Rolley v. MacDonell, 2018 ONSC 6517

COURT FILE NO.: 14-59774

DATE: 2018/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST

Plaintiffs

– and –

DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.

Defendants

Joseph Obagi and Christopher Obagi, counsel for the Plaintiffs

Kirk Boyd and Sandra Lebrun, counsel for the Defendant, Dorothy MacDonell

HEARD: November 20-24, November 27 to December 1, and December 4-8, 11-15, and 20-22, 2017, and January 12, 15, 29 and 31, February 1, 2, 5-9, 12-16, and 20-23, and March 5, 7, and 8, 2018

AMENDED reasons for judgment

The text of the original Reasons for Judgment was corrected on December 12, 2018 and the description of the correction is set out in Appendix ‘B’.

CORTHORN J.

Overview

[1] Mark Rolley has one of the most complex medical histories ever seen by the litigation experts who testified at trial. Prior to January 2012, when Mark was struck by the defendant’s vehicle, Mark had received more than 13 different diagnoses. They include a myocardial infarction, restless leg syndrome, fibromyalgia, hypothyroidism, melanoma (at one time thought to be terminal), and sarcoidosis (a non-fatal, but disabling condition).

[2] When diagnosed with melanoma in 2008, Mark stepped away from his career as a full-time grade school teacher. In 2009 he was diagnosed with sarcoidosis. As of January 2012, Mark had been in receipt of long-term disability benefits for several years.

[3] Despite the many diagnoses and their impact on Mark’s day-to-day function, he managed his condition through activity when physically able, the support of his family and friends, and his faith. Family members and friends were aware of Mark’s physical limitations and the efforts he made to manage his condition, specifically his chronic pain.

[4] As of January 2012, Mark’s role within his family, as both a husband and father, was not what it once had been. Yet, he still played a significant role within his family and community of friends. In the words of the Rolleys’ oldest son Ben (a teenager at the time), “He wasn’t Superman, but he was still Dad at that point.”

[5] Ben’s description is in stark contrast to Mark’s now diminished role within his family and friendships. Everyone, including Mark, is aware that he is no longer the leader and role model he once was. For example, Mark knows that the children turn to their mother when they used to turn to him. Mark describes returning from outings, walking into the Rolley household, and no longer feeling like it’s his home.

[6] Has Mark’s level of function changed because of injuries suffered when he was struck by the defendant’s vehicle, as he crossed a residential street on the afternoon of January 10, 2012? Or, is Mark’s decreased level of function in recent years the result of one or more of the many conditions with which Mark had previously been diagnosed? The outcome of this case turns in large part on the answer to those questions; causation is a significant issue.

[7] Mark claims damages for injuries suffered and for the cost of assistive devices, future therapies, future handyman services, and future attendant care services. Mark’s wife Jocelyn and the Rolleys’ youngest son Joseph each claim damages for loss of care, guidance, and companionship and for attendant care services provided to Mark prior to the date of trial.

[8] The damages claimed total in excess of $5,215,000.

Background

[9] Mark was 54 years old at the date of the collision. He was born in the United States and remained there until 1983. In that year he moved to Ontario with his soon-to-be wife, Jocelyn. Mark made a number of career changes over the years. After four years in the United States Air Force, he obtained a Bachelor of Theology degree and worked as a pastor at a number of churches in Ontario.

[10] Mark’s work as a pastor brought him to the Cornwall area, where he and his family ultimately settled. The Rolleys have three biological children. They have also raised two children who consider themselves to have been morally, although not formally, adopted by the Rolleys.

[11] For many years, including before they moved to the Cornwall area, the Rolleys have been foster parents to numerous children. In late December 2017, before the trial of this action concluded, the Rolleys adopted four children, three of whom were foster children living in the Rolley home. The fourth child adopted is the sibling of the three foster children. That child had not been previously placed with the Rolleys.

[12] In the late 1990’s, Mark made the decision to become a teacher. Jocelyn and the children remained in the Cornwall area while Mark attended the University of Ottawa. By early 2002, he had obtained Bachelor of Education and Bachelor of Arts degrees from the University of Ottawa. In addition, he qualified to teach in New York State.

[13] Mark began his teaching career as a substitute teacher. By 2004, he was employed on a full-time basis with the Upper Canada District School Board. Given his lack of seniority within the Board, Mark was assigned to a number of different schools during his initial years of teaching.

[14] Prior to the collision, Mark’s career as a teacher came to an end for medical reasons. Mark was initially diagnosed with melanoma, thought to be terminal. That diagnosis was ultimately changed to non-terminal melanoma. In addition Mark was diagnosed with sarcoidosis, a disabling but non-fatal condition. Mark has not returned to work since 2007. In this action, Mark is not advancing a claim for damages for loss of income, loss of economic opportunity, or loss of competitive advantage.

[15] As of January 2012, when the collision occurred, Mark was in receipt of both long-term disability (“LTD”) benefits and Canada Pension Plan Disability Benefits (“CPPDB”). The LTD benefits were available to Mark through his employment with the school board. Mark was required to complete a number of documents in support of his applications for those benefits. In support of Mark’s claim for CPPBD, documents were completed in 2008 and again in November 2011 (“the CPP Documents”).

[16] The contents of the CPP Documents were addressed in detail during cross-examination of both Mark and Jocelyn. The defendant relies on the contents of those documents in support of her position that Mark and Jocelyn’s respective evidence is lacking in credibility, in particular as it relates to the issue of causation. The plaintiffs argue that the defendant takes the contents of the CPP Documents out of context and, in any event, places undue importance on them.

[17] The plaintiffs acknowledge that Mark had a complex and lengthy medical history prior to the collision. That history dates back at least 15 years prior to the collision and includes the following: a myocardial infarction in 1998; a diagnosis of restless leg syndrome; a diagnosis of fibromyalgia or chronic pain; diffuse body pain that ultimately led to the diagnosis of sarcoidosis in 2009; and treatment by a psychiatrist, during the decade prior to the collision, for complaints such as sleep disturbance, fatigue, and difficulties with memory and concentration.

[18] The plaintiffs distinguish the symptoms associated with Mark’s pre-collision medical conditions from the symptoms and problems experienced by Mark subsequent to the collision. The plaintiffs submit that (a) as a result of the accident, Mark suffered a mild traumatic brain injury (“mTBI”), (b) the symptoms he has experienced and continues to experience because of the mTBI are distinct from the symptoms he experienced prior to the collision, and (c) as a result of the injuries sustained in the collision, Mark is no longer able to manage his chronic pain condition as effectively as he did prior to the collision.

[19] The defendant disputes that Mark suffered an mTBI. The defendant also disputes that the symptoms Mark has been experiencing since the collision differ much, if at all, from the symptoms he was experiencing prior to the collision. The defendant places particular emphasis on the similarity of Mark’s pre-collision and post-collision cognitive symptoms.

[20] The causation issue, as it relates to Mark’s cognitive symptoms, is significant. The plaintiffs claim damages for past and future attendant care services and future occupational therapy, said to be required specifically because of Mark’s post-collision cognitive symptoms. Jocelyn claims damages of $281,410 for past attendant care services and Mark claims $4,160,000 for the cost of future attendant care services.

[21] A number of the Rolley children are named as plaintiffs in this action. As of the date of trial, only the Rolleys’ youngest biological child, Joseph, maintained his claim for damages pursuant to the Family Law Act, R.S.O. 1900, c. F.3 (“FLA”). Joseph’s claim for damages includes $25,000 for past attendant care services provided to his father.

[22] In dividing the responsibilities within the Rolley household, it was Mark who, pre-collision, was responsible for maintenance of the interior and exterior of the family home, the property on which the home is situated, and the various cars operated by family members at any given time. Mark’s claim for damages includes $41,800 for loss of handyman services.

[23] The assessment of damages requires consideration of a number of issues: causation, crumbling skull versus thin skull, and failure to mitigate. In addition, the defendant disputes that Mark’s injuries meet the statutory threshold pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990, c. I.8.

The Issues

[24] The issues to be determined are:

1. How is liability for the collision to be apportioned as between the defendant and Mark Rolley?

2. What injuries did Mark Rolley sustain as a result of the collision?

3. To what damages, if any, are the plaintiffs entitled under each of the following headings:

a) Mark Rolley:

i) General damages for pain, suffering, and loss of enjoyment of life;

ii) Future care and/or service needs including attendant care, occupational therapy, and vision therapy;

iii) Future out-of-pocket expenses for prism glasses; and

iv) Loss of handyman services;

b) Jocelyn Rolley:

i) General damages for loss of care, guidance, and companionship;

ii) Past attendant care services provided to Mark Rolley; and

iii) Future social worker services; and

c) Joseph Rolley:

i) General damages for loss of care, guidance, and companionship; and

ii) Past attendant care services provided to Mark Rolley.

4. Are the plaintiffs’ damages, as assessed, to be reduced because of the crumbling skull principle?

5. Are the plaintiffs’ damages, as assessed, to be reduced because of a failure on Mark Rolley’s part to pursue the appropriate medical and other treatment for his injuries?

6. Do the injuries suffered by Mark Rolley meet the statutory threshold set out in s. 267.5 of the Insurance Act?

[25] The plaintiffs’ claims with respect to the cost of prism glasses, future vision therapy, and future social worker services are the subject of a motion for leave to amend the statement of claim to include claims for those items. The motion was heard during closing submissions. The motion was not opposed by the defendant in terms of the plaintiffs’ entitlement to leave to amend. The defendant disputes the merits of the claims advanced pursuant to the proposed amendments. The decision on the motion is included under Issue No. 3 below (Assessment of Damages).

Issue No. 1 − How is liability for the collision to be apportioned as between the defendant and Mark Rolley?

a) Background

[26] The collision occurred at the intersection of Ridgewood Drive and McConnell Avenue in Cornwall, Ontario. Mark was walking to his car, returning from a medical appointment he attended at a medical building located on the east side of McConnell. Mark’s car was parked on a side street off McConnell and north of the intersection at which the collision occurred.

[27] Mark was walking on the sidewalk on the west side of McConnell and proceeding northbound. The collision occurred as Mark crossed from the south to the north side of Ridgewood.

[28] The defendant was proceeding northbound on McConnell and turned left onto Ridgewood, westbound. The defendant’s car collided with Mark as he crossed Ridgewood.

[29] As the driver of a car that struck a pedestrian, the defendant bears the onus of disproving negligence or improper conduct on her part as a cause of or contributing factor to the collision (Highway Traffic Act, R.S.O. 1990, c. H.8, s. 193(1): “the HTA”). For the reasons that follow, I find that the defendant (a) failed to meet that onus, and (b) is entirely responsible for the collision.

b) Conviction for HTA Offence

[30] The police officer who attended at the scene of the collision, Cst. Lemoyre, issued a ticket on the spot to the defendant for the offence of failing to yield to a pedestrian crossing the road in an uncontrolled pedestrian crossover. The offence is set out in s. 140(1) of the HTA:

When a pedestrian is crossing on the roadway within a pedestrian crossover, the driver of a vehicle approaching the crossover,

(a) Shall stop before entering the crossover;

(b) Shall not overtake another vehicle already stopped at the crossover; and

(c) Shall not proceed into the crossover until the pedestrian is no longer on the roadway.

[31] The defendant testified that she “really didn’t speak to the police officer” at the scene. She admits receiving the HTA offence ticket from Cst. Lemoyre at the scene of the collision. There is no evidence from either the defendant or Cst. Lemoyre that the defendant in any way disputed the ticket on receipt of it.

[32] The defendant understood that the ticket related to failing to yield the right-of-way to a pedestrian. She admits that she paid the fine associated with the ticket. In cross-examination, the defendant gave the following explanation as to why she paid the ticket: “[Because] I hit a pedestrian on the road.”

[33] The plaintiffs rely on the defendant’s conviction of an offence pursuant to s. 140(1) of the HTA as prima facie proof of all of the facts essential to the conviction. The entitlement to rely, in the context of a civil proceeding, on a prior conviction of a criminal offence is addressed in the Evidence Act, R.S.O. 1990, c. E.23, s. 22(1):

Proof that a person has been convicted or discharged anywhere in Canada of a crime is proof, in the absence of evidence to the contrary, that the crime was committed by the person, if,

(a) no appeal of the conviction or discharge was taken and the time for an appeal has expired; or

(b) an appeal of the conviction or discharge was taken but was dismissed or abandoned and no further appeal is available.

[34] Although the section speaks of a “crime”, it is also applicable to a conviction on a provincial regulatory offence such as an HTA offence (Andreadis v. Pinto (2009), 2009 ONSC 50220, 98 O.R. (3d) 701, at paras. 11-16 (S.C.J.)).

[35] Evidence of a conviction gives rise to a rebuttable presumption of guilt. The plaintiffs acknowledge that it was not an abuse of process for the defendant to attempt to rebut the presumption in the context of this trial. They submit, however, that the defendant was not successful in rebutting the presumption of guilt. The plaintiffs request that the following findings may be made based on the conviction:

a) The defendant failed to bring her car to a stop before entering the pedestrian crossover; and

b) The defendant proceeded into the pedestrian crossover while Mark was still on the roadway.

[36] For the following reasons, I agree and make those findings.

[37] First, I find that the defendant’s evidence as to how the collision occurred is not reliable; I give it no weight. The defendant gave conflicting explanations as to how the collision occurred, none of which are plausible. For example, she testified at one point that Mark “came from the middle of the road” and very shortly thereafter admitted that she has no idea where Mark was coming from or where he was going.

[38] As another example, the defendant’s evidence at trial with respect to the portion of her vehicle that first struck Mark conflicts with her evidence in that regard on examination for discovery. The defendant admitted that her memory on that point was more accurate on examination for discovery (in 2015) than it was at trial (in 2018).

[39] Yet, the defendant would not concede that her memory with respect to the speed of her car as it travelled along Ridgewood was better in 2015 than it is in 2018. The defendant’s evidence at trial is that, at the time of the collision, her car was travelling at a speed of 25 kph or, if anything, at a lesser speed. The defendant was unwilling to make a concession about the quality of her memory over time when, in cross-examination, she was presented with her discovery evidence of a speed of 30 kph.

[40] These are but a few examples of the frailties in the defendant’s evidence and the basis for my conclusion that the defendant is an unreliable witness.

[41] Second, Mark’s evidence and that of the independent witness (Marc Jalbert) supports a finding that the collision occurred as Mark was crossing Ridgewood from the southwest to the northwest corner of the intersection of Ridgewood and McConnell. The evidence of these two individuals is discussed in more detail below with respect to the defendant’s request for a finding of contributory negligence.

[42] Third, Cst. Lemoyre’s evidence is that his decision to issue the offence ticket to the defendant was based on the information obtained from her at the scene. Cst. Lemoyre had an independent recollection of details of the collision and of his investigation. One such detail is that the defendant was co-operative and forthcoming with information. Cst. Lemoyre testified that the defendant appeared to him to be truthful.

[43] When presented in cross-examination with portions of what eventually became the defendant’s evidence (e.g. Mark was walking across the street on an angle and he walked into the side of the defendant’s car), Cst. Lemoyre said that the defendant did not make statements to that effect to him. Cst. Lemoyre explained that if the defendant had done so, then his investigation of the collision would have been more extensive than it was.

[44] As of the date of the accident, Cst. Lemoyre had been a police officer for approximately one year. I am satisfied that as of the date of the collision, Cst. Lemoyre understood the importance of the investigation of a collision in which a pedestrian was struck by a vehicle. I found Cst. Lemoyre to be a credible witness. He was clear as to the portions of his testimony based upon independent recollection versus those portions for which he required leave of the court to refer to his notes made at the time of his investigation.

[45] I accept Cst. Lemoyre’s evidence that the decision to issue the ticket was based on information obtained from the defendant at the scene.

[46] The phrase “evidence to the contrary” in s. 22.1 of the Evidence Act, means evidence that contradicts the facts essential to the conviction (Intact Insurance Co. v. Federated Insurance Co., 2017 ONCA 73, 134 O.R. (3d) 241, leave to appeal refused, [2017] S.C.C.A. No. 98, at para. 19). I find that there is, in this case, no evidence to the contrary within the meaning of s. 22.1 of the Evidence Act. The defendant has not rebutted the presumption that arises from her conviction on the offence pursuant to s. 140(1) of the HTA.

c) Contributory Negligence

[47] The defendant requests that Mark be found 25 per cent contributorily negligent because he was crossing Ridgewood at a location other than in a crosswalk. That request is premised on (a) a preference for the defendant’s evidence over that of Mark and of Cst. Lemoyre, and (b) a finding that Mark acted unreasonably by crossing the street at a point other than in a crosswalk.

[48] I have already addressed my concerns with respect to the defendant’s evidence. The defendant argues that Mark’s evidence is, in general, lacking in credibility and reliability. In the Assessment of Damages section below, I address Mark’s qualities as a witness. The concerns, if any, that I have with respect to one or more aspects of Mark’s evidence do not, as a matter of course, mean that I have the same concerns with respect to all aspects of his evidence.

[49] Turning to the issue of reliability, the defendant highlights weaknesses that she alleges are specific to Mark’s testimony with respect to the collision; the defendant refers to what she describes as “varying accounts” of the collision given by Mark. The variations are with respect to Mark’s loss of consciousness, if any at all, and how far Mark was thrown as a result of the collision.

[50] The variations upon which the defendant relies do not cause me concern with respect to the reliability of Mark’s evidence as to how the collision occurred. First, the variations do not relate to conduct of either of the parties, respectively, that may have contributed to the occurrence of or caused the collision.

