Maher v. Kiric, 2025 ONSC 2327

Court File No.: CV-14-502664
Date: 2025-04-15
Ontario Superior Court of Justice

Between:
Sabrina Maher, Plaintiff/Moving Party
-and-
Marija Kiric, John Doe and the Superintendent of Financial Services, Defendants/Responding Party

Before: Lorne Brownstone

Counsel:
Sylvia Guirguis and Lazar Andjelkovic, for the Plaintiff/Moving Party
R.K. McCartney and Jake Franchi, for the Defendant Marija Kiric/Responding Party

Heard: 2025-04-11

Ruling on Threshold Motion

[1] The plaintiff, Sabrina Maher, sued the defendant, Marija Kiric, for damages she says she sustained when Ms. Kiric’s car hit Ms. Maher’s bicycle on October 28, 2013. Ms. Maher fell to the ground, fracturing her left wrist and finger, and hitting the left side of her body, including her head.

[2] The trial proceeded before a jury over a period of four weeks. Ms. Maher sought damages for non-pecuniary losses, past income and future income loss/loss of earning capacity, past out-of-pocket expenses, and future healthcare expenses.

[3] Ms. Kiric moves for an order that Ms. Maher’s claim for health care expenses and non-pecuniary loss are barred by ss. 267.5(3) and (5), respectively, of the Insurance Act, RSO 1990, c I.8. I heard submissions on this motion after the jury commenced its deliberations.

[4] The jury returned its verdict and awarded $40,000 in non-pecuniary damages and nothing for health care expenses. This has no effect on the requirement that I render a decision on the threshold issue: Mandel v. Fakhim, 2018 ONSC 7580 (Div. Ct.). While I am not bound by the jury verdict, the verdict is a factor for me to consider in determining this threshold motion.

[5] For the reasons that follow, I find that Ms. Maher did not sustain a permanent serious impairment of an important physical, mental or psychological function as a result of any injuries that arose directly or indirectly from the motor vehicle accident. I find that her claims are barred by ss. 267.5(3) and (5) of the Act and grant the defendant’s motion.

[6] I incorporate by reference my summary of evidence set out in my charge to the jury.

Governing Law

[7] The governing provisions of the Insurance Act, RSO 1990, c I.8 provide as follows:

267.5 (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.

(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] 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.

[9] The burden of proof is on the plaintiff to establish that her impairments meet the statutory exception set out in section 267.5(3)(b) and (5)(b) of the Insurance Act: Meyer v. Bright, 15 O.R. (3d) 129 (C.A.), para. 50.

[10] The trial judge must first answer: did the injured person sustain a permanent impairment of a physical, mental, or psychological function? If yes, was the bodily function that is permanently impaired important? If yes, is the impairment of the important function serious?

[11] Each element of the threshold test incorporates a causation element: McNamee v. Oickle, 2020 ONSC 2371, para. 15. 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.

[12] “Permanent” has been interpreted as meaning “indefinite”, as opposed to “forever”: Persaud v. Bascom, 2021 ONSC 4398, para. 19. The symptoms may be intermittent: Noori v. Liu, 2020 ONSC 3049, para. 101. Chronic pain has been found to be permanent for purposes of a threshold motion: Hartwick v. Simswer, para. 87.

[13] 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 their wellbeing, or activities of daily living. Importance is subjective: Mann v. Jefferson, 2019 ONSC 1107, para. 151.

[14] 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, para. 24. The totality of circumstances and cumulative effect should be considered: Arteaga v. Poirier, 2016 ONSC 3712, para. 20. Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute serious impairment: Hartwick, para. 89.

Positions of the Parties

[15] Ms. Maher states that, from the October 2013 accident, she suffered physical, cognitive, and psychiatric injuries, including fractures to her left wrist and finger, chronic pain and chronic pain syndrome, concussion and post-concussion syndrome, major depressive disorder, post-traumatic stress disorder or generalized anxiety disorder, somatic symptom disorder, and alcohol use disorder.

