Waller v. Brown, 2022 ONSC 3510

COURT FILE NO.: CV-17-313-00

DATE: 20220610

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAQUELINE WALLER

Plaintiff

– and –

RYAN BROWN and KAREN BROWN

Defendants

Edward V. Bergeron and Casey Dorey, for the Plaintiff

Todd McCarthy, for the Defendants

HEARD: November 9, 10, 12, 15, 16, 17, and 18, 2021

REASONS FOR JUDGMENT

THRESHOLD RULING AND DAMAGE ASSESSMENT

Muszynski J.

[1] These reasons follow a trial relating to a motor vehicle accident that took place on October 28, 2015. The plaintiff, Jaqueline Waller, was injured in the accident.

[2] There is no question that the defendants, Ryan and Karen Brown, are liable for the accident. Indeed, liability has been admitted. The issues to be decided include whether Ms. Waller’s injuries surpass the threshold and the assessment of Ms. Waller’s damages.

[3] The trial was originally scheduled to proceed with a jury. Due to the public health protocols in place at the time, only one jury trial could be accommodated in the Kingston courthouse. A criminal jury trial was also scheduled with the same start date as this civil trial. The plaintiff brought a motion to strike the jury notice that was ultimately resolved on consent with the trial proceeding with judge alone: see Waller v. Brown and Brown, 2021 ONSC 7178.

[4] The trial took place in person. Counsel agreed to adopt a summary approach to some portions of the trial which significantly reduced the length of trial. Specifically, counsel agreed that the expert reports would be filed as trial exhibits, with limited examination-in-chief, before turning over the witness for cross-examination. At the conclusion of the trial, the defendants brought a threshold motion.

[5] While counsel worked efficiently to significantly reduce the length of trial, they still did file a very large volume of material as trial exhibits, including complete files relating to the plaintiff’s employment, accident benefit insurance, disability insurance, pension, and medical records. I have considered all of the evidence of the witnesses at trial, the relevant portions of the trial exhibits, and the submissions of counsel, but make reference in these reasons only to the evidence and arguments that I consider necessary to explain my findings and conclusions.

ISSUES

[6] At various times during the trial, I was required to make evidentiary rulings. I will briefly address some of those rulings in these reasons.

[7] More substantively, since liability has been admitted, counsel agree that the issues remaining for me to consider include:

Issue 1: Has Ms. Waller sustained a threshold injury that arises directly or indirectly from the motor vehicle accident?

Issue 2: What is an appropriate assessment of Ms. Waller’s damages in the following categories:

i. General damages;

ii. Income loss;

iii. Housekeeping / home maintenance;

iv. Future care costs;

v. Out-of-pocket expenses; and

vi. Investment management fee.

RESULT

[8] I find that Ms. Waller sustained a threshold injury in the October 28, 2015 accident.

[9] I further find that Ms. Waller is entitled to damages as follows:

a. General damages (gross): $100,000

b. Past income loss (net): $38,371

c. Future income loss: See analysis below

d. Future care costs: See analysis below

e. Housekeeping / home maintenance: $201,294.72

f. Out-of-pocket expenses: $3,700

g. Investment management fee: 5 percent of total future award

POSITION OF THE PARTIES

[10] Ms. Waller takes the position that the accident of October 28, 2015 had a dramatic impact on her life. Ms. Waller was a 46-year-old social worker employed with the Hastings and Prince Edward District Board of Education at the time of the accident. She was 52 years old at trial. Before the accident, Ms. Waller had an excellent employment record, was a busy mother and wife, and enjoyed playing recreational softball on a regular basis. After the accident, Ms. Waller experienced immediate symptoms of pain in the left side of her neck and her left shoulder. She was collared, boarded, transported to the hospital by ambulance and released later that day. Ms. Waller returned to work a few days after the accident and continued to work, with difficulty, until October of 2016 when she alleges that that had to stop altogether due to accident-related issues. Ms. Waller claims that she now has chronic widespread pain that treatments and therapies do not relieve to any significant degree along with cognitive and psychological impairments. Ms. Waller alleges that she has sustained a loss of income and will continue to lose income into the future. Further, Ms. Waller seeks damages for future care costs, housekeeping / home maintenance expenses, out-of-pocket expenses, and for an investment management fee.

[11] The defendants submit that any ongoing medical problems that Ms. Waller continues to experience are not related to the minor injuries she sustained in the accident, but rather due to pre-accident medical issues or side effects of medications used to treat those issues. Further, the defendants take the position that a significant fall Ms. Waller experienced in January of 2020 caused her more recent medical challenges. The defendants deny that Ms. Waller has sustained a threshold injury arising directly or indirectly from the motor vehicle collision. Accordingly, the defendants submit that there can be no general damages award. However, the defendants acknowledge that modest awards would be appropriate for Ms. Waller’s other heads of damages, but not nearly to the extent claimed by Ms. Waller due to her pre-existing health issues and post-accident fall.

EVIDENTIARY ISSUES / MID-TRIAL RULINGS

Plaintiff’s Motion for Leave to Adduce Evidence from More Than Three Expert Witnesses

[12] At the outset of trial, the plaintiff sought leave of the court to call evidence from more than three expert witnesses. Specifically, counsel proposed to call eight experts. After discussion with counsel for the defendants, there was an agreement reached that six of the eight experts would be called to avoid the potential for duplication of evidence.

[13] Leave was granted to permit the plaintiff to call more than three experts on the basis of this agreement.

Admissibility of Dr. Hawkins’ Report

[14] During the cross-examination of the defence expert, Dr. Lawrence Freedman, a report of an infectious disease specialist, Dr. Ralph G. Hawkins, dated September 22, 2019, was brought to the attention of the witness. Dr. Freedman, a neuropsychologist, had been provided with Ms. Waller’s medical records to assist in reaching a medical-legal opinion in this case. Dr. Hawkins’ report was contained within those records.

[15] Dr. Hawkins’ report was addressed to the claims adjuster with carriage of Ms. Waller’s tort claim. It was not disclosed to the plaintiff until it was requested on the morning of Dr. Freedman’s cross-examination. It was not listed in any affidavit of documents produced in the course of this litigation. Counsel for the plaintiff acknowledges that it was only in preparing for Dr. Freedman’s cross-examination that he noticed reference to the previously undisclosed report.

[16] Dr. Freedman was brought to a passage in Dr. Hawkins’ report that states: “… I agree with the medical specialists who have reviewed her and hold the opinion that Mrs. Jaqueline Waller has fibromyalgia which in my opinion was caused by the motor vehicle collision she was involved in on October 28, 2015 resulting in a whiplash type of injury to the neck.” In confronting Dr. Freedman with Dr. Hawkins’ report, counsel for the plaintiff sought to have the report entered into evidence as a trial exhibit, which was objected to by the defendants.

[17] Rule 30.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that “[e]very document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10, whether or not privilege is claimed in respect of the document.”

[18] Rule 30.08 provides that where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection in compliance with these rules, an order of the court or an undertaking, (b) if the document is not favourable to the party’s case, the court may make such order as is just.

[19] The opinion expressed in Dr. Hawkins’ report is unfavourable to the defendants’ case; however, I ruled that I would not admit the report as a trial exhibit in the context of the cross-examination of Dr. Freedman. It is notable that while Dr. Freedman cited having reviewed Dr. Hawkins’ report, he does not appear to have placed any significant weight upon the same in reaching his own conclusions regarding whether or not Ms. Waller sustained a traumatic brain injury in the accident.

[20] However, I also left the door open for the plaintiff to make a further request to admit Dr. Hawkins’ report pursuant to the court’s ability to make other orders as are just pursuant to Rule 30.08. No such further request was made. Dr. Hawkins’ report therefore remained a lettered exhibit at trial for identification purposes, was not admitted into evidence and, hence, was not considered by me.

Plaintiff’s Request to File Expert Reports as Exhibits

[21] At the outset of trial, the plaintiff requested the court’s permission to file expert reports as trial exhibits in addition to calling the authors of those reports to give viva voce evidence at trial. Initially, the defence objected to the request and suggested that the expert reports be filed as lettered exhibits to be used only as aide memoirs.

[22] I expressed my view that filing the expert reports as evidence would be helpful, but that the experts should not simply get on the stand and read their reports verbatim. Ultimately, counsel agreed that since it was a judge alone trial, the expert reports would be filed as trial exhibits with the understanding that the examination-in-chiefs of those experts would be truncated significantly.

