COURT FILE NO.: 8731/12

DATE: 20190806

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Roderick Noiles, Sherry Pryce Noiles, personally and as Litigation Guardian for Ashley Noiles and Kylie Noiles

Plaintiffs

– and –

MTD Products Inc., MTD Products Canada Ltd., Jim Dodson Sales Ltd. cob Canadian Tire and Canadian Tire Corporation Limited

Defendants

G. Good, for the Plaintiffs

L. Lorimer and R. Cooper, for the Defendants

HEARD: October 2, 3, 4, 5, 12, 22, 23, 25, 26, 29, 30, 2018, November 1, 2, 26, 27, 28, 29, 30, 2018, December 6, 2018, January 7, 8, 9, 10, 11, 14, 15, 16, 17 and 18, 2019

LEITCH J.

Table of Contents

• PART 1. 8
• Background information. 8
• PART 2. 10
• Mr. Noiles’ education and employment history prior to the April 2012 incident 10
• PART 3. 15
• Mr. Noiles’ health prior to the April 2012 incident 15
• PART 4. 17
• Did Mr. Noiles have any ongoing psychological issues prior to the April 2012 incident which should reduce any damages awarded in relation to the April 2012 incident?. 17
• PART 5. 21
• Mr. Noiles’ treatment by Dr. Lacerte November 3, 2010, June 4, 2012, October 25, 2012, December 4, 2012, January 21, 2014. 21
• PART 6. 24
• Mr. Noiles’ treatment immediately following the April 24, 2012 incident - attendance at emergency department April 24 and April 29; referral to orthopaedic clinic April 29, 2012; assessment by Dr. Fox May 1, 2012; ultrasound May 8, 2012; visit to Dr. McLeod’s orthopaedic clinic May 9, May 23 and June 27, 2012. 24
• PART 7. 25
• Mr. Noiles’ symptoms and treatment over the summer of 2012. 25
• PART 8. 25
• The July 2012 motor vehicle accident – is it an event which impacts the assessment of damages arising from the April 2012 incident?. 25
• PART 9. 28
• Follow up by Dr. McLeod on September 5, 2012 and referral to Dr. Clarke at the chronic pain clinic; MRI of right calf October 1, 2012; follow up by Dr. McLeod on October 17, 2012; and Mr. Noiles’ first appointment with Dr. Clarke October 31, 2012. 28
• PART 10. 30
• Credibility issues arising from Mr. Noiles’ communications with Great West Life, his treating physicians and other health care providers. 30
• PART 11. 32
• Mr. Noiles return to work on November 1, 2012. 32
• PART 12. 34
• Mr. Noiles’ treatment by Mr. Harris, physiotherapist January 31, 2013 to June 11, 2013. 34
• PART 13. 37
• PART 14. 39
• Dr. Clarke’s referral to a pain psychologist, Dr. Getty, December 2013 and Mr. Noiles’ participation in counselling with Dr. Getty February to August 2014. 39
• PART 15. 39
• Dr. Clarke’s resumption of treatment in 2015. 39
• PART 16. 43
• The observations of Mr. Noiles’ friends and family after the April 2012 incident 43
• PART 17. 48
• Observations of Mr. Noiles’ co-workers and his work performance after the April 2012 incident 48
• PART 18. 51
• Dr. Clarke’s prognosis for Mr. Noiles in relation to the injury sustained in the April 2012 incident 51
• PART 19. 52
• The defendants’ challenges to Dr. Clarke’s opinions. 52
• He was a relatively new doctor with relatively little experience on his own and he acted as Mr. Noiles’ advocate 53
• Dr. Clarke was inappropriately influenced by Dr. McLeod’s referral and Dr. Clarke relied on Dr. McLeod’s diagnosis. 54
• Dr. Clarke did not properly diagnose Mr. Noiles as having CRPS because the diagnosis was made before considering whether there was a better explanation for the symptoms. 55
• Dr. Clarke did not have sufficient and accurate information from Mr. Noiles to make his diagnosis 57
• Dr. Clarke’s opinion that Mr. Noiles’ radiculopathy is not a significant contribution to his functional status is not accurate. 60
• The video surveillance suggests Dr. Clarke’s opinion should not be accepted. 62
• Dr. Lipson’s opinion should be preferred over Dr. Clarke’s. 64
• Conclusion. 70
• PART 20. 70
• The defendants’ assertion that Mr. Noiles has failed to mitigate his damages. 70
• PART 21. 80
• What is the fair and reasonable assessment for Mr. Noiles’ non-pecuniary damages?. 80
• PART 22. 81
• Special Damages. 81
• PART 23. 81
• Damages for past loss of income - what past loss of income is attributable to the April 2012 incident – would Mr. Noiles have obtained the lead hand position in the City’s sewer department in 2017 had he not been injured in the April 2012 incident?. 81
• PART 24. 84
• Damages for future loss of income. 84
• PART 25. 85
• Damages for future care needs. 85
• PART 26. 87
• The Family Law Act Claims. 87
• PART 27. 88
• Issues relating to the Subrogated Claims. 88
• Other issues. 89

[1] Mr. Noiles was injured on April 24, 2012 by a snow thrower. He was putting air into one of the tires when the tire rim exploded. Pieces of the fractured rim and tire struck his right shin. He sustained bruising and a laceration which required 3 stitches, however there was no hole in his jeans or sock.

[2] This action was commenced in November 2012.

[3] The defendants amended their statement of defence in September 2018 and admitted liability for the consequences of the April 2012 incident as set out in paras. 10 and 11 of the Amended Statement of Defence as follows:

The defendants do not dispute that a snow thrower manufactured, distributed and sold by them was involved in an incident wherein the plastic rim of the wheel fractured causing the plaintiff Rod Noiles to sustain a laceration that required three stitches.

The defendants do not contest that they are liable for any injury to Mr. Noiles that the court determines was legally caused by the fracturing of the plastic wheel rim on his snow blower, Model 31AS3BAD515, serial number 1K094140152001, on April 24, 2012.

[4] Therefore the contentious issue in the trial was whether Mr. Noiles sustained any injury beyond the admitted laceration.

[5] The plaintiffs assert that as a result of the April 2012 incident, Mr. Noiles suffers from Complex Regional Pain Syndrome (“CRPS”) and he has experienced, and will continue to experience, considerable pain and suffering.

[6] As Dr. Sequeira (an expert in physiatry retained by the plaintiffs) explained, CRPS is a syndrome so it is a collection of signs and symptoms. It is essentially a pain syndrome that lasts longer than expected, based on observation of an injury or appearance. It is associated with specific signs and symptoms that include changes in sweating, changes in temperature, swelling, weakness, sustained contractions, sustained postures of limbs, pain that is out of proportion (hyperalgesia) and pain that is elicited by benign or innocuous stimuli ie. a light touch, breeze or a sheet (allodynia).

[7] According to Dr. Sequeira, the two most important features of CRPS other than the physical signs and symptoms, are that the pain is disproportionate to the injury that caused it and there is no other explanation for the symptoms.

[8] Dr. Sequeira explained that there is no gold standard diagnostic test for CRPS and the diagnosis of CRPS rests entirely on the assessment of clinical criteria. It is a diagnosis of exclusion.

[9] The three most common causes of CRPS are trauma, fracture and stroke. The severity of the pain is extremely variable and its impact on a given patient and their function will fluctuate.

[10] CRPS requires physical treatment, such as physiotherapy, occupational therapy, massage and acupuncture; medication; and, psychological treatment for pain management.

[11] Exercise is a useful thing to help with the progression of the symptoms of CRPS but there is no cure for CRPS.

[12] According to Dr. Sequeira, the majority of patients who have CPRS that lasts longer than three to six months will likely have some permanent recalcitrant problems and once it has existed for a year or two years, it will be a permanent condition to some degree.

[13] The plaintiffs assert that Mr. Noiles’ CRPS has, and will continue to, prevent him from working full time in the sewer and water department at the Corporation of the City of London (the “City”) and thus he has, and will in the future, sustain a significant loss of income. In addition, he will incur future care costs.

[14] On the other hand, the position of the defendants is that Mr. Noiles sustained only nominal injury beyond the admitted laceration.

[15] The defendants acknowledge that after the April 2012 incident Mr. Noiles was unable to return to his employment with the City until June 27, 2012.

[16] However, their position is that from June 27, 2012 to November 2012 the injuries Mr. Noiles sustained in a motor vehicle accident on July 9, 2012 rendered him unable to work.

[17] The defendants’ further position is that after November 2012 Mr. Noiles was only able to work part time in an accommodated position because of impairments caused by L-5 radiculopathy and foraminal stenosis and in any event he failed to mitigate his losses.

[18] Further, according to the defendants, from May 2016 (when Mr. Noiles was informed by the City that there was no longer any accommodated work available for him) to January 23, 2018 (when his grievance with the City was settled) and thereafter to the commencement of trial on October 2, 2018, Mr. Noiles also failed to mitigate his losses. The defendants assert that they have no responsibility for Mr. Noiles’ losses of income during these periods of time.

[19] In relation to Mr. Noiles’ future loss of income claim, the defendants assert that Mr. Noiles is capable of working full time in a light sedentary position and in any event any limitations on his ability to work are caused by his L-5 radiculopathy and foraminal stenosis. They also assert that Mr. Noiles has failed to mitigate his damages claimed for future loss of income. Therefore, the defendants’ position is that no future loss of income should be awarded to Mr. Noiles.

[20] Alternatively, the defendants’ position is that even if I find that the April 2012 incident is the cause of Mr. Noiles’ current symptoms and they impact his future earning capacity only retraining costs should be allowed and Mr. Noiles is capable of working full time in a light sedentary position.

[21] The defendants emphasize the burden on the plaintiffs in relation to causation.

[22] Causation is an expression of a relationship that must be found to exist between a tortious act of the wrongdoer and the injury to the victim in order to justify compensation to the latter out of the pocket of the former. If a defendant breaches his or her duty causing injury to a plaintiff, the law requires the defendant to compensate the plaintiff for the losses suffered as a result of the defendant’s conduct (see Clements v. Clements, 2012 SCC 32 at para. 7)

[23] The test of causation is the “but for” test. The “but for” test is a factual inquiry, and applies to single and multi-cause injuries. A plaintiff must demonstrate that “but for” the negligent act or omission of a defendant, the plaintiff would not have suffered the injury or loss. In other words, the defendant’s negligence was necessary to bring about the harm (see Clements at para. 8).

[24] As a result, the defendants are not liable for Mr. Noiles’ injuries which “may very well be due to factors unconnected to the defendant and not the fault of anyone” (see Hanke v. Resurface Corp., 2007 SCC 7 at para. 23).

[25] The “but for” test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. As set out in Clements at para 46:

As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

[26] The plaintiffs’ position is that the evidence establishes that but for the April 2012 incident Mr. Noiles would not have developed CRPS, he would not endure the ongoing pain he describes and he would not be limited in his ability to work full time in his position with the City. They rely on the evidence of Dr. Clarke, who diagnosed and treats Mr. Noiles’ CRPS and the evidence of Dr. Sequeira.

[27] The defendants have advanced a competing theory of causation supported by expert evidence. They rely on the evidence of Dr. Lipson, an expert in rheumatology, internal medicine and physiatry, retained by the defendants. They take the position that they have introduced sufficient evidence contrary to the evidence supporting the plaintiff’s theory of causation. As a result, they argue that these are not circumstances where it is appropriate to draw any common sense inferences against the defendants (referencing Kamin v. Kawartha Dairy Ltd., 2006 CarswellOnt 661, a case relied on by the plaintiffs).

[28] I note that in Goodman v. Viljuon 2012 ONCA 896, the Court of Appeal stated as follows at para. 76:

Nothing in the Chief Justice’s summary [at para. 46 of Clements as set out above] suggests that a different approach is to be taken to the evidence when the defence calls evidence relevant to causation.

The robust and pragmatic approach describes the manner in which evidence is to be evaluated, not some special burden of proof: see Aristorenas, at para. 56. The robust and pragmatic approach takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues. The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the plaintiff has established causation on the balance of probabilities and not to a scientific certainty. Clearly, as counsel for the appellant urges, the robust and pragmatic approach does not countenance speculation or resort to common sense to determine issues that require expert knowledge. To resort to speculation or the misuse of common sense is to misapply the robust and pragmatic approach.

[29] The defendants referenced the decision of Cavarzan J. in Gardiner v. John [1997] O.J. No. 3826 and submitted that it is analogous to the circumstances in this case. They emphasized that in Gardiner causation was not inferred because the defendants had adduced evidence to the contrary. They further emphasized that Cavarzan J. found that most of the medical witnesses called on behalf of Mr. Gardiner could not meaningfully assist the court in addressing the question of causation because he had failed to disclose relevant pre-existing and post-accident injuries to his physicians, and there were other factors negatively affecting his credibility.

[30] The defendants contend that the same issues arise in this case as in Gardiner. They assert that Mr. Noiles was at best a poor historian and at worst was insincere. They submit that he has motivation to lie and he lacks ability to resist the influence of interest to modify his recollection. Their position is that there is good reason to doubt the veracity of the claims asserted by Mr. Noiles and the reporting of his medical history and symptoms. Therefore, they argue that the opinions on causation advanced by Dr. Clarke and Dr. Sequeira cannot be accepted.

[31] Alternatively, the defendants submit that Mr. Noiles is a “crumbling skull” plaintiff and they need not compensate him for any debilitating effects of a pre-existing condition, which he would have suffered in any event irrespective of the April 2012 incident (see Athey v. Leonati at para. 35). Their position is that any damages awarded to Mr. Noiles should be reduced to reflect the measurable risk or realistic chance that the “crumbling skull” (which they assert is Mr. Noiles’ degenerative spinal condition and pre-existing psychological issues) would manifest itself.

[32] They reference cases where a plaintiff was awarded damages only for the temporary aggravation of pre-existing conditions (for example in Vintila v. Kirkwood, 2016 BCSC 930) and cases where damages were reduced to reflect the “measurable risk” associated with pre-existing conditions (for example in Tsang v. Borg, 2012 BCSC 1249 where damages were reduced by 20 percent and Biln where damages were reduced by 40 percent)

[33] In addition, the defendants submit that even if the plaintiffs meet their causation burden, the motor vehicle accident which Mr. Noiles was involved in on July 9, 2012 contributed to his injury and pain symptoms such that the chain of causation is broken. They contend that this intervening event must be taken into account and reduce Mr. Noiles’ damages arising from the April 2012 incident in the same way as pre-existing conditions (see Loveys v. Fleetham, 2012 BCSC 358 at para. 112 citing Athey at para. 31 and 32) noting that unrelated intervening events are treated similarly to a “crumbling skull”, that is “they must be taken into account in the same way as a pre-existing condition and if such an event would have affected the plaintiff’s original position adversely in any event, the net loss attributable to the tort will not be as great and damages will be reduced proportionately”.

[34] Overall, and in any event, the defendants assert that modest damage awards are appropriate and a 20 percent contingency discount should be applied to any damages awarded for future losses relying on the SCC decision in Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 SCR 229 given that there is no actuarial evidence before the court on the issue of contingencies.

[35] OHIP asserts a subrogated claim for past health services of $15,494.93 and for future OHIP services of $13,500. While OHIP’s entitlement to its claims is contested by the defendants, there is no issue with respect to the quantum of those claims by OHIP.

[36] Great West Life Assurance Company (“Great West Life”) provided both short-term and long-term disability benefits to Mr. Noiles pursuant to a group policy issued to the City. He is eligible for these benefits as a member of the Canadian Union of Public Employees Local 107 (“the Union”) employed by the City.

[37] Mr. Noiles applied for disability benefits on May 25, 2012 and he received both short and long term disability benefits thereafter. Long-term disability benefits continue to be paid to Mr. Noiles in the amount of $2800 per month. Mr. Noiles remains entitled to these benefits (as well as extended health care benefits) as a City employee.

[38] Great West Life has advanced a subrogated claim. Mr. Noiles’ receipt of disability benefits raises the issue whether the value of such benefits should be deducted from any damages awarded to him.

[39] Before turning to an analysis of the issues in this action, I will begin by reviewing some background information relating to Mr. Noiles.

PART 1

Background information

[40] Mr. Noiles was born December 12, 1972. He was an athletic individual. He was part of the Canadian junior football league, then joined a club affiliated with a professional team and was offered a professional tryout which he did not pursue. He played as an offensive lineman.

[41] His family, friends and work colleagues described him as hard working and very committed to his family.

[42] Mr. Noiles and Mr. Brian Gauci have known each other since they were young children having grown up two doors apart. Mr. Gauci described Mr. Noiles as someone who was very physically active and played a lot of sports growing up. He considered Mr. Noiles to be in very good shape as an adult.

[43] Mr. Gauci also described Mr. Noiles as always being fun, jovial and bubbly. However, as well, he described Mr. Noiles as a “deep thinker”.

[44] Mr. Noiles met his wife, Sherry, when they were both 16. They have been together ever since and were married June 1, 1996. Like Mr. Gauci, Mrs. Noiles described her husband as a very happy, easy-going person but someone who is a bit of a worrier who really likes to think things through. She considered herself to be less of a worrier and she makes decisions more quickly and feels comfortable with her decisions.

[45] The Noiles bought a home in 2002. Mr. Noiles invested a considerable amount of labour in their property and, with the assistance of his brother-in-law, installed a pool in the backyard and finished the basement.

[46] The Noiles have two children - Ashley, who is now 19 and Kylie, who is now 17. Ashley and Kylie are excellent students and impressed me as very responsible, mature and hard-working young women.

[47] Kylie and Ashley described their father as a kind, funny, outgoing and charismatic person who loved doing outside work as well as inside housework.

[48] Mr. Noiles’ family and friends described him as being very particular about the cleanliness of their home.

[49] According to Mr. Gauci Mr. Noiles was meticulous about the maintenance and appearance of his home inside and out.

[50] Mrs. Noiles described their house as pristine. Mr. Noiles looked after a lot of the inside house cleaning and was responsible for almost all of the exterior maintenance. As Mrs. Noiles testified, her husband did more than his fair share of the work relating to their home and she only looked after the bathrooms, the cooking and helped a bit with the laundry.

[51] Mrs. Noiles is in charge of managing the finances in their household and does all the banking and all “the paperwork”.

[52] Mrs. Noiles is also a hard worker. She started in a full time university program in 1991 and then changed to a part-time student while she worked part-time. She ultimately obtained her degree in 2000.

[53] Mrs. Noiles began working at London Life in 1997 in customer service and advanced to becoming an associate manager in corporate compliance. Mrs. Noiles’ position at London Life required her to travel and when she was away from home, Mr. Noiles took care of their young children. They both described Mr. Noiles using sick days and banked overtime for childcare purposes.

[54] Mrs. Noiles left her employment at London Life in 2012 to pursue her ambition of becoming a school teacher. She began teacher’s college in September 2012. By this point in time, Ashley was old enough to look after Kylie after school. Their plan was that Mr. Noiles would work overtime and “cash in” on that overtime to replace some of her lost income.

[55] Stephanie Chestnut, Mr. Noiles’ niece, has a very close relationship with her uncle. In 2010 she estimated she would see Mr. Noiles no less than once a month. She saw him less in 2011 because she was living partly in Montreal during that year. Into December 2012 she probably saw him once a month.

[56] Ms. Chestnut described Mr. Noiles as a very sociable person with a very big personality - someone you notice when you walk into a room. It was apparent to her that Mr. and Mrs. Noiles’ relationship had a strong foundation. She also described her uncle as someone very committed to his wife and daughters and all of their activities.

[57] She too commented on Mr. Noiles’ home care and recounted calling him at midnight when he would be cleaning the house.

PART 2

Mr. Noiles’ education and employment history prior to the April 2012 incident

[58] Mr. Noiles is a long time employee of the City.

[59] After completing high school, Mr. Noiles took a couple of landscape courses at Fanshawe College but did not complete the program. He applied to become a police officer in 1990 but was not successful. He worked as a bouncer for a time and also as a security guard at the fair and at concerts.

[60] Mr. Noiles was first employed by the City as a labourer during the summer of 1991 and at the beginning in 1992 was offered temporary employment in the City’s engineering department. He enjoyed working outside and working with his hands.

[61] Mr. Watson, who originally supervised Mr. Noiles, described Mr. Noiles as an excellent worker and one who should be rehired in the water and sewer department. As a result, Mr. Noiles continued to be hired on a temporary basis by the City from 1993 to 1998 to work in the water and sewer department throughout the spring, summer and fall. During the winter months, Mr. Noiles was employed by City subcontractors to clear sand and snow from City streets.

[62] Mr. Bruff, who, in addition to serving as the president of the Union, is a water utility worker, has known Mr. Noiles for 30 years. He coached Mr. Noiles as a high school football player and knows Mr. Noiles as a workplace colleague.

[63] As Mr. Bruff described, the sewer department work requires heavy lifting and going up and down ladders. He considered it a very physical job.

[64] In 1998, Mr. Noiles obtained a permanent full time position as a labourer in the City’s water and sewer department. Before starting in this position, Mr. Noiles was required to undergo a physical examination with the City’s occupational health nurse in relation to the physical demands of a water and sewer utility worker. He was classified as being “unrestricted”.

[65] As part of his benefit package, Mr. Noiles was offered enrollment in the OMERS Pension Plan and he became a member of that plan effective August 1, 1998. His date of hire for pension purposes is May 4, 1998.

[66] Mr. Noiles successfully completed his 90 day probationary period and thereafter became eligible for additional benefits, such as a clothing allowance and other benefits in accordance with the prevailing collective agreement between the City and the Union.

[67] Mr. Noiles was required to obtain, and maintain, certification from the Ontario Ministry of the Environment. He wrote and passed the Class 1 certification exam and received his Class 1 license and other qualifications as required.

[68] Mr. Noiles also obtained his fork lift license and a DZ license (to allow him to drive a certain size of truck), which he renewed in 2017. He obtained other licenses and certifications e.g. a propane license, workplace hazard certification.

[69] Mr. Noiles was ambitious and applied for the opportunity to be employed as an acting supervisor. He successfully passed the required skills testing as of April 13, 2006.

[70] Mr. Noiles has been a continuous full time employee of the City since May 4, 1998. Mr. Noiles’ employment income steadily increased to $72,516 in 2010. His 2011 employment income, the last year he worked full time, was $68,897.

[71] Seniority plays a significant role in promotion within the City and the Union maintains a seniority list. Mr. Noiles’ seniority date is May 3, 1999.

[72] Seniority is also significant to the allocation of overtime opportunities.

[73] Mr. Bruff testified that overtime is not mandatory but is regularly offered and granted by rotation based on seniority. He estimated overtime hours of 100 to 200 hours a year would be worked by an employee in the sewer department.

[74] Mr. Bruff explained that overtime goes into a surplus time bank on an hour for hour basis and an employee can draw down the overtime in monetary compensation or can use the overtime hours for time off. Mr. Bruff was aware that Mr. Noiles exercised the latter option as needed for child care, when his children were young.

[75] It was clear that Mr. Noiles loved working for the City and, as he put it, he considered his work there as “his career”. He planned to work until he retired at age 63 (even though he would be entitled to an unreduced pension at age 55 or 56). This work suited his level of education and his interests. He welcomed the physicality of the job. Completing paperwork is not Mr. Noiles’ strength and he has limited computer skills (although he acknowledged he could conduct a google search, write emails and text on a phone).

[76] Ms. Chestnut testified that it would be obvious to anyone who knew or talked to Mr. Noiles that he was a very proud City employee. According to Ms. Chestnut, Mr. Noiles’ work was a big part of his identity. He was excited about his work and pleased with the opportunities to move upward. It was clear to her that Mr. Noiles liked to be out working on a team “with the guys” and she never had the impression that he would be interested in a desk job or management position.

[77] Mr. Ross Hall, who worked directly with Mr. Noiles from the early 1990’s leading up to 2000 when Mr. Hall went to work in the water department, found Mr. Noiles to be an extremely hard worker, dedicated, highly motivated and someone who was always willing to lend a hand and would never say “no”.

[78] Mr. Hall believed that Mr. Noiles had aspirations to be a lead hand or a supervisor in the sewer department.

[79] On cross examination, Mr. Hall acknowledged that he had not worked directly with Mr. Noiles since 2000 and in the three years preceding the incident (2009, 2010 and 2011) he had not had significant contact with Mr. Noiles.

[80] Mr. Watson directly supervised Mr. Noiles up to 2010 except when Mr. Noiles worked in the water department for short periods of time as required to maintain his water certification.

[81] On cross examination, Mr. Watson acknowledged that when he was directly supervising Mr. Noiles he saw him every morning for a period of time that could range from minutes to one half to three quarters of an hour. During the day, Mr. Watson would see Mr. Noiles on a job site at least once a day or up to two to three times a day.

[82] Mr. Watson became a manager in July 2010. Thereafter, Mr. Noiles was directly supervised by another individual in the sewer department (unless he was working in the water department). However, Mr. Watson continued to see Mr. Noiles on job sites and in 2010 he saw Mr. Noiles two to three times a week one-half to one hour at a time. He could not recall what occurred in 2011.