[51] Second, the variations are taken from notes made or reports written by individuals to whom Mark spoke following the collision. The variations do not arise from Mark’s evidence at trial. For example, the paramedic recorded that when questioned at the scene of the collision, Mark reported no loss of consciousness. An individual who authored a note in the Cornwall General Hospital recorded Mark as reporting a loss of consciousness of 15 seconds. Another example is a report (dated January 2012) in which Mark is said to have been thrown 16 feet as a result of the collision and a report (dated May 2012) in which Mark is said to have been thrown 20 feet.

[52] In the Assessment of Damages section below, these variations are addressed in another context—determining whether Mark suffered an mTBI. In summary, the variations in and of themselves do not cause me concern with respect to Mark’s evidence as to how the collision occurred.

[53] I turn next to the subject of the crosswalk or, as the plaintiffs describe it, the “pedestrian crossover”.

[54] There is no evidence that a delineated crosswalk, with a painted white line on either side or white hash marks, existed at the intersection on the date of the collision. I find that there was no specific crosswalk within which Mark was required to travel when crossing Ridgewood. Regardless, I find that Mark was crossing Ridgewood from the northbound sidewalk on the southwest corner to the northbound sidewalk on the northwest corner of the intersection.

[55] Mark’s evidence is that immediately prior to the collision, he had attended a medical appointment at a building on the east side of McConnell. The building is located a short distance south of the intersection, at which the collision occurred. Mark had parked his car on a side street north of Ridgewood. He accessed the side street from McConnell—not from Ridgewood.

[56] At the time of the collision Mark was returning to his car. I find that there was no reason for Mark to be travelling in any direction other than northbound, across Ridgewood, and in line with the sidewalk upon which he had been walking and upon which he intended to continue to walk.

[57] The defendant is critical of the independent witness, Mr. Jalbert. The defendant describes Mr. Jalbert as having “a very poor recollection of the accident overall.” I agree that Mr. Jalbert does not recall general matters such as the weather or the extent of the traffic in the area at the time of the collision. Mr. Jalbert was, however, specific as to the direction in which he was travelling (southbound on McConnell).

[58] Mr. Jalbert was also specific as to what he observed in the area of the intersection at which he intended to turn right onto Ridgewood. He saw Mark on the sidewalk on the west side of McConnell and travelling northbound towards the intersection. Mark was sufficiently far away from the intersection that Mr. Jalbert was able to make his right turn onto Ridgewood before Mark stepped onto Ridgewood to begin crossing the street.

[59] I find that Mr. Jalbert’s evidence is reliable as it relates to his observations prior to making his right turn onto Ridgewood.

[60] Mr. Jalbert drove some distance on Ridgewood before he looked in his rear-view mirror and observed what appeared to be the moments immediately following the collision. I agree with the defendant that Mr. Jalbert’s evidence as to what he observed in his rear-view mirror and his location on Ridgewood when he made the observations is not reliable. However, that finding does not detract from the reliability of Mr. Jalbert’s evidence as to Mark’s location and movement in the moments prior to the collision.

[61] I find Mr. Jalbert to be a credible witness. He did not appear to embellish his answers in any way. He was forthright in acknowledging when he did not recall something in either general or specific terms.

[62] There is no evidence to suggest that Mark failed to observe the defendant’s car before he began to cross Ridgewood. There is no evidence to suggest that the defendant did anything other than make a normal left turn from McConnell onto Ridgewood, with her vehicle travelling into the northwest quadrant of the intersection and then westbound on the north side of Ridgewood.

[63] I find that (a) the location of the collision was in the north half of the pedestrian crossing area, (b) Mark was well into the crosswalk before he was struck by the defendant’s vehicle, and (c) the defendant failed to observe Mark at any time before the collision occurred.

[64] There is no basis for a finding of contributory negligence.

d) Summary

[65] I find the defendant solely responsible for the collision.

Issue No. 2 − What injuries did Mark Rolley sustain as a result of the collision?

[66] The plaintiffs’ position is that, as a result of the collision, Mark suffered the following injuries and/or conditions:

a) An mTBI;

b) Post-concussion syndrome and/or somatic symptom disorder;

c) Adjustment disorder;

d) Major depression;

e) Post-traumatic headaches;

f) Exacerbation of his pre-existing chronic pain syndrome; and

g) Post-traumatic vision syndrome.

[67] The plaintiffs submit that because of the injuries sustained in the collision, Mark is no longer able to manage his various pre-existing conditions as he did prior to the collision. As a result, he is far more impaired and in need of a greater level of assistance with daily and other activities.

[68] The defendant submits that any physical injury from which Mark suffered as a result of the collision resolved within a relatively short period following the collision. The defendant argues that the symptoms, limitations, and restrictions that Mark continues to experience are the result of the conditions from which he suffered prior to the collision. The defendant denies that the injuries suffered as a result of the collision have had any long-term impact on Mark’s ability to manage his pre-existing conditions.

[69] The complexity of Mark’s pre-collision health history was the subject of remark by a number of the expert witnesses (both practitioner and litigation). For example, pain specialist, Dr. Kevin Smith (called by the plaintiffs) noted the following: the brief of documents he received was “particularly huge”; Mark’s pre-collision medical history was “particularly complex”; and the causation analysis he carried out was one of the most complex such analyses that he has ever done. Neuropsychologist, Dr. Paul Mendella (also called by the plaintiffs) testified that Mark’s pre-collision condition was one of the most complex he has encountered.

[70] I turn from the parties’ respective positions on Mark’s complex medical history and its contribution to his condition post-collision to the law on causation.

a) The Law on Causation

[71] In a single tortfeasor case, such as this one, the law is clear: the plaintiffs will not succeed unless they are able to demonstrate that “but for” the negligence of the defendant, they would not have suffered the losses alleged (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 46[1]). The plaintiffs are not required to provide the court with scientific evidence as to the precise contribution of the defendant’s negligence to Mark’s injuries (Clements, at paras. 9 and 46[1]). To determine whether the defendant’s negligence caused the plaintiffs’ losses, a “robust and common sense fashion.” (Clements, at para. 9).

b) The CPP Documents

[72] Critical to the defendant’s argument on causation are the contents of the CPP Documents prepared and filed by Mark in support of his two applications for CPPDB. The applications were made in 2008 and 2011.

[73] Mark was required by his LTD insurer to apply for CPPDB. When he first applied for those benefits, in 2008, Mark had been told that he was suffering from melanoma that was likely terminal. By 2011, when Mark made his second application for CPPDB, the diagnosis of melanoma was no longer terminal and he had been diagnosed with sarcoidosis, a condition he knew was not fatal.

[74] The defendant argues that the CPP Documents demonstrate that Mark was not a healthy, well-functioning individual prior to the collision. The defendant submits that both Mark and Jocelyn attempted in their evidence at trial to minimize the significance of the limitations and restrictions described in the CPP Documents. The defendant argues that those attempts demonstrate a lack of credibility on the part of both Mark and Jocelyn.

[75] The defendant’s emphasis on the contents of the CPP Documents was ubiquitous. The contents of the CPP Documents permeated the cross-examination of Mark, Jocelyn, and a number of the other witnesses, including litigation experts, called by the plaintiffs.

[76] The plaintiffs submit that the CPP Documents are to be read in context and should not be given inordinate weight on the issue of causation. The plaintiffs note the following:

a) The CPP Documents were completed by Mark at two discreet points in time and therefore provide a snapshot of each point in time;

b) Both points in time were tumultuous for Mark, as a result of which he was experiencing high stress and anxiety; and

c) In the circumstances, Mark’s responses in the two Questionnaires included in the CPP Documents should not be given an expansive interpretation.

[77] The plaintiffs argue that the CPP Documents, when taken in context, are not representative of Mark’s overall health, including his cognitive abilities, in the years prior to the collision.

[78] In light of the very differing positions of the parties with respect to the CPP Documents, and their importance to the defendant’s position, I address the contents of those documents specifically.

• The Documents

[79] In support of the applications for CPPDB, Mark completed two Questionnaires. In those documents, Mark provided detailed information as to his difficulties and functional limitations in a number of spheres related to daily living.

[80] The first Questionnaire was completed in September 2008, at a time when Mark had been given a diagnosis of melanoma that was terminal. The second Questionnaire was completed in February 2011. By that time, Mark’s diagnoses had changed from terminal to non-terminal melanoma and included sarcoidosis. The second Questionnaire was completed less than a year prior to the date of the collision.

[81] Given (a) the proximity in timing of the completion of the 2011 Questionnaire to the date of the collision, and (b) the change in Mark’s diagnoses from 2008 to 2011, I shall review the 2011 Questionnaire in some detail. The difficulties and functional limitations identified in that document include:

• Pain in Mark’s feet, ankles, and knees when standing and aching in his knees, legs, and hips when walking;

• Severe pain in his back when bending;

• Carrying out household chores by doing bits of work at a time so as to avoid becoming extremely fatigued;

• Frustration with forgetfulness including (a) people’s names, and (b) the purpose for which he has entered a room; and

• Inability to walk a distance of more than 50 feet without experiencing shortness of breath and a pain in his chest.

[82] The defendant points, in particular, to a letter dated November 3, 2011, prepared by Mark and sent to CPP in support of his second application for benefits (Exhibit 6A, Tab 237 and “the Letter”). The Letter is the CPP Document closest in time to the date of the collision. In it, Mark asks CPP to reconsider its October 2011 decision declining his application for CPPDB. In the Letter, Mark reviews what he describes as the “multiple health problems that result in [his] total disability.”

[83] The health problems described include melanoma that is being monitored but has not metastasized; systemic sarcoidosis (meaning that it is in Mark’s organs and bones); severe and prolonged incapacitating pain; and a recently diagnosed thyroid problem for which medication was prescribed. The medication is said to have resulted in uncomfortable side effects.

[84] Mark concludes the Letter with the following paragraph:

If only one health problem is looked at individually, it may not seem to meet your criteria. However, if you examine the full picture of my health, and the medication, and the almost intolerable pain, and the medicated state in which I must live, it should be evident that I have a severe and prolonged illness. (Emphasis in original.)

[85] Mark’s explanation for the contents of the Letter is that he prepared it in accordance with instructions he received from his LTD carrier; he was “putting down everything”. Mark testified that the Letter was prepared at a peak time for the pain he ascribes to the sarcoidosis.

[86] When cross-examined about the Letter, Mark was unable to recall writing “the medicated state in which I must live”. He conceded that there must have been some kind of problem with the medication he was taking, although he could not recall to what extent or degree. He could not recall, for example, experiencing uncomfortable side effects of the thyroid medication as described in the Letter.

[87] The CPP Questionnaire completed by Mark in February 2011 and the Letter provide a picture of Mark’s condition at two points in 2011. Based on the contents of the documents alone, it is clear that Mark was experiencing difficulties functioning in both early and late 2011.

[88] What is to be made of the restrictions and limitations described in the CPP Documents?

• Mark’s Evidence

[89] Whether it is with respect to the contents of the Letter or the other CPP Documents, I am unable to rely on Mark’s evidence; I find that Mark is an unreliable witness generally. During cross-examination, several days into his testimony, Mark provided the court with a description of the state of confusion he sometimes reaches and his limitations in providing meaningful, substantive answers to questions.

[90] For example, Mark was questioned about information he provided to Dr. Mendella as part of the neuropsychological evaluation process. Mark’s answers on cross-examination included:

• “Who knows what I was thinking?”

• “I’ve made huge blunders with questions … I was in outer space when [Dr. Mendella] was done with me.”

• “I answer questions in the most ridiculous manner since the accident.”

[91] During cross-examination, Mark testified that at one point during Dr. Mendella’s interview process he might have been “throwing out anything”. Mark’s evidence is that he tries to answer questions to the best of his ability, but that there may be some things that he simply does not know.

[92] During his testimony, Dr. Mendella addressed the manner in which Mark answers questions. Dr. Mendella described Mark as “confabulating” and defined the term to mean a situation in which an individual fills in gaps in their memory with distorted or fabricated information. By doing so, the individual has continual recall of events. The individual does not confabulate in a deliberate attempt to distort or fabricate information; the individual strongly believes in the truth of the contents of the information they provide.

[93] I find that Mark’s description of “throwing out anything” is in keeping with the concept of confabulating. The description (a) demonstrates that Mark has insight into the gaps or lapses in his memory, and (b) highlights the steps he takes to fill in the gaps or lapses.

[94] Confabulation provides an explanation for the manner in which Mark answered questions over time, including, at times during trial. Confabulation is, however, of significant concern as it relates to the reliability of Mark’s testimony at trial. It is difficult to determine when during Mark’s evidence at trial, whether in examination-in-chief or in cross-examination, he was confabulating as opposed to answering questions based on actual recollection. Therefore, I find it necessary to consider the evidence from other witnesses to address the contents of the CPP Documents.

• Other Evidence

[95] It was a term of the LTD policy pursuant to which Mark was receiving benefits that he applies for CPPDB. The latter benefits, if paid to Mark, would serve to reduce the amount payable by the LTD insurer on a monthly basis. I find that both Mark and Jocelyn understood that making an application for CPPDB was a condition of Mark’s continuing entitlement to LTD benefits.

[96] I find that the circumstances in which Mark was required to complete the CPP Documents are such that he was understandably motivated to describe his conditions, limitations, and restrictions in such a way as to support a finding by CPP that (a) his disability was “severe and prolonged”, and (b) he was entitled to CPPDB. That is not to say that, as result of that motivation, Mark exaggerated or over-stated his conditions, limitations, and restrictions. I find that he did not do so. To the extent that the CPP Documents provide a snapshot of Mark’s physical and psychological condition as of the fall of 2008, February 2011, and November 2011, I find that they do so accurately.

[97] The ‘snapshot’ quality of the February 2011 Questionnaire is demonstrated by the information provided by Mark with respect to his level of physical activity. Mark’s answer in that regard was that he had “stopped participating in all sports” and “stopped going to gym and [weight] lifting in May 2010”.

[98] The evidence from the gym at which Mark attended is that he attended the gym 17 times from March through December 2011 and twice in January 2012 prior to the date of the collision (Exhibit 2A, Tab 35). I find that Mark’s ability to attend the gym fluctuated over time. The February 2011 Questionnaire provides a snapshot of Mark’s ability to attend the gym at that time.

[99] The document from the gym identifies Mark as attending on January 29, 2011 (i.e. in the month prior to February 2011 when the Questionnaire was completed). Mark’s failure to remember that gym attendance when completing the Questionnaire does not support a finding that Mark was attempting to mislead CPP as to the nature and extent of his limitations and restrictions. To make such a finding would be to overlook the frailties of human memory, in particular in an individual (a) attempting to manage a number of physical conditions, and (b) facing the stress associated with the requirement to apply for CPPDB as a condition of continuing entitlement to LTD benefits.

[100] I find that the Questionnaire does not require an applicant to identify how he is approaching day-to-day life or how he is attempting to manage, as best as possible, to carry out various activities of daily living. The Questionnaire is not framed so as to generate that information in the applicant’s responses. It would be unfair to Mark to look only at the CPP Documents, in particular the Questionnaires, when assessing his pre-collision condition.

[101] Numerous medical records and reports pre-dating January 2012 were filed by the plaintiffs and by the defendant pursuant to ss. 35 and 52 of the Evidence Act. It is clear from these records and reports that Mark had managed, through treatment, personal discipline, and the support of family members and friends, to develop a lifestyle that accommodated his limitations and restrictions. I find that Mark’s pre-collision lifestyle included an element of overall stability because Mark had the ability to manage the fluctuations in his various conditions and in his overall condition.

[102] For example, in June 2011, Mark’s family physician prepared a Medical Report for submission to CPP (Exhibit 6, Tab 224). In that document, Dr. Girard identifies 13 conditions with which Mark had been diagnosed. Yet, Dr. Girard provides evidence of a level of stability achieved in the treatment of Mark’s condition. Dr. Girard states that Mark’s main medical condition was “stable” and that Mark was reacting well to his medication.

[103] As another example, in October 2011, the treating rheumatologist (Dr. Young) reports improvement with respect to the hypothyroidism with which Mark had been diagnosed (Exhibit 5, Tab 236). Based on his examination of Mark at the end of October 2011, Dr. Young states:

Mark is much better. He has been found to be hypothyroid and is on replacement. Perhaps with this he has managed to lose about 20 pounds and he is feeling much better. His pain control is fairly good on Tridural 200 mg. p.o. daily. He still has fairly significant joint discomfort, however, particularly around the knees and ankles …

I certainly think that the hypothyroidism may have been contributing to a lot of his problems and it will be interesting to see how he improves with a longer period of treatment.

[104] Fluctuation in condition would be understandable for anyone with a diagnosis of a single physical or psychological condition. Given the numerous pre-collision diagnoses Mark had received, it is not surprising that his condition fluctuated over time.

• Dr. Kevin Smith

[105] The fluctuations in Mark’s condition both prior and subsequent to the collision were addressed by anesthesiologist, Dr. Kevin Smith. He was called as a litigation expert by the plaintiffs. In his practice, he focuses on the assessment and management of chronic pain. He was qualified to give opinion evidence with respect to diagnosis and treatment of chronic pain and related conditions including (a) their impact on function, and (b) the probable cause of such conditions.

[106] Dr. Smith’s dedication to the complement of individuals who suffer from chronic pain and related conditions was obvious. I find that his dedication in that regard did not result in him advocating on Mark’s behalf. I found Dr. Smith to be objective and forthright.

[107] For example, Dr. Smith was frank in acknowledging that he did not have full particulars as to when Mark ceased to carry out certain activities; in hindsight, he wishes he had clarified that information with Mark. The lack of that information does not detract from his evidence with respect to Mark’s chronic pain and related conditions.

