Court File and Parties

COURT FILE NO.: 14-60191 DATE: January 10, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Drew Casterton Plaintiff – and – Gordon MacIsaac Defendant

COUNSEL: Gustavo Camelino and Jacob Wright for the Plaintiff William Sammon and Amanda Estabrooks for the Respondent

HEARD: June 10-14, 17-21 and August 27-30, 2019

JUSTICE SALLY GOMERY

Reasons for Judgment

[1] On March 15, 2012, during the last minute of a recreational hockey game, Drew Casterton collided with Gordon MacIsaac, a player on the other team. Casterton was knocked off his feet, hit his head on the ice, and lost consciousness briefly. He suffered a concussion, two broken teeth, and cuts on his face and inside his mouth. MacIsaac was not injured.

[2] Casterton says that he was blindsided by MacIsaac, and that the injuries he suffered in the collision have had a dramatic, long-term impact on his personal life, his career, and his relationships. He claims general damages for pain and suffering, past and future income loss, and punitive damages.

[3] MacIsaac contends that he and Casterton accidentally collided after Casterton made a sharp, unexpected left turn. He denies responsibility for Casterton’s injuries. Alternatively, he says that Casterton is partially to blame for the collision. MacIsaac also argues that the damages claimed by Casterton are excessive.

[4] To decide this lawsuit, I must answer three questions:

(1) Is MacIsaac liable for injuries suffered by Casterton during the March 2012 game? (2) Was Casterton contributorily negligent? (3) What are Casterton’s damages as a result of the injury?

[5] For the reasons that follow, Casterton’s action is granted and MacIsaac is ordered to pay him $702,551 in damages to June 20, 2019.

(1) Is MacIsaac liable for injuries suffered by Casterton during the March 2012 game?

[6] Not surprisingly, this is not the first lawsuit in Canada for injuries sustained during a hockey game. The evolution of the caselaw on this issue shows that courts have moved from requiring evidence of intent to harm to applying the general rules of negligence, adapting them to the context of a sport where some risk of injury is inevitable.

[7] In Agar v. Canning (1965), , 54 W.W.R. 302, at p. 304, Bastin J. of the Manitoba Court of Queen’s Bench set out the general principle that a hockey player assumes a risk of physical injury:

Hockey necessarily involves violent body contact and blows from the puck and hockey sticks. A person who engages in this sport must be assumed to accept the risk of accidental harm and to waive any claim he would have apart from the game for trespass to his person in return for enjoying a corresponding immunity with respect to other players. … The conduct of a player in the heat of the game is instinctive and unpremeditated and should not be judged by standards suited to polite social intercourse.

[8] Bastin J. nonetheless held that a player has a right of recovery against another player who deliberately sets out to injure them:

But a little reflection will establish that some limit must be placed on a player’s immunity from liability. … [I]njuries inflicted in circumstances which show a definite resolve to cause serious injury to another, even when there is provocation and in the heat of the game, should not fall within the scope of implied consent.

[9] In Sexton v. Sutherland, Ont. Ct. of Justice (Gen. Div.), Court file no. 10505/86, decision released April 19, 1991, Farley J. conceded that an injured player did not need to prove an intention to injure. He held at p. 6 that a hockey player likewise does not explicitly consent to the risk of injuries “inflicted in circumstances which show the application of a very great force while demonstrating a reckless lack of regard as to whether serious injury was caused”.

[10] A few years later, in Unruh (Guardian ad litem of) v. Webber (1994), , 88 B.C.L.R. (2d) 353 (C.A.), at para. 31, the B.C. Court of Appeal adopted a different approach, setting out a test for liability for injury during hockey play based on classic standard of care principles:

The standard of care test is – what would a reasonable competitor, in his place, do or not do. The words “in his place” imply the need to consider the speed, the amount of body contact and the stresses in the sport, as well as the risks the players might reasonably be expected to take during the game, acting within the spirit of the game and according to the standards of fair play. A breach of the rules may be one element in that issue but not necessarily definitive of the issue.

[11] On this analysis, a person injured during a hockey game does not need to prove either an intent to injure or reckless disregard. The injured player must simply show that the injury was caused by conduct that fell outside of what a reasonable competitor would expect in the circumstances.

[12] This issue was further explored by Justice Laskin in Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241. In this jury case, the majority on the appeal panel declined to rule on whether, in the circumstances, the requisite standard of care during a recreational bike race was negligence or recklessness. In dissent, Laskin J.A. expressed the view at para. 106 that, in hockey,

players have to assume some risk of injury from bodily contact, even contact intentionally inflicted or in breach of the rules of the game. A body check – even one that calls for a penalty – or contact fighting for a rebound in which the opposing player is called for a foul is part of the ordinary risk of each game. Conduct in these contact sports becomes unacceptable only when it is malicious, out of the ordinary or beyond the bounds of fair play. [Emphasis added.]

[13] Most recently, in Levita v Crew, 2015 ONSC 5316, 25 C.C.L.T. (4th) 268, Firestone J. comprehensively reviewed “hockey caselaw”, including Kempf, and concluded at para. 90 that the standard of negligence applies.

[14] Upon review, I agree with Firestone J.’s reading of Kempf and Unruh, and adopt his reasoning. In agreeing to play hockey, a player implicitly consents to a risk of injury inherent to a fast-paced and sometimes physically violent sport. This includes the risk that a player may suffer injury, even serious injury, from bodily contact with another player during normal game play. But a player’s implicit consent is not unlimited. A player does not accept the risk of injury from conduct that is malicious, out of the ordinary, or beyond the bounds of fair play.

[15] If a court finds that an injury was caused by conduct that was intentionally malicious, the analysis can end there: Leonard v. Dunn, , at paras. 19 and 23; Levita, at para. 92.

[16] In deciding whether the conduct was out of the ordinary or beyond the bounds of fair play, relevant considerations include the type of league in which the game was played, the level of play in the league, the applicable rules, and the nature of the game.

[17] My analysis in this case must therefore begin with a review of the evidence about what occurred during the March 15, 2012 game. If I conclude, on the evidence, that MacIsaac deliberately blindsided Casterton, or that his conduct was either out of the ordinary or outside the bounds of fair play, then I must reject the defence that Casterton implicitly consented to the risk of his injury.

[18] I will first describe the parts of the play that are not in dispute, then consider what happened during the critical moments just before and after the collision between Casterton and MacIsaac.

Relevant facts that are not in dispute

[19] In 2012, the Pirates and the Tiger Cats were teams in the Alexander Keith division of the Ontario Senior Men’s Hockey League (“the League”). Many of the players were former Carleton University students in their late twenties. Most of them, including both Casterton and MacIsaac, had been playing hockey since childhood, in either house leagues or competitive leagues. The League was, as the division name suggests, a “beer league”, but the players were by and large talented, experienced hockey players.

[20] The March 15, 2012 game was either the last or second to last game of the season. Casterton was a right wing forward for the Pirates. MacIsaac was playing defence for the Tiger Cats. They did not know each other prior to the game.

[21] Games in the League consist of two periods of 22 minutes apiece. Casterton’s team, the Pirates, was ahead at the end of the first period, but the Tiger Cats closed the gap somewhat during the second period. With a few minutes left to play, the Pirates were leading by a score of 5 to 3.

[22] To simplify the explanation of what happened in the last few minutes of play, I attach as an appendix to this decision a diagram of a hockey rink. The Pirates’ net is at the top of the diagram. The two teams’ benches, the time-keeper’s booth, and the penalty boxes are on the left side of the ice. In these reasons, when I refer to the left or right side or top of the rink, I am referring to the layout as it appears on the diagram.

[23] The collision that gave rise to this lawsuit began when a Tiger Cats player rushed the puck down the ice towards the Pirates’ net. The Tiger Cats player, Tiran Masubara, had the puck and was skating towards the Pirates’ net along the right side of the rink. One of the Pirates’ defencemen, Jonathan Clark, was skating either backwards or sideways in front of Masubara, attempting to block his path.

[24] After crossing the Pirates’ blue line, Clark fell, sliding feet first towards the boards on the right-hand side of the rink. Masubara fell over Clark, and the puck came loose. No penalties were assessed. As his teammate, Matt Hind, put it, Clark simply “lost his edge and fell sideways”.

[25] Casterton, who had been skating behind Masubara, took control of the puck. He carried it along the boards to the top-right corner of the rink, then followed the boards behind the Pirates’ net. [1] He and MacIsaac collided as he emerged just to the left of, and slightly behind, the Pirates’ net.

[26] The details of what happened in the milliseconds between Casterton rounding the top-right corner of the rink and the point of collision were the subject of conflicting evidence at trial. I will return to this evidence shortly.

[27] Casterton was knocked off his feet by the impact of MacIsaac’s body. He lay on the ice on his back with his head towards the boards. He lost consciousness briefly. Casterton’s face was covered with blood flowing from cuts on his left cheek, above his lip, on his chin, and inside his mouth. Half of his two top teeth were broken off. MacIsaac was unhurt.

[28] The referee who was in the Pirates’ zone, Jonathan Desjardins, skated over to administer first aid to Casterton. He told MacIsaac to leave the ice. As MacIsaac skated past the Pirates’ bench on his way to the Tiger Cats’ dressing room, some of Casterton’s teammates yelled at him, and he responded. What he said was again the subject of conflicting evidence.

[29] There were 47 seconds left on the clock at the time of the collision. After attending to Casterton, Desjardins called the game. He assessed MacIsaac a ten-minute penalty for gross misconduct. A few minutes later, he gave him a further seven-minute penalty for intent to injure. Desjardins assessed the second penalty after he was told by three Pirates players that, when MacIsaac skated in front of their bench on his way out of the game, he admitted that the collision was in retaliation for the tripping incident involving Masubara and Clark.

[30] Casterton was able to get up and go to the Pirates’ dressing room a few minutes after the collision. Paramedics arrived and, after assessing him, transported him to hospital by ambulance.

[31] Lee Casterton is the plaintiff’s brother. He also played for the Pirates. Although he did not see the collision, he believed that it was a deliberate hit and phoned the police. The police came to the rink and MacIsaac was later charged with assault. He was tried on this charge in 2013 and again in 2017, but his conviction was overturned on appeal and the charge was ultimately stayed. [2] The stay of charges means that I cannot rely on any of the findings by the judges who heard the criminal trials, although I can consider whether the testimony by witnesses during this trial is consistent with any evidence they gave in earlier proceedings.

Relevant facts in dispute

[32] Twelve witnesses testified about their recollection of the March 15, 2012 game: Casterton and five other players on the Pirates team (Lee Casterton, Matt Hind, David Winton, Jonathan Clark, and Nick Inshaw); MacIsaac and four of the other players on the Tiger Cats team (Michel Beaupré, Ken Shouldice, Ryan Robinson, and Andrew Cameron); and the referee, Jonathan Desjardins.

[33] I will begin by making some preliminary comments and findings on the evidence. Then, rather than summarize each witnesses’ testimony about the collision, I will weigh it in the context of each of the following issues:

• where was the puck and who had possession of it when the collision occurred?
• how fast were MacIsaac and Casterton skating prior to the collision?
• what direction were each of them coming from?
• did Casterton turn sharply to the left just before the collision?
• how were Casterton and MacIsaac each positioned when they collided?
• what did MacIsaac say after the collision?

