Braks v. Dundeal Canada (GP) Inc., 2022 ONSC 3978

COURT FILE NO.: CV-14-504561

DATE: 20220704

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALISON BRAKS Plaintiff

– and –

DUNDEAL CANADA (GP) INC., DUNDEE REALTY MANAGEMENT CORP. and DUNDEE REALTY MANAGEMENT INC Defendants

Alan Preyra and Joel P. McCoy, for the Plaintiff

Rovena Hajderi and Nabil Mahmood, for the Defendants

HEARD: September 28, 29, October 1, 4, 5, 6, 7, 8, 12,13, 14, 15, 18, 19, 20, 21, 22, 25, 26, 29, November 1, 2021

A. P. ramsay j.

[1] The plaintiff Alison Braks (“the plaintiff”) brings this action against the defendants for damages allegedly sustained as a result of the defendants’ breach of their duty of care owed to her under the Occupiers' Liability Act, R.S.O. 1990, c. O.2.

[2] The trial commenced with a jury, which was discharged as a result of the defendants’ closing address to the jury, and those reasons are issued separately.

A. BACKGROUND

[3] On the afternoon of May 25, 2012, the plaintiff and her then boyfriend, now husband, were to meet for lunch at the office tower where she worked. At the time, the plaintiff’s employer, ScotiaMcLeod, had a branch office on the tenth floor of the tower located at 55 King Street West in Kitchener. They had decided on the second floor where people normally gathered to eat (“the premises”). The defendants are alleged to have managed the premises and, as a result, are alleged to have been occupiers of the premises at the time of the incident. The plaintiff took the elevator to the second floor and alleges that when she stepped off the elevator, she slipped on a greasy substance, landed hard (“the fall”), and sustained serious injuries.

[4] The plaintiff alleges that she suffered a head injury, namely a traumatic brain injury or concussion, as well as multiple soft tissue injuries to various parts of her body including her neck in the fall and, claims that she continues to suffer from headaches, including migraines, and neck pain, as well as a host of other complaints.

[5] The plaintiff brings this action against the defendants for general damages, loss of income, as well as medical, out-of-pocket and other expenses. Although the statement of claim does not specifically seek damages for a loss of housekeeping and handyman capacity, and no motion was brought to amend the statement of claim at any time, even at the trial, the plaintiff seeks damages for loss of housekeeping and handyman capacity.

[6] The defendants deny both liability and damages. The defendants did not admit in their statement of defence that they were occupiers of the premises but called no evidence to dispute that they were occupiers. The defendants maintain that the plaintiff did not report hitting her head in the immediate aftermath of the fall to her doctors and therefore did not suffer a head injury. They argue that if the plaintiff sustained any injuries, which they have denied, those injuries have long resolved, and any ongoing complaints are unrelated to the fall.

B. ISSUES

[7] The following issue are raised in this action:

I. Liability

II. Causation

III. Damages

i. General damages

ii. Income Loss/Past and Future

iii. Contingency

iv. Miscellaneous Special Damages – Medical/Rehabilitation & Other Expense

v. Loss of housekeeping and handyman capacity

vi. Subrogation

C. EVIDENCE AT TRIAL

I. LIABILITY

Evidence of Ms. Braks

[8] There is a bank of four elevators, two internal to the building and two external to the building. The elevator that she took to the second floor had a glass exterior and one could see through the glass to the surrounding area as the elevator descended. She used the elevators every day since she started her job. The floor outside the elevator was granite and there were runners placed throughout. The mat was about one and a half feet from the elevator door. She often ate lunch on the second floor with her boyfriend or would go there with colleagues.

[9] It was a bright and sunny day. Shines into the hallway which made the floor shiny. When the elevator door opens, sun pours into the space She was the only person on the elevator.

[10] She had been carrying her lunch, a tote bag and a purse and was wearing three and a half inches platform shoes with rubber soles. Other women in the building wore heels and business heels. She had 20/20 vision. She was looking straight ahead into the hallway as she stepped off the elevator. As she stepped out of the elevator, her foot slipped really fast on the slippery stone, her body “super manned” towards the right, her arms went above her head, and she landed hard on her right side, hitting her head on her arm. She was feeling pain and felt ill. She did not know what had caused her to slip and reached out with her hand to touch the floor and touched a greasy substance. It was from side to side of the elevator, and it was clear.

[11] Some women who worked in the building came to help her up, and she waited for her boyfriend to arrive. When he arrived, he checked for broken bones. She went back upstairs and reported the incident to her supervisor and to the financial advisors she worked with. Ss. She declined the offer of an ambulance.. She was told to go home, and went back downstairs where saw Dean Farrugia (“Farrugia”) and the cleaner, Brian Mandeville. She told Farrugia what happened. Aside from Farrugia, she has no recollection of speaking to anyone else, and when asked if she spoke to Barbara Haig (“Haig”), indicated that it was unlikely that that happened. She t has no recollection of being approached by Haig at any point in time. She reiterated that she has no recollection of speaking with Haig at any point in time about the incident before she went to her doctor that day. .

Evidence of Nader Babbili - husband

[12] Babbili arrived on the scene shortly after the fall. The plaintiff was sitting down holding her arm. He knew something was amiss and went over to speak to her. He checked her over to make sure there were no broken bones. Nothing was broken but she had some bruises. She told him that her head and neck hurt, and when he asked her if she had hit her head, she told him “Yes”. After telling her she need to let her employer know and seek some medical attention, he took a picture of the spot where she fell. The women who had assisted the plaintiff were still in the vicinity and were not speaking directly to him, but he heard them point out where she had fallen.

[13] He went and looked at the area and there was something slippery on the floor. He bent down and touched the floor which was in front of the elevator and there was a slippery, oily substance there. There was no security guard. The plaintiff went up, and a person from building management arrived 10 to 15 minutes later. The janitor mopped the area. Babbili took photos of the area. Some of photos that he took depicted the person from building management and the janitor attending to the area. The elevator has a glass door, and a lot of light comes through it; even with the door closed, sunlight shines through. The floor was “as smooth as ice” and he took the pictures to show how shiny it was; when the doors open the flood of light would be reflected onto the floor.

Evidence of Dean Justin Farrugia

[14] Farrugia, a former employee of the defendant Dundee Realty, was the building operator responsible for the life safety, mechanics, all tenants, and HVACs in the building. The office building housed law firms, insurance firms, the Workplace Safety Insurance Board, as well as ScotiaMcLeod. Women wore heels and flats to work.

[15] He found out about the incident shortly afterwards from the day porter, Brian Mandeville (“Mandeville”), now deceased. The fall occurred around the lunch hour. He found the plaintiff on the second floor. It is a common lunch area which was used daily and was first come first serve.

[16] The elevators had mirror perimeter on the doors with granite finish. There were two banks of elevators with glass on the inside and glass on the outside, and the sun would shine into the east side as one got off the elevator, which is the elevator that the plaintiff had taken. The floor outside the elevator was polished granite and looks wet and shiny. It was waxy looking and already slippery, and the substance would have made it extremely slippery. He indicated the substance was translucent and would have been difficult to see on the granite floor. Light would reflect onto the floor.

[17] He obtained an account from the plaintiff about how the incident happened. She told him she had stepped out of the elevator and slipped on the floor. She told him she had hit her head, that her ankle was twisted, and that she was not feeling so well. On cross examination Farrugia agreed that he was relying on his memory as no written statement was taken.

[18] He saw a film of substance on the floor used to clean the elevators, which the day porter was using to clean the elevators with. It was a greasy substance which was a transparent film. He touched the substance, and it was oily, “basically lubricant”. He attributed the substance being on the floor to the cleaner over spraying. He stopped Mandeville from using the cleaner on the elevator doors.

[19] He stated that the porter should have applied the cleaner to a cloth instead of spraying directly onto the elevators. He agreed that it would have been an issue seeing the substance on the ground. He testified that the cleaner should have wiped it up, put a wet floor sign up, and possibly shut the elevator down, which he believes was not done.

[20] Farrugia does not recall any Incident Report being completed but agreed that Haig was the security officer in charge of obtaining information from individuals involved in an incident. He indicated that the incident reporting protocol was instituted after this incident.

Evidence of Barbara Haig

[21] On the day of the incident, Haig was working at Dundee Realty on behalf of Intercon Security and was the main supervisor for the Dundee portfolio in and around the Kitchener area, which included the building at 55 King St. West. Her job duties included ensuring that the properties were safe and secure. She was the liaison between Intercon and Dundee. She ensured that there were no vandalism and would take any reports with respect to slips and fall and report back to Dundee.

[22] She prepared an Incident Report on the day of the fall. The fall was called in to her by Dundee at around 12:30 p.m. by the supervisor of maintenance. He did not convey when the incident occurred. It took her about 10 minutes to drive to the building. When she went upstairs, the plaintiff was sitting down, and she obtained an account from her about the incident. She spoke to the plaintiff for approximately twenty minutes. The plaintiff denied hitting her head and the only problems she complained of were her ankle, shoulder, and an upset stomach. She suggested to the plaintiff that she go to the hospital and when she declined, suggested that she should see her family doctor.

[23] She inspected the area and it looked “slightly greasy”. She made a note of it, and informed the property manager. She found the grease spot when she arrived. She stayed on scene anywhere from 10 to 20 minutes. She has no recollection of seeing Farrugia or the janitor at the scene. She completed the report at 1:05p.m after she got back.

[24] There were video cameras at the building, which was taken care of by Dundee. She had no access to the videos.

[25] The time set out by Haig is implausible. If the incident was reported to her at 12:30 p.m., and it took her ten minutes to get to the site, she would have arrived on site at 12:40 p.m., at the earliest. She then spent 10 to 20 minutes with the plaintiff, which would have taken her to 12:50 p.m. to 1:00 p.m. She claimed she inspected the substance and reported it to the management, which makes no sense in light of the plaintiff’s boyfriend being on the scene, shortly afterwards, the incident being reported by the plaintiff, and it being cleaned up shortly afterwards as depicted in photos taken by the plaintiff’s boyfriend, Babbili, which are entered into evidence.

Evidence of Kathryn Beeney

[26] The evidence of Kathryn Beeney (“Beeney”), a representative on behalf of the defendants who testified at an examination for discovery on February 6, 2017, was read in at trial as part of the plaintiff’s case.

[27] She stated that she could not confirm that anyone did regular patrols of the building that day. She did not know how long the substance on the floor would have been there before the plaintiff fell. The defendants had one operations staff on the premises in May 2012, who was Farrugia.

The Law re: Occupier’s Liability

[28] In order to succeed against the defendants, the onus is on the plaintiff to prove that the defendants breached their duty of care owed to her under the Occupiers’ Liability Act.

[29] Section 1 of the Occupiers’ Liability Act, defines "occupier" to include:

(a) a person who is in physical possession of the premises, or

(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,

despite the fact that there is more than one occupier of the same premises.

[30] On the evidence before me, the defendants were occupiers of the premises. On the day of the incident their agents and/or employees (Farrugia, Mandeville, Haig) were all responsible for the conditions on the premises. In the result, the defendants had control over the condition of the premises and were responsible for cleaning or maintaining the premises.

[31] As for determining whether the defendants were negligent, s. 3 of Occupiers’ Liability Act states as follows:

3. (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

[32] The leading decision is the Supreme Court of Canada decision of Waldick v Malcolm, 1991 CanLII 71 (SCC) [Waldick]. At paras. 45 and 50, Justice Iacobucci, in reviewing the nature of the duty imposed by the Ontario Act, noted that there is a positive duty on an occupier to ensure that their premises are reasonably safe to protect others from foreseeable harm. However, it is not an absolute duty as occupiers are required only to take steps that are reasonable in all the circumstances. He commented that:

"After all, the statutory duty of occupiers is framed quite generally, as indeed it must be. That duty is to take reasonable care in the circumstances to make the premises safe. That duty does not change, but the factors which are relevant to an assessment of what constitutes reasonable care will necessarily be very specific to each fact situation – thus, the "proviso" such care as in all circumstances of the case is reasonable". [Emphasis in original.]

