BARRIE COURT FILE NO.: CV-08-1012

DATE: 20130320

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Vixton Tennant

Plaintiff

– and –

Tanha Fariba

Defendant

D. J. Lewis, for the Plaintiff

HEARD: March 12, 2013

REASONS FOR JUDGMENT

DiTOMASO J.

INTRODUCTION

[1] This is a motion for judgment on a Statement of Claim pursuant to rule 19.01 of the Rules of Civil Procedure. This action arose out of injuries and damages sustained by the Plaintiff Vixton Tennant (“Tennant”) on December 8, 2006 when a vehicle driven by the Defendant Tanha Fariba (“Fariba”) struck the Plaintiff’s vehicle. The Statement of Claim was issued on August 27, 2008. Ms. Fariba was noted in default on July 12, 2011.

[2] Although it was not required of Mr. Tennant’s counsel to serve Ms. Fariba with the Motion Record and the supporting materials in this matter, Ms. Fariba was served and attended before the court on January 22, 2013. At that time it was confirmed that she was served by Plaintiff’s counsel out of courtesy. She required the assistance of a Farsee interpreter and it was recommended that she obtain legal counsel. She was told that she had been noted in default in this action. She was strongly urged by the court to seek the services of a Farsee interpreter and a lawyer. The matter was adjourned to March 12, 2013. On March 12, 2013, Ms. Fariba re-attended court on the return of this matter. She had not retained the services of a Farsee interpreter nor had she retained the services of a lawyer. Ms. Fariba again was reminded that she had been noted in default and had no standing before the court. She confirmed her understanding of her situation and was invited to observe the proceedings if she wished. Ms. Fariba decided to remain in the courtroom during the hearing of the motion for judgment which proceeded on March 12, 2013.

[3] In addition to the Motion Record which contained the Affidavit of Carol Baganzi together with various exhibits and medical reports, the affidavit of Mr. Tennant and copies of his income tax documents for years 2002 to 2011 and a copy of the Statement of Claim issued August 27, 2008, Mr. Tennant attended and gave viva voce evidence on this motion for judgment.

LIABILITY

[4] Mr. Tennant testified that he was proceeding in the collector lane of westbound 401 near the Brimley Road exit when a vehicle driven by Ms. Fariba collided with the Tennant motor vehicle on the driver’s side. Once his vehicle was sideswiped, it ended up on the shoulder of the collector lane. He called an ambulance. The Fire Department personnel were required to pry open the driver’s door in order to extract Mr. Tennant from his motor vehicle. On impact he felt pain in his lower abdomen.

[5] This accident occurred in the morning of December 8, 2006 at around 10:00 a.m. He was taken by ambulance to Scarborough Grace Hospital where he was examined and released from hospital that afternoon. It was recommended that should he continue to feel pain he should take medication and make arrangements to see his family doctor.

[6] Later that day he felt pain in his right arm and right shoulder. He went on to make arrangements to see his family doctor, Dr. Parikh. He attended upon other doctors and received a course of physiotherapy and acupuncture. He continues to suffer injuries to his right arm, right shoulder, low back and left knee at present.

[7] I accept Mr. Tennant’s evidence which is consistent with the motor vehicle accident report dated December 8, 2006 contained in the Motion Record as well as Mr. Tennant’s affidavit sworn December 4, 2012 at para. 3 also contained in his Motion Record.

[8] I find that Tanha Fariba is entirely liable for this motor vehicle accident and the damages sustained by Mr. Tennant as a result of this collision.

DAMAGES

Non-Pecuniary General Damages

[9] Mr. Tennant is 47 years of age. At the time of the motor vehicle accident he was a self-employed flooring installer. He operated a business called Mega Floors. He had started his business in 2005 where he would source flooring materials, price jobs, install various types of flooring and subcontract flooring jobs where required. This was the kind of work that he did up to the time of the accident on December 8, 2006.

[10] Before 2005, he had worked for a flooring company called Arrow Contracting where he had learned the flooring trade. Before working at Arrow Contracting, he had worked as a lab technician after receiving a college diploma in this field.

[11] Mr. Tennant testified that he is right hand dominant and since the collision he has experienced continuing problems in respect of his right shoulder, right arm, right hand, lower back and left knee. He continues to experience problems in these areas.

Physical Injuries

Right Shoulder, Right Arm, Right Hand

[12] Since the accident, Mr. Tennant has received treatment in respect of his right shoulder and right arm. He is taking medication such as pain killers. He has seen his family doctor, Dr. Parikh and he has undergone physiotherapy for four months at the East Hamilton Physiotherapy Centre. He also underwent acupuncture treatments for four weeks after the accident at another facility. His evidence was that he still has pain in his right shoulder and right arm. He feels stiffness in his arm and sometimes his right hand feels cold. The treatments helped at first but the pain came back within a few hours. He testified that his pain was constant from his right hand throughout his right arm to his shoulder. The coldness in his right hand comes and goes. He also testified that he felt a weakness in his right arm which has affected his ability to work and his ability to carry out certain housekeeping functions.

