



COURT OF APPEAL FOR ONTARIO

CITATION: Rodrigues v. Purtill, 2019 ONCA
    740

DATE: 20190920

DOCKET: C65676

Strathy C.J.O., MacPherson and
    Tulloch JJ.A.

BETWEEN

Mary
    Patricia Rodrigues, Michael Fleming, The Estate of Alexander Gideon Fleming,
    and Maximilian Fleming and Ethan Fleming, Minors by their Litigation Guardian,
    Mary Patricia Rodrigues

Plaintiffs
(Respondents)

and

Bonita L. Purtill,
Robert
    Coldwell
, and Aviva Canada Inc.

Defendants
(Appellant, Purtill)

Todd J. McCarthy and Richard J.
    Campbell, for the appellant Bonita L. Purtill

Jonathan C. Lisus and Zain Naqi, for
    the respondents

Heard: September 5, 2019

On appeal from the judgment, dated June
    26, 2018, with reasons reported at 2018 ONSC 3102, and the judgment respecting
    Pre-Judgment Interest and Costs of Justice Peter B. Hockin of the Superior
    Court of Justice, dated November 15, 2018, with reasons reported at 2018 ONSC
    6825.

REASONS FOR DECISION

[1]

This appeal arises from the trial of a motor
    vehicle accident case in which the appellant, driving while impaired, drove
    into the respondents vehicle, causing the death of a young child and serious
    personal and psychological injuries to other family members. Liability was
    admitted.

[2]

The appellant raises five grounds of appeal.

[3]

First, she asserts that the trial judges
    comments about the threshold regulation (O. Reg. 461/96) demonstrated bias,
    tainting his determination of the threshold issues.

[4]

We reject this submission. The trial judges
    comments during the trial do not come close to demonstrating bias. As the
    respondents note, the trial judges comments, while displaying some
    frustration, can reasonably be viewed as seeking assistance from counsel and
    some witnesses on the interpretation of the legislation and its application to
    the facts of this case. Moreover, the appellant has failed to demonstrate any
    connection between the trial judges comments and alleged errors in his
    application of the legislation.

[5]

Second, the appellant submits that the trial
    judge erred in permitting an expert orthopedic witness to rely on evidence from
    Statistics Canada concerning the working expectancy of patients with chronic
    low back pain.

[6]

We see no error. The expert witness attached to
    his report a CD containing some of the information he relied on in coming to
    his opinion concerning the effect of the plaintiffs injury on her earning
    capacity. This information was available to the defence. The fact that the
    witness considered statistical information as one of the many elements of the
    knowledge, information, and experience grounding his opinion, did not render
    his evidence inadmissible. Nor did it preclude the trial judge from referring
    to that evidence.

[7]

Third, the appellant says that the trial judge
    improperly considered the evidence of a registered psychologist and a
    specialist in the treatment of children, who gave evidence on whether the
    injuries to the children met the threshold. Section 4.3 of the regulation
    refers to such evidence being given by a physician.

[8]

The statutory threshold for non-pecuniary loss,
    s. 267.5(5), requires the court to determine whether there has been a
    permanent serious impairment of an important physical, mental or psychological
    function. Section 4.2 of the Regulation sets out the criteria to be applied in
    determining whether there has been a permanent impairment of such a function.
    Section 4.3 requires that the plaintiff adduce the evidence of one or more
    physicians who are trained for and experienced in the assessment or
    treatment of the type of impairment alleged. The plaintiff must also adduce
    evidence to corroborate the change in function that is alleged to be a
    permanent serious impairment of an important physical, mental or psychological
    function.

[9]

In the particular circumstances of this case, we
    do not give effect to this ground of appeal. We note, first, that the evidence
    of the psychologist was led by the plaintiffs, without objection by the appellant.
    The trial judge qualified the psychologist as an expert, capable of giving
    expert evidence on the issues. The appellant took no objection to the witnesss
    qualifications and the issue was not raised until closing arguments. The
    failure to object, when the witness was qualified, can reasonably be taken to
    be an acknowledgment that the witness was qualified to give the opinion she tendered.

[10]

Second, as the respondents note, evidence of
    psychologists has been accepted in other such cases, without objection: see
    e.g.
Podleszanski v. Medley
(2007), 88 O.R. (3d) 294 (Sup. Ct.);
Hayden
    v. Stevenson
, [2009] O.J. No. 2571 (Sup. Ct.);
Zhu v. Matador
,
    2015 ONSC 178; and
Mamado v. Fridson
, 2016 ONSC 4080. The appellant
    has pointed to no authority holding that the requisite evidence must be given
    by a medical doctor as opposed to a psychologist.

[11]

Third, the psychologists evidence was confirmed
    by the evidence of the appellants own expert psychiatrist, which satisfied the
    requirements of the threshold.

[12]

We therefore find it unnecessary to consider the
    respondents submission that a psychologist can be considered a physician for
    the purpose of s. 4.3 of the Regulation.

[13]

Arguably, what is important for the purposes of
    the application of the legislation and the regulation is not whether the expert
    is labelled a doctor, a physician, a psychiatrist or a psychologist,
    but whether he or she has the requisite training and experience to assess the
    impairment, apply the established guidelines and standards of the profession,
    and to give expert evidence on the application of the criteria set out in the regulation
    to a particular case. The trial judge would make that determination in the
    exercise of his or her gatekeeping role over expert evidence. The purpose of
    the legislation might well support an interpretation of physician that would
    include a psychologist. In the circumstances of this case, however, we do not
    find it necessary to decide this issue.

[14]

Fourth, the appellant submits that the awards of
    damages for loss of care, guidance and companionship under the
Family Law
    Act
, R.S.O. 1990, c. F.3, exceeded the applicable range and were so
    excessive as to reflect an error in principle. This submission is unsupported
    by any reference to authority as to what the current range is or should be. We
    are not persuaded that the awards in this case exceed the range set out by this
    court in
Fiddler v. Chiavetti
, 2010 ONCA 210, 317 D.L.R. (4th) 385, at
    paras. 76-83, when properly adjusted for inflation.

[15]

Finally, the appellant submits that the trial
    judges costs award reflects an error in principle because it was not
    proportionate. We do not agree. The plaintiffs recovered over $1 million before
    statutory deductions, which reduced the net recovery to $832,300, plus
    prejudgment interest. The trial took place ten years after the accident and approximately
    8 years after the action was commenced. The trial lasted approximately 9 days.

[16]

The trial judge gave thorough reasons for his
    award of costs, and considered the factors set out in rule 57.01 of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, including the fact that the
    respondents settlement offer was less than the amount of the ultimate
    recovery. The judge declined to give the respondents the costs premium they
    had requested. Ultimately, he awarded costs of $383,922.42, which included
    $90,062.45 of disbursements and $180,066.60 of post-offer costs on a
    substantial indemnity basis. The appellant has failed to demonstrate that the
    costs were not fair and reasonable, or that the trial judge made an error in
    principle in his assessment.

[17]

For these reasons, we dismiss the appeal.

G.R.
    Strathy C.J.O.

J.C.
    MacPherson J.A.

M.
    Tulloch J.A.


