COURT FILE NO.: 3411/14
DATE: 20211007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDRABALA SOLANKI by her litigation guardian ANITA SOLANKI and SANJAY SOLANKI
Plaintiffs
– and –
BETH ANNE REILLY
Defendant
Dagmara Wozniak, James Mays, for the Plaintiffs
Kieran Dickson, for the Defendant
HEARD: February 3, 4, 5, 8, 9, 10, 11, 12, 17, 18 and 22, 2021 via Zoom
TRANQUILLI j.
Introduction
[1] The plaintiffs are two members of a multi-generational household of grandparents, parents and children. On December 25, 2012, the family of six celebrated the holiday with a sightseeing daytrip. The holiday excursion led to a collision with the defendant vehicle in Niagara Falls, Ontario. This accident ostensibly caused years of struggle for the family as a result of disabling injuries to the two plaintiffs, grandmother Chandrabala Solanki and her adult son, Sanjay Solanki. They seek compensation for their injuries in this action.
[2] The central issue in both claims is whether the accident caused each plaintiff injuries that entitle them to damages pursuant to the Insurance Act, R.S.O. 1990, c. I.8, as amended. In that assessment, questions as to reliability and credibility bubble to the surface.
The Accident
[3] The plaintiff Sanjay Solanki drove the Solanki family from London to Niagara Falls in his 2002 Honda Odyssey minivan. His then 62-year old mother, the plaintiff Chandrabala Solanki was seated in the passenger seat immediately behind him. Also, in the vehicle were his wife, Anita Solanki, their two young children, Devin and Dhrupti and his father Ramesh Solanki.
[4] The family stopped in an outlet mall parking lot at the intersection of Lundy’s Lane and Belmont Avenue in Niagara Falls. On leaving the parking lot, the Solanki vehicle made a left turn on a green light through the intersection and was struck on the front driver side by a 2012 Dodge Nitro driven by the defendant Beth Anne Reilly. It was a low speed collision with minimal damage to both vehicles. The Solanki vehicle was driveable. Neither plaintiff sought immediate medical attention. The rest of the Solanki family were uninjured. Sanjay Solanki drove his family back home in the same minivan to London that same day. He and his mother felt sore. Each took a Tylenol and went to bed.
[5] Chandrabala Solanki had bruises to her chest the next morning and was in pain in her left shoulder, neck and back. Sanjay Solanki awoke with pain in his neck, right shoulder, and low back, radiating into his right leg. Mr. Solanki took himself and his mother to a local hospital. His mother was seen and treated; however, Mr. Solanki opted to leave without being seen due to the wait times. He sought medical attention over the next few days; first at a walk-in clinic and then with his family physician.
Positions of the Parties
Sanjay Solanki
[6] Sanjay Solanki claims non-pecuniary damages for pain and suffering and pecuniary damages for loss of income and future care. He claims the accident caused soft tissue injuries which have resulted in chronic pain syndrome and depression that have disabled him from his lifelong vocation as a Brinks security technician. He submits he has sustained a permanent serious impairment of an important physical, mental or psychological function, such that he is entitled to recovery general damages for pain and suffering and his health care expenses pursuant to s. 267.5(3) and (5) of the Insurance Act.
[7] Mr. Solanki admits he experienced episodic low back pain in the five years before the accident. However, those episodes resolved and did not disrupt his employment. The accident caused serious injuries to his back from which he has been unable to recover despite his extensive efforts at rehabilitation. A workplace injury in 2015 caused a temporary exacerbation of his back pain; however, this was no more than a “blip” and he returned to his baseline post-accident chronic pain within several weeks. He struggled to continue work. He changed positions within Brinks. He relied on benevolent co-workers to take on the heavier demands of his job. However, by 2018, he could not carry on and has been on medical leave. He is disabled from employment and unable to engage in his regular responsibilities and interests.
[8] The defendant submits the court cannot rely on Mr. Solanki’s subjective complaints. He is not entitled to general damages or health care expenses as he has not sustained a permanent serious impairment of an important physical, mental or psychological function. His income loss and pecuniary claims are also not supported by the objective evidence.
[9] The defendant claims Mr. Solanki minimized his well-documented pre-accident troubles with “insidious” low back pain. The collision would only have produced soft tissue injuries at most. The contemporaneous records demonstrate he made a full functional recovery from those minor injuries and returned to work within three months of the collision. He continued to work for the next two years without restriction or incident. His subsequent difficulties at work are no more than the progression of his pre-existing back problems. Just as the 2015 workplace injury caused only a “blip” in his back problems, the accident was also only a “blip”. His claim of disability is irreconcilable with his ability to take on a second job in retail in 2017. There is no reasonable explanation for his sudden stoppage of work in 2018, five years after the accident. The only plausible reason is the plaintiff went off work as a litigation tactic when this action was previously scheduled for trial that year. He also enlisted his co-workers to fabricate and coordinate their testimony to support his claim.
Chandrabala Solanki
[10] Chandrabala Solanki claims non-pecuniary general damages for pain and suffering and damages for attendant care and loss of housekeeping. The accident caused a left rib fracture and injuries to her neck, low back and left shoulder. She needed surgery to her left shoulder on 2015. Before the accident, the focus of her life was cooking meals for the family, caring for her family and daily housework. The accident robbed her of the ability to carry on these duties and reduced her to relying on family and friends for her self-care. She then suffered a stroke in 2017. She concedes this unrelated medical event limits her damages claim, but maintains she nevertheless sustained a permanent serious impairment of an important physical function as a result of the accident.
[11] The defendant submits the accident did not cause any injuries to Mrs. Solanki that entitle her to damages for pain and suffering and health care expenses. The left shoulder impairment and resulting surgery in 2015 was because of pre-existing arthritis and not a traumatic injury. The evidence shows her symptoms and pathology started before the accident and were in keeping with a typical degenerative process. She had already had right shoulder surgery for a similar condition before the accident. Her trial testimony also demonstrates there is no practical significance to her complaints of neck and low back pain.
Procedural Matters
[12] The pandemic impacted this proceeding in a profound manner. The action commenced in 2014. The defendant served a jury notice. The trial date was vacated on four previous occasions between October 2017 and September 2020. It was last set to commence on February 1, 2021; however, the pandemic intervened, therefore suspending jury trials. The plaintiffs successfully moved to strike the defendant’s jury notice in December 2020. The Divisional Court dismissed the defendant’s application for leave to appeal that order.
[13] This trial therefore proceeded as scheduled in February 2021 as a virtual hearing. The defendant hosted a document sharing platform to facilitate the filing of exhibits and review of evidence at trial. The court initially hosted the Zoom platform and Arbitration Place then supported the balance of the hearing. I acknowledge the parties’ efforts in marshaling the evidence and in quickly adjusting the case to proceed as a virtual hearing on short notice. The hearing was admittedly beset with various technical and logistical challenges on a regular basis. However, the professionalism and cooperation of counsel and the patience and dedication of the court staff and technical support allowed us to overcome those issues and complete the trial as scheduled.
[14] The plaintiff Chandrabala Solanki unfortunately suffered a stroke in late 2017 and was found incapable of instructing counsel. Her claim was amended on consent at the opening of trial to appoint her daughter-in-law Anita Solanki as her litigation guardian.
Issues
[15] The Insurance Act immunizes owners and occupiers of an automobile from claims for damages for pain and suffering and health care expenses as a result of an accident. The plaintiffs must demonstrate their impairments were caused by the accident and fall within one of the statutory exceptions to this general immunity under s. 267.5 (3) and (5) of the Insurance Act, colloquially referred to as the “verbal threshold.”
[16] In this case, the plaintiffs must prove, on a balance of probabilities, that the accident caused them to sustain a “permanent serious impairment of an important physical, mental or psychological function.”
[17] The terms “serious”, “permanent”, “impairment” and “important function” are defined by regulation under the Insurance Act. That same regulation also sets out the evidentiary requirements the plaintiff must meet in order to demonstrate he falls within an exception to the general immunity to damages, including that there must be evidence from one or more qualified physicians who conclude the injured person meets the elements of this test and evidence that corroborates the alleged change in function: O. Reg. 461/96, as amended by O. Reg. 381/03
[18] Various courts have set out the elements of this test in different arrangements but have nevertheless approached the analysis in a consistent fashion. The elements of the test are well settled. The parties agree on the law; they differ on its application to the facts of each claim.
[19] In summary, the four questions to answer for each plaintiff are: (a) Has the plaintiff sustained a permanent impairment of physical, mental or psychological function? (b) Is the impairment caused by the accident? (c) Is the function which is permanently impaired an important one? (d) Is the impairment of the important function serious?: Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129; Grieves v. Parsons, 2018 ONSC 26.
[20] This four-step inquiry is also applied in a serial fashion. If any question in this series is answered in the negative, the impairment does not fall within the exception to the statutory immunity and the inquiry is at an end: Noori v. Liu, 2020 ONSC 3049.
[21] The issues for determination in this action are accordingly as follows:
Sanjay Solanki
Did Sanjay Solanki sustain a permanent serious impairment of an important physical, mental or psychological function as a result of the accident?
Is Mr. Solanki disabled from competitive employment?
Depending upon the determination of these issues:
The assessment of Mr. Solanki’s general damages for pain and suffering;
The assessment of loss of income; and
The assessment of health care expenses and other pecuniary losses.
Chandrabala Solanki
Did Chandrabala Solanki sustain a permanent serious impairment of an important physical, mental or psychological function as a result of the accident?
Did those impairments cause a loss of housekeeping capacity and need for attendant care for the plaintiff Chandrabala Solanki?
Depending upon the determination of these issues:
The assessment of Mrs. Solanki’s general damages;
The assessment of damages for housekeeping and attendant care.
Analysis
[22] I now review the evidence of each plaintiff’s circumstances before turning to these issues.
SANJAY SOLANKI
[23] Sanjay Solanki was 38 years old at the time of the accident on December 25, 2012 and was 47 years old at the time of trial. He was born in Kenya and immigrated to Canada at the age of 16 in 1990. He married Anita Solanki in 2002. They have two children, Devin, age 16 and Dhrupti, age 13. They live together with his parents, Ramesh and the plaintiff Chandrabala Solanki in London.
