CITATION: BARON v. CLARK, 2017 ONSC 738
COURT FILE NO.: C-390-12
DATE: 2017-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRANDON BARON, SARA BENTON, CHRISTINA BARON, a minor by her litigation guardian SARA BENTON and CONNOR BARON a minor by his litigation guardian SARA BENTON
Plaintiffs
– and –
PADEN CLARK and LORAINNE RENTON o/a POST-TIME BAR AND GRILL
Defendants
Richard Campbell, for the Plaintffs
Defendant Paden Clark – Self-represented
Jeffrey M.K. Garrett, for the Defendant Lorainne Renton o/a Post-Time Bar and Grill
HEARD: May 10, 11, 12, 13, 16, 17, 18, 19, 26, 27, 30, and 31, June 1, 2, and 3, September 12, 13, 15 and 16, 2016
D. A. Broad J.
REASONS FOR JUDGMENT
Background
[1] The plaintiffs Brandon Baron (“Baron”) and Sara Benton (“Benton”) are spouses. They had been separated at the time of trial for four and one-half years, but currently reside under the same roof in British Columbia. The minor plaintiffs Christina Baron and Connor Baron are their children who reside with them.
[2] The plaintiffs sue for damages claimed to have been suffered by them arising from an assault and battery which they allege the defendant Paden Clark (“Clark”) committed on them in the Post-Time Bar and Grill (“Post-Time” or the “bar”), a licenced eating and drinking establishment located in Arthur, Ontario, on October 29, 2011 (the “incident”). The defendant Lorainne Renton was the owner and operator of Post-Time at the time of the incident.
[3] Baron suffered a spiral fracture of his left tibia requiring surgery during the incident. In addition to his physical injury Baron alleges that he suffered psychological injury. Benton alleges that she sustained bruising and also suffered embarrassment and humiliation and resultant psychological injury resulting from her top and brassiere having been torn off during the incident.
[4] Baron claims general damages for pain and suffering and loss of enjoyment of life, damages for past and future loss of income and special damages for the cost of future care and housekeeping costs. Benton claims general damages for pain and suffering and loss of enjoyment of life.
[5] Although the Fresh as Amended Statement of Claim (the “Statement of Claim”) advances claims on behalf of Baron and Benton’s minor children for damages for the loss of care, companionship and guidance under the Family Law Act, R.S.O. 1990 c. F.3, no evidence was led at trial in respect of these claims and they were not pursued in submissions.
[6] The Statement of Claim framed the plaintiffs’ claims as against Clark on the basis of the intentional torts of assault and battery, and as against Post-Time in negligence, including an allegation that it failed to ensure that Clark was not over-served with alcoholic beverages and that it failed to prevent Clark from becoming intoxicated to the point that he became a danger to them. The Statement of Claim also alleges that Post-Time refused or neglected to comply with the service of alcohol provisions of the Liquor Control Act R.S.O. 1990, c. L.18. Although a number of other statutes were pleaded in the Statement of Claim, no explicit reference was made to the Liquor Licence Act, R.S.O. 1990, c. L. 19.
[7] The Statement of Claim claimed (in the body of the Statement of Claim, but not in the prayer for relief) a declaration that the plaintiffs’ claims and damages are not and will not be released by an order of discharge made with respect to the bankruptcy of the defendant Clark pursuant to s. 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. This claim was not pursued at trial by the plaintiffs, either in evidence or in submissions.
[8] The trial commenced before a jury. However following four days of trial the jury was released, on motion by the defendant Renton which was unopposed by the plaintiffs and the defendant Clark, when it became apparent that the trial would not be completed within the time estimated by counsel and communicated to the jury panel prior to jury selection. The trial therefore continued as a judge-alone trial.
Issues
[9] The issues for determination include the following:
(a) whether the defendant Paden Clark is liable to the plaintiffs for assault and battery;
(b) whether the defendant Lorainne Renton o/a Post-Time Bar and Grill is liable to the plaintiffs for negligence and/or breach of statutory duty;
(c) the apportionment of liability, if appropriate and necessary, as between the defendants;
(d) assessment of the damages of the plaintiff Brandon Baron; and
(e) assessment of the damages of the plaintiff Sara Benton.
Incident of October 29, 2011
(a) Evidence of Brandon Baron
[10] Baron testified that he and Benton and their children were visiting with his parents at his parents’ home in Arthur Ontario on the evening of October 29, 2011. His sister Carissa and her then-the boyfriend (now husband) Tom Skilling were also in attendance. Baron, Benton, Carissa and Tom Skilling made plans to attend a Halloween dress-up party at the Post-Time that evening. Baron and Benton and their children planned to spend the night at Baron’s parents home in afterwards.
[11] The four of them were driven to Post-Time by Baron’s parents. Baron believed that they arrived at approximately 10 PM.
[12] Baron advised that he had consumed one or two bottles of beer at his parents’ residence and was not intoxicated when he arrived at the Post-Time,
[13] Baron testified that he was dressed in a “Marilyn Manson” costume. He indicated that “Marilyn Manson” is the name of a musical band. His costume consisted of a suit, a black wig, white face paint and black lipstick.
[14] Baron could not remember any security staff at the entrance of the Post-Time, and testified that no one asked him on arrival for identification nor how much he had had to drink.
[15] He remembers playing a couple of games of pool with a friend of his sister and having some beer. He described the Post-Time as being “pretty busy” when they arrived but could not remember how many people were in the establishment. He described the mood of the Post-Time when they arrived as “pretty calm”.
[16] Although he consumed some beer he indicated that it would not have been more than one or two because he and his wife would be responsible for caring for their children when they returned to his parents’ home.
[17] Baron recalls recognizing Clark as he had attended school with him. Clark was also wearing a costume. Baron stated that he greeted Clark and explained his costume to him. Baron acknowledged that he must have looked different in his costume.
[18] Baron could not recall how long his initial conversation with Clark was, nor could he recall Clarke’s response to his greeting.
[19] He stated that he and Clark engaged in some sort of argument but did not remember what it was about nor did he remember if he did anything to provoke Clark. He did not recall asking Clark any questions or doing anything insulting towards him.
[20] Baron recalled getting into a second argument with Clark. He said he was pushed away and then remembers being on the floor. He could not recall what they were arguing about and could not recall approaching Clark or Clark approaching him. He just remembered being pushed to the floor on top of a table and stated that he blacked out at that point. Clark was on top of him, on top of the table. He recalls receiving help from other people, including his wife, in getting up.
[21] Baron could not remember how long it was from the commencement of the second argument to finding himself on the floor.
[22] Baron estimated that he had consumed four bottles of beer to that point. He had consumed no recreational drugs that day. He could not remember whether he had consumed prescription drugs.
[23] Baron recalls that he could not move his left leg and nor could he get up by himself. He described that his left leg was “very painful”. He was helped up by his wife and another person. He could not remember much about his wife’s condition except that she was “really upset” but not scared. He indicated that a few things on her clothes were ripped and torn but he was not sure where.
[24] Prior to the incident Baron did not consider Clark to be a threat and he was not afraid of him for any reason. He had no further conversation with Clark that evening.
[25] Baron was assisted from Post-Time to the van of the mother of a friend of his sister who drove him to his parents’ home. He indicated that he thought of going to the hospital and called the local hospital but there was no one on staff to do x-rays at that time. When he got to his parents’ home he was assisted to the couch where he spent the night. His wife took him to the hospital at Fergus Ontario the next morning.
[26] When he was asked at the hospital what had happened he told hospital staff that he had fallen down four steps. He stated that this was before he knew how severely his leg was damaged. At the time he thought that he had only suffered a sprain. He stated that at first he thought that telling the hospital staff that he had fallen down some stairs was the “right thing to do because [he] didn’t want to do anything to anybody that didn’t need to be done.”
[27] The record at the Fergus Hospital indicated that he “fell down stairs, twisted ankle.” The record had an Addendum which stated “assaulted by an acquaintance after he tried to defend his wife who was being harassed, and was pushed over by the acquaintance.” Baron could not remember providing the information in the Addendum.
[28] After the x-rays were taken at the Fergus Hospital he was transferred to the Guelph hospital. In the pre-operative report, the surgeon Dr. Armstrong noted that Baron told him that “he was at a bar and a person came and reached over his wife and assaulted him.”
[29] On cross-examination Baron indicated that he had been at the Post-Time Bar and Grill on three previous occasions and knew generally what it was like. When he and Benton arrived with his sister and her boyfriend he thought it was busy with perhaps 20 people there. He could not remember whether there was any security personnel but he did not expect there to be any in attendance. He did not think that the establishment needed “bouncers”.
[30] He indicated that there were two bartenders on duty and stated that he had no reason to believe that the establishment was unsafe, even in the absence of security personnel on duty.
(b) Evidence of Sara Benton
[31] Benton testified that she and Baron, along with the Baron’s sister and her boyfriend, arrived at the Post-Time at around 10:30 PM. She observed Baron consuming one or two beers at his parents’ home before they left.
[32] She confirmed that their party was not asked for identification at the door and she did not observe anyone working as security. She indicated that there were between 50 to 60 people in the bar when they arrived. She described the mood as “positive”. The four of them were dressed in costumes and were quite excited about the costume party. Baron was dressed in a “Marilyn Manson” costume and she was in a “school-girl” outfit consisting of a plaid skirt, blouse, glasses and with her hair in braids.
[33] Baron began playing pool. Benton observed Clark stopping at the pool table and talking to Baron. She thought they were arguing based on their body language. Benton approached the two of them and said “Hi Paden, how are you?” He responded “Who the heck are you? I don’t know you okay”. Benton stated that Clark appeared to be clearly intoxicated, smelled of alcohol and was slurring his words. She described him as “completely out of it.”
[34] Benton stated that she took Baron back to where they had been sitting when suddenly she saw Baron’s face light up with a frightened look on his face. She turned and saw Clark and instinctively put her arms up to protect Baron. She said that Clark jumped on top of Baron who fell to the floor with Clark on top of him.
[35] Benton stated that as she was trying to pull Clark off Baron, Clark grabbed either side of her costume and tore her top and necklace off and pulled off her brassiere, exposing her breasts. She stated that she ran to the wall to cover herself. Someone brought her coat to her and she covered up. She then went to Baron who was on the floor.
[36] Benton testified that she was “absolutely mortified” with having her breasts exposed. She estimated that by that time there were 100 to 120 people in the bar.
[37] Benton offered no information with respect to how long she felt her breast were exposed. On cross-examination she acknowledged that the tear on her blouse was about 45 mm or 2 inches in length, however, she maintained that the wraparound sash that held her top together was torn off which was more significant.
[38] Benton testified that she and three other people helped Baron up. He was in extreme pain. They carried him outside to the van of one of Carissa’s friends. Clark was outside and was screaming at them but she could not recall his words.
[39] Upon arrival at Baron’s parents’ home Benton helped Baron upstairs to the couch in the living room. She said that she discussed with Baron’s parents the possibility of calling the police, but she “wanted to avoid the whole thing” and to take care of Baron.
[40] The next morning she took Baron to the Fergus hospital. When they got there Baron was still not moving his leg and she was confident that it was broken. She was expecting that he would be sent home with a cast.
[41] Benton stated that while she was engaged in a conversation with hospital staff Baron did not speak. She told the staff that Baron had fallen down a couple of steps. She knew it was not the truth but she did not want to get the police involved and did not want to hurt Clark. She said that she did not want to ruin Clark’s life if Baron had not sustained a catastrophic injury.
[42] Benton testified that she transported Baron to the Guelph hospital. She said that she was told by a doctor that Baron had suffered a spiral fracture requiring emergency reconstructive surgery with the possibility of amputation. She said that she immediately approached the doctor to describe what had occurred. She felt she had to tell exactly what had happened and thought that police involvement was necessary. She did not recall Baron speaking himself. She described him as very quiet and extremely emotional, with tears in his eyes.
[43] On cross-examination she denied that the doctor was told by either of them that Baron was assaulted by an acquaintance after trying to defend his wife. She said that this was not what she had told the doctor. She maintained that the note in the record was untrue and that Baron had not been trying to defend her.
[44] On cross-examination Benton stated that her shirt had been “ripped right off” in the incident. She could not recall have large the rip was. She handed the shirt over to the police. She acknowledged that the police photo of the shirt depicted a tear of 45 mm or two inches. She had noted on the picture “sash tie at bottom of shirt, torn off”. She stated that this was more significant than the rip in the shirt.
(c) Evidence of Carissa Skilling
[45] Baron’s sister Carissa Skilling testified that on October 29, 2011 she was living with her parents in Arthur. Her then boyfriend (now husband) Tom was visiting at her parents’ home along with Baron and Benton. She stated that she had two drinks at her parents’ home, as had her brother.
[46] The four of them were planning to attend a Halloween costume party at the Post –Time Bar and Grill that evening. She stated that they either walked or were driven there and arrived between 10:00 p.m. to 10:30 p.m. There was a band playing and she stated that there was a large crowd with more than 100 people. She described it as “standing room only”. There is no security at the door. No one asked them for identification nor if they had been drinking. She indicated that there are 4 to 5 staff members behind the bar.
[47] Ms. Skilling stated that the group got a table behind the pool table. She indicated that she saw a lot of friends there from high school and also saw Clark. She indicated that Clark had walked by her. She said “hi” to him but she could not really tell his response. She said that he seemed “fairly intoxicated” and too drunk to respond.
[48] Ms. Skilling stated that she had gone to the bar with her boyfriend to order drinks and turned around to come back to the table and saw that Clark and Baron were talking with Benton standing nearby. Because the conversation appeared heated she moved quickly back to her seat. She said that it then “all fell apart”. Benton was standing between Clark and Baron to try to stop their verbal disagreement and “within milliseconds” Clark was throwing Baron to the floor and punching him, knocking the table and throwing glasses everywhere.
[49] She stated Benton was trying to get Clark off Baron and she tried to assist. She said that when Clark did stop he turned to get Benton off him and ripped her shirt.
[50] Ms. Skilling’s stated that she and others put the table upright and someone got a jacket for Benton. She stated that “everything was chaotic.” She stated that “we were pretty nervous” and decided it would be better if Benton and Baron left. She and Tom Skilling walked out with them to the van of the mother of one of her friends. Baron was walking on his injured leg a little bit but was in a lot of pain. Carissa and Tom remained at the bar and she did not learn anything more about Baron’s injury until they returned home.
[51] On cross-examination Ms. Skilling described the atmosphere at the Post-Time as positive, with a lot of locals in attendance. The number and makeup of the crowd was what she had been expecting. There had been no security at any previous times that she had been at the Post-Time and she did not expect security or people at the door on this occasion, although she said that when she got there she was surprised that no one was checking because of the number of people. However, she did not think the situation was unsafe or she would have left.
[52] Ms. Skilling indicated that she was 40 to 50 feet away by the bar when she first saw Baron and Clark talking. She indicated that the conversation did not appear to be heated. She stated that the pool table area where Baron and Clark were standing would not have been in full view of the bartenders behind the bar if they were busy serving. As she was walking she saw Benton get up and decided to go back to see what was going on. She said she saw Benton get between Baron and Clark. It looked as if she was trying to talk them down; to calm everything down. She said that Clark was already noticeably drunk.
(d) Evidence of Tom Skilling
[53] Baron’s brother-in-law Tom Skilling testified that he had attended the Post-Time Bar and Grill regularly prior to the incident after work. When he attended with Baron, Benton and Carissa on October 29, 2011 the Post-Time was much more crowded than he had previously experienced it. However he could not estimate the number of people who were present. There were two or three staff working behind the bar.
[54] Mr. Skilling testified that when he got up to go to the bar to get his second drink he saw Clark walking by him. He ordered a drink at the bar, turned around and saw Baron on the floor with Clark on top of him. He did not see the altercation happen but only saw the aftermath.
[55] Mr. Skilling testified that he had observed Clark approach the bar and was standing beside him ordering a drink at the bar. Although he did not speak to Clark, he described him as looking “pretty intoxicated”. Clark appeared to be trying to stand still but couldn’t and was swaying back and forth. He described Clark as “not in good shape.” He stated that he did not observe Baron and Clark having any interaction prior to observing Baron on the floor with Clark on top of him.
