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Does your injury meet the threshold?

In order to obtain damages for non-pecuniary loss and past or future health care costs, the threshold provisions require not only that a plaintiff establish that the damages meet the “threshold” requirements of a “permanent” and “serious” impairment of an “important” physical, mental or psychological function, but also that the “damages for non-pecuniary loss” or “damages for expenses that have been incurred or will be incurred for health care” are damages “from bodily injury…arising directly or indirectly from the use or operation of the automobile”.

The Plaintiff, 58 year old Franklin Shaw, brought an action for damages as a result of a rear-end motor vehicle collision with minor property damage.  Mr. Shaw suffered from pre-existing osteoarthritis in his left knee.  He claimed the collision caused his asymptomatic left knee to become symptomatic.  On January 30, 2017, the jury returned its verdict and ordered $54,500 for general damages; $0 for past income loss; $0 for pension loss; $22,500 for future health care costs and $3,000 for future housekeeping expenses.

The defendants submitted at trial that the injuries were caused by Mr. Shaw’s pre-existing osteoarthritis in his left knee.  After the verdict, the defendants brought a “threshold motion” (Shaw v. Mkheyan, 2017 ONSC 851) for a declaration that Mr. Shaw’s claims for general damages and future care costs were barred on the basis that his injuries did not fall within the exceptions to the statutory immunity provided for in sections 267.5(3)(b) and 267.5(b) of the Insurance Act, RSO 1990, c. I.8 and the applicable regulations (the “threshold provisions”).

The evidence at trial and on the threshold motion showed that Mr. Shaw had two knee surgeries, walked with a limp and at a slower pace, could no longer do heavier household chores, was no longer active and outgoing, would likely require further left knee surgeries in the future, and it was not likely Mr. Shaw’s pain in his left knee will decrease.  The issue on the threshold motion with respect to Mr. Shaw’s left knee injury (as it was before the jury for the assessment of damages) was whether that injury arose “directly or indirectly from the use or operation of the automobile”, i.e. whether the accident caused the left knee injury.

It should be noted that causation is established on a “but for” test (Clements v. Clements, 2012 SCC 32).  Further, the trial judge is not bound by the verdict delivered by the jury.  But, the verdict is a factor the judge may consider in deciding the threshold motion.

On this threshold motion, Justice Glustein highlighted the importance of trial evidence and went through the expert opinion evidence, medical documentation and lay witness evidence in great detail to reach a decision.

At trial, Mr. Shaw led evidence from Dr. David Backstein, recognized as one of the leading orthopaedic surgeons in North America with surgical and research expertise in arthritis.  Dr. Backstein’s opinion was that the force of the accident converted Mr. Shaw’s asymptomatic arthritis in his left knee into symptomatic arthritis causing Mr. Shaw’s left knee pain and two left knee surgeries.

The defendants led expert evidence from Dr. Hugh Cameron, also a leading orthopaedic surgeon with expertise in arthritis.  Dr. Cameron’s opinion was that Mr. Shaw’s left knee injury arose as a result of Mr. Shaw’s pre-existing osteoarthritis and was not caused by the accident.

Justice Glustein preferred the evidence of Dr. Backstein to that of Dr. Cameron.  Dr. Backstein’s opinion was that many people with osteoarthritis have no pain, let alone necessarily require total knee replacement surgery as Mr. Shaw did.  Dr. Cameron provided no basis to support his conclusion that once a patient is diagnosed with arthritis, the condition would necessarily get worse, let alone be “relentless” as he described it.  On the other hand, Dr. Backstein gave detailed evidence about his expertise as an orthopaedic surgeon.  His evidence was that people can have osteoarthritis and not be aware of it since it does not necessarily become symptomatic.

Most interestingly, Dr. Backstein’s evidence was that a direct impact to the knee was not required to convert asymptomatic arthritis to symptomatic arthritis.  He discussed his experience as an orthopaedic surgeon in which patients with asymptomatic arthritis would then have symptomatic arthritis as a result of a minor force which did not require a direct impact, such as twisting a knee.  A high speed accident, striking the knee, or serious property damage would not be required for the accident to cause the injury.  The force of even a minor accident could be sufficient.  Dr. Cameron provided no evidence on the issue of force required to convert asymptomatic arthritis to symptomatic arthritis.

