Endorsement

Introduction – The Issue

COURT FILE NO.: CV-21-00060399-0000
DATE: 2025-06-04
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Carissa Marcantonio and Angelee Brown (Plaintiffs)
AND: Yu Li (Defendant)

BEFORE: Andrew Spurgeon
COUNSEL: Meghan Hull and Daniel Rabinovitch, Counsel for the Plaintiffs
K. Bruce Chambers and Danielle Ralph, Counsel for the Defendant
HEARD: May 27, 2025

[1] This is a threshold motion heard at the conclusion of an 11-day jury trial concerning a motor vehicle accident which occurred on October 23, 2020. The plaintiff, Ms. Carissa Marcantonio’s vehicle came into collision with that of the defendant, Mr. Yu Li, at the corner of Ontario Street and Adams Street in St. Catharines, Ontario.

[2] The trial commenced on Monday, May 13, 2025 and concluded on Tuesday, May 27, 2025. The jury awarded the plaintiff general damages for pain and suffering of $30,000 and the Family Law Act claimant $0. Arguments concerning the threshold motion occurred while the jury was deliberating.

[3] In a threshold motion, the trial judge’s task, pursuant to s. 267.5(5) of the [Insurance Act](https://www.ontario.ca/laws/statute/90i08), is to determine whether the plaintiff in the motor vehicle crash that is the subject of this trial suffered a “permanent serious impairment of an important physical, mental or psychological function.” If the answer is yes, the plaintiff is permitted to receive general damages from the defendant as determined by the jury. If the answer is no, the plaintiff is not permitted to receive such damages.

Threshold Defined

[4] Guidance as to how this section of the Insurance Act is to be interpreted and applied in accidents occurring after November 1, 1996 is set forth in [O. Reg. 461/96](https://www.ontario.ca/laws/regulation/960461) at sections 4.1 to 4.3.

[5] The onus of proof that the plaintiff’s injuries result in impairments meeting the threshold lies on the plaintiff.

[6] The framework of analysis in threshold motions like this flows from the original case on point, [Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.)](https://www.canlii.org/en/on/onca/doc/1993/1993canlii3389/1993canlii3389.html). This approach is utilized today, incorporating the regulatory changes from O. Reg. 461/96.

[7] The overall approach is ably summarized, inclusive of subsequent case law, by Justice Doi in the case of [Trieu v. Aubin, 2025 ONSC 1141](/on/scj/2025/1141), which I quote at length.

[11] Diamond J. in Ayub v. Sun, 2015 ONSC 1828 at paras 13-14 adopted the fulsome summary that Firestone J. (as he then was) gave in Malfara v. Vukojevic, 2015 ONSC 78 at para 7 onwards, of the relevant jurisprudence and principles to consider on a threshold motion, and highlighted this summary as follows:

[13] In Malfara v. Vukojevic, 2015 ONSC 78 (S.C.J.), Justice Firestone set out a fulsome and helpful summary of the relevant jurisprudence relating to threshold motions, and the principles to be considered and applied by the motions judge. The highlights of this helpful summary are as follows:

In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044, at para. 10.
The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court set out the following three part inquiry:
1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function impaired important?
3. If yes, is the impairment of the important function serious?
While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh, 2008 ONCA 221 and Bos v. James (1995), 22 O.R. (3d) 424 (Gen. Div.).
The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao, at para. 32.
The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.J.) at para. 56.
When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Givons (2004), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.

[14] Finally, in Malfara Justice Firestone stated at paragraphs 16 and 23 that a diagnosis of chronic pain, by definition, does not indicate by itself that the injuries are permanent. While the effects of chronic pain are just as real and likely to meet or not meet the threshold as any other type of injury or impairment, it is the “effect of the injury on the person” and not the “type of injury” which forms the focus of the threshold analysis. The Court is concerned with the manner in which the plaintiff has been impacted, and the evidence presented at trial.