[33] The plaintiff must “pinpoint some act or failure on the part of the occupier that caused the plaintiff’s injury”: Nandlal v. Toronto Transit Commission, 2014 ONSC 4760 (Ont. S.C.) [Nandlal]; Whitlow v. 572008 Ontario Ltd, [1995] O.J. No. 77 (Ont. Gen. Div).

[34] The standard of care is not perfection but rather reasonableness: George v. Covent Garden Market Corporation, [2007] O.J. No. 2903 (S.C.), at para. 35; Garofalo v. Canada Safeway Ltd., [1998] O.J. No. 302 (S.C.), at para. 28 [“Garofalo”]; Nandlal, at para. 10; Waldick, at p. 472.

[35] The onus is on the plaintiff to prove on a balance of probabilities that the defendant was in breach of a positive duty of care”: Garofalo, at para. 30; Canada (Attorney General) v. Ranger, 2011 ONSC 3196, at para. 33.

[36] Central to the determination of liability of an occupier in a public place is whether the occupier had in place reasonable policies and procedures for the inspection and maintenance of the premises, and whether those policies and procedures were actually followed. In that respect I adopt the comments of Campbell J. in the case of Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711, at para. 25 [Dhaliwal]. In Dhaliwal, Campbell J. refers to authors A.M. Linden and B. Feldthusen, in their text, Canadian Tort Law, at p. 748, summarizing the principles gleaned from cases involving supermarkets, which apply equally here. He stated, at para. 25:

[T]he practical effect of these many decisions, suggest that in order for supermarket occupiers to successfully defend themselves against such “slip and fall” claims on their premises, they must demonstrate: (1) that they have “implemented reasonable policies and procedures of maintenance” in their stores, such as “regularly scheduled sweeps and inspections”; and (2) that “such policies and procedures were actually followed on the day in question.” The occupier may be able to refute a prima facie breach of the statute by showing that there was “routine compliance” with the reasonable scheme put in place for inspection, maintenance, cleanliness and safety. In such circumstances, the trier of fact must be able to reasonably infer that the defendant’s system was in effect and observed on the date of the accident. [Citations omitted.]

[37] In this case, the plaintiff has discharged the onus in proving that on a balance of probabilities, the defendants failed to take such care as is reasonable in the circumstances of this case to ensure that persons entering on, or, brought onto the premises were reasonably safe while on the premises from foreseeable harm.

[38] The presence of the slippery substance on the granite floor was not disputed at the trial. Its presence was confirmed by the plaintiff, Farrugia and Haig. There does not appear to be any controversy over the fact that it was a clear substance.

[39] I find that Mandeville’s spraying the cleaning product directly onto the elevator doors resulted in excess cleaning product, a clear greasy substance, landing onto the granite floor at the entrance to the elevator. The granite floor was shiny and clear and would have been slippery in and of itself. The cleaning product used on the elevators was clear or translucent and would have been difficult to see. The cleaning product on the shiny granite floor increased the slipperiness of the floor, creating a hazard and the risk of foreseeable harm to all who stepped out of the elevator. The runners that were place throughout did not make it up to the doors of the elevators so that persons exiting the elevator would land on carpet or a mat. The sun shining through the glass exterior of the elevator would no doubt make it difficult for individuals stepping out of the elevator to see the product on the floor, especially if they were looking forward.

[40] I also point to the following additional facts:

• The tower housed a number of businesses as tenants and is therefore a public place.

• I can infer that at lunch time, the elevators would be used to get to the second floor eating area where people gathered to eat daily.

• The defendants have not led any evidence at trial as to what reasonable policies and procedures for the inspection and maintenance of the premises were in place at the time, and whether those policies and procedures were followed.

• It can be inferred from Farrugia’s evidence, which I found reliable and credible, that by virtue of the fact that he stopped Mandeville from using the spray on the elevators, Mandeville was still on site, and he had started to clean the elevators in close proximity to the lunch hour.

• The defendants led no evidence on when the cleaning of the elevator started nor when it ended. They have no knowledge of how long the substance was on the floor before the plaintiff fell.

• The defendants’ former employee, Farrugia set out the best practices as to what Mandeville ought to have done. The defendants led no evidence that any of these steps were taken. In the circumstances, I find that Mandeville did not apply the cleaning product to the elevator doors with a cleaning; this resulted in over spraying, and the cleaning product landing on the floor below. Mandeville did not wipe up any residue that landed on the floor. There is no evidence that wet floor signs were put up before the fall, and I find in the circumstances that this was not done. There is no evidence that the affected elevators were shut down and it can be inferred that this was not done as the plaintiff was able to descend using the elevator.

[41] I am satisfied that the plaintiff has proven on a balance of probabilities that the defendants fell below the applicable standard of care and were in breach of their positive duty imposed on them under s. 3(1) of the Occupiers’ Liability Act.

Contributory Negligence of the Plaintiff

[42] A defendant must establish on a balance of probabilities that the plaintiff failed in her own interest to exercise reasonable care for her own safety. It is a question of fact whether the plaintiff was negligent. Mere forgetfulness or want of attention, failure to look for some source of danger that is not present to the mind of the person injured is not contributory negligence: Baker v. York (Regional Municipality) (2006), 2006 CanLII 81804 (ON SC), 84 O.R. (3d) 279 (S.C.), at para. 49.

[43] The jurisprudence in Ontario has established that pedestrians are not expected to walk with their eyes focused downward immediately in front of their feet. In Assmann v. Etobicoke, 1997 CarswellOnt 3680 (S.C.), at paras. 37 and 38, affirmed (2002), 2002 CanLII 53268 (ON CA), 161 O.A.C. 138 (C.A.), Sanderson J. found that the plaintiff was looking straight ahead and did not see the trip hazard on the sidewalk. She found that the plaintiff was using reasonable care for her own safety and was not contributorily negligent. She cited, with approval, the decision of Lerner J. in Snitzer v. Becker Milk Co. (1976), 1976 CanLII 594 (ON SC), 75 D.L.R. (3d) 649 (Ont. S.C.), where he stated:

The Plaintiff was entitled to expect the sidewalk was in good condition from which he could assume that adjoining slabs of concrete were reasonably level. Pedestrians are not expected nor required to walk with their eyes focused downward immediately in front of their feet to make certain that the slabs on the sidewalk are reasonably level.

[44] I agree with the comments of Lerner J. and Sanderson J. that pedestrians are not expected nor required to keep their eyes focused downward in front of them. In the circumstances of this case however, given the colour of the granite, which was clear, and the translucent or clear substance, which was the cleaning product, the plaintiff would likely not have seen the hazard. I find that the plaintiff’s inability to see the substance on the floor would have been compounded by the sunlight reflecting off the marble floor. In fact, the defendant’s former employee, Farrugia, indicates that because of the kind of flooring (granite), the lighting from the elevator, and the translucent substance, the substance would have been difficult to see on the granite floor. I found Farrugia to be a very credible witness.

[45] Although it is pleaded that the plaintff’s footwear may have caused or contributed to the fall, at trial, this evidence was not developed, and of course, there is no evidence to show that her footwear was a factor in her falling.

[46] I find that she slipped as soon as she stepped off the elevator and her footwear did not cause or contribute to her fall.

[47] In the circumstances, I find that the plaintiff was using reasonable care for her own safety and was not contributorily negligent.

DAMAGES

General Damages

Plaintiff’s Evidence on General Damages

[48] At the time of the fall the plaintiff was a 36-year-old (44 at the time of trial) single mother with an eight-year-old daughter, employed full time at ScotiaMcLeod in an administrative position. She had started dating her boyfriend in March 2011, and they married in July 2013.

[49] The plaintiff testified that as a result of the fall, she suffered a major traumatic brain injury, whiplash, neck pain, headaches, migraines, blurred vision, nausea, face pain, jaw pain, tinnitus, depression, anger, tingling arms, muscle weakness, bubbly feeling, stupid, brain fog, face pain, eye pain, throbbing, aching neck pain, radiating pain down to her clavicle and back, teaming of her eyes.

[50] The plaintiff was cross examined on whether Dr. Lee told her she had a major brain injury and responded that is what she understood it to be. Dr. Lee testified that when he saw her, she had “significant post-concussion symptoms”. While the plaintiff had a tendency to hyperbolize, I accept that what she understood from her visit with Dr. Lee was that her concussion was “major”. On the whole, she was a reliable historian, and the gaps in her memory for details, sometimes rather minute, can be explained by the passage of time (nine years since the incident), and even her medical condition.

[51] Before the fall, her physical health was “phenomenal”, and her emotional health was “fantastic”. She had an active social life. She became a recluse and could not deal with people anymore. She became short with people. She thought her husband deserved a better wife because of her issues.

[52] On the day of the fall, she spoke to an on-call doctor, Dr. Ruth Gingell-Potts as her own doctor was away. She told her about her complaints. She had a headache that day. She initially took a few days off. The first migraine occurred on the Sunday. Initially, on cross examination, the plaintiff framed her responses in terms of what she “would have” done. While it may be a manner of speaking, to the extent that she was not nailed down either in chief or in cross, responses based on what she would have done is of little utility in assisting the court in determining the facts in this case. Those responses, therefore, to the extent that they are not responsive to the questions, have been given little weight.

[53] She saw her family doctor, Dr. Julie Maidment, about a week after the fall. She had already started to see a physiotherapist on her own. She talked to Dr. Maidment about her symptoms, including her migraine headaches, issues with her vision, dizziness feeling slow, and pain radiating to her arms. Dr. Maidment prescribed medication and referred her to another facility for physiotherapy. Dr. Maidment suspected that she had suffered a concussion and referred her to Dr. Lee. Dr. Lee later told her she had suffered a major concussion and told her to stop working. On cross examination, she agreed she did not lose consciousness, that she is aware of.

[54] She stopped physiotherapy treatment because the pain was getting worse with the treatment. Because of headaches, she was sent for a CT of her head, and had an MRI of her neck.

[55] She was hospitalized in November 2012 for neck pain and headache radiating into her shoulder and back. She was given nerve blocks.

[56] Since the fall, she has been seeing her family doctor regularly, has been referred to a number of specialists, and has had other forms of treatment from physiotherapists, massage therapist, acupuncturist, cognitive behavioral therapist, and more. Nothing has helped her pain.

[57] Scotia tried to accommodate her. She had severe headaches and migraines and they continue. Her neck hurts daily. Her symptoms were aggravated by activities at work, the computer, the phone, looking at documents, long days, and busy days. She went on sick leave for six weeks. After returning to work, her symptoms returned quickly and the harder she worked, the more symptoms came back. She would take breaks or a sick day. It was not as easy to take a sick break at Scotia as clients would be affected. When she was initially off work, her symptoms had been subsiding. She had to go back because she was afraid of losing her job. The more she worked, the more pain she experienced. Stress contributed to her pain.

[58] She was prescribed medication by her doctor. She started seeing her family doctor more often.

[59] She was emotional afterwards because she was in a lot of pain and would often cry. She received counselling through the employment assistance program offered at Scotia. One of the people she saw diagnosed her with major depression. She saw Jan Yordy for behavioural therapy, and Doug Jones for cognitive behaviour therapy. Her family doctor later prescribed Cipralex, Wellbutrin and another anti-depressant. She has had physiotherapy, massage therapy and other forms of treatment. She has a number of assistive devices to help her to do her work, relieve pain, or pillows to help her sleep.

