Overview
In Maher v. Kiric, 2025 ONSC 2327 (CanLII) the defendant brought a threshold motion regarding the plaintiff’s entitlement to non-pecuniary damages and healthcare expenses. Justice Brownstone, upon hearing submissions regarding the medical records and expert evidence, ruled the plaintiff could not establish she sustained a permanent impairment of a physical, mental or psychological function caused by the accident.
Facts, Trial and Threshold Motion
On October 28, 2013, the plaintiff was cycling in the curb lane while the defendant was driving behind her. When the defendant went to overtake the plaintiff, the mirror of her car clipped the plaintiff’s elbow and hand, causing her to fall (the October Collision). The plaintiff landed on her left side and hit her head.
The defendant took the plaintiff to the hospital, where her records from the day note she had a head injury, although she wasn’t investigated or treated for any kind of concussion. She also fractured her left wrist and finger.
About five and a half months later, on April 14, 2014, the plaintiff fell down a flight of stairs in her home (the April Fall). She went to the hospital where a CT scan of her brain revealed a concussion but no brain bleed.
The plaintiff sued for the injuries sustained in the October Collision and at trial the jury awarded her $40,000 for non-pecuniary damages but not healthcare expenses. The defendant brought a threshold motion on whether the plaintiff’s claim for healthcare expenses and non-pecuniary losses were barred under Sections 267.5(3) and (5) of the Insurance Act, R.S.O. 1990, c. I.8.
Position of the Parties
The plaintiff maintained the October Collision caused her to suffer from physical, cognitive and psychiatric injuries. These included concussion and post-concussion syndrome, major depressive disorder, post-traumatic stress disorder (PTSD) or generalized anxiety disorder and alcohol use disorder.
During trial, the plaintiff testified the April Fall was the result of a dizzy spell, which she only began to intermittently experience after the October Collision. The plaintiff suffered more falls after the April Fall, all of which she claimed were the result of the October Collision and the subsequent post-concussive syndrome.
The defendant argued any injuries the plaintiff sustained in the initial collision healed within six weeks – those being her fractured wrist and finger. Her current conditions resulting from any falls were not the result of the October Collision.
Meeting Threshold
Sections 267.5(3) and (5) of the Insurance Act state the owner of an automobile, the occupants of an automobile, and any person present at the incident are not liable for damages for expenses that have been incurred or will be incurred for healthcare or for non-pecuniary loss, unless the injured person has sustained either:
- Permanent serious disfigurement; or
- Permanent serious impairment of an important physical, mental or psychological function.
Sections 267.5(3) and (5) of the Insurance Act are read in conjunction with the criteria set out in Sections. 4.2(1)(1.)(2.) and (3.) of O. Reg. 461/96, which provide criteria for having a “permanent serious impairment of an important physical, mental or psychological function.”
Following Meyer v. Bright, 1993 CanLII 3389 (ON CA)15 O.R. (3d) 129 (C.A.), on a threshold motion, the trial judge must 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?
Ruling and Reasoning
An examination of the plaintiff’s medical records from the time of the October Collision and the expert evidence led Justice Brownstone to conclude the Plaintiff did not meet the first step of the Meyer test – she did not prove she sustained a permanent impairment of a physical, mental or psychological function caused by the accident.
Head injuries, Concussion and Post-Concussion Syndrome
The plaintiff testified that her headaches started the evening of the collision when she got home from the hospital and was still there the next morning. She further testified that she was exhausted and confused the next day.
While the hospital record stated the plaintiff had a head injury, she wasn’t investigated or treated for any kind of concussion, nor was one suspected at the emergency room. The treating emergency physician at the hospital testified that upon his review of the record, he didn’t see any suspicion of a concussion. He further testified that physicians are very liberal in providing information statements to patients about head injuries if one is suspected. The plaintiff agreed that she was not provided with such an information sheet.
The plaintiff then had three medical appointments in the time following the October Collision, and in none of the records from these appointments was there mention of a head injury or headaches. It was only on December 12, 2013, seven weeks after the October Collision, the plaintiff reported to her family doctor losing consciousness for a few seconds after the collision and had been having headaches on and off since then.
Justice Brownstone highlighted that the bulk of the expert evidence said concussive symptoms would normally appear within 72 hours post-collision. And while the plaintiff may have reported head injuries seven weeks later, her experts consistently noted, and the medical records substantiated, that she was a help-seeking individual. When there were medical or psychological issues, she sought treatment from professionals promptly.
Similarly, the plaintiff testified that before the April Fall, she experienced a dizzy spell. However, any record of a dizzy spell was absent in the medical records from that day. Rather, the hospital record from that day only stated, “she tripped and fell down 10 steps.” In the medical records for the April Fall, the only injury from the October Collision referenced was a left wrist injury.
Major Depressive Disorder, Post-Traumatic Stress Disorder or Generalized Anxiety Disorder
Regarding the plaintiff’s psychological injuries, the plaintiff argued that although she had symptoms of depression and anxiety before the collision, she had no formal diagnosis of a depressive or anxiety disorder until after the collision.
As well, the plaintiff had prior PTSD from being assaulted by her roommate, however, she argued this was resolved before the collision. Any subsequent PTSD was the result of the October Collision.
On this question, Justice Brownstone ruled that the medical records and expert testimony showed the plaintiff suffered from symptoms of anxiety and depression on and off for years prior to the October Collision. While formal diagnoses came later, they came after further falls and difficult life circumstances related to her career and her mother’s illness and death. Justice Brownstone consequently accepted the evidence of the Defence expert, Dr. Reznek, that the plaintiff did not develop depression and anxiety disorders as a result of the October Collision.
Alcohol Use Disorder
The plaintiff similarly argued that while she had symptoms of alcohol use disorder before the October Collision, it was made worse by the collision.
However, Justice Brownstone wrote that drinking was more and less of a problem for the plaintiff and did not accept that the October Collision led the plaintiff to develop an alcohol use disorder or that it exacerbated an existing alcohol abuse issue.
Takeaways
The threshold and secret deductible continue to act as a barrier to plaintiff’s recovering the money owed to them after an accident.
In this case, even if the plaintiff met threshold, the $40,000 awarded to her by the jury for non-pecuniary damages would have been entirely wiped by the deductible.
This case otherwise underscores the importance of the evidentiary record when litigating cases and trying to prove causation.
