Court File and Parties
COURT FILE NO.: CV-20-00640783-0000 DATE: 2024-11-28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: Femaflor Castro, Plaintiff AND: Tao Chen, Defendant
COUNSEL: O. Miketic, for the Plaintiff M. Dabirian and K. McCartney, for the Defendant
HEARD: September 9-13, 2024, Written submissions received September 27, 2024
BEFORE: L. Brownstone J.
Introduction
[1] The plaintiff, Ms. Castro, seeks damages for injuries she claims to have sustained in a car accident on November 28, 2018. The parties have agreed that the defendant was at fault. The simplified procedure trial proceeded on the issue of whether Ms. Castro is entitled to damages, and if so, in what amount.
[2] Ms. Castro claims to have suffered non-pecuniary damages as well as loss of income, loss of competitive advantage, housekeeping and future care costs.
[3] Mr. Chen argues that Ms. Castro does not meet the legislative threshold of suffering a permanent serious impairment of an important physical mental or psychological function that would permit her to claim non-pecuniary damages. He denies she has suffered any pecuniary loss or has any housekeeping or care needs resulting from the accident.
[4] I will consider the damages claims in the following order: a. General damages; b. Past and future loss of income and loss of competitive advantage; c. Past and future housekeeping and cost of care; d. Damages for non-pecuniary loss and health care expenses in light of the threshold in s. 276.5 of the Insurance Act, R.S.O. 1990, c. I.8.
A. Has Ms. Castro demonstrated she is entitled to general damages?
[5] Ms. Castro claims general damages based on impairments arising from pain in her back, neck, hands, left foot and leg, shoulders, jaw and thigh, as well as stiffness and tingling in her legs and hands, jaw clicking, and low mood and anxiety.
[6] Assessing this claim requires a review of her health history and the expert evidence, which I will undertake in chronological order.
[7] Ms. Castro moved to Canada in 2007. She has a business management degree from her native Philippines, an ECE assistant diploma, and a diploma in addictions recovery support for youth and families, which she received in 2023.
[8] The accident at the heart of the litigation occurred on November 28, 2018, when Ms. Castro was driving northbound through an intersection on a green light. Her children were in the back seat. Mr. Chen’s vehicle, which was travelling southbound in the opposite direction, made a left-hand turn and hit Ms. Castro’s car on the front bumper side. Ms. Castro’s airbags deployed.
[9] Ms. Castro did not lose consciousness but described herself as dazed, confused and in fear. She stayed in the vehicle until police and ambulance arrived. A paramedic examined her, but she was not taken to the hospital. Ms. Castro states that she was worried about her children who were in the back seat and did not want to leave them. Her husband arrived and the four of them went home together. Her vehicle was towed from the scene.
[10] Ms. Castro states that she experienced immediate pain in her hands and tingling in her arms and neck. As well, she had a bump on her head and bruising on her legs, and pain in her left foot, left shoulder and the left side of her head. A few days after the accident, she saw her family physician who prescribed naproxen, a non-steroidal anti-inflammatory drug. About a week later, she started attending for chiropractic treatment. She complained of neck pain, back pain, bilateral shoulder pain, and arm pain.
[11] On cross-examination, after first denying it, Ms. Castro conceded that she had attended at the emergency department of St. Michael’s Hospital five days before the accident, complaining of sudden lower back pain and numbness in her left foot. She was unable to stand, and her back pain worsened when she moved her hips. She was administered various medication, including morphine and hydromorphone.
[12] Ms. Castro also acknowledged attending the emergency department at the Toronto General Hospital in October 2019. She had lifted a heavy box for her employer and experienced a sharp back pain that she described as excruciating. She was taken by ambulance to TGH, where she was administered Percocet, Dilaudid, Ativan and naproxen. A few days later, she attended at her family doctor’s office to complete insurance forms arising from that incident.
[13] Ms. Castro received physiotherapy and acupuncture treatment as well as massage therapy. Ms. Castro states that the treatment provided short-term relief and she would have liked to continue, but funding was not approved.