[83] Mr. Watson described Mr. Noiles as a go-to employee that could be counted on and who always gave him 100 percent.

[84] Mr. Watson explained that in order to advance within the City you required skills, ability and qualifications to perform the job but the bottom line was that you needed seniority to be promoted to a lead hand position.

[85] When the full-time lead hand was on vacation, or the position was vacant for any reason, an acting lead hand would be appointed. According to Mr. Watson, Mr. Noiles was frequently appointed acting lead hand because he was competent, had the required knowledge of health and safety legislation and had seniority. Similarly, when an acting supervisor was required, a position more senior to the lead hand position, Mr. Noiles was appointed in 2008 and 2009, because he had the required knowledge, the required skills and ability and seniority.

[86] Mr. Watson was aware that Mr. Doug Lee was appointed as a supervisor in 2018. He had been a lead hand and Mr. Noiles would have worked under Mr. Lee for a number of years including 2009/2010 (except for the time that Mr. Noiles was working in the water department) bearing in mind, as Mr. Watson said, that Mr. Lee was one of three lead hands.

[87] Mr. Watson did not remember any specific issues between Mr. Noiles and Mr. Lee. However, Mr. Lee, who testified for the defendants, was not complimentary of Mr. Noiles.

[88] Mr. Lee has been a City employee for 31 years and worked with Mr. Noiles for many years. Mr. Lee testified that from 2009 to 2011, he saw Mr. Noiles 5 days a week and was his acting supervisor 90 percent of the time.

[89] According to Mr. Lee, Mr. Noiles did not have a strong work ethic and he “loved to talk”. Mr. Lee also asserted that Mr. Noiles was Mr. Watson’s “pet”, he spent a lot of time in Mr. Watson’s office, he did nothing on a job site until Mr. Watson arrived on site, he had issues with anyone who had any authority over him and while driving a plow, Mr. Noiles took chances “that you’d kind of shake your head at”.

[90] Mr. Lee described an incident during a training trip to Chicago in November 2011 when he said Mr. Noiles punched a hole in the wall of the men’s washroom at a bar and yelled “nose to nose” with another patron. Mr. Lee described Mr. Noiles as red faced, agitated and upset. Mr. Lee testified that he paid the bar owner for the damage and didn’t really talk to Mr. Noiles about the incident nor did Mr. Lee report it to Mr. Watson because he “knew Bill Watson was buddy-buddy and would try to cover it up for Rod”. Mr. Lee did report the incident to Mr. Watson’s boss.

[91] Mr. Lee asserted that a month or a month and a half after the Chicago incident, Mr. Noiles “took” him to H.R. “saying” he was harassing Mr. Noiles. According to Mr. Lee, he knew that Mr. Watson “had something” to do with him being taken to H.R.

[92] Mr. Noiles claimed that when Mr. Lee arrived on a job site while Mr. Noiles was acting lead hand, Mr. Lee would not talk to him, a claim which Mr. Lee disputed.

[93] Mr. Lee complained that Mr. Noiles would speak to Mr. Watson after Mr. Lee assigned him work and Mr. Watson would “change the work” without consulting Mr. Lee. As Mr. Lee confirmed on cross examination, he would direct Mr. Noiles to do something and that would be “counter managed” by Mr. Watson.

[94] Mr. Lee and Mr. Noiles were referred to mediation and they were “to work on treating each other better”.

[95] Mr. Lee had nothing positive to say about Mr. Noiles. As will be referenced later, it was apparent that Mr. Lee did not believe Mr. Noiles sustained significant injury in the April 2012 incident.

[96] In contrast with Mr. Lee (but consistent with Mr. Hall and Watson), Mr. Bruff considered Mr. Noiles a very good worker with a strong work ethic. He described Mr. Noiles as someone who was engaged in his job and who was a happy-go-lucky guy. Mr. Bruff observed Mr. Noiles working in all kinds of weather conditions. He knew Mr. Noiles was progressing towards obtaining a lead hand position and he was aware that Mr. Noiles had been appointed an acting lead hand prior to April 2012.

[97] Also, in contrast to Mr. Lee, when Mr. Bruff was asked on cross examination if he had ever heard that Mr. Noiles had a reputation for being chatty on site, Mr. Bruff indicated that he had never heard that complaint or that Mr. Noiles’ co-workers had to encourage him to stop talking to home owners.

[98] Mr. Bruff also did not recall Mr. Noiles having any issues with Mr. Lee.

[99] I have taken into account that Mr. Noiles’ friends and family could be expected to speak positively about him.

[100] I have also taken account that after his retirement from the City, Mr. Watson continues to see Mr. Noiles through girls’ hockey and saw him a handful of times during the period May 2016 to May 2018. However, I considered Mr. Watson an independent witness.

[101] I have also taken into account the frequency of Mr. Watson’s, Ms. Chestnut’s, and Mr. Hall’s interaction with Mr. Noiles. I found their evidence objective, straight forward and credible.

[102] Mr. Bruff, who testified under summons by the defendants, was also a very straight-forward, objective and independent witness who tried to be as helpful as he could but who did not testify on any point beyond what he knew. On cross examination Mr. Bruff was questioned on the terms of the oath sworn by each member of the Union. He was also questioned about whether, in preparation for his testimony, he had spoken with Mr. Noiles, anyone at the City or at the national Union, all of which Mr. Bruff denied.

[103] Because the defendants asserted that Mr. Bruff “was acting as Mr. Noiles’ advocate when he testified in court” and “his testimony made clear that the oath of membership took precedence over the oath to tell the truth”, I have had to consider the terms of that oath which is as follows:

I promise to support and obey the constitution of this Union, to work to improve the economic and social conditions of other members and other workers, to defend and work to improve the democratic rights and liberties of workers, and that I will not purposely or knowingly harm or assist in harming another member of the Union.

[104] I found Mr. Bruff to be a very candid and credible witness and, in my view, his testimony was not shaded or influenced in any way by his loyalty to Mr. Noiles or his oath as a member of the Union.

[105] I accept the perspectives of Mr. Noiles’ family, friends and co-workers as I have outlined in this section and as I will outline further in other sections of these reasons.

[106] I place little weight on Mr. Lee’s contrasting evidence. He was entirely negative with respect to Mr. Noiles’ abilities, commitment and motivation, both before the April 2012 incident, as I have outlined above, and after the incident as I will outline below. For whatever reason, he holds some animosity towards Mr. Noiles.

[107] The defendants were critical of the plaintiffs for failing to call other City employees to testify as to Mr. Noiles’ work performance prior to the April 2012 incident. As a result, the defendants asked me to draw an adverse inference against Mr. Noiles in relation to his work ethic and work performance prior to April 2012. I note that the plaintiffs called a number of witnesses who worked at the City as outlined above. I also note that the defendants could have summoned other City employees and in fact did summon Mr. Lee.

[108] It is not appropriate to draw an adverse inference against the plaintiffs simply because they did not call other witnesses who worked with, or supervised, Mr. Noiles.

PART 3

Mr. Noiles’ health prior to the April 2012 incident

[109] Mr. Noiles described breaking his right arm as a child. He also broke his left leg in 1982 in the same area of the shin where he sustained injury in the April 2012 incident.

[110] Mr. Gauci was aware that Mr. Noiles had broken his leg while tobogganing. According to Mr. Gauci, Mr. Noiles fully recovered from that injury and Mr. Gauci never observed Mr. Noiles having any difficulties in playing sports. Mr. Gauci described Mr. Noiles as a full participant in hockey after his leg had been broken.

[111] As previously described, Mr. Noiles was active as a young adult and played semi-professional football.

[112] Mr. Noiles first saw Dr. Watson, a chiropractor, in 1990 when he was age 17, complaining of left knee pain while playing sports. He also saw Dr. Watson while he played semi-professional football in relation to his wrist and locked hips and Dr. Watson adjusted his neck and back. He also reported numbness or loss of sensation to Dr. Watson in his fingers, hands, arms and legs.

[113] Mr. Noiles saw Dr. Watson from time to time for preventative maintenance in his physically demanding job with the City. As Mr. Noiles described, he was up and down trenches, in and out of confined spaces, worked on wet slippery uneven ground and was “on” a jack hammer all day which was tiring on his arms and legs.

[114] Mr. Noiles informed his family doctor, Dr. Fox that he experienced some numbness in his fingers and in 2010 Dr. Fox referred Mr. Noiles to Dr. Lacerte, a specialist in physical medicine. Dr. Lacerte administered EMG testing, for investigation of carpal tunnel issues in his left hand. Mr. Noiles testified that his hand numbness did not interfere with his work. I will review Dr. Lacerte’s treatment of Mr. Noiles in more detail below.

[115] On cross examination, Mr. Noiles acknowledged he was involved in a 1995 MVA; he had on and off back pain and his hips sometimes got locked; he had foot problems in 1999 and complained to Dr. Fox of foot numbness at the end of a work day; he complained further to Dr. Fox about his feet in ensuing years (in January 2000 or 2001, March 31, 2003, November 18, 2004 and March 2005) and was referred to a podiatrist and Dr. Fox prescribed compression socks noting “venous insufficiency”; he was also prescribed orthotics; going back to the 1990’s he had paresthesia in his arms and hands and after being seen by Dr. Lacerte in November 2010 he continued to report problems with his hands and feet to Dr. Fox right up until the April 2012 incident and Dr. Fox made continuing further referrals to Dr. Lacerte.

[116] Mr. Noiles testified that he had no work attendance issues prior to the April 2012 incident and did not miss work because of pre-existing health issues.

[117] However, the City’s employment records reveal that from January to April 2012 (a 77 day period) Mr. Noiles was off work or left early 31 days, called in sick 9 times, used 6 vacation days, 9 surplus days, 2 lieu days and had 1 unpaid leave of absence day.

[118] In the 77 day period described above, Dr. Fox’s records note Mr. Noiles attended because of stomach problems. Mr. Noiles also saw Dr. Fox regarding stress in January 2012 which Dr. Fox noted was “ongoing” at Christmas. Mr. Noiles queried Dr. Fox as to whether his medicine (which he had been prescribed after reporting stress in the fall of 2011 as discussed in more detail below) made him angry. He also told Dr. Fox he had seen someone through his work benefits and Dr. Fox gave him a prescription for a psychologist.

[119] Mr. Noiles testified that the stress he was experiencing at that time related to his mother’s death and to other ailments. It did not impact his work and he remained capable of doing his job. As Mr. Noiles testified, calling in sick or leaving early did not indicate he was not capable of doing his work.

[120] Mr. Noiles testified that none of the foregoing issues affected his ability to work or his attendance at work and overall prior to the April 2012 incident his health was good. Specifically, in relation to his work attendance, Mr. Noiles testified that issues with his attendance were never flagged by his supervisors nor was he ever spoken to about his attendance.

[121] Mr. Noiles’ evidence was supported by Mr. Watson, who was not aware of any attendance issues relating to Mr. Noiles. Up to July 2010 if Mr. Noiles left the job site he would need Mr. Watson’s permission to do so. After July 2010 if there had been an issue with Mr. Noiles’ attendance the supervisor would have brought that to Mr. Watson’s attention as his manager.

[122] Mr. Watson was also not aware of any physical limitations or mental health issues that affected Mr. Noiles’ ability to do his job prior to April 2012. As Mr. Watson put it, all he knew is that during the time Mr. Noiles worked for him, Mr. Noiles was strong, and had no issues doing any physical work that Mr. Watson assigned to him.

[123] Similarly, Mr. Bruff was not aware of any performance issues in relation to Mr. Noiles’ work prior to the April 2012 incident. He was adamant that if there were such issues, he would know about them. He also never observed any issues in relation to Mr. Noiles’ ability to work prior to the April 2012 incident.

[124] Mr. Bruff confirmed Mr. Noiles’ evidence that a City employee can call in and report they are going to be absent 30 minutes prior to the commencement of their shift and are not obliged to give any reason. However, leaving early or requesting time off requires the approval of a supervisor.

[125] Mr. Bruff emphasized that if there had been a problem in relation to Mr. Noiles’ attendance at work, he or one of the Union representatives would be called in. As he explained, there is a threshold in terms of absenteeism and attendance and if that threshold was crossed, a flag would go up and the employee would be “pulled into counselling”.

[126] I do not accept the defendants’ assertion that Mr. Noiles’ attendance records reflect that Mr. Noiles was incapable of working full time at his job prior to the April 2012 incident.

[127] I am satisfied that prior to the April 2012 incident Mr. Noiles did not suffer from any condition which impaired his ability to fulfill his employment duties.

PART 4

Did Mr. Noiles have any ongoing psychological issues prior to the April 2012 incident which should reduce any damages awarded in relation to the April 2012 incident?

[128] Mr. Noiles described himself as “probably an over thinker” and maybe “a worrier”. In 2002, he experienced anxiety when he was scheduled for a vasectomy. He sought medical attention in relation to that anxiety and eventually had a vasectomy.

[129] In 2004, he saw Dr. Fox because he was worried about a pending strike at the City. He testified that this worry did not amount to depression.

[130] In 2009, after his father was diagnosed with prostate cancer which developed into stage IV lung cancer, his mother was also diagnosed with cancer. The loss of his parents, and particularly the loss of his mother in October 2011, was very difficult for Mr. Noiles. He saw Dr. Fox to help him cope with these losses and his worries in relation to their estates.

[131] On October 18, 2011 he saw Dr. Yemchuk, a physician in Dr. Fox’s office, in an after-hours clinic. The medication prescribed by Dr. Yemchuk helped him sleep and reduced his anxiety.

[132] He also saw a counsellor who was available through his employment but he did not find the counselling particularly helpful and pursued it only briefly.

[133] Mr. Noiles testified that although he was a worrier, and the loss of his parents and complications relating to their estate caused him stress, he did not suffer from any ongoing psychological issues or conditions prior to the April 2012 incident.

[134] The defendants contested the veracity and reliability of that assertion based on hospital records, the records of Dr. Fox and the records of Dr. Lefcoe, a psychiatrist who saw Mr. Noiles August 7, 2012.

[135] The defendants emphasized that in addition to the issues that Mr. Noiles described, the notes in Dr. Fox’ records state that on March 18, 2004 Mr. Noiles had “long term anxiety” and on May 25, 2010 he was “anxious”.

[136] The defendants also emphasized the note from Mr. Noiles’ visit with Dr. Yemchuk on October 18, 2011 which indicated that Mr. Noiles had “chest tightness, palpitations, diaphoresis, air hungry, felt shaky”. He reported his mother had died on October 9 and his father had died two years previously. He also reported a chronic history of insomnia and that he “admits to a life-long history of recurrent similar episodes”. Dr. Yemchuk diagnosed “GAD with panic attacks” referencing general anxiety disorder. Mr. Noiles had no recollection of this diagnosis.

[137] Similarly, although Mrs. Noiles attended with Mr. Noiles when he saw Dr. Yemchuk and the note records that she “supports” the history given, she did not remember Mr. Noiles having a chronic history of insomnia or indicating he suffered from that condition. She acknowledged Mr. Noiles does worry a lot and agreed with that noted history, but she did not recall, or agree with, the recorded statement that Mr. Noiles had a life long history of similar episodes.

[138] Mrs. Noiles also did not remember that Mr. Noiles was given the above described diagnosis by Dr. Yemchuk on that visit. As she indicated, Dr. Yemchuk was not Mr. Noiles’ regular family doctor and she was surprised that such a diagnosis would be made after a 20 minute visit. She did recall that Mr. Noiles was prescribed medication but she could not say whether that had occurred on that visit. Mrs. Noiles was very clear that she was not aware that her husband was diagnosed with any type of mental health issue in October 2011.

[139] Mr. Noiles had follow up appointments with Dr. Fox on November 9 and November 16, 2011 and was prescribed citalopram (an anti-depressent), and a sleep aid. In addition, he was given a prescription for a psychologist, which he did not pursue. Dr. Fox noted “mother passed away recently – having a lot of stress with 2 sisters over the estate also griving [sic] says close to mom”.

[140] As previously referenced, Mr. Noiles saw Dr. Fox on January 16, 2012 when Dr. Fox noted that Mr. Noiles was there because of stress and Mr. Noiles “thought at Christmas the medication [citalopram] made him angry, but I doubt that”. Dr. Fox noted that Mr. Noiles would continue on citalopram.

[141] Mrs. Noiles testified that the loss of Mr. Noiles’ father in July 2009, and particularly the loss of his mother in October 2011, gave Mr. Noiles a sense of loneliness and he was sad and withdrawn for a while. As she indicated, losing his mother was very difficult for Mr. Noiles; however, he continued to go to work and do all the things that needed to be done. He started to heal and she saw his increased participation and engagement back in their life. According to Mrs. Noiles, he was certainly completely fine by the time they took their March break trip to Mexico in 2012. She considered his response to the loss of his parents as completely natural and appropriate.

[142] Mrs. Noiles testified that she did not remember Mr. Noiles speaking to her about medication making him feel angry.

[143] When Mr. Noiles attended urgent care on May 28, 2012 following the April 2012 incident because of pain control concerns and mood issues, it was noted he had “long-standing issues, re: his mood; that he needs to discuss with Dr. Fox”. Mr. Noiles subsequently saw Dr. Fox May 29th and again was prescribed oxycocet for his pain control (having first been prescribed that medication by Dr. Fox May 1, 2012 to relieve Mr. Noiles’ pain arising from the April 2012 incident).

[144] Mr. Noiles also saw Dr. Wadhwa, a physician in Dr. Fox’s office, on June 25, 2012. Dr. Wadhwa, who noted that Mr. Noiles would be referred to “urgent psychiatry care” after he complained of “depression, low mood with decreased sleep and anger issues currently as well as past”. As set out above, Mr. Noiles did see Dr. Lefcoe August 7, 2012.

[145] Mr. Noiles described anger and frustration as a side effect from the oxycocet Dr. Fox prescribed following the April 2012 incident and he testified that Dr. Fox recommended he see Dr. Lefcoe as a result. However, in Dr. Lefcoe’s records the presenting complaint was noted as anger and the present illness was “fits of rage times 10 minutes. Verbal, smashing, pushed wife, since Christmas [2011], two times a month”. The defendants emphasized that Mr. Noiles’ anger issues therefore predated the April 2012 incident and were not a side effect of oxycontin.

[146] When Dr. Lefcoe’s note was put to Mrs. Noiles on cross-examination, she would not agree that Mr. Noiles’ anger issues had started at Christmas 2011. However, she acknowledged that there had been an incident where Mr. Noiles “pushed past” her but “did not push” her, and that occurred prior to the April 2012 incident.

[147] Mrs. Noiles was also referred to Dr. Lefcoe’s note of depression, anxiety and decreased sleep, energy and concentration. It was suggested to her that all of these symptoms had begun prior to the April 2012 incident, as early as November 2011, again something that Mrs. Noiles did not agree with.

[148] Mr. and Mrs. Noiles were both referred to Dr. Lefcoe’s noted provisional diagnosis of major depressive disorder and intermittent explosive disorder. They were not aware of those diagnoses and had never heard of such terminology.

[149] Mrs. Noiles was aware that, as Mr. Noiles testified, he filled the prescription from Dr. Lefcoe for Seroquel once but he did not follow up with the counselling Dr. Lefcoe prescribed. Mr. Noiles explained that the counselling he had accessed through his employment had previously not been helpful.

[150] Mr. Noiles testified that he had much different issues once he was on oxycontin (outbursts) and the depression and anxiety he experienced before the April 2012 incident related to the loss of his mother in particular.

[151] Mr. Gauci was aware that Mr. Noiles had grieved the loss of his mother after she died in October 2011. Mr. Gauci described Mr. Noiles’ reaction as a normal one and, from his observation, his grieving process was normal.

[152] Mr. Gauci acknowledged on cross-examination that he was not aware that Mr. Noiles saw a counsellor and obtained a prescription for anti-depressant medication prior to the April 2012 incident.

[153] Ms. Chestnut described Mr. Noiles as being very close to his mother and her death was very hard on the whole family. In cross-examination she confirmed that Mr. Noiles did not talk about getting help with his mental health after his mother’s death and she was not aware that he had done so. However, she did testify that she and Mr. Noiles had discussed him getting medication for depression in 2011. Mr. Noiles had indicated that sometimes people need to go through a cycle of anti-depressants to achieve balance.

[154] Ms. Chestnut was a very fair witness and was clear in what she knew and what she remembered. She was quite prepared to acknowledge on her cross-examination that it was impossible for her to say whether the death of his mother was the catalyst for Mr. Noiles’ depression as opposed to the incident in April 2012.

[155] Ashley was not aware of any diagnosis of any mental health issue in relation to her father in 2011 or issues of insomnia and she believed that that information would have been shared with she and her sister if that were the case. She was clear that her father did not have rage issues in 2011 and she would not call the grief that he experienced following the death of his mother as depression. She considered his reaction to that event as a normal one.

[156] Kylie was aware that her father saw someone and was put on medication for depression after his mother died. However, according to Kylie, her father did not have any mental health issues prior to the April 2012 incident and she too was adamant that if he did, she and her sister would have been told about them.

[157] Mr. Noiles continues to take the anti-depressant citalopram which, as described above, was prescribed for him prior to the April 2012 incident. His dosage for that medication has not changed.

[158] I am satisfied that Mr. Noiles did not have ongoing psychological issues prior to the April 2012 incident that should reduce his damages arising from the incident. He functioned well at his job and was fully engaged with his family on their activities and had very positive relationships with his family, friends and co-workers (save and except Mr. Lee).

[159] I note parenthetically that plaintiffs’ counsel referred Mr. Noiles to a psychologist, Dr. MacDonald. Dr. MacDonald testified at trial as a treating practitioner. He assessed Mr. Noiles on two occasions - July 14, 2015 and November, 8, 2016. Dr. MacDonald’s opinion was that Mr. Noiles suffered from somatic symptom disorder (consistent with chronic pain disorder) and major depression disorder caused by the April 2012 incident. Dr. MacDonald opined that Mr. Noiles would require long term psychological and rehabilitative treatment, his “accident related” impairments were permanent and Dr. MacDonald did not see Mr. Noiles working in the future as he had too many impairments and they were too serious.

[160] Mr. Noiles received counselling September 2015 to October 2016 (four sessions in 2015 and six in 2016) from a registered psychotherapist in Dr. MacDonald’s office. Dr. MacDonald supervised this psychotherapist in that he reviewed all her cases every two weeks. The defendants questioned whether Dr. MacDonald was really a “treating practitioner”.

[161] In any event, the plaintiffs did not significantly rely on Dr. MacDonald’s prognosis during closing submissions relying instead on the limitations and restrictions Dr. Clarke opined on, which I will outline further in these reasons. Indeed, plaintiffs’ counsel made limited reference to Dr. McDonald in his closing submissions and the plaintiffs made no claim for future care costs in relation to a psychologist or any other type of counselling (other than a request for marital counselling and vocational rehabilitation services).

[162] I note also that it was agreed during the course of the trial that the benefits outlined in a Manulife booklet, which was part of the evidentiary record “are available and have been available to Mr. Noiles at all relevant times” as a result of his employment with the City. Despite having insurance coverage for psychological counselling through his and Mrs. Noiles’ employment benefits, Mr. Noiles has not sought ongoing counselling.

PART 5

Mr. Noiles’ treatment by Dr. Lacerte November 3, 2010, June 4, 2012, October 25, 2012, December 4, 2012, January 21, 2014

[163] Dr. Lacerte treated Mr. Noiles on five occasions. Dr. Lacerte testified under subpoena by the defendants as a treating practitioner.

[164] As previously noted, in 2010 Mr. Noiles was referred to Dr. Lacerte by Dr. Fox requesting that Mr. Noiles have some nerve testing for left carpal tunnel. When Mr. Noiles was first seen on November 3, 2010, he presented with a one year history of numbness in the distal phalanx of all of the fingers. His right hand shook when he moved his wrist.

[165] Dr. Lacerte’s technologist conducted a pinwheel test. There was manual muscle testing and grip strength testing.

[166] Dr. Lacerte’s final diagnosis was that the findings supported “a mild median entrapment neuropathy at the wrist” meaning a mild carpel tunnel on the right side. On the left side there was evidence of an old left C6-7 and C-8 polyradiculopathy.

[167] Because of the symptom of hand shaking, it was suggested that Mr. Noiles be seen by a neurologist. That investigation was never pursued. Dr. Lacerte provided instructions to manage Mr. Noiles’ carpal tunnel syndrome including wearing a wrist splint at night.

[168] Dr. Fox referred Mr. Noiles back to Dr. Lacerte and he and was seen a second time in Dr. Lacerte’s clinic on June 4, 2012. At that time Mr. Noiles reported a six month history of constant and minor to severe defused numbness and tingling that originated in the index and middle fingers of his left hand which could radiate proximately to the left shoulder. The symptoms were not improving despite chiropractic treatment and massage therapy.

[169] Testing was undertaken again and Dr. Lacerte’s opinion was that the EMG findings did support the presence of a mild acute (active) left c-7 radiculopathy and an old (inactive) left C-8 radiculopathy. However, the EMG findings did not support the presence of a median or ulnar entrapment neuropathy within the upper extremity. He noted that the finding showed a slight improvement of the median entrapment neuropathy at the left wrist compared to the previous assessment on November 3, 2010.

