Every week, Bell Temple LLP selects and reports on interesting and relevant decisions from the Ontario Superior Court of Justice, Ontario Court of Appeal, and Supreme Court of Canada.
Angus Chalmers writes this week’s case reports.
Osmani v. State Farm, 2023 ONSC 5438
In this recent decision, Justice Shaw found that the Plaintiffs did not meet the threshold set out in section 267.5(5) of the Insurance Act. This case shows the importance of credibility in establishing soft-tissue injuries which cannot be demonstrated through objective evidence.
Justice Shaw first notes that, though neither party had argued this, there was no threshold issue at all given that causation had not been proven by the Plaintiffs. The jury had found that the accident did not cause or contribute to any ongoing pain or impairments suffered by the Plaintiffs and awarded no damages. Justice Shaw, citing Mandel v. Fakhim, 2018 ONSC 7580, noted that even when a jury awards a Plaintiff no damages, the court must still determine the threshold issue. In this case, however, the jury had also been asked whether the accident caused or contributed to the Plaintiffs’ ongoing pain and impairments, to which they answered “no”. Justice Shaw stated that this finding was binding. As the jury had determined causation, there was no threshold issue.
Despite this finding, Justice Shaw goes on to address the threshold issue. After citing the statutory requirements and definitions set out in Section 267.5(5) of the Insurance Act and sections 4.1, 4.2, and 4.3 of O Reg 461/96, Justice Shaw cites Ayub v. Sun, 2015 ONSC 1828, summarizing the jurisprudence dealing with threshold motion:
- In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. DeBruge v. Arnold, 2014 ONSC 7044 (Ont. S.C.J.).
- The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Lento v. Castaldo(1993), 1993 CanLII 3389 (ON CA), the Court set out the following three-part inquiry:
a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?
b) If yes, is the function impaired important?
c) If yes, is the impairment of the important function serious?
- While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. Brak v. Walsh, 2008 ONCA 221.
- The test of whether the impaired function is “important” is a qualitative test. Page v. Primeau, 2005 CanLII 40371 ( S.C.J.).
- The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (Ont. S.C.J.).
- When assessing what degree of impairment in the Plaintiff’s daily life is necessary to be “serious”, the degree of impairment must be beyond tolerable. Frankfurter v. Gibbons(2004), 45880 (ON SCDC).
Using this analytic framework, Justice Shaw assessed whether the Plaintiffs, Ilaz Osmani and Fakete Osmani, met the threshold.
Ilaz Osmoni
Ilaz Osmani claimed that the car accident caused soft tissue injuries that resulted in ongoing pain in his right shoulder, lower back, hips, headaches, and dizziness. He alleged that he was no longer able to do any housework or recreational activities such as playing cards or soccer with his friends. Ms. Osmani’s expert also diagnosed her with multiple soft tissue injuries, along with post-traumatic chronic headaches and a chronic pain disorder.
Justice Shaw noted that the Plaintiff was neither a credible nor reliable witness and that he misled the court regarding the nature and extent of his pre-accident health issues. Notably, there were several mentions of right shoulder and left knee pain in his medical records. However, he testified that he had no pre-accident injuries. Further, despite testifying to ongoing pain, there were no reports of pain in his medical records after February 2017. When confronted with inconsistencies between his evidence and his medical records, Mr. Osmani alleged that the medical records were incorrect. Mr. Osmani did not report any of his pre-existing problems to the experts who assessed him.
As per Justice Shaw, the credibility of the witness is central when dealing with soft-tissue injuries, such as Mr. Osmani’s. Soft tissue injuries are typically not detectable through imaging studies such as x-rays or MRIs. Assessing a Plaintiff’s limitations resulting from soft tissue injuries must be done through the self-report of the individual in describing their pain and the limitations imposed upon them. As such, the credibility of the witness is key. Based on the Plaintiff’s credibility issues, Justice Shaw was satisfied that his claim did not meet the threshold.
Fakete Osmani
Fakete Osmani alleged that as a result of the accident she suffered from soft-tissue injuries to her back and neck, headaches, cognitive deficits, and anxiety. She alleged that she was limited in her ability to perform housework, needing to take breaks due to her pain and that she had difficulty with childcare as she became irritated more easily. Mr. Osmani’s expert diagnosed him with multiple soft tissue injuries, along with post-traumatic chronic headaches and a chronic pain disorder.