Preliminary comments on the evidence

[34] Ideally, lawsuits should be tried as soon as reasonably possible. A prompt hearing is particularly important in cases involving conflicting eyewitness reports. Unfortunately, the trial of this action took place more than seven years after the March 2012 game. This delay, as well as the inherent limitations of eyewitness evidence, make it more challenging than usual to determine what happened.

[35] First, the lapse of time has inevitably affected witnesses’ ability to recall what happened, as well as the reliability of their evidence. Some players testified at MacIsaac’s criminal trials in 2013 or 2017, but this does not guarantee that they retained a clear, independent memory of the critical moments of the game. At best, every witness testified using a combination of actual memory and reconstructed memory.

[36] Second, any given witness’ ability to see what occurred depends on where they were and what they were doing when the collision occurred, and the extent to which they were paying attention to the play. A person positioned right next to the collision, such as David Winton, had a better opportunity to see what happened than a player sitting on the bench. Some players were also not focussed on Casterton and MacIsaac at the precise moment the collision occurred.

[37] A final complicating factor is the loyalty that some witnesses clearly felt towards Casterton as a brother, friend, or teammate; or more generally to the version of events underpinning the assault charge. This biased their testimony in favour of a narrative that placed responsibility for the collision on MacIsaac. I cannot accept evidence that reconstructs events based solely or primarily on an assumption that it was his fault or that he deliberately tried to hurt Casterton.

[38] As a result of these issues, none of the witnesses to the collision had a perfectly reliable recollection of the critical moments of play. They were not lying but they were sometimes simply wrong. I have indicated when I have rejected aspects of each witness’ evidence, and the reasons for doing so.

[39] Furthermore, although I do not think that anyone intentionally attempted to mislead the court, there were five witnesses whose evidence about the collision and MacIsaac’s actions and words immediately after the collision was, in my view, wholly unreliable. These witnesses are Nick Inshaw, Michel Beaupré, Ryan Robinson, Andrew Cameron, and Lee Casterton. Given my conclusion on this point, I give their evidence on these issues no weight.

i) Nick Inshaw

[40] Inshaw was in the Pirates’ penalty box when the collision occurred. He did not testify at the first criminal trial. He gave evidence about what he recalled for the first time in 2017 – five years after the March 2012 game.

[41] The penalty box was located on the left side of rink, near centre ice. A standard hockey rink is about 61 metres, or 200 feet, long. [3] Inshaw was therefore a substantial distance from the site of the collision. He testified that Casterton was battling another player for the puck to the left of the Pirates’ net when the collision occurred. This evidence was contradicted by every other witness. I find that Casterton was not attempting to get the puck away from another player at the time of the collision. I therefore cannot accept Inshaw’s evidence about how the collision occurred.

[42] Inshaw also testified that, as MacIsaac skated past the Pirates’ bench after the collision, he said that the hit was in retaliation “for taking my feet out over there” [emphasis added]. This would only make sense if it was MacIsaac, rather than Masubara, who tripped over Clark at the Pirates’ blue line. Inshaw’s recollection of MacIsaac’s words is therefore clearly wrong.

[43] Inshaw also testified that MacIsaac made this statement while standing across from him, at centre ice, and that he looked “pretty cocky”. At MacIsaac’s 2017 criminal trial, however, Inshaw testified that MacIsaac was skating towards his own bench when he spoke, so his back was to Inshaw.

[44] Based on the clear errors and inconsistencies in Inshaw’s evidence, I conclude that his testimony is unreliable, and give it no weight.

ii) Michel Beaupré

[45] Beaupré testified for the first time at this trial in 2019 – more than seven years after the March 2012 game. Central elements of his testimony were implausible and inconsistent with other credible evidence.

[46] Beaupré testified that, as Casterton skated behind the net, he and other Pirates on the bench yelled: “Keep your head up!” No one else mentioned these alleged comments, which, if true, would be highly relevant to whether Casterton should have anticipated the collision. Beaupré also testified that both MacIsaac and Casterton fell to the ice, and that the paramedics took Casterton off the ice after the collision. This account was contradicted by the evidence of every other witness.

[47] Beaupré’s testimony about his ability to see the collision was implausible. He testified during his examination-in-chief about the positioning of MacIsaac’s body and arms at the point of impact, and said he had a clear line of vision. He admitted on cross-examination, however, that he was on the bench, MacIsaac’s back was to him, and the referee was between the bench and MacIsaac. Beaupré ultimately acknowledged that he could not say what part of MacIsaac’s body hit Casterton.

[48] Based on the implausibility of his evidence about his warning to Casterton and his admission about how his view was obstructed, I conclude that Beaupré testified based on a reconstruction of events, as opposed to any actual recollection of the gameplay. I therefore reject his evidence about the collision. I do accept his evidence about Lee Casterton’s emotional state after the collision, and on what he observed about Casterton’s behaviour in the months and years after the accident.

iii) Ryan Robinson

[49] Ryan Robinson was a Tiger Cats defenceman. He was standing in the neutral zone, just outside the Pirates’ blue line, when the collision occurred. Like Inshaw, he did not testify at the first criminal trial, and gave evidence about his recollection of the 2012 game for the first time in 2017.

[50] I reject Robinson’s evidence because his recollection of Casterton’s movements in the seconds before the hit is inconsistent with the evidence of every other witness who testified except for Inshaw, whose evidence I have also rejected. Robinson testified that Casterton and MacIsaac were both skating in the same direction, in front of the Pirates’ net, when the collision occurred. Casterton himself said that he skated behind the net, while MacIsaac came in from the front. Every other witness said that Casterton skated behind the net. I accept this evidence and conclude that Robinson’s testimony is unreliable.

iv) Andrew Cameron

[51] Andrew Cameron testified at the 2013 criminal trial. He was on the Tiger Cats’ bench when the collision occurred.

[52] In his examination-in-chief, Cameron testified that MacIsaac approached the point of collision on a diagonal trajectory, staring from the Pirates’ blue line on the right side of the rink to the area just left of the Pirates’ net. On cross-examination, however, he said that he could not recall MacIsaac’s trajectory before the collision. Cameron furthermore acknowledged that he did not see the collision. He had no recollection of where other players were when it occurred, or whether their position obstructed his view.

[53] In my view, Cameron does not have any actual recollection of the events in question. He based his evidence on his review of his testimony in 2013 and inferences about what likely happened. In these circumstances, I cannot place any weight on his evidence.

v) Lee Casterton

[54] Lee Casterton had just finished a shift and was on the Pirates’ bench when the collision occurred. [4] He testified at McIsaac’s 2013 criminal trial that he was “95% sure” that MacIsaac was the player tripped by Clark at the blue line, and that he saw MacIsaac get up after being tripped and start skating towards Casterton. At the trial in this action, he admitted that this was a mistake: he did not see MacIsaac get up after being tripped because it was Masubara who was tripped. This acknowledged reconstruction of events seriously undermined Lee’s credibility as an eyewitness to the collision.

[55] Lee also testified that, as MacIsaac skated past the Pirates’ bench after the collision, he admitted that his collision with Casterton was in retaliation for the trip that had just occurred, and that he was smirking as he said this. MacIsaac’s statement makes sense if he was involved in the tripping incident at the blue line, which we now know did not involve him at all. The alleged statement could also be consistent with MacIsaac retaliating for an incident involving a teammate. However, Lee did not recall that MacIsaac was wearing a full facial cage when he made the statement. If in fact he was able to see MacIsaac’s facial expression, it is impossible to accept he would not also remember this detail. This again undermines Lee’s credibility.

[56] Lee clearly exaggerated the extent of his brother’s injuries in the immediate aftermath of the collision. He testified that there was blood coming out of his mouth, his ears, and his eyes. There is no evidence that Casterton suffered any injury that would have caused him to bleed from his ears or his eyes.

[57] I accept Beaupré’s evidence that Lee was “incredibly angry” when he saw his brother lying unconscious on the ice, and that he had to be restrained from physically attacking MacIsaac after his teammate Tyler Scott identified him as the player who had hit Casterton. Lee admitted that he was angry but said that he stopped feeling this way when MacIsaac said he had hit Casterton in retaliation for the earlier trip, because he then focused on calling the police. I do not find this plausible. It does not make sense that Lee would become less angry after hearing MacIsaac’s alleged confession to what was, to his understanding, a criminal assault of his brother.

[58] I infer that Lee was convinced, from the time he learned that MacIsaac had collided with Casterton, that this was a deliberate act of retaliation for an earlier tripping incident involving MacIsaac. Based on this belief, he reconstructed his recollection of events such that he became convinced that it was MacIsaac who had been tripped by Clark, and that he was gloating about retaliating for this event after deliberately hitting Casterton.

[59] As a result, I cannot place any weight on Lee’s evidence about the collision or MacIsaac’s words or actions immediately after it happened.

[60] In reaching this determination, I should emphasize that I do not accept the defence’s suggestion that Lee concocted a story or even deliberately tailored an account. I likewise reject the defence’s theory that Lee made a criminal complaint in order to support a potential claim by Casterton for damages against MacIsaac. Defence counsel made much of the fact that pictures were taken of the plaintiff’s injuries in the hours after they occurred, that the plaintiff and his brother contacted a lawyer from the hospital, and that Casterton mentioned a potential legal action to his doctors in the months after the game.

[61] I accept Casterton’s explanation about seeking advice about pursuing the criminal complaint. Even if I did not, however, there is nothing sinister or improper about a person contacting a lawyer after being injured as a result of another person’s actions.

What do I find based on evidence I accept?

[62] Based on evidence that I accept, I find as follows:

• Just prior to the collision, Casterton was skating along the boards behind the Pirates’ net, from the top-right corner of the rink towards the left side of the rink.

[63] All witnesses but one testified that, just prior to the collision, Casterton passed behind the Pirates’ net. The only person who testified otherwise was Robinson, whose evidence I have rejected.

• Casterton had passed the puck to his teammate, Matthew Hind, as he skated behind the Pirates’ net, and the puck was in Hind’s possession in the left upper corner when the collision occurred.

[64] Casterton testified that, when he reached the right corner behind the Pirates’ net, he passed the puck to the left corner, where it was retrieved by his teammate, Matt Hind. Hind likewise said that he picked up the puck after Casterton shot it along the boards to the left corner. The Pirates’ goalie, David Winton, also recalled that the puck was somewhere off to his right (in other words, in the top-left corner), when the collision occurred. He was sure that Casterton did not have possession of it.

[65] The referee, Desjardins, who was skating past the Pirates bench towards the top-left corner, testified that the puck was travelling from right to left behind the net when the collision occurred. He did not recall whether the puck had stopped or was still moving but was adamant that no one had possession of it. His evidence supports Casterton’s evidence that he passed the puck before the collision occurred. His belief that Hind did not have it is at odds with Hind’s evidence, which I accept. What really matters, however, is that Casterton no longer had possession of the puck when MacIsaac collided into him.

[66] MacIsaac testified that Casterton continued to possess the puck as he skated behind the net. He conceded that his view of Casterton was obstructed by the goalie and the net but insisted that he saw him skating behind the goal with the puck.

