Court File and Parties

COURT FILE NUMBER: 10-47417 DATE: 2019/02/28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MOIRA CARON Plaintiff – and – OMERS REALTY CORPORATION CPP INVESTMENT BOARD REAL ESTATE HOLDINGS INC., OXFORD PROPERTIES CANADA LIMITED, AND OXFORD PROPERTIES GROUP INC. Defendants

Counsel: Eric Williams and Jeremy Rubenstein, Counsel for the Plaintiff Tara Sweeney and Ryan Garrett, Counsel for the Defendants

HEARD: November 26-30, December 3-7, 10-14, 2018, and written submissions received by January 15, 2019

Reasons for Decision

Introduction

[1] The plaintiff sues for damages totalling $2,901,546, following a slip and fall that occurred in the kitchenette at her place of employment on January 18, 2008; she slipped on water.

[2] For reasons that follow, this action is dismissed.

[3] The plaintiff is 54 years old. Previous to this incident, she worked as a lawyer for the Department of Justice. Her office was located on the 14th floor of a downtown Ottawa building, owned or managed by the defendants.

[4] On January 18, 2008, the plaintiff was at work. In the early afternoon, after eating lunch at her desk, she left her office and walked to the kitchenette to throw out her recyclables. She entered the kitchen, threw out her containers, and was walking towards the sink when her legs went out from under her. She does not recall hitting the ground.

[5] A co-worker found Ms. Caron; it is not disputed that the plaintiff was unconscious for some time. Ms. Caron slowly woke, was confused, and complained of pain in the back of her head. She was helped to her office and shortly thereafter was taken to the hospital by ambulance.

[6] Subject to a brief exception, Ms. Caron has not returned to work since the incident.

[7] It is not disputed that there was water on the kitchenette floor, near the sink. It is clear that the small hot water dispenser located underneath the sink had leaked, and that Ms. Caron slipped when she walked onto this water.

[8] On January 22, 2008, following requests from the tenant made after this incident, the defendants installed a rubber mat on the floor of the 14th floor kitchenette (in front of the sink). Such a mat was not installed in the other kitchenettes located on the other floors of the two buildings owned or managed by the defendants in that downtown location.

[9] The plaintiff’s main argument is that water on this floor constituted a known hazard that could easily have been avoided by the installation of a mat. As well, that the defendants did not meet their positive duty of care by failing to have a reasonable system of maintenance, repair, and inspection.

[10] It is not disputed that the plaintiff suffered a mild traumatic brain injury as a result of the slip and fall, and that she has not returned to work. However, the extent of her injuries and of the damages resulting from this incident is disputed, considering the plaintiff’s long history with anxiety.

Issues

[11] The issues in this action include:

a) Whether the defendants met their positive duty of care under the Occupiers Liability Act to take such care as in all the circumstances was reasonable to see that persons entering the premises were reasonably safe?

b) Whether the plaintiff’s current complaints result from the concussion she sustained as a result of her fall?

c) Whether the plaintiff’s employer, in how it dealt with the plaintiff and her employment following this incident, broke the chain of causation?

d) What are the damages, including: the amount of general and loss of income damages, whether the plaintiff failed to mitigate her damages, and whether collateral benefits should be deducted?

Whether the defendants met their positive duty of care under the Occupiers Liability Act to take such care as in all the circumstances was reasonable to see that persons entering the premises were reasonably safe?

[12] The leading case on Section 3 of the Occupiers’ Liability Act remains Waldick v. Malcolm. As indicated by the plaintiff in her written submissions, the Occupiers’ Liability Act imposes an affirmative duty on occupiers to make their premises reasonably safe for persons entering them, by taking reasonable care to protect them from foreseeable harm. This duty is not absolute. Occupiers are not insurers liable for any damages that may be suffered by persons entering their premises. This standard of reasonableness requires neither perfection nor unrealistic or impractical precautions against known risks. However, occupiers are duty-bound to take such care as in all of the circumstances of the case is reasonable. In each case, the trier of fact must determine what standard of care is reasonable and whether that standard of care has been met. (Waldick v. Malcolm, (1989), 70 O.R. (2d) 717 (Ont. C.A.), at paras. 20 and 25, aff’d , [1991] 2 S.C.R. 456)

[13] I agree with the plaintiff that the Defendants’ duty in this case is not simply described as one of reasonableness. It is a positive duty that must be reasonable “in the circumstances”. However, I add that this duty does not extend to the removal of every possible danger (see, for example, Garofalo v Canada Safeway Ltd. (1998), 66 O.T.C. 241 (Ont. Gen. Div.), at para. 31).

[14] In this case:

a) The defendants are occupiers, as this term is defined in the Occupiers’ Liability Act.

b) Despite the fact that the tenant selected the colour of the vinyl composite tile, installed in the kitchenette, the defendants are responsible for safety concerns that arise from its use, as the owner or property manager of the premises.

c) The kitchenette was used daily, on weekdays, by about 50 people – employees of the Department of Justice – for purposes including eating and washing their dishes. As a result, various types of shoes and soles walked on that floor.

d) The kitchenette was cleaned/spot checked twice daily by a cleaning contractor hired by the defendants (at about 10:00 in the morning and at about 2:00 in the afternoon).

e) The lease did not require or contain a provision for the cleaners acting as the defendants “eyes and ears”, but a practice developed to that effect – “if they noted a safety issue, malfunction, or leaking pipe, they would contact Oxford”, said Mr. Dubé (an Oxford manager).

f) The kitchenette was inspected for cleanliness monthly by the tenant, Public Works (“PWGSC”), who occasionally was accompanied by someone from the defendant Oxford. The tenant also conducted other inspections every four months, and once a year, said Mr. Vandette (a property officer with PWGSC).

g) Oxford also conducted inspections of cleanliness and general condition once to twice yearly.

h) A log of the cleaning and of the inspections was not kept by the defendants. However, the evidence establishes that there was a cleaning crew at least twice daily, monthly inspections of cleanliness by the tenant, and at least an annual inspection by Oxford (as indicated above). Although most of these inspections were not conducted by the defendants, it is clear from the evidence of Mr. Vandette, of PWGSC, that observed concerns would have been related to the defendants because one obvious purpose of the inspections was to ensure lease compliance.

i) Oxford and PWGSC each maintained a separate telephone hotline for tenants and others to report any repair, maintenance or other issues at the premises. These would be reported to Oxford management.

j) There was no notice to the defendants of any leak in the small hot water dispenser in the kitchenette of the 14th floor prior to January 18, 2008.

k) There had been no prior complaints to either PWGSC or the defendants with respect to the floor in the kitchenette of the 14th floor being slippery or constituting a hazard.

l) Towers one and two, owned or managed by the defendants, contain about 40 kitchenettes, most with a vinyl composite tile flooring, and PWGSC and the defendants have received no other concern about the slipperiness of these floors.

[15] The plaintiff argues that the defendants did not meet their positive duty of care because their system was not sufficient (only twice per day), focused on cleanliness not hazards, was not proactive, and was largely handled by others. The plaintiff also argues that the defendants’ positive duty of care required the installation of a non-slip mat. I disagree.

[16] The defendants had in place a cleaning and inspection regime, together with a call service, that would alert them of issues with the kitchenette.

[17] The plaintiff argues, for a number of reasons, that the above is not evidence of the defendants meeting their positive duty under the Occupiers’ Liability Act. However, the plaintiff presented no evidence that such measures were not sufficient for the defendants to prove sufficient affirmative steps to establish that they took reasonable care for the safety of people on the premises. Similarly, the plaintiff presented no evidence in support of their many arguments that the installation of a non-skid mat in front of the sink in the kitchenette of the 14th floor was required for the defendants to meet their positive duty to ensure that their premises were reasonably safe. The expert called by the plaintiff did not say this.

