Abousamak v. Izzo, 2015 ONSC 3884

Abousamak v. Izzo, 2015 ONSC 3884

CITATION: Abousamak v. Izzo, 2015 ONSC 3884

COURT FILE NO.: CV-12-446612

DATE: 20150618

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WALEED ABOUSAMAK

Plaintiff

– and –

ELLIO IZZO and PENMAR PLUMBING AND HEATING SUPPLIES ONTARIO LTD.

Defendants

Joseph Giuliana and Stefanie Pereira, for the Plaintiff

Joe Bowcock and Suzanne Clarke, for the Defendants

HEARD: June 8, 9, 10, 11, 12 and 15, 2015

REASONS FOR DECISION

DIAMOND J.:

1The plaintiff Waleed Abousamak brings this action for damages as a result of a motor vehicle collision which occurred June 21, 2010 (“the accident”). The defendants admitted liability for the accident. As such, the six day trial of this action was limited to the issues of causation and damages, and specifically the plaintiff’s claims for (a) general damages, (b) past loss of income and (c) future loss of income.

2I note that originally, the plaintiff also sought damages for loss of future housekeeping/handyman expenses, but in brief oral reasons given prior to the commencement of closing submissions, I found that there was insufficient evidence upon which a properly instructed jury could determine, inter alia, entitlement to an award of future housekeeping/handyman expenses. I therefore struck that question to be posed to the jury.

3On June 15, 2015, the jury returned its verdict and awarded the plaintiff (a) $30,000.00 for general damages, (b) $0.00 for past loss of income and (c) $0.00 for future loss of income (“the award”).

4Following my charge to the jury, and while the jury was deliberating, the defendants brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claims for non-pecuniary damages are barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained and provided for in sections 267.5(3)(b) and 267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 (“the Act”) and the applicable regulations.

5The defendants thus seek an order pursuant to section 267.5(15) of the Act that the plaintiff has failed to establish on the evidence that as a result of the accident, he has sustained a permanent, serious impairment of an important physical, mental or psychological function so as to entitle him to the damages award.

The Legislative Scheme

6Given that the accident occurred in 2010, it is governed by the changes brought about by Bill 198, An Act to Implement Budget Measures and Other Initiatives of the Government. This regime applies to motor vehicle collisions on or after October 1, 2003.

7Sections 267.5(3)(a) and (b) of the Act stipulate that the owner of an automobile is not liable in an action in Ontario for expenses that will be incurred for health care resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”

8Sections 267.5(5)(a) and (b) of the Act stipulate that the owner of an automobile is not liable in an action in Ontario for non-pecuniary loss resulting from bodily injury unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”

9Those sections explicitly provide as follows:

Protection from liability; health care expenses

(3) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for expenses that have been incurred or will be incurred for health care resulting from bodily injury arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

Non-pecuniary loss

(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

10Effective October 1, 2003, O. Reg. 381/03 helped define what is meant by the threshold wording contained in s. 267.5 of the Act. O. Reg. 381/03 added new section numbers 4.1, 4.2 and 4.3 to O. Reg. 461/96. These sections now assist in defining the meaning of the wording contained in sections 267.3(b) and 267.5(b) of the Act, and specifically the words “permanent serious impairment of an important physical, mental or psychological function”.

11These sections also set out the evidence which must be adduced to prove that the statutory exception or “threshold” has been met.

12Sections 4.1, 4.2 and 4.3 of O. Reg. 461/96 provide as follows:

4.1 For the purposes of section 267.5 of the Act,

“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.

4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:

1. The impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

2. For the function that is impaired to be an important function of the impaired person, the function must,

i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person’s age.

3. For the impairment to be permanent, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, and

iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

(2) This section applies with respect to any incident that occurs on or after October 1, 2003.

Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function

4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.

(6) This section applies with respect to any incident that occurs on or after October 1, 2003.

The Law

13As I previously referenced in Ayub v. Sun 2015 ONSC 1828 (S.C.J.), Justice Firestone’s decision in Malfara v. Vukojevic 2015 ONSC 78 (S.C.J.) sets out a summary of the relevant jurisprudence relating to threshold motions, and the principles to be considered and applied by the motions judge. The highlights of this helpful summary are once again as follows:

• In rendering its threshold decision, the Court is not bound by the jury verdict. However, the verdict is nevertheless a factor the trial judge may consider in determining the issues on the threshold motion. See: DeBruge v. Diana Arnold, 2014 ONSC 7044 (S.C.J.) at para. 10.