THRESHOLD

Statutory Framework / General Principles

[23] In a motor vehicle accident case in Ontario, to recover general damages a plaintiff must prove, on a balance of probabilities, that they have suffered a permanent serious impairment of an important physical, mental or psychological function as a result of the subject motor vehicle accident, also known as a threshold injury: O. Reg. 461/96, ss. 4.2, 4.3.

[24] The applicable regulations set out what is meant by the terms “serious”, “important” and “permanent”:

a. To be considered “serious” the impairment must,

i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodation to allow the person to continue employment,

ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.

b. To be considered an “important” function the impairment must,

i. be necessary to perform the activities that are 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 allow the person to continue employment,

ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,

iii. be necessary for the person to provide for his or her own care or well-being, or

iv. be important to the usual activities of daily living, considering the person’s age.

c. For the impairment to be considered “permanent”, the impairment must,

i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,

ii. continue to meet the criteria in paragraph 1, and

iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances: O. Reg. 461/96, s. 4.2.

[25] The regulations also dictate the type of evidence that must be called to establish that a plaintiff has sustained a threshold injury. Specifically:

(1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.

(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 of the person.

(3) The evidence of the physician,

a. shall be adduced by a physician who is trained for an 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) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.

(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental, or psychological function: O. Reg. 461/96, s. 4.3.

Ms. Waller’s Evidence

[26] Ms. Waller testified that she was driving her vehicle on the afternoon of October 28, 2015 when she was struck by a vehicle driven / owned by the defendants. She described the impact as “significant” and gave evidence that she “smashed” the left side of her body against the inside of her vehicle. Ms. Waller’s instinct was to get out of the vehicle and check on the other driver, but she felt like she needed to remain still as the pain had started.

[27] The paramedics worked to open the vehicle door, put a neck collar on Ms. Waller, and assisted her onto a stretcher. Ms. Waller was transported by ambulance to Belleville General Hospital where she was x-rayed, diagnosed with having sustained soft tissue injuries, and released with a prescription for Percocet into the care of her husband.

[28] While the pain was initially more severe on the left side of her body, Ms. Waller’s evidence is that she increasingly developed pain throughout the ride side of her body, including her right shoulder, arm, hip, and knee. Further, she testified that she immediately felt “fuzzy” and had ringing in her ears.

[29] Within weeks of the accident, Ms. Waller started physiotherapy with Vince Turpin. Her treatments consisted of deep tissue massage, using the TENS machine, acupuncture, and cupping. While Ms. Waller experienced some immediate relief in her pain following treatment, the effects were short lived. Around Christmas in 2015, Ms. Waller stopped physiotherapy with Mr. Turpin. With respect to employment, Ms. Waller got into the habit of pushing herself to go to work in pain and then having to take sick days and vacation days to recover.

[30] In December 2015, Ms. Waller first went to her family physician and reported right sided neck and shoulder pain, and right sided low back and hip pain. By this time, Ms. Waller testified that fatigue had set in that she described as “bone crushing”. That fatigue has remained constant up until trial.

[31] In fact, Ms. Waller’s symptoms have remained fairly consistent since shortly after the accident with the most problematic being pain in the neck, shoulder, and back, confusion, occasional headaches, and debilitating fatigue.

[32] Ms. Waller testified about her attempts to seek treatments and investigate her complaints, including:

a. Rheumatologist consultation wherein MS and other autoimmune diseases were ruled out.

b. Lyme disease testing, followed by several months of antibiotic treatment before it was ultimately determined that Ms. Waller did not have Lyme disease.

c. Referral to chronic pain clinic where she has ongoing treatment in the form of nerve block injections and lidocaine infusions that alleviate the pain to some degree.

d. MRI of the brain that was negative for abnormality.

e. Various x-rays and ultrasounds that were negative for abnormalities.

f. Prescription medications with varying degrees of success.

g. Massage therapy.

h. Chiropractic treatment.

i. Exercises as prescribed by a physiotherapist, including Aqua Fit.

j. Cognitive behavioural therapy.

k. Referral to Canadian Cannabis Clinic and ongoing use of CBD oil.

l. Referral to the Sleep Clinic.

m. Consultation with an ENT about tinnitus, to no avail.

[33] Ms. Waller testified that she has been diagnosed with having chronic pain. She continues to follow the advice of her physicians and participate in any recommended treatment that provides even minor relief.

Evidence at Trial – Limitations

[34] With respect to employment, Ms. Waller ultimately stopped working in October 2016 as she could no longer maintain her cycle of working for a day or two and then having to take sick days or vacation days to recover.

[35] Ms. Waller was an active individual outside of work. Prior to the accident, Ms. Waller played on two slow-pitch softball teams every summer of her adult life. After the accident, in the summer of 2016, Ms. Waller attempted to return to playing with one of her teams. Instead of playing her usual position in the outfield, Ms. Waller assumed the role of catcher, which she testified that she did poorly and with significant discomfort. After 2016, Ms. Waller did not return to playing softball.

[36] Ms. Waller, and other witnesses that knew her personally, described her pre-accident demeanor as energetic. She was an organizer, a planner, and a very social person. Ms. Waller would plan summer camping trips to Deep River. On those trips, before the accident, Ms. Waller would take the lead in arranging scavenger hunts for the children and participate in physical activities such as cliff jumping. Since the camping trip has been such an integral part of the Waller family’s life, Ms. Waller has continued to go. Her participation, however, has changed significantly. Instead of being the organizer, Ms. Waller has adopted for a passive role in the event. She does not participate in the physical activities and, instead, will excuse herself for daily naps.

[37] Ms. Waller, and her friends and family, testified that she continues to put in effort to engage socially. She went on a trip to New York City with her mother and sister after the accident. However, she had to excuse herself and return to the hotel immediately after watching a Broadway show. Ms. Waller went to the Dominican Republic for a week. Instead of going on physical excursions, she rested on the beach and by the pool.

[38] Kim Kippen, Ms. Waller’s older sister, testified at trial. The sisters were close growing up and into their adulthood. Ms. Kippen described her sister as her best friend. Ms. Kippen and Ms. Waller played slow pitch together, went camping, and socialized often. Ms. Kippen described Ms. Waller, pre-accident, as athletically inclined and the life of the party. While Ms. Waller did have knee surgery, the recovery was uneventful, and she did not hear Ms. Waller complain about any headache, back pain, or hip pain in the year before the accident. When questioned about her observations of Ms. Waller after the accident, Ms. Kippen noted that her sister complains of constant pain and fatigue. Ms. Kippen has observed that Ms. Waller is often more forgetful, and she is less accessible as a friend. While they still go camping, Ms. Waller no longer participates in the same way. She will not go cliff jumping, like she once would, but will spend time on a lounge chair with a book. Ms. Kippen testified that Ms. Waller’s role has changed from an organizer and a doer to an observer. On cross-examination, Ms. Kippen confirmed that she was not privy to the conversations her sister had with her treating healthcare practitioners both before and after the accident nor is she familiar with the medications that her sister has been prescribed over the years.

[39] Wendy MacFarlane, like Ms. Waller, was a counsellor at the Hastings and Prince Edward District Board of Education. She worked with Ms. Waller for sixteen years. During the time they worked together, before the accident, Ms. MacFarlane described Ms. Waller as a knowledgeable resource and “full of life”. She was a wonderful teammate and loved her work. After the accident, Ms. MacFarlane first saw Ms. Waller in December of 2015 at a training session. Ms. MacFarlane testified that at the session, she was shocked by the changes she observed in Ms. Waller. Not only was her physical appearance changed as she looked “puffy and uncomfortable”, but she was unable to focus and appeared overwhelmed. After the training sessions, their other colleagues had commented on Ms. Waller’s condition. Since that time, Ms. MacFarlane has been in touch with Ms. Waller infrequently. They try to keep in touch, but the quality of their conversations has declined. On cross-examination, Ms. MacFarlane confirmed that she did not have knowledge about Ms. Waller’s pre-accident medical history nor the extent of her post-accident medical issues.

[40] The overwhelming evidence at trial was that, prior to the accident, Ms. Waller was a social butterfly. She would organize outings with friends and catch up with telephone calls. After the accident, Ms. Waller became more withdrawn. She did not keep in touch with her friends the same way and did not participate or initiate social events. This was due to her pain, but also because she was self-conscious about her cognitive challenges such as word-finding difficulties and confusion.

