[1]           This is the court’s ruling on a threshold motion which was argued during the jury deliberations (following the presentation of evidence and the jury charge), in this motor vehicle personal injury action.  The plaintiff, Mrs. Dahrouj, was injured in a car accident which occurred on October 10, 2007.  The trial of her action proceeded before a jury in Ottawa in May 2012, about 4 years, 8 months post accident.

[2]           The defendant seeks a declaration pursuant to section 267.5 (5) of the Insurance Act, R.S.O. 1990, c I. 8, as amended, that the plaintiff’s injuries do not meet the statutory threshold and therefore her entitlement to recover non-pecuniary general damages from bodily injury is barred by section 266 (1) of the Insurance Act.

[3]           In order to recover damages for non-pecuniary loss the plaintiff must prove on the balance of probabilities that her injuries fall within the statutory exceptions set out in sub-section 5 of section 267.5 i.e. she must prove that, as a result of the motor vehicle accident, she has sustained either “permanent, serious disfigurement” (not alleged in this case) or:

[4]           The plaintiff claims that as a result of this accident she has developed a chronic pain syndrome.  She claims that this is apparently permanent and has seriously impaired her physical functioning in her home and her social interaction in the community.  The defendant’s position is that the plaintiff sustained minor soft tissue injuries from which she fully recovered in a matter of months following the accident.

[5]           I think it is helpful to reproduce the brief summary of each party’s position which counsel prepared for inclusion in my charge to the jury and which concisely and accurately captures their respective cases as presented in evidence:

[6]           Section 4.2 (1) of Regulation 381/03 under the Insurance Act states that a person suffers from permanent serious impairment of an important physical, mental or psychological function if the impairment substantially interferes with most of the usual activities of daily living, considering the person’s age.  In this case the plaintiff is a homemaker and therefore does not fall within the exceptions provided for persons who are employed or were training for a career at the time of the accident. 

[7]           Section 4.2 (2) states to be an “important function”, such function must be necessary for the person to provide for his or her own care or well-being or be important to the usual activities of daily living, considering the person’s age.

[8]           Section 4.2 (3) states that for the impairment to be “permanent”, the impairment must have been continuous since the incident and must, based on the medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve, continue to meet the criteria in paragraph 1 and be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

[9]           The plaintiff was 48 years of age when this accident occurred.  As noted, she was a homemaker and a single parent of a teenage son and daughter who resided with her.  Her two older sons were living in western Canada with her husband who had abandoned the family some years earlier.  The plaintiff was on social assistance.  Prior to the accident, the plaintiff socialized with family, relatives and at her mosque.  She was an excellent homemaker and enjoyed cooking.  Following the accident, according to the plaintiff, as well as her daughter and two family friends, she became considerably restricted in her social and household activities.

[10]        The evidence at trial disclosed that in the year leading up to the accident the plaintiff visited her family doctor on multiple occasions and many of her complaints related to head, neck and back pain, very similar to her post accident complaints.  The accident itself was a relatively minor rear end collision which dented the fender of the plaintiff’s vehicle and pushed it into the rear of the car in front of her causing minor damage.  The plaintiff was able to get out of her vehicle, walk around and speak to the police and the other drivers and later drive herself to her family doctor’s office following the accident.  In the weeks and months following the collision, the plaintiff claimed that her whiplash type injuries became must worse and she re-acted by greatly reducing her social activities, including interaction with family and at her mosque.  She admitted to some improvement in her condition by the time of trial.

[11]        She undertook two courses of physiotherapy and had the benefit of the involvement of occupational therapists to help her regain function in her household activities.  The plaintiff reported that her daughter stepped in to take over much of the heavier housework and cooking.  She has been under the care of her family doctor who has given her various medications but she has never received an overall assessment of her functioning outside her medical legal attendances and has never participated in a pain clinic nor received any psychiatric assessment or intervention.  The plaintiff’s trial testimony was of somewhat limited assistance to the court given her very limited English and her inability to recollect or to relate her pre-accident medical history or, to a considerable extent, her post accident treatment.

