Lisa Aileen Davis v. Wayne Ng

COURT FILE NO.: CV-19-81593

DATE: 2024/11/07

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Lisa Aileen Davis, Plaintiff

AND:

Wayne Ng, Defendant

BEFORE: A. Kaufman J.

COUNSEL: Laurie Tucker and Priya Shah, Counsel for the Plaintiff

Dean Melamed and Priyanka Montara, Counsel, for the Defendant

HEARD: October 31, 2024

RULING ON THRESHOLD MOTION

[1] While the jury deliberated, the defendant brought what is typically referred to as a threshold motion. He seeks a declaration that the plaintiff's claims for healthcare expenses and non-pecuniary losses are barred pursuant to s. 267.5 of the Insurance Act.[^1] The defendant argues that the plaintiff has failed to prove she sustained a permanent, serious impairment of an important physical, mental, or psychological function as a result of the collision.

[2] This personal injury action arises from a motorcycle / car accident that occurred in Ottawa, Ontario, on October 8, 2017. The plaintiff, Lisa Davis, was riding her motorcycle on Prince of Wales Drive. The defendant was stopped at a stop sign at the intersection of Prince of Wales Drive and Barnesdale Road. Despite testifying that he looked both ways, the defendant entered the intersection, and obstructed Ms. Davis' path. Ms. Davis attempted to brake but collided with the defendant's car. She was ejected her from her motorcycle at a speed of 40 to 60 kilometers per hour and sustained a mild traumatic brain injury. The defendant admitted liability but argued that the plaintiff was contributorily negligent. The main issue at trial were damages.

[3] Shortly after this motion was argued, the jury concluded that the plaintiff was not contributorily negligent, and assessed the plaintiff’s damages as follows:

General damages: $200,000

Past loss of income: $59,000

Future loss of income: $151,000

Past housekeeping expenses: $15,000

Future housekeeping expenses: $51,000

Future cost of care: $180,000

Issue

[4] The only issue on this motion is whether the plaintiff has sustained a permanent, serious impairment of an important physical, mental, or psychological function as a result of the collision. If so, she would fall within the statutory exception to the general immunity from action provided under s. 267.5 of the Act.

Legislative Scheme

[5] The relevant statutory and regulatory provisions for determining the threshold are contained in sections 267.5 of the Act and sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 as amended by O. Reg. 381/03 (the “Regulations”).

[6] The Act provides that the owner of an automobile, the occupants of an automobile, and any person present at the incident, are not liable in an action for non-pecuniary loss unless the injured person has sustained a “permanent, serious impairment of an important physical, mental, or psychological function.”

[7] Subsections 267.5(3) and 267.5(5) provide as follows:

Protection from liability; health care expenses

(3) 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 expenses that have been incurred or will be incurred for health care resulting from bodily injury 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

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,

(a) permanent serious disfigurement; or

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

[8] Effective October 1, 2003, O. Reg. 381/03, amended Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96 O. Sections 4.1 and 4.2 of Reg. 461/96, helps to clarify the meaning of the threshold wording in s. 267.5(5) (b) of the Act. In addition, section 4.3 stipulates the evidence which must be adduced to prove permanent serious impairment of an important physical, mental or psychological function. Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 provide as follows:

4.1 For the purposes of section 267.5 of the Act,

“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.

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:

1. 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.

2. 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.

3. 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.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

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.

[9] A judge is not bound by the jury's verdict when making a threshold determination. The verdict is, however, one factor the judge may consider. [^2]

Ms. Davis pre-accident

[10] At the time of the accident, Ms. Davis was 48 years old; she is now 55. Raised in Peterborough, she returned to Ottawa after high school. She completed one year of marketing at Algonquin College before beginning a career as a server, which she continued throughout her working life.

[11] Ms. Davis described her pre-collision life as happy and great.

