COURT FILE NO.: 13-58799

DATE: 20180924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSEMARY SHELDON

Plaintiff

– and –

MANUEL REYNA

Defendant

Colleen Burn and Dani Grandmaitre, for the Plaintiff

D. Reisler and Jessica Kuredjian, for the Defendant

HEARD: November 20, 2017 – December 11, 2017 (Ottawa)

REASONS FOR DECISION

H.J. Williams, J.

INTRODUCTION

[1] Rosemary Sheldon was a passenger in a car that was rear-ended on Carling Avenue in Ottawa on September 17, 2011.

[2] By all accounts, Ms. Sheldon’s life was never the same again.

[3] Liability for the accident was admitted.

[4] In dispute was whether the accident, in which the three other people involved walked away without injuries, caused Ms. Sheldon’s loss and, if so, the damages Ms. Sheldon should be awarded.

Ms. Sheldon before the accident

[5] Ms. Sheldon was 51 years old at the time of the accident. She had just turned 58 at the time of the trial.

[6] Ms. Sheldon has a degree in chemical engineering from the University of Waterloo. At the time of the accident, Ms. Sheldon had been working for Canada Post Corporation in Ottawa for 24 years. At the time of the accident, Ms. Sheldon was responsible for technical support for Canada Post’s postage meters, which are used primarily by businesses to print postage. Ms. Sheldon was a senior engineer, which was the top level for engineers at Canada Post; her salary was at the top end of the pay scale for senior engineers.

[7] Ms. Sheldon and the other witnesses at the trial all described the pre-accident Ms. Sheldon as a person with a busy life. Ms. Sheldon worked at Canada Post four days per week and, with her husband, took care of her family and the family home. The couple’s two children had both been active in sports. Ms. Sheldon had managed their teams and attended their games. Ms. Sheldon was active in her church; at one point she had been a church warden. Each November, her family would host a party to build a float for the annual Santa Claus parade. At the trial, Ms. Sheldon’s friend, Eleanor Norman described how, one year, Ms. Sheldon located a donkey and walked it in the parade. Ms. Norman also said that Ms. Sheldon was always making a casserole for someone. Ms. Sheldon also did other volunteer work which included making and distributing hats for cancer patients. Ms. Sheldon also swam with a Masters swimming club.

[8] Ms. Sheldon described her pre-accident self as having been active and quite fit with a high energy level.

The Sheldon/Hatcher family

[9] Ms. Sheldon and her husband were married in 1982. They have two children, a son, Ryan Hatcher, who was 18 at the time of the accident and a daughter, Allison, who was 12 at the time.

[10] Mr. Hatcher had worked in the high technology field for many years but began to work for the federal government in the mid-2000s. Mr. Hatcher was 60 years old at the time of the trial. Ms. Sheldon testified that Mr. Hatcher had been diagnosed with Parkinson’s disease in 2016. She said that he was still working but would soon retire for medical reasons. Ms. Sheldon said that as a result of his condition, Mr. Hatcher had lost confidence and has anxiety and less energy that he had had previously.

[11] At the time of the trial, Ryan was 26 years old and in the third year of a web design program at Ottawa’s Algonquin College. Ryan and his fiancé were living at home with his parents. Ryan was expected to complete his college program in April, 2018. Ryan and his fiancé were planning to move out of the Sheldon/Hatcher home and be married by the fall of 2018.

[12] At the time of the trial, Allison was 18 and in her first year of a science program at Acadia University in Nova Scotia. Allison was majoring in psychology.

[13] Ms. Sheldon is the only plaintiff in the action; neither her husband nor her children asserted claims under the Family Law Act.

[14] Ms. Sheldon, Ryan, Allison, Ms. Norman and Ms. Sheldon’s friend and former colleague Michael Flynn all testified about what Ms. Sheldon had been like before the accident.

[15] Mr. Hatcher did not testify at the trial, a point the defendant argued was highly meaningful and to which I will refer again below.

[16] Ms. Sheldon said that before the accident, her family participated in many activities together, including camping and canoeing. She said that they enjoyed mini-golf, bowling, card games, walking in the woods and cross-country skiing.

[17] Ms. Sheldon said the family typically took a vacation for two or three weeks each summer. Ms. Sheldon and her husband had vowed to take their children to visit each Canadian province. They also travelled to England and Holland.

Pre-accident health issues

[18] Ms. Sheldon’s family physician Dr. Sandeep Nagpal said that, before the accident, Ms. Sheldon had consulted him occasionally, probably once or twice each year. He said that before the accident, she had complained of asthma, occasional migraine headaches, high blood pressure and some symptoms related to perimenopause.

The distribution of labour in the Sheldon/Hatcher home

[19] Ms. Sheldon said that when she and Mr. Hatcher first had children, Mr. Hatcher travelled a great deal and Ms. Sheldon took care of the children’s education, medical appointments and activities. Ms. Sheldon said that this became a pattern which did not change after her husband’s job changed. However, she said that her husband was quite involved in the children’s activities and, like her, with their children’s sports teams. Ryan and Allison both played house league hockey and competitive soccer. Allison also played field hockey and made an Ontario team which played at a national championship.

[20] In the home, Ms. Sheldon was responsible for managing and scheduling. She said that she let everyone know who was to be where and when.

[21] She said that although she did the meal planning, Mr. Hatcher helped.

[22] Ms. Sheldon said that she would typically make the evening meal four times per week and that when Mr. Hatcher was travelling, either for work or to visit his family, she would make all of the meals. She also cooked quite a bit on weekends, sometimes using a slow cooker, in order to have leftovers for the week.

[23] Ms. Sheldon said that she and Mr. Hatcher had a rule that whoever cooked a meal did not clean up afterwards. She said that as the children grew up, they were introduced to both cooking and cleaning up.

[24] Ms. Sheldon said that she would prepare grocery lists and while Mr. Hatcher might go to one store to buy groceries, she would purchase any specialty items the family required and would also do any shopping that needed to be done during the week. She would also purchase all of the supplies for the house and the family’s clothes.

[25] Ms. Sheldon said that she typically cleaned the family’s bathrooms, because even though it was supposed to be a shared task, her tolerance for dirty bathrooms was lower than that of everyone else in the family.

[26] Ms. Sheldon did most of the vacuuming and other floor cleaning as well as the dusting and de-cluttering.

[27] Ms. Sheldon did laundry and ironed.

[28] Ms. Sheldon said that her husband usually took out the garbage.

[29] Ms. Sheldon said that she and Mr. Hatcher shared outdoor maintenance; Mr. Hatcher would mow the grass and she would take care of their small garden. They would both remove weeds. The family would clean up the yard and remove leaves in the fall.

[30] Snow removal was a shared family responsibility, dependent to some extent on who needed to leave the home earliest in the morning.

[31] Ms. Sheldon typically made and changed the bed she shared with Mr. Hatcher. She said that her children were taught to make their own beds but she was required to supervise to make sure that they did.

The accident

[32] September 17, 2011 was a Saturday. Late that afternoon, Ms. Sheldon, her husband and Allison were returning to their home in Ottawa’s Barrhaven neighbourhood from a party for Allison’s soccer team.

[33] Mr. Hatcher was driving. Ms. Sheldon was in the front passenger seat and Allison was in the back seat, behind Ms. Sheldon.

[34] The family was travelling west on Carling Avenue when the accident happened. They were stopped at a red light at Croydon Avenue, on the west side of the Lincoln Heights Shopping Centre, when a car hit their car from behind.

[35] The car that hit the Sheldon/Hatcher car was owned and driven by the defendant, Manuel Reyna.

[36] Mr. Reyna told police that he had been travelling at about 30 kilometres per hour when the accident happened. Mr. Reyna said the sun was in his eyes and he had not seen that the light had turned red.

[37] Mr. Reyna was charged with careless driving.

[38] Ms. Sheldon said that, when the accident took place, she had been talking to Mr. Hatcher and was turned toward him. She said that, suddenly, there was a huge bang and their car was pushed forward into the intersection.

[39] Ms. Sheldon said that her body was thrown backward and then forward and then backward again and that she had also bounced up and down “quite significantly”.

[40] She said that as the car stopped, she felt a “massive snap” in her neck and “very considerable pain”. She said that the pain was so severe that she could not think clearly.

[41] She also said that she felt a strange, intense, stabbing, shooting, burning feeling in her right foot.

[42] Ms. Sheldon said that her first thought was to get out of the car. She said that she was concerned because the car had come to rest in the middle of an intersection and traffic would be approaching. Ms. Sheldon said that she told Mr. Hatcher and their daughter to leave the car and to go to the side of the road. She said that she was able to get out of the car herself without any difficulty.

[43] Ms. Sheldon said that then became concerned about the other driver, who was later identified as Mr. Reyna, and whether he might be having a medical emergency. Ms. Sheldon went to Mr. Reyna’s car to see if he was all right. She concluded that although Mr. Reyna was not very happy, he was not in any physical distress.

[44] Ms. Sheldon then spoke to some witnesses and took several photographs of her family’s car and Mr. Reyna’s car.

[45] Ms. Sheldon said that some friends who had attended the same soccer party that afternoon and had also been travelling along Carling Avenue stopped and asked whether they could help.

[46] Ms. Sheldon said that the police arrived quite quickly and that a police officer asked her whether she required an ambulance. She said that she asked how long it would take for an ambulance to arrive and that she was told that it would take “a while”. Ms. Sheldon declined the offer of an ambulance; she said that the soccer team friends who had stopped to offer help had offered to drive her to the hospital and she accepted their offer.

[47] Ms. Sheldon said that, as time passed, she was feeling more and more pain. She said that this was why she had decided to go to the hospital with her friends instead of waiting for an ambulance; she thought that her friends would get her there more quickly. She said that she was starting to have difficulty coping with the pain.

[48] Ms. Sheldon’s friends took her to the Queensway Carleton Hospital and dropped her off at the emergency department.

[49] Ms. Sheldon said that at the hospital, x-rays were taken. She said that she was told that she had a muscular strain in her neck. She said that she was given a foam collar and was told to put cold on her neck, to take Tylenol and Advil and, if her condition did not improve, to see her family doctor.

[50] Ms. Sheldon was discharged from the hospital that night. Mr. Hatcher came to the hospital to pick her up and drove her home. She estimated that she was home by 11 p.m. or midnight.

LIABILITY

[51] The defendant admitted liability for the accident.

THE ISSUES

[52] As liability for the accident was admitted, the parties’ lawyers agreed that the causation and damages were issues to be decided.

[53] The defendant’s lawyer argued that a further issue was whether an adverse inference should be drawn from the Ms. Sheldon’s failure to call Mr. Hatcher as a witness. I have chosen to deal with this issue as it arose in the context of the other issues and will not treat it as a separate issue to be decided.

[54] The issues at trial were, therefore, the following:

Issue #1: Causation:

(1) Did the accident cause an injury to Ms. Sheldon?

Issue #2: Damages:

(1) What are Ms. Sheldon’s non-pecuniary general damages, if any?

(2) What are Ms. Sheldon’s damages for loss of income, if any?

(3) What are Ms. Sheldon’s damages for out-of-pocket expenses, if any?

(4) What are Ms. Sheldon’s damages for future care costs, if any?

ISSUE #1: CAUSATION

[55] This is not a case involving a complicated causation analysis. The case involves one plaintiff, one car accident and one defendant, who has admitted liability.

[56] The Supreme Court of Canada has reminded us that it is important to distinguish between causation as “the source of the loss” and the rules of damage assessment in tort. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is “a” cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then apply with the goal of restoring the plaintiff to the position she would have been in had the accident not happened, to the extent that it is possible to do so with a monetary award.[^1]

[57] The test for showing causation is the “but for” test, which asks whether the plaintiff’s injury would have occurred “but for” or, were it not for, the defendant’s negligent act or omission.[^2]

[58] “The [defendant’s] breach does not have to be ‘the’ only cause of the harm, it only has to be ‘a’ cause of some of the harm. The breach also does not have to be ‘a’ cause of all of the harm…[T]he ‘but for’ test is only focused on the role of the defendant’s breach causing ‘some’ harm to the plaintiff”[^3]

[59] Causation is an all or nothing inquiry: if the plaintiff loses on causation, she recovers nothing at all.[^4]

[60] The defendant’s lawyer conceded causation in his closing submission when he argued that Ms. Sheldon had suffered a whiplash injury in the September 17, 2011 accident and was entitled to $25,000.00 in non-pecuniary general damages.

[61] There was ample evidence at trial that Ms. Sheldon’s injury would not have occurred were it not for the September 17, 2011 accident. This included the evidence of Ms. Sheldon’s expert physiatrist Dr. Max Kleinman, whose opinion on causation I preferred to that of the defendant’s expert physiatrist, Dr. Michael Devlin. It also included the evidence of Ms. Sheldon’s expert psychologist, Dr. Tammi Ricci, whose opinion was not countered by any defence evidence. I will refer in greater detail to the causation opinions of Drs. Kleinman, Devlin and Ricci, below.

[62] I find that but for the September 17, 2011 accident, Ms. Sheldon’s injury would not have occurred.

[63] The far more difficult and contentious issue is the measure of damages that would restore Ms. Sheldon to her original position.

ISSUE #2: DAMAGES

What are Ms. Sheldon’s non-pecuniary general damages, if any?

[64] Ms. Sheldon argued that she is entitled to non-pecuniary general damages in the $175,000.00 to $225,000.00 range.

[65] As I mentioned above, the defendant argued that Ms. Sheldon suffered a whiplash injury and assessed the plaintiff’s non-pecuniary general damages at $25,000.00. The defendant argued that the plaintiff’s whiplash injury continued for three to six months and that it did not cause the other issues she complained of at trial.

[66] In Ontario, to be entitled to an award of non-pecuniary general damages, a person must have suffered what is generally referred to as a “threshold” injury. To cross the threshold, the person must prove that she sustained a “permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function.” Otherwise, the person’s claim for these damages is barred by the provisions of Ontario’s Insurance Act, R.S.O. 1990, c. I. 8.

[67] Early in the trial, the lawyers for both parties indicated that the defendant was contemplating a “threshold motion”, a motion to determine whether a plaintiff has crossed the threshold which more typically would be brought in the context of a jury trial.

[68] No such motion was brought and neither counsel specifically referred to the “threshold” in their closing submissions, perhaps because of the defendant’s concession that the plaintiff was entitled an award of non-pecuniary general damages. That said, although the defendant appeared to have conceded the threshold issue by argument that Ms. Sheldon was entitled to $25,000.00 in general damages, the defendant’s argument that Ms. Sheldon’s only compensable injury was a whiplash injury of three to six months duration suggested that the defendant did not concede that Ms. Sheldon had suffered a “permanent” impairment.

[69] I will, therefore, begin my consideration of the non-pecuniary general damages issue by considering whether Ms. Sheldon suffered a “threshold” injury.

[70] A very helpful summary of the applicable legislation and regulations was provided by D.L. Edwards J. in Pupo v. Venditti, 2017 ONSC 1519 at paras. 3 to 19, a chronic pain case involving a car accident which took place in May of 2010 and was governed by the same statutory regime as Ms. Sheldon’s accident.

The Applicable Legislation and Regulations

[71] Section 267.5 of the Act applies to motor vehicle collisions on or after October 1, 2003.

[72] Section 267.5(5)(a) and (b) of the Act provide that the owner of an automobile is not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”

[73] Effective October 1, 2003, O. Reg. 381/03 amended O. Reg 461/96.

[74] O. Reg. 381/03 added new section numbers 4.1, 4.2 and 4.3 to O. Reg. 461/96. These sections help define the meaning of the wording contained in s.267.5(b) of the Act, namely “permanent serious impairment of an important physical, mental or psychological function,” and confirm the evidence which must be adduced to prove that the statutory exception or “threshold” has been met.

[75] Section 4.1 of O. Reg. 461/96 states that “[f]or the purposes of section 265 of the Act, ‘permanent serious impairment of an important physical, mental or psychological function’ means impairment of a person that meets the criteria set out in section 4.2.”

[76] Prior case law is of assistance in determining what constitutes permanent, serious, continuous injuries: See Sherman v. Guckelsberger, [2008] O.J. No. 5322 at 142, Nissan v. McNamee 2008 CanLII 20345 (ON SC), [2008] O.J. No. 1739, (2008), 62 C.C.L.I (4th) 135 (S.C.) at para. 37.

[77] In Meyer v. Bright (1993) 15 O.R. (3d) 12 (C.A.), the Court of Appeal outlined the three-part inquiry to be undertaken in the threshold analysis as follows:

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

(2) If yes, is the function which is permanently impaired important?

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

(4) Under s. 4.2(1)3 of O. Reg. 461/96, for the impairment to be “permanent”, impairment must:

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

(b) continue to meet the criteria in paragraph 1, and

(c) be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances,

(d) All of these components must be satisfied: Sherman, at paras. 142 and 146.

(5) The word “permanent” does not mean forever, but it does require that the impairment last into the indefinite future as compared to a predicted recovery period with an end date: See Bos v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424 (Ont. Gen. Div.), p. 169 and 170, Skinner v. Goulet, [1999] O.J. No. 3209 (S.C.), at para. 33; Brak v. Walsh, 2008 ONCA 221, 90 O.R. (3d) 34, at para. 4.

(6) Under s. 4.2(1)2 of O. Reg. 461/96, for the function that is impaired to be an “important function” of the impaired person, the function must:

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

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

(c) be necessary for the person to provide for his or her own care or well-being, or

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

(7) In Ahmed v. Challenger, [2000] O.J. No. 4188 (S.J.), at para. 18 the court refers to Meyer and emphasized the necessity of distinguishing between functions which are important to the injured person and those that are not.

(8) The test of whether the impaired function is “important” is a qualitative test: Page v. Primeau, 2005 CanLII 40371 (ON SC) at para. 32.

(9) Under s. 4.2(1)1 of O. Reg. 461/96, to be “serious” the impairment must:

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

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

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

(10) The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself: Meyer, paras. 28-36; Mohamed v. Lafleur-Michelacci, [2000] O.J. No. 2476 (S.C.), at para 56.

(11) Regarding the degree of impairment in the plaintiff’s daily life which is necessary in order to be serious, it must go beyond tolerable: Frankfurter v. Gibbons (2004), 2004 CanLII 45880 (ON SCDC), 74 O.R. (3d) 39 (Div. Ct.), at paras. 22-24.

(12) It is “the effect of the injury” on the person and not the “type of injury” or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the way the plaintiff has been impacted. The threshold determination is to be done on a case by case basis: Meyer v. Bright supra, at para 12.

(13) The onus of proof to establish that the plaintiff’s impairments meet the statutory exceptions or “threshold” rests with the plaintiff: Page v. Primeau.

[78] I adopt D.L. Edwards J’s summary of the applicable law.

[79] I would add only that section 267.5(1) of the Insurance Act states that, in order to give rise to an entitlement for non-pecuniary loss, the “permanent serious impairment” or “permanent serious impairment of an important physical, mental or psychological function” must also arise directly or indirectly from the use or operation of an automobile.

Did Ms. Sheldon sustain a permanent, serious impairment of an important physical, mental or psychological function and, if so, did the impairment arise directly or indirectly from the use or operation of an automobile?