[56] On cross examination Mr. Skilling stated that he would not have expected to see security at the Post-Time on a regular night but he was surprised that he was not asked for identification because of the number of people there on October 29, 2011.
(e) Evidence of Paden Clark
[57] Clark testified that at the time of the incident he was 24 years of age. During the week prior to the event he decided to attend the advertised Halloween party at the Post-Time. He indicated that he had not previously attended at Post-Time very often.
[58] He went first to a friend’s apartment across the road from the Post-Time. Four of his friends were there. He stated that their intention and his intention was to get drunk at the party at the Post-Time. He testified that, prior to moving to the Post-Time, he had two or three beers. He said he did not feel drunk when he went to the Post-Time. He stated that there was no door staff and he was not asked for identification nor was he asked whether he had been drinking. He had a cast on his lower leg from a previous fracture.
[59] Clark’s evidence on how much he drank at the Post-Time was equivocal. He acknowledged having consumed five beers there by 9 p.m. but could not recall whether he drank more than five. He acknowledged that he was intoxicated.
[60] He testified that at some point a “guy in a Marilyn Manson” outfit started putting his hands on him. He turned to his friend to ask the guy to get away from him. The individual put his hands on him again and the next thing Clark remembered was being on the floor. He said he was picked up off the floor, escorted out of the bar and walked halfway across the parking lot to ensure that he did not return. He did not remember anything else about the incident. He maintained that Baron was the aggressor by putting his hands on him. He denied that he punched or threatened Baron. What bothered him was having a “random person” putting his hands on him without his consent.
[61] Clark acknowledged that, assuming that the incident took place between 10:30 p.m. and 11:00 p.m., he was very intoxicated. He also acknowledged that his drunkenness would have been quite visible.
[62] Clark had no memory of pushing Benton. He said that he would not see himself pushing a woman and stated that he never had any history of putting his hands on anyone, much less a woman. He denied that he put his hands on any woman and would not do so. He did acknowledge it was possible that, in trying to stop Baron from putting his hands on him, he pushed Benton out of the way, however he stated that if that happened it was accidental.
[63] Clark confirmed that he was charged with assault causing bodily harm on Baron and assault on Benton and pleaded guilty on May 9, 2012. On that date he attended court with his lawyer he expected that the matter would be adjourned. However, he was given two choices by his lawyer - either give her $15,000 for a retainer or plead guilty. He stated that his main concern was that he did not want to go to jail because he had a newborn child with his girlfriend and he had responsibilities at work. He stated that he did not have $15,000 to provide as a retainer to take the matter to trial.
[64] Clark acknowledged on cross-examination that he understood what he was pleading guilty to and that he instructed his lawyer to agree on his behalf that the statement of facts which were read into court at the time of his guilty plea were substantially correct. The statement of facts related that he was heavily intoxicated, that Baron had approached Clark in the bar, that there was a verbal dispute, that Benton intervened and that Clark threw himself on top of Baron breaking his leg. The statement of facts also stated that Benton was physically assaulted by Clark causing her shirt to rip and her necklace to be torn off and that Clark pushed her aside.
[65] On cross-examination by counsel for Renton, Clark stated that he had received a medical diagnosis of ADHD which was a long-standing problem for him and which adversely affected his memory. As a result he could not say whether he consumed three, four or five or more beers at Post-Time on the evening in question.
(f) Evidence of Christina Jones
[66] Christina Jones testified that she was employed by Post-Time Bar and Grill from the summer of 2011 until December of that year as a bartender/server. She had four months prior experience as a bartender with “Smart Serve” certification. She described the Smart Serve program as consisting of online study and the taking of a test. It was directed towards teaching how to serve alcohol properly, including how to determine the signs of intoxication, when to cut the people off from further service, and the legal age for the consumption of alcohol.
[67] Ms. Jones was working on the evening of October 29, 2011 when a Halloween party was being held at the Post-Time. Dinner and drinks were served early in the evening. She started off serving food and later on she worked behind the bar. There was another bartender/ server on duty Sharon Rachar and Michael Renton and Carl Renton were also working that evening. Ms. Rachar had Smart Serve certification but neither Michael Renton nor Carl Renton did. They were not involved in serving drinks but rather were clearing glassware. Ms. Jones indicated that under 70 people came through on the evening of October 29, 2011, and there was a little less than that number at any one time. Although it was crowded in the bar area, throughout the rest of the bar people could easily move about.
[68] Post-Time had one bar with two tills. Ms. Jones and Ms. Rachar were both working behind the bar. She stated that on most nights there was only one person bartending but on the evening in question there were two bartenders working. Ms. Jones stated that she did not know Baron or Benton but did know Carissa Baron (now Skilling), having attended school with her. She did not recall seeing Carissa or Tom Skilling that evening. She was unable to testify as to the activities of Baron and Benton during the evening. Although she knew Clark from school, she did not recall seeing him that evening and could not recall serving him. She had no knowledge of any interaction between Baron and Benton and Clark on the evening of October 29, 2011.
[69] Ms. Jones did recall cutting two people off from further service that evening, and was able to describe their costumes. Both of them were exhibiting signs of being drunk.
(g) Evidence of Sharon Wenger
[70] Sharon Wenger (formerly Rachar) was employed by Post-Time as a bartender/server from July 25, 2011 until the first week of November. She had prior experience as a server in a restaurant. She obtained her Smart Serve certification in August of 2011 which involved taking an online course and writing tests. She described that the course was designed to help to understand how to serve alcohol properly, including how many drinks to serve per hour, what to watch for, and signs of intoxication.
[71] Ms. Wenger testified that she was working at Post-Time on October 29, 2011 when it was holding a Halloween party. She started her shift at either 5 or 6 p.m. and worked until closing. Christina Jones was also bartending that evening with her. Michael Renton and Carl Renton were also working. They were involved somewhat in crowd control. They were out on the floor but Ms. Wenger could not see what they were doing. She indicated that the bar was more crowded than on a typical Saturday evening, with roughly twice in the number of people. She confirmed that there were two bartenders, herself and Ms. Jones, the same as on a typical Saturday night.
[72] Ms. Wenger did not know Baron, Benton, nor Clark. She did not have any personal knowledge of anything going on involving Baron, Benton and Clark that evening and anything she knew she had learned from others.
[73] Ms. Wenger testified on cross-examination that she did not notice anyone who was intoxicated at Post-Time that evening. She had no recollection of serving anyone five drinks by 9 o’clock and had no recollection of serving Clark. She had no recollection of serving any individual repeatedly.
(h) Evidence of Michael Renton
[74] Michael Renton is the husband of Lorainne Renton, who owned Post-Time Bar and Grill in October, 2011. His duties included maintenance and cleaning, working 10 hours a day, seven days a week. Their son Carl had similar duties to his at the time. Neither Michael nor Carl was involved in serving alcohol and neither of them was Smart Serve certified.
[75] On October 29, 2011 Michael Renton started work at 6 p.m. cleaning toilets, checking and clearing tables and keeping an eye on everything. A Halloween party was being held that evening. Post-Time had not previously held this type of event.
[76] Sharon Rachar (now Wenger) and Christina Jones were serving alcohol and food. He estimated that there was a total of 80 people at the establishment that evening. On a normal evening there would be about 30 guests.
[77] Michael Renton stated that he knew Clark from seeing him walking in the street. He was aware that Clark was friends with one of the servers employed at Post-Time who was not working that evening. He said he never knew Clark to cause any trouble. There had never any incidents at Post-Time prior to that evening.
[78] He stated that he did not know either Baron or Benton.
[79] While he was clearing tables someone in the bar told him that Clark had been in a scuffle. He had not previously seen Clark that evening. Clark was walking towards him and he told Clark to leave. Clark was wearing a cast on one foot and was walking with a limp. Clark did not “put up any fuss” about being asked to leave. He said Clark did not look intoxicated. He said he was speaking “alright” and his eyes were “okay”. Clark left and Michael Renton followed him out and showed him across the parking lot. He walked with him for one or two minutes and made no observations of Clark being intoxicated.
(i) Evidence of Lorainne Renton
[80] Lorainne Renton confirmed that she was the owner of Post-Time in October, 2011, having purchased the building and business in June 2011. She described the operation as “quite a family operation,” serving food and catering with a family clientele, and it also operated as a bar. It held a valid liquor license as of October, 2011. The liquor license provided for a maximum capacity of 213 persons, but fire regulations limited occupancy to a maximum of 180.
[81] Ms. Renton stated that on October 29, 2011 she worked from 8:00 a.m. until 6:00 p.m., when she returned to the apartment above the bar where she resided with her husband. Following her departure Christina and Sharon remained on duty as servers and her husband Michael and son Carl remained working. There was also a person working in the kitchen. She confirmed that both Christina and Sharon held Smart Serve certification as did she.
[82] Ms. Renton confirmed that she had planned a Halloween costume party for the evening of October 29, 2011. Post-Time had no history of holding similar events. The only advertising for the event involved the posting of an 8” x 10” flyer in the window stating that there would be a band and would be a “fancy-dress” ( i.e. costume) party.
[83] On cross-examination Ms. Renton acknowledged that the purpose of her having Smart Serve training was to ensure that the bar was run properly. She understood that her obligation was not to serve patrons to the point of intoxication nor to serve any alcohol to patrons who were already intoxicated.
[84] She acknowledged the possibility that someone might be more aggressive if they are intoxicated as well as the possibility that someone who is more aggressive may get involved in a physical altercation. She also acknowledged the possibility that the more intoxicated a person gets, the greater risk there is that there will be an altercation. Against this background Ms. Denton testified as follows:
Q. And at the same time, you understood that it was your responsibility, as the owner of the Post-Time on October 29, 2011, to ensure a safe environment for all of your patrons?
A. Yes.
Q. And a safe environment in this context would involve not having intoxicated people in it?
A. Yes.
Q. And again, without knowing an individual personally, if that individual is over-served, as a rule if you over-serve somebody to the point of intoxication, there is a greater risk that that person would become a danger to himself or to others?
A. Possibly.
Q. And the more intoxicated that person gets, the greater the risk that he’s going to be a danger to himself or others?
A. Very possible.
[85] Ms. Renton testified that she was hoping that more people than usual would show up on October 29, 2011. She could not recall whether she purchased extra alcohol for the event. She employed six servers at the time and had two on-duty on the evening of October 29, 2011. She would have preferred to have had another server available because she was hoping that more people would come. She believed that having another server on duty would lighten the load and make life easier for the servers. However, she believed that the two servers would be enough to serve 80 people, while complying with the obligations to monitor the consumption of alcohol, ensure that no one was served to the point of intoxication and to ensure that no one who was intoxicated was further served.
[86] Ms. Renton acknowledged that Smart Serve recommends the use of a blood alcohol concentration chart to assist in determining how many drinks to give a person and that such a chart was not posted at the bar. She stated that her servers were expected to rely upon what they had learned through the Smart Serve course.
Analysis
(a) Liability of Clark
[87] Baron and Benton base their claims against Clark on the law of battery.
[88] The Court of Appeal recently confirmed the basic principles respecting the law of battery in the case of Figueiras v. Toronto Police Services Board 2015 ONCA 208 at paras. 142-144 as follows:
[142] The tort of battery is committed whenever someone intentionally applies unlawful force to the body of another (Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 (S.C.C.), at p. 246). There is no requirement to prove fault or negligence (Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 (S.C.C.), at paras. 8-10). Nor is there a requirement to prove damage or injury (Norberg, at p. 263). Relatively simple acts can constitute a battery, such as restraining a person by grabbing their arm (Collins v. Wilcock, [1984] 1 W.L.R. 1172 (Eng. Q.B.), at p. 1180), or maliciously grabbing someone's nose (Stewart v. Stonehouse, 1926 CanLII 114 (SK CA), [1926] 2 D.L.R. 683 (Sask. C.A.), cited in Scalera, at para. 16).
[143] However, not every act of physical contact is a battery. As the Supreme Court has put it, battery requires "contact 'plus' something else" (Scalera, at para. 16). That is, there must be something about the contact that renders that contact either physically harmful or offensive to a person's reasonable sense of dignity (Malette v. Shulman (1990), 1990 CanLII 6868 (ON CA), 72 O.R. (2d) 417 (Ont. C.A.), at p. 423).
[144] The classic example of non-actionable contact is tapping someone on the shoulder to get that person's attention, or the regular jostling that occurs in any crowded area. Something more than that is required to constitute a battery.
[89] In Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 (S.C.C.), Justice McLachlin (as she then was) confirmed at para. 10 that trespass to the person is a "violation of the plaintiff's right to exclusive control of his person." She stated that this right is not absolute, because a defendant who violates this right can nevertheless exonerate himself by proving a lack of intention or negligence. She went on to state that a plaintiff in an action for battery need prove only a direct interference, at which point the onus shifts to the defendant to justify the intrusion, excuse it or raise some other defence, consent being one of them.
[90] These principles were recently applied by Perell, J. in the case of P.P. v. D.D. [2016] ONSC 258 (S.C.J.) at para. 80, where he stated:
Battery is a type of trespass to the person. Trespass to the person, which is actionable without damages, is the direct and forcible interference with a person without his or her consent. The tort of battery is aimed at protecting the personal autonomy of the individual and recognizes the right of a person to control who touches his or her body. The constituent elements of a claim for battery are simply that the defendant intentionally has physical contact with the plaintiff. The tort of battery is an intentional tort that consists of an unprivileged and unconsented to invasion of one's bodily security: Reibl v. Hughes, 1980 CanLII 23 (SCC), [1980] 2 S.C.R. 880 (S.C.C.) at p. 890. As a civil law matter, a person will be liable if he or she intentionally inflicts unlawful force, i.e., unconsented physical contact, on the plaintiff whether or not damage is caused: Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] 2 S.C.R. 226 (S.C.C.) at paras. 26, 53; Non-Marine Underwriters, Lloyd's London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551 (S.C.C.). Unlike fraudulent misrepresentation, consent plays a legally significant role in the torts associated with trespass to the person, and, as noted above, the absence of consent is a critical component of criminal sexual assault. Once the constituent elements of battery are proven, the onus then falls on the defendant to prove that the physical contact was unintentional or that plaintiff consented to the contact. In the civil law context, consent is a matter to be raised by the defence.
[91] The plaintiffs point out that Clark did not plead in his Statement of Defence that Baron or Benton consented to the physical contact which they say he inflicted upon them.
[92] Moreover, the plaintiffs rely upon s. 22.1(1) of the Evidence Act, R.S.O. 1990 c. E. 23 which provides as follows:
22.1 (1) Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,
(a) No appeal of the conviction or discharge was taken and the time for an appeal has expired; or
(b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.
[93] The plaintiffs say that Clark’s conviction of the charges of assault and assault causing bodily harm pursuant to his guilty pleas constitutes prima facie evidence of the constituent elements of the tort of battery as against each of Baron and Benton by virtue of the definition of assault in s. 265(1)(a) of the Criminal Code of Canada which provides that a person commits an assault when, without the consent of another person, he applies force intentionally to that other person, directly or indirectly.
[94] The plaintiffs did not rely upon the doctrine of abuse of process laid out by the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79 [2003} 3. S.C.R. 77 to seek to preclude Clark from re-litigating the question of whether he had committed assault and battery against them by adducing evidence to the contrary.
[95] Although the plaintiffs did not seek to preclude Clark from leading “evidence to the contrary” they say that he failed to prove any such evidence sufficiently to displace the prima facie evidence that he had committed assault and battery against them by virtue of his convictions based upon his guilty pleas.
[96] Clark was unable to offer any reliable evidence on what had led to him being on top of Baron on the floor at Post-Time. He stated that he became annoyed when Baron, dressed in a “Marilyn Manson” costume, placed his hands on him twice and the next thing he remembered was being on the floor on top of Baron.
