COURT FILE NO.: CV-17-73585

DATE: 2023/02/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EMILIE ADDY

Plaintiff

– and –

PIERRE GOULET, LOCAL PUBLIC EATERY (LANSDOWNE PARK), LANSDOWNE RETAIL GP INC., LANSDOWNE RETAIL LIMITED PARTNERSHIP

Respondents

Joseph Y. Obagi and Adam Aldersley, counsel for the plaintiff

Ian D. Kirby, counsel for the defendant Pierre Goulet

Jonathan Levy, counsel for the defendants Local Public Eatery (Lansdowne Park), Lansdowne Retail GP Inc. and Lansdowne Retail Limited Partnership

HEARD: January 24, 25, 26, 27, 28 and 31, February 1, 2, 3, 4, 22, 23, 24 and 25 and March 21, 22, 24 and 25, 2022

REASONS FOR DECISION

Justice H. J. Williams

OVERVIEW

[1] On September 16, 2015, by all accounts, Emily Addy’s life was on track. It was her 30th birthday. She had a large circle of friends and one best friend. She had a job she loved, which she was good at. She was earning good money. She was active and athletic: She played indoor and beach volleyball; she ran; she snowboarded; from time to time, she drove a motorcycle. Ms. Addy owned a house. She owned a dog. Life was falling into place.

[2] Two days later, on September 18, 2015, Ms. Addy went to Local Public Eatery at Lansdowne Park in Ottawa with some friends. It was two days after her birthday, but it had been a milestone birthday, and the celebrations were continuing. It was a warm evening, and Ms. Addy and her friends either sat at or gathered around an outdoor table.

[3] Pierre Goulet went to Local that night too. Mr. Goulet had attended the Ottawa folk music festival earlier in the day. Mr. Goulet had been drinking at the festival, but he couldn’t say how much. When Mr. Goulet arrived at Local, he and his friends ordered drinks and began to play bocce ball on Local’s outdoor bocce court.

[4] Ms. Addy and Mr. Goulet didn’t know each other, but they both knew someone named Patrick, who was also at Local that night. Ms. Addy and Patrick had dated briefly earlier in the year and had remained friends. Mr. Goulet and Patrick had played hockey together when they were younger. When Patrick saw Ms. Addy and her friends, he dropped by their table to chat with her.

[5] When Mr. Goulet first saw Patrick that night, Mr. Goulet was on the bocce court and Patrick was standing beside the table where Ms. Addy was sitting. Ms. Addy was facing away from Mr. Goulet. Mr. Goulet tried to catch Patrick’s attention. Mr. Goulet wanted Patrick to join him on the bocce court. When Mr. Goulet thought he had caught Patrick’s eye, he tossed a bocce ball toward Patrick.

[6] What happened next was the reason the events of the evening of September 18, 2015 turned into a lawsuit. Mr. Goulet threw the ball short. Patrick did not catch it. After the ball left Mr. Goulet’s hand, it travelled upward into the air and then, as gravity dictated it must, it came down, and when it came down, it hit Ms. Addy on the back of the head.

[7] Ms. Addy’s life has not been the same since. Some good things have happened to her. She met the man she plans to spend her life with. They have had a baby girl. They bought a house together. Ms. Addy is continuing to work in the same field. But since being hit on the head by the bocce ball, she has been plagued by fatigue and headaches. Her headaches are managed with medication but can be exacerbated by physical or mental exertion. She has difficulty concentrating and finds herself making mistakes at work. She doesn’t socialize as much. She can no longer do everything she wants to do; she has to pace herself and her days have been cut short because the fatigue forces her to bed early.

[8] The degree to which Mr. Goulet is responsible for Ms. Addy’s injuries and Ms. Addy’s damages were at issue at trial.

The Pierringer Agreement

[9] The defendants to Ms. Addy’s action were initially Mr. Goulet, Local Public Eatery (Lansdowne Park), Lansdowne Retail GP Inc. and Lansdowne Retail Partnership. Ms. Addy later settled her claim against the defendants other than Mr. Goulet and entered into what is known as a Pierringer Agreement.

[10] Named for the 1963 Wisconsin case of Pierringer v. Hoger, 124 N.W.2d 106 (Wis. 1963), a Pierringer Agreement allows one or more defendants in a multi-party proceeding to settle with the plaintiff and withdraw from the litigation, leaving the remaining defendants responsible only for the loss they actually caused. There is no joint liability with the settling defendants… (Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 SCR 623, at para. 6.)

[11] As for any concern that the non-settling defendants will be required to pay more than their share of damages, it is inherent in Pierringer Agreements that non-settling defendants can only be held liable for their share of the damages and are severally, and not jointly, liable with the settling defendants. (Sable Offshore Energy Inc., at para. 26.) That Mr. Goulet would not be required to pay more than his share of damages was specifically set out in Ms. Addy’s statement of claim, which was amended after the Pierringer Agreement was entered into: “For greater clarity, the Plaintiff has agreed not to seek recovery from Pierre Goulet for any amount which he would be entitled to recover from Local, Retail and/or Partnership [the three other defendants] by way of contribution and/or indemnity through any crossclaim or third party claim in this action.” (Amended statement of claim, para. 26.)

[12] Ms. Addy’s counsel has provided Mr. Goulet’s counsel with a copy of the Pierringer Agreement, with the amount of the settlement redacted. The amount will be disclosed to Mr. Goulet’s counsel once this decision has been released.

Liability

Overview

[13] Ms. Addy’s position at the trial was that Mr. Goulet is entirely responsible for her injuries.

[14] Mr. Goulet does not suggest that Ms. Addy is in any way responsible for her injuries. Mr. Goulet admits that he is primarily responsible, however, he argues that Local shares responsibility, and that his liability should be limited to 75 to 90 per cent.

[15] As it is Mr. Goulet, and not Ms. Addy, who argues that Local shares liability for Ms. Addy’s injuries, Mr. Goulet bears the burden of providing Local’s liability.

[16] Ms. Addy’s claim against Local is under the Occupiers’ Liability Act, R.S.O. 1990, c. O. 2 and in negligence.

[17] The statutory standard of care under the OLA is set out in s. 3(1), which reads 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 person entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises.

[18] The section assimilates occupiers’ liability with the modern law of negligence. (Waldick v. Malcolm, 1991 CanLII 8347 (ON CA), at para. 20, aff’d 1991 CanLII 71 (SCC), [1991] 2 SCR 456.)

[19] Because the foundation for Local’s liability, if any, is a bocce ball game, s. 3(2) of the OLA is also relevant. It provides that the duty of care in s. 3(1) applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.

[20] Ms. Addy concedes that Local is an “occupier” within the meaning of the OLA and that it owed her a duty under s. 3(1). She argues that Local did not breach its duty to her.

[21] Mr. Goulet argued that Local should have done more to ensure that Ms. Addy was reasonably safe while she was there. Mr. Goulet argued that it was foreseeable that someone would throw a ball from the bocce court into the seating area. He argued that balls are meant to be thrown. Mr. Goulet argued that it was known that people playing bocce ball at Local were likely to be drinking and that drinking lowers inhibitions. Mr. Goulet argued there should have been plexiglass or some other barrier between the bocce court and the seating area to protect patrons from out-of-bounds bocce balls. Mr. Goulet also argued that several months after he hit Ms. Addy with the bocce ball, Local posted a sign with some rules of play, which included keeping the balls on the court. Mr. Goulet argued that it would have been easy and inexpensive for Local to have posted the sign earlier.

Standard of care

[22] While the OLA imposes a duty on occupiers, the duty is not absolute. The requirement is reasonableness. The statutory duty on occupiers is framed quite generally. The 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 (emphasis in original) is reasonable": Waldick v. Malcom, SCC, supra, at p. 472.

[23] “What constitutes reasonable care”, to quote from the paragraph above, is called the “standard of care”. In Ryan v. Victoria (City), 1999 CanLII 706 (SCC), [1999] 1 S.C.R. 201, at para. 28, the Supreme Court of Canada considered how the appropriate standard of care is to be assessed:

Conduct is negligent if it creates an objectively unreasonable risk of harm. To avoid liability, a person must exercise the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances. The measure of what is reasonable depends on the facts of each case, including the likelihood of a known or foreseeable harm, the gravity of that harm, and the burden or cost which would be incurred to prevent the injury. In addition, one may look to external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

[24] Put another way: Relevant factors in this [the standard of care] assessment include whether the risk of injury was reasonably foreseeable, the likelihood of damage and the availability and cost of preventative measures (P. H. Osborne, The Law of Torts (6th ed. 2020), at pp. 29-30; Bolton v. Stone, [1951] A.C. 850 (H.L.)). A reasonable person “takes precautions against risks which are reasonably likely to happen” (Bolton, at p. 863; Nelson (City) v. Marchi, 2021 SCC 41, at para. 91.)

[25] If a plaintiff is injured on premises, in order to succeed in an occupier’s liability claim, the plaintiff must be able to pinpoint some act or failure to act on the part of the occupier that caused the plaintiff’s injury: Nandlal v. Toronto Transit Commission, 2014 ONSC 4760, at para. 8, aff’d 2015 ONCA 166, citing St. Louis-Lalonde v. Carleton Condominium Corp. No. 12, [2005] O.J. No. 2721 (S.C.J.), at para. 27.

Causation

[26] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss. The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury. That link is causation. (Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at para. 6.)

[27] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. (Clements, at para. 8.)

[28] The “but for” causation test must be applied in a robust common sense fashion. (Clements, at para. 9.)

[29] In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportioned liability according to the degree of fault of each defendant pursuant to contributory negligence legislation. (Clements, at para. 12.)

Facts relevant to the issue of liability

[30] The following findings of fact are relevant to the issues of issues of standard of care and damages.

[31] Local is at Ottawa’s Lansdowne Park, an urban space which includes numerous restaurants, retail stores and TD Place, where the city’s Canadian Football League team plays. There is an outdoor patio in front of the building that houses Local. The bocce court is on this outdoor patio. Local’s outdoor seating is located immediately in front of the building and between the building and the bocce court. The bocce court is a long and narrow rectangle. Its long side fronts onto Lansdowne Park’s courtyard/promenade.

[32] The following diagram is not to scale:

LOCAL PUBLIC EATERY (RESTAURANT)

OUTDOOR PATIO SEATING

BOCCE COURT

LANSDOWNE PARK COURTYARD/PROMENADE

[33] From the photographs in evidence, the bocce court appears to be about two metres in width and perhaps five or six times longer than it is wide. The play area is covered in green outdoor carpet and has a wooden border, made of beams, similar in appearance to railway ties. Six tall wooden posts, one attached to each corner of the border and one to the middle of each of its long sides, support a pergola-style roof. Strings of exposed bulb lighting are attached to the underside of the roof. There are chains, roughly waist-high, along the side of the court that is open to the Lansdowne Park courtyard. The chains are strung between the three tall wood posts on that side and four shorter posts, two on each side of the tall post in the middle. There are no short posts and no chains on the opposite side of the court, the side adjacent to Local’s outdoor patio seating; only the wooden border of the play area separates the court from the seating area.