[80] The evidence of most of the witnesses who testified at the trial was relevant to these questions, including Ms. Sheldon, her children, her two friends Ms. Norman and Mr. Flynn, her family physician Dr. Nagpal, her physiotherapists, her occupational therapist, the expert witnesses Drs. Kleinman, Devlin, Ricci and her therapist, social worker Lea St.Louis.

Ms. Sheldon

[81] Ms. Sheldon’s life before the accident was summarized above.

The first three months post-accident

[82] Ms. Sheldon said that when she got home from the hospital the night of the accident, she was feeling quite unwell. She said she had a lot of pain in her neck.

[83] She said that her neck became stiffer and stiffer, to the point that she could barely turn her head at all.

[84] Ms. Sheldon said that in the days immediately following the accident, moving was extremely painful. She said that her back was becoming stiff as well as her neck.

[85] The Monday following the accident, Ms. Sheldon called her employer to say that she would not be at work for several days.

[86] Ms. Sheldon went to see her family doctor, Dr. Nagpal, on the Wednesday of that week. She said that Dr. Nagpal recommended physiotherapy. She believes that he prescribed a muscle relaxant and possibly also naproxen, an anti-inflammatory.

[87] Ms. Sheldon booked an assessment with a physiotherapy clinic she had used in the past, when she had had an ankle injury. She was told that she would require a number of sessions of physiotherapy. She was scheduled for visits three times per week for the first couple of weeks. Her physiotherapy included manual manipulation and what she described as “very, very small” exercises.

[88] Ms. Sheldon said that she was given exercises to do at home and that she did them all because she wanted to recover as quickly as possible. She said that the physiotherapist also recommended that she walk, which she did three times per day, initially for very short time periods but with a view to extending her walks.

[89] Ms. Sheldon said that immediately following the accident and for the first few months after the accident, she was feeling quite frustrated because she had constant pain, in her neck, her lower back and one of her legs. She said that, during this period, the pain in her neck was constant. The pain in her lower back and leg would build up, resolve through treatment and then return.

[90] Ms. Sheldon said that she did not sleep well in the months following the accident; she said that when she moved, she would wake up because of pain.

[91] Ms. Sheldon said that, through her treatment, she made progress initially. Her physiotherapist added more exercises to her routine.

[92] She said that she took the medication Dr. Nagpal had prescribed and found it to be quite helpful.

[93] She said that in November, about two months after the accident, she had what she described as a “very slow motion fall.” She said that the slushy snow on the ground cushioned her when she landed. She said that her shoulder pain may have been a bit worse as a result of the fall but that the main injury she suffered in the fall was a bruise to her arm. She considered the fall to be a minor incident. There was no change to her physiotherapy treatment plan as a result of the fall.

[94] Ms. Sheldon said that up to the end of November or early December, she was slowly trying to add more activities to her day. If she could tolerate them, she would continue with them. If they caused her pain to increase, she would stop doing them. She said that by the end of November she was doing a “substantial amount” of walking. She said that by this time, she was also preparing simple meals and doing laundry, occasionally with some assistance.

[95] She said that she also began to drive again, although she found it exhausting.

The first return to work attempt, December, 2011

[96] Ms. Sheldon said that, because she was off work for more than one week as a result of the accident, she had been required to apply for short-term disability through her employer. She said that the case manager she was assigned by the disability insurer initially told her to return to work at the end of October, 2011. She said that her return to work was postponed and rescheduled for the first week of December, 2011.

[97] Ms. Sheldon said that when she returned to work, she was required to resume her regular position, minus some of her duties. She was not required to be involved with equipment in the lab; she worked only in her office. She said that she was not able to lift anything heavy at this point. She said that returning to work required a great deal of walking; she said that the distance between her parking spot and her office was at least 500 metres.

[98] Ms. Sheldon’s return to work program involved a gradual increase in the number of hours Ms. Sheldon was required to work. At first, she worked two half days in a week; this was then increased to three half days.

[99] Ms. Sheldon said that her pain got progressively worse each week.

[100] She said that she was in unbearable pain by the end of the third week of the return to work program, the week of December 19, 2011.

[101] She said that at Christmas, that year, she was not able to sit with her family for an extended period; she was required to take breaks to lie down. She said that the pain in her neck and shoulders was increasing, that she was suffering from constant instead of intermittent low back pain and that she also had pain in her arms and legs.

[102] Ms. Sheldon said that, after Christmas, she returned to work on December 28, 2011.

[103] She said that she went to a dentist appointment that morning and that, by the time she got to her office, she was unable to sit or stand comfortably.

[104] She said that she was in so much pain that she could not even think and she realized that she would not accomplish anything at work that day. She told a supervisor how she was feeling and then went home.

[105] Ms. Sheldon said that someone made an appointment for her at an after-hours clinic her husband subscribed to, she believed it was her husband. She said that, by this point, she was in pain from head to toe on both sides. She said she “was having trouble just being present.”

[106] Ms. Sheldon said that, at the after-hours clinic, she was seen by Dr. Charania, whom she had not met previously. She said that she told Dr. Charania that she was on a return to work program and that she needed a medical decision about whether to return to work. She said that Dr. Charania advised her not to return to work. He prescribed Lyrica. Ms. Sheldon was already scheduled to see Dr. Nagpal in early January. Dr. Charania told Ms. Sheldon to rest and to see Dr. Nagpal.

2012

[107] Ms. Sheldon said that her symptoms had not improved significantly by the time she saw Dr. Nagpal in early January, 2012.

[108] She said that she had pain in her arms, legs and back and was having difficulty forming and communicating her thoughts. She said that she wasn’t sleeping well.

[109] Ms. Sheldon said that Dr. Nagpal had told her that he agreed with Dr. Charania that she should not be returning to work at that time.

[110] She said that shortly afterwards, she was told that her disability insurer did not agree that she was unable to work. She received notification that she was either to return to work immediately or appeal the decision.

[111] She said that, at the time, she could not even get in and out of bed and clearly could not return to the work force. She said she could not concentrate or focus, she said. She chose to appeal the decision.

[112] Ms. Sheldon’s disability insurer sent her to be assessed by a physiatrist, Dr. Simard, in March, 2012.

[113] Dr. Simard noted that, following the car accident, Ms. Sheldon’s condition had improved until December 23, 2011 when, for no apparent reason, she had an acute recurrence of all symptoms. Dr. Simard commented that this can happen sometimes.

[114] Dr. Simard noted that Ms. Sheldon complained of pain in her cervical spine that radiated over her right shoulder as well as low back pain. He said that when her pain recurred in December, 2011, it had included increased numbness in both legs.

[115] Dr. Simard did not recommend that Ms. Sheldon return to work at that time. He recommended an MRI.

[116] Ms. Sheldon had an x-ray of her lumbar spine in April, 2012 and an MRI of her lumbar spine in June, 2012.

[117] In a report dated July 10, 2012, Dr. Simard, having reviewed the x-ray and the MRI, recommended that Ms. Sheldon continue her current treatment for an additional six weeks and then see a neurosurgeon if her condition did not improve.

[118] Dr. Nagpal referred Ms. Sheldon to a neurologist, but he refused her case because of a two-year waiting list. Dr. Nagpal then referred Ms. Sheldon to an orthopedic surgeon, Dr. O’Neil, who examined Ms. Sheldon in October, 2012. Dr. O’Neil found nothing wrong with Ms. Sheldon from an orthopedic perspective. He found that Ms. Sheldon had “classical tender points for fibromyalgia” and said that her most likely diagnosis was post-traumatic myofascial pain syndrome.

[119] Ms. Sheldon said that, at that point, in the fall of 2012, she understood that her situation was shifting from acute to chronic.

2013

[120] In March of 2013, Dr. Nagpal referred Ms. Sheldon to be examined by a chronic pain specialist, Dr. Langlois. Dr. Langlois proposed a course of epidural injections to her neck and lower back.

[121] Ms. Sheldon said that there was some pain associated with the injections but that they provided her with some relief to a deep and burning pain she had been experiencing. She said that the relief would typically last for two or three months.

[122] Ms. Sheldon said that she continued to have these injections every three months until March of 2016 and that the burning pain had not returned since that time.

[123] Ms. Sheldon said that in 2013, she continued to take Lyrica, or its generic equivalent, pregabalin, and that she continues to take it. She was also prescribed cyclobenzaprine, which she also continues to take.

[124] She also began to take hydromorphone for breakthrough pain, although she said that she usually took this at bedtime because she was not functional when she took it.

The aborted return to work attempt, April, 2014

[125] Ms. Sheldon said that in 2013, her LTD insurer began to talk to her about a return to work.

[126] She said that she was called in to start a return to work program in April of 2014.

[127] Ms. Sheldon said that she had understood some ergonomic issues related to her 2011 return to work had been dealt with by her employer; Dr. Nagpal had written a letter to Ms. Sheldon’s disability insurer on March 26, 2014, saying that he felt that before she could return to work all of her work stations should have a full ergonomic assessment and all recommendations should be fully implemented.

[128] Ms. Sheldon said that when she arrived at her office to return to work in April, 2014, the only thing that had been done was that her previous office chair had been changed. She said that it had been changed to a four-legged chair that did not move well on the carpet. She was then offered a chair which she described as being surplus to operational requirements which had sticky castors that did not move easily on the floor.

[129] Ms. Sheldon said that the person who did the ergonomic assessment of her workstations returned and attempted to adjust the furniture but determined that the furniture could not be adjusted.

[130] Ms. Sheldon did not return to work while the efforts were being made to adjust her furniture.

[131] She said that she eventually learned that her disability insurer’s case manager and her Canada Post case manager appeared to believe that the workplace modifications she required were needed only in the short term, and were reluctant to incur the costs.

[132] Although Ms. Sheldon attended some meetings and planning exercises, she never actually returned to work in 2014.

The return to work attempt of 2015

[133] Ms. Sheldon made another attempt to return to work in March of 2015.

[134] The plan was for her to increase her hours over an eight-week period.

[135] This time, Ms. Sheldon had been provided with a workstation that allowed her to work while sitting and standing, which pleased her.

[136] During this return to work attempt, Ms. Sheldon found that she was having difficulty sleeping. Dr. Nagpal prescribed trazadone, an anti-depressant, to assist her with her sleep. Ms. Sheldon said that she also tried melatonin, which is available over the counter. Ms. Sheldon said that, before the accident, she had never taken any medication to help her sleep.

[137] Soon after Ms. Sheldon returned to work, her position was eliminated and she was told that she would be required to look for another position internally. Because of her seniority, she had priority for positions at her level for which she was suitable. She found a new position. She said that she quickly got up to speed and was happily working at the job, but was having difficulties physically. She said that she was having difficulty sleeping and her pain levels were escalating significantly. She said that her new position required her to work at a computer 100 per cent of the time and that she was experiencing pain she had not had previously in her arms as well as pain in her neck and in the back of her legs.

[138] Ms. Sheldon met with Dr. Nagpal on May 5, 2015 and told him that she had not been doing well since she started working full days, four days per week. She told him that working three days per week had been more manageable.

[139] Dr. Nagpal wrote a letter to Ms. Sheldon’s disability insurance case worker, recommending that she work a maximum of three full days per week with no back-to-back days.

[140] Dr. Nagpal’s chart note of May 26, 2015 indicated that Ms. Sheldon had been struggling to sleep and that she was taking trazadone to help her sleep but that she was too light-headed the next day to function. Dr. Nagpal’s note also indicated that Ms. Sheldon’s disability insurer was refusing to pay her if she works three days per week and that Canada Post was recommending a medical disability pension.

[141] Ms. Sheldon told Dr. Nagpal that she did not have enough information to make an informed decision but that she would contact her union representative.

[142] On June 23, 2015, Ms. Sheldon told Dr. Nagpal that she was getting to the point where she could no longer work three days per week. She told him that she was not coping well and was finding even simple tasks at home overwhelming. She also said that she had been told that if she reduced her work week any further, she would likely end up in the call centre on the midnight shift, which her union representative told her is what Canada Post does when it is trying to encourage people to quit. Ms. Sheldon told Dr. Nagpal that she could either quit or consider a disability pension.

[143] Ms. Sheldon asked Dr. Nagpal for some time off work to help her recover.

[144] Dr. Nagpal gave her a note that said that she should be off work until August, 2015.

[145] Ms. Sheldon never worked again.

[146] On October 20, 2015, Ms. Sheldon told Dr. Nagpal that she had decided to apply for disability benefits from the Canada Pension Plan.

[147] Her application was approved in November, 2016.

[148] Ms. Sheldon retired effective July 7, 2017. She had completed 30 years of service with Canada Post by that time and was eligible to receive an early pension with no penalty.

On-going symptoms

[149] Ms. Sheldon said that her symptoms as of the date of trial included pain throughout her body. She said she has pain in her neck and her lower back as well as down both of her arms and into her hands. She said that she has pain in her feet. She also has mid-back stiffness.

[150] She said that in some areas of her body the pain is constant while in other areas, it varies.

[151] Ms. Sheldon said that in 2017, she would have rated her pain as being typically between a seven and a nine on a scale of zero to 10.

[152] She said that when her pain is a seven on the scale, she has quite limited daily activities and disrupted sleep at night. She said at level eight, it would be difficult for her to undertake even simple activities without making errors. She said when her pain is a nine, she is just trying to make it through the next hour.

Treatments

[153] Since the accident, Ms. Sheldon has seen Dr. Nagpal every six weeks to two months.

[154] Ms. Sheldon began to do physiotherapy in the fall of 2011, immediately after the accident, and has been doing it ever since. The frequency of her appointments changed over time. In the months following the accident, she went to physiotherapy two or three times a week. At other times, she went two or three times per month. At the time of trial, she was going once per week.

[155] Following the accident, Ms. Sheldon’s physiotherapy had included inferential current treatment, which she said was aimed at increasing her range of motion and strengthening. She was also given exercises to do at home. She said that the amount of exercising she was required to do became quite overwhelming for her by the middle of 2012 and could require up to four hours in a day. She said that she would not do all of these exercises at one time but would do them over the course of the day. She also walked, which her physiotherapists had recommended, and said that, initially, her goal was to build up to walking for at least 30 minutes per day.

[156] Ms. Sheldon said that she began to walk with her friend Ms. Norman, when Ms. Norman was recovering from some surgery. She said that Ms. Norman has since returned to work but that, as of the time of trial, they continued to walk together twice each week.

[157] Ms. Sheldon said that in the fall of 2012, the focus of her physiotherapy shifted from attempting to heal to management of a chronic injury.

[158] In the fall of 2012, she began to undergo a process known as dry needling, which she said was to relieve knots in her muscles known as trigger points. She continues to receive these treatments. She said that the treatments cause soreness for a day or two but they provide her with some relief and can make a big difference in her ability to function.

[159] She said that in the fall of 2013, she began to receive craniosacral treatment from a physiotherapist. She said that it is a gentle treatment and is not unpleasant like the dry needling. She said that it is intended to relieve tension and that she believes that it works quite well, particularly in controlling headaches.

[160] Ms. Sheldon said that at times she also receive acupuncture with an electrical current on the needle.

[161] At trial, she said that she was continuing to receive joint mobilization, dry needling and craniosacral treatments. She said, as was noted above, that she sees a physiotherapist once per week. She said that the therapist does a brief assessment at the beginning of each appointment and then decides what to focus on.

Driving

[162] With one exception, the last time Ms. Sheldon drove a car was on the last day of the 2011 return to work program, December 28, 2011. She said that on one occasion since then, she tried driving in a parking lot while accompanied by Mr. Hatcher but it had not gone well.

[163] Ms. Sheldon said that, after the accident, she had found driving difficult. She said that she had not been ready to handle a 45 minute commute in traffic. She also found it difficult to sit in a car.

[164] Ms. Sheldon said that she stopped driving because she is permanently on medication. She said that as a result of the medications she takes she struggles with tasks that require her to do several things at the same time and be aware of everything around her, such as driving. She also believes that she is quite frail and she does not want to have another car accident. She said that she has difficulty doing things that require her arms to be outstretched. She also said that that she is not confident about how much pressure she can put and hold on the brake.

[165] No doctor told Ms. Sheldon that she could not drive and her driver’s licence has not been taken away from her.

Post-accident activities

[166] Ms. Sheldon said that, since the accident, she has not been able to return to her pre-accident activities. She does not work. She did not return to her role with her daughter’s sports teams. She stopped swimming with the Masters swimming club. She has done some volunteer work, but her ability to do so is limited by her inability to commit to a schedule because of the unpredictability of her symptoms. Her ability to do housework and home maintenance has been impaired. She has not been able to enjoy the activities she previously enjoyed with her family.

Allison Hatcher

[167] Ms. Sheldon’s daughter Allison was 18 at the time of the trial and a first-year student at Acadia University in Nova Scotia. Allison was 12 at the time of the accident.

[168] Allison said that, before the accident, she would have described her mother as busy and super-organized, with a plan and a back-up plan for everything.

[169] Allison said that, after the accident, her mother would do things more slowly and that a lot of things didn’t get done. She said that the house was not as clean, yard work wasn’t happening and meals got really simple, like frozen lasagna.

[170] Allison said that her mother stopped managing her sports teams after the accident, although she still helped out from time to time. She said that her mother tried to attend Allison’s games, although, before the accident she would be at every practice, tournament and party and it wasn’t like that after the accident.

[171] Allison said that after the accident, her mother would continue to accompany the family when they participated in activities, such as mini-golf, but she would take pictures rather than participating in the activity.

[172] Allison said that after the accident, the family hired a housekeeping service, a snow removal company and a lawn care company.

[173] Allison said that her mother can’t do housekeeping tasks anymore, or if she does them, it takes longer, such as all night to do the dishes.

[174] Allison said that since the accident, her mother is a bit more absent-minded and doesn’t get everything done anymore. She said that her mother gets flustered more easily and can get overwhelmed.

Ryan Hatcher

[175] Ms. Sheldon’s son Ryan was 26 at the time of the trial. Ryan and his fiancée were living with his parents. Ryan was in his final year of a three-year game development program at Algonquin College.

[176] At the time of the accident, Ryan was enrolled in an engineering program at Queen’s University in Kingston.

[177] Ryan said that before the accident, Ms. Sheldon would do most of the housekeeping although everyone else in the family was responsible for some tasks.

[178] Ryan said that following the accident, Ms. Sheldon often appeared to be in pain. He said that she moves more slowly, is more irritable and is easily frustrated.

[179] He said that she appears to have difficulty remembering things and with tasks that involve concentration.

[180] Ryan said that a housekeeper now cleans the family home. He said that his mother still does laundry for herself and his father. He said that the whole family has become involved in meal preparation. She said that his parents do the grocery shopping together.

[181] Ryan said that a snow removal service now clears the driveway and that he, his father or his sister would clean the snow off the front walk.

[182] He said that he had been mowing the lawn and that a lawn care company does treatments. His parents both pull weeds but his mother will not do so for more than 15 minutes.

[183] Ryan said that his father’s Parkinson’s disease is obviously taking a toll on him. Ryan said that his father is fatigued and often takes a nap when he gets home from work. He said that the family now sometimes has difficulty understanding his father when he speaks and that his father has trouble doing any significant tasks.

[184] Ryan said that his mother is still interested in what he is up to but spends more time dealing with her own issues and is more concerned with herself than she was before the accident. Ryan said that his mother spends a lot of time at home on her own and is far less out-going and involved than she was before the accident.