[12]        The plaintiff’s credibility was a key issue at trial.  For the most part the belief of some doctors and therapists that she continues to suffer from on-going disabling pain symptoms was based on the plaintiff’s self reporting of these limitations.  The defendant arranged for surveillance of the plaintiff which, in my view, was particularly  devastating to her credibility and showed her to be capable of vigorous and sustained activity, including stretching and lifting – the very activities which allegedly restricted her functioning as a homemaker.  The surveillance films documented the plaintiff chopping ice and snow off her car the morning after an ice storm, pumping gas, reaching for groceries on the upper shelf of a food store and carrying plats of juice containers and bags of groceries up her steps into her home, unassisted.

[13]        The plaintiff’s expert witness was Dr. Ogilvie-Harris, an orthopaedic surgeon with considerable experience in treating soft tissue injuries and related chronic pain in accident victims and athletes.  This expert diagnosed the plaintiff as suffering from “chronic pain syndrome with central sensitization”.  He explained that with some patients, pain stimulates the nerves for prolonged periods resulting in a phenomenon known as “central sensitization” which is, in effect, an injury to the central nervous system, particularly the brain and spinal cord.  In some cases, long after the initial physical injury clears up, the pain continues or worsens, becomes more disabling and is no longer localized to the site of the original injury. He felt the plaintiff suffered in this way.  Objective evidence of this can be seen on PET scan imaging, although that was not attempted with this patient.

[14]        I found Dr. Ogilvy-Harris’ assessment and diagnosis to be somewhat impressionistic.  He interviewed the plaintiff only once for 45 minutes, having previously reviewed her medical records.  He had the plaintiff complete several self reporting questionnaires dealing with her own pain and level of functioning.  He expressed the view that the plaintiff’s own answers or rating of her level of disability placed her in the bottom 1% of functioning of all Canadians of her age with disabilities.  He did not question the credibility of this assessment and his uncritical reliance on this self reported data, which he called “objective measures”, affected the weight of his opinion.  He concluded from his assessment of the plaintiff that most of her current complaints were not explained by any nerve injury or physical trauma from the accident.   He felt this was to be expected given the central sensitization of chronic pain concept.  He viewed the plaintiff’s pre-accident history of chronic neck and back pain simply as pre-disposing factors to more serious injury in the event of trauma to those areas of the body.  He noted on examination that the plaintiff had diffuse tenderness all over her body and that she demonstrated pain related behaviour, guarding and withdrawal response.  He observed that treatment for chronic pain is most effective in the first two years post accident but feels the plaintiff would still benefit from enrolment in a pain management program.

[15]        Dr. Faris, a specialist in physical and rehabilitative medicine, was the defence expert witness.  I respectfully prefer his evidence over that of the plaintiff’s expert as I consider his assessment to have been more thorough and to be substantially corroborated by the video surveillance evidence.

[16]        Dr. Faris saw the plaintiff for an appointment lasting approximately two hours and he had prepared for this by reviewing her medical records supplied by counsel.  He gave a detailed review of the steps he took in taking a history and performing a physical assessment.  It was his opinion that the plaintiff does not suffer from a chronic pain syndrome or any organic injury (meaning physical injury).  He acknowledged that the plaintiff suffered some whiplash type injuries in the collision which undoubtedly caused her pain and difficulty for a number of months, but this had long since cleared up in his opinion.  He did not deny that the phenomenon of chronic pain with central sensitization can exist in some patients, but his assessment led him to believe this is not what had occurred in the case of the plaintiff.

[17]        Dr. Faris testified that he initially found it unusual that the plaintiff denied most or all of the pre-accident symptomatology which is documented in her medical records; particularly the family doctor’s chart which documented multiple medical visits in the ten months leading up the collision.  Then he observed that she displayed an essentially normal range of motion in her joints when he used distraction techniques or simulation maneuvers and this continued right up until the point where he was specifically examining particular joints and only at that point did the patient exhibit limitations in motion, engage in pain behavior, guarding and restricted movements.

