CITATION: Labanowicz v. Fort Erie (Town), 2017 ONSC 630

COURT FILE NO.: CV-08-359836

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WANDA LABANOWICZ

Plaintiff

– and –

CORPORATION OF THE TOWN OF FORT ERIE

Defendant

Loretta P. Merritt and James A. Round, for the Plaintiff

Christine G. Carter and Justin Papazian, for the Defendant

HEARD: October 4-7, 11, 13, 14, 17-21, 24-26, 31, November 1, 2, 10, 14, 15, 2016

GANS J.

Introduction

[1] Ontario is blessed with tens of thousands of acres of parks and trails. These range from large tracts of Crown land located in the near and far north, to nature trails and parklands which course through or border municipalities in the more southern reaches of the Province. While the former are used by the more adventuresome for canoeing and tripping, the latter are frequented by all manner of citizenry from bikers, to walkers and parents (and grandparents) pushing baby carriages. This case involves a cyclist who took a tumble after coming in contact with an allegedly poorly marked ‘obstacle’ in the middle of a paved trail, ironically named the “Friendship Trail”. The matters in issue are governed by the Occupiers’ Liability Act (“Act”).[^1]

Background Facts

The accident and its immediate aftermath

[2] At about noon on a bright sunny day at the end of July 2006, Wanda Labanowicz (“Wanda”) and her friend Ted Wolinski (“Ted”) started out on their road bikes on the Niagara River Recreational Trail (“Niagara Trail”), which first runs along the western shore of the Niagara River before joining up with the Friendship Trail (“Trail”), which itself runs in an east-west direction from the Town of Fort Erie (“Town”) to Port Colborne. The Trail is a 16.6 kilometre multi-use bidirectional recreational path located within the Town. It is composed of paved asphalt, approximately 3 metres in width, and is built over a tree and flora-lined former railway spur.

[3] Wanda and Ted proceeded westbound along the Trail without incident, traveling at a constant speed past a series of road intersections located within the Town or the Regional Municipality of Niagara. They stopped for a rest two or three intersections past the intersection of the Trail with Cherry Hill Boulevard (“Cherry Hill”), having covered roughly 50-60 kilometres to the rest stop.

[4] After some 30 minutes, sometime between 3:00 and 4:00 p.m., they resumed their trip back to their point of origin in the City of Niagara Falls, with Ted riding about 200 metres ahead of Wanda. As she approached the Cherry Hill intersection, travelling in the centre of the path, Wanda slowed her pace, preparing to stop as the signage directed and listening for traffic along the gravel road which intersected the Trail.

[5] Suddenly, as best as Wanda recalls, the front wheel of her bicycle struck the housing or sleeve that usually contains a bollard, which is an approximately four foot tall wood post that is used to control access to the Trail by unauthorized motorized vehicles from the municipal streets that cross the Trail. She further recalls—which is about the extent of her recollection—looking down and seeing the metal sleeve just above the paved surface of the Trail. She then fell to her right, yelling as she cascaded to the ground.

[6] Thereafter, she has no recollection of Ted coming to her aid, the ambulance ride to the hospital, any treatment she received while at the hospital, or the ride back to her home in the GTA in the subsequent early morning hours. She has but a vague recollection of seeing a man in a uniform at the hospital, but was unable to process—then and now—what he was doing and where she was, exactly.

[7] Ted testified that when he was about 200-300 metres east of the Cherry Hill intersection, he turned to check on Wanda. When he realized she wasn’t in view, he doubled back to the portion of the Trail immediately west of the Cherry Hill intersection. He found her face down on the surface of the Trail almost on top of the empty bollard housing. He thereupon helped her to her feet. He further testified that she appeared to be in a ‘foggy’ state, that she had a bump on her head, scratches to her forehead and bruising and scratches on at least one elbow, leg and knee. He described her as being in a state of great confusion. She was not responsive to his questions, was incoherent and kept repeating herself.

[8] Since there was no one around to assist them, he was compelled to ‘drag’ her, and the bikes along the Trail through several intersections until he came upon a restaurant where he called the EMS. After the paramedics stabilized Wanda, and transported her to a local hospital, Ted rode his bike back to his car at the entrance to the Niagara Trail. After a false start in trying to locate Wanda, Ted ultimately found her later that evening at a larger medical facility in Niagara Falls.

[9] Ted observed Wanda to be in an agitated and confused state with very little memory of what had happened earlier that afternoon. She remained in that condition until her release around 12:30 a.m. by the ER doctor who wanted to keep her overnight for observation. Ted drove her home and observed that she was still confused, disoriented and continued to speak nonsensically. He remained with her that night, waking her intermittently as instructed by the ER doctor because she had been diagnosed with a concussion, all of which activity seemed to agitate her even further.

Impact of the accident on the plaintiff’s job and personality

[10] I preface my review of the evidence detailing Wanda’s condition in the four years after the accident with observations of the testimony of the plaintiff, Ted and two of Wanda’s former colleagues at the Office of the Worker Advisor (“OWA”) of the provincial government, Patricia Martinez and Daphne Green.[^2]

[11] I heard Wanda’s testimony for several days at the opening of trial before I was beset with and had occasion to root through the five binders of documents initially filed by counsel, including thick briefs of medical and employment records.[^3] I found her evidence to be scattered, unfocused and repetitive, but it came back into focus with the evidence of the other lay witnesses, whose evidence was supported by the above mentioned records.

[12] I found all three lay witnesses to be very credible, straightforward and understated. Ted not only provided me with a reasonable description of Wanda’s life pre-accident, but was able to articulate the change to her character post-accident which sadly contributed to a deterioration of their relationship. I also found Ted’s observations of the Trail at the time of, and some three weeks after, the accident to be very helpful. I am satisfied that as a professional photographer of long standing, Ted had an attention to detail which was not contradicted by any of the defendant’s witnesses.

[13] Ms. Green and Ms. Martinez were equally able to assist in painting a pre- and post-accident picture of Wanda, both in terms of her behavioural changes, which took place almost immediately after her return to work a few weeks after the accident, and her ability to perform—or not, as the case was—all the functions of her job in whole or in part and simultaneously.

[14] It is interesting to observe that neither woman has maintained a relationship with the plaintiff over the last several years since: (a) Ms. Green retired in 2008 and moved to Sudbury; and (b) Ms. Martinez, who was a reluctant witness to begin with, was transferred out of the OWA in August 2009 and did not return to that agency until after Wanda’s position was eliminated. I think it is fair to say that each of the last two witnesses provided me with their best recollection of events and Wanda’s behaviour and capabilities without any unnecessary gloss. I accept their evidence unqualifiedly.

[15] The evidence of Wanda’s post-accident behaviour and capabilities was startling and in marked contrast to her interpersonal skills and work product pre-accident. As I indicated, I not only accept the evidence of the lay witnesses as generally credible and reliable, but find that much of the evidence is borne out by the employment record, an exhibit that runs to several hundred pages.

[16] While Wanda had certain pre-accident health issues, which I will reference later in these reasons, none of them apparently affected her work product and work effort. Indeed, none of these issues was made known to Ms. Green, who was her manager and immediate day-to-day supervisor for several years prior to and subsequent to the accident, but for the fact that she had difficulty falling asleep and preferred to start her day around 10 a.m. No one, it is fair to say, was aware that she had bulimia issues as a young woman that repeated themselves from time to time in the years immediately pre-accident or that she suffered from anxiety.

[17] It is safe to conclude that Ms. Green, in particular, found Wanda to be an exemplary employee pre-accident, one who was capable of meeting the demands of the job, was always affable and co-operative. The commendations that dot her employment file during this period underscore this assessment.

[18] This all changed almost immediately post-accident. She was described, and self-described, as unfocused and lacking in concentration. She was forgetful, easily distracted, and could not prioritize or otherwise manage her workload. Her desk was chaotic and the thought of multi-tasking, which was part of her skillset pre-accident, was completely absent from her daily routine. This behaviour not only manifested at the OWA, but also permeated her life at home where she soon became incapable of performing routine housekeeping and home maintenance tasks. Simply put, Ted testified that her home was a mess and a clutter of boxes and other detritus.

[19] Physically, in the early days, Wanda experienced bouts of dizziness and some blurred vision. She was continuously fatigued and lacked energy. Her sleep difficulties, which I find were moderate pre-accident, included some anxiety and depressive episodes and an inability to fall asleep easily. The last mentioned condition, I was told, had been diagnosed in 1999 as “a delayed sleep phase disorder”.[^4] I would observe that her sleep issues were markedly different post-accident in that she could no longer fall asleep or remain asleep or at least experience a restful or rejuvenating sleep.

[20] She was now missing work frequently and was continuously late. She requested a formal workplace accommodation to permit her to work part days, and at ‘odd’ hours, to assist with her sleep deprivation. She was often unable to work the core hours required of her job, namely from 10 a.m. - 4 p.m., so that she could receive inquiries from OWA staff in the field.

[21] In order to maintain her salary level, she was compelled to utilize her vacation and sick credits as a contra to the hours and days not worked. Ms. Green was now compelled to document Wanda’s fall in productivity and instances of poor performance, a phenomenon which was completely new for both Ms. Green and Wanda. Furthermore, Ms. Green was forced to distribute part of Wanda’s job tasks to others, including Ms. Martinez, just to maintain the OWA case management system, the design and operation of which had previously fallen under Wanda’s absolute domain.

