COURT FILE NO.: 14-61439
DATE: 2021/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELONIE HIGASHI
Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT
Defendants
Joseph Y. Obagi and Adam J. Aldersley, for the Plaintiff
Pasquale Santini and Mitchell Kitagawa, for the Defendants
HEARD: March 15, 16, 17, 18, 19, 22, 23, 24, 25, 26, 29, 30, 2021; April 1, 6, 7, 2021; June 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 2021
REASONS FOR JUDGMENT
m. smith j
Overview
[1] In the early evening of September 30, 2012, Melonie Higashi’s life changed. Melonie was involved in a motor vehicle accident. Melonie was a front seated passenger in a vehicle driven by her friend when it was t-boned on the passenger side.
[2] Melonie has struggled to regain control of her life because of the injuries sustained in the accident. The parties agree that Melonie has been injured in this accident, but they disagree as to the nature and extent of her injuries.
[3] Prior to the accident, Melonie was self-employed. She created, manufactured, and sold jewelry under the banner Higashi Design.
[4] Post accident, Melonie returned to operating Higashi Design for several years; however, in or around 2017, she ceased operations of her business because of her injuries.
[5] Melonie is seeking the following:
i. $250,000 in general damages.
ii. $58,866.35 for out-of-pocket expenses (agreed upon between the parties).
iii. $1,800,000 for past and future loss of income.
iv. $514,880 for future care costs.
[6] I have identified six (6) issues that must be decided:
i. Who is liable for the accident?
ii. What are Melonie’s injuries?
iii. What is the appropriate quantum of general damages?
iv. What are Melonie’s economic losses?
v. What are Melonie’s future care needs?
vi. Is Melonie entitled to a management fee and tax gross-up?
[7] For the reasons that follow, I assess Melonie’s damages at $1,101,568.55.
Introductory remarks
This trial lasted approximately 6 weeks. There were 20 witnesses. Thousands of documents were filed, including independent medical examination reports, clinical notes and records, treating clinician reports, and business and financial documents. For this case, the volume of evidence presented was necessary to understand Melonie’s life, pre and post accident, and her complex medical condition.
[8] I do not plan on summarizing all the evidence that was presented at trial. That is not to say that the evidence not specifically mentioned in these reasons was not a factor in my decision.
[9] I was, for the most part, generally impressed with the evidence of the witnesses. In the text that follows, I provide some comments regarding the testimony of some of the witnesses.
[10] Let me first start with Melonie. The Defendants submit that this case will be largely decided on Melonie’s credibility and reliability.
[11] The Defendants suggest that Melonie is exaggerating her injuries. Part of the argument is that this exaggeration existed before the accident. The Defendants point to Melonie’s email address (melodramatics@gmail.com) that she chose for herself. The Defendants say that the term “melodramatic” is defined as emotional, exaggerated or sensationalize. They argue that Melonie is melodramatic in her presentation and it reflects her personality. I reject this argument entirely. Melonie’s email address is not, in my view, reflective of anything. One must look at the totality of the evidence presented.
[12] I had the opportunity to observe Melonie over the course of eight (8) days of testimony. She was unable to sustain a full day of questioning and towards the end of the day, she was visibly more fatigued. Several breaks were requested. She wore sunglasses for much of her testimony.
[13] Melonie’s responses to the questions were not always direct. She would often go off on a tangent, requiring counsel to repeat the initial question. At times, Melonie was repetitive. She stuttered and had difficulty articulating her thoughts. She was emotional. There were many body movements, especially at the neck level. My observations during trial have been seen by others and are noted in Melonie’s medical file.
[14] I did not get the sense that Melonie’s behaviour during her testimony was exaggerated. It was real. In my view, Melonie’s injuries are well documented by the medical professionals and her symptoms are consistent from the day of the accident to the present day. I am satisfied that Melonie is not exaggerating her symptoms and has been truthful in that regard.
[15] That being said, my assessment of Melonie’s evidence regarding her injuries and symptoms does not mean that I find Melonie’s entire testimony to be 100 percent plausible. I am not required to believe Melonie’s evidence in its entirety. There are certain aspects of her testimony which I question, dealing mostly with her employment and the type of career she would have had but for the accident. As detailed later in the decision, Melonie testified that she was not going to continue Higashi Design indefinitely and that she was going to make a change. I do not find Melonie’s statement regarding changing jobs to be credible. Melonie had chosen her career path. It was Higashi Design.
[16] The three lay witnesses called by Melonie were: Natalie Wynne, Martin Hynie, and Michelle Chaput. They are Melonie’s friends. Because of the close relationship, I approached their testimony with some caution but concluded that they were all fair, objective, and forthright. Their observations regarding Melonie’s post accident behaviour was consistent with the documented medical evidence.
[17] Regarding the expert witnesses, I preferred, in general, the evidence of the participant experts. The participant experts spent a considerable amount of time with Melonie. I found that the expert opinion of her treatment providers (Melonie’s family doctor and psychologist) to be most valuable because they were able to observe and assess Melonie over a lengthy period. In my view, this places them in a better position to comment on her condition and progress.
[18] The viva voce evidence provided by the litigation experts was nonetheless helpful. These experts were able to provide a unique perspective in their field of expertise. But, their assessment of Melonie was short and situational. It was made at a specific point in time of Melonie’s life. Much of their respective opinions rest on their review and interpretation of Melonie’s documented medical file.
[19] As between the opinion evidence given by the litigation experts retained by Melonie and the Defendants, I prefer the evidence of Melonie’s litigation experts. I found that the assessments of Dr. Shawn Marshall and Dr. Kevin Smith were more comprehensive, and they did not omit any significant information that may have influenced their opinions. Their accounts of Melonie’s medical history were more accurate, and unlike Dr. Comper and Dr. Shanks, they were unshaken on cross-examination. Dr. Marshall’s evidence was most compelling because of his extensive experience in the field of traumatic brain injury.
[20] I need to address a point raised by Melonie regarding the litigation experts retained by the Defendants (Dr. Paul Comper, Dr. Gavin Shanks, and Mr. Tony Jung). Melonie asks that I seriously question the veracity of their evidence. In fact, Melonie goes so far as to say that their opinion evidence should be excluded because they are not objective or reliable and they do not meet the test for admissibility.
[21] Regarding the evidence of Dr. Comper and Dr. Shanks, I do not agree with Melonie’s characterization of their testimony or their lack of objectivity. Although numerous omissions or inconsistencies were flagged during their cross-examinations, this does not lead me to conclude that their opinions should be inadmissible. I believe that their assessment of Melonie’s medical history was perhaps not as thorough as it should have been, and they may have missed some key medical evidence, but their assessment was not deliberate to fit the Defendant’s theory of the case. I am therefore not prepared to exclude their evidence.
[22] In terms of Mr. Jung, he is an occupational therapist. Dynamic Functional Solutions (“DFS”) asked Mr. Jung to assess Melonie and determine her physical capabilities in the context of the Accident Benefits claim. Mr. Jung assessed Melonie on June 26, 2014 and he prepared a report. As part of the quality control with DFS, Mr. Jung provided a draft of his report to DFS for their review. The purpose of the DFS review was only to correct typographical errors and formatting. However, during the cross-examination, it was shown that DFS went beyond correcting spelling mistakes. DFS made recommendations to Mr. Jung to amend the substance of his report. For example, in his draft report, Mr. Jung had originally concluded that Melonie demonstrated the ability to perform work activities in the medium to heavy category. After DFS’s recommendation, Mr. Jung changed his opinion to the heavy category. Mr. Jung testified that, upon reflection, his initial assessment of medium to heavy category was more appropriate. While I accept Mr. Jung’s explanations regarding the changes he made to his report, I am unable to rely upon his conclusions. I have therefore not allotted any weight to the results of the functional abilities evaluation.
Who is Melonie?
[23] Before embarking on the determination of the issues, I believe that it is important to explore Melonie’s life before the accident. I say so for several reasons. First, it is important to understand the type of person that she was pre accident. Second, it will serve as a comparison (pre and post accident), to assist me in determining the extent to which Melonie’s life changed because of the accident. Third, it will provide me with some insight regarding what her life might have been, but for the accident.
[24] Melonie is the eldest of four children. She was raised in a household of Japanese culture and pride. As a child, she was loved by her parents who pushed her to work hard and always seek to do better.
[25] Having heard the evidence of Melonie, Natalie, and Martin, I conclude that, pre accident, Melonie could be described in the following manner:
i. Friendly/social – Melonie was an outgoing and friendly person. She had many friends. They would regularly meet, socialize, and go out to restaurants.
ii. Intelligent/articulate – Melonie excelled in high school and university. In 1994, she obtained a Bachelor of Fine Arts. In June 2003, she obtained a Bachelor of Industrial Design (minor in Business), with distinction.
iii. Driven/motivated/high achiever – in high school, she participated in numerous extra-curricular activities such as track, cheerleading, karate (achieved a brown belt), piano (achieved grade 10 level with the Royal Conservatory of Music system at the age of 16 or 17), competitive trampoline (stopped competing at around 16 or 17 because of a torn ligament), and became the class president in grade 13.
iv. Creative/Artistic – Melonie’s creativity and artistic abilities were seen at an early age. She was always interested in art. She decided to follow her passion and pursue a career in that field, even though her parents wanted her to take a different path (i.e. becoming a doctor or an accountant).
v. Hard worker – Melonie worked long hours. It started at school and continued throughout university, in her jobs post university and while working for Higashi Design.
vi. Caring – she assisted her friends in their time of need. For example, Natalie’s father was diagnosed with terminal brain cancer and Melonie flew to England to be with Natalie. Melonie also helped Natalie’s son who has special needs. Melonie was known for her calming personality.
vii. Talented – Melonie won some competitions for her work. For example, she redesigned a RotoZip for a Black & Decker project; she created a flash card to teach the alphabet to sighted children and children who suffer from blindness.
[26] Melonie was active. She liked to travel and visit museums. She enjoyed skiing, jogging, cycling, exercising, and playing tennis. She had no physical limitations that would prevent her from participating in these activities.
[27] As noted above, Melonie was always interested in art. She enjoyed using her creativity and imagination. Starting Higashi Design fit well with her creative side.
[28] Melonie had a passion and a love for Higashi Design. She converted a hobby into a business. She created a brand that was recognized by her customers and she was proud of what she had accomplished.
[29] Melonie experienced some stressors in her life, causing her some anxiety. Melonie had an unpleasant incident with someone harassing her at work. She had some problems with her relationships. She was unable to get pregnant. She suffered from migraines for which she took medication. She had heavy bleeding during her menstrual cycle. She had an irregular cycle. At times, she had some difficulty sleeping. Melonie’s pre accident life stressors were not all that uncommon or unusual.
[30] Regarding Melonie’s pre accident physical health issues, I do not find that they were of any significance. The evidence shows that Melonie worked hard pre accident, and any issues that she may have had with migraines, insomnia, her menstrual cycle, or any other minor physical ailments did not impact her ability to function and perform daily.
ISSUES
Issue #1 – Who is liable for the accident?
[31] Andrea is 100 percent liable for the accident.
[32] Martin testified that during the evening of September 30, 2012, they decided to drive to Nando’s restaurant for dinner. Martin was driving the vehicle and Melonie was seated beside him in the front seat. He recalls that he was stopped at the red light, at the Carling and Kirkwood intersection. The light turned green and he noticed that there were a couple of cars that were stopped at the red light on Carling Avenue. He started to cross the intersection, when he heard Melonie say, “Oh Martin” and then he felt the impact of the collision.
[33] Andrea testified that she was driving her father’s vehicle with her sister. They were returning home to Hamilton, Ontario. Andrea was not familiar with the city of Ottawa. Andrea was trying to get onto the highway. She recalls that it was dark and rainy. The weather was getting worse and the defogger of the vehicle stopped working. Andrea was having a harder time seeing. She said that “what I saw was the green light and I must have missed it turning red and I went straight through”. When asked if she recalls the color of the light when she crossed the intersection, she said that she does not remember.
[34] Before going through the intersection, Andrea described what was going on in the vehicle in the following manner: “I looked at my sister and tried to look at the GPS at the same time and I am also just trying to make my car window visible. So, I feel like there was a lot going on at once and it was getting a little hectic.”