[170] Dr. Lacerte saw Mr. Noiles a third time on October 25, 2012, the referral being made again by Dr. Fox for “paresthesia (pins and needles) upper limbs bilaterally” and, in addition, because of a “right lower leg trauma, nerve damage”. This was the only appointment when Dr. Lacerte treated Mr. Noiles’ leg.

[171] When the history was taken on this appointment, it was noted that Mr. Noiles had not worked since April 2012. The snow blower incident was reported and noted as well as a July 9, 2012 motor vehicle accident, which will be discussed later in these reasons.

[172] At this appointment Dr. Lacerte’s assistant noted “patient observed to move with greater ease when not aware of being observed”. Dr. Lacerte was questioned about that notation. He stated that he made no reference to his assistant’s observation in his final report of that appointment which suggested that he did not pay great attention to it. As he explained, having not made the observation firsthand, he would not include such a reference in his report. As he put it, “having not observed it firsthand, I am not going to start writing that my tech has felt that way, for example”. I place little to no weight on this note by Dr. Lacerte’s assistant.

[173] In Dr. Lacerte’s report of the October 25, 2015 appointment, he noted that on his clinical examination Mr. Noiles was able to walk on his heels and toes with difficulty, able to squat and rise without difficulty, the manual muscle testing was normal for the key muscle groups in the lower extremities and normal sensation was reported over lower extremities.

[174] It was noted that “testing was technically challenging due to Mr. Noiles’ pain behaviour”. On cross examination Dr. Lacerte indicated that testing in the area where Mr. Noiles was complaining of severe constant burning pain would amplify his pain.

[175] Ultimately Dr. Lacerte’s diagnostic impression was that the EMG findings (which on this occasion included an EMG of his right leg) did not support the presence of an acute (active) right lumbosacral radiculopathy or a tibial or peroneal entrapment neuropathy in the right lower extremity. His clinical impression was that Mr. Noiles’ symptomology was consistent with a right superficial peroneal nerve neuropraxia and he recommended he take vitamin B and be seen for a follow-up appointment on December 4, 2012 to re-assess his mild acute (active) left C-7 radiculopathy.

[176] I note here parenthetically that Dr. Lipson did not disagree that the purpose of Dr. Lacerte’s EMG testing on October 25, 2012 was to determine whether there was any active radiculopathy in the right lower leg.

[177] Importantly, as Dr. Sequeira explained, the report of Dr. Lacerte in relation to the October 25, 2012 EMG study indicated that Dr. Lacerte concluded that the study was “consistent with a superficial nerve injury”. As Dr. Sequeira noted, the findings of the EMG were normal but Dr. Lacerte formed his conclusion from his clinical examination.

[178] Dr. Sequeira indicated that the fact that the EMG did not support the presence of an acute active right lumbar sacral radiculopathy was significant. As he indicated, Dr. Lacerte would have placed a number of needles into the right leg looking to see if a nerve was injured from Mr. Noiles’ back affecting his right leg. This would investigate whether the symptoms that Mr. Noiles had with respect to tingling, numbness and pain in the right leg were related to pinched nerves in the back and Dr. Lacerte did not find any evidence of that.

[179] As Dr. Sequeira testified, that EMG finding, combined with his clinical examination lead Dr. Lacerte to conclude that Mr. Noiles had a peripheral problem from a superficial peroneal nerve injury and this was not “coming from Mr. Noiles’ back”.

[180] Mr. Noiles returned to see Dr. Lacerte December 10, 2012 for a re-assessment of his left C-7 radiculopathy as originally scheduled. At that time, it was noted that Mr. Noiles reported a worsening of numbness and tingling affecting the left thumb, index and middle fingers, symptoms were constant and moderately severe and occasionally radiated diffusely and proximally to the left elbow.

[181] Dr. Lacerte’s diagnostic impression on that date was that the EMG findings supported the presence of mild median entrapment neuropathy at the left wrist and were suggestive of an old (inactive) left C-7 radiculopathy. He also noted that that day’s findings showed a slight worsening at the left wrist when compared to the previous assessment of June 4, 2012 and a slight improvement of the left C-7 radiculopathy when compared to the previous assessment of June 4, 2012. Again, Dr. Lacerte recommended the use of a wrist splint at night and the taking of vitamin B. Mr. Noiles was directed to book a follow-up electro-diagnostic appointment should his symptoms worsen within the next six months.

[182] Mr. Noiles’ last appointment with Dr. Lacerte was January 21, 2014. His ongoing carpal tunnel syndrome was the reason for this visit, a condition which Dr. Lacerte described as chronic. At that time, Mr. Noiles reported that for the past 8 to 12 months he had been experiencing an increase in the numbness and tingling affecting the thumb, index and middle fingers of the left hand and when exacerbated, his symptoms could radiate diffusely and proximally to the elbow.

[183] Dr. Lacerte’s diagnostic impression was that the EMG findings did support the presence of mild median entrapment neuropathy at the wrist bilaterally and that day’s findings showed a slight worsening of the median entrapment neuropathy at the left wrist when compared to the previous assessment of December 10, 2012. Dr. Lacerte made the same recommendations with respect to wrist splints and the taking of vitamin B.

PART 6

Mr. Noiles’ treatment immediately following the April 24, 2012 incident - attendance at emergency department April 24 and April 29; referral to orthopaedic clinic April 29, 2012; assessment by Dr. Fox May 1, 2012; ultrasound May 8, 2012; visit to Dr. McLeod’s orthopaedic clinic May 9, May 23 and June 27, 2012

[184] Mr. Noiles attended the emergency department April 24, 2012. The note of the emergency department indicated that his right shin was swollen where it had been hit, it was painful in that area and there was a puncture wound which was bleeding. The laceration was measured as a one centimeter laceration. It was cleaned. Anaesthetic was applied and three stitches closed the wound.

[185] The emergency department also took x-rays.

[186] Mr. Noiles’ pain increased within two days. He returned to the emergency department April 29 because of the worsening pain, which he described as sharp stabbing sensations like his leg was on fire. His foot was feeling cold. He had pain at the front part of the shin. He had burning, numbness, tingling and it was worse when the skin was touched. He was tender over the site of the laceration and swollen. He described his leg as sweating. The emergency department concluded that there was neuropathic pain (essentially nerve related pain).

[187] At his second attendance at the emergency department, an ultrasound of his leg was ordered which Dr. Sequeira indicated would be to ensure there was no clot in the leg. The emergency room physician referred Mr. Noiles to Dr. McLeod in orthopaedics.

[188] In the meantime, Mr. Noiles saw Dr. Fox May 1, 2012. Dr. Fox noted there was no obvious signs of infection but Mr. Noiles right foot was numb. In his note, Dr. Fox questioned whether there was nerve damage from a blunt trauma or explosion. As previously noted, Dr. Fox prescribed oxycontin to Mr. Noiles for pain relief.

[189] As Dr. Sequeira observed, both the emergency room doctors and Dr. Fox were worried about nerve related pain because of the progression in symptoms five days after the incident.

[190] Dr. McLeod saw Mr. Noiles May 9 and May 23. According to Dr. Sequeira the most significant thing that appeared to concern Dr. McLeod was the potential that Mr. Noiles had developed CRPS and Dr. McLeod was concerned enough that he prescribed vitamin C for Mr. Noiles. Dr. McLeod also ordered physiotherapy.

[191] According to Dr. Sequeira, in those two visits Dr. McLeod “initiated all the right things that would have been appropriate at that time which is exercise, vitamin C and reassurance”. Dr. Sequeira commented that he found it “incredible” that Dr. McLeod had the “foresight” to consider CRPS and prescribe vitamin C.

PART 7

Mr. Noiles’ symptoms and treatment over the summer of 2012

[192] Mr. Noiles continued to ice his leg and kept it elevated. His leg was swollen and he experienced burning stabbing sensations. He described his leg hurting when a blanket touched it. He continued to sleep on the couch to alleviate the swelling in his leg.

[193] Mr. Noiles continued to take oxycontin as prescribed by Dr. Fox.

[194] He began physiotherapy in June 2012 with Mr. Lefebvre.

[195] Mr. Lefebvre’s records indicate that Mr. Noiles missed his first appointment. The records also reflect that Mr. Noiles did not attend for physiotherapy for a month during the summer of 2012 even though he acknowledged physiotherapy was important to his recovery. Mr. Noiles explained that he was on holiday during part of this time and did his physiotherapy exercises on his own.

PART 8

The July 2012 motor vehicle accident – is it an event which impacts the assessment of damages arising from the April 2012 incident?

[196] In July 2012, Mr. Noiles was involved in a motor vehicle accident. Mr. Noiles hit a car after swerving to avoid a driver making an unsafe left turn.

[197] Mr. Noiles saw Dr. Wadhwa on July 16 within days of the accident. Mr. Noiles reported he had a sore neck, left shoulder and wrist. He described the pain as sharp but not tingling. His back and neck were examined and mild tenderness, limited flexion of his neck and normal range of motion were noted.

[198] On July 19, 2012 Mr. Noiles’ cervical spine was x-rayed which revealed that Mr. Noiles had mild degenerative changes.

[199] As Dr. Sequeira indicated, the x-rays did not show anything of consequence as the results were normal for a man of Mr. Noiles’ age (at that time, 42 years of age).

[200] Mr. Noiles testified that Dr. Watson treated the pain in his neck, shoulder and wrist. He considered his injuries from the accident as sprains.

[201] According to Dr. Sequeira, as a result of the accident, Mr. Noiles had soft tissue related injuries to his neck and back but he sustained no injury that meaningfully influenced his right leg.

[202] Mrs. Noiles recalled that Mr. Noiles was involved in a motor vehicle accident in July 2012. She testified that he was not really injured in that accident and there were no ongoing symptoms arising from it. She indicated that Mr. Noiles did not complain to her about the pain from the motor vehicle accident.

[203] On cross-examination, when it was put to her that Mr. Noiles had asserted to his motor vehicle insurer that he was unable to work because of the injuries from the motor vehicle accident, Mrs. Noiles indicated that she was not aware of that assertion.

[204] Ms. Chestnut was aware that Mr. Noiles had been involved in an accident in July 2012 but, as she put it, she did not remember it happening or it being a “big deal”.

[205] Kylie was aware that her father had been in an accident in July 2012. She recalled that after the accident her father complained of whiplash symptoms and tingling in his left hand. According to her memory, those symptoms lasted six weeks to two months.

[206] The plaintiffs’ position is that the injuries Mr. Noiles sustained in the July 2012 accident resolved quickly and he was off work, and remained off work, because of the injuries he sustained in the April 2012 incident. That position is complicated by Mr. Noiles’ application for accident benefits under his motor vehicle insurance policy in October, 2012.

[207] In responding to the questions in the application for accident benefits, Mr. Noiles noted that he was “employed and working” at the time of the accident even though he was not working because of the leg injury sustained in the April 2012 incident. The other options on the application were the status of “unemployed”, “unemployed and have worked 26 weeks in the past 52 weeks” or “unemployed and receiving employment insurance benefits” or “retired”. Mr. Noiles testified that he had called his insurer, TD Insurance Meloche Monnex (“TD”), to ask for direction in completing the application and had proceeded as instructed.

[208] In the response to the question of whether his injuries prevented him from working, Mr. Noiles responded “yes” and noted that such interference was from the date of the accident. He also included in the application the statement “have had no feeling in hand and arm is numb, nerve test November, wrist is very sore, deep pain”. In other parts of the application he noted his wrist was sore, that he had no feeling in his fingers and hand, he had had an x-ray and a nerve test was upcoming in November.

[209] Mr. Noiles testified that the notation on the form that “report already sent” was not in his hand writing.

[210] On cross examination, it was emphasized to Mr. Noiles that he had not noted anything on the application in relation to his injuries from the April 2012 incident. Mr. Noiles testified that he had informed his insurers of his leg injury by telephone. It was also emphasized on Mr. Noiles’ cross examination that he did not disclose that he was not working because of his leg injury and was in receipt of disability benefits. Mr. Noiles was insistent that he had told his insurers he had been injured from a prior incident.

[211] Ms. Laura Leggett, a claims adjuster with TD testified under summons by the defendants. Ms. Leggett testified that the July 9, 2012 accident had been reported by Mr. Noiles before the application for accident benefits was submitted.

[212] Ms. Leggett’s testimony confirmed Mr. Noiles’ in that she testified that, based on her review of the notes in the file, Mr. Noiles had reported a leg injury as a result of a prior incident and his injuries from the July 2012 accident were neck pain, back pain and, she believed, shoulder pain. Mr. Noiles had also reported that he was already off of work at the time of the July 9, 2012 accident.

[213] Ms. Leggett testified that if an individual was already off work for an unrelated injury and called and made inquiries about how to fill out the accident benefit application, he would not have been told to assume that he’d be off work because of the injuries sustained in the motor vehicle accident. However, as Ms. Leggett made clear, in the initial call from Mr. Noiles he indicated that he was not working at the time of the July 9, 2012 accident.

[214] Mr. Noiles was advised by letter dated September 13, 2012 that the treatment confirmation form completed by Dr. Watson dated July 16, 2012 (in which he described Mr. Noiles injuries as “whiplash associated disorder with complaint of neck pain with musculoskeletal signs”) had been reviewed. It was determined that the injuries sustained in the July 9, 2012 accident fell under the “minor injury guideline”. Medical and rehabilitation benefits were paid to cover Dr. Watson’s expenses. This was the only accident benefit paid to Mr. Noiles.

[215] In January 2013 and May 2013, TD wrote to Mr. Noiles advising that it was unable to determine his eligibility for an income replacement benefit because he had not completed a disability certificate.

[216] TD wrote again in September 2013 reminding Mr. Noiles that the documentation to determine entitlement to an income replacement benefit had not been filed. This letter asked him to “clarify” his employment status at the time of the accident because their file indicated that he was off work due to a prior injury.

[217] Further correspondence was sent by TD dated November 13, 2013 referencing the January, April, May and September letters and noting that the requested documentation remained outstanding.

[218] Ultimately on December 30, 2013, TD wrote to Mr. Noiles for the last time indicating that unless a response was provided within 30 days, it would close its file, which it did. No income replacement benefits were ever paid to Mr. Noiles. He did not file any documentation which would have entitled him to receive such benefits or otherwise pursue a claim to receive these benefits.

[219] A further issue to consider is the fact that as part of the patient history taken by Dr. Lacerte from Mr. Noiles at his appointment on October 25, 2012, it was noted that “symptoms were further exacerbated in an MVA of July 9, 2012”.

[220] On cross-examination, Dr. Lacerte confirmed that he was given no history of what happened in the July 9, 2012 motor vehicle accident and no indication of any injuries sustained in such accident.

[221] Mr. Noiles testified that when he became aware of the contents of Dr. Lacerte’s consultation note from his October 25, 2012 appointment, he met with Dr. Lacerte and explained to Dr. Lacerte he had erroneously “blended” his two issues (his leg and his hand tingling) into one and Dr. Lacerte’s consultation note was inaccurate.

[222] At an appointment on December 10, 2012, Dr. Lacerte revised his note relating to the October 25, 2012 appointment by deleting the statement regarding the July 9, 2012 accident noting that this statement was an error. Dr. Lacerte made the deletion, inserted the date and initialled the deletion.

[223] Dr. Lacerte explained that he would have made that revision based on a representation from Mr. Noiles that his report was in error. As Dr. Lacerte explained, the vast majority of time it is his patient, who receives a copy of a report, who notices that he made an error and when so advised, Dr. Lacerte corrects the error and “moves on”.

[224] I accept that Dr. Lacerte’s originally drafted consultation note relating to the October 25, 2012 appointment was in error.

[225] I am satisfied that Mr. Noiles sustained only minor injuries in the July 2012 motor vehicle accident and those injuries resolved after the course of chiropractic treatment with Dr. Watson.

[226] The July 2012 accident and Mr. Noiles’ application to TD does not impact my assessment of damages for injuries sustained in the April 2012 incident.

[227] Further, I am satisfied that Mr. Noiles’ completion of the application for accident benefits does not negatively affect my assessment of Mr. Noiles’ credibility. He fully disclosed his circumstances to TD - that he had injured his leg and was not working because of that injury. He received no benefit he was not entitled to under his policy with TD.

PART 9

Follow up by Dr. McLeod on September 5, 2012 and referral to Dr. Clarke at the chronic pain clinic; MRI of right calf October 1, 2012; follow up by Dr. McLeod on October 17, 2012; and Mr. Noiles’ first appointment with Dr. Clarke October 31, 2012

[228] Mr. Noiles saw Dr. McLeod for a follow-up appointment September 5, 2012 by which time Mr. Noiles still had not returned to work. Dr. McLeod noted that Mr. Noiles was “having primarily neurasthenic and what I think now was more clearly Complex Regional Pain Syndrome type symptoms”. Dr. McLeod concluded that he would refer Mr. Noiles to a pain clinic.

[229] Dr. McLeod adjusted Mr. Noiles’ medication and also noted that “he needs to have a clear target date [to…] return to work, which we have set at first of November for a graduated return to work at light duties. I am certainly a bit worried when I see that in four months he has actually made very little progress in terms of return to functional status”.

[230] As Dr. Sequeira commented, Dr. McLeod was noting nerve related pain and starting to treat Mr. Noiles’ symptoms as a nerve related problem.

[231] An MRI of Mr. Noiles’ right calf was conducted on October 1, 2012. The only abnormality noted was the old healed fractures of the tibia and fibula. Swelling was noted in the area of the right calf.

[232] Mr. Noiles had a follow-up appointment with Dr. McLeod October 17, 2012. Dr. McLeod indicated in his note that he thought it was “more clear on questioning today that he has Complex Regional Pain Syndrome. He has dysesthesia [painful sensation], hyperesthesia [increased sensation to touch], discolouration, reduced functional tolerance and reduced motion”. Dr. McLeod noted that Mr. Noiles was on a near maximum dose of Lyrica, which is prescribed for nerve pain. Dr. McLeod added Elavil and Toradol and asked Mr. Noiles to start tapering his Percocet.

[233] Dr. McLeod referred Mr. Noiles to Dr. Clarke “under the suspicion” that he had CRPS. Dr. Clarke is an anaesthesiologist who has obtained specialty training in pain medicine. He is also an associate professor of the Schulich School of Medicine and Dentistry at Western. He has a particular interest in CRPS and has undertaken research, published articles and spoken at various conferences on that condition. He has treated over 250 patients with CRPS.

[234] Dr. Clarke noted from Mr. Noiles’ medical records available to him that there were “sensory” changes that were consistent with certain chronic pain conditions, including CRPS. Mr. Noiles described other symptoms that were consistent with CRPS. Mr. Noiles also had swelling around the laceration site. In addition, the orthopaedics team had informed Dr. Clarke that “there was a mild loss of sensation in the top of his right foot”.

[235] Dr. Clarke noted that Mr. Noiles had been given prescriptions for anti-depressants, anti-epileptic medications, vitamin C, low-dose opioids and “most importantly” he had been involved in “aggressive physiotherapy” which Dr. Clarke characterised as a “mainstay of trying to resolve CRPS”.

[236] On Dr. Clarke’s initial physical examination of Mr. Noiles, Dr. Clarke noted that Mr. Noiles’ right lower leg revealed sensory changes, allodynia (pain to non-painful stimulus), hyperalgesia (enhanced sensitivity to pain), some vasomotor changes (his right leg was swollen and the skin was red) and some trophic changes (decreased hair growth over his right leg). He also had impaired sensation over the injury site. Dr. Clarke also noted sweating over the area. As Dr. Clarke testified, such signs and symptoms are consistent with the Budapest criteria, which is the most commonly accepted criteria for diagnosis of CRPS.

[237] Dr. Clarke concluded that Mr. Noiles was suffering from type-1 CRPS which develops without a measurable nerve lesion. There is no difference in treatment between type-1 and type-2 CRPS (which relates to a specific nerve injury).

[238] Dr. Clarke changed Mr. Noiles’ medications to a trial of Hydromorphone- contin. According to standard practice Dr. Clarke had Mr. Noiles sign a narcotics agreement.

[239] Dr. Clarke determined that it would be appropriate to treat Mr. Noiles with a sympathetic blockade, a nerve injection. It was Dr. Clarke’s goal to have Mr. Noiles receive injections as close to every eight weeks as possible.

[240] Mr. Noiles saw Dr. Clarke again on December 31, 2012 for an injection and had seen Dr. McLeod on December 5, 2012.

PART 10

Credibility issues arising from Mr. Noiles’ communications with Great West Life, his treating physicians and other health care providers

[241] Mr. Noiles had ongoing communications with his case worker Kim from Great West Life.

[242] The defendants asserted that statements attributed to Mr. Noiles in the files of Great West Life and non-disclosures to Great West Life in Mr. Noiles’ communications indicate that Mr. Noiles lacks credibility.

[243] Fairly early on in July 2012, he informed Kim he had “nerve damage”. In my view, this was consistent with what his treating physicians were concerned with at that time.

[244] Mr. Noiles did not inform Kim about the July 9, 2012 motor vehicle accident. I accept his explanation that he did not know he had to because his leg, which was the reason he was not working, was not injured in the accident. Further, as he noted, Mr. Lefebvre was aware of the accident and he had been hired by, and was reporting to, Great West Life.

[245] Mr. Noiles reported to Kim in the summer of 2012 that he was doing physiotherapy twice a week. However, as previously noted, Mr. Noiles did not see Mr. Lefebvre for a month and was on holiday for part of that time. I am satisfied that his report to Kim was not inaccurate because he continued to do his exercises independently including while he was on holiday.

[246] Mr. Noiles also did not call Kim as promised when he saw Dr. Fox earlier than scheduled in August 2012 (August 7 instead of August 27).

[247] After having an MRI on his ankle in October 2012, according to Kim’s notes, Mr. Noiles told Kim he had a diagnosis of CRPS shown by the MRI. However, Mr. Noiles did not remember telling Kim what she noted, and he agreed the MRI did not show he had CRPS.

[248] He also reported to Kim according to her notes that he had been told there was a dead zone in front of his shin by Dr. Lacerte’s technician. Dr. Lacerte acknowledged that while there could be some exception, his technicians do not discuss the final diagnosis with the patient. He was referred to the fact that during Mr. Noiles’ testimony, Mr. Noiles had indicated that Dr. Lacerte’s technician had informed him that his nerve was dead. Dr. Lacerte indicated that he has never used the word “dead” when referring to nerves nor had he ever heard his staff refer to a dead nerve. It surprised Dr. Lacerte that Mr. Noiles made such an assertion during his testimony. Mr. Noiles explained that from what he “gathered” from all his doctors he had nerve damage.

[249] Mr. Noiles did not tell Great West Life he was seeing Dr. Lacerte for his hands on an ongoing basis. Mr. Noiles explained that this treatment did not relate to his leg and it was only his leg injury which prevented him from working.

[250] Dr. Lacerte was referred to the fact that it appeared from the documentation in the files of Great West Life that Mr. Noiles advised his long term disability carrier that Dr. Lacerte had diagnosed his CRPS. Dr. Lacerte confirmed that he did not make such a diagnosis for Mr. Noiles. Mr. Noiles denied advising Kim that Dr. Lacerte diagnosed him with CRPS.

[251] Mr. Noiles directed Dr. Sargo, who replaced Dr. Fox, to only disclose to Great West Life his records relating to his leg. He denied the suggestion that he was restricting what Great West Life could review and believed only records relating to his leg were what Great West Life required.

[252] I am satisfied with Mr. Noiles’ explanations for the non-disclosures and acknowledged statements to Great West Life described above and whether or not he told Kim the MRI showed he had CRPS and/or indicated that Dr. Lacerte diagnosed him with CRPS does not negatively affect my assessment of his credibility.

[253] In addition, the defendants question Mr. Noiles’ credibility because on March 23, 2013 Mr. Noiles reported to Brian Harris who treated him with physiotherapy, as I will discuss below, that Dr. McLeod imposed lifting restrictions without indicating those restrictions were imposed in June 2012 and he was no longer under Dr. McLeod’s care.

[254] Further, the records of Dr. Sargo for December 7, 2012 indicate Mr. Noiles told her he had an epidural block November 21 when he had not had that procedure. Mr. Noiles agreed that date was wrong.

[255] Although in December 2012 Mr. Noiles reported to Dr. McLeod he had a 50 percent reduction in his pain symptoms after the injection and reported to Dr. Clarke that he experienced about 5 to 6 weeks of reduced pain, he reported to Great West Life November 9, 2012 that the injection was “not helping with the pain”. Mr. Noiles explained that the injection helped when he first got it and reduced the pain for a time but his pain continued.

[256] Also, according to Dr. Sargo’s notes, Mr. Noiles told Dr. Sargo “he feels better after procedure” however, as noted, he told Great West Life it was not working. Mr. Noiles explained that he was conveying the point that his pain returns after a time following the injections and the injections do not stop his pain. Again, I am satisfied with Mr. Noiles’ explanations. I do not find that he was being dishonest and deceitful.