[22] Overall and at 3,000 feet, from a personality point of view, Ms. Green and Ms. Martinez found Wanda to be at once sad, nervous and irritable, characteristics which had not been attributed to her pre-accident.

[23] It is important to note, as well, that neither Ms. Green nor Ms. Martinez thought that Wanda was exaggerating or faking the difficulties and traits described above. Indeed, Ms. Green was of the view that Wanda was attempting to minimize her difficulties and was hopeful that she would soon recover to her pre-accident level of performance and deportment.

[24] This turnaround was not accomplished while Ms. Green was her manager, notwithstanding Ms. Green’s patience and attempts at accommodation. Indeed, I hasten to observe that I am satisfied on the evidence, that the same issues continued right through to the end of Wanda’s tenure with the OWA in the Fall of 2012.

Medical Evidence

[25] The medical evidence filed in this case was voluminous and extended far beyond the expert testimony I heard.[^5] At its simplest, I was persuaded that Wanda suffered from some health-related issues before the accident which worsened after the accident.

[26] Leaving aside her childhood relationship with her seemingly overbearing father, which I find was of modest moment to the matters in issue in this lawsuit,[^6] there is little doubt that Wanda had some previous sleep and anxiety related issues, which appear more than occasionally in her pre-accident medical history. For example, she was hospitalized at the Clark Institute in the mid-1980s for bulimia, if not anorexia, after her unsuccessful attempts at matriculating at the University of Toronto. She took Prozac and other such drugs to treat these conditions. However, in the final analysis, these disorders were in check and do not appear to bear on the issues in this suit.

[27] As previously noted, she also suffered, pre-accident, from delayed sleep syndrome, which was a source of fatigue. But I am satisfied from the reports of the sleep disorder clinic to which she was sent in 1999, that her condition, even associated with some depressive symptoms, did not affect her performance at work.[^7] Furthermore, there is nothing in the medical reports pre-accident which would suggest that she was experiencing any cognitive difficulties or deficit of the nature and kind described by Ms. Green and Ms. Martinez post-accident. Indeed, as I indicated, the employment records are all to the contrary for this period.

[28] The plaintiff saw all manner of doctors after the accident and with some frequency. She moved from the doctors at the Family Practice Clinic at Women’s College Hospital to the Acquired Brain Injury Clinic at the Toronto Rehabilitation Institute (“TRI”) and then finally to the Head Injury Clinic at St. Michael’s Hospital (“HIC”) in late 2009, with referrals and reports back and forth. These attendances appear to have a connection to the symptomology she was demonstrating at work, described above, and each referenced or was seemingly causally related to the subject accident.

[29] As early—or late—as January 2009, one doctor at the Sports Medicine Clinic at Women’s College[^8] noted in a referral to the TRI that she was suffering from “post-concussion syndrome”, a condition which ultimately formed the touchstone for the subject action, and one which after several days of trial, the defendant finally acknowledged was the condition from which the plaintiff suffered.[^9]

[30] After much back and forth, it was ultimately determined in late 2009 or early 2010, for reasons that were never made clear to me, that the multi-disciplinary services at HIC would actively treat or facilitate the treatment of Wanda’s then presenting conditions.

[31] In January 2010, she was placed under the care of Dr. Kiloran Distin, a psychiatrist associated with HIC, who focused, in part, on patients who suffered from acquired brain injuries and the aftermath of same. Dr. Distin saw Wanda at least 12 times over the next two years. She was intimately involved in liaising with Wanda’s employer during this period since she was required to complete the government mandated Employee Health Information Forms or medical status reports that were needed by the OWA to support the ongoing accommodations that were being provided to the plaintiff.

[32] On a parallel course, and in late 2010, Wanda was sent by the OWA for an independent medical examination (IME). As best as I could determine without hearing directly from anyone associated with her workplace during the relevant time, namely late 2010, the OWA was at its collective wits’ end in not only accommodating her then manifested cognitive difficulties, but in trying to determine what position she could or should occupy at the agency in the future.[^10]

[33] I do not intend to parse Dr. Distin’s clinical notes and the other medical evidence and reports generated in the period 2010 – 2012 at this stage of the reasons for judgment. Suffice it to say that it was Dr. Distin’s opinion, given not only as Wanda’s ‘treating’ psychiatrist, but, as one of her medical experts, that she suffered from post-concussion syndrome, a condition about which I will have more to say below. The defendant did not call any evidence to dispute this opinion.[^11]

Declaration of Surplus

[34] Wanda’s difficulties persisted, notwithstanding all the medical attention she was receiving. I am satisfied on the evidence that her cognitive issues continued to impact her job performance markedly. Finally, in the Spring of 2012, the provincial government’s Labour and Transportation I & IT Cluster (“IT Cluster”), into which administrative grouping she then fell, served notice that her position as an IT and Electronic Service Delivery Specialist (“IT specialist”) for the OWA would be declared surplus effective mid-October 2012.[^12]

[35] She was told that she could exit with pay in lieu of notice; seek redeployment in the public service to a new position; or take ‘early’ retirement with conditions. She elected to seek redeployment, which included the ability to displace another employee in a comparable position in accordance with the terms of the OPSEU collective agreement.

[36] In mid-September, she was advised by the IT Cluster that her request for redeployment and displacement had been rejected since she did not, presumably, meet the qualifications for any jobs that were then open and available. She grieved through an OPSEU sponsored and collective agreement sanctioned process. This grievance was settled by way of an agreement entered into in March 2015 (“Grievance Settlement”) under which she was paid $10,000 by way of ‘general damages’.

[37] She has not been employed in any full-time or part-time capacity since she was formally ‘surplussed’ in October 2012.

Issues

Liability of the defendant

[38] The Town admits that the accident occurred when Wanda’s bicycle came in contact with the empty bollard bracket. One of the myriad issues is whether the Town is liable for this accident.

[39] It is not disputed that the bicycle accident took place on a recreational trail. It is also not disputed that any liability of the Town is to be governed by the provisions of the Act, the relevant portions of which are as follows:

Occupier’s duty

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

Idem

(2) The duty of care provided for in subsection (1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

Idem

(3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. R.S.O. 1990, c. O.2, s. 3.

Risks willingly assumed

4. (1) The duty of care provided for in subsection 3 (1) does not apply in respect of risks willingly assumed by the person who enters on the premises, but in that case the occupier owes a duty to the person to not create a danger with the deliberate intent of doing harm or damage to the person or his or her property and to not act with reckless disregard of the presence of the person or his or her property.

Trespass and permitted recreational activity

(3) A person who enters premises described in subsection (4) shall be deemed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1),

(c) where the entry is for the purpose of a recreational activity and,

(i) no fee is paid for the entry or activity of the person, other than a benefit or payment received from a government or government agency or a non-profit recreation club or association, and

Premises referred to in subs. (3)

(4) The premises referred to in subsection (3) are,

(f) recreational trails reasonably marked by notice as such;[^13]

[40] It is the defendant’s first argument that the term “reckless disregard” requires the purposeful or deliberate acts of the occupier; i.e. that the occupier deliberately intended to do harm or damage to the person or property of the user of the premises.

[41] Respectfully, I do not accept this interpretation and believe that the matter was well settled, first in the decision of Griffiths J.A. in Cormack v. Mara (Township)[^14] and more recently in the decision of Rouleau J.A. in Schneider v. St. Clair Region Conservation Authority.[^15]

[42] In the former, Griffiths J.A. made the following observation at p. 724 which leaves no doubt as to the intention of the legislature:

[T]he legislature has very significantly limited the duty of care owed by an occupier of premises to a snowmobiler who is deemed to accept all the risks of the premises. The phrase “act with reckless disregard of the presence” of the snowmobiler means doing or omitting to do something which he or she should recognize as likely to cause damage or injury to the snowmobiler present on his or her premises, not caring whether such damage or injury results.

[43] Rouleau J. A. amplified upon the above statement in the following excerpt at para. 42:

[A]cting with reckless disregard of the presence of a person means ‘doing or omitting to do something which he or she should recognize as likely to cause damage or injury to [the person] present on his or her premises, not caring whether such damage or injury results.’

[44] The defendant then argued that I am obliged to pose the following question in considering whether or not the Town showed a reckless disregard for the safety of the users of the Trail: in light of the fact that the plaintiff assumed all risks of use of the recreational trail under the Act, was there an omission on the part of the Town that rises to the level of reckless disregard which caused the accident? Further, the Town argues that because the plaintiff has a limited or no recollection of the events before and following her coming into contact with the bollard housing, there is no evidence that the events about which she complains caused the accident. As set out more fully below, I do not accept the defendant’s argument in this regard.

