Gyorffy v. Drury

[1] The plaintiff, Bella Gyorffy, appeals from a judgment of Lemon J. which dismissed his action pursuant to his ruling on a "threshold" motion. Having decided that the plaintiff was credible and had suffered a "permanent serious impairment of an important physical, mental or psychological function", as defined by the Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5) and s. 4 of Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96 (the "Regulation"), Lemon J. nonetheless dismissed the action on the basis of his interpretation of s. 4.3(5) of O. Reg. 461/96. This Regulation provides:

[2] In this case, the only evidence called at trial with respect to the change of function since the accident was that of three physicians and the plaintiff himself. The trial judge determined that s. 4.3(5) of the Regulation requires that evidence be called to corroborate the plaintiff's evidence or, to put it another way, precludes the use of a plaintiff's evidence to corroborate the physician's evidence within the meaning of s. 4.3(5).

[3] The narrow but important issue raised in this appeal is whether s. 4.3(5) of the Regulation, properly construed, precludes a plaintiff from providing the corroboration referred to in that provision. For the reasons that follow, I have concluded that it does not and that the appeal must therefore be allowed.

[4] The question of whether a plaintiff may provide the corroborating evidence referred to in s. 4.3(5) is a pure question of law. The standard of review is, therefore, correctness: see [page390] Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 8; and Frankfurter v. Gibbons (2004), 2004 CanLII 45880 (ON SCDC), 74 O.R. (3d) 39, [2004] O.J. No. 4969 (Div. Ct.), at para. 8.

[5] Section 4.3 in its entirety provides as follows:

[6] The trial judge found the plaintiff to be a credible witness. After carefully considering the evidence heard during the trial, he found that the plaintiff had met the requirements set out in s. 4.3(1)-(4), that is, that he had suffered "a permanent serious impairment of an important physical, mental or psychological function".

[7] He went on to find, however, that the plaintiff had not met the requirement in s. 4.3(5) because he had not adduced any evidence, in addition to that of a physician, to corroborate the change in function alleged to be a permanent serious impairment of an important physical, mental or psychological function. [page391] He noted that none of the appellant's wife, daughter or former employer was called to testify with respect to the changes in function, adding that there were various reasons for which such witnesses were not called. The appellant's family physician had accused him of forging a prescription, his wife suffered from emotional difficulties and he had been fired by his previous employer after the accident. Accordingly, there was "nothing to corroborate the plaintiff's evidence of what he was like prior to the accident" (reasons for decision, para. 64).

[8] At para. 66, the trial judge stated as follows:

[9] He concluded that

[10] The heart of the respondent's position in support of the trial judge's interpretation is that the term "corroborates" must refer to the plaintiff's evidence rather than the physician's evidence for two central reasons. First, the respondent argues that the term "corroborate" is in essence a term of art which, properly understood, must preclude a person in the plaintiff's position from, in effect, corroborating his or her own evidence.

[11] The respondent's second and related argument is that an expert physician is generally unable to testify as to a change in function because he or she has only met the person after the accident, so cannot be understood to have given evidence at all as far as change in function is concerned. The only material in [page392] an expert report relating to the plaintiff's pre-accident functioning typically comes from the plaintiff by way of background and is hearsay evidence as far as the change of function is concerned; it is thus inadmissible to that extent. The term "corroborate", the respondent argues, must therefore refer to the plaintiff's evidence that there has been a change in function because only the plaintiff's evidence, not the expert's, is admissible on this point and is thus capable of being corroborated.

[12] The appellant submits that the trial judge erred in assuming that it is the plaintiff 's evidence that must be corroborated. He submits that s. 4.3(5) is concerned with corroborating the physician's evidence as it pertains to a change in function, and emphasizes that there is nothing in the Regulation that precludes a plaintiff from providing the corroborative evidence required. While acknowledging that the physician normally cannot testify as to change in function, the appellant submits that a change in function is implicit in a finding of impairment, and that this is what the legislator was seeking to have corroborated by some evidence apart from the physician's evidence of impairment.

[13] On behalf of the intervenor, the Ontario Trial Lawyers Association, Mr. Cameron submitted that the term "corroborate" is not a term of art and that the plain meaning of s. 4.3(5) does not, on its face, preclude a plaintiff from providing the corroboration or supportive evidence referred to. Accordingly, there is no basis for precluding the plaintiff from providing the corroborative evidence on a proper reading of the provision.