[257] In addition, on cross examination Dr. Clarke was queried whether he had told Mr. Noiles prior to his referral for spinal cord stimulation in late 2013 that he was permanently disabled. Dr. Clarke responded that that was his concern but he couldn’t recall if he had so advised Dr. Noiles.

[258] Dr. Clarke indicated that it would surprise him if Mr. Noiles told Great West Life that it was Dr. Clarke’s opinion that he was permanently disabled at that point in time. Dr. Clarke was referred to Kim’s note wherein she indicated that Mr. Noiles had been deemed permanently disabled by Dr. Clarke and Dr. McLeod before he had the spinal stimulation. Notwithstanding the fact that Dr. Clarke found Mr. Noiles’ report to Great West Life surprising, such report does not raise an issue for me with respect to Mr. Noiles’ credibility. Dr. Clarke may well have expressed that concern to Mr. Noiles.

[259] I note parenthetically that according to the intake form Mr. Noiles completed for Dr. Clarke, he did not disclose to Dr. Clarke that he had injured his right leg before, that he was still having problems with numbness in his hands, that he was seeing Dr. Lacerte, that he had been involved in a motor vehicle accident in July 2012 or that he had had issues with anxiety and took citalopram.

[260] Mr. Noiles explained again that he was not seeing Dr. Lacerte for his leg and with respect to the issue of anxiety he had only had a limited number of “episodes” as he had described, for which had been prescribed medication.

[261] Mr. Noiles did not believe Dr. Clarke’s intake form required information that he thought was not relevant to his leg injury.

[262] I am again satisfied that Mr. Noiles was not being dishonest or deceitful. He answered the questions on the form as he understood them. The impact of this “non-disclosure” to Dr. Clarke will be described further in these reasons.

[263] These circumstances are distinct from those before the court in Biln where there were serious gaps in the information disclosed to the plaintiff’s doctors. As I will make clear in my analysis below, I cannot find, as the trial judge did in Biln, that “all of the doctors’ opinions are flawed and are of little assistance”.

PART 11

Mr. Noiles return to work on November 1, 2012

[264] Mr. Noiles returned to work at the City on November 2012 working reduced hours in a sedentary position in the water department. As Mr. Watson testified, Mr. Noiles required a job that was physically less strenuous where he could sit and stand as needed. Mr. Watson explained that there was no work within the sewer department that Mr. Noiles could do. Working in the sewer department required going up and down ladders and working in a confined space which was not suitable for Mr. Noiles. As a result, Mr. Watson asked for an opening to be found for Mr. Noiles in the water department’s meter shop.

[265] Mr. Noiles described the work in the meter shop as not physically demanding. It was all inside work and he could work at his own pace and move around as needed. He was allowed to start his work day at varying times.

[266] Mr. Bruff testified that this accommodated return to work was the responsibility of the City’s return to work committee, which was led by Mr. Reid, the first vice-president of the Union.

[267] As of December 2012 and throughout January 2013, Mr. Noiles was working 2 1/2 hours a day.

[268] Great West Life was promoting his return to work on an expanded basis and requesting Mr. Noiles undertake further physiotherapy which he began with Mr. Brian Harris in January 2013, which I will describe below.

[269] By March 2013 he was working 3 hours a day and by May he worked 3.5 hours a day at his accommodated duties.

[270] Great West Life continued to press for increased work hours and advised Mr. Noiles that he needed medical support for his position to maintain his reduced hours.

[271] As set out below, Mr. Noiles requested such a letter from Mr. Harris and saw Dr. Sargo June 7, 2013 at Mr. Harris’ recommendation. Dr. Sargo wrote a note to Great West Life indicating Mr. Noiles could only work 3.5 hours a day. Mr. Noiles noted in his journal he was Dr. Sargo’s only patient with CRPS.

[272] Mr. Noiles acknowledged Dr. Sargo accepted what he stated at face value.

[273] In any event, based on those notes, Great West Life allowed Mr. Noiles to continue working 3.5 hours a day until July 15, 2013 when he was to increase to 4 hours a day with full time hours expected by September 2013.

[274] As he noted in his journals, Mr. Noiles was stressed by the position taken by Great West Life.

[275] Mr. Noiles took vacation for a week and began working July 23, 2013 for 4 hours a day.

[276] He experienced chest pain July 25 and 26 and went to the emergency department with this complaint on July 26. Tests were conducted and the results were normal.

[277] Thereafter, Mr. Noiles asked Dr. Fox to write a note advising that he could not work increased hours. According to the City’s records, he reported that he had a blood clot and could not work whereas all the medical notations were to the effect that his chest pain was stress related.

[278] Mr. Noiles called Dr. Clarke’s pain management clinic on July 31, 2013 reporting that he had a blood clot in his lung related to his leg and asked Dr. Clarke to write a note to his employer.

[279] Mr. Noiles insisted that he had been administered a needle in his stomach which would dissolve any blood clot he might have. In fact, Mr. Noiles was given a needle to prevent blood clots (as opposed to treating blood clots).

[280] On cross examination Dr. Clarke was referred to Dr. Fox’ clinical notes on July 26, 2013 which indicated that Mr. Noiles reported to Dr. Fox that he attended the emergency department early that morning, a CT scan was done and “all tests were normal” and his symptoms, he was informed, were “stress related”.

[281] Dr. Clarke acknowledged that based on that note it appeared that Mr. Noiles was telling Dr. Fox something different than he was reporting to Dr. Clarke. In any event, Dr. Clarke did not act on this information.

[282] Mr. Noiles continued to work four hours a day in the meter shop until May 2016 when that work ended, as I will discuss below. Mr. Noiles’ experience at work will also be discussed below.

PART 12

Mr. Noiles’ treatment by Mr. Harris, physiotherapist January 31, 2013 to June 11, 2013

[283] Mr. Brian Harris took over Mr. Noiles’ physiotherapy treatment from Mr. Lefebvre. Mr. Harris’ expenses were covered by Great West Life and he reported to them on a regular basis.

[284] On Mr. Harris’ first assessment of Mr. Noiles January 29, 2013, he noted the dominant site of Mr. Noiles’ pain was on his right shin. The pain was worse when touched, when stressed, after sitting and his symptoms were worse in the morning. Mr. Noiles described his pain as just above his ankle extending up towards his knee and on the top of his foot.

[285] Mr. Harris noted a patch of hair loss along Mr. Noiles’ shin, swelling in his shin and a small abrasion which was quite red at the laceration site. He found Mr. Noiles quite hypersensitive on the right shin.

[286] Based on Mr. Harris’ experience in treating patients with CRPS, he found Mr. Noiles’ symptoms consistent with that diagnosis. Mr. Harris’ clinical assessment was consistent with Mr. Noiles’ reported symptoms.

[287] Mr. Harris completed a proposed treatment plan for Mr. Noiles, which was approved by Great West Life. Mr. Harris treated Mr. Noiles throughout February and March, during which time his symptoms were up and down but generally a bit worse. Mr. Harris noted that a fluctuation of symptoms is also consistent with CRPS.

[288] Mr. Harris reported to Great West Life March 26, 2013 and recommended a return to work schedule which Great West Life found too prolonged. Mr. Harris also reported to Great West Life that Mr. Noiles’ progress would probably be slow.

[289] With respect to the treatment period from January 28, 2013 to March 18, 2013, Mr. Harris noted Mr. Noiles’ level of engagement was four out of five because he had been late for his last three to four appointments. In his report, Mr. Harris noted that prior to this, there had been no issues regarding attendances and Mr. Noiles was usually early for his visits.

[290] Mr. Harris also noted that Mr. Noiles continued to report pain and hypersensitivity in the right lower shin, swelling, numbness of the right anterior shin into the dorsum of the right foot and reduced balance. Mr. Harris’ clinical findings were consistent with those reported symptoms. Mr. Harris also reported that Mr. Noiles continued to have difficulties with prolonged weight-bearing and problems wearing his safety boot. Mr. Harris recommended that Mr. Noiles might benefit from pain counselling to assist in managing his pain.

[291] Mr. Harris was aware in April 2013 that Great West Life wanted Mr. Noiles to increase his hours of work. Mr. Noiles reported to Mr. Harris that increased work hours increased his level of pain and required him to increase his pain medication which had negative side effects. However, as the defendants noted, according to the pharmacy records. Mr. Noiles’ total intake remained constant and there was not a significant increase in medication. Mr. Harris acknowledged on cross-examination that it would surprise him if there had been no change in Mr. Noiles’ medications when he returned to work.

[292] In any event, at Mr. Noiles’ request, Mr. Harris wrote the note requested by Mr. Noiles in which he included his suggestion to Mr. Noiles that he see his family physician regarding the need to adjust his work schedule. As set out above, Mr. Noiles followed that recommendation and obtained a note from Dr. Sargo.

[293] After Great West Life approved an extension of Mr. Harris’ treatment on April 29, 2013, Mr. Harris continued to treat Mr. Noiles through to June 10, 2013. By the end of that treatment period, Mr. Harris rated Mr. Noiles’ level of engagement at five, noting that he had been prompt for his appointments, he was attending the gym regularly and independently and had also come to the clinic to utilize equipment not available in the gym.

[294] In June 2013 Mr. Noiles reported a continuation of the same symptoms – hypersensitivity, swelling, numbness and reduced balance as well as pain and fatigue. Again, Mr. Harris’ clinical findings were consistent with the reported symptoms.

[295] Mr. Harris noted that Mr. Noiles had improved his functional ability in relation to strength and lifting which revealed good effort on Mr. Noiles’ part and that he had undertaken the exercises he had been given.

[296] Great West Life prepared a return to work plan for Mr. Noiles pursuant to which he was to be at full-time hours by the end of September, 2013 with his rehabilitation file to be closed at that point.

[297] Great West Life’s return to work schedule was more accelerated than Mr. Harris’. As Mr. Harris indicated, he had the same goal for Mr. Noiles – that is, a return to work at full-time hours but Great West Life’s plan was at a quicker pace and without any recognition that there must be a potential for modification. Mr. Harris felt it was important that there be room for modification of the plan if a flare-up occurred, which Mr. Noiles was prone to.

[298] Mr. Harris was contacted by Mr. Scott Matthews at the City of London who requested a physical demand analysis in relation to two job positions; an acting lead-hand position and a maintenance worker.

[299] Mr. Harris reported to Mr. Matthews that “one of the main difficulties” for Mr. Noiles was his inability to tolerate the wearing of work boots because of the sensitivity of his right lower leg. Mr. Harris indicated that provided a safety boot could be worn he believed Mr. Noiles “would be able to try short periods of time on uneven ground”. However, he would be unable to “jump down into and out of trenches” nor would he be able “to use a shovel to apply pressure with his right leg”. Mr. Harris also reported that Mr. Noiles was able to drive, however, use of pain medications could be a concern with driving. He also noted that “extremes of temperature (both hot and cold) are known to aggravate the pain with CRPS” as is “exposure to vibration”. Both positions “concerned” Mr. Harris because of the fact they involved digging and getting down into trenches.

[300] Mr. Noiles’ last visit with Mr. Harris and Mr. Harris’ final report to Great West Life was on September 16, 2013. On this occasion, Mr. Noiles reported the same symptoms which were again consistent with Mr. Harris’ clinical findings. Mr. Noiles’ again demonstrated some gains in his strength in relation to lifting and carrying.

[301] However, over the course of Mr. Harris’ treatment there was little to no change to Mr. Noiles’ pain and swelling.

[302] Given the period of time over which Mr. Noiles had experienced his symptoms, Mr. Harris did not expect much change in the future. He thought Mr. Noiles would have good days and bad days in that he would experience flare-ups from time to time.

[303] On cross-examination, Mr. Harris acknowledged that Mr. Noiles had advised that Dr. Clarke had stated he had a permanent work restriction of only four hours a day and not four to six hours, as in fact was the case.

[304] Mr. Harris was also not aware that Mr. Noiles had had numbness or tingling in his extremities beyond his right leg prior to the April 2012 incident nor was he aware that Mr. Noiles had been prescribed citalopram. Mr. Harris indicated that some patients are sensitive to disclosing all medications. In any event and importantly, the purpose for such disclosure is because in the event of an emergency, that would be one of the first questions posed by health practitioners.

[305] Mr. Harris also acknowledged he was not aware that Mr. Noiles’ left leg was shorter than his right leg during the time he treated him. Mr. Harris indicated that this problem is “overrated” and is quite a “common” phenomenon.

[306] Mr. Harris was not aware of the results of the CT scan of Mr. Noiles’ spine conducted in November 2015 which I will describe below.

[307] In my view these non-disclosures to Mr. Harris and his lack of awareness of the November 2015 CT scan are not significant. Mr. Harris stated that the injury Mr. Noiles presented to him “seemed quite obvious”. He was focused on Mr. Noiles’ right leg based on what Mr. Noiles told him and what he observed.

[308] Mr. Harris testified that 75 percent of the population has symptomology related to an L-5 issue and, importantly, a number of the symptoms that Mr. Noiles reported to him, he had only seen in relation to an individual who had been diagnosed with CRPS, specifically the loss of hair and the trophic changes.

[309] I found Mr. Harris to be a very straight forward, pragmatic witness who did his best to be helpful. I found him objective and not an advocate for Mr. Noiles.

[310] Mr. Harris’ clinical findings were consistent with Mr. Noiles’ reported symptoms. Mr. Harris’ opinions are not diminished by Mr. Noiles reporting and/or non-disclosures. Mr. Harris treated Mr. Noiles’ leg and, as Mr. Harris stated, Mr. Noiles’ leg injury was obvious. Significantly, the objective symptoms Mr. Harris observed in relation to Mr. Noiles’ leg are part of the criteria to diagnose CRPS.

PART 13

Treatment by Dr. Clarke in 2013

[311] Dr. Clarke saw Mr. Noiles in February 2013 and Mr. Noiles reported that the previous nerve block did not offer immediate relief but he was feeling better “as of late”. As Dr. Clarke explained “sometimes we see a delayed onset from the injections and so it looks like he didn’t get an immediate relief, however, was feeling better ‘as of late’.

[312] Mr. Noiles’ next sympathetic block was in March 2013 at the same location – L-3/L-4.

[313] In May 2013 there was a further lumbar sympathetic block at the L-3 level.

[314] While Mr. Noiles only had a minimal reduction according to his pain interference test from when he had been seen in October, that was not surprising to Dr. Clarke because, as he explained, if a patient was getting benefit from the injections every six weeks and the patient is seen on the eighth week, he “would expect that that interference score may creep back to where it was previously”.

[315] After May 2, 2013, Mr. Noiles returned to see Dr. Clarke in June 2013 when Mr. Noiles reported that he “gets several weeks of benefit” from the lumbar sympathetic blockade. In his note Dr. Clarke commended Mr. Noiles for being diligent with his physiotherapy routine because he noticed some reduction in his examination findings.

[316] On June 27, 2013 Mr. Noiles received an L-3 sympathetic block.

[317] Dr. Clarke explained that his “typical protocol” would be to continue with pharmacotherapy and then simultaneously pursue the interventional approach of a sympathetic nerve blockage, next going to a trial of Ketamine infusion, and lastly, going to spinal cord stimulation which has the best evidence for the likelihood of improving CRPS but it is a very costly endeavour.

[318] Dr. Clarke testified that as of June 2013 Mr. Noiles had plateaued. His pain management was not improving and the next step in his protocol would normally have been to provide a Ketamine infusion (which Dr. Clarke erroneously noted in certain of his reports had actually been tried with Mr. Noiles).

[319] Mr. Noiles returned to see Dr. Clarke in October 2013. In his October 2013 note, under the heading chief complaint, Dr. Clarke listed “right foot” which, on cross examination, he indicated “would be a mistake”. Dr. Clarke was adamant that this one reference to right foot pain was an error because his next note and every other note talks about leg pain. He reiterated that he had no documentation that Mr. Noiles had pain in his foot back to 2013.

[320] Dr. Clarke noted also that it appeared that Mr. Noiles was spending a significant amount of time dealing with his insurance issues and he had obtained legal representation. Dr. Clarke was not aware that Mr. Noiles had engaged legal counsel before he had first come to see Dr. Clarke.

[321] In October 2013 Mr. Noiles reported to Dr. Clarke that he was getting “diminished returned from his lumbar sympathetic blocks” and that he may be getting two weeks of benefit at most”. Dr. Clarke confirmed that at that point in time, because Mr. Noiles was only getting two weeks of benefit and having a lot of work issues, it was appropriate to proceed straight to the spinal cord stimulation.

[322] Dr. Clarke testified that Mr. Noiles was “one of the few patients” that he did not first try a Ketamine infusion and instead “went straight to” what Dr. Clarke referred to as “the big gun”, the spinal cord stimulation. Dr. Clarke said he made this decision because Mr. Noiles “was really struggling” and he wanted to treat Mr. Noiles via the best evidence for treatment despite the cost involved. His motivation for doing so was to try and keep Mr. Noiles working. As a result, Dr. Clarke referred Mr. Noiles to Dr. Keith McDougall for the spinal cord stimulation.

[323] Dr. Clarke testified that unfortunately it was his understanding that the spinal cord stimulation in January 2014 was not a successful treatment. As Dr. Clarke explained, if pain has become “centralized” (meaning a lot of the pain is now being generated by causes that are changes in the brain which is commonly seen once patients have had pain for over a year) then the pain is unlikely to completely resolve. Dr. Clarke explained also that having had the spinal cord stimulation there was no benefit to going back and doing the Ketamine injection.

[324] After December 2013 the next time Dr. Clarke saw Mr. Noiles was in February 2015, a gap of 15 months during which Mr. Noiles did not receive any lumbar blocks. During that time, Mr. Noiles worked 4 hours a day and took vacations as he had prior to the April 2012 incident including a trip to Mexico in March 2014.

[325] On direct examination, Dr. Clarke testified that the gap in treatment resulted from what he described as “an unfortunate sort of Swiss cheese phenomenon where Mr. Noiles was not booked a specific follow-up as we were waiting to see what would happen with the spinal cord stimulation, and then by the time he had realized that he needed a call… to get back in the clinic, there was miscommunication on appointments”.

[326] On cross-examination, Dr. Clarke acknowledged it appeared that Mr. Noiles did not follow up with Dr. Clarke during 2014 because there was no record of Mr. Noiles calling to obtain an appointment for a nerve block in 2014.

[327] I accept Dr. Clarke’s evidence regarding the “Swiss cheese phenomenon” and am satisfied that Mr. Noiles continued to struggle in 2014. That is, the fact he did not receive an injection in 2014 does not indicate he was symptom free and his CRPS had resolved or was not impacting him.

PART 14

Dr. Clarke’s referral to a pain psychologist, Dr. Getty, December 2013 and Mr. Noiles’ participation in counselling with Dr. Getty February to August 2014

[328] According to Dr. Clarke, it is extraordinarily common for patients with CRPS to exhibit psychological symptoms, such as depression and mood changes and, indeed, Dr. Clarke’s pain clinic has two full time pain psychologists. He found Mr. Noiles’ mood issues typical of the chronic pain patients he deals with.

[329] On December 19, 2013, Dr. Clarke referred Mr. Noiles to one of the pain psychologists in his clinic, Dr. Heather Getty. Mr. Noiles did attend for counselling with Dr. Getty between February and August, 2014. Dr. Getty’s records stated that Mr. Noiles attended the first group “reliably” and during the second group he was not always an active participant, he arrived late, was inattentive and missed the final session.

[330] Dr. Getty noted “in explaining his worsened attendance, Mr. Noiles reported that the sedating effects of his medications as well as an accumulation of external stressors had a significantly disorganizing effect on him”.

[331] Importantly, Dr. Getty also noted that “during sessions, Mr. Noiles was an enthusiastic participant who seemed to very much appreciate the opportunity to speak with others experiencing the same profound life changes and difficulties as he has faced since the emergence of his pain condition. He repeatedly emphasized that he felt supported and validated by the others, and during group discussions, he made great efforts to encourage, validate, and support other members”.

[332] In her report dated September 26, 2014, Dr. Getty indicated that Mr. Noiles would most likely benefit from individual psychotherapy and she recommended he consult with Dr. MacDonald or another psychologist. As previously referenced, Mr. Noiles was assessed by Dr. MacDonald in July 2015 and November 2016 and he participated in counselling with a psychotherapist in Dr. McDonald’s office from September 15 to October 2016.

PART 15

Dr. Clarke’s resumption of treatment in 2015

[333] Mr. Noiles had a lumbar sympathetic block on February 5, 2015 at L-3.

[334] Mr. Noiles had a further injection on May 21, 2015 and reported that the relief from the February injection lasted six weeks.

[335] Dr. Clarke next saw Mr. Noiles August 27, 2015 when he did another L-3 lumbar sympathetic block. At that appointment, Mr. Noiles complained that his pain was worse and Dr. Clarke changed some of his medication.

[336] According to Dr. Clarke, when he saw Mr. Noiles in August 2015, Mr. Noiles reported new pain that was now in his foot which was different from his previously reported pain. Dr. Clarke referred Mr. Noiles for a CT scan because he had a question whether or not this new pain may be a radiculopathy.

[337] Mr. Noiles returned to the clinic in October 2015 for another sympathetic block at L-3. Mr. Noiles reported that he got some benefit from the last injection; however, Mr. Noiles reported that he had trouble focusing for more than 4 hours and rarely did he achieve 6 hours of any activity.

[338] A CT scan of Mr. Noiles’ back was conducted on November 29, 2015.

[339] Dr. Clarke testified that the CT scan showed that there were “some abnormalities” within Mr. Noiles’ spinal cord “showing bilateral foraminal compression upon the L-5 nerve roots bilaterally and there was some abutment” he believed, of “the S-1 nerves as well bilaterally”.

[340] The CT scan also showed severe bilateral nerve compression at L-5 S-1 and a disc bulge at L-3/L-4.

[341] The scan noted that the disc makes contact with the traversing L-4 nerves bilaterally.

[342] Under impression the CT scan report stated that “the most significant abnormality is spondylolysis and spondylolisthesis at L-5 S-1 and the narrowing of the Foramina appears to be severe”.

[343] Dr. Clarke explained that spondylolysis is slippage or displacement of the vertebrae which is a genetic condition that can be stressed by athletics such as high level football and it is degenerative.

[344] The CT scan report recommended that there be “correlation with physical exam findings”.

[345] Dr. Clarke testified that on January 21, 2016 during Mr. Noiles’ first appointment following the CT scan, he did correlate his physical exam with the results of the CT scan. He testified that while it appeared that although the CT scan revealed bilateral nerve root compression, Mr. Noiles’ symptoms were still predominately right-sided.

[346] Dr. Clarke indicated that he told Mr. Noiles about what the CT scan revealed. However, all Mr. Noiles recalled was being informed that he had a disc bulge that needed to be treated with another injection.

[347] Dr. Clarke testified that “the addition of pain that he [Mr. Noiles] had above and beyond the CRPS pain was now a component of an L-5 radiculopathy. Although showing obviously on both sides, he only seemed to be experiencing on the right”.

[348] As a result, Dr. Clarke considered it appropriate to try an additional epidural steroid injection to see if he could give Mr. Noiles some improvement in the additional pain area. He explained that to treat the L-5 nerve root compression you would try to “get steroid into the epidural space” while for treatment of CRPS you would try “to manage the sympathetically mediated symptoms by injecting local anaesthetic around sympathetic structures, whether they be inside the spinal cord or once they’ve exited the spinal cord”.

[349] On January 21, 2016 Dr. Clarke performed two procedures on Mr. Noiles; the first being a right lumbar sympathetic plexus block, the second being a right L-5 transfer epidural steroid injection. Each procedure involved two separate medications and there were two separate injection points. Dr. Clarke explained he offered Mr. Noiles a single needle approach but Mr. Noiles was reluctant to go forward with that as he had received such good benefits from the lumbar sympathetic blocks and, as a result, wanted to have two separate injections.

[350] As Dr. Clarke elaborated on cross examination, Dr. Clarke “went with the two separate injections to treat the two separate conditions”. The epidural for the back was given on the right side of L-5 and the sympathetic block was at the level of L-3. The epidural block was in the epidural space where the nerve impingent was.

[351] In his report to Dr. Sargo dated January 21, 2016, Dr. Clarke noted there had been a “new onset radiculopathy with recent CT findings demonstrating the spondylothesis with existing L-5 nerve root compression”.

[352] Dr. Clarke was clear that Mr. Noiles’ primary diagnosis still remained as CRPS, which was essentially the pain he had been dealing with from the onset of his April 2012 injury, and Mr. Noiles’ secondary diagnosis was “a small contributing factor of L-5 radiculopathy”.

[353] In Dr. Clarke’s opinion, this secondary diagnosis was not “a significant contributor to his ongoing pain”. The reason for Dr. Clarke’s conclusion was that Mr. Noiles had presented with CRPS signs and symptoms since the time of his injury and those had not significantly changed and “the only time” that he had “noticed a change was when Mr. Noiles started to complain of some pain in the top of his right foot”.

[354] Dr. Clarke confirmed on cross examination that he ordered the CT scan in August 2015 because he was “wondering about a new issue of pain that’s in an L-5 distribution”. He indicated that there was no pain in Mr. Noiles’ foot before that time. Dr. Clarke was very clear during his testimony, and as he set out in his report, that Mr. Noiles’ reported pain in August 2015 which “appeared to be different in nature and was radiating in to the top of his foot”. Dr. Clarke also reported “this pain was certainly different than previously described and was now associated with back pain”.

