



COURT OF APPEAL FOR ONTARIO

CITATION:  Wadhwani v. State Farm Mutual Automobile
    Insurance Company, 2013 ONCA 662

DATE: 20131101

DOCKET: C54520

Rosenberg, Watt and Pepall JJ.A.

BETWEEN

Kameenee (Carmen) Wadhwani

Plaintiff (Appellant)

and

State Farm Mutual Automobile Insurance Company

Defendant (Respondent)

Kameenee Wadhwani, acting in person

Philippa G. Samworth and Jennifer Arduini, for the
    respondent

Heard:  October 9, 2013

On appeal from the decision of Justice Carole J. Brown of
    the Superior Court of Justice, sitting with a jury, dated October 3, 2011.

ENDORSEMENT

[1]

The appellant sued her motor vehicle insurer for income replacement
    benefits, damages for breach of contract, and reimbursement of certain expenses.

[2]

The jury at the trial of the action was not satisfied that the appellant
    had suffered a substantial inability to perform the essential tasks of her
    employment as an aesthetician as a result of the accident and within two years
    of the accident. Further, the jury was not satisfied that the insurer breached
    the contract of insurance when it denied the SEMG assessment and the OCF-22,
    dated July 22, 2005.  In accordance with the verdict of the jury, the trial
    judge dismissed the action.

[3]

The appellant, who is now self-represented, relies upon the factum filed
    by her former counsel.  We called upon the respondent to respond to two of the
    grounds of appeal.

[4]

First, the appellant contends that the trial judge erred in ruling inadmissible
    the medical reports of the appellants family physician who was deceased at the
    time of the trial.

[5]

We would not give effect to this ground of appeal.

[6]

The trial judge recognized that her discretion on the issue was governed
    by s. 52(2) of the
Evidence Act
, R.S.O. 1990, c. E. 23.  She declined
    to exercise her discretion to admit the reports as evidence on essentially
    three grounds:


i.

the reports were little more than a distillation of the clinical notes
    of the deceased doctor that were admitted as evidence;


ii.

the reports were not necessary for proper presentation of the
    plaintiffs case in light of the clinical notes and records and the other
viva
    voce
evidence of medical experts who were to testify in support of the
    plaintiffs claim; and


iii.

the prejudice to the respondent caused by the inability to cross-examine
    the author of the reports to test the foundation for the opinions and
    conclusions expressed outweighed any prejudice to the plaintiff in not being
    permitted to file the reports, given the content of the clinical notes admitted
    at trial and the other expert opinion evidence to be given in support of the
    plaintiffs case.

[7]

The trial judge appreciated that she had a discretion to admit the
    medical reports compiled by the appellants deceased family physician. The
    trial judge recognized the hearsay nature of the reports and analyzed whether
    they met the requirements of necessity and reliability. She concluded that
    neither requirement had been met.  That conclusion is fully supported by the
    record.

[8]

As the trial judge pointed out, the reports were little more than a
    distillation of the clinical notes of the doctor. The clinical notes were filed
    as exhibits, thus available for other experts called by the plaintiff to take
    into account in formulating and expressing their opinion about the origins,
    nature, and extent of the plaintiffs disability. The notes were in legible
    form. The family physician was not an expert in chronic pain syndrome. Other
    experts gave evidence on that issue and their opinions were available to the
    jury.

[9]

The absence of the family physician as a witness in the proceedings would
    have occasioned significant prejudice to the respondent. The doctor could not
    be cross-examined on the extent of his experience with chronic pain cases or on
    other factors that were relevant to his credibility as a witness and the
    reliability of his evidence.

[10]

We
    are satisfied that the trial judge applied the proper test to determine the
    admissibility of the deceased physicians reports. She considered the governing
    principles, and took into account the relevant factors. Her conclusion was
    untainted by any irrelevant considerations.  She did not misapprehend any of
    the evidence.  It has not been shown that the trial judge exercised her
    discretion improperly.

[11]

The
    second ground of appeal challenges the correctness of the trial judges
    interpretation of the interplay between ss. 4(1) and 5 of the
Statutory
    Accident Benefits Schedule  Accidents on or After November 1, 1996
, O.
    Reg. 462/96 (the SABS).

[12]

The
    trial judge decided that to qualify for income replacement benefits under s. 5
    of the SABS beyond a period of 104 weeks, an insured must establish eligibility
    for the benefits within the first 104 weeks after the accident under s. 4(1) of
    the SABS. The trial judge framed the first question for the jury accordingly.

[13]

In
    our view, the trial judge was correct in her interpretation of the relationship
    between the two provisions.

[14]

The
    argument for the appellant is that an insured can return to work during the
    initial 104-week period (as the appellant did here) and, if at some time
    thereafter she or he is entirely unable to work because of accident-related
    injuries, she or he can reassert a claim for income replacement benefits at any
    time, with the limitation period beginning to run only when the insurer refuses
    to pay the further benefits claimed.

[15]

This
    argument was rejected by this court in
Haldenby v. Dominion of Canada
    General Insurance Co
. (2001), 55 O.R. (3d) 470. A similar conclusion was
    reached by the Appeal Division of the Financial Services Commission of Ontario
    in
Ladhar v. Economical Mutual Insurance Co
., 2012 CarswellOnt 5805.

[16]

We
    would not give effect to this ground of appeal.

[17]

The
    appeal is dismissed. The respondent is entitled to its costs on a partial
    indemnity scale in the amount of $10,000.00 inclusive of disbursements and all
    applicable taxes.

M. Rosenberg J.A.

David Watt J.A.

S.E. Pepall J.A.