Justice Glustein also did not accept the defendants’ submission that the lack of a note in the emergency department records meant that Mr. Shaw did not have pain in his left knee after the accident.  Mr. Shaw’s evidence at trial was consistent with the circumstances surrounding the accident and Justice Glustein accepted Mr. Shaw’s evidence that he did not mention his left knee pain as it was a dull pain which he thought would go away in an hour or two.  Ultimately, the defendants’ motion was dismissed.

A good takeaway from this decision is that plaintiff’s counsel should not underestimate the importance of the evidence that is led at trial on “permanent” and “serious” impairment.


Not too late to register!

Freda Vanopoulos is co-chairing and moderating this not to be missed Hamilton Law Association CPD Roundtable “Branding, Marketing, Referrals & Retainers” on May 9th.

Details can be found at the link below:


Come join Freda Vanopoulos who is moderating this fabulous Women in Leadership Panel


The Hamilton Chamber of Commerce has put together an exciting panel of leading women in Hamilton to bring attention to some diverse issues that affect us all.

YEP Chair and Hamilton personal injury lawyer at Virk Law, Freda Vanopoulos, will be moderating this panel of 4 leading women.  You don’t want to miss it.  And it’s free.  Register today!  Details can be found at the link below.

Women in Leadership Panel with YEP


Is your brain impairment enough to render a catastrophic impairment designation?

As of April 1, 2016, the way accident benefit disputes will be handled has changed.  The License Appeals Tribunal (LAT) will handle arbitration applications instead of FSCO.  On November 29, 2016, the LAT heard one of the first decisions on the catastrophic impairment designation.  The decision,  P.L.F.R. and Intact Insurance Company  (Tribunal File #16-000145/AABS) is about an applicant who suffered serious life-threatening injuries in a multi-vehicle accident on October 2, 2015 that required her to be airlifted to a trauma centre for emergency surgery.  The issue to be determined was whether the applicant, P.L.F.R., suffered a catastrophic impairment as a result of brain impairment sustained in the car accident.

The evidence was clear that the applicant suffered a  brain impairment as a result of the accident.  She had a large laceration of her scalp that exposed the skull, and subsequent investigation showed a subarachnoid haemorrhage (bleeding of the lining of the brain).

Following the accident, emergency personnel recorded a series of Glasgow Coma Scale (GCS) scores ranging from 12 to below 9.  The Tribunal explained that the GCS score is a clinical tool used by first responders and clinicians to assess the consciousness of patients.  The respondent, Intact Insurance Company (Intact), argued that all recorded scores below 9 did not result from the brain impairment.  They resulted from endotracheal intubation and sedation in the emergency room.

Section 3.1(d)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule), sets out a four point test: i. Did the applicant suffer a brain impairment as a result of the accident; ii. Did the brain impairment result in a GCS score of 9 or less; iii. Was the GCS test administered within a reasonable time following the accident; and iv. Was the GCS test administered by a person qualified to do so?

This subsection then goes on to define a catastrophic impairment as a score of 9 or less on the GCS.  The subsection sets a threshold that once crossed, earns the designation of catastrophic impairment which makes higher policy limits available should treatment be necessary (e.g. post June 1, 2016, a new combined medical, rehabilitation and attendant care benefit of $1,000,000 available for life).

The applicant had a reduced GSC score of 12 in the ambulance on her way to the emergency room.  When she arrived at the emergency room her GCS fluctuated between 13 and 10.  Following intubation and sedation, subsequent GCS scores are denoted with a “T” to indicate that, as a result of intubation, the voice component could not be tested.  Her scores ranged from 7T to 2T during the air ambulance trip and in the emergency department at the trauma centre.

Intact relied on the opinion of Dr. Garry Moddel, a Neurologist, who attributed the GCS score of 7T to sedation and noted there was no evidence of neurological deficit.  The Tribunal held, however, that section 3.1(2)(d)(i) does not require an ongoing neurological deficit to qualify for catastrophic impairment designation.

The appellant relied on the opinion of Dr. Harold Becker, a General Practitioner, who concluded that a GCS score from an intubated patient is reliable.  The Tribunal accepted that the GCS scores below 9 were valid and then turned to the question of causation.