[355] Dr. Clarke further confirmed on cross examination that he was not aware of any complaints of foot pain until 2015 which was the first time that there was any imaging of Mr. Noiles’ back. He pointed out that prior to that time there had been an electro diagnostic test which did not show radiculopathy.

[356] Dr. Clarke acknowledged on cross examination that radiculopathy can manifest itself as pain in the calf, which was a symptom that Mr. Noiles was complaining of, and burning pain that Mr. Noiles also complained of is a symptom associated with L-5 nerve compression. However, Dr. Clarke stated that when he initially saw Mr. Noiles “there was no dermatomal distribution of his pain. It was isolated in and around the injured area so I did not feel that there was a reasonable course to chase down”. Dr. Clarke was clear that he did not feel that he should have ordered a CT scan to rule out another condition until Mr. Noiles reported pain in his foot.

[357] Mr. Noiles was given the combined L-5 epidural and a sympathetic block at L-3 on March 24, June 2, September 1 and November 24.

[358] On June 2, 2016 Mr. Noiles reported he got 30 percent pain relief from the radicular features and the lumbar sympathetics..

[359] When Mr. Noiles returned September 1, 2016 he reported 30 percent analgesic response to the previous interventions.

[360] On September 1, 2016 Dr. Clarke eventually transitioned over to a single injection process as that was Dr. Clarke’s preference to minimize risks. When he combined the two injections he moved “up more to an L-4 location” trying to get up a little bit closer to L-3 which would potentially give more of a leg coverage for sympathetic block which was treating the CRPS.

[361] When Dr. Clarke saw Mr. Noiles November 24, 2016 Mr. Noiles reported for the first time on the 1 needle approach indicating he had received almost 50 percent benefit for 6 weeks reduced to 30 percent by 8 weeks. Dr. Clarke again administered the one needle injection on November 24.

[362] Dr. Clarke next saw Mr. Noiles January 2017. Again Mr. Noiles reported that the blocks administered by Dr. Clarke were beneficial. Mr. Noiles experienced a 50 percent pain reduction for 6 weeks reducing to a 30 percent reduction by 8 weeks. Again, Dr. Clarke provided the same one needle injection.

[363] Dr. Clarke again saw Mr. Noiles June 29, 2017 when Mr. Noiles reported the same pain reduction, and the same 1 needle approach was administered.

[364] Dr. Clarke saw Mr. Noiles again January 2018 at which time he reported a 40 percent pain reduction for 6 weeks which reduced down to a 30 percent benefit by 8 weeks.

[365] Dr. Clarke next saw Mr. Noiles April 5, 2018 when he again administered the 1 needle steroid injection. Mr. Noiles reported the same pain reduction benefits.

[366] Mr. Noiles returned to Dr. Clarke’s clinic on July 5, 2018 at which time he reported the same pain reduction benefits from the April injection (40 percent pain reduction for 6 weeks decreasing to 30 percent). Again, he received the one needle injection.

[367] Mr. Noiles reported to Dr. Clarke’s pain clinic pharmacist on September 6, 2018 that this interventional procedure had “been particularly helpful” and on he was “just starting to see pain return with the injection benefit wearing off”. As a result, Mr. Noiles had unilaterally reduced his pain medication.

[368] Dr. Clarke also saw Mr. Noiles October 2018 for a single needle injection. With regard to Dr. Clarke’s treatment of Mr. Noiles October 2018, it was pointed out to Dr. Clarke on cross examination that Mr. Noiles’ pain disability index score at that appointment was one of the lowest he had reported even though he had not had an injection for 3 months (ie. since July 2018).

[369] Dr. Clarke acknowledged that the injection in July was the first time that there had been a combined treatment at L-5 “so the benefit here is this is the first time I densely blocked the sympathetics at L-5”. As Dr. Clarke explained, this was the first time that he had done “a full volume of the sympathectomy at L-5” which Mr. Noiles reported had been “particularly helpful”.

[370] On an ongoing basis, Dr. Clarke is treating Mr. Noiles’ primary and secondary diagnosis and giving Mr. Noiles injections for the secondary diagnosis as frequently as his injections for the CRPS.

PART 16

The observations of Mr. Noiles’ friends and family after the April 2012 incident

[371] Mrs. Noiles testified that, from the time of the April 2012 incident and up to the fall of 2012, there was a significant change in how Mr. Noiles responded to things. She found him very short tempered and angry and not his normal happy-go-lucky self. She said it was a very unpleasant time for them as a family.

[372] Mrs. Noiles also testified that during this time she and Mr. Noiles started to fight with raised voices and name-calling. Prior to this time they could work things out civilly if they had to deal with issues even while Mr. Noiles was impacted by the death of his mother.

[373] While things have improved, as she put it, there is a lack of lightheartedness and fun in their household. Mrs. Noiles testified that Mr. Noiles still has pain and does not sleep well. He still limps and the changes in his gait vary by the amount of pain he is in on any given day.

[374] Mrs. Noiles testified that Mr. Noiles is not the same person as before the April 2012 incident and it has impacted their relationship. The emotional responsibilities don’t feel shared and equal. Mrs. Noiles explained that Mr. Noiles is really focused on himself and she finds that she does not always get the feedback and support that she needs. Their physical intimacy has also been impacted.

[375] They continue to work on their relationship and are committed to “putting things back together”. Fortunately, their relationship has improved over time but it is not where she thinks it needs to be.

[376] On cross-examination, Mrs. Noiles was asked to view portions of the surveillance which related to interactions between Mr. Noiles and the Noiles’ friend and neighbour.

[377] Mrs. Noiles indicated that this neighbour had taken Mr. Noiles to the hospital after the April 2012 incident. Mrs. Noiles was away on business in Winnipeg on that day. In direct examination, Mrs. Noiles indicated that Mr. Noiles called her right after the incident happened. Mr. Noiles testified that immediately after the incident he “grabbed” their cordless phone and called Mrs. Noiles who was in Winnipeg and it was Mrs. Noiles who suggested that he call their neighbour, who was a nurse whose husband worked with Mrs. Noiles.

[378] It was put to Mrs. Noiles on cross-examination that the neighbour was the first person that Mr. Noiles had called emphasizing that she was called before Mrs. Noiles. Mrs. Noiles responded “she’s down the street and a nurse, yes”.

[379] However, also during her evidence on cross-examination, Mrs. Noiles clearly stated that she told Mr. Noiles when he called her on her cellphone that he should call their neighbour. As she put it, they were family friends, she was in Winnipeg and their neighbour was a nurse. It was suggested by counsel for the defendants that Mr. Noiles had already made the call to the neighbour by the time he called her and Mrs. Noiles responded that that was fine, that both families were friends and that was not unexpected at the time.

[380] Counsel for the defendants suggested to Mrs. Noiles on cross-examination that it appeared from the surveillance video that there were two occasions where Mr. Noiles was in a vehicle with their neighbour and it looked like they kissed. Mrs. Noiles responded that it was not clear in relation to the first occasion but it was possible. She agreed that it appeared that Mr. Noiles leaned in and kissed the neighbour on a second occasion when he exited her vehicle. Both interactions on the video occurred in 2017.

[381] It was suggested to Mrs. Noiles that Mr. Noiles “being involved in an extramarital affair could be one reason why your sexual relationship has suffered”. Mrs. Noiles responded that she did not know that. She indicated that it was clear to her that their sexual relationship ended immediately after Mr. Noiles’ injury in April 2012.

[382] Mrs. Noiles was not prepared to agree that the impact on her relationship with Mr. Noiles was related to what was seen on the surveillance in 2017 and when put to her that “his relationship with her [the neighbour] could affect your’s” Mrs. Noiles responded “not from my point of view, because I was unaware”. When it was put to her by counsel for the defendants that she did not know when they started their relationship Mrs. Noiles indicated that she did not.

[383] Mr. Noiles was not asked about whether he had a relationship with anyone other than his wife and little was made during his testimony about the fact that he had made a call to their neighbour to take him to the hospital.

[384] Regardless of what priority Mr. Noiles gave to his call to their neighbour on April 24, 2012, I am not prepared to find that Mr. and Mrs. Noiles had marital issues prior to the April 2012 incident or that any type of interaction with their neighbour negates any losses suffered by Mrs. Noiles as a result of the April 2012 incident. Such a finding is inconsistent with the evidence of Mrs. Noiles, their children and Ms. Chestnut, all of whom I found to be objective and credible witnesses.

[385] I am satisfied that the losses described by Mrs. Noiles as I outline in this section were caused by the 2012 incident.

[386] Mrs. Noiles graduated from teacher’s college in May 2013. As previously noted, she is a very hard worker. She obtained temporary employment at Digital Boundary and took another job serving tables at a restaurant. In addition, and very much to her credit, she upgraded her course work and enhanced her qualifications to become qualified to teach English as a second language, special education and French.

[387] She was successful in obtaining a supply teaching position in September 2014 and two part-time contracts in 2015. She ultimately obtained a full-time teaching position in 2016. Nevertheless, she continued to work part-time as a server up until January 2018 in order to augment their family’s income. The family also cashed in RRSPs to maintain their cash flow.

[388] The family continued to go on camping trips and take vacations each March break or during the spring, travelling to Mexico in 2012, 2013 and 2014 and on a Caribbean cruise in 2015 and 2017. During these vacations Mr. Noiles drove off-terrain vehicles, walked on the beach and rode bikes.

[389] They managed to take these vacations because Mrs. Noiles’ worked her extra job and because of contributions from her mother.

[390] They continue to camp as a family but not to the same extent as they had prior to the April 2012 incident and Mr. Noiles no longer contributes to the preparation for those trips like he did before.

[391] Mrs. Noiles testified that Mr. Noiles is not able to do the housekeeping or yard work to the same extent that he did prior to the April 2012 incident. She testified that there are things that he continues to do but he does them at a much slower pace, in small increments of time.

[392] As a result, the amount of work that Mr. Noiles gets done over a period of time is greatly reduced. As she put it, he does not do the things that he used to do with the same efficiency and the same speed and everything is a chore or a challenge. He also needs help to do larger jobs throughout the house.

[393] Ashley described her father as being much more irritable and not as happy after the April 2012 incident. He slept a lot and slept on the couch for more than six months.

[394] She described her father as getting angry and “explosive”, kind of like a ticking time bomb after the April 2012 incident. This caused her to avoid him, to avoid any argument. He no longer attended their activities, did not help with their school projects and did not meet them when they got dropped off by the school bus.

[395] She noted some improvement when his medications were changed. Nevertheless, she commented that their relationship was negatively affected and they were all co-existing under the same roof and were no longer really a family. She described a lot of yelling and fighting between her parents. She and her sister found their new circumstances frightening and she had to calm her sister. The family had never had financial problems before the April 2012 incident and her parents arguments were often relating to their financial pressures.

[396] Ashley feels that she has been forced to grow up fast and that the end of her childhood was stolen from her. Their new circumstances opened her eyes to fighting and stress. She is not as social and does not have friends over because of the potential for her parents to be fighting or her father to be in a bad mood.

[397] She feels she has been impacted financially as well and no longer asks for things. She had not planned to work until she was older but she has a part-time job out of necessity. She works and contributes as much as she can.

[398] After the incident, her father no longer does all the inside cleaning he used to do. She described their home as becoming an absolute mess and disorganized which it had never been before.

[399] She and her sister do much more housework than they had previously.

[400] The family no longer decorates their home and yard for Christmas to the extent they had previously, something that had been important to them.

[401] While her father continues to do some outside work (cutting the grass and shoveling the driveway and sometimes other outside work such as cleaning the pool, picking up leaves, putting furniture away and gardening) he does so much more slowly and only when he is having a good day.

[402] Ashley indicated her mother has become more of a micro-manager and her mother now has responsibility for everything because her father might forget, have a bad day or need to sleep and, as a result, he is not very reliable and cannot be counted on.

[403] She spoke of the hard work her mother has undertaken and how this took her from the home for long periods of time.

[404] Although her father spends a lot more time at home, Ashley considers that time as not quality time.

[405] Her relationship with her father, and his personality, has not returned to what it was prior to the incident. Her father also no longer bikes, does not play basketball, does not kick the soccer ball and their camping trips have diminished. They still travel as a family but it is just not the same.

[406] Fortunately, Ashley believes that things now are a lot better than the years immediately after the April 2012 incident, but she does not think the family will go back to what it was prior to the incident.

[407] Kylie’s testimony was consistent with Ashley’s. She also obtained part time employment. She also testified that Mr. Noiles can cut the grass, clear snow, clean the house and garden as he did prior to the incident but it takes him longer.

[408] Ms. Chestnut testified that the most prominent change in Mr. Noiles following the April 2012 incident is the fact that he walks with a limp and he does not put pressure on his injured leg when standing. She has also observed him lying on a couch during one out of five family events. He is no longer as sociable and is now angry and frustrated and quick to temper.

[409] As she put it, Mr. Noiles is just not the same person anymore. She now finds Mr. Noiles irritable and frustrated. They speak frequently and Mr. Noiles often expresses frustration.

[410] She is aware that the circumstances have put a lot of pressure on their family and while the Noiles are still quite strong as a couple she knows that there has been pressure on their relationship and that Mr. Noiles is quicker to anger. As she put it, they are trying to create a new normal.

[411] She also observes their home as less organized and not as well maintained as it was prior to the incident.

[412] Ms. Chestnut, who I noted to be a very fair witness, indicated that she does not see a drastic change in Mr. Noiles’ relationship with his daughters before and after the incident. According to Ms. Chestnut, Mr. Noiles’ engagement with his daughters’ sports remained the same after the incident. He had always been very engaged and remained as engaged at the same level after the incident.

[413] Mr. Gauci described Mr. Noiles as now being more quiet, reserved and a lot more serious. He described him as having good and bad days. On some days he walks normally but on other days he walks with a gait favouring his injured leg. Mr. Gauci continues to see Mr. Noiles as frequently as he did prior to the incident and often speaks to him on the phone.

[414] Mr. Gauci described Mr. Noiles as being very limited in his activity and no longer physically active when their families camp together. He has also observed his leg swollen and needing to be elevated (the last time he made that observation was in 2014/2015). As Mr. Gauci put it, Mr. Noiles is no longer as physically active as he used to be and not as jovial and fun-loving.

[415] I note that in contrast with the above evidence, according to Mr. Lee, when Mr. Noiles “knew that he was being watched, his limp got worse”. He testified that this exaggeration occurred every day. The defendants contended that the surveillance reveals that Mr. Noiles limped while he could be observed by City employees but did not otherwise limp in the same timeframe.

[416] As I have previously indicated, I am not persuaded by Mr. Lee’s testimony and do not conclude that Mr. Noiles exaggerated his limp for his personal gain. I will discuss the surveillance video further in these reasons.

[417] I accept the evidence of his friends and family with respect to their observations of Mr. Noiles’ behaviour and abilities following the April 2012 incident and their losses caused by that incident.

PART 17

Observations of Mr. Noiles’ co-workers and his work performance after the April 2012 incident

[418] After April 2012, Mr. Hall described Mr. Noiles as “just not Rod”. He observed him labouring to walk. As Mr. Hall put it, it seemed to take forever for Mr. Noiles to walk across the yard at work. According to Mr. Hall, Mr. Noiles was not the same guy.

[419] Ms. Chestnut was aware that Mr. Noiles was embarrassed and frustrated about his situation at work after the incident and that particular people in certain positions had made his life at work challenging. She emphasized that working as part of a team was important to Mr. Noiles. It was clear to her that when he was working shorter hours at an “inside job” he did not have the same satisfaction from his work and he wanted to be out on the roads and part of a team.

[420] Mr. Bruff observed Mr. Noiles in the workplace after the incident and noticed that he hobbled and was not the happy-go-lucky guy he used to be that he had known for a long time.

[421] Mr. Bruff testified that Mr. Noiles “struggled” when he worked in the meter shop. Mr. Bruff formed the impression that Mr. Noiles was struggling by the way he was walking and by his demeanor. According to Mr. Bruff, he was like a zombie. He was no longer a guy “with a bounce in his step”.

[422] On cross examination, Mr. Bruff acknowledged that from October 2012 to May 2016 Mr. Bruff saw Mr. Noiles in the workplace for 5 to 10 minutes at varying frequencies depending on his meeting schedule. However, as previously noted, I found Mr. Bruff to be a very careful, objective witness. His observations are important and, as I will discuss below, he was involved in a number of grievances on behalf of Mr. Noiles. I am satisfied he was in a position to make accurate and reliable observations of Mr. Noiles in the workplace.

[423] Mr. Watson was aware that there were grievances and conflicts between Mr. Noiles and other employees in the water department.

[424] In 2015, Mr. Noiles complained to his superiors regarding the conduct of two of his fellow employees. The City conducted an investigation and found that some conduct by Mr. Noiles’ work colleagues violated City policies (for example comments to the effect that they could not understand why Mr. Noiles came to work, that he was a waste of money, suggestions that he stay home and the exclusion of Mr. Noiles from invitations and early departures from work on Christmas Eve) while some did not (for example a comment regarding Mr. Noiles’ phone usage).

[425] Mr. Bruff confirmed that there were workplace issues for Mr. Noiles in the meter shop. Mr. Bruff described Mr. Noiles as being harassed, there was graffiti written on his fridge, he was not given access to a washroom on the ground floor and a number of grievances were filed on his behalf which were ultimately resolved.

[426] Mr. Bruff acknowledged that none of the incidents which were the subject of Mr. Noiles grievances were witnessed by him and other than the May 24, 2016 grievance, the grievances had been written by the Union’s second vice-president, who Mr. Bruff had the responsibility of overseeing.

[427] Mr. Bruff was adamant that the Union does a full investigation to ensure the grievor’s claim is fair and accurate and the Union is absolutely in a position to determine if the grievance is appropriate. He would not in any way agree with the proposition put to him on cross examination that the Union’s job is not to investigate if there is any truth in relation to a grievance.

[428] This evidence is not inconsistent with the fact that Mr. Bruff advised Mr. Noiles to file a grievance when Mr. Noiles was not appointed lead hand in January 2017 (as I will describe in more detail further in these reasons) because of his late application. These circumstances did not require further investigation and Mr. Bruff’s advice in such circumstances does not lead me to conclude that Mr. Bruff was not truthful during his testimony.

[429] In May 2016, Mr. Noiles had worked four hours a day in the meter shop for more than two years (since January 2014). Mr. Noiles and Mr. Bruff attended a meeting with Mr. Matthews, the City’s HR specialist who was in charge of injured workers and Mr. Reid, the manager of the water department. At that meeting, Mr. Noiles was advised that there was no more work for him in the meter shop and no more work for Mr. Noiles within the City that he was qualified for.

[430] Therefore, as of May 27, 2016, Mr. Noiles’ job in the meter shop ended. Mr. Bruff testified that he personally wrote a grievance on behalf of Mr. Noiles the day of their meeting or the next day. In the grievance, he requested that Mr. Noiles be reinstated to a modified work assignment. Mr. Bruff also requested full monetary re-dress with damages for loss of dignity and/or aggravated damages on behalf of Mr. Noiles. As Mr. Bruff put it, it was disgusting how Mr. Noiles had been treated as an injured worker.

[431] All grievances filed on behalf of Mr. Noiles were ultimately resolved by Minutes of Settlement between the City and the Union dated January 23, 2018.

[432] In the Minutes of Settlement Mr. Noiles warranted and represented that he had a permanent medical restriction which limited his work to a maximum of four hours a day, he had a reduced tolerance to wearing tied-up work boots and

• he was unable to climb and down into trenches;
• unable to use shovel with right leg;
• able to drive, depending on pain medication use;
• may be impacted by vibration and extreme temperatures;
• must pace activities and change position and stretch as required;
• lifting floor to waist and waist to shoulder was limited to 16 kilograms;
• carrying was limited to 18 kilograms;
• sitting was limited to 30 minutes per hour;
• standing was limited to 15 minutes per hour;
• walking was limited to 20 to 30 minutes;
• climbing was limited to 4 to 6 steps;
• crouching and squatting could be done occasionally but not sustained; and
• prolonged standing or walking was limited.

[433] Mr. Noiles agreed to complete a physical demands analysis with DMA Rehability to determine whether he was capable of performing work four hours per day as a fire hydrant maintenance worker, a position the City was offering him.

[434] The Minutes of Settlement included a number of other provisions including a commitment from the City that it would advise one of its employees to avoid interacting or communicating with Mr. Noiles at work other than as necessary to perform work duties. Mr. Noiles agreed to a similar provision.

[435] Mr. Noiles also agreed that he would abide by an on-going obligation to advise the City as soon as reasonably possible if there was any change in his physical capacity and/or medical restrictions.

[436] Mr. Noiles attended for the occupational therapy job analysis with DMA Rehability. Unfortunately, the result of the assessment was that Mr. Noiles could not fulfil the physical requirements of the fire hydrant maintenance worker position. As a result, Mr. Noiles was not offered that position.

[437] Mr. Noiles is not aware of any process that forces the City to provide him with a job. However, Mr. Noiles remains employed with the City. He continues to receive disability benefits through Great West Life. He also remains entitled to benefits offered to City employees until he retires and then after retirement to age 65. If he discontinues his employment with the City, his pension and benefits entitlement will be terminated.

PART 18

Dr. Clarke’s prognosis for Mr. Noiles in relation to the injury sustained in the April 2012 incident

[438] Dr. Clarke’s primary diagnosis has remained as CRPS with the secondary diagnosis being right L-5 radiculopathy. Dr. Clarke testified that Mr. Noiles is “well beyond the window where I would expect CRPS recovery”. He was clear in his opinion that his secondary diagnosis (ie. his L-5 radiculopathy) did not significantly contribute to Mr. Noiles’ functional status.

[439] Dr. Clarke’s prognosis for Mr. Noiles was poor and it was his opinion that the prognosis for the resolution of Mr. Noiles’ CRPS symptoms in the future was zero.

[440] Dr. Clarke explained as follows:

While Mr. Noiles is a gentleman who unfortunately sustained an injury back in April 2012. He has seen myself and other physicians who all agreed that he had developed Complex Regional Pain Syndrome at that point in time. We had tried a variety of interventions, medication management, physiotherapy, and unfortunately, even the end of goal of spinal cord stimulation didn’t improve his functional status. He later went on to develop an L-5 radiculopathy which contributes to his pain but is not the sole source of his pain. And, at this point in time we’re too far along where I think we’re going to be able to make any advances to treating his Complex Regional Pain and that’s certainly supported by my clinical experience as well as any review of the literature which demonstrates the likelihood of recovery of Complex Regional Pain beyond one year is essentially zero.

[441] Dr. Clarke’s opinion was that manual labour was difficult for Mr. Noiles and “his pain would likely limit him to from four to six hours of activity” and “because of the cyclical nature of CRPS he may require a significant allowance for breaks and ability to work in a variety of different positions in order to try and accommodate his pain flares”.

[442] Dr. Clarke also testified that Mr. Noiles had not significantly responded to any of the interventional therapies that had been prescribed that “would get him back to where he previously was”.

[443] The only treatment that Dr. Clarke would recommend if Mr. Noiles’ radiculopathy symptoms became worse would be spine surgery, decompression therapy, however “patients who undergo surgery in any area that has any involvement with CPRS always have a very real and significant risk of making things worse, not better”.

[444] However, Dr. Clarke went on to say that “being part of the circle of care” with patients who have surgery for radiculopathy he sees “many patients who do get significant improvement and go back to function”. He “would say that the vast majority of patients, if they are operated on in an appropriate time, are able to return to work”.

[445] Dr. Clarke continues to prescribe hydromorphin-contin to Mr. Noiles as well as pregabalin and nabilone and in his opinion Mr. Noiles will need that medication into the future.

[446] I note that Dr. Sequeira reached similar conclusions.

[447] On his first assessment in July 2015, Dr. Sequeira concluded Mr. Noiles required physical restrictions pertaining to his injuries that would likely be needed permanently. He suggested that Mr. Noiles restrict himself to light sedentary and intermittently medium intensity activities and specifically, that he limit prolonged standing or walking because those were two particularly provoking activities, light climbing, squatting, crouching or crawling and he needed to periodically get up, change positions and stretch. He also thought he needed to pace himself in his activities.

[448] Because of the physicality of his work, Dr. Sequeira felt that Mr. Noiles could not return to his pre-accident employment from a physical standpoint and he needed to work at a light or sedentary intensity level. He recommended that Mr. Noiles continue to find work in a modified capacity at a light or sedentary intensity level and at modified hours. These requirements would be permanent.

[449] Dr. Sequeira noted that by the time of his second assessment on December 6, 2016 Mr. Noiles had stopped working in May 2016, roughly six months before he had seen him. Dr. Sequeira’s opinion was that Mr. Noiles could not ever return to the level of work he performed prior to the April 2012 incident and he thought Mr. Noiles’ “ability to physically return to work in anything more than a modified capacity with accommodation and autonomy at more than four hours was likely going to not be possible either”.