[16] Ms. Maher acknowledges that she had further falls after the October 28, 2013, accident. However, she argues that the October 28, 2013, accident was a cause of those further falls, satisfying the “but for” test in Clements. Ms. Maher argues the October accident was the first domino, causing the remaining events to occur. She states that her ongoing vestibular and concussion symptoms after the subject accident resulted in intermittent but persistent episodes of dizziness, which, on April 14, 2014, caused her to fall down 10-12 stairs. This fall resulted in a second concussion that exacerbated her post-concussion syndrome and her pain and psychiatric symptoms. It was the first of many falls that Ms. Maher would come to experience as a result of concussion-related balance issues.

[17] Ms. Kiric argues that any injuries Ms. Maher did suffer in the October 28, 2013, accident had fully healed within about six weeks. Ms. Kiric acknowledges Ms. Maher suffered a wrist and finger fracture on her left hand. These had healed by early December, as evidenced by Ms. Maher’s return to work as a server, and by the medical evidence at trial. Her current conditions were not caused by the October 2013 accident.

The Events of October 2013 and April 2014

[18] Ms. Maher was traveling westbound on College Street near Grace Street at about 5:45 PM on October 28, 2013. She was on her bicycle and estimates she was about a foot from the curb. She was riding in the curb lane, which was a shared bicycle and car lane and marked as such. Ms. Kiric was behind Ms. Maher. When Ms. Kiric moved to pass Ms. Maher, her mirror clipped Ms. Maher’s elbow and hands on her handlebar, resulting in Ms. Maher’s tires being quickly turned to the right and Ms. Maher falling from her bicycle to the left, towards the center lane. Ms. Maher extended her left arm to break the fall. She landed on her left side, and hit her head.

[19] Under s. 193 of the Highway Traffic Act, RSO 1990, c H.8, Ms. Kiric bears the onus of proving that she did not cause the accident. The jury found that Ms. Kiric did not discharge this onus and was responsible for the accident. I agree.

[20] The defendant took the plaintiff to the hospital from the scene of the accident, waited with her, and drove her close to home afterward. Both parties described engaging in pleasant conversation throughout their time together. The hospital records indicate that Ms. Maher had a head injury. However, she was not investigated or treated for any kind of concussion, nor was one suspected at the emergency room. Doctor Wainsbrough, the treating emergency physician at Mount Sinai Hospital, testified. Although he had no independent recollection of the plaintiff, he testified that upon his review of the record, he does not see that any concussion was suspected. A head injury can be anything from a scrape on the head to a brain bleed. Dr. Wainsbrough testified that physicians were very liberal in providing information statements to patients about head injuries if a head injury were suspected. Ms. Maher agreed that she was not provided with such an information sheet. Ms. Maher testified that once she got home, and in the following days, she started to have symptoms of sensitivity to light, headaches, including migraines, and dizziness.

[21] Ms. Maher was off work from her part-time job as a server for about 6 weeks, until her fractured wrist healed. She continued her studies in her master’s program.

[22] Ms. Maher fell down a flight of stairs at her home on April 14, 2014. She went to the Toronto Western Hospital, where a CT scan of her brain was performed. There was no brain bleed, but she suffered a concussion.

[23] Ms. Maher testified that she fell down the stairs because she had a dizzy spell – that she continued to suffer dizzy spells after the bicycle accident. It was the sequelae from the bicycle accident that caused the April 2014 fall. The April fall exacerbated her symptoms.

The Medical Records

[24] The day after the October accident, Ms. Maher attended Women’s College Hospital for a previously scheduled consultation regarding heart palpitations. That record contains the following information:

PAST MEDICAL HISTORY: Anxiety disorder, depression, panic disorder, childhood murmur.
SOCIAL HISTORY: Drinking 8-12 drinks of alcohol/week. She is physically active and has approximately 150 minutes of physical activity a week….
PHYSICAL EXAMINATION: On examination, Ms. Maher appears to be her stated age and is in no apparent distress.

[25] On November 5, 2013, Ms. Maher attended the fracture clinic for follow up. The orthopedic consult note states in part as follows:

This lady had a fall from her bike, which occurred on October 28, 2013. She was hit by a car, who made a sudden turn and knocked her from her bike at the corner of College and Grace. She fell on her outstretched hand and sustained an injury to her left distal radius. She also had an injury to her left middle finger, which has been looked after by Plastic Surgery.

[26] On November 28, 2013, Ms. Maher was seen for counselling at the University of Toronto Health Services. She reports feeling low and anxious. The counselling note also states “Student reports she was hit by a car on her bike a few weeks ago and has been feeling overwhelmed with insurance and appts etc.”