[18] The expert called by the plaintiff, an engineer specialized in slip and fall investigations, including slip resistance testing, opined, without any one from his office having attended at the site and without having conducted any testing, that because following the incident other employees identified the floor as slippery when wet, then it was likely that the floor was not sufficiently slip resistant when wet. He also opined that the installation of a slip-resistant floor mat would have mitigated the danger of a slip on water. Essentially, I understood his evidence to be that the floor was too slippery because two persons slipped on it, and that a mat would have reduced the risk of slipping by creating more friction. I have a number of concerns with the stated opinions of this expert.

[19] Firstly, this expert was qualified without objection. After having heard and considered his evidence, I struggle with how exactly his evidence satisfies necessity, at the threshold stage of assessing admissibility of expert opinion. Necessity implies that the expert evidence: provides information that is likely to be outside the experience or knowledge of the trier of fact, assists the trier of fact to appreciate a technical issue, or relates to something about which ordinary people are unlikely to form a correct judgement without expert assistance.

[20] I also have concerns about reliability, considering that the expert did not attend at the premise and conducted no slip testing of any kind. His assessment was limited entirely to a review of documents provided by the plaintiff in an effort to respond to a motion for summary judgement; he relied on no scientific analysis.

[21] Moreover, this expert could point to no standard that required the defendants to install a slip-resistant floor mat.

[22] Consequently, I place no weight on the opinions of this expert. Alternatively, I note that even if I did place some limited weight on his opinions, it would not change my decision because I found Dr. Parkinson’s opinions much more convincing.

[23] By contrast, the expert retained by the defendants conducted testing to measure the floor’s slip resistance. Testing revealed that, under wet conditions, the floor’s static coefficient of friction (not in movement) would be considered a high traction floor based on current standards (0.86 was the average measurement, with 0.60 and up considered high traction). The more relevant test results showed that the floor’s wet dynamic coefficient of friction (in movement) would fall within an acceptable range (0.37 was the average measurement, with 0.30 to 0.42 considered acceptable). In light of these results, his opinion was that the floor provided sufficient friction for normal use. Dr. Parkinson was a highly qualified, reasonable, and helpful expert.

[24] Considering the evidence, I find that the defendants have demonstrated that their system of routine cleaning and maintenance, inspections by their cleaners, and call service met the requisite standard of care. As indicated above, the standard is not one of perfection, does not require the removal of every possible danger, nor does it mandate a system of constant surveillance and instant response.

[25] The plaintiff also argues that a regular regime of inspection and cleaning does not meet the standard of reasonableness when the occupier knows that there is a risk of a recurring hazard that can lead to an accident; that proactive steps required the defendants to install a non-slid mat. This argument is sufficiently answered above. However, I add what follows to respond more particularly to the arguments of the plaintiff.

[26] A co-worker, Ms. B, testified that shortly after the incident she noticed that there was water on the floor in front of the sink, and that water was hard to see because the floor is shiny. She and other co-workers wrote emails about the incident, and complained that the floor was slippery when wet after the incident. As a result, the defendants installed a rubber mat in front of the sink in the kitchen of the 14th floor, on January 22, 2008.

[27] Ms. B also said that before this incident she:

• was not aware of ever walking on that floor while it was wet;
• had never slipped on that floor;
• had not raised any concern relating to that floor;
• was not aware of anyone previously complaining about that floor; and
• had not previously requested that a rubber mat be installed.

[28] The plaintiff also testified that she had no specific concern about the floor in the years prior to the slip and fall incident.

[29] There is evidence of only one other slip and fall in that kitchenette prior to the incident involving Ms. Caron. On June 5, 2007, Ms. W slipped and fell in the hallway leading into the kitchenette of the 14th floor, on water probably left by the cleaning staff after they had mopped up the floor and omitted to install warning signs. She testified that the floor’s shiny finish made it impossible to perceive water. She said that she sent notice of her fall only to human resources; there is no evidence that human resources sent Ms. W’s notice to PWGSC or to the defendants. Ms. W did not send any notice of her fall to the defendants, nor did she call any of the two telephone hotlines. Other than herself and Ms. Caron, Ms. W was not aware of anyone else slipping and falling on the kitchenette floor. Prior to her slip and fall, she had no worries about the kitchenette floor and had not previously considered it to be dangerous.

[30] Mr. Vandette testified that PWGSC was not aware of any earlier slip and fall incident; he said that they found out about Ms. W’s slip and fall after this action had been started. Mr. Dubé testified that Oxford was not aware of anyone else slipping and falling on any of the kitchenette floors at that location from construction in 2006 up to this incident. Both these witnesses were credible, seemingly answering questions honestly. Mr. Vandette was particularly reliable, as an employee of PWGSC (which is not a party to this action). Although there are reliability issues with the evidence of Mr. Dubé, arising from the earlier affidavit filed on the motion for summary judgment and because he might not be aware of all communications to Oxford, at best the plaintiff’s arguments on this raise a doubt or the possibility that someone at Oxford was previously aware of this one prior slip and fall involving Ms. W. However, on the balance of probabilities, there is no evidence that this prior slip and fall was communicated to the defendants prior to the incident involving the plaintiff.

[31] In any event, liability is not predicated on knowledge of a prior fall but on whether the defendants have satisfied their obligations under the Occupiers’ Liability Act.

[32] In that regard, the plaintiff’s arguments that the defendants should have installed a non-slip mat in front of the sink is not supported by the evidence or by the law.

[33] Here, the evidence with respect to the slip resistance of the floor, when wet and assuming movement, is that it met applicable standards. There is no evidence that the presence of water rendered the floor unsafe – despite the fact that two persons fell. As a result, this suggestion is not reasonable; it would mandate a standard of perfection.

[34] The cases relied upon by the plaintiff, in support of her arguments, are factually different from the facts of this case. Some of the cases relied upon by the plaintiff relate to slip and fall in grocery stores, some to ice, one to water and roller skates, and some to falling off a balcony or apartment.

[35] Unlike the circumstances in some of those cases, the floor of the kitchenette did not constitute an area of known hazard. For that reason, the facts in this case are different from those in Chan v. Erin Mills Town Centre Corp, 2005 ONSC 43678 (Ont. S.C.) and Tondat v. Hudson’s Bay Company, 2017 ONSC 3226. Moreover, for reasons indicated in his decision, André J. in Tondat placed little weight on the conclusions of the expert who testified in that case. Here, despite the fact that testing imperfectly accounts for the many different kind of soles, different gaits, and movement, I find the test results and the opinion of the expert presented by the defendants nonetheless sufficiently reliable considering the circumstances of this case, and that this incident did not happen in the entrance of a mall but in the kitchenette of an office with slightly less factual variables.

[36] As well, my conclusions, noted above, are unaffected by the evidence of prior instances of water on the kitchenette floor, argued by the plaintiff, because there is no evidence that the presence of water rendered the floor unsafe.

[37] Consequently, considering the evidence, I find that the defendants met their positive duty of care to take such care as in all the circumstances was reasonable to see that persons entering their premises were reasonably safe. As a result, the action of the plaintiff is dismissed.

[38] If I had found that the defendants’ breached their duty of care, which I did not, I would then have made the following findings regarding causation and damages.

Whether the plaintiff’s current complaints result from the concussion she sustained as a result of her fall, or from her pre-existing anxiety disorder?

[39] It is not disputed that Ms. Caron suffered a concussion as a result of the slip and fall. Foreseeability of this injury is also not disputed. The dispute is whether Ms. Caron continues to suffer from this injury or from her pre-existing condition: whether but for the fall Ms. Caron would not suffer from the deficits she now presents with. This is a complicated factual question given the facts and the medical evidence presented in this case.