[35] Constable Hafizi testified that he attended the scene of the accident. He prepared a motor vehicle accident report as well as an investigative action report. Both reports were filed as exhibits. Constable Hafizi spoke with Andrea and Martin at the scene of the accident. Regarding Andrea’s statement, Constable Hafizi wrote: “She was travelling eastbound on Carling Ave at approximately 50 km/h approaching Kirkwood Ave when she noticed that her front windshield had partially fogged up and she couldn’t see the intersection and went through Red light and T-bone V2.”
[36] During cross-examination, Andrea admitted that it was “my accident, so that is why I told the cops that I ran a red light.” Andrea acknowledged that she ran a red light.
[37] Andrea was charged under s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”), being that she failed to stop her vehicle when the traffic control signal showed a red light.
[38] Andrea said that, although it is hard to remember, she believes that she paid a ticket for the running of a red light.
[39] I find that Martin properly proceeded through the intersection on a green light. Andrea admitted to running a red light. She was charged with the offence of proceeding on a red light and paid the fine. Andrea’s visibility was lacking because of a malfunctioning defogger. She was distracted by focusing her attention on the GPS as well as attempting to clean her windows. I am satisfied that Andrea is 100 percent liable for this accident.
[40] Mr. Guy Chiarot is the owner of the vehicle that was driven by his daughter, Andrea. According to Andrea’s evidence, she had her father’s consent to drive the vehicle. Pursuant to s. 192(2) of the HTA, Mr. Chiarot is also liable for the damages sustained by reason of Andrea’s negligence.
Issue #2 – What are Melonie’s injuries
[41] Melonie submits that she has never recovered from the accident. She is physically, psychologically, and cognitively impaired because of the accident. Melonie has daily reminders of chronic pain and her cognitive impairments are permanent. She was diagnosed with a mild traumatic brain injury (“TBI”), post-concussion syndrome, post-traumatic stress disorder (“PTSD”), adjustment disorder, and chronic pain with fibromyalgia.
[42] The Defendants do not dispute that Melonie sustained soft tissue injuries or a mild TBI. They say that throughout the years Melonie showed improvement, but in or around 2016 or 2017, she regressed and became catastrophically impaired in every facet of her life. The Defendants argue that this regression is not keeping with the known sequalae of these conditions. The Defendants note that all of Melonie’s complaints are subjective.
[43] The Defendants remind me that there were four people involved in the motor vehicle accident, and Melonie is the only one injured. They believe that Melonie’s complaints are exaggerated.
[44] Human beings are unique and wired differently. Some of us are anxious by nature, others have a laissez-faire attitude. Some of us are more fragile than others. People react differently when confronted with the same situation. I am not troubled by the fact that Melonie is the only person that sustained injuries in the accident. I believe it to be irrelevant. One must not forget that Melonie took the brunt of the impact because she was the front seated passenger.
[45] I disagree with the Defendants’ position that Melonie’s regression is not in keeping with the typical recovery of someone who sustained a mild TBI.
Melonie’s evidence
[46] Melonie’s recollection of the accident is limited. She recalls proceeding on the green light, turning her head to the right, and noticing the lights of a vehicle approaching her. She screamed “oh god Martin” and then heard the impact of the collision. Things then went black. She is uncertain if she blacked out or simply closed her eyes. The air bags had deployed. She remembers being confused. She was trying to open the door to the car. She found herself seated in the middle of the intersection, not knowing how she got there. She has a memory of leaning against a light post, with someone (volunteer fireman) holding up her head.
[47] Melonie sensed that there was something wrong with her chest, neck, and shoulders. She felt her hands tingling. She ended up in the ambulance and a collar was placed around her neck. She was taken to the hospital and discharged later that evening.
[48] During the next week, Melonie slept but she was overwhelmed by thoughts and she could not focus. Her family physician was not available. She met with Dr. Shadbolt who diagnosed her with multiple soft-tissue injuries and a mild concussion. Melonie’s complaints were neck and back pain, dizziness, fatigue, pain to the chest, tightness, and tenderness to the trapezius bilat, and tenderness to the left sternoclavicular joint.
[49] Melonie testified that the accident caused her numerous symptoms including headaches, light sensitivity, issues with patterns, hyper acuity and ringing in her ears, pain to the jaw, neck, back, chest, and shoulder, balance issues, difficulties breathing, struggling with speaking, not being able to finding the correct words, slower thought process, short term memory problems, and dizziness.
Lay witnesses
Natalie
[50] Natalie was shocked at what she saw post accident. It was completely different to what she had seen before. She testified that Melonie was a shell of who she used to be. Melonie was no longer able to socialize and had difficulty preparing meals or doing laundry. She had lost weight. She was disorganized. Her speech was repetitive. When Natalie was driving, Melonie was jumpy. She would spontaneously scream and was very distracted.
[51] Natalie said that Melonie used to be extremely well organized. It is no longer the case. Melonie’s apartment is chaotic. Her personal belongings are placed in a disorderly manner, with bags and boxes of stuff everywhere.
[52] Natalie’s description of Melonie’s apartment was also seen by the occupational therapist. In the report of Ms. Fiona Smith Bradley, dated July 17, 2019, there are pictures of Melonie’s townhouse and new condominium, showing the living environment to be in complete disorder.
[53] Natalie accompanied Melonie to an independent medical examination in Kingston. They took the train to Kingston from Ottawa. She appeared exhausted and slept on the train. After the examination, Melonie was completely exhausted.
Martin
[54] Martin accompanied Melonie to the hospital. He said that Melonie was not engaging as she normally did. She was not engaging at the high level of communication, responding to questions in a mono-syllabic manner.
[55] Martin knew Melonie pre and post accident. At one point, they were romantically involved. They also lived together. Martin observed significant changes in Melonie. She was no longer organized. Melonie’s belongings were scattered all over the place and she was losing track of where she was placing things. Items were not being placed at the proper location. She was sensitive to light and preferred the room being dim. She did not like loud noises.
[56] Martin saw Melonie trying to re-engage in her business, but he had to take over the emails with customers because Melonie was having a difficult time. After a trade show, Martin observed Melonie being fatigued and needing time to recover.
[57] Melonie was no longer sociable. Martin recalls that she attended his wedding in December 2018. Melonie did not engage with many of the guests. She had offered Martin to take pictures of the wedding, which she apparently did, but never sent them to him.
Michelle
[58] Michelle met Melonie in or around 2007. She assisted Melonie at trade shows. She would remain behind the scenes and would take care of organizing the stock and processing the purchases. Melonie would meet and greet the customers.
[59] After the accident, Michelle’s role changed immensely. At trade shows, the roles were reversed. Michelle was the front person. Melonie remained mostly behind the scenes, interacting a lot less with the customers. Michelle noticed that Melonie’s level of energy had changed. She described Melonie at these trade shows as being an “energizer bunny”, fully animated and excited. Melonie rarely stopped to eat or drink. Post accident, Melonie would sit down frequently and hide behind the display. Melonie would shy away from speaking to the customers and she would ask Michelle to speak to them. Melonie wore sunglasses and ear plugs. She was uncomfortable when large crowds gathered around the display.
Medical evidence
Dr. Fawzi Mankal
[60] Dr. Mankal was Melonie’s family physician since June 28, 2011. He was qualified as a participant expert in the practice of family medicine. I found him to be objective and fair. He did not advocate for Melonie one way or the other.
[61] Dr. Mankal described Melonie as a healthy young person, pre accident. Although he recognized that Melonie had taken migraine medication before the accident, he had no concerns regarding any major medical issues. Melonie was active and regularly exercising.
[62] Dr. Mankal has seen Melonie over 100 times. He finds that Melonie is now a very different person than who he first met in June 2011. Within a month of the accident, he was concerned because of the long-lasting symptoms that Melonie was experiencing. Dr. Mankal diagnosed Melonie with a head injury and referred her to the brain injury clinic.
[63] Dr. Mankal later referred Melonie to see a variety of specialists. He sent a referral to see a neurologist (Dr. D.M. Atack) because he felt that her symptoms were cognitive and neurological. Dr. Mankal also referred Melonie to physiotherapy, occupational therapy, vestibular therapy, psychology, and neuropsychology.
[64] Throughout the years, Dr. Mankal made numerous observations of Melonie during his visits. He noted the following: she attended the clinic wearing glasses, she was protecting her ears, she appeared anxious, she often presented with low mood, she would laugh in uncalled moments, and she had word-finding difficulties.
[65] Dr. Mankal described Melonie’s symptoms as not progressing well and he repeatedly saw the same symptoms. He noted that she was distracted, very dizzy, and unable to concentrate. Sounds and lights were disruptive to Melonie. She was experiencing headaches and fatigue, and did not want to get out of bed.
[66] Dr. Mankal prescribed medication to assist Melonie with her symptoms. He expressed in or around 2017 that any optimism that may have existed regarding Melonie’s health improving had gone. Melonie presented with persistent low mood and emotional disfunction.
[67] Dr. Mankal opined that Melonie sustained a minor TBI. He diagnosed Melonie with post-concussion syndrome, mood disorder, depression, anxiety, and insomnia.
Dr. Shawn Marshall
[68] Dr. Marshall was qualified as a litigation expert, as a physiatrist in the field of physical medicine and rehabilitation, with a speciality in the areas of TBI, assessment of functional impairment, diagnosis of post-concussion syndrome and related injuries and rehabilitation. He was the director of the acquired brain injury program in Ottawa for nearly 20 years. He has an impressive curriculum vitae and his knowledge in brain injury and concussion is remarkable. He provided his evidence in an objective manner.
[69] Dr. Marshall explained the difference between a concussion and a TBI. A concussion is caused by trauma and a head strike is not required. An acceleration-deceleration event is sufficient for the brain to strike the skull. He also explained the different gradation for a TBI. Evidence of a TBI is not necessarily found on imaging. The Glasgow Coma Scale is not a predictor of functional outcome.
[70] Dr. Marshall said that 10 to 15 percent of patients have symptoms that are prolonged beyond six (6) months to one (1) year. There are some indicators as to why these patients are at higher risk and they include a history of concussion, mood disorder and headaches. Litigation and stress have also been shown as prolonging factors.
[71] Dr. Marshall diagnosed Melonie with post-concussive syndrome, PTSD, depression, anxiety, and chronic mild fascial pain throughout the spine and scapular region. He opined that Melonie would have ongoing functional limitations due to the symptoms and she is unlikely to have functional improvement.
[72] Dr. Marshall concluded that the origin of his diagnosis is the motor vehicle accident. In terms of the relevant aspects of the accident, he first said that the collision occurred with sufficient force, causing the jarring and movement of Melonie’s brain. Second, he stated that there were some periods of black out, confusion, non-responsiveness, and daze on Melonie’s part.
[73] Dr. Marshall testified that Melonie suffers from a cognitive disfunction, a physical impairment that prevents her from engaging in long sustained physical activity and, a mood disorder that makes it difficult for her to complete tasks. This condition is permanent because it has not changed over the last seven (7) years. He also opined that Melonie’s medical condition is important and serious because her limitations impact on her day to day activities, ability to work, ability to live independently and quality of life.
[74] Dr. Marshall was challenged on the lack of consistency in the medical records, namely that there were periods of great improvement and regression. Dr. Marshall rejected the suggestion that Melonie had “great” improvement. He acknowledged that Melonie demonstrated some improvement at times, but peaks and valleys are part and parcel of someone with Melonie’s condition. He does not relate it to a change in Melonie’s condition.
[75] Dr. Marshall found that it was unlikely that Melonie would have functional improvement. He does not believe that any of Melonie’s improvements will lead to her being competitively employed or being able to resume a similar lifestyle to that she enjoyed pre accident.
Dr. Kevin Smith
[76] Dr. Smith was qualified as a litigation expert, as an anesthesiologist whose practice focuses on the assessment and management of chronic pain. I found Dr. Smith’s evidence to be objective.
[77] Dr. Smith opined that, because of the accident, Melonie sustained a concussion and he diagnosed her with chronic pain syndrome, with mixed features, including post-concussion syndrome, adjustment disorder, and PTSD. Melonie’s complicated clinical picture makes it difficult for her to manage fluctuating pain symptoms.
[78] Dr. Smith defined pain as an unpleasant sensation and an emotional experience. Dr. Smith said that pain and emotion are intimately connected, to the point where you cannot separate them. He referred to this concept as a “symptom soup”, meaning that the conditions are all mixed, with an inability to draw a line between them. This “symptom soup” makes it very difficult to tease out the various complaints.