[450] In Dr. Sequeira’s opinion, the maximum that Mr. Noiles would ever be able to work would be 20 hours a week and to do so, he would need to have a job that would allow him autonomy to change positions and accommodate. He also required some leniency in his job because he was experiencing escalations.

[451] In Dr. Sequeira’s opinion, Mr. Noiles will have the same limitations in relation to housekeeping and home maintenance.

PART 19

The defendants’ challenges to Dr. Clarke’s opinions

[452] The defendants asserted that Dr. Clarke’s opinions should not be accepted on a number of grounds:

He was a relatively new doctor with relatively little experience on his own and he acted as Mr. Noiles’ advocate

[453] This challenge raises the issue of whether Dr. Clarke was sufficiently qualified to diagnose Mr. Noiles CRPS and whether he appropriately advocated for his patient.

[454] The defendants pointed out that Dr. Clarke completed his fellowship in pain medicine in 2011, only one year before Mr. Noiles was referred to him by Dr. McLeod. However, I am satisfied that Dr. Clarke was sufficiently qualified to diagnose and treat Mr. Noiles. As previously described, Dr. Clarke conducts research in relation to CRPS. He co-authored a case report in relation to CRPS in a peer reviewed publication as early as 2011.

[455] Counsel for the defendants was critical of Dr. Clarke for not mentioning in his direct examination that the Budapest Criteria is a diagnosis of exclusion. They noted Dr. Clarke readily agreed with that proposition on cross-examination. This caused me no concern. Dr. Clarke is well aware of the criteria for diagnosing CRPS.

[456] Counsel for the defendants also was critical of Dr. Clarke for relying on some of the testing by Dr. McLeod. I found nothing inappropriate in him doing so. I will discuss this issue more fully below.

[457] While Dr. Clarke fairly acknowledged that as a treating physician he is an advocate for his patient, I found Dr. Clarke a totally objective witness. His evidence was not influenced by his role as Mr. Noiles’ ongoing caregiver.

[458] It must be remembered that Dr. Clarke has administered fairly invasive treatments to Mr. Noiles and referred him for a significant surgical procedure to treat the disease he diagnosed. I am completely satisfied that Dr. Clarke properly made his diagnosis of the disease which required that treatment regime. The fact that he might “have a stake in defending his choices” as the defendants suggested, does not lead me to discredit the reliability and veracity of his evidence.

[459] I have also taken into account the defendants’ reliance on Dr. Lipson’s opinion that there is a “big difference in approach” between an anesthesiologist in a pain clinic and a physiatrist, which is Dr. Lipson’s specialty. As he stated:

A. I think there’s a big difference in approach. My first responsibility is to make a definitive diagnosis, and to capture the abnormalities and the interrelationship between it and other diseases. And the anesthetist who does pain medicine really does not usually investigate, and does not usually go through the concern of other possible things that are impinging, and he tends to treat the symptomatology and listens more closely to what the person says. I think I question more what the person is saying, and look into the small details, and am more interested in making sure that the diagnosis is complete, rather than starting treatment.

Q. Okay. And why do you do more investigation before you start treatment?

A. Because I want to know what’s wrong, and I don’t want to make mistakes.

[460] I found it most surprising that Dr. Lipson would suggest that Dr. Clarke, someone who treats many patients with CRPS and has a research interest in CRPS, would simply treat symptoms without investigation, particularly when the treatment is as invasive as spinal injections. Dr. Lipson’s comments do not cause me to diminish the value of Dr. Clarke’s evidence.

[461] Dr. Clarke was also challenged on cross examination in relation to his reporting when interviewed by Rehab First on December 21, 2016 in relation to Mr. Noiles’ future care needs. Dr. Clarke stated that it would still be a potential possibility in the future for Mr. Noiles to have a ketamine infusion even though he agreed he was aware that Mr. Noiles had not had that treatment (and he incorrectly reported the contrary in his reports of December 30, 2015 and December 18, 2016). I accept Dr. Clarke’s explanation that it was hard for him to know exactly what he knew at the time he was interviewed and, in any event, as he explained, it would still be a potential possibility in the future for Mr. Noiles to have a ketamine infusion as he advised Rehab First (although, as Dr. Clarke also noted it is unlikely to be beneficial).

[462] On cross examination, Dr. Clarke was also referred to his letter to Service Canada dated December 11, 2017 relating to Mr. Noiles’ application for benefits. In that correspondence, he stated that Mr. Noiles had failed a trial of ketamine infusion. As noted, this was a consistent mistake in Dr. Clarke’s reports.

[463] There was also an additional error in this letter in that Dr. Clarke indicated that Mr. Noiles had been receiving epidural steroid injections since January 2016 every 16 weeks when in fact they were occurring every 8 weeks.

[464] It was also pointed out to Dr. Clarke that in his letter to Service Canada, he noted that CRPS was Mr. Noiles’ primary diagnosis and right L-5 radiculopathy was his secondary diagnosis but he did not state that the L-5 radiculopathy was “not a significant contributor to functional status”, a statement he had included in his other reports.

[465] It was put to Dr. Clarke that it appeared therefore that his opinion had changed in 2017. However, Dr. Clarke emphasized that he still did not consider the secondary diagnosis as a significant contributor to Mr. Noiles’ functional status and he did not feel that the radiculopathy was impacting Mr. Noiles.

[466] I am satisfied that Dr. Clarke’s letter to Service Canada does not reflect a change in his opinion nor does it indicate he has taken on the role of an advocate in this litigation.

[467] Overall, I do not agree with the defendants’ challenges to Dr. Clarke’s qualifications, expertise and objectivity.

Dr. Clarke was inappropriately influenced by Dr. McLeod’s referral and Dr. Clarke relied on Dr. McLeod’s diagnosis

[468] In Dr. McLeod’s referral it was noted that the reason for the referral was “soft tissue injury, right leg, tire explosion May 2012, likely CRPS variant”.

[469] Dr. Clarke was clear that he did not rely on any diagnosis by Dr. McLeod and relied only on his referral.

[470] Dr. Clarke acknowledged Mr. Noiles was referred to him “under the suspicion” of CRPS. However, Dr. Clarke conducted a full review of Mr. Noiles’ case when he was referred to his clinic. Dr. Clarke noted the objective findings earlier outlined on his physical examination of Mr. Noiles on October 31, 2012.

[471] I am satisfied that Dr. Clarke formed his own diagnosis of CRPS before developing his plan of care for Mr. Noiles.

[472] The fact that Dr. Clarke relied on some testing undertaken by Dr. McLeod (more particularly described below) does not lead to the conclusion that Dr. Clarke “relied on Dr. McLeod’s analysis” as the defendants asserted.

Dr. Clarke did not properly diagnose Mr. Noiles as having CRPS because the diagnosis was made before considering whether there was a better explanation for the symptoms

[473] Dr. Clarke testified that he considered alternative causes for Mr. Noiles’ symptoms, as required by the Budapest criteria. As previously noted, Dr. Clarke was fully aware that a CRPS diagnosis can only be made in the absence of a better explanation for the symptoms and this is an important criteria.

[474] Dr. Clarke indicated that some alternative causes had been ruled out before Mr. Noiles was referred to Dr. Clarke. He noted that Dr. McLeod had tested for deep vein thrombosis, there had been an MRI of the right lower limb and a CBC test to check for infection.

[475] Dr. Clarke explained that he examined Mr. Noiles neurologically and he did not have pain in the Dermatomal distribution which meant that his pain was outside of a normal nerve distribution, so unlikely from a specific nerve injury.

[476] He testified that no full cranial neurological examination was warranted. Mr. Noiles’ specific injuries were in his right leg following damage to that leg.

[477] Dr. Clarke testified that he was focused on the presentation of his patient.

[478] Dr. Clarke was clear that, in his opinion, Mr. Noiles met the Budapest criteria for CRPS and he was satisfied that other diagnoses that may explain the presenting signs and symptoms were excluded.

[479] According to Dr. Clarke, his observations from his physical examination of Mr. Noiles at his initial appointment “were textbook for Complex Regional Pain” and those observations were ongoing throughout his treatment of Mr. Noiles.

[480] He was very clear that there were no other reasonable tests to be conducted. As he emphasized there was no testing that was clinically indicated prior to August 2015 when he ordered the CT scan.

[481] Dr. Clarke was adamant that there was no other testing indicated for Mr. Noiles when he made his diagnosis of CPRS. As he said “there is nothing else that would present with that sequalae of all those symptoms – swelling, erythema, pain disproportionate, trophic changes”.

[482] Dr. Clarke’s evidence was supported by the evidence of Dr. Sequeira, whose evidence on this point was straightforward and objective. I do not agree with the defendants’ assertion that Dr. Sequeira was impacted by, or influenced by, the fact that his retainer instructions from plaintiffs’ counsel included a statement that Mr. Noiles had been diagnosed with a right leg CRPS so that Dr. Sequeira was aware of that diagnosis before he saw Mr. Noiles.

[483] Dr. Sequeira took his own history from Mr. Noiles and reviewed his medical records. In accordance with his usual practice for a medical/legal assessment, Dr. Sequeira personally assessed Mr. Noiles over one and one half hours (which is longer than he sees a typical patient).

[484] He acknowledged on cross-examination that a variety of tests can help exclude other diagnosis such as a neurological exam, an EMG study, quantitative sensory testing, Laser Doppler Fluorometry, imaging techniques such as an MRI and a CT scan (which can also detect herniated disc or pinched nerves), a bone scan and a PET scan (which would show changes in the tissue at a cellular level). However, he disagreed with the proposition that a diagnosis of CRPS can only be made once an investigation has been conducted as to whether there is a better explanation for the symptoms.

[485] As Dr. Sequeira explained, a diagnosis can be made based on a given practitioner’s clinical acumen and suspicion and testing. You would order testing based on what you clinically see but if you do not see something that requires additional testing you would not order it.

[486] As he put it, “we absolutely don’t need tests, nor do we order them, to help us with this diagnosis, unless we suspect something”.

[487] Dr. Sequeira reiterated on cross-examination that the Budapest criteria requires that “nothing has to be available in the clinical assessment that would suggest anything different”. He reiterated that “we do not need testing to confirm this, especially if somebody… presents in this way without anything overt… that needs to be investigated to explain it”. He was clear that the proposition that the Budapest criteria requiring exclusion of another diagnosis can only be fulfilled through testing was not true. He emphasized that other diagnoses can be excluded clinically. He further emphasized he would never suggest ordering tests that are not clinically warranted.

[488] On cross examination, it was again put to Dr. Sequeira that one of the criteria for diagnosing CRPS requires that other potential diagnosis be excluded and again, Dr. Sequeira stated the following:

Only so much as a clinical presentation dictates that you do so. So we don’t go off on wild goose chases, looking for any possible source of a cause, when a clinical presentation doesn’t dictate that you do so. So you still base it on history and examination. And so Dr. Clarke did at this point [2015], because things had changed, and so when things change, and a presentation evolves, then you’d look for more sources. And there was nothing, at the point when he presented, that would have dictated that he needed to look for another source. He came – as did Dr. McLeod – with a consistent diagnosis that made sense.

[489] Dr. Sequeira was adamant that the exclusionary criteria for diagnosing CRPS did not require more testing than was done for Mr. Noiles.

[490] I do not contest the accuracy of Dr. Clarke’s opinion because he failed to order exclusionary tests before diagnosing Mr. Noiles with CRPS in 2012.

Dr. Clarke did not have sufficient and accurate information from Mr. Noiles to make his diagnosis

[491] On cross examination Dr. Clarke acknowledged that he relies on what he is told by his patient about the level and type of pain the patient is experiencing and, as previously noted, part of being a good physician is being an advocate for your patient.

[492] Dr. Clarke also acknowledged on cross examination that he was not aware that Mr. Noiles had open reduction internal fixation surgery on his right leg when he wrote his first report December 30, 2015. He also did not know that Mr. Noiles had gone to his family doctor for tingling and numbness in his extremities and that he was getting follow-up EMG studies by Dr. Lacerte relating to numbness and tingling in his arms nor did he have Dr. Lacerte’s interview notes.

[493] Dr. Clarke further acknowledged that on the documentation completed by his patients for the first assessment there is a heading “other diagnosed medical conditions” and there are some examples provided such as “high blood pressure and diabetes”. Dr. Clarke acknowledged that a patient could potentially include under this heading prior musculoskeletal issues, anxiety issues and their involvement in other accidents.

[494] However, Mr. Noiles noted “none” under this heading indicating that he had no other diagnosed medical conditions. Specifically, there was no reference to his previous leg fracture and injury which “according to Dr. Clarke could potentially be important to know”. Dr. Clarke agreed that it would be important to know that he was having loss of sensation in his extremities “especially if it was in his legs”.

[495] Dr. Clarke also acknowledged it “would have been useful” to know that Mr. Noiles had gone to see his family doctor in the early 2000s relating to pain and numbness in his feet after standing at work for a long period of time. Importantly however, Dr. Clarke explained that such information “may have helped us in guidance of what other therapies he may have tried for that issue at that point in time and see what he responded to” but it would not have been important to know to come to his diagnosis.

[496] Dr. Clarke also acknowledged on cross examination that he was not aware that Mr. Noiles had been involved in a car accident in July 2012 nor was he aware that he had completed a claim for accident benefits in which he indicated that his injuries from the accident prevented him from working (which I have found was not in fact Mr. Noiles’ position).

[497] Further, Dr. Clarke acknowledged that Mr. Noiles did not inform him that he had seen a chiropractor on occasion for back and hip issues and that he had had a tobogganing accident to his right shin when he was a child.

[498] Dr. Clarke was challenged on his diagnosis because of these non-disclosures. However, Dr. Clarke testified that he relied upon how and what Mr. Noiles presented to him and, as well, the clinical picture.

[499] While it was put to him that he did not have the “full picture” Dr. Clarke indicated that “that would be fair to say in regards to the upper spine”. However, he was clear that “there was no evidence that warranted me doing a lumbar spine MRI at that point in time”.

[500] Dr. Clarke confirmed that at his initial assessment of Mr. Noiles there was nothing on physical examination that would indicate any potential issue relating to his spine. He also confirmed that there was no further testing indicated prior to his ordering of the CT scan in August 2015.

[501] While Dr. Clarke fairly acknowledged that it would be very hard to say that he would have done things differently if he had been given a full clinical picture, there was “always a potential” and it was not impossible that he would have. Importantly however, Dr. Clarke was very clear that there was no clinical presentation suggestive of radiculopathy at any point in time. As he emphasized, the CT scan itself indicated that clinical correlation was required. He was very clear that there were no symptoms consistent with radiculopathy until 2015.

[502] It is significant that Dr. Sequeira, who was provided with more information that Dr. Clarke received, reached the same opinion as Dr. Clarke.

[503] Dr. Sequeira noted five pre-existing conditions (a motor vehicle accident, bilateral foot pain, left arm symptoms, right elbow, arm and left hand symptoms on May 25, 2010 and psychological symptoms from January 2012).

[504] Dr. Sequeira acknowledged that he did not have all of Mr. Noiles’ prior medical records because, for example, he did not have the reference to Mr. Noiles’ visit with Dr. Lefcoe August 7, 2012 nor did he have the clinical record relating to Mr. Noiles’ attendance in an after-hours clinic and his discussion with Dr. Yemchuk.

[505] He also had not been provided with the patient history form Mr. Noiles completed for Dr. Watson in 1990 where Mr. Noiles circled “yes” in response to the question whether he had ever experienced numbness or loss of sensation in the face, fingers, hand, arms, legs, or other parts of his body.

[506] Importantly however, while Dr. Sequeira acknowledged that a pre-existing numbness and loss of sensation would be relevant to his analysis, also relevant was whether or not it was still persistent and how often it occurred. As Dr. Sequeira explained, “context is relevant and simply because you circled “yes”, [in response to a question regarding symptoms ever experienced] you cannot just simply take the “yes” blindly, you have to know more details”.

[507] When Dr. Sequeira assessed Mr. Noiles in July 2015, what was significant to him in terms of Mr. Noiles’ pre-existing health, was the fact that in January 2001 he had some foot pain and consulted Dr. Fox who noted that he likely needed orthopaedic shoes and boots. Dr. Sequeira commented that there was no note of subsequent toe symptoms from 2001 to 2012. Dr. Sequeira also noted Mr. Noiles had some arm symptoms and psychological symptoms in January 2012 when Dr. Fox prescribed the anti-depressant, citalopram.

[508] Dr. Sequeira also reviewed the x-rays taken in the emergency department at LHSC immediately after the April 2012 incident and noted Mr. Noiles’ old fractures and commented that having this old injury would predispose Mr. Noiles to developing CRPS. However, he emphasized that having this old injury would not have caused the CPRS because it was a healed injury and “in and of itself this old injury would have remained not problematic”.

[509] The defendants emphasized that Dr. Sequeira did not have Mr. Noiles’ chiropractic records or Dr. Lacerte’s underlying records. However, Dr. Sequeira was clear that he believed he had sufficient documentation to reach a reasonable and fair conclusion and being shown the additional documentation during cross examination did not change his opinion.

[510] Dr. Sequeira indicated that what was particularly significant in his review of the medial documentation was that there was consistent documentation of an injury in April 2012, follow-up of signs and symptoms within a week of the injury, an orthopaedic surgeon confirmed a CRPS diagnosis, a pain clinic treated CRPS and there were continuing treatments including medications, psychology and spinal cord stimulation to manage Mr. Noiles’ pain.

[511] As Dr. Sequeira noted, spinal cord stimulators are not used lightly and when doctors “get to the point of a spinal cord stimulator, enough doctors have assessed somebody and felt that somebody’s pain is severe enough and functionally limiting enough that it warrants a surgical treatment to try to manage the pain… to me, when I read this, it signifies how much this pain was impacting and it was quite consistent, very consistent with Mr. Noiles’ presentation, injury and ongoing difficulties”.

[512] As Dr. Sequeira put it, when he first saw Mr. Noiles on July 9, 2015 “all the documentation was consistent with a Complex Regional Pain Syndrome and treatment effected to try to help it”.

[513] After Mr. Noiles described his symptoms to Dr. Sequeira (burning and sharp right calf pain that radiates to the ankle made worse with walking, standing and increased activity, irritated by wearing socks and tight shoes, sheets or pants, significant limitation of physical activities, daily swelling, hair loss in the region of the injury and pain associated with numbness in the toes and anterior shin), Dr. Sequeira conducted a physical examination and noted the following:

• slight hair loss in the area of the injury;
• slight swelling of the right ankle and foot;
• a limp with less time spent on the right than the left;
• difficulty walking on his heels and toes with complaints of pain;
• allodynia (pain present to light tough) in the area of the scar of the right shin; and
• range of motion of his back, hips, left leg on both sides within normal limits.

[514] Dr. Sequeira testified that his findings were consistent with what had been documented by Dr. Clarke (as well as Dr. McLeod) and the predominant problem for Mr. Noiles was a CRPS of the right leg.

[515] Dr. Sequeira concluded that there was no other explanation for the cause of Mr. Noiles’ symptoms and his opinion was that Mr. Noiles suffered from CRPS which was consistent with the injury he sustained April 24, 2012.

[516] Dr. Sequeira was clear that Mr. Noiles’ CPRS was directly caused by the April 24, 2012 incident.

[517] I am satisfied that Dr. Clarke and Dr. Sequeira had sufficient and accurate information to make their diagnosis.

Dr. Clarke’s opinion that Mr. Noiles’ radiculopathy is not a significant contribution to his functional status is not accurate

[518] Dr. Clarke was clear that after considering the further information revealed in the November 2015 CT scan, his opinion is “unchanged” in terms of what he would have done. He would not have undertaken any other investigations earlier than he did.

[519] While Dr. Clarke acknowledged on cross-examination that he could not say with any medical certainty that in 2012 Mr. Noiles did not have the conditions disclosed in November 2015 , he also could not say with any medical certainty that these conditions would have been or are a big contributor to Mr. Noiles’ problems. He did agree that the radiculopathy is “likely causing some symptomology, but his greatest disability is still from the CRPS”.

[520] Dr. Clarke indicated that symptoms are things that patients complain of. For example, their pain, the distribution of their pain and the provocation of their pain. Therefore, hyperalgesia and allodynia are symptoms that the patient would be complaining of. Signs are things that can be seen such as swelling, discolouration and the trophic changes of the skin.

[521] He indicated that radiculopathy typically would not cause swelling, discolouration, or trophic changes (other than muscle wasting if there is a complete denervation).

[522] Dr. Clarke’s opinion was shared by Dr. Sequeira, who saw Mr. Noiles a second time on December 6, 2016 by which time Mr. Noiles had had the November 29, 2015 lumbar CT scan.

[523] Dr. Sequeira testified that the fact that the CT scan report stated what it did, did not change his opinion at all. He testified that there was a progression of Mr. Noiles’ symptoms based on Dr. Clarke’s notes and because things had changed, there was a reason why Dr. Clarke investigated Mr. Noiles’ spine.

[524] Dr. Sequeira testified that the indications in the CT scan were not the predominant cause of Mr. Noiles’ symptoms. Dr. Sequeira acknowledged that the CT scan is a potential explanation for the pain in Mr. Noiles’ calf and some of his symptoms do correlate with the CT scan. However, Dr. Sequeira was clear that what was shown on the CT scan is “one factor” but it is not “the predominant factor causing his problems”.

[525] As Dr. Sequeira testified, there were some changes on the CT scan that were bilateral but Mr. Noiles’ predominant symptoms were still on the right side and specifically his right leg. As he further explained “the imaging findings show L-4 and L-5 bilaterally and that would give us a different distribution of systems than what he’s describing”. He went on to say that:

If you think about what L-4 is, L-4 is the front part of the shin all the way down to the foot. And the most significant problem here is L-5, and the L-5 is actually the outside part of the heel and leg. And that’s not his predominant feature. In addition, the nerve test that Dr. Lacerte did, if we go back to that, was within normal limits for a pinched nerve coming out of the back. So, if you have an image that shows structural abnormality that is not consistent with Mr. Noiles’ presentation and you have a normal nerve test done by Dr. Lacerte, and when you account for all of this, including the initial presentation, including the fact that Mr. Noiles had this injury, has consistent documentation subsequently, on the balance of probabilities, the problem for him in his leg is predominantly this injury that happened in 2012, not the findings on this CT scan.

[526] Putting it another way, Dr. Sequeira testified that Mr. Noiles’ presentation was not consistent with the changes in the CT scan and when you combine that with the normalcy of the nerve test, it was consistent with the predominant feature of his symptoms not being radiculopathy or pinched nerve.

[527] At the time of the second assessment by Dr. Sequeira, Mr. Noiles’ symptoms had not changed (he had persistent pain in his calf and leg similar in terms of intensity and frequency, he had some numbness or tingling in his toes and parts of his ankle and foot which was constant, his balance was impaired and he had the same sensitivities to wearing socks and to sheets and to other clothing).

[528] When Dr. Sequeira examined Mr. Noiles, he still had a slight limp with less time spent on the right than the left, he had difficulty with standing on his heels and his toes and had some imbalance. Overall Dr. Sequeira’s examination was consistent with what he had noted in his first report.

[529] As a result, Dr. Sequeira’s primary diagnosis did not change from his first report and the restrictions remained the same.

[530] Dr. Sequeira testified that any of Mr. Noiles’ symptoms pertaining to his radiculopathy were likely also exacerbated by the underlying diagnosis of a CRPS. In other words, the CRPS causing pain in Mr. Noiles’ right leg caused him to limp and that limp flared up his back. As a result, Dr. Sequeira thought that any symptoms that Mr. Noiles was having pertaining to his radiculopathy were likely also exacerbated by the underlying diagnosis of CRPS.

[531] I will further analyze and assess the merit of Dr. Clarke’s and Dr. Sequeira’s opinions in my assessment of Dr. Lipson’s contrary opinion below.

The video surveillance suggests Dr. Clarke’s opinion should not be accepted

[532] Mr. Noiles was subject to surveillance over 4 hours, 54 minutes and 16 seconds between May 11 and October 14, 2017. There was surveillance on May 11, 12, 16, 18, 19, 20, 21, 22, 23, June 2 and October 11, 12, 19, 2017.

[533] The defendants abandoned privilege over this surveillance in accordance with Rule 30.09 and it was proffered for substantive purposes and is part of the evidentiary record.

[534] In the surveillance videos Mr. Noiles is seen outside of his home doing maintenance as he cuts the grass moving forward and backward. He hoses down the driveway and the floor of his garage. He prunes plants, including those hanging overhead. He puts a piece on the lower part of the eavestrough of his home. He empties a heavy bag and moves large full chlorine containers.

[535] Mr. Noiles is also seen driving to an arena and walking up and down stairs to enter the arena without using a handrail while carrying what appears to be heavy, garment bags containing hockey sweaters.

[536] He is seen squatting, walking on irregular ground and bending over.

[537] This surveillance was reviewed by Dr. Clarke, Dr. Sequeira and Dr. Lipson. The surveillance did not alter the opinions of Dr. Clarke or Dr. Sequeira.