[13] His ongoing symptomology is consistent with the medical reports found in the Motion Record as follows:

• Affidavit of Carol Baganzi sworn December 3, 2012
• Exhibit F – Report of Dr. Rajendra (psychiatrist) dated June 1, 2009 at para. 2
• Exhibit G – Report of Dr. Kakar (psychiatrist) dated August 26, 2010 at para. 2
• Exhibit I – Report of Dr. Williams (chronic pain specialist) dated August 26, 2010 at p.7.

Low Back

[14] In addition to his affidavit evidence, Mr. Tennant testified that at present he feels stiffness and sharp pain in his mid/low back. This occurs when he sits for long periods of time or during periods of exertion. If he drives a long distance he will feel the pain come on after half an hour. If he is only sitting, he can relieve pain by moving around. Stiffness can come on while sitting but the timing of his onset of symptoms varies. Sometimes he would feel stiff after half an hour and sometimes longer (a couple of hours).

[15] When he exerts himself he will feel stiffness after bending or lifting.

[16] He acknowledges that he received only transient improvement in respect of his back problems which were treated by physio therapy. His low back symptoms improved but he still complains of low back pain.

[17] Before the accident he did not have complaints of low back pain. Now he complains of pain simply by bending over. At present, he complains of low back pain once or twice a week which pain would vary in length for a short time or for a couple of hours.

[18] Mr. Tennant’s complaints are consistent with the medical reports attached as exhibits to Ms. Baganzi’s affidavit as follows:

• Exhibit E – Report of Grace Gronkowska (psychologist) at p. 2
• Exhibit F – Report of Dr. Rajendra dated June 1, 2009 at para. 2
• Exhibit G – Report of Dr. Kakar dated August 26, 2010 at para. 3
• Exhibit H – Clinical notes and records of Dr. Parikh dated May 31, 2007, September 24, 2009, November 12, 2009
• Exhibit I – Report of Dr. Williams dated August 26, 2010 at p. 7 point 5

Left Knee

[19] Mr. Tennant testified that he had no problems in respect of his left knee before the motor vehicle accident. Today he experiences shooting pains in his left knee and needs to wear a pad on his left knee except when he sleeps. He complained that his left knee was sensitive and that if he would strike it against something he would feel sharp pain. He complained of shooting pains in his left knee. When asked how often he felt pain in his left knee he testified that the pain was constant. There were shooting pains if he put pressure on his left knee, for example, from walking. He testified that the constant pain that he experiences in his left knee is different from the shooting pains. His knee constantly hurts throughout the day and the only time if he feels any relief is when he is asleep.

[20] The acupuncture provided temporary relief from pain in the left knee, but pain returned after a few hours. He takes medication on a regular basis to relieve the pain but the medication wears off and does not help. He takes pain killers for his knee pain but does not recall the name of such medication.

[21] He first noticed left knee pain a couple of weeks after the motor vehicle accident. While he has acknowledged some improvement in respect of the left knee, it still continues to be a major problem for Mr. Tennant both in respect of his day to day activities and his work life.

[22] His complaints are consistent with the medical evidence as follows:

• Exhibit D – Report of Dr. Yee (orthopaedic surgeon) dated May 6, 2008 at para. 1
• Exhibit F – Report of Dr. Rajendra dated June 1, 2009 at para. 2
• Exhibit G – Report of Dr. Kakar dated August 26, 2010 at p.1

[23] Mr. Tennant did return to work at his flooring installing business but he testified that his ability to work was compromised because of the motor vehicle accident. He returned to work with reduced function and capacity. He has not been able to return to the level of work that he experienced before the collision. In this regard, he suffers from chronic left knee pain. This problem is supported by the evidence of the following doctors:

• Exhibit H – Dr. Parikh’s clinical notes and records dated May 31, 2007, July 13, 2007, April 4, 2008, April 31, 2008 and August 11, 2008
• Exhibit I – Report of Dr. Williams dated January 30, 2012 at p.8 point 6.

Psychological Injury

[24] Mr. Tennant also testified that since the motor vehicle accident, he has suffered from depression. He had no prior problems in respect of depression.