[79] Dr. Smith testified that the overarching theme in Melonie’s case is that she has a significant amount of cognitive difficulty, emotional dysregulation, sleep disruption and variable levels of pain, predominantly affecting the head, neck and back. He noted that there were periods of improvement and then exacerbations. Dr. Smith did not find it surprising that, at times, Melonie demonstrated some improvement with treatment. For him, it is a non-specific marker. Melonie has been unable to consistently return to routine functions. Melonie’s regression is due to the complexity of her pain syndrome, the brain injury, and the mood disorder.
[80] Dr. Smith found that Melonie has a high degree of multiple symptom burden and that the combination of all her symptoms makes it highly unlikely that she will be able to sustain productive employment in the future.
[81] Dr. Smith acknowledged that Melonie’s reporting is subjective but he accurately pointed out that there are volumes of medical records that say the same thing, including years of treatment by her family physician. As a clinician, Dr. Smith is trained to rely on his judgment and tease out the maligners. When dealing with a subjective condition, he said that you must use your clinical judgment to ascertain if the diagnosis makes clinical sense. In Melonie’s case, Dr. Smith says that it does make clinical sense.
Dr. Tasleem Damji
[82] Dr. Damji was qualified as a participant expert, as a psychologist capable of giving opinion evidence in the diagnosis of mental illness, as defined in the DSM-5. I found her evidence to be objective, without any signs of bias.
[83] Dr. Damji started to treat Melonie on January 18, 2016. Her initial observations of Melonie were that she had difficulty remembering words, had jumbled thoughts, and lost focus, requiring Dr. Damji to repeat the questions.
[84] Dr. Damji administered several psychometric tests. Based upon the results of these tests along with her observations, Dr. Damji diagnosed Melonie with adjustment disorder with primarily depressed mood and PTSD. Significant changes occurred in Melonie’s life, requiring her to adjust. She had ongoing symptoms of depression, nightmares, memories of trauma, feelings of change and challenges with her sleep.
[85] Dr. Damji initially recommended 12 visits of behavioural therapy, which were accepted by the accident benefits insurer. Melonie was engaged and wanted to improve her life. At the end of the 12 sessions, Dr. Damji noticed that her symptoms were improving. However, the accident benefits insurer did not continue the funding and the frequency of the sessions were reduced. Dr. Damji agreed to assist Melonie at no charge but Melonie was embarrassed in getting free therapy.
[86] In 2017, Dr. Damji saw Melonie nine times. Dr. Damji observed a deterioration and an increase in symptoms. Melonie was diagnosed with major depression and she still met the criteria for PTSD. Melonie started to take Ciprolex.
[87] In 2018, Dr. Damji saw Melonie eight times. During these sessions, Dr. Damji noticed that there was more suicidal ideation and thoughts of giving up. Melonie would use words such as “why bother”. Melonie was overwhelmingly tired. She was tired of her life, as it existed.
[88] In 2019, Dr. Damji saw Melonie eight times. Melonie’s challenges were similar to the previous years, such as cognitive issues, word processing, memory, light sensitivity, and difficulty with patterns. She felt humiliated because she had to attend the food bank. The PTSD and depressive symptoms were still present.
[89] In 2020, Dr. Damji saw Melonie 19 times because she had obtained some extra mental health financial support. In the early part of 2020, Melonie was highly suicidal. She had plans to end her life. Crisis prevention was implemented. At the end of 2020, Dr. Damji’s diagnosis remained the same as the previous years.
[90] In 2021, Dr. Damji saw Melonie four times. Melonie was still tired. She was attempting to do one task at a time but she was easily overwhelmed. Melonie was unable to recognize herself in comparison to who she was pre accident. Dr. Damji’s diagnosis did not change after these sessions.
[91] Dr. Damji concluded that Melonie’s future prognosis is poor. She observed that without treatment, Melonie’s condition really declines. Melonie is constantly reminded of the trauma because of the consistent physical and cognitive impairments that she endures. Melonie is unable to escape it. She feels robbed of her life.
Dr. Paul Comper
[92] Dr. Comper was qualified as a litigation expert, as a neuropsychologist, whose practice includes clinical psychology, treatment, rehabilitation, and applying the general standards regarding the administration of psychometric testing.
[93] Dr. Comper’s evidence was successfully challenged during cross-examination. I find that Dr. Comper failed to consider some key elements in Melonie’s medical file. Also, I believe that the results of the psychometric testing are questionable because Dr. Comper failed to consider Melonie’s functional limitations that could easily impact the outcome of the testing.
[94] Dr. Comper met Melonie on June 2, 2019. The next day, Melonie completed a series of psychometric testing with Mr. Craig Healy. The psychometric testing allows to objectively identify the nature and extent of the cognitive and psychological function. The purpose is to ostensibly sample the various domains that make up the cognitive functioning.
[95] Dr. Comper stated that Melonie explained the accident and went through all her injuries. The description was the same as she had described it to others. Melonie’s presentation was punctuated with emotion and she had to be redirected at times. Dr. Comper stressed the importance that Melonie recalled the details of the accident. Dr. Comper acknowledged that during the interview, Melonie’s head was down on her arm for most of their meeting, which was a sign of fatigue.
[96] Dr. Comper reviewed the results of the psychometric testing. He commented that seven years post accident, he would have anticipated normal testing but with symptoms. Here, Melonie did poorly on her testing, worse than on the testing that was done in 2015. He found that Melonie portrayed herself as more cognitively impaired than expected. He said that he would not expect a decline in her cognitive function. The performance validity measures fell below the normal standard and he questioned Melonie’s effort in completing the test.
[97] Dr. Comper opined that he was unable to attribute a residual effect of mild TBI. In his review of the medical documents, he noted that at the time of the accident, Melonie’s GCS was 15, and she was walking and talking. This meant that there was no indicator of injury. He said that the emergency report at the hospital showed that Melonie was alert and oriented, with no loss of consciousness or head injury. He also reviewed the assessments conducted by other medical professionals. He concluded that Melonie’s behaviour and impairments were atypical and not brain injury related. He postulated that she had a complex non-organic psychological condition and diagnosed her with a Functional Neurological Disorder, which is given when there are no neurological findings.
[98] During cross-examination, Dr. Comper stated that he was unaware that Melonie had pre-existing headaches, which could be a risk factor for prolonged injury. In his original assessment, he did not note that Melonie had an inability to speak after the accident, which could be considered a neurological deficit. He acknowledged that a gap in her recollection (blackout) or a confused state of mind could be a marker of mild TBI. Dr. Comper also agreed that Melonie’s disorientation at the scene of the accident could be another marker of mild TBI.
[99] Dr. Comper did not consider the binocular vision assessment conducted by Dr. Kristen Jefferies dated October 13, 2015. There were several complaints identified, which included, photophobia, difficulty staying on task, short attention span, difficulty sustaining attention when reading, dependency on using her finger to keep her place when reading, difficulty remembering what was just read, and headaches when reading. Dr. Comper did not consider Melonie’s symptoms when deciding the battery of tests that should be taken. He suggested that Melonie complained about everything, stating that subjective complaints are very different to real objective complaints.
[100] Dr. Comper was unable to confirm when the validity tests were given or if Melonie was able to take a break in between.
[101] Dr. Comper testified that there are many factors that may impact the score on the psychometric testing. They include depression, anxiety, pain, mood disorder, fatigue, and sleep disturbances. He agreed that all of these factors were present for Melonie. He also agreed that based upon Melonie’s medical history, her functional stamina was limited to approximately three hours, yet the psychometric testing was conducted during a six-hour period.
Dr. Gavin Shanks
[102] Dr. Shanks was qualified as a litigation expert, a specialist in physical medicine and rehabilitation in the fields of physiatry and emotional overlay, treatment of pain, rehabilitation, use of medication, and the diagnosis and treatment of chronic pain and brain injury.
[103] Dr. Shanks met Melonie on May 30, 2019. He found her to be exceedingly and unusually indifferent and quite depressed. Melonie’s thought process was extremely slow, she moved very slowly, she had unusual postures and he was required to repeat simple questions.
[104] Dr. Shanks said that Melonie had several complaints, including headaches, jaw pain, neck and trapezius pain, mid and low back pain, hip pain, light and noise sensitivity, mood issues, and fatigue.
[105] Dr. Shanks noted that pre accident, there was no evidence that Melonie had any problems that significantly interfered with her enjoyment of life.
[106] Dr. Shanks’ physical examination of Melonie was devoid of any musculoskeletal injury. He opined that in all likelihood, Melonie sustained a minor sprained strain soft tissue injury of her neck and back which had completely resolved, from an objective point of view. Part of her headaches were related to a pre-existing tendency to migraines. Any headaches caused by a concussion would have resolved long ago, as post-concussion headaches rarely last longer than a few a months. He believed that her continuing headaches were a manifestation of psychological stress or retention headaches. Her jaw pain was likely related to stress. In other words, Dr. Shanks was of the view that Melonie’s ongoing pain was basically psychologically maintained, although initially caused, in part, by injury.
[107] Dr. Shanks believed that if it was not for the development of depression, she would have continued to improve and probably much of her pain would have resolved and she probably would have resumed much of her pre accident activities. That said, he agreed that Melonie is impaired and there is nothing exaggerated about her pain. Melonie is limited by pain, but it is maintained by factors other than her physical injury, namely depression. Dr. Shanks opined that at the time of his assessment, the depression was not adequately treated.
[108] Cognitively speaking, Dr. Shanks testified that, in the presence of pain and sleep disturbance, and especially in the presence of depression, it is difficult to be certain that many post-concussion symptoms are in fact due to brain injury. In his opinion, pain, sleep disturbance and depression can all produce symptoms that mimic a mild TBI.
[109] In the absence of post-traumatic amnesia, loss of consciousness, or any observed temporary alteration of brain function in the immediate post-accident period, Dr. Shanks is not convinced that one could confidentially diagnose a mild TBI. If Melonie did sustain a mild TBI, he stated that it is highly likely that symptoms would have markedly improved, at most in a matter of months.
[110] Dr. Shanks was cross-examined regarding his knowledge of Martin’s observations of Melonie immediately after the accident, namely that Melonie was unresponsive to the directions being given by Martin (i.e. removal of seatbelt and asking her to sit by the lamp post). Martin had to pull Melonie out of the vehicle and despite the direction that he gave to Melonie to sit by the lamp post, Melonie went to sit in the middle of the intersection. Dr. Shanks was unaware of this evidence and acknowledged that these could be signs of emotional trauma or mild TBI. Dr. Shanks was unaware that Melonie was experiencing dizziness at the scene of the accident.
[111] Dr. Shanks was aware of the studies which concluded that people who have a history of migraine headaches are at increased risk of developing persistent symptoms following a mild TBI. When Dr. Shanks was suggested that Melonie was at risk because of her pre-existing migraines, he cautioned that a lot of people have the belief that they suffer from migraine headaches, but, when assessed by experts, are found not to have migraine headaches. When challenged on his caution, Dr. Shanks acknowledged that he had never doubted Melonie having had migraines or being misdiagnosed with migraine headaches.
[112] Dr. Shanks opined that the emergency records reflect that Melonie reported no neck pain. However, when shown the prescription from the emergency room doctor that prescribed Melonie with an athletic therapist, as well as massage and physiotherapy as required for musculoskeletal neck pain, he admitted that he had missed this document. He therefore agreed that upon discharge, the emergency room doctor was of the belief that Melonie had neck pain.
[113] Dr. Shanks was challenged in cross-examination regarding his omission of Melonie’s symptoms (vomiting, fatigue, memory problem, speech difficulty, burning in her head, and sleeplessness) when chronicling them in or around one-year post accident. Dr. Shanks responded that his summary of her symptoms is what he believed to be important and there was no intent behind not reporting certain symptoms. He did acknowledge however that these symptoms could relate to trauma and brain injury.
Section 52 reports
[114] There were numerous medical records and reports filed by Melonie and the Defendants pursuant to section 52 of the Evidence Act, R.S.O. 1990, c. E.23. I do not propose to review and/or summarize each of the records or reports. These medical records and reports have been filed for the truth of their contents.
Analysis
[115] Melonie’s complaints are subjective. That is not unusual or uncommon with soft tissue injuries or traumatic brain injury. Her complaints have been consistent, from the day of the accident to the present day.