[538] Dr. Clarke testified that his review of the videotaped surveillance did not change his opinion with respect to his treatment, diagnosis and prognosis for Mr. Noiles because he:

…was able to see several instances where the patient appeared to be trying to protect his injured side, his complex regional pain side. Most notably, I could see him… getting into this car, in what I would only describe what an elderly person would have done, trying to be very careful to get in. This doesn’t change my prognosis. It didn’t change my treatment plan. I felt confident that I was still treating other patients who had Complex Regional Pain Syndrome, and there wasn’t anything in that video that made me convinced otherwise.

[539] On cross-examination Dr. Clarke acknowledged that while he was under surveillance in May 2017, Mr. Noiles had not received any treatment since January 2017. Dr. Clarke acknowledged there were occasions when Mr. Noiles was able to walk without a limp and there were times that he was able to kneel or squat.

[540] However, Dr. Clarke stated that he did not see anything that would be “clinically relevant” to him. He explained that CRPS is cyclical in nature so that patients experience good and bad days and really good days depending on the proximity to injection or medication and how much rest a patient has had in recent days. As Dr. Clarke put it, it is “really multifactorial”.

[541] Dr. Clarke testified that he spent about one hour watching the surveillance videos because he fast forwarded through large portions of it when there was not much happening. As he put it, he felt that he saw “all he needed to see”.

[542] Dr. Sequeira’s comments on the surveillance were similar to Dr. Clarke’s. Dr. Sequeira noted that on the video surveillance the limitation in Mr. Noiles’ gait was not there all the time and there were times when he was walking normally and at times he walked with pain and sometimes with less pain. As Dr. Sequeira put it, this is what he would expect. As he noted, there will be fluctuations in pain with CRPS. The more a person does, the more active they are, the more likely they are to have pain and the more they will limp. Mr. Noiles’ limping would be highly activity dependent.

[543] Dr. Sequeira noted there were occasions on the video that Mr. Noiles did not limp (for example on May 19) and other occasions when he demonstrated a slight limp (for example May 16 and May 21).

[544] The video surveillance did not change Dr. Sequeira’s opinion at all. As he noted, Mr. Noiles had indicated that he was still trying to do things and participate in activities around his house and according to Dr. Sequeira, the video surveillance was consistent with what Mr. Noiles had told him.

[545] Dr. Sequeira testified that he watched all of the surveillance produced and while he would have fast forwarded through parts, he would slow things down and “look carefully” when he saw something he considered “noteworthy”. He acknowledged that he billed for less than an hour of his time in relation to his review of the surveillance.

[546] My consideration of the video surveillance does not lead me to question the veracity of Dr. Clarke’s and Dr. Sequeira’s opinions as to the significance of that evidence and their conclusion that this evidence does not alter their opinions.

[547] I am satisfied that they did not unfairly or inappropriately consider the surveillance video.

[548] In contrast to the opinions of Dr. Clarke and Dr. Sequeira, Dr. Lipson testified that the video surveillance was very significant to his opinion and in fact caused him to change the opinion he formed after he assessed Mr. Noiles.

[549] I will next review Dr. Lipson’s opinion and address the defendants’ challenge to Dr. Clarke’s and Dr. Sequeira’s evidence based on Dr. Lipson’s opinion.

Dr. Lipson’s opinion should be preferred over Dr. Clarke’s

[550] Mr. Noiles was assessed by Dr. Lipson at the request of the defendants on January 27, 2017.

[551] Mrs. Noiles testified that she had driven Mr. Noiles to and from his appointment with Dr. Lipson. It was her understanding based on the sympathy expressed by Dr. Lipson after he met with Mr. Noiles that he was supportive of Mr. Noiles. Specifically, Mrs. Noiles testified that:

“Dr. Lipson… came out and introduced himself, and had said there was no doubt that Rod was in pain and suffering from CRPS, and that he wasn’t a malingerer, and that it was his responsibility to look for people like that for insurance type claims, and that he understood that what Rod was going through was real, and wished us the best.”

[552] Mr. Noiles had a similar impression from his meeting with Dr. Lipson January 27, 2017.

[553] Mr. and Mrs. Noiles’ impressions with regard to Dr. Lipson’s assessment were accurate. In his first report, prepared after his assessment on January 27, 2017, Dr. Lipson concluded that Mr. Noiles had a mild CRPS in the area of the laceration, which resulted in a loss of range of motion in his right ankle.

[554] Dr. Lipson noted that Mr. Noiles had other problems related to his musculoskeletal system that would also impose present and future functional restrictions unrelated to the April 2012 incident. These included the findings on the November 29, 2015 lumbar spine CT scan, the findings of Dr. Lacerte, the issues of numbness and tingling in his feet back to 2002, injuries sustained in a June 30, 1995 car accident, tingling and numbness in his hands, an old fracture of his right tibia fibula and injuries arising from the July 2012 motor vehicle accident. Dr. Lipson described Mr. Noiles’ musculoskeletal problems as significant and affecting his back, neck, right arm and right arm tendonitis.

[555] Nevertheless, Dr. Lipson was clear in his first report that as a result of the April 2012 incident, Mr. Noiles sustained a soft tissue injury to his right shin with destruction of tissue and he subsequently developed a mild to moderate CRPS which resulted in pain, changes in colour and loss of ankle movement.

[556] Dr. Lipson was also of the opinion that as a result of the April 2012 incident, Mr. Noiles suffered a permanent impairment in his ankle movement and he would be unable to stand for long periods of time and could not walk long distances. Dr. Lipson explained that Mr. Noiles needed to relieve pressure when he had pain.

[557] As a result, Dr. Lipson was of the opinion that Mr. Noiles could not return to his original job although he could perform a modified job where he sat the majority of the time and was able to get up from a seated position as required.

[558] Dr. Lipson was of the opinion that Mr. Noiles could work full time if he could control what he was doing but only part time if he was doing a lot of walking. He considered Mr. Noiles capable of alternative employment which would include working at a desk or a supervisory and monitoring job.

[559] Dr. Lipson testified that, based on his physical examination, he concluded that for the first year and a half, maybe two years, Mr. Noiles’ major problems were CRPS; however, after that, there was very little problem with CRPS and there was a “gradual and progressive increase in the symptoms that he had that was related to the neural foraminal stenosis, the spondylosis and the spondylolisthesis that was causing him the majority of his pain with walking, and pain in his calf”.

[560] Dr. Lipson acknowledged that the EMG studies by Dr. Lacerte “did not support the presence of an acute right lumbosacral radiculopathy”. However, according to Dr. Lipson, “with neural foraminal stenosis you rarely ever have, in the initial stages, evidence of having problems with nerve conduction or EMG changes”.

[561] Dr. Lipson testified that in arriving at his opinion in January 2017 he was:

giving Mr. Noiles the benefit of the doubt. I was listening to what he was saying, and hearing the description of the amount of pain he was having, and the changes that were going on in his leg, and I had read the various reports of the various doctors. And at that time, I thought there was more of a problem related to the CRPS, and that that was playing a significant part. That was my initial impression.

[562] In indicating that he gave Mr. Noiles the benefit of the doubt, Dr. Lipson explained that he listened to Mr. Noiles’ story, heard his complaints and formed the impression that there was a significant impairment related to the CRPS and “because of the descriptions that he gave me, I weighed that more than what was going on with his back – that is, what the CT scan showed”.

[563] However, Dr. Lipson changed his opinion after watching the surveillance videos. Dr. Lipson indicated that the surveillance videos were relevant because what Mr. Noiles had said and the way he performed in Dr. Lipson’s office was not captured on surveillance. As he explained further:

In the office he was very careful with his walking. He was having pain doing simple gait things – and he was very cautious of the way he was maneuvering. But once I saw the videos, he did not have a limp, but you also get a limp – but the limp was only a couple of – a couple of areas – and he had a limp. But you can also have a limp from the neuralforaminal stenosis. It can give you calf problems and a limp. And I watched him, he was able to walk backwards, he was able to drive his truck, he was wearing heavy boots… and he literally had very little problem in his level of functioning. And that was in distinct contradiction to the way he presented to me, and his discussion of his problem.

[564] Dr. Lipson indicated that the specific activities he observed on the surveillance videos that impacted his opinion were the fact that Mr. Noiles walked up stairs, he did not seem to delay in taking any of his steps, he was wearing running shoes, he had a normal heel-toe gait, he was able to bend forward, he was carrying two very heavy bags while maintaining a normal gait, he was able to squat with his ankles flexed at 45 degrees, he is seen walking on irregular ground, which is very difficult with someone with CRPS of any significance, he put pressure on both feet and, as Dr. Lipson noted, generally “the squatting, the walking, the walking backward, the getting into the car, the driving of the car” were all done “very normally”.

[565] Dr. Lipson acknowledged that with CRPS you may have day-to-day variances, that is good days and bad days, but “there’s no tremendous change in function”.

[566] After reviewing the surveillance videos, Dr. Lipson concluded that Mr. Noiles did not have a “significant” CRPS and “his major problems were related to the neurolforaminal stenosis and the compression of the L-5 nerve root”.

[567] Dr. Lipson was of the opinion that if Mr. Noiles was having a lot of pain from CRPS “he should have a constant limp, he should be very protective of his right foot, he would be very careful getting up and down from cars and very careful with walking”.

[568] Dr. Lipson’s second opinion was that any difficulty Mr. Noiles had walking while under surveillance was related to his lower back and the nerve root entrapment of L-5 on the right. Mr. Noiles would have some occasional pain from his CRPS but “it would not be a limiting impairment” and his limiting impairment is “a combination of his back and, to a lesser degree, his neck”. Mr. Noiles’ CRPS was “relatively inactive” and was “not causing the severe pain that he was having”.

[569] Dr. Lipson’s second opinion was further revised after he reviewed journals, which Mr. Noiles maintained from March 3, 2012 to July 2016. These journals were produced during the course of the trial and it was agreed by counsel that Dr. Lipson could comment on them (as well as other notes and records produced after the trial began).

[570] As a result of the review of the journal entries, Dr. Lipton testified that Mr. Noiles’ CRPS was at a very low level after a year and a half and the pain that Mr. Noiles was describing in his journals “was not incompatible with a right L-5 radiculopathy, but more of the neuralforaminal stenosis of L-5”.

[571] Dr. Lipson would not exclude the CRPS diagnosis over the first year and a half but thereafter “there’s a better explanation” for Mr. Noiles’ symptoms and “there’s enough of an abnormality, in my interpretation, caused by the L-5 compression, that that could account for the majority of the problems that he’s confronted with”.

[572] As succinctly put by the defendants in para. 5 of their factum on causation:

... Mr. Noiles has been diagnosed with spondylolisthesis, a degenerative spinal condition, with severe nerve compression at L5-S1 which refers pain to his right lower extremity. This congenital condition, which is prevalent in former football players like Mr. Noiles, explains the majority of the symptoms that Mr. Noiles attributes to the Incident. In other words, there is a better explanation for the constellation of signs and symptoms Mr. Noiles experienced following the Incident. Accordingly, one of the four criteria required to clinically diagnose CRPS is absent.

[573] According to Dr. Lipson, the major thing he noted from the journals was Mr. Noiles’ “discourse in the alteration of the nature of the pain”. In particular, he noted entries relating to Mr. Noiles’ walking and the fact that Mr. Noiles’ difficulty in walking became progressively worse. Dr. Lipson testified that CRPS would impact his walking ability differently. Specifically, he testified that Mr. Noiles would have complained of pain in the front of his leg where the injury had been and that would have been his major complaint, as opposed to calf tightness and the inability to walk.

[574] Dr. Lipson referenced entries April 27, 2012 and a further note made May 30, 2012 where Mr. Noiles noted that it hurt to touch the skin and area that was injured. He considered that description of pain related to CRPS. However, starting around September 14, 2012, Mr. Noiles noted that he had pain when walking first thing in the morning and later, on October 15, 2012, he noted that he walked with a limp. Dr. Lipson testified that a neural foraminal stenosis leads to problems with walking.

[575] As Dr. Lipson described:

The pain of CRPS is usually a pain that’s present without doing anything, without irritating it, without any function being performed, and here he’s talking about “it’s hard to walk” so it’s a specific function that would be controlled by the nerve that was being impinged.

[576] Ultimately, as of October 26, 2018 Dr. Lipson’s opinion was that Mr. Noiles’ CRPS “peaked in the year and a half following the injury and is presently simmering”. He went on to say that Mr. Noiles’ “major limitation is now his lower back with pain radiating from his lower back and not the burnt out CRPS”.

[577] Dr. Lipson confirmed on cross-examination that, as set out in his last report dated October 2018, in his opinion, Mr. Noiles’ limp that he previously attributed to CRPS, was caused by something completely different and that causative problem can be surgically repaired.

[578] Dr. Lipson went on to say that epidural injections are given to decrease the amount of swelling into the neural foramina and, if that does not provide relief, than an MRI should be conducted and surgery should be discussed, recognizing that “not everybody wants surgery”. He testified that he would make a referral to an orthopaedic knee surgeon to get rid of the leg pain.

[579] Dr. Lipson also testified that because of his back issues Mr. Noiles would have had to discontinue his physical labour job with the City in May 2016 when he did stop working.

[580] Dr. Lipson acknowledged that it was “the onset of the right calf pain that triggered the doctor who was seeing him, Dr. Clarke, to order the CT scan because he felt there was something else going on… I think it was behoving to them when he started getting sciatic type pain to do the investigation at that time. Dr. Lipson testified that he would have done an investigation of Mr. Noiles’ “new” problem “probably a few months earlier, but not much earlier”.

[581] In considering Dr. Lipson’s opinion I find it significant that on cross-examination, Dr. Lipson confirmed that when he wrote his first report after assessing Mr. Noiles in January 2017, he was satisfied that Mr. Noiles satisfied the Budapest criteria and he agreed with Dr. Clarke’s diagnosis that Mr. Noiles had CRPS.

[582] Dr. Lipson also confirmed that on his physical examination in January 2017 there was no evidence of scoliosis, Mr. Noiles had a normal range of motion in his neck and in both shoulders, there was no complaint of tenderness on palpation, his examination of the upper extremities was normal and his neurological examination of the musculoskeletal system was normal except for the right lower extremity below the right knee level.

[583] Dr. Lipson further confirmed that when he conducted his physical examination in January 2017 “everything related to the back and the sciatic nerve did not show any abnormality”.

[584] I prefer the opinion of Dr. Clarke over Dr. Lipson’s opinion.

[585] Dr. Clarke has treated Mr. Noiles for many years. He has more expertise then Dr. Lipson in treating CRPS and in addition has conducted research in that disease and published articles whereas Dr. Lipson has not.

[586] In respectfully disagreeing with Dr. Lipson’s opinion, Dr. Clarke explained that it appeared to him that Dr. Lipson “may not have had a full volume of exposure and experience” in relation to CRPS “seeing as many patients as we see in our centre”.

[587] When questioned on cross examination as to whether he was making assumptions as to what comprised Dr. Lipson’s practice, Dr. Clarke indicated that based on the comments Dr. Lipson made, he thought that he probably did not see a large volume of patients with CRPS. As he put it, “respectfully, that would be the only reason why he would make some of the comments that he does”. When questioned further, Dr. Clarke indicated that “it would appear that his knowledge is not reflective of the current medical journals”.

[588] As I noted, Dr. Clarke has more expertise in relation to CRPS than Dr. Lipson and I accept his restrained and respectful comments on Dr. Lipson’s opinion.

[589] This conclusion is bolstered by the fact that Dr. Sequeira also disagreed with Dr. Lipson’s opinion.

[590] Dr. Sequeira agreed that Mr. Noiles has a developmental spinal abnormality (the spondylosis and spondylolisthesis) and he had changes in the imaging that are bilateral which in all likelihood may be causing some of Mr. Noiles’ symptoms but by no means are they the predominant symptom for Mr. Noiles. Dr. Sequeira emphasized that Mr. Noiles’ predominant problem is pain consistent with CRPS and he disagreed with Dr. Lipson in relation to the cause and predominant problem for Mr. Noiles.

[591] In completely disagreeing with Dr. Lipson’s opinion that Mr. Noiles predominant problem was radiculopathy and the changes in his lumbar spine and that the CRPS had resolved or “burnt out”, Dr. Sequeira testified:

There is no evidence to suggest that the Complex Regional Pain Syndrome had resolved. He was still receiving treatment in the pain clinic where he was getting injections consistently for the Complex Regional Pain Syndrome. He was also getting an injection for the radiculopathy and his presentation had not changed. So he had consistent symptoms and limitations that were consistent with Complex Regional Pain Syndrome from 2012 right to the present and they hadn’t changed. So any element of a radiculopathy was minor.

[592] In considering Dr. Lipson’s opinion, I also question Dr. Lipson’s dramatic change of opinion based on the video surveillance.

[593] Dr. Lipson did not accept that his ability to observe allodynia from a video could be challenged on the basis that an examination was required to assess that symptom. He testified that wearing standard clothes cause allodynia which causes some type of observable pain reaction when you are walking.

[594] However, as Dr. Lipson acknowledged on cross-examination, Mr. Noiles’ last worked in his accommodated position a year before the video was taken. He also acknowledged that most of the video was taken from a distance and there is no close-up video of his right lower leg.

[595] As Dr. Lipson further acknowledged, he could not indicate what Mr. Noiles’ symptoms would be when the videotape stopped rolling or what he was like in the evening after the video showed him walking about.

[596] Dr. Lipson would not know if Mr. Noiles did what he did during the surveillance with pain, or what he did after or how he slept that night.

[597] Further, the evidence of Mr. Noiles and Dr. Sequeira and others was not to the effect that Mr. Noiles could not do any of the functions seen on the video surveillance but rather he was to limit those activities. In other words, while under surveillance, Mr. Noiles is not performing tasks or functions that he claims to be unable to undertake.

[598] In addition, the fact that for example he is seen squatting in the video does not lead to the conclusion that he can squat in a repetitive sustained manner.

[599] There is no issue that Mr. Noiles can perform the movements seen on the surveillance video but those are movements in isolation and not repetitive, sustained or prolonged.

Conclusion

[600] I am satisfied that but for the April 24, 2012 incident, Mr. Noiles would not suffer from CRPS which is the predominant source of his pain; Mr. Noiles is unlikely to recover from CRPS; the pain from CRPS limits him to four hours of work per day; he requires the ability to take breaks and work in a variety of positions; he needs to work at a light or sedentary intensity level and he must limit prolonged standing or walking. These limitations affect his employability, his recreational activities and his activities of daily living.

[601] Mr. Noiles’ L5 radiculopathy is a small contributing factor to Mr. Noiles’ pain.

[602] These circumstances are distinct from those in Vintila v. Kirkwood where it was found that the plaintiff was “a crumbling skull plaintiff” and the evidence was that her “pre-existing conditions were severe, chronic, long term and disabling from work”.

[603] In addition, Mr. Noiles is not like the plaintiff in Tsang v. Borg where the evidence established that “something as trivial as a sneeze, or lifting the wrong way could render the degenerative condition symptomatic” with the result that there was a measurable risk that the pre-existing condition would have impacted the plaintiff in the future such that it must be taken into account in awarding damages.

[604] I note also that these circumstances are distinct from those in Gardiner where there was “an almost total absence of any proof tendered by the plaintiff concerning the “separate and distinct causes hinted at in the plaintiff’s written submissions”, the plaintiff was found to rely “upon speculative possibilities” and there was “ample support” for the expert view proffered by the defendant.

PART 20

The defendants’ assertion that Mr. Noiles has failed to mitigate his damages

[605] The defendants argued that Mr. Noiles made no effort to minimize his damages. The defendants helpfully set out the principles of law in relation to mitigation in their factum as follows, relying in particular on Janick v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146:

A plaintiff is not entitled to sit back and allow their losses to accumulate;

The onus is on the defendant to demonstrate that the plaintiff failed to mitigate their loss;

The defendant must establish: (1) the steps the plaintiff might have taken to avoid the loss; (2) that it would have been reasonable for the plaintiff to take such action; and (3) the extent to which the loss would have been reduced if the steps had been taken;

Where there is evidence that mitigation would have likely reduced the extent of the plaintiff’s loss, the court will reduce damages by the amount that the plaintiff would have saved, adjusted to account for the chance that the plaintiff’s mitigation efforts might not have succeeded.

[606] I note that as the defendants submitted, courts assess a plaintiff’s failure to mitigate and any consequent reduction of the applicable heads of damage after the causation analysis is complete. It is appropriate to consider the issue of mitigation separately in respect of each head of damage (see Mullens v. Toor, 2016 BCSC 1645 aff’d 2017 BCCA 384).

[607] The position of the defendants is that Mr. Noiles could have mitigated his losses by pursuing treatment and by returning to work or seeking alternative employment.

[608] With respect to their first assertion, the defendants argued that Mr. Noiles took a passive approach to rehabilitation, he failed to pursue recommended psychological counselling, he did not investigate or seek reasonable treatment for his spinal condition and he avoided reasonable interventional therapies. They contend that these failures exacerbated and prolonged his symptoms.

[609] They refer to Raycraft v. Gordon “N” Gordon Interiors Ltd., 1995 CarswellBC 2359, where the plaintiff’s damages were reduced by 50 percent because she failed to pursue recommended physiotherapy, counselling and participation in a pain clinic and Ksiazek v. Newport Leasing Ltd., 2006 CarswellOnt 6832 aff’d 2010 ONCA 341 where the plaintiff’s damages were reduced by 25 percent because of her “indolent” approach to rehabilitation.

[610] In Raycraft, there was a finding at para. 29 that the plaintiff’s complaints were “prolonged by her reluctance to follow treatment that may cause her discomfort and to that extent, she has not mitigated her loss”. She had not “pursued with any enthusiasm the active therapy recommended, such as exercising.”

[611] In Ksiazek, the plaintiff attended one of three treatments at a hand therapy clinic, she missed several physiotherapy appointments despite a recommendation she attend three times a week for several weeks and later ignored recommendations for additional physiotherapy and an exercise and rehabilitation program. She failed to attend one half of her psychotherapy sessions and ignored other recommendations for other rehabilitative programs and therapy. She failed to take medication as prescribed. She missed many appointments with specialists. She failed to pursue other treatments.

[612] The trial judge found at para. 121 that the plaintiff “failed to follow her health care provider’s recommendations for treatment” and “there is a strong likelihood that if she had followed these recommendations there would have been a substantial improvement in her condition”. The trial judge concluded at para. 126 “the plaintiff’s behaviour, with regard to her various physicians’ and experts’ recommendations throughout the material time, was marked by insouciance, if not outright avoidance” and “this behaviour significantly compromised her recovery”.

[613] The defendants criticized Mr. Noiles for taking vacation after the July 2012 accident rather than seeking treatment to prevent worsening of his condition, for missing physiotherapy appointments, not being diligent and focussed during therapy, for missing some appointments with Dr. Getty and for failing to pursue private counselling after it was initially recommended.

[614] However, I am satisfied that Mr. Noiles is far different from the plaintiffs in Raycraft and Ksiazek.

[615] While there were comments relating to Mr. Noiles’ focus and diligence in Mr. Lefebvre’s records, Mr. Harris spoke positively of Mr. Noiles commitment, effort and performance. There is evidence that Mr. Noiles improved his strength. In addition, Mr. Noiles did not decline any treatment. He pursued all treatment offered to him.

[616] The defendants were also critical of Mr. Noiles for failing to pursue psychological counselling and submitted that his lack of diligence in pursuing psychological treatment justifies a reduction in damages referencing MacLean v. Budget Rent-A-Car of Edmonton Ltd., 2006 BCSC 1344 where the court found the plaintiff unreasonably refused to follow his doctor’s recommendation for psychological treatment of depression and his damages were reduced by 20 percent because of his failure to mitigate.

[617] The defendants also noted that in Raycraft the plaintiff did not pursue counselling and psychological help which would have enabled her to return to her pre-accident state.

[618] The defendants referred to the fact that Mr. Noiles did not pursue counselling as recommended by Dr. Lefcoe, Dr. Fox, Dr. Wadhwa, Dr. Yemchuk, Dr. Clarke and Dr. Sequeira even though his employment benefits (and also Mrs. Noiles’ benefits) cover these treatments.

[619] I do not agree with the defendants that Mr. Noiles’ damages should be reduced based on this argument. The recommendations of Dr. Fox, Dr. Lefcoe, Dr. Wadhwa and Dr. Yemchuk were unrelated to the April 2012 incident and there is no evidence that heeding their recommendations would have reduced the injury caused by that incident.

[620] Further, Mr. Noiles did pursue the counselling recommended by Dr. Clarke and attended the program with Dr. Getty and then pursued counselling through Dr. MacDonald’s office. I cannot conclude that Mr. Noiles acted unreasonably. He did not refuse to follow the recommendations of Dr. Clarke, the physician treating his injury from the April 2012 incident, which was the conclusion relating to the plaintiff in MacLean.

[621] In addition, as previously noted, the plaintiffs’ counsel did not emphasize psychological injuries during argument.

[622] The defendants further criticized Mr. Noiles and sought a reduction in damages because he did not investigate his spinal condition and has not undergone corrective surgery; he requested the spinal cord stimulator be removed four days after it was inserted and they pointed to Dr. McDougall’s note that he was a picky patient; he received no sympathetic blocks in 2014; he did not have a ketamine infusion; and he should have agreed to being treated with one injection earlier than he did.