Background facts and analysis

[45] The Town built the Trail in stages commencing in 1999. The Town engaged a consultant to research and design road crossing guidelines partly because of concerns expressed by one of its senior staffers and by members of the Friendship Trail Advisory Committee (“Advisory Committee”) about cyclist safety and the use of bollards at intersections of the Trail and local roads. These guidelines were intended for the existing portion of the Trail and for its planned westward expansion to the Town of Port Colborne, including the construction of the Trail east and west of the Cherry Hill intersection (the “O’Connor Report”).[^16]

[46] At the time of the preparation and completion of the O’Connor Report, the Town’s current Manager of Parks and Open Spaces, Signe Hansen,[^17] was then employed as its Waterfront and Special Projects Coordinator. Ms. Hansen possessed not only a B.Sc. in environmental studies but a degree in landscape architecture. She worked with the consultant, and co-ordinated the presentation and approval of the O’Connor Report recommendations for the proposed remediation of the Trail at the already existing intersections and in respect of its expansion. She attended meetings with the Advisory Committee and the Traffic Coordinating Committee in the Fall of 2003 where the O’Connor Report was reviewed and adopted, with but a modest modification not relevant to the matters at issue in this action.[^18]

[47] Ms. Hansen also prepared a report to Council where the “Friendship Trail Safety Improvements” were reviewed together with a construction budget proposal and analysis. The O’Connor Report was attached as an appendix to her report to Council. In this document, Ms. Hansen made the following observation in respect of the budget tabled for approval:

There will be no additional trail maintenance required as a result of these improvements.

It is necessary to implement the trail safety measures to ensure pedestrian safety and to reduce exposure to liability from potential accidents.[^19]

[48] The O’Connor Report set out a series of recommendations to retrofit intersections that had already been constructed and made further recommendations for the to-be-built intersections, including the intersection at Cherry Hill. In respect of the remedial work to the pre-existing intersections, the O’Connor Report recommended that:

• Existing bollards were to be painted with a bright colour such as safety yellow;

• A dashed line was to be painted on the Trail surface at a distance of 40m from the intersecting road’s edge;

• Diamonds were to be painted around existing bollards;

• Additional reflective bands were to be added to the existing bollards.[^20]

[49] The O’Connor Report did not recommend the installation of bollards at new intersections unless there was a demonstrated need for their use. Instead, it was recommended that, in addition to various Trail markings, a raised median be installed from the intersecting roadway east and west of the intersection along the Trail to prevent access by unauthorized vehicles.

[50] When the construction was completed in the years following the November 2003 Council meeting, the Town did not paint the bollards or use reflective paint, but did paint diamonds around 18 of the already existing bollards at 9 intersections.[^21]

[51] In 2005, the balance of the Trail was completed. The Town installed raised medians at some of the new intersections where there was sufficient width of trail, and installed bollards elsewhere to the same specifications as those constructed prior to the O’Connor Report. Put otherwise, it did not paint diamonds on the Trail around 3 sets of newly installed bollards, including the sets installed at the Cherry Hill location.

[52] No explanation was proffered by the Town for not painting diamonds around these bollard locations, in distinction to those painted around 18 of the already existing bollards, notwithstanding the fact that the cost of painting these diamonds would not have been excessive. Indeed, as best as I can determine, the cost of the painting had been included in the approved budget. The explanation I heard from Ms. Hansen was that while the initial painting was not expensive, the maintenance of these markings into the future might be a problem.

[53] I would hasten to observe that the photos filed as part of Exhibit 1, which show a multitude of other painted Trail markings delineating the bike paths, do not readily support that rationale, if it is one. But her response begs a least one question: why did they paint diamonds around 18 of the existing bollards at 9 intersections and not around the 6 bollards at the 3 new intersections? The same maintenance issue, if there was one, would presumably exist in all 12 locales. The Town offered no evidence to deal with this seeming paradox.

[54] I did not hear any explanation about why the Town did not entertain the O’Connor Report recommendation to paint the bollards or to add further reflective material to their exterior, unless, again, it was concerned about some form of in futuro maintenance issue.

[55] However, the pictures taken by Ted three weeks after the accident, in contrast to the ones taken in 2015 by Thomas Smahel, the plaintiff’s Human Factors expert, indicate that the Town has since added some reflective material and paint to the bollards and even to the bollard housing at Cherry Hill. I am not sure that this activity doesn’t fall into the category of “too little, too late”, particularly when one has regard to the evidence of not only Mr. Smahel but also of Ms. Hansen on the question of undemarcated bollard housing.

[56] Furthermore, the Cherry Hill intersection bollard went missing on the Friday before the accident. As best as I understand the ‘hearsay evidence’ that was tendered by the Town, at some point on that day, a maintenance crew conducting inspections discovered that the bollard west of Cherry Hill had been removed. I was told, again through hearsay evidence, that crew members reinstalled the bollard ‘shortly’ after discovering it in the ditch to the side of the housing. I was not provided with any direct evidence on how it was secured in place, if at all.

[57] I was told by Ms. Hansen that the engineering diagram found at Exhibit 1 was identical in all material respects to the detail of the bollard and housing used by the Town.[^22] I was also told that the reason the housing extends above grade by roughly 4 inches is to permit it to be secured in place by a rod and nut mechanism, much like the one that was filed as Exhibit 31. The diagram shows a “galvanized threaded L-bolt” and also indicates that it was to be drilled out at a particular diameter to ‘accept’ a padlock, which was to be provided by the “Owner”.

[58] I heard from Ms. Hansen and the maintenance manager, Cory Fitzgerald, that padlocks were not used as they were difficult to remove in winter—the accident occurred on July 31st—and that emergency or maintenance vehicles would somehow be denied access to the Trail if the bollard were locked in place.

[59] In the photos taken by Ted shortly after the accident, which were not intended to be a representative sampling of the intersections, the L-bolt was not in place at the Bernard intersection in distinction to Crescent Street where it was not only installed but secured by a Master lock. Furthermore, the photos taken by the plaintiff’s engineering expert, Stuart Anderson, in June 2013, show a lock in place at the subject bollard. I was not provided with any explanation about why some bollards were locked and others were not.

[60] Respectfully, I am persuaded that the Town’s system of securing the bollard was haphazard, particularly when it knew that bollards could easily go missing and were subject to vandalism.

[61] The O’Connor Report did not contemplate the fact that bollards could be improperly removed when it noted that their use should be limited as they created a potential hazard. Indeed, Ms. Hansen conceded, fairly, in cross-examination that a missing bollard created a greater danger to cyclists than an unpainted bollard since the housing was less conspicuous. She agreed that the empty housing in distinction to an in-place bollard was simply harder to see, a conclusion which I dare say could be drawn by any weekend cyclist let alone by someone with a degree in landscape architecture, as she possesses, or in environmental architecture as Mr. Smahel holds. Further, Ted testified that the colour of the housing was hardly distinguishable from the surrounding asphalt, a fact which I suggest is well within the realm of human experience.

[62] I agree with counsel for the plaintiff that the existence of an unpainted, unlocked and relatively easily removable bollard which exposes a housing or saddle above grade that has limited, if any, conspicuity amounts to reckless disregard to the safety of the persons using the Trail. In my opinion, that conclusion is buttressed by the Town’s decision not to paint diamonds around the Cherry Hill bollards, in distinction to such markings used elsewhere, and not to spray paint the housing itself, an action which was undertaken sometime thereafter, all of which omissions fly in the face of the report of its consultants.[^23]

[63] To repeat and paraphrase Ms. Hansen’s cautionary note to Council found in her November 2003 report, the above actions should have been undertaken at very little marginal cost, if any, “to reduce exposure to liability from potential accidents.”

Causation and contributory negligence

[64] The parties agree that the plaintiff must establish that but for the negligence—read reckless disregard—of the Town, her injuries would not have occurred. It is only at that stage that I am to consider whether Wanda contributed in any causative fashion to those injuries.[^24]

[65] To repeat, the defendant acknowledged that the accident occurred because the plaintiff’s bike came in contact with the empty bollard housing. I have further found this incident occurred as a result of the Town’s reckless disregard to the presence of cyclists using the Trail.

[66] The defendant argued that the accident would not have occurred but for certain other events, such as Ted failing to stop and call the Town to advise it about the missing bollard when he and Wanda first passed the western part of the Trail at Cherry Hill. Additionally, the defendant argued that the plaintiff was not keeping a proper lookout as she approached the Cherry Hill intersection and finally that she was not wearing a helmet.

[67] Respectfully, if any of the above-listed matters have any bearing on the issues, they speak to whether or not the plaintiff’s own negligence may have been a cause of the accident or contributed to the severity of the injuries about which she now complains. These concepts, which speak to the principles of contributory negligence, have been better articulated by Rosenberg J.A. in Zsoldos v. Canadian Pacific Railway Co., where he expressed the concepts as follows:

Contributory negligence can arise in three ways. First, the plaintiff's negligence may have been a cause of the accident in the sense that his acts or omissions contributed to the sequence of events leading to the accident. Second, although the plaintiff's negligence is not a cause of the accident, the plaintiff has put himself in a position of foreseeable harm. Third, as in seatbelt cases, the plaintiff may fail to take precautionary measures in the face of foreseeable danger. See P.H. Osborne, The Law of Torts, 3rd ed. (Toronto: Irwin Law, 2007), at pp. 104-5 and Lewis N. Klar, Tort Law, 3rd ed. (Toronto: Thomson Carswell, 2003), at p. 457.