[14] Ms. Castro described returning to her doctor at the beginning of 2019, as she was having nightmares and difficulty sleeping, as well as numbness and swelling. She was prescribed a refill of naproxen as well as Trintellix, an anti-depressant. Ms. Castro describes starting to experience pain and numbness in her fingers about six months after the accident. In about September 2019, she was also prescribed Imovane for sleeping issues.
[15] Ms. Castro describes seeing a psychiatrist through the insurance company in May 2019. On July 11, 2019, she was seen by Sandra Ramnaraine, a psychotherapist and psychometrist, for a psychological assessment. Ms. Ramnaraine interviewed Ms. Castro and administered psychological self-report tests under the supervision of Dr. Shaul, a registered psychologist. Ms. Ramnaraine provided Ms. Castro with 14 psychotherapy sessions, also under supervision, between August 2019 and June 2020.
[16] Ms. Ramnaraine is not qualified to provide diagnoses. The diagnoses were provided by Dr. Shaul, who was not called as a witness. I allowed part of the defendant’s motion to strike portions of Ms. Ramnaraine’s affidavit and annexed report, which was co-written with Dr. Shaul, for reasons given on September 11, 2024. My endorsement provided in part as follows:
“The diagnosis, summary and conclusions portion of the first report are not admissible for the truth of their contents. In this judge-alone trial, I am permitting them to be admitted for the limited purpose of indicating they are information other experts relied on. The same is true for the following sentence in paragraph 5 of Ms. Ramnaraine’s initial affidavit: “In that report, Dr. Shaul confirmed that Ms. Castro continued to meet the criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle)” and the following sentence in the second report: “Ms. Castro continues to meet criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (travelling in a vehicle).” Assuming this content is not proven elsewhere in the evidence, the weight to be attributed to the opinions of any experts who relied on these statements and opinions will be affected by their reliance on hearsay evidence.”
[17] Ms. Ramnaraine testified that she worked with Ms. Castro on issues of depression and anxiety. She administered tests to Ms. Castro, which she agreed were based on Ms. Castro’s self-reports and had a self-rating tool. No validity testing was incorporated.
[18] After the first 12 sessions, Ms. Ramnaraine and Dr. Shaul rerecommended that Ms. Castro be provided with 10 additional sessions, and 10 sessions were approved. However, Ms. Castro attended for only two further sessions, because her accident benefits claim was settled. Once she received the funds, she did not continue to attend counselling.
[19] Ms. Castro acknowledged that in order to be accepted into an ECE assistant program in the fall of 2019, she had to have a doctor complete a pre-admission medical report. On September 10, 2019, Dr. Goldberger, a physician at the clinic where her family doctor worked, filled out the form as follows:
[20] Ms. Castro testified that she provided Dr. Goldberger with the answers in the checklist.
[21] Ms. Castro first saw Dr. Rotundo, her current family physician, in February 2020, although he did not become her regular family physician until May 2021. Dr. Rotundo practices in a clinic with numerous other doctors and Ms. Castro was treated by several of them. In February 2020, Dr. Rotundo continued to prescribe Trintellix and extra strength Tylenol. Ms. Castro continued to complain of neck pain, low back pain, and tingling in her shoulders back and leg.
[22] In February 2020, Dr. Rotundo also completed a medical certificate for employment insurance sickness benefits, stating that Ms. Castro was off work for medical reasons from August 23, 2019, and would be incapable of working until August of 2020.
[23] Dr. Rotundo’s evidence is that Ms. Castro saw him for various pain-related complaints, including back and neck pain, tingling, shoulder pain, muscle pain, foot and ankle pain, and anxiety and depression between 2020 and 2024. She was diagnosed several times with musculoskeletal strain and prescribed rest, physiotherapy, and analgesics. Dr. Rotundo did not agree with the suggestion put to him in cross-examination that Ms. Castro was a patient who thought there was something wrong, but nothing could be found. He felt she had complex issues that they sorted through. Dr. Rotundo agreed that as a family doctor, he generally accepts what his patient tells him as true. He acknowledged the inconsistency between his form seeking EI sickness benefits and Dr. Goldberger’s certificate of fitness for the ECE assistant program, and acknowledged that the accuracy of the forms depends on what the patient’s truthfulness.