[60] Her problems with her vision started shortly after the fall. She had 20/20 vision before. She was sent to an optometrist for her double vision and blurriness. She was told by a friend when she was moving some furniture that her eye was pulsing. She was told her symptoms, including the teaming issue, were side effects of the concussion. She was referred to Dr. Boon in 2015, who gave her some eye exercises which helped. In November 2020, she was referred to a neurologist, Dr. Elnaz Mazidi, for swelling of her optic nerves. Dr. Mazidi sent her for an MRI of her head and spinal tap and other investigations. Dr. Mazidi subsequently referred her to a number of other specialists.

[61] She got pregnant in November 2013. She had difficulty carrying out activities with her baby, or even looking down to feed him.

[62] She experienced depression afterwards and tried to manage it on her own. Her family doctor has prescribed medication for her depression.

[63] Before the fall she was a grinder. She did not have any concussions, neck pain or regular headaches before the fall, and her sleep was good.

[64] She now has a number of devices at home for self-treatment (TENS machine, massage chair, shoulder harness, neck sling, wedge pillow, and more). She takes medications and sees her specialists regularly. She has taken a number of different migraine medications. She has headaches every day, and migraines one to two times a week, sometimes more. Her neck pain affects her sleep.

[65] She is not the same person and no longer recognizes the person she has become. She wanted to do more in life. She wanted to have a bigger family and do more travelling, possibly buy property elsewhere. Before the fall, she was very active and regularly jogged, went to the gym, and did activities with her boyfriend. They would go hiking, walking, and on bike trails. She bought cheap houses and fixed them up. She could do minor repairs. She did a lot of yoga but can no longer do it. She sold her horse farm in 2009, and when she had it, she trained horses and sold them and was a riding instructor.

[66] At the time of the trial, she was taking a cocktail of meditations including, two anti-depressants, medications for headaches as well as two migraine specific medications. She was taking her headache and migraine medications daily. Medication alleviates her symptoms but does not get rid of it.

Evidence of Husband - Nader Babbili

[67] Mr. Nader Babbili, Ms. Braks’ husband, is employed at Canada Revenue Agency, and has been with CRA for 20 years, and currently is an IT analyst. He met the plaintiff in March of 2011, and they were married in in 2013. He testified that before the fall, the plaintiff was a happy go lucky person with positive energy. She changed afterwards and things that did not bother her before, now did. As they progressed, some of her complaints subsided but one constant was her neck and head, which never changed. She has good days and bad days. They have had normal couple issues. Her sleep is disturbed, and she sleeps with a lot of different pillows.

[68] Before the accident, she used to be a clean freak, now some of the chores are neglected.

[69] They were active before her fall and they spent lots of time biking, going on bike trails, to the beaches doing activities with her daughter. After she fell, she was still strong though experiencing headache, stiff neck, sometimes debilitating. Her social network of friends gradually diminished. She had a lot of doctors’ appointments. Her priority was still to maintain a good family life. She became mean when she was in pain.

[70] He was surprised when she wanted to change jobs because of her enthusiasm for the job and she was moving up quickly at the other job, and she would be making less money at CRA. On cross examination he indicated that the plaintiff had relayed that they were restructuring but that she was not included in that restructuring but feared that the workload would get unbearable for her because of what she was going through. She did not share any work stress. By the end of the day when she came home, she felt the effects of work, which were probably there before the fall, had changed, which wore her down, and at the end of the day, she was now tired. He denied the addition of a new baby caused any stress. This was his first baby, and he was an easy baby and a good sleeper.

Kyra O’Connor - daughter

[71] Kyra, sixteen at the time of the trial, remembers her mother being very active and outgoing before the fall. They used to go biking, ice skating, go for runs, or spent time together. They were once very close. After the fall, her mother could not do most things without being in pain or she has a headache. Their relationship deteriorated over time.

[72] I found Kyra to be a credible witness.

Medical Evidence

Dr. Ruth Gingell-Potts, physician

[73] Dr. Gingell-Potts was on call on the day of the fall. She saw the plaintiff only once, on May 25, 2012. The plaintiff reported after she fell she felt a sharp pain in her left ankle and skinned her right elbow and knee and her right hip immediately hurt as she landed. She reported having soreness and tightness in her low back muscles and trapezius muscles and noted and indicated that the base of her neck felt very tight since her fall. She thought the plaintiff presented with injuries consistent with multiple soft tissue injuries. She recommended ice, rest and gentle movements. On cross examination, Dr. Gignell-Potts stated that the plaintiff did not mention she hit her head.

Dr. Julie Maidment, family doctor

[74] The plaintiff’s family physician, Dr. Julie Maidment, has been seeing the plaintiff since November 2010. Prior to the fall, the plaintiff only saw her for annual physicals, consultation re: pregnancy, skin issues, and urinary tract infection. In October 2011, the plaintiff complained of left sided headaches. Dr. Maidment determined her headache was a neuralgia type headache, which she agreed was an ice pick headache.

[75] She saw the plaintiff on June 4, 2012, after the fall. She was complaining of neck pain and neck tightness. She diagnosed soft tissue injuries and told her to take analgesia and rest. Her neurological examination was essentially normal, with tenderness in the upper lumbar paravertebral region. Dr. Maidment assessed her with muscle spasm and sent her for x-rays of her neck and cervical spine, due to reduced range of motion in her neck, and advised her to continue with physiotherapy, her chiropractic and inflammation treatment.

[76] At her next visit on June 20, 2012, the plaintiff was complaining of neck pain, and waking at night with a “dead arm”, which had also occurred before the fall. She reported that her head was feeling fuzzy and was recalling more details of the fall, and now thought that her head struck her forearm in the fall. Dr. Maidment assessed her with soft tissue injuries, with a question of a concussion. She referred the plaintiff to physiotherapy clinic and trial of muscle relaxants and referred for CAT SCAN (imaging) of her head.

[77] At her visit on June 27, 2012, the plaintiff was complaining of burning pain in her neck and into her left shoulder and complained that she felt “stupid in her head”. Her assessment was a possible concussion and neck pain. She referred the plaintiff to Dr. Robert Lee regarding the concussion, and arranged for an MRI of the spine, and recommended that the plaintiff take time off work and reduce her activities until her symptoms were settling. The plaintiff’s MRI of the cervical spine showed mild degenerative changes in the cervical spine, but it was otherwise normal.

[78] Dr. Maidment next saw the plaintiff on July 16, 2012. She was complaining of lots of symptoms, primarily pain in the left side of her arm, as well as some pain on her right. She was presenting with symptoms of concussion. She was off work, and the CT of her head was booked, and she was to follow up with the Waterloo Sports doctor, Dr. Lee. With the symptoms persisting Dr. Maidment wanted to get another opinion regarding managing the plaintiff.

[79] At her July 25, 2012, visit, the plaintiff reported no improvement in the burning pain in the left side of her neck with Lyrica. Her headaches had improved but she was still experiencing some dizziness and dopiness. She felt like she was on a wave, and her vision was like looking through eyelashes at times. She could not look down due to burning and aching in her neck, did not feel she was getting better, and was basically lying on the couch at home. Dr. Maidment’s assessment was concussion, and she referred the plaintiff to a neurologist. The plaintiff was to start physiotherapy.

[80] On August 8, 2012, the plaintiff reported that she was not having any concussive symptoms, was doing routine daily home activities, and wanted to try to return to work. Dr. Maidment advised her that if the symptoms reoccurred, she would have to stop. The plaintiff was to return to therapy for her neck.

[81] She followed up with the plaintiff on September 12, 2012. The plaintiff was complaining of headaches, neck pain, aggravated when she tried physical therapy, and the right arm going numb. She had been in Emergency for “migraine like pain” and nausea. The plaintiff was continuing with physical therapy. Dr. Maidment’s assessment was mechanical neck pain with radiculopathy. The plaintiff was waiting for an appointment with Dr. Giles (neurologist).

[82] She saw the plaintiff on November 28, 2012. The plaintiff was complaining of left sided facial pain and neck pain. She assessed possible muscle spasm.

[83] The plaintiff saw Dr. Crowe on November 30, 2012, complaining of severe chronic pain in the neck, and inability to sleep for several days. She had gone to Emergency.

[84] She saw the plaintiff on December 5, 2012, to follow up from her Emergency Room visit. Dr. Maidment’s assessment was that the chronic neck pain seemed to be settling. The plaintiff was to continue with desipramine and increase the dose and continue with physiotherapy and follow up.

[85] On January 14, 2013, the plaintiff reported that her neck was painful. She was taking desipramine and wanted to wean down. Dr. Maidment again made a diagnosis of chronic neck pain.

[86] Dr. Maidment saw the plaintiff on March 4, 2013, and at that time the plaintiff was complaining of increasing neck pain. The assessment was neck pain and possible trapezius spasm.

[87] She saw the plaintiff on May 29, 2013, relating to consultation regarding a finger, and at that time the plaintiff reported having days with neck pain radiating to the front of her head and bridge of her nose.

[88] At her visit on June 17, 2013, the plaintiff reported ongoing neck and head symptoms which the doctor noted was as per her concussion. She was to see Dr. Giles for re-assessment.

[89] When she saw the plaintiff on October 9, 2013, Dr. Maidment made an assessment of relationship stress and recommended supportive counselling and gave her the names of psychologists. The plaintiff was still having neck pain.

[90] She did not see the plaintiff from October 9, 2013, until August 17, 2015. She could not explain the lack of records but testified that she was aware that the plaintiff was pregnant sometime between 2013 and 2014. In chief, she had testified that the standard of care in her region required that obstetrician follow women through with their pregnancy.

[91] She saw the plaintiff on August 17, 2015, and at that time she complained of on and off neck pain, and periods of feeling dizzy and sick with physical activity or looking down. Dr. Maidment made an assessment of chronic neck pain.

[92] She saw the plaintiff on August 31, 2015, for pulsing eyes, after moving furniture. Dr. Maidment made an assessment of post-concussion findings and indicated she would expedite the referral to a UW optometry clinic.

[93] At a visit on September 14, 2015, to address the issue of the plaintiff’s pulsing eyes, Dr. Maidment diagnosed post-concussion and was to expedite a referral to the UW optometry clinic.

[94] When she saw Dr. Maidment on November 26, 2015, the plaintiff was complaining of ongoing neck pain, a burning sensation all the time, and that she “always had headaches”. On cross examination, she conceded that there was no contemporaneous report.

[95] The plaintiff reported that with massage her hands went numb sometimes.

[96] On cross examination, Dr. Maidment testified she never she took into account mood related issues stemming from the family relationship in coming up with her diagnoses of chronic pain.

[97] She saw the plaintiff on August 3, 2016, and made an assessment of job stress. On August 18, 2016, she again made a diagnoses of job stress. She agreed that stress can potentially create aches and pain in the body.

[98] She saw the plaintiff on August 28, 2017. She agreed that the reference to “TMJ” in her notes was the first time that she made a diagnosis of temporomandibular joint complaints, and conceded that she is not able to make any relationship to the fall. She agreed that TMJ was part of her consideration in making an assessment of chronic pain.

[99] She first diagnosed the plaintiff with depression on January 19, 2017. In April 2019, she also diagnosed the plaintiff with depression. On August 26, 2019, Dr. Maidment diagnosed depression and family stress. On October 3, 2019, at a follow up visit, Dr. Maidment assessed her mood as stable.

[100] On October 26, 2020, Dr. Maidment referred the plaintiff to neurologist, Dr. Elnaz Mazidi, to investigate optic nerve swelling, discovered by the optometrist.

Dr. Robert Lee, sports medicine doctor

[101] Dr. Maidment referred the plaintiff to Dr.Lee, a sports medicine doctor. Dr. Lee has practiced in this area for 32 years. He treats patients with sports and activity related injuries and used to treat professional sports players. The patients he sees include patients with head injuries, though that is now a smaller part of his practice. He testified that a mild traumatic brain injury or concussion may be caused from a blow to the head or from a violent shaking of the head, which may still result in a concussion.

