This is a rare addition to the relatively scant amount of case law regarding simplified procedure. The decision involves a motor vehicle collision claim and contains procedural guidance on the use of joint document briefs, agreements on the use of the documents in said brief, CaseLines and how expert evidence is called at a simplified procedure trial.
Decision
On February 11, 2018, the plaintiff’s vehicle was struck on the passenger side by the defendant as she was passing through an intersection. The plaintiff commenced an action for damages under simplified procedure. All issues were live at trial, including whether the plaintiff’s injuries surpassed the threshold.
- The Defendant’s Liability
On the day of the collision, the roads were described as slushy. The defendant’s evidence was that he attempted to stop before reaching the intersection, but his vehicle slid and he collided with the plaintiff’s vehicle. However, the defendant admitted that the plaintiff did nothing improper and did not contribute to the collision and that two other vehicles travelling in the same direction as the defendant’s vehicle were able to stop before entering the intersection.
Although the defendant argued that this was an “inevitable accident,” Justice Macfarlane held that this defence was not established in this case. The defendant knew there had been freezing rain earlier in the day and he knew there was slush on the road. His duty of care required him to not cause a collision. To do so, the defendant ought to have driven at a speed that allowed him to safely stop when necessary. He failed to meet this standard of care.
- The Plaintiff’s Injuries
The plaintiff suffered from significant pre-existing conditions including from a prior motor vehicle collision, a pre-existing back and ankle injury, ongoing pain and soreness and a number of psychiatric conditions.
In addition to medical records and the report of a participant expert, two orthopaedic surgeons were called at trial; one by the plaintiff and one by the defendant. Both experts authored reports and appended them to sworn affidavits and were subsequently cross-examined at trial. Justice Macfarlane preferred the evidence of the defence expert, noting that the plaintiff expert attempted to provide opinions outside of his scope of expertise and relied heavily on the plaintiff’s self-reporting. Although Justice Macfarlane found the plaintiff to be generally credible, her evidence at trial was not reliable when it concerned her past medical history. As such, Justice Macfarlane accepted the defence expert’s opinion that the plaintiff sustained cervical and lumbar strain which resulted in exacerbation of her ongoing chronic pain. Justice Macfarlane also accepted that the collision caused or contributed to the plaintiff’s generalized anxiety disorder, headaches and driving anxiety.
- Threshold
Justice Macfarlane followed the three-part inquiry outlined in Meyer et al. v. Bright et al. (1993), 15 O.R. (3d) 129 (C.A.) to determine if the threshold had been met, as informed by ss. 4.1 to 4.3 of the Court Proceedings for Automobile Accidents that Occur on or After November 1, 1996, O. Reg. 461/96:
- Has the injured person sustained permanent impairment of a physical, mental, or psychological function?
- If yes, is the function which is permanently impaired important?
- If yes, is the impairment of the important function serious?
Justice Macfarlane held that although the plaintiff’s injuries met the criteria of “important,” they failed to meet the requirements of “permanent” or “serious”. As a result, the plaintiff’s injuries did not meet the threshold and she was barred from claiming for general damages or for her health care costs.
- Damages
As discussed previously, Justice Macfarlane found that the collision had caused cervical and lumbar strain to the plaintiff. Justice Macfarlane also accepted that the plaintiff’s anxiety was exacerbated to some degree but would not award damages for this because the plaintiff failed to pursue an approved treatment plan to address same. In all, Justice Macfarlane assessed the plaintiff’s general damages at $50,000, prior to any deductible.
Justice Macfarlane refused to award for a loss of competitive advantage as no income loss claim was presented at trial and no evidence was presented to support a claim for loss of competitive advantage.
Conclusion
Justice Macfarlane granted the defendant’s threshold motion, and the action was dismissed. Counsel were asked to agree on costs or make written submissions if they were unable to do so.