[67] MacIsaac’s evidence on this point was supported by the evidence-in-chief of two of his teammates, Ken Shouldice and Jason Shorey. On cross-examination, however, Shouldice admitted that his view was obstructed by the goalie and the net. He conceded that, if Casterton and Hind said that Hind had the puck, that was probably correct. This leaves Shorey’s testimony as the only evidence supporting MacIsaac’s recollection of the location of the puck when he collided with Casterton.

[68] Just prior to the collision, Shorey had skated from the Pirates’ blue line to the top-left faceoff circle. He testified that he was looking to the right because that was where the puck was. Shorey testified that the collision occurred “just before” Casterton shot the puck into the corner. The difficulty with Shorey’s evidence on this point is that he did not explain how he knew that Casterton was just about to pass the puck if he did not in fact do so. No one else said that Casterton was in the midst of making a pass when MacIsaac collided with him. I accordingly find that Shorey is mistaken in his recollection of where the puck was when the collision occurred.

[69] I conclude that Casterton shot the puck towards the top-left corner of the ice as he skated behind the Pirates’ net a split second or two before he reached the site of the collision, and no longer had it in his possession when the collision occurred.

[70] I reject MacIsaac’s evidence on this point. His view was obstructed. If he thought at the time that Casterton had the puck, he was mistaken.

• MacIsaac was skating very fast when he and Casterton collided, while Casterton was skating at a more moderate speed.

[71] MacIsaac had been playing hockey since he was a child. This included years in a competitive league during his adolescence, and intramural hockey in university. MacIsaac had been playing for the Tiger Cats since 2009. His teammates all said that he was one of the more skilled and fast players on the team.

[72] MacIsaac testified that, as he travelled through the Pirates’ zone, he was skating at or close to his top speed. I accept this evidence, which is supported by the evidence of Winton, Clark, Shouldice, and Shorey. Winton and Clark specifically noticed MacIsaac taking a few big strides or skating very actively down the ice. Desjardins recalled that MacIsaac was skating at a normal pace. On this point, I prefer MacIsaac’s own evidence. He was in the best position to assess his relative speed and has no reason to exaggerate.

[73] MacIsaac testified that Casterton was also skating quite fast, although not as fast as him. Hind said that Casterton sped up as he passed behind the net. Desjardins said that Casterton, like MacIsaac, was skating at a normal speed.

[74] Winton and Clark disagreed. They both said that Casterton was coasting as he skated behind the net. I place little weight on this evidence. Since Casterton was behind Winton, Winton’s focus would have been on whether the puck was being intercepted by a Tiger Cats player rather than on Casterton’s speed. Clark testified that MacIsaac was going “two to three times” the speed that Casterton was skating. This was a clear exaggeration.

[75] Casterton himself testified that he slowed down when he reached the top-right corner of the ice and turned along the boards, then sped up again as he skated behind the net. He said that his goal was to get the puck out of the Pirates’ zone as quickly as possible in order to prevent the Tiger Cats from scoring in the last minute of play. He admitted that he came around the top-right corner with a lot of speed. At the first criminal trial on May 8, 2013, he said that he continued to move at a good pace as he skated behind the net: “I’m not losing any speed. So I – I got the puck off my stick quick, and I was sort of going to catapult myself from around behind the net, over back to the right side of the ice, which is – which is my side”.

[76] I find that Casterton was skating at a good pace and not merely coasting as he passed behind the Pirates’ net. He was not, however, skating as fast as MacIsaac.

• MacIsaac approached the point of collision on a slightly diagonal trajectory.

[77] MacIsaac’s sketch of the play, prepared during his first criminal trial in 2013, showed that he skated from the centre of the Pirates’ blue line towards their goal, veering to the left as he approached it.

[78] MacIsaac’s evidence on this point was contradicted by Desjardins and Winton. According to them, MacIsaac was farther over on the left-hand side of the rink as he approached the Pirates’ goal. Winton testified that MacIsaac skated on a diagonal path from the left. According to Desjardins, MacIsaac skated along the boards in front of the benches and rounded the top-left corner, putting himself on a direct collision path with Casterton as he skated along the back boards from the opposite corner.

[79] I accept MacIsaac’s evidence about his trajectory. His testimony on this point is against his own interest, in that he acknowledges that Casterton would not have seen him approach unless he looked to his left. Desjardins’ evidence that MacIsaac skated along the boards is not supported by any other account. It is also implausible. There is no evidence that Casterton took any steps to avoid the collision or that he braced himself for impact even though he was a skilled and experienced skater.

[80] The defence argued that Casterton’s reaction time was slowed as a result of his chronic use of cannabis. For reasons that I will expand on later, I reject this argument.

[81] I therefore rule out a scenario in which MacIsaac and Casterton collided as a result of a head-on collision while they were skating in opposite directions along the back boards, as Desjardins’ account implies.

[82] Casterton and several of his teammates, including Hind, Lee, and Clark, testified that MacIsaac skated in from the right side of the rink. In my view, this evidence was a reconstruction of events based on their collective misunderstanding, from the outset, that MacIsaac was the player who had fallen over Clark a few second earlier. I reject this evidence.

• Casterton did not make a sharp, unexpected left turn.

[83] Clark testified that Casterton began to “curl up” the ice after passing behind the Pirates’ net. This is consistent with his diagram showing the point of collision was just below the goal line, to the immediate left of the net. Hind’s diagram of the rink likewise shows that Casterton had curled around the Pirates’ goal and had begun to skate up ice when MacIsaac ran into him. Shorey also testified that Casterton turned left, a few feet past the net, to start skating down the ice, when the collision occurred.

[84] Winton said that he did not know whether Casterton intended to continue along the boards behind him or to cut up the ice. He also stated, however, that Casterton was “mid turning up ice”. His sketch of the play shows that the collision occurred just past the goal line. This again indicates that Casterton had turned left and had begun to skate up the ice.

[85] Desjardins testified that Casterton did not turn, as he was skating straight along the back boards when the collision occurred. Given the evidence that I accept from other players, I conclude that Desjardins’ recollection on this point is simply wrong.

[86] The evidence of Clark, Hind, Shorey, and Winton about the site of the collision is consistent with Casterton’s own testimony about his trajectory. He stated that he intended to loop around the back of the net and continue up the left side of the ice, returning to his natural position as a right winger as he skated towards the opposing team’s zone. The diagram he prepared in 2013 showed that he planned to veer left a few feet past the goal.

[87] If Casterton had not begun to skate back towards centre ice, the collision would have taken place closer to the boards. I therefore conclude that he veered left after passing behind the Pirates’ net. The critical question is whether, in doing so, he made an abrupt, unexpected left-hand turn.

[88] MacIsaac testified that he was skating rapidly to a point just to the left of the Pirates’ goal, with the intention of turning to skate parallel to Casterton along the back boards, overtaking him, and getting the puck away from him. The collision happened because he had no way of anticipating that Casterton would make a sharp left-hand turn immediately after passing behind the net.

[89] Although Clark, Hind, Shorey, and Winton all agree that Casterton had begun rounding the net when the collision occurred, there is no evidence, beyond MacIsaac’s own evidence, that he made an unexpected and sharp left turn. Casterton’s rounding of the net was, in Hind’s words, a “basic break-out play”. The evidence shows that he was skating moderately fast and did not stop or slow down just prior to the collision, as he would have done to make a sharp turn. Rounding the net gradually allowed him to maintain his speed. Heading back towards the Tiger Cats’ zone was the obvious thing for Casterton to do, as he wanted to move the play away from his own team’s net.

[90] As a result, I reject MacIsaac’s evidence on this critical point. I conclude that, although Casterton certainly rounded the Pirates’ net, this was not unexpected, and he did not abruptly change direction.

• MacIsaac anticipated the collision, while Casterton did not.

[91] Casterton said that he did not see MacIsaac coming, testifying as follows: “My attention would have been directed towards the position that I was going back to, as well as the position of their [the Tiger Cats’] defence along the blue line”. He said that he was looking either straight ahead or to the right, towards Hind, and so he did not see MacIsaac coming towards him from the left.

[92] There is no evidence that Casterton anticipated the collision. Nobody testified that he braced himself for impact or attempted to avoid it. By everyone’s account, his arms and head were down.

[93] There is, by contrast, evidence that MacIsaac anticipated the collision and positioned himself in a way that was calculated to injure Casterton.

[94] Shouldice and Shorey both expressed the view that MacIsaac and Casterton simply ran into each other. Shouldice acknowledged, however, that MacIsaac could have avoided the collision but Casterton could not because MacIsaac was not in his field of vision.

[95] Desjardins testified that, just before the collision, MacIsaac leapt at Casterton. He jumped in the air so forcefully that his skates left the ice, with his arms raised to his chest level. As a result, one of MacIsaac’s forearms hit the lower half of Casterton’s face.

[96] Winton testified that, just before colliding with Casterton, MacIsaac raised both arms in a ploughing motion, with fists together and elbows akimbo, and drove his body into Casterton’s shoulders or head. Shorey also observed that MacIsaac had his arms up, as though he were bracing himself for the impact.

[97] According to Clark, MacIsaac was leaning slightly forward while skating towards the Pirates’ goal line. When he collided with Casterton, he stood tall with his arms at shoulder height or higher. His fists were initially together and then separated just before the point of impact. Clark recalled that there was a loud bang as the two bodies hit each other. MacIsaac’s shoulders, arms and potentially some of his helmet hit Casterton’s head and upper shoulder.

[98] I have reservations about Desjardins’ testimony given the findings I have made about the accuracy of his recollection of the play just before the collision. I have no similar concerns about Winton, Shorey, and Clark’s memories of the event.

[99] Based on the evidence of Winton and Clark, and the nature of Casterton’s facial injuries, I find that MacIsaac’s forearms or shoulders hit the left lower half of Casterton’s face. This implies that MacIsaac was standing upright with his arms extended at the moment of impact. This is consistent with a collision anticipated by MacIsaac, but not by Casterton.

[100] On the evidence as a whole, I find that MacIsaac anticipated the collision, while Casterton did not.

• MacIsaac did not admit that the collision was deliberate after it happened.

[101] I have already rejected the evidence of Inshaw and Lee with respect to MacIsaac’s comments to the Pirates’ bench after the collision.

[102] According to MacIsaac, as he skated past the Pirates bench, various players were yelling at him, and one of them called him a “fucking goon”. In response, MacIsaac said that he pointed to the Pirates’ zone and said “Are you kidding me? That could have just as easily been one of our players who was hurt on that play.” He testified that he was referring to the play involving Masubara and Clark.

[103] MacIsaac’s evidence was supported, to some extent, by Shouldice. Shouldice testified that MacIsaac was escorted off the ice after the collision and that, when he passed by the Pirates’ bench, they were all yelling at him. He did not recall MacIsaac’s precise words in response, but the gist was that the collision was an accident and things like this can happen during a hockey game.

[104] No other witnesses, aside from Inshaw and Lee, recalled what MacIsaac said as he passed the Pirates’ bench, although various players recalled yelling and an unpleasant exchange of some sort.

[105] I do not find, on a balance of probabilities, that MacIsaac confessed that he body-checked Casterton in retaliation for the earlier tripping incident. I accept that MacIsaac made a comment that linked the two incidents. Some Pirates players, including Lee and Inshaw, had incorrectly assumed that MacIsaac was the Tiger Cats player who had fallen over Clark, and that he had skated over from the right side of the rink to intercept Casterton after he got up. In my view, they were primed to hear MacIsaac say that he had retaliated because they already believed that he had.