[41] I accept the evidence of Ms. Waller and the witnesses that testified at trial as credible and reliable about Ms. Waller’s pre-accident level of function versus her post-accident limitations. I accept that Ms. Waller’s daily life is impacted significantly by her accident-related impairments.

Medical Evidence at Trial – Physical Impairments

[42] Dr. Gail Delaney, a physiatrist retained by the plaintiff, was called to give expert evidence on the assessment and diagnosis of collision related impairments. The defendants took no issue with Dr. Delaney’s qualification to give opinion evidence on this basis. Further, the court is satisfied that Dr. Delaney has the necessary expertise to be able to give expert evidence as proposed.

[43] Dr. Delaney assessed Ms. Waller on two occasions, July 6, 2018 and April 10, 2021, and authored three reports dated: July 8, 2016, April 17, 2021, and August 4, 2021. The reports were entered into evidence as trial exhibits. Dr. Delaney’s opinion is that Ms. Waller sustained a whiplash injury, as well as injuries to her right shoulder and right SI joint. Dr. Delaney states that Ms. Waller has persistent secondary myofascial pain, tinnitus, and has developed generalized widespread pain problem. With respect to the threshold, Dr. Delaney opines that Ms. Waller’s accident-related injuries are serious and permanent and, while she may get some improvement with further treatment, she will experience injury related complaints and limitations indefinitely. Finally, Dr. Delaney states that Ms. Waller’s accident-related injuries interfere with her ability to carry on her career, interact with her family, be social, and her ability to do housekeeping and home maintenance tasks.

[44] In addition to the expert evidence, Ms. Waller’s treating physicians have endeavoured to provide reliable diagnoses post-accident. Back on April 19, 2016, Ms. Waller’s family physician initially queried whether Ms. Waller had fibromyalgia. Dr. Tracy Cupido from the pain clinic diagnosed Ms. Waller with chronic widespread pain on November 13, 2019.

Evidence at Trial – Cognitive Impairments / Psychological Impairments

[45] The plaintiff tendered Dr. Catherine Gow as an expert in neuropsychology to give opinion evidence regarding Ms. Waller’s accident-related cognitive impairments and associated sequelae. Dr. Gow assessed Ms. Waller on June 26–27, July 5, 2019, May 12, May 13, and June 6, 2021. Dr. Gow authored reports dated November 28, 2019, June 30, 2021, and August 23, 2021 that were entered into evidence as trial exhibits on consent. The defendants did not object to Dr. Gow’s qualification, and I accepted Dr. Gow was qualified to give expert evidence as proposed.

[46] The defendants retained Dr. Lawrence Freedman, neuropsychologist, to give expert evidence regarding Ms. Waller’s accident-related cognitive impairments and associated sequelae. Dr. Freedman assessed Ms. Waller on July 27, 2021 and authored a report dated August 18, 2021. Dr. Freedman’s report was entered into evidence as a trial exhibit on consent. With no objection from the plaintiff, I qualified Dr. Freedman to give opinion evidence as proposed.

[47] There is significant agreement between Drs. Gow and Freedman. Both doctors identified abnormalities in Ms. Waller’s test results relating to maintaining attention, visual spatial organization, and some executive cognitive function. Both doctors further expressed the opinion that Ms. Waller, in all likelihood, did not sustain a traumatic brain injury in the accident that would have resulted in ongoing neurocognitive impairments.

[48] The difference in opinion between Drs. Gow and Freedman relates to the explanation for Ms. Waller’s cognitive deficits that were identified by the test results. Dr. Freedman concludes that since there was no evidence that Ms. Waller sustained neurotrauma in the accident, “one can conclude that Ms. Waller was never neurocognitively disabled or impaired with respect to employability status and completing routine and complex aspects of ADL following the accident.” Dr. Gow explains that the cognitive deficits may be related to accident-related chronic pain and sleep difficulties, or even attributable to a traumatic axonal injury from her whiplash. Dr. Gow ultimately diagnoses Ms. Waller with mild neurocognitive disorder due to multiple etiologies (chronic pain, chronic sleep disorder, query alcohol related decline), and major depressive disorder, moderate with anxious distress.

[49] Robert Rosic carried out a psycho-vocational assessment of Ms. Waller. At trial, Mr. Rosic was tendered as an expert witness by the plaintiff to give opinion evidence on the impact of the accident-related impairments on Ms. Waller’s employability. There were no objections by the defendants and Mr. Rosic was qualified by the court to give expert evidence in the areas proposed. Mr. Rosic’s assessment of Ms. Waller took place on December 18, 2018 and included psychometric testing. Following the assessment, Mr. Rosic concluded that Ms. Waller is likely suffering from somatic symptom disorder, with predominant pain, major depressive disorder and features of post-traumatic stress disorder and features of a driving phobia. The results of the psychometric testing reveal that pain and suffering likely occupies much of Ms. Waller’s attention and concern, which is consistent with somatic symptom disorder. Further, the testing demonstrates that Ms. Waller experiences physical, psychological, and cognitive challenges.

[50] I accept the evidence of Drs. Gow and Freedman that Ms. Waller’s testing revealed cognitive deficits that are not indicative of a mild traumatic brain injury. I therefore find that Ms. Waller did not sustain a traumatic brain injury in the accident.

[51] I accept the evidence of Dr. Gow, that Ms. Waller’s cognitive challenges – including word-finding difficulty and confusion - are accident-related and likely attributable to her chronic pain and fatigue.

[52] Further, I accept the evidence of Mr. Rosic, that Ms. Waller has psychological sequalae from the accident, including somatic symptom disorder symptom disorder and depression.

Pre-Accident Medical History

[53] The defendants take the position that Ms. Waller had a significant pre-accident medical history to the extent that the symptoms which she complains of now merely are a continuation of her earlier issues.

[54] It is acknowledged that Ms. Waller tore her left ACL playing softball in 2013 and had surgery to repair the tear in 2014. By all accounts, the surgery was successful. In any event, Ms. Waller does not claim any significant ongoing impairments related to her left knee.

[55] The defendants rely on the following pre-accident medical records in support of the position that Ms. Waller had significant and ongoing health issues prior to the accident:

a. 2009: Ms. Waller fills a prescription for amitriptyline prescribed by her former family physician for headaches;

b. January 4, 2012: attends with her family physician, notation that health is generally good, headaches, “then take amitriptyline”;

c. March 6, 2012: attends with family physician, note of “fatigue” along with “feeling of urgency” and “burning sensation”, diagnosis of UTI;

d. December 31, 2013: attends with family physician and complains of fatigue, body aches and having no energy;

e. February 26, 2014: Ms. Waller attends with family physician and complains about tailbone / coccyx tenderness, mild joint degeneration of the SI joint is noted, tearful and increased anxiety due to weight gain, referred to physiotherapy;

f. March 3, 6 and 14, 2014: Ms. Waller attends for massage therapy with Jason Nourry;

g. April 2014: Ms. Waller has knee surgery for torn left ACL.

[56] Jason Nourry is the registered massage therapist who treated Ms. Waller in 2014. He testified that when Ms. Waller came to see him on March 3, 2014 she complained of right hip and sacral pain. Mr. Nourry treated Ms. Waller on three occasions during that month and focused his treatment on the psoas and iliacus muscles along the front of her thigh as he recognized that a joint was displaced. He was successfully able to shift the joint back over the course of the three treatments. After the final session on March 14, 2014, there was no recommendation for further treatment as the pain had resolved and she had achieved the goal of the treatment. Mr. Nourry’s next interaction with Ms. Waller was after the motor vehicle accident in April of 2016 when she attended complaining of left hip pain.

[57] Ms. Waller denies that the back pain she is experiencing today is pre-existing. She distinguishes the right hip and sacral pain she was experiencing in 2014 from the left hip pain she experienced post accident that has now evolved to bilateral hip pain. Following the March 14, 2014 attendance with Mr. Nourry, there are no further complaints of low back pain until after the accident. The medical records are consistent with Ms. Waller’s evidence, and the evidence of Mr. Nourry, that the right hip and sacral pain that she experienced prior to the accident was temporary and resolved with only three massage therapy treatments.

