OVERVIEW

[1] For convenience and not out of disrespect, the members of the Haji family will be referred to in these Reasons by their first names.

[2] On November 28, 2013, the Plaintiff, Shaheeza Haji was working as a physiotherapist at the clinic operated by the Defendant, Infinity Health Centre (“Infinity Health”). She was treating a patient who was sitting on an electric adjustable bed. She tried to lower the bed to demonstrate an exercise. The bed did not move. Shaheeza bent down to look under the bed to see if it was plugged in. She may have touched the electric cord. She received an electric shock. It was later determined that the plug was damaged and frayed. Infinity Health admits liability for the accident.

[3] Shaheeza states that she was thrown backwards and lost consciousness for a few seconds. She says she now has serious and ongoing symptoms, including migraine headaches, neck and shoulder pain, sleep difficulties, and problems focusing and concentrating. She is committed to trying to live a full life as possible, but she says any increase in activity is followed by an increase in pain. The Defendant does not argue that the accident did not happen or that Shaheeza was not injured, but rather, it is the Defendant’s position that any damage caused by the electric shock was relatively minor. The Defendant argues that Shaheeza is not disabled from working or carrying on with her usual pre-accident activities.

[4] The trial was conducted by videoconference without a jury. In total, it took 15 hearing days, and counsel were faced with many challenges that are unique to conducting a virtual trial. I commend counsel for their professionalism and the assistance they provided to the court during these difficult and trying circumstances.

PRELIMINARY MATTER

[5] Prior to the commencement of the trial, I heard the Defendant’s motion for an order issuing an interprovincial summons and production of documents with respect to a physiotherapy clinic in Alberta; Running Shoe Restorative Healthcare (the “Running Shoe clinic”). The Defendant was made aware, through an internet search, that Shaheeza had been working at that clinic for several months. This fact had not been disclosed to the Defendant. The Plaintiffs agreed to produce documentation in the possession of the Running Shoe clinic and took no position with respect to the interprovincial summons.

[6] On January 11, 2021, I granted the relief sought by the Defendant. The trial was scheduled to begin on January 18, 2021. The trial was adjourned to January 25, 2021 to allow time for the Plaintiffs to produce the documentation. On January 25, 2021, I adjourned the trial to January 26, 2021 to allow the Defendant to serve the interprovincial summons.

THE EVIDENCE

The Witnesses

[7] The following witnesses testified for the Plaintiffs: Shaheeza Haji; Shaheeza’s parents, Karim and Shaherose Haji; Shaheeza’s brother, Khalil Haji; Shaheeza’s supervisor at CDI College, Spencer Bullivant; Shaheeza’s co-instructor at CDI College, Maria Boux; Shaheeza’s student and physiotherapy assistant, Lorenzo Belcastro; and two of Shaheeza’s patients, Maria Luoma-Shalast and Sara Habbas. The Plaintiffs also called Shaheeza’s treating physiatrist, Dr. Vaidyanath; treating neuro-optometrist, Dr. Thompson; and anesthetist, Dr. Braithwaite. Finally, the Plaintiffs called Paul Greenhow, forensic accountant, and Matthew Rose, Certified Life Care Planner. The Defendants called the surveillance investigators and a physiatrist, Dr. Clark.

[8] Shaheeza testified over the course of five days. She wore a baseball cap and sunglasses because of her complaints of light sensitivity and migraines. She occasionally used a shepherd’s hook to massage her upper back area. She had a fairly flat affect. At times, she grimaced in pain. Her presentation at trial is to be contrasted with observations made on surveillance. She did not wear sunglasses when walking and jogging in June 2020. She was not seen using a shepherd’s hook or any other assistive device. During a five-kilometre obstacle race on August 11, 2018, she was observed laughing with her friend and moving without restriction. I appreciate that surveillance is of a limited time and place and may not be a full representation of a person’s condition, but I was struck by the contrast between the active and happy looking individual on the surveillance and Shaheeza’s presentation at trial.

[9] I also wish to comment on the testimony of Shaheeza and Khalil with respect to the operation of the Running Shoe clinic. They represented to the Physiotherapy Alberta College and Association (“Physiotherapy Alberta”) that Shaheeza was an owner of the clinic. At trial, they denied that Shaheeza was an owner and admitted that they only stated she was to allow the clinic to open without having to complete a business or safety plan. Either Shaheeza was an owner of the clinic and the witnesses were not truthful about this issue at trial, or she was not an owner and they were not truthful to Physiotherapy Alberta. I find that Shaheeza and Khalil did not provide credible evidence with respect to the circumstances surrounding the start-up of the clinic.

[10] I found Karim and Shaherose to be satisfactory witnesses. They clearly care very much for their daughter and want to help her. Although motivated to assist Shaheeza, they did not exaggerate or embellish. The lay witnesses, Mr. Bullivant, Ms. Boux, Mr. Belcastro, Ms. Luoma-Shalast, and Ms. Habbas, were credible and reliable witnesses.

Education and Employment Background

[11] Shaheeza was born on October 28, 1986 and is 34 years of age. She currently lives with her parents, Karim and Shaherose, in Chestermere, Alberta. She has one sibling, her brother Khalil, who is 38 years of age. He is a lawyer and businessman in Calgary.

[12] Shaheeza is a trained and licensed physiotherapist. She obtained her bachelor’s degree from the University of Alberta in sociology and psychiatry. She went on to the University of Western Ontario to study physiotherapy and obtained her master’s degree in 2011. She testified that she wished to become a physiotherapist because she wanted to do a job that was medically based. She was interested in operating her own business and felt that physiotherapy was the best route.

[13] After graduation, Shaheeza completed her residency at Life Mark Physiotherapy (“Life Mark”) in Calgary in September 2012. She was licensed as a physiotherapist in 2012. She also did additional training to become a Certified Strength and Conditioning Specialist. In 2013, Shaheeza completed a course in acupuncture.

[14] Shaheeza was hired by Life Mark as a licensed physiotherapist. She worked 35 hours a week performing manual treatment and modalities. While at Life Mark, Shaheeza expressed an interest in the business side of the practice. Her employer allowed her to perform some administrative tasks. She was paid a salary for the first three months of her employment and then was paid 33 percent of her billings.

[15] In October 2012, Shaheeza moved to Toronto. She said that it was always her plan to live and work in downtown Toronto. She began working with Canadian Active Rehabilitation Centre (“CARC”) as an independent contractor. She had incorporated Shaheeza Enterprises Inc. in September 2012. She testified that it made sense to incorporate her own company because it was her intention to eventually open her own clinic. At CARC, Shaheeza worked 40-44 hours a week and normally saw 20-30 patients a day. She performed manual therapies close to 100 percent of the time. She was paid $35 an hour. In 2012, Shaheeza declared income of $46,951.

[16] In September 2013, Shaheeza started working with Infinity Health. She worked six-hour shifts. Initially, she had a small number of patients, and it was expected that she would build up her caseload. She was excited to join Infinity Health. It was a high-profile and well-respected downtown clinic with high-level athletes as patients. Shaheeza registered a trade name, Running Shoe Rehabilitation, on November 6, 2013, and created a website to promote herself. In 2013, she declared income of $48,570 for the period from January 1, 2013 to the date of the accident, November 28, 2013.

The Accident – November 28, 2013

[17] Shaheeza was working the afternoon shift at Infinity Health on November 28, 2013. She arrived just before her first patient’s appointment at 2:00 p.m. Both physiotherapy rooms were occupied, so she set up in one of the chiropractic rooms. Her patient was on the examining bed, which was electronically adjustable. Shaheeza wanted to lower the bed so the patient could see her demonstrate an exercise. The bed did not move. She bent down to see if it was plugged in and saw that it was. The next thing Shaheeza remembers is being thrown backwards. She stated that she looked to her left as this happened. She remembers being on the ground. She felt very weak and tired. She was a little confused. Everything seemed to be in slow motion.

[18] Shaheeza tried to shake it off and get back to work. The patient asked if she knew what had happened. He pointed out a small burn on Shaheeza’s right hand and showed her the electric cord, which was damaged. Shaheeza went into the other chiropractic room where the owner of the clinic, Dr. Rishkala, was working. She told him what had happened. He was not sympathetic. She went back to work but found it hard to concentrate. She began to experience a headache. She went back to see Dr. Rishkala and told him she could not continue working. She took public transit home.

[19] Shaheeza told her parents what happened. They encouraged her to go to the hospital.

Medical Treatment

[20] In the evening after the accident, Shaheeza felt very tired. She had some chest tightness, ringing in her ears, and a worsening headache. She went to St. Michael’s Hospital, arriving at 8:40 p.m. She reported a brief loss of consciousness and a small burn on her right hand. There is no report of neck or back pain in the hospital record, nor reference to a head injury. The hospital did not carry out any cognitive testing and did not keep Shaheeza for observation. The creatine kinase (“CK”) test was normal. The electrocardiogram was normal.

[21] Shaheeza was discharged at 10:50 p.m. The discharge diagnosis was electrical injury. She was told to return to the hospital if her symptoms worsened.

[22] Over the next few days, Shaheeza began to experience additional symptoms. She had pain in her neck and jaw and in her right arm. She noticed a stutter. She began having problems with memory and concentration. She returned to the emergency room at St. Michael’s Hospital on December 1, 2013. The record provides under diagnostic impression, “?Concussion equivalent”. She was referred to the St. Michael’s Head Injury Clinic.

[23] Shaheeza went to the Head Injury Clinic on December 10, 2013. A registration form was completed, with “No” checked under loss of consciousness. A handwritten note states Shaheeza blacked out for a few seconds. There was no report of amnesia or alteration of consciousness. There was a report of a burn on Shaheeza’s right hand and soreness in her right arm.

[24] Shaheeza was seen by Dr. Vaidyanath, on December 10, 2013. Dr. Vaidyanath’s consultation notes state that Shaheeza’s symptoms include constant headaches, which were aggravated by noise and light. Her symptoms were worse when she watched TV or played video games. She had sensitivity to light and noise and complained of ringing in her right ear, dizziness, a sensation of movement, insomnia, cognitive issues, stuttering, and mood disturbance. Shaheeza also complained of right forearm pain and neck pain. Dr. Vaidyanath noted that the small burn to her right hand was healed over.

[25] On the clinical examination, Dr. Vaidyanath noted that Shaheeza was pleasant and cooperative. She had relatively free range of motion of her neck with some tightness in the left neck muscles below the jaw. She had tenderness to palpation at the back of her neck. Dr. Vaidyanath diagnosed Shaheeza with two types of injury: an electrocution, which could cause an acquired brain injury with concussion-like symptoms, and a whiplash disorder and possible concussion when her head hit the floor. Dr. Vaidyanath prescribed a small dose of Nortriptyline for pain. She recommended that Shaheeza decrease cognitive and sensory stimulation for one to two weeks until her symptoms settled down. She recommended physiotherapy for the whiplash injury. She also ordered a magnetic resonance imaging scan (“MRI”).

[26] After seeing Dr. Vaidyanath, Shaheeza flew to Calgary to be with her family. On December 18, 2013, she saw her family doctor, Dr. Kassam. Dr. Kassam has since passed away. On consent, his clinical notes and records were made an exhibit at trial. When she first saw Dr. Kassam, Shaheeza complained of severe migraine headaches, vertigo, stuttering, and right upper extremity pain. Her headaches worsened with noise and sound. She had low affect and was depressed since the accident. Dr. Kassam referred her to the Urgent Neurology Clinic and Vertigo Clinic.

[27] On December 23, 2013, Shaheeza was seen by a neurologist, Dr. Wiltshire. Shaheeza advised Dr. Wiltshire that she had “improved substantially” since the injury but still had symptoms in multiple areas: she was having frequent headaches; she reported significant pain in the left side of her neck; and she reported sleep difficulties. Dr. Wiltshire stated that Shaheeza appeared to have a concussion after an electrocution injury. The MRI of her brain, which was carried out on December 23, 2013, did not reveal any abnormal findings. Dr. Wiltshire referred Shaheeza to Dr. Li Pi Shan, a physiatrist in Calgary. Dr. Li Pi Shan examined Shaheeza on one occasion. In his consultation note to Dr. Wiltshire dated April 23, 2014, he stated that Shaheeza continued to recover following her concussion. In the note, he also stated that if she returned to exercise and perform activity, she should do so in a graduated fashion. Dr. Li Pi Shan did not have any further recommendations.

[28] On January 7, 2014, Shaheeza was examined by Mr. Low at Life Mark. He recorded the range of motion of her neck at 80-90 percent. He noted that the ligaments were resolving.

