Skip to content

Client Update: Recent Supreme Court of Nova Scotia decision drives home the importance of credibility

Erin Best and Kara Harrington

This case is about pain, how it was caused, by what accident and the opinions of dueling experts.”¹

In this case, like so many, the assessment of the evidence depends upon findings of credibility“²

On December 14, 2018, Justice Christa Brothers, of the Supreme Court of Nova Scotia, released a 52-page decision in the recent case of Gale v. Purcell, 2018 NSSC 319.

The Plaintiff, Angela Gale, sued the Defendant, alleging she sustained personal injuries and damages in a rear-end motor vehicle accident, which occurred on March 23, 2010 (the “2010 MVA”). More specifically, she alleged the 2010 MVA resulted in a chronic pain condition, which left her partially disabled. She testified she was unable to pursue her previous career as a Dental Assistant (being relegated to working part-time as a Dental Receptionist), unable to participate in camping, driving, or any other activities, and otherwise having “no life”.

The Defendant, represented by Chad Horton of Intact Insurance, argued that (a) any disability, impairment, or limitations experienced by the Plaintiff arose in connection with previous, unrelated MVA(s), or were otherwise unconnected to the 2010 MVA, and (b) any injuries sustained as a result of the 2010 MVA were “minor injuries”, subject to the legislative cap imposed under Section 113B of Nova Scotia’s Insurance Act and Automobile Insurance Tort Recovery Limitation Regulations (colloquially referred to the Bill 1 Cap), limiting the Plaintiff’s entitlement to General Damages to $2,500.

Cross-examination revealed that the Plaintiff had been involved in no less than four (4) unrelated MVAs prior to the 2010 MVA. She had retained counsel and commenced lawsuits in connection with each of them. The Defendant argued that the most serious of these prior MVAs occurred in 2006 (the “2006 MVA”) and that any ongoing injuries or conditions were attributable to the 2006 MVA.

The evidence at trial confirmed that the Plaintiff had eventually stopped working as a Dental Assistant on account of pain and anxiety experienced in the aftermath of the 2006 MVA. Furthermore, the Plaintiff’s assertion that she had partially returned to work as a Dental Assistant for a specific Endodontist prior to the 2010 MVA was shown to be false. This was found to be “significant” and “erode[d] her reliability as a witness”.

The Plaintiff’s assertions regarding the effect of the 2010 MVA on her personal life were similarly challenged. On cross-examination, she “admitted to some exaggerations”. She admitted to driving to Montreal to attend a concert, going camping, spending time with friends and attending vacations to Jamaica, Cancun, Las Vegas, Newfoundland (George Street Festival), and New York City. Justice Brothers found there were times when “her evidence was strategic, inconsistent with the reporting as contained in the medical documents, and inconsistent with her own documents.”

The Plaintiff presented her own Family Physician and an Anesthesiologist as her medical experts at trial. The Defendant presented Dr. Edvin Koshi (Physiatrist).

On cross-examination, the Plaintiff’s Family Physician conceded she did not perform Functional Capacity Evaluations and that any commentary she provided regarding same was based on the Plaintiff’s subjective reporting. This physician eventually conceded that she would defer to Dr. Koshi’s opinion(s) on the diagnosis and treatment of musculoskeletal and chronic pain, and functional capacity.

On cross-examination, the Plaintiff’s Anesthesiologist similarly conceded he did not perform Functional Capacity Evaluations and agreed he could not provide an opinion regarding how many hours per week the Plaintiff could work. On redirect, the Anesthesiologist was asked if various information he had been provided throughout his cross-examination would change his medical opinion of the Plaintiff’s condition. He candidly responded that he had been provided with information he had never seen before and would have to review same in detail and consider any additional elements of which he had been previously unaware (when he authored his expert’s report) before he could effectively comment. This was found to be significant.

Conversely, Dr. Koshi’s report was found to be predicated on a “thorough review” of all relevant information and documentation. His opinion was that the Plaintiff’s current complaints were not causally related to the 2010 MVA, which had only “temporarily exacerbated” pre-existing neck and shoulder pain. He found “no basis” for any medical restrictions attributable to the 2010 MVA that would restrict the Plaintiff’s employment in any way.

