Sanson v. Paterson, 2022 ONSC 2972

COURT FILE NOS.: CV-14-513023 and CV-17-577928

DATE: 20220516

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Geraldine Sanson, Plaintiff

AND:

John B. Paterson, Defendant

AND RE: Geraldine Sanson, Plaintiff

AND:

Security National Insurance Company, Defendant

BEFORE: W.D. Black J.

COUNSEL: Michael Smitiuch/Peter Cho, for the Plaintiff

Daniel Reisler/Vanessa Tanner/Connor Walton, for the Defendant, John B. Paterson

Cody Moskovitz/Nikoleta Giovanoglou, for the Defendant, Security National Insurance Company

HEARD: January 24, 2022 to February 18, 2022 and March 9 and 10, 2022

ENDORSEMENT

Overview of Action

[1] In the main action (CV-14-513023), the plaintiff, Geraldine Sanson, claims against the defendant, John B. Paterson, for damages alleged to have arisen from a collision (the “Collision”) on October 19, 2012. Mr. Paterson was driving his car and Ms. Sanson was on her bicycle.

[2] Mr. Paterson contests both liability and damages. He maintains that Ms. Sanson was at fault for the Collision, and that the damages claimed by Ms. Sanson are unrelated to the Collision and are in any event excessive.

[3] The defendant in the related action (CV-17-577928-00), Security National Insurance Company (“Security National”), was Ms. Sanson’s excess insurer and takes the position that the excess portion of its policy is not engaged here. Security National supports Mr. Paterson’s position and took little part in the trial. Although Mr. Paterson and Security National are thus individual defendants in two different actions, I will refer to them collectively from time to time as “the defendants”.

Ms. Sanson

(A) Background

[4] Ms. Sanson is a lawyer and was called to the bar in Ontario in 1990.

[5] Her practice over the years focused on human rights issues and she gained prominence in that area, winning the prestigious Law Society Medal in 2000 and attracting other accolades for her work. She maintained a very successful practice, advancing the law and taking on briefs for disadvantaged and often significantly victimized clients. In terms of financial rewards, while in most years Ms. Sanson made a comfortable living, her income was relatively modest compared to many others of her vintage and stature in the legal profession. This was clearly due in part to Ms. Sanson’s dedication to her chosen area of practice and her clients, including the fact that she often provided her services on a pro bono basis. However, Mr. Paterson alleges that Ms. Sanson’s practice and income were on a downward trajectory at the time of the Collision and that, in fact, Ms. Sanson’s stepwise withdrawal from practice in the years following the Collision was attributable to this downward trend rather than to consequences of the Collision.

[6] Considerable evidence at trial focused on the details of Ms. Sanson’s practice before and after the Collision and the extent to which Ms. Sanson suffered genuine injuries from the Collision, which she claims caused her to slow down and ultimately discontinue her practice, as well as to withdraw from or at least considerably curtail other aspects of her life.

(B) Childhood and Early Education

[7] Ms. Sanson was born and raised in Chatham, Ontario. She was born in 1957 and was 64 (almost 65) years old at the start of trial.

[8] She was one of nine children in her family and testified that her family was quite poor. Although her parents managed to provide basic necessities, the family was assisted at times by help from neighbors and others in the community.

[9] Her parents had modest education; her mother graduated from high school and her father went as far as the sixth grade. That said, Ms. Sanson testified that her parents constantly emphasized the importance of education and hard work, and that the work ethic instilled by this twin emphasis served Ms. Sanson well over the years.

[10] Ms. Sanson had an active childhood, did well in school and was involved in an array of extracurricular activities including various athletic and other endeavors. Various photographs were entered in evidence at trial and, on their face, attest to what Ms. Sanson described as in many ways a “normal”, busy and productive childhood.

[11] On the other hand, Ms. Sanson described her father as violent and alcoholic which understandably caused issues for her that she has had to work through. Observing her father’s behavior and its impact on her mother led Ms. Sanson to appreciate the need for education as a means of creating options (so that she would never be “stuck” in the way she perceived her mother to be). Ms. Sanson also believes it led her in the direction of a practice focusing on human rights issues, imbuing her with empathy towards disadvantaged members of society and the desire to assist them.

[12] Ms. Sanson was close with her siblings and in particular, had a very close relationship with her brother Wayne. Sadly, Wayne died of HIV/AIDS in 1991. Ms. Sanson testified that the experience of seeing how Wayne was treated as he was dying and understanding the need to advocate for him also contributed to her ultimate choice of career path.

[13] Following high school, Ms. Sanson pursued courses in French and had tentatively planned to attend the University of Montreal to train to become a French/English translator. However, after working for a few years, she decided to return to school, attending York University from 1982 to 1985 and obtaining a bachelor’s degree in Economics.

(C) Law School

[14] After Ms. Sanson completed her undergraduate studies, based in part on the factors described above and because, as she put it, she was “naturally inquisitive”, she decided to go to law school. Ms. Sanson attended the Queen’s University Faculty of Law.

[15] Ms. Sanson testified that she “loved” law school. She said she was a “solid B to B+” student, was very active throughout law school in intramural sports and had a busy social life. She testified that she “knew everyone” and loved being in Kingston. Consistent with this testimony, Ms. Sanson won a “Gavel Award” in her final year of law school, an award determined by her fellow students and bestowed on the person who most contributed to social life in their law school class.

[16] Immediately after law school Ms. Sanson articled at Crown Law – Civil, in Toronto from 1988 to 1989, took the bar admissions course from 1989 to 1990, and was called to the bar in 1990. During the bar admissions course, she continued to work under a contract with Crown Law – Civil, assisting with a case involving allegations of racial discrimination and harassment.

(D) Ms. Sanson’s Practice

[17] After being called to the bar, Ms. Sanson obtained a position with the Ontario Human Rights Commission (“OHRC”), initially on a contract and eventually on a permanent basis. She remained at the OHRC until 1993. Ms. Sanson testified that this was the “perfect job” for her. It allowed her to pursue her interest in human rights work, confirming in her mind that this was what she wanted to do and allowing her to develop connections and expertise in the field.

[18] It was during this timeframe that Ms. Sanson met Mark Hart, who would become her partner, both in law for a time and in life.

[19] Although she appears to have thoroughly enjoyed her time at the OHRC, as of 1993 Ms. Sanson decided that setting up her own practice would allow her greater control over the types of cases she took on and over her practice generally.

[20] As such, in 1993 she set up and opened “Sanson Law Office”, and continued her human rights focused practice as a sole practitioner.

[21] In her testimony, Ms. Sanson noted a number of cases she was involved in that she (and other witnesses) described as influential in the sphere of human rights law. She was also active in organizations, attended and delivered continuing legal education presentations, and went to conferences devoted to developing human rights law and practice generally.

[22] I will not review Ms. Sanson’s cases nor other aspects of Ms. Sanson’s career in detail, but suffice it to say that she was clearly a leading and successful practitioner in human rights law. Indeed, the defendant does not particularly challenge that characterization.

[23] As further testament to this notion, as noted above, in 2000 Ms. Sanson received the Law Society Medal, a very prestigious award recognizing her role as a prominent leader in human rights law.

[24] She also received publicity over the years and was featured in a handful of press articles about her cases and accomplishments.

[25] In 1996, her life partner Mark Hart joined her in practice and the two of them formed Sanson & Hart. The two had similar practices in litigation, policy work and, increasingly, large‑scale investigations, particularly in workplaces.

[26] In 2007, Mr. Hart left the practice to take a role as vice-chair of the OHRC. Ms. Sanson testified that this did not particularly impact her own practice. She resumed working as a sole practitioner and neither the type nor volume of cases she worked on particularly changed, save that she increased her focus on investigation work.

[27] At various points while practicing at Sanson & Hart, Ms. Sanson and Mr. Hart took on additional lawyers to work in the office and, from time to time, had office staff to perform certain administrative tasks.

[28] By and large though, and particularly when she resumed sole practice in 2007 and thereafter, Ms. Sanson handled most office administrative tasks on her own.

[29] This preference for and insistence on a small-scale operation, together with certain other factors discussed below, meant that while Ms. Sanson’s practice was a successful one, it was not, in relative terms, particularly lucrative.

(E) Ms. Sanson’s Income Pre-Collision

[30] Ms. Sanson was selective in the cases she took on, and did a fair bit of pro bono work on an ongoing basis. While there is debate about her actual financial performance, discussed in detail below, it appears that in her most successful years, she generated approximately $250,000 in gross revenue, from which of course various expenses and taxes had to be deducted.

[31] A couple of specific events in the years leading up to the Collision impacted Ms. Sanson’s income.

[32] First, in 2008, Ms. Sanson was chosen to be the Integrity Commissioner for the City of Toronto. In anticipation of taking on that role, Ms. Sanson necessarily divested clients and cases from her practice, as the position required scrupulous avoidance of conflicts of interest.

[33] As matters transpired, Ms. Sanson did not ultimately take the Integrity Commissioner position. When she learned that she would have to be a City of Toronto employee rather than functioning independently, she, and it appears the City, reconsidered the proposed arrangement and she withdrew from the pending role.

[34] Ms. Sanson then had to build back her practice, which she had intentionally reduced by severing various client relationships in the lead-up to the expected position.

[35] Second, in or about 2009 or 2010, Ontario Power Generation (“OPG”), a client of Ms. Sanson’s who had previously retained her for investigation work, decided to take that work in-house. OPG was one of Ms. Sanson’s important clients in investigations, the area in which she increasingly spent considerable portions of her practice. This meant that ongoing work for Ms. Sanson from an important source was effectively terminated.

[36] Nonetheless, Ms. Sanson testified that as of 2012, she was successfully rebuilding her practice, it was on an upswing, and she expected that trend to continue. She felt she was thriving in practice and had no plans to slow down, let alone retire. Her evidence was that since Mr. Hart is five years younger than she is, her expectation was to continue to practice until Mr. Hart reached retirement age, which, assuming that would be 65 in his case, meant that she planned to work until she was about 70 years old.

(F) Ms. Sanson’s Social and Recreational Activities

[37] In addition to this optimism about her practice and prospects, Ms. Sanson testified that in the period leading up to the Collision, she was active, healthy and happy. She regularly rode her bike, swam and ran. She completed her first 10K run in the spring of 2012, a few months before the Collision. She worked out regularly with a personal trainer. She was also socially active and involved in various social events, including large-scale events like a large party on her 50th birthday.

[38] Ms. Sanson testified that cognitively, she was at the top of her game and had no difficulty with the rigorous mental acuity required in her busy litigation-based practice. It also seems clear that she had a passion for her work and her clients.

The Collision

(A) Ms. Sanson’s Evidence re Collision

[39] According to Ms. Sanson, all of that changed as a result of the Collision on Friday, October 19, 2012.

[40] On that day, Ms. Sanson went to her downtown Toronto office on Carlton Street. As was her habit, she rode her bicycle to the office. She believes that she arrived early in the day and, before working, had a personal training session in a facility adjacent to her office.

[41] After her training session and then spending a couple of hours working in the office, she set out to cycle back home in the early afternoon. She lived in the Parkdale area of Toronto, so cycling home on her usual route took her westbound on College Street.

[42] Ms. Sanson had a soft-sided basket on the back of her bike. She testified that it likely contained some paperwork and her purse, and was not heavy or unbalanced. She was wearing athletic attire, including a bright red fleece-type jacket and a bicycling helmet. Her bicycle also sported safety reflectors to ensure she was visible and the back of the soft-sided basket displayed a safety triangle.

(i) The Intersection and “Sharrows”

[43] Proceeding westbound on College Street, as she approached the intersection at Dufferin Street, Ms. Sanson observed the traffic light facing westbound traffic changing to red and so she came to a stop. I was shown various photographs of the intersection. In the right hand (curb) lane of the two westbound lanes on College Street, approaching the intersection with Dufferin, large chevron-like images known as “sharrows” are painted on the surface of the asphalt pavement. The sharrows, with their pointed ends directed forward (westbound), are interspersed with a painted image of a bicycle just underneath the chevron stripes.

[44] I heard testimony that sharrows denote a lane to be shared by bicycles and cars and, as one would expect, warn drivers and riders of one another’s presence and the need to share the lane. Ms. Sanson testified that the sharrows show a lane where cyclists can ride safely and remind drivers to be cautious and alert. A witness called from the City of Toronto, Ms. Maharaj, testified by reference to a City of Toronto information document explaining sharrrows, about the expectation that the onus is primarily on motorists travelling in a sharrow lane to be aware of and operate safely in relation to cyclists who share the lane, as confirmed by the Highway Traffic Act, R.S.O. 1990, c. H.8 (discussed below). This expectation strikes me as entirely sensible given the usual relative impact, as between a car and a bicycle, of a collision between them.

[45] Ms. Sanson recalled that when she stopped, facing the red light at the intersection with Dufferin, she brought her bicycle to rest atop one of the sharrow symbols on the road, such that the back wheel of her bike was touching the arrows painted on the pavement. That in turn put the front tire of her bicycle just behind a thick painted white line extending north-south and demarking the eastern edge of a crosswalk between the north and south sides of College Street at the east side of Dufferin.

[46] Ms. Sanson recalled that when she came to a stop there were no vehicles other than her bicycle in either of the two westbound lanes on College Street at the intersection.

[47] While she waited for the light to change, she saw a westbound vehicle pull up adjacent to her in the center (left) lane. She was also aware that another westbound vehicle had pulled up in the sharrow (curb) lane behind her, because she could hear its engine.

[48] While waiting for the light to change, Ms. Sanson had both feet on the ground astride her bike.

(ii) Events When the Light Turned Green

[49] When the light changed to green, Ms. Sanson put one foot on a pedal, looked left and right to confirm the intersection was clear and began to pedal through the intersection.

[50] Ms. Sanson recalled feeling a car clip her bicycle from behind just as she was entering the intersection. She said that this contact caused her to lose balance. While she was in the throes of correcting for the imbalance, she felt the car strike her bicycle again, this time hurtling her from the seat.

[51] Ms. Sanson believes she landed on her hands and knees in the middle of the crosswalk flanking the north side of the intersection (spanning the northeast to northwest corner of the intersection). As she fell, she hit the pavement with her chin and the forehead portion of her helmet.

[52] In the aftermath of her fall, Ms. Sanson’s bicycle ended up lying to her left. While she did not actually see the car hit her, she believes, based on the way she experienced the contact, that the car hit the left side of her bicycle, ultimately throwing her off the bike to the right.

[53] Ms. Sanson testified that as a result of the Collision and its immediate aftermath, she was “in shock”. She did not immediately know which car had hit her bike — only that it had come from behind and struck the left side of her bike. She testified that in that moment, she “thought her life was over”.

[54] Ms. Sanson recalled noticing, as she lay in the crosswalk just after the Collision, that there were a number of people nearby. An older woman grabbed her by the arm, attempting to help her back to her feet and asking her if she was okay.

[55] Ms. Sanson also remembered wondering what had happened to her purse. She looked towards her bicycle and saw two younger women, one of whom was picking up her purse and the other of whom was picking up Ms. Sanson’s bike.

[56] Around this time, or immediately thereafter, Ms. Sanson said that Mr. Paterson approached her and identified himself as the driver of the car that had collided with her. He told her he would park his car in the parking lot of a convenience store at the northwest corner of the intersection. The women who had picked up her bike and purse brought the bike to that same parking lot, and Ms. Sanson, by then on her feet, joined Mr. Paterson and some of the pedestrian bystanders there.

[57] Ms. Sanson recalled that the young women who had helped with her bike and purse told her that they had not seen the Collision, only its aftermath. One of them encouraged her to take photographs of Mr. Paterson’s car to document a mark on the passenger side of the car, which Ms. Sanson maintains corresponds to and results from the car’s contact with Ms. Sanson’s bicycle. There was no evident damage to the bicycle.

[58] Ms. Sanson recalled, and the evidence confirms, that she took pictures in the convenience store parking lot of Mr. Paterson’s car and of his driver’s licence, which he produced in response to her request.

[59] Ms. Sanson testified that she was shaky, in shock, and feeling “completely freaked out” at the time of these events in the convenience store parking lot, and that she believed she was functioning akin to an automaton.

[60] Ms. Sanson recalled that Mr. Paterson asked if he should call the police, and Ms. Sanson told her she would do so as soon as she got home. She also declined to call an ambulance. She noticed abrasions on her hands at that time, but could not recall if she also noticed the rip in her pants and the associated abrasion on her knee. She recalled primarily that she just wanted to get home.

(iii) Ms. Sanson Went Home and Called 911

[61] In keeping with that objective, Ms. Sanson did in fact cycle home, about a 10-minute ride from the scene of the Collision.

[62] She testified that as soon as she got home she called 911. Indeed, the audio recording of that call, and a subsequent one from the 911 operator, were entered into evidence. Ms. Sanson testified that she called the police because she had “thought she was going to die”, she felt Mr. Paterson had barely missed killing her, she was shocked that she could be struck while visible and in the bike (sharrow) lane, and to ensure that Mr. Paterson would not “kill someone else”.

[63] In the audio recording of her initial 911 call, Ms. Sanson advised the 911 operator that the Collision had happened about 10 minutes before her call. She mistakenly reported that the Collision had taken place at the intersection of College and Dovercourt (rather than College and Dufferin, where it in fact had happened), and again, somewhat equivocally, denied the need for an ambulance to be dispatched. Ms. Sanson’s voice appears to break at one point in the recording, consistent with her being on the verge of tears. The call concluded on the basis that a police officer would be sent to Ms. Sanson’s home to discuss the matter with her.

[64] After her initial call to 911, Ms. Sanson next called Mr. Hart (who was at the time presiding on a panel in the midst of a hearing at the OHRC). Ms. Sanson testified that she knew Mr. Hart was in a hearing, and that although she had never before called him at a time when she knew he was in a hearing, she wanted to get a message to him about what had happened.

(iv) Ms. Sanson Catalogued the Physical Damage

[65] After leaving the message for Mr. Hart, Ms. Sanson then set about to assess the physical damage from the Collision.

[66] In addition to the abrasions on her hands and knee, she noted and photographed scratches on her chin.

[67] She also photographed her bicycle, which had no evident signs of damage, and her clothing, including a hole in the knee of her pants corresponding to the abrasions and bruising on her knee and some scratches on her helmet.

[68] As she was assessing and photographing the physical signs of damage, Ms. Sanson testified that she began to feel achy and started to develop a headache.

[69] A couple of hours passed and the police did not turn up. At that point, Ms. Sanson received a follow-up call from the 911 operator, the audio recording of which was entered into evidence. The operator advised that a police officer would still be coming to see Ms. Sanson, and that other emergencies had delayed this attendance. In answer to the operator’s inquiry about how she was doing, Ms. Sanson responded that she was “pretty knocked up”, but still declined the offer of an ambulance.

(v) Ms. Sanson’s Meeting with P.C. Kan

[70] At about 5:30 p.m., a police officer finally arrived at Ms. Sanson’s home to interview her about the Collision. It is clear that from Ms. Sanson’s perspective the interaction with the police officer was unsatisfactory and frustrating. The police officer who interviewed Ms. Sanson was Police Constable Fievel Kan (“P.C. Kan”). P.C. Kan testified at trial, and I will briefly review his evidence later in my reasons.