[12] Ms. Davis excelled in her job and took great pleasure in her interactions with regular clients. In 2005, she worked for one year at Vittoria Trattoria, an Italian restaurant, where the owner, Stacey Santaguida, attested to Ms. Davis's excellence as a hardworking server who was well appreciated by customers. At the time of the accident, she was employed at the Heart and Crown pub, where she achieved remarkable success, winning trips to Mexico for top sales of Corona beer for four consecutive years. Her colleague, Angie Turgeon, noted that regular customers would frequently order Corona to support Ms. Davis in these contests. Ms. Davis herself testified that she found joy in her job and the lifestyle it provided her.

[13] Before the accident, Ms. Davis was in good health, rarely visiting her family doctor. In 2016, she reported memory concerns and headaches to her family doctor Manorie Edirisinghe, who recommended supplements and administered a cognitive test. Ms. Davis scored perfectly on this test.

[14] Ms. Davis led an extremely active lifestyle before the accident, both physically and socially. While working full-time, she:

• Rode her motorcycle up to five days a week, including trips to Calabogie, Westport, and Vermont;
• Traveled extensively to Europe, Mexico, the Caribbean, and South America;
• Rollerbladed, often to work and on the parkway to Aylmer, Quebec;
• Hiked monthly and camped annually in Algonquin Park;
• Skied (cross-country and downhill) and snowboarded;
• Participated in several 10km races per year (2-3);
• Walked her dogs for 45-60 minutes daily; and
• Cross-country skied weekly during snow season.

[15] Ms. Davis frequently engaged in activities with her brothers. John testified they would cross-country ski together for 1-1.5 hours every weekend when conditions allowed. They also went on camping trips, portaging with 40-50 lb backpacks. Craig stated he would see Ms. Davis twice weekly for bike rides or rollerblading.

[16] Ms. Davis was also socially active. Her brothers described her as upbeat, energetic, adventurous, outgoing, and kind. Long-time friends Kevin Gottgetreu and Leanne Bazinet characterized her as well-spirited, bubbly, and with a good sense of humour. They frequently socialized with Ms. Davis, including:

• Dinner gatherings;
• Cruises and trips to Mexico and Hawaii;
• Family gatherings at the Gottgetreu home;
• Motorcycle trips with Mr. Gottgetreu;
• Dog walks and nail appointments with Ms. Bazinet;
• Sunday bike rides and rollerblading on the parkway.

Evidence of Impairments

[17] Ms. Davis presented physician evidence in accordance with s.4.3(2) of the Regulations.

[18] Dr. Sara Mitchell, neurologist, assessed Ms. Davis and testified at trial. Her diagnoses included:

• Mild traumatic brain injury
• Persistent post-concussion syndrome
• Headaches attributable to mild traumatic brain injury

[19] Dr. Mitchell found that post-accident, Ms. Davis experienced symptoms consistent with post-concussion syndrome, including dizziness, headaches, confusion, and sleep changes. These symptoms persisted to her March 23, 2021 assessment, significantly impacting Ms. Davis's daily function. A cognitive test yielded a score of 22/30 (26 is considered normal). Dr. Mitchell concluded that accident-related impairments interfered with Ms. Davis's ability to work as a server, complete housekeeping tasks, and engage in normal social and recreational activities.

[20] Dr. Hastings, physiatrist, assessed Ms. Davis on July 26, 2022. His diagnoses included:

• Mild traumatic brain injury with resultant post-concussion syndrome
• Cervical myofascial sprain/strain

[21] Dr. Hastings noted ongoing neck pain since the accident, with little prospect for substantial improvement given the elapsed time. He concluded that accident-related cognitive impairments affected Ms. Davis's memory, work performance, social and recreational activities, and higher-level housekeeping.

[22] Dr. Dale Robinson, neurologist, assessed Ms. Davis for the defendant. He diagnosed:

• Mild traumatic brain injury; and
• Posttraumatic headache with cervicogenetic and migrainous features.