[40] Proof by a plaintiff that a defendant was under a duty of care, and that a defendant breached the required standard of care does not make that defendant liable for the plaintiff’s loss unless the defendant’s negligent conduct is a cause of the plaintiff’s loss; that link is causation (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 6-9, 46, and 49). The test for showing causation when there is one tortfeasor is the “but for” test. The plaintiff must show, on a balance of probabilities, that as a matter of fact "but for" the negligence of the defendant, the plaintiff would not have suffered the losses alleged. The court is to take a “robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss”. The plaintiff is not required to provide the court with scientific exactitude as to the precise contribution of the defendants' negligence to her injuries; scientific precision is not necessary (Clements, at paras. 9, 46, and 49). Indeed, it is not necessary for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury; there “will frequently be a myriad of other background events which were necessary preconditions to the injury occurring” (Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 17).

[41] The plaintiff’s witnesses include: her then family doctor, Dr. Charania; her treating psychologist, Dr. Dessaulles, and a neuropsychologist, Dr. Gow. The defendants called to testify: a psychiatrist, Dr. Suddaby; a neuropsychologist, Dr. Judge; and the occupational therapist retained by the long-term disability insurer, Mr. Brouillette.

[42] At the risk of oversimplifying, all agree that the plaintiff: suffered a mild traumatic brain injury as a result of the slip and fall; and that she had a pre-existing history of anxiety disorder with episodes of panic attacks and depression, which required that she work from home on occasion. Dr. Gow believes that the plaintiff’s mild traumatic brain injury eroded her cognitive resources such that the plaintiff is unable to return to work. Dr. Judge believes that the mild traumatic brain injury, suffered as a result of the slip and fall, no longer contributes to the plaintiff’s ongoing symptoms.

Factual Overview

[43] The plaintiff testified that she led an active life prior to the slip and fall incident. She said that her anxiety was always present, that she noticed it in her 20s, and when she started to work. She said that she would get worked up over things, get flustered, when others would not. Nonetheless, Ms. Caron said that before the slip and fall she was able to work, that work was important to her, and that she worked to the fullest because this was how she was raised.

[44] Ms. Caron started to work for the Department of Justice in November 1998. In January 2000, Ms. Caron wrote to her supervisor requesting an alternative work arrangement. In this letter, Ms. Caron refers to her “health condition”, to her doctor providing advice that a flexible work arrangement would be highly beneficial, and argues that her condition brings her within the scope of the government’s policies dealing with alternative working arrangements and employing persons with psychiatric disabilities. At trial, Ms. Caron minimized the content of this letter.

[45] Three performance evaluations from work were produced by the plaintiff for the periods from 2003 to June 2006. These evaluations provide three possible rating: does not meet the objectives; fully meet the objectives and may on occasion exceed them; and, outstanding performance which exceeds the objectives. On the three evaluations, Ms. Caron scored in the mid-range (fully meets the objective that were set and may on occasion exceed them).

[46] Her June 2006 evaluation is the last evaluation available. It notes:

As noted, Moira is very committed to delivering on her projects. This is an important point because DRS is very committed to accommodate a disability of Moira’s. This accommodation includes a robust work at home program. In return, Moira has taken several steps (such as ongoing communication efforts with DRS colleagues, and accommodating client and colleague schedules) to help manage the teamwork related issues associated with a work-at-home program. As I’ve discussed with Moira, these teamwork related issues have resulted in management pressures, and I appreciate Moira’s efforts to mitigate those pressures by openly communicating to her DRS and client colleagues regarding her situation and her schedule. Also, I note that this work at home arrangement has been effective in enabling Moira to deliver strong results.

[47] At trial, Ms. Caron minimized the amount of time that she worked at home, saying that she worked at home only occasionally, on an ad hoc basis. She also could not remember taking special steps to manage teamwork related issues, and said that these were the words of her supervisor. She also denied that she was delivering strong results because she was working at home.

[48] In December 2006, Ms. Caron and her employer, the Department of Justice, concluded a formal looking document entitled Memorandum of Understanding, which includes an appendix dealing with terms of mediation. The December 2006 Memorandum of Understanding starts with a number of “Whereas”. These list the applicable law, indicate that Ms. Caron previously self-identified as a person with a disability, make reference to the employer’s duty to accommodate, and make reference to the fact that the employer and employee “previously agreed on the reasonable accommodations necessary to permit the employee to satisfy her employment obligations”. It then provides for what was agreed, and is signed by both parties.

[49] Amongst others, the December 2006 Memorandum of Understanding indicates that Ms. Caron continues to self-identify under the employment equity policy “as a person with disability (anxiety disorder) and that reasonable accommodations are necessary to permit the employee to satisfy her employment obligations to the employer.” It provides, subject to certain conditions, that Ms. Caron may work-at-home essentially at any time when her disability manifests itself. It further provides that any dispute is to be resolved through mediation, as per the attached appendix. It is obvious from the form and language used, that this three page document was drafted carefully. At trial, Ms. Caron minimized this agreement, saying that it was prepared by her employer, and that she worked at home only occasionally, on an ad hoc basis. Ms. Caron did not disclose this document to her medical care providers. At trial, Ms. Caron would not agree that accommodations outlined in this document were necessary for her to do her job, they only assisted she said.

[50] Ms. Caron started seeing Dr. Charania in July 2003. It is clear from her notes and from her testimony that Dr. Charania is a very caring doctor. Dr. Charania’s diagnosis at the time was of anxiety disorder with depressive symptoms.

[51] Dr. Charania’s notes indicate that Ms. Caron told Dr. Charania: that she suffers from anxiety since 1999; was on medication; and nonetheless, that her anxiety was quite variable. Dr. Charania testified that Ms. Caron’s anxiety varied from getting better to getting worse. In July 2005, she sent Ms. Caron for consultation with Dr. Grof, a psychiatrist, whom Ms. Caron saw on a number of occasions in 2005 and 2006. His notes were not produced by the plaintiff, but his April 2006 report was. In this report, Dr. Grof confirms that Ms. Caron suffers from “an intense anxiety disorder complicated by depressive episodes and probably also by an occasional alcohol abuse.”

[52] The May 2006 notes of Dr. Charania indicate that Ms. Caron told Dr. Charania that: she was feeling good and bad, like finally coming out of depression; still some days are better with happier moments but that she is still “++ anxious”; that she has difficulty with issues at work; and that she is coping but finds that she is not as efficient, although very hard on herself. These notes indicate that work issues and testing for attention deficit disorder were also discussed in June 2006, but Ms. Caron and Dr. Charania did not remember those conversations. The timeline coincides with the June 2006 evaluation, mentioned above, which refers to teamwork related issues and management pressures resulting from the “robust work at home program”. However, during her cross-examination, Ms. Caron denied that anxiety was affecting her at work in May 2006 (“no, I don’t think so” was her answer).

[53] In November 2006, these notes indicate that Ms. Caron told Dr. Charania that her mood is good, but also that she is feeling very anxious, panicky, overstimulated, unable to relax, and that she has some difficulty sleeping, even with medication.

[54] In December 2006, the notes of Dr. Charania indicate that Ms. Caron told Dr. Charania that: she gets the feeling that she will never be completely normal; and that things at work are OK, but that Ms. Caron can only work in the office three days per week and home two days per week. At trial, as indicated above, Ms. Caron minimized this, saying that she only worked at home occasionally, on an ad hoc basis, but Dr. Charania was clear, and I accept, that she wrote what she was told. Further, this note coincides with the timeline of the signing of the formal looking memorandum of understanding, described above, which allows Ms. Caron to work at home.