[34] Ms. Addy’s 30th birthday was September 16, 2015. On Friday, on September 18, 2015, Ms. Addy met with friends to celebrate. Ms. Addy and her friends gathered at Local around 8:30 or 9 o’clock. They shared food and had some drinks. Ms. Addy would typically drink only a glass or two of wine but on this special occasion, her friends were buying. Ms. Addy had mojitos and shooters and drank more than usual.

[35] Ms. Addy sat at a table for four on Local’s outdoor patio, two tables over from the bocce court. Some of her friends were standing. Ms. Addy’s back was to the bocce court.

[36] Around 11 or 11:30, a man Ms. Addy knew named Patrick came over to her table to chat with her. Ms. Addy and Patrick had dated briefly and had remained on good terms. Ms. Addy remained seated. Patrick stood behind her and to her left. Ms. Addy and Patrick spoke for a little while. Then Ms. Addy heard a thump. From her perspective, everything went black, probably for a few seconds. Then she felt throbbing pain on the back, right side of her head. Ms. Addy began to cry and, both in pain and embarrassed, ran to the bathroom.

[37] Before she heard the thump, Ms. Addy had heard some shouting behind her, including Patrick’s name being shouted out.

[38] On September 18, 2015, Mr. Goulet was 38 years old. Mr. Goulet had been at a music festival before he arrived at Local that night. He had been drinking at the festival, but he could not say how much.

[39] Mr. Goulet did not know that he was being sued until a year later, so he had not known that how much he had to drink that night might be important to remember.

[40] Mr. Goulet and some of his friends played bocce ball at Local. Mr. Goulet knew he consumed alcohol while at Local, but he could not say whether it was hard liquor, wine or beer.

[41] Mr. Goulet had played bocce ball before. He said that he was fairly familiar with how to play. He said that throwing both overhand and underhand were permitted.

[42] When he was on the bocce court, Mr. Goulet saw Patrick, whom he had played hockey with when he was younger. Mr. Goulet wanted Patrick to join him and his friends on the bocce ball court. Mr. Goulet called out to Patrick and believed he had made eye contact with him.

[43] Mr. Goulet then tossed a bocce ball to Patrick. Mr. Goulet and Patrick were separated by about three metres at the time. Patrick was standing. Ms. Addy was seated beside Patrick and was a little closer to Mr. Goulet than Patrick was. Mr. Goulet was standing on the bocce court. Mr. Goulet did not warn Patrick that he was going to throw the ball. Mr. Goulet threw the ball underhanded “with a reverse grip”, as he put it, with his palm over the ball. The ball travelled both forward and up.

[44] Patrick did not testify. There was no evidence about whether he saw the ball coming. The ball did not make its way to Patrick. When it left Mr. Goulet’s hand it went about six and a half feet up into the air[^1] and came down on Ms. Addy’s head.

[45] Before he threw the ball, no one at Local had told Mr. Goulet that he and his friends were misbehaving or being too boisterous.

[46] Mr. Goulet acknowledged that throwing the ball into a crowded restaurant was a dangerous thing to do. He said he never wanted to hurt anyone. He said he knew that throwing the ball up into the air could harm someone, but that Patrick had not been far away from him. He thought that the ball would make it to Patrick and that Patrick would catch it. On cross-examination, Mr. Goulet agreed that his decision to throw the ball was a momentary lapse of reason.

[47] Mr. Goulet said he had wanted to apologize to Ms. Addy when she came out of the bathroom, but she swore at him, and it was clear that she did not want to speak with him.

[48] Mr. Goulet said that someone from Local asked him whether he had thrown the ball that hit Ms. Addy and he admitted that he had. He was asked to leave, and he left, without protest. He said he was asked to leave not because Local had determined that he was intoxicated but because he had thrown the ball that hit Ms. Addy. He did not think that it was unreasonable for Local to have asked him to leave in the circumstances.

[49] Mr. Goulet could not say whether, at the time, there were any signs posted on the bocce court.

[50] On re-examination, Mr. Goulet said that if there had been a sign with rules, and he had seen it, he would have followed the rules.

[51] The bocce court at Lansdowne Park’s Local opened in 2015, the year Ms. Addy was injured.

[52] A bocce court at a Local in Toronto has been open since 2014. Cheryl Conn, a manager with the company that owns about 10 Local Public Eatery locations across Canada, said there may be a court at a Local in Edmonton as well. Ms. Conn said she moved to Ottawa from Toronto in September 2015. Other than the incident involving Mr. Goulet and Ms. Addy, Ms. Conn was not aware of any incidents involving bocce balls at the Local in Toronto or Ottawa. If someone had thrown a bocce ball outside the court and no one was injured and no property was damaged, the incident might not have come to her attention. Ms. Conn would not have been made aware of any incidents involving a bocce court in Edmonton, because it was not within her jurisdiction.

[53] Ms. Conn said that she was “relatively” familiar with bocce ball and had played. She described the equipment used by Local for bocce was as being probably a standard Canadian Tire-type of set. She said the ball is larger than a baseball and perhaps a little bigger than a softball. She estimated that it weighs one to two pounds. She said the balls are hard; she did not know what they are made of.

[54] A sign was posted on the bocce court at Local at the beginning of the outdoor patio season in 2016. The sign reads as follows:

BOCCE RULES

BALLS ARE MEANT TO BE ROLLED, NOT TOSSED.

KEEP YOUR BALLS BELOW WAIST HEIGHT.

ABSOLUTELY

NO LOBBING OF BALLS.

KEEP YOUR BALLS IN THE COURT.

STAY SAFE & HAVE FUN!

[55] Ms. Conn said it was probably fair to say that the sign was put up to prevent any future incidents such as the one involving Mr. Goulet and Ms. Addy, but that this was really just a guess on her part.[^2]

[56] Ms. Conn said that part of her job is to ensure that the company complies with municipal and provincial requirements for bars and restaurants, including the requirements of the Alcohol and Gaming Commission of Ontario. She said she was not aware of any municipal or provincial regulations or standards for bocce courts.

[57] All staff at Local who interact with the public are certified under the AGCO’s “Smart Serve” program. The program teaches staff safe serving practices and how to monitor for signs of intoxication. Local employees also have training in completing incident reports. These systems were in place at the time Ms. Addy was injured.

Liability - Analysis

[58] Ms. Addy and Mr. Goulet agree that Local owed Ms. Addy a duty of care.

[59] My task is to determine whether, on the facts of this case, Local exercised the standard of care that would be expected of an ordinary, reasonable and prudent person in the same circumstances.

Did Local exercise the expected standard of care?

[60] As I have already observed, Mr. Goulet bears the onus of proving that Local breached its duty to Ms. Addy by failing to exercise the expected standard of care.

[61] To determine the standard of care expected of Local, I must ask what standard of care would be expected of an ordinary, reasonable and prudent person in the same circumstances as Local, having regard to the likelihood of a known or foreseeable harm, the gravity of that harm, the burden or cost which would be incurred to prevent the injury and, if appropriate, external indicators of reasonable conduct, such as custom, industry practice, and statutory or regulatory standards.

[62] Mr. Goulet does not suggest that having a bocce court on the premises of Local, in and of itself, was a breach of the standard of care. He argues that, particularly as Local’s patrons could be expected to consume alcohol while playing bocce, and become less inhibited as a result, Local should have taken positive steps to protect Ms. Addy from balls that might be thrown off the court and into the seating area.

[63] Mr. Goulet argues that there should have been a plexiglass or other divider separating the bocce court from the seating area. He also argues that a sign on the bocce court setting out rules for safe play, such as the sign that was posted in the spring of 2016, would have been an inexpensive and easy way to reduce the likelihood of injury on September 18, 2015.

The likelihood of a known or foreseeable harm

[64] Ms. Addy argues that it was not foreseeable that Mr. Goulet would throw a bocce ball off the court and cause her injury. Ms. Addy argues that Mr. Goulet threw the ball suddenly and without warning and that there was no evidence that Mr. Goulet was particularly intoxicated. Ms. Addy relies on two cases: Bucknol v. 2280882 Ontario Inc., 2018 ONSC 5455, in which the court found that it was not foreseeable that someone in a bar would hit another person with a beer bottle, and Wandy v. Danyluk, 2014 SKCA 81), in which the court found that it was not foreseeable someone in a bar would throw a chair at another person.

[65] Mr. Goulet argues that it was entirely foreseeable that someone at Local might throw a bocce ball to another person. Mr. Goulet argues that the facts of this case are different from the facts of the two cases relied on by Ms. Addy: Mr. Goulet argues that beer bottles and chairs are not meant to be thrown, but balls are.

[66] The foreseeability question which must be asked in the context of the standard of care analysis in this case, is not only whether it was foreseeable that someone would throw a bocce ball to another person at Local. It is whether it was reasonably foreseeable that someone would throw a bocce ball to another person at Local and that someone, Ms. Addy in this case, would be injured as a result:

It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough. There must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken. (Bolton, supra.)

[67] The precise circumstances leading up to an accident need not be foreseeable. The test for reasonable foreseeability is whether, in general, injury was reasonably foreseeable, not whether the specific mechanics of the injury were foreseeable. (Bingley v. Morrison Fuels, 2009 ONCA 319, at para. 20.) “It is enough to fix liability if one could foresee in a general way the sort of thing that happened. The extent of the damage and its manner of incident need not be foreseeable if physical damage of the kind which in fact ensues is foreseeable…[O]ne need not envisage ‘the precise concatenation[^3] of circumstances which led up to the accident’, provided that the general harm is reasonably foreseeable.” (Bingley, at para. 21, citing Assiniboine South School Division No. 3 v. Greater Winnipeg Gas Co., 1971 CanLII 959 (MB CA), [1971] M.J. No. 39, 21 D.L.R. (3d) 608 (C.A.), affd [1973] S.C.R. vi, 1973 CanLII 1313 (SCC), [1973] S.C.J. No. 48.)

[68] There was no evidence that anyone had ever been injured by a bocce ball at a Local before. Ms. Conn was not aware of any other incidents at either the Toronto or the Ottawa Local involving a bocce ball that was thrown outside the confines of the court. However, Local’s track record with bocce courts was not long: As I have already noted, the Toronto Local had had a bocce court only since 2014, the year before Ms. Addy was injured; the Ottawa Local had opened its court in 2015, the year of Ms. Addy’s injury. Ms. Conn did not know whether Local would have records of an incident involving a wayward bocce ball if no one was hurt and if no property was damaged.