• The burden of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests squarely with the plaintiff. In Meyer v. Bright (1993), 15 O.R. (3d) 12 (C.A.), the Court of Appeal set out the following three part inquiry:

a) Has the injured person sustained permanent impairment of a physical, mental or psychological function?

b) If yes, is the function impaired important?

c) If yes, is the impairment of the important function serious?

• While the word “permanent” does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit. See: Brak v. Walsh 2008 ONCA 221 and Bos v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424 (Gen. Div.).

• The test of whether the impaired function is “important” is a qualitative test. See: Page v. Primeao 2005 CanLII 40371 (Ont. S.C.J.) at para. 32.

• The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself. See: Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.J.) at para. 56.

• When assessing whether the degree of impairment in the Plaintiff’s daily life necessary to be “serious”, the degree of impairment must be beyond tolerable. See: Frankfurter v. Givons (2004), 2004 CanLII 45880 (ON SCDC), 74 O.R. (3d) 39 (Div.Ct.) at paras. 22-24.

14In Malfara Justice Firestone stated at paragraphs 16 and 23 that a diagnosis of chronic pain, by definition, does not indicate by itself that the injuries are permanent. While the effects of chronic pain are just as real and likely to meet or not meet the threshold as any other type of injury or impairment, it is the “effect of the injury on the person” and not the “type of injury” which forms the focus of the threshold analysis.

15The Court is concerned with the manner in which the plaintiff has been impacted, and more importantly the evidence presented at trial. Indeed, in the recent decision of Gyoffry v. Drury 2015 ONCA 31, the Court of Appeal held that the witness whose evidence – i.e. the injured person’s change in function - is to be corroborated is that of the medical expert and not the plaintiff. However, the plaintiff is not precluded from being the corroborating witness.

The Evidence at Trial

16The plaintiff is currently 33 years of age. He was born in Kuwait, and immigrated to Canada in 1997. At that time, he resided in Halifax, Nova Scotia.

17The plaintiff entered a bio-chemistry program in Dalhousie University. After completing that program, he began work towards his Master’s degree, and subsequently applied for a Ph.D. program. He never ended up completely his Ph. D as he became interested in military training.

18In late 1999, he applied to join the infantry services, and completed the basic infantry training course, obtaining his certification in February 2000.

19He stayed in the military for several years, participating in deployment training and combat training during that time. Ultimately, the plaintiff decided to resign from the military and try and become an RCMP officer.

20From July – December 2007, he trained at an RCMP facility located in Saskatchewan and commonly known as the “Depot”. Two other RCMP constables, David Burtch (“Burtch”) and Omar Ktabi (“Ktabi”), testified at the trial of this action. They each met the plaintiff in late 2007 having contemporaneously trained at the Depot. Both Burtch and Ktabi also worked with the plaintiff at various times after training at the Depot.

21The plaintiff testified that his previous military experience made the Depot training “easier than it could have been”. According to Burtch, while training with the plaintiff at the Depot he considered the plaintiff to be in “very good shape”. Katabi described the plaintiff as “very fit” at that time.

22The plaintiff became an RCMP constable in December 2007. He was assigned to the RCMP office in Milton and began employment in the Federal Enforcement department. He testified that he maintained himself in excellent physical condition and fitness, participating in a training and workout schedule five to seven times per week.

23By 2010, the plaintiff considered himself in “even better shape…working out all the time.” Burtch testified that the plaintiff “continued to keep himself in good shape...and in better shape than most of the RCMP constables in Milton”. Katabi shared Burtch’s general assessment of the plaintiff’s physical condition and fitness.

24The plaintiff testified that he maintained himself in excellent physical condition and fitness for the purpose of ultimately applying to become a member of the RCMP’s Emergency Response Team (“ERT”). The ERT is an elite, covert group carrying on operations throughout Canada. The plaintiff stated that it is “very hard” to be admitted to the ERT as it is a small, select team. In fact, he was not even certain about the application process itself, as the ERT makes its own selections and abides by their own physical standards.