Conclusions on MacIsaac’s liability for the collision

[106] MacIsaac contends that he collided with Casterton because Casterton unexpectedly made a sharp left turn after passing behind the Pirates’ net. I have concluded that Casterton did not turn sharply, and that MacIsaac anticipated the collision whereas Casterton did not.

[107] MacIsaac’s theory of how the collision occurred is inconsistent with Casterton’s trajectory and movements just prior to impact, and with each player’s body posture at the time. Beyond this, MacIsaac’s account of the play he intended to make is inconsistent with his actions as he skated deeper into the Pirates’ zone. He said that he planned to turn left when he reached the goal line and then steal the puck from Casterton by skating ahead of him. If that were the case, MacIsaac would have had to slow down to make a sharp left-hand turn. According to his own evidence, however, he was skating at close to his top speed. There was no evidence that he was preparing to turn just prior to the collision.

[108] I find that MacIsaac anticipated the collision and could have avoided it. MacIsaac was a skillful and experienced skater and hockey player. He could see Casterton skating behind the net. His belief that Casterton still had the puck is irrelevant. He had to have realized that, if he continued skating at high speed towards him, they would collide violently.

[109] I further find that MacIsaac positioned his body in a way that anticipated the collision with Casterton. I accept the evidence of various witnesses that MacIsaac had his arms raised as he collided with Casterton. This evidence is consistent with the injuries to Casterton’s face.

[110] There is no credible evidence that Casterton anticipated the collision or should have done so.

[111] The League is a recreational, non-contact league. Every player who testified nevertheless recognized that hockey is a fast-paced sport where some degree of body contact is inevitable. Accidental injury is always a risk. Various players talked about past injuries they got from loose pucks. Players in the League, including Casterton, signed a waiver releasing the league from any damages as a result of hockey injuries.

[112] Injury can be caused by contact with other players. Body checking is punishable as a major penalty. The very existence of this penalty shows that body checking – just like conduct that may attract a minor penalty, such as tripping and hooking – may occur. It is sanctionable, but not completely unexpected conduct.

[113] In sum, players can expect that they may be accidentally injured during a game, even a game in a recreational, non-contact league. They accept this risk when they play.

[114] Each player also testified, however, that blindside hits – especially hits to the head – are absolutely prohibited. They have no place in recreational play, or in any hockey game.

[115] Casterton contends that MacIsaac intentionally injured him. His argument is based on MacIsaac’s alleged admission after the collision – the evidence regarding which I have already rejected – and in part on the evidence of Winton and Desjardins. They both testified that MacIsaac leapt up or drove his body forward as he collided with Casterton.

[116] Winton was within five feet of the location where the collision occurred. Nothing obstructed his view. He was focused on the play in this area of the ice because the puck was in the corner and the Tiger Cats needed to score. His account of MacIsaac’s movements was detailed and plausible. He explained that the ferocity of the event stood out for him, as he had never seen conduct like this by another player. He testified in May 2013, during the first criminal proceeding, when his recollection was fairly fresh. No inconsistency was raised between his evidence then and his evidence today.

[117] Winton made admissions that enhanced his credibility. He admitted that he did not recall any verbal exchange between MacIsaac and players on the Pirates’ bench. He also admitted that his teammates discussed what had occurred in the locker room right after it occurred. Other Pirates team members denied this. In my view, it is completely implausible that they would not have discussed an event that resulted in a serious injury to a teammate and a call to the police. Finally, he expressed the view that MacIsaac would have been in Casterton’s range of vision, and that even a face-to-face collision during a game may be accidental. Even though I have reached other conclusions, Winton’s testimony on these points demonstrates his objectivity.

[118] One point of Winton’s recollection was clearly in error. He testified that pushing, shoving, and shouting broke out briefly between various players after the collision. This evidence was not supported by any other witness, including the referee. Winton later stated that his recollection of what happened right after the collision was blurry because he was focussed on helping Casterton. I find that there was no mêlée after the collision, as this would have been mentioned by other players who testified. In my view, however, Winton’s mistake on this point does not undermine the credibility of his evidence regarding MacIsaac’s body posture at the moment he collided into Casterton.

[119] I also reject the defense’s argument that Winton’s evidence was influenced by what he heard in the locker room after the game. As mentioned, he made admissions that were not supportive of Casterton’s theory of the case. Although he was Casterton’s teammate, Winton did not socialize with him before the March 2012 game. He had no reason to lie. His evidence was reasonable, nuanced, and fundamentally credible. More generally, I reject the defense’s theory that, in the locker room, members of the Pirates team concocted a story together about how the collision occurred.

[120] I have already rejected some of Desjardins’ evidence; notably, his testimony that MacIsaac was skating parallel to the back boards when the collision occurred. On the other hand, his recollection about MacIsaac’s body posture just before the collision has been consistent from the time it occurred. It was the reason why he gave MacIsaac a ten-minute major misconduct penalty.

[121] Desjardins played in competitive and semi-professional leagues before becoming a referee in 2010. He had officiated about 600 games by March 2012. He explained why this incident stood out in his memory. He had no bias towards or against either team or any particular player. He had simply never seen “such an act of violence” in a hockey game; as both a referee and as a player. He was fifteen to twenty feet away from the point of impact, and nothing obstructed his view. In his opinion, MacIsaac deliberately attempted to injure Casterton.

[122] I conclude that MacIsaac intentionally skated at high speed towards Casterton from an angle where his approach could not be seen. He positioned his arms and drew up his body in such a way as to maximize bodily contact, causing a collision between MacIsaac’s shoulder and forearms and the lower half of Casterton’s face. Casterton did not anticipate the check and, as such, made no moves to protect himself or attempt to avoid the collision. Each player admitted that, if Casterton’s theory of how the collision occurred were accepted, this was a blindside hit.

[123] Based on the evidence of Winton and Desjardins about MacIsaac’s body posture, I find that MacIsaac either deliberately attempted to injure Casterton or was reckless about the possibility that he would do so. But even if I concluded that the hit was neither intentional nor reckless, applying the test in Kempf, MacIsaac would be liable for Casterton’s injuries because he failed to meet the standard of care applicable to a hockey player in the circumstances. Every player who testified stated that a blindside hit to the face is and was outside the bounds of fair play.

[124] MacIsaac is therefore liable for the injuries that Casterton suffered during the March 15, 2012 game.

(2) Is Casterton contributorily negligent for his injury?

[125] MacIsaac contends that Casterton bears some responsibility for the injuries he suffered during the collision for two reasons. First, he chose to wear a half visor instead of a full-face cage, thereby increasing the risk of a brain injury on impact. Second, he was cognitively impaired during the game due to his long-standing use of cannabis.

[126] A person who suffers an injury due to battery may be found contributorily liable for their injury. Section 3 of the Negligence Act, R.S.O. 1990, c. N.1 permits apportionment not only in an action for damages founded on negligence but also more broadly on fault. As noted by the Ontario Court of Appeal, fault “incorporates all intentional wrongdoing, as well as other types of substandard conduct”: Bell Canada v. Cope (Sarnia) Ltd. (1980), 15 C.C.L.T. 170, at p. 180.

[127] On the evidence, however, and for the reasons that follow, MacIsaac has not proved that Casterton’s injury was the result of any negligence on Casterton’s part.

Use of visor instead of full cage

[128] A full cage is, as the name suggests, a metal-wire cage worn over the face. A half visor shields only the top half of the face.

[129] Even though it is a non-contact league, the League’s rules required that all players wear facial protection. They have the choice of wearing a half visor rather than a full cage but, if they do so, they lose their entitlement to dental coverage.

[130] MacIsaac testified that he always wore a full cage, as this provided an added level of protection for his eyes and face. Many other players, including Casterton, wore half visors. They said that they found that a cage limited their peripheral vision and was not as comfortable as a visor.

[131] Since the League permitted players to wear a half visor, and many players did so, I do not conclude that Casterton was negligent in doing so.

[132] Given this finding, I do not need to consider the expert evidence of Dr. Gunther Siegmund, a biomechanical engineer who testified on the potential increased risk of injury arising from the use of a half visor.

[133] In any event, I would have reservations about putting any weight on Dr. Siegmund’s opinion about the enhanced risk of brain injury in this case. He drew only tentative conclusions on the causal relationship between the use of the half visor and the injury. He also acknowledged that Casterton may have suffered his concussion either as a result of his collision with MacIsaac or when he fell backwards and hit his head on the ice. In the second scenario, Casterton’s choice of facial protection would not have anything to do to his most serious injury.

Casterton’s use of cannabis

[134] MacIsaac alleges that Casterton was cognitively impaired. He contends that, due to Casterton’s long-term cannabis use, he was not focusing on the play around him and his reaction time was slower.

[135] In support of this argument, the defence called Dr. Harold Kalant. Dr. Kalant was qualified as an expert in the areas of cannabis absorption and metabolism and its effects on health and performance capability.

[136] Dr. Kalant testified that, if Casterton had consumed a gram of cannabis on a daily or near daily basis since he was 17 years old, this could have had an impact on his cognitive abilities. Dr. Kalant testified that such chronic use would give rise to a risk of impairment in the context of a fast-moving game like ice hockey. He also stated that a chronic cannabis user might feel the effects of the drug more than a day after consuming it because THC, the active ingredient in cannabis, may be stored in the body’s fatty tissues and released into the blood stream over time.

[137] Dr. Kalant is an extremely well qualified and knowledgeable expert. However, his evidence did not assist the defence for two reasons.

[138] First, the assumptions that Dr. Kalant was asked to make about Casterton’s history of cannabis consumption were not supported by the evidence.

[139] Casterton mentioned his ongoing use of cannabis to various physicians prior to March 2012. In November 2009, the record from his family physician mentions “occasional” use of alcohol and cannabis. A year later, the same record states that he smoked cannabis “almost daily”. In June 2011, when his physician suggested that he stop using cannabis to see if this might affect his overall drive, Casterton said that he needed the drug to decompress and deal with anxiety. In October 2011, he told a neuropsychologist that he smoked cannabis four to five times a week. According to a report from a psychologist that he saw as part of this same consultation, Casterton reported that he had been a daily cannabis user “for many years” but had for the past two months attempted to cut down his use to twice per week. Finally, in October 2012, he told Dr. Shawn Marshall that he was smoking cannabis with a pipe on a near daily basis, but less than a gram at a time.

[140] At trial, Casterton said that he began using cannabis in his first year of university. He denied any use before this. He also denied daily use, saying that he would not smoke cannabis the day of a hockey game, for instance.

[141] I do not believe this. Casterton’s statement to physicians in November 2011 that he smoked cannabis almost daily coincides with a period when he was playing hockey or engaging in other sports every day. He also reported near daily use to Dr. Marshall a year later.

[142] As a result, I find that Casterton downplayed his cannabis use. I find that he began to consume marijuana in high school and has continued to use it with some regularity ever since.

[143] I am not persuaded on the evidence, however, that Casterton has used cannabis daily since high school, or that he has consumed a gram daily at any point.

[144] The first reference to cannabis in Casterton’s medical record appears in 2009, when he was 26 years old. Although he told Dr. Cooper that he began to consume cannabis daily during university, he also told him that he had not done so during high school. I accept that his more frequent use did not begin until university.