[27] On December 12, 2013, Ms. Maher saw her family doctor for the first time since the accident. She reported that she had lost consciousness for a few seconds in the accident, and had had headaches on and off since then. She asked for a referral to a neurologist, which the family doctor made. She was not seen by a neurologist until December 2014.

[28] On February 11, 2014, Ms. Maher followed up with her family doctor about the results of a knee MRI, which she had also requested in the December 12 visit.

[29] The April 14, 2014, record from the Toronto Western hospital refers to Ms. Maher having tripped and fallen down ten steps. In her evidence at trial, Ms. Maher testified that she became dizzy and fell.

[30] There have been a number of falls since April 2014. There was evidence that some of these have been preceded by dizziness. Falls occurred in November 2015, December 2016, November 2019, October 2020, March 2021, and February 2022.

The Expert Evidence

[31] Ms. Maher called Dr. Khumbare, a physiatrist, Dr. Izenberg, a neurologist, and Dr. Waisman, a psychiatrist, as litigation expert physicians. She also called Dr. Frtusova, a clinical neuropsychologist. In addition, the court heard from some of her treating physicians, including Dr. O’Brien, her treating neuropsychiatrist and Dr. Malik, who practiced in a pain clinic at Women’s College Hospital.

[32] None of the physicians saw Ms. Maher before the April 2014 fall. Even her family doctor, Dr. Bruni, only became her family physician in 2017, several years after the accident.

[33] Dr. O’Brien first saw Ms. Maher in January 2017. He is of the view that she suffers from post-concussion syndrome, PTSD, cognitive deficit and fatigue due to old head trauma, fibromyalgia, major depressive disorder, and alcohol use disorder, severe, in sustained remission.

[34] Dr. Izenberg assessed Ms. Maher in May 2021. He testified that concussion symptoms usually manifest within the first week, but it can be within the first month. Dr. Izenberg described the history provided by the patient as the backbone of his assessment. He opined that Ms. Maher met the criteria for a mild traumatic brain injury from the October accident because she had sustained force to the head, was confused and disoriented. Her symptoms had improved but had not resolved by the time of the April 2014 fall. He diagnosed Ms. Maher with post-concussive syndrome, which had likely been contributed to and compounded by the subsequent head injury(ies). He also diagnosed her with Persistent Headache Attributed to Traumatic Injury to the Head.

[35] Dr. Waisman first assessed Ms. Maher in September 2020. Dr. Waisman was of the view that although pre-accident, Ms. Maher had been noted to have symptoms of anxiety and depression, she had not been formally diagnosed with any anxiety or depressive disorder. He diagnosed Ms. Maher with Major Depressive Disorder, changed later to Persistent Depressive Disorder with persistent major depressive episode, moderate; Somatic Symptom Disorder, and PTSD. He testified that there is a cumulative effect of suffering from multiple conditions.

[36] Dr. Kumbhare first assessed Ms. Maher in September 2020. He testified that concussion symptoms can take 2-3 days to manifest. Dr. Kumbhare testified that Ms. Maher told him she had lost consciousness in the October 2013 accident, and also that she was confused and disoriented. She said that within a few days, she developed a headache, felt confused and disoriented, had nausea, confusion, fatigue, was sleeping a lot, and had difficulty with dizziness and trouble with telephone conversations. Dr. Kumbhare testified that concussion symptoms can take 2-3 days to manifest themselves.

[37] Dr. Kumbhare concluded that from the 2013 accident, the plaintiff had post traumatic headaches, ringing in her ears, and that each injury she had thereafter added on. She had persistent post-concussion symptoms, chronic pain syndrome, psychological distress, substance abuse, and functional limitations. She had some cognitive issues, mood changes, sleep issues and some inner ear issues.

[38] The plaintiff called Dr. Frtusova, neuropsychologist. Dr. Frtusova is not a physician, as required by s. 4.3 of the regulation. However, she may provide evidence that corroborates the evidence provided by a physician pursuant to s. 4.3: Mundinger v. Ashton, 2019 ONSC 7161, para. 57. Dr. Frtusova diagnosed Ms. Maher with Major Depressive Disorder, Recurrent, Mild to Moderate, later querying Persistent Depressive Disorder; PTSD, changed later to Generalized Anxiety Disorder.