[25] After the accident, he saw his family doctor, Dr. Parikh, two psychiatrists, Dr. Rajendra and Dr. Kakar as well as psychologist Grace Gronkowska. His psychological and psychiatric problems are documented in Reports provided by those health care providers. He had sought a referral to a psychiatrist in Hamilton, Ontario where he lives for further psychiatric treatment but was unable to obtain such a referral. Dr. Parikh, Dr. Rajendra and Dr. Kakar were seen by Mr. Tennant for his depression. All three of those doctors provided him with medication such as Wellbutrin and Cymbalta. He is not currently taking any depression medication. He stopped taking such medication in 2012.

[26] He described his depression symptoms which were associated with anxiety, hopelessness, dramatic weight loss and loss of energy. These symptoms improved after taking medication. He has regained weight but he still suffers from depression. However, he has learned to cope with it.

[27] At present, sometimes he complains of lack of energy. This would occur once a week and would last for a few hours or most of the day. As for hopelessness, almost daily he has this feeling which comes and goes for a few minutes during the day.

[28] Although he stopped taking medication in 2012, his doctor wanted him to continue taking the mediation but Mr. Tennant decided not to do so.

[29] Mr. Tennant’s evidence regarding his depression is consistent with the medical evidence contained in the affidavit of Carol Baganzi and Mr. Tennant’s own affidavit evidence.

[30] His depression problems are documented in the following Reports:

• Exhibit E – Grace Gronkowska’s Report dated December 18, 2008 at p.9
• Exhibit F – Dr. Rajendra’s Report dated June 1, 2009 last para.
• Exhibit G – Report of Dr. Kakar dated August 26, 2010 at p.3 Conclusion
• Exhibit H – Clinical notes and records of Dr. Parikh dated April 4, 2008, April 30, 2008, July 10, 2009, May 4, 2010, June 25, 2010, August 12, 2010
• Exhibit I – Dr. Williams’ Report dated January 30, 2012 at Tab I. A Report of Dr. Williams’ dated January at p. 8 point 7 and 8.

Work

[31] Mr. Tennant testified that at the time of the collision he was self-employed as a flooring contractor. He was the sole proprietor and had no employees. He operated his business on a fulltime basis and was responsible for installing commercial and residential flooring products. He began his business in 2005 and described what was involved in installing various flooring. He would be required to lift 50 or more pounds of material. There was a lot of kneeling and squatting required to perform this type of work. He would be required to get down on the floor and need his knees to kick carpeting into place. He would have to use his arms to also install material in place and he would be required to use power equipment.

[32] I accept Mr. Tennant’s evidence that his job was a physical job which required manual handling of material, sustained and repetitive use of his arms, sustained and repetitive stooping, bending, kneeling, squatting, crouching, forward reaching, heavy pushing and pulling and heavy lifting and heavy carrying.

[33] Further, I accept his evidence that his ability to work changed as a result of this collision. He could no longer install flooring products. He could no longer kneel the way that he did before. He did not have the strength in his right arm and strength in his left knee to install flooring materials as he once did before the accident.

[34] Rather, after the accident he returned to work but struggled a great deal with the tasks that he once performed himself. Rather, he had to utilize more services of subcontractors and he took on an increased supervisory role in his business. He still continues to source materials and price jobs as he did before. However, he uses subcontractors more to do the installation work. Mr. Tennant testified that he sometimes does not have the motivation or drive that he used to have before the accident in respect of his work life.

Social and Recreational Activities

[35] Prior to the accident, he associated with friends and family once or twice a month. He would visit with them or go out for dinner. He was social but did not belong to any groups or clubs.

[36] Mr. Tennant testified that since the accident he has not enjoyed the same level of social or recreational activities that he enjoyed before the accident. He tends to avoid family gatherings and tends to stay away from friends because he does not feel he is at their same level. He stays away because he does not want people to pity him. He feels that he is constantly struggling to stay alive but that his friends and family are in a different social bracket and that they are happy and enjoying life while he does not have what they have.

[37] I find that all of the medical evidence together with the affidavit evidence of Mr. Tennant and his viva voce evidence on this motion have established that as a result of the collision which occurred on December 8, 2006, Mr. Tennant developed a chronic pain disorder. He sustained physical injuries to his right shoulder, right arm, right hand, low back and left knee. To this day he continues to suffer pain and stiffness, lack of strength and sensation in respect of those parts of his body which he described in his evidence and which was supported by the medical evidence contained in the Motion Record. In addition, Mr. Tennant continues to suffer from depression for which he took medication until 2012. He described his current symptoms of lack of energy and feelings of hopelessness. He described his lack of motivation and drive at times and how his social and recreational life has been affected by his physical and psychological injuries. His working life has also been compromised in a significant way because of the injuries both physical and psychological sustained in this motor vehicle accident. While he continues to be involved with his flooring business, he cannot carry out the physical installation type work that he did prior to the accident and relies more heavily on the use of subcontractors.