[29] Shaheeza returned to Toronto to see Dr. Vaidyanath on January 14, 2014. She complained of daily headaches with some migraines. She had increased left-sided neck pain, anxiety in crowds, ringing in her ears, disrupted sleep, and restless leg syndrome. She complained of vision symptoms. She reported that her field of view would oscillate from right to left. The oscillations were more frequent when she was lying down. Dr. Vaidyanath referred Shaheeza to Dr. Thompson, a neuro-optometrist practising in Brampton.

[30] Shaheeza started physiotherapy on January 24, 2014 at Momentum Health, in Calgary. She complained of headaches and migraines. With respect to her physical complaints, she had constant bilateral neck, jaw, and upper back pain. Active range of movement was decreased. The physiotherapist, in his consultation report to Dr. Kassam dated February 18, 2014, noted some improvement with treatment.

[31] Shaheeza was seen by Dr. Sharif in Calgary on February 10, 2014 for her jaw complaints. She reported jaw pain, headaches, migraines, and jaw joint clicking. Her symptoms increased when she was chewing hard foods or opening her jaw wide. On examination, a click was present in the right and left temporomandibular joint (“TMJ”). She was provided with an occlusal splint. Dr. Sharif injected local anesthesia into Shaheeza’s left TMJ.

[32] Shaheeza returned to Toronto to see Dr. Vaidyanath on February 23, 2014. She reported that she was gradually improving, but not as quickly as she would have liked. She continued to have chronic daily headaches and neck pain, and pain in her jaw. She also reported that her memory and concentration were much better, her stuttering was improved, and she had significant improvement in her insomnia. On the physical examination, Shaheeza had reduced neck flexion. Dr. Vaidyanath recommended Botox and facet block injections.

[33] During her stay in Toronto, Shaheeza saw Dr. Thompson, who testified at trial as a participant expert witness. Dr. Thompson saw Shaheeza on a single occasion on February 24, 2014. Shaheeza complained of headaches and migraines, vertigo, and light headedness. She said she felt overwhelmed in bright areas. Dr. Thompson diagnosed Shaheeza with mild post-traumatic vision syndrome. He noted a small amplitude, which he stated could be a symptom of mild traumatic brain injury. He recommended that she get prism glasses and prescription sunglasses to address the light sensitivity.

[34] Dr. Thompson prepared a report dated March 10, 2014. Before the report was finalized, it was reviewed by Shaheeza. She sent a note to Dr. Thompson with corrections to the draft, which were incorporated by Dr. Thompson in his report. He stated that there was no pathology or trauma to the eyes. On examination, Shaheeza had mild nausea on diverging eye test. She had converging insufficiency. His opinion was that the test findings were consistent with concussion. He diagnosed Shaheeza with post-traumatic vision syndrome.

[35] Shaheeza returned to Calgary. She was seen by Dr. Rutka, an ear, nose, and throat (“ENT”) specialist, on February 25, 2014. Dr. Rutka tested Shaheeza for balance and vertigo. The examination of the ear drums was normal. Dr. Rutka diagnosed tinnitus. Shaheeza was also referred to Dr. Warshawski, another ENT specialist in Calgary, who examined her on April 7, 2014. The physical examination was normal. He ordered vestibular testing and an audiological evaluation, which were carried out on May 1, 2014. The test results were within normal limits. According to Shaheeza, Dr. Warshawski stated that some of her dizziness may have been related to whiplash.

[36] Shaheeza returned to Dr. Kassam on March 5, 2014. In his clinical note, Dr. Kassam reported that Shaheeza’s persistent headaches were improving slowly.

[37] Shaheeza was treated by Dr. Braithwaite in Calgary. Dr. Braithwaite testified at trial as a participant expert witness. He is an anesthesiologist and operates a pain management clinic in Calgary. He first saw Shaheeza on March 13, 2014 after she was referred by Dr. Kassam. On examination, Shaheeza complained of pain on palpation in the neck area. She had restricted neck movements, particularly on turning to the left. There were no objective neurological findings. Dr. Braithwaite recommended Botox injections into trigger points. The trial of Botox injections was started on March 28, 2014. Shaheeza received injections in her forehead, temples, and the base of her skull, neck, and shoulders. She was reassessed on April 17, 2014 and reported that the Botox had not helped. Dr. Braithwaite testified that usually more than one Botox injection is required before improvement is noted. He repeated the Botox injections every three months.

[38] In addition to the Botox injections, Dr. Braithwaite injected Bupivacaine into Shaheeza’s facet joints. This can help relax the muscles. The injections were carried out every couple of weeks. In his consultation report to Dr. Kassam dated August 11, 2014, Dr. Braithwaite noted that Shaheeza had relief from the trigger point injections. In his report dated September 17, 2014, he noted that Shaheeza was improving slowly. On May 26, 2017, Shaheeza questioned the continued use of Botox. She continued with the Bupivacaine injections and had an injection on August 2, 2018 but did not attend her appointment in November 2018. Shaheeza returned to Dr. Braithwaite on April 16, 2020. He noted that her headaches were now stable. There was no reference to migraines in his clinical note at that time. Shaheeza had a Botox injection. She returned on July 16, 2020. Again, Dr. Braithwaite reported that the headache pattern was stable.

[39] On March 14, 2014 (the day after she first saw Dr. Braithwaite), Shaheeza had an MRI of her cervical spine. There was degenerative disc disease noted at C5-6 and C6-7. There was a disc bulge on the left. There was no narrowing of the spinal canal. The MRI of her TMJ on March 23, 2014 showed some degenerative changes in the disc.

[40] Shaheeza saw Dr. Kassam on March 24, 2014. She reported being a lot happier. Her speech was better, and her headaches and neck pain were improving. She returned to Dr. Kassam on April 29, 2014 for a sore throat. On May 9, 2014, Dr. Kassam noted that Shaheeza had a lump on her back, which was painful.

[41] Shaheeza saw Dr. Sharif on April 23, 2014. She reported a 50 percent improvement in her headaches, 20 percent improvement with her jaw and ear pain, and 60-70 percent improvement with her neck and shoulder pain. He noted that the results of the TMJ MRI showed no convincing evidence of internal derangement.

[42] Shaheeza returned to Toronto to see Dr. Vaidyanath on May 20, 2014. She reported being more active. She was able to cycle for 20 minutes. She continued to have daily headaches, but with less severity. Dr. Vaidyanath recommended that Shaheeza continue to exercise.

[43] On July 20, 2015, Shaheeza saw Dr. Dobrovolsky for her TMJ complaints. She had some clicking, locking, and grinding of her jaw. She stated that her jaw was tender when chewing and the pain was worse if she had a migraine. In his consultation report to Dr. Sharif dated September 1, 2015, Dr. Dobrovolsky noted that Shaheeza was going to the gym five days a week. He reported that she recently did a ten-kilometre run. His impression was that she had a TMJ deficiency with internal derangement, which was confirmed on the MRI. He provided three options to her: do nothing, have an open joint procedure surgery, or have a less invasive arthroscopic procedure.

[44] Shaheeza saw Dr. Touchan on May 11, 2016 for her jaw complaints. He recommended the bilateral arthroscopic procedure. He noted that the MRI showed some degenerative disease in her TMJ bilaterally. Shaheeza decided to proceed with the arthroscopic surgery, which was performed by Dr. Touchan in 2016. There was an incision in her jaw and fluid was put into the joint. There was some debridement of the joint. Shaheeza testified that the procedure was helpful. Although she continued to experience jaw pain, it was less severe. She did not see Dr. Touchan or have any treatment for the TMJ following the procedure.

[45] Shaheeza attended vision therapy with Dr. Liuk in Calgary. She was examined by Dr. Liuk on November 4, 2016. She testified that she saw Dr. Liuk for a couple of sessions. She purchased tinted prism glasses as recommended by Dr. Thompson and did some vision exercises. Shaheeza reported improvement in her vision symptoms. She stated that she still experienced oscillation but not as frequently.

[46] Shaheeza attended physiotherapy at Momentum Health. She also saw a chiropractor and naturopath at the clinic. The treatment was helpful, but her condition plateaued. She was able to do the various exercises at home, so she stopped the treatment at Momentum Health in 2015.

[47] In 2016, Dr. Kassam referred Shaheeza to Dr. Debert, a neurologist in Calgary. When she first saw Dr. Debert, Shaheeza felt her pain had plateaued. Dr. Debert prescribed new medication for sleep. She also prescribed a cream for neck pain.

[48] Dr. Debert referred Shaheeza to Dr. Gupta for nerve blocks. Dr. Gupta did not give evidence at trial, but his records were made an exhibit. The first reference to Dr. Gupta in Shaheeza’s Alberta health records is from April 16, 2020. Dr. Gupta prepared a report dated October 20, 2020. He stated that Shaheeza continued to have some headaches. The bone scan and x-rays of the cervical spine were normal. Shaheeza saw Dr. Gupta on November 20, 2020. He carried out an injection at the left C2-3 facet joint. She returned to Dr. Gupta on December 4, 2020 for a left occipital nerve block. Shaheeza testified that after the injection on December 4, 2020, the headaches were less frequent.

[49] In his report dated December 28, 2020, Dr. Gupta noted that there had been “quite a bit of an improvement in her cervicogenic headaches.” Shaheeza continued to get intermittent migraines. She testified that she expected to see Dr. Gupta in February 2021 for a nerve block injection in the lower portions of her neck.

[50] After Dr. Kassam died, Shaheeza began seeing Dr. Ramji. He was her family doctor when she was a child. Dr. Ramji did not testify at trial. He referred her for a sleep study, which took place on June 6, 2019. She was diagnosed with possible insomnia.

[51] Shaheeza continued to see Dr. Vaidyanath in Toronto. Since 2014, she has seen her once a year. Dr. Vaidyanath recommended cannabis, which Shaheeza started taking in 2017. She testified that the cannabis keeps her symptoms at a base level and helps her sleep. Shaheeza testified that she continued to travel to Toronto to see Dr. Vaidyanath because she felt they had a good rapport. She last saw Dr. Vaidyanath in February 2020.

[52] Since 2015, Shaheeza has treated herself at home. She tries to eat a diet that will not trigger migraines. She stretches regularly. She uses a massager and a shepherd’s hook on her back. Her mother massages her back and does cupping. Shaheeza continues to use cannabis, which is helpful. She uses Maxalt when she feels a migraine coming.

Diary

[53] Shaheeza began keeping a diary within a day or two of the accident. The Defendant argues, based on the diary entries made soon after the accident, that Shaheeza was not restricted in her activities. The Plaintiffs argue that one cannot “cherry pick” certain entries and ignore others. Taken as a whole, they say, the diary entries show limited activity and ongoing complaints of pain.

[54] In the weeks after the incident, Shaheeza recorded that she went shopping in a shopping mall before Christmas. She went to Walmart and the Great Canadian Superstore on Boxing Day. She traveled to Banff with her boyfriend three days after Boxing Day and to a New Year’s Eve fireworks and lighting display event at the Calgary Zoo. The Defendant suggested in cross-examination that if Shaheeza was experiencing significant issues with migraines, one would not expect her to go to busy, bright, loud, and crowded stores or a fireworks display.

[55] In the diary, there are references to a number of international trips. Shaheeza went to California in 2014, Mexico and New York in 2015, Mexico again in 2018, and Iceland and Amsterdam in 2019. The family trip to Mexico in July 2015 involved 15 people. Shaheeza went out for dinner and celebrated with her family. The trip to New York in 2015 was with her brother, Khalil. They went to an NFL game. The Defendant argues that Shaheeza would not have gone to the NFL game if she did not feel she was able to do so. The trips to Amsterdam and Iceland in 2019 involved lengthy flights. The Defendant argues that if Shaheeza needed constant help from her parents, she would not have gone on these trips. Shaheeza testified that she would build time into her trips to recover and rest. The trips to Iceland and Amsterdam were for only four to five days, which would not allow for much downtime.

[56] In the diary, there are also references to socializing with friends and participating in golf lessons, skateboarding, and paddle boarding. In July 2015, Shaheeza participated in a ten-kilometre race.

Surveillance

[57] Surveillance was carried out on August 11, 2018. On the day of the surveillance, Shaheeza participated in a five-kilometre obstacle course called the Mega Bounce Run. The race required participants to go over and through inflatable obstacles. There were ten obstacles for the participants to climb over.