[39] The plaintiffs filed a report of Dr. Mitsoplous, clinical psychologist, who diagnosed Ms. Maher with Moderate Depressive Episode, PTSD and specific (isolated) phobia related to cycling and busy streets.

[40] Dr. Reznek, a psychiatrist, testified for the defence. Dr. Reznek testified that he did not believe Ms. Maher suffered from post-concussive syndrome from the October 28, 2013, accident, as he did not believe she had suffered a concussion on that date. He also believed she was exaggerating her symptoms.

[41] Dr. Reznek testified that Ms. Maher had suffered from bouts of depression and anxiety from her teenage years, and PTSD from a 2001 assault by her roommate. In his view, major depressive disorder and generalized anxiety disorder, both in remission, and PTSD, all pre-existed the accident. Dr. Reznek agreed there is no formal diagnosis of major depressive disorder or generalized anxiety disorder pre-accident, but there are records of symptoms of depression and anxiety. He is not of the view that the accident triggered a depressive episode. He does not believe Ms. Maher suffered from PTSD but conceded in cross-examination that he omitted symptoms in his report that were contained in his notes that could be important to a PTSD diagnosis.

[42] Dr. Reznek testified that if there is a concussion that contributed to Ms. Maher’s condition, it would be from the April 14, 2014, fall.

[43] Dr. Lazarou, a neurologist called by the defence, expressed the opinion that Ms. Maher may have suffered a concussion in the 2013 accident, but if she did, it was a mild one. Dr. Lazarou testified that Ms. Maher suffers from the syndrome called post-concussion syndrome, but that there is no neurological cause for it.

[44] Dr. Boynton, an orthopedic surgeon called by the defence, testified that Ms. Maher’s wrist injury would have been expected to heal in about 4 weeks. There was no remaining deformity of her wrist or finger; Dr. Boynton’s examination of her left wrist and hand was normal. There were likely to be no long-term effects to Ms. Maher’s wrist. Her knee pain was caused by biomechanical issues unrelated to the accident. In Dr. Boynton’s opinion, Ms. Maher’s orthopedic pain is not related to the accident. Dr. Boynton does not have the sense that Ms. Maher suffers from chronic pain syndrome but agreed it could be possible.

[45] There was much evidence about Ms. Maher’s alcohol use over the years. The evidence demonstrates that there had been periods of alcohol abuse before the accident, and increased alcohol abuse at various times after the accident. Ms. Maher has been sober since January 1, 2021.

Application of the Evidence to the First Question of the Threshold Test

Did Ms. Maher sustain a permanent impairment of a physical, mental, or psychological function from the accident?

[46] As noted above, each element of the threshold test contains a causation element. In my view, it is on the issue of causation that Ms. Maher’s claim fails.

[47] Ms. Maher argues that, although she had symptoms of depression and anxiety before the accident, no diagnosis of a depressive or anxiety disorder had been made until after the accident. Further, she argued that her previous PTSD in relation to the roommate’s assault had been resolved before the accident; her current PTSD results from the accident. Similarly, although she had times of problematic alcohol use before the accident, the accident resulted in the escalation of these issues to an alcohol abuse disorder. She argues that her post-concussive syndrome and chronic pain/somatic symptom disorder also would not have occurred but for the October accident.

[48] I find that these claims are not borne out by a close examination of the evidence. There is no mention of any possible concussive symptoms in any of the medical records until mid-December 2013, about seven weeks after the accident. At that appointment, the patient seeks a referral to a neurologist as well as imaging of her knees. The bulk of the expert evidence was that concussive symptoms would normally be expected to appear within 72 hours post-accident. Ms. Maher’s experts consistently noted, and the medical records substantiate, that Ms. Maher was a help-seeking individual. When there were medical or psychological issues, she sought treatment from professionals promptly.

[49] I note that the medical records that are closer in time to the accident reveal no concussive symptoms or suspicion of a concussion. At Mount Sinai Hospital, the notes indicate there was no loss of consciousness, different from the history Ms. Maher later provided to treatment providers and experts. The hospital did not provide her with any head injury information, despite Dr. Wainsbrough’s unchallenged evidence that these were given out liberally if a concussion were suspected. The day after the accident, the patient reported that she had no headache, that she was physically active, and appeared in no distress. This differs from her testimony that her headache started the evening of the accident when she got home from the hospital and was still there the next morning. In addition, the patient testified that she was exhausted and confused the next day. This is not borne out by the Women’s College Hospital record.