[71] According to Ms. Sanson’s testimony, P.C. Kan seemed disinterested in engaging in any in-depth investigation of the Collision. He appeared to be operating on the assumption that Ms. Sanson had not called 911 until several hours after the Collision (which was not the case), and seemed to assess the physical damage, and therefore the Collision itself, as minor.

[72] In response to Ms. Sanson’s repeated inquiries as to what would happen next, P.C. Kan simply responded, according to Ms. Sanson, that she should call Mr. Paterson’s insurer. He also told her that he would not be laying any charges relative to the Collision.

[73] Ultimately P.C. Kan left her with a piece of paper on which he had recorded details of the parties involved in the Collision. Ms. Sanson testified that she felt P.C. Kan had not taken the Collision and Ms. Sanson’s concerns seriously. Ms. Sanson also noted what in her view were various errors in the accident report P.C. Kan eventually prepared (which was also entered into evidence). These included errors about the relative locations of her bicycle and Mr. Paterson’s car at the intersection, a mischaracterization of Ms. Sanson’s injuries as “minimal”, and the suggestion that the bike and the car “hit each other”.

[74] Ms. Sanson’s frustration about her interaction with P.C. Kan was palpable. It is apparent that the encounter was not optimal from P.C. Kan’s perspective either. On the accident report, P.C. Kan described Ms. Sanson as having been “very belligerent” during their exchange.

(B) Mr. Paterson’s Account of the Collision

[75] In terms of the liability issue, Mr. Paterson, like Ms. Sanson in the plaintiff’s case, was the sole witness to the accident who testified on the defence side. P.C. Kan was also called to testify in Mr. Paterson’s case.

[76] Mr. Paterson was 74 years old at the time he testified at trial. He has been retired since 2005. His last job was as the Canadian Director for an international council promoting environmental initiatives, and he had previously held a position with the Save the Children organization.

[77] Much of Mr. Paterson’s testimony about the Collision mirrored that of Ms. Sanson.

[78] Around the time of the Collision, Mr. Paterson was on his way home from the gym, having completed a workout at the West End YMCA.

[79] He was driving the car he owned at the time, a blue 2009 Nissan Versa. He recalls that it was a bright and clear day and that visibility and road conditions were very good. Mr. Paterson had no restrictions on his driver’s licence other than the need to wear corrective lenses, and he was wearing contact lenses that day.

[80] Mr. Paterson’s house, where he still lives with his wife and son, is about two blocks east of Ms. Sanson’s house (which Mr. Paterson has since learned). He testified that he was in no particular hurry that day, and had no particular plans other than to return home from his workout.

[81] Like Ms. Sanson, Mr. Paterson testified that there are two westbound lanes on College approaching and beyond the intersection with Dufferin. He said that it was typical for cars to be parked in the curb lane on College at that intersection, which is the north lane of the two westbound lanes; the parked cars would typically be located not at the intersection itself but either west or east of Dufferin on College.

(i) Mr. Paterson Moved into Curb Lane Approaching Intersection

[82] Mr. Paterson said that as he approached the intersection, he noticed that the light facing him was red, and that there were cars in the centre lane (the lane to his left, or the southmost lane of the two westbound lanes on College). Mr. Paterson pulled into the curb lane (the lane to his right, or the northmost lane of the two westbound lanes).

[83] Mr. Paterson acknowledged that his intention in moving into the curb lane was to get around the line of cars in the centre (left) lane. He testified that he planned to go straight through the intersection in the curb lane and that he would not cut back into the left lane until it was safe to do so, in other words until the left lane was clear of any cars that had been in that lane at the intersection waiting for the light to change. Mr. Paterson confirmed that, because of parked cars in the curb lane beyond (that is, west of) the intersection, he would have to move into the centre lane at some point before coming to those parked cars. It was put to Mr. Paterson in cross‑examination that he moved into the curb lane in order to “jump the queue” of cars in the centre lane. He did not deny that this was his intention, but maintained that he would only have done so in a safe fashion once the centre lane was clear of cars to his left.

[84] As he moved into the curb lane approaching the intersection of College with Dufferin, Mr. Paterson testified that he noticed a bicyclist in that curb lane. Contrary to Ms. Sanson’s evidence that she was astride her bicycle atop the sharrow chevron, waiting for the light to change — such that Mr. Paterson’s vehicle necessarily stopped behind her to wait for the light — Mr. Paterson’s evidence was that the cyclist, whom he later learned to be Ms. Sanson, was right up against the curb. This meant there was room for Mr. Paterson to pull his car up beside her, leaving a distance of a metre or more between the right side of Mr. Paterson’s car and Ms. Sanson on her bike. That is what Mr. Paterson did.

(ii) Mr. Paterson’s Recollection of Events When Light Turned Green

[85] Mr. Paterson’s evidence was that when the light he was facing turned green, he began to advance into the intersection, still in the curb lane. Within a metre or two of forward progress, according to Mr. Paterson, the cyclist “bumped into his passenger door”.

[86] Mr. Paterson testified that immediately after this collision, he stopped his car and got out to see if the cyclist (Ms. Sanson) was all right. He believes that as he emerged from his car, Ms. Sanson was already on her feet. He asked if she was all right, and believes that Ms. Sanson said that she was. That being the case, and noticing the parking lot of the convenience store at the northwest corner of the intersection, Mr. Paterson suggested that he pull his car into that lot (in part so that his car would not be blocking the intersection) so that the two of them could speak and exchange information there. Ms. Sanson agreed, and they did so.

(iii) Mr. Paterson’s Observations Immediately After Collision

[87] Mr. Paterson recalled that before moving his car to the parking lot, he noticed that Ms. Sanson was wearing a helmet. He also noticed that there was a “big box” at the back of her bike that appeared to be undisturbed; the papers contained in it had not spilled onto the road. He also said that he did not see any damage to Ms. Sanson’s bicycle.

[88] Mr. Paterson also testified that there was no damage to his car. However, he acknowledged that a “scuff mark” or “smear” was on the side of his car — a line about a foot to two feet long documented in a photograph taken by Ms. Sanson at the scene, which was the result of a disturbance of some dirt or dust on the side of Mr. Paterson’s car caused by the contact with Ms. Sanson’s bike.

[89] Mr. Paterson confirmed that when he and Ms. Sanson were both in the parking lot, they exchanged information: he gave her his driver’s licence, which she proceeded to photograph, and she gave him her business card. Mr. Paterson testified that he asked her again if she was all right and that she said she was. He asked her if he needed to call the police, and she declined, but told him she would do so herself once she got home. He said he did not notice that Ms. Sanson had any injuries, although he believes he may have noticed the rip in her pants.

[90] Mr. Paterson recalls being aware that there were some people around, but did not know if any of them witnessed anything. He did not obtain any names or other information from anyone other than Ms. Sanson.

[91] Following their interaction, during which Ms. Sanson took photographs of the right side of his car, Mr. Paterson watched her cycle westward on College. He testified that he was glad and relieved at that point, since the fact that she was back on her bicycle appeared to confirm that she was not hurt. Mr. Paterson did not see Ms. Sanson again until trial.

(iv) Mr. Paterson Went Home, Called Insurer and Gave Statement to Police

[92] Mr. Paterson recalled that when he arrived home after the Collision, he called his insurance company. The person with whom he spoke told him to make a statement to the police. He did so, attending at the local police station and providing a written statement of the events.

(v) Cross-Examination of Mr. Paterson

[93] On cross-examination, as set out above, Mr. Paterson confirmed that he had moved into the curb lane specifically to get around the line of cars in the left lane (albeit insisting he would not have attempted to “race” the cars in the left lane, and would have moved into the centre lane only when safe to do so). He agreed that Ms. Sanson was already in position in the curb lane once he changed lanes to wait for the light to change.

[94] Mr. Paterson disagreed that Ms. Sanson was atop the sharrow symbol on the road, and testified that if she had been, he would have stayed in the centre lane “so as not to be blocked by a bicycle”.

[95] Mr. Paterson agreed that when the light changed and he began to advance into the intersection, he was focused on the lane ahead of him. He agreed he may have seen the vehicle to his left, being the first vehicle stopped in the centre lane before the light changed, but that he did not observe the cyclist again until the collision.

[96] He acknowledged that, as he accelerated into the intersection, maybe a third of the way through it, he heard a noise from his right and became aware of an impact. He then turned his head and saw Ms. Sanson “falling away from” his car.

[97] In my view, this aspect of Mr. Paterson’s evidence is critical to the liability issue. That is, Mr. Paterson agreed that he was aware that the cyclist was near him (either next to him, on his recollection, or in front of him, on Ms. Sanson’s version). However, after the light changed and as he was accelerating into the intersection, he did not pay any attention to or even glance at the cyclist to determine her position and to ensure it was safe for him to accelerate forward into the intersection.

[98] My impression from Mr. Paterson’s evidence is that, as Mr. Paterson himself more or less explicitly acknowledged, he was focused on the car beside him and the lane ahead and preoccupied with the upcoming maneuver he would have to make to move from the curb lane to the centre lane in order to avoid cars parked in the curb lane ahead. I do not mean to suggest that Mr. Paterson set out to race ahead of the car(s) beside him in the centre lane, but merely that he was focused on the imminent need to change lanes, such that he paid much more attention to what was happening to his left and ahead, and was not at all focused on what was happening in the area to the front and to his right, where Ms. Sanson was.

[99] In terms of where Ms. Sanson was relative to Mr. Paterson, I find it likely that she was not right up against the curb as Mr. Paterson suggested, but away from the curb, likely on or near the sharrow symbol as she recalled. Mr. Paterson almost certainly believed, as he testified, that there was sufficient room between his car and Ms. Sanson’s bike that he could pass by her safely while they were both in the curb lane. However, in my view, that calculation on his part had to be carefully assessed in order to proceed safely, and he had to have a close eye on Ms. Sanson to ensure he was able to move safely past her while they were both in that lane. By his own admission, he not only failed to watch her closely to ensure his safe passage, but did not look at her at all as he was accelerating into the intersection. After the light changed, he did not notice her until the impact.

(C) The Reverse Onus

[100] The parties agree that s. 193(1) of the Highway Traffic Act imposes a reverse onus on the driver of a motor vehicle that impacts a pedestrian or bicycle on a public roadway. The relevant provision reads:

“193. (1) When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”

[101] Showing that a plaintiff’s loss or damage was caused in part by his or her own contributory negligence is insufficient. In order to discharge the reverse onus, the defendant must prove that there was no negligence or misconduct on his or her own part. As stated by the Supreme Court of Canada in Wilkinson v. Shapiro, 1944 CanLII 10 (SCC), [1944] S.C.R. 443:

“The appellant could not satisfy the burden placed upon him by showing that the damages were caused in part by the female plaintiff’s negligence. His obligation was to satisfy the jury that the loss or damage did not arise through any negligence or improper conduct on his part. If they are so satisfied, that is an end to the matter; if they are not, it would then be open to them to find that the female plaintiff’s negligence caused or contributed in part to the accident in accordance with the provisions of The Negligence Act, R.S.O. 1937, c. 115.”

See also Lloyd (Litigation Guardian) v. Rutter, [2003] O.J. 5064 (S.C.) at paras. 9-12.

Conclusions re Collision

[102] In my view, given the facts as I have found them above, Mr. Paterson has not discharged the reverse onus here. In my opinion Mr. Paterson’s self-acknowledged failure even to look at Ms. Sanson once the light turned green, in order to ensure that he could safely pass her as he entered the intersection, reflects a failure to meet the minimum requirements of basic prudence in the circumstances. I do not find that any conduct on Ms. Sanson’s part caused or contributed to the Collision.

[103] Accordingly, I find that Mr. Paterson is wholly responsible for the Collision.

P.C. Kan’s Evidence

[104] As set out above, Mr. Paterson also called P.C. Kan to testify. P.C. Kan was a somewhat underwhelming witness. In fairness to him, this was in part because he had no recollection of the events in issue and had to rely entirely on his notes, as well as his accident report (marked as Exhibit 62). In that report, after identifying the parties to the accident and preparing a high-level narrative of the events in issue (which was not particularly illuminating), P.C. Kan chose codes from a menu of codes available to him on the standard form for his report suggesting that, at the time, he concluded that Mr. Paterson was “inattentive” and had engaged in “improper passing”, whereas Ms. Sanson was “driving properly”.

[105] I cannot give any weight to these conclusions as being in the nature of expert opinion evidence, given P.C. Kan’s total lack of memory as to how he formed the impressions that led him to enter those codes. However, I can say that this evidence clearly does not assist the defendant (who called and led the evidence) and in no way undermines my conclusion above on the liability question. Similarly, I cannot place any weight on P.C. Kan’s decision not to lay any charges; again absent any recollection from P.C. Kan, let alone an explanation for his decision not to do so, the conclusions he drew almost a decade ago in his accident report can have no impact on my decision.

[106] I should note that in the balance of Mr. Paterson’s evidence there were some minor inconsistencies from the version recorded in his contemporaneous written statement almost 10 years ago. I put no weight on these inconsistencies, nor do I find that Mr. Paterson was not a credible witness. To the contrary, he came across as reasonable and did his best to assist the Court in recalling the events in issue. In effect, my finding above amounts to determining that Mr. Paterson was insufficiently attentive in the circumstances leading up to the Collision, and as a result of this inattention and the reverse onus provisions of the Highway Traffic Act, he is liable for the Collision.

Consequences of Collision

[107] The consequences Ms. Sanson claimed she experienced as a result of the Collision were the focus of the vast majority of the evidence at trial.

(A) Overview of Ms. Sanson’s Position

[108] By way of overview, Ms. Sanson’s evidence and that of various friends, colleagues, clients and others who testified on her behalf was that Ms. Sanson has never been able to recover her pre‑Collision persona and condition. Despite numerous attempts following the Collision to return to her work and usual activities, she has simply been unable to do what she used to do. Ms. Sanson maintains that the consequence of the Collision has been the effective end of her productive working life, and a severe curtailment of her activities, her social life, and virtually every aspect of her former existence.

(B) Overview of Mr. Paterson’s Position

[109] Mr. Paterson’s position, on the other hand, is that Ms. Sanson’s career was, as of the time of the Collision, on a demonstrable downward trajectory. He alleges that Ms. Sanson’s purported injuries from the Collision are significantly exaggerated and that, in effect, Ms. Sanson has embraced and overstated those injuries as a face-saving way out of a deteriorating career. He maintains that the evidence confirms that Ms. Sanson is not nearly as restricted in her activities as she claims, that she attends concerts and other artistic performances on a regular basis without apparent consequences to her health (contrary to her allegations), and that she is seeking an award of damages to allow her to continue her lifestyle without having to do the hard work that got her to where she was at the pinnacle of her career. Mr. Paterson alleges this pinnacle pre-dated the Collision by some years, since at the time of the Collision the inexorable downward momentum of Ms. Sanson’s practice was well underway.

(C) Arguments re Interpretation of Events Following Collision

[110] The overall positions of the two sides relative to the events immediately following the Collision illustrate that the two parties interpret the evidence through entirely different lenses.

[111] Ms. Sanson testified that during the weekend following the Collision, she continued to experience physical pain, stiffness and headaches. However, Ms. Sanson necessarily returned to file work in the following week (the week of October 22, 2012).

[112] From Ms. Sanson’s perspective, although it was extremely difficult for her to work in the initial aftermath of the Collision, she had upcoming hearings for which she had to prepare, including an upcoming appeal at the Court of Appeal for Ontario. At that point, she expected that her symptoms would soon wane and that she would make a full recovery and return to full-blown practice and other activities. Because she and Mr. Hart had planned their upcoming vacation to New Orleans for some time, there was some urgency associated with this preparation work, as she needed to complete the bulk of the work for her hearings before going away.

[113] From the defendants’ perspective, by contrast, Ms. Sanson’s ability to put in hours of work and then to go on the planned trip to New Orleans undermines Ms. Sanson’s claims as to how disabling her injuries were.

[114] Mr. Paterson alleges that Ms. Sanson’s work in the days following the Collision, her trip to New Orleans, and her immediate return to work when she got back all suggest that Ms. Sanson’s injuries were not as significant as she claims, and that other factors explain her steadily diminishing workload and other activities in the long-term after the Collision.

[115] Mr. Paterson argues that the medical facts and record in the short-term after the Collison support this interpretation.

[116] First, he emphasizes that Ms. Sanson did not need or call an ambulance at the scene of the Collision, and that in fact she rode her bicycle home, a 10-minute ride, without apparent difficulty or incident.

[117] She also did not call for medical assistance later that day, or over the weekend, and only went to see her family doctor, Dr. McNally, on Monday, October 22.

[118] Mr. Paterson argues that the photographs Ms. Paterson took of herself and her bike, which showed minimal or no damage, further support the defendant’s contention that the Collision was in fact extremely minor, and that Ms. Sanson’s injuries were correspondingly negligible.

[119] Mr. Paterson also points to Dr. McNally’s record of Ms. Sanson’s medical appointment on October 22. On examination, in terms of objectively verifiable injuries, Dr. McNally noted only “tiny cut/abrasion chin”, “bruises palms no cuts” and R knee small abrasion”. In addition, she noted that Ms. Sanson’s gait was normal, that she had no swelling in her legs, and that the fundi of her eyes were normal (after examining Ms. Sanson with an ophthalmoscope).

[120] Moreover, a magnetic resonance imaging (“MRI”) scan of Ms. Sanson’s brain was undertaken in November. Dr. McNally had booked a head computerized tomography (“CT”) scan in Toronto, but Ms. Sanson preferred to avoid the radiation associated with a CT scan and arranged for an MRI in Buffalo, New York instead. The MRI results showed that Ms. Sanson’s brain was “essentially normal for age” and revealed no overt (if any) signs of brain injury.

[121] As such, the defendant says, there is no objective proof available to support Ms. Sanson’s contention that she suffered a traumatic brain injury (“TBI”) as a result of the Collision.

[122] On the other hand, Ms. Sanson has consistently complained of symptoms suffered in the wake of the Collision.

[123] In Dr. McNally’s initial note on October 22, 2012, she recorded that Ms. Sanson reported “achy muscles” and a “headache frontal and occipital”; that Ms. Sanson felt “weepy”, “tearful”, and “fearful”; and that Ms. Sanson was “worried about head injury, possible long term sequelae”.

(D) Evidence of Longer-Term Impacts

[124] If one credits Ms. Sanson’s ongoing reports of symptoms and problems, these initial expressions of concern proved well-founded. That is, over the following weeks, months and years, Ms. Sanson continued to report to health care providers that she continued to suffer ill effects arising from the Collision.

[125] She reported ongoing headaches, which varied in number and intensity, but amounted to about ten days of migraine headache per month. These headaches would be triggered, and occurred more frequently, when Ms. Sanson attempted tasks that had formerly been part of her everyday life: working at the computer for longer than about two hours, preparing and delivering presentations, being exposed to noise or large gatherings, or any one of a number of activities that Ms. Sanson had previously undertaken without adverse impact.