That, however, does not end the inquiry. The issue is whether the error had any effect on the verdict. A plaintiff will be found contributorily negligent only where his or her negligence caused the accident or contributed to the severity of his injury. It is not necessary that the plaintiff's negligence be the only cause, but it must have been a proximate or effective cause. Thus, if the plaintiff was negligent but that negligence did not in fact cause or contribute to the causation of the accident or damage to the plaintiff it is not contributorily negligent. The burden was on the appellants to prove the necessary causation: See G.H.L. Fridman, The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002), at p. 473. The basic test for determining causation is the "but for" test: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, [2007] S.C.J. No. 7, at para. 21. There is no suggestion that the "but for" test could not be applied in this case.[^25]

[68] Before dealing with each of the allegations of contributory negligence in series, I would hasten to observe that I do not accept the defendant’s position that because the plaintiff had willingly assumed all risks of use of a recreational Trail under the Act, the defendant has no obligation to establish on the evidence a causal link between the plaintiff’s action and the injury she sustained. The defendant argues this proposition arises from the notion that for a finding of contributory negligence it need not establish that the plaintiff owed any duty of care to herself. It only needs to establish that there was objectively foreseeable harm to oneself resulting from the plaintiff’s action or omission.[^26]

[69] While I agree with the last mentioned proposition, I fail to see how that statement modifies the above quoted portion of Zsoldos. It is well settled law that if a defendant asserts contributory negligence as part of its defence, it has the evidentiary burden in respect of that issue.[^27]

Ted’s involvement

[70] The defendant argues that Ted owed the plaintiff an affirmative duty to telephone the Town when he first came upon the missing bollard on his and Wanda’s initial pass by the west side of the Cherry Hill intersection. Assuming Ted even had cell service, which he testified he didn’t, his ‘neglect’ in not calling does not give rise to any claim in negligence for his actions. First, he was never made a third party to the action, which, in my view, presents a procedural bar to such a claim. Secondly, the absence of such a claim-over speaks volumes as to whether the defendant thought that this was a reasonable proposition in fact and in law.

[71] In any event, the defendant has not led any evidence to suggest that the Town had a system in place, other than the posting of phone numbers on sign boards along the Trail, to ensure that any such call would be answered in a timely fashion and not get caught up in ‘a voice-mail’ tangle and, further, that someone could be dispatched to remedy the issue with promptitude. Respectfully, the posting of a phone number is not in and of itself sufficient to overcome this evidential burden.

Proper lookout

[72] The defendant also argued that the plaintiff was the author of her own misfortune. Specifically, the defendant said that the plaintiff had been “warned” by Ted about the missing bollard some 30-60 minutes before the accident and could have avoided contact with the housing had she been paying proper attention to her surroundings.

[73] However, the defendant has not established on a balance of probabilities that Wanda could have avoided running over the housing, assuming without deciding that she had even heard Ted’s alert about the missing bollard. I base this view on the uncontradicted evidence of the plaintiff’s human factors expert, Thomas Smahel, about the ergonomic circumstances of the bollard, including its luminosity, conspicuity and Wanda’s reaction time. Put otherwise, I am not persuaded on the evidence that a reasonably alert cyclist, acting reasonably, could have avoided coming into contact with the bollard housing, particularly since, as Ted testified, the housing almost blended into the asphalt.

[74] Although the Town’s traffic engineer, Hart Solomon, is a cyclist in his own right, he does not have the training, work experience and education to offer an opinion on some of the human factor issues to which Mr. Smahel directed his testimony. In any event, I preferred the evidence of Mr. Smahel to that of Mr. Solomon, the latter of who I found to be more of an advocate than an independent expert.

[75] Factually, I am not surprised that Wanda was not looking down at the pavement of the Trail just west of the intersection at or close to the moment of impact. Indeed, she was prompted by the Town’s placement of signage of an upcoming intersection to look ahead to the area of the intersection, pay attention to oncoming traffic and to bring her bicycle to a stop in a timely fashion, all of which cues I find would have caused her to look into the distance above the height of a bollard had it been in place. She would not, as Mr. Smahel testified, have a missing bollard in the front of her mind, even assuming she had heard and remembered Ted’s warning from roughly 40 minutes earlier. Nor would she have had a reasonable expectation, after passing through six other intersections on her westbound and return trip, that a bollard might be missing.

[76] In any event, I accept Mr. Smahel’s evidence that mathematically, Wanda would not have had sufficient time to avoid the collision having regard to the factors of perception, reaction time and sufficiency of stopping distance. In passing, I would note that even on Mr. Solomon’s imprecise anecdotal evidence about his own experience of riding the Trail and looking out for the bracket, he himself would not have seen the area of the empty bollard until he was about 10-12 metres away, a distance at which he might not have avoided a collision.

[77] Further, I do not find the fact that Wanda rode down the middle of the Trail to be of any moment, Mr. Solomon’s personal riding preferences notwithstanding. In my opinion, as previously indicated, had the Cherry Hill intersection been painted with diamonds only, with or without directional markings, as is seen from the photographs at the Bernard Ave. and Crescent Rd. intersections, then the defendant’s theory of “proper lookout” might have been mounted with different force.[^28]

[78] At the risk of repeating myself, in order to have held otherwise on this issue, I am of the view that the defendant should have led its own human factors evidence, and not relied on the evidence of its traffic engineer who had but a passing knowledge of some of these matters upon which he sought to opine.

Helmet

[79] The lack of expert evidence on the last issue applies equally to the fact that the defendant did not adduce any biomechanical evidence to allow me to conclude that the plaintiff’s lack of a helmet, while not causing the accident per se, had any impact on the severity of the injury she suffered. While viscerally, I would have thought that the lack of a helmet worn properly would be relevant to the matters in issue, I was not provided with any admissible evidence on the issue. Furthermore, the principle of judicial notice cannot be applied to the facts of the instant case.

[80] The last comment leads to another issue to which I should have been alive when it was first put in motion. In her cross-examination of Dr. Paul Duhamel, the plaintiff’s clinical neuropsychologist, counsel for the defendant asked Dr. Duhamel if he was “familiar with the literature that suggests that bicycle helmets prevent up to 88 percent of brain injuries”.[^29] Dr. Duhamel’s response to the question was equivocal at best. But when asked by plaintiff’s counsel on redirect if he was aware of the study to which reference was made without any specificity, he responded that he had “no idea” of the source.

[81] This exchange raises two issues that I should have twigged to right from the get go. First, I was directed to an excerpt from Sopinka, Lederman and Bryant’s The Law of Evidence in Canada which makes it clear that a proper foundation has to be established when one seeks to have a witness adopt a proposition from ‘authoritative’ literature.[^30]

[82] The Law of Evidence in Canada further explained the process required to establish this foundation.[^31] Specifically, the survey or text upon which reliance is placed must first be identified in full and be put to the witness as ‘authoritative’. If the witness accepts the reference as such, then the questioning can continue. On the other hand, if the witness has no knowledge of the source or takes issue with its suggested authoritative value, then the inquiry should be terminated as the court cannot then benefit from rank hearsay evidence. This is precisely how the exchange ultimately unfolded, after redirect, which renders any response from Dr. Duhamel about the study of no evidential value.

[83] Secondly, even if, as the defendant’s counsel argued, she obtained a reasonable admission from Dr. Duhamel on the purported statistic, the Supreme Court has recently sounded a cautionary note about the reliance on such data:

In my view, statistical evidence of this sort should be approached with some caution. Statistical generalizations are not determinative in particular cases. An example from legal theory—L. Jonathan Cohen's well-known gatecrasher paradox—illustrates the risk of reliance on pure statistical evidence. In a case where it is established that only 499 of 1,000 rodeo spectators paid for admission, and where there is no evidence available of payment or non-payment, it would be unjust to rely on the 50.1 percent probability that a randomly selected attendee is a gatecrasher in order to hold him or her liable for non-payment: The Probable and the Provable (1977), at p. 75. Even if a higher probability is available that is more closely tailored to the generic circumstances of the particular rodeo attendee—for example, by age or gender—there is still a risk of injustice where the person nevertheless falls into the minority for whom the generalization does not hold: Cohen, at p. 78. Such a statistic alone does not establish on a balance of probabilities that any specific attendee is a gatecrasher:

Regardless of what rule governs the required quantum or preponderance of proof, naked statistics, which are merely reports of accidental groupings, do not count at all as proof of what actually happened on a particular occasion. To determine what actually happened—including how it happened and who did it—we must match particularistic evidence from the particular occasion against possibly applicable causal generalizations ....

The problem is not, as some have supposed, that it ordinarily is improper to rely solely on naked statistics. Rather, the problem is that naked statistics are not probative at all on the issues of what actually happened, how, and by whom. [Emphasis in original; footnote omitted.]

(R. W. Wright, “Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts” (1988), 73 Iowa L. Rev. 1001, at pp. 1056-57.)[^32]

[84] In all the circumstances, I believe I would be falling into error if I accepted the bald assertion put forward by defendant’s counsel as authoritative in any respect.

[85] Finally, I am not persuaded on the evidence that the plaintiff would have fallen into the 88% group, postulated by defendant’s counsel, as opposed to the remainder of those who would not suffer a brain injury. The evidence of the actual injury she sustained as recorded in the ER records is inconclusive at best.

[86] On balance, I am not persuaded the defendant has discharged the evidential burden on any of the issues set out above. I therefore hold the defendant 100% responsible for the accident.

Damages

Preliminary issue

[87] Mercifully, with the assistance of D. Wilson J., the parties settled the general damages claim, special damages and an amount which I was told was in respect of a claim for ‘housekeeping’ to the date of trial, the details of which have not been divulged to me.[^33]

[88] Before turning to the equally difficult notion of damages, which are mainly limited to an income loss claim and whether but for the ‘negligence’ of the defendant, the damages allegedly suffered were caused by the accident, there is one preliminary issue with which I must deal.