[58] On the surveillance, Shaheeza is seen warming up for the race. She is stretching with the other participants and laughing with her friend. She is observed climbing up the first obstacle and running the race. On one of the obstacles, she punches the inflatable obstacle out of the way. There is no indication that Shaheeza had any difficulty with this activity. It looked like she was having fun throughout. After, Shaheeza and her friend casually walked away from the race and Shaheeza drove to a waffle restaurant. She did not appear to be physically limited in any way. On cross-examination, it was suggested that the video depicts someone who appears to be in good shape. Shaheeza testified that she was able to do the race but may have been in pain later.

[59] Surveillance was also carried out over three consecutive days in June 2020. Shaheeza testified that the summer of 2020 was the best she has felt since the accident. Because of COVID-19, she was not overly active. On June 22, 2020, she was observed walking her dog, wearing headphones. On June 23, 2020, she was observed walking with her mother. After the walk, she was seen jogging for 40 minutes.

Post-Accident Employment/Work History

Khalil’s Law Firm

[60] Shaheeza did not return to work at Infinity Health following the accident on November 28, 2013. She did not undertake any work until December 2014, when she started working on a casual basis at her brother’s law firm. She did some photocopying and covered for reception. She sent out Christmas cards. She worked about ten times from December 2014 to March 2015. She worked from 45 minutes to 4 hours each time. She was paid in cash and does not know the amount she made or whether she declared this income on her income tax returns. Although she found it difficult to manage, the work was very flexible.

McKnight Physiotherapy

[61] In September 2015, Shaheeza started working at McKnight Physiotherapy. According to Shaheeza, the owner of the clinic was sympathetic to her condition and allowed her flexible work hours. The owner’s daughter also had medical issues. The owner did not testify at trial. Shaheeza worked every other day, seeing two to four patients a day. She worked at McKnight Physiotherapy from September 2015 to March 2017. She was paid 55 percent of her billings. For the period from September 2015 to the end of December 2015, her billings at McKnight Physiotherapy were $20,667. She received $8,521.10 after tax. In 2016, her billings were $47,617. She received $20,531.12 after tax. In 2017, her billings were $2,318 and she received $1,026.01 after tax.

[62] Shaheeza stopped working at McKnight Physiotherapy in March 2017, when the owner retired and sold the business. Her patients were directed to other physiotherapists. According to Shaheeza, the new owners wanted their physiotherapists to work full-time. She did not feel physically able to work on a full-time basis.

Imagine Health Centre

[63] In November 2017, Shaheeza worked at Imagine Health Centre (“Imagine Health”) for a two-week period, covering for another physiotherapist. She was paid 50 percent of her billings through her personal corporation, Shoe 28. For 2017, the corporate return for Shoe 28 set out billings of $5,993. After expenses, the company declared income of $853.

[64] Shaheeza returned to Imagine Health in June 2018. She worked a four-hour shift, three days a week. Initially, it was slow. She built up her patients and began working more hours. She saw up to eight patients a day, which she found to be very challenging. After work, she experienced terrible migraines. Shaheeza stopped working at Imagine Health in late September 2018.

[65] In 2018, Shaheeza completed an accreditation in concussion therapy. This was a 30-hour course that she did online over a 3-month period.

CDI College

[66] In November 2018, Shaheeza began working at CDI College as an instructor for the rehabilitation therapy assistant program. She was looking for a job in which she could use her knowledge as a physiotherapist without having to do physical treatment on patients. She initially expected to teach 25 hours a week. She later learned that there was no curriculum for the program. She and her co-instructor, Maria Boux, were required to work on curriculum planning. She estimated that she worked 30-35 hours a week on curriculum preparation and spent 20 hours a week teaching. She enjoyed the teaching aspect of the job. If she had a migraine, she could cancel a class.

[67] Shaheeza’s supervisor at CDI College was Spencer Bullivant. Mr. Bullivant testified at trial. He stated that Shaheeza was hired as an instructor in the Rehabilitation Therapy Assistant program. When she was hired, there was no curriculum. It was necessary for the instructors to develop the curriculum. The college paid the instructors on the basis of 44 hours a week to compensate them for this work. Shaheeza told Mr. Bullivant that she experienced migraines, which could affect her ability to lecture. Mr. Bullivant was satisfied with her work. He noted that there were no issues in her meeting deadlines. Shaheeza was paid $40 per hour. In 2018, she declared income of $82,223.65.

[68] Shaheeza’s co-instructor at CDI College, Ms. Boux, testified at trial. She confirmed that she and Shaheeza were required to develop the curriculum together. Their schedules overlapped and she was not involved with Shaheeza’s work on a day-to-day basis. Ms. Boux stated that Shaheeza’s quality of work with respect to curriculum development was good.

[69] In November 2019, the college hired another instructor. After that, Shaheeza did not have as many classes to teach. There was also a slowdown as a result of the COVID-19 shutdown in the spring of 2020. Shaheeza stopped teaching at CDI College in June 2020. Mr. Bullivant testified that she told him she was leaving CDI College to start her own clinic.

Running Shoe Inc.

[70] Khalil Haji is 38 years old. He is a self-employed lawyer and entrepreneur. Khalil testified at trial.

[71] In 2017, Khalil was providing legal services for a commercial condominium project. His client asked if he would like to invest in the project. It was a medical building with doctor and dentist offices, and he thought his sister could assist with the operation of a medical professional business. Shaheeza was excited about being involved in the project, but the investment fell through.

[72] In 2019, one of Khalil’s clients approached him about a leasing issue. A Dr. Bernstein Diet Clinic was going out of business and his client needed a new tenant. A group of physiotherapists were interested; however, they had a non-compete agreement with the local hospital and could not operate in the space. Khalil felt it was a good location for a clinic. He spoke with Shaheeza for her advice. She had good ideas with respect to marketing. She prepared some Instagram videos in which she demonstrated stretches and exercises. She created these videos with the help of one of her students at CDI College, Lorenzo Belcastro.

[73] Khalil entered into the commercial lease in February 2020. It was a ten-year lease, which he personally guaranteed. He started construction to build out the space. He incorporated Running Shoe Inc., of which he is the sole director. The sole shareholder of Running Shoe Inc. is his holding company, 1814121 Alberta Ltd. Khalil is the sole shareholder and director of 1814121 Alberta Ltd. He also registered a number of trade names to the corporation. The trade names were variations on names previously registered by Shaheeza including Running Shoe Restorative Healthcare. He also registered Calgary Concussion Centre and YYC Concussion Centre, along with variations of those names.

[74] In the spring of 2020, Khalil began operating the Running Shoe clinic. He planned to have patients by May or June 2020 but was delayed because of COVID-19. He was able to negotiate a deferment of the rent for a couple of months. He testified that he felt urgency to open the clinic as soon as possible.

[75] It was necessary to register the clinic with the appropriate authorities in Alberta. Khalil knew there were two ways to register the clinic: as a physiotherapist-owned clinic or a non-physiotherapist-owned clinic. Khalil was the sole owner of the clinic and therefore the appropriate method of registration was as a non-physiotherapist-owned clinic. As such, it was necessary to file business and safety plans. Khalil had hired a physiotherapist, Yasin Qerim. He expected Mr. Qerim to assist in registering the clinic and preparing the business and safety plans. He was expected to start in September but was required to travel to the U.S. and was delayed in returning due to travel restrictions. Mr. Qerim returned in October-November 2020. According to Khalil, Mr. Qerim worked for one day before quitting.

[76] Instead of registering as a non-physiotherapist-owned clinic, Khalil asked Shaheeza to register the clinic. She exchanged e-mails with Ms. Littke of Physiotherapy Alberta in which she represented that she was a 50 percent owner of the clinic. By representing herself as the owner, it was not necessary to complete the safety and business plans. Although Shaheeza said she was a 50 percent owner of the clinic, she testified at trial that Khalil owned the clinic. She denied having any discussions with her brother about becoming an owner.

[77] Khalil testified that Shaheeza was not a co-owner and that they misrepresented the true ownership of the clinic to Physiotherapy Alberta. He testified that it was a mistake to represent that his sister was a part owner of the clinic. He stated that he was under pressure to open the clinic and did not fully appreciate the consequences of misrepresenting the ownership. Although he was aware of the error, he did not immediately take steps to correct the registration. He said he was delayed in doing so because he needed a responsible physiotherapist at the clinic. He expected Mr. Qerim to be identified as such, but he quit in October-November 2020. Despite this, Khalil did not advise Physiotherapy Alberta that Shaheeza was not a part-owner until after his cross-examination at trial.

[78] In the fall of 2020, Shaheeza interviewed and hired a physiotherapist for the clinic, Emmanuel Augustine. Mr. Augustine did not testify at trial. Khalil testified that he believed Mr. Augustine was a licensed physiotherapist as of November 2020. In fact, Mr. Augustine was trained overseas and had only a provisional licence in Alberta. He could not practice except under the supervision of a licensed physiotherapist. Khalil conceded that Mr. Augustine could not be the responsible physiotherapist because he was on a provisional licence. Khalil testified that he did not conduct the interview and was not aware of Mr. Augustine’s provisional status.

[79] Other than the day worked by Mr. Qerim, Shaheeza was the only fully licensed physiotherapist to work at the clinic. She was required to supervise the physiotherapy assistant, Mr. Belcastro, and the provisional physiotherapist, Mr. Augustine.

[80] Shaheeza began working at the clinic in August 2020. She did some administrative work, including keeping track of the inventory and working at reception. She supervised Mr. Belcastro. She interviewed and hired Mr. Augustine. She began seeing patients in September 2020. Initially, there were only a few patients; maybe four to five a day. The number of patients increased in October and November. Shaheeza testified that she found the work to be very difficult. She stated that at the end of the day, the pain she experienced was the worst in her life. She told her family she would rather not be alive than live with the pain. Her family did not take her to the hospital or seek any psychiatric treatment for her. Her brother did not close the clinic to allow her to recover or hire anyone to assist her. Shaheeza continued to work at the clinic.

[81] By mid-October, Shaheeza was seeing an average of seven patients a day. She worked six days each week. The number of patients she saw went down slightly when Mr. Augustine started in November 2020; however, she continued to be responsible for supervising his work. She was at the clinic before the first patient arrived and until after the last patient left. After Mr. Augustine started, she began providing more concussion therapy treatment. On December 29, 2020, she saw a total of 11 patients, 10 of whom were there for concussion therapy. Shaheeza testified that this was a very busy and difficult time for her. She pushed through because she knew it was for a limited period of time. She has not seen patients at the clinic since January 2021. Her mother testified that Shaheeza stopped working at the clinic at that time to prepare for this trial.

[82] The billings attributed to Shaheeza at the clinic were $48,235 from August 2020 to the end of December 2020. She has not received any payment from her brother for this work. Khalil testified that he intends to pay her but has not yet had the conversation with his sister as to the amount she will be paid. He testified at trial that he currently pays Mr. Augustine 33 percent of his billings because he is a recent graduate. He suggested that he would not pay Shaheeza this much because she is not working full-time and requires an assistant. He has not made an advance payment to her.

[83] Khalil testified that he felt very badly for his sister. He expressed regret over asking her to assist him. He also said he is worried about her future and whether she will be able to earn enough money to support herself. It is difficult to accept his evidence in this regard when he has not paid Shaheeza any money for her work at the clinic, even though she has generated over $48,000 in billings. Although he expressed concern about her health, he did not close the clinic or hire additional therapists to assist her.

[84] Shaheeza testified that she does not believe the work she was doing at the clinic in the fall of 2020 is sustainable. She was exhausted and in pain each night. She began to overmedicate. Her parents testified that on many nights, she would come home and go straight to bed. Although this work was not sustainable, she testified that she believes she can do some work at the clinic in the future. Concussion therapy is less physically demanding than physiotherapy and it pays better. She can charge $250 for an assessment and $200 for a treatment. For physiotherapy, she can charge $100 for an assessment and $80 for a treatment. She also believes she can do some administrative work going forward. She believes she could reasonably work three days a week.

[85] Sara Habbas testified at trial. She was one of Shaheeza’s patients at the Running Shoe clinic, where she received physiotherapy and concussion therapy treatment. She stated that the treatment consisted mainly of verbal assessments and evaluations. She had 25 sessions over the fall of 2020. She was very satisfied with the treatment she received from Shaheeza.

[86] Maria Luoma-Shalast testified at trial. She was also one of Shaheeza’s patients in September 2020. Shaheeza assessed her injury and decided on a treatment plan. She taught her exercises to do at home. After the treatment plan was in place, some of the treatment was provided by Mr. Belcastro. Ms. Luoma-Shalast was not aware of any restrictions on the part of Shaheeza. She was also satisfied with the treatment she received.