[18]        He said that the plaintiff’s pain behavior ended as soon as his examination ended.  Other than during the specific examinations, he observed excellent “preserved movement.”

[19]        Dr. Faris expressed the opinion that whatever is going on with the plaintiff, it is not organic (not related to physical disability).  It therefore must be, he testified, “thinking based” or a psychological problem.  He felt the video surveillance showed excellent preserved function including lifting, bending, shoulder extension etc., as well as endurance.  He felt that this level of preserved function would be sufficient for normal household duties. 

[20]        When asked why he rejected Dr. Ogilvie-Harris’ diagnosis of chronic pain with central sensitization, Dr. Faris responded that if she had a disabling pain condition, she would not have displayed normal functioning, which she did except only for the time when she appreciated that she was being specifically examined.  If she really had chronic pain, in Dr. Faris’ view, the plaintiff would have been limited in her mobility and would have displayed pain behavior consistently during her visit. 

[21]        Dr. Faris, whose evidence I accept, concluded that there was no organic (i.e. physical) process at play to explain the plaintiff’s complaints of on-going pain.  As he put it, her problems are a “thinking based” issue.  As Dr. Faris and Dr. Ogilvie-Harris are not mental health professionals, they quite properly did not get into the question of the plaintiff’s psychological functioning.

[22]        The plaintiff’s psychological functioning was briefly addressed by only one witness, Dr. Carriere, a psychologist who saw the plaintiff for one brief consultation on referral from an occupational therapist acting for the statutory accident benefits insurer.  He had not seen her medical records.  He concluded that the plaintiff was apparently suffering mild anxiety and mild depression caused by chronic pain from which she advised him she was suffering.  He recommended follow up with his office but this did not occur apparently due to a misunderstanding.  Dr. Carriere did not request or arrange neuro-psychological testing or a psychiatric assessment.  In summary, there is no evidence of an impairment of a mental or psychological function and indeed counsel made it clear to the court that her client’s disability was based on a physical chronic pain syndrome.

[23]        Returning to the statutory exceptions or threshold definition, I am required to determine if the evidence in this trial establishes permanent and serious impairment of an important physical function.  I am of the opinion that this test has not been met.  The plaintiff has not proven that she permanently (or even at the time of trial) suffers from an on-going pain syndrome or other physical injury, nor that such an injury prevents her from carrying out her regular household functions or from socializing in her community with relatives and at her mosque, which I take to be the important physical functions in which she normally engaged.

[24]        The plaintiff, in addition to seeking general damages, also put forward a claim for past and future costs for loss of housekeeping capacity based on her position that her chronic pain interfered with her ability to carry out homemaking and meal preparation activities.  This obviously required the jury to consider whether they were satisfied that this plaintiff, who is a homemaker, had proven a substantial possibility of this type of impairment in the future.  The jury declined to award any sum for future loss of housekeeping services.  The jury awarded $32,000 for past loss of housekeeping services and $50,000 (gross) for general damages.

[25]        While special damages are not subject to the threshold criteria, a question arises as to whether the court can consider the jury’s verdict on the question of whether this homemaker suffers from a permanent serious impairment of the physical functioning required for homemaking activities.  I was referred in argument to the following statement of the Court of Appeal in Kasap v. MacCallum 2001 CanLII 7964 (ON CA), [2001] O.J. No. 1719:

[26]        In view of the court’s guidance in Kasap, I have considered the jury’s verdict denying any recovery for the plaintiff’s claim for future loss of housekeeping services as one supporting factor in the conclusions I have noted above.

[27]        Accordingly, the plaintiff has failed to prove on a balance of probabilities that her case falls within the exception to the threshold set out in section 4.2 (1) 1 (iii) of the Insurance Act and the jury award of general damages will be disallowed.  Judgment will be entered for the plaintiff in the sum of $32,000 which represents the jury award of special damages for past loss of housekeeping services.  With respect to costs of this action, including this motion, I request the defendants to provide written submissions within 14 days of the release of this endorsement with the plaintiff’s written submission to be received within 14 days of receipt of the defendant’s submission.  The defendant will then have a further 7 days to reply if so advised.