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Oct 2, 2018

Ont. Sup. Ct. finds plaintiff in motor vehicle case has not proven a threshold impairment

Author Bevin Shores

Al-Radwan v. Wanless, 2018 ONSC 5464 was a threshold motion before Justice Ferguson following a jury trial in an action concerning the plaintiff’s claims for damages resulting from an August 2, 2012 motor vehicle accident.

The jury had awarded the plaintiff non-pecuniary general damages of $50,000.00 and “zero dollars under all other heads of damages” (para 1). The defendant brought a threshold motion, arguing that the plaintiff had failed to prove a threshold impairment.

In the result, Justice Ferguson concluded the plaintiff did not prove a threshold impairment.

The plaintiff, 35 years old at the time of the accident, came to Canada as a refugee and had PTSD as a result of detention and torture prior to coming to Canada. He also had previous complaints of neck pain and headaches. He was educated as an architectural technologist in Syria, and at the time of the accident was enrolled in English for Academic Purposes courses with the intention of competing an architectural technologist program and continuing this line of work in Canada. He received assistance from Ontario Works and worked part-time in maintenance and construction jobs.  

With respect to the plaintiff’s regular or usual employment or usual activities of daily living, Justice Ferguson noted, materially, at paragraphs 41 and 46:

“41.              The plaintiff did not have “regular or usual employment” in Canada at any time prior to the accident. At the time of the accident, he was on OW which did not result in any steady work. His statements to medical practitioners (including experts) about: (a) his work as “construction worker”; (b) his training as an architect and owning a renovation company; (c) his self-employment in the “construction trade”; and (d) his background as a “former architect” who was “looking for work in renovations” are not reliable.  The plaintiff did not submit any documentary evidence of his regular or usual employment. There were no lay witnesses called to support any statements made about his capacity to complete renovation/construction-type work.”

...

“46.              The plaintiff did not lead evidence about how his physical injuries substantially interfered with most of his usual activities of daily living. He confirmed during cross‑examination that he could tend to bathroom hygiene independently, could be alone at home without risk to his safety; and that he could dress himself. He could not identify any sport or recreation activity that he had to stop due to an accident-related injury. There was no information from any lay witnesses about the impact of the plaintiff’s physical impairments on his activities of daily living.”

As to the plaintiff’s experts, Justice Ferguson did not accept the evidence of either of the plaintiff’s experts, finding the plaintiff’s psychiatrist presented as an advocate (para 48), and that the plaintiff’s physiatrist’s “reports and testimony do not specifically address how the plaintiff’s physical impairments substantially interfere with his ability to continue his career training or his daily living” (para 50). 

Therefore, Justice Ferguson agreed “with the defendant that there is no acceptable opinion evidence of a physician trained for and experienced in the assessment of either a mental or psychological impairment caused by the accident. As such, the plaintiff has failed to meet the evidentiary requirements of O. Reg. 461/96 (amended)” (para 51).

Justice Ferguson also noted several problems with the plaintiff’s credibility at paragraph 55, including “lying to the bank in order to get a credit card,” “lying to his OW’s benefit worker about working (not working),” not disclosing his accident benefits settlement to ODSP, inconsistent reporting of medical problems to his treating doctors and experts, and failing to report income to Canada Revenue Agency.

In the result, Justice Ferguson concluded that the plaintiff had not met the threshold.

Al-Radwan v Wanless 2018onsc5464

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Bevan Shores

Bevin Shores

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P: (905) 577-4050 ext 595 (905) 577-4050 ext 595

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