25The opportunity to apply to the ERT is only offered at certain points during the year. The plaintiff testified that he was not eligible to apply to the ERT until December 2010. He did participate in an ERT orientation course, and testified that his previous military training assisted him with his success at that course. According to the plaintiff’s self-assessment, he believed he was “miles ahead of the necessary qualifications” for the ERT program.

26The plaintiff earned a base salary, and like other RCMP constables was eligible to earn supplementary income through overtime work. This overtime work fell into two general categories: mandatory overtime work (i.e. work that would be expected of an RCMP constable in his/her field and which took longer than a regular shift to complete) and voluntary overtime work (i.e. work that needed to be completed through other RCMP units requiring assistance).

27For the first six months of 2010, the plaintiff earned approximately $23,000.00 in overtime pay. He testified that approximately $1,000.00 of that overtime pay was earned through participating in various security detail assignments for the G8 Summit which took place in Toronto in June 2010. The plaintiff further stated that the rest of his overtime pay earned from January – June 2010 was essentially through other voluntary overtime assignments.

28On the date of the accident, the plaintiff was performing a security assignment for the G8 Summit, and was on his way to pick up something to eat. After slowing down due to traffic caused by a left-turning vehicle at an intersection, he was rear-ended by a black truck. This caused the plaintiff’s vehicle to move forward approximately 25-50 feet. Fortunately, the plaintiff avoided hitting the vehicle in front of him.

29Originally, the plaintiff felt significant pain in his right side, but started to feel better before an ambulance arrived and declined to be transported to the hospital.

30Although I will set out the nature of the plaintiff’s injuries in greater detail when summarizing the evidence of the medical experts, the plaintiff did recover from most of his injuries caused by the accident. However, he still experiences pain in his right upper back, and occasional numbness in his right elbow and the fourth and fifth fingers on his right hand.

31The plaintiff did not miss any work as a result of his injuries. He was scheduled to be married in July 2010 in Jordan. He flew to Jordan via France. That flight lasted a total of twelve hours. He returned to Canada in mid-August 2010 and underwent twenty six physiotherapy sessions over the next six months.

32After the accident, the plaintiff saw a physiotherapist, massage therapist and chiropractor. He stopped receiving any treatments in or around March 2013, and has declined to undergo further physiotherapy even though the RCMP provides him with the necessary health benefits to continue with the physiotherapy.

33The plaintiff stated that he experiences pain in the right side of his upper back when standing up, and this restricts his motion and causes muscle spasms. The pain “can be shooting and makes him lose focus”. On occasion he is unable to move freely. He gave an example of only being able to play with and toss his infant son in the air approximately three times before his back precluded him from any further attempts.

34As a result of the continuing pain in his upper back, the plaintiff says he has suffered the following consequences:

a) A reduced chance of a successful promotion to the rank of corporal (which requires a minimum of 7 years of service, but according to the plaintiff is not typically obtainable until 8-13 years of service).

b) An inability to perform voluntary overtime work such as VIP security detail or extended surveillance. As an example, the plaintiff says that he can no longer sit in a vehicle for lengthy periods of time due to his back spasms and the necessity to exit the vehicle for, inter alia, stretching purposes. He also can no longer pick up heavy objects.

c) An inability to continue his workout and fitness training regime, causing the plaintiff to gain additional weight, and

d) The loss of the chance to apply to the ERT, which if successful, would have provided him with additional overtime opportunities.

35As summarized by the plaintiff, his position is that unless he experiences “a miraculous recovery”, his goal of being a member of the ERT has now been extinguished.

Expert Testimony

36The plaintiff called Dr. Mark Friedlander, an anesthesiologist qualified as an expert in the area of chronic pain, to testify with respect to his assessment of the plaintiff’s injuries and his prognosis. Dr. Friedlander conducted his physical assessment of the plaintiff on August 13, 2013. He reviewed the clinical notes and records of the plaintiff’s family doctor prior to performing the physical examination.

37Dr. Friedlander found pain in the plaintiff’s middle and upper back with numbness in the fourth and fifth fingers on the plaintiff’s right hand. Dr. Friedlander diagnosed the plaintiff with a neck injury, and associated pain due to issues with the facet joints which link the bones in the spine. Having continued to suffer with pain for three years after the accident, Dr. Friedlander diagnosed the plaintiff as a chronic pain sufferer.