[50] Nor does Ms. Maher mention any such symptoms or injuries when describing the accident to the fracture clinic on November 5 or the U of T counselling services on November 28, 2013.

[51] Ms. Maher testified that she fell down the stairs on April 14, 2014, as a result of a dizzy episode. Her litigation experts appear to have relied on such a version of events in coming to their conclusions. However, the hospital record from that date notes that she “tripped and fell down 10 steps”. The only injury the April 14 record refers to the October 28, 2013 accident was a left wrist injury.

[52] Three days before the April 2014 fall, Ms. Maher attended at U of T Health Services for a counselling session. She notes that her exhibition opening was in early April and that she was tired but ready for her dissertation the following week. There were no signs of depression, and her mood was stable.

[53] Between November and April 2014, the U of T counseling records refer more than once to Ms. Maher having to write her thesis, and the progress she was making on it, and related anxiety. At trial, she testified that her thesis, which was tied to her April exhibition, was about 80 to 85 percent complete before the accident, some five months before the date of the exhibition. She disagreed with the counselling notes that recorded that she had to write her thesis. She stated that she had to revise, not write, the thesis.

[54] There is no other evidence that Ms. Maher had completed most of her thesis before the October accident. The counselling records suggest otherwise. They suggest that as her exhibition and thesis work progressed, she felt better and less anxious. I find that she continued to work on her thesis after the October 2013 accident.

[55] I find that Ms. Maher’s evidence about the period between the October accident and the April fall is not reliable. She has, unfortunately, suffered many falls and concussions since April 2014. She testified that she does confuse some of the falls. There is no doubt she suffered a significant concussion in April 2014, and that it has not been her only concussion. However, I find scant evidence outside of her own testimony that she suffered a concussion or any concussive symptoms after the October 2013 fall. I do not accept that a dizzy spell caused her fall of April 2014.

[56] With respect to her diagnoses of depression and anxiety, the plaintiff’s theory is that she had had symptoms of depression and anxiety off and on throughout her life but had never been diagnosed with a disorder related to these symptoms until after the October 2013 accident. The defendant disagrees with this and cites examples in the records of pre-existing diagnoses. What is clear from the medical records and expert testimony is that Ms. Maher had suffered at least from symptoms of anxiety and depression off and on for many years prior to the October 2013 fall. Diagnoses of disorders came significantly later, after further falls and further difficult life circumstances related to her career and her mother’s illness and death. In this regard, I accept Dr. Reznek’s evidence that the plaintiff did not develop depression and anxiety disorders as a result of the October 2013 fall.

[57] A similar situation exists with respect to alcohol use disorder. The plaintiff had had issues with heavy drinking prior to the accident. There were periods of her life when her drinking was more and less of a problem for her. I do not accept that the October 2013 accident led her to develop an alcohol use disorder, or that it exacerbated an existing alcohol abuse issue.

[58] The difficulty with Ms. Maher’s expert evidence and their conclusions about the impact of the 2013 accident on her condition is that, years later, they relied heavily on her report that the 2013 accident caused symptoms, including a concussion, that remained active as of April 2014. I have found that not to be the case. Therefore, the expert opinions rest upon a faulty foundation.

[59] In sum, I find that Ms. Maher’s physical, cognitive, and psychiatric conditions were not caused by the accident. I do not accept that the accident was the first domino in a chain of events. Rather, the evidence demonstrates that the plaintiff suffered a wrist and finger fracture from the accident which healed in about six weeks. She does not argue that these are permanent impairments and I find they are not.

[60] I therefore find that Ms. Maher has not satisfied the first test in the three-step analysis set out in Meyer. She has not proven that she 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

[61] Disposition

[62] Given my finding that Ms. Maher has not satisfied the test, her claims for non-pecuniary loss and health care expenses are dismissed as barred by s. 267.5(3) and (5) of the Insurance Act.

[63] 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. Submissions shall be sent to my judicial assistant at Linda.Bunoza@ontario.ca.

Lorne Brownstone
Date: 2025-04-15