[116] The Defendants say that, when one carefully reviews the medical records, there is much waxing and waning. Following the accident, Melonie follows treatment and her condition was improving, to the point where she reports that she was 70-75-80 percent better. She returned to many of her pre-accident daily activities such as driving, playing tennis, exercising, and working long hours. She attended more craft and trade shows after the accident. In 2016, Melonie was able to achieve her highest earnings in the business history.
[117] The Defendants argue that Melonie was showing continuous improvement. However, she was struggling to cope well with the insurance matters involving her accident benefits carrier. Melonie was improperly reacting to the accident benefits insurer because of her personality and melodramatic reactions. The accident benefits insurer stopped funding her treatment in 2016. The Defendants further say that, despite her doing better, Melonie stopped working in or around the same time that the insurance was cut off because of her emotional overreacting to the insurer. The Defendants submit that Melonie improperly reacted to a stressful situation, causing her to regress significantly. The Defendants believe that Melonie’s reaction is part of her personality traits that existed pre accident. The Defendants suggest that Melonie’s reaction was not reasonable or foreseeable, and she should not be compensated.
[118] The Defendants say that Melonie’s subjective complaints are questionable, which in turn means that any diagnosis or prognosis must also be questionable. The Defendants argue that if the foundational basis (subjective complaints) is flawed, then invariably anything that flows from that basis cannot be correct. The Defendants submit that the medical opinions are coloured by the acceptance of Melonie’s subjective complaints.
[119] I disagree with the Defendants’ position on several fronts.
[120] First, as previously noted, I find Melonie’s reporting of her injuries and symptoms to be credible and reliable. In my view, the evidence supports the conclusion that Melonie has been consistent in her subjective reporting since the accident. I acknowledge that, at times, some of Melonie’s reporting was extremely positive. It was encouraging improvement for Melonie. However, it did not last. Melonie’s subsequent reporting of not feeling as good as she did is not indicative that she was lying and/or exaggerating. Melonie continues to be symptomatic.
[121] Second, Melonie’s reaction to her insurer’s decision to stop funding is normal. Melonie found that her treatment was helping her. Rightfully, when the insurer denied future monies for treatment, Melonie was frustrated and disappointed. Melonie was not overreacting or overreaching emotionally. There is no reliable evidence before me to suggest that Melonie was prone to the overreactions or, as the Defendants put it, was melodramatic.
[122] Third, it is not disputed that Melonie’s complaints are subjective. But the question that must be answered is whether they are real and ongoing? The answer is yes. Are the diagnosis and prognosis wrong because the medical professionals rely solely on subjective evidence? The answer is no. Melonie’s injuries are not uncommon. Not only do I believe Melonie’s testimony regarding her injuries and symptoms, but the lay witnesses observed a significant change in Melonie, pre and post accident. The lay witnesses were credible and I accept their evidence. In my view, the factual foundation is therefore not questionable, as suggested by the Defendants.
[123] Fourth, the litigation experts that testified at this trial have dealt with cases that are similar to Melonie’s situation. They are trained to assess patients that have subjective complaints. They conduct physical, psychological, and neuro-psychological examinations and different types of testing to assist them in arriving at their conclusions. Precision is not the goal because the science of medicine is not an exact science. While the litigation experts may have seen Melonie at a time when she was not doing well (as opposed to when she was experiencing significant improvement), I do not find that this skews the expert’s findings. The litigation experts do not simply rely on their examination (physical or mental). The diagnosis is based upon a review of Melonie’s entire medical profile and history. Each medical litigation expert has concluded that Melonie is injured.
[124] Fifth, the Defendants point to medical records that are inconsistent with Melonie’s subjective reporting. The inconsistencies noted during trial are not numerous and, in any event, they do not persuade me that Melonie’s subjective complaints are exaggerated.
[125] In support of the Defendants’ contention that Melonie has been inconsistent in her reporting, they rely upon the information listed in the ambulance call report and the emergency hospital records. I disagree that these documents are suggestive of an inconsistency for the following reasons:
i. The paramedics report that Melonie’s chief complaint was “chest pain” and that her secondary complaint was “dizziness; other: numbness in both hands.” In the symptom section, it is reported, amongst other things, the following: “General: No anxious, No confusion, No Dizziness, No General Weakness, No Loss of Consciousness” and “Musculoskeletal: No Back Pain, No Neck Pain.” The paramedics were not called to testify. It is unknown how the answers were populated in the ambulance call report. The report is confusing because it is inconsistent. At the beginning of the report, it is indicated that Melonie complains of dizziness, while further on, she has no such complaints. I do not place much weight on this report.
ii. The hospital records are also confusing. In some areas, there is reference to “no neck injury” or “no neck pain”. In other places, it says “no pain at rest” or “right side neck”. On discharge, the emergency room physician prescribed analgesics and massage for neck pain. I equally do not place much weight on this report.
[126] Sixth, I found Dr. Mankal and Dr. Damji’s evidence to be the most helpful. They have treated and observed Melonie over a lengthy period, giving them a better insight into Melonie’s condition. I do not find that either of them was Melonie’s advocate.
[127] Dr. Mankal’s evidence clearly documents a consistent thread of symptoms from the first time that he saw her post accident to present. Dr. Mankal acknowledged that Melonie reported some positive improvements, but her symptoms were nonetheless consistent.
[128] Dr. Mankal concluded that Melonie is quite disabled. The prognosis is guarded. Based on the number of years that he has treated Melonie since the accident, he does not believe that there is a cure to Melonie’s problems nor that complete recovery is possible. The goal is to manage Melonie’s symptoms as best as possible.
[129] Dr. Damji has been treating Melonie for approximately five years. She acknowledged that Melonie improved with treatment but found that she regressed without it. Despite some improvement over the years, Dr. Damji’s diagnosis remains the same. Melonie has continuously reported significant difficulties in her day to day life, which is in line with someone who struggles from depression and PTSD.
[130] In summary, I conclude that Melonie sustained soft tissue injuries and a mild TBI because of the motor vehicle accident. She suffers from post-concussion syndrome, PTSD, adjustment disorder with primary depressed mood, and chronic pain in the neck, back and jaw. In addition, I accept that Melonie continues to experience the following ongoing symptoms and challenges: headaches, light and noise sensitivities, dizziness, cognitive difficulties with speech, word finding, slower thought process and short-term memory.
[131] Considering the above, I find that Melonie’s injuries are permanent, serious, and important. The Defendants have not argued that Melonie failed to meet her onus of proving that she suffered a permanent serious impairment of an important bodily function.
Issue #3 – What is the appropriate quantum of general damages?
[132] There are three principles that anchor the assessment of general damages. The first is that these awards are by their very nature arbitrary and turn on the experience of each individual, both in terms of physical and psychological suffering. The second is that the award must be fair, reasonable, and consistent with other decisions involving similar injuries. The third is that general damages should not be used as a top up but rather provide an injured person with reasonable solace for the misfortune: see Nicholson v. Shreve, 2014 ONSC 3158, [2015] W.D.F.L. 741, at paras. 34-36.
[133] Both parties have referred me to several cases. Below is the list of cases that I believe are most relevant to my assessment:
i. Watkins v. Dormuth, 2014 BCSC 543, 67 M.V.R. (6th) 28– the plaintiff suffered whiplash-type injuries to her back, neck, and shoulders. She continued to suffer ongoing problems with the neck and shoulders. She sustained a mild TBI and she had ongoing cognitive difficulties. The plaintiff’s ongoing problems related to the mild TBI include headaches, mood changes, anxiety, fears associated with driving, difficulty with memory, poor concentration, distractibility, fatigue, problems with balance, irritability, and noise intolerance. The court assessed non-pecuniary damages at $175,000.
ii. Wallman v. John Doe, 2014 BCSC 79, 30 C.C.L.I. (5th) 6 – the plaintiff suffered from a post-concussion syndrome and mild TBI. Symptoms included headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression, anxiety, problems with vision, concentration difficulties, and speech issues. The court found that an award of $200,000 in general damages was appropriate.
iii. Khelifa v. Sunrise et al., 2015 ONSC 740 – the plaintiff suffered a comminuted fracture of her left ankle and a more severe fracture of her right ankle as a result of a serious fall. The plaintiff suffered a mild head injury but it was not established that she suffered significant cognitive deficits. The accident worsened a pre-existing PTSD and depression, but it was a temporary worsening. The plaintiff’s mood had much improved. The court assessed the plaintiff’s general damages at $175,000.
iv. Mayer v. Umabao, 2016 BCSC 506 – the plaintiff suffered from mild TBI, vestibular injury and somatoform disorder. He struggled with memory, and the ability to describe and find words. The court found that the plaintiff suffered a considerable loss in his enjoyment of life, family, friends, social interests, and vocational interests. The court concluded that the plaintiff was entitled to $175,000 in general damages.
v. Sheldon v. Reyna, 2018 ONSC 5611 – the plaintiff suffered from chronic pain disorder, adjustment disorder with primarily depressed mood and somatic symptom disorder, predominantly pain. The plaintiff had a wide variety of pain symptoms throughout her body. She had difficulty sleeping. She had been taking several medications for several years. She no longer worked. Her ability to take care of her home was impaired. Her family activities had been curtailed and volunteer work has been limited. She no longer participated in the leisure activities she previously enjoyed. The court assessed the non-pecuniary general damages at $100,000.
vi. Rolley v. MacDonnell, 2018 ONSC 6517, 87 C.C.L.I. (5th) 56 – the plaintiff suffered a mild TBI as a result of the collision. He suffered from somatic symptom disorder, adjustment disorder, post-traumatic headaches, cognitive issues, post-traumatic vision syndrome, and exacerbation of pre-existing chronic pain. The court assessed the general damages at $190,000.
[134] At the time of the accident, Melonie led a very active life. She was independent, ambitious, passionate and a hard worker. She enjoyed sporting and social activities. She was a confident and happy person. The accident left her with permanent cognitive, psychological, and physical impairments. She is sad and no longer enjoys life as she used to. She is easily fatigued and suffers from chronic pain. Symptoms that affect her enjoyment of life and ability to carry on her normal day to day activities include headaches, balance issues, noise and light sensitivities, word finding, slower thought process, and short-term memory problems.
[135] Despite her injuries, Melonie was able to carry on some of her pre accident activities. She returned to work at Higashi Design for approximately five (5) years. Impressively, Melonie increased the sales from approximately $9,000 in 2013 to over $23,000 in 2016. She resumed some sporting activities (tennis and running). She travelled, shopped, cooked, cleaned, and made some meals. She planned and became pregnant (but miscarried). She coached trampoline and moved into a new condominium. Although she did carry out these activities, the evidence shows that it was not always easy for Melonie and she needed some assistance with some of the activities.
[136] The motor vehicle accident fundamentally transformed Melonie’s life, but to her credit, she has persevered and has shown remarkable resilience. She has daily struggles and she will continue to have various forms of impairments for the remainder of her life. However, with proper treatment, Melonie can maintain a certain level of functioning. Melonie can have good days if she paces herself and limits the activities.
[137] Having regard to Melonie’s pain and suffering, loss of enjoyment of life and the authorities provided by counsel, I assess Melonie’s non-pecuniary damages at $225,000.
Issue #4 – What are Melonie’s economic losses
[138] Melonie seeks $300,000 for past loss of income and $1,500,000 for future loss of income, both of which are inclusive of contingencies.
[139] To succeed, Melonie needs to demonstrate that there is a real and substantial possibility that the hypothetical events that she advances would have taken place, but for the accident. Once the real and substantial possibility has been established, I must then assess the likelihood that such an event would have occurred and make the award accordingly. This principle of law was recently reiterated in the Ontario Court of Appeal decision called West v. Knowles, 2021 ONCA 296, at paras. 28, 72-76.
[140] Generally, the court must consider contingencies that may affect the loss of income calculation. General contingencies apply to all individuals, while specific contingencies are specific to the plaintiff. The latter requires an evidentiary support to conclude that the specific contingency is realistic and not speculative: see Beldycki Estate v. Jaipargas, 2012 ONCA 537, 295 O.A.C. 100, at paras. 77-79.
[141] An award for future loss of income compensates the plaintiff for his or her loss of earning capacity, meaning the loss of an asset or capacity to earn: see Boucher v. Wal-Mart Canada Corp. , 2014 ONCA 419, 120 O.R. (3d) 481, at par. 102.