Dr. Becker noted that the applicant was hypovolemic from loss of blood and that her blood pressure was dropping which will result in decreased brain function and a lower GCS score.  Hospital records indicated that she was given massive blood transfusions at the trauma centre; however, her GCS continued to drop as she left the trauma centre for the operating room.  Indeed, the Tribunal noted that the applicant’s GCS scores fluctuated between 13 to 19 prior to her transfer to the trauma centre, which supported Dr. Becker’s opinion on the effects of the blood loss.

Therefore, in light of all the evidence, the Tribunal found the applicant’s brain impairment and lowered GCS scores were caused by her brain injury and hypovolaemia directly resulting from the accident.

Under the new LAT regime, the Tribunal’s ability to award costs has been severely restrained.  The Tribunal could find nothing unreasonable, frivolous, vexatious or bad faith about the manner in which the matter proceeded, nor was any such behaviour drawn to the Tribunal’s attention.  Accordingly no costs were ordered.


Were you injured on your landlord’s property?

One of the most critical decisions involving limitation periods in recent history is the decision Letestu v. Rityln Investments Ltd., [2016] O.J. No. 5422 because the Court held that a personal injury claim involving a tenant and landlord is subject to the one year limitation period in the Residential Tenancies Act, 2006 (RTA) and not the basic two year limitation period in the Limitations Act, 2002 (Limitations Act) for starting an action.

Section 2 of the Limitations Act applies to “claims pursued in court proceedings”.  The Limitations Act does not state that it applies to claims brought before administrative tribunals, such as the Landlord and Tenant Board (Board), which is an administrative tribunal established under the RTA.

On January 11, 2010, the plaintiff, Mr. Letestu allegedly tripped over some “worn, torn and unsecured carpet” in his living room and fell, sustaining physical injuries.  The plaintiff alleged he made prior complaints about the condition of the carpet to the defendant landlord, which took no steps to fix the carpet.  Therefore, on December 15, 2011, the plaintiff commenced an action against his landlord in the Superior Court of Justice for negligence and for failure to follow its duties under the Occupier’s Liability Act.

The defendant brought a motion to strike the plaintiff’s claim on the basis that the Superior Court had no jurisdiction to hear the case and the plaintiff should have brought his matter before the Board.

In support of its position, the defendant made the following arguments:

  • The nature of the dispute involves allegations arising from disrepair, which is within the exclusive jurisdiction of the Board, regardless of how the allegations are pleaded.
  • Claims such as the plaintiff’s must be brought within one year and after the one-year period expires, the Board no longer has jurisdiction.
  • The powers of the Board are extended to the Superior Court for claims exceeding $25,000, but only where the claimant would otherwise have been entitled to apply to the Board, if the damages claimed were equal to or less than $25,000.
  • The statement of claim was issued more than one year after the alleged incident.
  • The Limitations Act does not apply to administrative tribunals such as the Board.
  • The decision Mackie v. Toronto (City) 2010 ONSC 3801 is identical to the plaintiff’s case wherein the court held that the Board had exclusive jurisdiction to resolve the tenants’ repair claims.
  • It is not the label or title that one attaches to a claim that decides the jurisdiction issue. To say that the plaintiff advances a tort claim or a claim in negligence, merely identifies a particular cause of action. It does not provide any insight into the essential character of the dispute: Efrach v. Cherishome Living 2015 ONSC 472.

In response, the plaintiff argued that the RTA only provides the Board with jurisdiction to hear matters up to the limit of the Small Claims Court; otherwise, the Superior Court has the power to make any order that the Board could make.  Further, any action in the Superior Court is governed by the Limitations Act which provides for a two-year limitation period.  The plaintiff framed his action under the Occupiers’ Liability Act and, therefore, the one year limitation period set out in the RTA does not apply.

In the alternative, the plaintiff argued:

  • Nowhere in the RTA does it limit the landlord responsibilities under any other act, including the Occupiers’ Liability Act.
  • The limitation period in the RTA should be void in this court, as it does not allow for any discoverability principle.
  • Even if the one-year limitation period applies, the condition of non-repair continued to exist until the plaintiff’s death on May 14, 2011 and accordingly was an ongoing default and the action was commenced within the one-year time.
  • By their involvement in this action, the defendants have attorned to the jurisdiction of the Superior Court.
  • The defendants have not brought this motion promptly.