[23] Dr. Robinson's administered a cognitive test which yielded a score of 21/30. However, he believed Ms. Davis' impairments were not neurologically accident-related, explaining that mild traumatic brain injury symptoms typically resolve within weeks or months.

He noted Ms. Davis's return to work and participation in a 10km run in spring 2018, contrasting this with her later complaints of pain and fatigue after a five-minute run in September 2018. Dr. Robinson relied on a cognitive test which he erroneously believed had been administered post accident in which Ms. Davis scored 30/30. Dr. Robinson was of the view that the worsening of the cognitive test score and of her ability to run favored a non-neurological cause to her current impairments.

[24] Dr. Muhlstock, physiatrist, assessed Ms. Davis for the defendant. His diagnoses included:

• Soft tissue injuries to cervical spine (WAD II), upper back, shoulder girdles, thoracic and lumbosacral spines, and knees
• Multiple contusions/abrasions
• Concussion with loss of consciousness

[25] Dr. Muhlstock opined that any soft tissue injuries typically last for six weeks and had healed/resolved physiologically given the time elapsed since the accident. He detected no objective findings of ongoing accident-related impairments. He did not focus on Ms. Davis’ headaches because he is not a “head injury” expert. Dr. Muhlstock conceded that there is a subset of patients who continue to have symptoms beyond a six-week period. He did not dispute that Ms. Davis continued to have symptoms.

[26] In evaluating the medical testimony, the court prefers the opinions of Drs. Mitchell and Hastings to those of Drs. Robinson and Muhlstock regarding the lasting impact of Ms. Davis' injuries. While Dr. Muhlstock suggested that soft tissue injuries resolve within weeks and noted no objective ongoing impairments, he acknowledged that there is a subset of patients for whom symptoms can persist, aligning with Dr. Robinson's concession that post-concussion symptoms are potentially permanent if they persist two years post-accident. The court is persuaded that Ms. Davis's symptoms, including headaches, neck pain, and sensitivity to light and sound, have persisted since the accident and align with a mild traumatic brain injury diagnosis. Despite her efforts to maintain her employment and adapt her lifestyle, Ms. Davis has experienced significant challenges and limitations since the accident.

[27] Despite Dr. Robinson's assertions that symptoms of a mild traumatic brain injury typically resolve within weeks, Ms. Davis's experiences contradict that timeline. Ms. Davis struggled to work and engage in her pre-accident activities to the best of her abilities. She testified that she was experiencing difficulties after her return to work, and that her co-workers Jeff and Angie had to “pick up the slack” by taking some of her tables. Ms. Davis testified that she did not want to stop coming in to work and was taking Advil to help her cope with her headaches, but that there were days where she could not cope. She switched employment in November 2018 because the Heart and Crown was too loud and bright. In 2018, she did not rollerblade at all. She testified that she tried to exercise and was angry that she could not do what she could before the accident. This evidence supports the conclusion that her injuries had not healed in 2018.

[28] I conclude that her accident-related injuries have had a lasting impact on her quality of life and ability to engage in pre-accident activities.

Evidence of change in function

[29] Ms. Davis presented evidence of changes in her functioning as required by s. 4.5(5) of the Regulation. These changes affect her employment as well as her social and recreational activities.

[30] She testified that she continues to experience headaches and neck pain, poor short term memory, and diminished strength in her hands compared to before the accident. She reported suffering from poor sleep and irritability. Despite some improvement from Botox treatments for her headaches, they still occur 2 to 3 times a week and last up to 24 hours. These headaches affect her focus and work performance, making social interactions at work and in daily life more challenging.

[31] Regarding her memory issues, Ms. Davis testified that her short-term memory has deteriorated since the accident, requiring her to rely heavily on post-it notes for reminders. Her brother Craig corroborated this, noting her use of notes around the house. She recounted instances of forgetting her destination and neglecting to turn off the oven. Dr. Moustgaard, her psychologist, testified that Ms. Davis missed an appointment due to forgetfulness. Additionally, Ms. Davis testified that she has mistakenly attended appointments on incorrect days. Her brother Craig testified that she is forgetful.