[126] Again Mr. Paterson maintains that the impacts and limitations reported by Ms. Sanson are only that — reports — and that one cannot rely on ongoing subjective reports in the absence of verifiable objective proof. Despite Ms. Sanson’s reports as to the severity of her injuries, Ms. Sanson’s post-Collision work output, measured in terms of hours billed, was roughly the same after the Collision as it had been before the Collision, at least up to 2014 or 2015. The defendant also filed surveillance footage before the Court showing that, in addition to maintaining her regular workload for a time, Ms. Sanson also carried on a normal life, attending at concerts, musicals, movies and the like without any outward signs of impediment.

[127] That said, at trial Ms. Sanson proffered considerable evidence concerning the impact of the Collision, including medical evidence and numerous attestations by friends, colleagues, clients and others who testified on her behalf about the palpable and dramatic changes in Ms. Sanson following the Collision.

(i) Diagnosis of Mild Traumatic Brain Injury

[128] Dealing with the medical evidence first, it is important to note at the outset that traumatic brain injuries, particularly mild traumatic brain injuries (“mTBI”) like the one Ms. Sanson argues she suffered, are “invisible” injuries that are not necessarily outwardly apparent, particularly to strangers. There are no outward physical signs of injury and, absent a bleed and/or structural damage (which can occur with more pronounced trauma), mTBIs are not detected using standard brain imaging tests. There may also be no obvious manifestations apparent in the affect of the person suffering an mTBI.

[129] This means that the best evidence of an mTBI is likely to come, as it does in this case, from ongoing testing and assessment of psychological function, particularly in neurocognitive domains, and from long-term longitudinal observation of the individual’s ongoing capacity for work and other activities.

[130] There is considerable agreement among the experts who testified before me regarding the assessment and testing of psychological function, including neurocognitive function. Where the parties part company is with respect to the expected course and consequences of an mTBI.

[131] In short, it is Ms. Sanson’s position that she suffered and continues to suffer the effects of an mTBI, and that her headaches and cognitive symptoms all stem from and continue as a result of her concussion and post-concussion syndrome.

[132] The defendants, on the other hand, take the position that an mTBI resolves, in the vast majority of cases, within three months; that the objective medical evidence confirms that it did so in Ms. Sanson’s case; and that therefore any ongoing symptoms that Ms. Sanson suffers, including in particular her migraine headaches and alleged cognitive deficits, are not caused directly by the Collision. The defendants also maintain that the symptoms are not as severe as Ms. Sanson alleges, and that she should be able to return to some form of employment, either as a human rights lawyer initially on a part-time or reduced basis, or in some other capacity.

[133] In terms of the relevant nomenclature, I should observe that there is ongoing debate in the medical field concerning the relevant definitions. I got a flavour for this debate in some of the testimony before me. In addition, a significant document was put in evidence before me, the “Guideline for Concussion/Mild Traumatic Brain Injury & Prolonged Symptoms” (the “Guideline”), a 2018 publication of the Ontario Neurotrauma Foundation intended to provide the best current evidence to “inform and instruct caregivers and other stakeholders who deliver services to adults who have sustained or are suspected of sustaining a concussion/mTBI”. The Guideline acknowledges the evolving categorization of brain injuries, noting that, “over the years, various terms have been used synonymously with mild traumatic brain injury, such as mild head injury and concussion”. The Guideline goes on to advise, “It is important to note that all concussions are considered to be a mTBI however a mTBI is distinguished from concussion when there is evidence of intracranial injury on conventional neuroimaging or there is persistent neurologic deficit.”

[134] In my view, the issues about the extent and nature of Ms. Sanson’s injuries, and about her capacity to work in her field or otherwise, fall to be determined on the basis of the medical evidence presented at trial which I will discuss below in detail.

(ii) Testimony of Friends, Colleagues and Clients

[135] As noted above, numerous friends, colleagues, clients and others testified on Ms. Sanson’s behalf. To a person, they told me that before the Collision, Ms. Sanson was a person of boundless energy, socially was the “life of the party”, and, in the workplace and in particular in the courtroom, was formidable, endlessly hard-working on behalf of her clients, extremely adept on her feet in hearings, and justifiably regarded as a true leader and pioneer in her field.

[136] To a person, these witnesses also spoke about the palpable changes in Ms. Sanson since the Collision. They noted how much less energy she now seems to have, and her inability to follow conversations, especially multifaceted conversations, that in the past she would have enjoyed and led. They talked about her retreat from her former self, and the obvious pain and frustration she has experienced as a result of various failed attempts to resume even the formerly ordinary components of her previous life and practice.

(iii) Evidence of Mr. Hart

[137] In this regard, I place particular emphasis on the evidence of Mr. Hart. While he obviously feels love and loyalty to Ms. Sanson, he gave his evidence in a fashion that was not exaggerated and was even-handed and fair. He frankly gave a very helpful picture of Ms. Sanson before and after the Collision. Even when confronted with aspects of his personal life and his relationship with Ms. Sanson, intended to undermine his credibility and undercut his claims about Ms. Sanson and their life together, he remained balanced and fair in his testimony and conceded points where appropriate.

[138] Of all the lay witnesses who testified in support of Ms. Sanson, I found Mr. Hart’s evidence particularly persuasive. It helped to balance and contextualize the evidence of Ms. Sanson, who was generally credible but, understandably, was at times preoccupied with the details of her impairments, consistent with a somatic disorder. As one clinician who testified explained, it is not unusual for someone with an array of symptoms and a concern for their future to “focus on and pay a lot of attention to the health difficulties they are experiencing”. This meant that, while it was consistent with the evidence of various health care providers about the extent of her impairments, Ms. Sanson’s testimony about these issues was at times heavy-going, and characterized by a uniform focus on the substantial impact of these various problems.

[139] Mr. Hart, while obviously concerned by these same problems, was a step removed inasmuch as he does not suffer the symptoms himself. As such, his straightforward and compelling confirmation of the impairments suffered by Ms. Sanson and their impact on her was very helpful in underlining the legitimacy of the ongoing complaints.

[140] The combination of the evidence of Ms. Sanson, Mr. Hart, and the various friends, colleagues, clients and others who testified, leaves me readily able to accept Ms. Sanson’s characterization of her plight as fair. In short, the Collision and its consequences have been nothing less than devastating to Ms. Sanson’s life.

(iv) Evidence that Defendants Say Undermines Alleged Impairments

[141] The defendants — primarily Mr. Paterson, but Security National adopts Mr. Paterson’s position on these issues — attempted to suggest otherwise. They did so by pointing to selective aspects of the evidence which, in isolation, might be seen to be at odds with central features of Ms. Sanson’s case.

[142] For example, the defendants rely on docket entries from Ms. Sanson’s practice in the immediate and mid‑term following the Collision, emphasizing that for stretches within those periods Ms. Sanson worked long days, and sometimes combined eight or more docketed hours with, for example, workouts with her personal trainer and/or sessions with her chiropractor. Even after 2015, the last year in which Ms. Sanson completed billable work, the defendants note that she continued to give continuing legal education presentations and to host conferences. The defendants played into evidence excerpts from presentations given by Ms. Sanson since the Collision, and fairly observed that her performance in these settings is very good and shows no outward signs of impairment.

[143] They also point to the fact Ms. Sanson continued to go occasionally to the movies, performances, dinners with friends and the like, in some cases providing surveillance evidence of these ventures.

[144] Along similar lines the defendants note that Ms. Sanson (mostly together with Mr. Hart) has continued to travel and to take vacations from time to time.

(v) Ms. Sanson’s Responses

[145] Ms. Sanson’s response to each of these allegations — which collectively amount to the claim that she engages in activities that her evidence suggests should not be possible for her — is essentially threefold.

[146] First, Ms. Sanson says that she has never claimed that she is unable to participate in these activities (subject to the qualifications below). In fact, as evidence from her healthcare providers attests, Ms. Sanson has been encouraged at various points to try them all, with the goal of facilitating a return or partial return to her past life and providing her with some enjoyment of life.

[147] Second, she says, and the contemporaneous records of some of her treatment providers again confirm, that each of these formerly routine or at least readily achievable activities now require considerably longer, slower, and more painstaking preparation and effort, and are nonetheless prone to errors, inefficiencies and, particularly in the case of her efforts to return to work, lack of success.

[148] Third, to varying degrees, each such activity comes with a cost. That is, as a result of making the superadded efforts now required to accomplish or even attempt such activities, in the aftermath, Ms. Sanson frequently suffers headaches, fatigue, and low mood to an even more debilitating degree than usual.

[149] While again Ms. Sanson’s description of these efforts and their aftermath has to be decoupled at times from her subjective experiences of them, overall, the evidence taken as a whole supports Ms. Sanson’s claims as to the Collision’s impact on her life, notwithstanding Ms. Sanson’s occasional accomplishments appearing at odds with these claims.

(E) Medical and Psychological Evidence

[150] I return now to the details of the medical and psychological evidence presented by each side.

[151] As set out above, the distinction between the parties’ positions is somewhat subtle.

[152] Ms. Sanson maintains that, as a consequence of the Collision, she suffered an mTBI and that, as happens in a small minority of such cases, her brain injury did not resolve in the first few months, has persisted and become permanent, and is the operative cause of her ongoing impairments and disability. Her position is that there is no reasonable basis at this stage to expect that her mTBI will improve, and that instead it is reasonable to expect her symptoms will continue, albeit with varying frequency and intensity, for the rest of her life. Coupled with this assertion is the related conclusion that it is unreasonable to expect that Ms. Sanson will be able to return to any form of work for which she is suited by education, training and experience, or any form of work at all.

[153] Mr. Paterson’s position is that, to the extent Ms. Sanson suffered an mTBI at all, which he denies, that condition resolved within a very few months of the Collision. While certain expert evidence presented by the defendant confirms that Ms. Sanson has been and remains at least partially disabled, Mr. Paterson attributes such partial disability to Ms. Sanson’s symptoms, and in particular her migraine headaches, which he maintains are not directly attributable to the Collision, and therefore are not directly causally linked to the Collision. As such, Mr. Paterson argues that he should not be liable for Ms. Paterson’s ongoing limitations. His related alternative argument is that those limitations are not as severe as Ms. Sanson alleges, and that she should be able (and should have been able some time ago) to return to at least some form of remunerative activity.

[154] It is important to note again here that, as set out above, the classification and nomenclature in the medical domain is somewhat inconsistent and somewhat in flux with respect to head injuries.

[155] There is overlap and a degree of uncertainty, for example, in the precise meaning and degree of head injury encompassed by an mTBI versus a concussion, and a lack of a uniform definition of “post-concussion syndrome”.

[156] Various terms are also used interchangeably and somewhat inconsistently relative to brain injuries. In particular, there is a lack of clarity as to the precise division between an mTBI and a TBI (i.e. a traumatic brain injury not categorized as “mild”), and the term “acquired brain injury” (“ABI”) is sometimes used to encompass various degrees of brain injury occasioned by trauma.

[157] Most health care providers who testified in the case before me used the “mTBI” label to describe Ms. Sanson’s injury (or potential injury according to the defendants). However, for example, Dr. McNally and Dr. Lay referred at times to Ms. Sanson’s ongoing symptoms as “post‑concussion symptoms”.

[158] In discussing these issues I will at times use different nomenclature, depending on the particular medical record or report to which I am referring. To be clear, I am not placing precise reliance on any one of the various terms used. It is sufficient to understand that Ms. Sanson alleges she suffered a brain injury as a result of the Collision, and that there are differing opinions as to the precise injury, the extent of injury, and the relationship of Ms. Sanson’s persisting symptoms to the injury she sustained.

[159] Ms. Sanson called several of her treatment providers to testify. These treatment providers testified as participant experts pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23. The two exceptions are Dr. Cancelliere, a neuropsychologist who, while a participant expert, was also qualified as a litigation expert; and Ms. Maurice, an occupational therapist who was likewise tendered and testified as a litigation expert.

[160] In Westerhof v. Gee Estate (2015 ONCA 206, 124 O.R. (3d) 721), the Court of Appeal defined both “participant expert” and “litigation expert”. Participant experts may express opinions so long as those opinions were formed based on their respective observations of or participation in the events at issue, and so long as the opinions were part of the ordinary exercise of their skill, knowledge, training and experience while observing or participating in such events (at paras. 61‑62). Litigation experts are engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding (at para. 79).

(i) Dr. Cancelliere

[161] Dr. Cancelliere was the first of Ms. Sanson’s caregivers to testify.

[162] He is a clinical neuropsychologist who has been in private practice for many years and has consulted at various medical institutions. Dr. Cancelliere has extensive experience in the assessment and treatment of patients with ABIs, including a large percentage of such patients whose injuries stem from motor vehicle accidents. He was tendered as an expert in neuropsychology and psychology and he is well qualified in those fields.

[163] Dr. Cancelliere saw Ms. Sanson on referral from the head injury clinic at St. Michael’s Hospital in Toronto. He undertook both a neuropsychological assessment and a general psychological assessment of Ms. Sanson in June of 2014, and provided reports of each assessment on October 27, 2014. In addition, by report dated October 15, 2018, Dr. Cancelliere responded, at the request of Ms. Sanson’s then lawyer, to the assessment reports of Dr. Zakzanis and Dr. Jovanovksi prepared on behalf of Mr. Paterson (and the defendant in the related action).

[164] Dr. Cancelliere’s initial assessment of Ms. Sanson was primarily based on the results of a substantial volume of neurocognitive and related tests, together with details of the Collision and Ms. Sanson’s personal and medical history pre- and post-Collision. His assessment was that Ms. Sanson had neurocognitive impairments consistent with a TBI. That said, inasmuch as in 2014 Ms. Sanson was still making efforts to return to work, and notwithstanding an array of findings reflecting “cardinal features of a traumatic brain injury”, Dr. Cancelliere at that time labeled Ms. Sanson’s disability as a “partial disability”.

[165] In 2018, based on a review of the assessments by Dr. Zakzanis and Dr. Jovanovski in addition to his own earlier assessment, Dr. Cancelliere opined that Ms. Sanson has a serious permanent impairment of important mental and psychological functions. He testified that, given the consistency of the test scores obtained by Dr. Jovanovski with Dr. Cancelliere’s results some years earlier, the results supported a stable etiology for the impairments. As a result, the etiology was likely a persisting mTBI, rather than an unstable/variable etiology from symptoms, including headaches, fatigue and nausea (as Dr. Jovanovski had suggested). (Dr. Zakzanis used a different array of tests such that a direct comparison to his results was not available.)

[166] In simple terms, Dr. Cancelliere explained, if Ms. Sanson’s impairments were due to symptoms, which are by nature variable, one would expect her test results to change over time, especially over the time that had elapsed between Dr. Cancelliere’s tests in June of 2014 and Dr. Jovanovski’s tests in November of 2017. Dr. Cancelliere testified that not only did the results not change appreciably between these two assessments, they were virtually identical.

[167] Dr. Cancelliere acknowledged, both in his examination-in-chief and on cross-examination, that the majority of patients with acquired mTBIs tend to recover considerably in the first few months after the initial injury. In Ms. Sanson’s case, however, she did not exhibit improvement in the short term, as borne out by the respective test results nearly two and a half years apart. In addition to strongly suggesting a stable etiology, in Dr. Cancelliere’s view, this means that Ms. Sanson’s sequelae should be viewed as permanent.

[168] In addition to Dr. Cancelliere’s neuropsychological evidence, Ms. Sanson called three physicians involved in her care to testify about the nature and impact of her injuries.

(ii) Dr. McNally

[169] Dr. McNally was Ms. Sanson’s family physician, initially in the 1980s and then resuming and continuously from the early 2000s until Dr. McNally’s recent retirement from practice at some point in 2021.

[170] Dr. McNally testified that prior to the Collision, she had diagnosed and treated Ms. Sanson for a thyroid disorder and for gastroesophageal reflux disease, as well as for a minor mood disorder, thought perhaps to be seasonal affective disorder, which caused Ms. Sanson to experience periodic sleep difficulties. Dr. McNally confirmed that prior to the Collision, generally Ms. Sanson had been healthy, and her diagnosed conditions had all responded well to medications.

[171] Dr. McNally was the first physician whom Ms. Sanson saw relative to the Collision. As mentioned above, Ms. Sanson met with Dr. McNally on October 22, 2012, the Monday following the Collision.

[172] At that appointment, Dr. McNally noted some details about the Collision itself, and that Ms. Sanson complained of feeling achy in various muscles and had a headache in the frontal and occipital areas of her head, abrasions on her right knee and chin, bruising on her palms and pain in her lower legs.

[173] Dr. McNally noted that Ms. Sanson was “weepy tearful fearful” and that Ms. Sanson expressed concerns about head injury and possible long-term consequences.

[174] Dr. McNally’s examination confirmed an array of apparently minor physical injuries. Relative to the putative head injury, she recommended that Ms. Sanson undergo a CT scan of her head in the near term.

[175] Concerned about the exposure to radiation associated with a CT scan, Ms. Sanson opted instead to undergo an MRI in Buffalo, New York. That MRI, the results of which were reported in early November of 2012, confirmed no evidence of acute traumatic injury, and was said to be consistent with a normal result for a person of Ms. Sanson’s age.

[176] I should note here that the evidence was clear that the MRI, like the proposed CT, was intended to rule out a significant acute injury potentially including structural damage and/or a bleed. A normal MRI like the one in Ms. Sanson’s case is reassuring from that perspective but does not rule out a TBI without a bleed.

[177] Ms. Sanson continued to see Dr. McNally over the following weeks and months, and Dr. McNally’s records attest to the general course of Ms. Sanson’s condition during that time frame.

[178] On January 31, 2013, Ms. Sanson reported to Dr. McNally that she had experienced headaches for three months, and that although they were getting better, she had recently only been able to work for about two hours a day. In addition to the headaches, Ms. Sanson reported problems being in crowds (feeling “overwhelmed”) and problems with her memory. Dr. McNally made a referral on or shortly after that day to Dr. Ouchterlony, the director of the ABI clinic at St Michael’s Hospital.

[179] When Dr. McNally next saw Ms. Sanson, on July 25, 2013, Ms. Sanson reported that the headaches had continued over the last couple of months. The week prior to her visit to Dr. McNally, she had had a headache that caused her to vomit. She was also experiencing ongoing memory issues, balance issues and hypersensitivity and aversion to noise, among other problems.

[180] By November of 2013, pursuant to Dr. McNally’s referral, Ms. Sanson’s primary treatment for these problems was effectively taken over by Dr. Ouchterlony at the St. Michael’s Hospital ABI clinic.

[181] This meant that Dr. McNally largely left the ongoing care and treatment of Ms. Sanson’s head-related issues to Dr. Ouchterlony. Consistent with that division of labour, Dr. McNally’s chart thereafter contains consultation notes from the ABI clinic and Dr. Ouchterlony (and later from other physicians). Dr. McNally’s day‑to‑day clinical notes, while recording reported symptoms such as headaches and noting the overall course of Ms. Sanson’s ongoing issues in that regard, are less focused on the head issues than other routine medical issues.