[97] Clark stated that he had no memory of physical contact with Benton. He maintained that he “would not” put his hands on any woman, however, he was not able to offer any affirmative evidence that he did not do so to Benton on October 29, 2011.
[98] Clark acknowledged that at the time of his guilty pleas he instructed his counsel to substantially agree that to the statement of facts that he had thrown himself on top of Baron, breaking his leg, and that he physically assaulted Benton, causing her shirt to rip and her necklace to be torn off and pushed her aside.
[99] The agreed statement of facts, entered into evidence at the time of Clarke’s guilty plea, was supported by Benton’s testimony in this action. She stated that Clark jumped on top of Baron and that while she was trying to pull him off Baron, Clark grabbed either side of her costume and tore her top and necklace off and pulled off her brassiere. This evidence was not undermined on cross-examination.
[100] I am not satisfied with Carissa Skilling’s evidence that Clark punched Baron because it does not accord with the balance of the evidence represented by the statement of facts that Clark had agreed to on his guilty plea and Benton’s evidence. However, she did confirm that she saw Clark throw or push Baron to the floor.
[101] Although Clark testified that he considered Baron to have been the aggressor by placing his hands on him, I am not satisfied, on his evidence, that whatever physical contact may have been initiated by Baron had something about it that rendered it physically harmful or offensive to a person's reasonable sense of dignity. I find that Clark’s violent reaction to the innocuous contact by Baron was not reasonable but rather was brought on by his admitted intoxication, and that a reasonable person’s sense of dignity would not have been offended by such contact. Moreover, Clark did not plead, nor do I find, that by touching Clarke’s shoulders in the manner testified to by Clark, Baron consented to Clark jumping on him or pushing him to the floor.
[102] I am satisfied on a balance of probabilities that Clark committed the tort of battery against Baron and Benton and that he is therefore liable for the damages which they suffered as a consequence.
(b) Liability of Lorainne Renton o/a Post-Time Bar and Grill
[103] The plaintiffs rely upon what they characterize as two separate bases of liability as against Renton o/a Post-Time, the first being common law negligence, and the second being breach of statutory duty under s. 39 of the Liquor Licence Act R.S.O. 1990, c. L. 19. That section provides as follows:
The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:
If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.
If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.
[104] Although s. 39 of the Liquor Licence Act was not pleaded in the Statement of Claim, no objection was taken by counsel for Renton at trial to the statutory claim being pursued and full argument was made on it by both counsel. Moreover the Statement of Claim included, in the list of particulars of the “acts and omissions” of Post-Time which the plaintiffs say caused their injuries and damages, a claim that “it refused or neglected to comply with the service of alcohol provisions of the Liquor Control Act.” No further particulars were offered with respect to the “service of alcohol provisions” of the Liquor Control Act. It is evident that the plaintiffs, in referring to the Liquor Control Act may have intended to refer to the Liquor Licence Act.
[105] In these circumstances the plaintiffs should not be precluded from pursuing their claim against Post-Time based upon s. 39 of the Liquor Licence Act notwithstanding that it was not pleaded in the Statement of Claim.
[106] There is no serious dispute that at common law Post-Time, as an alcohol-serving establishment, owed a duty of care to Baron and Benton, as patrons, to take reasonable care to prevent the risk of injury from another patron who may have been over-served with alcohol at the establishment and who may come in contact with them.
[107] In the case of Stewart v. Pettie 1995 CanLII 147 (SCC), [1995] 1 S.C.R. 131 Major, J., speaking for the Court and citing the case of Jordan House Ltd. v. Mellow 1973 CanLII 16 (SCC), [1974] S.C.R. 239, confirmed that a duty of care exists between alcohol-serving establishments and their patrons who become intoxicated, with the result that they are unable to look after themselves. At paragraph 28 he went on to state that it is a logical step to move from finding that a duty of care is owed to patrons of the bar to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron and to whom the patron may pose some risk.
[108] There was clearly a sufficient degree of proximity between Post-Time, on the one hand, and Baron and Benton on the other, to find that a duty of care clearly existed between them.
[109] The issues in controversy in this case relate to whether the applicable standard of care was not adhered to by Post-Time and the application of the concept of foreseeability.
[110] With respect to the standard of care, at para. 35 of Stewart, Major, J. stated that no liability can flow from the mere fact that the establishment in question may have over-served the patron, and that to hold that over-serving per se is negligent is to ignore the fact that injury to a class of persons must be foreseeable as a result of the impugned conduct. He held that the mere fact that an individual is over-imbibing cannot lead, by itself, to any risk of harm to third parties. It is only if there is some foreseeable risk of harm to the patron or to a third party that the alcohol-serving establishment will be required to take some action.
[111] Counsel for the plaintiffs in this case submits that, in making these observations, Justice Major was “talking about abstractions,” whereas in the context of this case Ms. Renton agreed on cross-examination that if there is over-imbibing to the level described by Clark that it was “very possible” that there would be an injury. He says that, on this basis, it was subjectively foreseen or foreseeable by Ms. Renton that an injury could result from Mr. Clark being intoxicated to the point that he demonstrated. Although plaintiffs’ counsel acknowledged that mere possibility does not equate to foreseeability, he argues that the expression “very possible” utilized by Ms. Renton elevated the possibility to a level which would satisfy the test for subjective foreseeability.
[112] There are a number of difficulties with this submission. First, contrary to what plaintiffs’ counsel submitted, Ms. Renton did not state that it was “very possible” that, to use the words of counsel in submissions, “when a person exhibited the signs of intoxication or was in the condition described by Mr. Clark; heavily intoxicated; unsteady on his feet; glassy eyes; slurred speech… there was a heightened risk of injury to others from a person who had been served alcohol to that point.” As indicated above, Ms. Renton’s “very possible” comment was not in reference to specific evidence of Clark’s exhibited condition, but rather to the general proposition that “the more intoxicated [a] person gets, the greater the risk that he’s going to be a danger to himself or others.” Ms. Renton was making no comment or observation with respect to any risk posed by Clark’s condition in particular on the evening in question.
[113] Second, in the context of the line of questions put to Ms. Renton I find that Ms. Renton was using the expression “very possible” as equivalent to “possible.” The expression would be considered equivalent to the expressions “entirely possible” or “certainly possible.” Her purpose was not to elevate the “possibility” in answer to the question of whether “the more intoxicated [a] person gets, the greater the risk that he’s going to be a danger to himself or others” over the possibility that she agreed to in reference to the immediately previous question of whether “if [an] individual is over-served, …to the point of intoxication, there is a greater risk that that person would become a danger to himself or to others.”
[114] Thirdly, common law negligence has to do with the existence of reasonably foreseeable harm. The Saskatchewan Court of Appeal in the case of Wandy v. River Valley Ventures Inc. 2014 SKCA 243, at para. 21 characterized the duty of care owed by a commercial host to a patron, citing the Stewart and Jordan House cases in the Supreme Court of Canada, as requiring a commercial host to protect its patrons from reasonably foreseeable harm. A finding of liability at common law in the present case does not, in my view, depend upon the subjective belief of Ms. Renton, but rather on a finding that the harm was reasonably, or objectively, foreseeable. The fact that Ms. Renton was of the opinion that it was “very possible” that “the more intoxicated a person gets, the greater the risk that he is going to be a danger to himself or others” does not contribute to the analysis. If, for instance, Ms. Renton had expressed a belief that it was “very possible” that a patron consuming as little as one drink would become violent as a result, that would not, in my view, support a finding that the harm was foreseeable. Conversely had she expressed the belief that there would be no possibility of violence regardless of the amount consumed, that would not prevent a finding that the harm was foreseeable.
[115] In Wandy the plaintiff was struck by a chair thrown by an intoxicated patron of the defendant bar. The intoxicated patron engaged in a loud and heated argument with his girlfriend and when the girlfriend got up to leave he made a loud and disparaging remarks to her and intentionally or accidentally tipped the table over where he was sitting causing the beverage glasses on the table to fall to the floor and break. Immediately thereafter a patron sitting at the plaintiff’s table made a sarcastic comment which angered the intoxicated patron, prompting him to loudly ask “who said that?” When no one responded he threw the chair that struck and injured the plaintiff.
[116] The trial judge applied the principles articulated by Major, J. in Stewart, referred to above, and concluded that there was no foreseeable risk of harm arising out of the patron being over-served alcoholic beverages and therefore the bar was not required to take any additional measures to protect the plaintiff. The trial judge found as facts that 1) there was nothing in the patron’s conduct, prior to his angry response to a sarcastic comment by another patron, that should have caused the bar to be concerned for the safety of its other patrons and 2) there was insufficient time between the intoxicated patron’s angry response and the time he threw the chair that struck the plaintiff for the bar to have intervened.
[117] The Saskatchewan Court of Appeal observed that there was no prior misconduct or potential misconduct giving rise to a foreseeable risk of harm and dismissed the appeal, concluding that the trial judge made no palpable or overriding error in her application of the facts to the applicable standard of care.
[118] The plaintiffs in this case acknowledge that there is no evidence that the staff at Post-Time knew or should have known of any propensity or inclination on Clark’s part to become violent or a risk to other patrons in the bar should he become intoxicated. To put it in the terms expressed in Wandy, there was nothing in Clarke’s conduct, prior to the altercation with Baron, that should have caused the staff of Post-Time to be concerned for the safety of its other patrons, including the plaintiffs. I also find, as did the trial judge in Wandy, that there was insufficient time between when the verbal altercation commenced between Baron and Clark and when Clark pushed or jumped on Baron, forcing him to the floor, for the bar staff to have intervened.
[119] I find as a fact that Clark was intoxicated at the time of the altercation with Baron, having consumed at least seven or eight beers, being two or three prior to his arrival at Post-Time and five beers while there. It is possible that he consumed more, however, the evidence is too equivocal for me to make a reliable finding on the amount of alcohol he consumed. Although no toxicologist testified to the level of Clark’s intoxication, I find on a balance of probabilities that he was heavily intoxicated. He testified that his objective in going to Post-Time was to get drunk. He acknowledged that he was drunk by the time of his interaction with Baron and Benton. Benton. Carissa Skilling and Tom Skilling all testified as to their observations of Clark’s condition. Carissa described him as “fairly intoxicated” and Tom described him as “pretty intoxicated.” Benton described him as “clearly intoxicated” and “completely out of it.” Clark acknowledged that he blacked out and had very little memory of the events of the evening.
[120] I also find that Clark was not intoxicated upon his arrival at Post-Time, but became intoxicated as a result of the alcohol he was served there. The staff at Post-Time therefore served Clark to the point of intoxication or beyond and therefore were in breach of their obligations under the Liquor Licence Act and the regulations under that Act.
[121] However, on the authority of Stewart, the fact that the patron who caused the damage was over-imbibing is insufficient, by itself, to give rise to liability on the part of the alcohol-serving establishment in negligence. There must also exist a foreseeable risk of harm arising out of his being over-served so as to require the establishment to take steps to protect the plaintiffs.
[122] On the question of the liability of Post-Time based on common law negligence, this case is, in all material respects, indistinguishable from Wandy. Although, as a decision from another jurisdiction Wandy is not binding on me, as an appellate decision it must be regarded as highly persuasive. Moreover, it applies the principles articulated in Stewart which is binding on me. In my view, the applicable principles in Stewart were correctly applied by the trial judge and the Saskatchewan Court of Appeal in Wandy. Indeed, I did not understand counsel for the plaintiffs to argue that the court in Wandy failed to properly apply the principles in Stewart.
[123] For these reasons I am unable to find Lorainne Renton liable to the plaintiffs on the basis of common law negligence.
[124] However, that does not end the matter as the plaintiffs also rely upon the statutory liability set forth in s. 39 of the Liquor Licence Act.
[125] The plaintiffs say that there is a distinction between the concept of foreseeability at common law and that prevailing under 39 of the Liquor Licence Act. They point to the language of the section “whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person” (emphasis added) and submit that the focus of the section is on the “condition” rather than on the establishment’s knowledge of the person’s particular propensity.
[126] In the case of Dickerson v. 1610396 Ontario Inc. 2010 ONCA 894 the Court of Appeal had occasion to consider the correctness of an instruction given by a trial judge to a jury with respect to the application of s. 39 of the Liquor Licence Act. The trial judge instructed the jury that the defendant bar “breached its standard of care if it served a patron to or beyond the point of intoxication where it was reasonably foreseeable that the patron’s condition was such that he might harm himself or someone else” (emphasis added). The Court of Appeal held at para. 32 that these instructions properly charged the jury with the task required of them by s. 39 of the Act.
[127] Although the phrase “reasonably foreseeable” is not in the section, the Court of Appeal found that the concept of reasonable foreseeability is properly imported into its interpretation. In my view the phrases “a person whose condition is such” in the section or “the patron’s condition” in the jury instruction in Dickerson are no different than stating “the patron in his intoxicated state.” The “condition” is not separated or isolated from the “person.” In my view the focus remains on the person and whether “he or she would be in danger of causing injury.”
[128] The Court of Appeal in Dickerson noted, in obiter, at para. 35-36, that there are two respects in which the statutory liability analysis required by s. 39 may differ from that required by the common law of negligence, while observing that, in practice, circumstances where either would arise are difficult to imagine. First, s. 39 requires only that the risk of injury be reasonably foreseeable, not that in a general way the type or kind of injury actually suffered be reasonably foreseeable and second, s. 39 requires only that there be a reasonably foreseeable risk of injury to another person, not that the person injured be within the category of persons foreseeably at risk.
[129] In my view, neither of the differences identified by the Court of Appeal between the statutory analysis under s. 39 and the analysis under the common law of negligence come into play or are pertinent in the present case.
[130] The plaintiffs were unable to point to any other authority distinguishing between the foreseeability analysis under s. 39 of the Act and that under the common law of negligence,
[131] In the case of Kauk v. Dickson [2005] O.J. No. 3633 (S.C.J.), aff’d 2008 ONCA 97 (C.A.) the plaintiff was beaten and sexually assaulted by a patron who became intoxicated at the defendant bar. The plaintiff had also been a patron at the bar and met the perpetrator there. The plaintiff relied upon s. 39 of the Liquor Licence Act in seeking to attach liability to the bar.
[132] The trial judge, Tucker, J., held at para. 98 that the language of the section imported “a degree of foreseeability into the legislation whereby the person who sold the liquor would have to understand that the level of intoxication would result in injury and anticipate the nature of the injury to another person.”
[133] At paras. 115-166 Tucker, J. observed that the bar was not made aware of any issues arising from the perpetrator’s comments to the plaintiff that might have alerted them to have a concern about his state of mind and there was no evidence of any behaviour of which the bar knew on the evening in question that the perpetrator was a physical threat to the plaintiff or to anyone. At paras. 117-118 Justice Tucker stated:
In this case, the "nexus" is not there between the "over" service of alcohol and the deliberate sexual assault such that the bar would have the ability to act as a reasonable organization and prevent the assault. This remoteness of the event that occurred ties in directly with the lack of foreseeability on the facts of this case. The bar had knowledge that Mr. Dickson was a difficult patron. The level of aggression they found to be one of arrogance not violence. No evidence was put forth of any action that could have been taken by the bar to prevent the assault even if it had been foreseeable.
Ms. Kauk's argument that the bar knew Mr. Dickson to be violent is without a factual basis other than the statements of Mr. Dickson unsubstantiated by anyone and contradicted by Mr. Benko, whose testimony I accept. Therefore there would be no reason for the bar to conclude that they had any knowledge that Mr. Dickson would commit an assault upon Ms. Kauk let alone a sexual assault. (emphasis added)
[134] At para. 121 Justice Tucker held that even, as she found, the Liquor Licence Act was breached by the over-service of alcohol to the perpetrator, she did not find it foreseeable that his actions could have been predicted or prevented by the interactions or actions of the bar owners or operators. The action against the bar was dismissed.
[135] Justice Tucker’s decision at trial was upheld by the Court of Appeal at 2008 ONCA 97. The Court stated at para. 1:
The trial judge was entitled to find on the record that the bar and its employees could not have reasonably foreseen that Dickson would assault anyone as a result of his drinking at the bar. Although there may well have been steps the bar could have taken to prevent the assault had it been reasonably foreseeable, because it was open to the trial judge to find that it was not reasonably foreseeable, there is no basis to interfere with the conclusion that the bar was not liable to the appellant.