Ms. Osmani was also not a credible witness. As before, there were inconsistencies between Ms. Osmani’s testimony and her medical records. Notably, she did not testify in chief, nor did she mention to the medical experts, about a near drowning that occurred when she was 9 or 10. As a result of the drowning, Ms. Osmani was in a coma for a month, had amnesia for six months, had to get hearing aids, was in a special class at school, was always irritable, and was suffering from headaches prior to the accident.
Further, Ms. Osmani, despite claiming ongoing impairments, failed to report these issues to her family doctor. Ms. Osmani started seeing a new family doctor in 2016, three years after the accident, and reported multiple health issues over the years. However, she never mentioned the motor vehicle accident.
As with Ilaz, the expert reports and testimony regarding Ms. Osmani’s injuries were largely based on her self-report. Her primary injuries were soft-tissue injuries, headaches, and post-concussion syndrome, which relied on her credibility. Given Ms. Osmani’s lack of credibility, Justice Shaw found that the Plaintiff’s injuries did not meet the threshold.
Costs
Justice Shaw also made a costs award in the decision. The court considered the factors set out in Rule 57 of the Rules of Civil Procedure. The Defendant was the successful party. They were the only ones to serve an offer to settle, a dismissal of the action on a without cost basis, which was not accepted. Justice Shaw stated that the Defendant did not beat their offer. Their offer was for zero and the jury awarded zero. In her opinion, this type of offer does not encourage settlement but rather compels plaintiffs who may have a modest claim, to proceed to trial. Justice Shaw specifically states that she would have awarded the defendant more costs had it made an offer to settle that involved something more than no damages.
Justice Shaw found the Defendant’s fees and disbursements, $116,093.15 and $33,110.85 respectively, to be reasonable and modest. Given that the Plaintiffs did not file a bill of costs, the Defendant’s fees were considered to be within the Plaintiffs’ reasonable expectations. The matter was of moderate complexity and important to the parties.
Lastly, the court considered the Plaintiffs’ adverse cost policy for $100,000. They argued that it was unrealistic for the parties to pay any amount over that limit as they were unemployed and did not have the financial means to do so. They argued that it was not in the interests of justice to impose a cost award that exceeded the adverse cost policy as this would cause undue financial distress and economic hardship on them. While Justice Shaw expressed sympathy with their position, she was concerned with their failure to make an offer to settle the matter. Their inability to pay costs was not an overriding consideration, especially given that they did not make any attempt to settle the matter. Costs were awarded on a substantial indemnity basis, fixed at $81,265.70, and disbursements of $30,348.95 for a total of $111,614.65, inclusive of HST.
Pyper v. Goble, 2023 ONSC 5389
In this case, Justice Bell declared the Respondent, Trevor Goble, to be a vexatious litigant. The Applicant Onyx Community Services is a not-for-profit corporation that provides counselling, psychotherapy, addiction support, and community reintegration services to persons in conflict with the law and Marie Pyper is their volunteer executive director.
Over the course of 2021 and 2022, Mr. Goble brought six actions against Onyx, its employees, volunteers, and lawyers. The allegations in the various actions included fraud, misrepresentation, civil conspiracy, intentional infliction of mental suffering, interference with economic relations, harassment, and defamation. Most of the actions were discontinued, though one action was dismissed by the court, with Justice Gomery stating “[t]his action bears the hallmarks of a vexatious proceeding”.
In June 2021, Mr. Goble filed a complaint with the Law Society against one of Onyx’s lawyers. In October 2022, he also commenced an application to have Ms. Pyper declared a vexatious litigant. He himself had been declared a vexatious litigant in 2010 with respect to landlord and tenant disputes. He was convicted of fraud in 2015, sentenced to jail for 18 months, and ordered to pay restitution to Ontario Works and the Kawartha Credit Union. It was also noted that despite not being licensed to practice law in Ontario, he was providing legal advice to his Co-Plaintiffs in the various actions. Further, his correspondence, to the Applicants and their lawyers, is replete with character attacks, includes threats of criminal complaints, and was often delivered in the middle of the night.
As per Justice Bell, where a Judge is satisfied that a person has “persistently and without reasonable grounds” instituted vexatious proceedings in any court, they may order that no further proceeding be instituted by the person in any court, or a proceeding previously commenced not be continued without leave of the court. While access to justice is a fundamental right, the court must be diligent to ensure that its processes are not abused.