[38] On all the evidence before me, I award Mr. Tennant non-pecuniary damages in the amount of $65,000. After applying the statutory deductible in the amount of $30,000, his net award for non-pecuniary general damages is in the amount of $35,000. I also award Mr. Tennant prejudgment interest on the sum of $35,000 at the rate of five percent per annum from March 20, 2011 being the date upon which Ms. Fariba was served with the Statement of Claim to the date of judgment rounded to the sum of $3,500. Mr. Tennant’s counsel had assessed non-pecuniary general damages in the range of $40,000 to $75,000 based on cases presented to the court. I find that Mr. Tennant’s non-pecuniary general damages fall at the upper end of the range at the sum of $65,000 (gross before application of the statutory deductible) for the reasons I have given.

THRESHOLD

[39] Based on the evidence and my findings, I conclude that Mr. Tennant meets the statutory threshold. As a result of the use or operation of an automobile, Mr. Tennant sustained injuries of a permanent serious impairment of an important physical, mental or psychological function within the meaning of the Insurance Act, R.S.O. C.I.8 s.267.5(3).

[40] Permanence means lasting indefinitely into the future as opposed to a limited time with a definite end. See Brak et al v. Walsh (2008), 90 O.R. (3d) (C.A.).

[41] The Court has found that soft issue injuries and chronic pain meet the threshold. See Gaukel v. Thukral (2008), 2008 45544 (ON SC), O.J. No. 3521 (S.C.J.).

[42] To establish whether the bodily function that is permanently impaired is an important one, the trier of fact must determine whether the function is important to the particular person injured. The court must consider the importance of the bodily function in issue as it relates to the particular individual who is affected by the impairment. As such, one must consider the injured person as a whole and the effects of the impairment on the individual’s way of life. See Vandenberg v. Montgomery (1999) O.J. No. 2789 (S.C.J.).

[43] A person who cannot carry on his or her daily activities but is subject to permanence in symptoms including sleep disorder, severe neck pain and headaches which significantly affected the victim’s enjoyment of life has suffered a serious impairment. See Kayhan v. Greve (2011) O.J. No. 465 (S.C.J.).

[44] On all of the evidence presented in this case, Mr. Tennant has suffered a permanent serious impairment of an important bodily function. He has suffered and continues to suffer chronic pain in respect of his right shoulder, right arm, and hand associated with lack of strength, weakness and impairment of sensation. He continues to experience problems with this in respect of his lower back and pain in his left knee. He has received physiotherapy and acupuncture treatments which provided transient relief. He has taken medication in the form of pain killers which only provided temporary relief. His pain in the right shoulder, right arm and left knee was described as constant. He only obtains relief in respect of his pain complaints regarding his left knee when he sleeps. He wears a pad in respect of his left knee every day. He cannot work the way that he did before as a flooring installer in his own business. He now tends to rely more on subcontractors to do the heavy physical work that he could do before. He cannot do the heavy lifting and repetitive work involving his arms and legs that he did before this accident. He is right hand dominant and cannot use his right arm as he did before to install flooring material and he cannot use his left knee also as he did before. He cannot do the repetitive lifting, bending and squatting as he was able to do before the accident. He did not suffer from these types of problems before the accident but has experienced all of these difficulties since December 8, 2006.

[45] He also suffered from depression as a result of this motor vehicle accident. While his complaints have improved somewhat, he still experiences symptoms related to his depression on a weekly basis (lack of energy) and almost daily he suffers from a feeling of hopelessness.

[46] For these reasons, I find that Mr. Tennant has indeed sustained a permanent serious impairment of an important physical, mental or psychological function as a result of the injuries sustained in this motor vehicle accident. His soft tissue injuries, chronic pain and continuing symptoms of depression meet the threshold.

PECUNIARY DAMAGES

Past Loss of Income

[47] Mr. Tennant claims a past loss of income in the amount of $53,350 net of the income replacement benefits in the amount of $20,000 paid by his motor vehicle accident benefit insurer. In arriving at this number, Mr. Tennant relies upon the Report of Durrani and Associates dated August 23, 2012. Durrani and Associates Inc. is a firm that specializes in the provision of litigation support services to members of the legal profession across Ontario. The Durrani Report can be found in the Motion Record, Affidavit of Carol Baganzi, Exhibit K. Mr. Durrani amongst other designations is a registered forensic economist. He has produced many economic reports concerning past and future loss of income, loss of household services, present value of costs of care, present value of long-term disability benefits and loss of dependency. He has been qualified as an expert witness with respect to past and future loss of income, loss of household services and cost of care in the Superior Court of Justice and has assisted in numerous arbitrations and mediations.