38Dr. Friedlander did not believe that the plaintiff was magnifying any of his symptoms, and testified that in his opinion, the plaintiff would encounter difficulty performing any physical tasks which could affect or strain his lumbar spine. As a result of the plaintiff’s injuries, Dr. Friedlander stated that the plaintiff had changed his “work function” as he remains at his desk in the office and is no longer on active duty in the performance of overtime duties.

39In cross-examination, Dr. Friedlander agreed that much of his treatment, assessment and prognosis of the plaintiff’s daily living activities were based upon whatever the plaintiff told him during his interview. Subsequent MRI reports showed the plaintiff’s thoracic spine as being normal, and Dr. Friedlander admitted that as the plaintiff had given evidence at trial that he no longer suffered from neck pain, part of Dr. Friedlander’s diagnosis may no longer have been correct.

40Dr. Friedlander believed at the time of his assessment that the plaintiff’s progress had likely plateaued. Given that the plaintiff testified that the pain he suffered in his neck and lower back areas had improved, Dr. Friedlander agreed that his initial prognosis may have been incorrect.

41The defendants called Dr. Frank Lipson, a physiatrist who was also qualified as an expert in chronic pain. Dr. Lipson saw the plaintiff on July 29, 2013, merely two weeks prior to Dr. Friedlander. Dr. Lipson performed his physical examination of the plaintiff prior to reviewing the plaintiff’s previous medical history including any clinical notes and records. On that examination, Dr. Lipson found that the plaintiff’s mid-scapular muscle was sensitive to the touch, and the plaintiff experienced a minimal loss of sensation in his right hand but nothing to suggest a possible pinched nerve. Dr. Lipson found the plaintiff had a normal range of motion for his back, and diagnosed the plaintiff as having experienced soft tissue injuries to his cervical spine, rhomboid muscle, lumbar spine, right wrist and a possible stretching of his ulnar nerve.

42Dr. Lipson did not find any medical reason(s) supporting the imposition of any specific physical limitations upon the plaintiff, although in cross-examination he testified that if any of the plaintiff’s employment duties required heavy lifting or some related physical activity, the plaintiff would likely experience some difficulty or limitation and should be careful in the circumstances. In terms of a prognosis, Dr. Lipson’s advice to the plaintiff was based upon what the plaintiff was able to do prior to the accident, and not upon what the plaintiff may have intended to do going forward.

43Both medical experts seemed to find that with respect to the plaintiff’s upper back pain, there was a form of permanency to that injury. In Dr. Lipson’s words, there was “still something there”.

Analysis and Decision

44The defendants bear the legal onus of satisfying this Court that the plaintiff’s claim for general damages is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity provided for in Section 267.5 of the Act and the applicable regulations. That said, the evidentiary onus of satisfying that statutory threshold lies upon the plaintiff. In other words, it is the plaintiff’s onus to lead the necessary evidence from which this Court can conclude that the applicable threshold has been met.

45To begin, I am satisfied (and the defendants properly conceded) that the plaintiff’s continuing upper back problems meet the statutory requirement that his impairment is “permanent”. While the plaintiff has recovered from most of the injuries caused by the accident, there is sufficient medical evidence before this Court to conclude that the pain in his upper back has been continuous and is not expected to improve some five years post-accident.

46I will thus assess the nature of the plaintiff’s alleged serious impairment of an important physical, mental or psychological function in accordance with Section 4.2 of O. Reg. 461/96:

Substantial interference with the plaintiff’s ability to continue his regular or usual employment

47As summarized above, the plaintiff’s evidence was that at the time of the accident, he was an RCMP officer working in the Federal Enforcement department, and was responsible for, inter alia, assisting various agencies and the execution of search warrants and enforcement of legislation. He described his 2007 employment as a “desk job”.

48After the accident, the plaintiff did not miss any scheduled time from work, which was modified for his benefit to permit him to leave work early, if necessary, or refrain from doing any heavy lifting. The plaintiff testified that he was nevertheless able to move boxes, if required, by using a dolly.

49In describing his current position, and likely with a view to differentiating his current position with the ERT position he sought to obtain, the plaintiff stated that he currently still maintains a “desk job”. In other words, the nature of the plaintiff’s employment has not changed since the accident.