In the end, the Court found that the specific nature of the complaint in this action is for “want of repair”.  Based on the reasoning in the Mackie decision, the Court held that the Board has exclusive jurisdiction over the subject matter of the plaintiff’s claim.  Further, sections 168 and 174 of the RTA give the Board exclusive jurisdiction over matters set out in the RTA.   In addition, section 2 of the Limitations Act makes it clear that the Act applies to “claims pursued in court proceedings”.  Accordingly, the Board has exclusive jurisdiction over the subject matter and, therefore, the action must be commenced within the one-year limitation period before the Superior Court can assume jurisdiction for claims exceeding $25,000.  Since the Board has exclusive jurisdiction over the subject-matter of the case, the Occupiers’ Liability Act does not apply.  Finally, a party cannot attorn to the jurisdiction of a court if that court does not have jurisdiction in the first place.

This decision is currently under appeal.  In the meantime, personal injury counsel would be wise to review their case load and ensure their tickler systems reflect the one year limitation period with respect to their tenant-landlord disputes.



In Ontario, the basic limitation period for when a legal action needs to be started is two years from the day on which the claim was discovered (Section 4 of the Limitations Act, 2002). A claim can be discovered in a number of ways.  Section 5(1) and (2) of the Limitations Act, 2002 states:

  1. (1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).


(2) A person with a claim shall be presumed to have known of the matters referred to in clause

(1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.


Personal injury plaintiffs commonly rely on Section 5 of the Limitations Act, 2002 in response to an allegation that their action is statute-barred as it was started after the basic 2 year limitation period.

In the Ontario Court of Appeal decision, Brown v. Baum 2016 ONCA 325, a medical malpractice case, the Plaintiff (Respondent), Diana Brown, suffered severe complications following a breast reduction surgery which was performed by the Defendant (Appellant), Dr. Joseph Baum, on March 25, 2009.  Ms. Brown brought an action against Dr. Baum alleging lack of informed consent on June 4, 2012, over 3 years after the initial surgery but within 2 years of when Dr. Baum last treated her to correct the original problems.

Dr. Baum was unsuccessful on his summary judgement motion to dismiss the action as statute-barred under the Limitations Act, 2002.  The motion judge found that as of July 2009, Ms. Brown knew she had suffered an injury that was caused or contributed to by an act or omission of Dr. Baum and therefore she satisfied sections 5(1)(a)(i-iii).

But, because Dr. Baum continued to treat Ms. Brown to correct the original problems, the motion judge found that s. 5(1)(a)(iv) had not been met because Ms. Brown did not know that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage she had suffered.  The Court of Appeal agreed with the motion judge that the fourth condition of discoverability under the Limitations Act, 2002 is met at the point when the claimant not only knows the factual circumstances of the loss she has suffered, but also knows that “having regard to the nature of the injury, loss or damage”, an action is an appropriate remedy.  Once she knows that, she has two years to initiate that action.

Because Dr. Baum was continuing to treat Ms. Brown to try to fix the problems from the initial surgery, it would not have been appropriate for Ms. Brown to sue the doctor then, because he might have been successful in correcting the problems and improving the outcome of the original surgery.   The Court of Appeal found that a reasonable person in Ms. Brown’s circumstances would not consider it legally appropriate to sue her doctor while he was in the process of correcting and reduce her damage.  Therefore, the limitation period did not commence until June 16, 2010, the date of Ms. Brown’s last corrective surgery by Dr. Baum, and Ms. Brown’s Statement of Claim was issued within the limitation period.

In contrast, the Plaintiffs in the more recent decision, Fontanilla v. Thermo Cool Mechanical 2016 ONSC 7023, were not as successful arguing discoverability.  The Plaintiffs brought a motion for an order granting leave to add additional defendants to the action.  It is just as important to determine whether the ability to bring an action has expired under Section 4 of the Limitations Act, 2002 when adding defendants as it is for bringing a separate action against those parties.

On January 31, 2011, the late Felisa Santo Fontanilla, a resident of Living Waters Residence Inc. (a retirement home), while in the bathtub turned on the hot and cold water taps for bathwater when the chrome diverter spout of the faucet burst, spraying scalding water over her body.  She suffered severe burns to sensitive parts of her body.  She passed away on October 6, 2011.

Mrs. Fontanilla’s family issued a Statement of Claim on January 25, 2013 (6 days before the expiry of the limitation period) against Thermo Cool Mechanical (the contractor hired by the retirement home to replace certain plumbing for the building in March 2010) and Living Waters Residence Inc.