[108] Dr. Smith’s evidence is that Mark’s pain condition fluctuated both prior and subsequent to the collision. Dr. Smith acknowledged that it would be “tough” for him to answer whether, as a result of the collision, there was any change to the manner in which Mark’s pain condition fluctuated. Dr. Smith’s answer on the subject of fluctuation in condition did not, however, end there. The balance of Dr. Smith’s response is the crux of the plaintiffs’ position.

[109] Dr. Smith testified that as a result of the collision, Mark’s ability to cope with the fluctuations in his condition changed; after the collision Mark was never able to manage his pain condition as he had prior to the collision. Nor was Mark ever again able to maintain the level of function he had prior to the collision (despite his pain condition). This aspect of Dr. Smith’s evidence is dealt with in greater detail below.

• Summary – CPP Documents

[110] For these reasons, I find that the contents of the CPP Documents are not determinative of Mark’s pre-collision condition. The CPP Documents served the purpose for which they are intended: to permit CPP to determine whether the disability, if any, from which Mark suffers is “severe and prolonged”.

[111] The CPP Documents are of assistance in this trial to the extent that they provide a snapshot of Mark’s condition at various points in time. The documents do not, however, reflect the manner in which Mark was able to manage his overall condition, including the fluctuations in his overall condition from time to time.

[112] The first of a number of issues with respect to the injuries suffered as a result of the collision is whether Mark suffered an mTBI. The outcome on that issue plays a significant role in the outcome of the plaintiffs’ claims.

c) Did Mark suffer an mTBI?

[113] To answer the question posed it is necessary to consider (a) what happened to Mark at the time of and immediately following the collision, and (b) the evidence of a number of the health-care professionals who testified as either a practitioner or litigation expert. The areas of expertise of these witnesses include neuropsychology (Dr. Paul Mendella and Dr. Peter Judge) and rehabilitation medicine (Dr. Matthew Faris). Dr. Mendella was called by the plaintiffs and Drs. Judge and Faris by the defendant.

[114] Dr. Faris testified as to whether, in his opinion, Mark suffered an mTBI as a result of the collision. For the reasons discussed under “Exacerbation of Chronic Pain Condition” (section (g), below), I do not consider Dr. Faris’ testimony in determining whether Mark suffered an mTBI.

• Retrograde Amnesia

[115] The first of a number of points on which Drs. Mendella and Judge concur is in identifying retrograde amnesia as a factor in diagnosing an mTBI. I find that Mark suffers from retrograde amnesia; he does not recall what happened between when he stepped off the sidewalk and when the collision occurred.

• Brief Loss of Consciousness

[116] Drs. Mendella and Judge also concur that brief loss of consciousness is a factor in diagnosing mTBI.

[117] In the immediate aftermath of the collision, Mark gave two different reports regarding loss of consciousness. The paramedic who attended to Mark at the scene of the collision (Tristan Layer) was called as a defence witness. Mr. Layer testified that (a) when asked, Mark reported experiencing no loss of consciousness and (b) he assessed Mark as having a Glasgow Coma Scale score of 15/15.

[118] The records from the emergency department of the hospital indicate that Mark reported a loss of consciousness of 15 seconds. The defendant submits that the discrepancy between Mark’s report to the paramedic and the contents of the emergency department records is indicative of a lack of credibility on Mark’s part. The defendant argues that Mark has, over time, attempted to embellish his description of the collision, and its aftermath, in an effort to support the claims he is advancing in this action.

[119] I find that the discrepancies in Mark’s reporting over time regarding loss of consciousness are not indicative of a lack of credibility. Rather, they are indicative of Mark being an unreliable witness on this subject. That Mark is not reliable with respect to the duration of loss of consciousness suffered, if any, is not a criticism; lack of reliability on that point is not surprising given the manner in which the collision occurred.

[120] The information obtained by Mr. Layer at the scene of the collision is, in any event, not sufficiently reliable to support a finding that Mark did not suffer an alteration or loss of consciousness as a result of the collision. It was Mr. Layer’s evidence that the scene of the collision was not a controlled environment. In the total of 11 minutes that he spent at the scene, Mr. Layer:

• Obtained personal information from Mark;

• Attempted to identify the nature and severity of the injuries suffered, including because of Mark’s complaint and focus on significant right leg pain;

• Did not focus deliberately and specifically on the subject of loss of consciousness or loss of alertness; and

• Was at times distracted by the presence of other first responders and the nature of the environment generally.

[121] Mr. Layer acknowledges that he was unable to obtain a clear, fulsome picture from Mark as to precisely what had transpired. It was Mr. Layer’s evidence that he did not arrive at the scene until approximately eight minutes after the collision occurred. If Mark had, in that eight-minute period, experienced a moment of dizziness or confusion, Mr. Layer would not have observed it.

[122] I find that Mark suffered a loss or alteration of consciousness as reported by him at the emergency department and on subsequent occasions.

• Confusion Following Collision

[123] Dr. Judge’s evidence is that confusion in the aftermath of the collision is another factor to be considered in diagnosing mTBI. Mark testified that in the moments following the collision he experienced fear of being run over by a car he believed was driving towards him. I find that there was no such car. Mark also testified that he heard a woman screaming at other cars travelling on Ridgewood to stop. I find that the defendant did not exit her car following the collision and no other female was present at the scene of the collision.

[124] I find that Mark experienced confusion following the collision.

• Mechanics of the Collision

[125] Mark was struck by a vehicle travelling at a speed of at least 25 to 30 kph (based on the range provided by the defendant over time). Mark landed on the pavement, possibly after being thrown some distance from the point of impact. Drs. Mendella and Judge concur in their respective opinions that the acceleration-deceleration forces that Mark would have experienced in the collision are sufficient to cause an mTBI.

[126] I find that the acceleration-deceleration forces that Mark would have experienced in the collision are sufficient to cause an mTBI.

• Evidence of Expert Witnesses

[127] Neuropsychologists, Drs. Mendella and Judge were both qualified to give evidence in the fields of clinical psychology, clinical neuropsychology, and clinical rehabilitation psychology. They were both also qualified to give evidence with respect to causation (cause of post-collision condition), pre-collision diagnoses, post-collision diagnoses, post-collision condition, and prognosis.

[128] Dr. Mendella was qualified to give evidence with respect to Mark’s “current condition”. That phrase was not included in the qualification of Dr. Judge. The difference in the wording of the respective qualifications is not significant to my consideration of their testimony.

[129] Although Dr. Mendella was qualified as a litigation expert, I note the following. First, Mark was initially referred for neuropsychological testing by treating neurologist, Dr. Robert Giaccone. At the time of the referral, Dr. Giaccone’s impression was that Mark may be suffering from dementia.

[130] Second, a follow-up neuropsychological evaluation carried out in 2016 was done on the basis of Dr. Mendella’s recommendation; it was not requested by plaintiffs’ counsel. Dr. Mendella recommended the follow-up neuropsychological evaluation to (a) monitor Mark’s status because of the complexity of his case, and (b) potentially clarify the diagnostic picture.

[131] As has already been noted, there are a number of points on which Drs. Mendella and Judge concur. They disagree, however, as to whether Mark suffered an mTBI. Dr. Mendella is of the opinion that Mark suffered such an injury; Dr. Judge’s opinion is that he did not.

[132] Where Drs. Mendella and Judge disagree, I prefer the evidence of Dr. Mendella. I do so for the following reasons.

[133] First, Dr. Mendella’s neuropsychological evaluations were more comprehensive than Dr. Judge’s in terms of (a) number of evaluations, (b) detail in the history taken from Mark during the interview process, (c) variety of psychometric testing performed over time, (d) degree of specificity of psychometric testing performed, (e) understanding of the significance of results of the psychometric testing (for example, with respect to variability scores), and (f) collateral interviews of Jocelyn (in addition to the interviews with Mark).

[134] Second, on cross-examination, Dr. Judge acknowledged that a statement made in his report, with respect to symptom amplification by Mark, was false. In his report, Dr. Judge opined that measures of psychosocial function indicated a “high level of symptom amplification”. When taken through the measures upon which that opinion is based, Dr. Judge admitted in cross-examination that (a) in fact the risk of symptom amplification was “small”, and (b) the statement otherwise in his report was false.

[135] Third, in support of his evidence that recent literature suggests that recovery from mTBI may take less than three months, Dr. Judge relied on an article published in 2008. In cross-examination, Dr. Judge acknowledged that (a) there is only one reference in the article to recovery period from mTBI, (b) the stated recovery period is with respect to athletes and otherwise healthy adults, and (c) the contents of the article do not apply to Mark’s situation.

[136] Fourth, it is apparent that Dr. Judge lacked understanding of Mark’s level of function subsequent to the collision—including in the year or two leading up to the date of the trial. Dr. Judge’s view of Mark’s post-collision function is much greater than the level described by any number of the witnesses who testified as to Mark’s day-to-day activities (or inactivity). I agree with the submission on behalf of the plaintiffs that Dr. Judge appears, at times, to confuse Mark’s pre-collision level of function with his post-collision level of function.

[137] The plaintiffs request that I find that Dr. Judge was biased in his testimony and an advocate for the defence positions. The specific and general concerns that I have with respect to Dr. Judge’s testimony are not sufficient to support a finding that he was either biased or an advocate for the defence positions. As already noted, Dr. Judge concurred with Dr. Mendella on a number of points. In addition, during cross-examination he agreed with a number of points presented to him.

• Summary

[138] I find that Mark suffered an mTBI as a result of the collision. I turn to the other injuries and conditions the plaintiffs allege that Mark suffered as a result of the collision.

d) Post-Concussion Syndrome/Somatic Symptom Disorder

[139] Once again, the nature and complexity of Mark’s pre-collision condition plays a role in the positions taken respectively by the plaintiffs and the defendant as to the cause of the physical, cognitive, emotional, and psychological symptoms Mark has been experiencing since the date of the collision:

• The plaintiffs’ position is that Mark’s constellation of symptoms is the result of post-concussion syndrome (following the mTBI) or, in the alternative, of somatic symptom disorder (arising from an orthopaedic injury). The plaintiffs’ submit that regardless of whether Mark is suffering from post-concussion syndrome or somatic symptom disorder, the condition is entirely collision-related.

• The defendant’s position is that Mark’s constellation of symptoms was present before the collision and is caused by one or more of Mark’s pre-collision conditions. The defendant denies that the collision caused or contributes to the suggested constellation of symptoms.

[140] I find that Mark suffers from somatic symptom disorder and that the constellation of symptoms is materially contributed to by the collision. I make that finding for the following reasons.

• Early Diagnosis of Post-Concussion Syndrome is Unreliable

[141] In the medical records subsequent to the date of the collision there is early mention of post-concussion syndrome: an emergency department record prepared by Dr. Roozveh Matin of the Winchester District Memorial Hospital (“WDMH” and Exhibit 9, Tab 23). Dr. Matin was called by the plaintiffs in the capacity of a participant expert. He was qualified to give opinion evidence with respect to the diagnosis and treatment of acute care and trauma patients.

[142] Mark attended the WDMH emergency department in mid-March 2012, approximately two months after the date of the collision. Based on Mark’s reporting of symptoms such as chronic headaches and cognitive deficits, and taking into consideration the details provided of Mark’s pre-collision conditions, Dr. Matin diagnosed Mark as suffering from post-concussion syndrome. He also recommended that Mark follow up with his family doctor as might be required.

[143] Dr. Matin acknowledged that he has no specific memory of seeing Mark in the emergency department. When testifying, Dr. Matin was given leave to rely on notes he made at the time of the examination and assessment. He acknowledged that the amount of time spent with Mark was relatively brief—in the order of ten minutes.

[144] I found Dr. Matin to be fair and thorough when providing evidence based on his notes. He was clear in identifying the purpose of his assessment at the time: to rule out any acute concerns regarding the patient’s condition. He acknowledged that in his brief time with Mark, he did not exhaustively rule out any conditions other than post-concussion syndrome that might mimic the symptoms of that syndrome.

[145] I find that the nature, purpose, and duration of Dr. Matin’s examination of Mark are such that his diagnosis of post-concussion syndrome is not definitive. Nor is that diagnosis sufficiently reliable to support a finding that, on a balance of probabilities, Mark is suffering from post-concussion syndrome.

• Somatic Symptom Disorder

[146] The majority of the evidence upon which I rely with respect to the cause of Mark’s constellation of symptoms is from the two neuropsychologists, Drs. Mendella and Judge.

[147] Based on the two evaluations he conducted, Dr. Mendella concluded that Mark is suffering from somatic symptom disorder. Dr. Mendella described that disorder as involving a “vicious cycle” of psychological symptoms that enhance Mark’s pain experience and, in turn, result in decreased cognitive function. The cycle works in reverse, with physical pain leading to psychological symptoms and, in turn, decreased cognitive function. Dr. Mendella described each of the elements of the cycle as feeding off of and maintaining one another.

[148] Dr. Mendella explained that Mark’s complex pre-collision condition was comprised of many vulnerability factors that contributed to a complicated and incomplete recovery from the injuries sustained in the collision. Those vulnerabilities include anxiety, depression, hypothyroidism, sleep apnea/disruption, a pain condition, and sarcoidosis. Dr. Mendella expressed the opinion that with the mTBI added to the complex set of pre-collision conditions, it is unrealistic to expect that Mark would experience an uncomplicated and complete recovery from the injuries he suffered as a result of the collision.

[149] Dr. Judge agreed with that aspect of Dr. Mendella’s evidence.

[150] On cross-examination, Dr. Judge acknowledged that the more complicated a person’s medical history is prior to experiencing an mTBI, the more vulnerable the individual is to a negative outcome and the less adept the individual is at dealing with trauma. Dr. Judge agreed that because of the multiplicity of pre-collision conditions, Mark was a significantly vulnerable individual in terms of an incomplete recovery from the injuries suffered. Dr. Judge added that the obsessive-compulsive traits he identified in Mark are consistent with a personality type that is not very resilient to trauma.

[151] Dr. Mendella’s evidence is that “but for the [collision] we would not have the overall presentation that we see nor would we have the overall functional impairments that we see.” Dr. Mendella gave that evidence in examination-in-chief and on re-examination. Dr. Mendella’s opinion in that regard did not waiver, even after being presented in cross-examination with some inconsistencies in reporting by Mark as to his condition.

[152] In cross-examination, Dr. Mendella acknowledged inconsistencies in Mark’s reporting as to his condition from time to time. Dr. Mendella’s opinion is that the inconsistencies are not indicative of goal-oriented behaviour (i.e. a deliberate attempt on Mark’s part to portray himself as impaired). In support of that opinion, Dr. Mendella relies on the results of the performance validity measures included in the psychometric testing: Mark passed those measures. Dr. Mendella did not observe any consistent and compelling evidence that Mark was deliberately attempting to misrepresent himself.

[153] As to Mark’s level of function, Dr. Mendella testified that, because of the somatic symptom disorder, Mark experiences difficulty in initiating activities, persisting at activities once commenced, and pacing himself; catastrophic thoughts of pain experience lead to withdrawal from activities. To the extent that there is any participation in activities, the quality of Mark’s participation is limited.

[154] Dr. Mendella’s opinion is that Mark’s prognosis is poor. Mark has the potential to experience mild improvement with respect to his psychological and cognitive function. Otherwise, the goal is for Mark to maintain his current level of function and quality of life.

[155] Dr. Judge agrees with Dr. Mendella in the diagnosis of somatic symptom disorder. He is of the opinion, however, that the somatic symptom disorder pre-dates the collision. Once again, I prefer the evidence of Dr. Mendella to that of Dr. Judge. Dr. Judge’s consideration of the evidence available with respect to Mark’s pre-collision and post-collision level of function, respectively, falls short of Dr. Mendella’s consideration of that evidence:

• Dr. Mendella conducted two lengthy interviews of Mark and interviewed Jocelyn. Dr. Judge conducted a single interview of Mark alone;

• Dr. Mendella considered the documentary evidence with respect to Mark’s pre-collision condition to a greater extent than did Dr. Judge; and

• When interviewing Mark, Dr. Judge did not make specific inquiries for clarification of information with respect to Mark’s pre-collision condition.

[156] In summary, I find that Mark suffers from somatic symptom disorder as a result of the collision.

[157] The lay witnesses, including Mark’s family members and friends, gave evidence as to their observations of the changes in Mark’s function subsequent to the date of the collision. Their evidence in that regard is relevant to a number of the injuries Mark is alleged to have suffered. Their evidence is summarized below, and is relied on in support of findings made with respect to somatic symptom disorder, a number of the other injuries Mark is alleged to have suffered, and the plaintiffs’ respective claims for general damages.

• Evidence of Lay Witnesses

[158] The evidence as to Mark’s pre-collision level of function includes the testimony from Mark, Jocelyn, Joseph, and a number of family members and friends. The same individuals testified as to their respective observations of the changes in Mark and in his level of function subsequent to the collision.

[159] James Hutchinson came to know Mark in the 1990’s through their work together at the church in Cornwall. Mr. Hutchinson is self-employed as a construction contractor in the Cornwall area. I found Mr. Hutchinson to be fair in his characterization of his relationship with Mark throughout the years.

[160] Mr. Hutchinson testified that prior to the collision Mark was capable of participating in activities, pacing himself during heavier physical activities. Mr. Hutchinson described Mark as (a) fun to be around, (b) someone who enjoyed making others laugh, (c) trying to find happiness despite what he was going through, and (d) a person of faith. Photographs of shared activities dating from 2007 through 2009 (Exhibit 21) show Mark in a way that is in keeping with Mr. Hutchinson’s description of his friend.