[48] Mr. Durrani in his Report stated that prior to the accident Mr. Tennant worked as a floor layer with Arrow Contracting. He was an employee. He left Arrow Contracting to start his own flooring business, Mega Floors. At the time of the accident, Mr. Tennant was a self-employed floor layer. He was the owner and operator of his own business which specialized in the installation of various flooring products.

[49] The evidence is that Mr. Tennant commenced his business in 2005. Prior to that he was an employee as evidenced by his tax returns of 2002, 2003 and 2004.

[50] Mr. Durrani at page 4 of his Report wrote that Mr. Tennant had only been operating his business for a few years prior to the accident so that his earnings during this time were not representative of his potential earnings as a floor layer. He assumed that had the accident not occurred, Mr. Tennant would have had the capacity to earn equivalent between his historical employment income which was summarized at Table 1 of his Report.

[51] Mr. Durrani examined Mr. Tennant’s historical employment earnings from his past earning history and concluded that had the accident not happened Mr. Tennant would have continued to work as a floor layer and that his earnings would have been equivalent to his actual earnings from 2002 to 2004.

[52] I do not accept this assumption. What Mr. Durrani has acknowledged is the difficulty in quantifying Mr. Tennant’s past loss of income given the fact that he was no longer employed as a floor installer but rather was the operator of his own business. That having been said, Mr. Durrani in his Report has taken the average of Mr. Tennant’s employment income for years 2002, 2003 and 2004 and has expressed that average in 2012 dollars in the amount of $32,696. He considered Mr. Tennant’s income tax returns for the years 2002 to 2011 inclusive. He prepared Table 3 to his Report which set out calculations relating to Mr. Tennant’s past loss of income considering without accident net income, post-accident net income, loss of income and loss of net income 80 percent for period December 15, 2006 to August 28, 2012. He concluded that the past loss of income at 80 percent after deducting income replacement benefits was the sum of $53,350.

[53] Fundamental to this calculation is the assumption that Mr. Tennant would have continued to work as a floor layer in that his earnings would have been equivalent to his actual earnings from 2002 to 2004.

[54] I find that this assumption is fundamentally flawed. While Mr. Tennant was an employee earning T4 income during the years 2002, 2003 and 2004 he had given up being an employee and decided to operate his own flooring business.

[55] Mr. Tennant’s income tax returns for the years 2002 and 2004 show that he predominantly earned income from employment with some business income presumably earned by Mr. Tennant performing work outside of his employment with Arrow Contracting. His T4 income for 2002 to 2003 was as follows:

2002 - $21,561
2003 - $29,458
2004 - $23,484

[56] His taxable income for those years taking into account his minor business endeavours is as follows:

2002 - $21,383
2003 - $29,990
2004 - $26,321

[57] It is also of note that in tax year 2004 Mr. Tennant received $3,589 by way of employment insurance benefits/social assistance payments.

[58] In 2005 he started his own business.

[59] His income tax returns for the years 2005 to 2011 disclose the following:

Tax Year

Gross Business Income

Net Business Income

E.I. Benefit/Social Assistance

Net Income

2005

$8,164

($2,829)

$10,005

$9,759

2006

$79,929

($4,087)

($4,087)

2007

$61,878

$11,719

$26,370

2008

$17,256

$7,971

$7,750

2009

$40,943

$11,717

$11,311

2010

$84,078

$3,068

$13,273

$16,341

2011

$96,849.49

$10,309.73

$4,533.86

$14,506.51

[60] Mr. Tennant’s income tax information discloses that in the year 2005 Mr. Tennant’s business generated gross business income in the amount of $8,164 but was operating at a loss. In 2006 his gross business income increased to $79,929 (almost $80,000) but his business still continued to operate at a loss. This was the year of the accident. The accident occurred in December of 2006.

[61] In the year following the accident, 2007, his gross business income decreased to $61,878 but for the first time in three years his business operated at a profit and his net income was $26,370 which is almost the same amount of his net income in 2004, the year before he started his own business.

[62] In 2008 his gross business earnings dropped to $17,256 but his net business income was almost $8,000 – about $3,700 less than the year before.

[63] In 2009 his gross business income increased to almost $41,000 and his net business income also increased to $11,717. In 2010 his gross business income more than doubled in the amount of $84,078. His net business income was $3,068. He received employment insurance benefits/social assistance payments in the amount of $13,273 resulting net income of $16,341.

[64] Lastly, his income tax returns for the year 2011 disclose gross business income in the amount of $96,849.49. His net business income was $10,309.73. He received $4,533.86 by way of employment insurance and social assistance benefits resulting in a net income of $14,506.51.

