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July 2017

A summary of threshold decisions from 2016 and 2017

Which got through and which got bounced

Michael Kennedy
Michael Kennedy
Partner

Lee Chitty
Lee Chitty,
Law Student

 

By Michael Kennedy and Lee Chitty
First presented at a Client Seminar

Introduction

Imagine you're on your way to an ultra-exclusive event at a fancy venue — you arrive at the door and are greeted by a steel-faced bouncer. You might not know the right people or fully comply with the dress code, but he likes you so he lets you in anyways.

Trial judges in motor vehicle accident cases are like bouncers — plaintiffs show up to their courtrooms asking to be let over the threshold. While their cases may not be perfect, a judge will be more inclined to let their cases through if the plaintiffs are likable and if the judge is reasonably satisfied their decision will not cause him or her problems after-the-fact (namely an appeal or an unfair result).

While certainly the main issue upon a threshold decision is whether or not a plaintiff meets the test (namely whether his or her employment, education or activities of daily living are impaired to the requisite degree for the foreseeable future), a plaintiff's credibility and presentation is important to keep in mind when reading a threshold decision.

1. Johnston v Walker, 2017 ONSC 3494

Impairments

The Plaintiff suffered whiplash following her motor vehicle accident.

Impact on Functioning

Before the accident, the Plaintiff worked two part-time jobs—one as a house cleaner, the other as a weekend plumbing dispatcher.

After the accident, she left the weekend job for reasons unrelated to her injuries and had to make “adjustments” to her cleaning tasks in order to continue working as a house cleaner.

Threshold Decision

No, Justice Charney found that the Plaintiff's injury did not meet the threshold because he accepted expert evidence from the Defendant (namely evidence from Dr. Boynton and Dr. Lipson) that showed that the Plaintiff's chronic pain syndrome was incorrectly diagnosed by the Plaintiff's expert (Dr. Ogilvie-Harris), who based his opinion on information that was not correct. There were inconsistencies between the Plaintiff's evidence, and the evidence the expert relied on to come to his conclusion.

Damages

Of note, the jury assessed general damages at $60,000.00 (gross of the statutory deductible), which the Plaintiff was barred from recovering due to the trial judge's threshold determination.

2. Mamado v Fridson, 2016 ONSC 4080

Impairments

The Plaintiff was injured in a six-car pileup caused by the Defendant. The Plaintiff was diagnosed as suffering from a sprain and strain injuries of the spine and limb muscles, a knee contusion and dysfunction at the left knee, post-traumatic insomnia, post-traumatic headaches, chronic pain disorder, and symptomatic flares of degenerative disc disease in the spine. Additionally, a psychologist diagnosed the Plaintiff with major depressive disorder, somatic symptom disorder, and post-traumatic stress disorder.

Impact on Functioning

At the time of this accident, the Plaintiff was working full time as a receptionist and was taking a night course in psychology at Ryerson University. She was active and, for the most part, in good health. She lived with her family and enjoyed a good relationship with them.
Since the accident she has not returned to any form of gainful employment. On several occasions, she attempted unsuccessfully to resume post-secondary studies. She was more emotionally distant from her family and was living with them solely on the weekends and with a close friend during the week.

Threshold Decision

Yes, Justice Baltman concluded that the Plaintiff's case did meet the threshold because he found she sustained a serious impairment of an important physical, mental or psychological function as a result of the accident. He was persuaded by the medical evidence of Dr. Chen (physiatrist), who diagnosed the Plaintiff with permanent physical impairments, and Dr Chan (psychologist) who diagnosed the Plaintiff with three permanent disorders.

The trial judge rejected the defence experts, Dr. Soric (physiatrist) and Dr. Reznek (psychiatrist), as neither expert addressed the threshold question and both of their evidence was flawed.

Damages

The jury's assessment of general damages is unavailable for comment.

3. Shaw v Mkheyan, 2017 ONSC 851

Impairments

The Plaintiff suffered an injury to his left knee and lower back.

Impact on Functioning

Before the accident, the Plaintiff had asymptomatic osteoarthritis, but enjoyed brisk walks, completed all household chores and was active and outgoing.

Following the accident, the Plaintiff's knee required two surgeries. He also walked quite slowly with a limp, and he can no longer do heavy household chores like lawn care and shoveling. The plaintiff was no longer active, instead spending most of his time on the main floor of his home watching television as he had difficulty climbing stairs. The knee injury would also likely require additional surgeries in the future. Medical evidence suggested that it was unlikely the Plaintiff's pain in his left knee would ever go away.

Threshold Decision

Yes, Justice Glustein held that Mr. Shaw did meet the threshold because evidence at trial included persuasive expert evidence (from Dr. Backstein, a “leading orthopaedic surgeon”) demonstrating that the Plaintiff's left knee injury was caused by the accident, as his pre-existing, asymptomatic osteoarthritis became symptomatic following and as a result of the accident. The trial judge preferred the Plaintiff's expert over that of the Defendant (being Dr. Cameron, who was described as being less experienced with osteoarthritis).