[161] Mr. Hutchinson and Mark pursued activities together such as fishing, jet-skiing, and snowmobiling. Over time, the Rolley and Hutchinson families began to spend time together, including on vacation. Mr. Hutchinson testified that as Mark’s health problems became more serious (i.e. in the first decade of this century), he did what he could to be a supportive friend. During his testimony, Mark expressed significant gratitude for the friendship extended to him and to his family by Mr. Hutchinson, both pre-collision and post-collision.

[162] Mr. Hutchinson testified that subsequent to the collision, he realized that he needed to change how he handled situations with Mark. For example, Mark is no longer capable of some of the outdoor activities the two men once shared, such as snowmobiling. Their shared activities now include seeing a movie every couple of months. On those occasions, Mark forgets how to get to Mr. Hutchinson’s home or, when they are driving together, where they are going.

[163] In terms of demeanor or personality, Mr. Hutchinson testified that Mark is now much more subdued than he was prior to the collision. Mr. Hutchinson finds that Mark is unable to respond quickly and is easily side-tracked in conversation. Mr. Hutchinson described Mark’s post-collision story-telling as “bizarre”. The stories told do not seem to Mr. Hutchinson as if they could have happened. It appears to him that Mark is fabricating things in order to weave a story together.

[164] Mr. Hutchinson testified that prior to the collision he did not observe Mark experience difficulties with memory. Mr. Hutchinson has, since the collision, observed Mark experience such difficulties; although Mr. Hutchinson could not say when he first began to observe them.

[165] The relationship that Mr. Hutchinson described having with Mark prior to the collision was one between two adults who were respectful of one another’s privacy and mutually supportive. Mr. Hutchinson was aware of Mark’s pre-collision diagnoses of physical conditions. He was not aware that Mark had suffered from depression and fatigue.

[166] I found Mr. Hutchinson to be forthright and credible. He was not defensive about his lack of knowledge as to Mark’s complete pre-collision health history. That lack of knowledge is in keeping with the nature of his friendship with Mark.

[167] Dan Edwards is Jocelyn’s brother and therefore Mark’s brother-in-law. Mr. Edwards testified with respect to changes he observed in Mark generally and how those changes affected the Rolley family.

[168] Mr. Edwards’ observation as to the changes in Mark subsequent to the collision include that Mark no longer takes the lead role at family functions. Mark is not involved intellectually in conversations and absents himself to have a nap.

[169] Mr. Edwards testified that the changes in Mark have had a significant impact on the relationship between the two men. Prior to the collision, Mr. Edwards was able to turn to Mark for support and guidance. He is no longer able to do so. He described Mark as “intellectually a shadow of his former self” and someone whose emotional capability is decreased.

[170] In cross-examination, Mr. Edwards acknowledged that he was aware prior to the collision of a number of Mark’s diagnoses (i.e. skin cancer, neck pain, back pain, restless leg syndrome and depression). Mr. Edwards agreed that these various conditions were “pretty serious”, affected Mark regularly, and affected some of Mark’s activities. He testified that even though Mark had problems, he would put his best foot forward; Mark did not want to be the centre of attention if he was having a bad day.

[171] Mr. Edwards’ evidence is that prior to the collision he did not observe Mark experiencing memory problems—whether due to pain, fatigue, or depression. He was forthright in acknowledging that he does not personally know when Mark began to experience memory problems; he can only say that he first observed such problems subsequent to the date of the collision.

[172] Mr. Edwards testified that Mark and Jocelyn are his lifelong best friends. They are the reason he moved from London, Ontario, to Morrisburg, Ontario approximately 13 years ago. Not surprisingly, Mr. Edwards’ testimony had an emotional quality to it. That quality does not detract from Mr. Edwards’ credibility. He did not attempt to portray his evidence as anything other than personal observations. Those observations are in keeping with the description of Mark given by other witnesses. Mr. Edwards did not appear to be exaggerating Mark’s role within the family prior to the collision or the diminishment of that role since the collision.

[173] Three of the Rolley children gave evidence. The Rolleys’ oldest son Ben (now 26 years old) testified that he was aware, prior to the collision, of Mark experiencing pain. Ben described his father as doing “a good job of hiding it”. He acknowledged that his father was required to pace himself at times. Ben succinctly stated his view of his father’s pre-collision condition as follows: “He wasn’t Superman, but he was still Dad at that point”.

[174] Ben testified that the changes in his father since the collision are such that:

• It is no longer any fun to play video games with his father. Mark is not making any progress with his game-playing, is overly competitive, and becomes frustrated;

• Ben is no longer able to have a meaningful conversation with his father, including about work and other subjects;

• Mark is upset generally, appears to have lost self-confidence, and isolates himself from the family; and

• Ben now does more of the work around the house (when he is home from school/work), including any tasks for which balance is required.

[175] I found Ben to be spontaneous in his responses regardless of by whom he was being questioned. He was appropriately firm in cross-examination when adhering to answers previously given. He did not appear to exaggerate his father’s pre-collision abilities.

[176] The second of the three Rolley children to testify was Angel Paupst. Angel is now 25 years old and has two children of her own (born in 2013 and 2015). Angel lived in the Rolley family home from November 1997 until September 2012. She describes herself as being “morally adopted” by the Rolleys.

[177] Angel’s observations of the changes in Mark subsequent to the collision are consistent with the changes observed by others. Like Ben, she acknowledged being aware prior to the collision of Mark’s pain condition. She observed that Mark was affected by it daily. Angel testified that Mark managed his pain by pacing himself, taking breaks, and completing activities bit-by-bit. Her evidence is that even on a bad day prior to the collision, Mark would participate in activities with the children—pacing himself as required.

[178] Prior to the collision, Angel was not aware of any problems that Mark had with memory or concentration. She acknowledged in cross-examination that, by her observation, Mark’s difficulties with memory have occurred over time and slowly increased since she first became aware of them.

[179] Angel described Mark’s limitations in interacting with his grand-daughter (born in 2013) and grandson (born in 2015). Mark is unable to play with the children for more than five minutes. Mark appears to be overwhelmed by the noise made by the children and the energy they require; Mark leaves the room and retreats to be on his own.

[180] Angel testified that her relationship with her father began to change in February and March 2012. She gradually became less close to Mark over time because he was unable to deal with events occurring in her life. Their conversations are now reduced to small talk, such as the weather. Angel’s evidence is that Mark struggles to explain things; Mark appears to be scattered in his thoughts.

[181] Joseph Rolley was the third of the three Rolley children to testify. He is the only Rolley child advancing a claim pursuant to the FLA. Joseph is the only one of the three children who testified at trial who (a) was living at home at the date of the collision, and (b) continued to live at home as of the date of trial. As of January 2012, Joseph was 12 years old and in Grade 7. He was 18 years old and in high school when he testified at trial.

[182] Despite his relative youth, Joseph was a compelling witness. I found him to be insightful about the changes in his father. Joseph described that prior to the collision, his father would be the life of events held by the small church group to which the Rolley family belonged. Subsequent to the collision, Mark became repetitive in conversation. It appears to Joseph that members of the church group now laugh at Mark, rather than at Mark’s jokes. The Rolley family no longer participates in the small church group events. Instead, they go to Mr. Edwards’ home following church on Sunday.

[183] Joseph testified that since the collision, his father appears not to listen to or be interested in others during conversations. In addition, or in any event, Mark forgets what people say.

[184] Joseph’s evidence is that his father is limited in his ability to handle technology, including video games. On a number of occasions, Mark expressed his belief that others playing online video games with him are cheating. Joseph has seen online comments about Mark’s poor quality of play. Joseph testified that in fact, his father does not play the video games well, despite having played the same game for years.

[185] Joseph testified that it is difficult to provide assistance to Mark when it comes to technology. Mark only occasionally accepts help. Joseph believes that Mark still wants to feel smart and accomplished.

[186] Joseph’s evidence is that he did not notice that Mark had problems with his memory prior to the collision. All Joseph noticed was his father’s pain condition. Subsequent to the collision Joseph noticed that his father experienced problems with his memory. Joseph cannot say that his father’s memory has gotten worse over time; it is a matter of Joseph noticing the memory problems more over time.

[187] I found Joseph to be articulate and considered in his responses. He was even-handed and did not exaggerate in terms of his understanding of Mark’s level of function prior and subsequent to the collision.

[188] Collectively, Ben, Angel, and Joseph presented as thoughtful and considerate young adults. I found them each to be credible witnesses. For example, they each acknowledged that they were unable to pinpoint when they first began to notice their father’s difficulties with his memory. From their testimony, it is clear that they are each, in their own way and given their respective stages of life, doing what they can to adapt to the changes in Mark they have each observed.

[189] Jocelyn’s evidence as to the changes in Mark and in his level of function since the collision is consistent with that of the other lay witnesses. Her evidence with respect to how those changes have affected the couple’s relationship is set out below.

[190] I continue with the other injuries Mark is alleged to have suffered as a result of the collision.

e) Adjustment Disorder and Major Depression

[191] Drs. Mendella and Judge gave evidence with respect to these two conditions. Dr. Mendella diagnosed Mark as suffering from an adjustment disorder following the collision. He bases this diagnosis on Mark’s inability and/or difficulties in dealing with the cognitive limitations he has experienced since the collision.

[192] Dr. Judge did not diagnose Mark as suffering from an adjustment disorder. He concluded that Mark is not experiencing any residual psychological impairment as a result of the collision.

[193] Dr. Mendella also diagnosed Mark as suffering from a recurrence of his major depression that had, prior to the collision, been in remission. Dr. Judge is of the opinion that as of 2017, when he examined Mark, the major depression was in remission.

[194] For the reasons set out in an earlier section of these reasons, where Drs. Mendella and Judge disagree, I prefer the evidence of Dr. Mendella to that of Dr. Judge. I accept Dr. Mendella’s evidence that the adjustment disorder contributes to anxiety and excessive worry on Mark’s part. I also accept Dr. Mendella’s evidence that the depression from which Mark suffers may, from time to time, contribute to one or more of difficulty in initiating activities, following through on activities undertaken, enjoyment of activities, increased irritability, frustration, anger, and increased fatigue.

[195] I find that as a result of the collision Mark suffers from an adjustment disorder and experienced a recurrence of the major depression that was otherwise in remission prior to the collision.

f) Post-Traumatic Headaches

[196] Treating neurologist, Dr. Giaccone was called as a witness by the defendant. Dr. Giaccone testified that, following the collision, Mark’s family physician referred Mark for investigation of complaints of headaches and a potential head injury.

[197] Dr. Giaccone expressed the opinion that Mark developed post-traumatic headaches as a result of the collision. That diagnosis was made in May 2012, at the first of a number of appointments Mark had with Dr. Giaccone in the years subsequent to the collision. Dr. Giaccone based that diagnosis on the occurrence and nature of the collision. With respect to the latter, Dr. Giaccone highlighted that upon being struck by the defendant’s vehicle, Mark fell to the ground from a height.

[198] Mark continued to see Dr. Giaccone on occasion, until late 2015, for investigation of a number of symptoms. At no time did Dr. Giaccone alter or retract his diagnosis of post-traumatic headaches. Dr. Giaccone testified that his diagnosis of post-traumatic headaches stands alone; it is not a diagnosis that required confirmation through, for example, subsequent neuropsychological testing.

[199] From the perspective of a treating physician, Dr. Giaccone explained that the development of the headaches appeared to be temporally related to the collision. He did not, as a result of any subsequent investigations, rule out the collision as a cause of the headaches.

[200] I find no reason to question Dr. Giaccone’s credibility. He was direct in answering all questions posed of him. He did not readily agree to every point presented to him in cross-examination by the plaintiffs’ counsel. I accept the evidence of treating neurologist Dr. Giaccone as it relates to the diagnosis and cause of post-traumatic headaches.

[201] Dr. Faris testified that Mark (a) suffered from headaches prior to the collision, and (b) no longer suffers from post-traumatic headaches. In cross-examination, Dr. Faris acknowledged that (a) Mark’s pre-collision reporting of headaches, of which he is aware, is limited to three occasions in a 15-year period, (b) the three occasions occurred in a nine-month period from June 2009 to February 2010, and (c) in the records for the first year following the collision there are nine references to a complaint of headaches.

[202] The pre-collision records upon which Dr. Faris based his opinion in comparing the pre-collision and post-collision headaches are not in evidence; they were not filed as part of the defendant’s case. Dr. Faris’ opinion with respect to the cause and duration of Mark’s post-collision headaches is therefore not supported by the evidence before the court and is not admitted as evidence. There are, in any event, other reasons why Dr. Faris’ evidence on this point is rejected (see “Exacerbation of Chronic Pain Condition”, below).

[203] I find that as a result of the collision Mark developed post-traumatic headaches.

g) Exacerbation of Pre-Existing Chronic Pain Syndrome

[204] In the years prior to the collision, Mark was diagnosed with fibromyalgia and ultimately sarcoidosis. Two litigation experts gave evidence with respect to Mark’s chronic pain condition: Drs. Smith and Faris. They agree that, as a result of the collision, Mark experienced an exacerbation of his chronic pain condition. They do not agree as to either the nature or the duration of the exacerbation:

• Dr. Smith’s opinion is that the exacerbation has not resolved. Dr. Smith highlighted Mark’s persisting inability to manage his chronic pain condition in the same way that Mark had managed that condition prior to the collision. Dr. Smith’s evidence is that because of cognitive deficits resulting from the collision, Mark is no longer able to reliably take pain medication or to pace himself (as he had prior to the collision); and

• In Dr. Faris’ opinion, the exacerbation was short-lived and resolved. That opinion is based in part on Dr. Faris’ view of Mark’s pre-collision condition: that it was unstable and not well-controlled.

[205] As I have already indicated, I found Dr. Smith to be credible and forthright. He acknowledged shortcomings in his knowledge of Mark’s pre-collision condition (i.e. as to when Mark ceased or reduced his participation in various activities). He also acknowledged that he is unable to precisely identify the extent to which there were changes, if any, to the manner in which Mark’s condition fluctuated after the collision (in comparison to fluctuations prior to the collision).

[206] For those reasons, and because of my concerns with respect to of Dr. Faris’ testimony, discussed immediately below, I rely on the evidence of Dr. Smith with respect to the exacerbation of Mark’s chronic pain condition.

• Evidence of Dr. Faris

[207] The qualification of Dr. Faris as an expert witness was relatively brief; there was no cross-examination. This qualification process followed a pattern that had developed over time (in particular subsequent to the discharge of the jury). When possible, counsel agreed prior to the qualification process, as to the wording of the qualification ruling the court would be requested to make.

[208] Dr. Faris was qualified as a litigation expert (a) in the field of physical medicine and rehabilitation, and (b) to give opinion evidence with respect to causation, pre-collision diagnoses, post-collision diagnosis, present condition, future condition, and future treatment—all related to Mark’s injury-related physical impairment including traumatic brain injury, musculoskeletal matters, and chronic pain.

[209] The concerns with respect to Dr. Faris’ testimony did not arise at the qualification stage; the concerns arose both during examination-in-chief and cross-examination. Regardless of timing, because of the court’s gatekeeping function, it is incumbent on the court to carry out a cost-benefit analysis with respect to Dr. Faris’ testimony. The Ontario Court of Appeal describes this aspect of the court’s function as a “discretionary gatekeeping step” (Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 414 D.L.R. (4th) 65, at para. 36).

[210] I have both general and specific concerns with respect to Dr. Faris’ testimony. My first general concern is Dr. Faris’ practice of not taking comprehensive notes during the interview portion of a defence medical examination. In keeping with that practice, Dr. Faris does not have any notes from his interview of Mark.

[211] While Mark answered questions during the interview portion of the defence medical examination, Dr. Faris wrote “cues”, not notes, upon which he relied later in dictating his report. The cues consist of single words, statements, and acronyms that might be organized or might be scattered on a page. Dr. Faris uses the same approach in his clinical practice—on cues only to dictate his clinical records.

[212] For the physical examination part of the evaluation, Dr. Faris followed his practice of recording only abnormal findings. In some circumstances, he records a number only; the meaning of the number is clear only to him.

[213] Dr. Faris described the cues and other records made as a “tool” for dictation. Dr. Faris acknowledged that if the pages were still available he would not necessarily be able to decipher them now; the cues are neither structured nor elaborate enough to be a record of the encounter.

[214] Relying on the cues, Dr. Faris dictated his report on the night following the day on which he interviewed and examined Mark. The invoice for Dr. Faris’ work identifies that he spent seven hours dictating the report. He testified that the entire report was dictated in one session subsequent to the examination.

[215] The concerns with respect to Dr. Faris’ practice go beyond the issue of the quality of his note-taking; the concerns extend to what he did with his cues and other notes. Once Dr. Faris had dictated his report, he shredded the pages on which he wrote the cues from the interview with Mark.

[216] At paragraph 25 of its decision in Bruff-Murphy, the Court of Appeal described the trial judge as “highly critical” in his analysis of the evidence of an expert witness called by the defendant. The criticisms included the expert’s practice of “discarding any notes he may have made during his interview of [the plaintiff] as to what she allegedly told him” (para. 25).

[217] My second general concern with Dr. Faris’ testimony is that for the purpose of his examination-in-chief, Dr. Faris prepared pages of handwritten notes in which he set out the evidence as he intended to give it. In essence, he had prepared a script. The notes are 25 pages in length. The existence of and reliance on the notes were identified part way through Dr. Faris’ examination-in-chief. The notes were made an exhibit (Exhibit 38) and Dr. Faris was cross-examined on their contents.

[218] The reliance on prepared notes alone is a concern. I am also concerned about Dr. Faris’ evidence as to how he made decisions with respect to the records or reports to which he would refer during his testimony. Dr. Faris attempted to portray, as something other than deliberate, the bases for his decision to exclude from his script a number of pre-collision records that (a) make reference to some stability in Mark’s condition, and/or (b) provide evidence that the post-collision cognitive difficulties Mark has been experiencing differ from the pre-collision cognitive difficulties, if any, from which Mark suffered.