[32] Ms. Davis also testified about her struggles with mood and cognition, including increased frustration and decreased patience. Her brothers and friends reported changes in her mood, communication difficulties, and a general decline in her energy and sociability. She expressed feelings of anger and sadness, stemming from her desire to improve and her inability to do so. Her brothers John and Craig indicated that she has become moodier, more short-tempered, and frustrated. John also mentioned that she forgets things and frequently asks him to accompany her to important meetings. Her friend Kevin Gottgetreu and his wife Leanne Bazinet testified that Ms. Davis talks quietly and slowly and struggles with her thoughts. They remarked that she is no longer as happy or outgoing as she once was. Ms. Bazinet testified that Ms. Davis appears tired and slower than normal, and that having a conversation with her proves difficult. She had not noticed any real improvement over time.

[33] Ms. Davis has indicated that she now requires more downtime following any activity. Her brother Craig testified that she often feels exhausted after work and needs to take naps. Overall, Ms. Davis exhibits significantly less energy and independence than she did prior to the accident.

[34] Ms. Davis testified that she used to enjoy work and that she found it challenging and fun. While she is happy to have a job, she does not enjoy it like before. She considered herself lucky to be employed given her limitations.

[35] Ms. Davis testified that her impairments affect her work in several ways. She is unable to take orders confidently without writing them down, particularly when dealing with more complex orders or larger groups. She has difficulty connecting with customers and engaging in social conversations with her regulars. Although she acknowledges that she can still work as a server, she does not perform as well or as efficiently as before. Additionally, the more physically demanding aspects of her job may trigger headaches.

[36] Ms. Stacey Santaguida, Ms. Davis’ current employer, testified that Ms. Davis works the lunch shift on weekdays, typically three to five days per week, averaging four days. While Ms. Davis remains a great server, Ms. Santaguida noted that she has become more irritable and short-fused compared to before. Other servers have complained that Ms. Davis can be demanding and snappy. However, her skills with customers still work in her favor. Ms. Davis occasionally calls in sick or leaves early due to her headaches.

[37] Ms. Davis testified that there has been a significant change in her ability to engage in social and recreational activities. While she can still engage in most activities, she does so differently, less frequently and with less enjoyment than before. Rollerblading now causes her headaches. Although she can ride a motorcycle, she feels more nervous and less relaxed than before. She has stopped running and is hesitant to resume it. Her brother Craig testified that she rollerblades less frequently and never alone. He also noted a decrease in her endurance during cross-country skiing. Her brother John added that they ski less frequently and for shorter durations and mentioned that the last time they went camping was in 2020.

[38] Mr. Gottgetreu testified that during a motorcycle trip with Ms. Davis after her collision, she lacked confidence and advised him not to wait for her if she lagged behind. Although she receives invitations to social gatherings, Ms. Davis frequently declines to attend. Ms. Bazinet noted that her interactions with Ms. Davis have decreased significantly, and when they do meet, the visits are often shorter due to Ms. Davis becoming tired and struggling to concentrate, leading her to leave early. Although invited, Ms. Bazinet mentioned that Ms. Davis did not visit her this year and only came a few times over the past few years.

[39] Ms. Davis testified that prior to the accident, she maintained a tidy home and performed thorough cleanings every two weeks. However, she now experiences headaches when vacuuming and requires significant "downtime" after a day of work. Consequently, she hired a cleaner beginning in late 2018 or 2019. Currently, her friend and tenant Kelly Gibson, who is a professional cleaner, handles the cleaning duties in exchange for a reduction in rent.

Analysis

[40] In Meyer v. Bright, the court outlined the three-part inquiry which is to be undertaken in the threshold analysis:

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?

