areas of pain. In 2021, a pain centre reports neck and back pain, among others. Back pain was reported in 2023.

[46] Dr. Ahmad testified that Mr. Addai’s back pain was chronic and could have been, and likely was, exacerbated by the car accident.

[47] Dr. Getahun testified that Mr. Addai told him about back pain and a dull achy pain in both the neck and the back. Dr. Getahun performed a general examination on Mr. Addai. He noticed that Mr. Addai had a normal gait, that there were no abnormalities on inspection of his neck. On palpation, Dr. Getahun noted tenderness in Mr. Addai’s trapezoid and para-spinal muscles. Dr. Getahun noted that Mr. Addai was guarding himself, which is indicative of tension or injury, and that Mr. Addai’s range of motion in the neck was restricted due to pain.

[48] On his upper back – his thoracic spine – Dr. Getahun noted no abnormalities or tenderness. On his lumbar spine – lower back- Dr. Getahun noted no visual deformities. Again, there were areas of tenderness and guarding.

[49] Dr. Getahun opined that Mr. Addai had chronic myofascial strain of the cervical spine with non-verifiable radicular symptomatologies into his upper extremities and chronic myofascial strain of the lumbosacral spine, which were caused by the accident. He testified these were permanent serious impairments of important physical functions.

[50] When Mr. Addai saw Dr. Finkelstein, Mr. Addai reported non-specific low back pain when he stretches his back or engages in physical activity. Mr. Addai told Dr. Finkelstein that he sometimes had neck pain. In his clinical examination, Dr. Finkelstein noted that Mr. Addai had a normal gait and showed no signs of discomfort. Mr. Addai had full movement in his neck. Mr. Addai said that there was tenderness when touched lightly anywhere in the neck. Dr. Finkelstein said there were no muscle spasms or signs of inflammation. When Mr. Addai bent forward, he reached only his mid shins. When Dr. Finkelstein touched him very lightly in his back, Mr. Addai said there was pain.

[51] Dr. Finkelstein described Waddell signs, which are tests that are conducted when a patient says there is pain but there is no obvious physiological reason for the pain. Dr. Finkelstein put his hands on Mr. Addai’s shoulders and asked if he felt pain in the back when Dr. Finkelstein pressed down on the shoulders. Mr. Addai said yes. Dr. Finkelstein said this was a positive Waddell, or nonorganic, sign because pressing down on the shoulders does not cause lower back pain. Another Waddell or distraction test he performed was telling Mr. Addai that he was rotating through the back when he was simply rotating through the knees. Mr. Addai endorsed back pain. These are two positive Waddell signs.

[52] Dr. Finkelstein testified that soft tissue pain in the lumbar spine and neck can be consistent with the mechanism of injury of this accident, but there were no objective findings of abnormality and there were Waddell signs. He testified that endorsing pain with light palpation is not consistent with credible impairments, and normally he would have expected a full physiological recovery in the neck and shoulder based on the description of the accident. He testified that in his view, the subjective complaints were out of proportion to the nature of the injury and the objective findings.

[53] Dr. Finkelstein said that he reviewed Dr. Getahun's report. He does not know what Dr. Getahun was referring to when he used the term “non-verifiable radicular symptomatologies”. Dr. Finkelstein disagreed with many of Dr. Getahun’s findings.

[54] Dr. Finkelstein also gave his opinion that he felt Mr. Addai had a much greater functional capacity than he said he had because his examination found nothing physically wrong, there were Waddell signs, and Mr. Addai’s complaints were vague and nonspecific. He opined that Mr. Addai would have been able to work after the accident and would have been able to perform housekeeping and home maintenance chores. He does not consider any injuries Mr. Addai sustained to seriously impair any important function.

[55] Dr. Finkelstein agreed that some whiplash patients do not recover.

Headaches, Migraines, Psychological Symptoms and Chronic Pain

[56] At various times, Mr. Addai reported symptoms of headaches, migraines, psychological symptoms, and chronic pain to care providers. The records contain reports from a pain clinic in 2021 that contains a series of pain diagnoses and recommendations. As noted above, Dr. Getahun opines that Mr. Addai suffers from chronic strain of the cervical and lumbosacral spine.

[57] There is no expert evidence that Mr. Addai’s headaches, migraines, or psychological symptoms were caused by the accident, or that they constitute permanent serious impairments of important functions.

[58] Dr. Finkelstein testified about pain. He explained that pain is self-reported and subjective. Physicians look to correlate objective findings of an examination with these subjective findings, because the subjective is so variable between patients. Physicians look for objective reasons for the pain in terms of what is causing it. Dr. Finkelstein agreed that it is possible to have pain without an objective injury and used headaches as an example.

Question One: Has Mr. Addai established that the 2018 accident caused him to sustain a permanent impairment of a physical, mental, or psychological function?

[59] Based on the evidence set out above, I find that Mr. Addai has not established that his impairments meet the statutory exceptions.

[60] First, considering the evidence about Mr. Addai’s shoulder pain and shoulder injuries, I find he has not adduced medical evidence to establish any connection between the accident and shoulder pain or injuries. His own expert, Dr. Getahun, opined that the accident did not cause injuries to Mr. Addai’s shoulders. Mr. Addai had full range of motion in his shoulders, and they presented no issues. Dr. Finkelstein agreed.