[24] Dr. Rotundo was not aware of Ms. Castro’s attendance at St. Michael’s Hospital for back pain five days before the accident.
[25] As stated, Ms. Castro’s family physicians arranged various tests, including MRIs and X-rays, and referred her to specialists. Ms. Castro saw Dr. Maria, a neurologist, in March 2021 for ongoing numbness and weakness in her shoulders. Dr. Maria had nerve conduction tests performed. He ruled out carpal tunnel syndrome and multiple sclerosis and advised that the studies did not explain her symptoms.
[26] In May 2021 Ms. Castro attended at Sunnybrook complaining of headaches and dizziness, after a garbage can fell on her nose.
[27] In 2021, Ms. Castro describes back pain, a fall on the stairs in the subway causing ankle problems, issues with her jaw that were worsening, and a December 2021 visit to Sunnybrook for headaches, jaw pain, and dizziness. She acknowledged in cross-examination that the December 2021 visit and complaints were not about the accident.
[28] Ms. Castro described that by the end of 2022, her situation continued to deteriorate. She acknowledged that after the fall in the subway, she had more pain in her legs.
[29] For reasons unrelated to the accident, Ms. Castro became depressed in 2023. She later returned to her family doctor complaining of pain in her back and left foot.
[30] Several litigation experts testified.
[31] Dr. Chan is an orthopedic surgeon retained as a litigation expert by Ms. Castro. His practice includes general assessments of musculoskeletal conditions. He acknowledged that his major area of practice is hip and knee replacements. Dr. Chan interviewed and examined Ms. Castro in June 2021. Ms. Castro advised him she had numbness and tingling in her arms, especially on her right side. She also had intermittent neck pain, and low back pain that radiated to her legs. Ms. Castro informed Dr. Chan she could only walk for about 500 metres and could tolerate sitting for about ten minutes.
[32] Based on Dr. Chan’s interview and examination, he expressed the opinion that as a direct result of the motor vehicle accident of November 28, 2018, Ms. Castro suffered myofascial injuries to her neck, shoulder girdles and lower back. She presented with ongoing soft tissue symptoms and complaints of numbness. He opined that she had entered a chronic pain state, and the prognosis was poor and unfavorable. He opined that at the time he saw her, permanency had not been established. He stated he would be happy to see her again but never did.
[33] In cross-examination Dr. Chan agreed that there was no objective sensory loss to account for Ms. Castro’s nerve symptoms, that he did not have the opportunity to reassess her after the nerve conduction studies, and that he did not know those results were normal. Dr. Chan agreed that he accepted her complaints of pain as genuine. He acknowledged that Ms. Castro did not tell him about the incident that had occurred five days before the car accident when she went to St. Michael’s Hospital emergency department for back pain, or the medications she received then. Nor did she tell him about the October 19, 2019, visit to the TGH emergency room after lifting a heavy box.
[34] The defence called Dr. Larouche as its litigation expert. Dr. Larouche is an orthopedic surgeon who practices in the management of spinal injuries and pain arising from such injuries. He interviewed and examined Ms. Castro on May 1, 2022. His opinion was that the musculoskeletal injuries sustained from the November 28, 2018, accident were relatively minor, would not warrant a significant impairment rating under the American Medical Association Guides to the Evaluation of Permanent Impairment, and would not be expected to cause disability. Dr. Larouche’s opinion was that Ms. Castro’s prognosis is excellent and her injuries should not interfere with her pre-accident job duties or non-occupational activities.