[65] Mr. Tennant’s income tax returns for the year 2005 to 2011 show his business earning different levels of gross business income, net business income and net income. Significantly, in the year after the accident he had a net income of $26,370 equivalent to what he was earning in his last year as an employee. While his gross business income decreased in 2008, the gross business income rebounded in 2009 and then continued to climb upwards to approximately $84,000 in 2010 and $96,849.49 in 2011. Notwithstanding the obvious increase in his gross business income, Mr. Tennant’s net income from 2008 to 2011 ranged from $7,750 at its lowest to $16,341 at its highest in 2010. It is little wonder that Mr. Durrani sought to apply an average of Mr. Tennant’s earnings as an employee in order to average those earnings, express them in 2012 dollars and calculate an earning differential considering Mr. Tennant’s income tax information for a period 2005 to 2011.

[66] I am not satisfied that Mr. Tennant’s past loss of income is $53,350 based on the flawed assumption that he would have continued to work as a floor installer based on his employment income. Contrary to the assumption used by Mr. Durrani, Mr. Tennant was a self-employed business operator providing the installation of various flooring products. He continued in this capacity from 2005 to present day. To consider what might have been his past loss of income as a result of his accident by reaching back to the three years when he was an employee is not a reasonable basis upon which to calculate past loss of income. Mr. Tennant is employed in a much different capacity than before the accident and he continues in that capacity today.

[67] While I agree that the injuries sustained by Mr. Tennant in this motor vehicle accident caused him to alter his method of doing business, I am not satisfied on the evidence before me that Mr. Tenant has established what his past loss of income ought to be. In the year before the accident he operated his business at a loss. In the year of the accident he operated his business at a loss even though he had generated almost $80,000 worth of gross business income. From 2007 on, his net business income ranges from $3,068 to $11,719. His net business income despite sizeable gross business income never exceeds $12,000. Therefore I must conclude that I do not have before me sufficient evidence which establishes on the balance of probabilities the proveable quantification of Mr. Tennant’s past loss of income. That is not to say that Mr. Tennant did not suffer some economic loss because of his injuries which significantly caused him to change the manner in which he did business. He did less of the physical work himself and hired more subcontractors to do the work. Nevertheless, he has failed to prove the amount of his past loss of income claim and I would assess such a claim based on the evidence at zero. The evidence discloses that Mr. Tennant received $20,000 by way of income replacement benefits. I do not have any further evidence as to how that amount was calculated.

Past Housekeeping Expenses

[68] Mr. Tennant claims the amount of $6,240 in respect of payments that he made to his friend, Mr. Mahmoud Ali regarding housekeeping expenses.

[69] Mr. Tennant testified that he lives in a rented home in Hamilton, Ontario. Before the accident he could do all the cleaning including cleaning the washroom and the kitchen, his bedroom. He also did laundry and he shovelled snow outside. He did not require any housekeeping assistance before the accident.

[70] However, after the accident he required the help of Mr. Ali because Mr. Tennant had trouble cleaning the washroom. He had no strength in his right arm and he could not clean the toilet, sink and floors.

[71] He paid Mr. Ali $80 every month until the end of 2011. It was Tennant’s evidence that he paid Mr. Ali $6,240 for past housekeeping services. Payment was made in cash. There are no records in respect of any payments made to Mr. Ali. Mr. Ali did not testify at trial.

[72] I note that no claim was made to Mr. Tennant’s accident benefits insurer in respect of housekeeping expenses. Mr. Tennant recalled that his insurer had paid him income replacement benefits but he could not recall advancing a claim to his accident benefit insurer for these homecare expenses.

[73] He continues to struggle in respect of housekeeping. He does not do any vacuuming of the carpet in his house. He can clean the kitchen counter and a minimal cleaning in the washroom such as wiping the sink. However, other cleaning is too difficult for him to do.

[74] Outside, his landlord shovels the snow. After Mr. Ali, nobody did any inside cleaning for Mr. Tennant. When asked what prevented him from doing inside cleaning, he testified that it is difficult to clean the bathroom and kitchen because he only has the use of his left arm which has been the same situation since shortly after the accident. A month after the accident, Mr. Ali started to help him.

[75] While I am persuaded that Mr. Tennant required assistance in performing some housekeeping duties it is his evidence that Mr. Ali assisted him from approximately January 2007 until the end of 2011 – four years. During that time Mr. Ali was paid in cash and no records were kept regarding the housekeeping services provided by Mr. Ali. Mr. Ali did not attend to give evidence at trial.