The Evidence

[9] A summary of the plaintiff’s evidence is as follows:

Prior to the accident, she had completed high school. She graduated with honours after working hard to improve her grades as high school came to its conclusion. She was accepted to three universities and decided to accept the offer from Brock University which contained a scholarship. She, however, decided to defer for one year in order to work and make money to support herself through school.
She had the desire to study psychology in university. She also told the court she enjoyed creative writing. She spent time with her friend Alanna Kerry creating stories. The plaintiff wrote while Ms. Kerry illustrated.
At the time of the accident, she worked full-time doing telephone-based tech support for Apple. She did this from home. She had also had work doing customer service for a local Ramada hotel. That employment was precarious during COVID. After the accident, she told the court that she did not return to either job.
Prior to the accident, her family life featured some issues. She lived with her parents separately at different times. She did have some emotional concerns which did result in some visits to her family doctor. Depression and anxiety were identified as issues, and she was prescribed some medication and referred for specialist help. She briefly took the medication once and did not avail herself of specialist treatment. The plaintiff acknowledged that a recording of a diagnosis of ADHD was in her family physician’s records which had not been treated.
In the accident, the plaintiff claims to have hit her head and reports she “blacked out” briefly. She claimed to have suffered an injury to her head, lower abdomen, neck, and knee.
As time progressed, she states that she began experiencing pain, light sensitivity, headaches, cognitive impairments, memory loss, inability to find appropriate words when speaking, fears, nightmares, sleep difficulty, fatigue, slowed information processing, heightened anxiety, depression, and suicidal thoughts.
These things, she states, interfered with her ability to function, work, play, socialize, maintain herself, be with friends, and go to school.
The plaintiff also advised that she had a significant weight gain post-accident – up to 100 pounds – and that this has had a negative impact on her.
The plaintiff, in her testimony, expressed a sense of hopelessness and fear for her future as well as frustration with her present state compared to where she had hoped to be at this stage in her life. She has not been able to go to university or return to work. She fears for future.

[10] The plaintiff’s mother, Ms. Brown’s evidence was:

The plaintiff was the youngest of three children. She described her before the accident as loving, caring, kind-hearted, liking to socialize, generous, and liking to explore and do different things. She liked to hike and had jobs in summers and during school. She had friends but one in particular, Alanna Kerry.
She herself enjoyed a very close relationship with her daughter, much like best friends, not just mother-daughter.
After the accident, she observed that the plaintiff was in pain a lot; easily confused; irritable; shut herself off from other people; moody; crying a lot; was scared a lot; forgetful; emotionally troubled; struggled to organize herself and engage in productive work of any kind; fearful; always tired; and unable to keep a regular sleep schedule.
Their relationship changed as the plaintiff was hard to be around, shut herself off, and was difficult to talk with.
In cross-examination, Ms. Brown agreed that in the months before the accident, the plaintiff had lived a good part of that time with her father, not Ms. Brown, and that the plaintiff’s father had been abusive in the past and that Ms. Marcantonio had been treated in the past by the family doctor for depression. She did not recall a diagnosis of ADHD.

[11] The evidence of the plaintiff’s friend, Ms. Kerry, was:

Ms. Kerry and the plaintiff had known each other and been friends for ten years (since middle school). She outlined some stressful experiences for the plaintiff with her father’s partner which weighed on the plaintiff prior to the accident.
They were friends, hung out a lot, and did creative things together. The plaintiff wrote stories and Ms. Kerry would illustrate them. They went hiking, walking, and to the mall together. She described the plaintiff before the accident as light-hearted, friendly, and pleasant.
After the accident, she saw that her friend was in pain, depressed, anxious, forgetful, and hopeless. She tried to provide moral support to the plaintiff and tried to engage the plaintiff in activities that she felt the plaintiff could handle, like fishing together.
She also noticed a large weight gain post-accident which made the plaintiff self-conscious, wearing baggy clothes to cover it.
Ms. Kerry’s evidence is that the plaintiff changed after the accident. Previously, she was an organized, clean, creative, and engaged person. After, she was fearful, anxious, forgetful, disorganized, depressed, and in pain.

She is a registered social worker with education in psychology. She has worked in the field of children’s welfare for many years. She provided counselling to the plaintiff after the accident over a period of approximately 3.5 years on over 50 occasions. She treated the plaintiff exclusively after the motor vehicle accident.
The predominant problems Ms. Mentz sought to address with the plaintiff were: her headaches; pain; sleep disruption; cognitive problems, including her executive functioning and problem-solving skills; depressive symptoms; panic attacks; and grief related to the trajectory of her life.
In the time she counselled the plaintiff, Ms. Mentz detected an arc of experience in three phases:
- First, a period of tremendous fear and sense of vulnerability with the plaintiff and grief and making sense of her loss from the accident.
- Second, a state of desperation and realization about the changed state of her life because of the accident.
- Third, an acceptance of circumstances accompanied by a sense of hopelessness and apathy about the future.
During her time counselling the plaintiff, Ms. Mentz dealt with concerns about suicidal ideation on the part of the plaintiff.