[35] In Dr. Larouche’s opinion, Ms. Castro’s accident-related diagnoses had resolved. Her non-accident-related diagnosis of degenerative changes in her lumbar spine, in keeping with age-related changes, were not aggravated by the accident. Nor did the accident aggravate her pre-accident low back pain with subjective reporting of left foot numbness that was documented five days prior to the accident. Her jaw and neurological symptoms are not causally attributable to the November 28, 2018 event.
[36] Dr. Pilowski is a clinical and rehabilitation psychologist. She assessed Ms. Castro on June 17, 2021, and prepared a psychological assessment report dated July 14, 2021. Dr. Pilowski administered several tests and diagnosed Ms. Castro with major depressive disorder, PTSD with vehicular and pedestrian anxiety, and somatic symptom disorder with predominant pain. It was her opinion that Ms. Castro was experiencing “ongoing and severe psychological distress over the great losses and restrictions that are, on a balance of opportunities (sic), the consequence of her involvement in the motor vehicle accident of November 28, 2018.” She opined that long-term treatment was reasonable and necessary, and Ms. Castro would benefit from chronic pain management treatment. Dr. Pilowski opined that Ms. Castro’s prognosis was poor.
[37] Dr. Pilowski agreed that 6 of the 8 tests she administered to Ms. Castro were largely subjective.
[38] As can be seen, this is a claim about soft tissue injuries and mental health issues, aside from her jaw complaint which I will address first. Ms. Castro has the burden of proving, on a balance of probabilities, that she sustained these injuries, and that they were caused or aggravated, on the “but-for” test, by the car accident.
[39] There is no evidence in the record, and no opinion evidence, connecting Ms. Castro’s jaw pain to the accident. Her medical records indicate that she had complained about these issues prior to the accident. I find she has not demonstrated on a balance of probabilities that this injury was caused or contributed to by the accident.
[40] Ms. Castro’s remaining complaints involve soft tissue injuries and complaints of pain, anxiety, and depression. Such injuries and conditions are often real, and serious. The absence of objective data makes them no less real and no less serious. However, where there are no objective data, the issue of credibility is of particular importance: Djermanovic v. Mckenzie, 2014 ONSC 1335 at para. 40.
[41] Dr. Rotundo, Dr. Chan, Dr. Maria, Ms. Ramnaraine, and Dr. Pilowski all relied to a significant degree on Ms. Castro’s self-reports in coming to their assessments, conclusions, opinions, and treatment recommendations. Unfortunately, I find that Ms. Castro is not a credible witness for the following reasons.
[42] I did not find many of her answers to be forthright. For example, she did not agree with basic questions on cross-examination, such as that she had been seen at a hospital for back pain five days before the accident. When confronted with the hospital records in the face of her denial, she explained that she had said “no” because she thought it had been 10 days prior. She disagreed with medical records that indicate she has had jaw pain since 2017 on and off, and insisted that the jaw pain only started after the accident. She claimed to always follow doctor’s recommendations, but ultimately conceded not doing so with respect to the Trintellix prescriptions and the counselling recommendations.
[43] Of great concern is that Ms. Castro revealed herself to be willing to say whatever was necessary to help her in any particular situation.
[44] First, she was willing to advise a physician, Dr. Goldberger, that she was fit and capable, in order to be admitted to the ECE program she wished to attend. On the basis of her statements, Dr. Goldberger completed the answers on the form as set out in paragraph 19 above. At the same time, Ms. Castro collected EI sickness benefits by telling Service Canada she was too unwell to work. She had Dr. Rotundo complete a form seeking further sickness benefits from EI in February 2020, while she was engaged in the ECE assistant program for which she had to affirm her health. I find that Ms. Castro is willing to over- or under-state her symptoms to achieve whatever her immediate goals are.
[45] In addition, as will be explained below, Ms. Castro asked her employer to under-report her income so she could obtain a child tax subsidy to which she would not be entitled if her true income were known.