[55] In July 2007, the notes of Dr. Charania indicate that Ms. Caron told Dr. Charania: “Issues at work re working from home. Fearful they will force her into disability.” At trial, Ms. Caron agreed that she would have said this to her family doctor, but she could not remember or imagine why. At trial, both Ms. Caron and Dr. Charania minimized this comment by attributing it to Ms. Caron’s anxiety. However, both had little memory of what specifically occurred in 2007. Other than what she noted, Dr. Charania could rarely remember what was said at the time. In addition to not being able to remember, Dr. Charania could not know whether Ms. Caron’s employer had or had expressed any concerns to Ms. Caron about the sustainability of her working from home. Essentially, Dr. Charania was guessing to help Ms. Caron when she answered as she did that such statements were probably the result of Ms. Caron’s anxiety – she could not know when she testified in December 2018 why Ms. Caron was fearful in July 2007 that she might be forced into disability because nothing in her notes is written about why other than “Issues at work re working from home”, and “Reassurance they need to accommodate her disability”.

[56] In September, 2007, the notes of Dr. Charania indicate that Ms. Caron told Dr. Charania that her anxiety is terrible.

[57] The plaintiff never missed work because of her anxiety prior to the slip and fall incident. However, I find that Ms. Caron frequently and regularly worked at home, at least two days per week, under a “robust work at home program”, probably since at least 2005, and that this was necessary for the plaintiff to do her job. The plaintiff is not credible when she says that she only worked at home sporadically and that this was not necessary, because this is contradicted by her January 2000 letter seeking accommodations, by her June 2006 employment evaluation, by the tone and content of the December 2006 Memorandum of Understanding, and by what she then told Dr. Charania (as witnessed by the contemporaneous notes of Dr. Charania).

[58] After the slip and fall incident of January 18, 2008, Ms. Caron saw Dr. Charania on February 11, 2008. She complained of severe headaches and of others symptoms. These notes indicate that Ms. Caron told Dr. Charania that her anxiety is worse since this has happened. She was nonetheless able to travel to Edmonton on business on February 12, 2008, returning on February 15.

[59] The notes of Dr. Charania of March and April 2008 refer to Ms. Caron’s anxiety worsening and to her being very anxious. They also refer to difficulty focusing on work, and the notes of March 4, 2008, indicate that Ms. Caron wished for time off work to try and get her anxiety under better control. The notes of April 9, 2008, indicate that Ms. Caron told Dr. Charania that she is very anxious and was unable to leave the house Monday morning to return to work. Later in April, Ms. Caron complained to Dr. Charania that her concentration is affected, that she has obsessive thoughts, that she forgets names, and occasionally struggles for words and to explain things coherently. Dr. Charania reassured Ms. Caron that her symptoms were unlikely caused by a concussion, and more likely secondary to anxiety.

[60] At trial, Ms. Caron said that her anxiety was crazy at this time, that she had horrible headaches, that she felt frozen in place, and could hardly do anything. She was also getting worried that she was not improving. It was however apparent that Ms. Caron could not remember precisely how she was feeling at the time without looking at the clinical notes and records. Moreover, she was occasionally lead during her examination in chief, particularly when she testified about which symptoms she had before versus after the slip and fall.

[61] In September 2008, the plaintiff’s biggest concern was anxiety. She complained to Dr. Charania that her anxiety was worse than ever. She also complained of panic attacks, and of depression. Dr. Charania noted that her depression is anxiety driven. Dr. Charania also noted that the plaintiff always had a history of anxiety, but that she was previously able to cope. She noted that since the slip and fall, the plaintiff’s anxiety is worse with more difficulty to cope, and difficulty to concentrate and focus. Dr. Charania testified that this did not occur before the fall.

[62] In October 2008, Ms. Caron told Dr. Charania that she was trying to look at options for alternative work in a less stressful environment. At trial, Ms. Caron had no recollection of looking at alternate work options in a less stressful environment. However, Dr. Charania was clear, and I accept, that this was told to her by Ms. Caron. Moreover, I also accept Dr. Charania’s opinion that at the time, the plaintiff was not fit to return to work.

[63] Ms. Caron next saw Dr. Charania in April 2009. Ms. Caron complained to her family doctor that her brain felt slower, that she had difficulty writing, and that she was concerned with memory changes. She also said that she had great difficulty retaining information from one paragraph to another when reading. Dr. Charania testified in-chief that these were new complaints. However, during her cross-examination she agreed that most of Ms. Caron’s symptoms were nonspecific, and that Ms. Caron had experienced similar symptoms prior to the incident (see paras. 89 and 90 below). The possibility of Neuropsychological testing was discussed, and in August 2009, Dr. Charania decided to refer Ms. Caron to Dr. Gow, to determine whether Ms. Caron’s difficulties were related to her pre-existing anxiety or to cognitive changes resulting from the slip and fall.

[64] After August 2009, Ms. Caron next saw Dr. Charania in May 2010. Dr. Gow had recommended that the plaintiff see a psychologist, Dr. Dessaulles, whom the plaintiff started to see in March 2010. Dr. Gow had also completed her initial report, dated May 10, 2010, which Dr. Charania received on May 17, 2010. Dr. Charania understood from the report of Dr. Gow that much of the plaintiff’s issues related to the slip and fall incident, and that the plaintiff could return to work with accommodations. Indeed, in her May 10, 2010 report, Dr. Gow recommends to the plaintiff that she gradually return to work once she has secured a regular treatment protocol with Dr. Dessaulles. At this time, Dr. Charania no longer believed that anxiety was the plaintiff’s biggest issue preventing her from returning to work.

[65] I note that this action was issued in January 2010, was defended in June 2010, and that a third party action against the government was issued in June 2010.

[66] By June – July 2010, Ms. Caron testified that she was worried that she had been off work for two years, and that she wanted to return to work even if she was not fully ready; she wanted to keep her position. She contacted her employer, on a number of occasions, seeking the elaboration of a process to return to work.

[67] In June 2010, Dr. Charania wrote to the plaintiff’s disability insurer that after reviewing Dr. Gow’s report, and talking with the plaintiff, she felt that the plaintiff was ready to return to work on a very gradual basis with accommodations, and asked for a rehabilitation consultant to be appointed; Mr. Brouillette was eventually appointed by the insurer in September 2010. In July 2010, Dr. Dessaulles also wrote to the plaintiff’s disability insurer about planning for the plaintiff’s eventual return to work.

[68] Dr. Dessaulles first saw Ms. Caron in March 2010; Ms. Caron’s goals were to get better and return to her career. He felt that a return to work at that time would be premature, that Ms. Caron may have a pattern of somatization as part of her anxiety which likely interacts with deficits from her mild traumatic brain injury. With time, his opinion became that the somatization was caused by the mild traumatic brain injury.

[69] Mr. Brouillette testified that he first met with Ms. Caron on September 24, 2010. He observed that she was well focused, cooperative, oriented, and alert. He did not observe memory or concentration difficulties during the interview, but noted that on some occasion she had difficulty expressing herself, was looking for words, and appeared a little bit fatigued at the end of the interview. He recommended a gradual return to work over a 16 week period.

[70] Mr. Brouillette prepared a return to work plan, which was signed by him and by Dr. Charania in November 2010. This return to work plan called for Ms. Caron to return to work on a progressive basis starting on November 29, 2010. However, by October 7, 2010, Ms. Caron was complaining to Dr. Charania that she was feeling overwhelmed when too many people were around, that she got anxious, and that she felt that working at home would be more beneficial; Ms. Caron understood that her new boss did not want her back.