[219] I reject Dr. Faris’ explanation in that regard. I find that Dr. Faris was deliberate in his approach to the contents of the prepared notes; he struck out references to records or reports that did not support his opinion.

[220] The two general concerns discussed above contribute to a third general concern: that Dr. Faris failed to understand his professional obligations.

[221] In cross-examination, Dr. Faris was referred to a Policy Statement by the College of Physicians and Surgeons of Ontario (Exhibit 36). Policy Statement #2-12 is titled, “Third Party Reports: Reports by Treating Physicians and Independent Medical Examiners”. That Policy Statement was approved in 2002, reviewed and updated in 2009 and 2012, and appears to have most recently been published in 2012 (i.e. three years prior to the year in which the defence medical examination was conducted by Dr. Faris).

[222] The introductory section of the Policy Statement includes the following paragraphs:

Third party reports may relate to a physician’s patient, or to individuals with whom physicians do not have a treating relationship. The request for the report may come from the physician’s patient directly, or from an external party, such as a representative from an insurance company or a lawyer.

The College acknowledges that the third party reports process often gives rise to unique issues that can be difficult to navigate. The expectations articulated in this document are intended to assist physicians in navigating these issues effectively, so that they are able to participate in the third party reports process in a manner that is respectful, objective and that uphold the reputation of the profession. The policy does not, however, provide an exhaustive catalogue of the totality of requirements that may apply to specific third party reports requests.

[223] I find that Dr. Faris’ reliance on cues, his failure to retain meaningful notes of the interview, and his failure to retain meaningful notes of the examination fall far short of preparation of a third party report “in a manner that is respectful, objective and that uphold[s] the reputation of the [medical] profession.”

[224] I also have a number of specific concerns with Dr. Faris’ testimony. The first such concern is with respect to the contents of a Consultation Note prepared by Dr. Grabowski and dated June 2011. Dr. Grabowski saw Mark at the Ottawa Hospital Pain Clinic, on referral from the Cancer Clinic.

[225] In her note, Dr. Grabowski states, “Mr. Rolley describes an approximately 15-year history of significant total body pain.” During his examination-in-chief, Dr. Faris identified that portion of Dr. Grabowski’s note as “one of the most significant areas of [Mark’s] past history”, adding that “there was really extensive documentation over many years of a pattern of wide-spread body pain.”

[226] In cross-examination, Dr. Faris acknowledged that he was unable to corroborate the statement made by Dr. Grabowski regarding a “15-year history of chronic pain”. Dr. Faris then testified that the reference to the 15-year history of chronic pain was not significant to his analysis on causation. Dr. Faris’ flip-flopping in his testimony, in particular on the critical issue of causation, is one of the specific concerns contributing to my conclusion that Dr. Faris was not objective when giving evidence.

[227] Dr. Faris’ lack of objectivity is also evident from the manner in which he testified with respect to the contents of the ambulance call report—in particular the lack of any record having been made at the scene of the collision of loss of consciousness or loss of awareness.

[228] Dr. Faris was dogmatic in (a) emphasizing the contents of the ambulance call report, and (b) refusing to acknowledge the potential lack of reliability of the contents of that report. By contrast, Dr. Judge, acknowledged the potential lack of reliability of the ambulance call report. Dr. Faris’ unwavering approach to the contents of this document is another factor in my conclusion that he was not objective when testifying.

[229] Like Drs. Mendella and Judge, Dr. Faris testified that a brief loss of consciousness is a factor in diagnosing mTBI. For Dr. Faris’ opinion to prevail, it was important that a finding be made that there was no reliable evidence of loss of consciousness. In his testimony, Dr. Faris expressed the opinion that Mark did not suffer an mTBI.

[230] Dr. Faris’ obligations as a defence medical examiner and a litigation expert testifying at trial do not end with the obligations quoted from the Policy Statement. On November 5, 2015, Dr. Faris executed a Form 53, Acknowledgement of Expert’s Duty. That is also the date on which the defence medical examination was carried out and on which Dr. Faris dictated his report.

[231] On the basis of the general and specific concerns discussed above, I find that Dr. Faris did not fulfill his obligation pursuant to para. 3(a) of Form 53: “to provide opinion evidence that is fair, objective and non-partisan”. That finding is determinative of whether the prejudicial effect of admitting Dr. Faris’ evidence outweighs the benefits of that testimony—it does. Exercising the court’s gatekeeper function, I exclude Dr. Faris’ evidence in its entirety.

[232] I turn to the evidence with respect to post-collision exacerbation of Mark’s chronic pain condition.

• Evidence of Exacerbation

[233] Dr. Smith testified that Mark’s pre-collision medical history included a number of longstanding, and at times overlapping and competing conditions. His opinion is that as of 2011, Mark’s level of disability was less than he would have expected it to be: Mark was managing his chronic pain; he was physically active, engaged in life, functioning quite well; and he was able to manage his condition mostly with medication.

[234] Dr. Smith described Mark’s pre-collision condition as being dominated by his chronic pain condition (primarily fibromyalgia with the sarcoidosis appearing to be resolving). To a lesser extent Mark was dealing with mood-related symptoms and to an even lesser extent with cognitive difficulties. Even with that mix of symptoms, Mark was able to gain enough control over his condition that he was able to have some quality of life.

[235] Dr. Smith testified that the pre-collision balance Mark had achieved between his symptoms and the treatment for them was disrupted by the collision. Mark has not, since the collision, been able to achieve this pre-collision balance between periods of flare-up and periods of stability.

[236] Dr. Smith testified that Mark’s post-collision prognosis for management of his pain condition is poor because:

a) Mark has, since the collision, experienced a significant increase in his overall level of pain;

b) Mark has gradually become de-conditioned;

c) Following the collision, new symptoms appeared in the form of neck pain and post-traumatic headaches; and

d) Cognitive difficulties contribute to Mark’s inability to regain control over his pain condition.

[237] Dr. Smith testified that of the four factors listed above contributing to the poor prognosis, the most important factor is the cognitive issues/deficits Mark has been experiencing since the collision. I find that the cognitive issues/deficits Mark has experienced since the collision are distinct from and/or more significant than the cognitive deficits he experienced prior to the collision. I also find that the collision-related cognitive issues/deficits contribute to Mark’s inability to manage his pain condition in the way that he did prior to the collision.

[238] In support of the opposite conclusion, the defendant relies on the contents of medical records dating back as much as a decade or more prior to the collision. By way of an example, the defendant relies on the contents of a 2008 clinical note of treating psychiatrist Dr. Khan. In that note, Dr. Khan states that Mark reported that if he does not get proper sleep, he finds that his memory is affected.

[239] The defendant also relies on the contents of the Questionnaires completed in 2008 and 2011. As I have already found, those documents (a) provide a snapshot as to Mark’s function at points in time in 2008 and 2011, and (b) are not framed in such a way as to generate responses regarding the extent to which the applicant is managing his or her particular conditions, limitations, and restrictions.

[240] When Mark was presented in cross-examination with the various notes and Questionnaires, he did not deny that he experienced difficulties with cognition prior to the collision. To the extent that his evidence in that regard is reliable, Mark testified that he experienced difficulties with cognition when he was lacking sleep and/or was in pain.

[241] I find that the medical records, Questionnaires and other documents upon which the defendant seeks to rely do not support the defendant’s theory with respect to pre-existing cognitive issues/deficits. I find that (a) the pre-existing cognitive deficits were in keeping with the various conditions with which Mark had been diagnosed over time, and (b) did not interfere in a significant way, if at all, with Mark’s ability to manage his overall condition prior to the collision.

• Summary

[242] The evidence of Dr. Smith and of the lay witnesses supports a finding, which I make, that as a result of the injuries sustained in the collision, Mark experienced an exacerbation of his pain condition.

h) Post- Traumatic Vision Syndrome

[243] The plaintiffs rely on the evidence of participant expert, Dr. Kristal Jeffries. She was qualified to give evidence (a) as an optometrist practicing in the fields of neuro-optometry and rehabilitative optometry, and (b) with respect to the diagnosis and treatment of visual deficits arising from traumatic brain injury.

[244] Dr. Jeffries testified Mark’s occupational therapist appears to have first identified Mark’s difficulties with his vision. Both the occupational therapist and, in turn, Mark’s treating optometrist (Dr. Joshua Smith) were concerned that Mark was experiencing conditions known as midline shift and convergence. Both professionals referred Mark to Dr. Jeffries.

[245] Dr. Jeffries’ evidence is that neither condition arises from a structural problem with vision per se. She defined “midline shift” as the brain processing visual space in an abnormal way and “convergence” as a person’s eyes turning in when the individual looks at nearby objects. Dr. Jeffries testified that convergence is the result of neuromuscular signals the brain sends to the eye to control the position of the eye.

[246] I was impressed by Dr. Jeffries as a witness. She was detailed in describing the various tests she carried out—including identifying objective versus subjective tests and the specific test results that were important to her diagnoses. In cross-examination, I found Dr. Jeffries to be appropriately firm when remaining consistent with her evidence-in-chief. She was fair when acknowledging features of Mark’s post-collision condition that might not be related to post-traumatic vision syndrome.

[247] Dr. Jeffries was careful to remain within the areas for which she was qualified to give evidence. For example, she did not stray into causation as relates to Mark’s post-collision condition. In cross-examination, Dr. Jeffries acknowledged that her evaluation was premised in part on her understanding that health professionals with the requisite expertise had diagnosed Mark with a traumatic brain injury as a result of the collision.

[248] Based on objective testing, subjective reporting by Mark, and review of the records available to her, Dr. Jeffries diagnosed Mark as suffering from five specific vision problems: a) extropia; b) convergence insufficiency; c) vergence dysfunction, d) oculomotor dysfunction, and e) visual midline shift. The five problems, when taken together, lead Dr. Jeffries to diagnose post-traumatic vision syndrome. Dr. Jeffries testified that these five problems present a “classic picture” of an individual who sustained a concussion and developed post-traumatic visual deficits.

[249] In cross-examination, Dr. Jeffries acknowledged that any one of the five conditions could occur in an individual who has not suffered a brain injury. As she had in examination-in-chief, however, Dr. Jeffries testified that the presence of all five conditions is “highly suggestive” of an individual who suffered a brain injury and has developed post-traumatic vision syndrome. On re-examination, Dr. Jeffries testified that none of the medications that Mark had taken and was continuing to take would account for the five conditions diagnosed.

[250] Dr. Jeffries acknowledged that the fields of neuro-optometry and rehabilitative optometry are relatively new. As a result, some of the testing that she performed with Mark is based on tests and scoring typically used for children with reading difficulties. One such example is the test of visual perception skills. Dr. Jeffries acknowledged that none of the norms relied on had been tested on adults; they were standardized for the population of average children.

[251] It was also Dr. Jeffries’ evidence that, for some of the tests, norms were set at an age that made it reasonable to rely on the tests when assessing an adult patient. For example, on the Grofman Visual Tracing Test a de minimus score is expected for individuals ages 12 and up (a category into which Mark falls).

[252] Dr. Jeffries testified that some of the tests carried out addressed potential malingering. Based on Mark’s test results, Dr. Jeffries had no concern that Mark was malingering.

[253] The evidence of Dr. Jeffries is uncontradicted. Despite shortcomings in tests available in the fields of neuro-optometry and rehabilitative optometry, I find the diagnoses of five separate conditions which, when taken together, constitute post-traumatic vision syndrome, to be compelling. I find that as a result of the collision, Mark suffers from post-traumatic vision syndrome.

i) Summary

[240] I find that but for the negligence of the defendant, Mark would not have sustained the injuries discussed in sections (c) through (h), above. The damages to which the plaintiffs are entitled are based, in part, on that finding. I say “in part”, because the figures set out in the various heads of damages assessed under Issue No. 3 below are all potentially subject to reduction, depending on the outcome of Issue No. 4 (crumbling skull versus thin skull) and of Issue No. 5 (failure to mitigate). In addition, the plaintiffs’ entitlement to damages is dependent upon the outcome of Issue No. 6 (threshold motion).

Issue No. 3 − To what damages, if any, are the plaintiffs entitled under each of the heads of damages claimed?

[241] In this section, I assess the damages to which the plaintiffs are entitled under the various heads of damages for which claims are advanced. I address contingencies, where applicable. The reduction, if any at all, to be made for the application of the crumbling skull principle is addressed separately under Issue No. 4. The final figures for the damages awarded under each heading are set out in the Disposition section below and in the spreadsheet attached as Appendix A.

a) Mark Rolley

i) General Damages

[242] As I have already noted, I find Mark to be a generally unreliable witness because of his admitted tendency, at times, to respond by confabulating. It would, however, be unfair to Mark to discount one aspect of his evidence because of that tendency. I find that Mark is able, without confabulating, to describe the impact the injuries suffered in the collision have had on how he perceives his role within the Rolley family. Mark’s evidence on this subject is corroborated by the evidence of the Rolley family members and of Dan Edwards.

[243] Mark testified that, in the overall picture prior to the collision, he was “still the dad”: he was a leader and a good father at home for his children. His evidence is that he had a good rapport with his children. That evidence is corroborated by the testimony of Ben, Angel, and Joseph.

[244] Mark’s evidence is that it has been difficult for him to accept that he will never return to the condition that he was in prior to the collision. Mark broke down when testifying as to his observations of the changes to his role within the Rolley family subsequent to the collision. He knows that he is no longer the “go-to” parent for his children. When the children call home, they want to speak to their mother. When the children are at home, they talk to their mother about meaningful subjects. Mark testified that, when he arrives at the Rolley home following an outing, he finds himself thinking that it is not his home.

[245] The man who withdraws from family gatherings and social events and who does not feel at home in his own house is vastly different from the man Mark was as of the date of the collision.

[246] For a number of decades prior to the collision, Mark faced a number of challenges and persevered. For example, he successfully transitioned from one career to another on two occasions. His most recent career change required that he return to school, away from his family, and as a mature student. He encountered difficulties in his early years as a teacher. He faced lengthy commutes to work and at times conflict with the administration. He continued in his profession, despite these challenges.

[247] Over the years, Mark demonstrated resilience in dealing with a number of serious health concerns. In 2008, he stepped away from his career because of a diagnosis of terminal melanoma. Although that diagnosis was subsequently changed to non-terminal, Mark received another serious diagnosis: sarcoidosis. That diagnosis contributed to Mark’s inability, prior to the collision, to return to work as a teacher.

[248] In the years leading up to the date of the collision, Mark found ways to manage his conditions, such that he was able to contribute to family life and the physical household.

[249] The plaintiffs rely on the decision of Hackland J. in Abel v. Hamelin, 2007 ONSC 17185, (Ont. S.C.) in support of the range submitted for Mark’s general damages. The plaintiffs submit that Mark’s post-collision condition is similar to that of Ms. Abel. She experienced an exacerbation of a pre-existing chronic pain condition. In addition, she suffered from depression. All of that was superimposed on pre-existing cognitive problems and resulted in significant disability.

[250] Ms. Abel was awarded general damages of $120,000. That award reflects a reduction for the finding by Hackland, J. that Ms. Abel’s pre-existing cognitive problems would have become a more significant problem in her life even without the accident. Hackland J. did not specify the percentage reduction applied to arrive at that figure. Regardless, his decision includes the application of the crumbling skull principle.

[251] The plaintiffs submit that when inflation is applied to the $120,000 awarded to Ms. Abel in 2007, it equates to $145,000 in 2018. The range for general damages proposed by the plaintiffs is $175,000 to $250,000.

[252] I assess Mark’s general damages for pain, suffering, and the loss of enjoyment of life at $190,000.

ii) Cost of Future Care and Services

• Background

[253] The plaintiffs’ claim for damages for the cost of future attendant care services is based on the opinion of occupational therapist, Rebecca Robertson that Mark requires a total of 4.22 hours of assistance in the form of attendant care throughout the day. No specific monetary value for the past and future attendant care services was identified in the plaintiffs’ opening statement. The claim for damages for past and future attendant care was said to be based on the “fair market value” for the services required.

[254] During the course of the litigation, the defendant did not request that Mark participate in a defence examination to address and permit the defendant to respond to Ms. Robertson’s specific recommendations. The defendant’s response to the claim for damages for cost of future care was to rely exclusively on the defence of causation. The defendant’s position is that whatever Mark’s attendant care needs may be, they are not the result of any injuries sustained in the collision.

[255] When this trial commenced in late 2017, the plaintiffs believed that the defendant’s third party liability limits were $2,000,000. The plaintiffs anticipated that their case would be determined by the jury before whom the trial commenced. The jury was not discharged until a number of weeks into the trial.

[256] Before the close of the plaintiffs’ case, the defendant’s insurer determined that the defendant had additional insurance coverage available to her. That coverage is in the form of an umbrella policy, providing an additional $3,000,000 in third party liability limits. The defendant has a total of $5,000,000 in third party liability limits available to her.

[257] The disclosure of the additional insurance coverage available to the defendant led to a number of mid-trial motions. The outcome of those motions included that the jury was discharged and the trial continued before judge alone (Rolley v. MacDonell, 2018 ONSC 508, 22 C.P.C. (8th) 152)). On the plaintiff’s motion for an order discharging the jury, the defendant was opposed to a mistrial being granted as an alternative to the relief requested by the plaintiff. Subsequent to the discharge of the jury, the defendant brought a motion for a mistrial; that motion was dismissed (Rolley v. MacDonell, 2018 ONSC 1403).