[136] Similarly in the present case, although I have found that Post-Time over-served Clark, his physical assaults on Baron and Benton were not foreseeable such that they could have been predicted or prevented by the staff on duty at the bar.
[137] I find, on the authorities referred to above, that there is no functional difference, on the facts of this case, between the analysis related to foreseeability at common law and under s. 39 of the Liquor Licence Act.
[138] I do not accede to the argument of plaintiffs’ counsel that the legislature, in passing s. 39 of the Liquor Licence Act, must have intended a different analysis of foreseeability than under the common law. The Court of Appeal in Dickerson observed, at para. 23, that s. 39 in its present form has been in the Act since 1990 (that is prior to Stewart) and it was first introduced into the legislation in very similar form in 1946, to replace a differently worded provision first enacted in 1889. I have been provided with no evidence of legislative history which would suggest that the Legislature, in enacting s. 39, intended a more relaxed or different standard of foreseeability than that which prevails under the common law of negligence. The analyses of the courts in Wandy (which applied the common law) and in Kauk (which applied s. 39) suggest that the same standard of foreseeability applies.
[139] I therefore find that no liability attaches to Ms. Renton o/a Post-Time under s. 39 of the Liquor Licence Act for the plaintiffs’ injuries.
[140] The action must therefore be dismissed as against her.
Damages
(a) Evidence of Brandon Baron
[141] At the time of the incident on October 29, 2011 Baron was employed full time by Krug, an office furniture manufacturer in Kitchener. He earned $14.15 per hour. He commenced his employment at Krug in October 2007 as a Finisher C. He worked as a Finisher C at Krug’s Manitou Avenue location until August 22, 2011 when he was transferred to its downtown location as a trimmer. There was no raise in pay and it was considered a lateral move. The duties of a trimmer did not differ significantly from his previous position as a finisher which involved finishing woodwork in a factory setting.
[142] Baron and Benton lived with their children in a rented townhouse in Kitchener.
[143] Following the incident Baron’s left leg was operated on at Guelph General Hospital by Dr. D. Armstrong, an orthopedic surgeon, on October 30, 2011. An open reduction, internal fixation of the Baron’s left tibia was performed and plate and screws were installed.
[144] Baron testified that he remained at Guelph General Hospital for 3 to 5 days. He also testified that he wore an orthopedic boot on his leg for a few months and used crutches for at least a few months. Following surgery he was prescribed acetaminophen, oxycontin, oxycodone and morphine. He could not recall when he took these medications and for how long.
[145] When he left the hospital he was not able to walk on his own and described the pain as “unbearable.” When he initially went home from the hospital he stayed on the couch on the main level of the townhouse as he is not able to access in the bedroom on the upstairs level. He said he needed help from Benton to get up to go to the washroom.
[146] Benton took time off work to care for him but he did not know for how long.
[147] Baron testified that he was prescribed Percocet by Dr. Armstrong for pain relief but could not remember how long he took it.
[148] During the period following the incident he described his condition as not well, mentally or physically. He felt that he was getting anxiety and had started feeling depressed. Although he had symptoms of depression and anxiety before the incident, it became more pronounced following the incident.
[149] His children were aged one and three as of November, 2011. He stated that before the incident he had a good relationship and spent a lot of time with them. He helped Benton with changing and feeding however, he could not do so after the surgery and was unable to move around the house without assistance.
[150] Baron indicated that he attended physiotherapy three times per week.
[151] Baron indicated that he was taking Tylenol and Advil in November, 2011 but could not remember whether he was taking oxycodone or Percocet.
[152] Baron attended with Dr. Armstrong on December 29, 2011. Dr. Armstrong’s clinical notes reported that Baron continued to have some discomfort and was trying to increase his weight-bearing and continued to take some Tylenol and Advil. He was not able to return to work at that time. Dr. Armstrong planned to see him again in five weeks’ time.
[153] Dr. Armstrong’s clinical note on March 29, 2012 recorded that Baron’s pain was improved and he was doing well. He continued with physiotherapy twice a week and was continuing with weight-bearing as tolerated. Baron was going to try to return to work on April 16 beginning at four hours per day, increasing by two hours per day every two weeks until he reached his full employment hours.
[154] Baron testified that he tried returning to work on April 16, 2012 and remembered working in the office typing on a computer four hours a day for a couple of weeks. He said that he was not getting along with Benton at that time.
[155] A clinical note of Dr. Armstrong on November 1, 2012 recorded that Baron had some ongoing soreness and achiness in the tibia and down into his ankle. He also indicated that he had returned to work full time and had been standing on his leg. X-rays showed the tibia fracture as being healed and there were no loose screws. Dr. Armstrong considered the question of whether his ongoing achiness would be helped with hardware removal. It was decided to continue with physiotherapy and with no surgery. Dr. Armstrong noted that he left things open and if Baron’s symptoms continued or worsened he would see him for a review and that he may need to remove his hardware.
[156] Baron was unable to recall if he continued in therapy or if he continued with home exercises and medication.
[157] Ben testified that as of November 2012 he and Benton were “struggling”. They were not getting along well and were having a lot of arguments. He stated they had difficulty keeping together as a family.
[158] On July 9, 2013 Dr. Armstrong saw Baron for a follow-up. His letter to Baron’s family doctor indicated that Baron had been off work since May 28, 2013 because of ongoing pain and discomfort in the lower tibial region. Dr. Armstrong indicated that he felt that Baron might be helped with removal of the hardware but he could not guarantee it. Baron decided to go ahead with the surgery. The hardware removal surgery was performed on August 16, 2013.
[159] Baron testified that in May 2012 he separated from Benton and from towards the end of 2012 he was living in Paris with another woman named Taylor Canning. He indicated that Benton was with someone else and he felt that the marriage had ended. He indicated that it was Benton’s decision to separate. He was drinking too much and was under different medications. He said that he was drinking 5 to 6 bottles of beer a day or 24 a week, but could not remember what medications he was taking.
[160] Baron indicated that he was drinking because he wanted to get rid of the pain in his leg.
[161] He testified that removal of the hardware in August, 2013 did help alleviate the pain in his leg.
[162] Baron testified that in 2013 he was able to drive to work. He indicated that he had some problems with the pain and felt that he had a problem with circulation in his leg while driving.
[163] Baron resigned his employment with Krug on September 23, 2013. He testified that his leg was the “really sore” and he was unable to get through an eight hour shift. He could not recall whether he had any discussions with Krug about changing his duties.
[164] Baron stated that he ended his relationship with Ms. Canning at the beginning of 2014 and moved to his parents’ home in Arthur Ontario.
[165] On February 12, 2014 Baron applied for employment at Musashi Auto Parts in Arthur. He began work in March 7, 2014 in the production department at $15.36 per hour.
[166] When he started at Musashi he worked the day shift from 7 a.m. to 3:30 p.m. and later moved to working 12 hour shifts on fewer days. He stated that he had a lot of pain after each 12 hour shift. Baron stated that after work he took Tylenol and also took a bath and after one hour felt better. However he stated that he did not feel “all the way better” as he was before the incident.
[167] Baron stated his position at Musashi was a good job and, although he liked it, he did not like it as much as Krug. He liked the woodworking and finishing aspect of the job at Krug.
[168] Baron stated that by October, 2014 his leg was still hurting after work.
[169] On February 23, 2015 Baron resigned from his position at Musashi. He stated that Benton had been in a very abusive relationship with another man and she wanted to go with the children to a place that was safe. Baron and Benton were still married but remained separated. They both moved to British Columbia with the children where they reside in the same home but remain separated.
[170] Baron stated that he is able to interact with the children every day. He takes them regularly on outings to the park and also takes them swimming to a lake.
[171] Commencing in September 2015 Baron began working for a temporary agency called “Labour-Ready” in British Columbia. He has remained employed with Labour-Ready since that time. Prior to joining Labour-Ready he was receiving employment insurance benefits. He stated that he works in “very physical stuff” including shoveling and picking things up, 8 to 9 hours per day. He described it as being “hard on me” and stated that at the end of the workday is sore, would have a headache and a sore neck. He states that he has to elevate his leg after work. He indicated that there are no other triggers for pain apart from work.
[172] On cross-examination Baron acknowledged that he had attended with his family physician Dr. Savard on September 29, 2011 (one month prior to the incident) complaining of depression. He advised Dr. Savard that he had been feeling angry, sad and depressive and had experienced some paranoiac feeling. For example he felt like others at work were talking about him even though he knew better. He stated that he snapped easily with his children and his wife. Dr. Savard prescribed Ciprolex for anxiety. He filled three prescriptions of Ciprolex prior to the incident.
[173] Baron maintained on cross-examination that prior to the incident he was only drinking a six-pack of beer a week. However, he confirmed that he told staff at the Guelph General Hospital upon his admission that he was in the habit of drinking 6 to 7 beers per day or 24 beers per week.
[174] Baron’s claims history with the drug plan through Krug indicated that three prescriptions for Percocet were filled, on November 1, November 8 and November 14, 2011.
[175] Baron’s physiotherapy records indicated that he received physiotherapy from November 18, 2011 to June 19, 2012. The records indicated that he was discharged because he failed to show up for any appointments subsequent to June 19, 2012. He acknowledged on cross-examination that he simply stopped attending for physiotherapy.
[176] Records produced on cross-examination indicated that Baron attended counselling sessions with Mosaic Counselling and Family Services commencing February 8, 2012. He attended sessions with the counsellor on three occasions, cancelled five times and finally failed to show up on May 16, 2012.
[177] Commencing on May 27, 2012 Krug reinstated a “work sharing” program whereby plant workers’ hours were reduced and employment insurance benefits were paid in order to avoid outright layoffs. Baron continued on work sharing until August 2012, and then again from February 3 to March 24, 2013.
[178] Baron stated that during the summer of 2012 he was living in Kitchener with a roommate. He was working five days a week five days a week and rode a bicycle to get to work. It was a 10 km bike ride each way. He confirmed that he only stopped riding the bicycle when it was stolen.
[179] Baron and Benton separated in May, 2012. Benton commenced a relationship with a new partner “Les” one month later. Baron began dating Taylor Canning in the fall of 2012 and began living with her in Paris, Ontario in January, 2013.
[180] Baron acknowledged posting on Facebook photos of himself on an outing with Ms. Canning’s daughter at a children’s play facility “Kidtastic” on February 10, 2013. He was depicted going down a slide. He maintained that his leg was still sore but it did not stop him from playing with children.
[181] Baron acknowledged being seen, at the request of his counsel, with an occupational therapist Maria Ross on April 2, 2013 followed by a two-day standardized Functional Capacity Evaluation. He acknowledged that, prior to attending with Ms. Ross, he was able to attend work regularly. He said that he was “pretty sore” while undergoing the evaluation at Ms. Ross’ office. He stated that he stopped working at Krug permanently following his attendance with Ms. Ross.
[182] Baron met with Dr. Gouws, psychologist, for an assessment at the request of his counsel on July 19, 2013. At the time that he met with Dr. Gouws he was not working. When asked why he was off work at that time he responded that he was not sure.
[183] Following the surgery in August 2013 to remove the hardware from his leg Baron was cleared by Dr. Armstrong to return to work. He also attended with his family doctor Dr. Savard who also advised him to return to work. Dr. Savard would not agree to support a claim for disability benefits.
[184] Baron stated on cross-examination that, following the surgery to remove the hardware, the level of pain in his leg was not as bad and he thought that his ability to function was improved. He indicated that he was able to perform housekeeping. He last saw Dr. Savard on September 5, 2013 and Dr. Armstrong at the end of August, 2013. Subsequent to that time he was never under the care of any physician in respect of the injury to his leg.
[185] Notwithstanding the advice of Dr. Armstrong and Dr. Savard to return to work, as indicated above, he resigned his position at Krug. He was living with Ms. Canning in Paris, Ontario at that time and by January 13, 2014 he was working at Paris Kitchens, in Paris Ontario doing the same type of work as he had done at Krug. He worked at Paris Kitchens for a short time but when he broke up with Ms. Canning he moved back to his parents’ home in Arthur, Ontario and obtained a position at Musashi Auto Parts.
[186] After obtaining an offer of employment from Musashi Baron underwent a physical demands evaluation to test his ability to meet the essential demands of the job. The evaluation included hand grip tests, dynamic lifting/push/pull tests, carrying tests, reaching tests and balance tests. The evaluation concluded that he was able to perform the essential job demands of the position at Musashi.
[187] Baron continued working at Musashi until February 19, 2015 when he resigned to move with Benton and their children to British Columbia
[188] Baron testified that he enjoys spending time with his children, taking them to the park and swimming as well as on car trips. He and Benton went on a trip to Whistler with the children in April 2016. He indicated that he does some hiking, both with the children and by himself.
(b) Evidence of Sara Benton
[189] Benton’s evidence in her examination in chief with respect to the effects of the incident of October 29, 2011 on her specifically was brief. She stated that she had post-traumatic stress disorder at the time which “spiraled out of control” after the attack. When asked whether she was still suffering from having her breasts exposed publicly in the Post-Time Bar and Grill, she stated that it continues to bother her and she feels that this is not going to go away. She stated that until the incident she did not have to deal with what had happened to her as a child but the incident brought that experience back into her head and she began to experience nightmares. She thought that any man that she encountered was going to hurt her. She felt that being exposed in that way was not something that she was comfortable with.
(c) Evidence of Dr. Robert Teasell
[190] Dr. Robert Teasell, a specialist in physical medicine and rehabilitation, examined Baron, at the request of plaintiffs’ counsel, on February 26, 2016 to conduct an independent medical evaluation of him.
[191] Dr. Teasell’s review and investigation comprised three aspects.
[192] The first aspect consisted of a review of Baron’s medical history provided by plaintiffs’ counsel, consisting of the records of Dr. Armstrong, the orthopedic surgeon, Dr. Marcus, another orthopedic surgeon, a psychologist Dr. Gouws, an occupational therapist Maria Ross, and the report of the Dr. Marks, an orthopedic surgeon who conducted an independent medical examination at the request of defence counsel.
[193] The second aspect comprised an interview with Baron,
[194] The third aspect comprised a physical examination of Baron.
[195] As a result of his investigations, Dr. Teasell formed the opinion that, notwithstanding that the surgery to correct the fracture of Baron’s left tibia went well and the fracture healed, symptoms persisted, as it does in one in seven cases, creating difficulties with walking and standing tolerances and some challenges with swelling, particularly at the end of the day.
[196] Dr. Teasell also noted that Baron was experiencing neck pain, and on the basis of Baron’s report, that it had been a problem since the incident, Dr. Teasell thought that it appeared that he had injured his neck around the right cervical 2-3 area, which is up near the back of the head. He thought that fascia joint injury was the likely cause of the neck pain.
[197] Dr. Teasell noted that Baron had subsequently developed some pain around his shoulder blade, which he thought was secondary to the neck pain.
[198] Dr. Teasell expressed the view that, as a result of his injuries Baron, would have difficulty with standing for prolonged periods of time, walking for distances and running, as well as some challenges with overhead work, pushing and pulling. He thought that he was also limited, because of his education and skill set, from performing more than physical types of work, which would be challenging with these types of restrictions.
[199] Dr. Teasell expressed the opinion that Baron’s neck and leg pain resulted in a sequelae of events, including a dramatic impact upon his family relationships, and that this all was a consequence or resulted from the incident on October 29, 2011.
[200] With respect to the prognosis for Baron’s condition to change into the future, Dr. Teasell stated that he would anticipate that his symptoms would stay very much the same because he continued to experience symptoms 4 ½ years after the event. However, he would not expect that the symptoms and difficulties would get worse. He stated that soft-tissue injuries, like those complained of by Baron, tend to stabilize.