[61] In respect of his wrist injury, I do not accept Dr. Getahun’s opinion that the accident caused the injury. Dr. Getahun relied on Mr. Addai’s report to him that the wrist pain started after the accident. I do not find this to be borne out by the records, or by Mr. Addai’s evidence.

[62] In his evidence in chief, Mr. Addai testified that his wrist did not hurt right away, but only after a couple of months. There is no mention of wrist pain in any of his medical records until he mentioned bilateral wrist pain to the physiotherapists in February 2019. The medical notes of Dr. Belcon from a year after the accident note the wrists are painless and have full range of motion. Mr. Addai’s left wrist was first examined by a physician in mid-2020, close to two years after the accident. When Mr. Addai visited the Brampton Civic Hospital for left wrist pain in 2020, the record notes that there is no history of hand trauma. Mr. Addai saw Dr. Ng about his left wrist in December 2021.

[63] Dr. Getahun’s very heavy reliance on Mr. Addai’s statement to him that the left wrist pain started after the accident renders his opinion unreliable.

[64] I prefer and accept the evidence of Dr. Finkelstein. Dr. Finkelstein had more, although not complete, documentation available to him. I accept Dr. Finkelstein’s evidence that one would expect a scapholunate ligament tear to be immediately painful; the pain would not arise 6 months later. I accept Dr. Finkelstein’s evidence that the nature of the accident would not cause a scapholunate tear. I do not find this opinion to be outside his area of expertise. He explained that orthopedic surgeons are often called upon to associate the mechanism of injury with the injury itself.

[65] Both experts testified that the ligament tear could be treated by surgery.

[66] I find that Mr. Addai has not established that his wrist pain, and the scapholunate tear, were not caused by the accident. He has not established that the wrist injury is a permanent impairment of a physical function caused by the accident.

[67] There is no expert evidence that Mr. Addai’s headaches, migraines, or psychological symptoms arise from the accident, or that they are permanent injuries that interfere with an important function. Mr. Addai has not discharged his burden in respect of these injuries.

[68] Mr. Addai testified that he suffered back and neck pain as a result of the accident. He states that the pain has become chronic. Dr. Getahun testified that the chronic myofascial strain to the cervical and lumbosacral spine were caused by the accident. Again, I prefer the evidence of Dr. Finkelstein as I find it was based less on Mr. Addai’s subjective statements than was Dr. Getahun’s opinion.

[69] Mr. Addai’s evidence during the trial, and his statements to physicians from the time of the accident until the time of trial, contained wide variations when describing his symptoms and their causes. His evidence was often inconsistent with the medical records. His accounts of his injuries immediately after the accident vary. As one example, he told Dr. Magder he had had immediate pain, blood from his mouth and nose, back and chest pain, and that he drove to Trillium Hospital where he was referred to a dentist. None of that is borne out by the records. It is inconsistent with what he told other physicians and with what he did.

[70] When inconsistencies between the records and his evidence were put to him, Mr. Addai stated that the medical records were incorrect (for example, the August 26, 2018, Trillium Hospital records which indicates he was sneezing, had no shortness of breath, was in no acute distress, and mentions no shoulder or wrist pain). When convenient to attribute his injuries and pain to workplace incidents to enable him to seek WSIB, he did so. When convenient to advise Service Canada that he was fit and able to work, he did so. When convenient to advise Service Canada that he was unable to work for medical reasons, he did so.

[71] I find Mr. Addai’s evidence to be neither credible nor reliable. The inconsistencies were significant and regular, and about central and important issues. Given that Dr. Getahun’s opinion relies so very heavily on Mr. Addai’s self-reports, I find Dr. Getahun’s opinion to be unreliable.

[72] Conversely, Dr. Finkelstein explained that the combinations of reported pain on very light palpation, the positive Waddell or nonorganic signs, the vagueness and non-specificity of the complaints, and the lack of any objective findings led to his conclusion that the subjective complaints were out of proportion to the nature of the injury and the objective findings. I accept this evidence and find it to be in keeping with the evidence at trial, both Mr. Addai’s evidence and the medical records.

[73] I find that Mr. Addai has not established that his neck and back pain were caused by the accident.

[74] Similarly, with respect to the dental evidence, Dr. Raichelson relied very heavily on Mr. Addai’s report to him that his TMJ pain started after the accident. Again, this is not borne out by the records and Mr. Addai did not testify to this effect. There is no foundation for this opinion, and I reject it. I note, too, that Dr. Magder, who had the opportunity to examine Mr. Addai in 2020 as well as in 2024, remarked that there was no bruxism at all in 2020, close to two years after the accident. It was only in 2024 that the bruxism was revealed.

[75] Mr. Addai has not established that his bruxism or TMD were caused by the accident.

[76] Mr. Addai has not satisfied the first test in the three-step analysis set out in Meyer. He has not proven that he has sustained permanent impairment of a physical, mental, or psychological function caused by the accident. I therefore do not need to determine steps two and three.

Disposition

[77] Given my finding that Mr. Addai has not satisfied the test, his claim for non-pecuniary loss is dismissed as barred by s. 267.5(5) of the Insurance Act.

[78] Counsel are encouraged to agree upon costs of the trial. If they are unable to do so, the defendant may provide costs submissions within two weeks. Submissions shall be no more than 5 pages double spaced and may attach a bill of costs and offers to settle. The plaintiff shall have two weeks to respond, with the same page limits.

L. Brownstone J. Date: November 4, 2024