Pre-Accident History
[24] He completed his Grade 12 in London and graduated from the Law and Security Administration Program at Fanshawe College in 1997. He was steadily employed following graduation. He began work for Brinks Canada Inc. as an armoured courier in or about 2000 and attained a full-time position as an ATM driver and technician in 2002. He was a member of a 3-person crew: one driver and two ATM “techs”. The crew completes runs to various banks on a daily schedule to retrieve and exchange valuables with safes, vaults and automated teller machines. One tech would assess and secure the area and then guard the second tech while she or he transferred the valuables. The job is physically demanding, with the wearing of body armour and a firearm and regular requirements that include bending, reaching, pushing, pulling and lifting heavy items. The plaintiff moved between these two positions without formal restriction or disability before the accident.
[25] In July 2008, neurologist Dr. Michael Strong saw the plaintiff for right leg pain, numbness and tingling over the low buttock, thigh and calf into the foot, which has been “insidiously worsening over time”. In March 2010, the plaintiff told his family physician of symptoms to his SI joint, with muscle ache in his abdomen and back. By June 2010, he complained the backache radiated to his right leg. It would come on when he was working 3-4 days, with prolonged sitting. He used Celebrex to manage these symptoms. Studies revealed mild degenerative changes with no neurological involvement.
[26] Mr. Solanki went to see chiropractor Dr. Zeinin Haji in August 2012 for right mechanical low back pain. Dr. Haji testified and was qualified as a participant expert at trial. Mr. Solanki saw her six times between August and November 20212 for low back pain. On registration, he reported the pain was severe and always present. He rated it as 8/10 on a pain scale. On cross-examination, the plaintiff testified that in hindsight he would have assessed the pain at 2/10 given the pain has experienced since the accident.
[27] Dr. Haji’s impression was the plaintiff’s back pain was triggered by his gun belt. In October 2012, she advised Brinks the plaintiff’s pain was always present and severe with every shift. She recommended that Brinks provide a more flexible Velcro-based gun belt. The plaintiff testified that this new gun belt gave him almost instant relief. He last saw Dr. Haji in November 2012, at which time she noted he reported his pain had decreased with use of the Velcro belt. On cross-examination, Dr. Haji acknowledged the plaintiff had not reported a complete resolution of pain at the last visit in November 2012; however, she noted he also did not seek further treatment from her thereafter.
[28] There is no further documented evidence of ongoing low back pain and limitation until after the accident, one month later.
Post-Accident Course
[29] Mr. Solanki attended a walk-in clinic for treatment on December 27, 2012 and his family physician two days later. He remained off from work at Brinks for three months, during which time he attended for physiotherapy. He returned to work with restrictions in April 2013. He testified he was not ready to return but had to as he was the sole provider for his extended family. His wife Anita had planned to start part-time work at his brother’s shop, The Great Canadian Bagel Company. However, she postponed those plans as she needed to take over all of the cooking and housekeeping for the family and also care for Mrs. Solanki.
[30] Mr. Solanki successfully applied for a different position within Brinks as a driver in the armoured division. This involved a modest pay raise; however, the plaintiff testified he applied for the position as he hoped it would be less demanding on his back. This did not prove to be the case. His back and leg pain continued; however, he worked without interruption over the next two years.
[31] He was in continuous treatment over the next two years following his return to work, including physiotherapy, chiropractic and then Dr. Michel Lacerte for trigger point injections. In February 2014 Dr. Lacerte recommended medical restrictions aimed an improving Mr. Solanki’s comfort and preventing low back pain. By April 2014, the injections were reportedly of no effect. Dr. Lacerte referred the plaintiff to Dr. John Bennett, who provided epidural injections at various intervals between 2014 and 2017. The plaintiff testified those treatments initially provided temporary relief but that the effect eventually abated.
[32] In January 2015, the plaintiff injured his back at work. He was off work for several weeks and returned to Brinks with restrictions in March 2015. The plaintiff testified this injury caused a temporary elevation of his symptoms which then abated to his baseline chronic pain state from the accident. He was unable to continue as a Brinks driver and therefore applied for a demotion to his previous position as ATM tech because his trusted co-workers could assist him in carrying out the heavier aspects of that job.
[33] He continued with recommended treatment between 2015 and 2018, adding in massage therapy, medical cannabis and, further physiotherapy and, massage therapy. These interventions provided little benefit. He continued to experience low back and right leg pain, sleep dysfunction and low mood. He had long since stopped contributing to family life and responsibilities. He had no interest in or energy for family activities and stopped his hobbies such as target shooting at a gun range because of the pain.
[34] In 2017, he started casual part-time employment at Bullseye, a retail gun and outdoor recreation store in addition to full-time work at Brinks. He testified it was not really employment; it allowed him to socialize with people who shared similar interests in a hobby he no longer could do, and it gave him a sense of purpose. He could work his own hours and perform light tasks in assisting customers.
[35] He testified the only reason he was able to last at Brinks was because of the help he received from his co-workers. However, these benevolent co-workers left their positions for various reasons, leaving him with new partners who were less familiar with him and less understanding of his physical limitations.
[36] Five of his former Brinks co-workers testified. In summary, they described the plaintiff as a different man from the way he was before the accident. He was tired and slow and seemed to have difficulty getting in and out of the truck. He had difficulty removing items from safes and loading the truck properly. The plaintiff was supposed to guard the tech who went into the bank, but instead would stay on the truck with his gun belt undone. Witness Daryl Becker testified he knew the plaintiff as a hard worker before the accident. He did not think the plaintiff should work at Brinks anymore because he was not doing his job protecting Mr. Becker. Mr. Becker stated there were times he did not want to work a shift with the plaintiff because he did not want to have to do the work of both ATM techs. Cross-examination of some of these witnesses revealed questions as to the reliability of their evidence which I will address later in these reasons.
[37] In or about May 2018, Mr. Solanki’s friend, co-worker and union representative Mike Day suggested he should stop work and go on disability. The plaintiff applied for short term disability and stopped work at both Brinks and Bullseye. Anita Solanki began to work full-time at her brother-in-law’s bagel store so that the family had additional financial support.
[38] Also in May 2018, the plaintiff first reported emotional distress to his family physician, with feelings of depression, anxiety and suicidal thoughts. He surrendered his firearm to his brother for safety.
[39] His family physician referred him to clinical health and rehabilitation psychologist Dr. Kelly Benn for assessment and treatment. Dr. Benn testified at trial as a participant expert. She diagnosed Somatic Symptom Disorder, Pain Disorder, Major Depressive Disorder and Adjustment Disorder with Anxiety. He struggled with significant cognitive disruption, irritability and had a compromised quality of life. Her impression was the physical demands of his work had drained his energy. He needed help with his coping resources.
[40] Dr. Benn agreed that the validity scores on his assessment were a concern. However, she testified there were a range of possible reasons for the scores, from malingering, to exaggerating, to a cry for help. Overall, she was satisfied from Mr. Solanki’s history and her assessment that he was overwhelmed and that he was not malingering. His insurance would only partially fund her recommended treatment plan. Mr. Solanki saw Dr. Benn on several occasions between July 2018 and February 2020. He testified he would have liked to have continued but could not afford the therapy.
[41] He sought less expensive therapy through cognitive behavioural therapy with social worker Diane Schumacher. Ms. Schumacher was qualified as a participant expert at trial. Ms. Schumacher counselled the plaintiff on coping strategies with his low mood and pain symptoms. Between September 2019 and the time of trial, Ms. Schumacher had provided 16 counselling sessions to Mr. Solanki, including two sessions to his wife Anita Solanki and their daughter Dhrupti. She saw the plaintiff’s wife and daughter due to their distress and concern about Mr. Solanki’s depression and suicidal ideation. Ms. Schumacher testified that the number of treatment sessions were not optimal, but that Mr. Solanki came when he was able to afford it. His mood had improved slightly, but there was still work to be done.
[42] Mr. Solanki resumed casual part-time shifts at Bullseye in 2019. Again, this was on terms that he could miss shifts as needed, sit and stand as needed and not do any physical labour. He testified the work was meaningful to him as it allowed him to socialize with people with similar interests. He stopped work there during the pandemic with no immediate plan to return.
[43] The plaintiff has not resigned from Brinks; however, does not expect that he will ever be able to return to the job. The company has reduced the ATM crew to a two-person crew, where one of the techs must now also drive. This would increase the physical demands of the job beyond any reasonable expectation of his abilities. He continues with pain management treatment with specialists such as Dr. Lacerte to date. He spends most days in solitude and relies on his wife to help him with self-care activities such as dressing.
Credibility
[44] Mr. Solanki was a pleasant and cooperative witness. However, his presentation was marked by notable, even theatrical, pain-focussed behaviours over the two days of his testimony. He made frequent changes between sitting and standing, leaning on the back of his chair as though he needed support to stand. There was facial grimacing and gasping. He held his back at times as though to express and demonstrate pain. This pain behaviour and limited function was emphasized by the defendant in questioning the validity of his presentation. The court acknowledges this is relevant when considering the credibility of subjective complaints of physical and psychological disability in the context of a low speed collision with minor property damage.
[45] However, even allowing for some skepticism about the extent of his behaviours, the plaintiff was not shown to be inconsistent, unreliable or untrustworthy in his testimony. There was no direct contradiction that revealed his evidence to be false or unreliable.
[46] He agreed that he had prior back pain. While one can debate the significance of his rating that prior back pain as 8/10 in the months before the accident, the fact is that he worked on a continuous basis without limitation before the accident. His evidence as to his physical and emotional difficulties after the accident was generally consistent with the testimony of his family, friends, co-workers and employers. The evidence of the Bullseye proprietor Mr. Scott Patience was also consistent with the plaintiff’s description of his discretionary hours and duties. His spouse Anita Solanki gave emotional and compelling evidence about the effect of her husband’s difficulties on the family. She took on exhausting roles of housekeeping and caring for the family as well as full-time employment. She started work in her brother-in-law’s bagel store once her husband stopped working.
[47] Some of the evidence from his former Brinks co-workers was problematic. It was impossible to construct a certain timeline as to when each co-worker worked with one another and the plaintiff. Witnesses Mike Day and Anne Marie Bushnell might have had other reasons for being helpful to the plaintiff. These two witnesses did not appear to be forthright in acknowledging their close friendship with the plaintiff and his family outside of work. I recognize there was motivation and opportunity for his co-worker friends to coordinate their evidence. However, this is not true for all the co-workers or his supervisors who testified. On balance, their evidence was uniform and consistent in describing the plaintiff’s deterioration after the accident and their efforts to support him in performing his job; some helped him with resentment. These witnesses testified about events from the course of the last nine years since the accident. I am not surprised or troubled by any incongruency in their testimony or lack of recall on the dates on which they worked with the plaintiff. Despite the concerns about the reliability of certain witnesses, the core theme from the lay witness testimony consistently supported Mr. Solanki’s evidence.