[69] There was no evidence of any other instances in which a person was injured by a bocce ball at a bar or restaurant or anywhere else. There was no evidence about how common bocce ball injuries are generally.

[70] While it is true, as Mr. Goulet argued, that bocce balls are intended to be thrown (or rolled), they are not intended to be thrown to other people. The evidence at trial was that they are quite heavy[^4] and are intended to be thrown or rolled toward a target ball, which is on the court and therefore at ground level. The bocce court at Local had a green carpeted playing surface with a wooden perimeter, leaving little doubt as to where the bocce balls were intended to be.

[71] The evidence has not satisfied me that, even though the people who played bocce at Local were likely to be drinking, it was reasonably foreseeable that bocce balls would be flung from the bocce court into the adjacent seating area on a routine basis. Mr. Goulet had been drinking and he admitted that he knew at the time that throwing a bocce ball off the court was a dangerous thing to do. I am, however, satisfied that it was reasonably foreseeable that an exuberant bocce player, like Mr. Goulet, lubricated by alcohol, would throw a bocce ball out of bounds from time to time.

[72] The evidence has also satisfied me that if a ball is thrown from the bocce ball court at Local into the seating area, it is reasonably foreseeable that someone will be injured. This is for three reasons: 1) It is likely that the person who made the unfortunate choice to throw the ball into the seating area had consumed alcohol, which could affect their coordination and their aim. Mr. Goulet is a case in point: He intended to toss the ball to his friend but did not throw it far enough; 2) Bocce balls are both heavy and hard; and 3) The seating area frequently would have been crowded. I take judicial notice that summer in Ottawa is short and that outdoor patios are popular in good weather. Ms. Addy described how on September 18, 2015 she was seated at a table for four but some of her friends were standing around. She described how Patrick dropped by to chat and was standing beside her table. Mr. Goulet subjectively recognized the risk of injuring someone when he admitted that throwing the ball from the court was dangerous.

The gravity of the harm

[73] The harm that could be caused if someone were to throw a bocce ball off the court and hit another person is potentially serious, as Ms. Addy’s experience illustrates.

[74] As I mentioned, bocce balls are heavy and hard. In this case, the ball was thrown up in the air and came down on Ms. Addy’s head. I can envision another scenario where a ball’s momentum is in a forward, rather than an upward and then downward direction, and the ball hits a person in the mouth, the temple or elsewhere on the face. In either case, the harm has the potential to be grave.

The burden or cost which would be incurred to prevent the injury

[75] Mr. Goulet argued that the standard of care expected of local required a plexiglass or other barrier between the bocce court and the seating area.

[76] There was no evidence about the burden that would be associated with such a barrier. There was no evidence of how high the contemplated barrier would have to be, whether any modifications to the existing structure of the bocce ball court or the configuration of the patio would be required or how players and servers would access the court if such a barrier were in place. Such a barrier would cut the court off from the seating area, which would be the intention. There was no evidence about whether this might have an impact on the ability of servers not only to serve customers on the court but also to hear and otherwise monitor players for excessive enthusiasm or intoxication. There was also no evidence about the cost of such a barrier.

[77] There was no evidence about the burden or cost associated with the installation of a sign such as the sign installed at Local in the spring of 2016. Having seen a photo of the sign that was installed in 2016, I am prepared to find that neither the burden nor the cost of the sign was significant.

Custom, industry practice, and statutory or regulatory standards

[78] There was no evidence of any external indicators of reasonable conduct on the part of bars or restaurants that offer bocce. There was no evidence of whether bocce courts, either indoor or outdoor, are typically separated from bystanders by plexiglass or other dividers or by distance. There was no evidence of custom or industry practice. There was no evidence of how bars that offer other games such as shuffleboard, pool or darts typically manage risk of injury.

[79] Other than Ms. Conn’s evidence that she was not aware of any municipal or provincial regulations or standards for bocce courts, there was no evidence of statutory or regulatory standards that might apply.

Conclusion with respect to standard of care

[80] I have found that it was reasonably foreseeable that a person would be injured at Local if someone threw a bocce ball from the bocce court into the seating area and that that the injury potentially could be severe. I have also found that the burden and cost of installing a sign instructing bocce ball players to ensure that the balls remained below waist level and within the confines of the court would not have been significant.

[81] Consequently, I find that a sign similar to the sign Local posted on the bocce court in the spring of 2016 should have been in place on September 18, 2015. I am specifically not treating the subsequent installation of the sign as an admission of negligence. I find that by not having such a sign in place the night Ms. Addy was injured, Local failed to exercise the standard of care expected of a reasonable and prudent person in similar circumstances.

[82] The question of whether Local should have had a plexiglass or other barricade separating the bocce court from the seating area is more complicated. As I have already indicated, there was no evidence of the burden or cost to Local of such a barricade. There was no evidence of whether these barricades are typically installed in settings where bocce is played. There was no evidence of any customs, industry practices, standards or guidelines.

[83] Mr. Goulet did not introduce any expert evidence in support of his position that the standard of care expected of Local required such a barrier. While the knock on expert evidence in recent years has been that there has been too much of it and that trial judges have not been sufficiently diligent in refusing to admit it, I find that it would have been of assistance in this case.

[84] Expert evidence is admissible if it meets four requirements: (a) the evidence must be relevant; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to an exclusionary rule; and (d) the expert must be properly qualified. (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9). To be necessary, the evidence must be outside the knowledge and experience of the trier of fact. (Mohan, at p. 23.) There is no “bright line” to determine whether the subject matter of expert evidence falls within the normal experience of a particular trier of fact. In the end, the court in each case will be required to exercise its best judgment in deciding whether a particular subject matter is or is not within the normal experience of the trier of fact. (Meady v. Greyhound, 2015 ONCA 6, at para. 41, citing Bryant, Lederman and Fuerst, The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009) at pp. 799-800, and R. v. D.S.F. (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at p. 625.

[85] While I was prepared to find, without the benefit of expert evidence, that the burden and cost associated with posting a sign on Local’s bocce court would have been minimal and that the expected standard of care required such a sign, I am not able to make a similar or any finding in respect of whether a barrier was required. I do not have sufficient evidence.

[86] The standard of care expected of a restaurant/bar where bocce is played is not within my normal experience. There may be variables at play with which I am not familiar. I do not see any difference between a case such as this and a professional liability case, where expert evidence on standard of care is generally required, except for nontechnical matters or those of which an ordinary person may be expected to have knowledge. (Meady, supra, at para. 34-35, citing Krawchuk. v. Scherbak, 2011 ONCA 352, at paras. 125 and 133.)

[87] I am not prepared to find, on the evidence, that the expected standard of care required Local to erect a plexiglass or other barrier between the bocce court and the seating area.

Causation

[88] Mr. Goulet has not persuaded me that were it not for Local’s failure to have posted a sign with rules on the bocce court on September 18, 2015, Ms. Addy would not have been injured. In other words, Mr. Goulet has not persuaded me that Local’s failure to post a sign caused Ms. Addy’s injury.

[89] Mr. Goulet did not know whether there had been a sign on the court the night Ms. Addy was injured.

[90] On re-examination, Mr. Goulet was asked whether, if there had been a sign with rules on the bocce court on September 18, 2015, and if he had seen the sign, he would have followed the rules. He said that he would have. I place no weight on this evidence. Although I found Mr. Goulet to be an honest witness overall, I found this answer to be self-serving and impossible to accept in light of some of his other evidence. Mr. Goulet gave the answer that he would have followed the rules on the sign quickly and without asking what the rules on the sign were. Further, Mr. Goulet knew that he had been drinking the night of September 18, 2015 but could not remember what he had been drinking or how much he had consumed. Mr. Goulet had admitted that he knew that throwing a bocce ball off the court was dangerous, but he had thought that Patrick would catch it. I cannot accept that, more than six years later, Mr. Goulet could legitimately say that he would have followed the rules on a sign that night, without knowing what the rules on the sign were, knowing that he had been drinking but not knowing how much and when he knew he had done something dangerous that night.

[91] Particularly given that Mr. Goulet already knew that throwing a bocce ball off the court was dangerous, I am not persuaded that a sign, telling bocce players to make sure the balls stayed on the court, would have prevented him from throwing the ball. Mr. Goulet agreed on cross-examination that he thought that any danger associated with throwing the ball would be mitigated by Patrick catching the ball.

[92] For these reasons, I find that although Local did not exercise the expected standard of care by not posting a sign on the bocce court on September 18, 2015, its breach of the standard of care did not cause Ms. Addy’s injury.

Conclusion with respect to liability

[93] I find Mr. Goulet has not proven that Local breached the duty it owed to Ms. Addy by failing to exercise the expected standard of care.

[94] I find Mr. Goulet to be 100 per cent liable for Ms. Addy’s injuries.

DAMAGES

[95] I will begin by summarizing the trial evidence relevant to the issue of damages.

Emilie Addy

Overall impression of Ms. Addy’s evidence

[96] I found Ms. Addy to be an articulate, insightful and pleasant witness and a good historian. Ms. Addy was measured in her description of her injuries and the impact they have had on her life. Polite but thorough and skillful cross-examination did not expose exaggeration or self-serving evidence in Ms. Addy’s evidence in chief. Ms. Addy was described by several witnesses, including medical witnesses, as being stoic and uncomplaining. That was my impression of her as well. I found Ms. Addy to be both a credible and a reliable witness.

Ms. Addy before September 18, 2015

[97] Ms. Addy was born in Ottawa. Her father is a lawyer and her mother was a chartered accountant. Ms. Addy has a brother who is a physician living in Australia.

[98] Ms. Addy was born in Ottawa in 1985. Her family moved to Edmonton in 1996 and then to Toronto in 2000. Ms. Addy attended school in French.

[99] Ms. Addy had always been involved in sports, even as a child. Sports were a central feature of her life and the life of her family.

[100] Ms. Addy played competitive volleyball and basketball in high school and trained with a strength and agility coach. She worked as a sports counsellor in the summer.

[101] Ms. Addy attended the University of Ottawa, in part because it offered a bilingual program and in part because she had extended family living in Ottawa.

[102] While at university, Ms. Addy played recreational sports and worked out regularly. She also worked at the university’s sports complex and for the after-school program at a local community centre.

[103] Ms. Addy had no issues with her health while at university.

[104] Ms. Addy earned an honours Bachelor of Science degree in human kinetics in 2008.

[105] After graduating from university, she travelled and worked in a variety of jobs.

[106] She purchased a home in Ottawa in 2009.

[107] In 2010, Ms. Addy began to work for Ontario Medical Supply, a company which deals in assistive devices, such as wheelchairs and walkers. Ms. Addy started in a support role for the company’s sales consultants but within two years, was promoted to become a sales consultant herself. Ms. Addy’s income steadily increased from approximately $60,000 in 2012 to approximately $110,000 in 2015. (I will review Ms. Addy’s evidence relevant to her employment in more detail below.)