Pre accident work history
[142] After graduating from Concordia, Melonie worked for a company called CAE Electronics, a flight simulator company. She was initially hired as a 3D modeler and eventually became a designer or what is known as a builder. This employment lasted approximately three (3) years, and she worked on a full-time basis. Melonie said that she would usually work 60 to 70 hours per week and would go in on the weekends. Melonie claims that at the beginning of her employment, she was earning $20,000 per year. By the time that she left her employment, Melonie believes that her salary increased to approximately $50,000 per year, including overtime work.
[143] Melonie left CAE Electronics because she felt that her work was not creative and there was something missing.
[144] Melonie took a vacation to Australia, Fiji, and New Zealand. During this break from work, she realized that she was missing the creative part. She said that she wanted to do product design and needed more education on the technical aspect, such as manufacturing. That led Melonie to apply to Carleton University.
[145] While completing her Bachelor of Industrial Design at Carleton University, Melonie took an internship position with a company called Discreet Logic. She was working with special effects technology in the film industry. Melonie testified that she was earning approximately $48,000 per year.
[146] When asked how the employment at Discreet Logic came to an end, Melonie said that she considered going into that industry, but she still had one more year of university to finish her degree.
[147] After graduating Carleton University in June 2003, Melonie was not certain what she wanted to do. She did not consider going back to CAE or Discreet Logic. She took time to decompress and started to paint on large canvasses. Melonie successfully sold some of her paintings at a Toronto showing. However, she realized that it was not lucrative, and she did not pursue it further.
[148] Jewelry design had been one of Melonie’s hobbies for years. She taught herself to design and manufacture jewelry. Initially, she would create bracelets and give them away to family and friends. Melonie realized that there was an opportunity for her to have her own business, teach herself to run a business and present her creations. Melonie was excited at the prospect of starting a business. She wanted to start something that was her own. Melonie was not entirely certain as to when she started Higashi Design, but she registered the business name “Higashi Design” as a sole proprietorship, effective October 4, 2002.
[149] Melonie was responsible for most aspects of the business. She would research new ideas, which brought her to travel. She would buy the raw materials. She would design, manufacture, and sell the product. She was responsible for the administration and financial side of the business. Martin would assist her with the financial reporting. Melonie would market her products through the relationships that she developed throughout the years.
[150] Melonie designed and fabricated a wide variety of jewelry products. She started with bead work and then created earrings, bracelets, necklaces, rings, tiaras, head pieces, fasteners, and sandal jewelry. Melonie said that her jewelry was very different, in that she was taking into account different styles that one would not typically see.
[151] Melonie was working out of her home. Private jewelry parties were organized, where the host of the party would get 10 percent of her sales, as an incentive to host the party. Then, people asked her to build jewelry for bridal parties, such as creating a tiara.
[152] From there, she started to attend trade and craft shows. She recalls that her table at the shows was swarmed by people. That gave her confidence, and she remembers telling herself “I really have something here.”
[153] In a typical year, Melonie would attend approximately ten (10) shows and ten (10) private events. The business grew by word of mouth.
[154] Melonie was also selling her pieces to stores that sold jewelry. She recalls driving to Montreal, meeting with the owner of one of these stores, and after presenting her with some pieces, Melonie received a cheque immediately. Melonie was selling to a store in Los Angeles. She even had clients in Europe.
[155] Melonie attended charity functions and donated some of her pieces. She said that it was exciting to get the exposure and see people bid for her product. This experience convinced her that there was value in her work and its originality. It validated her.
[156] Melonie liked to design jewelry and have it mean something. She said that she could see the joy in the women that were buying her jewelry.
[157] Melonie said that she had created a brand by designing unique pieces. She explained that she created a multi-functional necklace that could be worn 16 different ways. She was seeing opportunities outside of Canada, such as the United States. She wanted to increase her sales by selling her product online but she wanted to protect her designs. On April 18, 2011, she registered two copyrights. The first was called “Melonie Higashi Genesis Necklace” and the second was called “Melonie Higashi Reform Necklace”.
[158] Melonie was specifically asked to describe how she felt regarding her business’ performance before the accident. She responded that she was proud of what she had accomplished, starting with a little bead that grew into a brand. Melonie testified that, pre accident, she had looked at the sales of her business and realized that she was plateauing. She was 40 years old at the time. She felt that something had to change. The next step for Melonie was to develop a web presence to reach more people on a larger stage, removing the necessity of having to drive to different cities or provinces. With an online presence, she could be available year-round. She saw the potential and she believed in herself. She had developed relationships with her customers and they were following her shows.
[159] Melonie said that, pre accident, she knew how much she was making. Although she believed in her company and her design, she was looking into her future and she was realistic. She poured nine (9) years into her business. Melonie suggested that many people would have quit before her. She sacrificed a lot by not making a lot of money. She was querying on how she was going to support herself and how she was going to live and eat.
[160] Melonie testified that she could have gotten a job. She was not afraid to work because she always worked hard. However, she had the courage to go out on her own.
[161] Melonie was asked if she had a sense as to how much time she would have given to the business. She said that based on the work that she had done up to that time (age 40), she should have seen the growth. She could not give an exact number of years but said that she was not going to wait another ten (10) years because she was thinking of her future and she could not sustain a life on the amounts she earned in the business.
[162] Melonie testified that she would have worked towards the next step that she identified (online presence) but she would have gone back and looked for work. She had many connections. She would have accepted a job as a junior designer because she had to be realistic.
[163] Natalie testified that Melonie was passionate about her business, and prior to the accident, she was focusing on her business.
[164] Martin assisted Melonie with her business. He would attend some of the trade shows and transport some of the jewelry. He helped her set up QuickBooks for the business. Melonie was responsible for recording the sales and expenses, but in or around tax season, Martin would make sure that the numbers added up correctly. Martin would conduct a quick audit, assemble the books, and send it off to the accountant.
[165] Martin testified that he talked to Melonie about the growth of the business and the different paths that it could take. He said that they both realized that Melonie had a recognizable brand but that the range of the income was self-limiting by the fact that the jewelry manufacturing side of things depended mostly on one person. Martin said that Melonie was able to make $5,000 during one weekend at a trade show. They talked about converting the business into a more regular stream of income, but that required a fundamental change in the business. He said that there were two options: (1) either remain local and make higher end jewelry such as diamond pieces for a higher return on investment or (2) mass produce some of her pieces and cater to a larger and broader audience. He gave the example that Melonie could mass produce some earrings for children that she sells during the Christmas season. He stated that these earrings were very popular every year and the design did not need to change. He felt that mass producing the earrings could change things dramatically for the business.
[166] When asked which option Melonie was leaning towards, Martin responded that “she was stuck on that decision of the two.” Melonie needed to consider what she needed to give up for changing the business model (mass production) or how to make what she currently had into something bigger while remaining local.
[167] Regarding the recorded income earned, Melonie’s personal income tax records were filed. Melonie’s income for the years 2007 to 2012 is summarized below:
Year
Income
2007
$15,809
2008
$10,689
2009
$12,733
2010
$10,927
2011
$9,233
2012
$5,555
[168] The Higashi Design Profit & Loss Statements for the years 2009 to 2012 were also filed and can be summarized as follows:
Year
Sales
Net Income
2009
$31,458.56
$9,387.78
2010
$35,020.81
$9,927.25
2011
$27,082.33
$6,179.43
2012
$16,055.18
$6,462.93
[169] Melonie acknowledged that not all sales were recorded. She was unable to give a number to the sum of her yearly unrecorded sales but did say that it was not more than $10,000. During cross-examination, she corrected her answer and suggested that it was a few hundred dollars.
[170] Melonie testified that she would donate part of her sales to charities.
Post accident work history
[171] Immediately following the accident, Melonie was unable to work. She canceled the shows that had been scheduled. She gradually returned to her business but she felt that she was limited. Because of her fatigue and dexterity difficulties (right hand and eyes), she was unable to conduct the research she used to and she found it challenging to work with materials.
[172] Melonie was attending shows but using older designs that she had previously fabricated and had in stock. She used to pride herself on creating a new collection every season but it was too taxing for her.
[173] She would rely heavily on her friends to assist her with the shows. Her friends would play a much bigger role than they used to. She had difficulty remembering her customers, which was previously one of her greatest strengths. The shows were extremely exhausting for her.
[174] Melonie testified that she was fighting to keep her business going. She kept working while attending her therapies. However, she felt that her health was regressing because she was pushing herself very hard and felt depleted afterwards.
[175] Melonie’s last trade show was in 2017. She said that her business was on life support and she had to let it go because of her health. She further said that it was not easy to say goodbye.
[176] After abandoning Higashi Design, Melonie obtained part-time work (no more than ten (10) hours per week) coaching trampoline. She worked at two locations. The first was Spring Action Acrosports Inc., starting in March 2017 and ending in January 2020, earning $23 per hour. The second was at Alexkazam Gymnastics, starting in March 2018 and ending in June 2019, earning $22 per hour.
[177] Melonie testified that she could not coach for two days in a row because she was fatigued and required a lot of rest.
[178] Melonie’s income for the years 2013 to 2019 is summarized below:
Year
Income
2013
$4,828
2014
$5,761
2015
$6,610
2016
$11,329
2017
$4,011
2018
$6,319
2019
$7,556
[179] The Higashi Design Profit & Loss Statements for the years 2013 to 2017 can be summarized as follows:
Year
Sales
Net Income
2013
$9,546.91
$4,796.41
2014
$15,868.20
$5,755.34
2015
$21,574.63
$6,428.57
2016
$23,771.33
$11,289.48
2017
$2,776.83
$1,198.12
Expert evidence
Vocational Assessment
[180] On July 9, 2014, Mr. Daniel Egarhos conducted an independent vocational evaluation and transferable skills analysis. He testified that Melonie’s university degrees were valuable, but mentioned that for the industrial design sector, she may have to update her skills.
[181] Mr. Egarhos felt that, in 2014, Melonie had transferable skills and that she was realistically employable. He went further to say that based upon her aptitude testing, Melonie met or exceeded the requirement of certain jobs, putting her in the higher range category. Based upon his assessment, Mr. Egarhos believed that there were several compatible vocational options for Melonie, and the earnings ranged between $14.25 (lowest) to $54.80 (highest) per hour, depending on the type of employment.
[182] Melonie’s vocational options were: IT user support, industrial designer, instructor (fine arts, industrial design, graphics), graphic arts technician, and drafting technical.
Accounting evidence
[183] Darrell Sherman, a forensic accountant, was qualified to provide opinion evidence on the quantification of income loss and present value quantification.
[184] In reviewing the financial records of Higashi Design, Mr. Sherman concluded that, pre accident, Melonie’s business was not successful. He therefore assumed that Melonie would have continued the business for a few years and then ceased operating the business. Melonie would then have fallen back on her education and gotten back into the workforce. Mr. Sherman assumed that Melonie would have entered the workforce on January 1, 2015.
[185] Relying upon the testimony of Mr. Egarhos and the five (5) vocational options listed above, Mr. Sherman calculated Melonie’s past loss of income to range from $242,092 (drafting technician) to $318,585 (IT support user). In terms of the future loss of income, the range was $1,222,124 to $1,732,576.
[186] At the Defendants’ request, three additional vocational options were added for the purposes of Mr. Sherman’s calculations: data entry clerk, jewelry designer/maker and retail clerk. The past loss of income ranged from $113,792 (retail clerk) to $154,610 (data entry clerk) and the range for the future loss of income amounted to $633,179 to $784,014.
Analysis
Is there a real and substantial possibility that Melonie would have entered the workforce?
[187] The answer is no. I am not persuaded that Melonie had an interest or an inclination to pursue an employment as an industrial designer or any other type of position. I find that there is an absence of corroborating evidence that Melonie was going to enter the workforce. In my view, Melonie was going to continue to follow her passion of designing and selling jewelry through Higashi Design.
[188] Absent the accident, I find that Melonie would have continued the same path that she thoroughly enjoyed pre accident. Melonie would have continued to operate Higashi Design. The evidence does not support that Melonie would have deviated from her chosen path of growing the business, despite Melonie’s modest earnings.
[189] While Melonie may have contemplated her future at the age of 40 (in or around 2011), I find that there is no evidence before me that she took any steps in exploring other opportunities outside of Higashi Design. I do not believe that before the accident, finding an employment was an option for Melonie. When Melonie says that she would not have continued with the business for another ten (10) years, I find her testimony unbelievable. Melonie was not prepared to part with her business. Rather, Melonie was focused on finding new and innovative ways of reaching more customers and increasing the revenues of her business.