[623] Mr. Noiles reported his symptoms to Dr. Clarke. He accepted all treatments recommended by Dr. Clarke. Dr. Clarke does not believe a ketamine infusion would be benficial. Dr. Clarke first offered Mr. Noiles a single injection January 21, 2016 so that they could “minimize our injections”. He did not suggest that one injection would be a better treatment. He made that suggestion to reduce risks. Importantly, Mr. Noiles did not accept the offer of one injection at that time because he found his prior treatments had been helpful. As Dr. Clarke noted, Mr. Noiles was “very reluctant to move forward with this [a single injection] as he always gets such good results from his lumbar sympathetic plexus block”.

[624] Dr. MacDougall’s operative report noted that Mr. Noiles “asked to have a trial of stimulation to see if this would help”. The reference to the “picky patient” was as follows from Dr. MacDougall’s note:

He was very hard to get coverage in. I think, overall, he was probably a bit too picky and was hoping to have stimulation at just the pain area and no extra.

[625] When Mr. Noiles was assessed in Dr. MacDougall’s clinic on February 4, 2014 he reported “an increasing amount of pain from the stimulator”. Specifically, it was noted that”

The paresthesia that Rod feels from his external trial stimulator gives him tingling from his kidney level all the way down into his right leg, but is missing his pain area which is on his right anterior lower extremity. Rod has explained to me that the positionality of this sensation is extremely uncomfortable for him and in his opinion is making his pain worse. Rod has numbness along the right side of his foot and ankle and he cannot feel any tingling sensation in his pain area at all and it does not matter what position he is in.

[626] It was concluded that:

The test stimulation that we did in the Operating Room was a challenge to encompass his pain area with stimulation. We felt that we did have some success to encompass this pain area with widening his pulse width and high amplitudes. In our conversation with Rod this appears to be unacceptable. Rod finds it difficult to perform any of his normal daily routines. My concern over attempting a reprogramming session to reduce the pulse width and amplitude, would be that Rod would lose all paresthesia in his pain area.

[627] The evidence does not support the defendants’ contention that there were treatments that would likely have improved Mr. Noiles’ condition which he declined so that his failure to pursue such treatment and investigations demonstrates a failure of reasonable diligence.

[628] This case is distinct from Lutes v. Air Canada 2014 ONSC 3319 where the evidence established that a plaintiff did not pursue a procedure with a 50 percent chance of improving her condition with relatively minor risks (epidural blocks, epidural steroid injections and nerve blocks) and from Engel v. Kom-Ppelle Holdings Ltd., 1993 CanLII 152 (SCC), [1993] 2 WWR 373 SCC where the plaintiff refused to undergo medical testing.

[629] The remaining mitigation issue is the defendants’ argument that Mr. Noiles did not take reasonable steps to minimize his loss of income and instead took a passive approach to his return to work and made no effort to secure comparable alternative employment.

[630] The defendants argued that Mr. Noiles was required to mitigate his damages by seeking a line of work that could be pursued in spite of his injuries and if he is unqualified for such work he is required to pursue education or training to become qualified.

[631] Mr. Noiles wants to return to work at the City. Mr. Noiles applied for the lead hand position in January 2017 after the posting had closed December 23, 2016. He testified that his application was accepted.

[632] Mr. Bruff indicated that he did not know how long the lead hand position opening was posted. He did not agree that you would necessarily have to apply before the application process was closed and referenced a recent example where there had been a promotion to a person who had not seen the posting and had not applied within the time the posting was open.

[633] I also note that the fact that Mr. Noiles applied for the lead hand position in 2017 does not change Mr. Campbell’s opinion, as I will detail below, that he does not believe that Mr. Noiles could have physically done that job, an opinion that I accept.

[634] Mr. Noiles has applied for no other jobs and has not undertaken any job search. He is very concerned about leaving his employment with the City and losing his disability and other benefits.

[635] The defendants relied on the vocational assessment undertaken in July 2018 by Mr. Pett. Mr. Pett is a highly qualified vocational expert who has been instrumental in developing assessment screening tools.

[636] Mr. Pett felt that Mr. Campbell, an occupational therapist who assessed Mr. Noiles’ employability at the request of counsel for the plaintiffs, overlooked Mr. Noiles’ extensive work experience in and out of the City and his education and certificates from the City and College. He disagreed with Mr. Campbell’s conclusion that Mr. Noiles had limited education because he had a Grade 12 education, noting he had completed a certificate course in landscaping from Fanshawe, he had one year at Fanshawe College and he had received his Ministry of Environment, Water and Waste certifications at various levels and was on his way to getting full certification. He was also critical of Mr. Campbell’s failure to review Mr. Noiles’ computer skills.

[637] Mr. Pett also disagreed with Mr. Campbell’s conclusion that Mr. Noiles had limited work employment history. He considered that Mr. Noiles’ work experience was by no means limited. He had a solid work history and a history of progression to the point where he became an acting lead hand. He also disagreed that it was a negative factor to have had only one employer as having such demonstrated consistency and stick-to-it-ness.

[638] Mr. Pett asserted that Mr. Campbell did not do a complete and comprehensive employment history and thus his transferrable skills analysis was flawed, or as he put it, Mr. Campbell started with “one arm tied behind his back”.

[639] Mr. Pett noted that throughout his almost seven hour assessment, Mr. Noiles was fully cooperative, positive, communicative, and followed instructions well, demonstrated good memory skills and interacted and performed in a positive fashion. He noted that Mr. Noiles walked with a slight limp after their lunch break.

[640] Mr. Pett commented that there was no question of Mr. Noiles’ desire to return to work and he noted that Mr. Noiles wanted to be meaningfully active. He also noted that Mr. Noiles wanted to remain a City employee where he had a good pension and benefits and had no plan B.

[641] Mr. Pett noted that a timely return to work benefits both an employee and their family and it was not a positive aspect to Mr. Noiles’ case that he had had no vocational rehabilitation and had not returned to work since 2016, about 2 years before Mr. Pett assessed him.

[642] Mr. Pett also noted that Mr. Noiles had a strong affinity for the Union so working outside the Union was a mitigating factor.

[643] He further noted that Mr. Noiles asserted that he stood out as a fixer or trouble-shooter who was particularly adept in dealing with the public. He was very proud that he could speak with the City’s taxpayers and calm them down as required and he was the one who typically performed that task on a crew (as previously noted this was not something that Mr. Lee valued).

[644] Mr. Pett identified nine occupations (including acting supervisor, construction; acting lead hand; construction; water/sewer utility worker; concrete worker; forklift operator; heavy equipment operator; boom crane operator; dump truck driver and mechanic’s assistant) that were potentially available for Mr. Noiles based on his assessment of Mr. Noiles’ transferrable skills.

[645] Mr. Pett outlined and discussed each of those positions in detail.

[646] Mr. Pett also recommended further vocational training to provide Mr. Noiles with a competitive advantage.

[647] Mr. Pett administered a number of tests to assess Mr. Noiles’ strengths and abilities to profile his aptitudes. Mr. Campbell administered fewer tests. Mr. Pett testified that the focus of his inquiry was whether the injury had negatively impacted or diminished Mr. Noiles’ employment aptitudes which he defined as the capacity or potential of an individual to facilitate the learning of a task or job duties.

[648] Mr. Pett did not analyze Mr. Noiles’ impairment; rather, he indicated that he reviewed the reports he was provided with relative to that issue.

[649] Mr. Pett noted Mr. Noiles possessed what he described as soft skills in relation to communication abilities, supervisory skills and knowledge and awareness related to water/sewer licenses. He has mechanical and manual dexterity ability and can operate equipment. He is cognitively very capable at an average level. While Mr. Noiles has had some psychological involvement, according to Mr. Pett, there is no overriding psychological concern with respect to his return to work.

[650] Mr. Pett also commented that he has seen a vast improvement in participation of individuals with disabilities in the labour market and their participation rate is increasing. He asserted that with Mr. Noiles’ education and mild disability there would be no difference in his participation rate in the labour market. There is a 66 per cent participation rate of those with moderate disabilities compared to an 80 per cent participation of those without a disability. He emphasized that education is a significant factor impacting participation rates.

[651] Ultimately, Mr. Pett made the following employment recommendations:

1. Supervisor/Foreman, Construction
2. Supervisor/Foreman, Heavy Equipment Operators
3. Construction Estimator
4. Construction Progress/Site Clerk
5. Take-off Man, Construction
6. Service Advisor, Heavy Equipment, Truck or Auto
7. Utility Locator
8. Heavy Equipment Operator

[652] After his assessment, Mr. Pett was provided with further information with respect to Mr. Noiles, and in particular, in relation to the type of work he was performing while on modified duties at the City. Mr. Pett’s opinion was reinforced that Mr. Noiles was employable. In other words, the additional information gave him “heightened confidence” in his opinion that Mr. Noiles possessed employability potential.

[653] Mr. Pett testified that looking at his test results, the market and the research available, the outlook for Mr. Noiles could be positive and looking at Statistics Canada studies and his experience over 40 years, it is much better than 50 per cent that Mr. Noiles is employable.

[654] Mr. Pett opined that if Mr. Noiles undergoes training and preparatory work for a job search there is a pretty positive outlook for him to obtain gainful employment.

[655] In addition, based on one of Mr. Pett’s tests he was of the opinion that Mr. Noiles would have a 50/50 chance of graduating from college and he noted that 65 per cent was the actual graduation rate so there is only a 15 point differential in relation to Mr. Noiles. On the other hand, Mr. Pett testified that Mr. Noiles’ strength and preference is to learn on the job.

[656] Although I accept Mr. Pett is a well-qualified vocational assessor (and more qualified than Mr. Campbell in that Mr. Campbell only received his RVP designation after he authored his first report), it is significant that, as he acknowledged on cross-examination, Mr. Pett did not test for Mr. Noiles’ physical capabilities.

[657] In relation to Mr. Noiles’ physical capabilities Mr. Pett testified that he reviewed Dr. Clarke’s, Dr. Sequeira’s and Dr. Lipson’s opinions in a balanced way. However, he acknowledged that Mr. Noiles’ physical capacity to work is outside his area of expertise.

[658] He agreed that Mr. Noiles’ physical ability to work is a medical question and aptitudes alone are not sufficient if there are physical demands of a job. In other words, if Mr. Noiles applies for a job because he has the aptitudes for that job, if he cannot fulfil the physical requirements of the job, that job would not be available to him. Mr. Pett also acknowledged that having an aptitude for a job is not the equivalent of having the physical ability to do a job.

[659] That is precisely what occurred after the Minutes of Settlement were reached with the City. As previously set out, as a result of the assessment by DMA Rehability, Mr. Noiles was not offered the position as fire hydrant maintenance worker.

[660] In contrast with Mr. Pett, Mr. Campbell, who undertook his employability assessment on January 5, 2017, concluded that there were a number of barriers to Mr. Noiles’ return to work because of his physical limitations and ongoing pain symptoms, his limited education and work experience and while there were two positions he identified that were suitable to accommodate his physical limitations, Mr. Noiles might lack the supervisory experience to undertake those positions.

[661] On cross-examination Mr. Campbell acknowledged he identified only two potential alternative positions for Mr. Noiles and he explained that while there was a longer list in the database (for example, a subway train and light rail operator, a ferry operator and a boat operator) those positions were not realistic in the London area.

[662] Mr. Campbell acknowledged that Mr. Noiles has worked with concrete, operated a backhoe, driven snow-plow, driven small dump trucks, forklifts, has a DZ licence, can drive for 30 minutes at least, has training for safety equipment, has operated jack hammers, has various certifications and designations, has supervision and leadership skills as well as communication skills.

[663] However, in Mr. Campbell’s opinion, Mr. Noiles requires high levels of accommodation, he continues to be limited to sedentary or light employment and his alternative employment options are limited.

[664] Mr. Noiles’ supervisory experience is beneficial, but it is not easily transferrable and has been limited to sewer maintenance. Mr. Campbell also noted that traditionally a supervisory position is obtained by “working your way up from the bottom” and a supervisor needs to know the job they are supervising. This requirement was an impediment to Mr. Noiles obtaining a supervisory role in a different job function.

[665] Mr. Campbell did not consider Mr. Pett’s opinion in relation to re-education as an indication of a meaningful ability for Mr. Noiles to complete higher education and he noted also that it is typically more difficult to go back to school as you age.

[666] Like Mr. Pett, Mr. Campbell noted that Mr. Noiles presented as very motivated to get back to work and was a man who wanted to work. However Mr. Campbell indicated that Mr. Noiles’ strong desire alone may not be enough to accomplish his goal because of his ongoing limitations.

[667] As Mr. Campbell noted, Mr. Noiles has had a highly benevolent employer who was prepared to offer accommodations and modifications and Mr. Noiles only successfully worked four hours a day in that highly modified employment environment.

[668] In Mr. Campbell’s opinion, Mr. Noiles requires a benevolent employer who would provide accommodation with respect to the time of day he starts work, his hours of work and his duties at work. He believed that Mr. Noiles’ chances of finding that employment in the future are significantly limited. Mr. Campbell indicated that someone injured has the most opportunity, and is most likely, to obtain accommodations from his original employer.

[669] Mr. Campbell considered Mr. Noiles as having a severely limited outlook for employability. In Mr. Campbell’s opinion, Mr. Noiles will have significant difficulty in obtaining and maintaining employment of any kind for the foreseeable future.

[670] According to Mr. Campbell, Mr. Noiles’ symptoms will impact the consistent and reliable completion of duties in a new job which is key to employment.

[671] He also noted that most part-time jobs do not include benefits and usually when one starts a new job during a probationary period, a person is more vulnerable to termination and also does not receive benefits during that time.

[672] Overall, Mr. Campbell’s conclusion after reviewing employment and Union records and considering Mr. Pett’s reports, was that Mr. Noiles has demonstrated ability to complete light duty employment up to four hours a day in an accommodated environment.

[673] As Mr. Campbell opined, there are a number of barriers and restrictions to Mr. Noiles returning to his pre-injury employment or seeking alternate employment within the workforce, including:

• no manual labour (light strength demands – up to 10 kg);
• any vocational activity limited to maximum of 4-6 hours depending on pain tolerance;
• significant amount of allowance for breaks and ability to work in a variety of positions to find comfort/allowance to change positions and to stretch, as required;
• limit prolonged standing or walking;
• limit climbing, squatting and crawling;
• ongoing pain symptoms, primarily in the right lower extremity;
• limited education;
• limited work/employer history; and
• previous workplace stressors.

[674] I prefer Mr. Campbell’s approach over Mr. Pett’s.

[675] Firstly, Mr. Campbell commented that Mr. Pett relied heavily on aptitude in relation to his opinion, but aptitude is only a potential to complete work related tasks and does not consider a physical ability to do a job. On the other hand, Mr. Campbell focused on Mr. Noiles’ physical ability to do a job.

[676] Mr. Campbell also commented that while Mr. Noiles scored highly on his testing by Mr. Pett, undertaking a task and doing a job in the real world is quite different.

[677] I agree with Mr. Campbell’s assertion that there is a significant difference between having an aptitude or skill to do a job and being physically able to that job.

[678] Mr. Campbell agreed that Mr. Noiles has skills that are transferable, as Mr. Pett found, but in Mr. Campbell’s view, Mr. Noiles cannot meet the physical requirements of the alternative job positions.

[679] Secondly, Mr. Campbell undertook research looking at Statistics Canada information with respect to the impact of CRPS on employment and he opined that as a result of his research, in general people with CRPS have reduced return to work rates and increased difficulties with work. Mr. Pett looked at the unemployment rates of people with disabilities generally.

[680] Mr. Campbell also noted that according to the available statistics, someone with a disability will have significant difficulty in gaining employment, as opposed to a person without a disability.

[681] Thirdly, I agree with Mr. Campbell’s observation that the biggest impact of the symptoms of CRPS are that they are cyclical and random and are therefore difficult to accommodate.

[682] I disagree with the defendants’ assertion that Mr. Campbell was “incentivized to be an advocate” given that his main role at Rehab First is in the analytics and litigation support department. I also disagree that Mr. Noiles’ reporting to Mr. Campbell resulted in him having inaccurate information when he assessed Mr. Noiles. The fact that Mr. Campbell was told Mr. Noiles was a lead hand when in fact he was only an acting lead hand is not significant to Mr. Campbell’s opinion nor is the fact that Mr. Noiles reported a blood clot, as earlier described, and that he was seeing his doctors more often than he was. Similarly, I am satisfied that the fact Mr. Noiles did not report he had previously worked as a bouncer and a security guard is immaterial.

[683] I do not accept the defendants’ contention that Mr. Noiles should have made more effort to return to work. Mr. Harris found Great West Life’s return to work plan too ambitious and unrealistic. I am satisfied Mr. Noiles made reasonable efforts to return to work. He has made efforts to maintain his employment. He pursued the grievance process. He was prepared to accept the job the City offered to resolve the grievance. In fact he remains a City employee and, as will be discussed below, although not currently working, he seeks damages on the basis that he will work on a part time basis for four hours a day.

[684] It is significant that Mr. Pett as well as Mr. Campbell found Mr. Noiles to be motivated to be actively employed.

[685] I am satisfied that given his restrictions and limitations and his pension and benefits entitlement from the City, he was not required to resign from the City and seek employment elsewhere.

[686] Bearing in mind Mr. Noiles’ claim for damages, the defendants have not demonstrated that Mr. Noiles has failed to mitigate his losses.

PART 21

What is the fair and reasonable assessment for Mr. Noiles’ non-pecuniary damages?

[687] Mr. Noiles continues to have trouble sleeping. He wakes up because of pain and burning. Sheets or blankets touching his leg cause pain.

[688] He cannot predict when he is going to have pain but finds he experiences pain sporadically and without warning. His pain (burning and stabbing sensations in his shin which feel like hot water being poured over his leg or his leg being on fire) can last a few minutes or an hour.

[689] His leg swells, its colour changes on occasion and he has hair loss over his shin.

[690] He sometimes walks with a limp.

[691] His ability to do things around the house has improved and he mows the lawn, gardens and cleans the pool, vacuums and does the laundry, although these activities take him longer.

[692] He readily acknowledges he tries to do what he did before the incident.

[693] As previously outlined, his ongoing pain symptoms cannot be alleviated.

[694] His condition has permanently impacted his ability to work and his functional limitations affect his avocational activities.

[695] I assess Mr. Noiles’ general damages related to CRPS at $125,000.

PART 22

Special Damages

[696] Mr. Noiles was unable to drive for a time and when he obtains his spinal injections he is unable to drive. As a result, Mrs. Noiles lost time at work. She claimed recovery of those estimated hours at her hourly rate but acknowledged on cross-examination that she had not produced any documents that would substantiate those hours that she was off of work when she needed to drive Mr. Noiles to appointments.

[697] She also made a claim for approximately $1500 to replace the snow blower involved in the incident.

[698] In relation to this head of damages, I am satisfied the plaintiffs have offered sufficient proof to justify an award of the amount claimed during argument - $2,835.39 ($1,467.87 for a replacement snow thrower and $1,367.52 for income lost by Mrs. Noiles as a result of the April 2012 incident).

PART 23

Damages for past loss of income - what past loss of income is attributable to the April 2012 incident – would Mr. Noiles have obtained the lead hand position in the City’s sewer department in 2017 had he not been injured in the April 2012 incident?

[699] I am satisfied that but for the April 2012 incident Mr. Noiles would have worked full time at the City until retirement. I do not accept Dr. Lipson’s contention that Mr. Noiles could not have worked after May 2016 because of the symptoms from his radiculopathy.

[700] The remaining question is whether his damages for past wage loss should be assessed on the basis that he would have obtained the lead hand position in January 2017 but for the April 2012 incident.

[701] As all the City employees who testified made clear, “seniority is everything” in terms of successfully obtaining a promotion.

[702] The collective agreement provides in clause 8.1 that whenever a new job is established or there is a permanent vacancy in any of the jobs covered by the collective agreement, within 30 days a notice of the vacancy is to be posted on all bulletin boards within the department for a period of 8 working days.

[703] The agreement further provides that any employee in these departments who has “acquired seniority” is entitled to make application for the posted vacancy.

[704] The clause also states in sub-paragraph b that:

The most senior applicant who possesses the required knowledge, education, ability, skill and qualification shall be given special consideration.

In filling vacancies and new positions, the corporation shall consider the following factors:

1. seniority; and

2. qualifications and ability to perform the work.

When two or more candidates for the vacancy are relatively equal with regard to the facts in 2. seniority shall govern.

[705] Mr. Noiles did not obtain the lead hand position in 2017 as previously noted. Mr. Denison was offered that position.

[706] Mr. Noiles fairly testified that at least up to 2012 (and he didn’t think Mr. Denison obtained further qualifications thereafter), his qualifications and Mr. Denison’s qualifications were equal. However, he had substantially more experience in the lead hand role and had more seniority.

[707] There are three lead hand positions in the sewer department and Mr. Watson stated emphatically that based on seniority, Mr. Noiles would obtain that position over Mr. Denison if a vacancy had become available when Mr. Noiles was able to work in the sewer department. As previously noted, Mr. Noiles’ seniority date is May 3, 1999 while Mr. Denison’s is 2001.

[708] Further, Mr. Watson testified that he knew Mr. Denison as well as he knew Mr. Noiles. While Mr. Watson described Mr. Noiles as someone who could be depended on every day, according to Mr. Watson that was not the case with Mr. Denison.

[709] Similarly, Mr. Bruff was adamant that a qualified senior employee will obtain a promotion over an employee with less seniority. As he noted, this is an important provision of the collective agreement.

[710] I am satisfied that Mr. Noiles would have obtained the lead hand position in 2017 but for the injuries caused in the April 2012 incident.

[711] In addition, I accept the evidence of Mr. and Mrs. Noiles that Mr. Noiles would chose to be reimbursed for overtime rather than receive time off in lieu in 2012 and onward given the age of their children, Mrs. Noiles’ reduced earnings while she was in school and their lifestyle and interest in travel.

[712] I accept the assumptions utilized by Ms. Dalton, an expert accountant, in her preparation of Schedule 1C of her report dated January 4, 2019 as delineated on page 5 of that report as follows:

Projected annual income for the years 2017 and 2018, inclusive was calculated based on the following:

• hourly wage rates are based on the collective agreement;
• projected wages as a leading sewer and watermain worker are calculated based on the base wage rate and 2127.5 hours;
• other income is based on 2011, adjusted for the difference in the wage rate;
• employment income, prior to the value of overtime is calculated; and
• the value of overtime is based on 2011, adjusted for the wage rate.

2011 annual income was calculated based on the following:

• hourly wage rates for a sewer and utility worker are based on Schedule 2 of her report;
• hourly wage rates for an Acting Lead are based on the collective agreement;
• hours paid are based the Time Detail report for 2011;
• wages earned as a sewer and utility worker or as an Acting Lead are calculated based on the base wage rate and the hours paid;
• reported income includes meal allowance, taxable benefits, etc. estimated to be $1,019; and
• 2011 value of time off in lieu of overtime of $3,522 per Schedule 1B is added to calculate 2011 projected employment income if no time off.

Projected annual income for the years 2012 to 2016, inclusive was calculated based on the following:

• hourly wage rates are based on collective agreements or Mr. Noiles; pay statements;
• hours paid as a sewer and utility worker or Acting Lead are based on 2011;
• projected wages as a sewer and utility worker or as an Acting Lead are calculated based on the base wage rate and the hours paid;
• other income is based on 2011, adjusted for wage rate increases;
• employment income, prior to the value of overtime is calculated; and
• the value of overtime is based on 2011, adjusted for wage rate increases.

[713] As a result, I assess Mr. Noiles’ past wage loss at $375,600.

PART 24

Damages for future loss of income

[714] During closing submissions, the plaintiffs sought an award for future loss of income based on the following:

• that Mr. Noiles will earn $31,500 per annum
• that he will retire at age 63
• that he will not earn any post retirement income
• that a 15 percent negative contingency should be applied

[715] As the defendants pointed out, the plaintiffs must show a real and substantial possibility of future loss, supported by expert or other cogent evidence and damages within this category should not be awarded on the basis of conjecture or speculation (see Schrump v. Koot at para. 9).

[716] The defendants’ position was that if I found, as I have, that Mr. Noiles’ ability to engage in employment is impacted by the April 2012 incident, I should order retraining as opposed to future income loss.

[717] Although I find below that Mr. Noiles should be awarded the cost of vocational rehabilitation services as a future care cost, I am satisfied that the plaintiffs have established a real and substantial possibility of future income loss and will award Mr. Noiles damages to compensate for that loss. If Mr. Noiles advanced a claim on the basis that he would earn no income in the future, I would have found such a proposition unreasonable and contrary to his duty to mitigate his damages. The fact that he acknowledged his duty to find employment consistent with his doctors’ recommendations fulfills his obligation of mitigation. Mr. Noiles’ claim is distinct form the claims made by the plaintiffs in the cases relied on by the defendants ([Sinclair v. Wong 2005 ABQB 369](https://www.canlii.org/en/ab/abqb/doc/2005/2005ab