[48] Brinks supervisor Chris Skinner testified he understood the plaintiff was meeting the physical requirements of the job. The defendant claims this showed the plaintiff’s and co-workers’ evidence was a fabrication. However, there was no evidence the plaintiff or any of his co-workers raised concerns about the plaintiff’s work performance with Brinks management in the five years following the accident. It would stand to reason that co-workers who wanted to help their injured colleague would not report their concerns to management.
Litigation Experts
[49] The plaintiff called physiatrist Dr. Keith Sequeira, psychologist Dr. Tamara Biederman, occupational therapist, Catherine Sydor and, vocational rehabilitation counsellor Christine MacGregor as litigation experts. The defendant called physiatrist Dr. John Clifford and, psychiatrist Dr. Gary Chaimowitz.
Plaintiff Experts
Dr. Sequeira
[50] Dr. Keith Sequeira was qualified as a litigation expert to provide opinion evidence in the field of physical medicine and rehabilitation on behalf of the plaintiff. He assessed Mr. Solanki in 2016, 2018 and 2019. Dr. Sequeira concluded the plaintiff initially sustained soft tissue injuries in the accident to his low back and right leg that have manifested as chronic pain syndrome and sleep dysfunction and disabled him from competitive employment and his regular avocational activities. In his view, the plaintiff sustained a permanent serious impairment of an important physical function that was caused by the motor vehicle accident.
[51] Dr. Sequeira acknowledged the plaintiff had pre-existing episodes of back pain. He agreed these episodes were similar in description to the plaintiff’s post-accident pain. However, in Dr. Sequeira’s view, these were discrete episodes of back pain and different from the back pain that followed the accident. In cross-examination, he acknowledged the plaintiff’s prior back pain appeared to be chronic; however, there was no evidence of pre-existing chronic pain syndrome. The episodes appeared to resolve without the constant pain and maladaptive features such as severe pain, sleep and mood disruption the plaintiff has experienced since the accident. The 2015 workplace injury was a temporary exacerbation; however, the plaintiff returned to his post-accident chronic pain baseline.
Dr. Tamara Biederman
[52] Dr. Tamara Biederman was qualified as a litigation expert to provide opinion evidence in the field of clinical and rehabilitation psychology on behalf of the plaintiff. She was asked to provide an opinion regarding Mr. Solanki’s psychological condition. She assessed him in May 2020.
[53] In her opinion, the plaintiff meets the DSM-5 criteria for Major Depressive Disorder (with psychotic features), Somatic Symptom Disorder with predominant pain and Post Traumatic Disorder (chronic). These psychological repercussions arose from his unremitting pain following the accident and are now an independent contributor to his lowered level of function and ability.
[54] Dr. Biederman noted the plaintiff had a long history of work without limitation. He had been an involved father, husband and son in a multi-generational home. He had no prior history of mental health issues. He was the primary financial provider to his extended family and so initially persevered to carry on working after the accident. However, he reduced his involvement in his previous avocational responsibilities and family activities so that he could use his energy to focus on his employment duties. However, he continued to have pain, sleep dysfunction and low mood. He ultimately depleted his reserves and had “nothing left in the bank”. The defendant objected to this analogy. I allowed the evidence for reasons given at trial, subject to weight.
[55] His complete cessation of work in 2018 due to his chronic pain affected his self-worth and led to a sudden decline in his mental health. Aspects of his depression then emerged as almost psychotic and his anxiety became pronounced.
[56] Dr. Biederman was not surprised that the plaintiff’s medical records show he made no report of mental health concerns in the first five years following the accident. Her impression was the plaintiff was very private and worked hard to contain his affect until he could no longer maintain his employment. His loss of employment then led to the loss of his sense of worth.
[57] She knew he had started part-time work in a gun shop, although was unsure about when that commenced and if it overlapped with his full-time employment with Brinks. In any event, she testified she would not call the gun shop position either “employment” or a “second job”. The position entailed limited hours and duties with a benevolent employer. She accepted the plaintiff’s explanation that he took the position in order to socialize in an area of interest and bring in some minimal income.
[58] Dr. Biederman testified that the plaintiff’s prognosis is guarded. He is not competitively employable, even on part-time basis. He is unable to respond to work demands on a consistent way and would need a flexible and benevolent employer.
[59] In cross-examination, Dr. Biederman acknowledged that her opinion depends upon the back pain and that she does not have an opinion on the cause of the back pain itself. She also agreed she had not undertaken any formal validity testing. She explained this is because the validity measures are based upon North American culture and language which can distort the responses for the plaintiff given his cultural heritage.
Other Plaintiff Experts – Introductory Comments
[60] The defendant objected to the plaintiff calling two experts to opine on the plaintiff’s ability to work: an occupational therapist and a vocational rehabilitation consultant. The defendant submitted this was unwarranted duplication. For reasons given at trial, I permitted both experts to testify; however, with limits on the scope of the occupational therapist’s opinion. I accepted there was some overlap in the two opinions; however, not to the extent that it would be fair to deprive the plaintiff of his ability to elicit evidence from these two differently qualified experts. The occupational therapy opinion was otherwise a foundational opinion for the vocational rehabilitation opinion. I was not persuaded that the time and cost involved in calling the vocational rehabilitation consultant was disproportionate to the issue at stake in this trial. The occupational therapist’s evidence as to the plaintiff’s employment was largely focussed on the essential demands of his current position or alternative positions within Brinks. I limited the therapist’s opinion evidence to that sphere and ruled the plaintiff could not elicit opinion evidence as to future employment options, as this was addressed by the consultant.
Catherine Sydor – Occupational Therapist
[61] Catherine Sydor was qualified as a litigation expert for the plaintiff in the field of occupational therapy to offer her opinion as to the plaintiff’s daily function and ability to engage in his work as Brinks security guard and any limitations on his housekeeping and avocational activities.
[62] She performed functional abilities evaluations of the plaintiff in 2015, 2018 and 2020. Ms. Sydor concluded the plaintiff’s essential activities involved multiple physical demands that exceeded his tolerances and abilities. The plaintiff was incapable of his employment as ATM tech at Brinks. His functional threshold was very fragile.
[63] The defendant noted marked changes in the plaintiff’s functional measurements throughout the three assessments, such as with range of motion. The plaintiff also scored atypical neurological results. Ms. Sydor acknowledged these issues but would not endorse that the measures were either “radical” or showed that the plaintiff was “invested” in these assessments. She agreed there was no specific validity testing of the plaintiff’s performance on her evaluations but explained those measures were embedded within the testing. Ms. Sydor testified her opinion was based upon on all the test data, the plaintiff’s history and her review of the records. That said, she was unaware of the 2015 workplace incident. Her first assessment occurred after that incident.
Christine MacGregor – Vocational Rehabilitation Consultant
[64] Ms. Christine MacGregor was qualified as a litigation expert within the field of vocational rehabilitation on behalf of the plaintiff to offer an opinion as to his current and future ability to be competitively employed. She assessed the plaintiff in May 2018.
[65] Ms. MacGregor reviewed the plaintiff’s education, employment history, regular job demands and, Ms. Sydor’s functional abilities evaluation. Ms. MacGregor concluded the plaintiff was working in an unsustainable position at Brinks. His tolerances did not fall within the job demands in his security position. Other employment options within Brinks either did not offer benefits, were no longer available or the job demands had changed to beyond the plaintiff’s abilities. In her view, the plaintiff had a wealth of transferrable skills; however, his limitations made it unlikely he could meet the physical demands of any compatible employment.
[66] On cross-examination, Ms. MacGregor readily acknowledged she was retained by Mr. Solanki for the lawsuit. The defendant noted the plaintiff did not actually go off work until after Ms. MacGregor rendered her report in May 2018. She testified she did not tell the plaintiff about her opinion and she did not know he stopped work at about that time.
Defence Litigation Experts
Dr. Clifford
[67] Dr. John Clifford was qualified to provide opinion evidence in the field of physical medicine and rehabilitation on behalf of the defendant. Dr. Clifford assessed Mr. Solanki in 2017. Dr. Clifford concluded there was no objective evidence to demonstrate the plaintiff suffered a permanent, serious impairment of an important physical function as a result of the accident.
[68] There was no evidence of injury or ongoing impairment from a neurological or orthopedic perspective. The accident likely caused soft tissue injuries but they had long since healed. Mr. Solanki’s medical records showed early signs of progressive recovery that are consistent with the expected healing timeframe for soft tissue injuries. He does not require any restrictions or ongoing treatment. Dr. Clifford noted Mr. Solanki’s prior history of recurrent back pain and expected these symptoms would persist in any event of the accident.
[69] Dr. Clifford contended the plaintiff’s complaints of chronic pain may be indirectly related to the accident due to “central pain generators” that affect Mr. Solanki’s perceptions of pain and dysfunction. Mr. Solanki has been “over-medicalized” through improper and prolonged use of the acute injury treatment for soft tissue injuries in the context of unresolved litigation. The excessive treatment and encouragement to limit activity facilitates pain behaviours. Instead, the plaintiff should increase physical activity, participate in an active reconditioning exercise program and engage in all his regular activities.
Dr. Gary Chaimowitz
[70] Dr. Gary Chaimowitz was qualified to provide opinion evidence in the field of psychiatry on behalf of the defendant. He assessed the plaintiff in 2020.
[71] Dr. Chaimowitz described the plaintiff’s presentation as complex. There is no objective reason for his pain. He had a late onset of psychiatric symptoms in relation to the accident. The authenticity of his psychiatric symptoms depends on the genuineness of his physical complaints. If he is misrepresenting his physical complaints, then his psychiatric complaints are also likely disingenuous.
[72] If the plaintiff’s emotional symptoms are related to his pain, it is compatible with only a mild Major Depression. Dr. Chaimowitz allowed that medication and therapy may have alleviated the extent of the plaintiff’s symptoms. Dr. Chaimowitz was also of the view that the limited anti-depressant therapy and psychotherapy was discrepant with the seemingly intractable symptoms reported by the plaintiff. He would have expected the plaintiff to be referred to a psychiatrist by now. Though the plaintiff might have some posttraumatic stress symptoms, Dr. Chaimowitz did not believe he met the criteria for Posttraumatic Stress Disorder. These psychiatric symptoms do not in and of themselves preclude him employment or his daily activities. They are treatable and can be managed while working.