[102] Dr. Lee first saw the plaintiff on July 12, 2012. She had persisting post-concussive symptoms that were dragging on a few weeks, specifically, headache, pressure in the head, neck pain, nausea, sensitivity to noise, feeling slowed down, feeling like in a fog, difficulty concentrating, and difficulty remembering, trouble falling asleep, more emotional than usual, and reported irritability.

[103] He made a diagnosis of persistent post-concussion syndrome due to the length of time of the event and her ongoing symptoms at the time he saw her. He recommended that she stop working and continue with rehabilitation. He stated that the recommendation to stop work was due to the fact that if one were to persist with activities that aggravate the brain, the likelihood is that that there would be no timely recovery. He identified possible aggravating factors for post-concussion triggers at work as screen time, being a big trigger, reading, noise, concentration on tasks, and the environment of an office.

[104] He received a CT scan of the plaintiff’s head, ordered by another physician, which was normal. He testified that a normal CT scan means the structures in the brain are normal and one can focus on recovery from the concussion itself.

[105] On cross examination he agreed that the plaintiff had not completed the box with respect to “dizziness” and blurred vision on a SCAT 2 assessment which he had asked her to complete. On re-examination he testified that the physiotherapist had the plaintiff complete a further SCAT 2 assessment and she scored dizziness at a “5” (6 being the highest score) and blurred vision at a “4”, and a “3” for sensitivity to light. He stated the plaintiff did not tell him that she hit her head but noted that in the family doctor’s notes it noted “she initially did not think she suffered a head injury but now thinks she struck her head on her forearm when she hit the floor”.

[106] Dr. Lee was of the opinion that the plaintiff had a concussion episode at the time of the slip and fall and concluded that it was not an obvious concussion. He stated that non-obvious concussions are trickier to diagnose, and one can only find out the fact down the road. He stated when he saw the plaintiff on July 12, 2012, he concluded that the slip and fall was a concussion event and several weeks later she was continuing to have “significant post-concussion symptoms” from that event. On cross examination he agreed that he advised the family doctor in his report that the cognitive testing was within normal.

[107] I found Dr. Lee to be unbiased and his evidence was helpful to the court. Given his experience with professional athletes and active individuals who sustain trauma, including concussion injury, his evidence to the court on concussions, particularly, concussions caused without contact to the head was valuable. I give a great deal of weight to his opinion that the plaintiff sustained a concussion in the fall.

Staci Boon, optometrist

[108] Dr. Staci Boon is a treating optometrist, who specializes in visual rehabilitation post stroke. She saw the plaintiff in September 2015, but she was seen in emergency by someone else. She was complaining of pressure in her head, dizziness, nausea, and odd eye movement. When she saw the plaintiff again in November 2015, she continued to complain of pressure in the head, bubbly feeling in the head, trouble with focusing, trouble with focusing up close, and focusing eye strain. She diagnosed the plaintiff with post trauma vision syndrome. Her eyes were teaming, there was conversion insufficiency, and she also had some focusing issues consistent with her age, but her use was worse than that. Teaming may result in blurred vision or double vision. She recommended vision exercises, which improved her issues though she still had issues with tracking and eye jump. She testified that post trauma vision syndrome and post-concussion syndrome are interchangeable. On cross examination, she admitted that the only record she relied on to arrive at her diagnoses was the record form her colleague and the plaintiff’s report. She had not obtained a history of lifting heavy furniture. Taming issues are often seen in kids though she conceded it is possible for children to have teaming up until adulthood.

[109] Dr. Boon testified as a participant expert. Given the limited file available to her for review when she assessed the plaintiff, her opinion can be given little weight.

Dr. Elnaz Mazidi, neurologist

[110] Dr. Mazidi, neurologist, works at Grand River Hospital in the urgent neurology clinic. She finished training in 2018. The plaintiff was referred to her by her ophthalmologist as a result of increased pressure behind the eye and concerns of increased pressure in the brain, or idiopathic intracranial hypertension. She has since prescribed medication to her to help her headaches.

[111] She saw the plaintiff virtually in November of 2020. She sent her for an MRI of the brain, MRA and MRV along with a lumbar puncture to rule out other secondary causes. When she saw the plaintiff, she had been suffering from headaches since 2012, occurring every day, with neck pain. Her MRI showed features of optic nerve swelling. She prescribed medication to help with her chronic migraines.

[112] When she saw the plaintiff for follow up, she had increased pressure but also migraine. The medication resulted in improvement in her optic nerve swelling. She suspected the problems were longstanding and chronic as she had no pre-existing issues. She understood her longstanding problems to be headaches the plaintiff developed during her fall, with chronic neck pain and tension. She indicated that the plaintiff’s chronic headaches were due to the accident. She recommended a comprehensive assessment to a headache clinic, neck physiotherapy, massage, addressing lifestyle factors, and recommended a sleep study, among other things. She also recommended treatment in the form of nerve blocks and nerve injections, and Botox. On cross examination she stated that the plaintiff had seen an optometrist in 2015 with no issues. The changes were identified in 2020 by an ophthalmologist.

[113] I give little weight to Dr. Mazidi’s evidence on the plaintiff’s diagnosis and prognosis with respect to her headaches as she only saw her a few times, and her treatment of her was primarily with respect to the optic nerve swelling. Her evidence on migraine headaches, however, can be given some weight given her role as one of the treating neurologists who is managing the plaintiff’s migraine headaches.

EXPERT WITNESSES

Dr. Zedshen Waseem

[114] Dr. Waseem is a chronic pain specialist in private practice, with a practice focused in the area of physical medicine and rehabilitation. He sees patients who have suffered physical injuries dealing with chronic pain, as well as patients who have suffered traumatic brain injuries who have ongoing post concussive symptoms. He previously worked at the Toronto Rehabilitation Institute and at the Head Injury Clinic at St. Michael’s Hospital, and assisted patients in management of their symptoms. Dr. Waseem was accepted as a rule 53 expert to provide opinion evidence in the area of physiatry and chronic pain diagnosis, treatment and pain management.

[115] Dr. Waseem saw the plaintiff in April 2021. He diagnosed chronic pain of the cervical spine compounded by central sensitization, a mild traumatic brain injury and post concussive syndrome including chronic cervicogenic headaches with migraine features.

[116] He noted that the CT was normal which meant no structural injury, and an MRI of her neck showed evidence of degenerative disc disease. She continued to experience headaches and neck pain and other symptoms related to her concussion. She had mood disturbance and was feeling anxious; and reported her mood and pain were interrelated. She reported hypersensitivity to different sensory phenomenon including light, sound, touch and smell. She had cognitive difficulties, i.e., with memory, mental fogginess, visual problems and complained of disrupted sleep due to pain. He testified that individuals with chronic pain had a lower pain threshold. In his view, the plaintiff’s prognosis was poor. He indicated that the plaintiff’s symptoms were longstanding, and it was very unlikely that she would make a full recovery. He indicated that hypersensitivity is found in patients with chronic pain. He indicated that the plaintiff’s prognosis was poor for a number of reasons including the symptoms were longstanding, patients with psychological problems have greater difficulty dealing with chronic pain, and she had centralized sensitization.

[117] On cross he testified that she reported no ongoing musculoskeletal issues prior to her slip and fall. He did not obtain a history of her having a dead arm feeling, headache on the left side of the head, prior motor vehicle accident, snowmobile accident, or horse touching her head.

Dr. M. J. Gawel, neurologist

[118] The plaintiff called Dr. M. J. Gawel, neurologist, who testified as a litigation expert. In the past 40 years, Dr. Gawel has been a working neurologist and has taught neurology to medical students and trained residents. He is currently on staff at the Sunnybrook Health Sciences Centre, Women’s College Hospital and Rouge Valley Health System. For the past 45 years he has specialized in the area of headaches. He has authored a book on migraines used in universities, and also helped to revise a book used by the Migraine Association of Canada. He has written numerous chapters on migraines for other publications and has been a contributing author in 25 other books. Dr. Gawel was qualified as expert in neurology in the field of diagnosing headaches, treatment and management of headaches.

[119] It was his opinion that the plaintiff presented with symptoms typical of someone who had suffered head injury after fall. In his practice, ninety-nine percent of the time, a person has a normal CT scan or MRI and still manifests headaches or migraines. His report is dated February 2016. When he saw the plaintiff, she completed a functional assessment. She had not missed any time from work in the last 90 days, but had headaches every day, which she reported as moderate, and her productivity was reduced by fifty percent. When he saw her, she was complaining of pain in the neck and headaches. Dr. Gawel diagnosed the plaintiff with neck stiffness and pain and what appears to be typical migraine headaches, which he described as post-traumatic migraines. Her headaches were behind the eyes and associated with nausea, sometimes vomiting, always light and sound sensitivity, and dizziness. She reported that she could not look down due to burning and aching in her neck.

[120] Dr. Gawel testified that migraines can occur after a head injury. In this case, he stated that she fell down and her head moved rapidly, she did report she may have hit her head on her arm. But he noted that in any case, “it was probably a rapid movement of the head, and this could have caused these events to develop”. He was not sure there was much difference between a concussion where there is contact and one without contact, because with rapid acceleration/deceleration the brain gets involved. He testified that a person does not have to hit their head to suffer concussion. In his experience there are patients who develop severe symptoms without hitting their heads, just with the movement of the head during whatever happens to them. The symptoms do not manifest any differently whether there is contact or no contact but may persist for a long time and may sometimes get worse. The change in the brain creates reactions which may cause ongoing problems in the future. While many people get better within weeks, there are cases where people have symptoms for years. Migraine headaches may come and go, and also wax and wane.

[121] Dr. Gawel impressed me as a witness and did not appear to be an advocate on behalf the plaintiff. Although Dr. Gawel only saw the plaintiff once, and his report was five years out of date by the time the trial was heard, his answer to the hypothetical questions is of assistance to the court. He noted that chronic migraines can be debilitating leading to depression, and difficulty concentrating. He noted that people who have chronic migraines frequently are in pain and have trouble working. These individuals have noise and light sensitivity making it difficult for them to work on screens. Exercise makes the headache worse at the time.

[122] On cross examination he stated that the most common risk factors for developing chronic migraines are: being female; being overweight; having sleep problems and hormonal changes. He noted that neck pain can make headaches worse. He agreed a common treatment for migraines is Botox but noted this was temporary.

[123] On cross examination Dr. Gawel testified that the plaintiff answered “No” to the question of whether she has family history of migraines. He stated if one had a family history, then you are more likely to suffer from migraines after any trauma. He agreed that regardless of whether you suffer trauma or not, you would be more prone to developing migraine headaches. He indicated that stress was not a primary factor to be taken into account in assessing migraine problems.

Dr. Daniel Selchen

[124] Dr. Daniel Selchen, neurologist, engaged as litigation expert by the defendants, was qualified as an expert in the area of neurology. Dr. Selchen served as the head of the division of Neurology at St. Michael’s Hospital for ten years, the Director of the Toronto Regional Stroke Centre for over a dozen years and the Director of the Multiple Sclerosis Clinic at Trillium Health Centre. He has worked at St. Michael’s Hospital since 1986, first part-time, and then full time since 1998. He did some subspeciality work in stroke and multiple sclerosis and the major component of his practice was as a general neurologist. He has worked in emergency, and in that capacity, has dealt with trauma patients who had suffered a head injury or spinal injury. Since he moved to St. Michael’s, his practice has focused on stroke and multiple sclerosis.

[125] I found Dr. Selchen to be non-partisan and unbiased in giving his evidence to this court. He made a number of concessions and was candid when required, even to the extent of acknowledging the expertise of the plaintiff’s own expert, Dr. Gawel, in the area of headaches, and was forthright in terms of the extent of his own practice.