[58] On two occasions referenced, March 6, 2012 and December 31, 2013, Ms. Waller attended with her family physician and reported feeling “fatigued”. With respect to the March 6, 2012 note, the word “fatigue” should not be read in a vacuum. The same date Ms. Waller is reported to have been diagnosed with a UTI. At trial, Ms. Waller testified that in and around December 31, 2013, she went to see her family physician as she had been experiencing stress and fatigue and had wondered if she had the flu.

[59] With respect to the headaches, at trial Ms. Waller testified that she was prescribed amitriptyline at some point in 2009 when she was having headaches which she would take only intermittently. On January 4, 2012, Ms. Waller was told that she could take amitriptyline by her new family doctor when suffering from headaches. The early 2012 episode of headaches did not last long according to Ms. Waller’s evidence at trial.

[60] I am not persuaded by the defendants’ argument that Ms. Waller’s current medical status is simply a continuation of her pre-accident health issues or a natural acceleration of those pre-existing health issues that would have manifested regardless of the accident. Ms. Waller’s pre-accident healthcare interactions were infrequent. I accept Ms. Waller’s evidence that the episodes of headaches she had in 2009 and in early 2012 resolved prior to the accident. I accept Ms. Waller’s evidence that the episode of right hip and sacral pain she had in 2014 was temporary and resolved thereafter. Ms. Waller’s evidence about her pre-accident health status is corroborated by her medical records. I find that Ms. Waller was generally an active and healthy individual before the accident.

Post-Accident Fall(s)

[61] The defendant alleges that Ms. Waller’s health condition was exacerbated by a fall that occurred on January 4, 2020 and also raises reference to “weekly falls” in one of Ms. Waller’s medical records. The defence theory is that these falls could have caused or contributed to Ms. Waller’s ongoing medical issues as opposed to the accident.

[62] Ms. Waller attended with her family physician on February 13, 2020 and reported falling on January 4, 2020 and that she now felt “fine”. The family physician noted that Ms. Waller likely had a mild concussion with respect to the fall. There was no further treatment with respect to the fall.

[63] The reference to “weekly falls” is in a consultation report authored by Dr. Cupido from the Chronic Pain Clinic on November 13, 2019 addressed to Ms. Waller’s family physician. In this report, Dr. Cupido notes: “She falls approximately one time a week. She says she feels like her balance is off. She has some fogginess and instability and this may be related to medication side effects.” Notably, Ms. Waller did not seek any treatment for any of the weekly falls referenced in Dr. Cupido’s report. Similarly, after the February 13, 2020 notation from the family physician, there was no treatment sought with respect to the more serious January 4, 2020 fall.

[64] Joseph Waller, Ms. Waller’s husband, was with her when she fell on January 4, 2020. He is not certain that Ms. Waller lost consciousness. He is not aware of his wife having “weekly falls” but testified that she would sometimes stumble post accident.

[65] I do not accept the defendants’ submission that any of Ms. Waller’s post-accident falls caused or contributed to any significant ongoing symptomology.

Alcohol / Prescription Drug Use

[66] The defendants submit that, following the accident, Ms. Waller misused alcohol against the advice of her physician which resulted in the exacerbation of her medical issues. Further, the defendants take the position that the medications Ms. Waller was prescribed following the accident could account for some of her symptoms, such as tinnitus and fatigue, as opposed to the symptoms having been caused directly by an injury sustained in the accident.

[67] Ms. Waller was forthright about how she drank more alcoholic beverages than usual to help her deal with her pain and low mood in the summer of 2016. She estimated that she was drinking approximately seven alcoholic beverages a week at that time. In an effort to try and curb her symptoms, Ms. Waller stopped drinking alcohol altogether for two years post accident. It did not alleviate her symptoms, so more recently she has started drinking alcohol again, particularly during the COVID-19 pandemic.

[68] On cross-examination, Ms. Waller’s physicians were questioned about mixing alcohol with the prescription medications that Ms. Waller was taking. It was noted that alcohol, even when consumed alone, can cause fatigue and grogginess. Generally, patients would receive advice not to combine alcohol with prescription medication, but that advice might depend on dosage. Dr. Gow further mentioned that Ms. Waller had been using alcohol and medications and developed maladaptive coping strategies for her symptoms. This was echoed by Dr. Freedman who also noted that using alcohol to cope with pain is not a good strategy.

[69] In terms of medication, Ms. Waller confirmed that she is now taking: Sublinox (for sleep), Nortriptyline (anti-depressant), Flexeril (muscle relaxant), CBD oil, and Cymbalta (nerve pain). Over the years since the accident, Ms. Waller has taken medication as prescribed by her physicians. At certain points, she discontinued using certain prescriptions and continued with others that seemed to provide some symptom relief. She is aware of the side effects of some of the medications. For instance, she discontinued using Lyrica as it seemed to make her emotional and teary.

[70] On cross-examination, Ms. Waller was asked by counsel whether she knew that tinnitus was a side effect of amitriptyline. Ms. Waller was not aware of this fact but noted that despite having taken amitriptyline occasionally since 2009, she did not experience tinnitus until after the accident. Similarly, since she stopped taking amitriptyline, she continues to experience tinnitus.

[71] Further, on cross-examination, the physician witnesses were questioned about the side effects of Ms. Waller’s medication and, for the most part, conceded that fogginess and fatigue could be side effects of some of the drugs that she was taking post accident, particularly when taken with alcohol.

[72] It is unclear what use the defendants want me to make of the fact that Ms. Waller has consumed alcohol socially post accident. Ms. Waller abstained entirely from alcohol for a two-year period following the advice of a physician. It did not alleviate her symptoms. Ms. Waller has followed the advice of her doctors and experimented with prescription medications. She concedes that at various times after the accident she self-medicated with alcohol. Ms. Waller has a supportive health team. By all accounts she is a motivated patient. I accept that it is possible that Ms. Waller’s consumption of alcohol and her prescription drug use contributed to her fatigue or fogginess, but I am not prepared to find that Ms. Waller’s ongoing symptomology was caused to any significant degree by her use of alcohol or prescription drugs.

Threshold – Analysis

[73] As set out in the relevant sections of the Insurance Act, R.S.O. 1990, c. I.8, and the applicable regulations, the plaintiff must prove that her accident-related impairments rise to the requisite threshold in that they are serious, important, and permanent. If a plaintiff’s impairments would have occurred in the absence of any negligence on the part of the defendants, the plaintiff cannot succeed.

[74] In Clements v. Clements, former Chief Justice McLachlin noted: “to allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence”: 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 21.

[75] The defendants concede that Ms. Waller has real impairments but that those impairments were caused by factors other than the accident. I reject the defendants’ submission in this regard for the reasons set out above.

[76] I accept the evidence of Dr. Delaney that Ms. Waller developed widespread chronic pain as a result of the accident. I further accept the evidence of Dr. Gow that Ms. Waller has mild neurocognitive disorder related to multiple etiologies, including chronic pain related to her accident-related impairments, and ongoing psychological symptoms identified by Mr. Rosic.

[77] The defendants submit that while there is evidence from Dr. Delaney that Ms. Waller’s impairments are both serious and permanent, there is no such evidence that they are impairments of an “important” function as required by the regulations. On this basis, the defendants submit that the plaintiff has failed to meet the minimum evidentiary requirement in responding to the defence threshold motion. I reject this position. While Dr. Delaney’s report does not use the words “important function” to describe Ms. Waller’s impairments, she does provide opinion evidence about the extent of the impact of the impairments on Ms. Waller’s daily life, including her ability to carry on with her career, interact with her family, be social, and her ability to do housekeeping and home maintenance tasks. I find that Dr. Delaney’s opinion quite clearly sets out Ms. Waller’s functional impairments in a manner which satisfies the applicable regulations: see O. Reg. 461/96, s. 4.2.

[78] I further accept the evidence of Ms. Waller and other lay witnesses that corroborates the change in Ms. Waller’s function following the accident as required by the regulations: see O. Reg. 461/96, s. 4.3.

[79] I find that, as a result of the October 28, 2015 accident, Ms. Waller experiences chronic widespread pain, psychological symptoms – including somatic symptom disorder and depression, mild neurocognitive disorder, as well as tinnitus.

[80] Accordingly, I find that Ms. Waller has sustained a permanent serious impairment of an important physical, mental or psychological function as a result of the October 28, 2015 accident. The defendants’ threshold motion is dismissed.