[41] The defendant does not dispute that Ms. Davis sustained impairments of a physical, mental or psychological function.

Permanence

[42] In Brak v. Walsh, the Court of Appeal clarified that "permanent," in the context of s. 267(5), refers to an injury that lasts indefinitely into the future, rather than for a limited period with a definite end. The requirement for a permanent injury is satisfied when a functional limitation is unlikely to improve for the indefinite future.[^3] Similarly, in Sheldon v. Reyna, the court held that "permanent" does not mean forever, but it does imply that the impairment persists into the indefinite future, in contrast to an anticipated recovery with a defined end date.”[^4]

[43] I accept the evidence presented by Drs. Mitchell and Hastings indicating that Ms. Davis’ symptoms, which have continued for 7 years following the accident, are unlikely to improve. Although the severity and frequency of her headaches have been reduced with Botox injections, she still experiences them 2-3 times per week, with each lasting up to 24 hours. Additionally, she continues to suffer from memory deficits, concentration difficulties, neck pain, and reduced strength in her hands. This aligns with Dr. Robinson’s testimony that post-concussion symptoms have the potential to become permanent if they persist beyond two years after the accident.

Importance of impairment and seriousness of function

[44] The defendant contends that Ms. Davis has managed to continue working, perform her daily activities, and can complete her household chores, suggesting that her impairments are neither important nor serious. He argues that for an impairment to be deemed serious, it must exceed the threshold of what is tolerable. According to him, Ms. Davis’ residual discomfort, despite being frustrating or unpleasant, does not rise to the level of seriousness required to qualify as a significant impairment.[^5]

[45] Section 4.2(1) of the Regulations states that a permanent serious impairment of an important physical, mental, or psychological function must significantly interfere with one of the following: (1) the person's ability to continue their regular employment; (2) the person's ability to continue training for a career; or (3) most of their usual daily activities, taking into account the person’s age. In this case, the relevant considerations are Ms. Davis's employment and her activities of daily living.

[46] Regarding the ability to continue one’s employment, paragraph 4.2(1) 2. of the Regulations stipulates that the impaired function must be necessary for performing the essential tasks of the person’s regular or usual employment. This assessment considers any reasonable efforts made to accommodate the impairment, as well as the person’s reasonable efforts to utilize such accommodations. Regarding her employment, I agree with the defendant that Ms. Davis has not sufficiently demonstrated that she meets the necessary criteria for a serious impairment to an important physical, mental or psychological function.

[47] Section 4.2 of the Regulations provide that the function that is impaired must be necessary to perform the activities that are essential tasks of the person’s regular employment. Ms. Davis has continued to work in her regular position since the accident, benefiting from accommodations. These include permitting her to leave early when she experiences headaches and having fellow servers cover her tables when she struggles.

Although she testified about a decline in her efficiency and a diminished enjoyment of her work, her employer testified that she remains an excellent server and is valued by her clients. Consequently, I find that Ms. Davis’ impairments have not interfered with her ability to continue performing the essential tasks of her regular employment.

[48] The Regulations establish a less stringent standard for assessing the importance of a function in relation to activities of daily living. For a function to be deemed important in the context of essential employment tasks or essential career training tasks, it must be necessary for performing those tasks. However, when it comes to activities of daily living, the threshold is lower; the impaired function need only be important to those activities. [^6]

[49] Activities of daily are wide-ranging and go beyond household and employment activities to include the ability to socialize with others, have intimate relations and enjoy one’s family and recreational activities.[^7]

[50] In Meyer v. Bright, the Court of Appeal held that the use of the word “important” is intended to distinguish between those bodily functions which are important to the injured person and those which are not. Toscano Roccamo J. emphasized that the evaluation of what constitutes an important function is inherently subjective, as there are bodily functions important to some but not others.[^8]