[46] Further, Ms. Castro did not provide complete information to the physician witnesses. For example, she failed to tell Dr. Chan and Dr. Maria about her attendances at St. Michael’s Hospital and TGH for back pain from other incidents.
[47] In sum, I do not accept Ms. Castro’s evidence about her symptoms. I find that she exaggerated her symptoms to Dr. Rotundo, Dr. Chan, Dr. Pilowski, Ms. Ramnarine, and Dr. Maria. I find that she is willing to say whatever is necessary to support her goals.
[48] All of Ms. Castro’s experts, both participant and litigation experts, relied to a large extent on Ms. Castro’s self-reports. Dr. Maria, for example, indicated that he accepted her statements “at face value”. Dr. Rotundo agreed that as a family doctor, he generally accepts what his patient tells him as true. Dr. Pilowski agreed that six of eight tests were based on self-reports, although she noted she saw no signs of malingering in the two tests that look for a malingering response. Ms. Ramnaraine’s administered tests were all based on self-reports. Ms. Paolini testified that she believes her clients, although she also looks at other indicators and diagnoses in the file.
[49] I give little weight to these witness’s evidence because they were based to a very significant degree on information from Ms. Castro that I have rejected as not credible. I therefore do not accept their opinions and I find that Ms. Castro has not discharged her burden of proving that she has sustained non-pecuniary losses.
[50] I reach this conclusion without the necessity of relying on Dr. Larouche’s evidence. Having said that, I found Dr. Larouche to be credible and found his opinion to attract more weight than did the opinions of the plaintiff’s experts. This is because his opinion was based on a much more comprehensive review of Ms. Castro’s contemporaneous medical records than were the other witness’s evidence. He had the St. Michael’s and TGH records available to him. Although plaintiff’s counsel criticized Dr. Larouche for not referring to Dr. Chan’s or Ms. Paolini’s reports in his opinion, I accept Dr. Larouche’s explanation that they were less helpful than contemporaneous treatment notes, and he did not find them relevant to his assessment. Dr. Larouche acknowledged that patients may suffer from chronic pain without there being any objective findings. However, his opinion was that Ms. Castro’s impairments were not significant and should not interfere with her pre-accident job duties or non-occupational duties. He testified in a straightforward manner and explained the reasons for his findings in a thorough and reasoned way. The bases for his opinions were a thorough review of the records and his own examination. His conclusions are also consistent with the evidence about Ms. Castro’s employment and educational activities, which I will discuss below. I accept his conclusions.
[51] I find that Ms. Castro has not discharged her burden of proving on a balance of probabilities that the accident caused or aggravated the injuries of which she complains. I find she has not proven an entitlement to general damages.
B. Has Ms. Castro demonstrated she is entitled to damages for past and future loss of income, and/or loss of competitive advantage?
[52] Ms. Castro was employed as a caregiver at the time of the accident. Following the accident, she took five days off and testified that she attempted to return to work on modified duties. In cross-examination, she agreed that after the accident, she still took the children she cared for to daycare, sometimes dressed them, and prepared meals and snacks for them. Ms. Castro continued to work for the same family until August of 2019, and swore in her affidavit that she stopped due to pain and ongoing mental issues. In cross-examination when asked why she left that job, she stated that she planned to go to school for her ECE certificate.
[53] Indeed, when Ms. Castro left that employment full-time, she went back to school and enrolled in an ECE assistant course at Anderson college. That course involved two six-week long practicums, where she worked eight hours per day with children who were three to four years old. It was the course for which she had to provide medical evidence of fitness, as referred to in paragraphs 19 and 20 above. Ms. Castro also continued to work some weekend days for her now former employer.
[54] I pause to note that Ms. Castro was enrolled in the ECE assistant program at the time she asked Dr. Rotundo to complete her form for Service Canada indicating she could not work due to illness. While Ms. Castro advised that she does not think the EI benefits were approved, she acknowledged submitting the form. She also acknowledged receiving EI sick benefits from August 2019 until December 2019, while she was in the ECE program.