GENERAL DAMAGES

[81] Counsel for the plaintiff submits that Ms. Waller’s general damages should be assessed at $150,000. The primary position of the defendants is that Ms. Waller has not sustained a threshold injury, and therefore there can be no general damages award. Alternatively, if I find that Ms. Waller’s injuries meet the threshold, the defendants submit that an appropriate range of general damages is between $40,000 and $80,000.

[82] Since the 2008 decision of Rizzi v. Marvos, 2008 ONCA 172, 236 O.A.C. 4, from the Court of Appeal for Ontario, the low end of general damages awards in chronic pain cases appears to have increased beyond the range referenced in that decision of $55,000– $120,000: see Akeelah v. Clow, 2018 ONSC 3410, 85 C.C.L.I. (5th) 111 ($100,000); Legree v. Origlieri, 2021 ONSC 7650 ($100,000); Solanki v. Reilly, 2021 ONSC 6694, 18 C.C.L.I. (6th) 99 ($110,000); and Pisani v. McDaniel, 2022 ONSC 224 ($80,000).

[83] Ms. Waller’s life was impacted significantly by the accident. She had been an active employee, mother, wife, and friend. While she still tries her best and continues to participate to the extent possible in family events and daily activities, every facet of her life has been impacted by the effects of the accident. When I consider her ongoing symptoms and the general damages awards in similar cases, I assess Ms. Waller’s general damages at $100,000.

PAST INCOME LOSS

[84] At the time of the accident, Ms. Waller was employed with the Hastings and Prince Edward District Board of Education as a child and youth counsellor. While she was considered a full-time employee and qualified for a pension, she would work throughout the school year, earning on average between $47,000–$49,000 per annum in employment income, and then would collect employment insurance, of approximately $3,000–$3,500, during the summer months.

[85] The accident occurred on a Wednesday. Ms. Waller returned to work on the Monday following the accident. Her evidence is that she struggled due to her injuries. She took sick time and vacation days and, ultimately, stopped work altogether in October of 2016. According to Ms. Waller, this was unusual as she seldom missed work prior to the accident.

[86] There does not seem to be a significant dispute about whether Ms. Waller could have continued to work beyond October 2016. Mr. Rosic’s psycho-vocational assessment concludes that “Ms. Waller is highly unlikely able to sustain and manage any kind of ongoing employment at this time.” Further, Mr. Rosic opines that Ms. Waller’s age and injuries put her at a competitive disadvantage, as the employment opportunities for which she qualifies are reduced.

[87] The real issue to determine is when would Ms. Waller have retired but for the accident.

[88] The defendants’ primary position is that it is open to the court to find that Ms. Waller would have stopped working, regardless of the accident, on or about January 4, 2020, when Ms. Waller had a slip and fall incident resulting in a mild concussion. Accordingly, the defendants take the position that I should assess the plaintiff’s past income loss only to that date. The evidence of Matthew Krofchick, an expert witness called by the plaintiff qualified to give opinion evidence on damage quantification, is that Ms. Waller’s net past income loss up to January 4, 2020 is $18,517.

[89] If I do not accept the defendants’ submission about an earlier retirement date but for the accident, the parties agree that Ms. Waller’s net past income loss, to the date of trial, is $38,371 as calculated by Mr. Krofchick.

Past Income Loss – Analysis / Conclusion

[90] I reject the defence argument that the January 4, 2020 fall was a significant event that would have prematurely ended Ms. Waller’s career. Within a few weeks of the fall, Ms. Waller was reporting that she had felt fine. She was diagnosed with having sustained a mild concussion.

[91] I accept the evidence of Mr. Krofchick and, as agreed upon by counsel, find that Ms. Waller’s net past loss of income up to the date of the trial is $38,371.

FUTURE INCOME LOSS

[92] Ms. Waller testified at trial that, prior to the accident, she had not turned her mind to retirement. While she would be entitled to an unreduced pension at the age of 54, Ms. Waller gave evidence that she assumed she would have worked to age 60–65 because she liked her job and, perhaps more significantly, had financial obligations.

[93] Mr. Waller works as a manager of a retail store. He brings home $3,200 per month net. Ms. Waller currently receives $1,500 per month from CPPD, $500 of which is used to maintain her benefits at work.

[94] The financial picture of the Waller family was less than ideal even prior to the accident. With respect to expenses, the family lives in a home that they purchased from Mr. Waller’s parents. Mr. Waller’s father holds a mortgage on the property that, prior to the accident, was being paid down in regular installments. Since Ms. Waller stopped working, they have stopped making mortgage payments. On two occasions, one prior to the accident, the Waller family has had to take out consolidated loans in order to pay off credit card debt. Their current consolidated loan payment is $750 biweekly. Further, Mr. and Ms. Waller have minimal savings. Ms. Waller has a small RRSP of approximately $4,000 but is also enrolled in a pension plan through her employment. Mr. Waller, who has no separate pension, has RRSPs in the amount of $60,000.

[95] The youngest child in the Waller family, Sam, was born in May of 2015 and is 17 years old. Sam is a grade 11 student at Ernestown High School and is the only dependant child remaining in the home. Sam intends to go to post-secondary school in the fall of 2023. According to Mr. and Ms. Waller, prior to the accident they had intended to support Sam financially as he continued with his education.

[96] Ms. Waller was questioned about the stress associated with her position. While there are two documented instances where Ms. Waller complained to her family physician about stress associated with her job, at trial Ms. Waller maintained that she loved her job. This sentiment was echoed by Ms. Waller’s former colleague, Wendy MacFarlane, who testified that Ms. Waller was a wonderful teammate because she loved what she did. Ms. Waller routinely took on extra projects related to her employment that were voluntary. For instance, Ms. Waller was on her way to a meeting related to “Prom Project” at the time the accident occurred. Prom Project is an initiative where students who are unable to afford formal wear are provided with dresses and suits for their prom. Ms. Waller was also involved with organizing a leadership camp for girls.

Future Income Loss - Analysis

[97] In order to establish a claim for income loss into the future, a plaintiff must establish that there is a reasonable possibility that the future loss will occur: Schrump et al. v. Koot et al. (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.). The future possibilities must be grounded in reality and not pure fiction, but the burden of proof is less onerous to achieve than proving a claim on a balance of probabilities.

[98] I find Ms. Waller’s evidence at trial, that she did not have a firm plan as to when she would retire, to be reasonable and credible. I accept and find credible that, although it could be stressful at times, Ms. Waller loved her job. I find that, even prior to the accident, the Waller family struggled financially to the point that they needed both salaries. I find that it is a reasonable possibility that, but for the accident, Ms. Waller would have had to continue working beyond the date that she was entitled to her unreduced pension to maximize the family income.

[99] What is the date that Ms. Waller would have retired but for the accident? It is impossible to predict with precision when Ms. Waller would have retired if the accident had never occurred. Based on the evidence at trial, I reject the defence submission that Ms. Waller would have retired effective September 30, 2024 when she was first eligible for her unreduced pension. I further reject the plaintiff’s submission that Ms. Waller would have continued working until age 65, 11 years after she would have been entitled to her unreduced pension. Ms. Waller had a lengthy commute to work and experienced workplace stress from time to time that I find could have reasonably caused her to retire before the age of 65.

[100] Without the benefit of a crystal ball, I find that it is a reasonable possibility that, but for the accident, Ms. Waller would have had to continue working until Sam finished a four-year degree at a post-secondary institution. I therefore find that Ms. Waller is entitled to a future income loss award premised on the notion that, but for the accident, she would have continued working in the same capacity until the end of the 2026–2027 academic year, when Sam would have been finishing his fourth year of post-secondary school.

[101] Counsel for the plaintiff and the defendants relied on the expertise of Mr. Krofchick to perform various calculations for Ms. Waller’s future income loss, although none specifically contemplated a June 2027 retirement date but for the accident. With the assistance of Mr. Krofchick, I have no doubt that counsel can reach an agreement to the present value of the future income loss award that considers any collateral benefits to which Ms. Waller is entitled, and to which the defendants would be entitled to offset / to an assignment. This may include, but is not limited to, accident benefits, CPP disability benefits, and any long-term disability benefits that are available to Ms. Waller.