[108] At this time, Ms. Addy had what she described as a good group of friends from university. She spent a lot of time with her best friend, Mia St-Aubin. Ms. Addy was active. She ran, worked out at a gym, played in a basketball league and in indoor and beach volleyball leagues. In the winter, she skied, snowboarded and skated on the Rideau Canal.

[109] Ms. Addy’s family owned a cottage about 40 minutes from Ottawa. Her mother would move to the cottage for the summer and her father would spend weekends at the cottage. Ms. Addy would see her parents at the cottage regularly during the summer months.

Ms. Addy after she was hit with the bocce ball

[110] Ms. Addy’s evidence about the night of September 18, 2015, up to the point where she ran to the bathroom after being hit by the bocce ball, is incorporated into the findings of fact I made under “Liability”, above.

[111] Ms. Addy said that after being hit by the ball, her head was not bleeding but there was obvious swelling. She said there was a pronounced bump at the point of impact, but the swollen area was larger.

[112] Ms. Addy applied ice to her head. One of her friends checked her eyes. Ms. Addy said that Mr. Goulet tried to speak with her as she was leaving Local and there was a brief exchange of words. Ms. Addy said the restaurant was loud and busy, she was in pain and embarrassed to have been seen crying in public. She wanted to leave.

[113] A friend escorted Ms. Addy to her home that night and stayed overnight with her. Ms. Addy said she had a pounding headache that night, her eyes felt heavy, and she was starting to feel dizzy or foggy.

[114] When Ms. Addy continued to feel unwell and disoriented the next day, she went to the hospital.

[115] Ms. Addy said the trigger for her decision to go to the hospital was that she and the friend who had stayed overnight had gone to a restaurant to have breakfast and when she got to the cash, she was unable to add up how much she owed. She felt worse than she had felt the night before. She admitted that she had had more than usual to drink the previous night but said the way she felt was very different from a hangover.

[116] Ms. Addy went to the emergency department at the General Campus of the Ottawa Hospital. She found the lighting at the hospital uncomfortable. Ms. Addy was diagnosed with a mild traumatic brain injury. She was instructed to rest and to follow up with her family doctor and was told not to return to work for 10 days (“10/7”) or until September 30, 2015.

[117] For the next week, Ms. Addy continued to have a headache. It was exacerbated by light and movement, so she kept the lights off and her eyes closed and avoided activity. She tried to watch television on one occasion, but it made her feel worse.

[118] Ms. Addy saw her family doctor, Dr. Allart, on September 25, 2015. Dr. Allart told Ms. Addy to rest and not to return to work.

[119] Ms. Addy’s parents owned a condo in Ottawa. Ms. Addy’s mother stayed in Ottawa during Ms. Addy’s early recuperation to assist her.

[120] Ms. Addy transferred her clients to other sales consultants. Her mother assisted her with this because Ms. Addy was unable to use her phone or computer because doing so would worsen her symptoms.

[121] Ms. Addy returned to see Dr. Allart about a week or 10 days after her first post-incident visit. Ms. Addy said that Dr. Allart again told her not to return to work.

[122] Ms. Addy said that, at this time, she was feeling better. She says that, looking back, she believes that she was benefiting from rest and a lower activity level but not really healing, because increased activity continues to bring on and intensify her symptoms.

[123] Ms. Addy returned to work on a gradual basis beginning in late October 2015. She returned to full-time work just before the Christmas holidays that year.

[124] Around this time, Ms. Addy participated in some social activities but said that she paid a price in that her symptoms would become more intense. She said she attended a fund-raising cocktail party and enjoyed it but was only able to stay an hour. She said she tried to go to a CFL football game, but the lights were bright and it was noisy. Although she wore a hat and ear plugs, she had to leave before the kickoff.

[125] Ms. Addy said that when she resumed full-time work, she was not as efficient as she had been previously. She said she was fatigued and forgetful and unable to process her work as quickly. Driving was difficult for her, particularly in snowstorms.

[126] She said that she was beginning to feel quite down. She said that typically, she had been quite happy, but she noticed that she would often feel angry or sad and was having difficulty controlling these emotions. Ms. Addy said that on one occasion, in early 2016, she questioned whether she wanted to continue to live. She said she gave herself a talking-to and resolved to accept her new reality and to move on. Ms. Addy said she considered herself to be lucky at that time, because she had love and support in her life.

[127] Dr. Allart prescribed amitriptyline for Ms. Addy’s low-grade headache and to help with sleep. Ms. Addy said that, except for when she was pregnant, she has been taking amitriptyline ever since. She said it helped with the low-grade headaches and the sleep but did not help with her more severe headaches. Dr. Allart did not refer Ms. Addy to any specialists.

[128] Ms. Addy said that in 2016, she began to undergo neurofeedback therapy. This therapy is intended to assist patients to control their brain waves and to encourage “good” waves. Ms. Addy said that she continued with this therapy until 2019 when her pregnancy made it no longer feasible. She said that she found the therapy helpful.

[129] Ms. Addy attended the 2016 Grey Cup game in Toronto in 2016. The Ottawa Redblacks played (and won.) Through connections of Ms. St-Aubin, Ms. Addy was invited to the Grey Cup after-party. She said that she was tired and having headaches and was overwhelmed by the crowd, so she went to her parents’ Toronto condo instead. She said that she and Ms. At-Aubin had a quiet drive back to Ottawa the next day.

[130] Ms. Addy said that in 2016, at the time when she was feeling down mentally and emotionally, she made a conscious choice to resume activities she had enjoyed before she was hit with the bocce ball. She began to walk in her neighbourhood with Ms. St-Aubin and her dog, she returned to doing some running and she resumed playing volleyball, although at a recreational rather than a competitive level. She said her volleyball skills had declined, in particular her ability to serve, which requires eye hand coordination. She also said that playing volleyball intensified her headache symptoms for some time after playing.

[131] Ms. Addy and her parents flew to Australia over the Christmas holiday in 2016 to spend time with her brother.

[132] Ms. Addy said that in 2017, her symptoms ebbed and flowed. She said during weeks when she had to do a lot of driving, she might work shorter days. She said the headaches came and went.

[133] In the summer of 2017, she resumed playing beach volleyball. She played once per week for the three or four months of the summer.

[134] Ms. Addy said that with physical and social activities, she would have to make choices. She said that often activities would make her headaches much worse, but she would derive psychological joy from the activities, so she would have to make a choice and weigh the pros and cons.

[135] Ms. Addy said that by 2017, she had resumed somewhat of a social life, but it was not as active as it had been. She said she had narrowed her group to a few close friends, in part because she had become quite anxious when she was part of a larger group of people.

[136] Ms. Addy said that she had met Brad Boudreau through volleyball in 2016 but in 2017 they became close friends and then became romantically involved in June 2017. Mr. Boudreau had two young daughters.

[137] Ms. Addy said that she and Mr. Boudreau both played volleyball and both drove motorcycles. She said that drove their motorcycles together “a handful of times” that summer, five times or fewer. She said she would take Tylenol before going out on her motorcycle. Riding her motorcycle would make her headaches increase. She said she generally did not go very far, although on one occasion, they drove to Lake Placid and back.

[138] She said she did not believe that she had ridden her motorcycle at all in 2016, because she had had to pace herself and there were other activities she preferred.

[139] Ms. Addy said that by the time she met Mr. Boudreau, she had figured out how to balance her work. When she was required to do a lot of driving for work, or was doing work that required more focus, she would take time away as required. Mr. Boudreau had parenting time with his daughters during the week and alternating weekends, and Ms. Addy would rest on those days. Ms. Addy said that Mr. Boudreau was very understanding when her symptoms acted up and he would not push her. Even though he was a night owl, she said, he was understanding if she had to go to bed at 8:30 or 9 p.m. Ms. Addy also said that she was starting to manage work and activity better around this time and had a better understanding about what would make her symptoms worse.

[140] Ms. Addy said that at the end of 2017, she was still doing neurotherapy and massage therapy on an as-needed basis. She said she had the amitriptyline prescription, but she could not say whether she was taking amitriptyline consistently at that time.

[141] Ms. Addy said that in 2018, her symptoms remained consistent. She had low-grade headaches that would be intensified by parts of her job and by activity. She said her headaches would be exacerbated by driving, by the multi-tasking involved in client assessments at work and by being required to remember multiple details. She said that, at this point, she was getting a very good handle on the load she was able to manage before her symptoms would intensify significantly. She would, for example, adjust her workday so as not to schedule client meetings back-to-back.

[142] Ms. Addy said that by 2018 she had not returned to the level of efficiency and productivity she had had before being hit by the bocce ball. She said in addition to being required to pace herself, fatigue is a significant factor in her reduced productivity.

[143] Ms. Addy said that toward the end of 2017, into 2018 and onwards, she had resumed most of her pre-injury activities, but always with a cost-benefit analysis: She would have to decide whether the benefit she would derive from the activity was worth the intensification of symptoms for a period of time.

[144] In 2018, Ms. Addy was doing neurotherapy. She had the prescription for amitriptyline. She had massage therapy from time to time for tension in her neck and upper back. She said she understands that tightness in the neck and upper back can contribute to headaches. She said she had had massage therapy before the bocce ball incident to deal with various sports injuries but she increased the frequency of the massage therapy after the incident. She said it gave her some relief for a period of time after each session.

[145] Ms. Addy underwent vision therapy beginning in 2018. She said a friend who has a mild traumatic brain injury had told her that vision therapy had helped her. Ms. Addy said she asked Dr. Allart about this therapy and that Dr. Allart was supportive. Ms. Addy began vision therapy with Dr. France Corriveau in April 2018. She said that Dr. Corriveau provided her with a program and that she then saw one of Dr. Corriveau’s employees on a weekly basis for the actual therapy. Ms. Addy said that the exercises helped with some of the driving irritants that would aggravate her symptoms. She said they did not make the problem go away but the therapy increased her tolerance for driving somewhat.

[146] Mr. Boudreau and his daughters moved into Ms. Addy’s house at the end of August 2018. Mr. Boudreau and Ms. Addy became engaged that fall. Ms. Addy said she had a good relationship with Mr. Boudreau’s daughters from day one.

[147] In the summer of 2018, Ms. Addy and Mr. Boudreau played beach volleyball one night a week. They went on a few motorcycle rides. In the winter they snowboarded. Ms. Addy said if she snowboarded on a Saturday, they would have a quiet Saturday night and then she would have a headache and maybe some fogginess on the Sunday morning. She said the pain was worth it to do things she loved doing with the person she loved.

[148] Ms. Addy said there was no change in her ability to do her job in 2019 compared to 2018.