The Plaintiff argued she suffered chronic pain as a result of the 2010 MVA and urged the Court to follow authority from the Ontario Courts (Brak v. Walsh, 2008 ONCA 221 and Sasso v. Copeland, 2005 O.R. (3d) 263), which found that where a plaintiff’s pain continued beyond the allowable timeframe, they would be taken outside the purview of minor injury legislation. The Ontario authorities were distinguished on the basis of different legislative language and the fact that despite her alleged pain, the Plaintiff’s MVA-related injuries largely resolved within a couple of months.

Justice Brothers’s relied on the seminal Nova Scotia decision of Farrell v. Casavant, 2009 NSSC 233, in finding the Plaintiff’s claim for General Damages was limited to $2,500 by the Bill 1 Cap. She also awarded $10,000 for Loss of Valuable Services, on the basis that “the Plaintiff has proven that she did have some impairment, for a period of time, of her ability to carry out household tasks”, including grocery shopping, laundry, dusting, making beds and gardening. No further damages were awarded.


¹ Gale, para. 1
² Gale, para. 70


This update is intended for general information only. If you have questions about the above, please contact a member of our Insurance group.

SHARE

Archive

Search Archive


 
 

Reset for renewables: Nova Scotia overhauls energy regulation and governance in advance of influx of renewable energy

April 5, 2024

By Nancy Rubin and James Gamblin The Government of Nova Scotia has embarked on a path to dramatically reshape the regulation and governance of the energy sector with the passage of Bill 404, the Energy…

Read More

An employer’s guide to human rights law in Atlantic Canada

April 2, 2024

By Kathleen Starke and Annie Gray Human rights landscape Human rights legislation prohibits discrimination in specific contexts, including employment and the provision of services. In all Atlantic Provinces, Human Rights Commissions are responsible for enforcing…

Read More

Recognizing subtle discrimination in the workplace: insights from recent legal cases

March 4, 2024

By Sheila Mecking and Michiko Gartshore Subtle discrimination can have a much stronger and longer effect on employees when not properly addressed. It can also result in costly consequences for an employer who does not…

Read More

Immediate changes to travel eligibility for citizens of Mexico

February 29, 2024

By Brittany Trafford and Brendan Sheridan Today Immigration, Refugees and Citizenship Canada (“IRCC”) has announced significant changes to the travel requirements for Mexican citizens. As of February 29, 2024 at 11:30p.m. Eastern Time, all electronic…

Read More

Updated guidance on business reporting obligations under Canada’s supply chain transparency legislation

February 23, 2024

By Christine Pound, ICD.D., Twila Reid, ICD.D., Sarah Dever Letson, CIPP/C, Hilary Newman and Daniel Roth Introduction As we reported on November 30, 2023, the Fighting Against Forced Labour and Child Labour in Supply Chains…

Read More

Trustees beware! New trust reporting and disclosure requirements under the Income Tax Act are here – are you ready for them?

February 21, 2024

By Richard Niedermayer, K.C., TEP  & Rackelle Awad New trust disclosure rules originally announced on February 27, 2018, are now in force, and trusts with taxation years ending on or after December 31, 2023 are…

Read More

Proposed Criminal Interest Rate Regulations: exemptions to the lower criminal interest rate

February 14, 2024

By David Wedlake and Andrew Paul In late December 2023, the Federal Government issued draft Criminal Interest Rate Regulations under the Criminal Code. These proposed regulations follow the Budget Implementation Act, 2023, No. 1 which…

Read More

Outlook for 2024 Proxy Season

February 9, 2024

By Andrew Burke, Colleen Keyes, Gavin Stuttard, David Slipp and Logan Walters With proxy season on the horizon, many public companies are once again preparing their annual disclosure documents and shareholder materials for their annual…

Read More

Significant changes announced for new study permit applications

February 6, 2024

By Brendan Sheridan and Tiegan Scott The Government of Canada recently announced further changes to the international student program that not only limits the number of new study permit applicants per year, but also increases…

Read More

Plans of arrangement come to Newfoundland and Labrador

January 30, 2024

By Tauna Staniland, K.C., ICD.D, Joe Thorne, and Nadine Otten What can you do when your corporation wants to complete a complex transaction requiring significant corporate restructuring that cannot be easily completed under the corporation’s…

Read More

Search Archive


Scroll To Top