[73] Dr. Chaimowitz agreed the plaintiff may have developed a Somatic Symptom Disorder. However, he thought it unusual as the plaintiff was able to continue to work and engage in his hobbies after the accident before the late onset of the psychiatric symptoms. He did not support Dr. Biederman’s theory that the symptoms emerged after the plaintiff had drained his psychological reserves in working after the accident. Dr. Chaimowitz described this as pseudo-scientific conjecture.
Findings Regarding Expert Opinion
[74] Both Dr. Sequeira and Dr. Clifford were forthright and fair in their testimony. Each presented a compelling opinion for the court’s consideration. On balance, I prefer the evidence of Dr. Sequeira to that of Dr. Clifford for the following reasons:
a. Dr. Sequeira has a current and active clinical, research and academic practice in the field of physical medicine and rehabilitation. I accept the plaintiff’s submission that he has outstanding national and international credentials. In contrast, although highly qualified, experienced and respected, Dr. Clifford’s clinical practice is more limited than that of Dr. Sequeira. His clinical practice has been limited to outpatients since 1990 and then largely to EMG studies.
b. Dr. Sequeira acknowledged discrepancies or information that was missing at the time he formed his opinions. However, in each instance, he was able to reasonably explain why the information did not change his opinion. For example, he agreed that he was unaware the plaintiff had reported no pain at the scene of the accident and that he relied upon the plaintiff’s self-report on the mechanics of the collision. However, he explained the plaintiff’s description was consistent with the independent information from the accident report. Dr. Sequeira also explained that neither the speeds involved in the collision nor the timing of the onset of the pain can speak to whether a soft tissue injury is minor or severe.
c. Dr. Clifford conceded his opinion is premised on a philosophy and treatment strategy for which there is little support in the medical community. Dr. Clifford was eloquent in his explanation of this theory and management approach. However, he fairly acknowledged that it remains a theory. While literature supports the concerns about over-medicalization, there is no research that has studied outcomes from his recommended approach to management of soft tissue injuries. He agreed he had little success in persuading clinicians not to medicalize the treatment of soft tissue injuries and that that clinicians such as Dr. Sequeira follow a different treatment strategy.
d. Dr. Clifford conceded that qualified health care practitioners recommended the treatments and activity restrictions and wholeheartedly agreed the plaintiff could not be faulted in following the advice. I agree the plaintiff cannot be faulted for following the advice of his treatment providers.
e. Dr. Sequeira assessed the plaintiff on three occasions throughout the years since the accident. His findings and opinions remained consistent throughout that time, changing only to growing pessimism about the plaintiff’s ability to function and work. Dr. Clifford only had the benefit of one assessment of the plaintiff.
[75] Dr. Biederman and Dr. Chaimowitz were also cooperative, balanced and helpful in their role of identifying any psychiatric/psychological impairment as a result of the accident. Both readily conceded their roles and that their opinions turned on whether the plaintiff’s back pain was caused by the accident, an issue beyond their scope.
[76] As I accept the opinion of Dr. Sequeira, it follows I accept the plaintiff has experienced a psychiatric impairment as a result of the accident. The remaining difference in their opinions is whether the plaintiff had a mild or major depressive disorder and whether there is a reasonable explanation for the delayed onset of his psychiatric symptoms.
[77] Dr. Chaimowitz fairly noted the plaintiff’s depressive symptoms could wax and wane and attenuate with his medication and therapy. I accept that evidence and conclude the plaintiff has a Major Depressive Disorder. I acknowledge the skepticism about Dr. Biederman’s theory for the delayed onset of his psychiatric symptoms; however, I conclude this debate is immaterial on an assessment of the evidence as a whole. The plaintiff consistently sought treatment for his pain symptoms over those five years while he worked. During that time, he retreated from all avocational activities and relied on his co-workers. Dr. Sequeira also documented observations of mood dysfunction in his first assessment in 2016, two years earlier than the plaintiff’s disclosure to his family physician.
[78] I accept that his ability to cope deteriorated over that time and led to his going off work and his disclosure of his psychiatric symptoms.
[79] Ms. Sydor and Ms. MacGregor were helpful from the perspectives of their expertise. They acknowledged their roles as litigation experts but did not advocate on behalf of Mr. Solanki or purport to weigh the evidence. They accepted the limits of their opinions in terms of relying on the plaintiff’s subjective presentation. They each explained their confidence in their findings as based upon consideration of all the evidence and found no inconsistency to cause them to reconsider their opinions. This accords with my assessment of the evidence. I accordingly accept their opinions as to Mr. Solanki’s ability to work at Brinks or in another occupation for which he is reasonably suited within his limitations.
[80] I now turn to the issues for determination.
1. Did Sanjay Solanki sustain a permanent serious impairment of an important physical, mental or psychological function?
[81] As reviewed earlier, this issue is determined through four questions: (a) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function? (b) Is the impairment caused by the accident? (c) Is the function which is permanently impaired an important one? (d) Is the impairment of the important function serious?
(a) Has the plaintiff sustained a permanent impairment of physical, mental or psychological function?
[82] The defendant submits the plaintiff has not sustained a permanent impairment. The symptoms from his soft tissue injuries ended within three months of the collision. He was able to work for five years following the accident, including taking up a part-time casual retail position at the gun shop.
[83] For an impairment to be permanent the impairment must have been continuous since the incident. It must also not be expected to substantially improve, based on medical evidence and subject to the person reasonably participating in the recommended treatment: s. 4.2(3)(i), O. Reg. 381/03. A return to work following the incident therefore may mean the impairment is not permanent in the sense that it is not “continuous since the incident”: Grieves, supra at para. 109.
[84] Dr. Sequeira diagnosed chronic pain syndrome. Dr. Sequeira testified that about 10-15% of individuals who are injured in motor vehicle accidents develop recalcitrant problems similar to those seen in Mr. Solanki. Dr. Sequeira explained that when soft tissue impairments persist for two years or longer, the likelihood for meaningful, symptomatic and functional gains is extremely small. This satisfies the requirement for permanence: Persad v. Silva, 2016 ONSC 6885 at para. 56.
[85] Dr. Sequeira was aware the plaintiff had taken on casual work at Bullseye and thought the plaintiff’s pursuit of this avocational activity was consistent with his recommendations to engage in activities with light duties and autonomy where the plaintiff could limit his hours and duties as needed. Dr. Biederman also knew about his work at Bullseye and did not consider the activity to be competitive employment.
[86] I agree that evidence of this limited role at Bullseye does not question the permanence of the plaintiff’s impairments.
[87] The experts’ opinion as to permanence is corroborated by other evidence. I accept that while the plaintiff continued to work after the accident, this was not without difficulty and was only achieved through efforts that could not be sustained. A continuous impairment is not necessarily the same as an “unbroken chain” of impairment since the incident: Persad at para. 55.
[88] The plaintiff had no restrictions before the accident. Although he returned to work within three months of the accident, this was through seeking different positions within the company and eventually relying on help from co-workers. His function has not improved despite years of treatment and rehabilitation interventions.
[89] I find the plaintiff sustained a permanent impairment.
(b) Is the impairment caused by the accident?
[90] The plaintiff’s claimed losses must arise directly or indirectly from the use or operation of an automobile: s. 267.5(3), (5). Again, the defendant questions a casual relationship between the accident and the plaintiff’s symptoms. There are questions as to the evolution of the back injury and its relationship to the accident. He had pre-existing difficulties with similarly described back pain, with treatment approximately one month before the accident. The contemporaneous medical records suggest he recovered from the accident and was able to return to work within three months of the accident. The defence theory puts great emphasis on the fact that he then continued to work on an uninterrupted basis for two years thereafter, until he strained his back at work in January 2015. He returned to work after several weeks and continued work until May 2018, even adding in the additional job at the gun shop in 2017.
[91] This simple chronology omits the plaintiff’s efforts in rehabilitation and treatment on an almost continuous basis throughout after the accident. He also did not maintain the same position at Brinks on a continuous basis during that five-year period. He explained he returned to work in April 2013 because of his financial responsibilities to his family. He changed positions twice following his return to work in 2013 in an effort to accommodate his back pain and only managed to keep working in the last three years by relying on his colleagues to take on the heavier aspects of the job.
[92] I accept Dr. Sequeira’s opinion that the plaintiff’s chronic pain syndrome was caused by the accident. While he may have had chronic back pain before the collision, these were discrete episodes and there is no pre-existing evidence of the chronic pain syndrome that emerged following the accident.
[93] Similarly, I accept Dr. Biederman’s opinion that the Major Depressive Disorder and Somatoform Disorder were caused by the accident. There is no evidence of pre-accident mental health issues.
(c) Is the function which is permanently impaired an important one?
[94] The regulatory definition of an “important function” includes that the function must be necessary to perform the essential activities of regular employment, taking into account reasonable efforts to accommodate the person’s impairment and the injured person’s reasonable efforts to use the accommodation: s. 4.2(1) .2, O. Reg. 381/03, supra.
[95] Dr. Sequeira advised the plaintiff has physical restrictions that directly relate to the consequences of the accident. He is relegated to light, sedentary and intermittently moderate intensity activity levels with specific limitations to avoid heavy or moderate intensity lifting, avoid repetitive or sustained bending, lifting, twisting or stooping and limit repetitive, sustained or awkward neck and back postures. As of 2016, Dr. Sequeira was of the view that the plaintiff was tolerating his work at Brinks precariously and that his ability to continue to work at the same level in the long term was guarded. He was working in a compromised state and was prone to further deterioration. He would likely need to retire earlier than age 65 to manage his pain and impairments. When next saw the plaintiff in 2018, Dr. Sequeira concluded the long-term vocational prognosis was poor. He did not expect the plaintiff would tolerate full time work beyond the next two years with his current pain, trajectory and limitations.
[96] Dr. Biederman similarly concluded the plaintiff’s prognosis for regular employment was unfavourable. His mental health had not meaningfully improved since his declaration of suicidal intent in March 2018. She was careful to explain that she could not offer a risk assessment on the plaintiff resuming possession of firearms for the essential purpose of his job at Brinks. However, she was concerned that he was unlikely to succeed in a return to that position. The plaintiff was likely to perceive an unsuccessful work return as a failure, which would risk precipitation of another episode of suicidal ideation.