Thermo Cool Mechanical delivered their Statement of Defence on June 11, 2014 and issued a Third Party claim naming a variety of parties on June 18, 2014.  The Third Party Claim alleged that it was an anti-scalding/mixing valve in the faucet that failed on January 31, 2011; the valve had been manufactured by Watts Water Technologies (Canada) Inc. (“Watts”) and had been supplied by Gayton Systems Development Inc. (“Gayton”)

Plaintiffs’ counsel swore in her affidavit of June 3, 2015 in support of the motion that she spoke with the insurer for the defendant, Thermo Cool on April 1, 2014 and learned for the first time of other potential parties, but the insurer did not provide her with any specific names, or contact information for those names or companies at that time.   Plaintiffs’ counsel swore in her affidavit that the Third Party Claim was the first time additional parties had been identified to the Plaintiffs by name.

The Court stated that the main issue when determining if a limitation period has expired to bar the Plaintiffs from joining Watts and Gayton as Defendants is whether there is evidence before the court that the Plaintiffs or their lawyer exercised reasonable diligence to identify Watts and Gayton as Defendants within the limitation period.  Reasonable diligence, however, is only one factor to take into consideration.  The Court considered the other factors (which are fact driven and particular to the circumstances of each case) set out in Galota v. Festival Hall Developments 2016 ONCA 585 as follows:

  • The identity and role of Watts and Gayton as manufacturer and supplier of the valve was not obvious to the Plaintiffs; but, by naming Thermo Cool as the contractor who coordinated the boiler replacement at Living Waters in March of 2010, the Plaintiffs indicated that they were aware of the malfunction of the plumbing in the building and, therefore, on notice that further inquiry was necessary to determine the actual manufacturer and supplier of the mechanics of the boiler replacement system, or the program to replace the faucet within the individual residential units;
  • There was no evidence before the Court about when the Statement of Claim was actually served on Living Waters and Thermo Cool. But, it was within the Plaintiffs’ power and control to have the Statement of Claim served on those Defendants forthwith after the action was commenced, and to require each of the Defendants to deliver a Statement of Defence within a reasonable time; and
  • The moving parties provided no evidence of the steps taken before or since the Statement of Claim was issued to recover the plumbing pieces or any records of those parts that would have informed them that it was an anti-scalding/mixing valve in the faucet that failed, which would have led them to the identity of who manufactured and supplied the valve.

Accordingly, the Court found that Watts and Gayton would suffer non-compensable prejudice if they were added as Defendants to the action.  Even though they were already Third Parties, they were protected in that the Plaintiffs first had to establish liability against the Defendants in order for the Defendants to have a claim against the Third Parties.   The Plaintiffs’ motion was dismissed.


Renewing your auto policy? Important changes to Ontario’s Statutory Accident Benefits Schedule (“SABS”) you need to know


All owners of vehicles in Ontario must purchase a standard auto insurance policy.  If you or your loved ones are seriously injured in a car accident, then you are entitled to receive “No Fault” Statutory Accident Benefits.  However, on June 1, 2016 the benefits and coverage in the standard auto insurance policy changed.  These changes will impact car accident victims in a significant way.  It is critical that you speak to your insurance representative about these important changes.

The changes apply to policies issued or renewed on or after June 1, 2016.  Existing policies remain subject to the current limits until the policy is terminated or renewed.

The following is a summary of the key changes every insured should be aware of:

  • New Standard Benefit: A new standard benefit that combines medical, rehabilitation and attendant care benefits is set at $65,000. Prior to June 1, 2016, the standard auto insurance policy provided for a standard medical-rehabilitation benefit of $50,000 and a separate standard attendant care benefit of $36,000.
  • Change in Duration: The duration of the new standard medical, rehabilitation and attendant care benefit is 5 years for non-Catastrophic Impairment cases. Prior to June 1, 2016, the standard auto insurance policy provided for a duration limit for medical-rehabilitation benefits of 10 years.  Take note that the new duration period does not apply to children under 18 at the time of the accident.  If the car accident victim is under 18, the benefits are payable until age 28.
  • New Catastrophic Impairment Limit: For Catastrophic Impairment claims, a new combined medical, rehabilitation and attendant care benefit of $1,000,000 is available for life. Prior to June 1, 2016, the standard auto insurance policy provided for two separate limits of $1,000,000 for medical-rehabilitation benefits and attendant care benefits for Catastrophic Impairment claims.  The new 5 year time limitation does not apply if the insured person sustains a Catastrophic Impairment, or has purchased additional optional benefits of $1,000,000 in medical, rehabilitation and attendant care benefits.  In addition, the definition of Catastrophic Impairment has been significantly narrowed making it more difficult to satisfy entitlement to this benefit.
  • Expenses of Under $250: For any medical-rehabilitation expenses of under $250, the auto insurer now requires the expense to be essential for treatment in order to approve the expenses, versus previously being able to incur the expense.
  • Attendant Care Reimbursement: With respect to attendant care, now the insured can only be reimbursed up to the amount actually incurred in having a professional provide attendant care. For example if the Form 1 is for $2,500 per month and a PSW company charged $500 for the month, the insured will get $500, not $2,500
  • Non-Earner Benefit: The duration of the Non-Earner Benefit (“NEB”) is changed to 2 years (versus for life) following the accident with an initial waiting period of 4 weeks (versus 26 weeks). It is not payable to those 18 or younger, until they are 18.  The amount of the benefit is limited to $185 per week and will no longer increase to $320 per week for students.

In addition, as of April 1, 2016, the way accident benefit disputes will be handled has changed.  The License Appeals Tribunal (LAT) will handle arbitration applications instead of FSCO.  There will be no more mandatory mediations in advance of arbitration.  Instead, an applicant will be able to apply for arbitration immediately upon his or her benefit being denied or terminated.  If the matter does not settle at the case conference (similar to FSCO’s pre-arbitration hearing), then the hearing will proceed by written format or expedited, electronic format.  In-person hearings will be reserved for the most serious cases such as catastrophic impairment claims.

It is essential that you speak to your insurance representative and ask questions before you renew your policy.  Finding an insurance policy that will offer you and your family the most protection should be a priority.  Make sure you know what options are available to increase or purchase other benefits to ensure you and your family are protected.


Virk Personal Injury Law Nominated for 2016 Business Excellence Award

Hamilton’s own CHCH called out for nominations for favourite local businesses.  We are happy to be recognized in the Law Firm category and will continue to strive for excellence in providing unparalleled  legal service in the Hamilton community.  Cast your vote today!

2016 Business Excellence Awards


When is a defence medical assessment justified?

Three motions were heard before the Ontario Superior Court of Justice this summer which have further clarified when a defence medical examination is justified.  The three motions are: Marfo v. Ahmed, 2016 ONSC 396 [Marfo], Boulet v. Sir Corp. 2016 ONSC 5379 [Boulet] and Mork v. Sanghera, 2016 ONSC 5108 [Mork].

In the Mork decision (released July 29, 2016) Justice Lemon also concluded that there was insufficient evidence to grant the defendants a further defence medical examination with an orthopaedic surgeon.  The defendants argued that their proposed expert, Dr. Hugh Cameron would be able to give evidence in his area of expertise as both an orthopaedic surgeon and a chronic pain specialist.

Justice Lemon reviewed Dr. Cameron’s 79-page resume, which supports that he is an expert in orthopaedics.  Justice Lemon, however, noted that the plaintiff had not put forward an orthopaedic expert report.  In fact, the only examination undertaken by an orthopaedic specialist was at the request of the plaintiff’s accident benefit insurer more than five years prior.  On this basis, Justice Lemon saw no need for such an examination.

With respect to Dr. Cameron’s expertise in chronic pain, there were only three entries on his resume from 1978, 1985 and 1986 under “Non-peer Reviewed – Journal Publications”.  The word “pain” did not otherwise appear on his resume; the phrase “chronic pain” did not appear at all.

Justice Lemon looked at the applicable Bonello factors and concluded that the plaintiff was not relying on an orthopaedic report; therefore, there was no need for the defence to have one.  While Justice Lemon recognized that the defendant would need a report from a chronic pain specialist, there was insufficient evidence that Dr. Cameron could provide helpful evidence for the defendant and court, and it would be unfair to have the plaintiff examined by an unnecessary orthopaedic expert who is not properly qualified with respect to chronic pain.

Finally, in the Boulet decision (released August 25, 2016) the defendants brought a motion for an order requiring the plaintiff to attend a defence medical assessment with an occupational therapist pursuant to section 105 of the Courts of Justice Act RSO 1990, c.C.43 and Rule 33 of the Rules of Civil Procedure, RRO 1990, Reg. 194.