[87] There are 36 reviews on Google for treatment provided by Shaheeza at the Running Shoe clinic. She has positive reviews. At trial, Shaheeza testified that she wrote some of the reviews to market the clinic.

[88] Mr. Belcastro testified at trial. In the spring of 2020, he was told by Shaheeza that her brother was opening a physiotherapy clinic where she would be working. Mr. Belcastro assisted Shaheeza in preparing promotional videos. He provided his resume to her in June 2020 and was hired as a physiotherapy assistant. He started at the clinic in September 2020, working with Shaheeza. She would prepare the modalities and he would do the physical tasks. During the physical treatments, Shaheeza assisted him but generally was “hands off”. Mr. Belcastro could see that Shaheeza had some issues with pain.

[89] Mr. Belcastro testified that Shaheeza was at the clinic before the first patient arrived and after the last patient had left. She always supervised him when he was seeing patients. When Mr. Augustine started at the clinic, she did less physical work. Mr. Belcastro now assists Mr. Augustine. Shaheeza is the only person at the clinic who sees concussion patients. Mr. Belcastro does not assist her with those patients.

Family Law Act Witnesses

[90] Shaheeza’s parents, Karim and Shaherose, are advancing claims for loss of care, guidance, and companionship pursuant to the Family Law Act, R.S.O. 1990 c. F.3.

Karim Haji

[91] Karim Haji is 70 years of age. He is currently employed as a courier.

[92] Karim testified that before the accident, Shaheeza was a happy girl. She was very active and played sports, like hockey and basketball. She enjoyed going to hockey games. She was driven and went to extremes to get what she wanted.

[93] A short time after the accident, Shaheeza returned to Calgary. Karim immediately noticed she was a changed person. She complained of headaches and preferred to stay in a dark room. She was moody and often did not feel like talking.

[94] Karim began keeping a diary on December 15, 2013. He testified that he kept the diary so he could note Shaheeza’s improvement on a day-to-day basis. He stopped keeping the diary after August 19, 2015, as he felt there was no point in continuing. He noted that there had been some improvement, but each improvement was followed by a downfall.

[95] Karim provided evidence with respect to his daughter’s attempts to return to work. She tried working at McKnight Physiotherapy. This was a good place for her because the owner had a daughter who was going through a similar medical issue. Shaheeza obtained employment with CDI College in November 2018. She was able to work at her own pace. He was proud she was working as a teacher. He stated that she is a very smart girl.

[96] Shaheeza also worked with Karim’s son’s physiotherapy clinic. Karim did not know what she did at the clinic. He went to the clinic for treatment on his back and was treated by Mr. Augustine. He believes Shaheeza was present while Mr. Augustine was providing treatment. Some days when she came home, Shaheeza was not too bad. Other days were a “disaster”. He would massage her back.

[97] Karim testified that if his daughter has a good day she will go outside for a walk or a run and will help out around the house. He stated that she is never without a headache. On bad days, she will stay in her room and may come down for dinner. At the present time, she is having good days, but if she pushes herself, she can have a bad day. He feels there is not much happiness in the house right now.

[98] In cross-examination, Karim was asked about his daughter’s travels. He was aware of her trip to Iceland in 2019 but was not sure how long the flight was. She was away for four to five days. The trip to Amsterdam was also in 2019. The flight was eight hours and she was gone for four days. He did not agree that the extent of the travel was evidence of improvement. He stated it was evidence of trying.

[99] Karim has looked after his daughter since she returned to Calgary shortly after the incident. Every year, she requires medical and travel expenses to be paid. He has kept all the receipts. The total claim for out of pocket expenses is $24,489.35.

Shaherose Haji

[100] Shaherose Haji is 63 years of age. She is now retired.

[101] Before the accident, Shaherose was very close to Shaheeza. They would do many activities together. She would take her to basketball games, movies, and shopping. Her daughter had a lot of friends and was very active socially. Even when her daughter was away from Calgary, going to school or working in Toronto, there was not a day when they did not communicate by text or phone. She described her daughter before the accident as a happy person, full of life.

[102] Shaherose learned of the accident on November 28, 2013 at around 4:00 p.m. She received a text from Shaheeza that she had received an electric shock. Shaherose told Shaheeza to go to the hospital. She understood that her daughter sustained a brain injury as a result of the electric shock. Her symptoms include migraines, headaches, and neck pain. At the beginning, she had memory loss and difficulties with concentration and stuttering.

[103] Shaheeza returned to Calgary soon after the accident. She complained of severe headaches. She was nauseated. Initially, she did not leave the house. Her mother encouraged her to get out. She went to the mall to walk around, but there was too much noise. Some of Shaheeza’s symptoms improved. If she felt well, she would go to the gym and go running. If she tried to do too much, though, she experienced a flare-up of pain.

[104] Shaheeza wanted to get back to work. She worked at McKnight Physiotherapy. She complained of headaches every day she worked. She also complained of severe headaches while at Imagine Health. Shaheeza was very happy to get the job at CDI College. She was an instructor and developed the curriculum. She was able to work at her own pace on the computer. She was usually in a lot of pain at the end of a day of work at CDI College. Shaherose would rub cream onto her daughter’s shoulders and neck. She learned the cupping treatment, which she does for her daughter.

[105] Shaherose stated that Shaheeza worked at the Running Shoe clinic. Initially, the plan was for her to work part-time doing administrative work. Shaheeza began working more as a physiotherapist. Shaherose stated that when Shaheeza was working at the Running Shoe clinic, she was in very bad shape. She had more severe symptoms. She would often skip dinner and go straight to bed. Since January 2021, Shaheeza has been preparing for the trial and has not worked at the Running Shoe clinic. She stated that Shaheeza is under a lot of stress.

[106] Shaherose described some of Shaheeza’s current activities. She goes to the gym. She has taken up running and hiking. She will run 1-2 times a week for 30-40 minutes at a time. She will go bicycling 2-3 times a week for 30-40 minutes each time. In the summer of 2015, Shaheeza ran a ten-kilometre race. Her mother discouraged her, but Shaheeza was very motivated. After the race, she was proud of herself, but she paid a price with an increase in pain. Shaherose also reported that Shaheeza was in greater pain after the five-kilometre Mega Bounce Run in the summer of 2018.

[107] Shaherose stated that she still has a close mother-daughter relationship with Shaheeza, but her role has changed. She is more of a caregiver than a mother. She feels her time is not her own and she has to look after Shaheeza. Shaherose expressed some concerns with respect to the future. She is worried that Shaheeza will not be able to have a normal life.

The Medical Expert Witnesses

Dr. Vaidyanath

[108] The Plaintiffs called Dr. Vaidyanath. Dr. Vaidyanath is both a treating physician and a Rule 53 expert. Dr. Vaidyanath is a highly qualified physiatrist. She has experience in brain injury rehabilitation. In her practice, she focuses on quality of life and function. Dr. Vaidyanath received her medical degree from the University of Western Ontario and completed her residency at Queen’s University. She has been a staff physician at St. Michael’s Hospital since August 2013. She is currently physician lead at St. Michael’s Head Injury Clinic. She has held this position since February 2020. Since 2017, she has taught physiatry at the University of Toronto.

[109] I am satisfied that Dr. Vaidyanath has specialized knowledge that will assist the court. She was qualified as an expert in the field of physiatry and permitted to provide opinion evidence in the fields of physiatry, brain injury, and chronic pain.

[110] Dr. Vaidyanath first saw Shaheeza on December 10, 2013. Shaheeza stated that she remembered falling backwards from the electric shock. She had difficulty concentrating immediately after the incident. She had tunnel vision for 30 minutes. She felt her brain was working slowly. At the time she first saw Dr. Vaidyanath, Shaheeza complained of constant headaches. She had sensitivity to noise and light. She had ringing in her right ear. She complained of dizziness. Dr. Vaidyanath was of the opinion that Shaheeza was presenting with classic concussion symptoms.

[111] On the physical examination on December 10, 2013, there was a seven-degree head tilt to the right. On examination of Shaheeza’s left upper trapezius, there was a hard lump. Dr. Vaidyanath testified at trial that this was later determined to be her left second rib. There was good opening of her jaw with some clicking. There was no evidence of swelling in the joints. On the neurologic examination, there was slight drooping of her left eyelid. Shaheeza had mildly reduced flexion of her neck.

[112] At trial, Dr. Vaidyanath reviewed the literature on electric shock injuries. The types of problems experienced by Shaheeza, including sleep issues and headaches, were common problems caused by electrocution. Dr. Vaidyanath referred to a 2008 study that concluded that low-voltage electrical injury can significantly impact the ability to return to work.

[113] Dr. Vaidyanath last saw Shaheeza on February 13, 2020. Shaheeza had complained of migraines and high levels of fatigue. Dr. Vaidyanath noted that Shaheeza had been proactive in seeking medical treatment, with mixed results. As of February 2020, Shaheeza was no longer having any ongoing formal therapy. By that time, she had developed her own self-care regime: she was using a handheld massager; she did stretches and neck exercises; she was using a shepherd’s hook for myofascial release; she was using an in-home transcutaneous electrical nerve stimulation (“TENS”) machine; and she was using pain relievers, such as cannabinoids.

[114] At the examination on February 13, 2020, Shaheeza told Dr. Vaidyanath that some of her symptoms had improved. She did not have problems with memory or concentration unless she was very fatigued or had a migraine. She continued to have neck pain that would flare up every two weeks. Her difficulties with sleep had not improved, but she had learned to deal with the insomnia and was coping. She also complained of widespread body pain. She continued to have clicking and locking in her jaw. She had symptoms of depression and anxiety, which she related to her pain levels.

[115] Shaheeza reported that her most significant ongoing issues were her headaches and migraines. She complained of daily chronic headaches. Usually, the headaches would start on the left side. She had sensitivity to light and noise. She experienced migraines once to twice a week. A migraine could last a few days.

[116] Dr. Vaidyanath provided the opinion that Shaheeza had suffered a neck strain, which affected her facet joints. She was also of the opinion that the electric shock injury had resulted in a brain injury. She stated that the brain injury was caused by the electrocution and possibly by her head hitting the floor. It was Dr. Vaidyanath’s opinion that the injuries affect Shaheeza’s activities of daily living. Although she remains motivated, physical physiotherapy work is difficult and results in a flare up of her symptoms. Dr. Vaidyanath was of the view that Shaheeza would be unable to tolerate full-time work in the traditional sense. She said she was best suited for part-time work so she could pace herself.

[117] In terms of prognosis, Dr. Vaidyanath said that although there has been some improvement, Shaheeza’s overall condition has remained much the same. Dr. Vaidyanath stated that after a brain injury, the maximum medical improvement is within two years. Any apparent improvement after two years is accommodation to the impairments. She expects Shaheeza will continue to have issues with chronic headaches, pain, and insomnia. Dr. Vaidyanath referred to the study of Dr. Charles Tator in which he concludes that patients with post-concussive symptoms for longer than three years do not fully recover.

[118] On the issue of causation, Dr. Vaidyanath stated that there was no other apparent cause of Shaheeza’s complaints. The head injury complaints of headaches, migraines, and sleep issues arose after the electrical injury. However, Dr. Vaidyanath was of the opinion that Shaheeza’s issues with memory and concentration improved, and she did not believe cognitive treatment was necessary.

[119] Dr. Vaidyanath testified that she never had a concern that Shaheeza was malingering. Shaheeza was always open and frank about her condition. She talked about things that would not necessarily support her claim, such as her ability to cycle and to participate in a ten-kilometre run in 2015. Dr. Vaidyanath also noted that it was unlikely a person would go through the invasive treatments Shaheeza took unless she was in pain. The facet injections were painful. Some of the medications caused liver problems.

[120] Dr. Vaidyanath commented on the surveillance. She stated that it was not inconsistent with the diagnosis of chronic pain. In February 2020, Dr. Vaidyanath recommended that Shaheeza return to physical exercise. The surveillance in the summer of 2020 showed Shaheeza walking her dog and jogging. Dr. Vaidyanath said that this is consistent with her recommendations. On cross-examination, the surveillance from the Mega Bounce Run in August 2018 was put to Dr. Vaidyanath. She agreed that Shaheeza was keeping up with everyone else. No grimacing or restrictions were noted. Dr. Vaidyanath stated, however, that she asked Shaheeza to get back into shape and that this is the type of activity she wanted her to do. She said there was nothing in the video that surprised her.