[97] I accept that the plaintiff has experienced permanent impairment of an “important” function. His back pain, sleep and mood dysfunction interfere with his ability to perform the essential activities of his regular employment. He attempted to accommodate those limitations first by changing positions to driver and then returning to his ATM tech position with reliance on co-workers. His pain and depressed mood affect his life, with cessation of employment and withdrawal from family and avocational activities.
(d) Is the impairment of the important function serious?
[98] The assessment of whether an impairment of an important bodily function is serious relates to the seriousness of the impairment and not to the injury itself. This question must be determined by reference to the condition and situation in life of the particular injured person. Generally speaking, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his usual daily activities or to continue his regular employment: Meyer, supra.
[99] A “serious” impairment one that not one that is tolerable and must be more than frustrating and unpleasant: Bridgewater v. James, [2004] O.J. No. 5282 at para. 49 (S.C.J.); Frankfurter v. Gibbons, 2004 CanLII 45880 (ON SCDC), [2004] O.J. No. 4969 at para. 22 (Div. Ct.).
[100] A serious permanent impairment of important bodily function is one that frustrates the plaintiff’s chosen career path: Meyer, supra. However, the Court of Appeal also recognized that an impairment can be “serious” even where the plaintiff resumes employment through his own determination but continues to experience pain: Brak v Walsh, 2008 ONCA 221 at para. 7.
[101] I accept the plaintiff’s chronic pain syndrome and related mental health impairments have frustrated his chosen career path as a security technician. He persisted in efforts to maintain that employment but was affected by the unremitting pain and consequent interference with his ability to do the job. His pain and depression have also resulted in his withdrawal from family life and responsibilities and his hobbies. I find that the impairments of function are “serious”.
[102] I therefore conclude the plaintiff sustained permanent serious impairments of important physical, mental or psychological function as a result of the accident.
2. Is Mr. Solanki disabled from competitive employment?
[103] This question is largely addressed in the foregoing threshold analysis. In 2018, Dr. Sequeira predicted the plaintiff was unlikely to be able to maintain full time employment in the next two years. His prediction came to fruition. I find the plaintiff is disabled from competitive employment as a result of the accident. Dr. Sequeira’s opinion is consistent with the findings of occupational therapist Ms. Sydor and vocational consultant Ms. MacGregor. Their opinion is consistent with the evidence of his co-workers, who described the plaintiff as an “old man” in stark contrast to his energetic work habits before the accident.
[104] The plaintiff’s part-time employment at Bullseye raises questions. However, on the totality of the evidence, I accept the plaintiff’s evidence that this is not competitive employment. He did this to stay productive and engaged in his personal interests after the accident. Such an activity was supported by Dr. Sequeira, Dr. Biederman, Ms. Sydor and Ms. MacGregor. The participant experts Dr. Benn and Ms. Schumacher were similarly supportive of this activity.
3. The assessment of Mr. Solanki’s general damages for pain and suffering;
[105] The plaintiff seeks non-pecuniary general damages in the range of $100,000 to $110,000. The defendant offered no position on the quantum of general damages given its position on threshold. I understood the defendant to submit that damages would not exceed the statutory deductible, in any event.
[106] The plaintiff relied on three Ontario decisions in support of his submission: Lahey v. Henderson, 2005 CarswellOnt 1685; Rizzi v. Marvos 2008 ONCA 172; Akeelah v. Clow 2018 ONSC 3410. All three decisions concerns plaintiffs in similar situations of chronic pain, fibromyalgia and depression, and consequent impact on their vocational and avocational activities.
[107] In Lehay, supra, the court described the plaintiff’s loss as “profound” in considering his general damages. His greatest loves, the outdoors, his work, and his family were all profoundly affected by his trauma. He could no longer go hunting, fishing or camping and could not join in his children’s sports activities. The court assessed general damages at $90,000.
[108] In Rizzi, supra, the Ontario Court of Appeal reviewed the then recent range of general damages awards in Ontario trial decisions. The court found that awards of non-pecuniary damages for chronic pain or fibromyalgia were within a range of $55,000 to $120,000. In that instance, the appellate court intervened to vary the jury award of $41,000 for general damages to $80,000. The court acknowledged the award was slightly above the mid-range of awards for this nature; however, concluded this reflected the effect of the injury on the plaintiff’s overall life. Her employment was compromised, and she had previously been active.
[109] The trial court revisited this damages range 10 years later in Akeelah, supra. The court found the effects of chronic pain on the plaintiff were like the plaintiff’s circumstances in Rizzi, supra and assessed general damages at $100,000.
[110] I agree these three decisions are useful comparators for the situation of this plaintiff and the corresponding awards of damages in previous years.
[111] The plaintiff is entitled to be compensated for his impairments sustained as a result of the accident. The quality of his life has changed as a result of his constant pain and mood dysfunction. He is disabled from a vocation that defined his self-worth in terms of his job responsibilities and his role as financial provider to his family. He is unable to perform most of his regular family responsibilities and hobbies. His family relationships have suffered.
[112] Considering these effects on this plaintiff and the damages awards in similar cases in the last sixteen years, I assess Mr. Solanki’s non-pecuniary general damages at $110,000 before application of the statutory deductible and subject to the applicable prejudgment interest rate.
4. The assessment of loss of income
[113] The plaintiff retained chartered professional accountant and business valuator Lindsay Campbell to calculate Mr. Solanki’s past and future economic losses. She was qualified as a litigation expert to provide her on the quantification of income loss valuation. Her report was filed as her evidence in chief and she was cross-examined on the accuracy of the underlying data and to confirm her assumptions.
[114] The defendant did not offer any responding opinion on the issue of income loss. Subject to noting Ms. Campbell’s calculation did not include 2018 income from Bullseye, the defendant’s issue with the income loss claims are the assumptions on which Ms. Campbell’s calculations were based. In other words, the defendant’s view is there was no past or future income loss attributable to the accident.
(a) Past Loss of Income
[115] The parties agreed the total disability benefits received to date to be deducted from a past loss award are $80,500.
[116] Ms. Campbell’s quantification of the past loss of income did not include Mr. Solanki’s 2018 income of $1,219.76. from Bullseye. With the inclusion of that modest amount, the plaintiff’s damages for past loss of income are $111,180.24 or $94,580.24 before deductions for disability benefits.
[117] The difference in these past loss claims turns on the plaintiff’s demotion in 2015 as an armoured truck driver back to his pre-accident position as ATM tech. The plaintiff submits his injuries caused him to seek the demotion, with the result that his pre-trial income loss before deductions is $111,180.24. In the alternative, if I do not accept there is a relationship between his 2015 demotion and the accident, his pre-trial income loss before deductions is $94,580.24.
[118] I conclude the plaintiff’s self-sought demotion in 2015 related to the 2012 accident and not to any other cause, such as the 2015 work injury. Dr. Sequeira’s view was the 2015 back strain was a temporary exacerbation. I accept the plaintiff’s evidence that he sought the promotion hoping it would accommodate his limitations, but that those hopes proved to be in error.
[119] His pre-trial income loss is therefore $111,180.24 before deduction of the collateral benefits of $80,500, for a net award of $30,680.24.
(b) Future Loss of Income
[120] The plaintiff must establish there is a substantial possibility that a future loss will occur before an award for future loss of income will be made: Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.). As is evident by my findings, I am satisfied the plaintiff has met this test in demonstrating he is disabled from competitive full-time employment.
[121] The plaintiff proposed a future income loss award based upon several scenarios and variables. In closing submissions, focus was brought to bear on the figures of $774,800 or $815,700. The difference in these amounts reflects two scenarios:
But for the accident the plaintiff would have continued work to age 65 as a Brinks armoured car driver and retains residual part-time earning capacity of 20 hours per week at $16 per hour = $815,700; or
But for the accident the plaintiff would have continued to work to age 65 as Brinks ATM tech and retains residual part-time earning capacity of 20 hours per week at $16 per hour = $774,800.
[122] The plaintiff submits these are realistic scenarios given the expert opinion. The plaintiff proposes a retirement age of 65 as a generally accepted moment but argues this is debatable as the plaintiff was earning a modest income on a full-time basis and has young children to support. In the absence of any specific evidence, I accept this position as a reasonable basis on which to fix the plaintiff’s retirement date, but for the accident.
[123] The income loss scenarios allow for part-time employment, such as he has done at Bullseye. The plaintiff’s evidence is that he worked no more than 10 hours per week, and usually less. However, there is evidence from the timesheets that at times he was working more than 10 hours per week. Although vague, the evidence also suggested he had not worked in over the past year at Bullseye due to the impact of COVID. A residual part-time retail earning capacity is a reasonable basis on which to estimate his future income loss. For the purposes of this calculation, and in light of the variable hours shown on the time sheets, I find the plaintiff has a residual a part-time earning capacity of 20 hours per week.
[124] The remaining issue is whether his future income loss is calculated on the basis of his income as a driver or as an ATM tech. Given my findings on the cause of his employment disability and his pre-trial loss, it follows his future income loss should be assessed on the basis of his employment as a driver before his demotion in 2015.
[125] Finally, I must consider whether to apply a contingency to the future income loss award to account for other eventualities. The plaintiff submits I should apply a modest negative contingency of no more than 10%. The income loss quantification already accounts for a significant contingency with the inclusion of post-accident part-time earning capacity. At the same time, he acknowledges that the Brinks occupation is demanding and that other eventualities that would compromise his ability to work at Brinks in any event of the accident should be acknowledged.
[126] This is a reasonable concession; however, I am of the view the contingency should be fixed at 15%. The expert’s assessment included standard mortality adjustments. However, the plaintiff has had three other unrelated health episodes since the accident, including cardiac issues and a diagnosis of diabetes. None of these events disabled him from employment but did require leaves of absence. It is reasonable to project the prospect of other health events that would affect his employment path. Brinks has also restructured the positions since the plaintiff went on disability. The three-person crew is reduced to a two-person crew. This reflects some instability in the occupation unrelated to his accident disability. I therefore apply a contingency of 15%.
[127] I therefore assess the plaintiff’s future loss of income at $815,700, less a contingency of 15%, for an award of $693,345.
5. The assessment of health care expenses
[128] The parties agreed the plaintiff received $27,500 in medical and rehabilitation benefits under his accident benefits claim, which is to be deducted from any sum this court may award for health care expenses: Cadieux v. Cloutier, 2018 ONCA 903.