[182] Based on her records, and certainly based on her testimony, it is nevertheless clear that Dr. McNally believes that Ms. Sanson suffered a concussion and TBI as a result of the Collision, and that she continued to treat and refer Ms. Sanson from that working diagnosis. In cross-examination, Dr. McNally fairly acknowledged that this continued working diagnosis relied in large part on the opinions of others, in particular that of Dr. Ouchterlony. Overall, however, Dr. McNally’s opinion that Ms. Sanson had suffered an ABI was not shaken in cross-examination.

(iii) Dr. Ouchterlony

[183] Dr. Ouchterlony also testified. She is formally certified as a family doctor, but has been retired from clinical practice since 2018 and from all practice since 2020. From the outset of her career, she developed an abiding clinical and academic interest in ABI, and the primary focus of her clinical and research activities throughout her many decades of practice was in that area.

[184] Among other leadership roles in her chosen field, she was at various points the Director of the Neurorehabilitation Unit at the (then) Riverdale Hospital, the Co-Director of the Head Injury Clinic at Sunnybrook Hospital and Women’s College Hospital, and, for about 20 years (from 1997 to 2016), the Director of the Head Injury Clinic at St. Michael’s Hospital.

[185] Mr. Paterson challenges Dr. Ouchterlony’s evidence on a number of bases.

[186] First, he argues that, having only formally qualified as a family physician, and possessing no certification in a relevant specialty or subspecialty (in particular neurology or, presumably, neuro-surgery), Dr. Ouchterlony lacks the specific qualifications that would allow me to accept her evidence regarding whether and to what extent Ms. Sanson suffered a brain injury. Alternatively, given the lack of such qualifications, the defendant argues that I can give little or no weight to Dr. Ouchterlony’s testimony.

[187] He also raises, particularly in the context of the threshold motion addressed later in these reasons, that accepting or relying on Dr. Ouchterlony’s evidence will “open the floodgates” and create a precedent for family physicians opining about all types of issues beyond their ken. Mr. Paterson couples this latter point with the suggestion that I ought not to receive opinion evidence from Dr. Ouchterlony absent compliance with Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, given that Dr. Ouchterlony was called as a participant expert pursuant to s. 52 of the Evidence Act and as defined in Westerhof.

[188] The defendant also argues that Dr. Ouchterlony came across, in her testimony, as an advocate for Ms. Sanson rather than an objective expert, and that I ought to discount her evidence on that basis as well.

[189] I will address the defendant’s arguments relative to Rule 53 when I deal with the threshold motion below.

[190] Regarding Dr. Ouchterlony’s qualifications generally, I think it fair to observe that Dr. Ouchterlony and her practice were somewhat anomalous, and likely the product of historical factors that are unlikely to recur.

[191] Notwithstanding her lack of formal certification beyond her designation as a family physician, Dr. Ouchterlony’s practice over the years in no way appears to have resembled the practice of a “typical” family physician. Her work appears to have been exclusively in the area of brain injury and was essentially a referral-based practice. As her CV confirms, she occupied various leadership positions in organizations devoted to medical practice in relation to head injury, and her research has similarly been focused on that domain.

[192] It appears that, having clearly developed an interest in the area, Dr. Ouchterlony was allowed to pursue that interest, and to take on significant leadership roles notwithstanding her lack of specialist certification.

[193] Although I did not hear specific evidence on this point, I suspect that such a career path would not be possible at present and that Dr. Ouchterlony’s unusual trajectory was a product of time and place. Whatever the explanation, it is apparent that Dr. Ouchterlony’s considerable experience and expertise in the area have allowed her to progress to specialist-like roles and significant leadership positions despite not being formally qualified as a specialist.

[194] The case law is clear that an expert can be qualified by virtue of extensive experience in an area, notwithstanding a lack of formal academic qualifications. The usual starting point for this proposition is Rice v. Sockett (1912), 1912 CanLII 561 (ON SCDC), 8 D.L.R. 84 (Ont. Div. Ct.), and it has been confirmed in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, among other decisions. In the medical field, I expect that this kind of consideration will arise exceedingly rarely. That is, for the most part, it appears that people practice exclusively in areas in which they have formal academic training and certification. As such, Dr. Ouchterlony’s specific qualifications, based on her extensive experience and the focus of her research rather than on her formal designation, must be seen as anomalous if not singular.

[195] Nonetheless, in my view Dr. Ouchterlony’s extensive work, training, experience and research in the field of brain injury indicates she is qualified to provide the opinions that she has formed during the course of her care and treatment of Ms. Sanson. As I will discuss in more detail below, I expect that the “floodgates” argument relative to accepting such testimony from Dr. Ouchterlony will prove not to be a real concern; I doubt that there will be many, if any, family physicians with Dr. Ouchterlony’s unique experience and expertise who will be tendered in future cases.

[196] Subject to the specific parameters established in Westerhof, I accept Dr. Ouchterlony’s expertise and experience as qualifying her to give opinions arising from her treating physician role for Ms. Sanson.

[197] I also did not find Dr. Ouchterlony to be biased in her evidence. In my view the opinions she expressed were well-grounded in the information she obtained in her treatment role, and she testified in a fair and even-handed manner. I am mindful of the concern expressed by Mr. Paterson’s counsel that it is in the very nature of a treatment relationship that a physician will tend to advocate for his or her patient and thereby become less than impartial. Having watched and listened carefully to Dr. Ouchterlony’s evidence, however, I did not find that she exhibited any signs of having crossed the line from objective treatment provider to advocate.

[198] As set out above, Dr. Ouchterlony began treating Ms. Sanson in November of 2013 on referral from Dr. McNally.

[199] Dr. Ouchterlony’s clear and unequivocal opinion was that Ms. Sanson had suffered a TBI as a result of the Collision, and that unfortunately Ms. Sanson is among the small but significant cohort of mTBI patients who do not appreciably recover from those injuries in the first few months. Dr. Ouchterlony testified that the relevant literature puts the size of that group as approximately 15-20% of patients suffering mTBIs. She said that Ms. Sanson’s early and ongoing symptoms are quite characteristic of what one sees with mTBIs, and she also put stock in Dr. Cancelliere’s neurocognitive test results to the same effect.

[200] I should note here that Dr. Ouchterlony was a contributor to the Guideline mentioned above, a further testament to her stature and expertise in the field of TBI, and that her testimony about the incidence of mTBI patients with persisting symptoms is consistent with and supported by the contents of the Guideline. Importantly, the Guideline indicates that “the literature would suggest that minimally 15% of persons with concussion may experience persisting symptoms beyond the typical 3 month time frame”. Furthermore, the Guideline indicates that a Canadian longitudinal study found “no patient recovered who had post-concussion syndrome lasting 3 years or longer”, and “when symptoms persist beyond the typical recovery period of three months, the term post-concussion syndrome or disorder may be applied”. Dr. Ouchterlony testified that the Guideline is an important resource in the study and treatment of TBIs.

[201] Dr. Ouchterlony was not moved from her firm views about Ms. Sanson’s diagnosis and prognosis in cross-examination. In my view, her opinion, based on ongoing care, treatment, assessment, and data collection and analysis of Ms. Sanson’s condition, is highly persuasive.

(iv) Dr. Lay

[202] The third physician Ms. Sanson called to testify was Dr. Lay.

[203] Dr. Lay is a neurologist with a particular focus on headache medicine. For many years she has served as the head of the Centre for Headache at Women’s College Hospital in Toronto.

[204] She has extensive experience and expertise in this area, and is clearly highly regarded. As confirmation of this, a neurologist called by the defendant, Dr. Angel, testified that he holds Dr. Lay in high regard, and that he refers his most difficult and intractable headache cases to her.

[205] Given Dr. Ouchterlony’s anticipated retirement and Ms. Sanson’s ongoing headaches and other symptoms, Dr. McNally referred Ms. Sanson to Dr. Lay. Ms. Sanson first attended at the Centre for Headache in late 2017, and was first seen and assessed by Dr. Lay in May of 2018.

[206] Based on this initial and very thorough assessment, Dr. Lay diagnosed Ms. Sanson with migraine headache and post-concussion syndrome, and determined that Ms. Sanson exhibited a “severe disability”.

[207] From that initial consultation to the time of trial, Dr. Lay and her colleagues at the Centre for Headache have continued to treat Ms. Sanson. They have continually modified Ms. Sanson’s medication regimen, substituted drugs in an attempt to better control Ms. Sanson’s symptoms, and monitored those symptoms closely to assess Ms. Sanson’s response to treatment.

[208] Early on in the course of treatment, Dr. Lay withdrew the drug topiramate (trade name Topamax), which Ms. Sanson had been taking for headaches, from her treatment regimen, as topiramate is known to cause cognitive side effects in some patients. Although Dr. Lay substituted the topiramate with another drug, candesartan (trade name Atacand), Ms. Sanson’s cognitive symptoms continued. Dr. Lay testified that this indicated those symptoms were not associated with Ms. Sanson’s medications but instead were continuing evidence of an underlying mTBI.

[209] In terms of Ms. Sanson’s overall trajectory, Dr. Lay testified that while Ms. Sanson has had some success in reducing the frequency and intensity of her migraine headaches, she still experiences those headaches regularly, she is still prone to the onset or exacerbation of these headaches associated with various triggers, and her cognitive symptoms continue.

[210] Dr. Lay testified that the unvaried continuation of Ms. Sanson’s cognitive symptoms, notwithstanding somewhat better control of her headaches, confirms that the cognitive issues are not a product of the headaches, but rather, stem from Ms. Sanson’s post‑concussion syndrome.

[211] Like Dr. Ouchterlony, Dr. Lay was firm in her view — which has informed her treatment of Ms. Sanson throughout their treatment relationship — that Ms. Sanson suffered from and continues to suffer from an TBI. Like Dr. Ouchterlony, Dr. Lay was not shaken from that view in cross‑examination. Instead, evenhandedly and thoroughly, she pointed to the evidence of that TBI in response to suggestions in cross-examination that Ms. Sanson’s cognitive symptoms arose from other sources. Like Dr. Ouchterlony, I found Dr. Lay to be a very impressive and persuasive witness. She was clearly not attending trial as an advocate for her patient, but rather gave compelling and objective evidence concerning her diagnosis and treatment of Ms. Sanson, focusing on the medical facts.

(v) Elise Shumway

[212] Ms. Sanson also called Ms. Shumway, a speech-language pathologist who has been participating in Ms. Sanson’s care on an ongoing basis since Dr. Ouchterlony asked her to do so in late 2013.

[213] Ms. Shumway was not qualified nor tendered to provide a medical opinion. However, because she has seen Ms. Sanson very regularly since Dr. Ouchterlony’s initial referral (including by way of ongoing home visits, which is Ms. Shumway’s preferred approach to treatment), Ms. Shumway is in a unique position to provide fairly comprehensive evidence about Ms. Sanson’s overall course.

[214] In particular, Ms. Shumway testified about Ms. Sanson’s cognitive challenges, specific strategies that Ms. Shumway recommended and Ms. Sanson employed to minimize the impact of those challenges, and the successes and failures of those efforts over the course of more than eight years. For example, and without attempting to be exhaustive, Ms. Shumway discussed strategies to help Ms. Sanson cope with her inability to follow conversational threads (including in particular multiple threads in groups of more than two people), suggesting diplomatic ways for Ms. Sanson to insist that participants in such discussions speak one at a time and address one idea at a time. Ms. Shumway also talked about Ms. Sanson’s necessary use of lists and notes to accomplish day‑to‑day goals and tasks, and the overriding observation that, at best, Ms. Sanson has about four or five productive hours in a day (with “productive”, in this context, meaning able to accomplish relatively rudimentary goals).

[215] Ms. Shumway’s interactions with Ms. Sanson included ongoing informal assessment, and a comprehensive catalogue over time of Ms. Sanson’s improvements, setbacks, and ongoing challenges. Ms. Shumway of course could offer no opinion about the cause of Ms. Sanson’s difficulties, nor the appropriate medical diagnosis. Nonetheless, her evidence, which was largely undisturbed on cross-examination, provided a useful picture of Ms. Sanson’s condition and minimal progress over many years since the Collision.

(vi) Claudia Maurice

[216] Finally, in the category of health care providers, Ms. Sanson also called Ms. Maurice, an occupational therapist. The upshot of Ms. Maurice’s testimony was that having regard to Ms. Sanson’s limitations in terms of activities and hours per day of productive time, Ms. Sanson needs external assistance with various tasks and activities of daily living, as well as ongoing occupational therapy consultation and input to guide appropriate strategies, so she can maintain a reasonable standard of living.

[217] The cross-examination of Ms. Maurice focused on the limitations and insufficiency of a single assessment to fairly understand the details of Ms. Sanson’s abilities and needs. The defendant’s counsel pointed out numerous pieces of information that Ms. Maurice did not have or consider in her assessment. While this was a productive strategy as far as it went, the record contains quite voluminous evidence from various sources, including for example the records and testimony of Ms. Shumway, discussed above. This evidence fills in some of the gaps in the information Ms. Maurice provided, and thus addresses some of the concerns explored in cross‑examination. I will consider a number of Ms. Maurice’s specific recommendations below in the context of Ms. Sanson’s claim for future care costs.

(F) Medical and Neuropsychological Evidence Called by Mr. Paterson

[218] In addition to Mr. Paterson and P.C. Kan, both of whom gave evidence related solely to the Collision itself, the defence called two witnesses to discuss the impact of the Collision, Dr. Angel, a neurologist, and Dr. Jovanovski, a neuropsychologist.

(i) Dr. Angel

[219] Dr. Angel assessed Ms. Sanson on one occasion on July 21, 2016, and wrote a report concerning his assessment dated August 26, 2016. Dr. Angel undertook his assessment on behalf of Mr. Paterson’s insurer.

[220] The main thrust of Dr. Angel’s assessment was that, while Ms. Sanson had persistent symptoms of migraine headaches in particular, from a strictly neurological perspective, she was not, by virtue of her condition, unable to engage in any employment for which she was suited by education, training and experience.

[221] It is important to understand the specific contours of this opinion.

[222] First, in essence, Dr. Angel found no conclusive evidence that Ms. Sanson had suffered, or at least that she continued to suffer, an mTBI. His second related conclusion was that therefore the limitations on Ms. Sanson’s ability to return to productive employment arose from the migraine headaches in particular. Dr. Angel’s third conclusion was that as of July of 2016, those headaches had been inadequately and unsuccessfully treated, and that if Ms. Sanson received the appropriate treatment for her headaches, it would be reasonable to expect her to return to productive form.

[223] It is important to understand that Dr. Angel’s conclusion that Ms. Sanson suffered no mTBI or no ongoing mTBI was premised in small part on the negative results of the neurological examination that he performed as part of his assessment of Ms. Sanson on July 21, 2016, but more particularly, on an interpretation of neurocognitive assessment reports that he reviewed in preparing his opinion.

[224] Specifically, Dr. Angel reviewed the neurocognitive psychological assessment and related psychological assessments undertaken and reported by both Dr. Cancelliere and Dr. Zakzanis. Dr. Zakzanis’ report, dated a week before Dr. Angel’s encounter with Ms. Sanson, had been arranged and obtained by Ms. Sanson’s insurer as part of the assessment of Ms. Sanson’s claim for benefits.

[225] Interestingly, albeit by different routes (or at least different tests), Dr. Cancelliere and Dr. Zakzanis arrived at similar conclusions. In each case, they concluded that from a cognitive perspective, Ms. Sanson is unable to engage in any employment for which she is suited by education, training or experience, albeit that from a purely psychological standpoint, Ms. Sanson does not suffer a complete inability to engage in such employment.

[226] In the conclusions of his written report, Dr. Angel noted that Ms. Sanson had suffered a “closed head injury after being struck by a car on her bicycle”. He went on to explain that “neurocognitive assessments have detailed objective evidence of neurocognitive changes attributable to mild head injury”, and that Ms. Sanson’s “ongoing neurological symptoms outside of the neurocognitive realm include chronic migraine without aura that is not being adequately treated”.

[227] In other words, and as more fully elucidated in Dr. Angel’s testimony, in his view Ms. Sanson does not exhibit sufficient injury to her brain, or loss of brain function, to render her unable to engage in any employment for which she is suited by education, training or experience. As of July of 2016, Dr. Angel felt that the migraines causing Ms. Sanson significant difficulties in returning to employment had not been fully treated, and, if amenable to treatment, there was room for improvement and return to fuller function.

[228] In cross-examination it became apparent that Dr. Angel’s views were driven in considerable part by his experience and assumptions about the expected duration of an mTBI. That is, Dr. Angel testified that mTBIs typically heal within about three months, and rarely symptoms may persist for longer, but, in Dr. Angel’s view, this only occurs when the symptoms are associated with other injuries. In response to the specific proposition put to him in cross-examination that sometimes mTBI symptoms can be persistent or permanent, Dr. Angel testified that he “had not experienced that”. He went further to suggest that the “literature confirms that [any symptoms] lasting more than a year is typically not because of the brain injury”.

[229] I pause here to note that this evidence, compared to the evidence of Dr. Ouchterlony, left me with something of a conundrum. That is, Dr. Ouchterlony’s evidence, supported by the Guideline, was that the literature shows that something in the range of 15-20% of mTBI patients do not recover from their brain injuries in the near-term. By contrast, Dr. Angel’s evidence was that the literature confirms that in virtually all cases, symptoms associated with an mTBI and not some other injury do not persist for more than about three months or at most a year.

[230] Despite these competing positions purporting, in each case, to be based on the brain injury literature, neither expert presented or was confronted with any such literature. The exception was Dr. Ouchterlony’s reference to the Guideline, which indeed appears to support her characterization of the literature over Dr. Angel’s. I was somewhat surprised that neither party took me to additional literature to round out my understanding of the debate. As such, I am left with the Guideline, which appears to be and was described by Dr. Ouchterlony as an authoritative source.

[231] It appears, on the basis of the evidence before me, that Dr. Angel’s view in this regard is somewhat at odds with the preponderance of evidence, despite his credentials. That is, Dr. Ouchterlony, Dr. Cancelliere, and Dr. Lay all clearly opined that Ms. Sanson suffers symptoms from a persisting mTBI.

(ii) Report of Dr. Zakzanis

[232] The opinion of Dr. Zakzanis, which Dr. Angel referenced in his own opinion, seems to inhabit both of the camps described above. With reference to Dr. Zakzanis’ neurocognitive assessment report of August 26, 2016, his first set of conclusions echoed those of Dr. Angel. Dr. Zakzanis says: “Collective research literature on mild traumatic brain injury illustrates small effect sizes on cognitive test measures (i.e., statistical evidence of test impairment) which suggests that the maximum prevalence of persistent cognitive deficit after three months post-injury is likely to be little to none”. As such, Dr. Zakzanis writes, “It is improbable that neurotraumatic sequelae is contributory here with respect to Ms. Sanson’s demonstrated cognitive impairment in keeping with this evidence based research”.