[55] Ms. Castro completed the ECE assistant course in November 2020, after which she worked as a caregiver for a different family. There, she cared for a young child, taking her to and engaging in activities with her, picked up the other children from daycare, preparing simple meals, tidying up, taking out the garbage and recycling, and doing the laundry. This employment lasted from January 2021 until September 2021 when the family’s youngest child was sent to daycare and Ms. Castro’s services were no longer needed.
[56] At this point, Ms. Castro attended CDI college until March of 2023 and received a diploma in Addictions Recovery Support for Youth and Families. Ms. Castro acknowledged excelling in this program, which required a 300-hour community placement.
[57] After receiving that diploma, she started working at a nonprofit organization called VHA, where she provided healthcare and support services. She worked there from September 2023 until April 2024. Although she was hired on a full-time basis, she did not work close to full-time hours. It was “on call” work. Ms. Castro states that the most she ever worked was 12 hours per week and she resigned because her niece was no longer able to help her with driving her children to and from daycare, so she had to do the driving, and this interfered with her job hours at VHA.
[58] In terms of her employment income, Ms. Castro swore in her affidavit that she was earning $790.00 for 40 hours of work per week from her caregiving job at the time of the accident. In fact, the payroll records indicate that starting in June 2018, several months before the accident. Ms. Castro was earning $420.00 per week. She also testified that she received a raise after the accident. Ms. Castro then testified that she earned some of her money “under the table”. She asked her employer to lower the declared income so that Ms. Castro could still be eligible for her child-care fee subsidy.
[59] Ms. Castro’s tax returns indicate that she earned more in 2021 than she had before the accident. In 2020 she earned somewhat less but received a substantial amount in social assistance while in school.
[60] Ms. Castro argues that I should assume she would have earned $35,000 per year, and should subtract her reported income from this figure to determine her loss. Counsel argued that, even though Ms. Castro earned cash income that was unreported, I should base employment loss calculations on her reported income figures and should ignore her cash income. The basis for this submission was unclear.
[61] Dr. Chan and Dr. Pilowski both opined that Ms. Castro was competitively disadvantaged in her chosen field of work and that she has not been able to return to the full aspect of her normal activities of daily living. They opined that this represented a serious impairment of an important physical function.
[62] I do not accept that Ms. Castro has lost income or lost a competitive advantage from the accident.
[63] Ms. Castro was fully able to participate in activities she wished to engage in. She went back to work as a caregiver after the accident. She left that job because she wanted to go back to school, in a program that required her to be physically fit. She then took another job as a caregiver. That job ended because the child went to daycare, not because Ms. Castro was unable to perform the required tasks. Ms. Castro then enrolled in another program that involved a practicum, at which she excelled. She found a part-time job following the program but left it because the hours were not convenient.
[64] I reject any suggestion that Ms. Castro resumed these activities despite her ongoing pain. I find that she continued with her plans unaffected by the accident.
[65] I do not find Ms. Castro has demonstrated, on a balance of probabilities, that she has suffered past loss of income from the accident. Nor do I find that she has demonstrated there is real and substantial possibility or risk that she will suffer future loss of income from the accident.
C. Has Ms. Castro proven that she is entitled to damages related to changes in her activities of daily living and her need for housekeeping?
[66] Ms. Castro states that before the accident, she was an active individual, but that since the accident she no longer goes for long walks, rarely sees friends, and does not participate as much in church because she says she is unable to kneel, clap and lift her arms. When confronted with a video of her waving her arms and swaying side to side in church, she said she did her best, but was struggling. She also testified that she drives but feels nervous and is hypervigilant.
[67] With respect to housekeeping, Ms. Castro states that she was mainly responsible for housekeeping before the accident but since then, her family has taken over most of the tasks. In cross-examination, she agreed that after the accident, when she went back to work a few days later, she drove her children to daycare and picked them up, took care of them in the evening, and continued to do some meal preparation at home. When her husband was ill for a period, she performed all the housework.