[129] The plaintiff’s claim for health care expenses is otherwise a vague exercise. The plaintiff did not present a future care cost plan supported by a qualified expert as to the recommended care, frequency, duration, and cost. The plaintiff accounting expert Ms. Campbell provided a table setting out the mortality adjusted present value of $1,000 for the plaintiff, which allowed for certain calculations of future health care expenses to be made, where that information was available in the evidence.
[130] There was some evidence that physiotherapy, a gym membership, and hot tub were recommended for Mr. Solanki. However, in closing submissions, the plaintiff conceded there was no evidence on the cost, recommended frequency or duration of these treatment modalities. There is no evidence to support an award for these items.
[131] The remaining items for which there was some evidence are: (a) psychological counselling; (b) social work counselling; and (c) cannabis therapy.
(a) Psychological Counselling
[132] Dr. Biederman recommended regular psychological counselling. She testified the plaintiff had not received the optimal frequency. The plaintiff testified he could not afford to continue see Dr. Benn on the recommended frequency as he had been self-funding treatment. Dr. Biederman recommended at least one year of weekly sessions, followed by one year of bi-weekly sessions and then a five-year maintenance schedule with a frequency of every three to four weeks. She advised the sessions each cost $225, as currently recommended by the College of Psychologists of Ontario. Defence psychiatrist Dr. Chaimowitz acknowledged that one possible reason for his impression that the plaintiff’s depression was mild may have been the effects of the plaintiff’s therapy and medication. I am satisfied there is a reasonable evidentiary basis for the therapy program recommended by Dr. Biederman. I accept the plaintiff’s present value calculation of this course of treatment and assess this health care expense at $19,950.
(b) Social Work Counselling
[133] The plaintiff received 16 social work counselling sessions from Diane Schumacher at $100/hour. He attended with her when he could not afford the recommended treatment frequency with psychologist Dr. Benn. Plaintiff expert Dr. Biederman recommended future social work therapy as an adjunct to psychological counselling. This would provide interim assistance with managing interpersonal distress and problem solving. However, she advised the costs of this were unknown. There was also no evidence on frequency or duration.
[134] The plaintiff seeks an award of $7,500 for future social work sessions. This is based upon an allowance of $1,500 per year for 5 years. This would seem to suggest an additional 15 social work sessions every year in addition to the psychological therapy regimen recommended by Dr. Biederman. This is both excessive and unwarranted. The evidence is that the plaintiff implemented social work therapy when he could not afford a consistent psychotherapy regimen. I have made allowance for the expense of regular psychological counselling. There is no justification on the evidence for this additional treatment.
(c) Cannabis Therapy
[135] We then come to the issue of the plaintiff’s cannabis use. The defendant objects to any provision for cannabis on the basis that no treating physician recommended cannabis therapy. I note that the evidence shows that at least some of the plaintiff’s cannabis orders were obtained through the recommendation of a nurse practitioner.
[136] In any event, Dr. Sequeira supported cannabis use as an accepted form of treatment for pain and sleep management. He recommended cannabis therapy should be maintained for the plaintiff. However, Dr. Sequeira recommended use of different variants and a different dosage than what the plaintiff has historically used: CBD/THC at night and CBD during the day. He also recommended dosage at .500 – 1 gm to start. In contrast, the plaintiff testified he used between 3g and 5g per day in various forms. There is no evidence of the specific cost of Dr. Sequeira’s recommended cannabis protocol, or its duration. The only evidence the court has as to the expense is the plaintiff’s own historical use of cannabis. The plaintiff submitted his use of cannabis to manage his pain was at a rate of between $5,475 and $10,950 per year. An average cost of $8,000 per year on a present value basis for life would equate to $217,950.40.
[137] I find this cost far exceeds what is reasonable on the evidence. On the assumption that this total cost results from a usage rate of between 3g and 5g per day, I have discounted the expense to 1/5th of the total to represent Dr. Sequeira’s recommended rate of use of .5 to 1 gm per day, for a result of $43,590 for life. However, this should be further discounted to account for the arbitrary nature of this calculation, normal life contingencies, the effects of other treatments and a reasonable duration for the therapy. I accordingly assess the future cost of cannabis therapy to one third of this sum, for an award of $14,530.
[138] The court would have preferred specific evidence on this treatment. The award accepts there is some evidence to support a reasonable allowance for cannabis therapy.
[139] In summary, I allow the following future care costs/health care expenses for Mr. Solanki:
Psychological therapy: $19,950.
Cannabis therapy: $14,530
Total: $34,480 less deduction of benefits per Cadieux, supra.
[140] From this, the accident benefits paid to date of $27,500 on account of medical and rehabilitation benefits are to be deducted, leaving a net award of $6,980.
6. Loss of Housekeeping/Handyman Capacity
[141] The plaintiff seeks an award of for lost housekeeping/handyman capacity in a range of $20,000 to $30,000.
[142] The plaintiff acknowledged that his wife and his mother the plaintiff Chandrabala Solanki did the majority of regular housekeeping tasks before the accident. He also did not have to engage in any regular outdoor maintenance as those services were provided by the management in his townhouse complex. However, the evidence supports that he would do heavier tasks on a seasonal basis, such as power washing the exterior and windows and assisting with cleaning hard to reach areas such as ceilings in the home on an occasional basis. He has withdrawn from those duties since the accident.
[143] Dr. Sequeira is of the view that the plaintiff is greatly limited in his housekeeping abilities. Occupational therapist Ms. Sydor similarly commented he was markedly limited in his housekeeping, home maintenance and leisure activities. She expected these limitations would continue and increase with age.
[144] Anita Solanki gave compelling testimony as to how this accident visited all housekeeping and home maintenance responsibilities on her shoulders. Much of this relates to the injuries of her mother-in-law that I will address later; however, I accept that a portion of this relates to her husband’s inability to contribute to the family’s regular and seasonal household responsibilities.
[145] In McIntrye v. Docherty, 2009 ONCA 448, the Court of Appeal affirmed there are three scenarios in which a plaintiff may evidence intangible or tangible loss of housekeeping capacity: 1. When he or she leaves all or part of the housework undone; 2. When he or she does do some of all of the housework but does so with pain or difficulty and therefore inefficiently; and 3. When the plaintiff’s housework is done by third parties.
[146] I am satisfied there is a basis for awarding a nominal amount of damages for housekeeping and home maintenance. There is a real and substantial possibility he will be unable to perform all of his usual and necessary household work. I fix this loss in the amount of $10,000.
Special Damages
[147] Mr. Solanki seeks special damages in the amount of $8,779.34. About half of this is for the installation of a walk-in tub for both his and his mother’s use. Mr. Solanki testified to this expense. I am satisfied this expense is justified on either or both plaintiff claims and so will make an allowance at half of the cost of this item at $4,389.77.
[148] The balance of the special damages claim relates to the expenses of Mr. Solanki’s past use of cannabis for pain and sleep management, beginning occasionally in 2016 and more regularly since 2018. For the reasons I gave allowing the future expenses for cannabis therapy, I allow this past expense and award damages of $4,279.34.
CHANDRABALA SOLANKI
[149] Chandrabala Solanki was 62 years old at the time of the accident and 71 years old at trial. She lived in Kenya until immigrating with family to Canada in or about 1991.
Pre-Accident History
[150] Mrs. Solanki worked as a seamstress in Canada for approximately 13 years until retirement in the early 2000s. The Solanki family lived together in their London townhouse, with Mrs. Solanki’s daughter-in-law Anita Solanki joining the family upon her marriage to the plaintiff Sanjay Solanki in 2002.
[151] Mrs. Solanki had several health issues in the years before the accident. Diagnoses included shingles, diabetes, hypothyroidism, hypertension and arthritis affecting her knees. Beginning in or about November 2007, her family physician documented findings of right frozen shoulder. Investigations revealed degenerative changes in her right shoulder. She underwent arthroscopic right shoulder surgery in January 2009.
[152] On November 19, 2012, about one month before the accident, the plaintiff’s family physician noted the plaintiff reported a painful left shoulder for the previous six weeks. There was no known injury and her shoulder movement was recorded as “markedly limited.” X-ray and ultrasound studies of the left shoulder on December 6, 2012 showed osteoarthritic changes but no rotator cuff abnormalities or tears.
Post-Accident Course
[153] Following the accident, Mrs. Solanki was first treated in a London hospital emergency department the day after the accident. Records show she complained of right-sided chest pain and back pain. X-rays identified an undisplaced fracture of a right rib. She was prescribed pain medication and released.
[154] She next saw her family physician on December 29, 2012 with complaints of chest wall and shoulder pain. He noted restriction of movement in her neck. He prescribed medication and physiotherapy. In January 2013, her family physician noted she had continued pain and reduced range of motion in the left shoulder. By the end of January 2013, her left shoulder was described as “getting worse”. She was referred for pain management and physiotherapy. She received a course of shoulder injections and continued with physiotherapy until April 2013. She underwent a further course of physiotherapy between March and July 2014, with treatment focused on her neck, left shoulder and to some extent, her low back.
[155] She underwent left shoulder arthroscopic surgery in January 2015 with orthopedic surgeon Dr. Chris Chant. Dr. Chant testified as both a participant and litigation expert. I will address the substance of his litigation opinion later in these reasons. Dr. Chant diagnosed arthritic and degenerative changes, as well as cartilage damage in the plaintiff’s left shoulder. Mrs. Solanki continued to see Dr. Chant for cortisone shots on both shoulders over next two years. He last saw her in 2017, before her stroke.
[156] Mrs. Solanki testified she was unable to carry on her housekeeping tasks or her personal care because of pain and limitation from the accident. The treatment and surgery did not make a meaningful difference in pain or function.
[157] Her family and her friend Aruna Pai testified Mrs. Solanki was unable to carry on her housekeeping, caregiving and self-care activities following the accident. Daughter-in-law Anita Solanki took on responsibility for cooking the family meals, under the direction of Mrs. Solanki. Anita Solanki also assumed responsibility for all the housekeeping tasks that had previously been done by Mrs. Solanki. Mrs. Solanki also needed help with her personal care, with bathing, grooming and dressing. This again was again provided by Anita Solanki as well her sister-in-law Sylvia Solanki and, family friend Aruna Pai. Sylvia Solanki helped her sister-in-law with the cooking tasks on a weekly basis. Mrs. Solanki’s limitations with her left shoulder eventually caused her to decide to have her long hair cut. Anita and Sylvia Solanki testified this change marks a significant loss in their culture. Mrs. Solanki’s description of her loss with the change to her hair accords with that description.