Damages

The jury in this matter assessed general damages as $54,500.00 (gross), $0.00 for past income loss, $0.00 for pension loss, $22,500.00 for future health care costs, and $3,000.00 for future housekeeping expenses.

4. McLeish v Daines, 2017 ONSC 870

Impairments

The Plaintiff suffered headaches, had difficulty sleeping and had pain in her neck and lower back. She was also diagnosed with chronic pain syndrome.

Impact on Functioning

Because of her injuries, the Plaintiff had a number of physical restrictions including difficulty with sitting or standing for long periods of time, and difficulty with bending, lifting, twisting, turning, running and jumping. Although the Plaintiff had been able to continue to work as a security guard, the pain she experienced during her 12-hour shifts made her work difficult and unpleasant. The Plaintiff was also forced to leave her job as a pre-loader at UPS as a result of her injuries. At home, she was unable to lift her child, had difficulty performing child care, and had difficulty performing her housework. Her injuries also seriously affected and substantially interfered with her relationship with her five-year-old daughter, as she was sent to live with Plaintiff's mother in Jamaica.

Threshold Decision

Yes, Justice Smith dismissed the threshold motion finding that the Plaintiff did suffer a permanent, serious impairment of an important physical, mental or psychological function as a result of the motor vehicle collision. The trial judge commented on how the defendant's own expert (Dr. Shanks) diagnosed the Plaintiff with chronic pain.

Damages

The jury assessed an amount of $65,000.00 for pain and suffering and loss of enjoyment of life, to which Justice Smith noted that the jury's award confirmed his finding that the Plaintiff had suffered permanent damage to an important function. The jury also awarded the Plaintiff $175,000.00 for loss of future income based on the finding that she would not be able to become a police officer or a military police officer.

5. Bruff-Murphy v Gunawardena, 2016 ONSC 7

Impairments

The Plaintiff in her mid-thirties claimed her car accident caused chronic pain, soft-tissue injuries to the neck, right shoulder and back, and psychological injuries. However, the Plaintiff's pre-accident medical records indicate that she suffered frequent (but not continuous) complaints of back pain, neck pain and anxiety. Following the accident, the severity and duration of these complaints increased – a fact that was specifically noted by the trial judge.

Impact on Functioning

Before the accident, the Plaintiff worked at Rogers. The Plaintiff eventually returned to her job following the accident, but she was unable to complete a two-week retraining program due to her reported level of pain, inability to focus on her responsibilities and inability to attend work throughout each day. She obtained alternate seasonal employment at a Fairweather clothing store where she worked a short time as a floor sales agent. She was eventually terminated because she was unable to perform her tasks.

Threshold Decision

Yes, Justice Kane found that the Plaintiff did meet the threshold. Much of his written decision focused on the defence expert evidence by Dr. M Bail (psychiatrist), who the trial judge found to be not credible. Although Dr. Bail regularly conducts 7 to 14 independent medical examinations per month, Justice Kane found much of his process insufficient, and lacking credibility in this case. He specifically mentions inconsistencies and shortcomings in his reporting, testimony and process. Instead, the trial judge favoured the plaintiff's physiatry expert (Dr. Finestone), who was also the treating physiatrist, as well as the psychiatric expert (Dr. Quan), who saw the Plaintiff twice for lengthy assessments.

Damages

Of note, the jury only awarded nominal general damages to the Plaintiff of $23,500.00 and dismissed all of the other claims.

6. Parmar v Beach, 2016 ONSC 7782

Impairments

The Plaintiff suffered severe headaches, pain in the neck and pain in the shoulders.

Impact on Functioning

At the time of the accident, the Plaintiff was principal of Westway Junior School. The Plaintiff's evidence was that she was an active principal – one who mentored teachers, engaged with parents, and interacted with students during and after school hours. The Plaintiff further testified that although her hours were long, she was always eager to go to school. Prior to the accident, she would arrive at school between 7:30 and 8:00 am and would not leave until after 6:00 pm.

Following the accident, the Plaintiff testified that the manner in which she performed her duties as principal dramatically changed. She was no longer able to participate in physical activities with the children, as her pain required her to sit for long periods of time. She said these changes caused a noticeable spike in her stress levels. The Plaintiff's testimony was supported by two fellow teachers who worked for the Plaintiff both before and after the accident.

With respect to other pre-accident activities, the Plaintiff was very healthy and had no complaints outside of the usual aches and pains and minor ailments. She did most of the household work including cleaning, cooking and gardening. She visited family members regularly, played with her grandkids, and even cooked for school events. She hosted parties for friends and family, and also travelled extensively. The Plaintiff claimed that after the accident she ceased all of these activities and spent most of her time attempting to convalesce.

Threshold Decision

Yes, Justice Woodley held that the Plaintiff did meet the threshold, as the injury sustained was permanent and seriously affected an important function. The opinion of the defence expert (Dr. Safir) was discredited by the trial judge as being illogical.