[14] The corroboration to which the provision refers is not, in the intervenor's submission, the plaintiff's evidence. Had the legislature intended to exclude a plaintiff from being able to provide such corroborating evidence, it would have so provided explicitly, as it has generally done: Pepe v. State Farm Mutual Automobile Insurance Co. (2011), 105 O.R. (3d) 794, [2011] O.J. No. 2011, 2011 ONCA 341, at paras. 10-11. Moreover, the intervenor submitted that the interpretation accepted by the trial judge would have the effect of excluding from recovery vulnerable or marginalized groups of society, who do not have witnesses available who have known them for some time, and thus could not provide the required corroboration.

[15] As I have indicated above, this appeal turns on the interpretation of s. 4.3(5) of the Regulation and of who may provide the evidence that "corroborates the change" to which that provision refers. [page393]

[16] It is now well established that there is only one governing principle or approach to statutory interpretation. The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, at para. 26; see, also, Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, Ont.: LexisNexis, 2008) ("Sullivan"), at pp. 40-42.

[17] In applying this principle to s. 4.3(5), the first point to note is that there is nothing in the provision which expressly excludes a plaintiff from providing the corroboration to which it refers.

[18] Second, s. 4.3, read as a whole, is concerned primarily with the evidence of physicians and the requirements their evidence must satisfy. It requires that there be such evidence "in addition to any other evidence" (s. 4.3(1)), it sets out the subjects that must be addressed by such evidence (s. 4.3(2)) and it sets out the requirements to be met in terms of qualifications of the physician (s. 4.3(3)). It also specifies that the physician's evidence must include a conclusion that "the impairment is directly or indirectly sustained as the result of the use or operation of an automobile" (s. 4.3(4)).

[19] When the term "corroborates" appears in s. 4.3(5), then, the context, grammatical and ordinary sense refers back to the evidence of the physician, which is the central subject of s. 4.3. In short, the section appears to require corroboration of the evidence of the physician or physicians and not that of the plaintiff.

[20] The respondent submits that this interpretation cannot be correct because, first, it refers to change in function, with respect to which the expert physician cannot typically testify, and second, that anything that the physician has said in his report about alleged changes in function is, at best, hearsay and thus not admissible evidence capable of corroboration.

[21] I disagree with this narrow construction of the Regulation for a number of reasons. First, there is no basis for the respondent's assertion that the use of the term "corroborates" must refer to the plaintiff's actual evidence as opposed to allegations of a change of function. The Concise Oxford English Dictionary, 11th ed. (New York: Oxford University Press, 2004) defines the verb "corroborate" as to

[22] It is true that, in the legal context, the term is most frequently encountered with respect to the corroboration of other [page394] testimony or evidence in the narrow sense. The corresponding definition in Black's Law Dictionary, 9th ed. (St. Paul, MN: Thomson, 2009) reads [at pp. 397 and 638]:

[23] While this definition reflects the fact that the most common legal reference to corroboration concerns actual testimony or evidence given, it also reiterates the core meaning, which is "strengthening or confirming". There is no support in the authorities cited that corroboration is a term of art that must necessarily be confined to refer to evidence offered in support of actual (and properly admissible) evidence given.

[24] In addition to the fact that there is no authority to support the submission that "corroborate" is in essence a legal term of art that, properly applied in the present case, precludes the plaintiff from providing the corroborating evidence, there is case law that supports the appellant's submission that, when and if a legislator wishes to specify who may not provide corroborating evidence, it does so expressly.

[25] Pepe v. State Farm Mutual Automobile Insurance Co. provides such an example. There, ss. 1.5(c) and 1.5(d) of the policy at issue ("OPCF 44R") specifically required the claimant to adduce his or her own evidence of the involvement of an unidentified automobile. It also required the claimant's own evidence to be corroborated by other material evidence. The provision defined such other material evidence as either physical evidence or independent witness evidence. It further provided that if the claimant chose to adduce independent witness evidence to corroborate his or her own evidence, the corroborating evidence must not come from either a spouse or a dependent relative. The issue in Pepe was whether a person who was neither a spouse nor a dependent relative but a person with a close personal relationship to the party claiming under the provision (i.e., his girlfriend) could provide "independent witness evidence". The Court of Appeal held that she could.