[71] Dr. Dessaulles thought that the November 2010 return to work plan was slightly premature, he believed that a January 2011 return to work would increase chances of success. On January 7, 2011, he signed a modified return to work plan which called for Ms. Caron to very progressively return to work starting on January 10, 2011. Dr. Dessaulles’ notes of October 27, 2010, indicate that Ms. Caron has continuing problems in a busy environment, and that they discussed the option of telework; he did not believe that she was ready, maybe in January. On November 24, 2010, Ms. Caron told Dr. Dessaulles that she was quite stressed and pressured by the return to work process; he felt that her returning to work needed to be reassessed in early January 2011. Mr. Brouillette disagreed with Dr. Dessaulles; he felt that Ms. Caron was ready by the end of November 2010.

[72] Ms. Caron testified that she wanted to go back to work in November 2010, and that she disagreed with her psychologist, Dr. Dessaulles. However, I note that: on October 7, 2010, Ms. Caron told Dr. Charania that there were issues with her new boss not wanting her back; by email dated November 23, 2010, Ms. Caron wrote to her employer asking to reschedule the pre-return to work meeting that was scheduled for Friday, November 26, 2010; on November 24, 2010, she told Dr. Dessaulles that she felt quite stressed, and Dr. Dessaulles told Ms. Caron that he believed that a return to work was slightly premature; and on November 24, 2010, Ms. Caron wrote to her manager asking that the Friday meeting be postponed.

[73] When I consider the evidence, I do not believe Ms. Caron when she says that she wanted to return to work in November 2010. The evidence indicates that she was anxious, felt overwhelmed, and felt quite stressed about returning to work; she did not want to return to work. More importantly, I find that the bulk of her ongoing complaints at this time are quite similar to her pre-incident work difficulties. She felt overwhelmed, wanted to postpone her return to work, and wanted to ensure that she could work from home.

[74] At the insistence of Ms. Caron’s employer, the return to work preparatory meeting of November 26, 2010 proceeded, but did not go well. It seems clear that Ms. Caron’s manager did not want to accommodate Ms. Caron’s return to work to the extent that was contemplated by Ms. Caron. Both Ms. Caron and Mr. Brouillette testified that Ms. Caron’s manager was insensitive to the issues of Ms. Caron, that she slammed her hand on the table, and asked why they were there. Ms. Caron found the meeting quite disturbing. Both Ms. Caron and Mr. Brouillette found the conduct of Ms. Caron’s new manager during this meeting to have been very unprofessional.

[75] Ms. Caron did not return to work, as scheduled, on November 30, 2010.

[76] On December 1, 2010, Ms. Caron asked her employer if she could be approved for leave until she could meet with her doctors. Her manager did not agree and responded that they would have to take all information into consideration prior to making a decision on the next steps to be taken.

[77] On January 20, 2011, Ms. Caron’s employer wrote to advise Ms. Caron that it had decided to send Ms. Caron for a fitness to work evaluation with Health Canada. At the same time, by letter dated February 24, 2011, Ms. Caron’s disability insurer wrote to inform Ms. Caron that they would terminate her insurance benefits as of June 8, 2011, on the basis that she had not returned to work when her doctor had approved such a return. This was all very upsetting to Ms. Caron.

[78] Both doctors Charania and Dessaulles were concerned about the effects of this meeting on Ms. Caron; both noted that she experienced a setback as a result. Dr. Charania noted “an intensification of her anxiety and depressive symptomology including persistent fatigue, distractibility and confusion. At present, I do not feel that Moira Caron is able to return to any form of employment; however, I am very confident that by continuing to work with Dr. Dessaulles and myself, she will be able to return to her job … in the foreseeable future.” Dr. Dessaulles noted that Ms. Caron “is reporting more symptoms again (anxiety, not sleeping, fatigue)… In discussing the situation with her it is clear to me she is not fit to RTW now”.

[79] In March 2011, Ms. Caron wrote to her employer asking if she could return to work; she was told to wait for the Health Canada assessment. Ms. Caron agreed that her anxiety was very high at the time because of these ongoing issues. She agreed that she might have been ready to return to work in the fall of 2010 if it had been to a different work environment. In April 2011 she filed a grievance, complaining that her employer refused to accept her treating doctors’ reports, and refused to allow her to return to work under an acceptable return plan. She said that she wanted to return to work, yet I note that she could not find a way to complete forms for a transfer of skills analysis (or find help to do so – she was however able in May 2011, with help, to prepare an appeal of the decision of her disability insurer). It is somewhat of a recurrent theme for Ms. Caron to have issues with requested medical or other assessments (reference is made to the issues with Dr. Favreau, and to her instructions to Dr. Dessaulles not to disclose her medical file).

[80] Ms. Caron met her current husband online in January 2012, and in person on March 15, 2012. He lives in Colorado, has three independent children, and works as a computer programmer on contracts for the U.S. government. He testified that Ms. Caron came out to Colorado a few times each month, and that she agreed to come to Colorado to pursue a more meaningful relationship in July 2012. She eventually moved in with him, and they married in January 2013.

[81] Ms. Caron denied that she was committed to staying in Colorado after marrying her current husband, saying that they were waiting to see what would happen on the issue of her medical retirement. However, her husband indicated that their plan was to live in Colorado for the near future, although they had contemplated moving to Texas in 2017.

[82] In June 2011, Ms. Caron was informed that Health Canada considered her unfit to return to work. On April 9, 2012, Ms. Caron was informed that her long-term disability claim had been approved; she still receives these amounts. On December 30, 2013, Ms. Caron applied for a retirement from the Department of Justice on the grounds of permanent disability, which was approved.

[83] Ms. Caron did not consult Dr. Charania after August 2011. She still consults with Dr. Dessaulles, by telephone. Ms. Caron did not pursue her grievance, or request a further fitness assessment from her employer. Ms. Caron did not return to see Dr. Gow for a follow-up appointment in nine months, as instructed by Dr. Gow. Since 2012, Ms. Caron made no attempt to return to any form of employment.

Analysis

[84] The evidence establishes that prior to the slip and fall incident, Ms. Caron suffered from a severe and difficult to control anxiety disorder and occasional depression, related to anxiety. Before the incident, she consulted a number of medical professionals for these conditions, but only produced the pre-existing medical records of her family doctor. The notes of Dr. Charania indicate that controlling Ms. Caron’s anxiety was a difficult and ongoing struggle.

[85] The evidence establishes that within 15 months of starting to work at the Department of Justice, Ms. Caron requested accommodations for her health condition, relying on policies dealing with employing persons with psychiatric disabilities. Robust accommodations, including a work-at-home program, were necessary for some time before the incident for Ms. Caron to continue to work as a lawyer at the Department of Justice. Probably since about 2005 Ms. Caron was frequently working at home two days per week because of ongoing difficulty controlling her anxiety disorder. Ms. Caron’s June 2006 evaluation refers to accommodation and a robust work-at-home program. In December 2006, Ms. Caron told Dr. Charania that she could only work in the office three days per week, at home two days per week, and in December 2006 she and her employer concluded the December 2006 Memorandum of Understanding. Under the December 2006 Memorandum of Understanding Ms. Caron could telework up to five days per week in the event that her disability manifested itself.

[86] The evidence also establishes that Ms. Caron’s teleworking was causing pressure at work with her colleagues, clients, and management, likely since before the evaluation of June 2006. As well, the evidence establishes that Ms. Caron then perceived that her teleworking was becoming a problem, because in July 2007, six months before the incident, she reported to Dr. Charania that there were issues at work relating to her working from home, and that she was fearful that her employer would force her into disability. It is somewhat telling that Ms. Caron only produced three performance evaluations and did not call as a witness any former work colleague or manager.

[87] Considering the evidence, I do not accept the plaintiff’s assertion that her severe anxiety disorder had little to no impact on her ability to work, and I find not credible Ms. Caron’s attempts to minimize her pre-existing conditions and pre-existing difficulties. Rather, I find that the evidence indicates that before the incident Ms. Caron suffered from an ongoing anxiety disorder which was not well controlled by medication, and which impacted every aspect of her life, occupational and otherwise – this is apparent from the clinical notes and records of Dr. Charania. As a result, I do not believe Ms. Caron when she says that her current symptoms are different from her pre-incident symptoms (and when she points to alleged differences in the medical records).