[89] As part of its ‘scorched earth’ defence, where everything seemed to be in issue, counsel for the defendant took the position that I was precluded at law from considering an income loss claim since it should have been advanced by the plaintiff in the grievance proceeding commenced after she was declared surplus.

[90] It was the Town’s position that I was being called upon to decide an issue that was properly the subject matter of the grievance filed and settled. Hence, my jurisdiction to embark upon an income loss claim was therefore ousted.[^34] Alternatively, the defendant argued that to entertain a lost income claim amounted to an abuse of process over which I should exercise my discretion to bar it from proceeding to final judgment.[^35]

[91] In the first place, I am not persuaded that the cases and the section of the Labour Relations Act to which my attention was directed in support of this argument are applicable to the matters in issue. They generally speak to employment-related grievances where an employee who is a member of a union is bound by a collective agreement or at law to submit disputes between the employee and the employer to arbitration. The defendant-referenced cases do not speak to a situation where an individual sustains an injury as a result of the conduct of a tortfeasor and seeks compensation for lost income allegedly causally connected to the predicate tort.

[92] Secondly, I am also not persuaded that this is a case where the principles of abuse of process should be applied. The McIntyre case to which my attention was directed is so markedly different to the matters now before me as to render its applicability beyond oblique.[^36]

[93] The defendant modified its initial tact on the jurisdictional issue, presumably after hearing my preliminary views on the law to which I was directed and from the questions I posed to counsel in an email exchange before final argument. In that respect, the Town limited its argument on the applicability of exclusive jurisdiction to a situation where I was called upon to determine and did decide that the plaintiff lost her position at the OWA because of her post-accident disabilities which were causally connected to the accident.

[94] While I am not persuaded that the defendant’s argument is improved if surplussing were still in issue, plaintiff’s counsel deftly side-stepped the matter in final argument by stating that she was accepting as a given the fact that Wanda had been ‘properly’ surplussed.[^37] The claim for damages was then reduced to one where the plaintiff argued that she was not competitively employable as a result of the injuries sustained. Therefore, so the argument goes, she was entitled to lost income to trial and future income to the moment of her presumed retirement. Presupposed in this claim is plaintiff’s counsel’s assertion that she has established the necessary causal connection between the accident and the injuries about which the plaintiff complains.

[95] The defendant argues the following: (1) that causation between the accident and the current deficits has not been established; (2) that on the evidence, particularly that of its expert, Dr. Bruce McGoveran, the plaintiff is capable of obtaining similar alternative employment to that which she enjoyed at the time she was declared surplus.

[96] There is a third issue that I am obliged to rule on, namely the value of the income claim and whether there should be any reduction of this claim as a result of certain deductions, which I will discuss further. Suffice it to say that even the claim for damages is layered with myriad issues.

Lost income—causation

[97] It is the defendant’s first argument that the symptoms and deficits about which the plaintiff complains are basically the same matters from which she suffered pre-accident. Put otherwise, the defendant argues that the plaintiff had sleep issues, was anxious, modestly depressive and was taking medication for some of these ailments even before the accident. In this respect, while conceding that the plaintiff does not fall into the category of a ‘crumbling skull’, the Town’s counsel would not acknowledge, for obvious liability reasons, that Wanda was a ‘thin-skulled’ plaintiff.[^38]

[98] The plaintiff approached the causation issue from several angles: first, plaintiff’s counsel argued that the symptoms from which Wanda suffers are so markedly different, if not intensified, from those which she experienced pre-accident that logically they can only be related to the accident; alternatively, if some of the symptomology existed pre-accident, Wanda’s condition has been aggravated by the accident, for which the Town is responsible at law.

[99] As previously discussed, I am satisfied from the testimony of the lay witnesses, and from a review of the employment records that the symptoms and medical condition with which Wanda presented almost immediately post-accident were markedly different from those which manifested themselves pre-accident.

[100] First and foremost, there is no evidence that she suffered from any cognitive deficits pre-accident. Secondly, while Dr. Distin had a working diagnosis as early as March 2010 that Wanda was suffering from an adjustment disorder with episodes of mood and anxiety, there was still the over-arching concern on Dr. Distin’s part that this disorder was related to a frontal lobe injury. These observations repeated themselves throughout the time Dr. Distin saw Wanda in the almost two years thereafter.

[101] Further, I accept Dr. Distin’s testimony that while she made notes throughout this period about the anxiety, depression and sleep issues that were recurring, and which may have been related to the then ongoing work-stressors, she never wavered from her ultimate opinion that the symptomology was causally connected to the head trauma. It was her opinion, which was uncontroverted by the defendant, that Wanda was suffering from post-concussion syndrome.[^39]

[102] Dr. Duhamel expressed the same diagnosis in late November 2013, when he was called upon to provide a Rule 53 report and was then furnished with Wanda’s entire medical file rather than the limited material upon which he rendered his IME report in early 2011. It was his opinion that Wanda’s condition was more probably than not a function of the fact that she sustained the head injury which exacerbated her underlying conditions.

[103] What is confounding in much of the clinical notes and records of Dr. Distin, and what undoubtedly raised the inherent cynicism of counsel for the defendant is the fact that Dr. Distin does not put a label to Wanda’s condition until after she receives a report from a HIC neurologist in May 2011 that the plaintiff was suffering from “…a number of post head injury symptoms that require ongoing attention and management”.[^40] Furthermore, Dr. Duhamel seemingly changed his opinion from the time of the IME to his expert report, which, admittedly, left me in a modest state of confusion.

[104] However, I am reminded of several important matters that impact the diagnosis of Wanda’s condition: in the first place, her condition was diagnosed to be chronic and not acute, which meant that it persisted for more than six weeks before a DSM-5 label could be ascribed to it; secondly, Dr. Distin, for one, while treating the plaintiff from 2010-2012 was trying to deal with the then pressing ‘presenting’ issues, since those called out for immediate attention; further, as Dr. Duhamel observed, post-concussion syndrome does not lend itself to an easy or ready diagnosis; finally, there was little evidence led by the defendant except for that which was woven into the evidence of Dr. McGoveran, that nothing of substance medically had changed. These matters lead me to conclude on a balance of probabilities that her deficits would not have occurred but for the accident.

Permanent vs. transitory disabilities

[105] Each of Drs. Distin and Duhamel concluded that the degree of Wanda’s cognitive disabilities was and is so profound as to render her unable to obtain and maintain competitive employment. These deficits, Dr. Distin suggests, pervade even her ability to manage her own affairs.

[106] As I indicated, the defendant retained Dr. Bruce McGoveran, a specialist in occupational medicine. Dr. McGoveran did not take issue with the diagnosis of post-concussion syndrome. Indeed, he acknowledged that he did not possess the requisite training and work experience to comment on Drs. Distin and Duhamel’s diagnosis of this condition.

[107] That said, he was of the opinion that Wanda’s injuries were not so profound as to prevent her from obtaining full employment as, I presume from his testimony, some form of IT specialist.

[108] He was further of the opinion that had she availed herself of the treatment protocol that had been formulated by the summer of 2010, the road to complete recovery would have taken but a year more to travel, which would have taken her to a moment in time well before the date that she was surplussed.

[109] On balance, I am not persuaded that the conclusions expressed by Dr. McGoveran carry the day on this issue. In the first place, the primary focus of his expertise involves the development of strategies and systems for employees of his extensive client base to ensure that they are assessed, deployed or redeployed in the workplace in a meaningful and expeditious fashion with or without accommodation. As best as I understand his evidence, assessments of cognitive capacity, at large, is not part of his bread and butter.

[110] In that respect, I have some difficulty accepting his approach to the cognitive issues upon which Drs. Distin and Duhamel opined particularly since he acknowledged that “mental status” matters were more in their wheelhouse than his.

[111] For example, he concluded that because Wanda responded appropriately to his questions during their two sessions, recalled past details sufficiently, formed her thoughts in a reasonable fashion, and was able to advocate for herself—witness the undertaking of the current action and various employee grievances—she did not have any cognitive issues which prevented her from maintaining employment as an IT specialist. This conclusion was in some respects supported by his understanding, from a review of Wanda’s employment file, that Wanda was productive “to some extent” post-accident “albeit with accommodation”.[^41]

[112] As was developed by plaintiff’s counsel during cross-examination, Dr. McGoveran had not interviewed any of Wanda’s co-workers or immediate supervisors during the relevant time. He did not know the scope of her job, the tasks to which she had been assigned, the tasks she was capable or incapable of accomplishing post-accident and under workplace conditions and was not aware of the details of the tasks which had been assigned to others at the OWA because of her deficiencies. Simply put, I was not persuaded he understood the intricacies of her job or, indeed, the job of an IT specialist who is called upon to be au current with ever changing technical issues.

[113] While I would accept his conclusion that Wanda perhaps did not have any physical limitations to perform a desk job, I am not persuaded on a balance of probabilities that she has the cognitive capacity to handle the tasks performed by an IT specialist. The weight of the evidence suggests otherwise. In that respect, I prefer the opinions of Drs. Distin and Duhamel to that of Dr. McGoveran.