[68] Ms. Castro called Ms. Paolini, an occupational therapist who is in the process of becoming a certified life care planner. Future cost of care planning is within the scope of practice of an occupational therapist. Certification as a life care planner is recommended, but not required.
[69] Ms. Paolini conducted a telephone interview and observed and assessed Ms. Castro in her home in May 2021. Ms. Paolini had Ms. Castro perform grip strength tests, as well as functional tests. Ms. Paolini noted that Ms. Castro had neuropathy in her hands and had to take breaks. She struggled to maintain her level of activity. Ms. Paolini assessed Ms. Castro’s range of motion as within normal limits. She noted some swelling in her right hand and some restrictions in squatting, reaching, and lifting. She relied on Ms. Castro’s self-report that she had pain and numbness. She performed other screens about Ms. Castro’s mood and anxiety level, also based on Ms. Castro’s self-report. Ms. Castro completed forms indicating she had severe symptoms.
[70] Ms. Paolini concluded that Ms. Castro has the following weekly attendant care needs: 80 minutes for hair styling, 420 minutes for daily preparation of dinner, 210 minutes for daily assistance for emotional support and comfort, 10 minutes for assistance and monitoring for co-ordination of appointments and 15 minutes for support supervision with medication management. The total attendant care assistance recommended was 11.91 hours per week or 51.78 hours per month.
[71] Ms. Paolini assessed Ms. Castro’s weekly housekeeping and home maintenance needs as: 60 minutes for assistance with dishwashing for larger/heavier loads, 30 minutes for assistance with performing a more thorough floor cleaning of the home including moving furniture, 60 minutes for assistance in performing large loads of family laundry throughout the week, 15 minutes for performing thorough cleaning of the bathroom, 30 minutes for assistance in performing thorough kitchen cleaning, 20 minutes of assistance with performing large shopping trips. The total housekeeping and home maintenance assistance recommended was 3.58 hours per week or 15.57 hours per month.
[72] In addition, Ms. Paolini recommended one-time cost of a multidisciplinary chronic pain program, lifetime of physiotherapy, chiropractic care, acupuncture and massage therapy treatments, lifetime support for psychological treatment, a neuropsychological assessment to investigate Ms. Castro's cognitive deficits, prescription medications until the age of 65 when she would quality for the Ontario Drug Benefit program, occupational therapy treatment for a year, vocational rehabilitation and transportation costs.
[73] Ms. Paolini concluded that Ms. Castro requires funding for the following one-time and recurring costs: physical and rehabilitation treatment fixed term costs in the amount of $16,741.57 and the annual recurring costs until the end of life in the amount of $6,968.00; psychological treatment costs up to one year in the total amount of $6,140.64; one-time cost of a neuropsychologist assessment in the amount of $6,000.00; pharmaceutical treatment costs for up to age 65 in the total amount of $37,113.00; attendant care annual and lifetime recurring cost in the amount of $23,611.68; assistive devices in the total lifetime amount of $6,650.00; occupational therapy evaluation and treatment up to one year in the total amount of $15,200.00; job site analysis and job coaching sessions in total amount of $6,000.00; and lifetime transportation costs in the amount of $2,206.00.
[74] I found Ms. Paolini to be a credible witness. She was forthright and careful in her responses. I do not discount her evidence because she has not yet attained her certification. However, Ms. Paolini’s evidence suffers from the same weakness as that of the other experts called on behalf of Ms. Castro. The basis of her opinion was, to a very significant extent, Ms. Castro’s self-described situation and observation of Ms. Castro when Ms. Castro knew the results would be important for her litigation. While there were a few objective elements to her testing, such as the grip strength test (although Dr. Larouche considers this test to be less than objective), most of the information on which Ms. Paolini based her opinion came from Ms. Castro.
[75] Dr. Pilowski also expressed the view that Ms. Castro was restricted from her prior capacities with housekeeping and home maintenance activities, based on her discussions with Ms. Castro.