[201] On cross-examination Dr. Teasell acknowledged that he was not aware that the first version that the plaintiffs told hospital staff was that Baron had fallen down four stairs, and that if he had known that it would have had an impact on his opinion as it would affect his view of Baron’s credibility and the reliability of the history that he took from him.
[202] Dr. Teasell also acknowledged that the records with which he was provided did not disclose any complaints of neck pain by Baron to any other professional. Dr. Teasell acknowledged on cross-examination that this does cause him some concern. Dr. Teasell did not notice from the massage therapy report from February, 2012 that Baron told the therapist that there were no other injuries at the time of the incident, other than the leg fracture. He acknowledged that this would raise some questions.
[203] Dr. Teasell also acknowledged that he did not review the clinical notes and records of Baron’s family doctor Dr. Savard. He was therefore unaware that Baron had been prescribed an antidepressant by Dr. Savard prior to the incident.
[204] On cross-examination it was pointed out to Dr. Teasell that Baron had misled his employer and the Workplace Safety and Insurance Board (WSIB) in April, 2009 by telling them that a can of finish had fallen on his right hand causing a fracture whereas, as acknowledged by Baron on cross-examination, the injury resulted from him punching something because he was upset or angry. Dr. Teasell acknowledged that the fact that Baron misled someone previously in a compensable situation is relevant to the degree to which he could accept what Baron was telling him.
[205] Dr. Teasell stated that it was his understanding that Baron’s condition was not significantly improved by the removal of the hardware by Dr. Armstrong in August, 2013. He stated that he thought Baron found that it was just too much for him to continue working at Krug, but he did not know that for a fact. He did not have a note of reviewing Dr. Armstrong’s post-operative report from September, 2013 clearing Baron to go back to work. He was also unaware that Dr. Savard had recommended that he return to work.
[206] Dr. Teasell also acknowledged that he was not aware that Baron became employed at Paris Kitchens in early 2014. He stated that would have been something that he would want to have known. He also stated that he did not know how long he worked at Musashi, and in particular that he worked there for a year, although that would have been important information. He was also not aware that Baron underwent a functional capacities evaluation by a physiotherapist prior to commencing work at Musashi.
[207] Dr. Teasell acknowledged that he did not put any restrictions on Baron, although it would have been open to him to do so.
(d) Evidence of Dr. Jacques Gouws
(i) Examination of Brandon Baron
[208] Dr. Jacques Gouws, a registered psychologist called by the plaintiffs, was qualified as an expert to give opinion evidence in the area of psychology, and in particular, in the assessment, diagnosis and treatment of psychological disorders.
[209] Dr. Gouws conducted a clinical assessment of Baron on July 19, 2013. The clinical assessment of Baron consisted of a number of steps, firstly a review of the medical brief provided to him, secondly a clinical interview with Baron, and thirdly a psychometric assessment of him. Based upon all of the data generated through the clinical interview, the medical file review, his observations and the psychometric assessment, Dr. Gouws compiled a report in which he offered his opinion.
[210] Based upon his clinical interview, Dr. Gouws testified that it seemed that Baron was having all of the symptomatology that psychologists associate with a diagnosis of post-traumatic stress disorder. He also said that he measured very high on what psychologists call disassociation, which is a defence mechanism by which an individual who had been traumatized tries to switch off or defend himself against the intrusive thoughts and the negative experiences emotionally that relate to a traumatic experience. In men in particular, anger outbursts are very common as well as substance abuse, which could be either drugs or alcohol.
[211] In respect of the psychometric testing, Dr. Gouws administered the following tests to Baron:
(a) Personality Assessment Inventory;
(b) three tests from the Beck Mood and Anxiety Assessments, being the Beck Depression Inventory (2nd Ed.), the Beck Anxiety Inventory and the Beck Hopelessness Scale;
(c) the Pain Patient Profile and the Multi-Dimensional Pain Inventory to assess for pain; and
(d) the Detailed Assessment of Post-Traumatic Stress and the Trauma Symptom Inventory to assess for trauma; and
(e) the Salmon Rehabilitation Checklist.
[212] Dr. Gouws stated that he was able to determine that overall the psychometric testing which he administered represented a valid assessment. Based upon the validity index scale scores and based on the consistency of certain constructs to be similar across the various tests, the psychometric tests confirmed that Baron presented with depression, anxiety, post-traumatic stress disorder and chronic pain disorder. He stated that the overall clinical picture that came from the testing indicated that Baron was suffering with a significant degree of impairment of function which contributed to a significant degree of inability to perform his normal activities of daily living at vocational and avocational levels.
[213] Based upon all of his review, testing and interview with Baron, Dr. Gouws formed an opinion with respect to his psychological condition. He diagnosed Baron with a number of conditions.
[214] He stated that the primary focus of Baron’s clinical presentation was of chronic pain disorder and that the most appropriate diagnosis would be that of chronic intractable pain, meaning that he had sustained an injury to a particular body part which continues to exhibit significant pain symptomatology affecting his functioning in all activities of daily living. Dr. Gouws also stated that Baron meets the supplemental diagnosis for limitation of activity due to disability.
[215] Dr. Gouws also diagnosed Baron with recurrent depressive disorder. He indicated that in the two years from when he was injured until he was examined there were repeated depressive episodes. A repetition of depressive episodes that keeps going for a period of two years or longer meets the criteria for a recurrent depressive disorder, which means that there may be periods of downtime and there may be periods of uptime but it will be continuing.
[216] Dr. Gouws stated that the next diagnosis was one of post-traumatic stress disorder. He put the post-traumatic stress disorder in the third position of the diagnoses because there is a high degree of dissociation or numbing which comes out when the other two diagnoses are very prevalent. When Baron is having better days, they are not so prevalent because of the dissociation which is a defence mechanism that mitigates somewhat against that.
[217] Dr. Gouws was of the opinion that, in the absence of any information that he suffered from any of these conditions to the severity level prior to the assault, it would appear that, but for the assault, he would not have this presentation.
[218] Dr. Gouws stated that at the time that he assessed Baron the prognosis was not good. He stated that if Baron does not get proper, timely and intensive treatment he is not going to get better and is likely going to get worse and, once that happens, most of the conditions will become entrenched.
[219] Dr. Gouws recommended extensive treatment from a psychological perspective involving a weekly program of at least 32 weeks, based on best practices for complex cases. Following that Baron should continue in more infrequent follow-up for the next two or three years. His overall recommendation called for about 105 hours of treatment, the cost of which, based upon the Ontario Psychological Association fee schedule of $220 per hour, would comprise about $23,000.
[220] On cross-examination Dr. Gouws acknowledged that, in conducting his clinical interview of Baron, his job was to accept everything the Baron said and to write it down in order to obtain his perspective. Although he stated that he would normally cross reference Baron’s version that he became addicted to prescription painkillers against the medical records to see if it makes sense, he did not have the prescription history in Baron’s case.
[221] Dr. Gouws also acknowledged that he did not have comprehensive physician notes relating to Baron. He was not able to tell whether Baron was able to accurately describe affected his withdrawal symptoms from the medication.
[222] Although Dr. Gouws noted that Baron told him that he drank beer excessively in order to try to control the pain following the assault, he acknowledged that he did not ask him how much he drank before the incident and was unable to say whether Baron told him how much he drank before that time. Although he formed the perception that alcohol was not a problem prior to the incident, he was not able to say how he drew that perception. Dr. Gouws acknowledged that Baron realized that it was the stress of the relationship with Benson that resulted in in him drinking so much.
[223] Dr. Gouws acknowledged that he was not told that Baron and Benton had been separated for a brief period prior to the incident. He agreed that the fact that Baron had been prescribed Ciprolox prior to the incident would suggest that there were marriage problems and would also suggest some depression at that time.
[224] During his interview Baron denied any functional restrictions in any areas of daily function and reported that he was able to do home chores depending on fatigue and the intensity of his pain. He was able to do his chores but he may have to space them out.
[225] Dr. Gouws agreed that Baron had misled his employer and WSIB about the incident in April 2009 when he told them that something had fallen on his hand, when actually he had hurt his hand punching something out of frustration or anger. Based upon that incident and the doctor at the hospital being misled with respect to the cause of his injury on October 29, 2011, Dr. Gouws acknowledged that Baron is willing to mislead if it suits him, which demonstrates a lack of candour. Dr. Gouws stated that this certainly causes him concern, which is one of the reasons why he made a statement in his clinical formulation on the validity of his assessment.
[226] Dr. Gouws also acknowledged that, although in his report he stated “the medical and other opinions as expressed in the file indicate a presence of significant functional impairments,” he did not have any medical opinion or report specifically stating that. When asked whether he made that up, he agreed that he could not find any reference to such a medical opinion.
[227] Dr. Gouws also referred in his report to “other opinions [that] indicate significant functional impairments.” However he was unable to point to any such “other opinions.” Although he stated that he himself would not interpret his statements as misleading, he agreed that they could be interpreted by others as misleading.
[228] Dr. Gouws conducted his assessment prior to the surgery that Baron underwent in August, 2013 to remove the hardware from his leg. He acknowledged that, depending on the outcome of that surgery, his opinion could change. If the pain decreased and the function increased that would impact his opinion. He agreed that, in spite of not knowing the outcome of the surgery, he had nevertheless concluded that Baron was going to continue with chronic pain.
[229] Although Dr. Gouws decided on his review of everything that Baron was not malingering, he acknowledged that it was certainly open to someone else, hearing all the evidence, being even more than was available to him, that that was what was going on, namely that Baron was exaggerating or feigning his symptoms.
(ii) Examination of Sara Benton
[230] Dr. Gouws was also retained to perform a psychological legal assessment of Benton on October 25, 2013. In his examination in chief Dr. Gouws stated that the sources of the information he had with respect to Benton consisted of certain limited records provided by plaintiffs’ counsel, his clinical interview of Benton and psychometric testing.
[231] In respect of his clinical interview of Benton, Dr. Gouws stated that what happened to her husband was, in and of itself, significantly traumatizing for her, but that to have herself exposed in an environment in a relatively small town, where people know each other and where people that she went to school with her were present, was particularly traumatizing for her in light of earlier sexual abuse that she is experienced as a young child.
[232] Dr. Gouws made reference to Benton’s previous health problems, including two bouts of meningitis and two difficult pregnancies. She expressed that her marriage to her husband was her “safe and secure place” after the other things that she had experienced. She reported that the assault of October 29, 2011 completely destroyed that sense of safety and, as time went on, it became impossible to try to salvage anything that was left behind of that.
[233] Dr. Gouws stated that, on his assessment, Benton reported quite a significant degree of symptomatology similar to what he had described earlier about post-traumatic stress disorder in reference to Baron. She stated that she found it difficult to relate socially to other people. She did report that she had entered into a relationship at the time with an individual that she believed was caring and was looking after her.
[234] Dr. Gouws made reference to the history of childhood sexual abuse which Benton suffered at the hands of an older brother. She described how much later on one of her birthdays her mother wanted her and her older brother to reconcile and her mother gave the older brother Benton’s phone number and also shared pictures of Benton’s daughter with the brother. The older brother called Benton to wish her a happy birthday and commented that she had a very beautiful little daughter. Benton also learned that her mother had permitted her brother to Skype with Benton’s daughter without her permission. Dr. Gouws commented that this “set off the whole cycle again.”
[235] Dr. Gouws administered some psychometric tests to Benton. He utilized the Personality Assessment Inventory, the Beck Depression and the Beck Anxiety Inventories and the Beck Hopelessness Scale. Given the significant report of trauma reactivity, he also utilized the Trauma Symptom Inventory and the Detailed Assessment of Post-Traumatic Stress.
[236] Dr. Gouws indicated that the Personality Assessment Inventory demonstrated a significant degree of anxiety and depression in Benton. It also indicated that there were significant symptoms of post-traumatic stress.
[237] He stated that both the Beck Depression Inventory and the Anxiety Inventory had scores in the severe range and the mild range on the hopelessness scale. He stated that the high anxiety and the high depression balance each other out if there is a concern about suicide. If however gets, the anxiety were to drop significantly there would be an increased risk of potential suicide activity.
[238] With respect to the Trauma Symptom Inventory, there were clinically elevated scores in relation to self-disturbance, post-traumatic stress and externalization.
[239] With respect to the Detailed Assessment of Post-Traumatic Stress (DAPS), Dr. Gouws stated that Benton indicated having been exposed to more than one trauma, but the one that was the focus of her attention was the assault on October 29, 2011 on herself and her husband. In administering the test Benton was told that she should endorse the test items only with respect to the identified trauma, being the assault.
[240] Dr. Gouws confirmed that that the records which were provided to him were very limited, consisting only of the police report that Benton made on November 6, 2011. He had not been provided with a medical brief.
[241] As a result of his interview with Benton, the psychometric testing and his review of the documentation Dr. Gouws formed an opinion with respect to Benton’s psychological condition. The primary focus of clinical attention in Benton’s case was the post-traumatic stress disorder. Her previous childhood sexual assault caused a vulnerability for future similar reaction in case of a traumatic event. He stated that the Benton has far more capacity to deal with the symptomatology than did Baron.
[242] He also diagnosed Benton with a recurrent depressive disorder.
[243] Dr. Gouws stated that the two diagnoses, namely post-traumatic stress disorder and recurrent major depressive disorder placed functional limitations on Benton, by causing an impairment in vocational, home, social, school or other areas of important normal daily function.
[244] Dr. Gouws stated that he only had Benton’s word regarding her medical history prior to the assault as he did not have any of her medical records. However, in light of all of the data that he had from the psychometry and the police records, it appeared to him that, but for the assault, he would not have seen Benton in that capacity. He described his diagnoses as the direct consequences of the assault of October 29, 2011.
[245] Dr. Gouws stated that the prognosis for Benton would be unfavourable unless she is able to access timely and extensive treatment to help her overcome the specific psychological disorders. He indicated that she should probably require in the order of about 40 sessions of treatment as well as the next several years in follow-up, comprising a total of 200 hours over a period of about eight years, the cost of which would be about $44,000.
[246] On cross-examination Dr. Gouws acknowledged that diagnosing post-traumatic stress disorder can be challenging and that one of the things he must do is to distinguish the real post-traumatic stress sufferer from the imagined or malingering individual. In order to do that it is important to have the employment and health records, as well as other pertinent records of the person.
[247] Dr. Gouws stated that he knew from his interview with Benton that she had a significant medical history, however, he had not been provided with a brief containing her medical records. He agreed that the absence of a medical brief made it difficult to form an opinion. He agreed that these records are “just about the most important thing in the diagnosing of post-traumatic stress disorder.”
[248] Dr. Gouws also acknowledged that, although Benton told him that she and Baron were financially ruined following the incident, he did not know, nor did he ask her, anything about their financial history up to the incident, including that they had gone bankrupt in 2008.
[249] Dr. Gouws stated that Benton reported that, following October 29, 2011, she had nightmares for a few months and then they ceased, and then following the marriage separation they came back. He stated that the nightmares came back after her mother put her in contact with her older brother who had abused her as a child.
[250] Dr. Gouws did not know whether Benton had nightmares a prior to the incident. He was unaware that her family doctor, Dr. Savard, reported that she had nightmares, was afraid of being home alone, and was afraid of being in an accident in the half year prior to the incident. He stated that he “guessed” that he knew she had nightmares before the incident in the aftermath of having meningitis from her self-report, but did not know that a referral to a neurologist and a psychotherapist was under consideration by her family doctor. Dr. Gouws acknowledged that it would have been important for him to know that.
[251] Dr. Gouws acknowledged that, without having had the opportunity to review Benton’s medical records, if asked, he would definitely change his assessment of the connection between the incident of October 29, 2011 to her condition from causation to contribution. He also acknowledged that he had not been provided with the recommendation from Benton’s neurologist on June 1, 2011 that she receive counselling for post-traumatic stress disorder.
[252] Dr. Gouws stated that Benton had reported to him about the positive aspects of her relationship with her current boyfriend Les, calling him caring, smart and intelligent. Dr. Gouws indicated that if that was not so he would have expected Benton to tell him.