[145] Casterton also denied that he ever consumed a full gram of cannabis daily. This is consistent with what he told Dr. Marshall in October 2012. Hind, whose evidence I found generally reliable, has known Casterton since they were children. He testified that Casterton was and is a casual, recreational smoker. Hind saw him smoke maybe once a week or once every two weeks rather than every time they saw each other. Casterton would share a joint with him, which suggests that he was consuming less than a gram at a time.

[146] I accordingly conclude that the level and duration of cannabis use assumed by Dr. Kalant for the purpose of his opinion is not made out in the record. Dr. Kalant acknowledged that, if the evidence did not support his assumptions, he could not conclude that Casterton was impaired during the March 15, 2012 game.

[147] The second reason I reject the defence’s theory that Casterton might have been cognitively impaired during the March 2012 game is that it is contradicted by the evidence about his cognitive abilities at the time.

[148] Dr. Kalant agreed that, if neuropsychological testing a few months before the hockey injury indicated that Casterton had no cognitive deficits, there were three possibilities. Either Casterton was not a heavy daily user of cannabis, it was not having an impact on his cognitive functions, or, notwithstanding any impact, he still had superior functions.

[149] Casterton had neuropsychological testing done in October 2011. He was thinking of enrolling in an MBA program, and wondered if he had an attention deficit disorder. The October 2011 psychometric testing did not identify any difficulties with Casterton’s attention or processing speed. His scores in fact fell within the superior and above average range respectively for these domains. These results are incompatible with an inference that he was cognitively impaired by long-term cannabis use roughly four months later.

[150] I would add that Dr. Kalant did not state that long-term, heavy cannabis use has been proved to affect cognitive functioning. He emphasized that studies in this area have not, to date, proved a causal effect.

[151] I accordingly reject the defense’s argument that Casterton was responsible, in whole or in part, for the collision due to the cognitive impairments caused by his long-term cannabis use.

(4) What are Casterton’s damages as a result of the collision?

[152] Prior to March 15, 2012, Casterton worked 50 to 60 hours per week as a personal trainer, enjoyed an active social life, and participated in many recreational sports. Since March 2012, he testified that he suffers from crippling headaches about once a week, tires easily, and finds interactions with others difficult. He has given up most social, recreational, and sports activities, and cannot work more than two or three days per week.

[153] I accept Casterton’s evidence on the long-term impact of his injury. While I find that he exaggerated some of his symptoms, his evidence about the limitations caused by his brain injury was supported by the evidence of other witnesses, by medical and tax records, and by expert evidence from a neuropsychologist.

Casterton’s history prior to March 15, 2012

[154] Casterton was born in March 1983. He grew up in Ottawa with his parents and two younger brothers. His father worked for a nuclear regulatory agency, and his mother was a nurse.

[155] Casterton’s life prior to his injury centered to a large degree around his love of sports and spending time with like-minded people. He played hockey in a non-contact house league until he was nine or ten, when he joined a competitive league. In addition to hockey, Casterton played volleyball and baseball, skied, and participated in track at school. He testified that he valued the camaraderie of sports teams; his best friends were those he played sports with.

[156] Casterton enjoyed good health throughout his childhood and adolescence. When he was a teenager, he was hit in the face with a baseball, breaking bones in his cheek and nose and detaching the retina in one eye. This did not result in a long-lasting or permanent injury. In her November 2011 report, Dr. Pamela Cooper mentioned Casterton’s account of having hit his head a lot playing sports. He did not, however, have any history with concussions or losses of consciousness.

[157] Casterton also excelled academically. When he was thirteen, his father was posted to a job in Vienna, Austria, and the family lived there for four years. Upon their return to Ottawa, Casterton skipped a grade and graduated a year ahead of his peers. Casterton obtained a degree in kinesiology from Dalhousie University in 2006 and became a certified kinesiologist in Ontario. His completion of his degree was delayed because he took a year off during his time at Dalhousie to travel in Australia.

[158] From 2006 to mid-2010, Casterton worked in Ottawa as a kinesiologist and personal trainer, first for Premier Fitness, then for Executive Fitness Leaders (“EFL”) – a personal training studio. While at EFL, Casterton worked a six-day week and earned between $41,000 and $44,000 a year.

[159] In July 2010, Casterton quit his job to start his own business – a personal training service called Kinected. Kinected offered in-home personal training, personal exercise programs, injury rehabilitation, and coaching. In 2011, the only full calendar year that the company was in business prior to March 2012, Casterton reported gross revenue of about $46,000. According to him, this was based on 50 to 60 hours of work per week.

[160] The court heard evidence from Casterton, his brother Lee, and his teammates, Michel Beaupré, Jonathan Clark, and Matt Hind, about Casterton’s social activities prior to March 2012. I have concluded that Lee and Beaupré’s evidence about the collision was not reliable, and I think that their testimony in general was coloured by a desire to help Casterton in this lawsuit. I nonetheless accept their evidence about Casterton’s social and recreational activities before and after March 2012, as it is consistent with the evidence of Clark and Hind, whom I found to be credible witnesses.

[161] Clark, Beaupré, and Hind had each known Casterton for years before March 2012. They described Casterton as a leader within their social circle. He initiated recreational activities such as whitewater rafting and camping. He organized teams for annual charitable fundraising events such as a volleyball tournament and dragon boat racing. He scheduled weekly pub nights with a core group of five or six friends. Beaupré said that Casterton was “incredibly fit” and helped him train. Hind testified that he was “always trying to get his friends to do stuff”. Clark described Casterton as the “social hub” – the one who brought people together to do social and athletic activities.

[162] In addition to his social network, Casterton had a close relationship with his family, and particularly his mother. One of the reasons for quitting EFL to start his own business was to have greater flexibility in his work hours, as his mother was undergoing chemotherapy and he wanted to be available to help her. He and his brother Lee bought a house together in 2009, agreeing to split mortgage payments and expenses. Their father, James Casterton, testified about annual family vacations in Maine and skiing holidays in Europe.

Casterton’s injuries in the first year after the March 15, 2012 collision

[163] When MacIsaac collided into him, Casterton fell back on the ice, hitting his head and briefly losing consciousness. When he could speak, he complained of a headache, dizziness, and pain on the left side of his face. He was helped off the ice and into the team dressing room.

[164] At trial, Casterton produced a “pain diary” for the period from March 2012 to March 2013. Despite its title and appearance, it was not a contemporaneous document. Casterton at first contended that it was based entirely on notes that he jotted down on scraps of paper at the time, but later said that he may have used a calendar format. It is accordingly impossible to tell how the diary was prepared, and what it was based on. The defence has not proved that the diary was made with any improper motive.

[165] I nonetheless give the diary no weight and rely instead on the contemporaneous medical records and the evidence at trial.

[166] According to the ambulance call report on March 15, 2012, Casterton was sitting on a bench, awake, alert, and oriented by the time the paramedics arrived. He had small cuts between his nose and his lip, and on his chin. His two front teeth were chipped in half. Beyond this, he was in no apparent distress, and had no neurological deficits aside from a lack of clear memory of what occurred immediately before and after the collision. He was diagnosed with a concussion and taken by ambulance to the local hospital. A CT scan performed there was normal, and Casterton was sent home after getting stitches on his face and chin.

[167] On March 16, 2012, Casterton visited a dentist, then saw his family physician. He reported a headache and right lower back pain, but no vomiting. He was told not to return to work or play hockey until he was reassessed in two weeks.

[168] Casterton’s experiences in the months that followed revealed that his head injury was more serious than he initially realized. While he admitted that his recollection of this period was “fuzzy”, his evidence and medical reports were supplemented by the testimony of his brother, his father, and his friends – all of which was largely consistent.

[169] When Casterton returned to see his family physician again two weeks later, he reported that he was continuing to get headaches, particularly when he was with other people, when there was a lot of noise or bright lights, or when he was watching television. He was sleeping twelve hours a night – roughly twice as much as he usually did. The physician confirmed the earlier diagnosis of a concussion.

[170] By mid-April 2012, Casterton’s symptoms were unchanged or slightly worse. He continued to get headaches every day and was sleeping at least 10 to 12 hours each night. In his physician’s view, his continuing symptoms were worrisome. He ordered another CT scan as well as a referral to neurology. Casterton was told to stay off work and to return in a week.

[171] Casterton was assessed by Dr. Giaccone, a neurologist, on May 8, 2012. Dr. Giaccone diagnosed a traumatic brain injury with concussion, although he found nothing specific during his examination. Dr. Giaccone saw Casterton again on September 19, 2012. He noted that Casterton was doing somewhat better overall but was still only able to work two days a week. Casterton also reported a lot of trouble focusing and concentrating, as well as some forgetfulness. According to Dr. Giaccone’s brief report on the follow-up assessment, Casterton had resumed playing hockey once a week and was cycling on a stationary bicycle but was unable to resume his regular intensive exercise schedule. He referred him to Dr. Shawn Marshall at the Rehabilitation Centre of the Ottawa Hospital.

[172] Dr. Marshall first saw Casterton on October 24, 2012. Based on Casterton’s report to him and his own assessment, Dr. Marshall reported that Casterton was experiencing decreased productivity, decreased cognitive performance, persistent headaches, and moderate depression. Casterton also expressed some concern to Dr. Marshall about his marijuana use. Dr. Marshall recommended occupational therapy, and medication for his depression and headaches.

[173] Dr. Marshall saw Casterton again in early December 2012. Casterton told him that occupational therapy was assisting him in organizing his day-to-day activities, and that his headaches had improved as a result of the medication. He had stopped using the anti-depressants due to side effects. Dr. Marshall recommended a mindfulness-based cognitive therapy instead.

[174] Despite some improvement, Casterton continued to have difficulties with short-term memory and concentration. The results of tests administered by Dr. Marshall were inconclusive. He referred Casterton for further neuropsychological testing.

[175] Neuropsychological testing at the Rehabilitation Centre in early 2013, which was led by Dr. Laura Rees, revealed “an extremely high functioning gentleman with relative weakness in speed of processing and working memory, susceptibility to interference effects and momentary lapses in attention/concentration”. Casterton also reported signs of depression or apathy. The neuropsychological team concluded that he was still suffering from the effects of his concussion a year earlier.

[176] At trial, the defence argued that Casterton exaggerated the seriousness of his injuries in the year following the collision, pointing out that he returned to work in the summer and participated in family holidays in Maine in August and in Europe over the Christmas holidays. The defence also relied on Dr. Giaccone’s note in his September 2012 mentioning that Casterton had resumed playing hockey every week.

[177] Casterton testified that he returned to work because he needed to support himself. I accept this evidence. I will return to the question of how much he has worked since the summer of 2012 when dealing with his claim for past and future income loss.

[178] With respect to Dr. Giaccone’s September note, I accept Casterton’s evidence that he tried, for a brief period of time, to play regular hockey games, but was unable to keep this up. Although he remained on the Pirates’ roster, he failed to show up for most games. When he saw Dr. Giaccone at the beginning of the season, he was hopeful that he could continue to play. This proved overly optimistic. Casterton’s testimony on this point was supported by the evidence of his teammates.