[26] Pepe supports the intervenor's submission that, when the legislator wishes to specify or restrict who can provide corroborating evidence, it does so expressly. As the case illustrates, the provision in that case spelled out who could or could not provide such evidence in detail. [page395]

[27] Moreover, the case also supports the proposition that "corroborate" is not a term of art. Doherty J.A., writing for the court, stated as follows, at para. 11:

[28] In sum, I do not accept the respondent's submission that the use of the term corroborate necessarily excludes a plaintiff from providing such corroboration, as the trial judge assumed it did.

[29] Nor does such a construction make sense in the context of this provision within the statutory scheme. The only rationale advanced for this provision is that of restricting the number of cases which meet the threshold. While the legislator may legitimately intend to limit the number of persons who meet the threshold, it is not obvious that it intended to do so by precluding a plaintiff from providing such corroboration. There is nothing that expressly precludes the plaintiff from corroborating the evidence of the physician or the allegation of a change in function.

[30] In this case, the requirement for corroboration in the sense advanced by the appellant and intervenor does make sense in the context of the Regulation and the statutory scheme as a whole. While an expert physician cannot generally testify directly as to change in function, such a change may well be implicit in the physician's finding that there is a "permanent serious impairment of an important physical, mental or psychological function".

[31] In addition, an expert report will likely contain background provided by the plaintiff which includes statements as to changes in function experienced since the accident. Such statements may be self-serving and, as contained in the report, constitute hearsay which has not been tested by cross-examination before the trier of fact. The requirement of corroboration in s. 4.3(5) thus addresses the concern that such statements or allegations, forming part of the expert physician's evidence but which are not properly evidence of change in function, may lead the trier of fact to improperly infer a change of function in the absence of direct evidence on the point.

[32] While, as the respondent submitted, permitting the plaintiff to provide this corroboration does not remove the possibility [page396] of self-serving statements proferred by a plaintiff reflected in the medical report contained in the physician's report, it does mean that those statements will be subject to cross-examination in open court. It is open for the trier of fact to reject such evidence and conclude that a change in function has not been established.

[33] This rationale is also supported, in my view, by the fact that s. 4.3(5) comes at the end of s. 4.3 and applies only with respect to establishing change in function, and not the other elements that must be established to meet the threshold.

[34] In my view, then, the context of this provision in its grammatical and ordinary sense as understood within the scheme of the Act supports the appellant's position that it does not preclude a plaintiff from providing the corroborative evidence.

[35] As I have already mentioned, and as the appellant and intervenor emphasized, s. 4.3(5) does not expressly preclude a plaintiff from providing the corroborative evidence in issue. I have already explained above that I do not accept the argument that this is necessarily implicit in the meaning of corroboration. The absence of express language precluding the appellant from providing the corroboration raises the question of whether the provision, properly interpreted, does preclude the plaintiff, as the trial judge assumed it did.

[36] The intervenor submitted that the effect of this interpretation is absurd because it may eliminate, as it did here, plaintiffs who have met the exigent tests of establishing permanent serious impairment of an important physical, mental or psychological function if they do not happen to have people who knew them before the accident who can testify as to the change in function. In the intervenor's view, such an interpretation is also incompatible with equality principles as expressed in the Canadian Charter of Rights and Freedoms because it disparately impacts the most isolated and vulnerable groups in society.

[37] I agree. The effect of the trial judge's interpretation of the corroboration requirement means that meeting the statutory threshold will depend on having such witnesses available to testify. However, certain vulnerable groups are likely to have a harder time providing such witnesses. For example, an elderly person with no family may not have friends alive. Recent immigrants, who may leave family behind while they become established here, provide another illustration. People who are mentally ill may be unable to provide such witnesses for many reasons. In addition, although such groups as the poor or socially isolated may not be specifically protected by s. 15, the [page397] trial judge's interpretation is likely to have a disparate impact on them. It should not be presumed that the legislator so intended.

[38] As I have set out above, s. 4.3(5) does not clearly preclude a plaintiff from providing corroborative evidence. The interpretation applied by the trial judge is contrary to the values and principles of equality as set out at s. 15 of the Charter:

[39] Under the Charter, equality is compromised when differential treatment perpetuates disadvantage: R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, at paras. 17, 23-24; Quebec (Attorney General) v. A., [2013] S.C.J. No. 5, 2013 SCC 5, 354 D.L.R. (4th) 191, at paras. 323-25. As Justice Abella recently summarized, this assessment requires "a flexible and contextual inquiry into whether a distinction has the effect of perpetuating arbitrary disadvantage on the claimant because of his or her membership in an enumerated or analogous group" (Quebec, at para. 331). While, as the intervenor submitted, this is not a Charter challenge, it is an accepted principle of statutory interpretation that, in the face of two competing interpretations of a statute, the interpretation which is consistent with the Charter values should be adopted: R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, at para. 20. See, also, Sullivan, at pp. 238-41.