[190] Melonie argues that she would not have continued with a business that only earned profits between $5,000 to $10,000 per year because it was below the poverty line. I disagree.
[191] Melonie was willing to forsake earning income because she received a lot of personal satisfaction from her work. There is little evidence before me that Melonie was worried about her finances. She loved creating new designs and she was proud of her accomplishment. She was excited when witnessing the joy that her customers had in purchasing her unique designs. Creating art was fulfilling for Melonie. I believe that monetary gain was a secondary goal.
[192] Melonie found a way to survive with the modest earnings that she made from her business. There is some evidence that Melonie was accepting cash that was not reflected on her financial statements.
[193] Melonie admitted that she was not recording all her income from the business. Initially, Melonie testified that it was not more than $10,000 and then, during cross-examination, she corrected her evidence to say that it was limited to a few hundred dollars. I do not accept Melonie’s correction. I believe that Melonie was receiving much more than a few hundred dollars, which could partially explain her ability to live on the modest profits recorded in Higashi Design. Recall that Martin testified that Melonie could earn $5,000 during one weekend at a trade show. By attending an average of ten (10) shows per year, the recorded annual earnings of the business should have been higher.
[194] The personal satisfaction that Melonie garnered from her creations kept her going for eight (8) or nine (9) years before the accident. Melonie was driven to create and grow Higashi Design. I find that Melonie was not prepared to abandon her dream. At the time of the accident, Melonie’s path was clear and certain. Her focus was the growth of Higashi Design.
[195] In my view, had the accident not occurred, Melonie would be implementing the next phase of her business, namely developing an online presence. She was far from contemplating a different career path. I say so for the following reasons:
i. She was extremely proud of her accomplishment in having started a business from scratch, on her own. She put her heart and soul into her business.
ii. She was proud of having developed a recognizable brand that brought joy to her customers.
iii. She recognized that the sales were plateauing, and she was looking at new ways to expand her business and reach a larger audience. She was being encouraged by Martin to create an online presence.
iv. She had some success in selling her product outside of Ottawa, including Montreal, Toronto, Los Angeles and in Europe.
v. She saw the potential for growth.
vi. She was excited about her future.
vii. For eight (8) to nine (9) years, she faithfully operated her business, despite earning a modest amount of money.
viii. She did not consider returning to CAE Electronics or Discreet Design. She made no efforts in looking for new employment, focusing all her energy in her business.
[196] In addition to the above, I find it telling that post accident, Melonie decided to continue her business, despite her health challenges. To me, that supports my conclusion that Melonie was passionate about her business and that her career choices had been cemented before the accident. Melonie’s belief that her business had potential for growth remained post accident. From 2012 to 2016, Melonie tirelessly continued with her business and remarkably increased her profits to over $11,000, the best that she ever had since its inception.
[197] Melonie’s post accident perseverance is impressive but again, I find that it clearly demonstrates Melonie’s pre accident intentions vis-à-vis her career path. Higashi Design was her chosen career and I do not believe that she would have abandoned her business easily.
[198] Melonie reminds me to consider the evidence of the vocational assessor, Mr. Egarhos, and more specifically that Melonie had the skills to pursue various employment opportunities. I do not doubt that Melonie had transferable skills. That is not the issue. It is whether she would have used those skills to pursue alternative employment and if so, at what point in her life would that have occurred. Again, I am not satisfied that Melonie had any interest in pursuing other employment. Therefore, Mr. Egarhos’ analysis is of little value to me.
[199] Mr. Sherman testified that, at age 40, one’s career is not set in stone, especially when the business is failing. I take issue with Mr. Sherman’s conclusion that the business was failing. The business was not failing in Melonie’s eyes. Money did not define Melonie’s success. For Melonie, she had achieved success because she started a business from nothing and she had created a brand that was recognized by her customers. Pre accident, Melonie was excited about the future.
[200] Mr. Sherman assumed that Melonie’s business would close in January 2015. He felt that a business earning approximately $8,000 per year is not a reasonable scenario to consider. In my view, he should have considered the scenario that Melonie was going to continue operating her business because it reflected Melonie’s life at the time of the accident and more importantly, it reflected Melonie’s future.
[201] Given my finding that Melonie would have not returned to the workforce, Mr. Sherman’s opinion evidence is not helpful. I reject Mr. Sherman’s assumptions that she would have abandoned Higashi Design in January 2015 and returned to the workforce because I do not find that they are supported by the evidence.
[202] Melonie accepts that her historical trend is relevant, but she says that it should not be determinative. She argues that given her family background, her childhood, her university degrees, her job experiences at CAE Electronics and Discreet Logic, her work ethic, and her transferable skills, she would have excelled in the marketplace. I do not dispute that Melonie possessed the necessary skills to start over her career. However, I reiterate that I do not accept that Melonie would have taken the steps to start a new career. I find that Melonie was content in continuing with her passion of operating Higashi Design, in exchange for not making a lot of money.
[203] Melonie says that if I do not find that she would have abandoned her business and entered the workforce, I am sentencing her to a life of poverty. I do not agree. First, Melonie chose her career. Pre accident, she focused on building her business, regardless of money. Second, at the time of the accident, Melonie had big expansion plans and believed that she could increase the business income. Third, I am not satisfied that Melonie was only earning the recorded income. As mentioned previously, the evidence establishes that she was earning $5,000 per show, yet that does not appear to be reflected entirely in the records.
[204] In sum, I do not accept Melonie’s evidence at trial that she would have changed careers at some point in the future. The evidence clearly establishes that Melonie loved her work at Higashi Design and she was devoted to pursuing her career in this business.
Is there a real and substantial possibility that Melonie would have continued to operate Higashi Design?
[205] The answer is yes. For the reasons outlined above, I find that had the accident not occurred, Melonie would have continued to operate her business. This scenario has more of an air of reality and reflects the evidence that I heard at trial. Melonie would have proceeded to the next step in growing her business, namely the creation of an online presence.
Factors to consider in the assessment of an economic loss claim
[206] The objective of an award for loss of income is to put Melonie in the same financial position she would have been, but for the accident.
[207] In calculating Melonie’s economic loss, Mr. Sherman has not advanced a scenario where Higashi Design continues to operate beyond January 1, 2015.
[208] The Defendants suggest that the best predictor for the future is the past. In this case, the Defendants argue that I should base my assessment on Melonie’s pre accident earnings because Melonie’s plans were set, in that she had no plans to change her career.
[209] I agree with the Defendants’ position. However, my assessment cannot be limited to Melonie’s pre-accident earnings. As detailed in the paragraphs that follow, I have considered several factors in my assessment of Melonie’s economic loss.
Factor #1 - Business income
[210] Prior to the accident, Melonie operated Higashi Design for a period of eight (8) to nine (9) years, which is not an insignificant amount of time. As this was a start up and Melonie had no experience in operating a business, I believe that the income generated from the business in the early years may not be entirely representative of the business’s potential. However, after being in business for six (6) to seven (7) years, I am of the opinion that the income figures begin to become quite relevant. For the years of 2009 to 2011, Mr. Sherman calculated Higashi Design’s average net business income to be $8,443 per year. In my view, this amount creates a benchmark from which I can start my analysis.
[211] Post accident, Melonie resumed operating the business. I recognize that Melonie was not at her full potential. She was struggling physically, mentally, and cognitively. Also, Melonie’s new creations were very limited, if not existent, and she was liquidating a lot of the older stock. Nonetheless, Melonie was able to slowly increase her net business income from $4,796.41 (2013) to $11,289.48 (2016).
[212] In addition to the recorded business income, as noted earlier, Melonie was receiving cash for some of her transactions and these did not form part of the Higashi Design financial statements. On the evidentiary record before me, I cannot determine an exact amount, but it is a factor that I consider in my analysis.
[213] The historical data that is available for Higashi Design is important because it covers a long period. In my view, the past data is helpful to predict the future. From 2009 to 2016, Melonie was able to increase her net business income from an average of $8,443 to $11,229,48, representing an increase in her business of approximately 30 percent.
Factor #2 - Higashi Design as a business
[214] Melonie has shown that Higashi Design was a viable business.
[215] She started the business in or around 2003-2004 with one small bead and converted it into something that generated income for Melonie. She operated the business for the better part of 14 years. Despite her inability to work at the same level that she did pre accident, Melonie successfully increased the profits of the business post accident.
[216] Pre accident, Melonie had plans to expand the business and create an online presence. Melonie already had a following of loyal customers. I believe that the development of an online tool to sell her products nationally and internationally would have had some success.
[217] That said, I believe that the income potential for Higashi Design was limited. The evidence demonstrates that Melonie was a one-person show, creating custom-made designs. Melonie testified about her process for creating new designs. I find that this process was very time consuming. In the 14 years operating her business, Melonie had some friends help on occasion. She only hired one person (Michelle) to assist her on a part-time basis. I find it likely that Melonie was going to continue operating her business in the same manner as she did pre accident.
[218] While I accept that there were discussions between Martin and Melonie that she should mass produce her pieces, I am not convinced that Melonie was going down the path of mass production. Melonie was (is) a designer at heart. Her focus was the creation of unique pieces. Melonie was meticulous in her work and she wanted to make her customers happy. Her customers’ happiness brought her joy. Mass producing pieces was Martin’s idea. Having heard Melonie’s testimony on this issue, I do not believe that Melonie was going to implement Martin’s plan. In any event, there is little evidence that Melonie explored the idea of mass production with any seriousness.
[219] I find that Melonie was going to continue creating unique custom jewelry by making the pieces herself. Melonie was not going to let go of the creative process. Melonie also enjoyed meeting, greeting, and selling to her customers directly, either at trade shows or private events. It was important for Melonie to create a relationship with her customers. Creating unique designs and maintaining relationships with the customers were two time consuming activities, leaving little time to focus and execute new plans on the growth of the business.
[220] Melonie’s testimony persuades me that she did not have a good grasp of the financial side of her business. During cross-examination, Melonie was challenged on the sales figures. I find that she demonstrated a lack of understanding regarding the finances of the business. While one could argue that Melonie’s cognitive impairments explain her inability to provide financial details, I do not believe it to be the case. Melonie’s testimony was extremely well detailed when it came to describing her various attendances at the private parties and trade shows, her creative process, and the uniqueness of all her designs, to name a few. She was able to remember certain events with a great degree of precision. To me, her lack of knowledge regarding the finances of Higashi Design is explained by Melonie’s true interest, namely the creation of her designs. She was less interested on the financial side of the business, leaving that part to Martin.
[221] I do not believe that Melonie’s business model was going to change significantly. She would likely have implemented an online selling system because this had been contemplated pre accident and she would have started to have a web presence. Other than adding a selling channel, given Melonie’s personality and preferences, she would likely have stayed the course in the manner that she operated Higashi Design. By continuing to do business in this fashion, I find that it would have been difficult for Melonie to scale her business significantly.
Factor #3 - Contingencies
[222] As in all cases, the court must consider the positive and negative contingencies.
[223] In this case, I find that the positive contingencies outweigh the negative contingencies, resulting in Melonie being able to increase the profitability of Higashi Design.
[224] Starting with the negative contingencies, the standard ones that apply include the possibility of death, sickness, disability, or retirement before the age of 65. In terms of specific contingencies to Melonie’s case, she did not have a meaningful history of working for others, and was likely best suited for self-employment options, thereby limiting her earning potential.
[225] Turning to the positive contingencies, Melonie was a strong, healthy, and hard-working person before the collision. She was educated, intelligent, perseverant, and she possessed an impressive work ethic. She was passionate about her business and believed in its growth potential. Melonie had developed plans of expanding her business through the use of the internet.
Factor #4 - Ability to earn income
[226] Melonie has shown that as of 2017, she was no longer able to operate Higashi Design because of her health. However, the evidence supports that Melonie still has a small residual earning capacity.
[227] Mr. Sherman has projected Melonie’s gross expected yearly income to be $6,542, for a total of $93,957. I believe that this figure is appropriate based on Melonie’s health limitations.
Factor #5 - Age of retirement
[228] Melonie’s age of retirement does not appear to be disputed. The parties have assumed that Melonie would work until the age of 65 years old. I find this assumption to be reasonable.
What are Melonie’s past and future economic losses?