[126] Dr. Selchen saw the plaintiff in June of 2021 in his clinic area at the Multiple Sclerosis Centre at the hospital. He testified that there were a broad range of symptoms. The plaintiff had a normal neurological examination. He was of the opinion that the record revealed substantial variability in the plaintiff’s symptoms from time to time, with extended periods of times when there were there were no symptoms and periods of times when there were symptoms, which the records suggest correlated with other types of stress: job stress, marital stress, and other stress. It was his opinion that the pattern of symptomology in terms of its timing and the pattern over time was not consistent with traumatic injury. He testified that symptoms may ameliorate over time, but generally do not come and go because symptoms related to traumatic injury are usually related to structural problems and the structural problems in the brain or in the spinal cord do not tend to wax and wane. He stated that it is not a characteristic of traumatic injuries that new symptoms develop 4 or 8 years after the trauma. He concluded that from a neurological perspective there should be no impact on the plaintiff’s employability, function or activities.

[127] On cross examination he agreed that he was not a specialist in headaches, but twenty to thirty percent of people he sees suffer from headaches, and often migraines. He agreed that Dr. Gawel was a headache specialist. He agreed that it is possible for a person with mild traumatic brain injury to have a normal CT scan and agreed that a concussion is a mild traumatic brain injury. On cross examination, he testified that it is unclear to him that the plaintiff suffered a mild traumatic brain injury in the fall. He noted her own initial impression was that she had not had a head injury but noted it was impossible to rule out. He stood by his initial opinion in his first report in which he opined that the plaintiff sustained abrasions and soft tissue injuries and at most a minimal concussion. He saw the plaintiff nine years after the incident, and he conceded that at the time he saw her, she was on a number of medications for her headaches. He agreed that her pain and headaches are noted to increase with stress and work. He agreed that the plaintiff’s pain and headaches were affected by her psychological complaints. He also agreed that her pre-accident health was not a factor for him with respect to her current symptoms. He agreed that the plaintiff’s ice pick headaches from October 2011 did not have anything to do with her current symptoms, stating they were a standalone phenomenon. Dr. Selchen agreed that Botox was useful in treating chronic post traumatic headache, if it works, and indicated that the effects would last three to six months.

Dr. Max Kleinman

[128] Dr. Kleinman, physiatrist, was retained as a litigation expert on behalf of the defendants. He was certified by the American Board of Physical Medicine and Rehabilitation in 1982, and is the former Head of Rehabilitation and Program Director, Rehabilitation at the Baycrest Centre for Geriatric Care.

[129] Dr. Kleinman was qualified at the trial as an expert in the field of physical medicine. He testified that the sustained myofascial sprain/strain injuries to the neck, upper back and a possible concussion are more likely than not post-concussive symptomatology. He believed she had chronic pain and somatic complaints that did not correlate well with a musculoskeletal impairment and thought her specific diagnosis from the fall were cervical musculoligamentous Injury WAD II severity to the neck and upper back, post-traumatic headaches with migrainous components, chronic pain as well as an element of depression contributing to her manifestation of pain, although he deferred that determination to be made by a mental health professional. He thought she had elements of central sensitization (nerve pathways to the brain) as well as somatic overlay. He did not feel that there was an impairment in terms of her headaches that was within his area of specialty.

[130] He thought her prognosis from a physical perspective was excellent, that her physical injuries had resolved, and that she had reached maximum medical improvement. From a physical perspective he did not believe she had any loss of function in the area of personal care, housekeeping, employment and recreational activities. He conceded that the plaintiff had loss of range of motion of her neck, but he did not believe they were related. He agreed that loss of range of motion is an impairment. He testified that there are physical and biosocial issues associated with pain, and psychological causes were driving the pain.

[131] He testified that it is possible that persons with chronic pain may not work as they did previously. The vast majority of people recover from soft tissue injuries, although some do not, and some people have psychological reaction to their pain. He admitted that someone who has chronic pain nine years post incident typically does not have an excellent prognosis. He agreed that people with chronic pain can have flare ups which settle down after weeks. This far out comprehensive multidisciplinary pain management program is not likely to offer Ms. Braks pain relief. He stated that none of the plaintiff’s preexisting medical history has an impact on her current condition.

II. CAUSATION

[132] The defendants’ position is that the plaintiff’s pre-existing medical history and prior incidents are the cause of her current problems, and not the fall.

[133] It is trite law that a defendant must take the plaintiff as he or she finds her.

[134] The Supreme Court of Canada has made it clear in a series of cases that the “but for” test is the standard for establishing causation in negligence cases and the “material contribution” test is reserved for cases in which the “but for” test is unworkable: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.

[135] The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and defendant's conduct" is present, and ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 [Snell], at p. 327, per Sopinka J.

[136] In Athey, at paras. 13-17, the Court enunciated the principles of causation in tort law, as follows:

a. Causation is established where the plaintiff proves, on a balance or probabilities, that the defendant caused or contributed to the injury;

b. The test for determining causation is the “but for” test, in which the plaintiff must establish that the injury would not have occurred but for the defendant’s negligence;

c. In cases where the “but for” test is unworkable, courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury. As stated above, a materially contributing factor is one that falls outside the de minimus range; and

d. The plaintiff need not prove that the tortious act was the sole cause of the injury. As long as the tortious act is part of the cause, the defendant is liable, even if the tortious act alone was not sufficient to cause the injury.

[137] In Athey, at para. 27, Major J. stated as follows:

Hypothetical events (such as how the plaintiff's life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood… A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. [Citations omitted.]

[138] The plaintiff testified that she had no concussions before the fall. She did not have regular headaches, just the occasional sinus headache. She did not have neck pain before the fall. Her sleep was good before the fall. She had no issues with her eyes, aside from an episode of drywall dust, which was flushed. She had a remote whiplash injury from a horse 25 years before the fall, with reportedly no residual effects. In grade five, a couple of horses fell down. When she was sixteen, she clipped a car in front of her and that car spun out, but she kept on going. She sustained no injuries. In high school she was in her friend’s Ford Explorer, and it rolled into a ditch; she had a sore rotator cuff, which resolved.

[139] One of the most cogent questions is whether the plaintiff suffered a concussion in the fall, resulting in post-concussive symptoms, headaches, and migraines.

[140] Both Babbili and Farrugia testified that the plaintiff told them that she hit her head. While Babbili has a close interest in the proceeding, as he is married to the plaintiff, Farrugia is an uninterested party. Beyond that, whether or not she hit her head when she fell is immaterial to the question of whether she suffered a concussion. All the experts, when asked, agree that a concussion is a minor traumatic brain injury. Dr. Lee testified that they may be hard to diagnose initially. Dr. Gawel testified that there can be serious symptoms with contactless concussions.

[141] Dr. Lee had experience dealing with athletes and individuals who suffered a concussion. Dr. Lee diagnosed the plaintiff with persistent post-concussion syndrome. He described the concussion as the incident itself and testified that a person can suffer a concussion caused by a violent shaking of the head but indicated this type of concussion is trickier to diagnose and is often diagnosed down the road and after the fact. The diagnosis of a concussion is supported by multiple treating doctors and experts, both on behalf of the plaintiff and the defence.

[142] I find therefore that given the plaintiff’s description of how she fell where she “super manned” with her hands up in the air and landed hard on her right side, she had a rapid movement of the head resulting in a concussion. It was not necessary for her head to have made contact, but that being said, the plaintiff’s statement early on to health care practitioners that she believes she hit her head on her arm is, in my view, corroborated by Farrugia and Babbili’s evidence. Moreover, the plaintiff’s statement to health care practitioners has been consistent throughout with respect to her complaints both in the aftermath of the fall, and subsequently, with complaints including an upset stomach or nausea, various descriptions of visual disturbance, neurological symptoms including visual disturbance, headaches, and balance issues.

[143] I find that the plaintiff’s headaches and migraine determined by several neurologists to be directly causally related to her fall, have nothing to do with her pre-existing history and are directly related to the fall.

[144] On the evidence before me, I am not satisfied on a balance of probabilities that the plaintiff’s prior motor vehicle accidents, both occurring when she was a teenager, one in which she clipped a vehicle and suffered absolutely no injury, and the other in which she sustained a rotator cuff injury, which resolved, have anything to do with her current symptoms. In the same vein, the remote snowmobile accident, when she was young, the horse head butting or touching her head, all have nothing to do with her current symptoms. Indeed, the defence’s own expert, Dr. Selchen was of the view that her pre-accident health was not a factor with respect to her current symptoms.

[145] As for her neck, she appeared to have pre-existing degenerative changes, that were a little more advanced for a person of her age and that is the extent of the evidence before the court, aside from the changes being asymptomatic. There is absolutely no medical evidence before me to indicate that she would have gone on to develop chronic neck pain in the fullness of time even had the fall not happened. In this respect, the defendants must take the plaintiff as they find her. In fact, on cross examination, Dr. Gawel testified that there was slightly more disc degeneration and arthritic changes on the x-ray of the plaintiff’s neck but stated that these findings have no effect on his opinion concerning her current problems. There is, of course, no expert opinion from an orthopedic surgeon or any medical doctor, but, in my view, asymptomatic degenerative changes in her neck would make her a thin skull plaintiff.

[146] As for the migraine headaches, the plaintiff has repeatedly denied that there is a family history of migraines on her father’s side, but the defendants advanced this argument throughout the trial. The plaintiff testified that her father had migraine headaches, that she knows of, caused by a food allergy, Chrystal Light, and after he was told to stop drinking that beverage, and did so, the headaches went away. A migraine headache, as Dr. Gawel testified, is a specific type of headache, and there is not a scintilla of admissible evidence before the court to show that there was a family history of migraines on the father’s side. That being said, I find that had this been the case, this family history would have made her vulnerable to developing chronic migraine headaches after trauma, as Dr. Gawel stated, as family history is a risk factor. In other words, this would have again made her a thin skull plaintiff as she had no history of migraines before the fall

[147] The defendants also suggested that the headaches experienced by the plaintiff in October 2011 are a factor in the plaintiff’s current symptoms. I disagree. I accept the evidence of the plaintiff’s family doctor, the neurologist, Dr. Gawel, and the defence’s own expert, Dr. Selchen, who all testified as follows: these headaches are short lived (Dr. Gawel) and; they have nothing to do with her current symptoms (Dr. Selchen). I note that Dr. Kleinman, the defence physiatrist, stated that none of the plaintiff’s pre-existing medical history has an impact on her condition.

[148] As for her the dead arm feeling, I accept that she had this issue before the fall. However, in comparing the pre-and post-accident records of her family doctor, it is evident that the fall exacerbated her symptoms. What is unclear though, is the extent to which she has returned, if at all, to her pre-fall status with respect to this complaint. I am mindful that the plaintiff also described pain radiating from her neck down into shoulder blades, and sometimes her arms, which I suspect are different.

[149] There is no evidence that the idiopathic intracranial hypertension (swelling in her eyes) is caused by the accident. While I accept that the plaintiff had issues with her eyes, and in fact complained early on about the sensation of “like looking through eyelashes”, I am not satisfied on a balance of probabilities that they are related. There is no medical evidence indicating a correlation between those earlier complaints and the optic nerve swelling incident.

III. ASSESSMENT OF DAMAGES

General Damages

[150] For the reasons that follow, I find the appropriate award for non-general damages is $115,000.

[151] While the plaintiff has a tendency to hyperbolize, on the whole, I found her to be a credible witness and reliable historian. While there were problems with memory on occasions, I have weighed that with the fact that this fall occurred almost nine years before the trial started.

[152] The plaintiff suffered a mild traumatic brain injury, or concussion, in the fall confirmed by her family doctor, Dr. Maidment, Dr. Lee, sports injury doctor, Dr. Mazidi, neurologist, (all treating doctors), as well as the plaintiff’s expert neurologist, Dr. Gawel, the defence expert, Dr. Kleinman, who agreed she possibly suffered a concussion, and Dr. Selchen (“abrasions and soft tissue injuries and at most a minimal concussion”).