[179] Casterton’s father, James, testified about the impact that the injury had on the family in the year after it occurred. Casterton had been a critical part of the circle supporting his mother, Nora, through her cancer treatment. After March 2012, he was unable to provide the same degree of help for some time. Mr. Casterton described this as a “dramatic change”. He tearfully compared a shakily-written message in a Father’s Day card written by Casterton with pre-injury messages. I accept Mr. Casterton’s evidence without reservation.

[180] Casterton’s brother, father, and girlfriend each testified about the 2012 family holidays. Their evidence was credible and consistent with Casterton’s own account. Casterton described how important these vacations were to his family – especially once his mother became ill. Casterton’s ability to participate in family activities during these holidays was limited. He was able to spend some time with others but spent most of his time alone in his room while other family members went on outings and socialized. He was only able to ski once during the holiday in Austria and could not tolerate group activities for any meaningful period of time.

The impact of Casterton’s injuries since March 2013

[181] Evidence regarding Casterton’s injuries since March 2013 consists of the evidence of various witnesses, his medical records – which were entered into the record on consent – and the expert evidence of Dr. Joanna Hamilton, a neuropsychologist.

Evidence of Casterton and other witnesses

[182] Casterton and other witnesses testified about how his brain injury has affected his ability to work and his life in general.

[183] Casterton testified that he gets migraine headaches several times a month. Migraines entail debilitating amounts of pain and sensory issues. He must shut off all lights and shut out all noise. A headache will typically last a day and require him to remain at home, sleeping or resting. Headaches can also be trigged by changes in the weather, working for a full day, exercising as he used to, and stress.

[184] Casterton also testified that he has jaw, shoulder, and neck tightness. Stretching and massages help, but he will “lock up” when he tries to work out or play hockey. He also suffers from hyperhidrosis (excess sweating), which he finds embarrassing.

[185] Noisy or highly stimulating environments exhaust Casterton. He cannot process everything that is happening and gets frustrated. He testified that written tasks are challenging, and that he does not recall reading even one book since March 2012. It takes him longer to figure things out. He is also forgetful: in 2015, his driver’s licence was suspended after he forgot pay a ticket. He has likewise occasionally forgotten to pay his phone bill, his credit card bill, and his registration fees as a kinesiologist.

[186] As a result of his limitations, Casterton does not do many things that he previously enjoyed. He finds it difficult to interact with anyone for any length of time. He now spends most of his time alone or with his girlfriend. He does not participate in pub nights. He hikes with his girlfriend but does not play hockey or other sports on a regular basis. He attempted to organize a dragon boat racing team one year but could not do it; although he did participate once as a rower when a friend needed one more person.

[187] Casterton’s condition has affected his relationships with his family and friends. He testified about how he felt he had let his mother down in the last two years of her life because he could not give her the support she needed from March 2012 until her death in July 2014. For example, although he went to her birthday party in May 2012, he had to leave almost immediately because he could not tolerate being in the same room with ten other people.

[188] Casterton also talked about how he feels he has disappointed other people in his life, including his girlfriend and his clients. He has lost many close friendships. Although he misses former friends “incredibly”, he does not return their phone calls and has not met their children.

[189] Casterton began dating his current girlfriend, Stephania Hulobowich, a few months after his injury. Although their relationship is ongoing, Casterton stated that the injury has taken a massive toll. He has gone days or weeks without returning phone calls, and they have broken up more than once. Casterton also expressed uncertainty about whether he could handle the financial or emotional responsibility of a child of his own.

[190] Casterton said that he has been a different person since March 2012. He was previously a leader; a confident person in school and sports. He has now accepted that he will never be who he was. Choices were taken away from him.

[191] Casterton’s testimony on this issue was credible and sincere. He acknowledged that he is now in a somewhat better place than he was in the first year after his injury. For example, he can now tolerate small groups of people and focus on conversations. He cannot, however, be around kids or be in a noisy bar or restaurant. When he accompanies his father to a hockey game, he avoids socializing before or after the game, and must block his ears when a goal is scored. He spoke frankly and painfully about the difficulty of explaining his limitations to others when he appears, on the surface, to be healthy.

[192] As will become obvious when I review the evidence on Casterton’s income since 2012, I accept that his injury has prevented him from returning to work at his pre-March 2012 level. As a result, he has had to borrow money from his parents, and his brother has paid part of his share of the mortgage for the house they purchased together. Although neither Casterton’s brother nor his father suggested that they begrudged this financial support, Casterton’s lack of independence embarrasses him. I find that he would not remain in debt to family members if he had the choice to earn an income that would allow him to be self-sufficient.

[193] The evidence of other witnesses supported Casterton’s account of how his injury has affected him over the long-term.

[194] Hulobowich has been in a relationship with Casterton since May or June 2012. She testified about the ongoing challenges his brain injury presents. Advance planning is challenging because they never know if he will feel well enough to attend activities. They signed up for an ultimate frisbee team a couple of years ago, but Casterton only showed up for a few games. Camping trips and outings with her family have been either shortened or cancelled. When they cancel plans, Casterton feels guilty about letting Hulobowich down. In 2018, they separated for a time due to Casterton’s hesitation to start a family. He is worried that he does not have the energy or financial means to have a child.

[195] Beaupré, who has known Casterton since they were both children, testified that he stopped interacting with his friends after the accident. If he went to the house that Casterton shared with his brother, Casterton would be sitting alone in his room, in the dark. Casterton no longer telephoned Beaupré, and Beaupré’s calls and texts were not returned for weeks or months, if at all. This has prevented Beaupré from remaining in touch with him since moving away from Ottawa.

[196] Lee testified that his brother no longer participates in the annual vacation to Maine with extended family and friends. He instead goes on holiday with his girlfriend. Although Casterton remains a member of the Pirates team, he misses many games. While I have rejected Lee’s evidence about what happened at the March 15, 2012 game, I accept his evidence about the long-term impact of the injury on his brother, as it is consistent with other reliable evidence.

Medical records since early 2013

[197] Medical records from March 2013 to 2016 show that Casterton’s condition improved over time, but that he continued to have post-concussion symptoms during this period.

[198] In January 2014, for example, his family physician Dr. Rivet noted that he had daily headaches as well as migraines once a week, and that his neck and jaw were still very tight. He had, however, regained some energy, playing outdoor hockey since Christmas twice a week.

[199] Dr. Marshall saw Casterton again in January 2014, and reported the same symptoms observed in the neuropsychological investigation a year earlier. Casterton still had difficulties with memory, attention, and concentration. This affected his contact with friends, his recreational activities, and his employment.

[200] In further appointments with Dr. Rivet through 2015, Casterton reported less frequent headaches and a greater ability to work. According to an October 15, 2015 medical note, Casterton then had migraines every two to three weeks, for which he took Maxalt. He also had hyperhidrosis and lapses in his ability to focus. Like Dr. Rivet, Dr. Pittman noted that he no longer had adverse reactions to exercise, that workouts no longer triggered headaches, and that he was working full-time (four days per week).

[201] Casterton has not produced records from any treating physician since 2016. An OHIP summary indicates that he is not currently engaged in regular treatment for post-concussion symptoms.

Expert evidence of Dr. Joanna Hamilton

[202] I heard evidence from Dr. Joanna Hamilton, a neuropsychologist, with respect to Casterton’s current condition and the effect of his 2012 concussion. Dr. Hamilton obtained her doctorate in clinical neuropsychology in 1994. She has extensive experience in the diagnosis, assessment, and treatment of concussion-related brain injuries. Dr. Hamilton has a private practice, and regularly provides neuropsychological consultation services to hospitals in Ontario. She has participated in the elaboration of concussion guidelines and risk factors for the Ontario Psychological Association.

[203] Dr. Hamilton performed a neuropsychological assessment of Casterton over two days in August 2016. She reviewed his records and interviewed him on the first day. On the second day, a psychometrist administered tests to measure his cognitive functioning.

[204] In Dr. Hamilton’s view, Casterton did not attempt to underperform during the assessment. Her opinion is based on her evaluation of Casterton during her interview, a report from the psychometrist who administered specific tests, and the test results. Dr. Hamilton reported that Casterton was cooperative and sincere despite becoming visibly fatigued and experiencing a headache after a few hours of testing. He appeared to be making a sincere attempt to help complete the assessment as well as he could. This was borne out in his answers to test questions that were designed to evaluate his level of effort.

[205] Dr. Hamilton explained that the neuropsychometric tests measure how the brain is functioning. This includes intellectual functioning, language, visual/spatial ability, attention, concentration and memory, and executive skills such as planning and organization. Dr. Hamilton also measures mood because it affects functioning.

[206] Based on the August 2016 testing, Casterton is in the 98th percentile on intellectual functioning. As noted by Dr. Hamilton, he is a “very smart man”. There were two issues of concern, however: processing speed, and sustained attention.

[207] Processing speed relates to the ability to absorb and integrate information, and the ability to ask follow-up questions in a timely way. Casterton’s processing speed was variable. Based on the August 2016 test results, his mental efficiency may, at times, be reduced.

[208] During his interview with Dr. Hamilton, Casterton told her about his time management issues and how he sometimes loses track of time. In her view, these problems are related to his processing speed. Although he is able to complete tasks in a satisfactory way, due to his impairment, the effort to do so is exhausting.

[209] The second issue identified in the August 2016 testing was Casterton’s attentional capacity. Dr. Hamilton observed that he did not make more errors than the average person, but his reaction time became substantially reduced over time. The processing capacity issue compounded the attentional capacity issue.

[210] Dr. Hamilton stated that Casterton is not “frankly impaired” in any cognitive area. He still performs as well or better than the general population. He is, however, impaired relative to his pre-accident condition.

[211] Dr. Hamilton compared the August 2016 test results with those obtained in October 2011 when Casterton saw Dr. Cooper. The raw test data from the earlier testing was not available, and different measures were used. On the testing done, however, Dr. Cooper found Casterton’s attention to be intact, and testing on sustained attention and selective attention were all in the above-average range. Based on a comparison of the results in 2011 to the results in 2016, Dr. Hamilton concluded that Casterton is having difficulties with efficiency and sustained attention – which he did not have prior to the injury in March 2012.

[212] Dr. Hamilton also reviewed Dr. Rees’ neuropsychological report on March 25, 2013. This report noted that Casterton had relative weaknesses in processing speed and working memory, susceptibility to interference efforts, and lapses in attention and concentration. These results were very similar to those found by Dr. Hamilton and suggested to her that these problems are permanent.

[213] Dr. Hamilton also diagnosed Casterton with an adjustment disorder with anxiety. An adjustment disorder is a psychological reaction to a stressor that occurs within the first three months of an accident and that impacts on social and professional activities in a significant way.

[214] Dr. Hamilton testified that most individuals who sustain a concussion recover quickly and well. Casterton falls within the small minority who unfortunately do not. She concluded that he is suffering from persistent post-concussive symptoms that will continue to impact his ability to engage in daily activities and his work-related activities. In her view, his condition was caused by the concussion he sustained in the March 2012 hockey game.

[215] I found Dr. Hamilton to be a credible and persuasive witness. I accept her opinion regarding the impact of his injury from a neuropsychological perspective.

The defence’s arguments against damages

[216] The defence argued that Casterton has failed to establish that he has suffered damages as a result of his injuries. This is for three reasons: (1) his ongoing symptoms were self-reported; (2) he was poorly-motivated and depressed prior to March 2012; and (3) he has failed to mitigate his damages.