[253] Dr. Gouws agreed that the post-traumatic stress that he diagnosed Benton with could have been the pre-existing post-traumatic stress, or it could have been post-traumatic stress from any of the other traumatic events that Benton had experienced that he did not focus on. He stated that he focused on the “index trauma,” being the incident of October 29, 2011, because that is what Benton’s lawyer asked him to inquire about, and that was the only one for which there appeared to be a possibility of compensation.
[254] Dr. Gouws acknowledged on cross-examination that he was unable to be sure that the incident of October 29, 2011 was the base of causation for her presentation, but he said “we can probably say that [it] contributed to her presentation.”
[255] Dr. Gouws acknowledged that he had no information with respect to Benton’s current situation in British Columbia and whether it was contributing to her recovery. He stated that he could give no opinion on whether she currently meets any of the diagnoses which he identified.
(j) Evidence of Maria Ross
[256] Maria Ross, an occupational therapist, was called by the plaintiffs and qualified to give expert opinion evidence in the field of occupational therapy including functional capacity, vocational assessment and rehabilitation.
[257] Baron was referred to Ms. Ross to undergo a vocational assessment as well as a functional capacity evaluation. He attended a clinical interview with Ms. Ross on April 2, 2013 and underwent a series of tests in the form of questionnaires including academic, aptitude and interest testing, with Ms. Ross’ associate Katrina Kotsopoulos, a kinesiologist, on May 7, 2013 in relation to the vocational assessment. He re-attended with Ms. Kotsopoulos on May 8 and 9, 2013 to undergo the functional capacity evaluation testing.
[258] The stated purpose of the vocational assessment was to evaluate the impact of Baron’s injuries on his work function and employability and to identify his vocational rehabilitation needs.
[259] With respect to his vocational aptitudes, Ms. Ross was of the opinion that Baron demonstrated low-average general learning, low-average verbal aptitudes and low-average numerical aptitudes. He also demonstrated low to mid-average perceptual skills and low to below average psycho-motor skills. With respect to his educational development, she was of the view that Baron demonstrated below average reasoning and mid-average mathematical and language development.
[260] The purpose of the functional capacity evaluation which Baron underwent was to determine his baseline physical tolerance levels for work activities. The testing was performed by Ms. Kotsopoulos, who did not testify at the trial. Ms. Ross stated that Ms. Kotsopoulos was certified to perform functional capacity evaluations and has conducted an estimated 100 such evaluations. Ms. Ross assigned the testing to her and set the parameters for which tests would be conducted. Ms. Ross reviewed Ms. Kotsopoulos’ notes and interpreted her findings. The testing was conducted over two consecutive days, consisting of three hours per session.
[261] Ms. Ross’ opinion, on his evaluation in 2013, was that Baron was not able to meet and sustain the requirements of his job at Krug due to his reduced tolerance for constant standing and reduced lifting, ladder climbing and crouching ability.
[262] Baron did meet the requirements for light work comprising lifting and carrying loads of up to 20 pounds.
[263] In respect of Baron’s vocational options going forward, Ms. Ross was of the view that Baron’s overall access to the labour market was significantly reduced. Because of his injuries he was not able to realistically sustain being on his feet all day. Moreover, he was not a good candidate for successful retraining. He would be suited for an entry-level job compatible with his physical abilities, for example as a light courier driver. She stated that the results of the evaluations did not mean that Baron could not perform the job at Krug at all, but rather her opinion was that he would not be able to sustain that position for the rest of his working life.
[264] Ms. Ross acknowledged on cross-examination that she was not provided with, nor did she request, a detailed job demands analysis for Baron’s position at Krug. She based her analysis on what Mr. Baron told her about the job requirements.
[265] It was a critical issue for her analysis that the job at Krug required Baron to be on his feet “constantly” which Ms. Ross stated meant more than two-thirds of the day. Baron told Ms. Ross that he was on his feet for the majority of the time but had the opportunity to sit occasionally on a stool. She stated that, although Baron stated that he was required to be on his feet for a majority of the time, meaning more than 50%, she surmised that he was required to be on his feet “constantly” from his description. Ms. Ross felt that she had enough information respecting requirements of the job, being in a manufacturing setting, based upon her clinical experience.
[266] Ms. Ross agreed that if she had a job demands analysis she could potentially have customized the testing, but she would still have administered the standardized tests and compared the results to the job requirements.
[267] Ms. Ross stated that she understood that Baron had headaches and neck pain which can sometimes result in back pain.
[268] Ms. Ross testified that Baron’s report of back pain went from 0 to 8 (on a scale of 0 to 10) in intensity on day two of the functional abilities evaluation. She acknowledged that Baron had not reported low back pain in his medical history. As far as Ms. Ross knew, Baron’s reported low back pain on day two of the assessment was the first time that he had experienced it.
[269] When Baron returned on day two he expressed concern about carrying on with the testing due to his back pain. However it was deemed safe for him to continue with the testing.
[270] Ms. Ross acknowledged that Baron showed no significant limitations on any of the 11 tests, slight or no limitation on the four tests and some limitation on six. Specifically with respect to standing work he had slight or no limitation.
[271] Ms. Ross stated that she was aware, at the time of the evaluation, of the plan for surgery to remove the hardware from Baron’s leg. She understood that the primary goal the surgery was to decrease his pain and agreed that if the pain was reduced it would increase his function.
[272] Ms. Ross acknowledged that she was unaware of the report that Baron had made of back pain seven years previously. She did not inquire of Baron with respect to the existence of previous injuries.
[273] Ms. Ross agreed, after learning that Baron had been told by both of his treating doctors, Dr. Armstrong and Dr. Savard, after the hardware was removed, to return to work at Krug, that people should listen to their treating doctors.
(k) Evidence of Jane Zambon
[274] Jane Zambon, an occupational therapist practising with Ms. Ross’ firm, was called by the plaintiffs and was qualified to give expert opinion evidence as an occupational therapist and certified life care planner in the area of future care assessment and quantification.
[275] Ms. Zambon was retained to evaluate Baron’s current functional status and future care cost needs subsequent to the injuries he sustained in an assault on October 29, 2011. He was seen in his home by Ms. Zambon on April 12, 2013.
[276] Ms. Zambon reviewed the results of the clinical interview conducted by Ms. Ross on April 2, 2013 and she conducted a supplementary interview with him. She also reviewed the medical brief together with the functional capacity evaluation per report prepared by Ms. Kotsopoulos and Ms. Ross and the vocational assessment report prepared by Ms. Ross.
[277] Ms. Zambon also received Mr. Baron’s verbal report of the symptoms that he was experiencing at the time of her assessment. She conducted a number of physical screening assessments of Baron and assessed his social situation and his then current living environment.
[278] With respect to Baron’s functional status, Ms. Zambon reported that Baron is independent with all personal care activities, is independent in all of his mobility requirements without the use of mobility aids, and is independent with driving to access his community, however he experiences discomfort, numbness and poor circulation in his left lower extremity. She reported that he is partially resumed housekeeping activities, which are shared with his current partner and that he does not have exterior home maintenance responsibilities. She reported that he currently shares meal preparation with his partner on a daily basis and prepares lunch during the week prior to working afternoon shifts. The main barrier to cooking is reduced due to static standing tolerance and his left lower extremity symptoms.
[279] Baron reported that he is independent with grocery shopping using pacing and compensatory strategies such as shopping more frequently for fewer items. Baron reported that his partner completes the laundry as he feels unsafe carrying the laundry hamper on the stairs. He reported that he is independent with sweeping with a broom and dust pan and has difficulty with mopping the floors. He is independent with dusting, using pacing strategies. He is able to manage linen changes on the bed despite the mattress being located on the floor. Baron reported that he currently has no grass cutting or snow removal responsibilities and that he is independent with garbage removal. Baron reported that he is not attempt to ski or rollerblade since his injury due to concerns with respect to re-injury. He is able to ride a bicycle and attempted to return to swimming but found it difficult due to sensitivity in his left lower extremity. He reported that he intended to try swimming again. Baron reported difficulty in going for long walks and taking his children for walks to the park due to the exacerbation of lower extremity symptoms.
[280] Ms. Zambon stated that the object of future care assistance is to provide a person with the resources necessary to be able to enjoy the quality of life similar to what he or she would enjoy if he or she did not have the injury.
[281] Ms. Zambon assessed Baron’s future care needs as follows:
(a) 2.5 hours per week indoor housekeeping and 12 hours per year outdoor repairs for an annual cost of $3450 plus HST;
(b) outdoor maintenance - $960-$1280 plus HST annually plus $1520 to $1640 plus HST for snow removal and lawn care;
(c) anti-fatigue mat $130 plus HST every three years;
(d) soft ankle support $25.02 $60 plus HST every two years;
(e) perching stool for kitchen $100 plus HST;
(f) single hand carrying hamper $18 plus HST every two years;
(g) a bundle buggy for groceries $50 plus HST;
(h) bed frame $170 plus HST every 10 years;
(i) physical therapy assessment $94;
(j) gym membership $710 including HST annually;
(k) kinesiology support consisting of 12 to 20 sessions $2076-$3460 plus HST;
(l) psychological assessment $2500;
(m) occupational therapist intervention based upon 15 hours $2100 plus HST one-time cost (with additional assessments of 15 hours each in the event of changes in the environment or functional changes); and
(n) labour replacement services for painting $1800 plus HST every five years.
[282] Ms. Zambon acknowledged that, at the time of her assessment, she was aware of the surgical plan for removal of the hardware from Baron’s leg. However, she did not follow up with the results of the surgery. Her report was not updated subsequent to its preparation in August, 2013. She acknowledged that, without knowing Baron’s current living situation, it would be difficult to say what Baron needs by way of future care. She stated that he may or may not need all of the services listed in her recommendation depending on his living situation.
[283] Ms. Zambon acknowledged that if there was a change to Baron’s function following the hardware removal surgery in 2013 it could dramatically change his requirements for future care. It was her opinion that, based upon all of the factors, he had care needs at the time of the assessment but she is unable to provide any opinion on what he currently needs.
[284] She also stated that in order to determine the length of time that Baron would require care there would need to be a prognosis from a physician which she did not have.
[285] In assessing Baron’s future care needs, Ms. Zambon considered Baron’s back, shoulder and ankle conditions and acknowledged that it was possible that he would need the services she identified even if he had not had an injury to his leg. It was not possible to break the care needs down and attribute them to the different conditions. Her recommendation was based upon all of his impairments taken as a whole.
(l) Evidence of Dr. Eliakim Katz
[286] Dr. Eliakim Katz, an economist, was qualified to give expert opinion evidence within the scope of labour economics, discounting for present value, and assessment of loss for individuals. Dr. Katz was retained by plaintiff’s counsel in late 2015 to prepare a report quantifying Baron’s economic loss resulting from the incident on October 29, 2011, comprised of his past loss of income and the present value of his future income loss, and to prepare a report calculating the present value of the costs of future care, based upon the cost estimates provided by Jane Zambon.
[287] Dr. Katz prepared two reports in respect of Baron’s economic loss. The first report was dated January 21, 2016 and was stated to reflect two general assumptions. The first stated assumption was that “but-for-the-incident,” Baron would have continued to work as a furniture finisher gaining experience and seniority associated with income as for all furniture finishers of a similar age in Ontario, with retirement at age 68. The second stated assumption was that “given-the-incident” Baron will continue to work in his current full-time capacity, namely for a temporary agency in British Columbia, earning $12 per hour, retiring at age 68.
[288] On cross-examination Dr. Katz acknowledged that the figures which he utilized in his calculations “but-for-the-incident” were based on Statistics Canada published incomes for furniture finishing supervisors, rather than furniture finishers, as stated. Dr. Katz acknowledged that this represented a “misdescription” which he ascribed to a communication error in his office. The error was not discovered until defence counsel requested the background data upon which the report was based.
[289] Dr. Katz was thereupon requested by plaintiff’s counsel to prepare an updated economic loss report based upon three “but-for-the-incident” scenarios. The first scenario (“BTI 1”) was that but-for-the-incident Baron would have continued to work as a finisher enjoying promotion and concomitant wage increase to supervisor position with income estimated from 2014 onward based on Statistics Canada NHS average for all supervisor finishers. The second scenario (“BTI 2”) was that Baron would have continued to work as a finisher enjoying promotion and concomitant wage increases, with income estimated from 2014 on word based on NHS average for all finishers. The third scenario (“BTI 3”) was that but-for-the-incident Baron would have continued to work as a finisher enjoying promotion and concomitant wage increase with income estimated from 2014 onward based on NHS average annual rate of increase for all high school diploma holders.
[290] The “given-the-incident” assumption remained the same for all three scenarios, namely that Baron will continue to obtain full-time work performing 40 hours of work each week earning an hourly rate similar to his current rate of $12.00 per hour. Dr. Katz testified that he made this assumption on the basis that people who work a minimum wage typically stay at minimum wage and that he was not in a position to make a judgment on whether Baron will get real increases in income.
[291] Dr. Katz’s updated economic loss report was dated April 13, 2016. His testimony in examination-in-chief at trial was reflective of his updated report and not of his original report.
[292] Dr. Katz stated that, in carrying out his calculations, he tried to use Statistics Canada data in relation to labour force participation to address the contingency that, but for the incident, Baron would have experienced periods of part-time employment and unemployment. He stated that participation rates tend to decline as a person gets older. As individuals get older they tend to shift to part-time work, and people tend to earn less as they get older.
[293] In respect of loss of future income, Dr. Katz stated that he applied a discount rate taking into account interest and mortality in order to calculate the present value of the future income loss.
[294] Dr. Katz calculated the present value of Baron’s future income for BFI 1 (that is that he would have become a finisher supervisor) at $1,564,517, for BFI 2 at $1,185,692 (that is that he would have remained a finisher) and for BFI 3 (that he would have remained a finisher but at wage rates reflective of high school graduates) at $1,432,474. From that he subtracted the present value of Baron’s “given-the-incident” income (that is continuing full-time to retirement at $12.00 per hour) at $636,634. These figures resulted in present values of his future income loss for the three scenarios, as follows:
a) Scenario 1 – supervisor finisher - $927,883;
b) Scenario 2 – finisher (no promotion) - $549,059; and
c) Scenario 3 - income of high school graduate - $795,840.
[295] Dr. Katz calculated Baron’s past loss of income at $119,202 for scenarios 1 and 2, and $113,207 for scenario 3.
[296] With respect to the cost of future care, as assessed by Ms. Zambon, Dr. Katz calculated two alternate present values, the first based upon the assumption that, but for the incident, Baron would have performed housekeeping and home maintenance to age 75, and the second that he would have performed those activities for life. The present value based upon the first scenario totalled $216,060, and the present value based upon the second scenario totalled $233,786.
[297] Dr. Katz acknowledged on cross-examination that his updated report stated that “Mr. Barron informed us that there were several opportunities for promotion within Krug, a furniture manufacturer which employs approximately 500 people. Moreover, it is our understanding that Mr. Barron was expecting to advance within Krug.”
[298] The updated report also stated that “Mr. Barron informed us that he had intended to continue to work at Krug and plan to complete the necessary upgrading courses to be promoted to a finisher A. it is our understanding that upon being promoted to a finisher A position, Mr. Baron would have had a significant probability of being promoted to the position of a foreman/supervisor once such a position opened up.”
[299] Notwithstanding these statements, Dr. Katz acknowledged that neither he, nor anyone from his office, had any communication with Baron, but rather the information upon which the statements were based was provided, not by Baron but by Benton, either by telephone or by email.
[300] Dr. Katz stated that he had no information as to whether Baron was capable of completing any required courses to receive a promotion to finisher A.
[301] Dr. Katz acknowledged that he made no inquiries with Krug as to what a finisher A earns, although it would not have been onerous to do so. He agreed that this was an omission.
[302] The information from Benton that Baron was expecting at some stage to be promoted to supervisor was obtained from her after Dr. Katz’ initial report and prior to his updated report.
[303] Dr. Katz testified that “my opinion as an economist is that Mr. Barron was likely to be a supervisor.”