[76] During the four years after the accident from 2007 to 2011, Mr. Tennant had returned to work, continued to drive his motor vehicle and continued to operate his business but not on a different footing. Based on the evidence before me, I am not persuaded that Mr. Tennant has properly quantified and proven his claim in the amount of $6,240. I am not satisfied that he required four years worth of assistance every month at $80 per month to the end of 2011. Mr. Tennant has not hired anyone else to help him with the inside work in the year 2012. This having been said, I accept his evidence that he has difficulties doing certain cleaning inside his house and those problems are accident related.

[77] Nevertheless, I am not satisfied that Mr. Tennant’s past housekeeping expense claim has been proven in the amount of $6,240 and I would disallow this claim. I have also noted that at no time during the four years during which time Mr. Tennant claims he was paying Mr. Ali, no claim for housekeeping expenses was ever submitted to Mr. Tennant’s accident benefit insurer although likely those benefits were available to him.

Future Loss of Housekeeping Capacity

[78] Mr. Tennant claims for loss of future housekeeping capacity in the amount of $5,143.

[79] The evidence is that Mr. Tennant is able to do light housekeeping but cannot do any of the heavy work. His claim for future housekeeping expenses is based on Mr. Tennant’s inability to perform housework that he normally could do.

[80] At page 11 of Mr. Durrani’s report, Mr. Durrani states that a generalist method was employed was produce a more conservative estimate of the costs of housekeeping assistance. Such an approach was utilized so as to not to overestimate the value of lost housekeeping assistance.

[81] It was Mr. Durrani’s understanding that Mr. Tennant will require two hours of housekeeping assistance for heavier household tasks over the next three to five years. According to Dr. Williams, Mr. Tennant would require housekeeping assistance for three to five years. I accept Mr. Durrani’s calculation that the present value of housekeeping activities is the sum of $5,143 as set out in Dr. Durrani’s report and more specifically at Appendix Table 6 of that report supported by the evidence of Dr. Williams.

[82] I also note that attached to the affidavit of Carol Baganzi at Exhibit B is the accident benefits payment summary dated February 14, 2012 for Mr. Tennant. It is noted that Mr. Tennant concluded a full and final settlement of his accident benefits which included not only payment of income replacement benefits in the amount of $20,000 but also medical/rehabilitation expenses including examinations in the amount of $18,134. Those expenses are not detailed.

Future Medical Expenses

[83] In Dr. Williams’ report dated January 30, 2012 it is stated that Mr. Tennant requires further physical therapy, a course of psychological treatment and participation in a pain management program: see Dr. Williams’ report dated January 30, 2012 Exhibit I to the affidavit of Carol Baganzi at page 10. I accept the evidence of Dr. Williams in regard.

[84] The cost of Dr. Williams’ recommended treatment ranges from $18,000 to $22,000. This costing is based upon the report of Dr. Lee dated February 15, 2012 which is attached as Exhibit J to the affidavit of Carol Baganzi.

[85] In his report, Dr. Lee states that the recommendations made by Dr. Williams encompassed many of the components in Dr. Lee’s proposed treatment plan dated December 5, 2008.

[86] Dr. Lee noted that the current costs of interdisciplinary pain program, including physical therapy (e.g. supervised core strengthening exercises), low intensity laser treatment, supervised aqua therapy, education (e.g. pain coping strategies) and cognitive behavioural therapy (CBT) range between $18,000 to $22,000. I accept Dr. Lee’s evidence as to the costing of future medical expenses and would award Mr. Tennant the sum of $20,000 for payment of future medical expenses.

[87] I note once again that Mr. Tennant settled medical/rehabilitation expenses including examinations with his accident benefit insurer in the amount of $18,134. I have no way of knowing whether or not that settlement included Mr. Tennant’s claim for future medical expenses.

Future Loss of Earning Capacity

[88] Dr. Williams reports that Mr. Tennant’s ability to earn livelihood is compromised on account of his injuries. At page 8 of her report dated January 30, 2012, Dr. Williams states:

Because of this injury, Vixton Tennant can no longer work in the flooring business as he was, that is, doing the actual installation of flooring, travelling long distances, and managing all aspects of his business, including organizing the expansion of his business. He is able to work in a supervisory capacity to a limited degree, limited by his pain and by cognitive dysfunction associated with both pain and depression.

[89] I have also found and accept the evidence of Mr. Tennant that since the date of the accident he has not been able to return to the nature and level of work he performed before the accident. In fact, he operates his business much differently and has taken on a much more of a supervisory role. He has done so because of the physical and psychological injuries that he has sustained in this accident. I find that he has suffered a loss of future earning capacity. I agree that there is a reasonable chance of such a loss of future income occurring: see Schrump v. Koot (1977), 1977 1332 (ON CA), 18 O.R. (2nd) 337 (C.A.).