[51] The Legislature clearly intended for injured individuals to endure some level of interference with their enjoyment of life without qualifying for compensation, establishing that only a "serious" impairment will suffice. Symptoms that are tolerable and still enable a claimant to function effectively do not meet this threshold. Conversely, symptoms that exceed tolerable limits and significantly impair a plaintiff's enjoyment of life will be considered sufficiently serious. Courts must evaluate the totality of evidence, whether medical or testimonial, to determine whether the interference with the plaintiff's life is substantial. A person who can perform daily activities but suffers from permanent symptoms—such as sleep disorders, headaches, dizziness, and nausea—that significantly impact their enjoyment of life should be recognized as having sustained a serious impairment.[^9]

[52] The defendant argues that the plaintiff has continued to engage in recreational activities albeit less frequently. He argues that none of the experts who have assessed her have placed any limitations on her activities, and that other than running, Ms. Davis has not been substantially impaired from doing anything. I am not persuaded by these submissions.

[53] As previously mentioned, determining whether an impairment is "important" requires a subjective assessment. Impairment related limitations may be important for one person, but not for another. The court's task in each case is to assess the impairment’s impact on the specific injured individual before it. In fulfilling this duty, the central question is the detrimental effect the impairment has on the life of that particular person.[^10]

[54] In Ms. Davis’ case, the evidence presented at trial was that she was an exceptionally active and social person. She was described as a happy, outgoing, energetic and independent. The accident directly resulted in limitations that manifest in her daily life, where she struggles with memory issues, frequent headaches, and heightened sensitivity to stimuli, which contribute to increased frustration and irritability. These limitations have profoundly impacted her social and recreational life. Dr. Mitchell, testified that Ms. Davis was tearful she recounted the effect the injuries had on her limitations. Her social and recreational activities were a core aspect of her life and her identity, yet the accident has left her with little energy to engage in them after work. Drs. Sweet, Moustgaard, and Robinson also testified that Ms. Davis became tearful when discussing the activities she could no longer enjoy. The jury implicitly acknowledged the significance of Ms. Davis' loss of amenities of life by awarding her $200,000 in general damages.

[55] It is to Ms. Davis’ credit that she has continued to engage in recreational activities, to some extent, as recommended by her doctors. But her ability to engage in them in a limited way does not make her loss of function trivial, unimportant or tolerable. On the contrary, the court is convinced that the limitations stemming from her impairments have significantly disrupted essential aspects of her life, robbing her of joys that constituted the very core of her identity.

Conclusion

[56] I find that the plaintiff has established a permanent, serious impairment of an important physical, mental or psychological function resulting from the motor vehicle accident of October 8, 2017. Accordingly, the defence motion is dismissed.

“Original signed by”

Justice A. Kaufman

COURT FILE NO.: CV-19-81593

DATE: 2024/11/06

ONTARIO

SUPERIOR COURT OF JUSTICE

Lisa Aileen Davis

Plaintiff

– and –

Wayne Ng

Defendant

REASONS FOR DECISION

(Threshold)

Justice A. Kaufman

Released: November 7, 2024

[^1]: Insurance Act, RSO 1990, c I.8 (the “Act”). [^2]: DeBruge v. Diana Arnold, 2014 ONSC 7044, at para 10. [^3]: 2008 ONCA 221 at para. 4. [^4]: 2018 ONSC 5611 at para. 77(5). [^5]: Frankfurter v. Gibbons, 2004 14383 (ON CA), [2004] OJ 39 (Div. Ct.), at paras. 22, 26. [^6]: Regulations, s. 4.2(1)2. [^7]: Mayer et al. v. 1474479 Ontario Inc. et al., 2013 ONSC 6806, at para 18. [^8]: Hartwick v. Simser, 2004 34512, at para 88. [^9]: Mayer et al. v. 1474479 Ontario Inc. et al., 2013 ONSC 6806, at para 18. [^10]: Meyer v. Bright, 1993 3389 (ON CA).