[258] In addition, the defendant was given leave to obtain evidence, limited in scope, in response to the claim for damages for cost of future care (Rolley v. MacDonell, 2018 ONSC 650). The defendant was not granted leave to have an occupational therapist prepare a report and testify in response to Ms. Robertson’s assessment of Mark’s attendant care needs at 4.22 hours per day. The defendant was granted leave to have an occupational therapist attend at the Rolley home to meet with Mark and Jocelyn and provide a report with respect to what became known as the “delivery model”.

[259] The term, “delivery model”, was used throughout the trial to describe the manner in which the 4.22 hours per day of attendant care would, on a practical basis, be provided. The plaintiffs anticipated that Ms. Robertson’s evidence would be that the attendant care services recommended would have to be spread throughout the day; as a result, a PSW is required in the Rolley home and/or with Mark for more than 4.22 hours per day.

[260] The defendant retained occupational therapist and life-care planner Bonnie Koreen. During a multi-week adjournment of the trial, Ms. Koreen met with Mark and Jocelyn in their home. Ms. Koreen prepared a report and gave evidence at trial on the issue of the delivery model.

[261] Ms. Robertson’s evidence that Mark requires 4.22 hours per day of attendant care is uncontradicted. The contentious issue is the delivery model pursuant to which Mark’s attendant care needs are to be met.

• Summary of the Claim for Future Care Costs

[262] Mark claims damages for the cost of future care as follows:

• Attendant care in the amount of $4,159,358.67 (15.5 hrs./day x 365 days/yr. x $34.41/hr. x 21.3657, the latter being the present value factor for life);

• Occupational therapy services totalling $6,240 plus travel costs;

• Vision therapy totalling $6,580; and

• Prism glasses at a cost of $511.20.

[263] I turn to the evidence of Ms. Robertson, Ms. Koreen, and other witnesses with respect to Mark’s future care needs.

iii) Attendant Care

• Number of Hours per Day

[264] Ms. Robertson testified in the dual capacity of practitioner expert and litigation expert. She was first assigned, through the Statutory Accident Benefits (“SABS”) process, to work with Mark in 2015. Commencing in late 2015, Ms. Robertson provided occupational therapy services to Mark. She saw Mark on a weekly basis, with each session lasting approximately two hours. Ms. Robertson estimates that she saw Mark for in excess of 65 sessions.

[265] Ms. Robertson’s role as a treating occupational therapist came to an end in the first half of 2017 because Mark had reached the limit of the funding said by his SABS insurer to be available for occupational therapy services.

[266] In early 2017, Ms. Robertson conducted an in-home assessment and reported with respect to her opinion of Mark’s future needs. That assessment involved meeting with both Mark and Jocelyn. In addition, Ms. Robertson reviewed the records, reports, and other documents provided to her by plaintiffs’ counsel.

[267] Ms. Robertson testified that the purpose of the in-home assessment was to provide a “big global photo” of what Mark was doing on a day-to-day basis. Her recommendations are based on her observations of Mark’s ability to carry out various tasks. Ms. Robertson’s evidence is that her observations were in keeping with the difficulties Mark reported to her during the therapeutic relationship.

[268] Ms. Robertson’s evidence is that the areas of concern in regard to Mark’s function giving rise to future attendant care needs are:

• Memory difficulties;

• Difficulty with planning;

• Distractibility;

• Inability to pace himself;

• An overall emotional state arising from Mark’s difficulties in accepting his “new self” and finding a way to return to his roles in the family; and

• Double vision.

[269] Ms. Robertson testified that based on her observations, fatigue plays a role in Mark’s ability to function—the more fatigued she observed Mark to be, the more cueing he required from her and the longer it took for him to complete a task. Ms. Robertson also observed the impact, on Mark’s function, of the cycle between decreased cognitive abilities and pain.

[270] Ms. Robertson’s evidence is that Mark requires cueing sporadically throughout each day to begin, pursue, and complete tasks. The tasks include preparation of simple meals, the selection of weather-appropriate attire, mobility when experiencing a flare-up of pain, daily projects involving the lawn, house, and children, and grocery shopping. Mark also requires cueing for personal administration tasks such as management of his medication, co-ordinating his schedule, attending medical appointments, and financial management.

[271] Ms. Robertson’s testimony includes a detailed review of the various compensatory strategies that were tried by Mark and the reasons why any number of them failed. Some of the strategies required Mark to be able to use a technological device. Other strategies were more routine—for example, reliance on a notebook. Ms. Robertson’s opinion is that Mark is unable to consistently apply compensatory strategies, whether they are technology-based or otherwise.

[272] The plaintiffs are not advancing a claim for damages related to the loss of Mark’s housekeeping abilities. Ms. Robertson’s evidence is that Mark is no longer able to do the four hours per month of housekeeping that he did prior to the collision. Ms. Robertson testified that the personal support worker (“PSW”) assisting Mark at home will, intermittently throughout the day, have time to do the heavier housekeeping that Mark otherwise would have done. As a result, the attendant care recommended includes time associated with cueing Mark only for the light housekeeping tasks of which he remains capable.

[273] Ms. Robertson was careful to point out that Mark does not need cueing in each area she has identified, every day of the week. When she totals the sporadic and, at times, random cueing and assistance Mark requires, it adds up to 4.22 hours per day (29 hours per week).

[274] In assessing Mark’s claim for damages for cost of future attendant care services, I have taken into consideration the following factors with respect to Ms. Robertson’s evidence. First, Ms. Robertson acknowledged that her recommendations do not in any way address causation.

[275] In cross-examination, Ms. Robertson testified that she did not look at Mark’s pre-collision needs and compare them to his post-collision needs. She acknowledged that other than being aware of the conditions with which Mark was diagnosed prior to the collision, she did not have specific information about how Mark was affected by those conditions. She was generally aware that Mark was affected by sarcoidosis.

[276] Second, Ms. Robertson did not review her recommendations with either Drs. Mendella or Smith. That deficiency is remedied, to some extent, by the evidence of each of Drs. Mendella and Smith:

• Dr. Mendella testified that Mark requires more structure and support in his day now than he did prior to the collision. If that structure and support were in place, Mark would be able to function to the best of his abilities.

• Dr. Smith testified that if some of his recommendations are followed (e.g. involvement in a program at a chronic pain clinic), Mark has the potential to achieve a modest degree of improvement; otherwise likely to change minimally or to deteriorate over time. Dr. Smith did not provide a percentage in terms of either the potential for improvement or the degree of improvement that might be achieved. Dr. Smith’s evidence is that even small gains can be meaningful to a person experiencing a chronic pain condition.

[277] Third, much like the CPP Documents, I find that the in-home assessment provides a snapshot of how Mark was functioning at the time of the assessment in 2017; Ms. Robertson referred to the 2017 snapshot as “a big global photo”. To some extent Ms. Robertson’s in-home assessment addresses the fluctuations in Mark’s condition. For example, Ms. Robertson’s evidence is that not all forms of assistance/cueing she identifies are required every day.

[278] Based on the results of the in-home assessment, Ms. Robertson’s interaction with Mark during the therapeutic relationship, and the evidence of Drs. Mendella and Smith, Mark, the Rolley family members, and Mark’s friends, I find that:

a) The attendant care services recommended by Ms. Robertson are required because of the injuries sustained in the collision;

b) There is medical and neuropsychological justification for the attendant care services recommended;

c) The 4.22 hours per day are moderate and fair; and

d) The attendant care services recommended are objectively reasonable and necessary for Mark’s particular circumstances. (See Gray v. Macklin, [2000] O.T.C. 866, at para. 45.)

[279] I turn to the issue of how the 4.22 hours per day of attendant care will be provided; in other words, the delivery model.

• The Delivery Model

[280] I find that the 15.5 hours per day of personal support worker services recommended by Ms. Robertson is excessive and unnecessary. I make that finding for the following reasons.

[281] First, on cross-examination, Ms. Robertson acknowledged that it would be possible for some of the services recommended to be grouped together and provided in a contiguous block; some activities can be carried out one after the other in the morning and similarly at night.

[282] Ms. Robertson’s evidence is that the following morning activities can be grouped together: dressing, cueing for medication, bed transfer, scheduling, and cueing for an activity. The time allotted by Ms. Robertson for those activities totals 87 minutes (using a mid-point of 45 minutes for cueing an activity). I find that it is reasonable for someone to be present for approximately two hours to assist Mark in the morning. Similarly for Mark’s night-time routine, I find that with certain activities blocked together, it is reasonable for someone to be present for one to two hours.

[283] Second, I find that it is neither necessary nor reasonable for a PSW to remain at the Rolley home throughout Mark’s entire waking hours. Mark’s evening routine can be completed at least an hour before he goes to bed. With the exception of Mark’s night-time routine of undressing for the day and taking medication, the tasks or activities with which he requires assistance would commence in the morning and otherwise end with tasks associated with the dinner meal.

[284] Third, I take into consideration Jocelyn and Joseph’s evidence, respectively, to the effect that Mark wants to feel independent and helpful in his role as father and husband. They each testified as to Mark’s resistance to being provided with assistance. I draw an inference and find that Mark would not be receptive to having an adult, whose sole purpose is to assist him, in the Rolley home for 15.5 hours per day.

[285] Fourth, the assistance Mark requires to manage the after-school routine of the four younger children will diminish with time. The nature of the assistance, if any, he requires with respect to the children will change over time; as will the time of day at which that assistance is required.

[286] I find that it is reasonable to provide Mark with a total of 10 hours per day of attendant care services. It will be up to Mark to determine how the services are provided—in a single block or in several blocks throughout the day. The reduction from 15.5 to 10 hours per day provides Mark with the assistance he requires throughout the day while allowing him to maintain some sense of independence. The reduction also allows the Rolleys to maintain a degree of privacy.

[287] Ms. Koreen’s evidence primarily addressed the potential for the Rolleys to secure the services of a PSW on a private-hire basis, at a lower hourly rate than that charged by an agency. I find that securing services through an agency, although more expensive than private hire, is reasonable. Reliance on an agency takes out of the Rolleys’ hands many of the logistical, organizational, and financial responsibilities associated with privately hiring a PSW.

[288] I find that it is Jocelyn, not Mark, who will be responsible for hiring the PSW to provide the attendant care services. It is not reasonable to require her to oversee and manage PSWs on a private-hire basis.

[289] Ms. Robertson’s evidence was that she secured hourly rates from service providers in the Cornwall area. I accept as reasonable, the range of hourly rates for PSW services identified by Ms. Robertson in her evidence: $27 to $33.90 per hour. Ms. Robertson testified that she does not know whether those hourly rates include HST.

[290] The plaintiffs rely on an hourly rate of $34.41 (including HST) for PSW services. By my calculation, the $34.41 is based on an hourly rate of $30.45 (the mid-point of Ms. Robertson’s range) plus $3.96 for HST. I find that an hourly rate of $34.41 is reasonable for the services of a PSW in the Cornwall area.

[291] I find that the Rolley family lifestyle is such that there is no reason to reduce the number of days per year on which Mark requires those services from 365 to a lesser number. In any event, when the Rolley family is away from home, Mark still requires the same attendant care services and a family member will be called upon to provide them. The issue of compensating a non-professional for attendant care services provided is discussed below in the section addressing Jocelyn’s claim for damages for past attendant care services provided.

[292] In summary, Mark’s annual attendant care needs are based on:

• 4.22 hours of attendant care services per day;

• The provision of those services for a total of 10 hours per day;

• An hourly rate of $34.41, inclusive of HST; and

• The provision of those services 365 days per year.

[293] I calculate the cost of Mark’s annual total attendant care needs to be $125,600 (10 x $34.41 x 365 = $125,596.50). The assessment of Mark’s damages for future attendant care costs does not end there. A present value factor is required and consideration must be given to whether to apply any contingencies when assessing damages for future attendant care costs.

• Present Value Calculation

[294] The only actuarial evidence presented at trial is that of Guy Martel. He was called by the plaintiffs.

[295] In arriving at a present value factor of 21.3657, Mr. Martel relied on the Canada Life Tables for life expectancy, without any adjustment whatsoever. Mr. Martel’s evidence is that without the benefit of a letter from a physician opining on the issue of life expectancy, he has no basis upon which to make an adjustment from the Canada Life Tables.

[296] Neither the plaintiffs nor the defendants called or filed any evidence addressing Mark’s life expectancy. There is no evidence before the court with respect to the extent, if any at all, to which Mark’s life expectancy is negatively affected because of either his pre-existing conditions or the injuries sustained in the collision.

[297] As a result, there is no evidence upon which to base a finding that the present value factor should be something other than that from the Canada Life Tables. I find that the present value factor of 21.3657 for life is the factor to be used in the calculation of future attendant care costs.

• Contingencies

[298] The next step in the assessment of Mark’s damages for the cost of future attendant care is to consider the contingencies, if any, to be applied. Account must be taken for the possibility that the estimated expenses will not be incurred (negative contingencies) and for the possibility that the expenses will actually be more than as estimated (positive contingencies).

[299] Contingencies fall into two categories—general and specific. In a frequently cited passage from his decision in Graham v. Rourke, Doherty J. addressed general contingencies ((1990), 1990 ONCA 2596, 40 O.A.C. 301 (C.A.), at para. 46, additional reasons at 1990 ONCA 7005, 75 O.R. (2d) 622 (C.A.), at 644):

[General contingencies are] not readily susceptible to evidentiary proof and may be considered in the absence of such evidence. However, where a trial judge directs his or her mind to the existence of these general contingencies, the trial judge must remember that everyone’s life has “ups” and well as “downs”. A trial judge may, not must, adjust an award of future pecuniary loss to give effect to general contingencies but where the adjustment is premised only on general contingencies, it should be modest.

[300] In the matter before me, there is no reduction made to the cost of future attendant care on the basis of the period over which the expenses will be incurred (i.e. for a reduced life expectancy). A modest reduction for general negative contingencies would not result in duplication in that regard.

[301] Nor would a modest reduction for general contingencies be duplication of the reduction, if made, for the application of the crumbling skull principle (Issue No. 4, below). The crumbling skull principle addresses the possibility that a plaintiff would, even without an accident, have been in the same condition as he finds himself after the accident. The crumbling skull principle does not address the possibility that, from the date of valuation forward, the future care expenses will not be incurred.

[302] No evidence was led by either the plaintiffs or the defendant with respect to contingencies—positive, negative, general, or specific. The claim for damages for future attendant care services is based on a single delivery model, with Mark remaining in the Rolley family home and receiving attendant care on a daily basis. No alternative, and potentially more costly, delivery models were presented as part of the plaintiffs’ case.

[303] I find that it is reasonable to apply a modest negative contingency in the assessment of Mark’s damages for cost of future attendant care. In a number of cases, 15 per cent has been found to be a modest negative contingency. The cases include circumstances in which no evidence was called with respect to the issue of negative contingencies: see Graham, at para. 64 and Gray, at para. 219.

[304] Although not described as a crumbling skull analysis, in Graham, Doherty J. highlighted the evidence in support of a finding that even without the subject accident, the plaintiff was susceptible to the possibility that, because of a pre-existing condition, she would not have been able to physically withstand the “bumps and strains” that are part of everyone’s existence (para. 58). I highlight that portion of the decision in Graham to emphasize that the application of the crumbling skull principle does not prohibit the application of a modest negative contingency (i.e. 15 per cent).

[305] I find that a reasonable, modest negative contingency of 15 per cent is to be applied to the damages assessed under cost of future care and future handyman services.

• Summary - Future Attendant Care

[306] Applying the present value factor of 21.3657 and a negative contingency of 15 per cent, I assess Mark’s damages for cost of future care to be $2,281,000 ($125,600 x 21.3657 x 0.85 = $2,281,002.13).

iv) Occupational Therapy Services

[307] Ms. Robertson’s evidence is that Mark would benefit from an additional 24 hours of occupational therapy services (12 sessions, two hours each, and $120 per hour).

[308] Based on Ms. Robertson’s evidence, I find that Mark would benefit from the services of an occupational therapist to assist him in re-learning some of the compensatory strategies that he learned during previous sessions with Ms. Robertson. Those sessions came to an end over a year ago. Based on Ms. Robertson’s evidence and the evidence of the lay witnesses who testified as to Mark’s reluctance to being provided with assistance, I find that the additional occupational therapy services would assist Mark in transitioning to having a PSW provide attendant care services.

[309] The two hours allotted for the occupational therapist’s services do not include any travel time. I allow an additional hour of travel (30 minutes on either side of each appointment). The Rolleys do not live in an urban setting close to available services.

[310] In summary, I assess the damages for the cost of future occupational therapy services in the amount of $5,760.

[311] The occupational therapy services are to be provided over a relatively short period and in the near future. I therefore do not discount the occupational therapy services for negative contingencies. I do not allow for HST over and above the $120. There is no evidence that HST is applicable to occupational therapy services.

v) Prism Glasses and Vision Therapy

[312] The plaintiffs’ motion for leave to amend the statement of claim includes the addition of the claim for damages for prism glasses and vision therapy. The defendant does not oppose the motion for leave; the defendant disputes that the requirement for either item arises from the injuries Mark sustained in the collision.

[313] The plaintiffs are granted leave to amend the statement of claim to include a claim for damages for the cost of prism glasses in the amount of $511.20 and for the cost of vision therapy in the amount of $6,580.

• Prism Glasses

[314] Mark has a pair of prism glasses for reading. His evidence is that they made a significant difference to not only his reading, but also to other activities. Dr. Jeffries testified that Mark would benefit from a second pair of prism glasses so that he also has a pair for distance.

[315] I find that Mark requires the second pair of prism glasses because of the post-traumatic vision syndrome from which he suffers as a result of the collision. I assess Mark’s damages for the cost of prism glasses at $511.20.

[316] The prism glasses are a one-time item. I therefore do not apply a negative contingency to that amount.