[304] Dr. Katz acknowledged that he was not made aware that Baron was on a workshare program at Krug after the incident. His calculations were based on the assumption that but for the incident Baron would have been working full-time hours. Because he did not have the information was respecting workshare he could not compare his income, based upon participation in workshare, prior to and after the incident. He agreed that his calculation for past income loss was high if there was workshare.
[305] Dr. Katz stated that he did not give any consideration to whether it was Baron’s abilities that were holding him back, rather than the effects of the incident. When asked what his understanding was of Baron’s vocational aptitude he responded that he “thought he was doing fine.” Dr. Katz, in reading Maria Ross’ report with respect to his vocational abilities, assumed that his low vocational ability scores were caused by the incident.
[306] Dr. Katz acknowledged that his updated report stated that Baron obtained full-time employment at Musashi Auto Parts in July 2014 and worked there for approximately six months at which time he relocated to British Columbia. He did not request the Musashi employment file and was not aware that he started at Musashi in March, 2014 and worked there for approximately one year.
[307] Dr. Katz’ projection of Baron’s “but-for-the-incident” income at Table 1 of appendix 1 to his updated report showed an increase in his projected income under scenarios 1 and 2 from $37,290 to $45,124. However, he did not know whether this was consistent with the reality at Krug. He acknowledged that the figures that he used for Baron’s “but-for-the-incident” income for scenarios 1 and 2 are higher than what Krug would pay.
[308] With respect to the figures for the “given-the-incident” analysis, Dr. Katz acknowledged that he was assuming that Baron will work full-time to the age of 68, and that this assumption is reasonable. He acknowledged that he may earn more money or he may have to retire earlier than 68. His assumption that he would continue to work at $12 per hour was based solely on what he was currently earning in the temporary position in British Columbia. He agreed that if it is determined that Baron is capable of earning the same as he would have earned at Krug, the future income loss would be less and if it was determined that he can make between $15 per hour to $20 per hour there may be no future income loss.
[309] Dr. Katz acknowledged that his figures for the “but-for-the-incident” scenario builds in promotions and wage increases, but his figures for the “given-the-incident” scenario does not build in the possibility of any promotions or wage increases.
[310] With respect to his calculation of the present value of the costs of future care as reported on by Ms. Zambon, Dr. Katz acknowledged that his assumption of the age of 75 for the performance of housekeeping and home maintenance was not based on any medical prognosis but on what he thought would be reasonable. He was not commenting at all on any need on the part of Baron for future care.
(m) Evidence of Dr. Paul H. Marks
[311] Dr. Paul H. Marks, orthopaedic surgeon, was called by the defendant Lorainne Renton and was qualified to give expert opinion evidence in the area of the “assessment and treatment of orthopaedic injuries and assessment of the outcome of orthopaedic injuries from an orthopaedic perspective.”
[312] Dr. Marks was requested to conduct a medical legal assessment of Baron. He examined Baron on May 25, 2015.
[313] Dr. Marks testified that he took a history from Baron, including a history of the incident on October 29, 2011 and its aftermath. He also reviewed with Baron the surgery performed by Dr. Armstrong, his participation in physical therapy for approximately one year, and the surgery in 2013 to remove the hardware. He also reviewed with Baron his past medical history.
[314] Dr. Marks interviewed Baron with respect to his current situation. Baron was asked, amongst other things, to rate his pain in his left lower extremity out of 10 describing it at its worst as 5 out of 10, with 10 being described to him “as the worst possible pain one can imagine, like a hot knife in your eye”. At the time of the assessment he rated his pain as 0 out of 10. He described this as 75% improved since the time of the accident. Dr. Marks also reviewed Baron’s work history, current personal situation and personal history.
[315] Dr. Marks then conducted a full musculoskeletal examination of Baron.
[316] Following the assessment Dr. Marks reviewed the medical brief which he described as extensive.
[317] Dr. Mark described Baron’s condition, as disclosed by his musculoskeletal examination, as completely normal. Baron denied any neck or back pain. With particular reference to his lower extremities, Dr. Marks stated he found neutral alignment and complete symmetry of the lower extremities. There was no tenderness to palpation or swelling of the knees. No ligament instability was found. Examination of Baron’s knees was unremarkable.
[318] Dr. Marks found complete symmetry of Baron’s muscular structures both above and below the knees indicating, no muscular atrophy.
[319] In the tibia area Baron had a 17 cm incision which was fully healed. There was no tenderness, swelling or asymmetry. He had a full range of motion in his ankles and feet, aside from slight hyper-extension, but which was symmetrical. Beyond the incision which was fully healed, his examination was normal.
[320] Dr. Marks also performed a neurologic examination and found no nerve injuries affecting the muscles. He checked reflexes which were noted to be symmetric.
[321] Dr. Marks also made note of non-organic signs. Baron was found to be quite cooperative and forthright and did not appear to be exaggerating.
[322] Dr. Marks expressed the opinion, based upon his review of the medical brief and his musculoskeletal examination, that there was no necessity at the time of the assessment for Baron to have any housekeeping assistance, although initially following the incident and surgery he would have needed such assistance.
[323] Dr. Marks noted that orthopaedic surgeons do not routinely remove hardware, but only do so where the patient is sufficiently symptomatic. From this he could infer that, prior to the surgery to remove the hardware, Baron was experiencing symptoms thought by Dr. Armstrong to be associated with the hardware. Following logic, it would be expected that his symptoms would improve following the removal surgery. He noted that Ms. Ross and Ms. Zambon’s testing of Baron was performed prior to the removal surgery and no testing was performed after the surgery. Nevertheless Dr. Marks indicated that, even with patients who are symptomatic from the hardware, they would not be expected to be restricted from carrying out all of their normal activities, including cutting the grass, shovelling snow or working. However they may continue to experience periodic or intermittent discomfort.
[324] In Baron’s case Dr. Marks noted that Dr. Armstrong did not place any restrictions on Baron, nor did he recommend or complete any forms for Baron to receive housekeeping or home maintenance assistance.
[325] Dr. Marks pointed out that Baron clearly had an injury that had an expected time frame for healing. For first 6 to 8 months following surgery Baron may have required certain assistance. However, following that initial period, Baron would be expected to be able to perform all of the tasks of normal living and Dr. Marks did not see any rationale for the provision of the types of assistive devices listed in Ms. Zambon’s report. Dr. Marks stated that he does not recommend these types of assistive devices to his patients who have experienced more significant injuries.
[326] Dr. Marks stated that there was nothing to suggest a need for on-going physical therapy. This also applied to kinesiology support and occupational therapy. He stated that most therapists discharge patients after a limited period of time. Although a gym membership may be something that might be seen to be beneficial, most patients are able to engage in a regime of physical exercise at home after they have achieved a certain level of recovery. He does not prescribe gym memberships to his patients ranging from high school students to Olympic athletes. However he does prescribe gym memberships to professional athletes, but it would be considered to be related to their jobs.
[327] Dr. Marks reached an opinion, based his interview with Baron, his musculoskeletal examination and his review of the medical documentation, on the necessity for the future care assistance referred to Ms. Zambon’s report. His opinion was that the measures identified by Ms. Zambon were not pertinent or justified from an orthopaedic surgery perspective. He indicated that these were all things which he would not prescribe for his general population in his practice. Baron’s injury was an isolated injury to his left tibia and fibula region. He saw no notations from Dr. Armstrong that he was considering or recommending any of these suggestions for future care assistance.
[328] Dr. Marks expressed the opinion that he could not identify residual injury that would cause Baron to be impaired or disabled or that would medically restrict him from his self-care, daily activities, household chores or vocation.
[329] On cross-examination, Mr. Marks confirmed that, in cases involving injuries such as that sustained by Baron, being a tibia fracture that was treated appropriately and in a timely fashion, that went on to heal with a normal alignment, with well-maintained motion above and below, a normal physical examination with no muscle atrophy or wasting, the expected outcome would be for that person to do quite well. He stated that this does not diminish the fact that initially there was an injury with pain associated with it and a period of recovery and perhaps some psychological things Baron may have had to deal with. However he stated that no long-term impairment or disability or limitations based on that injury would be expected. He did state however that the Baron might be expected to experience occasional intermittent discomfort brought on by certain things such as prolonged standing.
[330] Dr. Marks did acknowledge on cross-examination, that he could confirm or deny the existence of pain, nor could he comment on chronic pain, as it was outside of his area of expertise. He was similarly not in a position to opine on any psychological effects of Baron’s injury.
Analysis
(a) Damages of Brandon Baron
[331] I find that Baron suffered a spiral fracture of his left tibia, and that it was directly caused by the assault which I found to have been committed by Clark on him on at the Post-Time Bar and Grill on October 29, 2011. The fracture required urgent surgery which was performed by Dr. Armstrong at Guelph General Hospital on October 30, 2011. The type of operation was described as open reduction, internal fixation of left tibia with left anterior compartment fasciotomy. The hardware was anteromedial locking plate.
[332] Baron was discharged on November 11, 2011 when he returned to his home with his wife Benton. He was prescribed Percocet for pain relief. Following his discharge from hospital Baron experienced significant pain in his left lower leg, which he described initially as unbearable.
[333] On his attendance with Dr. Armstrong on December 29, 2011 Baron reported continuing to experience some discomfort and was trying to increase his weight bearing, as tolerated. He was attending physiotherapy three times a week. He continued to use Tylenol and Advil for pain relief.
[334] On March 29, 2012 Baron reported to Dr. Armstrong that his pain was improved and he was doing well and was continuing with physiotherapy twice a week, and with weight-bearing as tolerated.
[335] I find that Baron, with approval of Dr. Armstrong, returned to work at Krug on April 16 beginning with four hours per day, increasing two hours per day every two weeks until he reached his full employment hours. By May or June, 2012 Baron had returned to full-time hours, however, upon the recommendation of his physiotherapist he was allowed to take breaks from a standing position to a sitting position every half hour to one hour.
[336] I find that during the 6 to 8 months following the incident on October 29, 2011 Baron experienced anxiety and depressive symptoms which were contributed to, but not fully caused by, the injury he sustained on that date. I find that Baron had a history of depressive symptoms as well as paranoiac symptoms prior to the incident and was prescribed antidepressant medication by his family doctor in September, 2011. I find that these depressive symptoms were derived largely from marital difficulties he was experiencing with Benton prior to the incident, which difficulties were exacerbated by the situation Baron and Bento found themselves in following the incident and the surgery.
[337] I find that Baron and Benton separated in May, 2012. Baron continued to work full time at Krug subject to reduction of his hours by participation in the workshare program of Krug and not due to his injury. Workshare was instituted by Krug on May 27, 2012 and continued until August 2012, and was reinstituted from February 3 to March 24, 2013. I find that Baron was able to satisfy the physical demands of his job at Krug, however, he did experience fatigue and discomfort following his shifts on a regular basis. Notwithstanding this he unilaterally discontinued physiotherapy in mid - June, 2012. Baron continued working full-time at Krug until May 8, 2013 when he injured his back while undergoing functional capacity evaluation testing at the office of the Maria Ross. I find that the discontinuance of his employment in May, 2013 was not caused by the injury to his left leg on October 29, 2011.
[338] I find that Baron did not suffer any physical injury in the incident of October 29, 2011 other than the spiral fracture to his left tibia. Specifically, he did not suffer a back, neck or shoulder injury as a result of the incident. None of Baron’s treating physicians or other health care providers testified at trial, and none of their records indicated any connection between any complaint as result of the of back, neck or shoulder pain to the incident. Specifically, none of Baron’s treating healthcare providers documented any complaint by Baron of back, neck or shoulder pain resulting from the incident.
[339] I find that Baron continued to experience symptoms of pain and discomfort in his left lower extremity, described as “achiness” by Dr. Armstrong throughout 2012 to August, 2013, however, it was not such as to substantially affect his ability to function at work, or in his activities of daily living. Baron underwent surgery in August 16, 2013 to remove the hardware from his leg. Dr. Armstrong cleared Baron to return to work at Krug on September 16, 2013 on modified duties, commencing four hours per day for the first week, six hours per day for the second week and then to try his normal eye at eight hours per day. His family doctor, Dr. Savard, similarly recommended that Baron returned to work.
[340] Notwithstanding the recommendations of his treating physicians Baron resigned his position at Krug effective September 23, 2013. I find that his termination was not necessitated by nor connected to the injury. He had been cleared to return to work by both of his treating physicians. He had worked for approximately one year at Krug after his first surgery and prior to the hardware removal surgery and he was reporting improvement to his symptoms following the hardware removal surgery. By the time of his resignation Baron had been residing with his girlfriend Taylor Canning in Paris Ontario for approximately nine months. I find that his resignation from Krug was motivated by his then current living arrangements and not by the injury.
[341] I find that the pain or achiness which Baron was experiencing in his left leg prior to the hardware removal surgery was alleviated, although not fully eliminated, by the surgery. This is evidenced by Baron’s reporting to Dr. Marks and by his testimony at trial.
[342] Baron obtained employment at Paris Kitchens mid-January 2014 which continued for a few weeks until his relationship with Ms. Canning ended and he moved back to Arthur, Ontario. He obtained employment with Musashi Auto Parts in March, 2014 and continued working there until February, 2015 when he moved with Benton and their children to British Columbia. Prior to commencing employment at Musashi Baron successfully completed a physical demands evaluation to confirm his ability to meet the essential demands of the job. There was no evidence led at trial that Baron experienced any difficulty in fulfilling the demands of his employment at Paris Kitchens and later at Musashi. There is no evidence of any problems with absenteeism nor any intervention by those employers with respect to any physical inability on Baron’s part to perform the required job functions. Baron was not under treatment with any physician in relation to the injury to his leg subsequent to September, 2013.
[343] I find that Baron’s resignation from Musashi and relocation to British Columbia had nothing to do with the injury to his left leg, but rather was motivated by a desire to be close to his children following upon Benton’s decision to move to British Columbia in order to distance herself from an abusive relationship with her former partner. I find that Baron was able to secure employment with a temporary agency, performing largely physical labour-type jobs, and by the time of trial had been unable to secure full-time employment although he was looking for full-time employment. I find on Baron’s evidence that the physical demands of the jobs that he was performing through the temporary agency were as great as the physical demands of his former employment at Krug, Paris Kitchens and Musashi.
[344] I find that although Baron has continued to experience some pain in his lower left leg since the incident on October 29, 2011, the pain was alleviated by the surgery in August, 2013 to remove the hardware. However it was not fully eliminated. By June, 2012 he was able to work on a full-time basis in a factory setting at Krug, and was able to work in those types of settings subsequently at Paris Kitchens, Musashi and with the temporary agency in British Columbia.
[345] I do accept Baron’s evidence that he continued to experience soreness and fatigue at the end of the work shifts, from time to time, such discomfort being greater prior to the hardware removal surgery, but nevertheless continuing at least intermittently following that surgery.
[346] This finding is largely consistent with the evidence of Dr. Teasell. However, I would view his evidence that Baron’s injury would be significantly restricting on him in terms of his vocation and activities of daily living with caution. Dr. Teasell’s opinion in this respect was based not only upon the injury to Baron’s leg, but also his complaints of pain in his neck and shoulder. Dr. Teasell formed the impression that the complained of neck and shoulder pain was also caused by the incident on October 29, 2011, which was not supported by the evidence.
[347] Dr. Teasell also stated that it was his understanding that Baron’s condition was not significantly improved by the removal of the hardware by Dr. Armstrong in August, 2013, which is similarly not supported by the evidence. He was unaware that both Dr. Armstrong and Dr. Savard had cleared Baron to return to work at Krug in September, 2013.
[348] As indicated above, Dr. Teasell also acknowledged that he was not aware that Baron became employed at Paris Kitchens in early 2014 and did not know that Baron had worked at Musashi for a year, nor that Baron underwent a functional capacities evaluation by a physiotherapist prior to commencing work there.
[349] I do note Dr. Teasell’s opinion that Baron’s condition has stabilized and that he is unlikely to get worse in the future. Accordingly, there is no evidence that Baron is at risk of having his current functionality deteriorate in the future due to the injury to his leg.