Michael Flynn

[185] Michael Flynn is a retired professional engineer who met Ms. Sheldon in 1989 when they were both working for Canada Post.

[186] Mr. Flynn retired in January of 2015 at the age of 58. He explained that his first wife had died at 40 and a cousin had died at 60. Mr. Flynn retired early and moved to the country. He said that he had 25 years of service with Canada Post when he retired and he took a penalty on his pension.

[187] Mr. Flynn and Ms. Sheldon worked closely for about one year. Mr. Flynn said that their paths at Canada Post had diverged when he went to the management side. However, because they both lived in Barrhaven and had children about the same age, they became friends.

[188] At work, although they no longer worked closely, Mr. Flynn and Ms. Sheldon frequently walked together at lunch hour.

[189] Outside of work, when their children were small, they would see each other once a week or every two weeks and on children’s birthdays and other holidays.

[190] Mr. Flynn described Ms. Sheldon as having a heart of gold.

[191] He said that at work she was seen as a “detail person” and was well-respected as an engineer.

[192] Mr. Flynn said that the car accident changed her life.

[193] He said that he knew that her efforts to return to work had failed.

[194] He said that he was aware that Ms. Sheldon’s position at Canada Post had been declared “surplus” which meant that a position within the organization would be freed up. He said that the work Ms. Sheldon had been doing was shifted to Toronto which probably had a lot to do with her absences.

[195] Mr. Flynn said that it was up to management to find her a position at an equal level and pay grade. He said that there would be many positions at Canada Post an engineer such as Ms. Sheldon could fit into.

[196] Mr. Flynn said that there had been a noticeable change in Ms. Sheldon following the accident. He said that she could no longer drive and she was no longer part of the swim club. He said that they had gone for a walk together following the accident and she was very unsteady on uneven surfaces. She had gained weight, he said, and, as he put it, mentally, her house was a bit more cluttered and not as organized. As an example, he said that when she was going through the retirement process she had asked him to follow up on some things that she didn’t understand.

Eleanor Norman

[197] Eleanor Norman is a friend of Ms. Sheldon.

[198] Ms. Norman is a kindergarten teacher who met Ms. Sheldon through their church. They have daughters who are the same age.

[199] Ms. Norman said that she became aware of Ms. Sheldon’s car accident because she noticed that Ms. Sheldon would stand up and sit down in church and would often not attend at all.

[200] Ms. Norman said that after the accident, Ms. Sheldon was more careful about managing her time. Ms. Norman said that Ms. Sheldon may have said that she was too tired to do something at one point, which was unusual for her.

[201] Ms. Norman said that Ms. Sheldon was very bothered by her inability to be as involved with her daughter’s ringette team as she had been before the accident.

[202] Ms. Norman said that she and Ms. Sheldon often walked together. She said that she was recovering from surgery in 2014 and she knew that Ms. Sheldon walked every day. She had reached out to Ms. Sheldon to ask if she would like a walking partner.

[203] The two started walking together in September of 2014 and have walked a couple of times a week ever since.

[204] Ms. Norman said that she and Ms. Sheldon first started walking, they would walk 15 times per month. They increased their distance to 3.5 to 4 km/day, which would take them from 35 to 45 minutes, depending on how they were feeling.

[205] Ms. Norman said that Ms. Sheldon had had a setback in 2016 and that Ms. Sheldon had had some issues with medication at one point. Ms. Norman said that they resumed walking in August, 2017 and that Ms. Sheldon was able to walk only a fraction of the distance she had previously. Ms. Norman said that, by the end of the summer, they were back up to 3.5 km, but they were walking more slowly than they had previously.

[206] At the time of the trial, they were still walking twice per week.

[207] Ms. Norman described Ms. Sheldon as an incredible person who seems heart-broken as a result of her diminished capacity following the accident. Ms. Norman said that Ms. Sheldon is struggling with the fact that she cannot do what she used to be able to do. She said that Ms. Sheldon is trying hard to change her reality but has to adjust to her new reality. She said that Ms. Sheldon is trying to be as useful as possible rather than just sitting and being sick.

[208] Ms. Norman said that all Ms. Sheldon wanted to do was to get better.

Dr. Sandeep Nagpal

[209] Dr. Nagpal has been Ms. Sheldon’s family physician since 1995.

[210] Dr. Nagpal said that before the accident, he would typically see Ms. Sheldon three or four times per year.

[211] He said that she had had a few medical conditions before the accident, including asthma, which was fairly stable, pre-menopause symptoms, migraines and high blood pressure.

[212] He said that he knew Ms. Sheldon to be quite active pre-accident. He said that he knew that she was a swimmer and that she was quite involved in her children’s activities.

[213] Dr. Nagpal said that, pre-accident, he did not believe that Ms. Sheldon was suffering from any mental health issues that required either referral or medication.

[214] Dr. Nagpal said the first time he saw Ms. Sheldon post-accident was four days after the accident, on September 21, 2011. He said that he believed that she had sustained a muscular injury. He noted that she had decreased flexion and rotation on her neck. Her range of motion in the shoulders was normal. She had discomfort of the right shoulder on abduction, which was when she pulled her arm away from her body. Dr. Nagpal found nothing wrong with her back at that time.

[215] Dr. Nagpal recommended physiotherapy. He recommended against the soft collar Ms. Sheldon was wearing and asked her to stop using it. He prescribed a pain killer and a muscle relaxant and asked her to return to see him in two weeks.

[216] At that time, he expected Ms. Sheldon to make a complete recovery.

[217] Dr. Nagpal next saw Ms. Sheldon on October 4, 2011. She had gone to physiotherapy and she felt that it had helped her neck. Her shoulder remained sore. Dr. Nagpal diagnosed a whiplash injury. He recommended that she continue with physiotherapy.

[218] Dr. Nagpal said that he did not believe that Ms. Sheldon could work at that time but believed that she would be able to do so in five to eight weeks.

[219] Later in October, Ms. Sheldon was still having discomfort but her condition had improved.

[220] On November 1, 2011, Ms. Sheldon reported that because of some exercises she was doing in physiotherapy, she was getting worse and was experiencing discomfort over her right shoulder. Nonetheless, Dr. Nagpal’s notes indicated that his impression for that visit was “improving whiplash.”

[221] When Dr. Nagpal saw Ms. Sheldon on November 28, 2011, she told him that her physiotherapy had been going well but that she had had a fall. Dr. Nagpal did not diagnose any new injuries. He said that he did not think that the fall had exacerbated her injuries from the car accident. In his notes he had written “improving neck pain”.

[222] Dr. Nagpal believed that Ms. Sheldon could begin a gradual return to work on December 5, 2011 and that she could work for four hours per day, three days per week. He said that she should not lift anything. He said that her hours should be gradually increased until she was working full time by January 19, 2012.

[223] At the time, Dr. Nagpal did not believe there was any reason why Ms. Sheldon would not be able to return to work and he encouraged her to do so. He did not believe that there was any reason to think that a return to work would be unsafe or dangerous for her.

[224] Dr. Nagpal saw Ms. Sheldon on December 12, 2011. She reported that it was challenging for her to be back at work after the time off. He felt that she could continue with the return to work plan, provided that she was permitted to change her position as required and continue not to lift anything.

[225] On January 5, 2012, Dr. Nagpal learned that Ms. Sheldon had not worked after December 28, 2011. He learned that between Christmas and the New Year, Ms. Sheldon had seen another family doctor, Dr. Charania. Dr. Nagpal said that he understood that Ms. Sheldon had seen Dr. Charania because she was having difficulty with pain at work and that Dr. Charania had started her on Lyrica.

[226] Dr. Nagpal said that he was surprised that Ms. Sheldon’s return to work had gone so badly. The last time he had seen her had been on December 12, 2018. At the time, she had said that her most significant challenge in relation to the return to work was the drive to work and not the work itself.

[227] However, Dr. Nagpal said that most people do find it challenging to return to work after any type of injury.

[228] Dr. Nagpal concluded that Ms. Sheldon had sciatica, because she had complaints about pain in her back and her leg. He continued her Lyrica and recommended physiotherapy. He agreed with Dr. Charania that she should not work.

[229] On cross-examination at trial, Dr. Nagpal agreed that he later concluded that she did not in fact have sciatica.

[230] Dr. Nagpal said that in the spring of 2012, Ms. Sheldon’s condition appeared to be improving somewhat. He recommended on-going physiotherapy.

[231] Later in 2012, Dr. Nagpal received the results of an MRI, which indicated bulging and possible herniation of a disc. He recommended an opinion from a spinal surgeon, Dr. O’Neil. Dr. O’Neil saw Ms. Sheldon in October, 2012. Dr. O’Neil did not recommend surgery and thought that her pain was myofascial in origin. Dr. Nagpal described myofascial pain as a hyper-sensitive response to any pain. He said that it can also be referred to as hyper-amplification of pain.

[232] By Feb of 2013, Ms. Sheldon was still having pain. There had been some improvement, but she was not back to her normal self.

[233] By March of 2013, Ms. Sheldon had been seen at a pain clinic and given epidural injections.

[234] She was still doing physiotherapy.

[235] Dr. Nagpal said that at this stage, in the spring of 2013, he did not believe that Ms. Sheldon would experience any significant improvements in her condition in the future. He said that the expectations had changed by this point and he did not feel that she would return to her pre-injury state. He said that he felt that she would be required to make adjustments in her lifestyle to accommodate the changes in her health.

[236] However, by October of 2013, Dr. Nagpal said that Ms. Sheldon had improved to the point that he was discussing a return to work attempt. He said that he wrote a letter setting out what he felt was an appropriate graduated return to work plan with restrictions on the number of hours she could work.

[237] Dr. Nagpal said that in February, 2014, Ms. Sheldon was continuing to have pain and discomfort. Dr. Nagpal said that, at that time, Ms. Sheldon felt that her disability insurer was pushing her to return to work; he said that she felt “bullied”.

[238] Dr. Nagpal said that, at that point, there was no change in his recommended treatment; he felt that everything was being done that could be done from a medical point of view to assist her.

[239] In March of 2014, Dr. Nagpal and Ms. Sheldon discussed a return to work program, including an ergonomic set-up and what she should be lifting.

[240] On March 26 2014, Dr. Nagpal wrote to Ms. Sheldon’s disability insurer and recommended a full ergonomic assessment before Ms. Sheldon would return to work and also that all recommendations should be implemented.

[241] Dr. Nagpal said that after a patient has been off work for an extended period of time it becomes more and more difficult for them to return to full-time duties. He said that he thought that it was worth a try nonetheless.

[242] Dr. Nagpal said that in March of 2015, Ms. Sheldon had started to return to work and was working three half days per week.

[243] He said that, initially, the return to work program appeared to be going reasonably well. He said accommodations had been made, although the employer had not done everything that had been requested in the ergonomic assessment, which Ms. Sheldon found frustrating.

[244] In April, 2015, Ms. Sheldon reported to Dr. Nagpal that her workload was increasing and that she was finding it difficult to keep up. She also complained that she was not sleeping well. He prescribed medication to help her sleep which he did not believe had been recommended for her previously.

[245] By May of 2015, Ms. Sheldon had increased her work schedule to four days per week. Dr. Nagpal said that it was not going well, particularly when Ms. Sheldon had to work back to back days. Dr. Nagpal said that Ms. Sheldon had reported that she was finding it very challenging and that she was not functioning. She said that she was not doing anything other than working, coming home and trying to recover for the next day.

[246] Dr. Nagpal said that he concluded that her level of pain was being exacerbated by the return to work. He said that he believed that her workload should be reduced and that she should not work on consecutive days.

[247] Dr. Nagpal said that in June, 2015, Ms. Sheldon was still having a difficult time, even though her workload had been reduced to three days a week from four. She had told him that she was making mistakes she would not usually make and was fatigued because she was required to schedule her medical and other appointments for the days she was not working.

[248] Dr. Nagpal said that, at that time, he felt that Ms. Sheldon should take some time off and see if she could recover and then try again. He recommended that she remain off work until August and that the situation would then be re-evaluated.

[249] In his examination in chief at trial, Dr. Nagpal said that he believed that Ms. Sheldon wanted to return to work and did everything that was required in order to return to work. He felt that her pain, her inability to concentrate because of her pain and her physical stamina were preventing her from working.

[250] Dr. Nagpal said that, at that time, his prognosis for Ms. Sheldon was “guarded.”

[251] Dr. Nagpal said that in 2016, Ms. Sheldon participated in a pain management program called “Refresh”. Dr. Nagpal said that she was continuing to have difficulty dealing with pain on a day to day basis and was not getting much further ahead.

[252] He said that, at that time, in the fall of 2016, Ms. Sheldon’s condition was fairly stable and slightly improved.

[253] Dr. Nagpal said that he referred her for psychological counselling in order to assist her to cope with the drastic changes in her life.

[254] She also continued with physiotherapy and the medications she had been taking.

[255] In December, 2016, Ms. Sheldon told Dr. Nagpal that she had slipped on ice and had fallen a few weeks before she saw him. He said that the fall had exacerbated her pain and made things worse for her.

[256] Dr. Nagpal said that Ms. Sheldon’s condition had been fairly stable in 2017.

[257] In examination in chief, Dr. Nagpal said that he felt that, in order to get better, Ms. Sheldon had followed all of the advice he could expect anyone to. On cross-examination, however, he agreed that, in the past, he had made recommendations for Ms. Sheldon’s care that she did not follow, for example, that he had recommended medication and she either did not take it or stopped taking it.

[258] Dr. Nagpal also agreed on cross-examination that Ms. Sheldon was actively involved in her care following the car accident and very interested in what Dr. Nagpal would report to her employer and her insurers. I will elaborate on this aspect of Dr. Nagpal’s cross-examination later in these reasons when I consider Ms. Sheldon’s claim for loss of income.

[259] In terms of future care, Dr. Nagpal said that he believed that Ms. Sheldon would require on-going support and counseling to deal with the changes in her lifestyle and recommended treatment every two to three months. He said that she expected her to continue to require the medications she had been taking on a long-term and possibly permanent basis. He also said that he believed that she would require on-going physiotherapy and trigger point injections.

[260] He said that she should continue to be as active as possibly, and that if she stops being active, it will make her situation worse.

[261] He said that he did not expect that she would ever return to work.

Ms. Sheldon’s physiotherapists

[262] Two physiotherapists testified, Wendy Morielaz and Jessica Collins.

Wendy Morielaz

[263] Ms. Morielaz treated Ms. Sheldon immediately following the car accident. Ms. Morielaz had previously treated Ms. Sheldon for an ankle injury about six years earlier.

[264] The first time Ms. Morielaz saw Ms. Sheldon following the car accident was one week after the accident on September 23, 2011. Ms. Morielaz said that, at the time, Ms. Sheldon was complaining of neck, right shoulder and lower back pain. Ms. Morielaz said that Ms. Sheldon reported that she had issues bending forward, brushing her teeth and combing her hair as well as difficulties with housekeeping.

[265] Ms. Morielaz said that Ms. Sheldon had decreased range of motion in her neck because of pain. She had some limited range of motion in her right shoulder and decreased strength and pain in her right shoulder. She also had muscle tightness.

[266] Ms. Morielaz diagnosed Ms. Sheldon as having what is known as a “WAD 2” whiplash injury.

[267] In November, 2011, Ms. Morielaz wrote to Dr. Nagpal and recommended a gradual return to work for Ms. Sheldon, with modified duties. Ms. Morielaz said that Ms. Sheldon had told her that her employer wanted her to return to her full duties at work and Ms. Morielaz did not think that she could do it. Ms. Morielaz recommended a 10-week graduated return.

[268] Ms. Morielaz said that Ms. Sheldon’s condition improved somewhat from September to November, 2011, but Ms. Morielaz felt that further treatment was required.

[269] Ms. Morielaz said that Ms. Sheldon had had a fall in November, 2011. She said that when she saw Ms. Sheldon on November 28, 2011, after the fall, she noted bruising in the upper right extremity. Ms. Morielaz said that she did not consider the fall to represent a new injury that required approval of a new treatment plan; she continued to treat Ms. Sheldon under the existing treatment plan for the car accident.

[270] Ms. Morielaz said that after Ms. Sheldon returned to work in early December, 2011, she complained of increased pain in her shoulders, neck and back. She also complained of foot pain. Ms. Sheldon reported headaches and overall soreness.

[271] Ms. Morielaz saw Ms. Sheldon on December 28, 2011, which was the day Ms. Sheldon left work because she could not tolerate it. Ms. Morielaz said that she did not remember this appointment, although she remembered that Ms. Sheldon had tried to return to work in December of 2011 and that it had exacerbated her symptoms. Ms. Morielaz said that her notes indicated that on December 28, 2011 she used some modalities to settle the pain and then talked to Ms. Sheldon about possible modifications to her work station.

[272] Ms. Morielaz saw Ms. Sheldon again two days later on December 30, 2011.

[273] On January 4, 2012, Ms. Morielaz wrote to Dr. Nagpal, reporting on Ms. Sheldon’s visit of December 28, 2011 and said that she believed that Ms. Sheldon required an ergonomic assessment of her workplace.

[274] Ms. Morielaz said that she believed that the return to work plan was too aggressive for Ms. Sheldon and that it was hindering her physical recovery.

[275] Ms. Morielaz continued to treat Ms. Sheldon in 2012. Ms. Morielaz said that by March, Ms. Sheldon’s condition was very similar to what it had been in November, before she went back to work.

[276] In 2012, Ms. Morielaz recommended that Ms. Sheldon begin to work with a kinesiologist, to help her with exercises and to increase her overall strength. Ms. Morielaz recommended continued treatment for Ms. Sheldon, including dry needling and neural flossing.

[277] In the fall of 2013, Ms. Sheldon’s insurer proposed a return to work program which Ms. Morielaz believed was too aggressive. Ms. Morielaz recommended a gradual return to work program over a seven-month period that also required that recommended ergonomic modifications be in place. The plan was rejected by Ms. Sheldon’s employer.

[278] Ms. Morielaz said that Ms. Sheldon’s condition had improved from early 2012 to early 2014. Ms. Morielas said that in the spring of 2014, Ms. Sheldon recommended further treatment for Ms. Sheldon because she was showing progress.

[279] Ms. Morielaz stopped treating Ms. Sheldon in the spring of 2014 because she left the physiotherapy clinic where she had been treating Ms. Sheldon to take another position.

Jessica Collins

[280] Ms. Collins began to treat Ms. Sheldon in 2013. Ms. Collins worked with Ms. Morielaz and saw Ms. Sheldon every second week.

[281] Ms. Collins provided craniosacral therapy which she said works well with patients who have chronic pain. Ms. Collins said that the therapy appeared to settle Ms. Sheldon’s pain. It also increased her range of motion. Ms. Collins said that it helped with stress and that Ms. Sheldon felt better after this therapy.

[282] On cross-examination, Ms. Collins admitted that this therapy is controversial and that some people consider it to be quackery.

[283] Ms. Collins treated Ms. Sheldon every second week in 2013.

[284] She then took over the dry needling Ms. Morielaz was doing.

[285] In 2014, Ms. Collins treated Ms. Sheldon every two weeks, with either neural flossing or dry needling, which she alternated. She eventually stopped doing the neural flossing but continued with the dry needling and the craniosacral treatments.