[121] Dr. Vaidyanath provided the opinion that Shaheeza developed chronic pain as a result of the brain injury and central sensitization. She noted that pain is a personal experience. An injury to the brain can cause it to process pain differently. If there is an abnormal connection in the brain, there can be allodynia. Here, the allodynia was located in the left axilla (armpit).

Dr. Clark

[122] Dr. Clark was retained by the Defendant to examine Shaheeza and prepare a medical legal report. Dr. Cark is a physiatrist. He obtained his medical degree in 1997 and completed his residency in physiatry at McMaster University Hospital in 2002. In 2018, he completed a subspecialty in pain medicine. He was on staff at Joseph Brant Hospital until 2017. Since that time, he has worked at a physical medicine clinic. He currently sees patients one to two days a week and spends one to two days a week preparing medical legal reports. He is a clinical director at AssessMed. He prepares medical legal reports for both Plaintiffs and Defendants. On cross-examination, Dr. Clark confirmed that he has not prepared any publications on physiatry or brain injury. He has never presented at a conference on chronic pain. He does not teach medical students.

[123] I am satisfied that Dr. Clark has specialized knowledge. He was qualified as an expert in physiatry. He was permitted to provide opinion evidence on the issues of physiatry, rehabilitation medicine, and chronic pain, including brain injury. Although I am satisfied that Dr. Clark has specialized knowledge which would assist the court, his qualifications are not as impressive as Dr. Vaidyanath. Dr. Clark does not have the same level of clinical or research experience.

[124] Dr. Clark examined Shaheeza on February 11, 2020. She reported that she has constant aching with intermittent pain in her neck and trapezius region. She also complained of aching and stiffness in the TMJ with clicking. The jaw pain was associated with the neck pain and migraines. Her most significant complaint was with respect to headaches and migraines. She stated that she has chronic daily headaches. She also has tension headaches, which start at the base of her skull. The tension headaches occur about once a week and the migraine headaches one to two times a week. Shaheeza stated that her migraines are associated with nausea and sensitivity to light and noise.

[125] On the physical examination, Dr. Clark noted that Shaheeza looked well. She had an athletic physique and appeared to be active and fit. She complained of tenderness at the base of the skull. There were no abnormal findings on palpation. There were no muscle spasms, trigger points, or taut bands. On active movement of her neck, there was a decrease in the range of motion. Dr. Clark performed a test of passive range of motion in which he gently moved Shaheeza’s head. He noted that her passive range of movement was normal. He was of the opinion that Shaheeza was self-limiting in her movements.

[126] Dr. Clark noted that there were no neurologic deficits. On the examination, Dr. Clark could feel the bony prominence in the left upper extremity. This lump was first noted by Dr. Vaidyanath on June 2, 2015. At that time, Dr. Vaidyanath had expressed the opinion that this was an area of calcification of muscle tissue. Dr. Clark noted that Shaheeza had a dedicated ultrasound of this area on April 4, 2017. The ultrasound report states that the findings had the appearance of a rib. There is no suggestion that the prominent rib is related to the accident.

[127] On examination, Shaheeza had a slight ptosis (drooping or falling) of her left upper eyelid. Dr. Vaidyanath stated that this could be a symptom of migraine. Dr. Clark noted that Dr. Wiltshire stated in her notes that Shaheeza has a small palpebral fissure that makes the eye look smaller. Dr. Clark expressed the opinion that the issue with the left eye was a palpebral fissure and not a migraine symptom.

[128] Dr. Clark reviewed the medical documentation. He noted that in the triage notes from the ER attendance on November 28, 2013, the CK levels were not elevated. He stated that this is significant because CK measures muscle damage. If the electric shock had been significant, he would have expected there to have been damage to the muscles of the arm. Dr. Clark also noted that on the day of the incident, Shaheeza was discharged from the ER after two hours and ten minutes. She was not kept for observation. There were no cognitive issues identified. There is no reference in the ER report to a contusion to her head. Dr. Clark expressed the opinion that based on the ER record, the hospital staff must not have thought she sustained a significant injury.

[129] Dr. Clark also notes that the burn to the web space to her right hand was relatively minor. There is no reference in the ER record of the wound being dressed. The burn was reported to have been healed over by the time Shaheeza was seen by Dr. Vaidyanath on December 10, 2013.

[130] Dr. Vaidyanath’s records from the first visit on December 10, 2013 do not refer to a loss of memory. There was no loss of consciousness reported, but there was reference to blacking out for a few seconds and seeing stars for 30 minutes. Dr. Clark provided the opinion that based on these symptoms, Shaheeza may have experienced a mild concussion. On December 23, 2013, Shaheeza had an MRI of her brain, which was normal.

[131] Dr. Clark expressed his opinion that the neck injury was relatively minor. On January 7, 2014, Shaheeza was examined at the Life Mark clinic. The range of motion of her neck was recorded to be 80-90 percent. Dr. Clark noted that Shaheeza did not complain of neck pain when she was first seen by Dr. Vaidyanath on December 10, 2013. If there had been a significant injury to the neck ligaments, the symptoms would have been apparent immediately. Dr. Clark also notes that Shaheeza advised Dr. Sharif within 6 months of the accident that her neck pain had decreased 60-70 percent. She was returning to her activities. She was exercising and going out with friends. She was able to travel.

[132] Dr. Clark disagreed with Dr. Vaidyanath’s diagnosis of a facet joint problem in Shaheeza’s neck. He noted that the first diagnosis by Life Mark was of a strain at the cervical spine. There was no reference to facet joints. Dr. Clark also notes that if it was a facet joint problem, one would expect facet joint injections to provide relief. Also, there was no reference to neck pain in the first week after the incident. There was no reference to muscle spasm in the initial reports. Shaheeza had basically full range of motion of her neck by December 20, 2013. These findings, he says, are not consistent with a significant neck injury.

[133] Dr. Clark also expressed his opinion with respect to Dr. Vaidyanath’s diagnosis of central sensitization and allodynia. The reports of allodynia changed over time. On May 20, 2014, Dr. Clark testified that allodynia would not travel to different parts of the body. He opined that Shaheeza does not have central sensitization. Although he agrees the condition exists, he disagrees that it can occur as a result of a soft-tissue injury. He also does not believe the brain and central nervous system have been rewired to cause the central sensitization. He would not expect the pain to come and go. He noted that if there was central sensitization, he would not expect Shaheeza to have full passive range of movement when he examined her.

[134] Dr. Clark opined that based on his clinical assessment, Shaheeza presents with the ability to work full time as a physiotherapist.

[135] Dr. Clark reviewed the surveillance. He testified that the way Shaheeza moves is not consistent with pain or the anticipation of pain. She was seen walking with her head down, looking at her phone. This lengthens the neck muscles and is not consistent with someone who has neck pain. The surveillance in June 2020 shows Shaheeza with full range of motion of her neck for three consecutive days. She is observed chewing gum, which is inconsistent with jaw pain. The surveillance in August 2018 shows Shaheeza participating in the Mega Bounce five-kilometre obstacle race with no apparent distress. Dr. Clark noted good range of movement. He also noted that Shaheeza completed the course in 31 minutes. Her warm-up before the race was consistent with his physical examination, which was normal. There was no restriction of movement demonstrated on the surveillance.

[136] On cross-examination, Dr. Clark confirmed that not all traumatic brain injuries resolve within 12 months. He stated, however, that he would expect cognitive deficits to recover within three months. He testified that there is no evidence that Shaheeza had any cognitive impairments as a result of the injury. With respect to the surveillance footage, Dr. Clark acknowledged that Shaheeza was not observed inside her house. He concedes that she may have had bad days or difficulties in the home that were not captured on video.

THE ISSUES

[137] The Defendant admits liability for the accident. The following issues are to be determined:

a) What are Shaheeza’s non-pecuniary general damages?

b) What are the Family Law Act damages for her parents, Karim and Shaherose?

c) What are Shaheeza’s damages for past and future loss of income?

d) What are Shaheeza’s damages for care costs?

e) What are Shaheeza’s special damages?

f) What are the damages for the subrogated claims brought on behalf of Blue Cross and Alberta Health?

ANALYSIS

What are Shaheeza’s non-pecuniary general damages?

[138] The assessment of general damages requires a contextual analysis. Courts must consider the individual situation of the injured person, including the ability to function, the degree of pain and suffering, the loss in amenities and enjoyment of life, and how those losses may be addressed: see Klatt v. La Toc Holdings Limited, 2021 ONSC 2121, at para. 282.

Position of the Parties

[139] The Plaintiffs argue that before the accident, Shaheeza was a very active, motivated, and social woman who was on her way to a bright future as a physiotherapist. The injuries caused by the accident have had a profound impact on her. Although there has been improvement in some of her symptoms, Shaheeza has been left with ongoing problems, including daily headaches, frequent migraines, and neck, shoulder, and back pain. She has had extensive treatment, including hundreds of painful facet block injections. She is in a cycle where an increase in her level of functioning will be followed by increased pain, overmedication, and sleep difficulties until she finally crashes. She has been unable to pursue her career as a physiotherapist. Shaheeza has been left with no quality of life. In her closing argument, counsel for the Plaintiffs submitted that the appropriate range of general damages is $125,000-$135,000.

[140] The Defendant argues that any injuries Shaheeza may have sustained as a result of the electric shock were fairly minor. The initial diagnostic tests were normal. The MRI did not show any objective signs of injury and there was no elevation of the CK levels. The Defendant argues that the evidence of ongoing pain and limitation of function are based only on Shaheeza’s subjective complaints. The Defendant argues that her credibility is in issue in this action. The entries in her diary show activity consistent with early and frequent improvement of her symptoms. The Defendant also points to the surveillance, particularly in August 2018, which shows Shaheeza participating in the five-kilometre Mega Bounce Run without any apparent difficulty. Her ability to work at the Running Shoe clinic six days a week in the fall of 2020 is also inconsistent with ongoing pain and limitations. Defendant’s counsel submits that an appropriate assessment of general damages is $25,000.

Contextual Analysis

[141] On November 28, 2013, Shaheeza sustained an electric shock when her right hand came into contact with a damaged electrical plug. She may have hit her head when she was thrown backwards as a result of the shock. Both Dr. Vaidyanath and Dr. Clark agree that Shaheeza had concussion-like symptoms as a result of the incident. Dr. Vaidyanath provided the opinion that as a result of the electric shock, Shaheeza has chronic headaches, migraines, and sleep issues, which have persisted. It is her opinion that Shaheeza will continue to experience symptoms into the future. She does not believe Shaheeza will be able to work as a physiotherapist on a full-time basis. Dr. Clark, on the other hand, expressed the opinion that the concussion was mild. He refers to the MRI dated December 23, 2013, which was a normal study.

[142] I am satisfied that Shaheeza experienced concussion-like symptoms as a result of being electrocuted. She has been left with symptoms of headaches and migraines. Shaheeza testified that she continues to have headaches and migraines once or twice a week. I accept her evidence with respect to the frequency of these symptoms.

[143] I am also satisfied that when she was thrown backwards as a result of the electric shock, Shaheeza sustained a whiplash-type injury, which resulted in pain to her neck and jaw. The neck and jaw complaints were aggressively treated. Dr. Braithwaite carried out facet block and Botox injections. Shaheeza had injections every three months from early 2014 to the summer of 2018. As noted by Dr. Vaidyanath, those injections would have been painful. I accept the Plaintiffs’ argument that Shaheeza would not have undergone this type of treatment unless she was experiencing pain. With respect to her jaw, Shaheeza had an arthroscopic arthrodesis procedure, which involved debridement of the jaw joint. Shaheeza testified that she continues to experience pain in her jaw, neck, and shoulders.

[144] Regarding her ability to function, Shaheeza testified that the concussion symptoms and physical injuries affect her activities of daily life. Although she can still do some of her usual activities, it comes at a cost. If she is too active, her pain will increase. This starts a cycle of overmedicating and increased sleep difficulties, which continues until she eventually crashes. Shaheeza states that she has been unable to return to her pre-accident level of activity and is unable to pursue her physiotherapy career.

[145] The Defendant argues that the information in Shaheeza’s diary and the observations made during the surveillance are inconsistent with injuries that significantly impact her ability to function. The Defendant also notes that within a few months of the incident, Shaheeza had returned to exercising. In early 2014, there is reference to her cycling 12 kilometres a day. Shaheeza was able to train for and run a ten-kilometre race in the summer of 2015. The Defendant also refers to fairly extensive international travel in the years following the incident. Although Shaheeza testified that she found the travel difficult and would build in rest days, the Defendant argues that she would not have put herself in that position if she was experiencing the severity of symptoms she described.