[350] Although Dr. Marks was careful not to stray outside his area of expertise as an orthopedic surgeon, and therefore was not in a position to comment on chronic pain, nor to verify or deny that Baron continued to experience pain, I am persuaded by his opinion that there is no reason to expect that Baron’s vocational, housekeeping or other functions would be impacted by the fracture to his tibia on October 29, 2011.
[351] I am unable to ascribe weight to Ms. Ross’ opinion that Baron was unable to meet and sustain the requirements of his job at Krug due to his reduced tolerance for constant standing and reduced lifting, ladder climbing and crouching ability. Her assessment pre-dated the hardware removal surgery which resulted in improvement in Baron’s pain level and hence his functioning. Moreover, Baron’s resignation from Krug was followed by a short period of employment at Paris Kitchens in early 2014 followed by approximately one year at Musashi, both of which positions carried similar physical demands to that of the Krug job. Moreover, as indicated, both of Baron’s treating physicians cleared Baron to return to work in September 2013.
[352] Dr. Teasell was of the opinion that Baron’s condition would not deteriorate in the future. In these circumstances it is difficult to find support for the Ms. Ross’ opinion that Baron would be unable to meet and sustain the requirement of the job at Krug or like jobs in the future.
[353] With respect to Baron’s claim for psychological damage and injury, I am unable to ascribe weight to the opinion of Dr. Gouws diagnosing Baron with chronic intractable pain, recurrent depressive disorder and post-traumatic stress disorder post-traumatic stress disorder and his prognosis that unless he able to secure proper, timely and intensive treatment he is not going to get better and is likely going to get worse and, once that happens, most of the conditions will become entrenched.
[354] Dr. Gouws put primary emphasis on his diagnosis of chronic intractable pain and stated that Baron continues to exhibit significant pain symptomatology that affects his functioning in all activities of daily living. In connection with this Dr. Gouws stated in his report that “the medical and other opinions as expressed in the file indicate a presence of significant functional impairments,” and referenced the existence of “other opinions [that] indicate significant functional impairments.” On cross-examination Dr. Gouws was forced to acknowledge that he was not in possession of any such medical or other opinions.
[355] Dr. Gouws diagnosed chronic intractable pain affecting Baron’s functioning in all activities of daily living notwithstanding that Baron denied any functional restrictions in any areas of daily function and reported that he was able to do home chores depending on fatigue and the intensity of his pain.
[356] It is also important to note that Dr. Gouws assessment pre-dated the surgery in August 2103 to remove the hardware. He acknowledged that if the pain decreased and the function increased, as a result of the surgery his opinion would be affected.
[357] Moreover, I find that whatever factual underpinning there may have been for Dr. Gouws’ diagnoses at the time of his assessment through his interviewing of Baron, it is not supported by Baron’s own evidence at trial. Baron did not testify that he had pain that affected his functioning in all activities of daily living. To the contrary, he testified that after he returned to work at Krug in the spring of 2012 he experienced pain and fatigue at the end of work shifts, he was able to perform virtually all facets of his self-care and housekeeping and to enjoy recreational activities with his children and with Ms. Canning’s child, albeit with some pacing.
[358] Although I find that Baron experienced anxiety and an exacerbation of his pre-existing depressive symptoms in the 6 to 8 months following the incident, I am not able to find that he suffered a psychological injury as a result of the incident on October 29, 2011 which impacted his functioning after that initial period, or which would impact his functioning in the future.
[359] In light of the foregoing, I am unable to find that psychological treatment referenced by Dr. Gouws in his testimony is warranted.
General Damages
[360] Counsel for the plaintiffs points to the case of Rogers v. Testa, 2011 ONSC 4060 (S.C.J.) as lending support for an award of general damages to Baron for pain and suffering and loss of enjoyment of life in the sum of $90,000. That case also involved a spiral fracture of the tibia.
[361] Each case must be decided on its own facts. Reference to awards of damages in comparable cases is of course helpful, but no two cases are identical, particularly with reference to the impact of the injury on the individual plaintiff and his or her particular circumstances.
[362] At paras. 121 -122 of Bryant, J. summarized the effect of the injury on the plaintiff as follows:
The Plaintiff now walks with a slight limp and uses a cane when walking distances. Mr. Rogers is unsteady on his feet on uneven ground and in the winter months when the sidewalks are covered with snow and ice. The bicycle was an important means of transportation for the Plaintiff before he was injured. He rode his bicycle in the summer and parts of other seasons to visit friends and socialize and to shop. He sold his bicycle because he is unable to cycle because of the injuries suffered as a result of this incident.
I accept Dr. Potter's evidence that the Plaintiff has limitations and restrictions with respect to walking, running, bicycling, lifting, squatting, kneeling, and twisting. The Plaintiff continues to suffer pain and this problem is unlikely to change. The Plaintiff will continue to face difficulties when performing many of the usual activities of daily living including, but not limited to, grocery shopping, housekeeping, socializing with family and friends, having intimate relations, and engaging in recreational activities.
[363] In my view, the impact of the injury on Baron have been less serious that the impact on the plaintiff in Rogers. I find that Baron is able to perform most of the usual activities of daily living. He was able to return to work on modified duties within four months of the incident and way able to transition back to full time work within 6-7 months. He continues to experience intermittent pain and discomfort, particularly at the end of work shifts, but his injury has otherwise resolved and he is able to perform virtually all of his daily activities and functions. His condition is unlikely to get worse over time. He suffered an exacerbation of his prior depressive symptoms for a number of months following the injury, however I have found that he did not suffer long-lasting psychological injury as a result of the incident on October 29, 2011.
[364] I assess Baron’s general damages at $50,000.00.
Loss of Income or Economic Opportunity
[365] I find that Baron was able to return to full-time employment at Krug by no later than May, 2012, having returned on part-time modified duties on March 16, 2012. I find that any subsequent interruptions in his employment were not caused by the incident on October 29, 2011.
[366] Baron left secure employment with Musashi Auto Parts in February 2015 to move to British Columbia to be close to his children upon Benton’s decision to move there. The loss of Baron’s employment at Musashi was not caused or contributed to by the incident.
[367] The evidence established that Baron is able to fulfill the essential requirements of his former employment at Mushasi, and prior to that at Krug, without interference caused by the injury to his leg. There was no evidence that this was likely to change in the future. There was no evidence that Baron suffered any loss of economic opportunity as a result of the incident.
[368] Baron is employed with a temporary agency in British Columbia at minimum wage. There is no evidence that his inability of obtain higher paying employment in British Columbia is due to any limitations associated with the injury to his leg.
[369] I find that Baron has suffered no loss of future employment or loss of economic opportunity as a result of the incident on October 29, 2011.
[370] In the event that I am wrong in in finding that that Baron sustained no loss of future income or economic opportunity, I find Dr. Katz’ quantification of the loss to be inadequate and misleading. Dr. Katz posited a scenario based upon Baron becoming a supervisor, but for the incident, when there was no evidence that Baron aspired to, had an interest in, or had the capability, to become a supervisor. Dr. Katz represented in his report that he had communicated with Baron about this issue when it was disclosed on cross-examination that he had not done so.
[371] More importantly Dr. Katz based his calculations for each of his scenarios on the supposition that Baron’s “given-the-incident” income will remain fixed at $12 per hour until retirement with no possibility or contingency for promotion, movement into a higher paying wage rate, or increases in the minimum wage, even though promotion and wage increases are built into the “but-for-the-incident” calculations under each of the three scenarios. The only reason which Dr. Katz advanced for this assumption is that people who work in minimum wage jobs tend to remain in minimum wage jobs. No support for this proposition was offered.
[372] It is evident that Dr. Katz’ analysis was directed towards generating substantial figures for future loss of income damages in this case, rather than providing fair, objective and non-partisan expert evidence which would be helpful to the court in assessing Baron’s future loss of income.
[373] I find that even if it were determined that Baron suffered a loss of future income, no reliable expert evidence was led which would assist the court in assessing it.
[374] In respect of past loss of income, it is evident that Baron was off work following the accident until March 16, 2012 (3.5 months) until he returned to Krug on a part-time basis. By May, 2012 he had transitioned to full-time. Workshare was implemented by Krug on May 27, 2012.
[375] I accept that Baron lost some income before he was able to return to full time employment.
[376] Dr. Katz did not provide a calculation of past income loss based upon the difference between what Baron would have earned at Krug over the relevant period on a full-time basis, less what he received in short-term disability payments and by working part-time. His calculations with respect to past loss of income were based on the three “but-for-the-incident” scenarios, which were not reflective of the actual wage rate at Krug and indeed were acknowledged by Dr. Katz to be greater than the rate offered at Krug. I therefore find that Dr. Katz evidence does not assist in the calculation of Baron’s past income loss.
[377] There is authority for the proposition that where the court is unable to calculate damages with mathematical precision or accuracy, it should do the best that it can based upon the evidence before it (see Wood v. Grand Valley Railway (1915), 1915 CanLII 574 (SCC), 51 S.C.R. 283 (S.C.C.)).
[378] Based upon Baron’s hourly rate, I am able to infer that Baron’s annual income from Krug, not including benefits, at the time of the incident was $29,432 or $2,452.66 per month. On the basis that Baron’s short-term disability payments approximated 2/3 of his regular income, he lost $817.55 per month or $2,861.44 for the 3.5 months he was off work before returning on a part-time basis. I estimate that he earned 65% of his full-time pay for the next two months while he worked part-time. He therefore may be inferred to have lost $1,716.86 for that two month period, for a total loss of $4,578.83, rounded to $4,600.00.
Future Care Costs
[379] None of Baron’s treating physicians testified. There was no evidence that any medical practitioner prescribed or stated she or he would prescribe the provision of housekeeping services or other future care costs as referenced in the evidence of Ms. Zambon. The only physician who opined with respect to the future care costs outlined by Ms. Zambon was Dr. Marks who stated that such costs would not be considered necessary or justified.
[380] As indicated, the costs of psychological treatment for Baron is not warranted on the evidence.
[381] In my view, no amount is recoverable for future care costs for Baron.
(b) Damages of Benton
[382] Benton’s claim for damages is based entirely on an allegation of psychological injury. The statement of claim alleges that Benton sustained pain and suffering, humiliation, embarrassment, bruising, anxiety, mental distress and anguish, emotional difficulties, and a loss of enjoyment of life.
[383] As indicated above, Benton’s evidence at trial in support of her claim was relatively brief. She testified that having her breasts exposed publicly in the Post-Time continues to bother her. She stated that it brought back her experience of childhood abuse back into her head and she began to experience nightmares. She said that she was not comfortable with being exposed in that way.
[384] It is noteworthy that Benton did not testify on the duration that her breasts were exposed, nor did any other witness testify that they observed Ms. Benton being exposed. Although Carissa Skilling testified that Benton’s shirt became ripped in the altercation, she did not testify seeing Benton’s breasts exposed. Tom Skilling did not testify to that either. Notwithstanding that there was a room full of somewhere between 60 to 80 people or more, some of whom were friends of the plaintiffs, or otherwise known to them, Benton was unable to lead evidence from any independent witness to support the allegation that her breasts became exposed publicly in the altercation with Clark. There was no evidence that anyone observed any exposure of Benton’s breasts.
[385] I accept that Benton formed the subjective belief that her breasts had been exposed publicly, however, in the absence of any evidence that they actually were, I am unable to find, on a balance of probabilities, that her breasts were exposed in such a way as to permit observation by any bystanders.
[386] This raises an issue of foreseeability of the damages sought by Benton. In the absence of proof of actual public exposure, in my view it would not have been reasonably foreseeable to Clark that Benton would nevertheless form the subjective belief that her breasts had been exposed publicly.
[387] Even if I am wrong in this finding, I find that no weight can be ascribed to Dr. Gouws’ diagnoses of post-traumatic stress disorder and recurrent major depressive disorder which placed functional limitations on Benton, and his opinion on causation that these diagnoses were the direct consequences of the assault of October 29, 2011.
[388] In light of Dr. Gouws’ acknowledgement that he had not reviewed Benton’s medical records and that such records are “just about the most important thing in the diagnosing of post-traumatic stress disorder,” his diagnoses and opinion on causation do not have sufficient foundation to be reliable. This is particularly so in Benton’s case where Dr. Gouws found multiple trauma events to have existed in Benton’s past. As indicated above, Dr. Gouws acknowledged that the post-traumatic stress that he diagnosed Benton with could have been the pre-existing post-traumatic stress, or it could have been post-traumatic stress from any of the other traumatic events that Benton had experienced that he did not focus on. He focused on the incident of October 29, 2011 because that is what Benton’s lawyer asked him to inquire about, and that was the only one for which there appeared to be a possibility of compensation.
[389] In the end Dr. Gouws retreated from his initial opinion on causation and acknowledged that the incident of October 29, 2011 was not the base of causation but only contributed to the diagnoses. Moreover, Dr. Gouws’ opinion only spoke from the date of his assessment on October 25, 2013 and he was unable to express any opinion as to whether Benton continues to experience the conditions which he diagnosed.
[390] In my view, although an assault by Clark on Benton has been proven, there is no reliable evidence that she suffered any measurable or lasting effects as a result, beyond subjective upset. Damages for the bruising which she sustained was not pursued at trial. Although there was a claim pleaded in the Statement of Claim for damages for Benton for loss of care, guidance and companionship under the Family Law Act in relation to Baron’s injuries and for the loss of housekeeping and home handyman chores that Baron would have been expected to perform, these damages were not quantified in evidence or pursued in submissions.
[391] In my view Benton’s damages would be restricted to a nominal level. I assess her general damages in the sum of $2,000.00.
Disposition
[392] On the basis of the foregoing, judgment shall issue as follows:
(a) The Defendant Paden Clark shall pay to the Plaintiff Brandon Baron general damages in the sum of $50,000;
(b) The Defendant Paden Clark shall pay to the Plaintiff Brandon Baron damages in respect of loss of income in the sum of $ 4,600;
(c) The Defendant Paden Clark shall pay to the Plaintiff Sara Benton general damages in the sum of $2,000;
(d) The Defendant Paden Clark shall pay to the Plaintiff Brandon Baron pre-judgment interest on the amount set forth in paragraph (a) at the rate of 5% per annum calculated from October 29, 2011 pursuant to ss.128(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43;
(e) The Defendant Paden Clark shall pay to the Plaintiff Brandon Baron pre-judgment interest on the amount set forth in paragraph (b) at the rate of 1.3% per annum calculated from May 31, 2012 pursuant to ss. 128(1) of the Courts of Justice Act;
(f) The Defendant Paden Clark shall pay to the Plaintiff Sara Benton pre-judgment interest on the amount set forth in paragraph (c) at the rate of 5% per annum calculated from October 29, 2011 pursuant to ss. 128(2) of the Courts of Justice Act;
(g) The action shall be dismissed as against the Defendant Lorainne Renton o/a Post-Time Bar and Grill;
(h) The action on behalf of Christina Baron and Connor Baron, by their litigation guardian Sara Benton, shall be dismissed.
Costs
[393] If the parties cannot agree on costs, any party who seeks an award of costs against another party may make written submissions as to costs within 21 days of the release of these Reasons for Decision. The party against whom an award of costs is sought has 14 days after receipt of the submissions of the party seeking costs to respond. These submissions shall not exceed seven double-spaced pages, exclusive of supporting documents. A party seeking costs shall have a further 7 days to deliver reply submissions, not to exceed four double-spaced pages. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7 and copies shall be provided to opposing parties. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad, J.
Released: January 31, 2017
CITATION: BARON v. CLARK, 2017 ONSC 738
COURT FILE NO.: C-390-12
DATE: 2017-01-31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
BRANDON BARON, SARA BENTON, CHRISTINA BARON, a minor by her litigation guardian SARA BENTON and CONNOR BARON a minor by his litigation guardian SARA BENTON
Plaintiffs
– and –
PADEN CLARK and LORAINNE RENTON o/a POST-TIME BAR AND GRILL
Defendants
REASONS FOR JUDGMENT
D.A. Broad, J.
Released: January 31, 2017