[229] Melonie’s income losses cannot be calculated with certainty. As noted earlier, Mr. Sherman’s calculations are of little use to me because I do not accept his assumptions regarding Melonie returning to the workforce and abandoning Higashi Design.
[230] Melonie has established, however, that she has a real and substantial possibility that her earning capacity has been impaired. As such, Melonie has and will suffer a corresponding financial loss.
[231] Although I cannot determine Melonie’s pecuniary financial loss with any mathematical precision, I believe that Melonie’s loss of earning capacity can be reasonably determined by using the historical figures from Higashi Design and applying the factors set out above. I find that this provides me with a reasonable foundational basis to assess Melonie’s pecuniary losses.
[232] I find that by implementing Melonie’s business plan (i.e. online presence), she would have experienced some growth of her business. I believe that from 2012 to 2021, Melonie would have been able to increase her earnings slowly and gradually to a figure not exceeding $15,000 per year. Then, as Higashi Design matured and with the identified limits of Melonie’s business model, I believe Higashi Design’s growth rate would have decreased to a more sustainable rate, with yearly earnings not exceeding $25,000.
[233] Because of Melonie’s chosen career path, I find that Melonie’s earning capacity would not have exceeded $25,000 per year. I have no hesitation to conclude that the evidence clearly shows that money was not a significant motivator for Melonie. She was driven by the desire to create. She received a great amount of satisfaction from making new designs. She was proud of her creative and artistic accomplishments, especially when validated by her customers’ smiles and happiness.
Past economic loss
[234] Melonie’s past loss of income would be the loss from the date of the accident to the date of trial. In addition, according to s. 267.5(1) of the Insurance Act, R.S.O. 1990, c. I.8, Melonie’s recoverable pre-trial income loss is restricted to 70 percent of the amount of gross income.
[235] Mr. Sherman calculated Melonie’s actual earnings from January 1, 2013 to March 15, 2021 as $52,344.
[236] But for the accident, I find that Melonie would have earned more than her actual earnings because she would not have been limited by her physical, psychological, and cognitive impairments. As noted above, I believe that there is a good likelihood that Melonie’s plans of expansion through an online presence would have materialized, thereby increasing her sales. I find that, in the circumstances, a fair and reasonable past earning figure for Melonie is $120,000.
[237] By subtracting her actual earnings and applying 70 percent to her gross earnings, I assess Melonie’s past economic loss at $47,359.20.
Future economic loss
[238] Melonie’s future economic loss includes her loss of income after trial, up to the date of retirement, representing 15 years of lost earnings.
[239] Other than Melonie’s expected gross income of $93,957 to the age of retirement, there is no accounting expert evidence to assist me in determining Melonie’s future economic loss had she continued to operate Higashi Design post accident.
[240] The Defendants argue I should use Melonie’s pre-accident earnings of $8,443 and “give her an increase” if I feel that it is appropriate. The Defendants suggest that I could start with annual earnings of $16,000 and increase it from there to reflect Melonie’s future business plans.
[241] As stated earlier and for reasons that will not be repeated, I believe that Melonie’s maximum earnings capacity would be limited to $25,000 per year. Although going from $8,443 to $25,000 represents an approximate increase of 200 percent, it is over a 25-year period. This increase amounts to roughly a 4 percent growth per year, which in my estimation, is reasonable when one considers the relevant factors of this case.
[242] It is difficult to assess at which point in time Melonie would have achieved the maximum earning capacity that I have determined. It could have slowly increased from $15,000 to $25,000 during the 15-year period or Melonie could have reached it earlier. I have erred on the side of caution and assessed her loss of $25,000 per year from the date of trial to retirement.
[243] Melonie has shown a real and substantial possibility that because of her injuries, she has sustained a loss of earning capacity in the future. I believe that a fair assessment for Melonie’s future economic loss is $375,000 ($25,000 x 15 years). From that amount, I would deduct Melonie’s expected gross income of $93,957, for a total future economic loss of $281,043.
Issue #5 – What are Melonie’s future care needs?
[244] The goal of a future care award is to assist Melonie with her physical and psychological condition. That said, it must be reasonable and supported by the medical evidence.
[245] Dr. Smith mentioned something that resonates. He said that none of the treatments provided to Melonie are curative but they will optimize her quality of life.
[246] The standard of real and substantial risk applies to future care expenses. The test for determining the appropriate award for future care costs is an objective one, based on medical evidence. To prove a claim for future care costs, the following conditions apply: (a) there must be medical justification for the claims; (b) the award must be fair and moderate; and (c) the claims must be reasonably necessary, having in mind personal circumstances: see Gray v. Macklin (2000), 4 C.C.L.T. (3d) 13 [2000] O.J. No 4603 at para. 213.
Life care planners
[247] Ms. Barbara Nagy was qualified as a life care planner and physiotherapist.
[248] Ms. Nagy was first retained by Melonie’s counsel in April 2019. She obtained and reviewed Melonie’s medical records. Ms. Nagy also reached out to some of Melonie’s healthcare providers.
[249] She conducted a functional assessment of Melonie on May 8, 2019. Ms. Nagy’s observations of Melonie are similar to those of other healthcare professionals that have conducted an assessment: light and noise sensitivities, semi curled position because of a back ache, laid down on the floor during the interview, yawning and stammering, long pauses and often losing her train of thought.
[250] Melonie’s symptoms were reviewed and they were also similar to what had previously been described to other healthcare professionals.
[251] Ms. Nagy prepared a life care plan for Melonie, which was updated during the trial, as new evidence was being provided to her based upon the testimony of witnesses.
[252] Ms. Nagy’s Future Care Needs and Costs Summary was filed as an exhibit. During her testimony, Ms. Nagy reviewed in detail each service and device that she believed was reasonable in the circumstances. In Ms. Nagy’s opinion, Melonie required the following:
Services
Total Fixed Term Costs
Total Annual Recurring Costs
Medical and Rehabilitation • Medical and Assistive Devices • Professional Services
$2,020.65 $102,780.01
$1,441.80 $4,938.60
Housekeeping and Home Maintenance
$12,968.57
$8,614.96
Total
$117,769.23
$14,995.36
[253] The Defendants called upon Ms. Monique Besz to provide a critique of Ms. Nagy’s assessment. Ms. Besz was qualified as a life care planner. She was not retained to prepare a future care plan for Melonie.
[254] Ms. Besz did not meet with Melonie because counsel for Melonie refused. Given this refusal, Ms. Besz’s critique was based upon the medical documentation provided to her. Ms. Besz did not provide an updated assessment following the trial evidence. During her testimony, Ms. Besz reviewed in detail each service and device that was recommended for Melonie.
[255] In Ms. Besz’s opinion, Melonie required the following:
Services
Total Fixed Term Costs
Total Annual Recurring Costs
Medical and Rehabilitation • Medical and Assistive Devices • Professional Services
$3,168.58 $180.90
NIL $3,065.82
Housekeeping and Home Maintenance
$13,344.53
$4,953
Total
$16,694.01
$8,018.82
Accounting evidence
[256] Mr. Sherman provided evidence of the present values of the future care costs advanced by Melonie. Mr. Sherman’s Present Value of Future Costs was filed as an exhibit at trial and I will later refer to the item numbers that are listed on page 19 of Mr. Sherman’s chart.
Medical evidence
[257] Dr. Mankal testified that ongoing medication was required for Melonie’s major issues of chronic pain, headaches, and mood. He also recommended physiotherapy, psychological support, and occupational therapy. He observed that when treatment was withdrawn, Melonie was having a more difficult time. Dr. Mankal opined that any future treatment that is implemented is not a cure for Melonie. Rather, it is a way to manage her symptoms in the best possible manner.
[258] Dr. Marshall said that some therapies are useful, while others are not. In his opinion, Melonie would benefit from ongoing counselling, psychological support, and occupational therapy. He also recommends vision therapy and physiotherapy.
[259] Dr. Smith believes that one of the biggest challenges for someone with chronic pain is to manage the day to day activities. The patients with this condition tend to withdraw. Occupational therapy can assist patients in learning strategies and helping them cope with the chronic pain condition. In addition, he recommends a supervised exercise program, injections repeated every few months indefinitely, massage therapy, physiotherapy, and chiropractic care.
[260] Dr. Damji opined that PTSD cannot be cured. The aim is to treat and minimize the severity of Melonie’s symptoms. She recommended monthly treatments, but stated that this could be increased to 24 sessions per year if there is an emergency of some kind.
[261] Dr. Comper believes that someone with Melonie’s condition is difficult to treat because her symptoms are well entrenched and difficult to reverse. Any treatment would have to be psychological in nature. He suggested one (1) to two (2) years of therapy. He would not recommend any treatment for mild TBI because it is unwarranted.
[262] During cross-examination, Dr. Comper admitted that he is the only person that disputes she suffers the ongoing effects of a mild TBI. He does not doubt that the mechanism of the accident could provide sufficient force to cause a concussion, with or without a head strike.
[263] Dr. Shanks opined that Melonie’s pain symptoms are maintained largely by her depression. He believes that if Melonie has a resolution of her depression, this may alleviate the need for physical oriented treatment. That said, he agrees that physical therapies could help on the psychological side of things.
[264] Dr. Shanks supports the recommendations made by Ms. Nagy for medication, glasses, earplugs, sacroiliac belt, grab bars, cane, walking pole, stove guard, and cognitive aids. He finds home-making services to be appropriate. He admitted that the occupational therapy aids and treatment would be beneficial but not necessary. All that said, Dr. Shanks believes that it is important to listen to what Melonie has said in the past regarding treatment and that as long as a treatment is not harmful, it can be helpful to continue.
Analysis
[265] Melonie urges me to prefer Ms. Nagy’s evidence because Ms. Besz’ opinions are based on outdated records (2019) and she failed to consider the evidence given at trial.
[266] Conversely, the Defendants argue that Ms. Nagy’s opinions are not objective. They claim that Ms. Nagy’s assessment lacks an appropriate analysis and some of her recommendations are not medically justified.
[267] I reject the Defendants’ submissions that Ms. Nagy’s opinions are not objective. While I do not agree with all her recommendations, I find that, for the most part, Ms. Nagy’s opinions are properly based on the medical recommendations. The medical experts are majorly in agreement that Melonie requires ongoing care. The disagreement pertains to the type and duration of treatment.
Category #1 - Medical and Assistive Devices (items 1 to 14)
[268] The proposed medical and assistive devices are not, in my view, overly controversial. The Defendants argued that some of the medication and devices were not necessary, such as the prism glasses and ear plugs. Also, the Defendants suggested that because Melonie’s medication will be tweaked in the future, this should be interpreted to mean that Melonie’s medication could be reduced overtime. I am not persuaded by the Defendants’ arguments.
[269] I am satisfied that Melonie has demonstrated that there is a medical justification for the claims under this category. Further, I note that Dr. Shanks opined that the devices were appropriate.
[270] Using Mr. Sherman’s calculations, I conclude that the items listed under the category of medical and assistive devices are reasonably necessary and total $44,841.
Category #2 - Professional Services (items 15 to 59)
[271] Under this category, Melonie is seeking an award for the following services and associated travel expenses: psychological therapy, in-vivo driver desensitization, occupational therapy, physiotherapy, vestibular physiotherapy, massage therapy, exercise instruction, self-management for chronic pain, injections, and infusions. In addition, Melonie seeks compensation for the travel to her family physician and the audiologist, a reserve for tinnitus device and batteries, and finally, a case manager.
Psychologist (items 15 to 18)
[272] Melonie requires ongoing psychological counselling. However, I do not believe that it is appropriate to include emergency interventions and I do not accept the rationale for requiring these services. I believe that the evidence shows that with continuous and regular counseling, Melonie’s mental health has stabilized and she remains more grounded. I am not satisfied that the evidence supports a conclusion that emergency treatment is warranted in these circumstances. I find it too speculative and not reasonably necessary. I would therefore remove items 17 (psychologist – intermittent) and 18 (travel to psychologist – intermittent) found in Mr. Sherman’s chart, totalling $10,706.
Driver Desensitization (items 19 to 20)
[273] The evidence supports the conclusion that Melonie still has a fear of driving and she continues to suffer from driver anxiety. Although Melonie does not have a vehicle at present, I find that in-vivo driver desensitization is reasonably necessary.