[88] Ms. Caron’s sister testified, but knew very little. She provided little by way of helpful or reliable information to compare the before and after because she knew little about Ms. Caron’s pre-2008 issues, did not notice anything instantaneously, was not told about the mild traumatic brain injury until about 2013, and rarely saw her sister after she moved to Colorado in July 2012 – impacting the reliability of her limited observations. Similarly, Ms. Caron’s current husband did not know her prior to 2012, provided limited observations, and some of his observations about Ms. Caron’s ongoing issues could just as well relate to anxiety – such that his evidence is not reliable.

[89] The medical witnesses agreed that most of Ms. Caron’s post-accident complaints are nonspecific in nature; nearly all of her noted complaints can be attributed to either anxiety or to a concussion. Moreover, as indicated above, I do not accept Ms. Caron’s evidence that she suffered from no cognitive symptoms before this incident because she was led when she said most of these statements, because her symptoms are non-specific, and because this is contradicted by the clinical notes and records and evidence of Dr. Charania.

[90] Dr. Charania testified that cognitive symptoms include difficulty with concentration and focus, overstimulation, trouble sleeping, racing thoughts, inability to multitask, and feeling overwhelmed. However, during her cross-examination, Dr. Charania agreed that Ms. Caron had complained of similar symptoms prior to this incident. For example, Dr. Charania’s clinical notes and records for the period of time before the slip and fall incident indicate that the plaintiff experienced difficulty sleeping, had racing thoughts, difficulties with concentration and focus, felt overstimulated, and considered undergoing testing for attention deficit disorder, all of which Dr. Charania said could be a manifestation of cognitive symptoms. In addition, Dr. Charania said that someone with attention deficit disorder can have difficulty multitasking, problems with memory, and difficulty following through with tasks; the evidence shows that attention deficit disorder testing was discussed with the plaintiff in June 2006.

[91] The testing performed by Dr. Gow in October 2009 demonstrates mild difficulties with task anxiety being a factor. Dr. Gow testified that in May 2010 she believed that a return to work was premature until Ms. Caron had about three to six months of treatment with Dr. Dessaulles; that a graduate return to work could thereafter be attempted. Ms. Caron started seeing Dr. Dessaulles on March 24, 2010.

[92] Dr. Charania conveyed the impression of a family doctor who cares deeply for her patients. By the end of May 2010, she believed that Ms. Caron could return to work on a progressive basis, with accommodations, and on November 15, 2010, she signed the first return to work plan with a contemplated start date of November 29, 2010. She then agreed with the content of this plan, and testified that if it had been implemented, she was hopeful that it could succeed. On November 25, 2010, the plaintiff told Dr. Charania that she was worried about returning to work because her new manager was not willing to accept accommodations in regards to working from home; the new manager made it clear to Ms. Caron that she wanted Ms. Caron to work in the office. At Ms. Caron’s request, on November 25, Dr. Charania wrote a letter to Ms. Caron’s employer that the return to work plan might need to be modified depending on the circumstances; for example, to allow Ms. Caron to work from home on certain days. Dr. Charania was not aware that Ms. Caron had been informed, on November 25, that the return to work plan could be modified. Although we do not know at what time Ms. Caron consulted Dr. Charania on November 25, and therefore we do not know if Ms. Caron had beforehand received her employer’s emails that the return to work plan could be modified, we do know that at no time thereafter did Ms. Caron advise Dr. Charania that her employer had informed her on November 25 that the return to work plan could be modified. In any event, Dr. Charania testified that Ms. Caron was impacted by the meeting with her employer of November 26, and that it caused a setback in her condition. Dr. Charania wrote two letters on December 9 (one to Mr. Brouillette and one to the plaintiff’s manager) outlining: her concerns about the effect of that meeting; that it definitely caused a setback; that Ms. Caron had an intensification of her anxiety and depressive symptomology including persistent fatigue, distractibility and confusion; and that, at the moment, Ms. Caron was not able to return to any form of employment however, that she was very confident that she would be able to return to her job in the foreseeable future. Dr. Charania testified that she was very confident for the foreseeable future, as indicated in that letter, but that a return to work needed to be with a different manager.

[93] Similarly, Dr. Dessaulles, in a letter dated May 12, 2011 – Dr. Charania agreed with most of this letter when she testified – indicated that:

• The plaintiff was ready for a gradual return to work process by the fall of 2010 (although he felt that the November 29, 2010 return to work was slightly premature because a full day to start would not work).
• Conflict with her new manager produced a significant amount of stress for Ms. Caron and she gradually began to deteriorate.
• She would have been ready to begin a gradual return to work process in January or February 2011 had her employer responded in a more constructive and supportive manner.
• At this time, she suffered a relapse/setback and is no longer fit for any type of work.
• She will probably be ready for a gradual return to work in the early fall of 2011, but in a different work environment.
• The prognosis for Ms. Caron appears to be quite good. At trial, Dr. Charania was not certain whether she agreed with this last point because, she explained, doctors sometimes say that the prognosis is good in order to try. However, on September 22, 2011, Dr. Charania sent a letter on behalf of the plaintiff to the plaintiff’s manager, stating that “I have seen Moira today and I believe that she will likely be able to return to work in the next few months.”). Moreover, by the fall 2011 Dr. Charania was no longer involved in the treatment of Ms. Caron.

[94] The evidence establishes that Ms. Caron could have returned to work on a progressive basis and with accommodations, starting on November 29, 2010, or else starting in January 2011. As well, I find that Ms. Caron’s failure to return at either of those times resulted from her pre-existing anxiety disorder, and from the anxiety and stress associated with the contemplated return to work to a non-receptive/reluctant manager. This is also apparent from what Ms. Caron told her two treating health professional at the time (see the notes of Dr. Charania, both dated November 25, 2010, and the note of Dr. Dessaulles, dated November 24, 2010). Moreover, I found that Dr. Dessaulles occasionally acted more as an advocate than as an objective health professional, and as a result I am somewhat suspicious of his opinions.

[95] Dr. Suddaby presented as a reasonable and fair expert. He testified that Ms. Caron had lifelong difficulties with anxiety and depression. He said that she could have returned to work, and that patients in her condition are often helped by returning to work even if they are not yet one hundred percent ready because waiting too long can impede the prognosis of a successful return to work. Although he did not have all of the notes of Dr. Dessaulles and although he noted some memory issues, he said that Ms. Caron’s November 2010 contemplated return to work with her then manager created anxiety, and caused a temporary relapse of her anxiety and depressive illness. He also opined that Ms. Caron no longer suffered from any psychiatric condition related to the incident and that, as of December 2010, the incident did not have an effect on her ability to pursue employment. I find that these findings are supported by the bulk of the evidence.

[96] The reliability of Dr. Gow’s 2010 opinion is undermined by the limited pre-incident medical records then made available for Dr. Gow’s review, and by Dr. Gow’s understanding from Ms. Caron that her pre-existing anxiety had not affected her ability to work prior to the incident. Indeed, Dr. Gow was not aware of Ms. Caron’s January 2000 letter to her employer seeking accommodations, of the necessary work accommodations in place for Ms. Caron since before 2006, of Ms. Caron’s June 2006 evaluation, and of the December 2006 Memorandum of Understanding. Dr. Gow was again not provided with all of the plaintiff’s medical records when she prepared her 2016 opinion.

[97] Both Dr. Gow and Dr. Judge agreed that:

• Ms. Caron likely suffered a mild traumatic brain injury during the January 2008 slip and fall;
• Ms. Caron suffered from pre-existing anxiety disorder, with episodes of panic and depression; and
• the majority of patients with a mild traumatic brain injury recover within two years.

