McGrath v. Norris et al., 2025 ONSC 2861 (CanLII)
On November 20, 2018, McGrath was injured in a motor vehicle collision when her car was struck by the defendant, Norris. She claimed to have suffered lasting physical and psychological injuries, including post-concussive syndrome, chronic pain, cervicogenic headaches, post-traumatic stress disorder (PTSD), an exacerbation of existing mood dysfunction and sleep dysfunction. It was acknowledged that McGrath had a pre-accident history of two concussions, a fractured sternum which had fully healed, anxiety and depression that were well-controlled and managed.
At issue was the threshold motion brought by the defence, which McGrath successfully defended.
McGrath’s case was supported by Dr. Armagon, family physician; Dr. Sequeira, physiatrist; Dr. Benn, psychologist; Dr. Greenwood, chiropractor; Alan Mills, vocational evaluator; and Kecia Singh Leach, occupational therapist (OT) and life care planner. The court found their evidence “to have been thorough, relevant and generally of great assistance to the court.”
The defendant argued that the injuries were minor and not objectively proven. They relied on Dr. Karabatsos, orthopaedic surgeon whose evidence the judge found largely irrelevant to the issues, and Dr. Duhamel, neuropsychologist whose evidence Justice Macfarlane rejected in its entirety, commenting:
“Regrettably, in my view, he essentially ignored the clinical notes of the primary treating physician, Dr. Armagon, either as being illegible or as being based on the subjective complaints of the plaintiff. This was so despite those clinical notes having been transcribed following his report as he had recommended; there is no evidence that they were ever provided to him. He initially testified as to having spent some 10 hours reviewing the medical documents provided to him, but admitted on cross-examination that his psychometrist had spent those hours and he had only reviewed the psychometrist’s summary. Moreover, during his testimony, he made thinly veiled suggestions that the plaintiff was malingering, something that was not set out in his written report to any degree.”
In finding that McGrath met the threshold, Justice Macfarlane applied the three-part test from
Meyer v. Bright, 1993 CanLII 3389 (ON CA): permanence, importance and seriousness.
Regarding permanence, the court reiterated that it means lasting indefinitely, even if symptoms fluctuate. On the evidence of her treating professionals, McGrath remained vulnerable to further concussions and would need to modify her work life to manage ongoing pain, fatigue and psychological symptoms. The court accepted that her condition would wax and wane but persist for the foreseeable future.
Regarding importance, the impairments were such that they disrupted core aspects of her life. Before the collision, McGrath was on track to complete her education, launch a career and continue playing hockey, which she described as therapeutic and central to her identity. The accident permanently ended her ability to play competitive hockey and curtailed her independence, requiring accommodation at school and work and support from family and her fiancé.
Lastly, regarding seriousness, the court stressed that this must be judged in relation to each plaintiff’s circumstances. McGrath’s injuries substantially interfered with most of her daily activities and her chosen career path. She would never return to hockey, had only limited ability to play soccer and faced restrictions in housekeeping, gardening, snow shoveling and home maintenance. She continued to experience difficulties with personal hygiene, sometimes unable to shower or brush her teeth more than once a week, which illustrates the extent to which her impairments intruded upon the most basic aspects of daily living.
As with most chronic pain cases, the outcome weighed heavily on the plaintiff’s credibility. Justice Macfarlane found McGrath and her parents’ evidence “consistent, candid and genuine.” He accepted the opinions of her treating and expert physicians and vocational experts, while rejecting the defence neuropsychologist’s evidence as incomplete, dismissive of treating notes and improperly suggestive of malingering. His Honour concluded that McGrath met the threshold test, and that her impairments were permanent, important to her career and independence, and serious in their cumulative impact.
The jury’s verdict supported the seriousness of McGrath’s impairments. The jury awarded $119,400 in general damages, $33,500 for past loss of income (70%), $485,000 for future loss of income and earning capacity and $216,000 for future care costs, for a total award of $853,900 before deductions.