50While this is further confirmed by reason of the plaintiff’s base salary also remaining the same, counsel for the plaintiff relies upon the fact that the plaintiff’s overtime pay, and his ability to earn additional overtime pay, was adversely impacted by his injuries. The plaintiff gave evidence that he earned approximately $20,000.00 in the six months preceding the accident by performing voluntary overtime services. As a result of his injuries, the plaintiff submits that he can no longer perform voluntary overtime services, thus hindering his ability to avail himself of the overtime opportunities which were present before the accident.

51The plaintiff filed his income tax returns for the years 2008-2014 along with documentation evidencing the base salary earned by an RCMP constable for the years 2011-2014. There is no dispute that the plaintiff earned the full base salary for an RCMP constable during each of those years.

52RCMP overtime pay relates to an opportunity to earn additional income over and above the plaintiff’s regular or usual employment. The plaintiff’s overtime pay varied from year to year since the accident. While the plaintiff’s ability to earn additional income through voluntary overtime work may have been reduced, the plaintiff has still been able to earn overtime pay which forms a lesser component of his total income in any event. As stated above, the plaintiff is able to carry out essentially all of his employment duties and obligations.

53I therefore do not find that a decrease in overtime pay qualifies as a substantial interference with the plaintiff’s ability to continue his regular or usual employment.

Substantial interference with the plaintiff’s ability to continue training for a career in a field in which he was being trained before the accident

54The plaintiff submits that from 2007-2010, he was training for a potential career with the ERT, and his ability to continue training for that position has been substantially interfered with (if not completely ruined) as a result of the accident.

55The plaintiff was, at most, self-training for a potential position with the ERT. The evidence tendered at trial by the plaintiff, Burtch and Ktabi confirmed that the chances of being admitted to the ERT were slim as the ERT is a covert, elite operation. Any assessment of the plaintiff’s actual chances of being admitted to the ERT had the accident not occurred would be based upon inferences stacked upon inferences, and unfortunately amount to no more than pure conjecture.

56More importantly, in my view the language used in Section 4.2(1)(a)(ii) is clear and unambiguous in that an impairment must substantially interfere with a person’s ability to continue training for a career in a field in which the person was being trained before the incident (my emphasis). Aside from the plaintiff’s dedicated workout regimen, and his participation in the two-day training course in 2010, he simply was not being trained for a career in the ERT before the accident.

57While the plaintiff’s goal of joining the ERT is admirable, I do not find that he was being trained for a career in the ERT prior to the accident.

Substantial inference with most of the plaintiff’s usual activities of daily living considering his age

58Regrettably, the evidentiary record supporting the “narrative” of the plaintiff’s daily life, both before and after the accident, is lacking. There is no doubt that the plaintiff stressed his overall commitment to his workout and training routine in the years leading up to the accident. Unfortunately, the plaintiff did not lead much, if any, further evidence as to what his daily life was like before the accident other than working out five to seven times a week.

59The plaintiff did testify that just after the accident he was to be married, and the injuries suffered as a result of the accident did not delay or prevent the plaintiff from following through with his wedding plans. He and his wife now have two young children, but apart from his complaints about not being able to toss his infant in the air more than three times, there was very little evidence tendered by the plaintiff which could assist this Court in determining (a) his usual activities of daily living before the accident, and/or (b) his usual activities of daily living after the accident. It is not for this Court to make assumptions in this regard. As previously stated, the evidentiary onus rests with the plaintiff.

60The plaintiff testified that he was essentially able to perform his housekeeping duties, albeit with a need to, on occasion, pace himself or request his wife for some assistance. While there is no doubt that his workout regimen has been compromised since the accident, on the record filed before this Court, I am not able to find that this alone amounts to a substantial interference with most of his usual daily activities.

61Accordingly, I find that he plaintiff has failed to discharge his onus of proof under the Act and applicable regulations, and I grant the relief sought on the defendants’ motion. The plaintiff’s claims for non-pecuniary damages are therefore dismissed.

Costs

62If the parties cannot agree upon the issue of costs of this action, the defendants shall serve and file their written costs submissions totaling no more than four pages (including a Costs Outline) within ten business days of the release of this decision.

63The plaintiff shall thereafter serve and file responding costs submissions, also totaling no more than four pages including a Costs Outline, within ten business days of the receipt of the defendants’ costs submissions.

Diamond J.