[102] Counsel should advise me, through my judicial assistant Tia Phillips, of the agreement reached with respect to future income loss by emailing Ms. Phillips at Tia.Phillips@ontario.ca.

[103] If the parties are unable to reach an agreement on a net future income loss award, I will accept written submissions via email to Ms. Phillips (a maximum of 5 pages) in accordance with the following schedule:

a. The plaintiff shall serve and file submissions on or before June 30, 2022; and

b. The defendants shall serve and file responding submissions on or before July 15, 2022.

HOUSEKEEPING / HOME MAINTENANCE

Position of the Parties

[104] Ms. Waller alleges that she requires significant housekeeping and home maintenance assistance because of her accident-related impairments. Counsel for Ms. Waller takes the position that it is appropriate to calculate Ms. Waller’s housekeeping and home maintenance needs to age 81 and submits, when present valued, the total amounts to $270,951.

[105] The defendants submit that, while it may be appropriate to award Ms. Waller damages for housekeeping and home maintenance assistance, the award should be modest given her pre-accident issues and her inevitable need for assistance as she ages. The defendants propose that the appropriate award is $25,000 for a loss of housekeeping capacity.

Evidence at Trial

[106] The Waller family resides in a five-bedroom bungalow with a walk-out basement in a residential neighbourhood with a large yard. Ms. Waller’s evidence was that, prior to the accident, her husband was responsible for cooking, and she cleaned up after meals. Ms. Waller was responsible for lawncare and gardening, and Mr. Waller did the snow removal. The interior chores, such as vacuuming, cleaning the bathrooms and kitchens, dusting and laundry, were the primary responsibility of Ms. Waller prior to the accident. When living at home, the children were assigned chores from time to time. The Waller family never hired a housekeeper prior to the accident.

[107] Since the accident, Ms. Waller testified that she is no longer able to clean up after meals to any significant degree. She can no longer cut the lawn at all or garden anywhere close to the same level she did prior to the accident. In fact, many of the garden beds around the property were removed as Ms. Waller could not keep them up. Around the home, Ms. Waller will try to do light dusting or tidying up. She will put on a load of laundry after someone carries the basket of clothing to the laundry room.

[108] Although she can no longer do her pre-accident chores, the Waller family does not have the financial resources to pay for housekeeping assistance. On two occasions since the accident, Ms. Waller’s mother hired a housekeeper to provide assistance to the family as a gift.

[109] Andrea Dreifelds was called by the plaintiff to give opinion evidence in the field of occupational therapy regarding Ms. Waller’s housekeeping and home maintenance needs, occupational therapy related interventions, and assistive devices. The parties agreed with respect to Ms. Dreifelds’ ability to give opinion evidence as proposed and that both reports authored by Ms. Dreifelds, with some redactions, be entered into evidence at trial.

[110] Ms. Dreifelds conducted in-home assessments at Ms. Waller’s home in Amherstview on August 12, 2019 and June 10, 2021. As a result of her assessment, Ms. Dreifelds identified various impairments and concluded that Ms. Waller required the following assistance:

a. 2.5 hours of weekly housekeeping assistance, including 30 minutes for laundry tasks;

b. 2 hours of weekly assistance for lawncare (for 6 months of the year);

c. 420 minutes of assistance with gardens each year;

d. 540 minutes of assistance for indoor seasonal tasks;

[111] Ms. Dreifelds’ assessment appropriately recognizes that Mr. Waller also has household responsibilities. The conclusions as to Ms. Waller’s housekeeping and home maintenance needs considers only Ms. Waller’s contribution to allow her to be an equal contributor to the household.

[112] The recommendations contained in Ms. Dreifelds’ report were endorsed by Dr. Delaney in her August 4, 2021 report as “reasonable and medically justifiable based on Ms. Waller’s medical conditions arising from the motor vehicle crash of October 28, 2015”.

[113] While Ms. Dreifelds provided the cost of housekeeping and home maintenance services required to replace Ms. Waller’s loss, Mr. Krofchick was tasked with providing a present value calculation of the total of the housekeeping and home maintenance claim. Mr. Krofchick arbitrarily chose 81 years of age as an end date for these services, which is 5 years prior to the average female’s life expectancy.

[114] The defendants did not retain their own expert with respect to Ms. Waller’s housekeeping and home maintenance claims, the theory of the defence case primarily being that Ms. Waller’s ongoing impairments relate to factors other than the accident. Similarly, the defendants did not retain an expert to provide present value calculations.

Analysis

Weekly Housekeeping Assistance

[115] Ms. Dreifelds opines that Ms. Waller requires 2.5 hours of weekly housekeeping assistance. In reaching this conclusion, in her report dated July 13, 2021, she states:

Ms. Waller continues to experience constant right neck and shoulder pain, left shoulder pain, low back and bilateral hip pain that is exacerbated with activity, tinnitus, sleep disturbances, debilitating fatigue, decreased activity tolerance, driving difficulties, and mood/cognitive changes, including difficulties with memory, attention, concentration, problem-solving, and distractability. She is independent with self-care tasks with modifications and at a reduced rate. She continues to experience difficulties managing housekeeping and home maintenance tasks due to pain and fatigue. She has experienced a significant reduction in her ability to engage in leisure and social pursuits.

[116] I have found that as a result of the accident Ms. Waller developed chronic widespread pain. While I accept that Ms. Waller can complete some housekeeping tasks with difficulty, I also accept the evidence of Ms. Dreifelds that offloading certain housekeeping tasks would allow for improved engagement in more meaningful tasks and relationships.

[117] Ms. Dreifelds provides several rates for local cleaning companies and concludes the average cost of providing 2.5 hours of weekly housekeeping assistance would be $143.75.

[118] Dan Fyke, an occupational therapist and life care planner, was called by the plaintiff and qualified to give opinion evidence regarding future care and medical and rehabilitation costing. Referring to Ms. Dreifelds’ report, Mr. Fyke concludes that, with tax, the annual cost of housekeeping assistance required by Ms. Waller is $8,446.36.

[119] I find that it is reasonably possible that Ms. Waller will require 2.5 hours of housekeeping assistance as set out by Ms. Dreifelds due to accident-related impairments. I further find that the annual cost of $8,446.36 is reasonable.

Lawncare and Gardening

[120] Ms. Waller was responsible for mowing the lawn before the accident. She has not returned to that activity. Ms. Dreifelds concludes that Ms. Waller requires weekly lawncare assistance for 6 months of the year. Ms. Dreifelds assesses the cost of that assistance at $48.33–$55.00 plus HST per week, which totals $1,401.12 per year.

[121] Ms. Dreifelds further concludes that Ms. Waller would benefit from assistance gardening once a year for the heavier tasks associated with preparing the garden beds. Based on Ms. Waller’s needs, the cost is $262.50 plus HST for a total of $292.62 per year.

[122] I accept the evidence of Mr. and Ms. Waller that lawncare and gardening was the responsibility of Ms. Waller prior to the accident. I further find that Ms. Waller’s accident-related impairments do not allow her to continue with these tasks. I accept Ms. Dreifelds’ evidence that the combined annual cost of lawncare and gardening totals $1,697.74.

Seasonal Care Tasks

[123] Prior to the accident, Ms. Waller was responsible for seasonal indoor chores such as spring cleaning, decluttering, cleaning the windows, organizing, putting away the seasonal clothes, and decorating. Since the accident, these chores simply are not being completed. Ms. Dreifelds concludes that the annual cost of seasonal care tasks is $1,169.55.

[124] I accept that Ms. Waller has been unable to perform heavier tasks associated with deep cleaning, periodic organizing, and decorating. I accept that she requires assistance with the same as a result of her accident-related impairments. I find that the annual costs for seasonal care tasks of $1,169.55 is reasonable.

Termination Date and Contingency Reduction

[125] Although I accept that Ms. Waller is entitled to be compensated for housekeeping and home maintenance expenses in the amounts claimed, I am not persuaded that 81 years of age is the appropriate end date for these services. The age 81 was chosen arbitrarily by Mr. Krofchick and not based on an assumption provided by counsel or based on the evidence.

[126] I further find that it is appropriate to apply a contingency factor to account for a scenario where, but for the accident, Ms. Waller would have had to reduce or altogether stop her housekeeping efforts for unrelated factors.