[286] On cross-examination, Ms. Collins agreed that no physician had prescribed craniosacral therapy, neural flossing or dry needling.

[287] Ms. Collins treated Ms. Sheldon during her 2015 return to work attempt. Ms. Collins confirmed that the return to work had not gone well. She said that Ms. Sheldon had not been able to tolerate working for more than three days per week. She had become fatigued and had increased pain.

[288] On April 22, 2015, Ms. Collins contacted Dr. Nagpal to discuss Ms. Sheldon’s return to work. Ms. Collins felt that Ms. Sheldon was not progressing. She asked Dr. Nagpal if Ms. Sheldon had been referred to a psychologist to discuss stress-related issues. Dr. Nagpal said that she had not but that he would make the suggestion.

[289] Ms. Collins was off on maternity leave for one year beginning in July of 2015 but began to see Ms. Sheldon again in July, 2016.

[290] At that time, Ms. Sheldon was still undergoing dry needling and joint mobilization.

[291] Ms. Collins said that Ms. Sheldon had a slip and fall in November of 2016 in which she hit her knee and jarred her lower back. Ms. Collins said that, as a result of the fall, Ms. Sheldon had increased trigger points, which are palpable nodules in the muscles that cause pain and restrictions.

[292] In 2017, Ms. Collins continued to treat Ms. Sheldon with craniosacral therapy and also some joint mobilization.

[293] Ms. Collins said Ms. Sheldon has always been very compliant and that she does all of her exercises.

[294] At the time of trial, Ms. Sheldon was still being treated by Ms. Collins. Ms. Collins said that Ms. Sheldon had soreness in her neck, head and jaw and she was quite fatigued.

[295] Ms. Collins said that she believed that Ms. Sheldon benefits from her on-going physiotherapy in that it makes her feel better because she feels less pain and tension following her treatments.

[296] Ms. Collins said that she recommends on-going physiotherapy in order to maintain Ms. Sheldon’s level of function. However, Ms. Collins said that she would like to see Ms. Sheldon reduce her appointments to once every two weeks. Ms. Collins also recommended a swimming pool program, which she believes would be good for Ms. Sheldon.

[297] Ms. Collins said that she has never doubted Ms. Sheldon’s reports of pain.

[298] On cross-examination, Ms. Collins agreed that, in a progress report she prepared in July, 2015, after she had been treating Ms. Sheldon for approximately two years, she had written that there had been no significant improvement in Ms. Sheldon’s condition in terms of the functional scores that measure her degree of disability.

Colin Moore

[299] Mr. Moore is an occupational therapist who assessed Ms. Sheldon in a treating capacity in 2013.

[300] Mr. Moore did not treat Ms. Sheldon after 2014.

[301] Mr. Moore then prepared housekeeping capacity assessments in 2016 and 2017 and testified as an expert witness in the area of occupational therapy.

[302] The defendant took no issue with Mr. Moore’s qualifications but, on cross-examination, challenged Mr. Moore’s objectivity and argued that Mr. Moore was acting as an advocate for Ms. Sheldon.

[303] Mr. Moore agreed on cross-examination that Ms. Sheldon’s condition had worsened from 2013 when he first assessed her to 2016 and 2017 when he assessed her the second and third time.

[304] Mr. Moore said that when Ms. Sheldon was to return to work in 2014, she sent him a photograph of the chair her employer had provided. He said that it was clearly inappropriate for her purposes.

[305] Mr. Moore agreed that Ms. Sheldon’s condition worsened from 2013 when he first assessed her to 2016 and 2017 when he assessed her the second and third time.

[306] Mr. Moore gave opinions on Ms. Sheldon’s functional status, her ability to complete housekeeping and home maintenance tasks, her transportation requirements and the need for assistive devices and occupational therapy.

[307] Mr. Moore concluded that Ms. Sheldon’s ability to perform her pre-accident housekeeping and home maintenance tasks was impaired as a result of the accident. He said that she could perform most tasks in isolation but that she had limited ability to perform multiple tasks because the cumulative effect would exacerbate her symptoms.

[308] In addition to physical restrictions, Mr. Moore said that he saw evidence of what appeared to be some cognitive deficits when he asked Ms. Sheldon to bake some cookies and she had difficulties doing some basic measurements.

[309] Mr. Moore recommended a number of assistive devices for Ms. Sheldon, including a bathtub rail, a higher toilet and an adjustable high-backed office chair.

[310] Mr. Moore also recommended that Ms. Sheldon swim, because it is good exercise, he knew that she had enjoyed it at one time and it causes less strain on the joints than some other exercises.

Dr. Max Kleinman

[311] Dr. Max Kleinman was an expert witness called by the plaintiff.

[312] Dr. Kleinman is a physician who was certified as a specialist in physical medicine and rehabilitation in 1981.

[313] At the trial, Dr. Kleinman was qualified as an expert in the field of physiatry.

[314] Dr. Kleinman said that about half of the independent assessments of patients he conducts are on behalf of plaintiffs and the other half for defendants.

[315] Dr. Kleinman first met with Ms. Sheldon on September 16, 2015.

[316] Dr. Kleinman described Ms. Sheldon as being functionally limited with decreased range of motion. He said that she had points of tenderness and decreased muscle tone. At the time Ms. Sheldon was assessed by Dr. Kleinman, she was seeing a physiotherapist every two weeks. She reported on-going difficulties. She had not yet had any psychological treatment.

[317] Dr. Kleiman said that Ms. Sheldon complained of pain in her neck and upper back, her lower back and her shoulders. She also complained of headaches.

[318] Dr. Kleinman said that Ms. Sheldon reported problems with housekeeping and in particular heavier activities. He said that she told him that she had been unable to participate in leisure and recreational activities she had previously enjoyed. He said that she also reported difficulty sleeping and said she was not getting enough sleep to feel rested.

[319] Dr. Kleinman diagnosed Ms. Sheldon with a chronic pain disorder, a biomechanical disorder of the spine, chronic spine deconditioning, chronic post-traumatic headaches and leg and arm pain.

[320] Dr. Kleinman said that he believed that she had many of the hallmarks of a somatic symptom disorder but readily agreed that the diagnosis of such a disorder is beyond the scope of his expertise as he is not a mental health professional.

[321] Dr. Kleinman’s prognosis for Ms. Sheldon was “poor. He said that it was significant that Ms. Sheldon was still symptomatic four years after the accident. He said that he felt that she was a member of the subset of individuals who do not get better. He said that she was vulnerable to what he described as “flare ups” of pain, which he said were temporary exacerbations of pain that typically settle back down to the pre-existing chronic pain state after four to six weeks.

[322] Dr. Kleinman said that he considered Ms. Sheldon’s condition to be permanent.

[323] In terms of impairments, Dr. Kleinman said that Ms. Sheldon had been left with diminished functional tolerances with respect to daily activities. He did not believe that she could return to work. He said that he considered her to be disabled in respect of heavier housekeeping and home maintenance activities.

[324] Dr. Kleinman said that Ms. Sheldon’s pain would not disappear and that, consequently, the goal of any treatment would be to manage it. He said treatment would help her with pain-coping strategies and managing her pain but would not eliminate it.

[325] Dr. Kleinman said that he recommended a multi-disciplinary program which would include an active conditioning component and cognitive behavioral techniques for pain management.

[326] Dr. Kleinman said that he concluded that, on a balance of probabilities, Ms. Sheldon’s impairments were caused by the accident. He said that he came to this conclusion for several reasons. He said that she suffered pain immediately and that she has a well-documented record of complaining of pain to her family doctor. He said that the type of rear-end collision Ms. Sheldon was involved in has been known to cause injuries that go on to become chronic. He said that there is evidence that Ms. Sheldon was compliant with treatment programs but continued to have on-going problems. He also said that he could not identify any other factors which could explain her symptoms.

[327] Dr. Kleinman said that Ms. Sheldon is in a chronic pain state and that mental health professionals had diagnosed her with a somatic symptom disorder.

[328] He described this condition as a complex bio-psycho-physical-social phenomenon.

Dr. Michael Devlin

[329] Dr. Michael Devlin was an expert witness called by the defendant.

[330] Like Dr. Kleinman, Dr. Devlin is a physical and rehabilitation specialist and was qualified as an expert in the field of physiatry.

[331] Dr. Devlin treats patients with chronic pain. He works primarily with amputees.

[332] Dr. Devlin said most of the medical-legal reports he prepares are on behalf of defendants; he said that less than five per cent of his work in this area has been for plaintiffs.

[333] Dr. Devlin examined Ms. Sheldon in September, 2017.

[334] Dr. Devlin diagnosed Ms. Sheldon with “on-going chronic widespread pain.” He said that different practitioners use different terms to describe chronic pain and that “chronic widespread pain” is his preferred term for pain that has no explanation.

[335] Dr. Devlin said that Ms. Sheldon had initial issues of neck pain, right shoulder pain and back pain that would be characterized as soft tissue injuries.

[336] Dr. Devlin said that soft tissue injuries typically heal within three to five months. He said that Ms. Sheldon’s progress following the September, 2011 accident appeared to be as expected until December, 2011 when, as he put it, it seemed that the wheels fell off.

[337] Dr. Devlin said that Ms. Sheldon’s decline appeared to coincide with her return to work in December 2011.He said that there was no explanation for this.

[338] Dr. Devlin said that there were no specific findings to indicate that Ms. Sheldon had an impairment of any musculoskeletal function.

[339] Dr. Devlin said that, in his opinion, there was no reason to restrict Ms. Sheldon from taking part in any activities because her limitations were due to her subjective reaction to her pain condition.

[340] Dr. Devlin said that he believed that Ms. Sheldon’s current symptoms will continue into the future; he considered her prognosis to be poor.

[341] Dr. Devlin said that he did not disbelieve Ms. Sheldon’s complaints of pain.

[342] Dr. Devlin said that he did not believe that Ms. Sheldon’s condition was caused by the September, 2011 car accident. Dr. Devlin said that the best study of chronic widespread pain was a study of fibromyalgia. He said that in his opinion, particularly given the current definition of fibromyalgia, there is no significant difference between the two diagnoses, chronic widespread pain and fibromyalgia.

[343] Dr. Devlin said that in 2006 there were four studies which concluded that there was no relationship between car accidents and fibromyalgia, in other words, no cause and effect.

[344] Dr. Devlin also said that he does not believe that the car accident is to blame for Ms. Sheldon’s current presentation because she had initial symptoms, she improved and then, for no apparent reason, things went wrong. For those reasons, and the literature which suggests that there is no connection between fibromyalgia and car accidents, he said that he does not believe that Ms. Sheldon’s current condition was caused by the car accident.

[345] In terms of impairments, Dr. Devlin found that Ms. Sheldon had minimal impairments, if any, that could be attributed to the car accident.

[346] Dr. Devlin said that given that Ms. Sheldon’s work at Canada Post was sedentary, that it involved primarily desk work, communications with suppliers and some travel to Toronto, he did not believe that there was any reason why she would not be able to work. He said that he would not restrict her from working.

[347] He also did not believe that she had any impairments in respect of housekeeping and homemaking.

[348] Dr. Devin said that people with pain tend to restrict themselves subjectively.

[349] When asked on cross-examination whether he was prepared to say that even if the accident had not happened, Ms. Sheldon would be in the same condition, Dr. Devlin conceded that there was no reason to assume that she would have evolved the way she did, but added that a certain percentage of people with fibromyalgia cannot attribute it to anything.

[350] Dr. Devlin also agreed on cross-examination that his conclusion with respect to causation was not based so much on Ms. Sheldon’s specific situation as on the fibromyalgia research he referred to and that he could not say definitively that there could not be a causal relationship between Ms. Sheldon’s symptoms and the car accident.

[351] In terms of treatment, Dr. Devlin said that he did not recommend any facility-based programs for Ms. Sheldon because they had not made a difference in the past. He said that after more than six years of physiotherapy and kinesiology, Ms. Sheldon should have had sufficient instruction to be able to exercise on her own.

Dr. Tammi Ricci

[352] Dr. Tammie Ricci is an Ottawa psychologist.

[353] Dr. Ricci was qualified to give an opinion in the area of clinical and rehabilitation psychology.

[354] Dr. Ricci operates a private practice in Ottawa. She estimated that one-third to one-half of her work involved psycho-legal assessments. Dr. Ricci does assessments both for plaintiff’s lawyers and for insurers.

[355] Dr. Ricci said that Ms. Sheldon was initially referred to her to determine whether any psychological issues were present. She first saw Ms. Sheldon is 2015 and saw her again in 2017.

[356] Dr. Ricci diagnosed with Ms. Sheldon with two DSM-5[^5] diagnoses, adjustment disorder with primarily depressed mood and somatic symptom disorder predominantly pain.

[357] Dr. Ricci said that she diagnosed Ms. Sheldon with adjustment disorder because Ms. Sheldon was having a difficult time managing the aftermath of the car accident. Dr. Ricci said that a person may develop depression or anxiety in these situations and, in the case of Ms. Sheldon, Dr. Ricci diagnosed depressed mood. Dr. Ricci said that depressed mood is different from a major depressive order in that, with depressed mood, there can be fluctuations. Dr. Ricci said that adjustment disorder affects all areas of functioning. She said that to diagnose it you need to see some impairment in functioning, particularly in social, occupational and leisure activities.

[358] Dr. Ricci said that the DSM-5 defines somatic symptom disorder as a disorder of focus, a focus on pain. Dr. Ricci said that a person with somatic symptom disorder with the qualifier of pain has excessive thoughts, feelings and behaviours related to somatic symptoms and concerns. Dr. Ricci said that such a person is focused on pain on a daily basis, hour by hour, minute by minute.

[359] Dr. Ricci said that the lives of these patients revolve around managing their pain, whether it is attending physiotherapy appointments, engaging in excessive exercise to try to manage their pain or incessantly talking about pain. She said that they see themselves as being very disabled by their pain, they are preoccupied with it and they devote excessive time and energy to their symptoms.

[360] Dr. Ricci said that the behaviour of patients with somatic symptom disorder is not intentional. She said that it is similar to anorexia, except that instead of being focused on food intake and weight, they are focused on pain and trying to manage it. She said that it is unconscious.

[361] Dr. Ricci said that stress affects these patients; they have a hard time dealing with or processing stress. She said that any kind of stress is often felt physically or somatically.

[362] Dr. Ricci also said that some patients with somatic symptom disorder do not always follow all of the recommendations they receive because they find that, no matter what they do, they don’t seem to get better. She said that there is also often some giving up with these patients because they want a resolution of their symptoms and maintaining their level of function is not enough for them.

[363] Dr. Ricci said that patients who develop somatic symptom disorder typically have had something happen to them physically. They then develop the disorder over time. She said that this means that even though the physical injury may have recovered, the pain symptoms linger on and then migrate to other parts of the body.

[364] Dr. Ricci said that patients with somatic symptom disorder tend to magnify their symptoms; she said that doing this is part of the condition.

[365] Dr. Ricci said that, in her opinion, both conditions evolved from the September 17, 2011 car accident. Dr. Ricci said that the adjustment disorder set in once Ms. Sheldon began to appreciate the permanence of her situation. With respect to the somatic symptom disorder, Dr. Ricci said that she suspected that Ms. Sheldon had suffered a physical injury in the accident and over time, developed diffuse pain symptoms and a focus on somatic concerns.

[366] Dr. Ricci said that she had no reason to believe that Ms. Sheldon was making up her pain complaints.

[367] Dr. Ricci said that Ms. Sheldon’s prognosis was guarded to fair. She noted that it had been quite a bit of time since the accident by the time Dr. Ricci saw her.

[368] Dr. Ricci noted that Ms. Sheldon had undergone a variety of treatments and that, although she would talk about benefiting from them, there had not been a lot of benefit.

[369] Dr. Ricci said that because Ms. Sheldon could not manage day-to-day tasks or yoga without becoming exhausted and requiring down time, she did not believe that Ms. Sheldon could sustain competitive employment.

[370] On cross-examination, Dr. Ricci was asked whether Ms. Sheldon could have had somatic symptom disorder immediately following the accident. Dr. Ricci said that usually, a few months need to pass before the condition evolves. Dr. Ricci said that Ms. Sheldon had not been diagnosed with somatic symptom disorder in December, 2011, when she made her first attempt to return to work. Dr. Ricci said that Ms. Sheldon could have been diagnosed with the disorder at that time. She said that she did not know what Ms. Sheldon’s symptoms had been at that time. She said that she suspected that there was some symptom overlay at the time.

[371] Asked on cross-examination whether it was not true that Ms. Sheldon had to be dragged back to work “kicking and screaming”, Dr. Ricci said that she believed that Ms. Sheldon had tried very hard to get back to work, that working was part of her identity and that she grieved the loss of work.

[372] Dr. Ricci said that she considered Ms. Sheldon’s prognosis to be guarded to poor.

[373] With respect to future treatment, Dr. Ricci said that the goal was to maintain Ms. Sheldon’s current level of functioning. Dr. Ricci said that she recommended continued pain management, yoga and any physical modalities that were not contraindicated.

[374] Although, as I will explain later in these reasons, there was evidence that on one occasion Dr. Ricci, acting in conjunction with Ms. St. Louis, crossed the line into acting as an advocate for Ms. Sheldon rather than restricting her role to that of a disinterested expert witness, I considered Dr. Ricci to be a fair witness who did not over-reach.

[375] Although, in his opening statement, the defendant’s lawyer referred to the opinion of a psychologist retained by the defendant, the defendant’s psychologist was not called as a witness and there was no evidence to counter Dr. Ricci’s opinion.

Lea St. Louis

[376] Lea St. Louis is a social worker. Ms. St. Louis worked for the Ottawa Hospital for 13 years before joining Dr. Ricci’s practice, Ricci & Associates, in 2015.

[377] Ms. St. Louis began to treat Ms. Sheldon in December of 2015.

[378] Ms. St. Louis said that she understood that Ms. Sheldon was suffering from adjustment disorder with depressed mood and somatic symptom disorder, predominantly pain.

[379] Ms. St. Louis said that she continued to treat Ms. Sheldon, initially every two weeks and then every three or four weeks.

[380] Shortly after Ms. St. Louis began to treat Ms. Sheldon, Ms. Sheldon asked Ms. St. Louis to write a letter to Dr. Nagpal to persuade him not to proceed with certain treatment recommendations. I will discuss this in greater detail later in these reasons.

[381] Ms. St. Louis described Ms. Sheldon as “pain focused”. She said that someone who is pain-focused spends a lot of time thinking and talking about their pain. She said that it is a pre-occupation with their pain. She said that you would expect someone who has been diagnosed with somatic symptom disorder to be pain-focused.

[382] Ms. St. Louis said that in the spring of 2016, Ms. Sheldon was focusing a great deal on what she had lost as a result of the car accident. Ms. St. Louis said that she tried to encourage Ms. Sheldon to focus on a “new normal.”

[383] She said that they talked about a vocational assessment to figure out what Ms. Sheldon might be able to do in terms of occupation, not necessarily paid work but what she might be able to resume or consider doing with her time.

[384] They also talked about her participating in a pain program known as Refresh.

[385] Ms. St. Louis said that many of her clients who have somatic symptom disorder have a low tolerance for stress and that Ms. Sheldon was no different. She said that Ms. Sheldon had difficulty coping with additional stressors and would become anxious and highly distressed.