[76] I have found that Ms. Castro is not a credible witness. I have found that she has a history of saying or doing whatever is needed in the moment to achieve her ends. I therefore do not give weight to Ms. Paolini’s and Dr. Pilowski’s evidence, as the evidence is based on information I do not accept.
[77] I find that Ms. Castro has not demonstrated on a balance of probabilities that she has suffered a loss of past housekeeping. I find that she has not demonstrated that there is a real and substantial possibility or risk that she will suffer future loss of housekeeping, or that she requires future costs for care, as a result of the accident.
D. The threshold motion
[78] The defendant brought a motion seeking a declaration that Ms. Castro did not sustain permanent serious disfigurements or permanent serious impairments of an important physical, mental or psychological function within the meaning of the Insurance Act, and a declaration that she is not entitled to damages for non-pecuniary loss and health care expenses.
[79] The governing provision of the Insurance Act, R.S.O. 1990, c.I.8 provides as follows:
267.5 (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.
[80] 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) (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.
[81] 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.), at para. 50.
[82] 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? Ahmed v. Challenger, [2000] O.J. No. 4188, 100 A.C.W.S. (3d) 1065 at para. 17.
[83] 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.
[84] “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.
[85] 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.
[86] To be serious, the impairment must substantially interfere with employment, despite accommodation, or activities of daily leaving. 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: Hartwick at para. 89.
[87] Ms. Castro returned to the essential tasks of her usual employment. She left her employment to pursue other opportunities, at least the first of which required her to be physically fit. She was able to perform the essential tasks of her employment. She continued to attend church services and participate. The video evidence demonstrates that she was able to lift and hold her arm to the same degree as were the other members of her church singing group.
[88] I find that Ms. Castro has not established that her impairments meet the statutory exceptions. For the reasons above, I have not accepted Ms. Castro’s evidence about her injuries. I have therefore found the medical evidence she has adduced to be unworthy of weight, given that it is based largely on her statements. I have found that Ms. Castro did not prove that she suffered injuries caused by the accident.
[89] Further, I note that Dr. Chan was not prepared to state the impairment was permanent. Dr. Pilowski is not a physician. Whether a psychologist can provide the required evidence under s. 4.3 of the regulation, particularly where the opposing party objects, is unclear: Mundinger v. Ashton, 2019 ONSC 7161 at para. 72; Rodrigues v. Purtill (2019) ONCA 740 at paras. 9-13; Sanson v. Paterson, 2022 ONSC 2972 at para. 443. Even if I accept that Dr. Pilowksi’s opinion satisfies the requirements of s. 4.3, I have found that her opinion is not worthy of weight, as it is based extensively on Ms. Castro’s reports to her. I have found Ms. Castro’s evidence about her injuries not credible. I therefore do not accept Dr. Pilowski’s conclusion that Ms. Castro sustained a permanent and serious impairment of an important mental and psychological function, secondary to the motor vehicle accident of November 28, 2018.
[90] I find that Ms. Castro has not established that she has impairments that were caused by the accident; I find that she has not shown the impairments she does have are permanent, in the sense meant by the regulation as defined above; I find that she has not shown that important functions are impaired.
[91] Ordinarily the trial judge is considered to be in the best position to quantify the plaintiff’s damages, even when the judge finds the plaintiff has not met the statutory threshold. Given that I have determined that I do not accept Ms. Castro’s, and therefore the experts’, evidence about her impairments, I do not assess damages in the alternative.
Disposition
[92] The action is dismissed.
[93] The parties are encouraged to agree on costs of the trial. Should they be unable to do so, the defendant may provide costs submissions of no more than five pages double spaced, along with a bill of costs and any offers to settle, within 7 days. The plaintiff shall have 7 days to respond, with the same page limits. There shall be no reply submissions without leave. These submissions may be sent to my judicial assistant at linda.bunoza@ontario.ca.
L. Brownstone J. Released: November 28, 2024