[146] There was a significant amount of trial time dedicated to the surveillance in August 2018, when Shaheeza was observed participating in the five-kilometre Mega Bounce obstacle race. I carefully reviewed the surveillance. Shaheeza arrived at the site with her friend. She participated in the stretching exercises before the race and appeared relaxed and comfortable. She was seen laughing. There are no restrictions of movement visible. She was observed running in the race. At one point, she punched one of the obstacles out of the way. She completed the race in 31 minutes. After the race, she was observed walking normally away with her friend, wearing a backpack. She did not appear to be overly fatigued. She got in her vehicle and drove to a local restaurant.

[147] The surveillance was reviewed by the two expert doctors. Dr. Clark expressed the opinion that Shaheeza did not demonstrate any difficulties or appear to be in any distress. There was good range of movement. The observations were consistent with his physical examination, which was basically normal. Dr. Vaidyanath confirmed that in the video, Shaheeza was keeping up with others. She was not grimacing or showing any restrictions. She was able to move fluidly. Dr. Vaidyanath testified that she advised Shaheeza to get into shape and the surveillance observations are consistent with that advice. Dr. Vaidyanath stated that there was nothing about the video that surprised her.

[148] Shaheeza did not deny that she could do the activities depicted in the surveillance. She stated that she must have had a good day and that she may have paid the price with increased pain. There is no surveillance that shows Shaheeza in the days that followed. I acknowledge that a one-hour surveillance video from August 2018 does not capture the whole of her experience. However, while the Plaintiffs argue that the surveillance was on one of her good days, a more likely explanation is that the surveillance shows her general ability to function at that time. Based on the video, her ability to participate in fairly strenuous activity had improved by the summer of 2018.

[149] The activity depicted in the surveillance is also consistent with other evidence of Shaheeza’s ability to function in 2018. I note that she was more active in her travel in 2018 and 2019. She went to Mexico for a week with friends in 2018 and traveled to Iceland and Amsterdam in two separate trips in 2019. Although Shaheeza testified that the travel was difficult for her and she would build in rest days, the trip to Amsterdam was only four days and her father testified that the trip to Iceland was four to five days. There would not have been enough time to build in rest days. I conclude that Shaheeza would not have taken the trips in 2018 and 2019 unless there had been improvement in her symptoms. If she had had difficulty traveling to Iceland in the early part of 2019, it is unlikely she would have traveled to Amsterdam a few months later.

[150] The medical records also indicate an improvement in Shaheeza’s symptoms and ability to function in 2018. Dr. Braithwaite gave Shaheeza an injection on August 2, 2018. She did not attend her appointment in November 2018 and did not see him again until April 2020. She saw Dr. Kassam on October 1, 2018. She complained of heartburn and indigestion and was diagnosed with a possible hernia. There is no reference in Dr. Kassam’s notes to any complaints related to the electrocution incident. She did not have a significant amount of treatment in the 20-month period between August 2018 and April 2020.

[151] In 2018, there was also a change in Shaheeza’s ability to work. In that year, she obtained an accreditation in concussion therapy. This was a 30-hour course that she completed online over a 3-month period. I find that Shaheeza would not have pursued the concussion therapy accreditation unless she believed she could provide this treatment. In November 2018, she obtained employment as an instructor at CDI College. She was required to develop a curriculum and teach a course. Although Shaheeza testified that she struggled, her co-instructor Ms. Boux testified that Shaheeza was able to complete her share of the curriculum and that the quality of her work was good. Shaheeza’s supervisor at CDI College, Mr. Bullivant, testified that he was satisfied with her work and noted that there were no issues with her meeting deadlines. In 2019, Shaheeza reported income of $82,224.

[152] In 2018 and 2019, Khalil spoke to his sister about starting a new physiotherapy business. She was enthusiastic about assisting him. In late 2019, he registered various trade names related to the name Running Shoe; “Shoe” is Shaheeza’s nickname and Running Shoe Rehabilitation was registered by Shaheeza on November 6, 2013. Khalil also registered various names related to concussion therapy. I find that he would not have registered these names unless he expected Shaheeza would be involved in the clinic and provide concussion therapy.

[153] Shaheeza was examined by Dr. Vaidyanath on February 13, 2020. She said the job market for physiotherapists was excellent and told Dr. Vaidyanath that she wanted to open her own clinic but needed financial assistance. In February 2020, Khalil entered into a lease for space to operate a physiotherapy clinic. In the spring of 2020, Shaheeza advised Mr. Bullivant that she was leaving CDI College to start her own physiotherapy clinic.

[154] Shaheeza played an active and important role in the start-up and operation of the Running Shoe clinic. In the spring of 2020, she developed promotional videos with the help of Mr. Belcastro in which she demonstrates certain stretches and exercises. She has no apparent difficulty in carrying out those movements. At the same time, she assisted her brother with the registration of the Running Shoe clinic with Physiotherapy Alberta. She represented that she was the owner of the clinic. Although she may not have been the legal owner, her activity has been consistent with being an owner and operator. In addition to dealing with the government agency, she developed the website, she hired the assistant, Mr. Belcastro, she interviewed and hired Mr. Augustine, she performed administration tasks and reception. When the Running Shoe clinic opened, Shaheeza was the only licensed physiotherapist on staff and was responsible for providing the physiotherapy and concussion therapy treatment and supervising the assistants.

[155] Shaheeza demonstrated an ability to work full-time at the Running Shoe clinic. Although she testified that she had good days and bad days, she was able to consistently work six days a week in the fall of 2020. Mr. Belcastro testified that Shaheeza was at the clinic before the first patient arrived and after the last patient left. In October and November 2020, she was seeing seven or eight patients a day. She was able to generate close to $50,000 in billings over a four-month period. Her patients, who testified at trial, stated that Shaheeza provided excellent physiotherapy treatment. In addition, there are many positive Google reviews of her physiotherapy treatment. This evidence is not consistent with Shaheeza’s testimony that she was limited in the treatment she could provide.

[156] I find that the Plaintiffs were not forthcoming about Shaheeza’s involvement with the Running Shoe clinic. She was examined for discovery in 2016. She did not change her answers with respect to her ability to work as a physiotherapist. The Defendant learned through an internet search a few months before trial that Shaheeza was involved in the Running Shoe clinic. On the internet, there is reference to the services provided by Shaheeza and reviews of her work. The Defendant was required to bring two motions to obtain information about her involvement in the Running Shoe clinic.

[157] Shaheeza testified that she had increased symptoms during the fall of 2020. She stated that she felt “depleted” at the end of the day. She said working at the Running Shoe clinic resulted in the worst pain of her life. She told her parents the pain was so bad that she did not feel like living. I do not find this evidence to be credible. Shaheeza was able to consistently work at the clinic six days a week. She was able to provide good treatment to her patients. Although her parents were very active with her care, they did not take her to a hospital or a doctor when she told them how she felt. Her brother did not close the clinic or hire anyone on a temporary basis to assist his sister. Also, Shaheeza’s complaints of increased symptoms in the fall of 2020 are not consistent with the medical documentation. On December 28, 2020, Dr. Gupta noted that there had been “quite a bit of an improvement in her cervicogenic headaches.” There was no increase in her medical treatment.

[158] I find that although Shaheeza continued to experience some level of pain in the fall of 2020, it did not affect her ability to function at work. She was able to consistently work full-time hours until January 2021. Although she may have stopped seeing patients at that time, she would have remained actively involved in the clinic because she was the only fully licensed physiotherapist and was responsible for supervising Mr. Belcastro and Mr. Augustine. Her mother testified that Shaheeza stopped working to prepare for the trial.

Case Law

[159] While the assessment of general damages is dependent upon the specific circumstances of each case, courts must also strive for consistency in assessments: see Klatt, at para. 283. Plaintiffs’ counsel referred to several cases to provide guidance on the appropriate range of general damages.

[160] In Place v. Ali, 2007 CanLII 23598 (Ont. S.C.), the plaintiff was 23 years old at the time of the motor vehicle accident. She experienced chronic pain in her neck, upper back, shoulders, low back, and hip. She also experienced an inner ear disorder. The court found that her injuries would substantially interfere with her enjoyment of life and her ability to do those things required of a young mother and wife. There was a significant possibility that her ability to find and maintain employment would be compromised. The general damages assessment was $125,000, net of the deductible of $15,000.

[161] In Pomeroy v. Misljencevic, 2016 ONSC 5867, the plaintiff was 44 years of age at the time of the accident. She experienced headaches and chronic pain in her neck, upper back, and shoulder, as well as limited range of motion in her neck. She explored a number of treatment options without any success. The court found that future improvements were unlikely. The general damages assessment was $140,000.

[162] The Defendant argues that the cases referred to by Plaintiffs’ counsel have no application. Here, there is evidence of improvement of Shaheeza’s symptoms. Her work at the Running Shoe clinic in the fall of 2020 shows a significant ability to function. The Defendant did not refer to any cases with respect to the assessment of general damages.

Summary – General Damages

[163] I am satisfied that Shaheeza sustained a serious injury when her hand came into contact with the damaged electrical plug. She received an electric shock. She was knocked backward. She sustained concussion-like symptoms. Her initial symptoms included ringing in her ears, vision problems, and difficulty with concentration and memory. Some of the initial symptoms resolved; however, she has been left with headaches and migraines. In addition to the concussion-like symptoms, Shaheeza also had pain in her jaw, neck, shoulders, and back. She had a surgical procedure for her jaw and hundreds of painful nerve injections.

[164] I find that Shaheeza’s condition gradually improved. By 2018, she was demonstrating a good level of function. She completed a 30-week course in concussion therapy. She was able to participate in a five-kilometre obstacle course race. She went on several international trips in 2018 and 2019. Her level of treatment decreased, and she discontinued the regular nerve injections with Dr. Braithwaite in 2018. In the fall of that year, Shaheeza obtained employment with CDI College and worked on a full-time basis as an instructor. In the spring of 2020, she left CDI College to start a physiotherapy clinic with her brother. In 2020, she was actively involved in providing physiotherapy and concussion therapy to patients, as well as performing administrative tasks at the Running Shoe clinic.

[165] I accept Shaheeza’s evidence that she continues to have ongoing subjective complaints with respect to headaches, migraines, and neck pain. I do not accept her evidence that she continues to experience a significant limitation of function. Since the summer of 2018, she has been able to function with very few restrictions. In 2018 and 2019, she was able to work on a full-time basis as an instructor at CDI. In 2020, she was able to work as a physiotherapist at the Running Shoe clinic. I find that she stopped working at the clinic at the end of 2020 not because of her symptoms, but to prepare for this trial.

[166] In the circumstances of this case, I assess the general damages at $100,000.

What are the Family Law Act damages for Karim and Shaherose?

[167] Shaheeza’s parents advance a claim for damages for loss of care, guidance, and companionship pursuant to s. 4 of the Family Law Act (“FLA”). Counsel for the Plaintiffs argues that Karim and Shaherose have lost the benefit of their relationship with their daughter. Both parents testified that Shaheeza is not the same as she was before the accident. Instead of being independent, they are now required to provide care and supervision to their adult child. They provide physical treatment to her neck and back on a nightly basis. Counsel submits that an appropriate assessment of the FLA damages is $25,000-35,000 for each parent.

[168] Counsel for the Defendant argues that there has been no negative change in the relationship between the parents and their daughter. At the time of the accident, Shaheeza was living and working in Toronto. Although Shaherose stated that she would text or phone her daughter every day, they did not see her frequently. Since the accident, she moved back to Calgary and is now living with her parents. Counsel for the Defendant argues that the family may be closer now than before the accident. Counsel submits that an appropriate assessment of the FLA damages is $7,500 each.

[169] Karim and Shaherose provided evidence about how they are required to care for their daughter. They massage and rub cream onto her neck. Shaherose learned the cupping technique, which she uses on Shaheeza’s neck and back. The parents testified that they provide some sort of treatment almost every night. The Plaintiffs argue that the parents should be compensated for the medical care they have provided to their daughter. It is submitted that each parent provides about one hour of treatment a day. I find that both parents provide some assistance to their daughter. I also find that Shaherose provides additional treatment to her daughter with the cupping treatment.

[170] I am satisfied that both parents suffered a loss as a result of the injuries to their daughter. I asses the FLA damages for loss of care, guidance, and companionship for Karim at $25,000. I assess the FLA damages for Shaherose at $35,000.

What are Shaheeza’s damages for past and future loss of income?