[386] Ms. St. Louis said that Ms. Sheldon was concerned about being prescribed medication for hypertension and depression; she was convinced that these medications would cause side effects.

[387] On cross-examination, Ms. St. Louis agreed that Ms. Sheldon had refused to follow Ms. St. Louis’s advice, for example, when Ms. St. Louis had recommended that Ms. Sheldon try anti-depressants, Ms. Sheldon refused to do so.

[388] Ms. St. Louis said that it is very common for individuals with somatic symptom disorder to be concerned about medication because they are hyper-vigilant to physical sensations. Any symptom they have will appear huge to them; she said that this is just another symptom of somatic symptom disorder.

[389] Ms. St. Louis said that Ms. Sheldon told her that she had had two set-backs every year since the accident and also a fall in November of 2016, which she considered to be a significant set-back.

[390] Ms. St. Louis said that people who have been diagnosed with somatic symptom disorder see themselves as being quite fragile and prone to pain and even a minor slip or fall will feed into that perception and trigger a stress response in them.

[391] Ms. St. Louis had recommended that Ms. Sheldon consider returning to swimming. Ms. St. Louis said that Ms. Sheldon had trouble accepting that recommendation. She said that she would not be able to swim as well as she had in the past and that if she could not derive the same pleasure from the activity, if there was grief associated with it, she did not consider it to be worthwhile.

[392] Ms. St. Louis said that she continued to treat Ms. Sheldon in 2017. She said that Ms. Sheldon fully participated in her treatment and that, in fact, she was one of her few patients who did her homework, which including filling out questionnaires and recording feelings. In early 2017, Ms. St. Louis recommended that Ms. Sheldon stopping reading self-help books. Ms. St. Louis said that, instead of reading for pleasure, Ms. Sheldon would read about the conditions she was suffering from.

[393] Ms. St. Louis said that Ms. Sheldon told her that an occupational therapist she had met with, Dr. Claudia von Zweck had been pushing her to return to work and to start driving again.

[394] Asked on cross-examination whether she believed that Ms. Sheldon had any cognitive deficits, Ms. St. Louis said that she had noticed that Ms. Sheldon’s attention wandered from time to time but that she did not consider it to be a significant issue.

[395] Ms. St. Louis said that she discussed Ms. Sheldon’s lack of progress with Dr. Ricci. She said that Dr. Ricci had told her not to expect a great deal of progress with patients who had somatic symptom disorder, particularly if it has gone untreated for many years because the behaviours and the negativity can almost become entrenched.

[396] Ms. St. Louis said that she nonetheless believed that there was a value to continuing treatment. She said that Ms. Sheldon believed so as well. Ms. St. Louis said that Ms. Sheldon felt that coming to sessions was a way of managing stress. She said that they discuss coping strategies and making sure that Ms. Sheldon uses them.

[397] Ms. St. Louis said that she did not believe that Ms. Sheldon was using the car accident as an excuse to adopt a disabled role or that on-going counselling was enabling Ms. Sheldon to maintain a disabled role. Ms. St. Louis said she believed that on-going counselling was helping to prevent Ms. Sheldon from deteriorating psychologically.

[398] Ms. St. Louis said that she would recommend 10 to 12 sessions over the next year to continue to monitor Ms. Sheldon and to provide her with support. Ms. St. Louis also thought that a case manager would be of assistance to Ms. Sheldon because Ms. Sheldon “gets lost in details” and, while she can plan or make lists, she has trouble actually getting things done.

Ms. Sheldon did sustain a permanent, serious impairment of an important physical, mental or psychological function

[399] For the reasons below, I find that Ms. Sheldon sustained a permanent, serious impairment of an important physical, mental or psychological function.

[400] In coming to this conclusion, I have considered all of the evidence summarized above with particular emphasis on the evidence of Ms. Sheldon, her children and her friends, all of whom contrasted the busy life Ms. Sheldon had before the accident with the much smaller and more isolated life she now has. Ms. Sheldon no longer works, she does not take care of her house and family the way she did before the accident, her family-related and volunteer activities are severely restricted and her leisure activities are virtually non-existent. Much of her life revolves around medical and therapeutic appointments and home exercises. She suffers from depressed moods.

[401] I have also considered the opinions of the expert witnesses, Dr. Kleinman, Dr. Devlin and Dr. Ricci, all of whom considered whether Ms. Sheldon suffered impairments and if so, of what anticipated duration.

[402] As noted above, Dr. Kleinman diagnosed Ms. Sheldon with a chronic pain disorder, a biomechanical disorder of the spine, chronic spine deconditioning, chronic post-traumatic headaches and leg and arm pain. Dr. Kleinman said that, as a result of these conditions, Ms. Sheldon had diminished functional tolerance for daily activities. He said that he considered her to be disabled in respect of housekeeping and home maintenance activities. He said that he does not believe that she will be able to return to work in the future.

[403] Dr. Kleinman said that he considered Ms. Sheldon’s condition to be permanent.

[404] Dr. Devlin, diagnosed Ms. Sheldon with “widespread chronic pain.” Dr. Devlin said that he did not believe that there was any reason why Ms. Sheldon could not resume her previous housekeeping or home maintenance activities or return to work. He said that, like many people who suffer from chronic pain, Ms. Sheldon limited her level of activity when there was no objective reason to do so. However, Dr. Devlin acknowledged that Ms. Sheldon suffers from chronic pain, said that he believed her complaints of pain and also that he considered her prognosis to be poor.

[405] Dr. Ricci diagnosed Ms. Sheldon with adjustment disorder with depressed mood. Dr. Ricci said that this condition affects all areas of functioning and that, before it can be diagnosed, there must be some impairment in functioning, particularly in social, occupational and leisure activities. Dr. Ricci also diagnosed Ms. Sheldon with somatic symptom disorder, predominantly pain. Dr. Ricci said that patients who have this disorder consider themselves to be very disabled by their pain and that they devote excessive time and energy to their symptoms. Dr. Ricci compared the disorder to anorexia and said that the behaviour of these patients is not intentional

[406] Dr. Ricci also said that, because Ms. Sheldon could not manage day-to-day tasks or even yoga without becoming exhausted and requiring down time, she did not believe that Ms. Sheldon would be capable of sustaining competitive employment.

[407] Dr. Ricci said that she considered Ms. Sheldon’s prognosis to be guarded to poor.

[408] Although there was evidence that raised a doubt about how much Ms. Sheldon actually wanted to return to work, to which I will refer in detail below when I review Ms. Sheldon’s claim for loss of income, I find that both Ms. Sheldon’s ability to work and her ability to manage her housekeeping and home maintenance tasks were impaired.

[409] Dr. Devlin emphasized that there is no objective reason why Ms. Sheldon cannot work and take care of her home. That is, of course, one of the challenges of chronic pain cases; the patient’s limitations cannot be verified through radiology or blood tests. In this case, the evidence of Dr. Ricci shed some light on Ms. Sheldon’s perceived limitations. Dr. Ricci said that, because of her somatic symptom disorder, Ms. Sheldon considers herself to be very disabled by her pain, is preoccupied by it and devotes a great deal of time and energy to it. Dr. Ricci said that this behaviour is not intentional.

[410] Ms. Sheldon’s family doctor, Dr. Nagpal, also said that he believed that Ms. Sheldon’s pain, her inability to concentrate because of her pain and her physical stamina were preventing her from working. Dr. Nagpal said that he does not believe that Ms. Sheldon will ever be able to work again.

[411] It is the “effect of the injury” on the person and not the “type of injury” that should be the focus of the so-called “threshold” analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold analysis.[^6]

[412] The word “permanent” does not mean forever but does refer to an impairment that will last into the indefinite future as opposed to an impairment with a predicted recovery period and an end date.[^7]

[413] I find that Ms. Sheldon’s impairments are permanent. I accept Dr. Kleinman’s evidence that Ms. Sheldon’s impairments are “permanent”. Although Dr. Devlin does not agree that Ms. Sheldon’s chronic pain prevents her from working or doing housekeeping and home maintenance, Dr. Devlin’s also considers Ms. Sheldon’s prognosis to be poor. Dr. Ricci considers her prognosis to be guarded to poor. Dr. Nagpal does not believe that Ms. Sheldon will work again.

[414] The determination of whether the impairment of an important bodily function is “serious” relates to the seriousness of the impairment to the person and not to the injury itself.[^8]

[415] I find that Ms. Sheldon’s impairments are “serious”; they have sidelined Ms. Sheldon from her work both outside and inside the home, from volunteer, family and leisure activities.

[416] The effects of Ms. Sheldon’s chronic pain have impaired both her ability to work and to care for her home; these are among the functions that as classified as “important” in section 4.2(1)2 of Ont. Reg. 461/96.

[417] In order for an impairment affecting a person’s ability to do their job to be “serious” under s. 4.2(1)1 of O. Reg. 461/96 and “important” under s. 4.2(1)(2), reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment must be taken into account.

[418] Based on the evidence of Ms. Sheldon, Dr. Nagpal and the physiotherapist, Ms. Morielaz, I find that reasonable efforts were made by Ms. Sheldon’s employer to accommodate Ms. Sheldon in the workplace. Although there appears to have been a dispute in 2014 over what accommodations were required, and Ms. Sheldon did not return to work in 2014, Ms. Sheldon was satisfied with the accommodation efforts that were made when she returned to work in 2015. There was no evidence that, in 2015, Ms. Sheldon did not make reasonable efforts to make use of available accommodations.

Ms. Sheldon’s impairment did arise directly or indirectly from the use or operation of an automobile

[419] In the section of these reasons, above, dealing with Issue #1: Causation, I found that the September 17, 2011 accident caused harm to Ms. Sheldon. The basis for that conclusion was the same as for my finding that Ms. Sheldon’s impairments arose directly or indirectly from the September 17, 2011 accident and, therefore, from the use or operation of an automobile. My reasons are set out below.

[420] Dr. Kleinman said he believed that Ms. Sheldon’s impairments were caused by the September 17, 2011 car accident. As noted above, he said that she suffered pain immediately and that she has a well-documented record of complaining of pain to her family doctor. Dr. Kleinman said that the type of rear-end collision Ms. Sheldon was involved in has been known to cause injuries that go on to become chronic. He said that there is evidence that Ms. Sheldon was compliant with treatment programs but continued to have on-going problems. He also said that he could not identify any other factors which could explain her symptoms.

[421] Although Dr. Devlin said that Ms. Sheldon’s condition was not caused by the car accident, his opinion was based on some studies about the relationship between car accidents and fibromyalgia and not on Ms. Sheldon’s particular situation. Further, as noted above, Dr. Devlin agreed on cross-examination that there was no reason to assume that, had the accident not happened, Ms. Sheldon’s condition would have evolved in the way it did.

[422] I prefer Dr. Kleinman’s opinion with respect to the link between the accident and Ms. Sheldon’s impairments to that of Dr. Devlin. Dr. Kleinman, unlike Dr. Devlin, gave specific reasons for his finding. Unlike Dr. Devlin’s opinion, which was based on research papers, Dr. Kleinman’s opinion was based on Ms. Sheldon, the accident she was involved in, her symptoms and her treatment.

[423] I also find, based on the evidence of Dr. Ricci, that Ms. Sheldon’s two DSM-5 diagnoses arose directly or indirectly from the September 17, 2011 accident.

[424] I find that Ms. Sheldon has suffered a permanent, serious impairment of an important physical, psychological or mental function and that the impairment arose directly or indirectly from the use or operation of an automobile.

[425] As a consequence of this finding, Ms. Sheldon is entitled to an award of non-pecuniary general damages.

Assessment of Ms. Sheldon’s non-pecuniary general damages:

[426] Before considering Ms. Sheldon’s award for non-pecuniary general damages, I will address the evidence at trial that Ms. Sheldon did not always follow treatment recommendations, including some troubling evidence that one of Ms. Sheldon’s treatment decisions appears to have been based, at least in part, on its potential impact on her claim against her accident benefits insurer and on this litigation.

Did Ms. Sheldon act reasonably in following recommended medical treatment?

[427] Although Dr. Ricci testified that patients such as Ms. Sheldon who suffer from somatic symptom disorder are pre-occupied with their pain and that their lives revolve around managing their pain, including engaging in excessive exercise, Ms. Sheldon did not always follow the recommendations she was given to manage her pain or to “get her life back” which she insisted was her goal.

[428] Ms. Sheldon was reluctant to try some of the medications her treatment providers recommended. For example, Ms. St. Louis recommended anti-depressants but Ms. Sheldon resisted this recommendation. This was, however, explained in the evidence; Dr. Ricci said that refusing medication is not uncommon among patients diagnosed with somatic symptom disorder.

[429] A striking example of Ms. Sheldon’s refusal to follow treatment recommendations related to swimming. Before the accident, Ms. Sheldon had belonged to a Masters swimming club. She testified that she had swum at least once per week. Post-accident, most of Ms. Sheldon’s many treatment-providers recommended that she return to the pool. As Mr. Moore explained, swimming was good exercise, Ms. Sheldon had enjoyed it and it was not weight-bearing and therefore easy on the joints. Mr. Moore, Dr. Nagpal, Dr. Ricci, Ms. St. Louis, the physiotherapist Ms. Collins, Ms. Sheldon’s kinesiologist Helen Bolt and the occupational therapist Dr. von Zweck all recommended that Ms. Sheldon swim. Ms. Sheldon would not do so. Ms. Bolt testified that they went to a pool once but Ms. Sheldon found it exhausting. Ms. Sheldon explained to Ms. St. Louis that she had gone to a pool once but a child had jumped on her. Ms. Sheldon also told Ms. St. Louis that because she would not be able to swim the way she had before the accident, she did not want to try.

[430] Although Ms. Sheldon said that she wanted her life back, she was not willing even to try to take back one aspect of her life that she said she had enjoyed, despite the recommendation of seven professionals.

[431] More concerning, however, was Ms. Sheldon’s reaction to a recommendation from Dr. Nagpal in December, 2015 that she discontinue all of her medications and treatments.

[432] The recommendation had originated with a physiatrist, Dr. Radhakrishna, to whom Ms. Sheldon had been referred for an independent assessment by her disability insurer.

[433] Dr. Radhakrishna did not testify at the trial and his report was not in evidence.

[434] On December 14, 2015, Ms. Sheldon told her social worker, Ms. St. Louis, about this recommendation to stop physiotherapy, her exercise program with her kinesiologist, her epidural injections and all medications. Ms. Sheldon told Ms. St. Louis that her disability insurer’s case manager was insisting that all of these treatments be stopped effective December 29th [2015] and was asking that Dr. Nagpal to confirm that this had occurred.

[435] In her notes, St. Louis wrote:

She has an appointment with her family physician tomorrow. Writer encouraged her to also share the document with her lawyer as these recommendations will also impact her MVA file. She has a mediation scheduled for her MVA at the end of January and she also has an arbitration meeting in January for the OT pain management program that she had been denied by her insurance adjuster.

[436] On December 17, 2015, Dr. Nagpal reviewed Dr. Radhakrishna’s recommendations with Ms. Sheldon. Ms. Sheldon did not agree with them. Ms. Sheldon told Dr. Nagpal that she felt that she had been misdiagnosed. Ms. Sheldon told Dr. Nagpal that she was very concerned about the recommendation that she discontinue treatment and medication. She said that she could not follow the recommendations at that time; she provided him with several reasons.

[437] According to Dr. Nagpal’s notes, he and Ms. Sheldon had a “long discussion” about “the approach to chronic pain and changing the mindset of hurt versus harm.”

[438] Ms. Sheldon told Dr. Nagpal that she had “a large mediation hearing in January and does not want to consider any treatment changes until after this.”

[439] Ms. Sheldon also told Dr. Nagpal that she had had an assessment done through her lawyer with a different independent medical examiner and the recommendations were different.

[440] Dr. Nagpal’s notes read: “Patient is to contact her lawyer regarding disagreements she has with the independent medical exam. We came to an agreement to consider reducing her medication in February.”

[441] Dr. Nagpal and Ms. Sheldon had agreed to revisit the issue of reducing her medication following Ms. Sheldon’s January mediation.

[442] Dr. Nagpal’s notes then refer to a telephone conversation he had with Ms. Sheldon and her husband on December 22, 2015. Dr. Nagpal’s notes indicate that he explained that he had not committed to taking away treatments on any particular date and explained that when treatment is removed there is a slight increase in perception of pain but after one month, the pain perception returns to the baseline. Dr. Nagpal’s notes read, “[p]atient not seem convinced.”

[443] As Mr. Hatcher did not testify at the trial, the available evidence did not include his recollection of this conversation or his views on Dr. Nagpal’s recommendations, if any.

[444] On January 11, 2016, Ms. Sheldon met again with Ms. St. Louis. Ms. Sheldon told Ms. St. Louis that Dr. Nagpal would be following the recommendations to discontinue Ms. Sheldon’s treatment and medication effective February 1, 2016. Ms. Sheldon also told Ms. St. Louis that Dr. Nagpal had referred her to a pain management program at the Ottawa Hospital.

[445] Ms. St. Louis testified that Ms. Sheldon asked her to write a letter to Dr. Nagpal.

[446] Ms. St. Louis said that Ms. Sheldon was quite distressed by the physiatrist’s recommendations and felt that they would reduce her support system. Ms. St. Louis said that she agreed. Ms. St. Louis said that she felt that Ms. Sheldon’s treatment-providers were giving her support and that her treatment was helping her by getting her out of the house.

[447] On January 21, 2016, Ms. St. Louis and Dr. Ricci wrote a joint letter to Dr. Nagpal expressing concerns about his proposal to stop Ms. Sheldon’s treatments. They said that Ms. Sheldon had reported that the rehabilitative treatments she had been receiving had been helpful and that she felt that she was making progress. Ms. St. Louis and Dr. Ricci said that they felt that the treatments were also providing a psychological benefit.

[448] The letter to Dr. Nagpal was copied to Ms. Sheldon’s lawyer.

[449] Dr. Nagpal did not ultimately pursue the termination of Ms. Sheldon’s treatments and medications.

[450] On February 2, 2016, Ms. Sheldon saw Ms. St. Louis. Ms. Sheldon thanked Ms. St. Louis for her support and advocacy through her “crisis” related to possible changes in her treatment plan. Ms. Sheldon said that she felt that the advocacy was effective in putting a stop to the proposed changes. Ms. Sheldon also reported that her case against her insurer (presumably, her accident benefits claim) had been settled.

[451] The occupational therapist Dr. von Zweck, who prepared the life care plan on which Ms. Sheldon’s claim for future care costs is based, testified that she was aware that Ms. St. Louis and Dr. Ricci had intervened to stop Dr. Nagpal from implementing Dr. Radhakrishna’s recommendations. Dr. von Zweck said that she agreed that taking away Ms. Sheldon’s treatments and medications would have been devastating for her.

[452] I accept Dr. Ricci’s evidence that refusing to agree to take all recommended medications is typical of patients with somatic symptom disorder. I do not fault Ms. Sheldon for that.

[453] However, Ms. Sheldon’s resistance to discontinuing treatment and medication cannot be attributed exclusively to her somatic symptom disorder. There was evidence that she was concerned about how these recommendations would affect the outcome of litigation most notably when, on December 17, 2015, after refusing to follow the recommendation of her long-time family doctor, Ms. Sheldon said that she would be contacting her lawyer but also agreed to discuss termination of medications the month after her upcoming mediation. Her concern about the mediation cannot be attributed only to a desire not to be compromised the day of the mediation; Ms. St. Louis had told Ms. Sheldon on December 14, 2017 that Dr. Radhakrishna’s recommendations would affect her MVA file.