[114] Furthermore, while his review of the various files was extensive, and his recall of data was impressive, I am not sure that he was as well-versed in the nature of the remedial steps Wanda undertook in the years post-accident to ameliorate her presenting issues as was assumed in his conclusion on ‘mitigation’. In that respect, I am satisfied on the evidence that she did follow the medication regime that had been prescribed, apparently with some limited success; that she did attempt to use the sleep disorder devices which she was not able to tolerate; that she had countless sessions with two language and cognitive therapists, with limited if any success; and that she did seek the assistance of psychotherapists in addition to the multiple visits with Dr. Distin who undertook “psychoeducation” in various sessions.[^42]

[115] In my opinion, the conclusory remarks expressed by Dr. McGoveran about what the plaintiff ought to have done in the years after the accident are not sufficient to dispel the defendant’s burden of establishing the plaintiff’s failure to mitigate.

[116] Dr. McGoveran or, preferably, a psychiatrist called on behalf of the defendant, could have provided greater detail on what reasonable psychiatric treatment should have been obtained and, of equal importance, what treatment was available under the current medical system; i.e. whether government sponsored psychiatric assistance is or is not readily available.[^43]

[117] Furthermore, I heard evidence that Wanda suffered from sleep apnea and other sleep disorders which seemed to have worsened after the accident. Dr. McGoveran believed that this was a treatable condition with the use of either a continuous positive airway pressure machine (“CPAP”), if one could be tolerated, or an adjusting positive airway pressure machine (“APAP”).

[118] First, I did not hear any evidence that Dr. McGoveran is an expert in sleep disorders and has more than a passing knowledge of one machine over another. Wanda went to several sleep disorder clinics from 1994 to 2012, seemingly all to no avail. If an alternative therapy were being proposed as the panacea for her sleep issues, I should have heard from an expert in the field rather than receiving a bald statement, by way of example, that she should have tried an APAP machine or some other apparatus. Respectfully, I fail to see how these recommendations come within the scope of an occupational medical specialist.

[119] In the final analysis, I am not persuaded that Wanda would have been competitively employable in her own occupation, namely as an IT specialist working in or out of government. In addition, I observed her for the better part of three weeks. I doubt, contrary to the suggestion of Robert Katz, the vocational counsellor who was called to testify on her behalf, that Wanda had the capability and presence to start her own business as a part-time IT consultant for small businesses. Having watched and listened to her testimony, I have my doubts that she has the requisite current skillsets to undertake this kind of work, regardless of the number of IT courses she completed successfully while working for the Province. I am further not persuaded from her disposition and demeanour that she could market herself as an expert let alone as competent in the field.

[120] However, that does not end my inquiry. While her cognitive impairment and difficulties might prevent her from continuing to work in the IT field, I believe she has the physical and cognitive capacity, as well as the experience, to work in a retail environment as a part-time employee. Plaintiff’s counsel all but conceded that some reckoning could be made in the final analysis to reflect this proposition.

Damages: economic loss claim

[121] I preface my remarks by observing, as did plaintiff’s counsel, that the fixing of damages under this general rubric is more art than science, which is made all the more difficult because the concepts that underlie the exercise of their quantification are often beyond the ken of a puisne judge.

[122] There are three aspects to this claim and subsets of each: past income loss; future income loss; and loss of housekeeping capacity. I propose to deal with the items in series by following the roadmap provided by plaintiff’s counsel in her written argument.

Past income loss

[123] Wanda was surplussed effective October 12th, 2012. Accordingly, and somewhat ironically, no income loss claim can be made for the period from August 2006 to that date as she received her full salary or its equivalent during the six plus years post-accident.

[124] The parties agreed that in calculating her lost income, a finite operative back-end date was chosen, namely June 5th, 2016, which coincided with the date that this matter was last scheduled for trial (the “Income Loss Period”). All calculations undertaken by the economists retained by each party, Dr. Eli Katz on behalf of the plaintiff and Dr. Douglas Hyatt on behalf of the defendant, run to and from those dates (the “Future Loss Period”).[^44]

[125] Underlying both past and future income loss calculations is the obligation to first establish an annual salary ‘number’ and, secondly, to credit the defendant for any income earned, paid or deemed to be earned by the plaintiff during each the ‘loss’ periods for which the calculation is to be made.

[126] In calculating Wanda’s annual lost income, Dr. Katz tied his arithmetic to what she would have earned as a Systems Officer 2 under the terms of the operative OPSEU-Province collective agreement. He grossed up this number by an amount referable to benefits, including the employer’s contribution to her theoretical pension plan had she remained in the employ of the government.

[127] The Town argued that I should utilize an average of her income over the preceding years from the date of the accident, including benefits, for each of the relevant periods in assessing both past and future income loss.

[128] I am not persuaded that either method accurately captures but a theoretical computation since it is a given that Wanda was not employed during the Income Loss Period. I am satisfied on the evidence, however, that but for the accident, she could have obtained employment in industry as an IT specialist and that her skills as such would have been transferable and in demand.

[129] In my opinion, a halfway point should be utilized in fixing the salary that reflects a competitive salary in the marketplace for such a skillset, even without a university degree, but one that excludes an amount equivalent to the employer’s contribution to a pension plan, which the economists agree is equivalent to deferred salary. After hearing the evidence of each economist and Robert Katz, the job relocation counsellor, it is my opinion that an annual salary figure of $70,000 is both fair and reasonable in all the circumstances.[^45]

[130] On that basis, I have “plugged” the above annual salary number, appropriately prorated for partial years, into Dr. Katz’s tables, which he prepared as an aide to his testimony.[^46] The figure I have calculated, net of salary and severance received during the Income Loss Period, is $214,460. From this figure, plaintiff’s counsel concedes I am to deduct the amount of $10,000, which Wanda received in the Grievance Settlement, leaving a net recoverable amount for this period of $204,460.[^47]

Future income loss

[131] This issue is infused with other questions, principal of which is the date that I have to choose for Wanda’s retirement but for the accident.

[132] At the time of her surplussing, Wanda was roughly four months short of her 53rd birthday. But for the accident, she was in reasonably good health, had a relatively active lifestyle, had an excellent work history with the Province and appeared to be a capable, dedicated and motivated employee. She is a single woman without children, had been self-sufficient financially, and had recently bought a new house upon which she had a mortgage. Finally, if her parents’ longevity is any reliable predictor, she had a long life ahead of her post-2012.

[133] It was her position that she would have remained in the workforce until she had to draw down on her RRSP at age 71, the value of which she never shared with me. Since I did not see her accounts, I can safely assume and take judicial notice of the fact that her contributions to her RRSP during her employment with the Province would have been circumscribed by the amount of the annual contributions to the defined benefit pension plan (“DBPP”) of which she was a member. That said, I am not persuaded that regardless of the above factors she would have worked until that date.[^48]

[134] Had Wanda not been surplussed, she would have maximized her pension after 35 years of service with the Province, which in the instant case, would have occurred in April 2022, having commenced her pensionable employment in April 1987. She would be a little older than 62 at that moment in time. She would have been entitled to receive her full pension having long since exceeded her 90 Factor, which is arrived at by adding her age and years of service together, and which is the last of the variables for full pension entitlement.

[135] Drs. Hyatt and Katz were not markedly apart on what the statistics reveal on when women of a certain age, with or without the benefit of a DBPP, would retire. Clearly, now that she was surplussed and was not able to participate in such a plan, I believe her comparator group would be other women in the workplace in comparable circumstances. Unfortunately, none of the statistical analysis about which I heard covered someone with exactly Wanda’s circumstances, described above.

[136] On balance, while I am not persuaded she would work to age 71, I am equally not persuaded that she would have retired at age 62, having regard to her personal circumstances. Indeed, if I understood the statistics correctly, the average age for women retiring in 2015 was 63, a number which seemed more on the incline than otherwise. I believe, therefore, that the appropriate age for retirement in the instant case would occur when Wanda reaches 65. She would then have obtained full pension benefits under CPP, and would have several years thereafter—but not an inordinate number—to enjoy the fruits of her past labours.

[137] I am also of the opinion that the annual salary including non-pension benefits should be tweaked for the Future Income Period to reflect increases in the cost of living from October 2012 to June 2016 and beyond to the date of Wanda’s presumed retirement, namely January 24th, 2025. While seemingly inexact, I am of the opinion that an annual salary of $73,791 would be equally fair and reasonable for this period.[^49]

[138] Drs. Hyatt and Katz agree on the present value multiplier that I am to utilize under the Rules of Civil Procedure for calculating the total amount needed to compensate a plaintiff for the annual loss to a certain date.[^50] In this case, I was told that the applicable multiplier to age 65 is 8.479, yielding a total “but for incident income” for the Future Loss Period of $625,673.89 (8.479 x 73,791.00).

Deductions from Future Income Loss

Participation rate

[139] When Dr. Katz originally prepared his analysis, he was asked to project Wanda’s continued employment to age 70. He incorporated what was referred to as a ‘participation rate’ as part of his final reckoning to reflect the statistical likelihood of any given individual continuing to participate in the workforce after reaching certain benchmark ages. Put otherwise, I was told that the likelihood of someone remaining in the workforce after age 65, for example, decreases markedly as the years march on. Hence, one’s participation in the workforce drops off accordingly.

[140] Since the presumed retirement date chosen is 65, I do not feel it would be appropriate to reduce the annual remuneration figure to reflect a participation rate contingency. To do otherwise would be the equivalent of incorporating a negative contingency of approximately 44%, which I find would be excessive in the circumstances of this case.