Is there objective evidence of Casterton’s ongoing injury?

[217] The defence argued that I should reject Dr. Hamilton’s conclusions because Casterton has not produced updated records from his family physician, and because she relied unduly on Casterton’s self-reports of headaches and other symptoms.

[218] I do not agree with this characterization of Dr. Hamilton’s evidence. I also find that Casterton’s self-reported symptoms are consistent with the evidence as a whole.

[219] In addition to his self-reports, Dr. Hamilton relied on Casterton’s medical records both before and after March 2012, her observations of him, and the results of neurological testing. Moreover, unless I were prepared to find that Casterton had lied consistently to his doctors, his girlfriend, his family members, and his friends for many years, I must conclude that he has had persistent, severe headaches since the incident. Casterton has characterized these as migraines, and his physicians have accepted this description. In my view, a diagnosis by a neurologist that the headaches are migraines, as opposed to some other form of severe headache, is not necessary.

[220] The defence also argued that I should draw an adverse inference based on Casterton’s failure to produce records of massage therapy and occupational therapy he has received over the past few years. I accept Casterton’s explanations for these missing records.

Was Casterton poorly-motivated and depressed prior to March 2012?

[221] On this issue, the defence relied primarily on reports prepared by Dr. Cooper, a neuropsychologist, and Dr. Robert Swenson, a psychologist, during assessments of Casterton in November 2011. As mentioned, Casterton was considering pursuing an MBA program, but was concerned that he might have Attention Deficit Disorder.

[222] Dr. Cooper’s report begins by noting Casterton’s own concerns about his ability to stay focused. He told Dr. Cooper that, although he felt he had done well enough overall, he did not have a strong attention span and did not always follow through. He did not think he was suited for a desk job and admitted that he was not good at managing details. Casterton told Dr. Cooper that he like variety and ‘winging it’: “he had a preference for achieving the most with the least amount of output and described himself as someone who likes to be a smart worker rather than a hard worker”.

[223] Dr. Cooper also noted that, in university, Casterton’s class attendance was “pretty poor”, and that he had experienced two bouts of depression. She also referred somewhat vaguely to antisocial behaviour when Casterton was a teenager.

[224] In his report, Dr. Swenson provided a more detailed description of Casterton’s problems with attention and antisocial behaviour when he was younger:

Throughout high school and university he told me that he had a problem with motivation and attention in that he would often skip classes and getting [sic] conflicts with teachers because of questioning authority. As a teenager he had some antisocial behaviour including excessive drinking, playing with fire crackers and vandalism as well as getting into bar fights. Nevertheless, he did not end up with any legal charges and for many years has not engaged in this activity.

[225] Dr. Swenson also gave a more detailed description of Casterton’s history of depression. When Casterton returned to Canada from Europe, he felt that he did not fit in with any group of friends. He became depressed again in university and, according to Dr. Swenson’s report, continued to struggle with depression in late 2011:

Presently he describes his mood as “okay” but upon further questioning has little enjoyment of day to day life and “does not feel engaged” with life in general. He feels tired much of the time. He has a restless sleep and sleeps 5 or 6 hours with multiple awakenings during the night. He denies ever having any suicidal thoughts or consistent wishes to die. However, he has no real hope for his future and questions why he is doing what he is doing at age 28. … Mood was described as chronically depressed and apathetic.

[226] Dr. Swenson concluded that Casterton had a long-standing mild to moderate depression or dysthymia. He recommended psychotherapy or antidepressant medication, the latter of which Casterton was “not keen to pursue”.

[227] The reports by Dr. Cooper and Dr. Swenson were entered into evidence on consent for the truth of their contents. Although neither testified, I accept that their reports reflect their impressions and opinions at the time they were made, based on information that they obtained from Casterton either directly or through testing. Their observations about the difficulties that Casterton had in applying himself through university were echoed in a note by another physician whom he saw in June 2011. During his testimony, Casterton disagreed vehemently with Dr. Swenson’s diagnosis and insisted that it was inaccurate. He did not however present any other evidence from a psychologist that would contradict Dr. Swenson’s conclusions.

[228] I accept the accuracy of Dr. Swenson’s conclusion that Casterton struggled with mild to moderate depression prior to March 2012. He was not well-suited for an office job and did not always apply himself during his university years. I do not, however, conclude that Casterton had serious depression, was poorly motivated to earn a living, or exhibited ongoing antisocial tendencies in the five years prior to his concussion.

[229] The evidence indicates that Casterton had some difficult periods as a teenager and young adult, as he readily acknowledged during his own testimony. He got bored easily and preferred physical activities to academic pursuits. None of this prevented him from completing a university degree, getting and keeping full-time employment for five years after university, and having an active social life with friends and family. Casterton’s decision to get a degree in kinesiology shows that he was aware of his own preferences and strengths. His decision to start his own business, and his decision to get neuropsychological testing so that he could possibly enter an MBA program shows that he was motivated to improve his professional prospects. The idea that he was antisocial prior to March 2012 is squarely at odds with the testimony of long-time friends about his role as the initiator of recreational and leisure activities within their social group.

[230] Furthermore, as noted by Dr. Swenson, there were events in Casterton’s life that affected his mood in November 2011. His mother had been fighting ovarian cancer for three years, and Casterton had been helping to take care of her. A long-term romantic relationship had ended that summer because of his inability to make a commitment. He felt that some of his friends were more successful than he was. Despite all of this, Casterton was functioning well. He was managing his ongoing depression despite additional stressors at the time.

[231] The defence focused on the statement in Dr. Cooper’s report that Casterton preferred “achieving the most with the least amount of output”. I cannot infer from this that Casterton was lacking in energy or motivation, as such an inference is inconsistent with what Casterton was actually doing at the time. He was working 50 to 60 hours every week at his new business, playing recreational hockey and other sports almost daily, helping his mother through her cancer treatment, and maintaining an active social life. He may not have achieved the professional success of some of his peers but, as noted by Dr. Cooper, he was “growing up”.

[232] I therefore reject the defence’s contention that Casterton would not have continued working full-time even in the absence of an injury, or that he took advantage of the injury in order to do less. The evidence does not indicate that he necessarily would have completed an MBA or grown his business beyond a one-person operation. However, there is no basis to conclude that Casterton was looking for an excuse to retreat from the life he had worked so hard to build.

Has Casterton failed to mitigate his damages?

[233] Finally, the defence argued that Casterton has failed to mitigate his damages by refusing to pursue treatment that might reduce the frequency and intensity of his headaches and address his mild to moderate depression.

[234] The medical record shows that, on several occasions, Casterton refused prescriptions offered to him or discontinued drugs because he was unhappy about their side-effects. For example, in May and September 2012, he declined to try a prescription of amitriptyline for his headaches.

[235] Casterton has also sometimes failed to follow other treatment recommendations. In addition to various drugs, Dr. Giaccone suggested a referral to a head injury clinic and counselling for his brain injury. It does not appear that Casterton followed up on this advice. In January 2013, Dr. Rees noted that Casterton was reluctant to try various therapies to improve his mood, such as anti-depressants, stimulant medications, or counselling.

[236] I accept Casterton’s evidence that the referral to the head injury clinic did not actually materialize, and that there were financial barriers to seeking counseling. I also accept his explanation that, in the year following his injury, it would have been difficult for him to follow through on various treatment recommendations due to his memory and organizational deficits.

[237] It is also apparent, however, that Casterton rejected some recommendations for treatment based on his personal philosophy. As Dr. Rees observed in early 2013, he presents as “typically a high-energy person who enjoyed the unstructured approach to his life and is not sure of the feasibility of implementing the recommended cognitive strategies”. At trial, Casterton acknowledged he does not like taking prescription drugs. He prefers to rely on natural remedies; notably, cannabis. He was hostile to Dr. Swenson’s diagnosis of long-standing depression without really being able to identify why.

[238] If the record showed that he had consistently ignored physicians’ recommendations for treatment, Casterton’s philosophical objections to some drugs and forms and therapy might be problematic to his recovery of damages. A plaintiff in a personal injury case may reasonably choose not to engage in every treatment suggested by their treatment providers. They may not, however, reasonably refuse standard treatment options based on personal preference if the evidence indicates that it would address serious symptoms. A plaintiff cannot seek compensation for symptoms that could be readily remedied.

[239] Based on Casterton’s medical record as a whole, however, he has not irrationally or unreasonably refused treatment or medication. Despite some initial hesitation, Casterton has tried prescription drugs for his migraines and depression. Although he told Dr. Giaccone in September 2012 that he did not want to take amitriptyline for his headaches, he agreed to try this medication a month later when it was recommended by Dr. Marshall. Casterton continued to take amitriptyline for a few months, but eventually discontinued it because he was unhappy with its side effects, such as tingling in his fingers. He also tried an anti-depressant and another migraine medication prescribed by Dr. Marshall, but also stopped this due to side-effects. He currently takes Naproxen occasionally for his headaches.

[240] Dr. Hamilton did not suggest that there was any treatment that Casterton could or should engage in that could have a substantial impact on his condition. I accept her evidence. Casterton followed up regularly with Dr. Marshall at the Rehabilitation Centre from 2012 onward and consulted with other physicians regularly until 2016. I am satisfied that he has taken reasonable steps to treat his injury. He may not have done everything that was suggested, but there is no evidence that he refused any treatment that would have meaningfully improved his situation.

[241] As a result, I do not find that Casterton has failed to mitigate his damages.

Findings on the impact of Casterton’s injuries

[242] Casterton had a concussion, two broken teeth, and various facial cuts as a result of his collision with MacIsaac. In the first four months, his post-concussive symptoms prevented him from working or engaging in meaningful recreational or social activities. Although he returned to work part-time in June or July 2012, he has never returned to the life he enjoyed prior to the March 15, 2012 game. I conclude that Casterton’s symptoms are the result of the neurological effects described by Dr. Hamilton, and I accept her opinion that Casterton’s injuries are permanent.

[243] Casterton experiences ongoing headaches, fatigue, and intolerance for social situations. He has trouble focusing for any length of time and gets exhausted after trying to do so for a few hours. He is unable to work or engage in athletic or recreational activities to nearly the same level as he was able to before March 2012.

[244] The defence argued that Casterton has exaggerated the impact of his injury. It relies on evidence showing that he still engages in some of the same activities that he did prior to March 2012. He went on family holidays in 2012. Hulobowich testified that she and Casterton sometimes work out, hike, and run together. They have also gone on holidays together. Beaupré encountered Casterton and Hulobowich at a beer festival in 2016.

[245] In his testimony at trial, I find that Casterton exaggerated his current symptoms to some extent. For example, he has headaches less frequently and they are triggered less easily than he admitted. His medical records from 2014 onwards indicate that he has severe headaches less than once a week, and he no longer must avoid vigorous exercise. He currently works almost full-time and not just two days a week, as he initially stated. He plays hockey and engages in other recreational sports on a semi-regular basis. He is not currently engaged in any regular treatment for his headaches and other post-concussive symptoms.