[454] This is not a case in which it would be appropriate to reduce Ms. Sheldon’s damages by a certain percentage because of her failure to follow a treatment recommendation that had an identified likelihood of benefiting her. (Janiak v. Ippolito 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.) As noted above, Dr. Radhakrishna did not testify and his report was not in evidence. There was, of course, no evidence about how cutting off Ms. Sheldon’s treatments and medications would have affected her, because Ms. Sheldon did not to follow the recommendation. Further, Dr. Kleinman was not recommending that Ms. Sheldon’s treatments and medications be terminated; he had recommended a multi-disciplinary program for Ms. Sheldon. It was not as though there was unanimity in respect to Dr. Radhakrishna’s recommendation.

[455] That said, more than four years after her accident, Ms. Sheldon had been presented with a treatment option which had never been presented to her before. Her condition had not improved since the accident. She insisted that she wanted her life back. Still, Ms. Sheldon refused to consider the treatment option when her long-time doctor presented it to her, citing an upcoming mediation as one of her reasons. She agreed that she would reconsider the option following the mediation. She said that she would be consulting her lawyer. She later asked her social worker to write a letter to her doctor to dissuade him from proceeding with his recommendation.

[456] While I have not reduced Ms. Sheldon’s damages by any specific amount because of this evidence, I cannot ignore it and it has informed my assessment of her evidence overall.

CONCLUSION WITH RESPECT TO NON-PECUNIARY GENERAL DAMAGES

[457] Ms. Sheldon’s accident-related diagnoses include chronic pain disorder, adjustment disorder with primarily depressed mood and somatic symptom disorder, predominantly pain.

[458] Ms. Sheldon has a variety of pain symptoms throughout her body.

[459] She has difficulty sleeping.

[460] She has been taken several medications for several years.

[461] A great deal of her time is spent attending medical and physiotherapy appointments. She testified that she exercises for three to four hours per day.

[462] Ms. Sheldon no longer works, her ability to take care of her home is impaired, her family activities have been curtailed, her volunteer work has been limited and she no longer participates in the leisure activities she previously enjoyed.

[463] There was evidence that virtually all aspects of Ms. Sheldon’s life were affected by the September 17, 2011 car accident.

[464] I assess Ms. Sheldon’s non-pecuniary general damages at $100,000.00.

What are Ms. Sheldon’s damages for loss of income, if any?

The parties’ positions

[465] Ms. Sheldon is asking for damages for past loss of income in the amount of $15,425.00, representing loss of income to her retirement date of July 7, 2017 plus interest to the date of trial, and for future loss of income in the amount of $521,354.00.[^9]

[466] The calculation of the loss of income damages Ms. Sheldon is asking for was based on two assumptions: (1) That if the September 17, 2011 accident had not happened, in October of 2012, Ms. Sheldon would have increased her work week to five days per week from the four days per week she had been working for many years; and (2) That if the accident had not happened, Ms. Sheldon would have continued to work at Canada Post until she completed 35 years of service, which would have been at age 62.64 in 2022.

[467] As was noted above, what actually happened was that Ms. Sheldon retired on July 7, 2017, at age 57 after 30 years of service.

[468] Ms. Sheldon argues that she need only prove that there was a reasonable chance that, had the accident not happened, she would have worked five days per week beginning in October of 2012 and would have continued to age 62.64 (Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.))

[469] The defendant’s position is that Ms. Sheldon is not entitled to any damages for past or future loss of income. The defendant argues that in December, 2011, Ms. Sheldon decided that she did not want to work anymore.

Ms. Sheldon’s employment

[470] At the time of the accident in September, 2011, Ms. Sheldon had been working as an engineer for Canada Post for 24 years. She was responsible for technical support for postage meters; when she started in the role, Canada Post was about to start upgrading meters to digital from analogue.

[471] Ms. Sheldon said that she designed the testing program for the meters. She said that every customer in Canada was required to upgrade its meter over a two-year period. She described it as a hugely busy and exciting time.

[472] In 2011, Ms. Sheldon was a senior engineer at the top level of the pay scale for that position; her annual salary was $100,595.00.

[473] Ms. Sheldon was a unionized employee. She said that she had what she described as generous job security.

[474] Ms. Sheldon said that when her son was three or four years old, she began to work four days per week instead of five. She was paid 80 per cent of her full-time salary but paid for and received benefits as though she had continued to work five days per week.

[475] Ms. Sheldon said that working four days per week had been handy when her children were younger but that she later found that she was doing five days’ worth of work in four days while only being paid for four days. She said that she was planning to return to a five day per week schedule in October of 2012.

[476] Ms. Sheldon also said that she had planned to work until she earned a full pension. She said that she earned two per cent of her pension each year and that the maximum pension she could have received was 70 per cent of her average salary for the five years preceding her retirement. She said that she would have earned her maximum pension after 35 years of service.

[477] In March, 2015, Ms. Sheldon learned that her position at Canada Post was being eliminated.

[478] Ms. Sheldon retired on July 7, 2017 at age 57 with 30 years of service.

ANALYSIS

[479] I accept the evidence of Dr. Kleinman, Dr. Ricci and Dr. Nagpal that Ms. Sheldon’s accident-related impairments are such that she became unable to work and that it is unlikely that she will be able to return to work in the future. I accept this evidence of Ms. Sheldon’s compromised ability to function in the workplace for two reasons: (1) Because these witnesses and also the defendant’s physiatrist Dr. Devlin all said that they believed Ms. Sheldon’s complaints of pain and have given her, at best, a guarded prognosis; and (2) because, even if, as the defendant suggested, I were to accept that Ms. Sheldon simply decided in December, 2011 that she did not want to work again, I could not accept that she also would have decided to give up the family, social and leisure activities she has not participated in since the accident. There was much evidence that Ms. Sheldon’s injuries prevented her from taking part in activities she enjoyed before the accident; it is not a great stretch to accept that her injuries also prevented her from working.

[480] However, there was also evidence about Ms. Sheldon’s post-accident relationship with work that was concerning and difficult to reconcile with the evidence that it was only her injuries that prevented her from working. There was evidence from several sources, including Ms. Sheldon herself, that Ms. Sheldon had avoided returning to work after the accident. This evidence supported the defendant’s argument that Ms. Sheldon was not at all motivated to return to work after the accident and had to be forced to return, this despite Ms. Sheldon’s insistence that she had always enjoyed her job and that she very much wanted to return to work after the accident,

[481] I recognize that, for Ms. Sheldon, working before the accident and working after the accident were undoubtedly very different experiences. Even so, the evidence of Ms. Sheldon’s obvious reluctance to return to work following the accident coloured my impression of how much Ms. Sheldon actually enjoyed her job before the accident and my assessment of the two assumptions underlying her loss of income claim.

[482] The evidence included the following:

Ms. Sheldon felt that she was being forced back to work

[483] On October 26, 2011, just over five weeks after the accident, Ms. Sheldon told Ms. Morielaz that she had spent most of the day on the phone with her insurance company and case worker discussing her return to work and felt that she was being “harassed” and “forced” to return to work before she was ready.

Dr. Nagpal’s chart

[484] Although Dr. Nagpal’s clinical notes had been produced and were already in evidence, during the cross-examination of Dr. Nagpal, the defendant’s lawyer asked to review Dr. Nagpal’s complete chart relating to Ms. Sheldon.

[485] Dr. Nagpal was reluctant to release the complete chart without Ms. Sheldon’s consent. He expressed a concern about how the College of Physicians and Surgeons might respond.

[486] Ms. Sheldon was not in court that day. Ms. Sheldon’s lawyer said that she had no objection to production of the chart and I ordered Dr. Nagpal to produce it.

[487] Dr. Nagpal’s chart included eight documents that had not been produced before the trial.

[488] The lawyers for both parties were taken by surprise by these documents; there was no suggestion that Ms. Sheldon’s lawyers had seen these documents before the trial. Although Ms. Sheldon had testified at the trial before Dr. Nagpal, I granted leave for Ms. Sheldon to be recalled to testify about the documents.

[489] All but one of the eight documents had been prepared by Ms. Sheldon or included her hand-writing. Some of the documents described in detail symptoms and limitations Ms. Sheldon attributed to the car accident. Others related to communications with Ms. Sheldon’s accident benefits insurer or her Canada Post long term disability insurer, Great-West Life and its case managers, Morneau Sheppell. Some of the documents were forms that were to be completed by Dr. Nagpal.

[490] One of the documents was a letter dated October 24, 2011 to Ms. Sheldon from Great-West Life/Morneau Sheppell enclosing a form that was to be completed by her physician. Ms. Sheldon had completed most of the form herself. She had circled numerous items on a long list of tasks to indicate that her ability to carry them out was compromised. These tasks included standing, sitting, lifting, reaching, maintaining attention and concentration and performing activities within a schedule. She had also written a note indicating that the list of tasks on the form did not include working at a computer or a telephone.

[491] A different copy of the same form was completed and submitted to Great-West Life/Morneau Sheppell by Dr. Nagpal on November 15, 2011. Although Dr. Nagpal did not indicate on his copy of the form that Ms. Sheldon had difficulty standing, his form was otherwise very similar to the version Ms. Sheldon had completed. The form submitted by Dr. Nagpal also included a notation, in what he said appeared to be Ms. Sheldon’s hand-writing, indicating that Ms. Sheldon’s medical condition limited her ability to work at a computer and on the telephone, the same limitations Ms. Sheldon had mentioned in her note on the October 24, 2011 letter from Great-West Life/Morneau Sheppell she had left for Dr. Nagpal.

[492] Another of the eight documents was a letter to Dr. Nagpal from Great-West Life/Morneau Sheppell dated October 26, 2011. It included a questionnaire about Ms. Sheldon’s condition. Ms. Sheldon had completed most of the questionnaire and had indicated that she had limited ability to sit and use a computer, that she had a nerve pain issue in relation to standing and walking and that her physical abilities were restricted because of a limited range of motion as well as strength and pain.

[493] Asked on cross-examination why she had completed the questionnaire when the letter had been addressed to Dr. Nagpal, she said that Dr. Nagpal would not have known the answers to a number of the questions. Asked why, on this form, she had listed “all of the reasons she could not go back to work”, she said that she thought it was natural that she was looking at the challenges she was going to have to face and how to manage them.

[494] Another of the eight documents included notes written by Ms. Sheldon. The first note referred to an approved return to work program and said “because they chose not to support your request for an ergonomic assessment, does this mean that it really was approved?” The second note said: “I suggest that in your next letter that you not only cover the assessment [referring to an ergonomic assessment] but also include that any issues identified will be resolved.” On cross-examination, Ms. Sheldon insisted that, even though the notes were in Dr. Nagpal’s chart, they were notes she had written to herself. She denied that the note in which she had referred to “your next letter” was a note instructing Dr. Nagpal how to write a report. When the defendant’s lawyer suggested to Ms. Sheldon that this evidence was not honest, she replied, “I suggest to you that you cannot know that.” I do not accept Ms. Sheldon’s evidence on this point and I find that Ms. Sheldon was in fact telling Dr. Nagpal in her notes that she wanted him to write in a report that she could not return to work until an ergonomic assessment had been completed and all of the recommendations in the assessment had been followed. My conclusion is based in part on a March 29, 2014 letter Dr. Nagpal wrote to Ms. Sheldon’s case manager in which he said: “I feel before Ms. Sheldon can return to work all her workstation [sic] should have a full ergonomic assessment and all recommendations be fully implemented.” The contents of Dr. Nagpal’s letter are strikingly similar to the contents of the note in his file that Ms. Sheldon had said she had written to herself.

[495] Another of the eight documents was titled “Suggested format for reporting medical updates to GWMS Case Manager”. Ms. Sheldon said that she believed that she had prepared it in January, 2012. It was a two-page document that included lists of activities and Ms. Sheldon’s ability to perform them. It stated, for example, that her ability to sit, stand, work at a computer workstation and work at a desk were all “severely limited.” It stated that concentration, analytical reasoning and comprehension were “moderately limited.” Beside driving and taking public transit, “unable/extreme difficulty” was noted.

[496] Despite the document’s title, Ms. Sheldon denied that it had been prepared to suggest to Dr. Nagpal how he should complete his medical reports to the Great-West Life/Morneau Sheppell case manager. Ms. Sheldon said that she had prepared the document for herself and that it outlined the information that she would require for an appeal of a decision of her disability insurer, which had refused to accept that she was unable to work.

[497] Ms. Sheldon said that she had not intended to give the document to Dr. Nagpal and that she believes that she must have left it at Dr. Nagpal’s office by mistake.

[498] I do not accept Ms. Sheldon’s evidence that she was not trying to influence the content of Dr. Nagpal’s reports to her insurers. I find that that is precisely what she was attempting to do. The document she prepared and titled “Suggested format for reporting medical updates to GWMS Case Manager” was exactly that, a format Ms. Sheldon was suggesting that Dr. Nagpal use when sending medical updates to Great-West Life/Morneau Sheppell. The document referred to “the patient” and “your patient”; I find that Ms. Sheldon would not have referred to herself in this manner in a document she prepared for herself.

[499] I find that of the eight documents, the “Suggested format for reporting medical updates to GWMS case manager” had particular meaning. Like the other documents I have referred to, it is an example of an attempt by Ms. Sheldon to dictate the content of Dr. Nagpal’s reports to her disability insurer. Significantly, it is apparent from this document that, as of January, 2012, Ms. Sheldon was not expecting to be returning to work before Dr. Nagpal had had an opportunity to provide medical updates, plural, to Great-West Life/Morneau Sheppell that described her functional limitations.

[500] On cross-examination, Dr. Nagpal said that the opinions he gave to Ms. Sheldon’s insurers were his own and not hers. Dr. Nagpal denied that Ms. Sheldon was managing his handling of her case but admitted that she may have been trying to do so.

The events of December 28, 2011

[501] December 28, 2011 was pivotal day for Ms. Sheldon in the chronology which emerged at trial; it was Ms. Sheldon’s last day of active work until March, 2015.

[502] That day, Ms. Sheldon went to work but left, after speaking with a supervisor, because she found her pain to be unbearable.

[503] On December 28, 2011, Ms. Sheldon was in the fourth week of a gradual return to work program involving a week-to-week increase in her offices at the office.

[504] The evidence at trial showed that the morning of December 28, 2011, Ms. Sheldon worked on a computer at home for one hour (Exhibit 33, p. 20) and then went to a dentist’s appointment before driving herself to work. Ms. Sheldon said that, after her supervisor cleared her to leave, she drove directly home. She said that someone, she believed it was her husband, called the after-hours medical service her husband subscribed to. She said that, by this point, she was hurting from head to toe on both sides. She said that she was having trouble “just being present.” She went to see a doctor at the clinic that evening.

[505] Although she did not mention this, and was not asked about it, sometime after leaving work and before going to the clinic that evening, Ms. Sheldon attended a physiotherapy appointment with Ms. Morielaz.

[506] The December 28, 2011 appointment did not stick out in Ms. Morielaz’s mind. Ms. Morielaz did not remember the appointment but, with the assistance of her notes, was able to testify that Ms. Sheldon had complained that day about pain in her back, knee and foot, her right leg and both arms. Ms. Sheldon had said that driving increased the pain in both of her legs.

[507] According to Ms. Morielaz’s notes that day, Ms. Morielaz recommended modifications of Ms. Sheldon’s workstation “in order to optimize recovery” and that Ms. Sheldon’s husband drive her to work for the next few days.

[508] That evening, Ms. Sheldon saw Dr. Charania, whom she had not seen previously. Ms. Sheldon testified that she needed a medical decision about whether she should return to work. Dr. Charania recommended that she not to return to work for seven days and prescribed Lyrica. Ms. Sheldon said that Dr. Charania told her to rest and to see Dr. Nagpal at a previously-scheduled appointment in early January.

[509] I find it difficult to reconcile Ms. Sheldon’s evidence about her unbearable pain on December 28, 2011 with Ms. Morielaz’s inability to recall the appointment of December 28, 2011 and Ms. Morielaz’s practical recommendations that day about workplace modifications to optimize Ms. Sheldon’s recovery. Ms. Morielaz felt that Ms. Sheldon’s return to work program was too aggressive for her but did not feel that it was necessary to discontinue it.

[510] I also find it difficult to reconcile Ms. Sheldon’s evidence about how challenging the December, 2011 return to work program was for her and how it exacerbated her pain with the evidence that on December 28, 2011, before going to work, she chose to work on a computer at home for an hour and attend a dentist appointment.

[511] The defendant urged me to draw a negative inference from Ms. Sheldon’s failure to call her husband, Mr. Hatcher, as a witness.

[512] I believe that Mr. Hatcher’s evidence would have shed light on what happened in December, 2011 and why Ms. Sheldon stopping working after December 28, 2011. Although there was evidence that Mr. Hatcher had been diagnosed with Parkinson’s disease in 2016, he was still working at the time of the trial and Ms. Sheldon’s friend Ms. Norman testified that she had seen him shortly before the trial at church.

[513] It would not have been reasonable to expect the defendant to call Mr. Hatcher as a witness.

[514] I find, based on Ms. Sheldon’s failure to call her husband as a witness that his evidence about the December, 2011 return to work program and about what happened on December 28, 2011 would not have been helpful for Ms. Sheldon’s case.

The evidence of Mr. Moore

[515] In an initial assessment of December 6, 2013, occupational therapist Colin Moore wrote that Ms. Sheldon described her position at Canada Post as follows:

She reports that this job has tasks that includes (but is not limited to) lab work, sitting deskwork, prolonged standing, computer and phone use. Mrs. Shelton (sic) states that this job position requires a great deal of mental flexibility and concentration and often she must deal with a great deal of stress and pressures. Physically, she reports that there is occasional lifting required of devices that may weigh up to 50 pounds, as well as tasks such as moving tables and unpacking devices from boxes.

[516] In that December assessment, Mr. Moore recommended that Ms. Sheldon seek psychological counselling to assist her to return to work; he said that disability-related psychosocial issues can become a barrier to a successful return to work.

[517] Ms. Sheldon did not follow up on Mr. Moore’s recommendation.

[518] Mr. Moore said that in January of 2014, Ms. Sheldon was questioning whether she would ever return to work.

[519] In a progress report dated February 4, 2014, Mr. Moore wrote that Ms. Sheldon was very focused on logistical difficulties of getting to work. He said that he had recommended that she take a test run on Para Transpo that would be similar to her commute to work but that she had not done so. He repeated his recommendation that Ms. Sheldon seek psychological counselling.

[520] In a progress report dated March 24, 2014, he said that although Ms. Sheldon’s assessment measures were improving and she said she was eager to return to work, she was expressing a great deal of concern related to her readiness to return to work. In that report, he again mentioned that Ms. Sheldon had not followed up on his recommendation of psychotherapy or counselling to assist her in her transition back to work, citing availability of therapists and transportation issues.

[521] On cross-examination, Mr. Moore agreed that he tried to promote the idea of Ms. Sheldon returning to work but she threw up barriers. He also agreed that she was resistant to the recommendation of psychological intervention to assist in her transition back to work.