Pension benefits presently received

[141] The defendant argued that I should deduct from the amount of past and future income loss the amount that the plaintiff has received to date and will receive under the OPSEU pension plan. The amount received on an annual basis is $35,402.76. If I accede to the defendant’s argument, I would be obliged to deduct, as well, the present value of the future pension entitlement set out in Exhibit 45(B) as part of Dr. Hyatt’s post-trial calculations.[^51]

[142] There is no doubt that wages earned during a period of disability are generally deducted from a claim for lost wages. This accounts for the deduction of $10,000 received from the Grievance Settlement.

[143] In my opinion, the issue of pension deductibility is covered by the decision of Cromwell J. in IBM Canada Limited v. Waterman, in which he provided the following guidelines:

(a) There is no single marker to sort which benefits fall within the private insurance exception.

(b) One widely accepted factor relates to the nature and purpose of the benefit. The more closely the benefit is, in nature and purpose, an indemnity against the type of loss caused by the defendant’s breach, the stronger the case for deduction. The converse is also true.

(c) Whether the plaintiff has contributed to the benefit remains a relevant consideration, although the basis for this is debateable.

(d) In general, a benefit will not be deducted if it is not an indemnity for the loss caused by the breach and the plaintiff has contributed in order to obtain entitlement to it.

(e) There is room in the analysis of the deduction issue for broader policy considerations... [Emphasis in original.][^52]

[144] Cromwell J. made the further observation which respectfully is, in my opinion, dispositive of the issue:

In my view, employee pension payments, including payments from a defined benefit plan as in this case, are a type of benefit that should generally not reduce the damages otherwise payable for wrongful dismissal. Both the nature of the benefit and the intention of the parties support this conclusion. Pension benefits are a form of deferred compensation for the employee’s service and constitute a type of retirement savings. They are not intended to be an indemnity for wage loss due to unemployment. The parties could not have intended that the employee’s retirement savings would be used to subsidize his or her wrongful dismissal. There is no decision of this Court in which a non-indemnity benefit to which the plaintiff has contributed such as the pension benefits in issue here has ever been deducted from a damages award.[^53]

[145] Further, I prefer the evidence of Dr. Katz to that of Dr. Hyatt in respect of the economic underpinning for the non-deductibility of amounts received as pension benefits. First, both economists agree that an employer’s historic contribution to a pension plan is made in lieu of a payment of an equivalent amount of salary. Had it formed part of salary, and been invested in a TFSA or RRSP, there would be no suggestion or logic to the suggestion that a payment of monies out from either fund–which were those of the employee all along–should be deducted from the damages awarded. Such a deduction would simply be punitive.

[146] Furthermore, insofar as the calculation of future income loss was concerned, I deducted from the presumed salary component an amount reflective of the notional payment on account of pension, which Dr. Hyatt acknowledged would be an appropriate alternative to deducting the pension payments ultimately received had I followed his thesis.

[147] No deduction will therefore be made for the amounts received and to be received under the OPSEU pension plan.

Given the Incident Income

[148] As discussed above, Robert Katz was asked to provide certain alternative employment modalities that could be applied to Wanda in both the Past Income Period and for the Future Income Period, both of which suggestions I rejected as impractical having regard to the evidence.

[149] That said, at the risk of offending an essential workforce group, I am of the view that Wanda is capable of working, if only part-time, in retail since she not only has experience in that milieu but the intelligence. I am, however, mindful of the fact that she might fatigue if working full-time or be obliged to work odd hours having regard to her sleep issues. While I do not believe she can manage her “own occupation” as an IT specialist, I am not persuaded she is incapable of holding down a minimum wage or better job in retail.

[150] I was told the minimum wage rate is presently $11.40 per hour. I think as a minimum, she could handle 5 hours per day, for at least 4 days per week, over the space of 48 weeks per year. My arithmetic indicates that this would yield an annual wage of $10,944.00. I have calculated the present value of this amount to ‘retirement’ to be $92,794.17, using the discount rate of 8.4790.

[151] This amount will be deducted from the Future Income Loss figure of $625,673.89 resulting in a net Future Income Loss of $532,879.72.

[152] I have declined to deduct an amount in respect of the “given the incident income”[^54] from the past income loss, or an amount of roughly $35,000. In my view, this issue was not on anyone’s radar, least of all Wanda’s, during the pre-trial period. Furthermore, while the statement of defence contained a boilerplate assertion that the plaintiff ‘failed to mitigate’ her damages, it did not particularize this defence by articulating that it applied specifically to a claim for lost income. Indeed, at the time of its delivery, Wanda had not been surplussed and the issue was not within the contemplation of the defendant. Simply put, it has not been pleaded and no amendment was sought at trial.[^55]

Housekeeping Claim

[153] I heard evidence that Wanda’s ability to perform basic housekeeping has diminished markedly since the accident. Indeed, after her move to her new house, she has not been motivated to completely unpack and clutter is gathering around her.

[154] I was given Statistics Canada data on the average cost of housekeeping relative to the average hours of housekeeping performed by women to age 64 and beyond. Dr. Katz crunched some numbers in respect of this issue from roughly the date of trial to age 75, which is set out in Exhibit 27, at Tabs 15-20.[^56]

[155] Dr. McGoveran testified that while Wanda has some residual knee and back issues stemming from an unrelated incident, he could not find any physiological reasons for her not being able to perform certain physical activities—which in my view would include housekeeping functions—but for the lifting of heavy objects. I would agree with this conclusion having watched her in court for the better part of three weeks. Putting it otherwise, her issues are cognitive, not physical.

[156] I do not believe I heard any evidence that she incurred any housekeeping expenses prior to trial or any that wasn’t already included in the damage settlement concluded with the assistance of Wilson J. That said, I am not persuaded that Wanda should receive anything in this regard for future housekeeping assistance. The plaintiff has not established a demonstrative need for same notwithstanding the messy state of affairs of her house.

Conclusion

[157] The plaintiff will therefore be entitled to judgment in the amount of $737,339.72 for her income claim plus the amount settled upon before trial. I will defer any consideration in respect of interest payable on any sums awarded until I hear from counsel on the issue.

[158] Subject to any offers to settle which may have been delivered in accordance with Rule 49, I am of the preliminary view that costs should follow the event which I would be inclined to order on a partial indemnity basis only. I suggest that counsel would be well advised to review the costs decisions I have rendered in the past few years to determine my thoughts on the subject.

[159] If agreement cannot be reached on interests or costs within two weeks from the date of the release of this judgment, I may be contacted by email at which point I will provided further direction for the preparation of brief written submissions on the issues then remaining.

GANS J.

Released: January 27, 2017

CITATION: Labanowicz v. Fort Erie (Town), 2017 ONSC 630

COURT FILE NO.: CV-08-359836

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

WANDA LABANOWICZ

Plaintiff

– and –

CORPORATION OF THE TOWN OF FORT ERIE

Defendant

REASONS FOR JUDGMENT

GANS J.

Released: January 27, 2017

[^1]: Occupiers’ Liability Act, R.S.O. 1990, c. O.2, ss. 2, 3 and 4.

[^2]: I chose the first period for review—roughly the first four years after the accident—since that period ended with Ms. Labanowicz being sent for an independent medical examination (“IME”) at the behest of her employer. This period also coincides with the commencement of her treatment at the Head Injury Clinic at St. Michael’s Hospital.

[^3]: Exhibit 2, Plaintiff’s Medical Records (2006-2014); and Exhibit 3, Plaintiff’s Employment Records.

[^4]: Exhibit 11, Women’s College Hospital historical medical records (1984-2006) – Reports of Dr. Blackman, dated March 17, 1999 – May 30, 1999, at pp. 192-196.

[^5]: Exhibit 2, Plaintiff’s Medical Records (2006-2014); Exhibit 11, Women’s College Hospital historic medical records (1984-2006).

[^6]: The medical records are replete with references to the verbal ‘abuse’ attributed to her father as Wanda was growing up and heading off to university. While she suffered from anorexia and ultimately bulimia, the latter of which disease persisted until 2008, I did not hear any evidence of which I recollect to suggest that this abuse lay at the root cause for her current or even pre-accident difficulties.

[^7]: Exhibit 11, Women’s College Hospital historical medical records (1984-2006) – Report of Dr. Blackman, dated March 17, 1999, at pp. 192-194.

[^8]: The full name of the clinic is the Sport Centre for Advanced Research and Education.

[^9]: Exhibit 16, Synopsis of Medical Records from Exhibit 2 – Entry dated January 29, 2009 at p. 5.

[^10]: Exhibit 2, Plaintiff’s Medical Records (2006-2014), Tab 6 – IME by Dr. Duhamel, dated January 13, 2010.

[^11]: At the commencement of trial, it appeared to me that the defendant was taking issue with the ultimate opinion expressed above. That position changed during the course of the trial. As best as I understand the defendant’s position, the Town was not taking issue with the opinion, but rather argued that the plaintiff had many of the same medical issues before and after the accident and that the accident was not causally connected to her condition.

[^12]: Exhibit 3, Plaintiff’s Employment Record, Tab 1- Letter dated March 27, 2012, at p. 121. I was more than slightly bemused at the contents of the employment file. The forms, unit names, divisions and reporting structures were a constant source of change within the provincial government. It seemed from my reading of the material in the instant case and Mayotte v. Ontario, 2016 ONSC 1233; 129 O.R. (3d) 360, that there was a whole bureaucracy devoted to changing names and revamping divisions of the government on a basis that was not only mysterious to me but to those who functioned within. The only people who benefitted from these changes were the stationers.

