Surveillance, Choice of Expert Bury Plaintiff’s Threshold Hopes

July 13, 2012

A Superior Court judge has ruled that a tort plaintiff with alleged chronic pain syndrome failed to meet the statutory threshold of “permanent, serious impairment” arising from a motor vehicle accident.

In Dahrouj v. Aduvala, the 48-year-old plaintiff was injured in a car accident which occurred on October 10, 2007.  The trial of her action proceeded before a jury in Ottawa in May 2012, about 4 years, 8 months post accident. At trial, the plaintiff claimed that as a result of this accident she developed a chronic pain syndrome.  She claimed that this was apparently permanent and has seriously impaired her physical functioning in her home and her social interaction in the community.  The defendant’s position was that the plaintiff sustained minor soft tissue injuries from which she fully recovered in a matter of months following the accident.

Of note, the case apparently turned on surveillance and the plaintiff’s choice of expert. The defendant arranged for surveillance of the plaintiff which, in the judge’s view, was “particularly devastating” to her credibility and showed her to be capable of vigorous and sustained activity. This included “stretching and lifting – the very activities which allegedly restricted her functioning as a homemaker”.  The surveillance films showed her “chopping ice and snow off her car the morning after an ice storm, pumping gas, reaching for groceries on the upper shelf of a food store and carrying plats of juice containers and bags of groceries up her steps into her home, unassisted”.

With respect to the expert evidence, the plaintiff’s expert witness was Dr. Ogilvie-Harris, who apparently did not impress the judge:

I found Dr. Ogilvy-Harris’ assessment and diagnosis to be somewhat impressionistic.  He interviewed the plaintiff only once for 45 minutes, having previously reviewed her medical records.  He had the plaintiff complete several self reporting questionnaires dealing with her own pain and level of functioning.  He expressed the view that the plaintiff’s own answers or rating of her level of disability placed her in the bottom 1% of functioning of all Canadians of her age with disabilities.  He did not question the credibility of this assessment and his uncritical reliance on this self reported data, which he called “objective measures”, affected the weight of his opinion.

See Dahrouj v. Aduvala, 2012 ONSC 4090


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