[153] At the time of the fall, the plaintiff was 35 years old, engaged to be married, with an eight-year-old daughter. She was employed full time at a very busy financial institution. She suffered a minor traumatic brain injury, or concussion, in the fall, as well as multiple soft tissue injuries including to her neck. The plaintiff’s soft tissue injuries have resolved. Her neck pain is chronic. She continues to suffer from migraines, serious headaches, and symptoms related to migraine headaches. She has been diagnosed with chronic pain. She takes medication daily to alleviate her symptoms but still has headaches at least twice a week, if not more, and daily neck pain, which affects her sleep and activities. She has been diagnosed with depression and takes medication. The plaintiff manages her pain and depression with pharmaceuticals, which she takes daily. The plaintiff has amassed numerous devices to help her sleep and function at work.

[154] Though Dr. Selchen did not endorse the concept of central sensitization, the defence expert Dr. Max Kleinman, physiatrist, certainly did and was of the view she had it. Chronic pain may involve both physical and mental components and the defence expert, Dr. Kleinman, noted that the plaintiff had element depression contributing to her manifestation of pain. Dr. Kleinman says she has chronic pain and somatic complaints. He thought she had central sensitization (nerve pathways to the brain) as well as somatic overlay. On the issue of central sensitization, Dr. Kleinman was supported in this view by the plaintiff’s expert, Dr. Gawel, as well as the plaintiff’s treating neurologist Dr. Mazidi

[155] Once very social, she has become a recluse and has lost friends along the way. Her husband says she is a changed person; when she is in pain, she can become mean. She and her young daughter have grown apart as they are not able to participate in activities they did before, or time spent together is marred by complaints of pain. Her once active lifestyle has been significantly curtailed. She no longer runs, goes horseback riding, goes to the gym, or participates in recreational activities as she used to.

[156] She has been working at CRA since 2016 working 37.5 hours per week, and there is no overtime. She still has pain despite the decreased hours.

[157] At Scotia, she worked extra hours and sometimes on weekends. She planned and organized client events, including talks. One of the advisors stepped in for her for one of her talks.

[158] I accept Dr. Wasem’s opinion that given the constellation of hypersensitivity, mood, and the longstanding nature of the plaintiff’s pain, her prognosis is poor. There is no psychological assessment, though the plaintiff’s mood and emotion have been identified as factors in her pain. There is therefore no evidence before me to indicate whether, were she to obtain additional treatment or counselling in addition to the cocktail of anti-depressants that she currently takes, the likely outcome is that she would improve.

[159] I find that the plaintiff’s headaches, migraines, neck pain are chronic, and have impacted her social, recreational, and family life as well as her employment. Over nine years after the fall, she continues to have pain. On the evidence before me, I accept that that her prognosis for recovery is poor.

[160] I agree with that Gawel – the fact that the plaintiff continues to work, despite her symptoms may be because she is highly motivated. In general, the plaintiff’s stoicism should not be used as a factor to penalize the plaintiff: Giang v. Clayton, 2005 BCCA 54.

[161] The plaintiff has provided case law with damages, adjusted for inflation, in the range of $104,000 to $153,000. In Momand v. Wild Water Kingdom Ltd., the plaintiff suffered a mild concussion and post-concussive symptoms. Her main complaint was post-traumatic headache and migraine. The plaintiff was awarded $70,000.00 in 2005, which is $118,931.58 with inflation. In the 2005 decision of Lahay v. Henderson (2005), 2005 CanLII 14140 (ON SC), 22 C.C.L.I. (4th) 283 (Ont. S.C.), at para. 129, the court awarded the plaintiff $90,000.00, ($119,386.05 with inflation) who suffered headache, neck pain, and low back pain and was left with chronic neck pain. The court awarded the plaintiff $100,000.00 in Casterton v. MacIsaac, 2020 ONSC 190, at para. 253, who suffered a concussion and experienced headaches about once per week and mild depression. He had to give up many of the activities he enjoyed because of his headaches and post-concussion symptoms. In Watts v. Donovan, the plaintiff had very similar injuries as the Plaintiff in this action. She had a mild brain injury, chronic pain, poor sleep and emotional vulnerability. She was awarded $95,000.00 in general damages which would be 118,356.58 with inflation: Watts v. Donovan, 2009 CanLII 26931 (Ont. S.C.), at para. 25.

Evidence re: Loss of Income

Evidence of Ms. Braks

[162] The plaintiff attended the University of Toronto for Biochemistry and some business courses. She had life insurance licensing, Canadian Securities Courses, handbook training before she fell. She has worked for IBM in the marketing department. She was a financial planner with her own book of business working for London Life. She had her own corporation after IBM, and ran a Shell gas station, had a horse farm in Kitchener where she rescued and bred horses and gave lessons. When she moved to Kitchener she bought fully detached houses, renovated them and rented them out. By the time of the incident, she had purchased three houses. She purchased the houses to build a real estate holding of rental property. The third property she purchased was in 2011. She sold her farm business in 2009 and lived off the savings for a couple years.

[163] She was hired at Scotia in November 2011, as an administrative assistant. Her compensation included a base salary and commission component based on a percentage of the assets under management. She became a Senior Associate at the beginning of 2013 (there is another position before that). Her goal was ultimately to become a financial planner and a full partner or have her own book of business. Each level required licensing and courses. By May 2012, she had her life license, her mutual funds and Canadian securities course completed and her investment representative course which allowed her to process stocks and bonds without giving advice.

[164] Between 2011 to 2013, she took a series of courses: wealth management, investment advisor training program, investment representative training, Canadian Securities Course, and Personal Financial Services Advice Course. In August 2016, she obtained a Certificate from the Financial Planning Standards Council.

[165] She initially took a week off work after the fall, returning on June 20, 2012. She subsequently went on short term disability between July 13, 2012, to September 9, 2012. She returned to work full time in September 2012. She went on maternity leave from July 2013 to July 2014.

[166] While at Scotia, 2013 is the only full year that she worked. She was never paid a full year’s bonus as a senior associate at Scotia. She was on maternity leave from July 2014 to July 2015. When she left Scotia in August 2016, she was on leave and then went to CRA. She started looking for another job in April 2016, because she had been covering a lot of duties and the harder, she was working, the more pain she experienced. The bank went through a restructuring and 10% of advisory staff was let go and she believed it would mean more work for her and therefore more pain. She was having severe pain and migraines and was put on stress relief. All the activities of using a computer and neck aggravated her pain.

[167] In 2014, she only worked seven months at Scotia because she went on maternity leave, and had T4 earnings of $43,428, of which $15,058 was commission income. She was on maternity leave for the first part of 2015, returning that July, and reported T4 income of $26,495, and commission income of $8,952. As she had not worked a substantial amount of the year, she did not qualify for the bonuses.

[168] She went on stress leave in August 2016. While she was on leave, she received a job offer from the CRA. She started training in mid-August 2016. Her earnings from Scotia at the time she left, up to the end of July 2016 was $46,867. She would have made above $80,000 had she stayed. Her base salary at the time was $39,000.00 plus commissions.

[169] She started looking for another job in April 2016. She started at CRA as collections contact officer, earning about $51,000. CRA has pay scale, and each year her salary has increased as per her level. She had a couple acting roles at CRA since she has been there but returned to her level. She is expected to make $70,000.00 in 2021.

[170] At the time of the fall, she was working for two financial planners who were partners. When she was hired, the partners had provided her with a spread sheet showing what her prospective salary would be over time, and she would have anticipated her salary had she stayed at Scotia would be making about $100,000 to $125,000 a year, if not more, based on assets under management.

Evidence of Craig Mellow, former boss

[171] Mellow is a senior wealth advisor and portfolio manager with Scotia Wealth Management in Waterloo. He assists high income individuals with their wealth and financial planning. He believes the plaintiff started working with him and his partner in November 2011 as an administrative assistant. By the time she left, she had worked her way up to senior associate. A senior associate requires more licensing and as she worked for them, there would be a sales component to her job, and she was able to facilitate investment advice which came from him or his partner. The job would still be primarily administrative, though in the future there would be a greater percentage of her work devoted to the sales component to grow the business. They had planned to grow the practice 10% to 15% a year and bring in about fifteen million more dollars a year at that stage. The business was dependent on the market.

[172] A portion of the plaintiff’s income was tied directly to how the partners’ business was doing. In April 2016, they only had one senior associate, and currently they have two employees who work on the administrative side.

[173] Since 2016, the business has grown about 60 to 70 percent. He stated that had she stayed, the plaintiff would have made more money. She left in June or July in 2016, and in the short term he and his partner replaced her, before another senior associate replaced her. A few years later, they added someone else. The layoffs in 2016 did not affect any of his staff or his office. In the fall 2016, the layoffs were national and cut back on underperformers and was advisor focused. It did not affect their branch, nor would it have affected the plaintiff’s employment as he and his business partner were doing fine.

[174] He testified that there are too many variables to indicate how much she would be making had she stayed. Had she stayed the eventual goal was for the plaintiff to take over some of their clients and run it underneath them, and there would have been rewards or incentives for bringing in new clients.

[175] On cross examination, Mellow agreed that in order to advance and increase her remuneration, the plaintiff would have to take more courses, but indicated that when the plaintiff was hired she had intended to do more than just the administrative side. He indicated that she was very hardworking. Some bonuses are based on agreement, e.g., a new client was brought in, or discretionary, based on doing a good job. A structure would be agreed to before and submitted to payroll. He had no involvement in her base salary and any increase. The commission/bonus structure was negotiated at the start and revisited yearly.

[176] Since the plaintiff left, they have never made less money and the commission has not decreased to his knowledge.

Steven Polisuk

[177] The plaintiff engaged Steven Polisuk, a partner at the accounting firm of Lipton Polisuk Inc., as a litigation expert to provide a valuation on the plaintiff’s past and future loss of income as a result of the incident. Polisuk is a Chartered Business Valuator and Certified Fraud Examiner and was previously the Senior Manager in valuation and litigation support practice at Deloitte & Touche LLP. Polisuk was accepted an expert to offer opinion evidence on the valuation and quantification of damages in personal injury.

[178] Polisuk calculated the plaintiff’s annual income from Scotia, based on her 2016 earnings of $46,867, which, when annualized resulted in $80,343. The plaintiff’s annualized income for 2014 is $75,133. Her past income loss calculated to May 2021 is $173,400 based on $80,343 increased annually by the Consumer Price Index until 2021 and deducting the income from CRA. Polisuk provided calculations for future income loss based on retirement ages of 55, 60 and 65. On cross examination, he testified that the doctors did not indicate a retirement age. He based his early retirement age on a conversation with the plaintiff that she would likely have to retire early.

[179] His numbers did not include any movement up the ladder or promotion at CRA.

[180] He testified that assuming the plaintiff retires at age 65, and assuming an annual income of $70,000, adjusted for inflation, the plaintiff’s future loss of income amounts to $313,989 and her past loss of income amounts to $169,381. Mr. Polisuk indicated that the past loss, on this scenario does not take into account any pay raises she would have received at Scotia.

Sheri Ann Gallant

[181] Gallant was a litigation expert engaged by the defendants. She was qualified as expert in area of evaluation and quantification in the area of personal injury litigation. She received her certification in management accounting in 1996, and a Certified Financial Forensics designation in 2014 from an American body. She is a partner and Senior Vice President with MDD.

