It is always helpful to review decisions in other jurisdictions for insight as often times we see a parallel in the law.

In this article, we look at an Ontario Superior Court decision referenced as St. Marthe v. O’Connor, 2019 ONSC 1585 (CanLII) in which the Plaintiff successfully proved that the injury he sustained in a motor vehicle accident on November 9, 2011 was deemed to be that of a “permanent serious impairment of an important physical, mental or psychological function.”

On the day of the crash, the Plaintiff was riding his bicycle when the Defendant’s vehicle struck him.  While the Defendant raised an argument of contributory negligence the Court denied this claim.  In this case, the Plaintiff cyclist had the right of way.  He was travelling on the public roadway, when the Defendant, who was positioned in a lot, entered the public roadway striking the Plaintiff cyclist.

An interesting defence theory was that the Plaintiff should be held contributorily negligent because he was not wearing a helmet.  However, the Plaintiff cyclist did not suffer a head injury, he suffered soft tissue injuries to his back.  The defence’s position was that the Plaintiff injured his back because of “the steps he took to protect his head when he was knocked off his bicycle.”  The Court analyzed this issue and stated that the Defendant has not proven this theory as none of the medical evidence confirmed that the failure to wear a helmet was the cause of the back injury.

The important analysis in these cases is that in order for a Plaintiff to recover a non-pecuniary award in Ontario, the requirements of section 267.5 of the Insurance Act. Regulation 381/03 must be met the key being that the injury must meet the definition of a “permanent, serious impairment of an important physical, mental or psychological function.”  The Plaintiff was successful in this claim.

It is helpful to review the leading case Meyer v Bright, 1993 CanLII 3389 (ON CA). The Court stated at para. 16:

We conclude therefore that the appropriate approach in these cases is to answer sequentially the following questions:

1. 1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
   2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?
   3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?

The determination of each question is fact driven.

The facts:

• The Plaintiff has a chronic pain condition that is not curable;
• He will have temporary relief with pain medication and physical therapy;
• The medical experts have consistent findings and the same diagnosis;
• Medical experts opined that the Plaintiff will suffer from severe pain at times with physical activity;
• The Plaintiff is young;
• He enjoys sports;
• The Plaintiff takes pride in maintaining his home and was responsible for all the hardwork;
• The Plaintiff worked in construction and therefore the impairment to his bodily function is an important one. (The court notes that this analysis is a central issue).

The Court had this to say and its worth reading:

 [111]      Many trial judges have found that if the plaintiff cannot continue in his or regular employment or career path, as was the case in Meyer, the threshold is met: Branco v. Allianz Insurance Co. of Canada, 2004 CanLII 45036 (ON SC); Duguay v. O’Neill, 1996 CanLII 8227 (ON SC); Pupo v. Venditti, 2017 ONSC 1519 (CanLII); Parmar v. Beach, 2017 ONSC 7810 (CanLII) O’Brien v. O’Brien, 2018 ONSC (CanLII); Grieves v. Parsons, 2018 ONSC 26 (CanLII). Even where the plaintiff resumes their pre-accident employment but continues to experience pain, the impairment can be serious: Brak v. Walsh, 2008 ONCA 221 (CanLII).

[112]      Despite their own expert’s testimony that Mr. St. Marthe suffers from a chronic pain condition attributable to the accident that is exacerbated by physical activity and which is not amenable to any efficacious treatment, the defence submitted at the end of the case that none of this is true.

[113]      According to the defendant, I should find that Mr. St. Marthe was not a credible witness and his complaints of pain are either exaggerated or simply untrue; his current condition is due to causes unrelated to the accident; he failed to undergo treatment that would have completely rehabilitated him; and he could have continued as a manual labourer but did not seek any accommodation that would have permitted this to happen.

[114]      As already stated, I found Mr. St. Marthe to be a credible witness. I accept his evidence that he continues to do most of his usual daily activities but some of them cause pain which can be severe at times depending on the type of activity and the level of physical exertion. He testified that he grew up without a father and it is important to him that he fulfill a traditional paterfamilias role in taking care of his family. Thus, he spends time with his young daughters and engages in activities that can cause him pain and discomfort. Similarly, he continues to perform household maintenance and repairs that have the same consequences for him.

[115]      I also find it is not in his nature to complain to others when he is in pain or to shirk from doing things because they might cause him pain. This is why he did not go to his employers until the pain became intolerable. They were aware he was having problems without any complaint by him. When the therapy brought relief from pain, he told the healthcare professionals but sought their help again when it persisted. Drs. Mussett, Beseman and Bednar considered him a reliable historian whose reported symptoms were consistent with the injury he suffered. As his wife observed, when the pain reached a certain level, which occurred when he was working, he did not whinge about it but it was clear to her that it took a serious toll on him.

[116]      Drs. Beseman and Bednar both opined that there is no effective treatment for his condition. Physical therapy and pain medication provide only transient relief. To paraphrase Dr. Bednar, “it doesn’t get worse and it doesn’t get better.”

[117]      Dr. Bednar supported his decision to retrain in the computer field because he could not continue to do manual labour with his condition. So did Dr. Beseman. The defence did not ask either doctor whether there were accommodations that might be made to allow Mr. St. Marthe to remain working in the construction industry. Both Mr. McEwen and Ms. Atkinson testified they did not have light duties he could perform. Although temporary accommodations can likely be made at many workplaces, there was no evidence that long-term modified duties are available to workers in the construction field. I find that, despite a genuine effort on his part, Mr. St. Marthe is incapable of employment as a manual labourer. The pain would just be too great after a few weeks or, at most, a few months. Given his background and education, it was a reasonable decision to return to school in order to obtain competitive employment.

Conclusion

[118]      I find that he has suffered a permanent, serious impairment of an important physical function primarily because his injury disables him from employment as a construction labourer. His condition also impacts on the usual activities of daily living but he can still do them, albeit with pain and discomfort of varying intensity.

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