[13] The plaintiff called three expert witnesses relating to the plaintiff’s medical diagnosis and functioning as is required under the regulation subordinate to the applicable legislation. They are Dr. Stephanie Wiesenthal, a psychiatrist, Dr. Harpreet Sangha, a physiatrist, and Dr. Konstantin Zakzanis, a neuro-psychologist. The defendant called one expert, Dr. Sharrif Dessouki, a physiatrist.

[14] Suffice it to say, the vast bulk of issues they opine the plaintiff suffers from which bear on her functioning are psychological and mental in nature. I will recount their evidence in turn.

[15] Dr. Stephanie Wiesenthal testified that she had diagnosed the plaintiff with the following psychiatric maladies:

Major Depressive Disorder;
Somatic Symptom Disorder;
Sub-clinical symptoms of PTSD (Post-traumatic Stress Disorder).

She further advised that these were caused by the accident.

[16] Dr. Wiesenthal’s evidence was that though the plaintiff had been diagnosed with depression and anxiety before the accident by her family physician, she was substantially worse post-accident, and the accident was causal of that change. The outward manifestation of these diagnoses is that the plaintiff experiences pain, and suffers regular emotional breakdowns, apathy, panic attacks, and suicidal ideation.

[17] Dr. Harpreet Sangha, physiatrist, whose evidence included provision of certain diagnoses including:

Post-traumatic headaches;
Post-concussive syndrome;
Chronic neck and back pain;
Sleep disorder;
Psycho-emotional distress;
Post-traumatic weight gain (100 pounds).

[20] Dr. Konstantin Zakzanis, neuro-psychologist, opined that the accident caused the plaintiff to suffer a neuro-cognitive disorder and an uncomplicated mild traumatic brain injury. The plaintiff suffers cognitive symptoms such as impaired:

Executive functioning;
Memory;
Word finding capacity; and
Information processing.

[21] Dr. Zakzanis opined that these diagnosed maladies, combined with the plaintiff’s diagnosed depression, sense of hopelessness, reduced motivation, anxiety, and somatic symptoms impede and limit the plaintiff’s ability to go to university and work.

[23] Dr. Sharrif Dessouki, a physiatrist, opined that the plaintiff suffered a musco-latigomus injury of the thoracic and lumbar spine and a sprain or strain of the right knee.

[24] His prognosis in respect of those injuries was good – resolution within three months, which is well in the past. Further, he said that those physical injuries have indeed healed.

[25] Dr. Dessouki deferred comment on other issues such as headaches and cognitive concerns and psychological symptoms as they were outside the scope of his expertise.

Analysis

[26] Based on the three-step modified Meyer v. Bright analysis, I will answer each question in turn.

Step 1 – Permanence

[27] Has the injured person sustained a permanent impairment of a physical, mental, or psychological function? Based on the evidence adduced in this trial, on a balance of probabilities, the answer is yes.

[28] The plaintiff’s evidence and that of the other lay witnesses tendered shows a distinct pattern of significantly diminished functionality which has thus far been enduring and discouraging. The plaintiff:

has not been able to return to work after 4.5 years;
has not been able to commence university study despite her offer of acceptance and scholarship;
has post-traumatic weight gain of 100 pounds which appears resistant to loss; and
has experienced enduring cognitive impairments which appear not to be improving.

Step 2 – Importance of Function Impaired

[30] If the answer to the first question is “yes,” the next question in the analytical framework of Meyer v. Bright is to ask whether the function impaired is important. In this case, the answer to that question is yes.

[31] The evidence before the court clearly discloses that the plaintiff suffers from a series of diagnosed conditions that together result in the plaintiff suffering from a constellation of cognitive impairments of function that are indeed important. These important functions include memory, mood, and information processing.

[33] Mood – Depression and anxiety are diagnosed conditions that the plaintiff suffers from because of the car accident. The plaintiff, at the time of the accident, had two customer service-oriented jobs (telephone customer tech for Apple and front desk service at a hotel).

[34] The plaintiff said she enjoyed such work. She told the court she wanted to be a psychologist. Whether she would ultimately do that or not is unknown. Her stated goal of work as a psychologist, in addition to the pre-accident forms of employment focussing on customer and client service, likely inform us of the sort of job the plaintiff had an affinity for and likely would do in the future. She was interested in human interaction and service as a significant component of her future work. Clinical depression, anxiety, apathy, hopelessness, and suicidal ideation are more likely than not significant impairments to successful functioning in customer and client service jobs.