[149] In 2019, Ms. Addy stopped taking amitriptyline because she became pregnant in May of that year. She said she experienced more headache pain and sleep interruption as a result.

[150] In 2019, Ms. Addy stopped neurofeedback and vision therapy. The neurofeedback therapy took place in Kanata, in Ottawa’s west end, far from her home and her office. She had appointments relating to her pregnancy in 2019 and her focus at that time was more on the baby than on herself. With respect to the vision therapy, she said that Dr. Corriveau concluded that there had been improvement in the ability of Ms. Addy’s eyes to work together and that Ms. Addy had reached the goals that had been set for her. Ms. Addy said that she had seen some progress and was pleased to have had some relief, particularly in respect of her ability to drive. Ms. Addy said she trusted Dr. Corriveau’s assessment that the progress she had made was as much as could be expected.

[151] Ms. Addy said the vision therapy had helped her productivity in the workplace somewhat. However, she said driving was only one aspect; there was still the issue of focusing and being able to remember details.

[152] Ms. Addy and Mr. Boudreau moved into a new house in January 2020. Mr. Boudreau’s daughters lived with them 50 per cent of the time.

[153] Ms. Addy and Mr. Boudreau’s daughter Blake was born on January 25, 2020, less than two months before the shutdown caused by the COVID 19 pandemic. Because of the pandemic, Mr. Boudreau was at home and available to help. Ms. Addy said she still had headaches, but parenting was not as mentally taxing as working, so she found her energy level to be much higher. She had time for naps and less mental stimulation than she had when she was working. She also wasn’t driving because, due to the pandemic, there was nowhere to go.

[154] Ms. Addy did not resume taking amitriptyline until after she finished breastfeeding Blake when Blake was 18 months old. She noticed that when she was active, for example when she and Mr. Boudreau tried to go out for a family bicycle ride, her headaches became worse than they had when she was on amitriptyline.

[155] When Ms. Addy was on maternity leave in 2020, she was approached by three of OMS’s competitors, congratulating her on Blake’s arrival and hinting that they would be happy to have her join them. There had been some major changes at OMS before Ms. Addy took maternity leave and she was open to a change.

[156] Ms. Addy began to work for Good Access in February 2021. Her role and responsibilities were the same as they had been at OMS and the commission structure was similar.

[157] Ms. Addy found the first few months at work following her maternity leave to be challenging. She needed a lot of rest and had little energy at the end of the time. She found the screen time required for the job increased her headaches. Being required to drive again also took a toll on her.

[158] Ms. Addy said she had very little energy left for her family at the end of the workday.

[159] When Ms. Addy resumed amitriptyline in May 2021, her headaches became less of a problem.

[160] Ms. Addy said that at the end of her workday, she would typically pick Blake up at daycare around 4:30. She said that on many days, her head was hurting at that time. She said that Mr. Boudreau would make dinner, she would put Blake to bed around 7:00 or 7:30 and that she did not have much energy left for Mr. Boudreau before she would have to go to bed herself.

[161] Ms. Addy said that Mr. Boudreau does all of the meal preparation and outdoor work. She said that they have a good relationship but that she feels guilty at times because she knows that she frustrates him by asking him questions more than once or doesn’t register what he is saying to her. Ms. Addy said that she also doesn’t have as much energy for Mr. Boudreau’s girls as she did before Blake was born.

[162] Ms. Addy said that she loves weekends because she can rest. She said that because of the pandemic, they had not gone out a lot. A typical weekend would involve walking the dog, playing at home, naps and going to bed early.

[163] Ms. Addy said that since she returned to work, her symptoms have ebbed and flowed, and she has had good and bad days and weeks. She said her early bedtime has remained constant.

[164] Ms. Addy said that her new employer had teased her about making some mistakes. She said she told him about her injury and her symptoms and that he might see mistakes from time to time. She said her employer apologised and now has a better understanding of her situation. She said that her new work environment has been pressure-free and accommodating.

Ms. Addy’s evidence in respect of her employment

[165] Ms. Addy began to work for Ontario Medical Supply in November 2010. The company sells mobility equipment, such as wheelchairs and walkers.

[166] Ms. Addy began in a support role as a mobility support coordinator. She became a mobility sales consultant in November 2011.

[167] Ms. Addy explained that the role involves liaising with occupational therapists and meeting with patients to recommend and take measurements for equipment. The meetings with patients would take place at the patient’s home and would typically last about one hour. Ms. Addy said that wheelchairs, for example, are not simply ordered from a catalogue; the sales consultant must determine the type and the size of the various components that would work best for a patient. The process would typically require multiple meetings with the client.

[168] Provincial government funding is available for many of these assistive devices. The sales process would also involve completing a funding application. Before the pandemic, the turnaround time for approval of the funding was from three to six months. During the pandemic, the process became electronic and became much faster.

[169] At OMS, Ms. Addy was compensated by a draw on commissions. Her commissions would crystalize and become “commissions earned” once the government had paid its portion of the cost to OMS and the equipment had been delivered. This meant that there was typically up to a six-month delay from the time Ms. Addy would start her work for a client and the time she would be credited for a sale.

[170] Ms. Addy was assigned to a territory. She would receive work from OMS if it was in her territory but most of her work came through referrals from occupational therapists. She said she built her practice by working with occupational therapists and building their trust and also by presenting education programs about new products or case studies. Ms. Addy also visited long term care centres to help workers become more familiar with the available equipment and to raise her profile in the community.

[171] Ms. Addy said that after she had been in the mobility consultant position with OMS for less than a year, a competitor offered her a position, which she accepted. OMS then increased her compensation and she decided not to leave.

[172] Ms. Addy’s work week was 40 hours, sometimes more.

[173] There were three other sales consultants, “X”, Kylie Bilz and “Y.”

[174] Ms. Addy said there were changes to the government funding for assistive devices in 2015 and 2018 but she did not see a change in her compensation as a result.

[175] Ms. Addy returned to work following the bocce ball incident in late October 2015. She was working full-time by the Christmas holiday season that year.

[176] Ms. Addy said her efficiency was not as good when she returned to full-time work. She had headaches and was fatigued. She was forgetting appointments and not inputting orders and quotes as quickly as she had previously.

[177] Ms. Addy said that in 2016 she was nowhere near as productive as she had been before. She said she had good weeks and bad weeks. She said her ability to tolerate work improved when she started to take amitriptyline, but she still could not handle the same level of clients she had serviced pre-injury.

[178] Ms. Addy said there were a few reasons her income dropped in 2016. At the end of 2015, she was effectively starting over because of the weeks she had missed. She said the volume of work that she could handle was lower than before and she was slowly building it back up. She also said that because of the headaches she was ending her days earlier and probably not returning phone calls as promptly.

[179] Ms. Addy said that in 2017, she had a good network of referral sources and was not looking for more. She said her headaches came and went. She might have worked shorter days during weeks when she had to do a lot of driving.

[180] Ms. Addy said she had consistent symptoms in 2018. She described a low-grade headache that could be intensified by parts of the job and certain activities. However, she said that by this time, she had a good handle on what she could and could not do to avoid intensification of symptoms. She said she was not back at her pre-injury level of efficiency and productivity in 2018. She said she still isn’t, and that it is the fatigue that stops or slow extra productivity.

[181] Ms. Addy said that in 2019, her work productivity and efficiency was the same as in 2018. However, in 2019, she stopped taking amitriptyline because of her pregnancy. As a result, her headaches became more of an issue and her sleep was interrupted.

[182] In 2019, OMS was purchased by a large pharmaceutical company. Ms. Addy said that a new software system was implemented, and that tracking commission became a problem. The consultants were paid based on a prior year’s average sales, rather than their actual sales and they did not have access to their actual sales figures.

[183] Ms. Addy was on maternity leave in 2020. She said that during her maternity leave, she received some emails from OMS stating that there would be a reconciliation of the consultants’ compensation based on actual sales numbers. Ms. Addy said she did not receive a further response until later in 2020.

[184] While Ms. Addy was on maternity leave, she was approached by three competitors of OMS. She decided to accept a position with Good Access. She said that Good Access was a small company, as OMS had been when she first started to work there. She said that she thought there would be less red tape at Good Access as well as an ability to communicate directly with the owners of the company. She said that lack of transparency at OMS was a factor in her decision to leave and to join Good Access.

[185] Ms. Addy retained employment law counsel who sent a letter to OMS in February 2021. Through her counsel, Ms. Addy demanded $75,000 in unpaid commissions. She took the position that she had been constructively dismissed and that OMS had discriminated against her because of her pregnancy and parental leave.

[186] Ms. Addy said that although $75,000 in unpaid commissions had been demanded, she believed the true number was probably around $50,000.

[187] OMS rejected Ms. Addy’s demands and Ms. Addy did not pursue her claim against OMS.

[188] Ms. Addy said the commission structure at Good Access was very similar to that at OMS. She said she believed that she could make the same money for the same amount of work. She said the roles and responsibilities were identical.

[189] She said that Good Access gave her a guarantee of $75,000 for her first six months.

[190] Ms. Addy said the occupational therapists she had been working with at OMS found her at Good Access, although it took a little while.

[191] Ms. Addy said she found the first few months back at work after maternity leave to be very difficult. She said she had little energy left at the end of the day. She said the return to protracted screen time was taxing, as was the return to driving. The headaches were quite intense at the beginning. She said she did not resume taking amitriptyline until later in 2021, when she was stopping breast feeding. She said the amitriptyline helped, by lowering the intensity of the headaches, but she was still having the same issues she had in the years immediately following the bocce ball incident.

[192] Ms. Addy said she expected her income to be $90,000 to $100,000 for 2022.

[193] The following chart[^5] sets out Ms. Addy’s income and commission income from 2012 to 2021:

YEAR	COMMISSION INCOME	TOTAL ANNUALIZED INCOME
2012	$18,241	$59,984
2013	$62,129	$76,359
2014	$74,486	$83,282
2015		$110,578
2016	$57,482	$62,915
2017	$64,733	$84,973
2018	$78,820	$95,013
2019	$81,385	$95,019
2020	$4,290	$8,381 (maternity leave)
2021		$79,000
2022		$90,000 to $100,000 (estimate)

Mia St-Aubin

[194] Ms. St-Aubin and Ms. Addy are best friends. They knew each other in university but were not close at the time. They had the same friends. They saw each other at volleyball and basketball games and at a pub athletes frequented. Ms. Aubin was on the university’s varsity track and field team.

[195] Ms. St-Aubin describes Ms. Addy as having been very sociable. Ms. St-Aubin said that she was a little intimidated by Ms. Addy at university because Ms. Addy seemed to be so well-known and well-liked.

[196] At the end of 2014, Ms. St-Aubin moved into the basement of Ms. Addy’s house. Ms. St-Aubin had been going through a rough time. She said Ms. Addy let her stay there for free and “saved her.” Ms. continued to live with Ms. Addy until the end of 2016.