[^13]: Occupiers’ Liability Act, at ss. 3-4.

[^14]: Cormack v. Mara (Township) (1989), 1989 CanLII 4279 (ON CA), 68 O.R. (2d) 716 (C.A.) at p.724; leave to appeal to SCC ref’d, [1989] S.C.C.A. No. 265 (SCC).

[^15]: Schneider v. St. Clair Region Conservation Authority, 2009 ONCA 640, 97 O.R. (3d) 81 at para. 42. See also the decision of Leitch J. in Kennedy v. London (City) (2009), 58 M.P.L.R. (4th) 244, at para. 66.

[^16]: Exhibit 5, Defendant’s Book of Documents, Tab 8 – Fort Erie Friendship Trail Road Crossing Guidelines Final Report, prepared by G. O’Connor Consultants Inc., dated September 30, 2003.

[^17]: Formerly Signe Edgecombe.

[^18]: Exhibit 5, Defendant’s Book of Documents, Tab 9 – Minutes of a meeting of the Traffic Coordinating Committee on Oct. 7, 2003; Exhibit 5, Defendant’s Book of Documents, Tab 11 - Minutes of a meeting of the Friendship Trail Advisory Committee on September 15, 2003.

[^19]: Exhibit 5, Defendant’s Book of Documents, Tab 10 - Report to Council-in-Committee, dated November 3, 2003, at p. 4.

[^20]: Exhibit 5, Defendant’s Book of Documents, Tab 8 – Fort Erie Friendship Trail Road Crossing Guidelines Final Report, prepared by G. O’Connor Consultants Inc., dated September 30, 2003, at p. 21.

[^21]: The evidence of the number of existing intersections that were painted with diamonds was not pinned down. Exhibit 40, which was a document jointly filed by the parties detailing the timeline for the Trail construction, lists 9 intersections. However, after listening to the recording of Ms. Hansen’s evidence, a more than tedious task, she listed but 8 intersections that were painted with diamonds around the bollards. Their location is specified as well in the appendixes to the Minutes of the meeting of the Traffic Coordinating Committee found at Exhibit 5, Tab 9.

[^22]: Exhibit 1, Plaintiff’s Book of Documents, Tab 5 – Design diagram of the removable bollard.

[^23]: See to the same effect the decision of Karam J. in Moloney v. Parry Sound (Town) (19 Feb. 1999), 23/94 (Ontario Ct. Gen. Div.), aff’d by Ont. C.A., 2000 CanLII 5618 (ON CA), [2000] O.J. No. 140 (ONCA), at para.7.

[^24]: Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 18-22. See also Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, at para. 78, per McLachlin C.J.C.

[^25]: Zsoldos v. Canadian Pacific Railway Co., 2009 ONCA 55, 93 O.R. (3d) 321 (C.A.), at paras. 54 and 56. (“Zsoldos”).

[^26]: The defendant cites the decision of Kenneth Campbell J. in Dhaliwal v. Premium Fitness Clubs Inc., 2012 ONSC 4711 at paras. 80-81.

[^27]: Sidney N. Lederman, Alan W. Bryant, and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 3rd ed. (Markham, Ontario: LexisNexis Canada Inc., 2009) at paras. 3.33, and 5.35.

[^28]: Exhibit 1, Plaintiff’s Book of Documents, Tab 2 – Photos.

[^29]: Excerpt from Dr. Duhamel’s evidence from October 20, 2016.

[^30]: Sidney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham, Ontario: LexisNexis Canada Inc., 2014) at paras. 12.210-12.214.

[^31]: Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed., at paras. 12.210-12.214.

[^32]: Benhaim v. St-Germain, 2016 SCC 48, 402 D.L.R. (4th) 579, at para. 74.

[^33]: I am assuming that the housekeeping claim was settled to the “date of trial”, which for calculation purposes was set as the 6th of June 2016, which was an earlier date that the matter was fixed for trial. If my understanding of the operative dates is wrong, I am hopeful that counsel will be able to attend to a mathematic reconciliation.

[^34]: Some of the authorities referred to me by the defendant include: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Labour Relations Act, R.S.O. 1990, c. L.2, s.45, (which was repealed, and has been replaced by Labour Relations Act, 1995 S.O. 1995, c. 1, Sched. A, s.48); K. A. v. Ottawa (City) (2006), 2006 CanLII 15128 (ON CA), 80 O.R. (3d) 161 (C.A.).

[^35]: See the decision of Himel J. in McIntyre v. Connolly, 2008 CanLII 12496 (ON SC).

[^36]: McIntyre v. Connolly, 2008 CanLII 12496 (ON SC).

[^37]: Plaintiff’s counsel allowed the argument about the surplus issue to lapse because she readily acknowledged that she had not led enough evidence to establish the fact that Wanda had been surplussed, or that she was not considered for alternative positions with the Province, because of her cognitive deficits. I agree with the defendant’s counsel that it would not have been appropriate for me to enter into such an inquiry in light of the fact that the grievance which covered these issues had been settled. But I am not so persuaded that I am prevented from determining the issues of lost income so long as I conclude that her deficits would not have occurred but for the accident and she is now not competitively employable.

[^38]: There is no issue between the parties that a tortfeasor is obliged to take his victim as he finds her. To draw from Cronk J.A.’s decision in Mizzi v. Hopkins et al. (2003), 2003 CanLII 52145 (ON CA), 64 O.R. (3d) 365 (C.A.), at para. 30: “Athey v. Leonati confirms that once it is proven that a defendant’s negligence was a cause of the plaintiff’s injury… a damages award should not be reduced to recognize the contribution of non-tortious causes to the plaintiff’s loss”, such as the plaintiff’s medical vulnerability.

[^39]: Because the defendant did not dispute the diagnosis, I do not intend to list the criteria detailed in the plaintiff’s written closing submissions at para. 177 and found in the American Psychiatric Association’s DSM-5 (American Psychiatric Association, Desk Reference to the Diagnostic Criteria of the DSM-5 (Arlington, VA: American Psychiatric Association, 2013).

[^40]: Exhibit 2, Plaintiff’s Medical Records, Tab 3 – letter to Dr. Whitehead from Dr. Bruni, at p. 45.

[^41]: Evidence of Dr. McGoveran from November 1, 2016.

[^42]: Exhibit 2, Plaintiff’s Medical Records (2006-2014), Tab 4, at pp. 65-66; Exhibit 2, Tab 11, at pp. 1-3 at the end of the Tab; Exhibit 2, Tab 2, at pp. 282-283; Exhibit 2, Tab 3, at pp. 20, 38, and 105; Exhibit 2, Tab 7, at pp. 1-2.

[^43]: See Silvaniuk v. Stevens, 1999 ABCA 191, 244 A.R. 75, (C.A.), at para. 12 and the decision of Wilson J. in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146, at pp. 167-172.

[^44]: Note to counsel: As one who has to struggle with expert evidence that is often very complicated if not dense, it is imperative that counsel review the reports prepared by their respective experts to ensure that they are “dummied” down where necessary and written in the langue maternal of the trier of fact in comprehensible prose.

[^45]: I have used the $70,000 figure for the years 2013-2016, the latter of which year was prorated. I have used the actual number shown in the table described below without deduction for pension contribution since there is no way of knowing from the evidence whether the payments for pension are front-end loaded as they are for the Federal civil service and this issue was not discussed by counsel. In any event, any massaging of the number would be de minimus.

[^46]: Exhibit 27, Exhibits of Eli Katz, Tab 8-Table 5.

[^47]: I will leave it to counsel to determine whether my arithmetic is correct in respect of this calculation and the Future Loss Claim set out below. If there is a disagreement on the math, I may be contacted subsequent to judgment.

[^48]: It is a tad ironic, as a Supernumerary Judge who has passed his 70th birthday, that I express doubts about someone’s intention to work to age 71 and beyond, even though Dr. Hyatt expressed the view that one who reaches their “factor” will theoretically be leaving money on the table, as it were, if they continue to work and choose not to retire.

[^49]: I have chosen the last mentioned number because of its relationship to annualized income calculation expressed by Dr. Katz at Exhibit 27, Tab 6, Table 2, where I reduced the annual salary figure of $81,089 by 9% to reflect the value of the pension contribution omitted from the equation.

[^50]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 53.09.

[^51]: With the consent of counsel, I asked Dr. Hyatt to prepare some additional calculations and matrices for my assistance in calculating income loss. This material was received on consent subsequent to argument and marked by me as a formal exhibit, post-trial.

[^52]: IBM Canada Limited v. Waterman, 2013 SCC 70, [2013] 3 S.C.R. 985, at para. 76.

[^53]: IBM Canada Limited, at para. 4.

[^54]: This is a term used by the economic experts.

[^55]: If I were being perfectly consistent, I would apply the same ‘logic’ to the Future Loss Income, which no doubt would create a bigger furor. I have avoided that controversy by permitting the aforesaid deduction.

[^56]: Exhibit 27, Exhibits of Eliz Katz; Dr. Katz’s calculation ran from the presumptive trial date of June 6, 2016 to Wanda’s 75th birthdate.