[35] Information processing – Dr. Zakzanis diagnosed an impairment in the plaintiff’s information processing capabilities. Given that she was, at the time of the accident, a telephone-based customer service tech support person for Apple, she was confronted with customers daily, at quick intervals, demanding immediate assistance and solutions to their problems. Compromised information processing capacity is essential to functioning in that role and other customer and client service roles. Impairments in information processing are also not helpful in successfully pursuing higher education.

Step 3 – Seriousness of Impairment

[36] The plaintiff has, for the last 4.5 years since the accident, suffered from serious psychological symptoms. Dr. Wiesenthal diagnosed her with Major Depressive Disorder, Somatic Symptom Disorder and sub-clinical symptoms of PTSD. She has had prescribed for her and taken anti-depressant medication regularly. She has struggled with her emotions, sleep, motivation, panic and recurrent suicidal ideation. The particular anti-depressant medication she was on contributed to a significant post-accident weight gain of approximately 100 pounds. The impairment of the plaintiff’s psychological and mental functioning is serious.

Causation

[37] The serious, permanent impairment of an important mental or psychological function of the plaintiff must be caused by the accident. The court finds that, on a balance of probabilities, in this case, it was.

[38] At the time of the accident, the plaintiff was a teenager who had just graduated high school with honours. Over her high school career, she had good but not exceptional grades. She worked hard to improve her grades in her last year and achieved honours. She received offers from three universities in Ontario and a $2,500 scholarship from Brock University which she accepted and deferred for a year. That deferral was primarily to enable her to earn money and pay for her education, as well as to avoid remote schooling during the initial unpleasantness of isolation during the first year of the pandemic.

[39] The plaintiff had a plan for her immediate and medium-term future.

[40] As a child and teenager, the plaintiff had lived separately in both her mother’s and father’s homes and encountered difficulties with her parents’ respective new partners. These experiences spawned episodic complaints by the plaintiff of psychological sequalae which were recorded by the family doctor. In a single note in the family doctor’s clinical notes and records, mention was made of a possible diagnosis of “ADHD” or Attention Deficit/Hyperactivity Disorder a couple of years before the accident. The family doctor was not called to give evidence and elaborate on this clinical note. The plaintiff’s mother on cross-examination did not recall having such a diagnosis of her daughter being disclosed to her by the family doctor. The plaintiff’s mother acknowledged that her daughter had not been treated for ADHD.

[41] The defence relied heavily on this single clinical entry of ADHD in their case.

[42] Though Dr. Wiesenthal and Dr. Zakzanis agreed that symptoms of ADHD can be similar to those experienced by the plaintiff, they asserted and concluded that the cause of the plaintiff’s diagnoses and symptomology – depression, cognitive impairments, somatic symptom disorder, etc. – was the car accident.

[43] No expert opinion evidence was led by the defence to contradict these opinions.

[44] Moreover, these expert opinions of a psychiatrist (Dr. Wiesenthal) and neuro-psychologist (Dr. Zakzanis) resonate with the real-life experience of the plaintiff as revealed in the evidence.

[45] Prior to the accident, assuming she had ADHD, the plaintiff was maturing as she came to the end of her high school career. Her grades were improving from the average to slightly above average to honour roll level. Her acceptance to university and participation in full-time employment demonstrated the positive trajectory.

[46] The single intervening event, which deflected the positive trajectory of the plaintiff’s life into a negative one, was the car accident. Before the car accident, to the extent the plaintiff may have been diagnosed with ADHD, and to the extent she may have had episodes of occasional headaches or depressive symptoms, they were not symptomatic and were apparently in abeyance as evidenced by the upward trajectory of her performance in school and work prior to the accident.

[47] A reasonable inference and conclusion can be drawn on a balance of probabilities that the car accident was causal of the plaintiff’s diagnosed symptoms and impairments post-accident.

Conclusion

[48] The court concludes, based on the foregoing, that the plaintiff has suffered a severe, permanent impairment of an important mental or psychological function as defined in the Insurance Act because of the car accident of October 23, 2020, which is the subject of the plaintiff’s claim against the defendant.

Andrew Spurgeon

Date Released: June 4, 2025

References

[1] Insurance Act, R.S.O. 1990, c. I.8.
[2] Health care costs were not sought by the plaintiff in this case.
[3] McGrath v. Norris et al., 2025 ONSC 2861, at para. 10
[4] Meyer v. Bright (1993), 15 O.R. (3d) 129 (C.A.)
[5] McGrath, at para. 10.
[6] Trieu v. Aubin, 2025 ONSC 1141