[197] Ms. St-Aubin said that her family adores Ms. Addy and that they joked that Ms. Addy was “the nice one.”

[198] Ms. St-Aubin said that Ms. Addy was sociable, great with people, including people she did not know, and hosted wonderful parties.

[199] Ms. St-Aubin said that Ms. Addy was always in great shape and that she ate well and exercised regularly.

[200] Ms. St-Aubin was not at Local the night of the bocce ball incident. She saw Ms. Addy the following day. She said Ms. Addy appeared to downplay how she was feeling but said she might have to go to the hospital. Ms. St-Aubin said that Ms. Addy would never ask for help and the fact she was saying that she might need help to go to the hospital was a big red flag.

[201] Ms. St-Aubin said she remembered Ms. Addy being laid up on her couch for weeks after the incident. Ms. Addy’s mother was there a lot. She described seeing Ms. Addy dictating work emails to her mother and her mother typing and sending them.

[202] Ms. St-Aubin said that Ms. Addy was strict about not looking at screens and for most of 2015 instead of texting each other, she and Ms. Addy would send voice messages.

[203] Ms. St-Aubin said that it was like a light had switched and Ms. Addy was no longer Ms. Addy. She was quiet and sad. Her social life stopped. On cross-examination, Ms. St-Aubin said it was fair to say that Ms. Addy’s social life probably had stopped only for a month or two. Ms. St-Aubin believed that Ms. Addy hosted her usual Christmas party that year.

[204] Ms. St-Aubin said that returning to work was a struggle for Ms. Addy. Her head hurt. She had trouble driving when it rained because the windshield wipers would bother her.

[205] Ms. St-Aubin said it was also a struggle for Ms. Addy to return to her sports activities. Ms. St-Aubin was not sure when Ms. Addy started to resume activities but believed that it was before Ms. St-Aubin moved out of Ms. Addy’s house, which was at the end of 2016.

[206] Ms. St-Aubin said that she and Ms. Addy do not see as much of each other as they used to. She concluded that Ms. Addy did not have the capacity to see her regularly anymore. She said that Ms. Addy had become more of a homebody. Ms. St-Aubin agreed that balancing work and children is a challenge, but she said that the fact Ms. Addy cannot seem to have a social life is simply not normal. She said many of her friends are able to do so. She said that she does not believe that Ms. Addy has the capacity to have a social life.

Brad Boudreau

[207] Mr. Boudreau is Ms. Addy’s partner. He works in sales. He began to work for a medical equipment company in January 2022.

[208] Mr. Boudreau first met Ms. Addy around 2015 through the volleyball community. He said when they first met, Ms. Addy was playing in a league that was made up of former university and college players, a level higher than the lower-level recreational leagues. He said she was very good both at indoor and beach volleyball, which he said are not easy to play.

[209] Mr. Boudreau said that Ms. Addy was an incredible athlete, quick on her feet, with high energy and a great attitude.

[210] Mr. Boudreau played in a tournament with Ms. Addy in the summer of 2015. He said she then kind of disappeared for a while. The next time he saw her was in June 2016 at a CHEO volleyball tournament. He said she was still very athletic when he saw her at that time.

[211] Mr. Boudreau said when he next saw Ms. Addy play volleyball in October or November of 2016, he was surprised to see her playing in a recreational league. He remembers teasing her about trouble she had serving and hitting the ball and then realizing that this bothered her.

[212] Mr. Boudreau said that he and Ms. Addy started out as friends and began to date in early to mid-2017. Mr. Boudreau is 16 years older than Ms. Addy. He said he had worried that he would not be able to keep up with her, given how active and athletic she was. He soon realized that it was not a problem because she did not have the same physical or emotional energy she had had when they first met.

[213] Mr. Boudreau said that it was not until several months into their relationship, around August 2017, that Ms. Addy told him about her injury. He said he was happy that she told him. He said that she had often seemed exhausted or would ask him the same question more than once. She would often go to bed by eight or eight thirty. Suddenly everything made sense.

[214] Mr. Boudreau said that he and his two daughters spent time at Ms. Addy’s family cottage in the latter part of 2017. He said that he and his daughters swam and kayaked but Ms. Addy would often stay on the dock or inside the cottage.

[215] Mr. Boudreau said he believed that he moved into Ms. Addy’s home in September 2018. His girls lived with them 50 per cent of the time. Mr. Boudreau said that he did most of the domestic chores so that he and Ms. Addy could enjoy their time together when she got home from work and before she had to go to bed. He said she typically went to bed at 8:30 or 9 p.m.

[216] Mr. Boudreau said that when their daughter Blake was born in January 2020, Ms. Addy, although tired, was thrilled and very content now to have a family of her own. He said Ms. Addy gets a great deal of joy from caring for Blake.

[217] Mr. Boudreau said that almost immediately upon her return to work after her maternity leave, he could see Ms. Addy struggled. He said her headaches came back. She was exhausted and having difficulty processing information at the end of the day.

[218] Mr. Boudreau said so Ms. Addy can spend quality time with Blake, he does most of the household chores, including the cooking. He said that Ms. Addy probably does about 20 per cent of the cleaning around the house. Mr Boudreau and Ms. Addy share responsibility for dropping Blake off and picking her up at daycare.

[219] Mr. Boudreau said that he and Ms. Addy have travelled together. They have taken trips to Australia, Las Vegas and California. In Las Vegas, they stayed on the strip. In California, they went to Disneyland with his two daughters.

Lyse Marchand

[220] Ms. Marchand is Ms. Addy’s mother.

[221] Ms. Marchand has a Bachelor of Commerce degree. Ms. Marchand earned a CA designation in 1976. She articled at the Clarkson Gordon accounting firm and worked for Mitel and then for the Office of the Comptroller General, where she worked four days/week. In 1996, Ms. Marchand’s husband, Ms. Addy’s father, accepted a position in Edmonton and the family relocated. When the family moved to Edmonton, Ms. Marchand took a leave of absence from her job but then did not work outside the home again.

[222] Ms. Marchand said the four-day week made it easier for her to meet her responsibilities to her family. She said that energy spent on work by a couple has to be allocated, discussed and shared, and her decision was to cut back on work a bit so that her husband could do his work. Ms. Marchand said she and her husband had no extended family in Edmonton to help them and they decided that when they moved there, her husband would work, and she would take care of the kids.

[223] Ms. Marchand confirmed that Ms. Addy’s passion for sports dated back to her childhood.

[224] Ms. Marchand described Ms. Addy as always having been well-organized, self-reliant and sociable. She said that Ms. Addy was always energetic and active.

[225] Ms. Marchand said that Ms. Addy enjoyed her job with OMS and worked hard.

[226] Ms. Marchand said that Ms. Addy was not quick to show her emotions or to go to a hospital. She said she knew something was wrong when, the day after the bocce ball incident, Ms. Addy called her in tears to say that she had been hit in the head and wasn’t doing well.

[227] Ms. Marchand said that, following the bocce ball incident, she dropped in to see Ms. Addy every day for about 10 days. Ms. Marchand confirmed that she had helped Ms. Addy with her work, by operating the computer.

[228] Ms. Marchand said that she walked Ms. Addy’s dog during this period. She said that Ms. Addy already had a dog walker and that they hired the dog walker during this period as well.

[229] Ms. Marchand said that by September 30th or October 1st, 2015, she could see signs of Ms. Addy’s personality returning, although Ms. Addy still was not feeling well. If Ms. Addy tried to exert herself, the headaches would come back, and she would have to rest again. That would get Ms. Addy down.

[230] Ms. Marchand said that following the accident, she noticed that Ms. Addy was not as spontaneous as she had been. She was more selective about accepting invitations. She was forgetful. She gets a little teary when she is upset. She has to be selective about how she spends her energy because her work requires a great deal of energy.

[231] Ms. Marchand said that Ms. Addy is very happy to have found a good partner in Mr. Boudreau and “over the moon” to have a baby girl. Ms. Marchand said that Ms. Addy loves being a mother. She said that Ms. Addy always wanted to have children.

[232] Ms. Marchand said that she believes that Ms. Addy has a good family life and that it seems to be balanced. Ms. Marchand said Ms. Addy enjoys the company of Mr. Boudreau’s two daughters. She said it is hard to be a full-time Mum and a full-time employee.

[233] Ms. Marchand said that Ms. Addy’s headaches have not gone away. She said that not taking her prescription medication during pregnancy was a big sacrifice for Ms. Addy. She also confirmed that Ms. Addy is in bed by 8:30, although at the cottage it may not be until 9 or 9:30 because Ms. Marchand and her husband are available to help take care of Blake.

Dr. Allart

[234] Dr. Allart was Ms. Addy’s family doctor from 2012 until 2019.

[235] Dr. Allart was qualified as a “participant expert”, capable of giving evidence in respect of the opinions she formulated during the course of her treatment, in accordance with her area of expertise.

[236] Dr. Allart said that Ms. Addy’s physical and mental condition before September 18, 2015 was “unremarkable”, which she said is a good thing in medicine. Dr. Allart said that she had sent Ms. Addy for a sleep study in early 2015, before the bocce ball incident. Dr. Allart said that the study was also unremarkable and that no further follow-up was required.

[237] Ms. Addy’s first appointment with Dr. Allart after being hit with the bocce ball was on September 25, 2015. Ms. Addy reported a mild headache and light and noise sensitivity. Ms. Addy reported intermittent nausea. She said she felt she was starting to improve as of the previous day.

[238] Dr. Allart diagnosed a mild concussion and recommended inactivity.

[239] Dr. Allart said that someone had told Ms. Addy that she had lost consciousness for 30 seconds after being hit by the bocce ball. Dr. Allart said that loss of consciousness is significant because it would tend to indicate a more severe brain injury. She said that it would not make a difference in her assessment if the loss of consciousness was five seconds, rather than 30 seconds. She said it would make a difference if the loss of consciousness was for 30 minutes, rather than for 30 seconds.

[240] Dr. Allart said that when it comes to a diagnosis, whether there has been a loss of consciousness is not necessarily relevant.

[241] Dr. Allart next saw Ms. Addy on September 30, 2015. Ms. Addy reported that she was 60 to 70 per cent improved and that, for the first time, she had woken up without a headache or fogginess. Ms. Addy reported that she still got headaches during the day and feels tired. She had no light or noise sensitivity.

[242] Dr. Allart next saw Ms. Addy on October 8, 2015. Ms. Addy reported improvement since their previous visit. She said she only got headaches with certain activities. A mild headache was triggered by driving and she had felt dizzy following a long walk. She said she had had difficulty tolerating noise in a stadium during a football game. Dr. Allart concluded although Ms. Addy had shown marked improvement, she should not return to work for at least two weeks.