[90] Because of the injuries sustained in this motor vehicle accident, I find that Mr. Tennant is a less marketable worker and that his career choices have narrowed. To this extent, he would be at a disadvantage should he seek employment in the marketplace.

[91] Mr. Durrani has calculated Mr. Tennant’s future without accident income earning potential at $569,646 based on the assumption that Mr. Tennant had the capacity to earn $32,696 per annum and based on the assumption that Mr. Tennant would have continued to work as a floor layer and that his earnings would have been equivalent to his actual earnings from 2002 to 2004. I have rejected this assumption in my reasons dealing with Mr. Tennant’s claim for past loss of income. I rejected the assumption that Mr. Tennant had the capacity to earn $32,696 per annum. This figure was based on an average of his earnings as an employed flooring installer for period 2002 to 2004. For reasons that I have given, this a flawed assumption and that figure cannot carry forward into future loss of income calculations. I further question whether Mr. Tennant would have worked as a flooring installer until retirement age of 65. Mr. Tennant in his testimony did not state that would have worked to age 65 installing flooring or operating his flooring business for that matter.

[92] In his affidavit found in the Motion Record at Tab 3 at para. 52, Mr. Tennant states: “My gross business income for 2010 exceeds my gross business income at and prior to the collision.”

[93] At para. 53 he states: “My gross business income has been steadily increasing since after a sharp decline in 2008. My net income of 2010 exceeds my net income of 2005.” As I had indicated previously Mr. Tennant’s gross business income in 2011 was the sum of $96,849.49.

[94] Mr. Durrani has offered three approaches should Mr. Tennant continue to operate his business suffering from mild, moderate or severe disability. On the mild disability scenario using the present value of his without accident income earning potential at $569,646 which I have rejected, and applying the percentage difference in employment income for disabled versus non-disabled persons depending on the severity of disability, Mr. Durrani came to the following conclusions regarding future loss of income should Mr. Tennant continue to operate his business:

Mild disability $ 85,447
Moderate disability $131,019
Severe disability $187,983

[95] I reject Mr. Tennant’s claim for future loss of income ranging from $85,447 to $187,983 based on the flawed assumptions utilized by Mr. Durrani in arriving at those figures.

[96] While I am persuaded that Mr. Tennant’s ability to earn a livelihood has been compromised on account of his injuries, I disagree that compromise can properly be quantified by the approach taken by Mr. Durrani. Rather, I am of the view that Mr. Tennant has suffered a loss of competitive advantage in the marketplace. He is a less marketable worker because of his injuries both physical and psychological. His career choices have narrowed and should he decide not to carry on with his own business as a self-employed sole proprietor, he would be disadvantaged when seeking employment in the marketplace.

[97] Based on all the evidence before me including the evidence of Mr. Tennant and the evidence of Dr. Williams which I find persuasive, I would award Mr. Tennant the sum of $50,000 for loss of future earning capacity not in accordance with Dr. Durrani’s calculations but based upon Mr. Tennant’s loss of competitive advantage in the marketplace. Again, I do not know whether or not Mr. Tennant received any payment from his accident benefit insurer regarding this claim when he settled his accident benefits and specifically, his income replacement benefits.

Costs

[98] Mr. Tennant also claims costs in the amount of $24,754.86 all inclusive. Costs are claimed on a partial indemnity scale. I have reviewed and considered the bill of costs herein. I exercise my discretion pursuant to s. 131 of the Courts of Justice Act. I have also considered the factors under Rule 57.01 of the Rules of Civil Procedure. I find the costs claimed are fair, reasonable and proportional. I award costs to Mr. Tennant against Ms. Fariba in the amount of $24,754.86 as follows:

Fees $10,369.19
Lawyers Fee for appearance $ 553.70
Disbursements $13,831.97
Total $24,754.86 inclusive of HST

CONCLUSION

[99] I have found the defendant Tanha Fariba entirely liable for this motor vehicle accident. There shall be judgment in favour of Mr. Tennant against Ms. Fariba in accordance with the following:

General non-pecuniary damages
after statutory deduction $35,000

Pre-judgment interest at rate
of 5% per annum from
March 20, 2011 to date of judgment $ 3,500

Past loss of income $ 0.00

Past loss of housekeeping expenses $ 0.00

Loss of future housekeeping expenses $ 5,143

Loss of future medical expenses $20,000

Loss of future earning capacity $50,000

Costs $24,754.86 all inclusive

[100] The plaintiff Vixton Tennant shall have judgment against the defendant Tanha Fariba in respect of the above amounts. Mr. Tennant is also entitled post-judgment interest in accordance with the Court of Justice Act.

DiTOMASO J.

Released: March 20, 2013