The 2014 return to work attempt

[522] Ms. Sheldon’s 2014 attempt to return to work was described above, in the summary of Ms. Sheldon’s evidence in the section of these reasons dealing with non-pecuniary general damages.

[523] Ms. Sheldon said that she was to start a return to work program in April of 2014 but when she reported for work, changes that were to have been made to her workstation to make it more suitable for her from an ergonomic perspective had not been made. She said that her employer and her insurer disagreed about the cost of making the changes.

[524] Ms. Sheldon did not then actually return to work until almost a year later, in March, 2015.

[525] Although Ms. Sheldon said that she had been preparing for this return to work for some time and was anxious for it to begin, Dr. Nagpal’s notes of February 13, 2014 state that she told him that she felt that she was being “bullied” by her disability insurer which was forcing her to return to work.

Ms. Sheldon’s workbook

[526] In a workbook completed by Ms. Sheldon as part of her therapy with Ms. St. Louis in early 2016, under the heading “Activities I’m Avoiding” the first item on the list was “returning to work.”

CONCLUSION WITH RESPECT TO LOSS OF INCOME

[527] Ms. Sheldon’s reluctance to return to work cannot be attributed to either of Dr. Ricci’s diagnoses.

[528] Dr. Ricci said that Ms. Sheldon’s adjustment disorder evolved from the changes in Ms. Sheldon’s life that were caused by the accident, including the loss of her job. The adjustment disorder, having been precipitated in part by the change in Ms. Sheldon’s work status cannot have caused it.

[529] Dr. Ricci said that usually a few months have to pass following an incident such as an accident before somatic symptom disorder will arise. Just five weeks and two days after the accident, Ms. Sheldon told her physiotherapist that her disability insurer was “harassing” her about returning to work. Although Dr. Ricci testified that Ms. Sheldon could have been diagnosed with somatic symptom disorder in December, 2011, when she made her first attempt to return to work less than three months after the accident, Dr. Ricci said that Ms. Sheldon was not diagnosed with the disorder at that time. Dr. Ricci said that although she suspected that there was some symptom overlay, she did not know what Ms. Sheldon’s symptoms were in December, 2011 and she did not give the opinion at trial that Ms. Sheldon suffered from somatic symptom disorder at that time. Dr. Ricci did not give any evidence that would explain Ms. Sheldon’s reluctance to return to work nor would she have done so because Dr. Ricci’s impression was that Ms. Sheldon had tried very hard to get back to work. Dr. Ricci did not assess Ms. Sheldon for the first time until October, 2015, four months after Ms. Sheldon’s final return to work attempt ended.

[530] As I mentioned above, the evidence of Ms. Sheldon’s reluctance to return to work coloured my impression of how much Ms. Sheldon had actually enjoyed her job before the accident and whether she wanted to return to work. It also informed my conclusions about the assumptions on which Ms. Sheldon’s loss of income claims turns, that is, how likely it would have been that if the accident had not happened, Ms. Sheldon would have returned to a five-day work week and that she would have continued to work until she had completed 35 years of service.

[531] Ms. Sheldon argues that it is more likely than not that, if the accident had not happened, Ms. Sheldon would have increased her work week to five days from four in October of 2012 and that she would have continued to work at least until age 62.64. Ms. Sheldon argues that there was no doubt that there was a “reasonable chance” of both events happening.

[532] As Ms. Sheldon argues in this case, if the plaintiff established “a real and substantial risk of future pecuniary loss, she is entitled to compensation”: (Schrump v. Koot, supra.)

[533] In Graham v. Rourke, (1990) 74 O. R. (2d) 622 (C.A.) at para. 40, Ontario’s Court of Appeal acknowledged that a trial judge called upon to assess future pecuniary loss is engaged in a somewhat speculative exercise. The ultimate questions to be determined, specifically, will the plaintiff suffer future loss and, if so, how much, cannot be proved or disproved in the sense that facts relating to events which have occurred can be proved or disproved.

[534] A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss; it is not an all or nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss. (Graham v. Rourke, supra, at para 41.)

[535] In this case, I must determine whether there was a reasonable chance that, if the accident had not happened, Ms. Sheldon would have increased her work week to five days from four in October of 2012 and that she would have continued to work to age 62.64. If I find that there was such a reasonable chance, I must then consider the likelihood that either event would have happened and adjust Ms. Sheldon’s loss accordingly.

Was there a reasonable chance that Ms. Sheldon would have increased her work week to five days from four in October, 2012?

[536] Ms. Sheldon had been working four days per week for about 15 years at the time of the accident.

[537] Ms. Sheldon testified that she would have increased her work week to five days in October of 2012 because her son would have been away at university, her daughter would have been 13 and she found that she had been doing five days’ worth of work in four and only being paid for four.

[538] The only evidence of Ms. Sheldon’s intention was Ms. Sheldon’s oral testimony. There was no documentation to support her intention to increase her work week. Her children were not asked about this when they testified. Although Ms. Sheldon’s former Canada Post colleague, Mr. Flynn, testified about the work options program that had enabled Ms. Sheldon to reduce her work week, he was not asked if he knew whether she planned to return to work time work. Ms. Sheldon’s friend Ms. Norman was not asked about this.

[539] I find that a person likely to know whether Ms. Sheldon was planning to return to work full-time would be her husband, Mr. Hatcher, who did not testify.

[540] Ms. Sheldon did not convince me that there was a reasonable chance that she would have increased her work week in October, 2012 if the accident had not happened. There was no independent evidence of such an intention, her husband, who would have been in the best position to corroborate Ms. Sheldon’s evidence, was not called as a witness and, for the reasons set out above, Ms. Sheldon’s efforts to avoid work after the accident called into question how motivated she was to work before the accident.

[541] I reject Ms. Sheldon’s claim for $15,425.00 for past loss of income.

Was there a reasonable chance that Ms. Sheldon would have worked to age 62.64?

[542] I find that there was a reasonable chance that Ms. Sheldon would have worked to age 62.64 if the accident had not happened. Ms. Sheldon said that at age 62.64, she would have had 35 years of service at Canada Post and would have been eligible for the highest available pension.

[543] However, the following evidence called into question whether Ms. Sheldon would have continued to work to age 62.64, which was 11.5 years post-accident:

(1) Ms. Sheldon’s husband was diagnosed with Parkinson’s disease diagnosis in 2016 and Ms. Sheldon said at trial that he was becoming increasingly symptomatic and would require assistance;

(2) Although Ms. Sheldon said that she had always enjoyed her job, she also described it as involving a great deal of stress and pressure;

(3) Ms. Sheldon’s friend Mr. Flynn testified at the trial, said that he had retired from Canada Post at age 58 to enjoy life because his first wife had died at age 40 and a close cousin had died at 61;

(4) Although Ms. Sheldon’s absences from work may have been in part responsible, according to Mr. Flynn, Ms. Sheldon’s position was eliminated by Canada Post in March, 2015 and Canada Post’s postage meter business was transferred to Toronto from Ottawa. If the accident had not happened and Ms. Sheldon’s position had been eliminated, she would have been required to find a new position in the organization, which may or may not have been to her liking; and

(5) The evidence of Ms. Sheldon’s post-accident efforts to avoid work which I have found calls into question how motivated she was to work.

[544] Ms. Sheldon claims $521,354.00 for future loss of income.[^10]

[545] The parties agreed that if I found that Ms. Sheldon was unable to work as a result of the accident, her income loss to her retirement date of July 7, 2017 at age 57.64 would be $141,693.00, assuming that she continued to work four days per week. I have made the findings that Ms. Sheldon was unable to work as a result of the accident and that she would not have increased her work week to five days from four.

[546] While acknowledging that my conclusion is, necessarily, speculative, because of the evidence that I have found calls into question Ms. Sheldon’s assertion that she would have continued to work to age 62.64, I find that there is a two out of three chance that, had the accident not happened, Ms. Sheldon would have worked beyond her actual retirement date of July 7, 2017 until she completed 35 years of service at Canada Post and that she would have retired at that time, at age 62.64.

[547] To calculate Ms. Sheldon’s loss of future income damages based on my findings, I have subtracted Ms. Sheldon’s claimed loss to age 57.64 ($141,693.00) from her total claimed loss of $521,354.00. I have then reduced the result of $379,661.00 by one-third to arrive at $253,107.32.

[548] I have then added Ms. Sheldon’s claimed loss to age 57.64 ($141,693.00) to the $253,107.32, which is her claimed loss from age 57.64 to age 62.64 reduced by one-third.

[549] The result is $394,800.32, which is the amount I award Ms. Sheldon for loss of future income.

What are Ms. Sheldon’s out-of-pocket expenses?

[550] Ms. Sheldon submitted a detailed list of out of pocket expenses which totaled $44,860.37.

[551] After $13,605.00 of her accident benefit settlement was deducted from that amount, her net claim is $31,255.37.

[552] These expenses included amounts paid for medical forms and reports, kinesiology, physiotherapy, occupational therapy, transportation, housekeeping and food.

[553] I accept Ms. Sheldon’s claims for medical forms and reports, kinesiology, physiotherapy, psychotherapy, occupational therapy, transportation, food, medical devices, supplies and vitamins, “miscellaneous”, snow removal/lawn care and yoga.

[554] Some of the items on the lists of “medical devices, supplies and vitamins” and “miscellaneous” items, are unspecified, for example, “Rexall” or “Canadian Tire” and I consider others to be unreasonable, such as an apple peeler and gift cards for people who gave Ms. Sheldon rides. I am going to reduce these amounts by $500.00.

[555] I take issue with the claims for $8,254.45 transportation costs and $6,833.06 for take-out and pre-prepared food.

[556] With respect to transportation, no medical professional ever told Ms. Sheldon she could not drive. Although, at trial, the life care planner retained by Ms. Sheldon as an expert witness defended Ms. Sheldon’s decision not to drive, Ms. Sheldon’s social worker testified that Ms. Sheldon had told her that she should start driving again. The costs claimed by Ms. Sheldon are for taxis. She acknowledged that a bus service known as Paratranspo is available but said that it is very time-consuming to use. She said that when she tried to return to work in 2011, a physiotherapist had told her that driving herself to work would result in less wear and tear than taking the bus. She did subsequently not make use of Ottawa’s public transit system. As a consequence of not driving, she was not incurring the annual expenses associated with operating a car.

[557] Even if Ms. Sheldon had not unilaterally restricted herself from driving, it would not have been unreasonable for her to take taxis during at times when her pain flares up. There was evidence that she experienced flare-up on average two or three times per year and could last several weeks. If we assume that each flare-up lasted four weeks, she would have been affected by flare-ups for 60 of the 312 weeks in the six-year period between the accident and the trial. I will reduce the amount claimed by Ms. Sheldon for transportation approximately 80 per cent or $6,600.00.

[558] With respect to her claim for take-out or pre-prepared food, Ms. Sheldon testified that she was careful only to add to her list items that she and her family would not have purchased even if the accident had not taken place. I accept that she did this. However, Ms. Sheldon and her family would have incurred the cost of eating meals at home if they had not incurred the cost of these take-out or pre-prepared meals. There was no evidence at trial of the difference between the cost of home-cooked meals and take-out or pre-prepared meals. I will arbitrarily reduce the amount claimed by Ms. Sheldon by approximately two-thirds or $4,500.00.

[559] I have reduced the amount claimed by Ms. Sheldon by $11,600.00. I award her $19,655.37 for out-of-pocket expenses.

What are Ms. Sheldon’s damages for the cost of future care, if any?

The parties’ positions

[560] Ms. Sheldon is asking for $361,770.00 for the present value of the cost of her future attendant care, $234,009.00 for the present value of future housekeeping and home maintenance services and $681,375.86 for the present value of what she describes as future treatment and related care costs. The total is $1,277,154.80.

[561] The defendant’s position is that Ms. Sheldon has not proven that she requires any future care as a result of the accident. Alternatively, the defendant argues that Ms. Sheldon’s damages under this heading are $96,574.00.

The witnesses

[562] Three expert witnesses testified about Ms. Sheldon’s future needs.

[563] Colin Moore, an occupational therapist, treated Ms. Sheldon in 2013 and 2014 and then prepared housekeeping capacity assessments for her in an expert witness capacity in July 2016 and March 2017.

[564] Dr. Claudia von Zweck, an occupational therapist and life care planner assessed Ms. Sheldon and sought input from the various professionals who treated her and prepared an opinion about Ms. Sheldon’s future needs for housekeeping and home maintenance assistance, attendant care, future treatment and other costs, including architectural changes to her home. Like Mr. Moore, Dr. von Zweck was retained by Ms. Sheldon.

[565] Sandra Vellone, a rehabilitation counsellor and life care planner retained by the defendant, assessed Ms. Sheldon and prepared a report in responding to Mr. Moore’s report.

[566] I found that the evidence of all three experts had certain limitations.

[567] I found that, in their testimony, Mr. Moore and Dr. von Zweck both crossed the line from time to time and acted more as advocates for Ms. Sheldon than as independent expert witnesses.

[568] Although the defendant’s lawyer did not question Mr. Moore’s expertise, he argued that Mr. Moore’s past relationship with Ms. Sheldon in the capacity of treating occupational therapist should affect the weight given to his opinion. On several occasions during Mr. Moore’s cross-examination, Mr. Moore was asked whether he was making excuses for Ms. Sheldon or acting as her advocate. Although Mr. Moore had been retained by Ms. Sheldon to give an expert’s opinion, he could not have been expected to shed his earlier role as her treatment provider, nor did he entirely do so.

[569] Dr. von Zweck’s life care plan included a number of recommendations I would characterize as extravagant rather than reasonably required. Dr. von Zweck’s plan included a Fit Bit activity tracker, a new electric blanket every three years, $1,100.00 for home yoga, meditation and relaxation supplies and a $3,333.50 recumbent tricycle.

[570] While all of these items might be nice, I do not consider any of them to be reasonably required and I found that Dr. von Zweck’s inclusion of them in her plan cast some doubt over the reasonableness of some of the balance of her recommendations.

[571] Dr. von Zweck also recommended that, when Ms. Sheldon turns 65, an electric stair lift be installed in her home at a cost of $10,000.00. Ms. Vellone had testified that when she assessed Ms. Sheldon, Ms. Sheldon had told her that, in the future, she would like to have a stair lift installed in her home. Ms. Vellone ignored the request, having witnessed Ms. Sheldon successfully walk up and down stairs. Ms. Vellone also expressed concerns about encouraging individuals with injuries to adopt a disabled role.

[572] Dr. von Zweck also acknowledged that Ms. Sheldon had not received any medical advice to stop driving and had made her own decision to stop doing so. Dr. von Zweck said that she thought that Ms. Sheldon’s decision was appropriate. The cost of the car and driver Dr. von Zweck recommended for Ms. Sheldon for life is almost $300,000.00. The evidence of Ms. Sheldon’s social worker, Ms. St. Louis, that Ms. Sheldon had told her that Dr. von Zweck had encouraged Ms. Sheldon to resume driving was not put to Dr. von Zweck. I cannot ignore Ms. St. Louis’s evidence which, at the very least, suggests that Dr. von Zweck had provided Ms. Sheldon with advice and recommendations in addition to conducting what was to be an independent assessment.

[573] Generally, I preferred the approach to future care costs taken by Ms. Vellone. Ms. Vellone’s view was that it was not in Ms. Sheldon’s best interests that tasks be taken away from her and for the role of a disabled person to be reinforced. However, through no fault of her own, there were some problems with Ms. Vellone’s evidence. Ms. Vellone was retained to respond to the reports of Mr. Moore but not to that of Dr. von Zweck. Further, there was no foundation in evidence for a number of Ms. Vellone’s opinions because they were based on the reports of occupational therapists and physicians the defendant did not call to testify at the trial.

[574] I will consider each of the categories of future care for which Ms. Sheldon is claiming the cost.

Housekeeping and home maintenance, including meal preparation

[575] Although Dr. Devlin did not agree, I accept that Ms. Sheldon’s ability to take care of her home was limited by her injuries. Ms. Sheldon, her two children, Dr. Kleinman, Mr. Moore, Dr. von Zweck and Ms. Vellone all testified to this effect.

Indoors and meals

[576] In his 2017 report, Mr. Moore said that Ms. Sheldon required 16.6 hours per week of “indoor homemaking task” assistance, including meal preparation. His opinion in his 2016 report had been 11.9 hours.

[577] Dr. von Zweck was of the opinion that, to age 75, Ms. Sheldon required 431.2 hours of attendant care per year (8.3 per week) for meal preparation and personal care assistance and an additional 7.3 hours of housekeeping services per week, for a total of 15.6 hours. The 8.3 hours per week includes 1.3 hours per week for assistance during flare-up periods. Dr. von Zweck also believed that Ms. Sheldon required 7 hours of housekeeping service for “indoor seasonal tasks” (14 hours, prorated by 50 per cent, recognizing that it is a shared responsibility with her husband.) From age 76 to age 80, Dr. von Zweck would reduce the amount by 20 per cent.

[578] Ms. Vellone was of the opinion that 3.5 hours per week of assistance for “indoor homemaking tasks” to age 75 was sufficient. Ms. Vellone’s opinion was that, after age 75, people who have not suffered injuries frequently pay for assistance. Ms. Vellone did not conduct a housekeeping capacity assessment but she is both a rehabilitation counsellor and a life care planner.

[579] Dr. Kleinman’s opinion was that Ms. Sheldon was substantially disabled in particular in relation to “heavier” housekeeping and home maintenance activities. He explained that she was able to complete activities on a short-term basis but could not complete heavier activities without the risk of a flare-up of her symptoms.

[580] Mr. Moore and Dr. von Zweck’s opinions would have an attendant in Ms. Sheldon’s home for approximately two full eight-hour work days every week which seems excessive, given Dr. Kleinman’s opinion.

[581] That said, Ms. Vellone’s opinion does not contemplate any assistance for meal preparation and does not include any allowance for flare-ups of Ms. Sheldon’s symptoms.

[582] While Ms. Sheldon’s children may not live with her and her husband in the future, I consider that to be a neutral factor, as it would mean that there would be fewer people to clean up after and fewer meals to make but also fewer people to help out.

[583] Mr. Moore has assumed an hourly rate of $30.00/hour, Dr. von Zweck has assumed an hourly rate of 28.25/hour and Ms. Vellone an hourly rate of $22.50. The average is $27.00.

[584] I find that eight hours per week of assistance at a rate of $27.00/hour to age 75 only would be appropriate for indoor homemaking tasks, including assistance with meal preparation and accounting for flare-up periods.[^11]

Outdoors

[585] I accept Dr. von Zweck’s opinion which was that Ms. Sheldon requires two hours of gardening services at $50.85/hour for 20 weeks, prorated by 75 per cent to take into account the pre-accident shared responsibility. This would amount to .5 hours at $50.85/hour for 20 weeks. This would be to age 75 only.

[586] I find that an additional 10 hours per year of outdoor services at $50.85/hour to age 75 only is reasonable.

Future treatment and other care costs

[587] I have reproduced below each row of a chart prepared by Ms. Sheldon, which was at pages 30 and 31 of her written closing submissions, which set out the various treatments and other items for which she is seeking the future cost.