[243] Dr. Allart said that, to this point, Ms. Addy’s progression had been typical. She said that most of her patients who have mild concussions, and she sees many of them, are back to normal within three months.

[244] On March 1, 2016, Ms. Addy reported to Dr. Allart that she was back at work. She said she had been having headaches every day since January. She reported that she was feeling mildly depressed. Dr. Allart said it was possible that Ms. Addy was suffering from undiagnosed depression at the time. Dr. Allart reported that Ms. Addy had no light and noise sensitivity. Her exercise tolerance was good, in that it did not worsen her headaches. Dr. Allard prescribed amitriptyline. Dr. Allard said that getting back to work had been very important to Ms. Addy.

[245] In May 2016, at Ms. Addy’s request, Dr Allart gave Ms. Addy a prescription for cognitive therapy with Dr. Allison Wood. Dr. Allart said she did not know who Dr. Wood was, what her qualifications are or what kind of therapy she offered. Dr. Allart said that Dr. Wood never sent her a report. Dr. Allart said that it was reasonable for Ms. Addy to pursue and continue this therapy if it was helpful to her and she was getting some relief as a result of it. (Ms. Wood is not, in fact, a doctor but a social worker.)

[246] In December 2016, Ms. Addy requested a referral for visual therapy. Dr. Allart said that she did not know what the qualifications of a visual therapist were. Dr. Allart said that many treatments for concussion are not evidence-based, meaning that they have not been well studied and are not part of standard treatment, but that does not mean that they do not help patients or that they are not effective. Dr. Allart said that she was not making referral to visual therapists for concussions at the time but that her view was that if a treatment is not dangerous or invasive, it could be worth trying. She said that she would not initiate a visual therapy consultation, but she also would not refuse it. She said that, in her opinion, Ms. Addy was pursuing reasonable therapies for her symptoms. Dr. Allart said that when it comes to brain injuries, medicine is working “in a dark room.” She described neurology as the “final frontier” of medicine.

[247] Dr. Allart did not order a CT or an MRI for Ms. Addy or refer her to a neurologist. She did not feel that there was a need to take any of these steps. She said that mild traumatic brain injuries do not show up on CT scans or MRIs. Dr. Allart said that she would only send a patient with a concussion for a CT scan under certain circumstances, for example, if she is concerned that they may need surgery or have a life-threatening condition, such as a brain bleed or a tumour. Dr. Allart said that she would not typically refer a patient to a neurologist, unless she was questioning her diagnosis or doubting her expertise or if she felt she needed help with treatment.

[248] Dr. Allart said that Ms. Addy reported that the amitriptyline was effective. On June 20, 2016, Ms. Addy said that she was no longer getting headaches, that she was feeling less emotionally labile. Dr. Allart made a note at the time that Ms. Addy appeared happy.

[249] Dr. Allart saw Ms. Addy on December 12, 2016. Ms. Addy had stopped taking the amitriptyline. Her headaches had returned and had been occurring daily for the past week. Dr. Allart said that it is not unusual for patients to stop taking amitriptyline because they feel better and then their symptoms resurface.

[250] An exercise questionnaire in Dr. Allart’s file noted November 1, 2018 indicated that Ms. Addy was exercising five times/week for 40 minutes at a time.

[251] Dr. Allart said that in June 2019, Ms. Addy saw Dr. Allart and reported that she had been having headaches for the past week or two. It was around this time that Ms. Addy became pregnant. She stopped the amitriptyline during her pregnancy.

[252] Dr. Allart said that after being hit with the bocce ball, Ms. Addy suffered from headaches throughout the time Dr. Allart saw her. Dr. Allart said she continued to prescribe amitriptyline for Ms. Addy for as long as she was Ms. Addy’s doctor.

[253] Dr. Allart said that Ms. Addy suffered a mild traumatic brain injury. She said that the medical community had previously thought that chronic pain was more likely to result from a more severe traumatic brain injury. She said that some scientists have since identified an inverse relationship between the level of injury sustained and chronicity. She said that this means that the mild traumatic brain injuries are more likely to be the ones that cause chronic pain.

[254] Dr. Allart said there was no doubt that Ms. Addy’s fatigue and headaches were caused by the bocce ball incident.

[255] Dr. Allart said that Ms. Addy would fall into the category of patients she sees who are stoic and cope with what happens to them. She said Ms. Addy had no previous psychological issues and no history of seeking notes to miss work.

[256] Dr. Allart said that people who suffer from chronic pain typically have more difficulty adapting to stressors in life, such as problems at work. She said that chronic pain decreases resilience and that this would have been the case for Ms. Addy.

[257] She said that when she stopped seeing Ms. Addy, she was of the opinion that Ms. Addy would require amitriptyline for the foreseeable future.

Allison Wood

[258] Ms. Wood is a social worker, who treated Ms. Addy before and after the bocce ball incident.

[259] Ms. Wood had training in neurofeedback therapy. She said neurotherapy is not regulated in Ontario or Canada. She is certified through an international association, the Biofeedback Certification International Alliance.

[260] Ms. Wood said that when she first saw Ms. Addy, in the spring of 2015, Ms. Addy seemed to have her life together. She was financially stable, she had a job she loved, she had lots of friends and was engaged in social activities. The only thing missing was a relationship.

[261] Ms. Wood said that after the incident, Ms. Addy was different. When Ms. Addy saw Ms. Wood on November 12, 2015, she described having headaches all the time, anxiety in social situations and low confidence. Ms. Addy said she was tearful and easily set off. She told Ms. Wood that she did not want to do things anymore. She said she was not herself with friends or at social gatherings and that she was not falling asleep easily.

[262] Ms. Wood provided talk and neurofeedback therapy.

[263] Ms. Wood said there was some improvement in Ms. Addy’s symptoms over time but there was an ebb and flow, and symptoms could easily flare up depending on the activities Ms. Addy participated in.

[264] Ms. Wood said that Ms. Addy reported the same type of symptoms throughout the time Ms. Wood treated her.

[265] Ms. Wood said the change in Ms. Addy before and after the incident was quite dramatic. She said that she did not think that Ms. Addy ever went completely back to who she was before the incident.

[266] Ms. Wood’s last session with Ms. Addy was in August 2020. Ms. Wood said that Ms. Addy did not request a further appointment after that.

Dr. Nassim

[267] Dr. Nassim is now Ms. Addy’s family doctor.

[268] Dr. Nassim’s clinical notes were filed as evidence under Ontario’s Evidence Act, R.S.O. 1990, c. E. 23.

[269] On July 28, 2020, Dr. Nassim noted that Ms. Addy had a past history of a head injury and had been doing quite well on amitriptyline. He noted that Ms. Addy had discontinued the amitriptyline during pregnancy and breast feeding but was now finding that she had an intermittent headache “when she exerts herself physically with high intensity.” Dr. Nassim noted that Ms. Addy wanted to increase her physical activity but was concerned about resuming amitriptyline while she was still breast feeding. Dr. Nassim said that otherwise, Ms. Addy was doing quite well. Dr. Nassim recommended that Ms. Addy avoid high intensity physical exertion until she was no longer breast feeding. She could then resume the amitriptyline while gradually increasing physical activity with a view to discontinuing the amitriptyline.

[270] In May 2021, Dr. Nassim assessed Ms. Addy with low-grade insomnia and headaches reminiscent of lingering post-concussion symptoms. She had returned to work in February and had been having headaches and had not been sleeping well since then. Ms. Addy said that she was about to finish breast feeding. Dr. Nassim recommended that Ms. Addy resume taking amitriptyline.

Kelly McGrath

[271] Ms. McGrath is a sleep therapy technician at the Ottawa Hospital’s sleep clinic.

[272] Ms. McGrath completed the report for the sleep study Ms. Addy underwent in May 2015.

[273] Ms. McGrath had no recollection of Ms. Addy. Ms. McGrath said that when she completed the form, she would follow the same procedure for every patient.

[274] Under “history” on the form, Ms. Addy had marked a box beside the words “morning headaches.” Ms. McGrath said the question that would have been asked was “do you ever wake up in the morning with a headache?” There was no information available about how frequently Ms. Addy woke up with a headache in the morning or about the intensity of the headache.

[275] Ms. Addy had marked the box beside “insomnia.”

[276] Ms. Addy had indicated that her work hours were “8:30 am to 5 pm ++”.

[277] Ms. Addy had had said that she typically goes to bed at 11pm to midnight and wakes up at 7am.

Kylie Bilz

[278] Mr. Bilz was a mobility consultant with OMS who continues to work there. Mr. Bilz worked with Ms. Addy for several years.

[279] Mr. Bilz said it takes about eight to 10 years for a mobility consultant to achieve full potential. He said that “full potential” represented commission income of about $200,000 to $230,000/year. He said his earnings consistently have been in that range. Mr. Bilz earned $196,971 in 2015, $214,000 in 2019 and $212,757 in 2020. He earned $294,000 in 2021 but he said that that year’s income was higher than normal because of a special contract he worked on that year.

[280] Mr. Bilz said that Ms. Addy was energetic and committed to her work. Mr. Bilz said he thought that Ms. Addy had great potential as a sales consultant. He described her as being “fantastic.” Mr. Bilz said that when she was recruited by a competitor early in her career as a consultant, he had worked hard to keep her at OMS. Mr. Bilz said that he did not want to lose her, and he had not wanted to compete against her.

[281] Mr. Bilz said that, at that point, Ms. Addy was on her way up and perhaps about halfway along the road to full income-earning potential as a consultant. He said she was still in the process of building relationships with referral sources.

[282] Mr. Bilz said that while Ms. Addy was working at OMS there had been a drop in government funding for mobility aids. He said this did not affect the earnings of mobility consultants.

[283] Mr. Bilz said that he works with brain injured patients all the time. He said that after Ms. Addy was injured, he could see a telltale slump and the effects of her injury reflected in her eyes. Mr. Bilz said that during a chance encounter with Ms. Addy, she had told him she was tired, and he could see it in her face. He said that Ms. Addy had always been super-fun and bubbly but that was not the person he saw.

Luc Grenier

[284] Mr. Grenier is one of the owners of Good Access, Ms. Addy’s current employer. Good Access began operating in 2016. Like Ms. Addy’s former employer, OMS, Good Access is in the mobility and assistive device business.

[285] Mr. Grenier said that he knew about Ms. Addy’s injury before he hired her. He said that Ms. Addy was well-liked and well-respected in their industry. He said he wanted her to work with him and her injury was not an impediment.

[286] Mr. Grenier said that his expectations of Ms. Addy’s performance are lower than those of his other sales consultants. He said it would be unfair to expect the same output from her. Mr. Grenier said that Ms. Addy’s sales target would give her annual commission income in the range of $90,000 to $100,000 and that she would still be profitable for the company. He said that, like all of the consultants, Ms. Addy is able to set her own schedule and to work from home. He said that Ms. Addy had not asked for any specific accommodations.

