) ) David Tyrell Plaintiff – v. –, 2010 ONSC 6680

CITATION : Tyrell v. Bruce, 2010 ONSC 6680 COURT FILE NO.: 45432/06 DATE: 20101203 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) David Tyrell Plaintiff – and – Jamieson Bruce & Susan Bruce Defendants ) ) ) ) ) ) ) ) ) Michelle Brown & Murray Miskin, for the Plaintiff Mark Elkin & Randal Brown, for the Defendants ) ) ) HEARD: December 2, 2010 Justice B.

Glass THRESHOLD MOTION REGARDING S. 267.5(5) OF THE INSURANCE ACT OF Ontario [ 1 ] This action is a personal injury claim flowing from a July 30, 2004 collision on Highway 401 near the Whites Road exit in Durham Region. [ 2 ] The plaintiff was a passenger initially in a vehicle driven by his brother, Keron Hassan. The event occurred about 4 a.m. when Mr. Hassan was driving Mr. Tyrell home. Mr. Hassan was driving his girlfriend’s car. After passing the Port Union Road exit, the car decelerated because it was running out of gas. Mr. Hassan hoped to coast to the next exit from Highway 401.

That exit was Whites Road. [ 3 ] Mr. Hassan was not successful in coasting to Whites Road. The vehicle came to a stop on the highway. He got out to push the car. He directed the plaintiff to get in the driver’s seat and steer the vehicle while he pushed. [ 4 ] Mr. Tyrell walked to the driver’s side of the vehicle and took the driver’s seat and engaged the seat belt while he steered the car. [ 5 ] Mr. Hassan and Mr. Tyrell claimed that the lights were activated as well as the hazard lights. [ 6 ] Mr.

Tyrell thought the vehicle was partly on the most right exit lane towards Whites Road and partly on the shoulder when the defendant approached from the rear and struck the Hassan/Tyrell vehicle. [ 7 ] Mr. Tyrell’s claims arise from this motor vehicle collision. [ 8 ] Mr. Bruce was driving his mother’s vehicle. He had seen tail lights on the other vehicle and assumed that the vehicle was moving. He was leaving Highway 401 at the Whites Road exit. He testified that there were no hazard lights activated on the Hassan/Tyrell vehicle. He attempted to turn out to the left of the vehicle without success. [ 9 ] Mr.

Bruce testified that he was administered a breathalizer test at the scene and that it registered zero. He is a teetotaller meaning he does not drink alcohol. Nor does he use drugs. [ 10 ] Mr. Hassan’s examination for discovery transcript was read into the record stating that he had seen Mr. Bruce staggering at the Joker’s Night Club the same night and that he could smell alcohol on the defendant’s breath. Mr. Hassan had the impression that Mr. Bruce was drunk when he saw him at the night club. [ 11 ] Mr. Bruce testified that he had not been at the Joker’s Night Club and had not been consuming alcohol. [ 12 ] Mr.

Tyrell was taken to hospital and released. He did not see his family doctor for 2 months. He continued taking his courses at the International Academy. He worked at a telemarketing job for a short time. The plaintiff worked at Mac’s Convenience Stores in 2006 and had a slip and fall accident in which he claimed to have sustained a back, ankle and knee injury at the Mac’s accident and was off work because of that injury; however, he never followed up with the company to complete medical forms.

He let the Mac’s accident go and the company concluded he was not returning to work. [ 13 ] Over the years, he saw several health care providers and he reported to them his complaints of experiencing pain in his head,

neck, shoulders, upper and lower back, legs, knees and ankles. With x-rays and MRI examinations, there was no evidence of injury other than soft tissue strain and sprain. [ 14 ] He encountered a criminal court charge and had a psychological associate provide a letter to the court. This letter stated that Mr. Tyrell was working and financially independent. This was a December 2008 letter. Yet, he commenced receiving Ontario Disability Support Program benefits in December 2007. [ 15 ] Most of the medical evidence for Mr. Tyrell relies on subjective reporting by the plaintiff.