[233] However, Dr. Zakzanis goes on to say, “An initial lack of treatment intervention likely shaped a pattern of ill prepare (sic) for the cognitive demand and resultant challenges that Ms. Sanson faced when she returned to her pre-accident vocational activities as a result of the reduction in her information processing capacity and immediate post concussive symptoms. It is most probable the resulting stressors hereafter exacerbated her cognitive problems.” While it is admittedly not entirely clear, it seems to me that Dr. Zakzanis is saying, in this latter passage, that because Ms. Sanson’s mTBI was not treated in a timely or proper way, and because she exhibited reduced processing capacity and post-concussive symptoms, her cognitive impairments and problems persisted, contrary to what would have happened if the injury had been properly treated.

[234] Consistent with this interpretation, Dr. Zakzanis’ ultimate conclusion is stated as follows:

“In short, but for the subject motor vehicle accident of October 19, 2012, Ms. Sanson’s objectively demonstrated cognitive impairment would not have occurred.”

[235] As a result of an agreement reached between the parties, which included certain parametres concerning the use of his evidence, Dr. Zakzanis was not called to testify at trial. As such, the Court is left with his report and an effort to interpret the conclusions articulated in that report, as set out above.

[236] I should note, as is probably contemplated by Dr. Zakzanis’ reference to “objectively demonstrated cognitive impairment”, that each of the many neuropsychological tests to which Ms. Sanson was subjected included, as is typical in these assessments, testing and measuring the validity of Ms. Sanson’s responses to the questions and tasks posed in these tests. This is because, especially in the setting of litigation, test subjects may be incentivized to misrepresent or exaggerate their symptoms. In the case of Ms. Sanson, across the board in testing on behalf of each party, her responses were found to be valid and reliable.

(iii) Discussion of Dr. Angel’s Conclusions

[237] Coming back now to Dr. Angel, with respect to his first conclusion, and on the basis of the totality of the evidence, I am not persuaded on a balance of probabilities that Ms. Sanson’s mTBI and associated symptoms resolved in the few months following the Collision. To the contrary, again on a balance of probabilities, I find that Ms. Sanson’s mTBI and associated symptoms have persisted and become permanent.

[238] Given that conclusion, it follows that I do not accept Dr. Angel’s second conclusion that Ms. Sanson’s ongoing impairments stem not from the mTBI, but primarily from the migraines that Ms. Sanson has developed and continues to experience.

[239] In my view, it is most likely that those migraines are in fact related to Ms. Sanson’s underlying mTBI. Simply from a temporal standpoint, it is hard to accept otherwise. There is no evidence that Ms. Sanson suffered migraines or more than a typical number of other non-migraine headaches before the Collision. Yet almost immediately after the Collision, she began to suffer debilitating migraine headaches on a more or less continuous basis. It was not clear to me whether the defendants, in argument, went as far as to suggest that the onset of Ms. Sanson’s migraines was completely coincidental and unrelated to the Collision — but any such argument, in my view, would lack credibility.

[240] Dr. Angel’s third conclusion, that Ms. Sanson’s migraine headaches had been inadequately treated and there was room for improvement if proper treatment was instituted, has also proven to be inaccurate. In fairness to Dr. Angel, the events demonstrating the shortcomings of this third conclusion only occurred subsequent to his assessment.

[241] Since Dr. Angel’s assessment, Ms. Sanson has been referred to and treated by Dr. Lay for her headaches. As set out above, Dr. Angel himself regards Dr. Lay as a leading expert in the treatment of headaches and refers his most difficult cases to her.

[242] Dr. Angel was quick and fair to acknowledge in cross-examination that since Ms. Sanson is being treated for headaches by Dr. Lay, she is by definition receiving “state of the art” headache treatment. He conceded that if Dr. Lay’s admittedly optimal care and treatment of Ms. Sanson’s headaches has not yielded sufficient improvement to allow Ms. Sanson to return to work, then in effect, his third conclusion has been proven incorrect.

[243] Dr. Angel went a bit further in that line of cross-examination. He effectively conceded that he would defer to Dr. Lay in terms of her assessment and treatment of Ms. Sanson generally, including with respect to ongoing neurocognitive impairment, given Dr. Lay’s ongoing contact and treatment relationship with Ms. Sanson.

(iv) Dr. Jovanovski

[244] Mr. Paterson also called Dr. Jovanovski, a neuropsychologist, to testify.

[245] Dr. Jovanovski, who also saw Ms. Sanson at the behest of Mr. Paterson’s insurer, undertook an assessment of Ms. Sanson on November 21, 2017, which included having Ms. Sanson complete various psychological tests. Dr. Jovanovski documented her conclusions in a report dated January 4, 2018.

[246] It appears that the test results obtained by Dr. Jovanovski in late 2017 are highly consistent with those obtained by Dr. Cancelliere about three years earlier.

[247] However, Dr. Jovanovski’s conclusions about the meaning of those test results and Ms. Sanson’s neurocognitive impairments do vary from those of Dr. Cancelliere.

[248] With respect to the test results, while agreeing that in various categories Ms. Sanson’s results were “borderline” — in other words, between low average and impaired — and while acknowledging the possibility that Ms. Sanson’s average results in some categories may reflect a diminishment as compared to pre-Collision when Ms. Sanson was by all accounts high‑functioning, Dr. Jovanovski’s view was that it is likely that Ms. Sanson’s post-Collision test results are the same as what they would have been pre-Collision, and that any deficits reflected by “borderline” results were likely pre-existing.

[249] On the critical issue of the cause of Ms. Sanson’s ongoing neurocognitive deficits, Dr. Jovanovski’s view was that “at worst” Ms. Sanson sustained “an uncomplicated mild traumatic brain injury”. She, like Dr. Angel and Dr. Zakzanis, said that studies in the literature have “demonstrated that cognitive impairments may persist for up to three months, but the norm is full recovery with no long-term residual deficits”.

[250] Thus, Dr. Jovanovski continued, “it is most probable that Ms. Sanson has achieved a full recovery from any uncomplicated mTBI she may have sustained in terms of neurologically-based sequelae, given that over five years have elapsed since the date of the injury”. In terms of lower test scores in certain areas and Ms. Sanson’s self-reported cognitive impairments, Dr. Jovanovski said, “I would opine that the reduced scores obtained on some measures of verbal memory and executive functioning involving perseverative tendencies would be attributable to secondary, accident-related factors such as distraction from constant headaches, physical pain, nausea and vomiting associated with ‘migraine-like’ headaches, reduced energy/fatigue and mildly reduced mood”.

[251] Since in Dr. Jovanovski’s formulation Ms. Sanson’s “cognitive difficulties are not due to neurotraumatic sequalae but rather to secondary issues”, Dr. Jovanovski opined that “from a strictly neuropsychological perspective, Ms. Sanson has not suffered a permanent serious impairment of an important mental or psychological function”. Dr. Jovanovski again acknowledged, however, that she believed Ms. Sanson “experiences some cognitive inefficiency as a result of these secondary accident‑related issues and is thus unable to return to her previous levels of occupational, social and functional status at this time.”

[252] Dr. Jovanovski recommended a return to activities at reduced levels, and a return to practice as a lawyer in a setting that “does not involve strict deadlines/fast turnaround times”. She also recommended that Ms. Sanson “avoid committing to work that requires her presence on particular dates/times”. Dr. Jovanovski was fair to acknowledge, in describing these perhaps utopian job requirements, that she was “unfamiliar with all of the work-related options available”.

[253] Distilling Dr. Jovanovski’s opinion, although she believes that Ms. Sanson no longer suffers from neurotraumatic injuries from the Collision (i.e. does not have a persisting mTBI), she accepts that Ms. Sanson has suffered and continues to suffer from “secondary, accident-related” problems which in turn adversely impact her function.

[254] Like Dr. Angel, Dr. Jovanovski suggested that “treatment efforts should be focused on better management of her headaches, as this appears to be the most debilitating accident-related issue for Ms. Sanson”, and that Ms. Sanson’s prognosis for “full recovery” was largely dependent on “recovery in the physical domain, particularly with regard to her ongoing headaches[.]”

[255] It seems clear that Dr. Jovanovski concedes, appropriately in my view, that Ms. Sanson’s headaches are caused by the Collision. She also acknowledges that return to full function depends on more effective treatment of those headaches, but that in the meantime, Ms. Sanson should be able to function in a legal job without deadlines or fast turnaround times and without being required to show up on any particular dates or times.

[256] Like Dr. Angel, Dr. Jovanovski was prepared to defer, albeit somewhat more grudgingly, to Dr. Lay with respect to the ongoing assessment, care and treatment of Ms. Sanson, including but not limited to care and treatment of headaches. Dr. Jovanovski was also prepared to concede, as Dr. Angel did, that it is fair to assume that in Dr. Lay’s hands Ms. Sanson is receiving first-rate care for those headaches.

(G) Discussion of Causation Issues and Defendant’s Theory

[257] In addressing the questions of causation and damages, it is important to understand the defendant’s theory as to what underlies and motivates Ms. Sanson’s claim.

[258] As discussed, Ms. Sanson was unquestionably a leading lawyer in her chosen field of human rights law, and seemed to lead a rich and full life in the years before the Collision.

[259] What then would cause Ms. Sanson effectively to abandon her legal practice and curtail various other aspects of her life in favour of the potential proceeds of this claim?

[260] In answer to this question posed during argument, Mr. Paterson’s counsel, in her able submissions, suggested that by the period of 2009 to 2012, Ms. Sanson’s practice was proving to be difficult, challenging, and less and less lucrative. Ms. Sanson attempted to bring associates or administrative assistants into her business, but was unsuccessful in doing so cost-effectively. At the same time, Ms. Sanson’s sources of revenue were diminishing, owing to the losses of key clients.

[261] As such, the defendant’s theory goes, Ms. Sanson had to work harder than ever to attract business and to make ends meet in her practice. There is also evidence that Ms. Sanson was experiencing stress in her personal life, as Ms. Sanson and Mr. Hart had chosen to live apart during this timeframe.

[262] Against this backdrop, Mr. Paterson alleges that once the Collision occurred, Ms. Sanson soon began to see it as a fortuitous way out of her difficult situation, and as a way of maintaining her lifestyle without needing to spend the time and energy required to carry on her demanding and economically challenging practice.

[263] Mr. Paterson argues that in the years following the Collision, pursuing her insurance claims and ultimately the action before me became Ms. Sanson’s full-time job.

[264] My difficulty with this theory is that it is at odds with the medical evidence, including for the most part the medical evidence presented by the defendant himself.

[265] The results of the neurocognitive tests, led by both the plaintiff and the defendant in evidence, were quite similar. The tests showed cognitive deficits in various domains, including attention and concentration, processing speed, learning and memory, and executive function, as well as evidence of function below Ms. Sanson’s presumed or estimated premorbid intellectual and cognitive capabilities.

[266] Across the board, the neurocognitive testing also showed no evidence to suggest that Ms. Sanson was fabricating or exaggerating her limitations. Standard built-in validity measures embedded in the testing regimens confirmed that Ms. Sanson’s efforts and responses were genuine.

[267] All three neuropsychologists who assessed Ms. Sanson agree that she exhibits persisting neurocognitive symptoms that interfere with her vocational function and daily activities.

[268] Significantly for the purposes of the causation analysis, all three of the neuropsychologists ultimately attribute Ms. Sanson’s compromised function to the Collision, albeit by different routes.

[269] Dr. Cancilliere felt that Ms. Sanson likely suffered an mTBI as a result of the Collision, the effects of which have continued to cause deficits in Ms. Sanson’s cognitive function (as well as other impacts).

[270] Dr. Zakzanis believes Ms. Sanson likely suffered an mTBI, and Dr. Jovanovski believes she may have suffered an mTBI. Both Dr. Zakzanis and Dr. Jovanovski opined that while the mTBI, if suffered, has likely resolved, secondary consequences of the Collision, in particular headaches, explain Ms. Sanson’s ongoing cognitive deficits.

[271] In my view, absent some other intervening cause, which is not alleged let alone evident, “but for” causation is established where the expert evidence confirms that the injuries in issue arose as a consequence of the Collision, whether directly (as opined by Dr. Cancilliere) or indirectly (as opined by Dr. Zakzanis and Dr. Jovanovski). There is no suggestion in the medical evidence that Ms. Sanson’s symptoms and limitations are not genuine; to the contrary, the neuropsychological testing objectively confirms their validity. Although there is debate about the extent to which such symptoms genuinely persist — discussed below, and largely based on non‑medical evidence — there is no debate about whether Ms. Sanson suffered injuries as a result of the Collision, which have been verified on neuropsychological tests administered by each side over the course of a number of years.

[272] The neuropsychological evidence is consistent with the expert medical evidence.

[273] Dr. Ouchterlony in particular, who saw Ms. Sanson on a number of occasions over the course of a few years, has unequivocally opined that Ms. Sanson suffered an mTBI from which she has continued to suffer ongoing symptoms, like a small but substantial percentage of patients.

[274] Dr. McNally and Dr. Lay offered similar views.

[275] The defendant contested Dr. Ouchterlony’s qualifications and independence, an argument which I have rejected for the reasons set out above.

[276] At the same time, the only medical opinion proffered by the defendant was the testimony of Dr. Angel.

[277] While Dr. Angel is certainly a well-qualified neurologist, and there was no contest about his ability to provide relevant expert testimony in this trial, Dr. Angel only saw Ms. Sanson for about an hour on a single occasion. As such, he quite appropriately acknowledged that he would defer in his assessment of Ms. Sanson to Dr. Lay, a fellow neurologist for whom he clearly had considerable respect and who saw Ms. Sanson on multiple occasions over multiple years.

[278] Dr. Angel’s deference to Dr. Lay was most acute in terms of Dr. Lay’s assessment and treatment of Ms. Sanson’s ongoing headaches. Yet Dr. Angel also fairly, if somewhat categorically, deferred to Dr. Lay more broadly relative to matters of diagnosis, prognosis and treatment given Dr. Lay’s considerably greater exposure to Ms. Sanson.

[279] Moreover, Dr. Angel agreed that Ms. Sanson’s chronic headaches and related cognitive symptoms would themselves interfere with Ms. Sanson’s ability to work as a lawyer. While his opinion in chief reflected a sense that Ms. Sanson’s headaches could be more effectively treated, in cross-examination, he fairly acknowledged the high regard in which he holds Dr. Lay, the fact that he himself refers his “difficult” headache cases to Dr. Lay, and that, in being treated on an ongoing basis by Dr. Lay, Ms. Sanson is receiving “state of the art” care.

[280] In terms of the causation analysis, then, Dr. Angel’s evidence does not particularly assist the defendant. Like Dr. Zakzanis and Dr. Jovanovski, Dr. Angel’s doubts that Ms. Sanson continues to suffer the effects of an mTBI are coupled with an acknowledgement that Ms. Sanson nonetheless continues to suffer debilitating migraine headaches and related symptoms as secondary consequences of the Collision which, despite state of the art care, continue to prevent Ms. Sanson from returning to work or other activities.

[281] The defendant’s position that Ms. Sanson is capable of more than she alleges is thus not supported by substantive medical or neuropsychological evidence.

[282] Rather, it is based largely on conduct which the defendant claims collectively undermines Ms. Sanson’s claims about what she can and cannot do.

[283] As discussed to some extent above, the conduct on which Mr. Paterson relies includes:

(a) Ms. Sanson’s ability to work long days and docket many hours on various days, in particular during the initial weeks and months following the Collision;

(b) Ms. Sanson’s ability to argue a case in the Court of Appeal for Ontario within a few weeks after the Collision;

(c) Ms. Sanson’s ability to deliver presentations at and in some cases to host large continuing legal education events for the human rights bar in the months and years following the Collision;

(d) Ms. Sanson’s ability, captured on surveillance videos, to attend performances and/or social gatherings in the years following the Collision;

(e) Ms. Sanson’s continued work and regular sessions with her personal trainer, and her regular attendances for massage and chiropractic treatments before and after the Collision; and

(f) Ms. Sanson’s continued travel in the weeks, months and years following the Collision.

[284] This list is not exhaustive, but is reflective of the type of evidence on which the defendant relies. In essence, the defendant submits that Ms. Sanson’s stated and observed activities belie the limitations she claims to suffer from.

[285] In fact, the defendant goes so far as to say in his submissions, that “there is no objective medical evidence of mild traumatic brain injury”.

[286] The upshot of the defendant’s submission is that given the “invisible” nature of alleged head injuries, for purposes of diagnosis and ongoing treatment, Ms. Sanson’s health care providers necessarily rely on Ms. Sanson’s own subjective reports of her symptoms and triggers for symptoms.

[287] He argues that the objective evidence, found in the array of examples listed above and in other similar sources, shows that neither Ms. Sanson’s alleged symptoms nor the activities she claims are triggers are actually borne out in fact.

[288] It is true that there is evidence in the record which appears to be at odds with some of Ms. Sanson’s claims.

[289] For example, despite Ms. Sanson’s testimony that from early on after the Collision she could not work at the keyboard for longer than two hours without developing symptoms, including headaches and cognitive fatigue, there are many instances in which, based on billing records for example, Ms. Sanson worked for considerably longer than two hours at the computer.

[290] Similarly, whereas Ms. Sanson says that exertion tends to be a trigger for symptoms, the record shows that she has continued to work with a personal trainer on a very regular basis, presumably exerting herself in that setting.

[291] Likewise, Ms. Sanson complains that she cannot enjoy attending public events, dinners and performances as she regularly did before the Collision, and that such outings now tend to cause Ms. Sanson significant difficulties by virtue of overwhelming her sensory capacity. Yet, in the record and in the surveillance footage in particular, Ms. Sanson is seen to be attending such events without evident problems.

[292] These are but a handful of examples; the record is replete with many such items that the defendant argues undercut Ms. Sanson’s subjective claims.

[293] The defendant has done an extremely diligent job of populating the record with examples of conduct on Ms. Sanson’s part that are seemingly at odds with constituent aspects of her claim, and has argued, compellingly, that this evidence renders Ms. Sanson’s claims suspect or, in some instances, all the way to unbelievable.

(H) Important Aspects of Ms. Sanson’s Position on Causation

[294] Notwithstanding the force of those submissions, I continue to be struck by three important countervailing considerations.

[295] First, Ms. Sanson maintains that she has never alleged that any of the activities the defendant points to are impossible for her. Rather, they are activities that, while once accomplished by Ms. Sanson within tight timeframes and/or without any physical consequences, now require considerable preparation, are not done as well as they used to be, and invariably are taxing to the point of causing often severe symptoms. Ms. Sanson also notes in this regard that many people in her orbit, including numerous treatment providers, have consistently encouraged her to try work, social, and recreational activities that she formerly enjoyed, with a view to recovering at least some semblance of her pre-Collision life (a fact that some of the treatment providers who testified confirmed as true).