Occupational Therapy (items 21 to 26)
[274] Ms. Nagy relied upon Ms. Fiona Bradley-Smith’s report dated May 1, 2020. In that report, Ms. Bradley-Smith recommended that Melonie’s occupational therapy resume upon the stabilization of her mental health because Melonie had not shown the cognitive ability to integrate the occupational therapy strategies. This recommendation was agreed upon by Dr. Mankal.
[275] The Defendants say that Ms. Bradley-Smith indicated in her report that once Melonie’s mental health stabilized, a new occupational therapy plan should be implemented. They argue that Ms. Nagy’s future care cost plan appears to pre-empt the need for a reassessment. Also, they say that the proposed occupational therapy services run counter to Dr. Smith’s opinion, namely that you want to keep someone with chronic pain active. The Defendants submit that if occupational services are provided to Melonie, there is a risk that she will decompensate because she will not be active.
[276] The Defendants state that there is no plan recommended by a medical professional regarding the stabilization of Melonie’s mental health, which is required to determine when Melonie would be able to make use of the occupational therapy services.
[277] In my opinion, the body of evidence supports occupational therapy. Melonie has shown that she has difficulties with self-care, productivity, organization of her home, and planning activities, to name a few. The proposed occupation therapy services can address Melonie’s problems. They can help with executive functioning and provide her with proper techniques to manage her day to day life. Drs. Mankal, Marshal, Smith, and Shanks (to a certain extent) opined that Melonie would benefit from resuming occupational therapy. I find that the occupational therapy services are medically justifiable and I accept Ms. Nagy’s recommendations in this regard.
Massage, Physiotherapy and Vestibular Physiotherapy (items 28 to 46)
[278] The Defendants are very critical of Ms. Nagy’s physiotherapy qualifications. They argue that Ms. Nagy lacks the clinical experience to make any recommendations regarding any type of physiotherapy services, and in any event, they further submit that these services are not medically justified.
[279] During the trial, Ms. Nagy’s qualifications were challenged by the Defendants. I ruled that Ms. Nagy was qualified to give opinion evidence, not only as a life care planner, but as well as a physiotherapist. Ms. Nagy is duly qualified to make the recommendations that she has made.
[280] Ms. Nagy reviewed the report of the vestibular physiotherapist who indicated that the vestibular physiotherapy was helpful to Melonie. Melonie had to stop the treatment because she ran out of money.
[281] Dr. Smith recommended physiotherapy for chronic pain management. Dr. Mankal indicated that one of Melonie’s major issues includes neck pain and he believes that physical therapy is warranted.
[282] In addition to the expert opinions provided, it is my opinion that there is sufficient information in the clinical notes and records that have been filed in this trial to support Ms. Nagy’s recommendations regarding physiotherapy and vestibular physiotherapy services.
[283] Regarding massage therapy, Dr. Smith opined that this type of service is good for symptom control.
[284] Dr. Smith did mention that the goal is not to overwhelm Melonie with treatments but to find her treatments that provide her the best outcome. I believe that based on the evidence presented, the treatments outlined in this category will provide Melonie with the best outcome.
[285] In sum, I am satisfied that massage, physiotherapy, and vestibular therapy are reasonably necessary and medically justified. I accept Ms. Nagy’s recommendations.
One-to-One Exercise Instruction (item 47)
[286] I agree with Ms. Nagy’s position that the healthcare professionals have opined that exercise is a fundamental part of Melonie’s treatment. The evidence shows that in the past, one-to-one exercise instruction has been beneficial to Melonie. I find that Ms. Nagy’s recommendation is appropriate.
Injections and Associated Travel Expenses (items 48 to 52)
[287] Although Dr. Smith testified that Melonie had to be assessed regarding the use of injections, he nonetheless endorsed this treatment. While I acknowledge that Melonie has several treatment options to assist her with managing her pain (psychology, physiotherapy, occupational therapy, medication, massage), injections are another form of treatment that may provide Melonie with some pain control for several months. If injections can assist Melonie with her pain management, thereby increasing her quality of life, I believe that injections are reasonably necessary. I accept Ms. Nagy’s recommendations for injections and associated expenses.
Travel to Family Physician (item 53)
[288] The Defendants agree that these expenses are reasonably required.
Reserves for Tinnitus Device/Batteries and Travel to Audiologist (items 54 to 57)
[289] The Defendants agree to the reserves for the tinnitus device and batteries.
[290] In my view, it then follows that the travel to the audiologist is reasonably required. Melonie has consulted with an audiologist to assist in reducing the hyper acuity in her ears. Melonie’s hearing sensitivity has been an issue that requires continued treatment.
Case Manager (items 58 to 59)
[291] A case manager is a health care professional that helps manage the rehabilitation needs of a patient. Dr Smith testified that an occupational therapist can undertake many of the tasks of a case manager.
[292] Having awarded occupational therapy services, I find that case manager services would be duplicative and that an occupational therapist can assist Melonie in managing her rehabilitation needs. As such, I find that it is not reasonably required. I would therefore remove items 58 and 59, totalling $9,915.
Category #3 - Housekeeping and Home Maintenance (items 60 to 65)
[293] Ms. Nagy’s calculations for items 60 to 64 are based upon Ms. Bradley-Smith’s recommendations, including:
i. A personal support worker (“PSW”) for 3 hours per week for tidying and cleaning, 1.5-2 hours per week for assistance with grocery shopping, and 2 hours per week to assist with meal preparation.
ii. Housekeeping supports for a thorough weekly cleaning (2-3 hours per week), and a one-time cost for sorting, packing and unpacking in a new condominium (25-30 hours).
iii. Meal service such as Hello Fresh or GoodFood to provide weekly delivery of pre-packed ingredients and meal preparation instructions. In addition, 2 hours per week have been allocated for batch cooking.
iv. 8 hours of handyman assistance per year, up to the age of 75-80.
[294] In Ms. Nagy’s recommendations, she eliminated some areas of duplication for the homemaking services and reduced the costs by not using the unit cost for a PSW but rather someone in a homemaking role. Melonie will develop strategies and routines that will assist her in managing her symptoms, thereby allowing her to participate in more of the day to day activities such as cleaning and meal preparation. However, with Melonie’s injuries, and despite her therapies, she will still be limited in her ability to carry on with many of the homemaking tasks that she was previously able to undertake. I therefore find that Ms. Nagy’s recommendations for items 60 to 64 to be reasonably required.
[295] Turning to the handyman services at item 65, this recommendation comes from Ms. Nagy’s experience as a life care planner.
[296] Dr. Smith did mention in his testimony that Melonie should avoid heavier activities, but I do not believe that his evidence can be interpreted to say that he endorsed Ms. Nagy’s full recommendations for handyman services.
[297] There is little evidence that, prior to the accident, Melonie undertook “handyman” type of tasks in her home. She previously lived in a small 1000 square feet townhome with Martin, not requiring a lot of the handyman work. The evidence before me is insufficient concerning the nature and volume of handyman work that Melonie performed before the accident.
[298] Melonie currently lives in a small 665 square foot one-bedroom apartment. At present, her need for handyman work is very limited. While I accept that Melonie should avoid heavier tasks that require more physical strength and stamina, I do not believe that Ms. Nagy’s recommendation of an average of eight hours per year, on average, is supported by the evidence. I would accept the possibility that, in the future, Melonie may move out to another home that may require some handyman services. I would therefore reduce the reserve for handyman services by 50 percent, being $4,919.
Summary
[299] Applying the reduction for the amounts of services that I have removed, the total future care costs for Melonie amount to $489,300.
[300] Contingencies need to be considered in the assessment of future care costs. A negative contingency would apply to account for the expenses not being incurred. Conversely, if the expenses are more than predicted, this would represent a positive contingency: see Rolley, at para. 312.
[301] Melonie wants to get better. Melonie stopped much of her treatment because she was unable to afford them. Had the treatment been made available to her, I believe that she would have attended all therapy sessions.
[302] I am not persuaded that the negative contingencies outnumber the positive contingencies, and vice versa. As a result, I do not consider it appropriate to apply a negative contingency to the future care costs.
Issue #6 – Is Melonie entitled to a management fee and tax gross up?
Management fee
[303] Melonie argues that a management fee should be added to the loss of income and future care costs awards. Melonie says that because of her cognitive impairments, she is unable to manage her money or a portfolio. She will require the expertise of someone who can manage her investment to ensure that she receives a return each year. Mr. Sherman testified that a 5 percent management fee is reasonable and reflective of the market.
Tax gross-up
[304] Melonie seeks a tax gross-up for the future care costs award. It is assumed that Melonie would invest her money and she should not be penalized from a tax perspective.
[305] Mr. Sherman explained that because interest income attracts tax, it is necessary to have a tax gross-up calculation. He acknowledged that for this tax to be applicable, he assumed that Melonie would invest the entire award in an interest-bearing vehicle.
[306] Mr. Sherman recognized that there were other types of investments that did not attract tax, such as the purchase of a principal residence, TFSA, and RRSP.
Analysis
[307] The Defendants argue that Melonie has led no evidence that she will incur the expenses of a management fee or tax gross-up. They say that there is no evidence before me on Melonie’s inability to manage her money, how or how much of her money would be invested and which investment vehicle would be used to attract the expenses for which she seeks reimbursement.
[308] The issue of entitlement to a management fee and tax gross-up has historically been the subject of debate. In the decision of Bartosek (Litigation guardian of) v. Turret Realties Inc. (2004), 2004 CanLII 10051 (ON CA), 185 O.A.C. 90 (C.A.), the Ontario Court of Appeal noted that the Supreme Court of Canada had previously concluded that there is a rationale for a management fee and tax gross-up where a plaintiff has suffered a debilitating injury. The Ontario Court of Appeal quotes the Supreme Court of Canada case of Townsend v. Kroppmanns, 2004 SCC 10, [2004] 1 S.C.R. 315. Paragraph 6 of Townsend summarizes the basis for awarding a management fee and tax gross-up:
The same underlying rationale guides the attribution of management fees and tax gross-up. The law aims at ensuring that the value of the amounts awarded to victims is maintained over time. In tort law, victims of personal injuries are awarded management fees when their ability to manage the amount they receive is impaired as a result of the tortious conduct. The purpose of this segment of the award is to ensure that amounts related to future needs are not exhausted prematurely due to the inability of the victims to manage their affairs. Depending on the needs of the victims, more or less extensive help is required. The assessment is made on a case-by-case basis: Mandzuk v. Insurance Corporation of British Columbia, 1988 CanLII 16 (SCC), [1988] 2 S.C.R. 650. In the same vein, since the earnings on the capital awarded are subject to income tax, an amount called tax gross-up is awarded to ensure that the amount will not be eroded by the tax liability.
[309] In Melonie’s case, she has suffered a mild TBI and has demonstrated ongoing cognitive impairments. While Melonie admitted in cross-examination that she looks after her own banking, I do not believe that it would be appropriate or reasonable to interpret this to mean that she would be able to manage a significant financial portfolio. Melonie’s medical condition warrants the use of a professional to manage her award.
[310] Melonie should not be burdened with an expense incurred to manage her investment or whether such investment attracts tax liability. Melonie finds herself in this situation because of the Defendants’ negligence.
[311] In sum, I accept Mr. Sherman’s recommendation of adding a 5 percent management fee to her loss of income and future care costs awards, as well as a tax gross-up amount for the future care costs award.
SUMMARY OF DAMAGES AWARDED
[312] Melonie is awarded the total sum of $1,101,568.55, calculated as follows:
i. General non-pecuniary damages: $225,000
ii. Out-of-pocket expenses: $58,866.35
iii. Past loss of income: $47,359.20
iv. Future loss of income: $281,043
v. Future care costs: $489,300
[313] I understand that Mr. Sherman will calculate the management fee and tax gross-up based upon Melonie’s awards. Also, I encourage the parties to agree upon the pre-judgment interest and costs. If there is disagreement amongst the parties on any of these issues or if they wish to address matters arising from this decision, they may seek an appointment before me through the trial coordinator’s office.
[314] I would like to thank all counsel and court staff for their diligent work in ensuring that this trial, entirely conducted in a virtual manner, proceeded smoothly. The conduct of this trial was exemplary in all respects. Counsel’s presentations were excellent and they all acted with the highest level of professionalism, civility, and respect.
M. Smith J
Released: December 15, 2021
COURT FILE NO.: 14-61439
DATE: 2021/12/15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELONIE HIGASHI
Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT
Defendants
REASONS FOR JUDGMENT
M. Smith J
Released: December 15, 2021