• Vision Therapy

[317] Dr. Jeffries also testified that Mark would benefit from 40 sessions of vision therapy (“VRT”), supported by home-based exercises. The therapy is intended to re-train the patient’s brain, based on principles of neuro-plasticity. The end goal is for the patient to more effectively and accurately control eye position and eye-tracking.

[318] VRT is provided by a technician. Dr. Jeffries sees the patient after every 10 therapy sessions. The VRT sessions cost $150 each. Each of Dr. Jeffries’ four sessions cost $145. No HST is added to either fee. The total cost of the services recommended is $6,580.

[319] Given my finding that Mark is experiencing post-traumatic vision syndrome, I find Dr. Jeffries’ recommendations with respect to VRT are reasonable. I assess the damages for the cost of VRT in the amount of $6,580.

[320] The intention is that the VRT be provided in the relatively near future. For that reason, I do not apply a negative contingency to the damages awarded for the cost of VRT.

vi) Handyman Services

[321] Mark claims for damages in the amount of $41,800 for loss of handyman services (rounded off from the plaintiffs’ figure of $41,803.77). The claim is based on Ms. Robertson’s opinion that Mark requires four hours per month of handyman services to replace the work he did prior to the collision. That work includes (a) home renovations, (b) snow removal, (c) maintenance of the interior and exterior of the home, and (d) maintenance of the family vehicles.

[322] Jocelyn testified as to Mark’s efforts to carry out handyman work in the period subsequent to the collision. Jocelyn described bathroom renovations commenced prior to the collision that remain unfinished because of Mark’s physical limitations and his inability to stay on task. Her evidence is that if Mark carries out work on one of the family vehicles, she will, in any event, take the vehicle to a garage to have the work checked. She is concerned about safety because of a number of significant errors made by Mark when repairing vehicles since the collision.

[323] Ms. Robertson described more generally Mark’s inability to complete work because he makes errors, becomes distracted, and/or fails to carry on with a task to completion. Her evidence that Mark requires four hours per month of handyman services is uncontradicted. I accept her recommendation in that regard as reasonable and find that the services recommended are necessary.

[324] I find that as a result of the injuries sustained by Mark in the collision, he is no longer able to carry out the handyman work that he did prior to the collision.

[325] Ms. Robertson testified that she carried out an Internet search to find a handyman in the Cornwall area. Based on her search she found the fees charged by individuals in the area are in the range of $50 to $65.

[326] Ms. Koreen’s evidence is that a reasonable range for handyman services is $22 to $38 per hour. She acknowledged that:

• At least one of the individuals upon whose hourly rate her range is based was no longer answering the telephone number for his business;

• Some of the hourly rates are from contracting companies as opposed to from an individual who is self-employed; and

• It is a challenge to find service providers in the area in which the Rolleys live.

[327] The plaintiffs have not provided a specific breakdown of their calculation of damages under this heading. The only present value factor about which there is evidence before the court is that for life: 21.3657. By my calculation, the $41,803.77 claimed under this head of damages represents $1,957 per year for life. That amount, if based on four hours per month (48 hours per year) of handyman services, is based on an hourly rate of approximately $40. I find that rate to be reasonable.

[328] For the reasons discussed above with respect to future attendant care services, I (a) rely on the present value factor of 21.3657 in assessing Mark’s damages for loss of handyman services and (b) apply a negative contingency of 15 per cent.

[329] I assess Mark’s damages for loss of handyman services at $35,530 ($41,800 x 0.85).

b) Jocelyn Rolley

i) General Damages

[330] I found Jocelyn to be thoughtful and considered in her testimony. On a number of occasions she expressed that it was difficult to testify with Mark present in the courtroom. Mark left the courtroom, at Jocelyn’s request, for portions of her testimony.

[331] Jocelyn was careful not to describe Mark as totally incapable in any sphere of his life. Even so, Jocelyn’s description, which I accept, of Mark’s level of function following the collision is that of a man who is no longer the husband or father he was prior to the collision.

[332] I find that as a result of the injuries Mark sustained in the collision, the relationship between Mark and Jocelyn has changed significantly:

• Meaningful conversation is no longer possible because of Mark’s cognitive difficulties, level of frustration, and preference for isolation;

• Mark is no longer able to support Jocelyn, as he did prior to the collision, in the operation of the household both in terms of the physical property and family responsibilities; and

• Mark is required to pace himself during most activities, whether personal, family, physical, or social in nature.

[333] I found particularly telling Jocelyn’s testimony with respect to one of the remaining activities the couple shares—occasional drives in the morning to have a coffee. With meaningful conversations no longer possible, the Rolleys often drive in silence. That silence brings to the fore Jocelyn’s sense of loneliness.

[334] I also take into consideration that at one point subsequent to the collision, Jocelyn found that she was no longer able to remain in the Rolley house with Mark. She left the home and stayed with her brother (Mr. Edwards) for a number of days. Jocelyn’s decision to leave the Rolley household, including the children, even for a few days, is indicative of the stresses and strains in her relationship with Mark.

[335] The plaintiffs submit that the losses Jocelyn has experienced are greater than those she would have experienced if Mark had died in the collision. The plaintiffs submit that not only has Jocelyn lost her life partner, she has become a caregiver to Mark. The extent to which Jocelyn is required to care for Mark is said by the plaintiffs to preclude Jocelyn from continuing on with her life.

[336] Yet, in at least one way, Jocelyn is continuing with her life: the Rolleys decided to adopt four children. The adoption process began after the collision and was completed in December 2017 with the formal adoption. In the adoption papers, Jocelyn is identified as the sole primary caregiver. I find that designation to be a reflection of the Rolleys’ recognition of Mark’s limitations with respect to interaction with family members and childrearing.

[337] I draw an inference and find that, from Jocelyn’s perspective, the decision to adopt four children (at a time when the Rolleys’ other children have reached adult age) was made in part because caring for and raising children will add meaning to her life; perhaps replacing some of the meaning lost as a result of the changes in the Rolleys’ marital relationship.

[338] I assess Jocelyn’s damages for loss of care, guidance and companionship at $65,000.

[339] I shall comment briefly on the defendant’s submissions with respect to Jocelyn’s credibility. Those submissions are based in part on (a) the contents of the CPP Documents, and (b) the reports given by Jocelyn to health-care professionals, during the post-collision years, as to Mark’s pre-collision condition. I have already addressed the contents of the CPP Documents. The evidence with respect to those documents does not negatively impact my assessment of Jocelyn’s credibility.

[340] The defendant submits that Jocelyn repeatedly underplayed Mark’s pre-collision condition, in particular with respect to pre-existing cognitive issues. For the following reasons, I reject the defendant’s submission in that regard.

[341] It would be unreasonable to expect Jocelyn to remember every detail of Mark’s pre-collision condition on every post-collision occasion on which she was questioned or interviewed about it. Mark’s evidence, which I accept as reliable on this point, is that he attended most pre-collision medical appointments on his own. Jocelyn was not present to hear every discussion Mark had with a health-care professional.

[342] In addition, the Rolley household was very busy in the years prior to the collision. Jocelyn was primarily responsible for the Rolleys’ biological children, their two “morally adopted” children (Angel and Tommy), and the foster children who lived with the Rolleys. In the context of a busy setting, Jocelyn may not have observed every frailty of memory exhibited by Mark; even if she did so, she might not have taken particular note of them.

[343] A somewhat troubling aspect of Jocelyn’s testimony, was the emphasis she repeatedly placed on sarcoidosis as the cause of Mark’s limitations and restrictions in the year or more prior to the date of the collision. Jocelyn’s evidence in that regard had a tone of certainty unexpected of a lay witness.

[344] I draw an inference and find that Jocelyn’s testimony in that regard stems from the reprieve she and Mark were given because of the change of diagnosis from a terminal to a non-terminal condition. I do not, in any event, rely on Jocelyn’s evidence as to the extent to which sarcoidosis contributed to Mark’s pre-collision condition.

[345] In summary, I found Jocelyn to be a credible and reliable witness, including with respect to the post-collision changes in her relationship with Mark.

ii) Past Attendant Care Services

• Prayer for Relief

[346] The prayer for relief in the statement of claim includes a claim on Jocelyn’s behalf for “damages in the sum of $200,000 for medical expenses, rehabilitation, nursing care, housekeeping and home maintenance, and other “out-of-pocket expenses”. The basis for this claim is explained in a single sentence at para. 19 of the statement of claim. It is therein alleged that “Jocelyn has incurred expenses for Mark’s benefit and will be expected to incur these expenses in the future”.

[347] No evidence was called and no reference was made in the plaintiffs’ closing submissions to expenses incurred or to be incurred by Jocelyn for Mark’s benefit. Instead, the claim advanced is described as “a reasonable sum to compensate [Jocelyn] for services rendered”.

[348] The plaintiffs calculate the “reasonable sum” as follows:

• 4.22 hours per day of attendant care;

• 365 days per year for 6 years (January 2012 to January 2018); and

• $30.45 per hour. (The plaintiffs do not include HST with respect to attendant care services provided by Jocelyn.)

[349] The claim for damages under this heading totals $281,413 and is made pursuant to s. 61(2)(d) of the FLA. That section provides that the damages recoverable by a family member advancing a claim pursuant to s. 61(1) of the FLA “May include…(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the [injured person], a reasonable allowance for loss of income or the value of the services”.

[350] The motion by the plaintiffs for leave to amend the statement of claim does not include a request for leave to add to the prayer for relief, a claim for damages in the amount of $281,413 for Jocelyn pursuant to s. 61(2)(d) of the FLA. Nor does the motion include a request for leave to amend the substantive text of the statement of claim to support such a claim.

[351] The defendant did not object to the claim by Jocelyn for damages for past attendant care on the basis of the manner in which that claim is pleaded. A deficiency in the pleading, if it exists in that regard, may still need to be addressed following the release of these reasons.

[352] I say “if it exists” because at paragraph 1(a) of the statement of claim, the prayer for relief includes a claim on Mark’s behalf for damages in the amount of $200,000 for “the full value of the services and devices that would more likely than not have improved or maintained [his] quality of life … because of his injuries, from the date of his injuries to the trial”. No submissions were made by either the plaintiffs or the defendant as to whether the damages claimed with respect to past attendant care services provided by Jocelyn fall under this head of damages.

[353] In that regard, I refer the parties to the decision of Boswell, J. in Pelletier v. Ontario, 2013 ONSC 6898, 57 M.V.R. (6th) 202. No reference was made to this decision in closing submissions. I found the decision.

[354] At paragraphs 396 to 416 of the decision in Pelletier, the trial judge reviews the law with respect to claims for damages to permit the injured person to compensate family members and others who provided attendant care services prior to the date of trial. At paragraph 416, the trial judge concluded:

I must follow the Supreme Court's guidance in Andrews & Grand and Toy. In my view that means, with respect to [the injured plaintiff’s] claim, that it matters not from what source [the injured plaintiff’s] attendant care needs have been met, or who has provided the attendant care. It matters not whether [the injured plaintiff] is under a legal or moral liability to repay. [The injured plaintiff’s] loss is the existence of the need for attendant care, the value of which, for the purpose of calculating his damages, is the proper and reasonable cost of providing the attendant care.

[355] I leave it to counsel to consider and address the steps, if any, required to deal with the claim for damages based on the attendant care services provided by Jocelyn prior to the date of trial. I shall, regardless, assess the damages associated with the past attendant care provided by Jocelyn to Mark.

• Attendant Care Services Provided by Jocelyn

[356] The trial commenced in the fall of 2017. The actuary relied on November 20, 2017 as the valuation date to determine the present value factor to be applied to an annualized figure for the cost of attendant care services. The collision occurred in January 2012. At most, the period prior to the trial during which Jocelyn can be said to have provided attendant care services is 5 years and 10 months.

[357] The evidence does not support a finding that Jocelyn commenced providing attendant care services immediately following the collision. Jocelyn testified that for a number of months following the collision there was an increased level of conflict between herself and Mark. For example, if Jocelyn intervened to assist when Mark was attempting to help the children with their homework, Mark perceived Jocelyn’s actions as her trying to take over. I find that Mark was not initially receptive to assistance from Jocelyn.

[358] Jocelyn testified that, collectively, she and Mark figured out over time and by trial and error what Mark can and cannot do. I draw an inference and find that similarly, Jocelyn figured out over time, and by trial and error, both the type of assistance she is capable of providing Mark and an approach to enhance his receptiveness to the assistance.

[359] Jocelyn’s evidence is that Ms. Robertson assisted the family members in developing strategies to deal with the changes in Mark. Ms. Robertson did not begin to see Mark until late 2015.

[360] The type of attendant care Jocelyn described providing as of the date of trial includes assisting Mark to get out of bed if he is in pain in the morning, assisting him to put on his pants and socks if he is having trouble with his balance, directing Mark as to tasks that he is to tackle around the house, reminding Mark to take his medication, choosing Mark’s clothes for the day, maintaining Mark’s closet, and planning and scheduling Mark’s appointments.

[361] Jocelyn’s evidence is that it took some time before she was able to find ways to provide support to Mark without offending his sense of independence. I draw an inference and find that in an effort to assist Mark in preserving his independence and sense of self, Jocelyn has not been providing every element of the attendant care services recommended by Ms. Robertson.

[362] I also consider the attendant care services provided over time by other family members. Jocelyn has not been the sole provider of attendant care services since the collision. Joseph is advancing a claim for attendant care services he provided to his father prior to the date of the trial.

[363] The other family members named as plaintiffs in this action were also advancing claims for compensation for attendant care services provided by them respectively. Those individuals have abandoned their respective claims in this action.

[364] Based on the evidence of the Rolley family members, Mr. Hutchinson, and Mr. Edwards, I find that regardless of when any individual began to provide Mark with attendant care services, and regardless of the number of hours per day of assistance provided by each individual over time, the assistance has been provided by more than one person.

[365] In 2017, when she assessed Mark’s attendant care needs, Ms. Robertson did not do a review of Mark’s historical attendant care needs. Ms. Robertson’s belief is that Jocelyn provided attendant care services to Mark historically. That belief is based on Ms. Robertson’s observations of the Rolleys during the therapeutic relationship. Ms. Robertson did not testify as to a specific number of hours of attendant care that she observed Jocelyn providing.

[366] A number of Ms. Robertson’s progress reports for her work with Mark in 2015, 2016, and 2017 were introduced as evidence at trial. Based on the contents of those reports and Ms. Robertson’s testimony at trial, I find that the compensatory strategies that she provided Mark assisted him to manage his daily activities and routines. I draw an inference and find that during those years the success of the compensatory strategies led to a reduction in the amount of attendant care assistance that Mark required.

[367] In summary, I find that the attendant care services provided by Jocelyn to Mark prior to the date of trial (a) did not commence immediately following the collision, (b) gradually increased over time, and (c) have never consistently been at the level of 4.22 hours per day. It would be speculative to attempt to assess the attendant care provided by Jocelyn prior to late 2015 when Ms. Robertson became involved as a treating occupational therapist.

[368] I assess the damages for the attendant care services provided prior to trial by Jocelyn based on the following findings:

• The attendant care services were being provided by Jocelyn as of late 2015 when Ms. Robertson began her therapeutic relationship with Mark. I allow 2 hours per day of attendant care services for the latter half of 2015 (368 hours for the 184 days from Jun. 1 to Dec. 31/15);

• As of 2016, the amount of attendant care that Jocelyn provided increased to 2.5 hours. It remained at that level until the end of June 2017, when Ms. Robertson’s therapeutic relationship came to an end (1,365 hours for the 546 days from Jan. 1/16 to Jun. 30/17); and

• From the end of June to November 20, 2017 (the first day of trial), Jocelyn continued to provide 2.5 hours per day of attendant care services to Mark (355 hours for the 142 days from Jul. 1 to Nov. 29/17).

[369] In accordance with the decision in Pelletier, I find that it is reasonable to compensate Jocelyn for the attendant care she provided at the same hourly rate that would have been paid to a PSW, had one been hired and available ($30.45). HST is not included because Jocelyn’s compensation does not reach an annual total that requires her to ‘charge’ HST. The monetary value of 2,088 (368 + 1,365 + 355) hours of attendant care is $63,580 ($63,579.60 rounded off).

[370] I assess the damages for the attendant care services provided by Jocelyn prior to the date of trial at $63,580 (2,088 hrs. x $30.45/hr.). That amount is not subject to a reduction for negative contingencies.

iii) Cost of Future Social Worker Services

• Leave to Amend Statement of Claim

[371] The plaintiffs seek leave to amend the claim on Jocelyn’s behalf to add the cost of twelve sessions with a social worker. The defendant does not oppose the proposed amendment per se. Relying on the defence of causation, the defendant disputes Jocelyn’s entitlement to damages under this heading.

[372] Leave is granted to the plaintiffs to amend the statement of claim to include a claim for damages for Jocelyn for twelve, two-hour sessions with a social worker, at $125/hr. plus HST—for a total of $3,390.

• Social Worker Services

[373] Louise Lamoureux is a social worker who saw Jocelyn on a number of occasions subsequent to the collision. Ms. Lamoureux was called by the plaintiffs and qualified to give evidence as a participant expert (a) in the field of social work, and (b) including opinion evidence in the field of trauma therapy.

[374] Ms. Lamoureux described Jocelyn as receptive and open to strategies to address the post-collision marital relationship and Rolley household. Jocelyn’s evidence is that she benefited from the sessions with Ms. Lamoureux.

[375] By the date of trial, one year had passed since Ms. Lamoureux originally made her recommendations. I find that the passage of time does not detract from the merits of Ms. Lamoureux’s recommendations.