[296] Second, as discussed extensively above, there is in fact medical evidence, including objective neuro-cognitive data, that in fact provides independent support for Ms. Sanson’s claimed limitations. As also discussed above, that evidence is effectively uncontroverted; the defendant has offered little or no compelling evidence to refute it.

[297] Third, I am simply not persuaded by the defendant’s theory as to Ms. Sanson’s deliberate effort to “check out” of her practice and use the Collision as an off-ramp from her allegedly difficult, demanding and unprofitable practice.

[298] Ms. Sanson’s evidence, supported and confirmed by a host of witnesses — many of whom are officers of this court — was that Ms. Sanson’s very identity pre-Collision was closely linked to her career and to the stature she had achieved as a leading practitioner in her chosen field.

[299] It is clear from the evidence that Ms. Sanson devoted long hours and considerable effort to not only building her practice but to contributing to the field of human rights law as a whole. She was rightly regarded as one of the “go-to” experts in that area, and she thrived on the challenges and human dynamics embodied in that practice.

[300] She socialized extensively with fellow practitioners in the human rights bar, was active in groups, associations, and continuing education platforms in that space and, in short, devoted considerable time and energy to that pursuit.

[301] I do not accept the proposition that, despite the various markers of Ms. Sanson’s success, stature, and apparent enjoyment of that career, she chose, when the “opportunity” presented itself in the form of the Collision, to toss all of that aside in favour of the chance to receive compensation by way of insurance benefits and this claim.

[302] I found Ms. Sanson’s anguish at the loss of her career and at the new restrictions on many other areas of her life to be genuine and heartfelt. While she was at times overly preoccupied with her symptoms and their impact on her, as noted above, this is understandable for someone in her situation. I did not at any point get the sense that Ms. Sanson was fabricating her complaints.

Conclusions on Causation

[303] In short, I found Ms. Sanson to be a credible witness, whose complaints are confirmed by essentially unchallenged medical evidence. I believe her.

[304] As such, and notwithstanding the formidable effort of the defendant in putting together a comprehensive record to challenge Ms. Sanson’s claims, I find that Ms. Sanson has demonstrated, on a balance of probabilities, that she suffered and continues to suffer injuries and symptoms caused by the Collision.

[305] As discussed above, in my view it does not matter in terms of the causation analysis whether Ms. Sanson’s deficits are caused by a persisting mTBI incurred in the Collision, or by “secondary” consequences of the Collision (including in particular chronic migraine headaches). However, I find that Ms. Sanson is more likely than not in the minority of patients — a cohort of approximately 15-20% — who continue to suffer from mTBIs on an ongoing basis, beyond the typical initial three-month period. Ms. Sanson’s injuries have persisted to the point that they should now be regarded as permanent.

Damages

[306] Having made that determination, I now turn to damages.

[307] Ms. Sanson claims damages in four categories:

(a) Non-pecuniary general damages for pain and suffering and loss of enjoyment of life;

(b) Past and future loss of income;

(c) Past and future out-of-pocket expenses; and,

(d) Future care costs.

[308] I will address those claims in turn.

(A) Non-Pecuniary (General) Damages

(i) Ms. Sanson’s Position on General Damages

[309] Ms. Sanson claims general damages in the amount of $275,000.

[310] Ms. Sanson alleges that as a result of the Collision she has suffered a profound loss of amenities and enjoyment of life.

[311] She says that she has suffered an impact on her social and recreational activities, and most significantly on her vocational abilities and activities.

[312] After referencing Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, one in a trilogy of seminal cases on non-pecuniary general damages awards, in her submissions Ms. Sanson relied in particular on the decision of Justice Smith, of this Court, in Higashi v. Chiarot (2021 ONSC 8201).

[313] Ms. Sanson cites Higashi primarily because of its factual similarity to her own circumstances. In addition, in that case Justice Smith undertook a helpful review of a number of decisions featuring similarities to the case before him (and therefore, Ms. Sanson submits, to the case before me).

[314] Justice Smith commenced his review of general damages with a helpful reminder of guiding principles and objectives, as follows (at para. 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.”

[315] In Higashi, Justice Smith dealt with a motor vehicle accident in which the plaintiff, Ms. Higashi, was a passenger in a car that was “T-boned”.

[316] Prior to the accident the plaintiff had been self-employed. Following the accident, she returned to work for a number of years but ultimately had to close down her business because of her injuries.

[317] Those injuries included an mTBI, post-concussion syndrome, post-traumatic stress disorder, adjustment disorder, headaches and chronic pain with fibromyalgia. Justice Smith acknowledged that injuries in these categories can be subjective, but found that the plaintiff was consistent, credible and reliable in her evidence.

[318] Justice Smith reviewed a number of authorities spanning from 2014 to 2018 in which the plaintiffs had suffered, among other problems, mTBIs with associated symptoms including, in most cases, headaches and cognitive difficulties. In those cases, the general damages awards ranged from $100,000 to $200,000.

[319] In assessing Ms. Higashi’s general damages at $225,000, at para. 134, Justice Smith noted that:

“At the time of the accident, [Ms. Higashi] 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.”

[320] Ms. Sanson fairly points out that the consequences, symptoms and impairments Ms. Higashi experienced overlap considerably with her own claims.

[321] In addition, Ms. Sanson points out that in Higashi, the plaintiff was able to return to work more successfully and for a longer time than what Ms. Sanson was able to manage, albeit that Ms. Higashi eventually had to shut down her business. Ms. Higashi was also more able than Ms. Sanson to return to social and recreational activities.

[322] Ms. Sanson also argues that there was a qualitative difference between the type and level of work that Ms. Sanson performed, and her passion for and devotion to that work, as compared to Ms. Higashi.

[323] Justice Smith noted that Ms. Higashi had “converted a hobby into a business”, “created a brand that was recognized by her customers”, and “was proud of what she had accomplished”. That said, Ms. Sanson argues that nothing in the description of Ms. Higashi’s business activities is “commensurate with the high degree of passion and dedication that Ms. Sanson had for her human rights work… and the extraordinary recognition that she had received in her career for this work.” She not only developed a recognized brand, she fought for her clients and their fundamental human rights. She did not “convert a hobby into a business”; her passion for and devotion to her human rights work imbued all aspects of her life, encompassing her career, her pro bono work, her circle of friends and her teaching, mentoring and legislative initiatives.

[324] Ms. Sanson also notes the Supreme Court of Canada’s recognition of the nature and importance of work in the context of a general damages award. In Wallace v. United Grain Growers, [1997] S.C.R. 701, at para. 93, the Court held:

“Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.”

[325] Ms. Sanson argues that her circumstances justify an award of general damages higher than that awarded in Higashi, and accordingly seeks an award of $275,000.

(ii) Mr. Paterson’s Position on General Damages

[326] Mr. Paterson argues that, if the plaintiff’s claim is not barred by the “threshold” in O. Reg. 461/96 (an issue that I discuss further below), non‑pecuniary general damages should be in the range of “nil to $50,000 (gross)”.

[327] Beyond that brief statement, the defendant provides no additional submissions, nor citations of any relevant case law in that regard. I presume that is because Mr. Paterson’s primary position is that Ms. Sanson’s claim fails to meet the threshold, in which case any precedents where general damages were awarded might be irrelevant.

[328] Whatever the reason, that leaves me with the plaintiff’s authorities. In my view, Justice Smith’s decision in Higashi (and the authorities referenced therein) establishes a reasonable range against which to measure the general damages in this case. I also agree with the plaintiff that a side-by-side comparison suggests that Ms. Sanson’s general damages assessment ought to be higher than that for Ms. Higashi. Ms. Sanson has suffered very similar injuries and impairments to those endured by Ms. Higashi, yet was not able to return to work to the same extent as Ms. Higashi. I also accept that the loss of her ability to work had a higher impact in Ms. Sanson’s case, given the extent to which Ms. Sanson’s identity was bound up in her career.

Conclusion on General Damages

[329] For these reasons, while in my view the $275,000 sought by Ms. Sanson is slightly beyond what the cases support, I award Ms. Sanson $250,000 in non-pecuniary general damages.

[330] I note that after coming to that assessment, counsel provided me with a recent decision of Justice Lemon, in Graul v. Kansal (2022 ONSC 1958) released after the conclusion of the trial before me. In that case, Justice Lemon awarded $225,000 in non-pecuniary general damages. In comparing the facts before His Honour to those before me, in my view the slightly higher award to Ms. Sanson than the award in Graul is apt, and supported by the evidence I heard.

(B) Past and Future Loss of Income

[331] Both parties led expert evidence concerning Ms. Sanson’s past and future loss of income claim.

[332] As is typical in cases involving experts’ competing calculations of loss of income, the differences between the parties’ positions on this issue are largely driven by the experts’ respective assumptions about the various parametres and elements of these calculations.

[333] There is a fair bit of common ground between the parties about what should be taken into account in the calculation of past and future income.

[334] First, the parties agree that a determination should be made concerning the income to be assumed for purposes of the calculation.

[335] It is also agreed that pursuant to the Insurance Act, R.S.O. 1990, c. I.8, past loss is calculated starting seven days following the date of the accident in issue, at the rate of 70% of gross income lost during that period, less deductible collateral benefits.

[336] In the case of future losses, such losses are calculated at 100% of gross income from the date of trial to the retirement date, less actual earnings or post-Collision earning capacity, and subject to a present value discount. In the case of future earnings, no reduction is imposed by the Insurance Act, and no collateral benefits are to be deducted.

(i) Pre-Collision Earning Capacity

[337] The differences between the experts first arise relative to the determination of Ms. Sanson’s pre-Collision earning capacity.

[338] Mr. Soriano, the defendant’s expert, took an average of Ms. Sanson’s earnings during the years 2010-2012 in one scenario, and an average of her earnings during the years 2009-2012 in a second scenario. He used the average gross income amounts calculated in each case as the goalposts for low and high average earnings.

[339] Using 2010-2012 earnings, Mr. Soriano estimated that Ms. Sanson’s low pre-Collision earning capacity was $132,362 (in 2020 dollars).

[340] Using 2009-2012 earnings, Mr. Soriano estimated that her high pre-Collision earning capacity was $155,958 (also in 2020 dollars).

[341] The difference between the two approaches reflects the fact that 2009 was a relatively high income year for Ms. Sanson, whereas in 2010-2011 she lost her key investigation client, OPG, and to some extent experienced additional losses from clients she had off‑loaded from her practice in anticipation of taking the job as Toronto’s Integrity Commissioner (which did not ultimately happen).

[342] Mr. Milburn, the plaintiff’s expert, felt that Mr. Soriano’s approach to determining pre‑Collision earning capacity was flawed in a number of respects.

[343] He testified that inasmuch as 2010 and 2011 were “down years” owing to the loss of clients during that period, taking them into account in determining average income only makes sense if one predicts that Ms. Sanson would have experienced two “down years” out of every four years going forward.

[344] To illustrate his view as to the inappropriateness of that approach, Mr. Milburn gives the example of attempting to project the future earnings of a restaurant business following the pandemic. Using for comparison purposes a four-year period (like that used by Mr. Soriano in his higher income scenario), an assumption is made that in years one and four the restaurant operates at full capacity and makes good earnings. In years two and three, the restaurant is closed because of the pandemic. In this scenario, it would be inappropriate to simply take an average of the four years to generate the earning capacity unless one assumes that a pandemic would shut the restaurant down two out of each four years — or 50% of the time — going forward.

[345] In a similar vein, it is not likely that Ms. Sanson would lose at least one major client in two out of every three or four years going forward. As such, in Mr. Milburn’s opinion, it is not apt to simply take an average of earnings from 2010-2012, or even 2009-2012, as Mr. Soriano does.

[346] Second, Mr. Milburn assumed (consistent with the testimony of Ms. Sanson and Mr. Hart) that at the time of the Collision, Ms. Sanson was in the process of transitioning into increasing amounts of investigation and other “third party neutral” work and reducing her individual representation and litigation work. The latter is the area in which Ms. Sanson had done the bulk of her fairly extensive pro bono work over the years.

[347] As such, assuming that transition would continue, Mr. Milburn opined that simply taking an average of Ms. Sanson’s pre-Collision earnings, which did not yet reflect the results of that transition, would understate Ms. Sanson’s likely earnings in the post-Collision timeframe (in the “but for” hypothetical world in which the Collision had not happened).

[348] Third, I heard evidence that in the period following the Collision, a confluence of factors led to explosive growth in the human rights field, in particular in workplace and other investigations. These factors included social movements such as #MeToo and Black Lives Matter, as well as legislative changes to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, that made certain workplace harassment and discrimination investigations mandatory and expanded the definition of harassment to expressly include sexual harassment.

[349] After undertaking an assessment of various proxies and comparators to estimate the effect of these factors on the practice of a workplace investigator, Mr. Milburn opined that it would be reasonable to assume that Ms. Sanson would have completed more work and at a higher billing rate in the post-Collision timeframe.

[350] Taking into account these various additional considerations, Mr. Milburn proposed a range of $147,500 (at the low end) to $248,500 (at the high end), arguing this was a more reasonable reflection of Ms. Sanson’s pre-Collision earning capacity.

[351] In my view, for the reasons articulated by Mr. Milburn, simply using an average gross income from the years prior to the Collision, as Mr. Soriano does, underestimates Ms. Sanson’s earning capacity in the post-Collision “but for” scenario.

[352] The evidence shows that in 2012, Ms. Sanson’s earnings were trending upward, demonstrating she was making progress towards replacing the income from clients lost during the preceding period.

[353] This trend, Ms. Sanson’s plan to transition more of her practice to investigations work, the general upswing in human rights legal work, and the various points of comparative reference identified by Mr. Milburn all lead me to accept that simply taking an average from the pre‑Collision period understates Ms. Sanson’s likely earnings.

[354] On the other hand, I think it is likely, given who she was and her demonstrated track record for taking on cases if they were sufficiently meritorious and important, that Ms. Sanson would have continued to devote a substantial component of her practice to pro bono work.

[355] Taking into account all of these factors, I find that a reasonable assessment of Ms. Sanson’s pre‑Collision earning capacity is $210,000 per year as of the date of the Collision, adjusted for inflation for the years from 2013 to the date of trial at the rate of 2.0% per annum. This figure is just above the mid-point of Mr. Milburn’s range. While such determinations are by their nature imprecise, in my view this is a fair estimate for Ms. Sanson’s likely pre-Collision capacity.

[356] As agreed between the parties and mandated by the Insurance Act, the calculation of Ms. Sanson’s past income loss should commence seven days following the Collision, and should comprise 70% of her earnings, using the pre-Collision earning capacity amount I have determined, adjusted for inflation up to the date of trial.

[357] It remains to determine appropriate amounts to deduct from this amount to account for Ms. Sanson’s post-Collision earning capacity and properly deductible collateral benefits.

(ii) Post-Collision Earning Capacity

[358] Dealing first with Ms. Sanson’s post-Collision earning capacity, again there is some disagreement between the experts on this front.

[359] The experts agree that up to June 1, 2015, Ms. Sanson’s post-Collision earning capacity is based on what she actually earned in the period from the Collision to that date. There are minor differences between them relative to this period, resulting from slight timing differences and their differing treatment of a modest bad debt expense in 2014. The resulting difference in calculations is miniscule and immaterial.

[360] The larger difference between them relates to their respective treatment of the period after June 1, 2015, and their divergent assumptions concerning Ms. Sanson’s capacity in that timeframe.

[361] The evidence shows that after June of 2015, Ms. Sanson, with the concurrence of Dr. Ouchterlony, took a leave from her halting attempts at returning to practice. Thereafter, Ms. Sanson never returned to income-earning activity.

[362] At the same time, in the hope that she may yet be able to resume some form of practice, Ms. Sanson continued to incur certain expenses to keep her practice notionally afloat, and thus realized losses in those years.

[363] The first difference between the experts in the post-June 2015 period is that Mr. Soriano assumed that Ms. Sanson had 50% income-earning capacity during that time, whereas Mr. Milburn assumed that Ms. Sanson was unable to work from June 1, 2015 onward.

[364] The second difference is that Mr. Milburn felt that it was reasonable to take the losses in the post-2015 period into account. In his view, these losses reflected an attempt at mitigation by keeping Ms. Sanson’s office and practice in existence and thereby maintaining her presence in the human rights field. Mr. Soriano, on the other hand, does not take those expenses/losses into account.

[365] Dealing with these two issues in turn, in my view the medical evidence, on balance, confirms that it was not realistic to assume any capacity for Ms. Sanson to earn any income as a human rights lawyer after June of 2015. A substantial majority of the physicians and psychologists involved in this case agreed that it was not realistic, by 2015, for Ms. Sanson to return to any form of her legal practice, even on a part‑time basis.

[366] The one outlier in this regard was Dr. Jovanovski, who opined that Ms. Sanson might have been able to return to some form of part-time legal work, so long as there were no strict deadlines, no fast turnaround times, and no requirements to commit to being available at any particular times. In cross-examination, Dr. Jovanovski acknowledged that she could not identify any such work available to someone with Ms. Sanson’s skills, qualifications and experience, and also readily acknowledged that this topic was outside of her area of expertise.

[367] As such, there is no substantive evidence to support the existence of a realistic position for Ms. Sanson after June of 2015, and I find she did not have the capacity to earn income after that date.

(iii) Post-Collision Expenditures

[368] On the other side of the coin, I also find, in part for the same reasons, that it was not appropriate for Ms. Sanson to continue to incur some of the expenses that she did with a view to a possible continuation of her practice beyond that date.

[369] More specifically, I accept that it was reasonable for Ms. Sanson to incur the cost of maintaining her licence to practice law, both in terms of paying her annual dues and paying the costs of attending mandatory community legal education programs. It is fair to allow for the continuing possibility, in Ms. Sanson’s mind, that she may yet have been able to make some future use of her legal credentials. While it is hard to imagine what work that might have been, I can understand Ms. Sanson’s effort to keep her credentials in place unless and until she had ruled out any return, on any basis, to legal work.

[370] On the other hand, expenses associated with keeping her physical office open and promoting her notionally ongoing practice were, in my opinion, not realistic or justifiable. While I understand Ms. Sanson’s faint hope that she might someday return to some form of legal work, it seems apparent that by June of 2015 it had become highly unlikely that Ms. Sanson’s firm and practice would ever be resurrected.

[371] In this aspect of the damages calculation, therefore, I would take into account Ms. Sanson’s expenditures related to keeping her licence in good standing, but not allow for expenses related to keeping her practice and office afloat. I will return, below, to discuss the implications of these findings relative to a benefit claim for office expenses.

(iv) Retirement Age

[372] The next important variable on which the experts differ is the question of the appropriate retirement age to assume for Ms. Sanson.

[373] On this topic, Ms. Sanson’s evidence, supported by the testimony of Mr. Hart, was that her plan was to work until she was at least 70, with the possibility or likelihood that she would retire at that age inasmuch as Mr. Hart would at that point reach the age of 65. Based on this evidence, Mr. Milburn has assumed the retirement age of 70.

[374] Mr. Soriano, on the other hand, used Statistics Canada retirement age data to create two scenarios, assuming retirement at age 63 and age 65, respectively.