Damages

Of note, the jury awarded only $10,000.00 in general damages, $0.00 for past income loss and $0.00 future income loss. However, the jury did award $7,133.17 for past med rehab and $30,000.00 for future med rehab (primarily for Botox therapy).

7. Giaro v Cunningham, 2017 ONSC 2452

Impairments

The Plaintiff claimed that her motor vehicle accident caused her to experience pain in her back and neck that became chronic, and that these pains were accompanied by many other symptoms (specifically myofacial strain disorder to her temporomandibular joint and chronic pain syndrome, fibromyalgia, and dizziness) that she had not experienced before the accident. This sunk the Plaintiff into a deep depression.

Impact on functioning:

The Plaintiff submitted that before the accident she was physically and mentally healthy. But following the accident her mental and physical deterioration caused impairments with respect to socializing, housekeeping, parenting, chewing, learning English, continuing her education, and getting a job.

Threshold Decision

No, the trial judge found that the Plaintiff did not meet the threshold. Despite the extensive damage claims, Justice Cavanagh found that the Plaintiff failed to discharge her burden of proof. Problems attributable to the accident were limited to three soft tissue injuries, and the only injury to the cervical spine had resulted in permanent impairment. This permanent impairment was limited to a minor effect on plaintiff's range of motion. As such, Justice Cavanah found that the Plaintiff failed to establish substantial interference with her ability to perform her usual daily activities or to secure regular employment.

In support of his decision, the trial judge favoured the defence expert (Dr. Finkel, a psychiatrist) over the Plaintiff's own treatment providers.

Damages

The jury assessed the plaintiff's general damages for pain and suffering and loss of enjoyment of life at $45,000.00, but did not make any award for damages for health care expenses. This award was set aside due to the trial judge's decision.

8. Nemchin v Green, 2017 ONSC 2283

Impairments

The Plaintiff suffered from post-traumatic stress disorder.

Impact on Functioning

Prior to the accident the Plaintiff held a position with the National Capital Commission as co-ordinator for Sunday Bike Days and the Rideau Canal Skateway.

Following the accident, the Plaintiff was totally disabled from returning to that position. At the time of trial, the Plaintiff was unable to engage in any occupation commensurate with her education, training or experience. Although she was able to teach Yoga, she did not run the studio and was assisted by a number of volunteers to assist with the administration, promotion and other physical aspects of the job.

Threshold Decision

Yes, Justice Corthorn found that the Plaintiff did meet the threshold, finding that she suffered impairments of physical, mental or psychological function that were both important and serious (with specific mention of the Plaintiff's post-traumatic stress disorder and major depression). In arriving at this decision, the trial judge commented on how the defence expert (Dr. Hershberg) was not a credible witness (for example, his curriculum vitae was misleading as to his experience).

Damages

The jury awarded the plaintiff the sum of $125,000.00 for general non-pecuniary damages. The jury also awarded the plaintiff the sum of $600,000.00 for loss of income, $13,500.00 for the cost of immediate therapy (neuro-feedback therapy), and $30,000.00 towards the cost of future therapy.

9. Pupo v Venditti, 2017 ONSC 1519

Impairments

The Plaintiff suffered headaches and pain in his neck following his motor vehicle accident.

Impact on Functioning

Before the accident, the Plaintiff had been working for 2 years as a meat cutter at Pupo's Food Market, a store where his father worked and was approximately a one-third owner. Following the accident, the Plaintiff had a drug relapse and began taking illegal drugs. Within four weeks of the accident, he was in a homeless shelter. Five months later, he went to a residential rehab centre for one year. After rehab, the Plaintiff retrained at college for three years followed by one year at a university. He was unable to return to his old job due to pain in his neck and shoulder. He could no longer cut meat, but instead held a minimum wage job as a shelf stocker, which he was only able to work on a split shift due to pain.

Threshold Decision

Yes, Justice Edwards held that the Plaintiff did meet the threshold and dismissed the defense's motion. It was clear that the Plaintiff was in daily pain from which there was no likely recovery period, and it substantially interfered with most of his usual activities of daily living. He based this decision on an agreement between the Plaintiff's family doctor and Dr. Theodoropoulos (an expert witness) that the Plaintiff suffered from pain that was unlikely to end.

Damages

The jury awarded the Plaintiff $150,000.00 for general damages and $0.00 for past and future housekeeping. No comment available for income loss.

Conclusion

The issue of a plaintiff's likability and credibility is key and should not be underestimated. Although the threshold test is codified and judges are bound to follow it, there is often a lot of room for interpretation of facts and evidence at trial. Similar to how bouncers can bend the dress code or control the guest list at an exclusive event, trial judges similarly have the flexibility to allow plaintiffs' cases that may otherwise not meet the threshold test.

The next time you're deciding whether to fight the threshold, just put yourself in the shoes of the judge – even though the plaintiff is wearing jeans when the dress code requires dress pants, and even though the experts may appear sloppy, are the misgivings serious enough to deny entry? Not every case is perfect – judges know this more than anyone. This is why a sympathetic, credible plaintiff on the cusp of getting across the threshold is less likely to be bounced.


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