[40] I have no doubt that the trial judge's interpretation of s. 4.3(5) is inconsistent with fundamental Charter values as expressed in s. 15. The following illustration provided by the intervenor in its factum, at paras. 32-33, underline this conclusion:

[41] The intervenor provides a similar illustration of a recent immigrant who is injured in an accident in which his wife and child, his only family in Canada, are involved in a serious car accident in which the child is killed and the wife suffers a catastrophic brain injury.

[42] The only rationale which emerged in oral argument in support of the position that the plaintiff is precluded from providing the corroboration is that the legislator wanted to limit recovery for general damages, and that is what the statutory threshold is all about.

[43] For the reasons that I have set out above in discussing the use of the term corroboration, I do not think that this makes sense in terms of the construction of the provision in its own terms. Even if this were the intention behind this provision, however, one would hope that limiting recovery of general damages could be effected through less arbitrary and less discriminatory means. As this case illustrates, interpreting s. 4.3(5) in the manner of the trial judge could result in the claim being dismissed on a basis that has nothing to do with the merit or credibility of the claim before the court.

[44] The trial judge found the plaintiff credible and appeared to be sympathetic with his reasons for being unable to provide other corroborating witnesses. I note in passing that the fact that the trial judge appears to have assumed that the plaintiff could not provide the corroborating evidence suggests that he did not have the benefit of the thorough argument on this issue that was presented before this court on the appeal.

[45] The jury also had clearly believed the plaintiff in relation to the merits of the claim and returned a verdict of $39,000. In short, limiting recovery by eliminating those people or classes of people who do not have access to witnesses who have known them for some time does not have anything to do with the purpose or general scheme underlying the statutory threshold, which is to restrict claims for general damages to serious injuries, that is, to exclude trivial or frivolous claims. While precluding plaintiffs from corroborating may have the effect of restricting claims for general damages, such an interpretation of s. 4.3(5) is not, as this case illustrates, related to the general purpose of distinguishing between serious and trivial claims.

[46] In any event, the central point is that when there are two possible interpretations of a statute, the interpretation consistent with Charter values should be preferred. In this case, that is the interpretation that s. 4.3(5) does not preclude a plaintiff from corroborating the physician's evidence in relation to a [page399] change of function. Had the legislator intended to preclude a plaintiff from providing the corroboration in issue, it could have done so expressly: see Pepe.

[47] For the reasons I have set out above, I conclude that

[48] Accordingly, the appeal is allowed. The trial judge erred in interpreting s. 4.3(5) to require the plaintiff to adduce evidence in addition to his own evidence to corroborate that a change in function had occurred. Given the other findings of fact made by the trial judge, it is clear that, had he correctly interpreted s. 4.3(5), he would have concluded that the plaintiff had met the statutory threshold. The judgment is therefore set aside and judgment is granted as sought in the amount of $9,000.

[49] In the event that the parties are unable to agree as to the costs of the appeal, they may exchange and file brief written submissions with the court within 30 days of the release of these reasons.

[50] MATLOW J. (dissenting):-- For the reasons that follow, I disagree with the disposition of the majority. I would dismiss the appeal.

[51] This appeal does not require any elaborate analysis to interpret s. 4.3(5) of Court Proceedings for Automobile Accidents that Occur on or after November 1, 1996, O. Reg. 461/96 (the "Regulation"). It reads as follows: [page400]

[52] The trial judge applied this provision of the Regulation, in paras. 66-68 of his reasons, as follows:

[53] The corroboration that was required by s. 4.3(5) was independent evidence that lent support to the primary evidence adduced by the plaintiff with respect to "the change in the function" specified. The only evidence, and therefore the only primary evidence on this issue, was the evidence of the plaintiff himself. Therefore, as a matter of logic, his evidence was not capable of corroborating his own evidence. It would be apt to apply, in these circumstances, the story of the proverbial person who tried to pull himself up by his own bootstraps.

[54] The trial judge recognized this and the draconian result that would have to be imposed by him in this case. However, he also recognized that he was bound to apply the law as it was enacted.

[55] In my view, the trial judge applied the law correctly and there is no good reason to interfere with the judgment in appeal.