[246] Notwithstanding this evidence, I accept Casterton’s testimony, and the evidence of his friends, girlfriend, brother, and father that his brain injury has had a dramatic impact on his life. He was, by all accounts, an extremely fit, active, and engaged person prior to March 2012. Although he suffered from mild depression, this did not prevent him from working hard and being very involved with his community, friends, and family. He described how his feelings of alienation as a teenager and young adult led him to overcompensate by becoming the organizer of social and recreational activities for family members and friends. All of this came crashing down after March 2012.

[247] Had Casterton been a less athletic and energetic person prior to his injury, it might have had much less of an effect on him. In a personal injury action, however, a plaintiff’s injuries are measured not in terms of how much they would affect the average person, but how much they affect the plaintiff himself. As a result of his March 2012 injury, Casterton is no longer able to live the life he did before, or to fully engage in the activities that were such an integral part of his identity. This has had a profound impact on him.

General damages

[248] Casterton seeks $110,000 in general damages. MacIsaac says that, if he is liable, general damages should be in the range of $80,000.

[249] When it comes to setting general damages, no two cases are identical. There are however two fairly recent decisions that offer useful parallels to the facts of this case.

[250] In Traquair v. National Arts Centre Corp., [2004] O.T.C. 891 (Ont. S.C.), Smith J. awarded $97,000 in general damages to a trombonist who suffered from post-concussive syndrome after falling off a stage. [5] Traquair had daily headaches of varying intensity, was unable to concentrate for long periods of time, and suffered from extreme fatigue after practicing and playing his instrument. He also had ongoing neck pain. Smith J. noted that these physical limitations had a significant impact on Traquair because they affected his ability to do what he loved most, which was playing the trombone in a professional orchestra.

[251] In Georgiou v. Vassos, 2010 ONSC 5654, a young man was awarded $145,000 for injuries he sustained when he was thrown through a plate glass window by a fleeing shoplifter. Georgiou had permanent, serious facial scars and suffered from neck and back pain when he overexerted himself. As a result, he had to stop playing hockey and other sports. Roberts J. held that this was a significant loss to Georgiou as he had “defined himself through sports”, including hockey. Georgiou also underwent personality change. Prior to his injury, he had been outgoing, engaging and warm, involved in numerous volunteer and community activities, and “the life of the party”. After the incident, he became withdrawn and shy.

[252] The March 2012 collision has profoundly impacted Casterton’s life. He feels that he is no longer a reliable trainer, son, brother, or friend. His girlfriend testified that Casterton’s neurological symptoms have prevented them from starting a family, as he is unsure whether he could handle the demands of being a parent. Based on the evidence at trial, Casterton’s identity and life prior to March 2012 was deeply rooted in his athleticism and his role as the organizer within his circle of friends. This was taken away from him, leaving him adrift. He is still able to function at work, socially, and recreationally, but in a much more limited way.

[253] In my view, Casterton’s injuries are less serious than those in Georgiou and more akin to those in Traquair. I accordingly find general damages of $100,000 to be appropriate.

[254] Casterton concedes that $37,000 should be deducted from this amount. This is the settlement that Casterton received from the League for his injury.

[255] MacIsaac argues that a further $10,000 should be deducted from the award to account for the restitution that he was ordered to pay to Casterton during his criminal prosecution. No evidence or information has been presented regarding how this amount was calculated or why it was ordered to be paid. In these circumstances, I cannot conclude that it is appropriate to use it to offset the general damages payable.

[256] I accordingly conclude that MacIsaac must pay Casterton $63,000 in general damages.

Past loss of income

[257] Casterton claims past loss of income for the period between March 15, 2012 and June 20, 2019.

[258] Since 2013, Casterton has reported gross revenues through Kinected of between approximately $6,000 to $29,000 each year. From 2016 to 2018, his yearly revenues were $28,829, $17,190, and $21,320 respectively. [6] He testified that he currently works about 35 hours per week.

[259] The defence argued that Casterton is effectively working full-time, and that I should not accept his evidence about his post-injury income. It pointed out that Casterton’s bookkeeping was informal, and that he admitted that some clients paid him in cash. It criticized his failure to produce his most recent financial information and suggested that Casterton was under-reporting his earnings.

[260] I accept Casterton’s evidence about the impact that his brain injury has on his ability to work. I accept in particular his testimony concerning how he is unable to work the same number of hours as he did previously. Casterton’s testimony about how he must work around chronic headaches and fatigue was credible. He said that he regularly cancels or postpones scheduled appointments. As he painfully acknowledged, “I am no longer a reliable person”.

[261] Casterton’s evidence about his schedule was supported by the testimony of Sue Wong, one of his clients. She first met Casterton when he worked for EFL and hired him again about four years ago to provide training sessions for her and her husband in their home. Wong said that he is a good trainer, but his attendance for scheduled appointments is sporadic. According to her, he cancels sessions twice to four times a month due to migraines. He never cancelled sessions when he worked at EFL.

[262] Casterton’s account of his work capacity is also consistent with Dr. Hamilton’s assessment of how he has compensated for his chronic brain injury. He is able to perform to the same level in many ways but is not able to do so sustainably because it exhausts him.

[263] Given the credibility of Casterton’s own evidence about his earnings since March 2012, as well as corroborating evidence, I reject the defence’s contention that Casterton has under-reported his post-injury income. I conclude that the income reported on his income tax returns is accurate. It is furthermore irrelevant if many people would consider 35 hours a week full-time. It is significantly fewer hours than Casterton used to be able to work and he makes less income as a result.

[264] In support of his claim for past income loss, Casterton relies on an analysis prepared by an actuary, Guy Martel, in December 2018. Assuming that Casterton would have continued to work full-time as a trainer had it not been for his March 2012 injury, Mr. Martel considered three scenarios: Casterton would have earned the same income he had generated prior to March 2012; he would have earned the average employment income of a personal trainer of his age group and gender in Ontario; or he would have earned the average employment income of a kinesiologist. Subtracting Casterton’s actual reported income from March 2012 to June 20, 2019, Mr. Martel calculated a past loss ranging from $221,680 to $302,856.

[265] Casterton’s lawyer argued that basing past income loss on his average earnings from Kinected up to March 2012 may understate his loss, since he was just getting his business off the ground when he was injured. He also acknowledged that the evidence did not establish that Casterton would have earned as much as the average kinesiologist in his age group and gender. He therefore suggested that a figure in the midrange was appropriate.

[266] There is no evidence that Casterton had the capacity to earn a higher level of income through Kinected than he was earning in 2011. He testified that he was working 55 to 60 hours a week. He did not like to do paperwork, and there is no credible evidence that he planned to employ another trainer. I therefore conclude that, in the absence of his injury, Casterton would have continued to earn the same level of income that he generated, through Kinected, from July 2010 to March 2012. His losses are therefore $221,680.

[267] Mr. Martel did not apply a discounted rate to past income loss to reflect labour participation rates for men within Casterton’s age group. He stated at trial that 10% would be an appropriate discount up to age 55. In closing arguments, Casterton’s lawyer acknowledged that this factor should be applied to damages for past and future income loss.

[268] Casterton is therefore entitled to $199,512 in past income loss to June 20, 2019.

Future income loss

[269] I accept Dr. Hamilton’s assessment that Casterton’s situation has stabilized and that he has suffered a permanent brain injury. He will not be able to resume working at the same level that he did previously. As a result, he is entitled to damages for future income loss.

[270] Mr. Martel has calculated this loss based on various scenarios. He again generated figures based on the average earnings of personal trainers and kinesiologists in Ontario, as well as Casterton’s pre-injury earnings. He has also considered how much Casterton would earn, in each of these scenarios, if he chose to work part-time (35 hours per week) as opposed to full-time (55 hours per week).

[271] I again find that Casterton’s pre-injury earnings are the best measure of his future earning potential. I see no reason to discount these to reflect his current reduced work schedule, since the lower number of hours is a result of his brain injury.

[272] Casterton’s future income loss also depends on the age he would have retired absent his injury. The plaintiff did not lead any evidence on this issue. Casterton did not testify about how long he expected to work. There was no evidence on the average age of retirement of personal trainers and kinesiologists in Ontario, or of any other group of workers for that matter. Casterton’s lawyer urged me to simply take judicial notice that most Canadians expect to work until age 65.

[273] Based on the census statistics submitted by Mr. Martel showing the average earnings of personal trainers and kinesiologists, there is a sharp decline in the participation of these workers in the workforce after age 55. In the face of this evidence, and the lack of evidence from Casterton about how long he expected to work, I cannot simply assume that he would have continued to work to age 65. The burden of evidence lies with him, and he has not persuaded me that retirement at age 65 is a valid assumption. His future loss of income will instead be based on a retirement age of 55.

[274] Based on Mr. Martel’s calculations, I find that Casterton’s future income loss has a present-day value of $488,932, to which I again apply a 10% discount for contingencies. He is therefore entitled to $440,039 for future income loss.

Punitive damages

[275] Punitive damages are awarded where a defendant has engaged in “malicious, oppressive and high-handed” misconduct that represents “a marked departure from ordinary standards of decent behaviour”: Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] 1 S.C.R. 595, at p. 617. The purpose of punitive damages is not to compensate the plaintiff for harm or loss suffered. They are assessed to punish the defendant, denounce their conduct, and deter similar behaviour in future: Hill v. Church of Scientology of Toronto, , [1995] 2 S.C.R. 1130, at para. 197. Punitive damages are awarded only exceptionally.

[276] I do not find that MacIsaac’s conduct in this case is so exceptional as to merit punitive damages. Furthermore, the goals of punishment, denunciation, and deterrence have already been met in this case. As a result of the collision and the penalties assessed to MacIsaac, he would not have been permitted to continue playing had the game continued. He in fact has not played in any recreational hockey leagues since the game on March 15, 2012. MacIsaac has also been tried twice for assault and has paid $10,000 in restitution to Casterton.

[277] In these circumstances, punitive damages are not warranted.

Conclusion

[278] MacIsaac is liable for the injuries suffered by Casterton as a result of their collision at the hockey game on March 15, 2012. Casterton was not contributorily negligent. Casterton suffered a concussion in the collision and has functional and cognitive limitations as a result. His symptoms limit his ability to work and have otherwise had a profound impact on his life. His condition will likely never improve. He is entitled to $63,000 in general damages, $199,512 in past lost income, and $440,039 in future income loss as of June 20, 2019.

[279] If the parties are unable to agree on costs, the plaintiff may submit a cost outline and draft bill of costs within the next ten days. The defendant will have ten days to submit a cost outline and draft bill of costs. Each cost outline shall not exceed three pages in length. There will be no right of reply.

Justice Sally Gomery Released: January 10, 2020

Footnotes

[1] One witness, Ryan Robinson, testified that Casterton skated in front of the Pirates’ net. For reasons explained below, I reject this evidence.

[2] MacIsaac was tried and convicted on the assault charge in 2013. This conviction was quashed on appeal because the trial judge was found to have speculated about how the play unfolded during the game. MacIsaac was re-tried and convicted again in 2017. On appeal, this conviction was quashed anew, and the charge against MacIsaac was stayed, because the Crown had taken too long to re-try the case.

[3] See Ice hockey rink, online: Wikipedia.

[4] I will refer to Lee Casterton as “Lee” to avoid confusion with the plaintiff.

[5] I have adjusted all awards mentioned in this decision to reflect inflation.

[6] This last figure is an extrapolation from Casterton’s earnings in the first six months of the year.