The parties agreed that the Divisional Court’s decision in Ziebenhaus (Litigation guardian of) v. Bahlieda, 2014 ONSC 138 set out the applicable legal test for such a motion.  The court must determine whether the proposed defence medical examination is necessary in the interest of trial fairness and justice and in order for the defendant to meet the plaintiff’s case.  There is no “matching principle”, i.e. a defendant is not entitled to an examination of a plaintiff simply because the plaintiff has served a report from an expert in a particular discipline.

The defendants already had an opinion from a defence medical assessor, Dr. Rajka Soric, physiatrist, who concluded that the examination revealed no indication of accident related physical pathology that would alter the plaintiff’s ability to carry on with her normal daily activities.  In Master Muir’s view the report of Dr. Soric was clear and unequivocal, and the defendants were relying on this report in their defence.  Accordingly, Master Muir concluded that the defendants were simply seeking to corroborate the findings of Dr. Soric or seeking a matching report.  Neither of those justifications were sufficient evidence, and given the defendant’s position in defending the action (i.e. the plaintiff’s injuries have no impact on her ability to carry out her normal daily activities), the further examination was not necessary to meet the plaintiff’s case or in the interest of trial fairness or justice.

Bottom line: a plaintiff should not be subjected to endless defence medical examinations at defence counsel’s discretion.  While defence medical examinations can assist defence counsel’s ability to respond to the plaintiff’s claim, they can also be invasive and traumatizing for the plaintiff.  The decisions discussed in this article will hopefully assist counsel and the court to strike a balance between these two important factors.

In the Marfo decision (released June 6, 2016) the defendants brought a motion seeking an order requiring the plaintiff to attend a defence orthopaedic examination with Dr. Axelrod.  The plaintiff had already served a medical report from Dr. West, an orthopaedic surgeon dated July 22, 2012.

The defendants had already conducted a defence medical examination of the plaintiff on October 17, 2014 with Dr. Berbrayer, physiatrist.  The plaintiff had also attended a defence psychological examination with Dr. Prendergast on December 8, 2015.  The defendants now wanted to conduct a second physical examination of the plaintiff with an orthopaedic surgeon.  The defendants knew the plaintiff would be relying on the report of an orthopaedic surgeon at trial.  However, they chose to have the plaintiff examined by a physiatrist to assess his physical injuries.  Master Muir noted that the defendants could have sent the plaintiff to an orthopaedic surgeon but they chose not to.

According to Master Muir, the defendants must demonstrate that the second physical examination is warranted based on the applicable factors as cited in the leading case on a motion of this nature, Bonello v. Taylor, 2010 ONSC 5723 [Bonello].  Master Muir concluded that there was no evidence that would suggest a significant or important change in the plaintiff’s condition since October 2014.

The defendants argued that in the summer of 2015 they received information regarding a subsequent motor vehicle accident involving the plaintiff that took place in September 2011 and that this new information formed a basis for a second physical examination of the plaintiff by the proposed orthopaedic defence expert. Master Miur did not agree as Dr. Berbrayer was aware of the second accident when he prepared his addendum report, yet concluded that his original opinion did not change.  Dr. Berbrayer did not state he required a further physical examination of the plaintiff in light of this new information.  Master Muir did not view this as sufficient justification to warrant a further physical examination.


How do you prove your case in a hit and run?

In the decision Yu Peng Ding et al v John Doe et al 2016 ONSC 1690, the Plaintiff was the driver of a silver van that crashed with a guard rail when he allegedly swerved to avoid a tractor-trailer. The investigating officer never confirmed the personal identification of the driver of the tractor-trailer. The Plaintiff sought damages against the Defendant, State Farm Mutual Automobile Insurance Co. (“State Farm”) in accordance with the unidentified driver provisions of the Plaintiff’s automobile policy of insurance.

State Farm brought a motion for summary judgment to dismiss the Plaintiff’s action on the ground that there was no unidentified vehicle that caused or contributed to this accident, and accordingly, there is no obligation for State Farm to pay any claim pursuant to the unidentified motorist provisions of the Plaintiff’s policy of insurance.