[158] Mrs. Solanki developed pain and limitation with her right ankle, eventually undergoing a right ankle fusion in June 2017. In November 2017 she experienced a stroke. In December 2017 she fell at home from either a seizure or fainting spell and sustained a head injury as well as rib fractures. In 2018 she underwent double coronary bypass surgery but experienced a heart attack and has been in congestive heart failure. She remains living in the multi-generational household, relying on her family for care.
Credibility
[159] Mrs. Solanki unfortunately suffered serious health events unrelated to the accident. She testified through a Gujarati interpreter. She had a poor sense of time and dates. She was cooperative in describing the injuries and symptoms she thought were caused by the accident. However, she was easily confused by the questions. She explained her memory was affected by the stroke and passage of time. She did not seem to be deliberately evasive.
[160] The evidence was largely obtained from contemporaneous medical records and testimony from lay and expert witnesses. Overall, I found the information from lay witnesses to be reliable evidence of Mrs. Solanki’s pre-accident circumstances and her life since the accident. I am mindful of a question of objectivity on the part of the lay witnesses and a possible motive to assist her claim. However, as with the consideration of Mrs. Solanki’s claims, I found the evidence of her daughter-in-law Anita Solanki compelling. She testified as to Mrs. Solanki’s central role in the household before the accident. Anita Solanki was notably upset and emotional in describing the effects of the accident on her own life since the accident. She had planned to start part-time employment at her brother-in-law’s bagel store in 2013; however, postponed those plans as she needed to take over the family household and help in Mrs. Solanki’s care. At one point in her testimony she stated: “I am a mother and a wife but now I feel like a robot.” Her evidence as to Mrs. Solanki’s historical activities and post-accident needs were independently supported by her sister-in-law Sylvia Solanki and family friend Aruna Pai.
Litigation Experts
The plaintiff called orthopedic surgeons Dr. Chris Chant and Dr. Sree Harsah Malempati as litigation experts. The defendant called orthopedic surgeon Dr. Robert Yovanovich. The plaintiff also called occupational therapist Melissa Knot in respect of her housekeeping and attendant care needs as a result of the accident.
Dr. Chris Chant
[161] The defendant agreed the plaintiff could call Dr. Chant as a participant expert; however, objected to qualifying Dr. Chant as a litigation expert for the purpose of offering his opinion on the cause of Mrs. Solanki’s left shoulder impairment.
[162] The defendant argued Dr. Chant’s report failed to comply with rule 53.03(2.1). His report did not set out any meaningful discussion of his reasons for concluding that the plaintiff’s impairment was caused by the accident. For reasons given at trial, I found the defendant was not prejudiced by the report and ruled Dr. Chant could be qualified to testify as to his litigation opinion on causation. Any deficiency in Dr. Chant’s report and the sufficiency of his reasons could be explored on cross-examination and any such issues identified would be for the court’s consideration as to what weight to be given to his opinion.
[163] Dr. Chant operated on Mrs. Solankis’s left shoulder in January 2015. Dr. Chant diagnosed three conditions in her left shoulder: 1. acromioclavicular arthritis; 2. biceps tenosynovitis; and 3. full thickness cartilage loss from the humeral head.
[164] Dr. Chant related that the first two conditions were degenerative changes consistent with osteoarthritis. However, cartilage loss was not typical for osteoarthritis and very likely caused at the time of her accident. Her short and long-term prognosis for all three conditions was very guarded because of the cartilage loss.
[165] The defendant contended Dr. Chant changed his causation opinion without a reasonable explanation. Dr. Chant initially reported the cartilage loss “could possibly” have been “partially caused” by the accident. By addenda report, he noted this statement was unclear and advised the cartilage loss in the left shoulder “was very likely caused” at the time of the accident. Dr. Chant denied he had simply changed his opinion to suit the plaintiff. He testified he was asked to clarify his opinion on the likelihood that the accident was the cause of the cartilage loss. The defendant also highlighted that Dr. Chant was without relevant records of the plaintiff’s prior history of right shoulder degenerative arthritis.
Dr. Sree Harsha Malempati
[166] Orthopedic surgeon Dr. Malempati was qualified as a litigation expert in the field of orthopedic surgery and testified on behalf of the plaintiff. He assessed Mrs. Solanki in February 2017. Dr. Malempati diagnosed exacerbation of left shoulder arthritis, tenosynovitis and tear and full thickness cartilage loss on the humeral head as well as chronic myofascial strain. He also diagnosed chronic myofascial neck and low back strain. It was unlikely she would return to her pre-injury level of function. Her left shoulder impairments are permanent, with significant soft tissue injury, tendon damage and cartilage loss on her humeral head. In his experience, cartilage and tendon injuries tend to be chronic in nature and do not heal over time.
[167] Dr. Malempati acknowledged that cartilage loss can be due to both degenerative and traumatic causes. He deferred to Dr. Chant’s opinion as to whether trauma caused the cartilage loss. Dr. Chant saw the cartilage defect during the surgery. Nevertheless, Dr. Malempati agreed with Dr. Chant’s opinion. He testified that degenerative cartilage loss is usually seen as thinning down to the bone. In Mrs. Solanki’s case, the cartilage loss was in one specific location, which told Dr. Malempati it was more likely relevant to a specific trauma.
[168] Although Mrs. Solanki had underlying degenerative changes in her shoulder before the accident, it was Dr. Malempati’s impression that her shoulder pain and dysfunction worsened after the accident. Her underlying arthritis was also rendered more symptomatic as a result of the accident.
Dr. Robert Yovanovich
[169] Orthopedic surgeon Dr. Robert Yovanovich was qualified as a litigation expert to give opinion evidence in the field of orthopedic medicine on behalf of the defendant. He assessed the plaintiff in June 2017.
[170] He concluded the plaintiff sustained soft tissue injuries to her neck as a result of the accident, but that this would not preclude her from any household activities. He testified the neck impairment had resolved and did not limit her from regular activities. It was an important function but no longer serious.
[171] He allowed it was probable the plaintiff sustained a temporary aggravation to her pre-existing left shoulder symptoms but insisted that any ongoing impairment was not caused by the accident. The impairment of this function is serious and permanent, but not caused by the accident. In Dr. Yovanovich’s view, it is related to pre-accident degenerative conditions that were manifest before the accident and would have developed in any event of the accident. He disagreed with Dr. Chant and Dr. Malempati as to the cause of the left shoulder impairment. In his view, the prior right shoulder pathology in 2009 was virtually identical to the left shoulder pathology. He criticized Dr. Chant for apparently revising his opinion on causation. Dr. Yovanovich testified he saw the photographic images from Dr. Chant’s surgery and was satisfied the cartilage loss was not trauma related.
Findings Regarding the Expert Evidence
[172] Both Dr. Chant and Dr. Malempati were without relevant information about the history of Mrs. Solanki’s right shoulder impairment and the onset of left shoulder pain and dysfunction shortly before the accident. Both plaintiff experts fairly acknowledged that this information was relevant to their opinion. In my view, the defendant overemphasized the significance of the onset of the left shoulder dysfunction before the accident. There is one chart entry about left shoulder pain several weeks before the accident. The post-accident records clearly show worsening pain and dysfunction in the left shoulder. This is progression is supported by the evidence of the plaintiff’s daughters-in-law and her friend, Ms. Pai.
[173] Dr. Chant’s causation opinion may not have been as thorough as one would have appreciated and the change in his opinion as between his two reports required explanation. I accept Dr. Chant’s testimony that he clarified his opinion counsel’s request. In any event of these issue, his causation opinion was consistent with the causation opinion of Dr. Malempati. I found both experts fair and balanced in their testimony.
[174] I did not find Dr. Yovanovich to be as helpful to the court. He is undoubtedly an experienced and respected orthopedic surgeon. However, his advocacy and reluctance to revisit his opinion in light of missing or incorrect information undermined the weight of his opinion. He also weighed the evidence and made findings on credibility.
[175] For example, the family physician records noted pre-accident findings in November 2012 of “marked” reduction in shoulder movement, whereas the post-accident note recorded “significant” reduction. Dr. Yovanovich argued that in his view “marked” and “significant” were synonymous.
[176] He would not acknowledge evidence from treatment providers or family as to Mrs. Solanki’s difficulties after the accident. He testified that in his experience, treating physicians tend to act as advocates for a patient, rightly or wrongly. To the same effect, he responded that Mrs. Solanki’s family were going to be even greater advocates for her.
[177] This expert’s view is problematic as fact-finding and weighing the evidence is within the sole purview of this court. Unfortunately, the impression is that it was in fact Dr. Yovanovich who tended to act an advocate.
[178] It also proved there was information missing from his assessment and reason to doubt some of the conclusions he made. He claimed there was no documentation of back pain at the time of the accident. It proved there were references to reported back pain; however, he claimed he could not interpret the meaning or significance of those chart entries in the ER record. He did concede there were reports of back pain to her physiotherapist in February 2013. He allowed this information affected his opinion in some respects, but again with qualifications.
[179] He argued there was no confirmed diagnosis of a rib fracture after the accident. When presented with the fact of this diagnosis, he acknowledged Mrs. Solanki “may” have had a rib fracture from the accident, but then offered that in his view, rib fractures are “over-diagnosed”. He eventually allowed that a rib fracture indicated the impact of the collision on the plaintiff and therefore the force of the impact on her left shoulder. However, he argued it would be a different type of force than was exerted on her ribs. He acknowledged that after the accident, the records showed a gradual increase in shoulder symptoms and corresponding decrease in function.
[180] On balance I accordingly prefer the opinions of Dr. Chant and Dr. Malempati.
1. Did Chandrabala Solanki sustain a permanent serious impairment of an important physical, mental or psychological function?
[181] I now turn to the four questions that must be addressed to determine if Mrs. Solanki is entitled to general damages and past housekeeping and attendant care expenses. I have previously reviewed the principles in my analysis of Mr. Solanki’s claim.
(a) Did Chandrabala Solanki sustain an impairment as a result of the accident?
[182] There is little dispute among the experts as to whether Mrs. Solanki sustained impairments as a result of the accident. The preliminary issue is the nature of the impairment.
[183] The defendant submits Mrs. Solanki experienced only a temporary exacerbation of her left shoulder impairment and her resulting impairment and outcome is the result of the pre-existing degenerative process that would have occurred in any event of the accident.