[98] Dr. Gow agreed that the normal course for patients with a mild traumatic brain injury is to recover prior to one or two years from the injury. She explained that the literature indicates that about 15% of such patients (whom she describes as the “miserable minority”) nonetheless fail to enjoy recovery and, depending on their personal circumstances, continue with some symptoms and with some degree of disability; she believes that Ms. Caron falls within this miserable minority.

[99] Dr. Gow agreed that there is no consensus within her scientific community whether such ongoing symptoms are related to the mild traumatic brain injury. She also agreed that causation as to why some patients remain with symptoms is not clearly understood and is still the subject of ongoing research. Nonetheless, in this case, Dr. Gow believes that it more plausible that Ms. Caron’s mild traumatic brain injury eroded her cognitive resources. Although Dr. Gow agreed that anxiety and depression could have produced some aspect of the observed profile, and that significant disability would not be predicted from this incident, she explained that the mild interference must be interpreted in light of very high level of pre-incident function and achievement.

[100] However, Dr. Gow relied on the plaintiff’s self-reporting to explain some of her conclusions. For example, Dr. Gow relied on Ms. Caron’s self-reporting that her recovery was insufficient to allow her to return to her demanding occupation, when Dr. Gow was not aware that Ms. Caron had not actually attempted to return to work in 2010 or thereafter. As well, the language used by Dr. Gow when she testified was occasionally not overly convincing, particularly when she talked about the two schools of thought over why the miserable minority fails to achieve recovery and why in this case she chose one side over the other. In addition, although Dr. Gow agreed that the reduction in scores observed in the testing results of Ms. Caron is unusual, she provided a somewhat speculative explanation that such patients are not typically seen over a period of about eight years, that Ms. Caron now leads a much simpler life, and that this is a function primarily of the injury and of a mild decrease on some items from aging. Dr. Gow also agreed that the test results of Ms. Caron can be interpreted differently by two objective clinicians. As well, she agreed that some research has indicated that a mild traumatic brain injury has little to no effect on neuropsychological function by three months or more post injury, and that further research is necessary to clarify these findings.

[101] Dr. Judge opined that the mild traumatic brain injury that Ms. Caron sustained does not contribute to her current symptoms. In his opinion, the post-concussion syndrome experienced by Ms. Caron is not caused by brain injury. He explained that such symptoms are found in the general population, and that Ms. Caron’s profile fits well. Although he is primarily retained by defendants, has had no treating practice for a number of years, and although he conducted his clinical testing and interview of Ms. Caron with the preconceived opinion that her brain injury should have resolved within months of the incident, I still place some limited weight on his opinions for the following reasons.

[102] Although Dr. Gow disagreed with Dr. Judge’s conclusions, she agreed that his opinions are not unreasonable considering the test results, and, as indicated above, the healthy debate amongst her scientific community on these exact topics. In addition, despite the above, Dr. Judge carefully administered testing and carefully reviewed all of the available clinical notes and records before he confirmed his opinion. His explanation that there is no neurological mechanism related to the mild traumatic brain injury that would result in a reduction of scores over time is more convincing than that of Dr. Gow because it is not premised on speculation. His evidence that the abnormal test results are more likely a consequence of the plaintiff’s pre-existing anxiety disorder is convincing; the plaintiff’s belief that she suffers from continued symptoms of a brain injury is better explained by her lifelong high levels of anxiety and her tendency to seek a medical explanation for her nonspecific symptoms. As well, from the evidence of the witnesses at the scene, and from the ambulance and emergency records, I prefer his analysis that this was a mild traumatic brain injury at the not-of-any great significance end of the spectrum, and that the broad spectrum of such injuries is a relevant consideration when considering the conflicting literature on this topic.

[103] Consequently, assessing all of the evidence, I find that the plaintiff has not proven that her current complaints result from the concussion or mild traumatic brain injury she sustained as a result of her fall. I also find that the plaintiff has not proven that her inability to return to work after January 2011 was caused by the slip and fall incident.

Adverse Inference

[104] The defendants argue that I should draw an adverse inference against the plaintiff for failing to produce the clinical notes and records of some of the mental health practitioners involved in her pre-incident care. The defendants rely on Levesque v. Comeau, [1970] S.C.R. 1010 (where, at para. 6, the Supreme Court found that the failure to call other doctors resulted in the court presuming that such evidence would adversely affect the plaintiff), and on 1664550 Ontario Inc. v. 1240393 Ontario Ltd., [2011] O.J. No. 6441 (S.C.), at para. 50. The plaintiff argues in response that the defendants only requested production of most of these records in the last weeks before the trial of this action, that I ruled on the defendants’ production motion at the start of this trial, that the clinical notes and records of Dr. Charania contained reports from some of these health practitioners, and that none of the defendants’ medical witnesses indicated that they required the documentation in order to give a fulsome opinion.

[105] The law on this is stated in Sopinka, Lederman and Bryant, The Law of Evidence in Canada:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. The inference should only be drawn in circumstances where the evidence of the person who was not called would have been superior to other similar evidence. The failure to call a material witness amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

An adverse inference should be drawn only after a prima facie case has been established by the party bearing the burden of proof.

(Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 5th ed. (Toronto, LexisNexis, 2018), at paras. 6.471 and 6.472)

[106] The circumstances of this case could support an unfavourable inference against the plaintiff for failing to provide these clinical notes and records; however, I make no such finding because I accept the plaintiff’s partial explanation that the defendants were late in requesting or in pursuing these pre-incident clinical notes and records. I recognize that the obligation was on the plaintiff to produce all relevant documents, and that she failed to meet that obligation. I recognize further that these clinical notes and records would have assisted the medical experts who testified in this matter because having access to such clinical notes and records, particularly of other mental health practitioners previously seen by the plaintiff, would at a minimum have allowed the medical experts to form a more thorough patient history for the plaintiff. In turn, this would likely have allowed for a more thorough assessment and opinion. I do not accept the plaintiff’s argument that the absence of these records had no impact because I find speculative and circular the plaintiff’s arguments that the experts did not indicate that they could not otherwise give a fulsome opinion: the experts did not know what these documents contained and therefore it is speculative and circular to argue that their absence had no impact. However, as indicated, I do not draw an unfavourable inference against the plaintiff for her failure to produce all relevant documents because I accept, as per my endorsement on this motion made at the start of trial, the plaintiff’s partial explanation that most of these were requested or pursued late by the defendants; hopefully communicating the message that such requests made on the eve of trial are made too late.

Whether the plaintiff’s employer, in how it dealt with the plaintiff and her employment following this incident, broke the chain of causation?

[107] The defendants argue that the plaintiff’s employer’s failure to accommodate her return to work constituted a new intervening act that broke the chain of causation; that the behaviour of the plaintiff’s employer could not have been reasonably anticipated by the defendant.

[108] Whether a new intervening act is of sufficient magnitude, or of such quality, to break the chain of causation involves complicated questions of causation and foreseeability; see for example the cases relied upon by the parties: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, 82 C.C.L.T. (3d) 260), at paras. 76-89; Martin v. McNamara Construction Co., [1955] O.R. 523 (C.A.), at para. 14; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398, at para. 33; and Renaissance Leisure Group Inc. v. Frazer (2004), 242 D.L.R. (4th) 229 (Ont. C.A.), at para. 40. The principle behind the doctrine is that a defendant should not be held liable for objectively unforeseen consequences (see Hussack, at para. 87).

[109] In none of the cases referred by the parties, on this point, did the court conclude that the new intervening act was of a quality sufficient to break the chain of causation. The defendants rely on Hussack v. Chilliwack. In that case, the father of an injured child exhibited severe and long-standing overprotective tendencies which impacted his child. Nonetheless, the British Columbia Court of Appeal concluded that the father’s conduct did not constitute a new act of sufficient quality to break the chain of causation because the father’s conduct was not unforeseen.