[127] I find that, given Ms. Waller’s pre-existing knee issue and other medical complaints, age 75 is a more appropriate age to terminate her housekeeping claim. It is also more consistent with the existing jurisprudence. Further, I find that it is appropriate to reduce Ms. Waller’s housekeeping award by 15 percent to account for the fact that, but for the accident, she may have had to reduce or cease her housekeeping responsibilities due to other issues.

Conclusion – Housekeeping and Home Maintenance Award

[128] I find that Ms. Waller is entitled to annual housekeeping and home maintenance expenses as follows:

a. Housekeeping: $8,446.36

b. Lawncare and gardening: $1,697.74

c. Seasonal care tasks: $1,169.55

TOTAL: $11,313.65

[129] Utilizing the schedule provided by Mr. Krofchick, I find that the present value of Ms. Waller’s housekeeping expenses, to age 75, is $236,817.32 (using a present value factor of 20.932).

[130] After application of a 15 percent negative contingency, I find that Ms. Waller is entitled to housekeeping and home maintenance expenses totalling $201,294.72.

FUTURE CARE COSTS

Position of the Parties

[131] Ms. Waller relies primarily on the reports of Ms. Dreifelds, Mr. Fyke, and the present value calculations completed by Mr. Krofchick to support her claim for future care costs. Specifically, Ms. Waller seeks damages totaling $234,742 (present valued) for the costs of her future therapies and care.

[132] The defendants submit that the future care costs being claimed is a “wish list” and questions how Ms. Waller can seek damages associated with medications and treatment that simply are not helping. The defendants have not retained their own expert to comment on the future care costs claimed, aside from Dr. Freedman who opines that Ms. Waller does not require any treatment associated with a traumatic brain injury, since she never sustained one in the accident.

Evidence at Trial

[133] Ms. Dreifelds and Mr. Fyke testified about Ms. Waller’s needs for future care and the costs associated with that care. Specifically, it is alleged that Ms. Waller requires the following care arising from her accident-related impairments:

a. Occupational therapy: 24, 2-hour sessions, including planning and travel time, and a re-assessment to determine future needs ($10,224);

b. Life transition occupational therapy: $1,584 every 5–7 years;

c. Hydrotherapy: 16, 1.5 hour sessions, including travel time ($4,416);

d. Pool fees, including annual membership at pool and travel costs totalling $2,754.90 annually;

e. Physiotherapy: 7 sessions per year totalling $1,004.64 annually, and 14 periodic treatments for flare-ups, totalling $2,009.28 every 3–5 years;

f. Psychology: 19 sessions of psychotherapy totalling $3,319.68, further 10 sessions for stressful periods totalling $1,760.20 every 3–5 years;

g. Driving desensitization: total cost $2,005.16, including travel;

h. Case management: 3, 1.5 hour meetings plus travel and documentation, totalling $1,620 annually;

i. Travel: Mileage based on $0.52 per km to the following locations:

i. Family physician’s office 4 times per year for an annual cost of $6.24;

ii. Hotel Dieu Hospital for pain clinic 14 times, including parking, total cost $309.68;

j. Medication, totalling $2,227.26 each year, including:

i. Zolpidem nightly sleeping pills, $603.47 annually;

ii. Cymbalta, nerve pain and anxiety/depression, $608.33 annually;

iii. Aventyl (Nortryptyline), nerve pain, anxiety, depression, $227.51 annually;

iv. Melatonin, sleep aide, $118.86 annually;

v. CBD Oil, $655.57 annually; and

vi. Naproxen, anti inflammatory, $13.52 annually.

k. Assistive devices, including:

i. 2, 18” grab bars, including installation totalling $239.42;

ii. Handheld shower, $36.50 replaced every 5–7 years;

iii. Anti-fatigue mat, $196.04 replaced every 3 years;

iv. Therapeutic pillow, $152.55 replaced every 3 years;

v. Therapeutic sleep surface, $2,542.50 replaced every 10 years;

vi. Treadmill, $1,600 replaced every 10 years;

vii. TENS machine, $65, replaced every 3 years;

viii. Hot packs, $50 replaced every 2 years;

ix. Yoga mat, $60 plus HST, replaced every 3 years;

x. White noise/wireless ear buds, $130 plus HST replaced every 2 years.

[134] Ms. Waller has already participated in many of the proposed therapies to different degrees and with varying levels of success. Due to the COVID-19 pandemic, many of Ms. Waller’s efforts were suspended while facilities were shut down.

[135] It should be noted that the fees proposed for various services by Ms. Dreifelds and Mr. Fyke were not challenged by the defendants, rather it was whether the proposed treatments were reasonably required due to accident-related impairments.

Analysis

[136] Ms. Waller’s treating healthcare providers and the experts in this trial have a guarded prognosis for her full future recovery. To date, therapies have provided modest relief for Ms. Waller’s symptoms. However, I am not convinced this means that Ms. Waller requires no ongoing care and treatment. I find that certain therapies and interventions as proposed are reasonable and may prevent Ms. Waller’s condition from worsening in the future. Further, given the extent of Ms. Waller’s pain and discomfort, even modest relief is worth pursuing.

Occupational Therapy

[137] Ms. Waller has not had the opportunity to engage with an occupational therapist significantly since the accident. I accept that, due to her chronic pain, Ms. Waller needs education with respect to pacing strategies to avoid burning out. I accept and find reasonable Ms. Dreifelds’ recommendation of 24, 2-hour sessions and one reassessment and the estimated expense for the same. I find that Ms. Waller is entitled to $10,224 to fund these sessions and the reassessment.

Life Transition Occupational Therapy

[138] The notion of requiring a block of occupational therapy sessions once every 3–5 years appears to be a recommendation of Mr. Fyke. I appreciate that Ms. Waller may require some check-ins over time and particularly in response to stressful life events or health challenges. I am unable, however, to endorse sessions in such frequency. It is simply too speculative. I do find it appropriate to allot Ms. Waller two blocks of future occupational therapy sessions to assist with future life transitions. I find that Ms. Waller is therefore entitled to $3,033.40 ($1,516.70 x 2) for this treatment.

Hydrotherapy

[139] Several of Ms. Waller’s treating healthcare providers have encouraged her to engage in increased cardio activity. Dr. Delaney and Dr. Gow also support Ms. Waller’s participation in a supported exercise program. Swimming was specifically endorsed by Dr. Gow.

[140] I accept and find reasonable the opinion that Ms. Waller would benefit from hydrotherapy. I further accept and find reasonable the one-time expense of $4,416 for the same.

Pool Fees, Including Travel

[141] I accept that an annual pool membership will be required if Ms. Waller is to maintain the regime independently after she completes hydrotherapy. I accept that an annual pool membership can reasonably cost $508.50, as identified by Ms. Dreifelds.

[142] I struggle with Ms. Waller’s claim for mileage associated with travelling to and from the pool. Ms. Waller is seeking $2,304.90 each year as a travel expense to drive from her home in Amherstview to Artillery Park Pool in Kingston. There are several other closer facilities to Ms. Waller that do not appear to have been considered that would significantly reduce the travel expense for Ms. Waller. I am prepared to allot something nominal to Ms. Waller’s travel costs to attend for ongoing hydrotherapy. I find that $250 per annum is reasonable for the same.

[143] In total, I find that Ms. Waller is entitled to $758.50 per annum for an ongoing pool membership and associated travel.

Physiotherapy

[144] Ms. Waller has now had several rounds of physiotherapy. After her last round, she was discharged to a home exercise program which she continues to follow. I do not accept that Ms. Waller will continue to require ongoing physiotherapy for life. However, I do find that periodic check-ins would be appropriate to review Ms. Waller’s home exercise program. I find that intermittent physiotherapy blocks of 7 sessions every 3–5 years is reasonable. I therefore find that Ms. Waller is entitled to $1,004.64 every 3–5 years.

Psychology

[145] Before the COVID-19 pandemic, Ms. Waller started psychotherapy with Paula Bell which included cognitive behavioural therapy. The pandemic unfortunately derailed Ms. Waller’s therapy. Ongoing psychotherapy is endorsed by Dr. Gow. Given Ms. Waller’s accident-related diagnoses of somatic symptom disorder and depression, I find that it is appropriate for Ms. Waller to complete 19 sessions of psychotherapy totalling $3,319.68, and further 10 sessions for stressful periods totalling $1,760.20 every 3–5 years.