[375] Mr. Soriano fairly conceded that he was not asked to and did not take into account any specific considerations about Ms. Sanson, but rather simply took the Statistics Canada averages as his starting points. In that regard, though, Mr. Soriano also conceded that he had not used Statistics Canada data for the average retirement age of self-employed women, being 66.1, and on that basis, Mr. Soriano agreed in cross-examination, “You could add another year to my 65.”

[376] Accordingly I think that the real delta between the experts in terms of retirement age is from age 66 (according to Mr. Soriano) to age 70 (according to Mr. Milburn).

[377] In my opinion, determining the appropriate retirement age depends on a combination of subjective and objective factors. The question is, when would a reasonable person in the circumstances of the plaintiff retire? On the purely objective end of the spectrum is the Statistics Canada information which, in this case, would yield a retirement age of 66.1, building in the consideration that Ms. Sanson was a self-employed woman. On the purely subjective end of the spectrum is Ms. Sanson’s assertion that she did not plan to retire until age 70 or later.

[378] To assess the reasonableness of Ms. Sanson’s subjective assertion, one starts with the purely objective Statistics Canada data showing that self-employed women like Ms. Sanson tend to retire at age 66.1 (on average). This is a significant objective starting point, against which the Court should consider and evaluate specific factors in Ms. Sanson’s circumstances that may provide a basis to depart from the statistical norm.

[379] In this case, certain information about Ms. Sanson’s particular circumstances move her along the spectrum to a higher retirement age than 66.

[380] First, by all accounts, including her own, Ms. Sanson loved her practice, and took tremendous pride in her accomplishments. Mr. Soriano agreed in cross-examination that Ms. Sanson’s passion for her work would be a logical factor to consider.

[381] Mr. Milburn testified that his research showed that lawyers in general tend to work longer than people in other professions, and that litigation lawyers in particular tend to practice to a later age. This data was not put before me and was only presented through Mr. Milburn’s second-hand testimony, so although these observations ring true to me, I cannot put much weight on them.

[382] The fact that Ms. Sanson planned to retire when she turned 70 in part because Mr. Hart was five years younger than her and did not plan to retire until the age of 65, while of course based on Ms. Sanson and Mr. Hart’s subjective reports, does have some common-sense appeal.

[383] Ms. Sanson also testified that, particularly because she had had “down years” in her practice in 2009 and 2010 and because she and Mr. Hart had for a number of years maintained separate residences, she needed to work for a number of additional years to save for retirement. Again, this supports the notion that Ms. Sanson would retire later than average.

[384] In all of the circumstances, I find that Ms. Sanson would retire at age 69, and the period from the date of trial until Ms. Sanson’s 69th birthday on March 5, 2026 should be used to calculate her future loss of income. In striking the balance between the subjective and objective factors, I find that Ms. Sanson’s likely retirement age, while taking into account the objective Statistics Canada information, features sufficient factors personal to her circumstances that move her likely retirement agent along the spectrum closer to what she subjectively claims.

(v) Collateral Benefits

[385] The parties agree that collateral benefits totalling $372,714 should be deducted from the award for past loss of income.

[386] There is a dispute, however, concerning the deductibility of business expense benefits, totalling $60,000.

[387] In the leading case of IBM Canada Limited v. Waterman, 2013 SCC 70, [2013] 3 S.C.R. 985, the Supreme Court of Canada defined a collateral benefit as follows, at para. 20:

“In general terms, there is a collateral benefit when a source other than the damages payable by the defendant ameliorates the loss suffered by the plaintiff as a result of the defendant’s breach of legal duty.”

[388] Whereas many collateral benefits are treated as deductible from damages awards, there is a well-established strain of case law establishing the so-called “private insurance exception”. In Waterman, at para. 41, the Court discussed this exception, noting that it was not without controversy:

“A second and more controversial exception relates to payments from the plaintiff’s private insurance. The core of the exception is well-established: benefits received by a plaintiff through private insurance are not deductible from damage awards. However, both the precise scope and the rationale of the exception have been the subject of judicial and scholarly debate.”

[389] That debate played out most prominently in the Supreme Court’s earlier decision in Cunningham v. Wheeler, 1994 CanLII 120 (SCC), [1994] 1 S.C.R. 359. Justice Cory wrote for the majority and Justice McLachlin (as she then was) wrote in dissent. By way of high-level summary, while Justice McLachlin emphasized the importance of the rule against double recovery, Justice Cory felt that considerations of fairness and the need to reward those with the foresight to insure themselves for disability benefits outweighed the well‑established rule against double recovery in those circumstances.

[390] In Waterman, the Court built on the precedent in Cunningham and offered certain guidelines concerning the potential deductibility of private insurance benefits, at para. 76:

“ (a) There is no single marker to sort which benefits fall within the private insurance exemption.

(b) One widely accepted factor relates to the nature and purpose of the benefit. The more closely the benefit is, in nature and purpose, an indemnity against the type of loss caused by the defendant’s breach, the stronger the case for deduction. The converse is also true.

(c) Whether the plaintiff has contributed to the benefit remains a relevant consideration, although the basis for this is debatable.

(d) In general, a benefit will not be deducted if it is not an indemnity for the loss caused by the breach and the plaintiff has contributed in order to obtain entitlement to it.

(e) There is room in the analysis of the deduction issue for broader policy considerations such as the desirability of equal treatment of those in similar situations, the possibility of providing incentives for socially desirable conduct, and the need for clear rules that are easy to apply.”

(Emphasis in original.)

[391] Ms. Sanson paid premiums to Manulife for two insurance plans under a group policy sponsored by the Canadian Bar Insurance Association. The first plan is a disability income benefit plan, and the second is the business expense insurance benefit plan in issue here.

[392] Ms. Sanson acknowledges the deductibility of the disability income benefits as an “income continuation plan” under the Insurance Act.

[393] Ms. Sanson argues, however, that the business expense insurance does not fall under any of the categories enumerated under s. 267.8 of the Insurance Act, and the benefits pursuant to that policy are not paid pursuant to any entitlement to statutory accident benefits, under an income continuation plan, or under a sick leave plan. Rather, the business expense disability benefit provides for reimbursement of eligible business expenses. To receive the benefit, Ms. Sanson had to incur the expenses and submit them to Manulife for reimbursement, up to a maximum of $2,500 per month. The benefits vary month to month depending on actual expenditures and are not calculated based on Ms. Sanson’s pre‑Collision income. In short, Ms. Sanson argues, the business expense disability benefit is not an income continuation plan.

[394] Ms. Sanson in fact received business expense benefits from Manulife under the policy until May 24, 2018, when the $60,000 total reimbursement limit was reached.

[395] Ms. Sanson relies on this Court’s recent decision in Finnemore v. Hyde et al (2021 ONSC 19), in which Justice Nicholson, in concluding that certain pension benefits were not deductible, held that collateral benefits that cannot be characterized as “income continuation plans” remain exempt from being deducted from income loss and loss of earning capacity claims.

[396] I agree that the business expense benefits cannot be characterized as in the nature of an income continuation plan. I therefore find that the $60,000 Ms. Sanson received from Manulife for this purpose is not deductible.

(C) Out-of-Pocket Expenditures

[397] Ms. Sanson claims out‑of‑pocket expenditures for a number of categories and items. In each case, these claims are contested by the defendant. Below, I set out a brief description of each item claimed, a brief summary of each side’s position, and my conclusions.

(a) Assistive Devices – Ms. Sanson claims $701.38 for assistive devices. She testified that she derives considerable benefit from using noise-cancelling headphones and earbuds. She is particularly sensitive to noise since the Collision, and her Speech Language Pathologist, Ms. Shumway, recommended that she use noise-cancelling devices. In addition to these devices, Ms. Sanson purchased a “Muse Brain Sensing Band”, recommended by Dr. Lay as part of the treatment for migraine headaches. The defendant takes issue with the noise-cancelling devices, noting that Ms. Sanson could have requested a prescription from a medical doctor for such devices and did not do so. The defendant says there is no evidence that the noise‑cancelling devices are medically necessary. I agree with this submission, and allow the remaining claim for the Muse Brain Sensing Band recommended by Dr. Lay in the amount of $187.57.

(b) Prescription Medications – Ms. Sanson claims $11,716.87 for Collision‑related prescription medications up to the date of trial. These expenses appear to me to be reasonable, and the defendant did not contest them in argument. I allow this claim in full.

(c) Physical Training/Personal Trainer – Ms. Sanson claims $23,695.99 for physical training that she claims relates to the injuries she sustained in the Collision. Prior to the Collision, Ms. Sanson trained with a personal trainer named Henry Godzik, and has continued to train with him after the Collision, albeit on a modified basis, which Ms. Sanson explained was to cater to her need to accommodate and rehabilitate from the Collision‑related injuries. She noted that the physical training was recommended by Dr. Ouchterlony and Dr. Lay, and the cost of this physical training was approved by her accident benefits insurer. The defendant points out that Ms. Sanson trained with this same personal trainer before the Collision, and that working out with a personal trainer is wholly unrelated to the Collision and does not arise out of medical necessity. In my view, some aspects of the personal training, as modified, can and do relate to the Collision; for example, the training is in part targeted towards the fact that Ms. Sanson is no longer able to regularly cycle or run as she did before the Collision. That said, the evidence on this aspect of the claim is very thin, and I did not hear from Mr. Godzik directly. I suspect that much of the physical training is similar to what Ms. Sanson did before the Collision. In the absence of specific evidence, I award $6,000.00 under this head, being roughly 25% of the amount claimed.

(d) Chiropractic and Massage Therapy – Ms. Sanson claims $59,385.19 in this category. She says that her chiropractic and massage therapy treatments were recommended by Dr. McNally and Dr. Ouchterlony and have been approved by the accident benefits insurer. Dr. McNally’s recommendation for massage treatment was limited to an entry in her chart of October 22, 2012, corresponding to Ms. Sanson’s first post-Collision visit. As the defendant points out, Ms. Sanson’s claim is for almost ten years of massages. While these treatments are mentioned in Dr. Ouchterlony’s chart as being part of Ms. Sanson’s ongoing regimen, Dr. Ouchterlony did not explicitly recommend that they should be a part of Ms. Sanson’s ongoing treatment plan. The defendant also points out that in a number of documented instances Ms. Sanson was offered but declined cranial massages in favour of full body massages. With respect to the chiropractic treatment, the defendant points out that there is no evidence to suggest that such treatments were medically necessary nor recommended by any medical practitioner, and refers to chiropractic records which seem clearly to relate to treatments unrelated to the Collision, for example, at least eight treatments for Ms. Sanson’s left ankle. While I appreciate that massage or chiropractic treatments may play a role in an overall treatment strategy, there is insufficient evidence for me to reach a conclusion that they did so here. Based on Dr. McNally’s early recommendation for massage treatment, I am prepared to allow the claim in the amount of $2,500.00, but do not have evidence to award more than that.

(e) Cognitive Communication Therapy – Ms. Sanson claims $19,638.91 in this category. At the recommendation of Dr. Ouchterlony, Ms. Sanson saw Ms. Shumway on a very regular basis for cognitive communication therapy. The defendant argues that Ms. Sanson has no obvious cognitive communication deficits or related difficulties, relying on the evidence of Dr. Jovanovski who, in her one encounter with Ms. Sanson, noted no particular difficulties. The defendant thus alleges that the treatment provided by Ms. Shumway is not medically necessary nor relevant. I disagree. Ms. Shumway clearly worked hard with Ms. Sanson to address her various cognitive and related problems and helped Ms. Sanson develop strategies to cope with her deficits. Moreover, Ms. Shumway’s involvement was recommended and then relied on by Dr. Ouchterlony. In my view, Ms. Shumway provided valuable treatment, and I allow Ms. Sanson’s claim for her services in full.

(f) Housekeeping Expenses – Ms. Sanson claims $4,174.28 for housekeeping expenses she has incurred since the Collision, on the basis that her cognitive and physical fatigue has impaired her ability to manage normal housekeeping and has required her to engage outside help. The occupational therapist, Ms. Maurice, supported the need for these expenditures. The defendant argues that Ms. Maurice’s assessment was not based on a sufficiently thorough review and point out that Ms. Sanson has had difficulties with cleaners in the past. In my view, there is sufficient support for this relatively modest claim. Ms. Maurice is well-qualified and the defendant offered no evidence to respond to Ms. Maurice’s report and testimony. I allow this claim in full.

(g) Project Management Expenses – Ms. Sanson claims $4,767.19 in this category because, in order for Mr. Hart to resume living with her in 2018, it was necessary for her to renovate her basement to turn it into a home office for Mr. Hart. Ms. Sanson claims that, but for the Collision and its consequences, she would have designed and overseen the renovation herself but that, owing to her impairments arising from the Collision, she could no longer do so and had to hire a project management consultant. In my view, this project was for the benefit of Mr. Hart and is too remote from the consequences of the Collision to be fairly claimed here. I do not allow this claim.

(h) Women’s College Hospital Invoices – Ms. Sanson claims $1,725.00 in this category. As part of her ongoing treatment by Dr. Lay for headaches, Ms. Sanson has been prescribed certain injections which are said to be painful and must be administered by Dr. Lay herself or by a registered practical nurse. The administration fees are not covered by OHIP. There are receipts in the record for all such fees, and they do not appear to be contested by the defendant. I allow this claim in full.

(i) Diagnostic Imaging (MRI) – Ms. Sanson claims $465.00 for the MRI she undertook post-Collision. Although Dr. McNally had arranged a CT scan for Ms. Sanson’s head, Ms. Sanson preferred to avoid the exposure to radiation involved in a CT scan and opted instead to have an MRI done at her own expense in Buffalo, New York. While Ms. Sanson claims this was also done in part to avoid the delays of obtaining a CT scan, the evidence in fact confirms that a CT scan would have been available approximately just as quickly as the MRI Ms. Sanson arranged. While I am sympathetic to Ms. Sanson’s concerns about radiation, in my view that is a matter of personal choice, and it is up to Ms. Sanson to pay the associated costs. As such, I do not allow this claim.

[398] With all that determined, Ms. Sanson agrees that the amounts above are offset by amounts that have been paid out to her by her accident benefits insurer or by Mr. Hart’s insurer through a spousal benefits plan. The total amount that Ms. Sanson has received from these sources totals just over $60,000.00 — such that I believe the offset will eclipse the total claims that I have allowed.

(D) Cost of Future Care

[399] The determination of cost of future care for Ms. Sanson involves many of the same elements as discussed in the evaluation of her out-of-pocket claims.

[400] In considering these claims, the Court is to apply a “real and substantial risk” standard in evaluating the evidence as to items said to be required, in Ms. Sanson’s best interests, for future care.

[401] Ms. Sanson makes a claim for the cost of prescription medications. She notes that, as she recently turned 65, the cost of a number of her prescription medications will now be covered under the Ontario Drug Benefit Plan. However, certain prescribed medications that she expects she will continue to need in the future, are not covered. These include Suvexx and Botox, both of which Ms. Sanson requires for the treatment of her ongoing migraine headaches. The defendant does not appear to contest these claims, and I allow them, in the amount of $23,013.03 for Suvexx and $78,342.06 for Botox.

[402] Ms. Sanson also claims for the cost of ongoing future cognitive communication therapy with Ms. Shumway. Ms. Sanson has undergone this therapy with declining frequency in recent years. Particularly since there is no longer any realistic possibility of Ms. Sanson returning to income-earning activity, the need for this therapy, while helpful in other domains, is less acute. Ms. Sanson can presumably adopt and continue to employ various strategies recommended by Ms. Shumway during past therapy sessions. Ms. Sanson’s claim recognizes the diminishing need for Ms. Shumway’s therapy, and claims for five years at $1,500.00 per year, for a total of $7,500.00. In my view, two more years of therapy should be sufficient to ensure that Ms. Sanson has the benefit of Ms. Shumway’s input and coping strategies going forward. Accordingly, I allow a total of $3,000.00 for this claim.

[403] For the reasons discussed above in relation to Ms. Sanson’s out-of-pocket claims, I do not have sufficient evidence before me to justify an award for the cost of massage therapy going forward, and I decline to make any award in this category.

[404] Ms. Sanson also makes a claim for vision therapy. She relies on a recommendation Dr. Ouchterlony made in 2016 that Ms. Sanson undergo a vision therapy assessment and that she may benefit from a vision training program. Ms. Sanson did not pursue this recommendation at the time, and again there is insufficient evidence before me concerning the details and potential benefits of this therapy in Ms. Sanson’s case. I do not allow this claim.

[405] My assessment of Ms. Sanson’s claim for the cost of physical training in the future echoes my findings on her claim for that service in the out-of-pocket section above. There is little evidence before me concerning the precise role and benefit of physical training going forward, specifically in relation to the continuing consequences of the Collision. While of course Ms. Sanson, like anyone, will benefit generally from ongoing physical fitness training, there is little to no evidence in the record confirming the role of physical training relative to specific injuries or deficits resulting from the Collision. Having allowed a modest award for out‑of‑pocket expenditures in this category in recognition of the need for some rehabilitation on an interim basis, and absent evidence of the need for a trainer going forward, I decline to make any further award in this category.

[406] With respect to the claim for the future costs of housekeeping services, I note that the claim is in relation to both the house that Ms. Sanson and Mr. Hart live in as their primary residence as well as their cottage. For the reasons set out above in relation to the out-of-pocket claim, I am prepared to allow this claim in relation to the house. However, the claim relative to the cottage strikes me as falling outside the realm of “need”, and in any event, I have little evidence before me to explain the reasons for this requirement. As such, I allow the claim in relation to housekeeping services for the house and not the cottage. It does not appear that Ms. Sanson is pursuing her claim for gardening services at her home and cottage and in any event, I do not have sufficient evidence before me that would justify an award for that service.

[407] I am assuming that based on my determinations these claims can be quantified and agreed upon, but to the extent there is remaining uncertainty about the resulting awards, I may be spoken to.

The “Threshold” Motion

[408] I now turn to deal with the defendants’ “threshold” motion. Both Mr. Paterson and Security National brought this motion together during final submissions.

[409] The defendants argued that Ms. Sanson’s claim for non-pecuniary damages lacks proper expert evidence to establish that she has suffered a threshold impairment under s. 4.3 of O. Reg. 461/96.

[410] The defendants’ related position is that Ms. Sanson has not sustained a “permanent serious impairment of an important physical, mental or psychological function” as a result of the Collision, pursuant to s. 267.5(5) of the Insurance Act.

[411] Section 267.5(3) of the Insurance Act stipulates, inter alia, that the owner or occupant of an automobile is not liable in an action for damages or expenses that have been or will be incurred for health care resulting from bodily injury, unless the injured person has sustained “permanent serious disfigurement” or “permanent serious impairment of an important physical, mental or psychological function”.

[412] Section 4.2 of O. Reg. 461/96 provides a detailed description of the criteria necessary to prove the existence of a permanent serious impairment of an important physical, mental or psychological function.