Past Loss of Income

[171] At the time of the accident, Shaheeza was 27 years of age. She was pursuing a career in physiotherapy and her goal was to one day operate her own clinic. After obtaining her master’s degree in physiotherapy, she completed her residency in Alberta. She moved to Toronto and obtained employment at CARC. She was seeing 20-30 patients a day. In September 2013, she started working at Infinity Health. The clinic was described as a leading private health clinic. In the almost 11 months before the accident, she earned approximately $48,000 from CARC and Infinity Health. On an annualized basis, this is almost $54,000.

[172] Paul Greenhow is a forensic accountant and was called by the Plaintiffs to provide expert evidence on the calculation of the loss of income claim. The Defendant did not call any evidence with respect to the calculation of the loss of income claim. Mr. Greenhow was tendered as an expert in forensic accounting. I am satisfied that he has specialized knowledge in the field of accounting. He was qualified as an expert and permitted to provide opinion evidence with respect to the economic claims. I found his evidence to be helpful.

[173] Mr. Greenhow assumes that if the accident had not occurred, there would have been a gradual increase in Shaheeza’s income in the amount of $8,000 a year for five years. At that point, her income would level off and then increase basically at the rate of inflation. Mr. Greenhow assumes that if the accident had not occurred, Shaheeza would have been earning $91,000 a year at the time of trial, which is the average earnings of physiotherapists in Canada. He calculates her pre-accident earning capacity for the period from November 28, 2013 to the commencement of trial to be $573,200. The pre-accident earning capacity from the date of the accident to when she obtained full-time employment at CDI College in November 2018 was approximately $430,000.

[174] Shaheeza did not have consistent earnings from the date of the accident until she obtained employment at CDI College in November 2018. I am satisfied that over this period, she was unable to work on a full-time basis. She did some casual work for her brother’s law firm. She did not make a significant amount of money and did not report the earnings on her income tax returns. She worked on a part-time basis at McKnight Physiotherapy for approximately one and a half years. Shaheeza testified that she had a benevolent employer whose daughter also had medical issues. She then worked part-time at Imagine Health. Mr. Greenhow calculated that Shaheeza earned a total of $46,234 from McKnight Physiotherapy and Imagine Health from September 2015 to September 2018.

[175] Shaheeza worked on a full-time basis with CDI College starting in November 2018. In 2019, she reported income in the amount of $82,224. I am satisfied the level of income she earned in 2019 is similar to what she would have earned as a physiotherapist in 2019 if the accident had not occurred.

[176] In 2020, Shaheeza left CDI College to assist her brother in the physiotherapy clinic. The level of income she earned at the Running Shoe clinic is difficult to determine. She was able to generate billings of $48,235 from the end of August 2020 to the end of December 2020. Khalil testified that he will pay his sister a percentage of her billings. He suggested it will be less than 50 percent because she is unable to work on a full-time basis. Mr. Greenhow was not provided with the hours of work or the billings Shaheeza generated at the clinic in 2020.

Past Loss of Income – Summary

[177] I am satisfied that Shaheeza was unable to work on a full-time basis for a period of five years following the accident. From the date of the accident to the date she obtained employment at CDI College, her pre-accident earning capacity was approximately $430,000. Over this period of time, she earned $46,234 from McKnight Physiotherapy and Imagine Health, resulting in a loss of $383,766.

[178] I find that while at CDI College, Shaheeza earned the same amount that she would have earned as a physiotherapist if the accident had not occurred. I find also that she left CDI College to assist her brother in starting up the Running Shoe clinic. This was her stated career goal. In February 2020, she told Dr. Vaidyanath that she wanted to start her own clinic but needed financial assistance. In the spring of 2020, she told Mr. Bullivant she was leaving CDI College to start her own physiotherapy clinic.

[179] The income earned by Shaheeza in 2020 at the Running Shoe clinic was less than what she earned as an instructor at CDI College or what she could have earned as a full-time employee at a physiotherapy clinic. However, in starting a new clinic, her income would be expected to be less as she built up the business. I am of the view that the reduction in her income in 2020 was related to the exigencies of opening a new practice during the pandemic, as opposed to the injuries she sustained in the accident. I find that she would have experienced a decrease in her income when she started her own clinic even if the accident had not occurred.

[180] The past loss of income claim is subject to positive and negative contingencies. Plaintiffs’ counsel argues that in taking into account Shaheeza’s pre-accident earning capacity, the amount she earned from the various jobs she worked between the date of the accident and the date of trial, and the contingencies involved in starting up a new physiotherapy practice, the reasonable assessment of the past loss of income claim is in the range of $375,000-400,000. Counsel for the Defendant did not provide any submissions as to the assessment of the past loss of income claim.

[181] I assess the past loss of income claim at $375,000.

Future Loss of Income

[182] With respect to future claims, the plaintiff must prove that there is a reasonable possibility of a future loss occurring. The future possibilities must be realistic; fanciful possibilities can be removed from consideration: see Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 82 D.L.R. (3d) 553 (Ont. C.A.).

[183] Before the accident, Shaheeza’s goal was to own and operate a physiotherapy clinic. She testified that she comes from a family of entrepreneurs. She decided to pursue a career in physiotherapy because she felt this was the best route to opening her own clinic.

[184] In 2020, Shaheeza left CDI College to assist her brother in the Running Shoe clinic. She was involved in all aspects of the business. She registered the clinic with Physiotherapy Alberta and represented that she was a part-owner of the clinic. Although she may not have been a legal owner, I find that her role was akin to that of an owner/operator. She was, and may still be, the only licensed physiotherapist at the clinic and is responsible for supervising Mr. Belcastro, and Mr. Augustine, who currently has a provisional licence. She has been involved in the marketing and administration of the clinic. She has provided physiotherapy and concussion therapy services, generating billings of $48,235 from the end of August 2020 to the end of December 2020. Khalil has not paid Shaheeza for her work. This suggests that she was treated more as an owner who shares in the profits and losses of the business than as an employee.

[185] Shaheeza testified that she found the physical aspect of providing physiotherapy treatment to be taxing. She stated that the fall of 2020 was a difficult period for her. She said she would feel “depleted” at the end of a workday. Dr. Clark provided the opinion that Shaheeza has the physical capacity to work full time as a physiotherapist. Dr. Vaidyanath testified that Shaheeza would not be able to sustain full-time competitive work as a physiotherapist in the “traditional sense”. Dr. Vaidyanath did not opine that Shaheeza would be unable to perform the administrative work involved in operating a physiotherapy clinic. She also did not provide the opinion that Shaheeza was unable to provide concussion therapy.

[186] Shaheeza obtained a certificate to provide concussion therapy in 2018. In November 2019, her brother registered several trade names that specifically included the word “concussion”. I find that it was part of the business plan that Shaheeza would provide concussion therapy at the clinic. In the fall of 2020, Shaheeza gradually built up her concussion therapy practice. I note that on December 29, 2020, of the 11 patients she treated, 10 were treated for concussion therapy. Shaheeza testified that concussion therapy is less physically taxing than physiotherapy treatment. It also pays better. She receives $200 per session for concussion therapy as opposed to about $100 for physiotherapy.

[187] Plaintiffs’ counsel states that Shaheeza is qualified in concussion therapy and should be able to provide this treatment. She suggests that it is reasonable that Shaheeza could see nine patients a week, the same number she saw while working at McKnight Physiotherapy. It is my view that the Plaintiffs’ estimate of the number of patients Shaheeza could treat is low and not consistent with the evidence. There has been improvement in Shaheeza’s condition since she worked at McKnight Physiotherapy. In addition, at McKnight Physiotherapy, Shaheeza was providing physiotherapy treatment, which is more physically demanding than concussion therapy. I note that Shaheeza saw 10 concussion patients on a single day on December 29, 2020.

[188] I find that Shaheeza is pursuing her pre-accident goal to operate her own physiotherapy clinic. Since leaving CDI College in 2020, she has been fully involved in all aspects of the business, including providing physiotherapy and concussion therapy treatment. Her billings gradually increased as the clinic built up its patients and as she developed the more lucrative concussion therapy practice. I find she is in the same position she would have been in if the accident had not occurred. There is no medical opinion that provides that she will be unable to manage the business or provide non-traditional physiotherapy services, such as concussion therapy. In fact, Dr. Clark provided the opinion that based on his clinical assessment on February 11, 2020, Shaheeza presents with the ability to work full time as a physiotherapist

[189] I find that the Plaintiffs have not established that there is a reasonable possibility of a future loss of income. I assess this claim at nil.

What are Shaheeza’s damages for care costs?

[190] The Plaintiffs called Matthew Rose, an occupational therapist and Certified Life Care Planner. I am satisfied that Mr. Rose has specialized knowledge in the field of occupational therapy and life care planning. He was qualified as an expert and permitted to provide opinion evidence with respect to the cost of future care. The Defendant did not call a Life Care Planner.

[191] I found Mr. Rose’s evidence to be of limited assistance. Unfortunately, he did not meet personally with Shaheeza or conduct an in-home assessment. He interviewed Shaheeza by phone in November 2020, when he prepared his second report. She did not tell him she was working at the Running Shoe clinic. He concedes that he did not know the type of work she was doing or the hours she was working in the fall of 2020. Although he was not provided with information about her ability to work at that time, he maintained in cross-examination that her ability to work did not affect his opinion with respect to housekeeping or care costs. In argument, Plaintiffs’ counsel submitted that the court could apply a significant discount in the figures presented by Mr. Rose. Defendant’s counsel argued that the proposed discount is a recognition that Mr. Rose’s opinion is unreliable.

[192] I will review each of Mr. Rose’s recommendations.

Medical Rehabilitation

Vocational Assessment

[193] Dr. Vaidyanath recommends that Shaheeza seek out a vocational assessment to assist her in exploring more sedentary career options within her field of physiotherapy. Mr. Rose provided the cost for a vocational assessment and labour market research report in the amount of $3,000. The vocational counselling is in the amount of $250 per session for 12 sessions.

[194] This recommendation was made before Shaheeza started working at the Running Shoe clinic. Mr. Rose testified that he believes it is unlikely Shaheeza can sustain work at this level and that she will require a vocational assessment in the future. Mr. Rose is not a medical doctor. He conceded that he was not aware of the type of work or the hours Shaheeza was working at the Running Shoe clinic at the time he prepared his report. He was not aware that she was performing more concussion therapy, which is less physically demanding than physical therapy.

[195] I am of the view that the vocational assessment is not medically required. Dr. Vaidyanath’s recommendation for a vocational assessment is set out in her report dated August 21, 2017. After that date, Shaheeza determined that she could provide concussion therapy. She took a 30-hour course over a 3-month period to obtain the necessary qualifications. She was able to provide concussion therapy treatments at the Running Shoe clinic. I find that Shaheeza, on her own, determined her other career options and took active steps to pursue them.

Cognitive Behavioural Therapy

[196] Dr. Vaidyanath recommends that Shaheeza pursue Cognitive Behavioural Therapy (“CBT”). She did not say how much treatment is required. Mr. Rose suggests that an initial assessment in the amount of $2,500, plus 3 blocks of 12 treatments, may be appropriate. The total cost assessed by Mr. Rose is $9,340.

[197] Shaheeza has not pursued CBT in the seven years since the accident. Her family doctor did not make a recommendation of CBT. There is no report from a psychologist or psychiatrist as to the amount of treatment that may be necessary. I am of the view that the Plaintiffs failed to prove that CBT is medically necessary.

Occupational Therapy/Cognitive Rehabilitation

[198] Dr. Vaidyanath recommended that Shaheeza have an occupational therapy assessment to determine the assistive devices that may be most helpful to her. This recommendation is supported by Dr. Clark. I am satisfied that a single occupational therapy session with respect to assistive devices is a reasonable expense. The cost of one 3.5-hour session at $120 an hour is $420.

[199] Mr. Rose opined that the annual cost for cognitive rehabilitation therapy is $1,080. I am not satisfied that Shaheeza requires cognitive rehabilitation therapy. Although there were initial reports of cognitive issues, those complaints improved over the first few months after the accident. Dr. Vaidyanath testified at trial that cognitive therapy is not required.

Physiotherapy

[200] Shaheeza has had no formal physiotherapy treatment since the Momentum Health clinic in 2015. She testified that she can do her own stretching and exercises at home. She demonstrated her ability to stretch in the surveillance video in August 2018 and the promotional videos she prepared for the Running Shoe clinic in February 2020. Dr. Vaidyanath noted that in February 2020 Shaheeza was not undergoing any formal therapy.