[182] Gallant calculated the plaintiff’s annual income, at the time she left Scotia in 2016, based on her 2013 earnings, as $63,137. She offered two scenarios for the plaintiff’s loss of income. She calculated the plaintiff’s residual past and future income at zero, on the assumption that she left Scotia for reasons unrelated to the fall, and $40,991, on the assumption that she left due to the fall to go to CRA. As for the calculation of the plaintiff’s future loss of income, she also calculated the amount to be zero under the first assumption and $45,454 under the second. In responding to the hypothetical question, assuming the plaintiff was making $70,000 at CRA, she also concluded under the first scenario that the income loss would be zero.

Montana Mullane

[183] Montana Mullane, occupational therapist, engaged on behalf of the plaintiff, was qualified as a litigation expert for the plaintiff in the field of occupational therapy to provide opinion evidence on the plaintiff’s functional ability in the home and her work at home environment (the plaintiff was working at home at the time). With respect to her work environment, Ms. Mullane concluded that the plaintiff was limited in her ability to engage in activities that involvement neck movement or significant shoulder or arm activity. On cross examination, Ms. Mullane testified that a standardized functional assessment would take place in an office, or an assessment centre and would take two days. The assessment lasted two hours. The plaintiff reported a “bubbly feeling” at the top of her head on three occasions during the assessment. She indicated that the testing did not stop. During the assessment the plaintiff also reported an increase in pain and dizziness throughout, as well as other complaints. She agreed that the plaintiff could concentrate on the activities and maintained control over her emotions. She answered questions appropriately.

[184] For the reasons set out under the housekeeping heading, I give little weight to Ms. Mullane’s report.

Assessment of Damages – Income Loss

[185] The plaintiff was on the path to move up the ladder at Scotia which would have translated to more commissions and incentives. She had begun laying the groundwork for doing so. Moving up entailed taking courses and obtaining various licenses to work with different financial products, manage and provide financial advice.

[186] She completed five courses between October 2011 and April 2013. In contrast, after the fall she completed a course in September 2013, and certification of financial planning obtained on August 1, 2016, which coincidentally coincided with her departure from Scotia.

[187] I am not convinced, however, on the evidence before me that the plaintiff would have become a financial advisor like the two financial advisors she worked for and made full partner. Based on Mellow’s testimony, I find that she would have moved up the ladder with increasing responsibilities, and handling her own clients, at least under the supervision of the two financial advisors. Her former boss agreed on cross examination that she was driven. He described her as a very hard-working individual.

[188] By the time of the fall, her hard work had translated into at least two promotions with her additional licensing and training. While I accept that those life events may have slowed the plaintiff down in terms of the courses she would have to take to progress, I am not convinced, on the evidence at trial that these events (intervening marriage in 2013 and baby in July 2015), as the defendants suggest, would have had any significant impact on her ultimate career trajectory. Women get married all the time and have children and continue in their chosen careers. While that can add to the stress, the plaintiff was a single mother before who had her own businesses and had started a portfolio of rental properties. In my view, as driven as she was (as her former boss acknowledged), the plaintiff would have continued progress in her job, and taken on clients under the supervision of her bosses, with the opportunity for making more commissions and incentives.

[189] The only year that the plaintiff worked a full year at Scotia was 2013, which was the same year that she was promoted to Senior Associate. The plaintiff’s benchmark annualized income arrived at by both economic experts, on both sides, do not reflect commissions for a full year of her working as Senior Associate, the position she held when she left Scotia. Her commissions were tied to asset under management by the two financial advisors she worked with. Her commissions to some extent depended on the market. There was no decline in the business after she left. The business grew 60 to 70 percent since she left. I find that the plaintiff would have earned more money had she stayed. However, the amount she would have earned is speculative.

[190] The defendant’s economic report under one of the scenarios assumes that the plaintiff would have left Scotia in any event because she was going to be terminated. The plaintiff’s former boss’s testimony, which corroborates hers, undermines this assumption.

[191] However, I accept the plaintiff’s evidence that her workload increased during the period of time that support staff were being terminated, and it was stressful at work, which aggravated her headaches and symptoms sustained in the fall. I find that what she was once able to manage at work before the fall, she no longer could.

[192] To the extent that the plaintiff had just started her administrative position in November 2011 and was quickly moving up, all the while completing all the required courses to do so, the only inference is that she had finally found her career path. The plaintiff’s motivation to progress at Scotia is borne out by much of the evidence. Less than a month before her new employment with Scotia, she had completed the Personal Financial Services Advise course. In 2012, she had completed an Investment Representative Training course, and obtained her stockbroker’s license under the Investment Industry Regulatory Organization of Canada (IIROC). She completed the Canadian Securities Course two months before the incident. She completed the Conduct and Practices Handbook course just less than two weeks before the fall. She completed the Investment Representative Training program shortly after the accident, another investment adviser course the following year as well as a wealth management essentials course. She obtained a certification in financial planning in August 2016. Given her stated trajectory, the fact that she was driven, and her stated goals were backed up by her former boss, Mellow, I do not accept that the income reflected on the plaintiff’s past CRA summaries represent her earning potential at the time of the fall.

[193] I am satisfied on the evidence that the plaintiff would have continue to progress upwards at Scotia, taking on her own clients as her level of responsibilities increased, with commensurate increase in commissions and incentives. Her income loss, had she stayed at Scotia, was tied to the market. Since she has left Scotia, her former bosses have grown their portfolio to over fifteen million dollars, or 60 to 70%. Her former bosses now have two employees. There are many variables tied to her compensation at Scotia, but the inference is that if her bosses’ practice grew, she would have been doing the same or better than she had been in 2016, some five years ago, and her income, arguably, with base salary, commissions, and incentives combined, would be more than $80,000.00 a year.

[194] The Gallant report calculates the plaintiff’s earning capacity based on her 2013 earnings from Scotia though she left Scotia three years later, in 2016. In the result, the 2013 income used for that year to establish the plaintiff’s loss of earning capacity does not take into account her promotion as Senior Associate, and her actual earnings, partial as it is, available for 2016, which could be annualized. The plaintiff testified at the trial that she never received a full year’s bonus from Scotia after she was promoted. Of course, this is the case because her maternity leave straddled two half years. I prefer the method used by the plaintiff’s expert in arriving at an annualized income of $80,43 in 2016 for Scotia, which is based on the plaintiff’s actual earning capacity when she left.

[195] In the result, I prefer Polisuk’s method of annualizing he plaintiff’s earnings from Scotia McLeod for the 2016 tax year, and accordingly as the plaintiff earned $46,867 from Scotia McLeod, had she stayed at Scotia she would have earned a little over $80,000, that year, as reflected by her annualized earnings ($80,343), which is consistent with Mellow’s testimony at trial. I note that the plaintiff was promoted in 2013, from an administrative assistant and therefore, Ms. Gallant’s use of the 2013 earnings would be, from that perspective alone, an underrepresentation of her income earning potential. The plaintiff also testified that she was never paid a full year’s bonus as a senior associate (she went on maternity) so Gallant’s use of the 2013 income is even further out of line with what the plaintiff potentially could have made as a senior associate taking into account her base salary and bonus.

[196] I make the following additional findings of fact:

i. The plaintiff would not have been terminated in 2016 because of Scotia terminating employees. The plaintiff’s evidence that it did not affect her bosses or her was corroborated by her former boss, Mr. Mellow. Neither their branch nor their group was affected.

ii. Had the plaintiff remained with Scotia at to the end of 2016, she would have made a minimum of $80,343 based on her annualized earnings for that year.

iii. The plaintiff’s minimum earning capacity, at the time of the fall, was $80,343. I also accept that had she remained at Scotia, the plaintiff would have earned approximately $80,343 in 2016, and with the CPI added, her annual income at Scotia, had the fall not occurred, adjusted for CPI, would be approximately $85,959 a year, without taking into account any salary increases or bonuses

iv. I accept Mellow’s evidence that the assets being managed by the financial advisors, her former bosses, have increased by 60 to 70%.

v. Had the plaintiff remained at Scotia, she would have continued to progress upwards, eventually having her own clients under the supervision of the financial advisors that she worked with.

vi. I accept that had the plaintiff remained at Scotia, she should have been making at least $100,000 to $125,000 a year in salary and bonuses to date. I find that at a minimum if she were still at Scotia, she should be making $100,000 a year today.

vii. Had the plaintiff continued to work at Scotia, she would be making more than the $80,343.

viii. As a result of her injuries from the fall, and consequential sequelae, the plaintiff has been unable to work in the same work environment that she did before the fall.

ix. The plaintiff now has a benevolent employer.

x. The plaintiff has sustained a past loss of income which is the difference between what she could have been making at Scotia, but for the fall, and what she is currently making at the CRA.

xi. I find the that the plaintiff’s chronic neck pain and headaches, caused by the fall, and her sleep issues, caused by her neck pain, have impacted her employment. As a result of her injuries and ongoing impairments, I find that she would be at a competitive disadvantage in the marketplace.

Past Loss of Income

[197] In the result, I accept the past loss of income for the plaintiff to be $173,400 as calculated by Polisuk up to May 2021, which represents the difference between what the plaintiff was earning at Scotia based on an annualized income of $80,343, adjusted for inflation, since August 2016 to May 2021, and what she has earned from CRA to that date.

[198] I find that on a balance of probability the plaintiff has sustained a past loss of income of $173,400 as a result of injuries sustained in the accident.

[199] As for the plaintiff’s future loss of income, I am satisfied that on the evidence that there is a real and substantial possibility that the plaintiff would have been earning $100,000 a year. Gallant uses a retirement age of 64 for women based on Statistics Canada Labour Force Survey, which was not provided to the court. Polisuk uses retirement ages of 55, 60 and 65. On cross examination he agreed, the first two were based on what the plaintiff told him, in that she did not believe she would be able to work until retirement. This is, of course, hearsay, but nonetheless, more is required either in the form of vocational or medical evidence to support that position, or, at the very least statistics, if available, on the retirement pattern of Canadian females and the relationship between disability: Anand v. Belanger, 2010 ONSC 2435.

[200] I would therefore reject the early retirement ages of 55 and 60 as it is not supported by any medical or other evidence. In the absence of any other evidence, I find that the plaintiff’s retirement age is 65. While the countervailing economic loss report by Ms. Gallant refers to a retirement age of 64 for women, based on statistics, this evidence was not explored at trial.

[201] I find that in the absence of real evidence, a retirement age of 65 is appropriate in the circumstances.

[202] In my view, the future loss of income is the plaintiff’s loss of earning capacity which is the difference between the probable earnings from the CRA and the earnings she could have earned at Scotia had the fall not occurred. The plaintiff was earning $70,000 a year at CRA in 2021. Had she remained at Scotia, she would likely be earning at least $100,000.00 a year. Polisuk has calculated the present value of the plaintiff’s earning capacity, assuming she works until age 65, and assuming that she as earning $100,000.00 at Scotia and $70,000.00 from CRA. The present value of the amount the plaintiff would earn from Scotia at an annual income of $100,000 a year to age 65 is 1,967,470 and $1,377,229 from CRA and an annual income of $70,000 per annum. In the result the difference is f $590,200.

[203] As for the plaintiff’s future loss of income, I also find that Polisuk’s quantification of the plaintiff’s loss of earning capacity is quite conservative as it does not take into account the anticipated progression of her employment at Scotia, had she remained, or the fact that her bosses have managed to grow their practice by 60 to 70% since she left.

[204] The standard of proof for future losses is lower. The onus is on the plaintiff to establish that there is a substantial possibility that a future loss will occur: Schrump v. Koot (1977), 1977 CanLII 1332 (ON CA), 18 O.R. (2d) 337 (C.A.). Dr. Waseem says her prognosis is poor. Dr. Gawel says her migraines and headaches are chronic, and on cross examination noted that just because someone studies (or goes to work) this does not mean that their headache is not debilitating; it just means that they are motivated. Dr. Selchen agreed that when he saw the plaintiff in 2021, she was taking a number of medications for her pain. Dr. Kleinman notes she has chronic pain with somatic complaints and recommends a mental health professional. Absent before the court is any such report. All the experts in this case impressed me with the fact that they made concessions where necessary and, for the most part, stayed in their own lane. On the evidence before me, the plaintiff’s prognosis is poor.