Driving Desensitization

[146] At trial, Ms. Waller testified that she experienced driving related anxiety. While she is able to drive a vehicle independently for small errands, she gets anxious at t-intersections that are similar to the one where the accident occurred. Mr. Rosic questioned a possible driving phobia diagnosis based on Ms. Waller’s test results. Dr. Gow recommends that Ms. Waller participate in a driving desensitization program to assist her driving related anxiety.

[147] I accept and find reasonable the recommendation that Ms. Waller participate in a driving desensitization program at a one-time expense of $2,045.

Case Management

[148] There is no question that once this matter was referred to Joy Beazley for case management there was significant progress made to the benefit of Ms. Waller. Ms. Beazley used her expertise to arrange for more appropriate physiotherapy focused on active treatment and assisted Ms. Waller in making a successful CPP disability benefit application. Ms. Beazley was instrumental in setting up Ms. Waller with the right therapists.

[149] I do not accept, however, that Ms. Waller requires ongoing, annual case management for life. Ms. Beazley has established a good program for Ms. Waller that, with proper funding, should serve her well. I do accept that there may be times when Ms. Waller requires assistance finding new treatment providers, or addressing new issues, in the future and find that Ms. Beazley would be of assistance to Ms. Waller in that respect. I find that it is reasonable to allow a total of 6, 1.5-hour sessions with Ms. Beazley in the future, which including travel and documentation time, I find totals $3,240.

Travel

[150] Ms. Waller seeks mileage and parking costs related to attending her family physician and Hotel Dieu Hospital for the pain clinic.

[151] While it is tempting to scrutinize whether Ms. Waller would have attended with her family physician 4 times annually regardless of the accident, the amount sought (i.e. $6.24 per annum) is reasonable and I have no hesitation in ordering the same. Similarly, I find the one-time cost of $309.68 to travel to the hospital for the OHIP funding chronic pain clinic to be reasonable and allow the same.

Medication

[152] When present valued, Ms. Waller’s claim for medication totals $62,994 with the assumption that she will incur these expenses until age 81.

[153] Ms. Waller has continued to receive health benefits which are available to her through her employment. The availability of prescription coverage was not considered when calculating Ms. Waller’s cost of prescription medication.

[154] Similarly, the future care costs report and Mr. Krofchick’s present value calculations fail to account for the fact that prescription medications, after the age of 65, would be covered by the Ontario Drug Benefit Program under O. Reg. 201/96 under the Ontario Drug Benefit Act, R.S.O. 1990, c. O.10: El-Khodr v. Lackie, 2017 ONCA 716, 139 O.R. (3d) 659, at para. 22.

[155] I do accept that Ms. Waller requires the mediations as claimed and that she will require them into the future to help with her pain, sleep issues, and depression. Considering Ms. Waller’s continuation on her benefits plan, which I am advised will continue until 2024, and the coverage under the Ontario Drug Benefit Program that will commence when Ms. Waller turns 65, I find a more appropriate figure for medications to be $25,000.

Assistive Devices

[156] I accept and find reasonable that Ms. Waller requires some assistive devices due to her accident-related impairments, including:

a. 2, 18” grab bars, including installation totalling $127.50, not $239.42 as proposed by Mr. Fyke due to the potential have to replace them after a change in residence. There was no evidence at trial that Ms. Waller would be moving.

b. Handheld shower at $36.50; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 5–7 years.

c. Anti-fatigue mat at $196.04; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 3 years.

d. Therapeutic pillow at $152.55; however, I do not find it reasonable to allow for replacement every 3 years. Ms. Waller would undoubtedly be required to replace her pillows regardless of the accident. I have no evidence of the difference in cost between a regular pillow and a therapeutic pillow.

e. Therapeutic sleep surface at $2,542.50; however, I do not find it reasonable to allow for replacement every 10 years. Ms. Waller would likely be required to replace her mattress regardless of the accident. I have no evidence of the difference in cost between a regular mattress and a therapeutic mattress.

f. TENS machine at $65; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 3 years.

g. Hot packs at $50; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 2 years.

h. Yoga mat at $60 plus HST; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 3 years. I also note that Ms. Waller already has a yoga mat, so this award reflects the need for one replacement mat over time.

i. White noise/wireless ear buds at $130 plus HST replaced every 2 years; however, I do not find it reasonable, nor is there an evidentiary foundation, to allow for replacement of the same every 2 years.

[157] Ms. Waller has been encouraged to engage in cardio exercise. I have allowed hydrotherapy and ongoing pool therapy to address this objective. I do not find the claim for a treadmill to be reasonable under the circumstances and I reject this claim.

[158] In total, I award Ms. Waller $3,384.79 for assistive devices.

Conclusion – Future Care Costs Award

[159] I find that Ms. Waller is entitled to future care costs as follows:

a. Occupational therapy: $10,224

b. Life transition occupational therapy: $3,033.40

c. Hydrotherapy: $4,416

d. Pool fees, including travel: $758.50 per annum

e. Physiotherapy: $1,004.64 every 3–5 years

f. Psychology: $3,319.68

g. Psychology, intermittent: $1,760.20 every 3–5 years

h. Driving desensitization: $2,045

i. Case management: $3,240

j. Travel, family physician: $6.24 per annum;

k. Travel, pain clinic: $309.68

l. Medications: $25,000

m. Assistive devices: $3,384.79

[160] As with future income loss, while Mr. Krofchick did provide tools to assist me to calculate present values of future costs, the findings I have made do not match the scenarios provided for in those schedules to allow me to reliably calculate the present value of Ms. Waller’s future care costs. Counsel shall endeavour to reach an agreement as to the value of the future care costs award and shall communicate the same via email to Ms. Phillips. I will accept submissions in accordance with the schedule set out above for future income loss if counsel are unable to reach an agreement regarding the same.

OUT-OF-POCKET EXPENSES

[161] Ms. Waller gave evidence that she has paid out-of-pocket in the amount of $1,700 to have her family physician complete various forms related to the injuries she sustained in the accident. I find that Ms. Waller is entitled to be compensated for these out-of-pocket expenses by the defendants.

[162] Further, Ms. Waller has incurred expenses in the amount of $2,000 related to Ms. Beazley’s case management services. I find that Ms. Beazley’s services to date have been integral to lining up the right treatment providers and assisting Ms. Waller in accessing CPP disability benefits. I find that Ms. Waller is entitled to be compensated for this expense by the defendants.

[163] Accordingly, I assess Ms. Waller’s out-of-pocket expenses at $3,700.

INVESTMENT MANAGEMENT FEE

[164] Ms. Waller submits that she requires an investment manager to manage the capital of any significant award for future losses in this litigation. Financial management would assist Ms. Waller by forecasting her future financial needs and providing budgeting and financial guidance for the future.

[165] Mr. Krofchick expresses the opinion that an appropriate investment management fee would be 5 percent of the total future award.

[166] Ms. Waller and her husband have had to obtain consolidated loans twice during their relationship. I find that they would benefit significantly from investment management. I therefore find that Ms. Waller is entitled to an award for investment management fees at 5 percent of the total future award.

CONCLUSION

[167] To summarize, I find that Ms. Waller sustained a threshold injury in the October 28, 2015 accident.

[168] I further find that Ms. Waller is entitled to damages as follows:

a. General damages (gross): $100,000

b. Past income loss (net): $38,371

c. Future income loss: See analysis above

d. Future care costs: See analysis above

e. Housekeeping / home maintenance: $201,294.72

f. Out-of-pocket expenses: $3,700

g. Investment management fee: 5% of total future award

PREJUDGMENT INTEREST AND COSTS

[169] The issues of prejudgment interest and costs are reserved. If the parties cannot come to an agreement on these issues by July 15, 2022, counsel shall serve and file written submissions of no more than 5 pages by sending them to Ms. Phillips in accordance with the following schedule:

a. Ms. Waller may serve and file submissions on or before August 5, 2022;

b. The defendants may serve and file submissions on or before August 26, 2022;

c. Ms. Waller may serve and file any reply submissions on or before September 9, 2022.

Muszynski J.

Released: June 10, 2022

CIATION: WALLER v BROWN, 2022 ONSC 3510

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JAQUELINE WALLER

– and –

RYAN BROWN and KAREN BROWN

REASONS FOR JUDGMENT

Threshold ruling and damage assessment

Justice K. Muszynski

Released: June 10, 2022