[201] Dr. Clark provided the opinion that Shaheeza has a minor degree of persisting soft-tissue symptoms in her neck and shoulder area. I am satisfied that the ongoing soft-tissue symptoms do not prevent Shaheeza from working full-time at the Running Shoe clinic and providing concussion therapy treatment. Although concussion therapy is less physically taxing than physical therapy, I am satisfied that with full-time work, Shaheeza may have ongoing soft-tissue symptoms. Physiotherapy will allow her to continue to work on a full-time basis and to participate in her usual activities.

[202] Shaheeza’s parents, particularly Shaherose, are providing some massage and cupping treatment at the present time. It is not reasonable to expect that her parents will be able to provide this treatment indefinitely. Mr. Rose has provided a costing based on 12 sessions a year at $90 per hour. The annual cost is $1,080. I find that the cost of physiotherapy in the amount of $1,080 per year to age 75 is reasonably required.

Medications

[203] Shaheeza continues to use medication for her pain complaints. Based on the prescription summaries, she took Naproxen, an anti-inflammatory, and Gabapentin for pain. She also took Maxalt as a prophylactic for her migraines. Shaheeza has stated an interest in continuing with the Botox injections. In addition, she uses cannabinoids for pain and to help her sleep.

[204] Shaheeza has had infrequent Botox injections since she discontinued the regular treatment with Dr. Braithwaite in the summer of 2018. Since that time, she had two injections from Dr. Braithwaite in the spring of 2020 and two injections from Dr. Gupta in the fall of 2020. I note that since discontinuing the regular injections with Dr. Braithwaite, Shaheeza has been able to participate in more physical activity and full-time work. I am not satisfied that ongoing Botox injections are medically necessary.

[205] Shaheeza testified that she continues to use pain medications. Dr. Vaidyanath noted that in February 2020 Shaheeza was using cannabis. With full-time work at the Running Shoe clinic, I expect she will continue to experience soft-tissue symptoms. I am satisfied that pain medication is medically justified. The annual cost of the pain medication, including five grams of cannabinoids per month, is approximately $1,000.

[206] In Ontario, the future cost of medications is limited to age 65, at which point the Ontario Drug Plan will pay for ongoing prescription costs. There was no evidence or submissions with respect to whether Alberta has a similar plan. I order the future cost of medications payable to age 65.

Housekeeping

[207] Shaheeza lives with her parents. She is not currently required to do any housework. She is not advancing a claim for pre-trial housekeeping costs.

[208] At some point, Shaheeza will move out of her parents’ house and be required to perform her own housekeeping. Dr. Vaidyanath stated that Shaheeza is independent in light housework. Mr. Rose provides the opinion that Shaheeza requires assistance with housekeeping, grocery shopping, and outdoor maintenance. He assumed that she can perform 75 percent of the housework and will require assistance with housekeeping for 3 hours a week at $35 per hour. The annual cost is $5,460. He also stated that Shaheeza may require assistance with outdoor and handyman tasks.

[209] I find that Shaheeza will work on a full-time basis at the Running Shoe clinic. She was working fairly long hours in the fall of 2020. Mr. Belcastro testified that she arrived at the clinic before the first patient and stayed until after the last patient left. I expect Shaheeza may have required some housekeeping assistance because of her long hours of work even if the accident had not occurred.

[210] Shaheeza testified that when working at the clinic in the fall of 2020, she felt “depleted” at the end of the day. I am satisfied that although Shaheeza has demonstrated a fairly good level of function, with full-time work she will experience soft-tissue symptoms. I am satisfied that she will require some housekeeping assistance to allow her to continue to work and participate in her recreational activities. The Defendant did not introduce any evidence or make any submissions as to the reasonable amount for future housekeeping.

[211] I find that Shaheeza is entitled to future housekeeping assistance in the amount of $2,500 a year. This is payable to age 75, when she would have likely required housekeeping assistance even if the accident had not occurred.

Personal Care

[212] Shaheeza is independent in her personal care and does not require any assistance.

Loss of Childcare Abilities

[213] Mr. Rose did not address the issue of childcare in his first report dated October 26, 2017. He agreed in cross-examination that he did not consider it an important issue at that time. He conceded that his opinion with respect to the loss of childcare was “assumption heavy”. In her closing argument, Plaintiffs’ counsel conceded that the caregiving claim is too speculative, and it was abandoned.

Assistive Devices

[214] Since the accident, Shaheeza has used several assistive devices. In February 2020, Dr. Vaidyanath noted that Shaheeza was using a handheld massager; a shepherd’s hook for myofascial release and an in-home TENS machine. She was observed using a shepherd’s hook to massage her back and shoulder area during her testimony. I note that she was not observed using any assistive devices in the surveillance, which took place in August 2018 and June 2020. Mr. Rose provided a costing of the recommended medical devices.

i) Occlusion Splint – annual cost $250

[215] The occlusion split is for Shaheeza’s TMJ complaints. I note that Shaheeza had successful arthroscopic surgery on her jaw in 2016. There were no complaints of jaw pain to her doctors after the surgery. Shaheeza was observed chewing gum on the surveillance, which is inconsistent with ongoing jaw pain. She has not been required to purchase an occlusion splint to date. It is my view this is not a medically reasonable expense.

ii) Traction Unit – annual cost $30

[216] There was little evidence at trial with respect to a traction unit. Dr. Vaidyanath stated in her 2020 report that Shaheeza stopped using the traction device because it was no longer providing assistance. I find this is not a medically reasonable expense.

iii) TENS Machine – annual cost $15

iv) TENS Supplies – annual cost $20

v) Massage (Handheld) – annual cost $20

vi) Foam Roller for Neck and Shoulders – annual cost $20

vii) Cupping Set – annual cost $60

viii) Lacrosse Ball – annual cost $5

[217] I am satisfied that Shaheeza used the TENS machine, handheld massager, foam roller, and lacrosse ball. Dr. Vaidyanath noted that Shaheeza was using the handheld massage and TENS machine in February 2020. Her mother testified at trial that she provided cupping treatment. Dr. Clark provided the opinion that a TENS unit could be considered for Shaheeza’s soft-tissue symptoms in her neck and shoulder. I find that these items are medically reasonable expenses. The total annual cost for these devices is $140.

ix) Theragun – annual cost $60

[218] Dr. Vaidyanath stated in her 2020 report that Shaheeza stopped using the Theragun device because it was no longer proving assistance. I find this is not a medically reasonable expense.

x) Shepherd’s Hook – annual cost $6

xi) Gel Packs – annual cost $30

[219] Shaheeza was observed using the shepherd’s hook during her testimony at trial. I am satisfied the shepherd’s hook and gel packs are medically reasonable expenses. The annual cost is $36.

xii) Ergonomic Chair – annual cost $50

[220] Mr. Rose testified that the annual cost of an ergonomic chair is $50 per year. Even if Shaheeza had not been involved in an accident, she would have required a desk chair. She would only be entitled to claim the extra cost to obtain an ergonomic chair as opposed to a standard chair. There is no evidence as to the cost of a standard chair and therefore I am unable to determine the extra cost of an ergonomic chair. The Plaintiffs failed to prove this expense.

xiii) Screen Filter to Reduce Computer Glare – annual cost $43

[221] There is no opinion from a doctor that a screen filter is medically necessary.

xiv) Stand/Sit Desk – annual cost $40

[222] Mr. Rose testified that the annual cost of a stand/sit desk is $40 per year. Even if Shaheeza had not been involved in an accident, she would have required a desk. She would only be entitled to claim the extra cost to obtain a stand/sit desk as opposed to a standard desk. There is no evidence before me as to the cost of a standard desk and I am unable to determine the extra cost of the stand/sit desk. The Plaintiffs failed to prove this expense.

xv) Cervical Pillow – annual cost $16.70

[223] As in the case of the ergonomic chair and stand/sit desk, Shaheeza would have required a pillow even if the accident had not occurred. She is entitled to only the difference between a regular pillow and a cervical pillow. There was no evidence with respect to the difference in price. The Plaintiffs failed to prove this expense.

xvi) Prescription Sunglasses – annual cost $300

[224] Shaheeza was observed wearing sunglasses during her testimony. She saw Dr. Thompson for issues with her eyes on a single occasion in February 2014. He prescribed prescription sunglasses. The Defendants did not put forward any evidence with respect to the cost of prescription sunglasses. I am satisfied this is a medically reasonable expense. The annual cost is $300.

xvii) Earbuds – annual cost $20

xviii) Noise Cancelling Headphones – annual cost $8

[225] Shaheeza would have likely purchased earbuds or noise cancelling headphones even if the accident had not occurred. I find these costs are not medically reasonable.

xix) Reclining Couch – annual cost $40

[226] Shaheeza would have required a couch even if the accident had not occurred. I find that this is not a medically reasonable expense.

Care Costs – Summary

[227] I conclude that Shaheeza is able to work at the Running Shoe clinic on a full-time basis, doing administrative work and providing concussion therapy. With full-time work, she will continue to experience symptoms, including soft-tissue neck and shoulder complaints. I am satisfied that she will require medication, assistive devices, physiotherapy, and housekeeping assistance to allow her to continue to work and participate in her leisure activities.

[228] Mr. Greenhow testified that the multiplier to age 65 is 27.2802. The multiplier to age 75 is 32.481. The Defendants did not take issue with the multipliers proposed by Mr. Greenhow. I assess the Shaheeza’s care costs as follows:

Medical/Rehabilitation Expenses

OT Assessment

One-time cost

$420.00

Physiotherapy

Annual cost to age 75

$1,080.00

Present value

$35,079.48

Medications

Annual cost to age 65

$1,000.00

Present value

$27,280.20

Housekeeping

Annual cost to age 75

$2,500.00

Present value

$81,202.50

Assistive Devices

Annual cost to age 75

$476.00

Present value

$15,460.96

[229] I assess the total amount for the cost of care costs at $159,443.14.

What are the Plaintiffs’ special damages?

[230] The Plaintiffs are claiming for out-of-pocket expenses in the amount of $24,489.35. The Plaintiffs were not cross-examined with respect to the special damages and there was no evidence to contradict the amount claimed. I am satisfied that the expenses incurred are reasonable and I award special damages in the amount of $24,489.35.

What are the subrogated damages?

[231] Blue Cross is advancing a subrogated claim for the cost of medical care in the amount of $7,175.52. Alberta Health is advancing a claim in the amount of $16,714.72. The Defendant does not dispute these amounts. I am satisfied that the Plaintiffs are entitled to advance claims on behalf of Blue Cross and Alberta Health. I award damages for the subrogated claims in the amount of $23,890.24.

DISPOSITION

[232] I grant judgment in favour of the Plaintiffs and order the Defendant to pay the following damages:

General Damages

Shaheeza Haji

$100,000.00

Family Law Act Damages

Karim Haji

Shaherose Haji

$25,000.00

$35,000.00

Past Loss of Income

$375,000.00

Future Care Costs

$159,443.14

Special Damages

$24,489.35

Subrogated Claims

$23,890.24

Total

$742,822.73

[233] The Plaintiffs are entitled to pre-judgment interest on the past claims in accordance with s. 128 of the Courts of Justice Act, R.S.O. c. C.43. If the parties are unable to agree on the amount of pre-judgment interest payable on the award of damages, the Plaintiffs may deliver written submissions with respect to the calculation of pre-judgment interest of no more than 3 pages in length, excluding case law, within 21 days of the date of these Reasons. The Defendant may deliver its written submissions in reply on the same basis within 21 days of receiving the Plaintiffs’ submissions.

[234] The Plaintiffs were successful in the action and are presumptively entitled to their costs. Before I released my Reasons, I received Bills of Costs from the parties. The Bill of Costs of the Plaintiffs is in the amount of $233,099.13 for counsel fee on a partial indemnity basis, $30,302.89 in HST, and $126,103.74 in disbursements. The Bill of Costs of the Defendants is in the amount of $114,930 for counsel fee on a partial indemnity basis, $14,940.90 in HST, and $94,667.19 in disbursements. If the parties are unable to agree on costs, the Plaintiffs may deliver written submissions of no more than 5 pages, excluding case law and offers to settle, if any, within 21 days of the date of these Reasons. The Defendant may deliver its written submissions in reply on the same basis within 21 days of receiving the Plaintiff’s submissions.

DATE: July 12, 2021

Haji v. Infinity Health Centre, 2021 ONSC 5077

Case Summary

OVERVIEW

PRELIMINARY MATTER

THE EVIDENCE

THE ISSUES

ANALYSIS

DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 1