Medication

Daily

For life

$42,130.00

[588] Ms. Sheldon’s prescription medications are pregabalin, cyclobenzaprine and trazadone at an annual cost of $1,486.48.

[589] She also takes melatonin for sleep and Biotene products for dry mouth. The annual cost is $187.47.

[590] I allow Ms. Sheldon’s claim for these medications on the basis that is a reasonable chance (Schrump v. Koot, supra) that Ms. Sheldon will require them in the future.

[591] Ms. Sheldon should not be compensated for the cost of prescription medications past the age of 65. After age 65 Ms. Sheldon will suffer no loss because her drug claims would be covered by the Ontario Drug Benefit Program under O. Reg 201/96 under the Ontario Drug Benefit Act, R.S.O. 1990, c. O. 10 (El-Khodr v. Lackie, 2017 ONCA 716 at para. 22.)

[592] Ms. Sheldon may require different medications in the future. I find that the prospects that these medications may be more or less expensive than the medications she is currently taking cancel each other out.

[593] In 2015, Dr. Nagpal encouraged Ms. Sheldon to stop taking all medications. Although his recommendation fell on deaf ears at the time, Ms. Sheldon may in the future be willing to follow this recommendation.

[594] Taking into account Dr. Nagpal’s recommendations, the guarded prognoses of the various medical professionals who assessed Ms. Sheldon and Ms. Sheldon’s strong opinions about her medical treatment, I find that the likelihood that Ms. Sheldon will require these or comparable medications in the future is 85 per cent. Accordingly, I would discount her claim by 15 per cent.

Medical evaluation

Various

Various

$11,207.00

[595] Dr. von Zweck recommended evaluations for case management, hydrotherapy and psychology.

[596] For the same reasons I am rejecting Dr. von Zweck’s recommendations for case management and hydrotherapy, below, I reject her recommendations for related assessments.

[597] I allow her recommendation of one, 10-hour psychological assessment every five years for life at an annual cost of $390.00 and a total “for life” cost of $9987.00.

Psychotherapy

1 x 3 week

One year

$2,707.00

Psychotherapy

11 sessions/year

For life

$45,058.00

[598] Dr. von Zweck recommendation psychotherapy for Ms. Sheldon once every three weeks for one year followed by monthly sessions for life.

[599] Based upon the recommendations of Dr. Ricci and Ms. St. Louis and Dr. Kleinman’s description chronic pain combined with somatic symptom disorder as a “complex bio-psycho-social-physical-social phenomenon”, I allow this amount.

Case management

Various

Various

$29,450.00

[600] Dr. von Zweck testified that Ms. Sheldon appeared to be overwhelmed by her circumstances and that she spent a lot of time just trying to stay organizing.

[601] Dr. von Zweck said that a case manager would help by making referrals when necessary and ensure that Ms. Sheldon’s health team was working together. Ms. St. Louis had supported this recommendation.

[602] For the reasons below, I find that it is unlikely that Ms. Sheldon requires or would benefit from case management:

(1) The evidence at trial suggested that Ms. Sheldon was extremely detail-oriented and unwilling to follow recommendations that she did not agree with.

(2) Dr. von Zweck said at trial that when she reviewed her life care plan with Ms. Sheldon she was not sure that Ms. Sheldon was convinced by the case management and occupational therapy recommendations.

(3) Ms. Sheldon was also managing her husband’s care which suggested that she would be quite capable of managing her own. At trial, Ms. Sheldon explained in detail how she realized that her husband was not able to prepare himself to go to specialists’ appointments. She explained how she sits down with him before an appointment over a couple of days to talk about what the problems are and to prioritize the problems. She said that she contacted a local Parkinson’s disease support group for him and made arrangements for him to attend meetings. She also found a specialized physiotherapy program. He attends twice a week and she attends with him. She said that this physiotherapist will tell him what to do each week in addition to the usual exercises. She said that, at home, he needs someone to cue him and to let him know if he is doing the exercise correctly. She said that she is with him when he is doing the exercises and that she monitors them and cues him to make adjustments as necessary.

[603] I find that Ms. Sheldon does not reasonably require case management and would not benefit from it.

[604] I reject this claim.

Occupational therapy

114 hours/year

2.5 years

27,793

Occupational therapy

10 hours/every five years

For life

7,088

[605] Dr. von Zweck said that Ms. St. Louis had looked at Ms. Sheldon’s lifestyle and had tried to introduce activities that would improve her quality of life.

[606] Dr. von Zweck said that Ms. Sheldon appears to be stuck at present in a phase in which she knows what to do but not how to do it and that she needs more assistance to apply the principles she has learned into her everyday life.

[607] Dr. von Zweck said that, because she is not working now, she is in a different place in her rehabilitation.

[608] Mr. Moore had recommended additional occupational therapy in the past. Mr. Moore had said that Ms. Sheldon had good knowledge of techniques for energy conservation but made no changes in her behaviour.

[609] Ms. Vellone said that Ms. Sheldon would benefit from some occupational therapy.

[610] Dr. von Zweck’s recommendation of 114 hours/year for 2.5 years strikes me as quite high, particularly as Ms. Sheldon will be having psychotherapy at the same time.

[611] Ms. Vellone recommended 15.5 hours of occupational therapy, two times over Ms. Sheldon’s lifetime at a cost of $3,940.00. Her recommendation would effectively offer Ms. Sheldon some assistance in the short term and a booster in the future, when required.

[612] I accept Ms. Vellone’s recommendation and award Ms. Sheldon $3,940.00.

Physiotherapy

24 sessions/year

For life

54,355

Kinesiology

12 sessions/year

For life

51,064

[613] Ms. Sheldon said that physiotherapy and kinesiology have helped her manage her pain and maintain her level of function. Her belief in the benefits of these treatments is supported by her willingness to have paid for them herself for many years.

[614] Dr. Kleinman recommended a multi-disciplinary approach to Ms. Sheldon’s future treatment.

[615] Dr. Nagpal said that Ms. Sheldon should remain as active as possible.

[616] Dr. Devlin said that he did not recommend any facility-based programs for Ms. Sheldon because they had not made a difference in the past. He said that after more than six years of physiotherapy and kinesiology, Ms. Sheldon should have had sufficient instruction to be able to exercise on her own.

[617] Dr. Ricci said that these therapies provide Ms. Sheldon with goals and an activity that gets her out of the house.

[618] Ms. Vellone said that she felt that Ms. Sheldon should be weaned off physiotherapy because there were no lasting benefits.

[619] Physiotherapist Ms. Collins said that she had been seeing Ms. Sheldon weekly but would like to reduce her appointments to every two weeks and to shift to a more active program, such as aqua therapy.

[620] Kinesiologist Helen Bolt suggested that she see Ms. Sheldon once per month. Ms. Bolt said that Ms. Sheldon works on her exercise program three or four hours per day and she was concerned that it was taking all of her energy. Ms. Bolt felt that Ms. Sheldon required oversight to ensure that she was engaged in a proper level of exercise.

[621] While I appreciate that physiotherapy and kinesiology are not interchangeable, in an attempt to reconcile the different opinions and to be fair to both parties, I award Ms. Sheldon $50,000.00 for physiotherapy, kinesiology or a combination of the two.

Assistive devices

34,096

[622] Dr. von Zweck included in Ms. Sheldon’s plan a new mattress, an ergonomic office chair which would be a power recliner with a neck support, a power recliner chair with neck support for a living or family room, a digital electric table with adjustable height, a stipend for safety items, a cordless telephone with a head set, a front-loading washing machine and dryer plus pedestals, becalm balls, a TENS machine plus electrodes, microwave hot gel packs, electric blankets, Nordic poles, resistant elastic bands, a stipend for home yoga, meditation and relaxation supplies, a foam roller, a back rest with lumbar support, a Fit Bit activity tracker and a recumbent tricycle which, as I mentioned above, was estimated to cost $3,333.50. The total cost of Dr. von Zweck’s recommendations was $34,096.00.

[623] In contrast, Ms. Vellone recommended a high backed office chair for $400.00.

[624] Some of Dr. von Zweck’s recommendations are probably quite reasonable but, as I mentioned above, I found that others were not and this left me questioning the entire list.

[625] I award Ms. Sheldon $10,000.00 for assistive devices.

Architectural changes

$28,817

[626] Dr. von Zweck recommended that railings be added to Ms. Sheldon’s home, as well as higher toilets, a walk-in bath tub and also a stair lift.

[627] Dr. von Zweck said that the stair lift may have been something that Ms. Sheldon identified that she would like because it would help her keep her home but Dr. von Zweck said she would never have recommended it if she did not think that it was necessary.

[628] As I mentioned above, Ms. Sheldon also mentioned to Ms. Vellone that she would like a stair life at some point but Ms. Vellone did not think that this was necessary.

[629] The railings and the toilets seem reasonably required to me, the walk-in soaker tub and the stair lift do not.

[630] I award Ms. Sheldon $6,356.25.

Mindfulness program

Eight weeks

Once

$791

[631] Dr. von Zweck said that she thought that mindfulness would be introduced through occupational therapy but that having reinforcement in a group setting would be helpful.

[632] I accept this recommendation and award Ms. Sheldon $791.00.

Hydrotherapy

48 sessions/year

For life

$25,811

[633] Over the years, Dr. Nagpal, Mr. Moore, Dr. Ricci, Ms. St. Louis, Ms. Collins, Ms. Bolt and Dr. von Zweck have all recommended that Ms. Sheldon, who had been a swimmer before her accident, resume swimming or try another water-based exercise.

[634] Ms. Sheldon did not do so.

[635] At one point, Ms. Sheldon explained to Ms. St. Louis that she did not want to return to the pool because she would not have been as proficient as she had been before the accident.

[636] I find that because Ms. Sheldon has refused to return to the pool in the six years following the accident despite numerous recommendations that she do so, it is highly unlikely that she will return to the pool now.

[637] I make no award under this category.

Yoga

96 sessions/year

For life

$29,041

Tai Chi/Qigong

48 sessions/year

For life

$12,167

[638] Dr. von Zweck said that yoga, Tai Chi and Qigong are exercises recommended for flexibility, relaxation and patience and are helpful for people with chronic pain.

[639] At trial, Ms. Sheldon said that she had started attending restorative yoga with a friend but did not enjoy it.

[640] I award Ms. Sheldon $15,000.00 under this category.

Stipend for leisure activities

$150

[641] Dr. von Zweck recommended a stipend for supplies that might be used to introduce Ms. Sheldon to what she described as new avocational pursuits.

[642] The amount does not seem unreasonable.

[643] I award Ms. Sheldon the $150.00.

Transportation

Various

For life

$296,465.00

[644] Transportation was one of the most significant of Ms. Sheldon’s future care claims.

[645] Ms. Sheldon drove herself to work during her first return to work attempt in December, 2011. She said that she found it tiring and that it exacerbated her pain. She was also concerned that due to fatigue or lack of concentration, she might have an accident. She was also concerned about the impact her medication might have on her ability to drive.

[646] No physician ever told Ms. Sheldon that she could not drive.

[647] In her testimony, Dr. von Zweck explained that there are very good reasons why a person might choose not to drive.

[648] However, Ms. St. Louis’s notes of February 9, 2017 reflect that Ms. Sheldon had told Ms. St. Louis that Dr. von Zweck was “really pushing” Ms. Sheldon to return to work and to return to driving. Ms. St. Louis confirmed at trial that this is what Ms. Sheldon told her.

[649] I have difficulty reconciling Ms. St. Louis’s evidence with that of Dr. von Zweck and Dr. von Zweck’s opinion that Ms. Sheldon should be awarded almost $300,000.00 for transportation.

[650] Dr. von Zweck’s recommendation was for a car and driver, for life.

[651] Dr. von Zweck did not assess Ms. Sheldon’s driving.

[652] She agreed that no doctor had taken away Ms. Sheldon’s licence.

[653] One of Ms. Sheldon’s expressed concerns about driving related to the medication she was taking. If the medication she was taking affected her ability to drive, this would have been a legitimate concern. Dr. Nagpal never recommended that Ms. Sheldon not drive. He may have felt that he did not need to do so, because she had voluntarily chosen not to drive. However, he also never took away her licence to drive.

[654] Ms. Sheldon was entitled to decide that she no longer wanted to drive.

[655] I do not find that she is unable to drive.

[656] Ms. Vellone noted that, by not driving, Ms. Sheldon is saving the money she would otherwise be spending to operate a car. Ms. Vellone said that public transit, including Ottawa’s Paratranspo, is available for people who cannot drive. Ms. Vellone said that Ms. Sheldon can also walk to some of her medical and therapy appointments, which she said was is highly recommended.

[657] Ms. Vellone did recommend a one-time cost of $260.00 for transportation and, thereafter, $240.00/year for life.

[658] Ms. Sheldon argued that Ms. Vellone’s transportation recommendations were arrived at “randomly” with little reference to the facts of the case.

[659] I find that Ms. Sheldon chose to give up driving, although doing so also meant giving up much of her independence and reinforced her role as a disabled person. I find that no doctor or other health professional ever instructed or even recommended that Ms. Sheldon stop driving. I also find that if Ms. Sheldon felt that her medications made it unsafe her to drive, she could have followed Dr. Nagpal’s recommendation in December, 2015 to stop taking her medications if only to see what would happen. She did not do so.

[660] I do not accept Dr. von Zweck’s recommendation of almost $300,000.00 for a car and driver.

[661] I will base my award for the cost of future transportation on the same basis as the rationale for my award for past transportation. I found that even if Ms. Sheldon had not unilaterally restricted herself from driving, it would not have been unreasonable for her to take taxis during the times her pain flares up. There was evidence that she experienced flare-ups on average two or three times per year and that they could last several weeks. If we assume that each flare-up lasted four weeks, she would have been affected by flare-ups for 10 weeks each year.

[662] Ms. Sheldon claimed $8,254.45 for past transportation costs for the approximately six-year period from the date of the accident to the date of trial. This amounts to approximately $1400.00 per year or $27.00 per week. Assuming that Ms. Sheldon is affected by flare-ups for approximately 10 weeks per year (2.5 flare-ups per year with symptoms lasting four week), based on her past requirements, Ms. Sheldon would require $270.00 per year.

[663] This is very close to Ms. Vellone’s recommendation.

[664] I award Ms. Sheldon $270.00 per year for transportation for life.

ORDERS

[665] To summarize, I make the following orders:

(1) Ms. Sheldon shall be awarded $100,00.00 in non-pecuniary general damages;

(2) Ms. Sheldon shall be awarded damages for future loss of income in the amount of $394,800.32;

(3) Ms. Sheldon shall be awarded out-of-pocket expenses in the amount of $19,655.37;

(4) Ms. Sheldon shall be awarded the cost of eight hours of assistance per week at a rate of $27.00/hour to age 75 for indoor homemaking tasks, including assistance with meal preparation;

(5) Ms. Sheldon shall be awarded the cost of 0.5 hours of gardening services at $50.85/hour for 20 weeks per year to age 75;

(6) Ms. Sheldon shall be awarded 10 hours per year of outdoor services at $50.85/hour to age 75;

(7) Ms. Sheldon shall be awarded 85 per cent of the claimed cost for prescription medications to age 65;

(8) Ms. Sheldon shall be awarded 85 per cent of what were referred to in Exhibit 138 as “supplies” [melatonin and Biotene products] for life;

(9) Ms. Sheldon shall be awarded $9,987.00 for psychological assessments;

(10) Ms. Sheldon shall be awarded $47,765.00 for psychotherapy;

(11) Ms. Sheldon shall be awarded $3,940.00 for occupational therapy;

(12) Ms. Sheldon shall be awarded $50,000.00 for physiotherapy and/or kinesiology;

(13) Ms. Sheldon shall be awarded $10,000.00 for assistive devices;

(14) Ms. Sheldon shall be awarded $6,356.25 for architectural changes;

(15) Ms. Sheldon shall be awarded $791.00 for a mindfulness program;

(16) Ms. Sheldon shall be awarded $15,000.00 for yoga;

(17) Ms. Sheldon shall be awarded $150.00 as a stipend for leisure activities;

(18) Ms. Sheldon shall be awarded $270.00 per year for life for transportation;

(19) The amount of $15,807.00 shall be deducted from the above amounts that would be characterized as “medical benefits” on account of Ms. Sheldon’s $38,000.00 accident benefits settlement ($8,588.00 having been attributed to legal fees and $13,605.00 having been deducted from her out-of-pocket expenses.)

[666] If counsel cannot agree on the amount of the awards that have not been specifically calculated by me (orders # 4, 5, 6, 7, 8 and 18), they may write to me, care of the Ottawa trial coordinator.

PREJUDGMENT INTEREST AND COSTS

[667] The issues of prejudgment interest and costs remain outstanding.

[668] If the parties cannot agree on these issues, Ms. Sheldon may deliver written submissions of no more than six pages in length within 21 days of the date of this decision, the defendant may then deliver written submissions in response of no more than six pages in length within 14 days of the date of receipt of Ms. Sheldon’s submissions, and Ms. Sheldon may then deliver any reply submissions of no more than three pages in length within 14 days of the date of receipt of the defendant’s submissions.

[669] As part of these written submissions, at her option, Ms. Sheldon may also renew her request for an order for periodic payments under s. 116 of the Courts of Justice Act, R.S.O. 1990, c. C 43.

[670] The parties’ written submissions may be filed by sending them to me care of the trial coordinator.

[671] If the parties agree that oral submissions with respect to prejudgment interest, costs and any outstanding issues either would be preferable to written submissions or should be made in addition to their written submissions, they may contact the trial coordinator to request an appointment.

Madam Justice H.J. Williams

Released: September 21, 2018

COURT FILE NO.: 13-58799

DATE: 20180924

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROSEMARY SHELDON

Plaintiff

– and –

MANUEL REYNA

Defendant

REASONS FOR JUDGMENT

Williams, J.

Released: September 24, 2018

[^1]: Blackwater v. Plint, 2005 SCC 58 at para. 78. [^2]: Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181 [^3]: Knutsen, Erik S., Coping with complex causation information in personal injury cases, (2013) 41 Adv. Q. 149 at 169. [^4]: Oatley, R. G. & McLeish, J. A. (2002). The Oatley-McLeish guide to personal injury practice in motor vehicle cases. Aurora, Ont, Canada Law Book at p. 4C-12. [^5]: The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. [^6]: Meyer v. Bright at para. 12 as cited in Pupo v. Venditti, supra, at para. 18. [^7]: Bos v. James as cited in Pupo v. Venditti, supra, at para 11. [^8]: Meyer v. Bright at paras. 28-36; Mohamed v. Lafleur-Michelacci, at para. 56 as cited in Pupo v. Venditti, supra, at para. 16. [^9]: The amounts claimed by Ms. Sheldon were calculated by actuary Maryse Larouche, who was a witness at the trial. I accept the calculations of Ms. Larouche. [^10]: This figure assumed that a tentative agreement between Canada Post and Ms. Sheldon’s union would be ratified. For the purposes of these reasons, I will assume that it was. If it was not, counsel may write to me to request an adjustment. [^11]: Although I was provided with tools at trial to enable me to calculate present values of future costs, not all of the scenarios in my decision were included in the tools I was given and I do not feel that it would be appropriate for me to look to resources not provided to me by counsel. I will leave it to counsel to calculate the present values of the awards I have made. If there is disagreement between counsel, they may either write to me or request an appointment with me.