[205] The plaintiff has discharged the onus of proving that there is a substantial possibility that she will suffer future loss of income at $590,200, subject to the contingency set out below.

Should the court apply contingencies to future losses

[206] A plaintiff who establishes a real and substantial risk of future pecuniary loss is entitled to compensation: Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (C.A.) [Graham]. However, a plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. The plaintiff’s entitlement to compensation depends, in part, on the degree of risk established. The measure of compensation will also depend on the possibility, if any, that a plaintiff would have suffered some or all of the projected losses even if the wrong done had not occurred: Graham, at pp. 634-635.

[207] The Ontario Court of Appeal noted in Graham that contingencies may be general or specific. General contingencies represent the common lot of all of us. Adjustments based on general contingencies should only be modest: Graham, at p. 635-636.

[208] General continencies do not require evidentiary proof whereas specific contingencies are peculiar to the plaintiff and do require evidence. As the Court of Appeal noted in Graham: “The evidence will not prove that the potential contingency will happen or that it would have happened had the tortious event not occurred, but the evidence must be capable of supporting the conclusion that the occurrence of the contingency is a realistic as opposed to a speculative possibility”: Graham, at p. 636.

[209] The Supreme Court of Canada has indicated that as a general rule, the court take account of contingencies that might affect future earnings despite the fact that these contingencies are already implicitly contained in an assessment of the projected average level of earnings of the person wronged. The Court noted that not all contingencies are adverse, and the percentage deducted is generally small: Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, at p. 253.

[210] In Graham, for example, there was evidence that the plaintiff was “operating on the edge of disaster” as a result of a prior injury, and the Court of Appeal reduced the plaintiff’s award for future income loss by 25%. In Gerula v. Flores (1995), 1995 CanLII 1096 (ON CA), 126 D.L.R. (4th) 506 (Ont. C.A.), there was no actuarial evidence specific to the plaintiff. The court considered both the general and specific contingencies (both positive and negative), and discounted the plaintiff’s income in absence of the injury by 10% (and the plaintiff’s projected earnings after the injury by 20%).

[211] There are instances where expert assistance is useful: Hibberd v. William Osler Health Centre, 2009 CanLII 5785 (Ont. S.C.), aff’d 2010 ONCA 294 and Butler v. Royal Victoria Hospital, 2017 ONSC 2792, aff’d 2018 ONCA 409. In Barker v. Barker, 2021 ONSC 158, Morgan J. commented at para. 118.

Broad, unsupported deductions for specific contingencies that come from a damages expert’s own intuitions about the employment prospects of a person with a specific medical diagnosis or disability have been found to be unacceptable; rather, specific evidence about the individual’s condition and its potential impact on employment is necessary: K.M. v. Marson, 2018 ONSC 3493, at para. 650. This generally means that an accounting or other damages expert must be supported not only by medical evidence but by vocational expert evidence where a medical or psychiatric condition translates into a specific contingency for the purposes of a damages calculation. [Emphasis added.]

[212] In this case, neither advanced any evidence about specific contingencies applicable to the plaintiff, whether positive or negative. The plaintiff was in good health before the accident. There is no evidence that the remote motor vehicle accidents, one which resulted in no injuries and the other a sprain rotator cuff, had any long-lasting impact on her. While the changes in her cervical spine were more advanced in a woman of her age, at the time of the fall, there is no medical, or other, evidence before me to indicate if she would develop symptoms which may disable her from working in the future. As for her post fall health, aside from some minor issues, the plaintiff has not had any subsequent serious unrelated health which would disable her from employment or require leaves of absence. Moreover, there is no vocational expert evidence or other evidence before me to translate the plaintiff’s medical diagnoses or prognosis into specific contingencies.

[213] As for whether the court should consider any general contingencies, I note that the commissions she would earn from Scotia were dependent on the assets managed by the partners, which was dependent on the market. There are always fluctuations in the market. Restructuring in these financial institutions is a possibility. If the past is prologue, there is a history of Scotia letting go financial advisors and staff. In August 2016, Scotia terminated at least 10% of its advisors and a significant number of staff.

[214] In the result, the plaintiff’s future losses are reduced by 15%.

Out-of-pocket, treatment, rehabilitation, and medical device expenses

[215] The plaintiff has not provided particulars of out-of-pocket expenses aside from $550 for physiotherapy. She uses a neck device every day. She has a number of devices at home including a TENS machine, massage chair, shoulder harness, neck sling, and wedge pillows. She spent approximately $7000 on a chair.

[216] There is no evidence of expenses, if any, for medications that she is taking.

[217] Dr. Waseem recommended ongoing massage therapy and physiotherapy long-term and that she should continue to take medication to manage her pain, as well as injections for her neck pain, and Botox Injections for her headaches. The two litigation expert neurologists on both sides, Dr. Gawel and Dr. Selchen agreed Botox was a possible treatment for migraines. However, one volunteered that it does not work for everyone.

[218] On cross examination, the plaintiff was not challenged about the cost of the chair, or the devices purchased to alleviate her pain. I would assess the plaintiff’s out of pocket expenses in the amount of $10,000.00.

Loss of Housekeeping and Handyman Capacity

[219] The defendants suggest that the plaintiff is able to perform heavy duties as evidenced by entries in clinical notes and records filed. Being able to perform heavier work should not result in a medical visit. Dr. Selchen, the defence neurologist, who saw the plaintiff in 2021, testified that from a neurological perspective he did not expect any impact on the plaintiff’s housekeeping. Dr. Kleinman, the defence physiatrist, stated that from a physical perspective, there was no loss of function in the area of housekeeping.

[220] Ms. Mullane assessed the plaintiff’s function with respect to a number of activities including carrying a small load of laundry, carrying a green and blue bin, and simulating vacuuming and other housekeeping chores. She stated that the plaintiff appeared very fatigued and was breathing hard during the assessment. On cross, she stated that a person can perform within functional limits, but with pain. I give little weight to Ms. Mullane 2 hour functional assessment which, on its face, was limited because of the number of hours devoted to both a functional assessment of employment and housekeeping chores.

[221] It is not clear, however, from the evidence, what housekeeping chores, the plaintiff could not perform or could only complete with difficulty. She was clear however that before the accident she used to set aside some time and do housekeeping in a blitz; she can no longer do that and completes her chores in stages. Her daughter and her husband offer occasional assistance.

[222] The plaintiff can do minor repair work on her rental property. When her own house was renovated, she was able to help with some of the electrical, do some design work, got the permits, but third parties were hired for the work.

[223] The plaintiff had proposed to call an owner of a cleaning company to provide evidence with respect to hourly rates of housekeepers, which I excluded based on, among other things, the fact that the statement of claim did not plead a claim for loss of housekeeping and handyman capacity. No motion was brought to amend the statement of claim at any time, even at the trial. Aside from the pleadings, the plaintiff did not present any evidence that she had incurred out-of-pocket expenses for housework done by others or, alternatively, tender any evidence showing the hours spent by others completing the housework gratuitously: McIntyre v. Docherty, 2009 ONCA 448 [McIntyre].

[224] However, as noted in McIntyre, the claim for future loss of housekeeping capacity is not barred by the plaintiff’s failure to establish that she will engage third parties to do the work: McIntyre, at para. 58. The question in McIntyre concerned an appeal of a jury award to the plaintiff for “past housekeeping inefficiency" and for past and future "lost housekeeping capacity”. Lang J.A. commented that the plaintiff may be compensated for loss of housekeeping capacity in the following circumstances:

i. Where the plaintiff leaves work undone and where a third party does not do the work in the injured person's stead.

ii. If the plaintiff can complete housekeeping chores but does so with pain and difficulty.

iii. If the plaintiff has hired a third party to provide a pre-trial out-of-pocket loss by hiring replacement housekeeping services.

[225] I accept that the plaintiff is not able to perform her housekeeping chores as she did before. I accept that the plaintiff has functional limitations which impact her ability to complete her housekeeping as she did before the fall. Dr. Kleinman did find a loss of range of motion in the plaintiff’s neck, which he conceded was an impairment. Though he thought it was unrelated, given the plaintiff had no pre-existing neck complaints, and he himself agreed that none of her preexisting medical history has an impact on her current condition, I give little weight to his comment that the loss of range of motion in her neck is unrelated.

[226] The plaintiff is able to carry out housework by doing housework piecemeal. To the extent that work is left undone, she has to spread out her housework to be completed over time, or chores are performed with pain, these damages may be best described as a loss of housekeeping inefficiency, which may be properly a loss of enjoyment and loss of amenity and are properly assessed as non-pecuniary general damages.

[227] I would assess the plaintiff’s past housekeeping inefficiency in the amount of $15,000.00.

[228] As for future housekeeping damages, in my view the failure to plead or seek an amendment should be fatal. In any event, neither the plaintiff, her daughter, or her husband’s evidence clarified for the court what work was left undone and carried out by others. Her husband’s evidence that he sometimes cleans dishes which she leaves behind or helps lift heavy grocery is hardly compelling; housework should be shared equally: Vykysaly v. Jablowski, 1992 CanLII 7683 (Ont. Gen. Div.). The plaintiff’s occupational therapy report makes no recommendations with respect to housekeeping services. Finally, the amount awarded above adequately compensates the plaintiff for loss of housekeeping capacity (loss of housekeeping inefficiency).

OHIP Subrogated Interest

[229] The parties could not agree on OHIP’s subrogated claim. Deborah Smith, a representative of the Ministry of Health testified that services with respect to the fall, starts on May 25, 2012, with the last service date being July 7, 2021. I therefore find that the sum of $9,380.18 should be paid for the OHIP subrogated claim for past medical expenses.

[230] The total claim amounts to $9,380.18. As the plaintiff is not contributorily negligent, there shall be no reduction in OHIP’s subrogated claim.

DISPOSITION

[231] In the result, I find that based on the admissions made by the representative of the defendants at examination for discovery, the defendants had control of the conditions of the premises and were therefore occupiers.

[232] The plaintiff has proved, on a balance of probability, that the defendants breached the standard of care set out in s. 3(1) of the Occupiers’ Liability Act.

[233] The plaintiff is not contributorily negligent for the fall.

[234] The plaintiff sustained a concussion in the accident and sustained soft tissue injuries to her neck, which was superimposed on her asymptomatic degenerative changes to her neck. The plaintiff’s ongoing chronic headaches and chronic neck pain are as a result of her injuries sustained in the fall.

[235] The plaintiff damages are summarized as follows:

General damages $115,000.00

Income Loss

a. Past Loss of Income $173,400

b. Loss of Earning Capacity $501,500

Miscellaneous Special Damages $10,000.00

Loss of housekeeping and handyman capacity

Past Loss of housekeeping inefficiency/capacity $15,000

[236] The plaintiff’s future losses shall be reduced by a 15% general contingency.

[237] The Ministry of Health is entitled to recover its subrogated claim of $9,380.18.

Prejudgment Interest

[238] The plaintiff is entitled to prejudgment interest on her damages in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

Costs

[239] If the parties are not able to agree on costs, the plaintiff shall deliver costs submissions within 60 days of the date of these Reasons, and the defendants shall deliver their costs submissions within thirty days thereafter. Submissions in Word format must be emailed to Ms. Diamante and must also be uploaded to Caselines with any supporting materials to the Costs bundle.

A. P. Ramsay J.

Released: July 4, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ALISON BRAKS Plaintiff

– and –

DUNDEAL CANADA (GP) INC., DUNDEE REALTY MANAGEMENT CORP. and DUNDEE REALTY MANAGEMENT INC Defendants

REASONS FOR DECISION

A. P. Ramsay J.

Released: July 4, 2022