The Honourable Justice Lederman explained that the policy’s unidentified motorist coverage has two parts: $200,000 standard coverage pursuant to the Ontario Automobile Policy (“OAPI”), and an additional $800,000 coverage provided by the OPCF-44 Family Protection Coverage Endorsement (“OPCF-44R”).

The coverage under the OAPI is available if the plaintiff establishes on a balance of probabilities that the accident was caused by an unidentified driver. The unidentified driver coverage under the OPCF-44R is available if the plaintiff’s evidence is corroborated by “other material evidence”.

Justice Lederman considered the appropriateness of the summary judgment motion, noting that the court is entitled to assume that the parties have put before it all of the evidence that would be available at trial. In this case, Justice Lederman found the court can readily weigh the evidence and make findings of credibility and determine the issues in question, namely,

whether there is sufficient evidence to prove, on a balance of probabilities, that an unidentified vehicle was involved in the accident, and if so,

whether there is sufficient evidence to prove that the negligence on the part of an unidentified driver caused the accident; and if so,

whether there is “other material evidence” required by OPCF-44R that corroborates the plaintiff’s evidence thereby permitting the plaintiff to access coverage in excess of the statutory minimum of $200,000.

The only evidence with respect to how this car accident occurred came from (i) the affidavit of the investigating police officer, to which is attached the accident report and the officer’s notes, (ii) the plaintiff’s statement to a medical provider on the day of the accident, and his report to his insurer the day after the accident, and (iii) the plaintiff’s discovery evidence.

The officer stated in her affidavit that she spoke to the driver of the tractor-trailer and was told that the Plaintiff was trying to enter his lane of travel which prompted him to honk his horn; as he continued driving he observed the Plaintiff lose control of his vehicle. The officer inspected the tractor-trailer for damage and observed no evidence of contact; as a result, she determined the tractor-trailer had no involvement in the accident and let him go without obtaining his personal information.

The Plaintiff argued that he should not bear the prejudice of a faulty police investigation to ascertain the identity of the tractor-trailer driver. In support of this argument the Plaintiff relied on the decisions Miller v. Bacchuis, (1999) 47 MVR (3d) 154 and Johnson v. Doe, (2006) CanLii 51174. But, these cases dealt with the issue of whether an insured failed to fulfill his or her obligation of reasonable diligence to identify the driver/owner of the other vehicle by reporting to the police, and leaving it to the police and possibly the insurer to do a proper investigation. Justice Lederman found no issue as to whether the Plaintiff provided the police and his insurer with information about the accident in a timely way. The officer interviewed the driver of the tractor-trailer and saw no evidence of any damage/contact on that vehicle. She concluded based on her investigation, that there was no need to obtain the identification information of the tractor-trailer driver.

The onus of proof was on the Plaintiff. For his claim to succeed, he would have to prove that an unidentified driver existed and that it caused the accident. Justice Lederman found that the burden of proof had not been satisfied due to the unreliability of the Plaintiff’s version of the accident. The Plaintiff provided the following conflicting evidence:

– When the police officer asked the Plaintiff whether there was any contact between his vehicle and the tractor-trailer, the Plaintiff appeared to first respond “No” but then changed his answer to indicate that there was contact between the two vehicles.

– The Plaintiff reported to State Farm on February 10, 2010, that there was impact between the tractor-trailer and the front left side of the Plaintiff’s vehicle.

– The Plaintiff testified at his discovery that this was a rear-end collision.

Unfortunately, the Plaintiff was unable to explain the different versions due to many capacity deficits at the time this motion was heard. Further, the passenger in the Plaintiff’s vehicle made no mention of there being any contact between the two vehicles, was uncooperative with the investigation and did not provide any statements or evidence on the motion.

On the totality of the evidence, Justice Lederman found it was just as reasonable to conclude that the Plaintiff was solely responsible for the accident as he may not have been fully attentive and was operating his vehicle at an unsafe speed in the weather conditions. The evidence from the Plaintiff was conflicting and not reliable and there was no probative evidence sufficient to satisfy the burden on the Plaintiff to show on a balance of probabilities that any fault could be found on the part of the tractor-trailer driver or that he was even involved in it. Accordingly, summary judgment was granted and the Plaintiff’s action was dismissed.

Proving the liability of an unknown driver is challenging. These types of personal injury claims are vulnerable to a dispute from the insurance company. That there be some physical evidence (outside of the Plaintiff’s self-report) that is in line with the Plaintiff’s version of events is critical.

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