One theme that surfaced was a focus on pain by the plaintiff. Dr. Cameron described the plaintiff’s focus on pain as being symptom exaggeration and basically that the plaintiff was faking his claims of pain. The Test To Be Applied [ 16 ] Pursuant to

section 267.5 of the Insurance Act allows a person to claim damages for personal injuries if they have experienced a permanent impairment of a serious nature to an important physical, mental or psychological function of the claimant. [ 17 ] If all the complaints raised by Mr. Tyrell existed, one could conclude that important functions were involved. Neck, upper and lower back, knees and ankles would be extensive parts of the person’s anatomy.

If the claim were more psychological and be related to alleged pain in these parts of the body, one could say that an important mental or psychological function was involved. [ 18 ] If the claims were believed, one could conclude that the impairment was serious. [ 19 ] I find that Mr. Tyrell is not a believable person. [ 20 ] He did not attend his family physician for two months following the accident. He continued to work and attend the International Academy. His track record in high school had been one of poor scholastic achievements.

His marks at the International Academy followed a similar path as those from high school. Finally, his attendance dropped and he withdrew from school. He had a part time job with Mac’s Convenience Stores and was injured on the job when he fell. He did not even follow through with the medical program that Mac’s had in place because he did not fill out the medical forms and finally Mac’s concluded that he gave up his job. [ 21 ] He has a job through his own business, Block Basics Productions. Four video recordings of Mr. Tyrell doing rap music were produced. These had been taken from YouTube and Bambuser.

He is shown rapping while driving a motor vehicle. In another, Mr. Tyrell is walking and moving about in a rap production without appearing to have any difficulty moving. His only explanation was that it was a good day for him. [ 22 ] When he saw Dr. Gronkowska as a psychological associate for pain in 2008, he had a criminal charge for which the associate was asked to provide a letter to the court. That letter described Mr. Tyrell as being financially independent and working; yet, at the same time he was receiving disability benefits from the Ontario Disability Support Program. [ 23 ] Dr.

Hugh Cameron examined Mr. Tyrell on behalf of the defendant and found him to be exhibiting symptom exaggeration. Dr. Cameron was painfully blunt in reporting a series of tests he conducted to check out the pain complaints of the plaintiff. At the end of his assessment, Dr. Cameron concluded that Mr. Tyrell was faking his injuries and that he was not one with a permanent and serious injury to an important physical, mental or psychological function. [ 24 ] I do not believe Mr. Tyrell. His injuries that he claims to experience are not within the scope of

section 267.5 of the Insurance Act of Ontario . He talks out of both sides of his mouth. On the one hand, he claims to be incapacitated from this motor vehicle accident so much that he cannot work or enjoy life. On the other side of the coin, the plaintiff attends night clubs, dances, socializes, runs his own business of music productions in which he appears to be physically able to move, walk and talk.

When he had a legal problem with the criminal justice system, he got a letter from a health care provider to say that he was financially independent and working; yet, he was receiving Ontario Disability Support Program benefits. At one time, he attempted to get his family physician, Dr. Go, to prescribe a Jacuzzi for him so that social assistance could pay for it. in a nutshell, Mr. Tyrell is a taker who has tried to pass off an accident as a card for a lot of money. He does not have permanent injuries related to this collision. [ 25 ] Mr. Tyrell’s case has a similar feature to Tassone-Lagace v.

Vavala [2002] O.J. 1824 in which the plaintiff’s claims for personal injury were placed in the unbelievable category when home videos of her dancing and performing the limbo dance at several wedding displayed physical activity that was not consistent with the claims she presented at the trial. Ferguson J. concluded that Ms. Tassone-Lagace proved soft tissue injury causing symptoms and impairment that ended before the trial. on a balance of probabilities she did not establish that he condition was materially contributed to by the motor vehicle collision. Her condition at trial was not proven to be permanent.

I am satisfied that the reasoning in Tassone-Lagace is very applicable to David Tyrell. [ 26 ] In conclusion, he has not met the threshold requirements of the Insurance Act . David Tyrell has not proven on a balance of probabilities that he has a permanent serious impairment of an important physical, mental or psychological function. Justice B. Glass

Released: December 3, 2010 CITATION : Tyrell v. Bruce, 2010 ONSC 6680 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: David Tyrell Plaintiff – and – Jamieson Bruce & Susan Bruce Defendants REASONS FOR JUDGMENT Justice B. Glass Released: December 3, 2010