[184] Dr. Yovanovich will allow that the accident likely caused soft tissue impairments to the plaintiff’s neck and low back and a temporary exacerbation to the plaintiff’s left shoulder dysfunction.
[185] I accept Dr. Malempati’s opinion that the accident caused exacerbation of left shoulder arthritis, tenosynovitis and tear as well as cartilage loss on humeral head and chronic myofascial strain. I also accept his opinion that the accident caused chronic myofascial strain to Mrs. Solanki’s neck and low back. I find Dr. Malempati’s causation opinion to be compelling. His opinion in respect of the left shoulder is supported by Dr. Chant, who performed the shoulder surgery. I accept their opinion that the nature of the cartilage loss is trauma related. There are also records contemporaneous to or shortly following the accident that document all three complaints.
(b) Has the plaintiff sustained a permanent impairment of physical, mental or psychological function?
[186] The defendant submitted the shoulder injury was no more than a temporary exacerbation of her previous degenerative condition, such that the claim for damages fails at this juncture.
[187] There is little controversy about the permanence of the left shoulder dysfunction; Dr. Yovanovich acknowledged the shoulder dysfunction was permanent; the issue was causation. Dr. Malempati testified that cartilage and tendon injuries around the shoulder tend to be chronic and do not heal over time. There is no effective treatment for cartilage loss. It gets progressively worse over time and could end in shoulder replacement.
[188] Both expert’s opinions are consistent with the evidence as to Mrs. Solanki’s continuous difficulties with shoulder pain and dysfunction since the accident.
[189] The remaining issues are the chronic neck and back pain.
[190] Dr. Yovanovich concluded the neck impairment had resolved and had no opinion on the permanency of her back pain. Dr. Malempati was definitive on the permanency of the left shoulder impairment; however, his opinion was less clear on the prognosis for the chronic neck and back pain.
[191] The plaintiff’s family were also vague about ongoing impairments to the neck and back. Her overall health difficulties that arose since the accident make this a challenge. The plaintiff also seemed to acknowledge her neck and back pain were not as troublesome as they once were. The totality of the record leads to the conclusion that her neck, and low back pain were not permanent.
[192] I will therefore only consider the shoulder impairment in the remainder of this analysis.
(c) Is the function which is permanently impaired an important one?
[193] The regulatory definition of “important function” includes that the function must be necessary for the person to provide for his or her own care or well-being, or be important to the usual activities of daily living, considering the person’s age: s. 4.2(1) .2, O. Reg. 381/03, supra.
[194] In Dr. Malempati’s view, the plaintiff sustained a permanent serious impairment of an important physical function. The left shoulder impairment would substantially interfere with her daily household activities. This would limit her with lifting, pushing, pulling. There is no effective treatment for cartilage loss. It gets progressively worse over time and could end in shoulder replacement.
[195] Dr. Yovanovich also recognized similar restrictions. The evidence from the plaintiff and her family supports that her shoulder dysfunction led to impairment of an important function. She ceased her daily housekeeping responsibilities of cooking and cleaning. She needed help for her self-care, ultimately leading her to cut her long hair because of the difficulties with regular grooming.
[196] On balance, the evidence establishes there is impairment of an important function.
(d) Is the impairment of the important function serious?
[197] Again, there is little controversy on this question. Dr. Yovanovich acknowledged the left shoulder impairment is serious. The uncontradicted evidence is that her left shoulder condition substantially interferes with her ability to perform her usual daily activities and her self-care. This was not a situation where she continued to engage in activities with some frustration and unpleasantness.
[198] I therefore find that Chandrabala Solanki sustained a permanent serious impairment of an important physical function as a result of the accident. The remaining issues are the assessment of her general damages and her past housekeeping and attendant care.
2. The assessment of Mrs. Solanki’s general damages
[199] The plaintiff submits that a reasonable range of non-pecuniary damages for pain and suffering is in a range between $75,000 and $100,000 before the statutory deductible. The defendant submits a general damages assessment would not exceed that deductible of $39,754.13.
[200] The plaintiff underwent several therapies, including injections and then surgery to address her shoulder pain and dysfunction. She had been an active matriarch, with daily cooking of traditional meals, cleaning and caring of the family. She enjoyed hosting social gatherings, cooking meals for between 20 and 30 people. She also enjoyed joining her husband to help their other son in his bagel shop, with preparation of ingredients and directing the employees. This all changed after the accident.
[201] The plaintiff relies upon the “golden years” doctrine for an assessment in this range. In Fata v. Heinonen, 2010 BCSC 385 at para. 88, the court noted the retirement years are special for they are at a time in one’s life when she realizes her own mortality. What may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. This approach is recognized in Ontario: Wilson v. Byrne, 2004 CanLII 20532 (ON SC), 2004 CarswellOnt 2314 at para. 102.
[202] The plaintiff relied upon three decisions for the proposed range. In Coulson v. Hamilton, 2008 CanLII 64374 (ON SC), the plaintiff’s claim for a slip and fall was dismissed on liability. The court provisionally assessed her general damages for injuries to her right shoulder at $82.500. In Lahay, supra, the court assessed general damages at $90,000 for a 43-year old obese man disabled by back pain. In Mousseau v. Morrison, 2018 ONSC 1274, the jury awarded $100,000 to a 61-year old plaintiff disabled by neck, shoulder and back pain.
[203] The plaintiff’s left shoulder impairment indeed disabled her from the daily and emotionally rewarding tasks for her family and further injured her dignity with needing to rely on family for her self-care. However, the award must recognize that her impairment arose in the context of other degenerative conditions and health issues. On balance, I assess her general damages for pain and suffering at $85,000 before application of the statutory deductible.
3. The assessment of damages for housekeeping and attendant care.
[204] The plaintiff acknowledges her damages for housekeeping and attendant care are limited to a past claim for the time between the 2012 accident and her stroke in 2017. She seeks damages for past attendant care supplied by her family and friend in the amount of $43,596 and past housekeeping provided by family in the amount of $25,100. This amounts to a past claim of $68,696.
[205] The evidentiary approach to these claims proved contentious and required a mid-trial ruling. Occupational therapist Melissa Knott was qualified as a participant expert to offer her opinion on Mrs. Solanki’s attendant care and housekeeping needs. However, the defendant later objected to Ms. Knott’s quantification of Mrs. Solanki’s past housekeeping and attendant care expenses. The defendant argued the plaintiff relinquished a pecuniary claim on examination for discovery in 2015. Due to expediency and efficiency, I allowed the testimony to continue, subject to later argument as to admissibility of her evidence.
[206] The parties later advised they required a ruling on the admissibility of Ms. Knott’s evidence in advance of the defendant closing her case and the parties’ closing submissions. For reasons reported at Solanki v. Reilly, 2021 ONSC 1326, I found the plaintiff had not relinquished her housekeeping and attendant care claim and allowed Ms. Knott’s opinion evidence.
[207] Ms. Knott was a balanced and helpful witness from the perspective of her discipline. However, her professional insight was limited to the timespan of her involvement, between May 2013 and April 2015. Her assessment also identified all the plaintiff’s functional needs, without regard to the cause of those impairments. No qualified physician was asked to opine on Ms. Knott’s assessment and to parse what needs and costs were related to the accident.
[208] In Pelletier v. Ontario, 2013 ONSC 6898 the court was similarly confronted with an impossible exercise of assessing care costs against an incomplete record where the plaintiff clearly required care, but the evidence lacked on particulars of who provided it and when. The court accepted the plaintiff relied on caregivers but was then left with the “impossible” exercise of fixing that sum. The plaintiff’s caregivers sought an “arresting” sum of over $840,000. The court thoroughly canvassed the law and concluded the law of recovery for voluntary services was not settled. Based upon the available evidence, the court awarded a lump sum of $50,000; Pelletier, supra, at paras. 409-427.
[209] I accept that Mrs. Solanki required care as a result of the accident and that this required the support of her daughters-in-law and her close friend. I also accept that Mrs. Solanki’s abrupt cessation of housekeeping responsibilities resulted in compensable losses. The plaintiff submitted a schedule of past expenses based upon Ms. Knott’s assessment; however, as explained, I am not satisfied this is a reasonable basis for calculating the loss.
[210] On a review of the record and accounting for the plaintiff’s prior and post accident health problems, I adopt the approach taken in Pelletier, supra and assess the plaintiff’s past housekeeping and attendant care loss in a lump sum of $30,000. From this, her past statutory accident benefits received, in the amount of $19,278.04 for health care expenses and other pecuniary loss is to be deducted: s. 267.8(4), (6).
[211] Finally, Mrs. Solanki is entitled to reimbursement for her one-half share of the expense for the walk-in tub installed for the use of both her and her son as a result of their impairments, at $4,389.77.
Conclusion
[212] For these reasons, I allow judgment in favour of the plaintiffs and award damages as follows:
Sanjay Solanki:
a. General damages: $110,000 less deductible of $39,754.31
b. Past income loss: $111,180.24 less collateral benefits of $80,500
c. Future income loss: $693,345
d. Future care: $34,480 less accident benefits received of $27,500
e. Housekeeping: $10,000
f. Special damages: $8,669.11
Chandrabala Solanki:
a. General damages: $85,000 less deductible of $39,754.31
b. Past Care/Housekeeping: $30,000 less accident benefits of $19,278.04
c. Special damages: $4,389.77
Prejudgment interest on the non-pecuniary general damages for both claims is 0.5%
Costs
[213] If counsel cannot agree on costs, I will consider written costs submissions from each party of no more than four pages, excluding a bill of costs and any Rule 49 offers, to be delivered by the plaintiffs within 30 days of the release of these reasons, with the defendant to respond within 30 days from receipt of the plaintiffs’ submissions. The plaintiffs may provide a reply of no more than two pages to be delivered within 14 days of receipt of the defendant’s costs submissions. All written costs submissions shall be delivered electronically to the judicial secretary.
[214] I again thank counsel for their assistance to the court in the conduct of the trial.
Justice K. Tranquilli
Released: October 7, 2021
COURT FILE NO.: 3411/14
DATE: 20211007
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CHANDRABALA SOLANKI by her litigation guardian ANITA SOLANKI and SANJAY SOLANKI
Plaintiffs
– and –
BETH ANNE REILLY
Defendant
REASONS FOR JUDGMENT
Tranquilli J.
Released: October 7, 2021