Justice Bell analyzed Mr. Goble’s actions for the hallmarks of vexatious proceedings as endorsed by the Court of Appeal in Currie v. Halton Regional Police Services Board, [2003] OJ No 4516 (QL). Mr. Goble had sued Onyx or its representatives six times and complained to the Law Society. He asserted claims and allegations of false arrest and defamation that were made in past allegations and were previously dismissed. When one motion was dismissed, he would bring another motion the next day for the same relief. Mr. Gobles had not paid costs that had been ordered. Mr. Goble’s correspondences to Onyx and its representatives were abusive and threatening, at one point saying, “have you got the message yet?”.
Justice Bell declared Mr. Goble a vexatious litigant. He also determined that this was an appropriate case for a Chavali order. A Chavali order requires the individual to provide a copy of the decision and the order to any person or body with whom they initiate or continue a complaint of any kind. It is designed to protect bodies that are not courts from the vexatious litigant. Mr. Goble had made complaints to the Law Society and had threatened police involvement and criminal complaints. As such a Chavali order was warranted.
Loney v. Doe, 2023 ONSC 5123
In this decision, Justice Healey denied the Plaintiffs leave to bring a motion after setting down the action for trial. The Plaintiffs brought a motion seeking leave to have a motion heard after setting the action down for trial and for an order granting leave to the Plaintiffs to amend the statement of claim on the basis of misnomer pursuant to r. 5.04(2). They sought to change the names of John Doe and ABC Corporation to, respectively, Michael George Alexander Mills (“Mills”) and 564242 Ontario Limited, also known as Liftlock Fuels and Liftlock Coach Lines Limited (“Liftlock”).
Rule 48.04(1) directs that a “party who has set an action down for trial shall not initiate or continue any motion or form of discovery without leave of the court”. The onus is on the plaintiffs to satisfy the court as to why it should exercise its discretion to allow the plaintiffs to bring the motion. Citing Fulop v. Corrigan, 2020 ONSC 1648, Justice Healey noted that the following factors can be considered when determining whether to grant leave:
- what the party seeking leave knew at the time of the passing of the trial record;
- whether there has been a substantial or unexpected change in the circumstances since the action was set down for trial;
- the purpose of the request for leave;
- the nature of the relief being requested;
- whether the party opposing the relief would suffer any prejudice; and
- whether the relief sought would likely be granted if leave or given to bring the motion.
Justice Healey found that the Plaintiffs knew the names of the Defendants at the time the trial record was passed. The Trial Record was passed on June 12, 2019; however, Plaintiff counsel had received a Police file identifying Mills in March of 2016. There was no reason why Plaintiff counsel did not act on the information prior to passing the trial record. Similarly, there was no unexpected change since the trial record had been passed that would cause an injustice if not remedied. The Plaintiffs had the police file in March 2016 and did not act on it.
The purpose of using John Doe and ABC Corporation in the statement of claim was to preserve the limitation period against those parties. The relief claimed, correcting the misnomer to Mills and Liftlock, would protect the rights of the Plaintiff and Intact Insurance (the OPCF 44 Defendant) by allowing them to seek relief from the proper tortfeasor. However, as Justice Healey noted, significant, unexplained delay in bringing a misnomer motion long past the expiry of a limitation period has been the basis for courts to deny the motion. Substituting proposed defendants long after the events and limitation period have passed is not in keeping with the policy objectives of limitations laws.
The nature of the relief would be to add the proposed Defendants to a lawsuit that they were not aware of until almost seven years after the accident. Relatedly, the proposed Defendants would suffer actual prejudice as they would be denied the opportunity to conduct an examination for discovery of the Plaintiffs within a reasonable time frame. Further, they would have been deprived of the ability to contemporaneous witness statements and preserve evidence, conduct early surveillance, obtain a timely defence medical assessment, and witness memories would have faded.
Lastly, Justice Healey found that the relief sought on the motion would not likely be granted. The test for a misnomer is whether a reasonable person receiving and reviewing the claim would know they were the intended target of the litigation. Would they read the claim and say to themself “of course it must be me, but they have got my name wrong”. Here it was likely that the Defendants would know that the claim was directed at them. However, Justice Healey noted that the court retains residual discretion to not grant relief where it would be unjust to do so. Here, because of the significant delay and resulting prejudice, it would be unjust to grant the misnomer.
Based on the analysis of the above factors, Justice Healey determined that leave should not be granted to the Plaintiffs to bring the motion. As such, the motion was dismissed.
