September 18, 2018, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Rodrigues v. Purtill, 2018 ONSC 3102 (CanLII)
Heard Before: Justice P.B. Hockin
Date of Decision: June 26, 2018
On October 13, 2008 the applicant was struck by an impaired driver who entered the intersection on a red light. There were five family members in the car with the mother driving. As a result of the accident 5-month-old infant sustained fatal injuries and the mother sustained serious injuries including lumbar fractures. Other occupants including a 3- and 4-year children also sustained minor injuries.
The action was a judge-alone damage assessment. The children were interviewed privately by psychologists to assess their conditions before trial. The defence cooperated with this approach. Both children keenly feel the trauma of losing a sibling in the accident and the over protectiveness of their parents. They suffer from grief and struggle emotionally and in school. They have received no grief counselling. As a result of the interviews the children have been diagnosed with PTSD and anxiety disorders related to the accident and their life thereafter.
This accident occurred before August 31, 2010 when the Insurance Act was amended to eliminate the deductible for fatalities, and after the passage of O. Reg 221/15 that indexed the $30000 deductible. Subsequent decisions have held the indexation of the deductible is retroactive.
Justice Hockin determined the damages for the mother for pate and future income loss, generals, loss of guidance, care and companionship for her son, for the husband for his FLA claim for injuries to his wife and loss of his son, damages for the two children for the psychological issues and FLA damages for the injuries arising for their brother’s death and mother’s injuries.
This decision is significant because in Section 4.3, O.Reg. 461/96 “evidence of one or more physicians” is cited. In this case the impairments diagnosed were by a very well experienced psychologist not a physician and was a registered member of the College of Psychologists of Ontario. The Defendant took the position that evidence of an assessing psychologist does not satisfy the requirement of the regulation, and that the plaintiff must provide evidence from a physician.
Justice Hockin significantly noted that changes in wording of the 1996 Insurance Act regarding broadening the right to sue for impairments of “mental or psychological function,” was simple, straightforward language. A psychologist is a health practitioner under section 105 of the Courts of Justice Act.
On this basis the psychologist’s opinion was accepted as evidence satisfying the threshold.
The Court went on to conclude that, for the purpose of determining seriousness pursuant to Section 4.2 (1) 1 of the regulation (that the impairment must substantially interfere with the person’s ability to continue his or her regular or usual employment), the mother’s “regular or usual employment” was employment as a veterinary assistant notwithstanding her being on a break from work to have a child..
Justice Hockin concluded that present or recent work was not necessary to determine the regulation’s definition of employment. To exclude the mother from the definition in the regulation simply because she had taken a child raising break between school and work:
“would create problematic outcomes for any woman who intends to return to work after having a child, but who was injured in the interim period between training or employment and return to employment after taking a period of time off to raise a young child. The exclusion of such women from the scheme cannot be the intention of the scheme and is not appropriate in the circumstances. Fairness and the ordinary meaning of these words point to this interpretation and conclusion.”
The Court also found that the DME threshold opinion that the mother could return to some sort of sedentary work was not a relevant threshold question since her work or usual occupation was not sedentary.
Allstate filed a notice of appeal.