[110] I arrive at a similar conclusion. It was reasonably foreseeable that Ms. Caron’s reintegration into the workplace would face challenges. As indicated in Derksen, it was not an “abnormal incident of the risk created” by the defendant; rather, it was “part of the ordinary course of things”. Indeed, not all employers are good employers; some are difficult and insensitive to the needs of their employees, and, as a result, if I had decided differently, the outcome in this case was not an objectively unforeseen consequence of the defendants’ actions. Consequently, considering the evidence and if I had decided differently, I find that the defendants have not established that the employer’s conduct was of sufficient magnitude or of such a quality to break the chain of causation.

What are the damages, particularly: the amount of general and loss of income damages, whether the plaintiff failed to mitigate her damages, and whether collateral benefits should be deducted?

Deduction of Collateral Benefits

[111] The defendants argue that payments received for past and future long term disability benefits should be deducted from any award for income loss in order to ensure that the plaintiff’s damages reflect actual loss, and in order to avoid double recovery. The defendants rely on: IBM Canada v. Waterman, 2013 SCC 70, [2013] 3 S.C.R. 985; Mazzucco et al. v. Herer, 2015 ONSC 7083; and Sylvester v. British Columbia, [1997] 2 S.C.R. 315. They also argue that the plaintiff failed to put any evidence before this Court about the terms of the collective agreement, about whether the plaintiff paid for the benefits, or about the insurance policy to establish whether any right of subrogation exists. For reasons outlined below, I disagree with the arguments of the defendants on this point.

[112] Following a motion heard on February 21, 2019, I allowed Ms. Caron to re-open her case to file the applicable collective agreement. It confirms that Ms. Caron paid 15% of her LTD premiums. As well, a letter from her insurer, filed during trial, indicates that Ms. Caron is required to notify her insurer of all sources of income, including any damages for loss of income, as they may “impact your disability benefits. Early notification will reduce an overpayment which will alleviate the amount of potential overpayment.”

[113] IBM Canada v. Waterman does not stand for the broad principle advanced by the defendants, is a contract case, and does not overturn the earlier Supreme Court decision in Cunningham v. Wheeler, [1994] 1 S.C.R. 359; it provides additional guidance.

[114] Applying Cunningham v. Wheeler, I find that the plaintiff’s LTD benefits are not deductible from her loss of income damages because they are subject to the private insurance exception.

[115] I arrive at the same result applying the principles outlined in IBM Canada v. Waterman; I find:

• That a potential compensating advantage problem exists in this case because Ms. Caron receives LTD benefits that could result in compensation beyond her actual loss, and the long-term disability amounts payable to Ms. Caron are intended to indemnify her for a part of her loss of income such that they are for the sort of loss resulting from the damages (they are therefore sufficiently connected to the defendants’ tort - see paras. 28, 32, and 76 of Waterman). Moreover, because the LTD benefits paid to Ms. Caron are paid to indemnify her for her loss of income, then these are not generally not to be deducted, and they constitute a stronger case for deduction (as per Waterman at para. 76).
• Ms. Caron has contributed to the cost of her LTD benefits (see the above evidence and Cunningham v. Wheeler at paras. 97-98).
• Waterman invites the courts to consider broader policy considerations. On that topic, I note the following. The private insurance exception is applicable to the facts of this case. In fact, the facts of this case are similar to those in Cunningham v. Wheeler, where such benefits were not deducted. From a policy perspective there is a problem with deduction in this case resulting from the level of uncertainty surrounding the payment of LTD benefits. Indeed, Ms. Caron’s insurer may at any time request that she attend at a medical assessment to review her ongoing entitlement. Moreover, adding to the level of uncertainty, Ms. Caron has the obligation to inform her insurer of the receipt of any damages for loss of income, and her insurer may then determine whether any overpayment or deductions are due. Although there is no evidence of subrogation, if I had decided differently and if I decided to deduct Ms. Caron’s LTD benefits, this would transfer these risks to the plaintiff, even for past amounts, which seems unfair as between Ms. Caron (the innocent plaintiff) and the defendants (the tortfeasors). As well, I note that the facts in this case are different from those in Mazzucco where the payors were essentially the taxpayers.

[116] Consequently, when I consider the evidence as it applies to the factors outlined in the Waterman decision, I find that it also favours that Ms. Caron’s LTD benefits not be deducted.

[117] Finding otherwise, had I decided liability and causation differently, would transfer too much risk to the plaintiff; she might then not recover sufficient damages to return her to the position she would have been in had the accident not occurred because her LTD benefits could be reduced (they were reduced when she qualified for a medical pension). This would undermine the basic principle of recovery in a tort action that plaintiffs are to be compensated as fully as money may permit for the loss suffered as a result of the tortfeasor's negligence.

[118] Having worked through the above, I am hopeful that broader policy considerations will rarely conflict with the need for clear rules that are easy to apply, and will therefore not add levels of evidence, including expert evidence, over what is preferable or over what might incentivise socially desirable conduct in the context of collateral benefits.

Whether the Plaintiff Failed to Mitigate

[119] The defendants argue that the plaintiff’s failure to make any attempt to return to work breached the plaintiff’s duty to mitigate her damages, which they argue disentitles the plaintiff to receive damages for loss of income. Considering my findings on causation, outlined above, I do not need to address this argument. However, if I had found differently on causation I would not have found that the plaintiff failed to reasonably mitigate her damages because if you accept the plaintiff’s evidence on causation, which I did not, the plaintiff could not have returned to work and therefore would not have failed to mitigate her damages.

Assessment of Damages

[120] If I had found that the defendants’ breached their duty of care, which I did not, I would then have assessed Ms. Caron’s damages as follows:

a) Non-pecuniary general damages: $80,000, plus pre-judgment interest;

b) Loss of past income: $290,562, plus pre-judgment interest;

c) Loss of future income: $0; and

d) Loss of future pension: $0.

[121] As per my findings, Ms. Caron suffered a mild traumatic brain injury, and associated symptoms resolved within about two years after the incident. An assessment of her non-pecuniary damages at $80,000 is within the range of reasonable compensation for such an injury.

[122] Ms. Caron was employed at an LA-2A level and, for purposes of loss of income, it is not disputed by the plaintiff that she would have remained so up to retirement. On causation, I found that Ms. Caron had not proven that her current complaints and inability to return to work after January 2011 were caused by the slip and fall incident. Consequently, her loss of income is limited to the period up to January 2011. I therefore calculate a loss of income totalling $290,562 (see Schedule 2 of Exhibit 27: $50,876 in 2008 + $121,087 in 2009 + $108,187 in 2010 + $10,412 for January 2011).

[123] If I had found differently on causation, I would have applied a contingency of at least 20% on the loss of future income calculated by Mr. Pittman because none were applied in his report for specific contingencies. Indeed, it seems realistic that Ms. Caron would have stopped working at an earlier date than when she reached age 65 considering her pre-existing anxiety, how that anxiety impacted her employment, and her marriage to a gentleman who resides in Colorado in January 2013.

Conclusion

[124] This action is dismissed.

[125] If the parties are unable to agree on costs within 30 days from the date of these reasons, they shall provide directly to my assistant written submissions not exceeding five pages, plus relevant documents: by the defendants within 40 days from these reasons, by the plaintiff within 50 days from these reasons, and any reply by the defendants limited to two pages within 55 days from the date of these reasons for decision. If written submissions on costs are not received by my assistant by mid April 2019, I will assume that the parties have reached an agreement on costs.

Mr. Justice P.E. Roger Released: 2019/02/28