(A) The Meyer v. Bright Test

[413] The leading authority on the interpretation of the statutory threshold remains the decision of the Court of Appeal for Ontario in Meyer v. Bright (1993), 1993 CanLII 3389 (ON CA), 15 O.R. (3d) 129 (C.A.). The Court set out a three-part inquiry to assess whether the plaintiff falls within one or more of the statutory exceptions to the immunity for general damages, as follows:

“We conclude therefore that the appropriate approach in these cases is to answer sequentially the following questions:

1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?

2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?

3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?”

[414] Additionally, often described as the fourth part of the Meyer v. Bright test, it is often the case that the serious and permanent impairment the plaintiff suffered must be found to have arisen from the subject collision.

[415] In applying the threshold test, the case law has emphasized that courts should focus on the “effect of the injury” more than the “type of injury”. For example, in Valentine v. Rodriguez‑Elizalde (2016 ONSC 3540), Justice Firestone (as he then was) wrote, at para. 39, that “[i]t is the ‘effect of the injury’ on the person and not the ‘type of injury’, or labels attached to it, which should be the focus of the threshold analysis.” (See also Malfara v. Vukojevic, 2015 ONSC 78, at para. 23.)

[416] The onus of proof on a threshold motion is on the plaintiff to establish, on a balance of probabilities, that her alleged injuries fall within the statutory exceptions in the Insurance Act and that the injuries were caused by the motor vehicle accident in question. The test for causation is the “but for” test as formulated in Clements v. Clements (2012 SCC 32, [2012] 2 S.C.R. 181).

[417] Dealing first with the question of whether an impairment is permanent, s. 4.2(1) of O. Reg. 461/96 provides that the impairment must have been continuous since the accident, and that medical evidence of the impairment must demonstrate that there will not be further improvements and that the impairment will affect the ability to work, train for work, or partake in the activities of daily living.

[418] This Court has held that “permanent” does not mean “forever”, but rather for “the indefinite future”. In Grieves v. Parsons (2018 ONSC 26), Justice Charney described “permanent” as follows, at para. 14:

“While the word ‘permanent’ does not mean forever, it nevertheless requires that the impairment last into the indefinite future as opposed to a predicted time period with a definite end. Put another way, permanent impairment means the sense of a weakened condition lasting into the indefinite future without any end or limit.”

[419] The plaintiff’s symptoms also need not be constant and the treatment need not be continuous without periods of relief. As Justice McKelvey wrote in Bishop-Gittens v. Lim (2016 ONSC 2887), at paras. 33-34:

“[33] I accept that the plaintiff’s symptoms fluctuated. They varied both in terms of intensity and frequency. However, I reject the defence suggestion that the requirement for the impairment to be ‘continuous’ means that the symptoms must be constant and unrelenting…

[34] …The Regulation does not mean that a plaintiff is required to experience symptoms on a constant basis as suggested by the defence. Rather what is required is a pattern of continuing symptoms in the areas described by the plaintiff which may wax and wane over time but which persist on a long term basis.”

[420] In order for an impairment to be of an “important function”, the function in question must be necessary to perform the activities that are the essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to continue. Alternatively, the function must be necessary for the person to provide for her own care or well-being, or important to the usual activities of daily living, taking into consideration the age of the plaintiff. The regulation does not require all of these criteria to be met in order for the impaired function to be considered an “important function”.

[421] In Meyer, the Court defines the word “important” to refer to something of significant worth, and consequently, in order for the bodily function to be an important one, the impairment must be of a significant bodily function.

[422] The test as to importance is a qualitative test (Grieves, at para. 14). As the Court held in Adams v. Taylor (2013 ONSC 7920, at para. 13):

“This part of the analysis is subjective and qualitative and asks whether the impaired function is one that is important to the plaintiff, having regard to the individual as a whole. Is the function necessary to perform the activities that are essential tasks of the plaintiff’s regular or usual employment, taking into account reasonable efforts to accommodate her, and her reasonable efforts to use that accommodation? Is the function necessary for the person to provide for her care or well-being, or important to the plaintiff’s usual activities of daily living, considering her age? Each case will be different as plaintiffs may enjoy different activities and interests, and may have different employment.”

[423] In order for an impairment to be “serious”, it must substantially interfere with the person’s ability to continue employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation; substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained; or substantially interfere with most of the usual activities of daily living, considering the person’s age. Again, the Regulation does not require that all three criteria must be met to establish a serious impairment.

[424] In Patterson v. Sindal (1999 CanLII 1665 (Ont. C.A.), at para. 16), the Court of Appeal for Ontario emphasized that the impact on the plaintiff’s future is a paramount consideration in determining if the impairment is serious:

“Putting it another way, although the economic consequences of his injuries have to date been positive rather than negative, the impact on his future life, both vocational and recreational, by reason of the combination of his education, his age and his new physical limitations, may well be serious.”

[425] Discussing the “importance” criterion in Meyer, the Court explained that a serious permanent impairment of an important bodily function is one that frustrates the plaintiff’s chosen career path.

[426] Ms. Sanson maintains that the evidence in this case shows that she easily meets all three criteria. She argues that her symptoms and limitations as a result of her chronic post-Collision headaches, together with the cognitive limitations arising from her mTBI, have been continuous since the Collision. Despite her attempts to return to work, she has been unable to overcome these symptoms and limitations. She remains under the care of her family physician and of Dr. Lay, and there is no realistic expectation that she will ever return to her previous level of function. This evidence, Ms. Sanson argues, shows that her impairment is “permanent”.

[427] In terms of the “seriousness” criterion, Ms. Sanson argues that her career as a lawyer ended despite her many attempts at rehabilitation. Her cognitive impairments made returning to work as a lawyer impossible. She made attempts to return, but eventually aborted them. She made frequent errors in her work, struggled with the most basic functional requirements to practice law, and even received a complaint about her work for the first time in her career. In short, she says, her limitations are serious and have frustrated her career path (effectively ending it) as well as her ability to enjoy life.

[428] As to the “importance” criterion, Ms. Sanson submits that the evidence clearly shows that she cannot return to competitive employment as a lawyer, which was at the very core of who she was. She was prominent in her field and won awards. She has also not been able to return to her social activities. As such, Ms. Sanson argues, both from an employment perspective and from a social perspective, she has suffered impairment of important functions in her life.

[429] Ms. Sanson also argues that the evidence confirms, and the defendant does not substantively contest, that her impairments were caused by the Collision. Put in terms of the test for causation, but for the Collision, Ms. Sanson would still be practicing law, and would be physically and socially active.

[430] The defendants’ position on the threshold motion is essentially twofold.

[431] While there are many subcomponents to the defendants’ position, some of which are addressed below, the two overarching themes in the defendants’ argument are: first, that Ms. Sanson’s claims, both relative to causation and relative to all three components of the Meyer test, are not credible, given the preponderance of evidence undermining Ms. Sanson’s claimed impairments and limitations; and, second, that the qualifications of Ms. Sanson’s experts and the quality of their evidence do not comply with what is required to meet the threshold.

[432] Dealing with the first main component of the defendants’ argument, it is evident from my findings above, which I will not repeat here, that in my view Ms. Sanson has amply demonstrated that she has suffered significant injuries caused by the Collision.

[433] Applying those findings to the criteria to be met in the context of a threshold motion, in my opinion the evidence clearly shows, well beyond a balance of probabilities, that Ms. Sanson has suffered a permanent impairment of bodily functions caused by continuing physical injuries. More particularly, I find that Ms. Sanson has suffered permanent and continuous cognitive impairments affecting her cognitive function, memory, and executive function and causing related headaches and fatigue, among other symptoms.

[434] I also find that the bodily functions which have been permanently impaired are important ones. Indeed, the impaired functions, as I have found, prevent Ms. Sanson from returning to her passion and chosen means of making a living and from participating in social and recreational activities which rounded out her previously full life.

[435] For many of the same reasons, I also find that the impairments are serious. Their impact has thwarted Ms. Sanson’s attempts to return to her work and her life, and effectively ended her career.

[436] It is implicit in these conclusions, and explicit in the discussion above, that I accept and rely upon the expert medical and psychological evidence tendered on behalf of Ms. Sanson (and to some extent the medical and psychological evidence tendered by the defendants).

(B) The Defendant’s Argument re Medical Evidence Required

[437] However, and now turning to the second overarching theme of the defendants’ argument, it is important in this context to address the arguments advanced by the defendants relative to specific requirements for medical evidence in particular, relative to the threshold, that the defendants say were not met here.

[438] The defendants cite and rely upon the following provisions of s. 4.3(2):

“4.3(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,

(a) the nature of the impairment;

(b) the permanence of the impairment;

(c) the specific function that is impaired; and

(d) the importance of the specific function to the person.

4.3(3) The evidence of the physician,

(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and

(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.

4.3(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as a result of the use or operation of an automobile.

4.3(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.”

[439] The defendants say that the plaintiff’s participant experts not only failed to adduce proper evidence addressing the specific items under s. 4.3(2), but that they are unqualified to provide that very evidence under s. 4.3(3). Specifically, the defendants say that Dr. McNally and Dr. Ouchterlony are specialists in family medicine, and as such, are unqualified to provide a threshold impairment opinion related to an alleged TBI.

[440] The defendants also say that the plaintiff’s Rule 53 litigation experts, Dr. Cancelliere and Dr. Zakzanis (whose report was obtained by the defendant, but Ms. Sanson relies on it for her claim), are unqualified to opine on the threshold under s. 4.3 of the Regulation, as they are psychologists and not physicians.

[441] On the point about the psychologists, the defendants rely on the following passage from Justice Chaney’s decision in Mundinger v. Ashton (2019 ONSC 7161, at para. 69):

“If the legislature had intended to include the psychologists or health practitioners in s. 4.3 of the Regulation, it would have used the words ‘physician or psychologist’ or simply the more general term ‘qualified health practitioner’, as it did in the Statutory Accident Benefits Schedule and a variety of other statutes. This would avoid any conflict with the Medicine Act. This is also consistent with the long‑established principle of statutory interpretation that ‘when words of a provision are precise and unequivocal, the ordinary meanings of the words play a dominant role in the interpretive process’: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, at para. 10.

[442] The defendants acknowledge that a psychologist’s evidence may corroborate the evidence of a physician. However, they argue that a psychologist’s evidence cannot be substituted for the evidence of a physician as required under s. 4.3 of the Regulation.

[443] While it appears, for example in light of Rogrigues v. Purtill (2019 ONCA 740), that the question of whether or not a psychologist qualifies as a “physician” under s. 4.3 of the Regulation is not quite as cut and dried as Justice Charney found in Mundinger, I accept for purposes of argument that a psychologist is not a physician and not qualified to give the primary medical opinion required under s. 4.3 (albeit that a psychologist is clearly qualified to provide a corroborating opinion).

[444] The defendants go further, however, and say that “although s. 4.3 of the Regulation does not specify the type of expert physician evidence to be adduced by the plaintiff, whether it be participant or Rule 53.03 expert evidence, this Court has held that causation and opinion evidence provided by a Rule 53.03 qualified expert is required”.

[445] In that regard, the defendants point to the decision of Justice Edwards in DeBruge v. Arnold (2014 ONSC 7044), and again to Justice Charney’s decision in Mundinger.

[446] Looking first at Mundinger, as noted above, the primary thrust of Justice Charney’s decision, for present purposes, was that a psychologist cannot serve as a physician for the purposes of s. 4.3. It is noteworthy, though, that in referring to the evidence of two treating physicians called by the plaintiff (in addition to the psychologist), His Honour observed that neither treating physician gave evidence about the specific items listed in s. 4.3, and said, at para. 49:

“Whether as a participant expert or as a litigation expert, the evidence of the physician must address the elements specified in s. 4.3.”

[447] In my view, Justice Charney was saying, contrary to the proposition for which the defendants cite Mundinger, that in fact a participant expert can give the opinion required under s. 4.3, but that the participant experts before him did not do so.

[448] Justice Edwards’ decision in DeBruge does, on its face, imply that a Rule 53.03 compliant expert report is required as a precondition to a physician offering opinion evidence to address threshold issues. It is important to note that Justice Edwards makes that implication in the context of discussing how it would have been preferable for the plaintiff to call one of a number of physicians involved in ongoing care and treatment, as opposed to the approach the plaintiff took instead, which was to call a Rule 53.03 expert engaged solely for the litigation and who had seen the plaintiff for “little more than one hour” (at para. 50).

[449] In other words, as is clear from a review of Justice Edwards’ discussion of the issue, he believed that a treating physician would in fact be better placed to give the necessary opinion because of substantially greater ongoing exposure to the plaintiff than the Rule 53.03 expert who had spent very limited time with the plaintiff.

[450] It is also clear that Justice Edwards believed that one of the treating physicians would have been able to do so, but that they would have had to deliver a Rule 53.03 compliant report as a precondition to testifying.

(i) Impact of Westerhof

[451] Justice Edwards’ decision in DeBruge predates the Court of Appeal for Ontario’s seminal decision in Westerhof.

[452] The Court in that case promulgated the now commonly used nomenclature of “participant experts” (treating doctors) and “litigation experts” (Rule 53 experts), and more importantly, clarified the rules and respective roles of these categories of experts (about which, prior to Westerhof, there had been considerable confusion).

[453] Importantly, in discussing the potential role at trial of a treating physician, who was ultimately classified as a participant expert, Justice Simmons, speaking for a unanimous Court said (at paras. 59-61):

“[59] As I have said, I do not agree with the Divisional Court’s conclusion that the type of evidence — whether fact or opinion — is the key factor in determining to whom Rule 53.03 applies.

[60] Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53.03 where

– the opinion to be given is based on the witness’ observation of or participation in the events at issue; and

– the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[61] Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” (sic) risks confusion because the term ‘fact witness’ does not make clear whether the witness’ evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as ‘participant experts.’”

(Emphasis in original.)

[454] Justice Simmons went on to say, at para. 63, “If participant experts… also proffer opinion evidence extending beyond the limits I have described, they must comply with [R]ule 53.03 with respect to the portion of their opinions extending beyond those limits.”

[455] In other words, since the Court of Appeal for Ontario’s decision in Westerhof, it has been clear that participant experts may give opinion evidence for the truth of its contents, without serving a Rule 53.03 report, so long as that opinion evidence was based on the witness’ observation of or participation in the events at issue and the opinion was formed as part of the ordinary exercise of the witness’ skill, knowledge, training and experience while observing or participating in such events.

[456] Had this decision been available to Justice Edwards when he decided DeBruge, he no doubt would have dropped from his decision the implicit suggestion that, in order to give opinion evidence about their observations of the plaintiff, the proposed experts would have had to comply with Rule 53.03. Since Westerhof, it is clear that this is not required.

[457] In my view, the same observations hold true for purposes of threshold opinions. That is, so long as the opinion to be given is based on the witness’ observation of or participation in the events at issue, and subject to the witness’ qualifications to formulate the opinion in question in that context, a treating doctor (participant expert) may provide the opinion required for purposes of the threshold. In my opinion a fair reading of Westerhof puts that proposition beyond doubt (particularly when, as the defendants acknowledge, there is no stated requirement within s. 4.3 that the opinion for these purposes be Rule 53.03 compliant).

[458] This still leaves the question of qualifications, which is encompassed in the second prong of Justice Simmons’ explication of the conditions for a participant expert giving opinion evidence, namely that “the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience”.

[459] As discussed above, the defendants argue that neither Dr. McNally nor Dr. Ouchterlony, as family physicians, has the requisite “skill, knowledge, training and experience” to discuss the diagnosis, treatment or prognosis for an mTBI.

[460] I am not sure that a community-based family doctor such as Dr. McNally would necessarily be disqualified to discuss these issues. I expect it would depend to some extent on the particular doctor’s exposure to brain injuries, and the extent of their specific knowledge, training and experience in that regard. I expect that many family doctors would have relevant experience and, depending on the precise issues about which they are asked to opine, may well have sufficient expertise to testify. In my view that is a determination that will have to be made on a case-by-case basis.

[461] On the other hand, as I have found, Dr. Ouchterlony, who as noted is the anomalous and perhaps singular family physician who devoted most of her career, spanning over four decades, to the study and treatment of brain injuries, is well-qualified to give the opinions she gave about Ms. Sanson’s diagnosis, ongoing treatment (in which she was directly involved) and prognosis. As required by Westerhof, Dr. Ouchterlony’s opinions were in fact based on her observations of and participation in the care of Ms. Sanson, and she was able to form those opinions based on her skill, knowledge, training and experience.

Conclusion re Medical Evidence Required

[462] For these reasons, I reject the defendants’ submission that Ms. Sanson failed to provide the appropriate evidence necessary in the context of a threshold motion. Setting aside the question of whether Dr. McNally alone could have provided the necessary threshold opinion, in my view, Dr. Ouchterlony unquestionably could have, and did, supply the necessary evidence.

[463] As such, the opinions of Dr. McNally and the psychologists Dr. Cancelliere and Dr. Zakzanis can be viewed as corroborative evidence in relation to Dr. Ouchterlony’s opinion. Indeed, with respect to certain observations of Ms. Sanson, various of the lay witnesses she called are also properly understood as corro borative witnesses.

[464] I note that in objecting to Ms. Sanson’s evidence for purposes of the threshold motion, the defendants do not include Dr. Lay in their objection. That is presumably because, since Dr. Lay is a neurologist, her credentials to provide opinions in that context are unassailable. Dr. Lay expressed the opinion that Ms. Sanson’s severe headaches began as a result of the Collision, and testified that Ms. Sanson suffered from a severe headache-associated disability, resulting from post-traumatic headaches with migraine and post-concussive syndrome with associated cognitive difficulties.

[465] As such, Dr. Lay’s evidence is also strongly corroborative of Dr. Ouchterlony’s evidence, and may itself be sufficient on its own to meet the threshold requirements. In view of my finding that Dr. Ouchterlony’s evidence clearly does so, I need not come to a definitive conclusion relative to Dr. Lay’s evidence alone.

Conclusion on Threshold Motion

[466] In all of the circumstances, I dismiss the defendants’ threshold motion. I find that Ms. Sanson’s claim readily falls into the exceptions to the statutory immunity regime.

Overall Conclusion

[467] I grant judgment in favour of Ms. Sanson and award damages in the categories and amounts set out above.

Costs

[468] Ms. Sanson is entitled to her costs. I am of course unaware whether there have been any relevant offers to settle that may impact my assessment of costs. I ask that the parties confer about the costs to be paid to Ms. Sanson, and I encourage them to reach an agreement if possible. Otherwise, the plaintiff is to provide brief written submissions, not to exceed five pages, together with her outline of costs within 30 days of the date of this decision. The defendants are then to provide responding materials, limited to the same length, within 10 days thereafter.

Gratitude to Counsel

[469] I would be remiss not to observe that in my view the conduct of all counsel in this trial was exemplary. While the issues were complex and hard-fought, counsel were at all times professional in their demeanor, and appropriately cooperative with one another. I also benefitted from the highly skilled manner in which counsel presented evidence and arguments, and I express my gratitude to counsel for their competence and their impeccable conduct.

W.D. Black J.

Date: May 16, 2022