[376] The potential for Jocelyn to access social work assistance on a community-funded basis does not require Jocelyn to choose publicly-funded services over those of a social worker hired privately. The defendant did not lead any evidence to support a finding that community-based social work services are a reasonable alternative to such services on a private-hire basis.

[377] Based on Ms. Lamoureux’s and Jocelyn’s evidence, I find that it is reasonable for Jocelyn to attend twelve sessions with a social worker for support and assistance in the form of:

a) A safe environment in which to express her feelings about the losses she has experienced; and

b) Re-framing the nature of her interactions and communication with Mark.

[378] I assess the damages to which Jocelyn is entitled for the cost of social worker services at $3,390. It is unclear whether Jocelyn will access these services over a short or a long period of time. Given the amount involved, I do not apply a negative contingency to it.

c) Joseph Rolley

i) General Damages

[379] Joseph was 12 years old when the collision occurred. He described his Grade School years as active in terms of sports, family camping and related activities, and helping his father around the house. Joseph testified that prior to the collision he was aware of some, but not all, of the features of his father’s health issues—as was appropriate given that his parents did not want him to worry about his father.

[380] Mark, Jocelyn, Ben, and Joseph each testified as to the extent of Mark’s contributions to the children’s extra-curricular activities. Mark was, for a number of years, the coach of Joseph’s competitive soccer team. Mark was not able to continue in that role subsequent to the collision. Mark’s post-collision behaviour in that role created conflict between Mark and parents of other children on the team and between Mark and Joseph.

[381] Joseph’s evidence is that in the years since the collision, he has stopped going to his father for advice and help; Joseph now turns to his mother. Joseph described interactions with his father as deteriorating into arguments because of Mark’s inability to handle meaningful conversations. Conversations with his father are different because Mark does not appear to be listening and/or forgets what is being said. Joseph now primarily talks with his father when they are travelling in the car together.

[382] Joseph’s evidence is that he has “kind of” grown used to how his father is now; he feels alone and depressed at times; and he believes that he and his father should understand one another more than they do.

[383] I assess Joseph’s general damage for loss of care, guidance, and companionship at $40,000.

ii) Past Attendant Care Services

[384] Joseph’s claim under this heading is subject to the same issues as his mother’s claim for damages for past attendant care services: the claim is not included in the prayer for relief nor is it addressed in the substantive text of the plaintiffs’ pleading.

[385] I shall, in any event, assess the damages under this heading and leave it to the parties to determine what steps, if any, are required to address this portion of Joseph’s claim.

[386] The plaintiffs submit that to the date of trial Joseph had (a) provided attendant care services to Mark to some extent, and (b) became a “caregiver of sorts” to Mark. The plaintiffs seek what they describe as a nominal award of $25,000 in recognition of Joseph’s contribution to his father’s care.

[387] Joseph’s evidence is that he has, since the collision, provided Mark with help with technological devices, care of the children at home after-school, and dinner meal preparation.

[388] Joseph’s evidence is that he now helps his father with the cell phone for 15 minutes, four times per week, and 30 minutes per week with video games. Joseph described the assistance as being provided randomly and sporadically. Joseph testified that he began to help his father with technology in 2012. Joseph’s evidence is that he has, over time, become more efficient in providing assistance with technology.

[389] Joseph testified that for at least a year prior to the date of trial, he had been assisting with the young children in the home three or four days a week after school. He does so when Jocelyn is not home to otherwise assist Mark in his interaction with the young children. Joseph testified that Jocelyn will not leave Mark in the home with the children unless there is another adult around.

[390] Joseph’s evidence is that on the days that he arrives home from school and his mother is not home, he observes that Mark:

• Is overwhelmed;

• Forgets what the children are to be doing;

• Is unable to organize the children’s respective agendas, lunches, and uniforms;

• Forgets how to use cooking devices such as a slow cooker, the microwave, or even the oven. Joseph described Mark as confused by which buttons to press for the oven; and

• Gets the names of the children mixed up and becomes frustrated when the children find it funny and are laughing.

[391] Neither Jocelyn nor Joseph gave evidence with respect to the role that Joseph was and continues to be expected to play within the family unit, given his parents’ decision to foster three and, ultimately, adopt four young children. I draw an inference and find that while Joseph would be expected to interact and assist with the children, but for Mark’s injuries that interaction and assistance would not have included assisting Mark in carrying out his role as the children’s father.

[392] The plaintiffs do not rely on an arithmetic calculation in arriving at the suggested damages of $25,000 under that heading. I find that amount to be high and speculative as to the extent of attendant care assistance provided by Joseph since the date of the collision.

[393] In assessing the damages to which Joseph is entitled under this heading, I have taken the same approach as I did with respect to Jocelyn’s claim in this regard (i.e. with respect to timing, nature, and duration of the assistance provided).

[394] I assess the value of the services provided by Joseph to his father at $6,000.

Issue No. 4 − Are the plaintiffs’ damages, as assessed, to be reduced because of the crumbling skull principle?

a) Positions of the Parties

[395] For the reasons set out above, the defendant has not succeeded on her causation defence. As an alternative to the causation defence, the defendant’s position is that Mark is a crumbling skull plaintiff. The defendant submits that the plaintiffs’ damages should be reduced by 25 per cent on the basis of the crumbling skull principle.

[396] The plaintiffs’ position is that Mark is a thin skull plaintiff, the crumbling skull principle is not applicable, and there should be no reduction of damages on the basis of that principle.

b) The Law

[397] For the defendant to succeed with her alternative position of ‘crumbling skull’, there must be evidence to support a finding that, prior to the collision, there existed a measurable risk existed prior to the collision that Mark would, regardless of the defendant’s negligence, have been detrimentally affected by his pre-existing conditions (Athey v. Leonati, 1996 SCC 183, [1996] 3 S.C.R. 458, para. 35). If that risk is established, then it can be taken into account in reducing the overall award of damages.

c) Analysis

[398] In support of her request for the plaintiffs’ damages to be reduced by 25 per cent, the defendant relies on the decision of Toscano Roccamo, J. in Hartwick v. Simser, 2004 ONSC 34512 (Ont. S.C.). In that case, the trial judge concluded that a number of the plaintiff’s pre-collision complaints (both psychological and physical) would have persisted beyond the date of the collision even absent injury. The damages assessed were reduced by 25 per cent because the plaintiff “would have been detrimentally affected … regardless of the accident” (para. 241).

[399] The defendant also relies on the decision of Kruzick, J. in Goody v. Costco Wholesale Corporation Limited, 2009 ONSC 37926 (Ont. S.C.J.), at para. 110). He applied the crumbling skull principle and reduced the damages, as otherwise assessed, by 25 per cent.

[400] I find that the complexity of Mark’s pre-collision condition is such that he would have continued to be detrimentally affected by it regardless of the collision.

[401] Dr. Smith described Mark’s condition as “waxing and waning” over time. Given the number of diagnoses Mark had received prior to the collision, it is not surprising that the documentary evidence establishes that Mark’s overall condition fluctuated from day-to-day, week-to-week, month-to-month, and year-to-year. In some years, Mark had greater resolve to push through than he did in others.

[402] Even against the backdrop of fluctuations, Mark himself recognized in late 2011, when he wrote the letter to CPP, that his overall condition was expected to be prolonged.

[403] The complexity of Mark’s pre-collision condition is not in doubt. Drs. Mendella and Smith made no attempt to downplay it. Dr. Smith acknowledged that it would be “tough” for him to determine whether the fluctuations in Mark’s condition have changed as a result of the collision. That acknowledgement is a factor in my finding that Mark’s pre-collision condition would have continued to detrimentally affect him regardless of the collision; Mark is a crumbling skull plaintiff.

[404] Applying the crumbling skull principle and taking into consideration the complexity of Mark’s pre-collision condition, I reduce all damages assessed by 25 per cent.

Issue No. 5 − Are the plaintiffs’ damages, as assessed, to be reduced because of a failure on Mark Rolley’s part to pursue the appropriate medical and other treatment for his injuries?

[405] The defendant submits that Mark failed to mitigate his damages by failing to pursue psychological counselling.

[406] The defendant relies on opinions expressed by Drs. Mendella and Judge with respect to the potential for Mark to benefit from psychological counselling. In the defendant’s written submissions, reference is made to the contents of Dr. Mendella’s reports—the first is dated in 2014 and the second in 2016. In both reports, Dr. Mendella recommends that Mark be provided with psychological treatments. Dr. Mendella’s two reports form part of Exhibit “A”– a joint book of expert reports. The reports themselves are not, however, evidence at trial.

[407] Dr. Judge testified that the benefit to Mark of counselling would be with respect to depression and anxiety. There is, however, no evidence from Dr. Judge as to the potential impact psychological counselling would be expected to have on Mark’s condition and/or his level of function. Nor is there any evidence from Dr. Judge with respect to the potential for Mark, given his personality and pre-existing disposition, to benefit from psychological counselling.

[408] The defendant has failed to establish that (a) Mark would benefit, from psychological counselling, and (b) as a result of that failure, Mark did not mitigate his damages. There is no reduction of the plaintiffs’ damages on the basis of failure to mitigate.

Issue No. 6 − Do the injuries suffered by Mark Rolley meet the statutory threshold set out in Insurance Act?

[409] The statutory protection from liability for damages for health care expenses and for non-pecuniary general damages is set out in ss. 267.5(3) and (5) of the Insurance Act. The same protection is afforded with respect to claims pursuant to s. 61(1) of the FLA (see s. 267.5(2) of the Insurance Act).

[410] For the plaintiffs’ claims to succeed, they must establish that Mark suffered either “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function” (ss. 267.5(3) and (5)). This requirement is known as the “statutory threshold”.

[411] The defendant brought a motion for an order declaring that Mark’s injuries do not meet the statutory threshold (“the Threshold Motion”).

[412] The phrase, “permanent serious impairment of an important physical, mental or psychological function” is defined in s. 4.2 of Ontario Regulation 461/96 (“the Regulation”). Because Mark was not gainfully employed at the date of the collision, the parts of the definition relevant to the determination of the Threshold Motion are those relating to Mark’s daily activities:

1. The impairment must … substantially interfere with most of the usual activities of daily living, considering the person’s age.

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

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

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

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

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

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

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

[413] Section 4.3 of the Regulation mandates that a plaintiff in a motor vehicle personal injury case calls at least one physician to give evidence at trial. The section also prescribes the nature of the evidence to be given by the physician(s) called on behalf of the plaintiff. Lastly, the section addresses the qualifications that must be held by the physician(s) called to give evidence. I find that the plaintiffs satisfied the requirements of s. 4.3 of the Regulation by calling Dr. Smith.

[414] The evidence I rely on to determine the Threshold Motion is essentially the same evidence relied on in the assessment of the plaintiffs’ damages. That evidence is addressed in detail under Issue Nos. 2, 3, 4, and 5. I shall not repeat it in this section of the reasons.

[415] Based on that evidence I find as follows:

• The impairments arising from the injuries sustained in the collision have resulted in substantial interference with most of Mark’s usual activities of daily living;

• The impairments Mark is experiencing are important because they prevent him from being able to care for himself, look after his well-being, and carry out his activities of daily living taking into consideration that he was in his mid-fifties when the collision occurred and is now in his late fifties; and

• I accept the evidence of Dr. Smith that:

  • Mark’s condition has been continuous since the collision and is not expected to improve much, let alone “substantially” improve;

  • To the extent that participation in a chronic pain program may result in some improvement to Mark’s condition, the improvement is not expected to be significant; and

  • Mark’s post-collision condition and his lack of significant improvement is in keeping with what Dr. Smith would expect of chronic pain patients in circumstances similar to Mark’s.

[416] I find that, as a result of the collision, Mark has sustained “permanent serious impairment of an important physical, mental, or psychological function.” The Threshold Motion is dismissed.

Disposition

[417] In chart form attached as Appendix A to these reasons, I set out the assessment of damages under each heading for which damages are awarded, the effect of the reduction by 25 per cent for the crumbling skull principle, the effect of the negative contingency of 15 per cent where applied, and the final figure for each head of damages.

[418] The defendant is liable to the plaintiffs for the following damages:

a) Mark Rolley

General damages for pain, suffering, and loss of enjoyment of life $ 142,500

Future attendant care services $ 1,710,752

Future occupational therapy services $ 3,240

Prism glasses $ 383

Future vision therapy $ 4,935

Future handyman services $ 26,648

Sub-total (Mark Rolley) $ 1,889,538

b) Jocelyn Rolley

General damages for loss of care, guidance, and companionship $ 48,750

Past attendant care services $ 47,685

Social worker services $ 2,543

Sub-total (Jocelyn Rolley) $ 98,978

c) Joseph Rolley

General damages for loss of care, guidance, and companionship $ 30,000

Past attendant care services $ 4,500

Sub-total (Joseph Rolley) $ 34,500

[419] I included “past attendant care services” under Jocelyn’s and Joseph’s names because that is the manner in which the claims were advanced at trial. As I have already noted, it remains open to the parties to address the deficiencies, if any, in the pleading with respect to those claims.

[420] The plaintiffs are granted leave to amend the statement of claim to include the following claims:

a) On Mark Rolley’s behalf, for damages for the cost of prism glasses in the amount of $511.20 and vision therapy in the amount of $6,580; and

b) On Jocelyn Rolley’s behalf, for damages for the cost of social worker services in the amount of $3,390.00.

[421] The Threshold Motion is dismissed.

[422] Counsel shall contact the office of the Trial Co-ordinator to schedule any appearances required to address matters arising from these reasons.

[423] For example, in the event the parties are unable to agree upon pre-judgment interest or costs, counsel shall arrange to appear before me to (a) identify all matters that remain to be addressed, (b) set a date for written and/or oral submissions, and (c) if necessary, set a timeline for the delivery of materials. The appearances, if restricted to logistical matters, may be by either telephone or in open court. Otherwise, the appearances shall be in open court.

Conduct of the Trial

[424] This trial was conducted over approximately 10 weeks and in two separate blocks of time. It started out before a judge and jury and concluded before a judge alone. The trial had unique twists and turns, such as the disclosure part way through the trial of additional insurance coverage available to the defendant. Numerous mid-trial motions were brought.

[425] The demands of this trial on counsel were significant. Yet, not once was there a hint of animus between any of the counsel. To say that counsel were not always in agreement with each other or with the Court is to state the obvious. Regardless, at all times, counsel conducted themselves with civility and professionalism, were respectful of the court staff, and were respectful of the Court.

[426] I made similar remarks to counsel in open court upon the completion of closing submissions. The remarks warrant repeating in writing so as to emphasize to other trial counsel that it is possible to conduct even the most challenging of trials with civility and professionalism.

[427] I thank counsel for the parties for their respective high-quality work, civility, and professionalism throughout this trial.

[428] I also want to thank the court staff. The demands of this trial on them were significant. They were always willing to do whatever was required to keep the trial moving. They never missed a beat in fulfilling their respective roles. They too conducted themselves with a high degree of professionalism.

Madam Justice Sylvia Corthorn

Released: December 12, 2018

Appendix ‘A’

Plaintiff	Head of Damages	Original Assessment	After Negative Contingencies	After Reduction for Crumbling Skull	Damages Awarded
Mark Rolley	General Damages	$ 190,000.00	N/A	$ 142,500	$ 142,500
	Future Attendant Care	$ 2,683,531.92	$ 2,281,002	$ 1,710,752	$ 1,710,752
	Future O.T. Services	$ 5,760.00	N/A	$ 4,320	$ 4,320
	Prism Glasses	$ 511.20	N/A	$ 383	$ 383
	Future Vision Therapy	$ 6,580.00	N/A	$ 4,935	$ 4,935
	Future Handyman Services	$ 41,800.00	$ 35,530	$ 26,648	$ 26,648
	Sub-total (Mark)				$ 1,889,538
Jocelyn Rolley	General Damages	$ 65,000.00	N/A	$ 48,750	$ 48,750
	Past Attendant Care	$ 63,580.00	N/A	$ 47,685	$ 47,685
	Social Worker Services	$ 3,390.00	N/A	$ 2,543	$ 2,543
	Sub-total (Jocelyn)				$ 98,978
Joseph Rolley	General Damages	$ 40,000.00	N/A	$ 30,000	$ 30,000
	Past Attendant Care	$ 6,000.00	N/A	$ 4,500	$ 4,500
	Sub-total (Joseph)				$ 34,500
Total Damages Award					$ 2,023,016

APPENDIX ‘B’

December 12, 2018

1. At para. [304] of these Reasons for Judgment, the word “not” has been added to the final sentence:

[304] Although not described as a crumbling skull analysis, in Graham, Doherty J. highlighted the evidence in support of a finding that even without the subject accident, the plaintiff was susceptible to the possibility that, because of a pre-existing condition, she would not have been able to physically withstand the “bumps and strains” that are part of everyone’s existence (para. 58). I highlight that portion of the decision in Graham to emphasize that the application of the crumbling skull principle does not prohibit the application of a modest negative contingency (i.e. 15 per cent).

2. At para. [305] of these Reasons for Judgment, the final section of the paragraph has been changed from “under all heads of damages for which a claim is advanced” to “cost of future care and future handyman services.”

[305] I find that a reasonable, modest negative contingency of 15 per cent is to be applied to the damages assessed under cost of future care and future handyman services.

COURT FILE NO.: 14-59774

DATE: 2018/12/12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MARK ROLLEY, JOCELYN ROLLEY, EMILY ROLLEY, BENJAMIN ROLLEY, JOSEPH ROLLEY, TOMMY PAUPST AND ANGEL PAUPST

Plaintiffs

– and –

DOROTHY MACDONELL and BELAIR INSURANCE COMPANY INC.

Defendants

AMENDED reasons for judgment

Madam Justice Sylvia Corthorn

Released: December 12, 2018