[287] When Ms. Addy started to work for Good Access, she had a guaranteed income of $75,000 for the first six months.

[288] Mr. Grenier said that he expected Ms. Addy to earn about $95,000 to $100,000 in 2022.

[289] Mr. Grenier shared Mr. Bilz’s view that the government funding changes for assistive devices did not affect consultants’ earnings.

[290] Mr. Grenier said that he expected two of his consultants, “X” and “Y” to earn in the $140,000 to $160,000 range in 2022. Mr. Grenier said these targets may go up slightly in the future.

The litigation experts

Dr. Moustgaard

[291] Dr. Moustgaard was a litigation expert called by Ms. Addy. Dr. Moustgaard was qualified to give expert evidence in neuropsychology, rehabilitation psychology and clinical psychology, including the assessment, diagnosis and treatment of mental disorders under the DSM-5.

[292] Dr. Moustgaard assessed Ms. Addy on March 11 and 15, 2021.

[293] Dr. Moustgaard concluded that Ms. Addy had sustained a mild traumatic brain injury. She diagnosed Ms. Addy as suffering from the DSM-5 diagnoses of mild neurocognitive disorder due to traumatic brain injury and major depressive disorder, moderate, single episode.

[294] Dr. Moustgaard interviewed Ms. Addy for about three hours and conducted a number of neuropsychological tests.

[295] Dr. Moustgaard said that Ms. Addy was able to complete the tests but that she reported an increase in headache pain from a 1 to a 4 (with 1 being nil and 10 being extreme) and mentioned at the end of the day that she would be taking a Tylenol. Ms. Addy had reported that her fatigue went from a 3 to a 5.

[296] Dr. Moustgaard said that Ms. Addy tries to present as positive.

[297] Dr. Moustgaard said that she was satisfied that the tests were an accurate reflection of Ms. Addy’s cognitive function; the test results gave Dr. Moustgaard no reason for concern about their validity. Dr. Moustgaard concluded from the tests that Ms. Addy has a number of strengths but that she also had some areas of impairment, including information processing speed, reaction time, sustained attention and visual and auditory learning.

[298] Dr. Moustgaard explained that people with mild cognitive impairments can function in their daily lives, but they may need accommodation or rest.

[299] Dr. Moustgaard said that symptoms of depression were in evidence in all of the questionnaires Ms. Addy completed.

[300] Dr. Moustgaard said that when Ms. Addy had her baby and took maternity leave, she had been able to eliminate demanding activities such as work and driving. Dr. Moustgaard said that after Ms. Addy returned to work following her leave, the evolution of depression identified, because Ms. Addy was having difficulty managing work, the new baby and her partner’s children. Dr. Moustgaard said the depression has gotten worse over time.

[301] Dr. Moustgaard said she believes that Ms. Addy has too much on her plate and that she is feeling guilty and sad because of the demands of work, childcare, home care and her relationship with her partner.

[302] Dr. Moustgaard recommends that Ms. Addy work with a clinical psychologist who has experience in pain, depression and head trauma. She also recommended that Ms. Addy work with an occupational therapist to see what steps can be taken to reduce the demands on her in the home.

[303] Dr. Moustgaard also recommends that to achieve a work/life balance, Ms. Addy work no more than three hours/day. She said that she did not believe that Ms. Addy’s current level of work is sustainable and that there is a risk of deterioration. She said that the status quo presents a risk to Ms. Addy’s relationship with her partner. She said that she understood that Ms. Addy’s partner has assumed responsibility for most of the family’s household demands. Dr. Moustgaard said she did not know how Ms. Addy would cope if she were living on her own.

[304] Dr. Moustgaard said that she had difficulty explaining the difference between her assessment of Ms. Addy and that of the defendant’s neuropsychology expert, Dr. Hope. Dr. Hope concluded that Ms. Addy did not suffer from any cognitive or psychological impairments. Dr. Moustgaard said that, despite this overall conclusion, it was evident from Dr. Hope’s report and his raw test data that he had identified some of the same impairments she had identified. Dr. Moustgaard noted that some of Dr. Hope’s test scores for Ms. Addy showed some improvements; she said this could be attributable to practice effect. Dr. Moustgaard also said that although Dr. Hope indicated that he had some concerns about the validity of Ms. Addy’s tests, only one of the tests actually showed a problem with validity. Dr. Moustgaard also questioned Dr. Hope’s decision not to administer a test for sustained attention, when she had done so and had identified an issue. Dr. Moustgaard noted that Dr. Hope had found no indication of any over-reporting of symptoms and had in fact found a tendency to under-report.

Impression of Dr. Moustgaard’s evidence

[305] I accept Dr. Moustgaard’s opinion that Ms. Addy suffers from mild cognitive deficits caused by the incident of September 18, 2015. I accept Dr. Moustgaard’s evidence that this opinion is supported by her neuropsychological testing of Ms. Addy. The opinion is consistent with Ms. Addy’s evidence of how she has difficulty concentrating at times, her occasional mistakes at work and her forgetfulness, evidence which was corroborated by other witnesses.

[306] While I also accept Dr. Moustgaard’s opinion that Ms. Addy was suffering from a major depressive disorder, moderate, single episode, I consider it to be significant that Dr. Moustgaard assessed Ms. Addy at a particularly vulnerable time. Dr. Moustgaard emphasized the difficulty Ms. Addy was having juggling the demands of her work, her new baby, her partner’s children and her partner. Dr. Moustgaard assessed Ms. Addy just six weeks after Ms. Addy had returned to work after a year-long maternity leave. Ms. Addy was adjusting to not being with her baby all day and also starting a new job with a new employer. Ms. Addy had new systems and protocols to learn. On March 2, 2021, nine days before Dr. Moustgaard’s first meeting with Ms. Addy, Ms. Addy’s employment counsel had received a letter from counsel for Ms. Addy’s long-time former employer, OMS, denying Ms. Addy’s claim for $75,000[^6] in unpaid commissions and accusing Ms. Addy of having violated a non-competition agreement. Further, Ms. Addy was still breast feeding and therefore not taking amitriptyline at the time Dr. Moustgaard assessed her and Ms. Addy reported to Dr. Moustgaard that this had increased her headache frequency and intensity.

[307] While I do not reject Dr. Moustgaard’s opinion about a depressive disorder, my impression is that it represented a snapshot in time. Ms. Addy’s description of her love for her partner, her new baby and her career, of the joy sports and other activities add to her life, of her supportive family and close friends and her healthy lifestyle are at odds with the criteria Dr. Moustgaard identified as being required for the diagnosis of major depressive.

Dr. Moustgaard’s recommendations

[308] Dr. Moustgaard made the following recommendations:

• That Ms. Addy undergo psychological therapy for life at a rate of 18 sessions in the first year and 10 sessions every year thereafter; and

• That Ms. Addy have access to additional psychological therapy in crisis situation at a rate of five sessions every five years for life.

Colin Moore

[309] Mr. Moore was a litigation expert called by Ms. Addy.

[310] Mr. Moore is an occupational therapist.

[311] Mr. Moore was qualified as an occupational therapist capable of giving opinions in this field, including recommendations and in relation to the cognitive, functional and psychosocial assessments he administered to Ms. Addy.

[312] Mr. Moore assessed Ms. Addy on August 11, 2021.

[313] He met with Ms. Addy in her home. She completed a number of questionnaires, which Mr. Moore described as “sort of standard” in his field.

[314] Mr. Moore observed Ms. Addy’s functional mobility within the home. Mr. Moore reviewed medical documentation he was provided. Mr. Moore also spoke with Ms. Addy’s partner, Mr. Boudreau.

[315] Mr. Moore concluded that Ms. Addy had worked very hard to return to her pre-injury life. She was back at work and was re-engaging in her activities. He said there was a difference between her life pre- and post-injury. Mr. Moore said that Ms. Addy was dealing with memory issues, reduced processing speed, fatigue and headaches. He said she had had to make changes because she was functioning at reduced capacity.

[316] Mr. Moore said that Ms. Addy was not completely disabled but that there was a low level of impact that was affecting all aspects of her life.

[317] He said that Ms. Addy was putting all of her energy into her work and caring for her young child and that, consequently, the care of the home was delegated to Mr. Boudreau and her leisure and social activities were reduced.

[318] Mr. Moore said that his testing showed that Ms. Addy was experiencing a high level of cognitive fatigue. She was experiencing a “medium” level of somatic symptoms, a “low” level of anxiety symptoms and “moderate” depressive symptoms. Headaches were affecting her ability to enjoy important aspects of life, including family, work and social activities.

[319] Mr. Moore said that neuro-behavioural testing indicated that Ms. Addy was having some cognitive issues and experiencing frustration.

[320] A disability self-assessment showed that Ms. Addy was experiencing the most difficulty in the area of work and household demands.

[321] Mr. Moore said that Lam Employment Absence and Productivity Scale showed that Ms. Addy was suffering a “mild” level of work impairment. He said that Ms. Addy said that she typically loses three to four hours/week because her tolerance is reduced. He said that she reported her most significant problem to be in relation to concentration and memory difficulties and making more mistakes. Mr. Moore said that Ms. Addy scored 7/28 which put her in a mild work impairment classification.

[322] Mr. Moore said that Ms. Addy’s condition was consistent with post-concussion syndrome. He said that symptoms affect her ability to do her work, in that her volume is reduced and she makes mistakes. Her husband has taken over the housework. Her leisure activities have been affected and her symptoms have affected her ability to enjoy them.

[323] With respect to work, Mr. Moore said that Ms. Addy’s symptoms had affected her ability to do the work she had done before: she could not complete the same volume; she made more mistakes; she was more fatigued or exhausted from doing her work tasks.

[324] With respect to her vocational options in the employment field, Mr. Moore said Ms. Addy’s job provided some flexibility so if, for example, there was a day she was not feeling well, she could reschedule. He said she reported that she could plan her days to meet her needs, in accordance with whatever her “bandwidth” was that day. Mr. Moore said that, in his view, this flexibility and her employer’s willingness to accommodate her reduced capacity enables her to keep going. He said if she had to work from 9 to 5 within a rigid system, this would impact her ability to do her job in a negative way. He said that if no accommodations were provided by the employer, it would be a lot more challenging. Mr. Moore said that Ms. Addy seems to be functioning with those accommodations and is at her maximum capacity.

[325] Mr. Moore made the following recommendations:

• that Ms. Addy undertake eight sessions of occupational therapy to assist her to better adapt to her impairments;

• that Ms. Addy have assistance with housekeeping and home maintenance for seven hours/month for life;

• that Ms. Addy have assistance with snow removal and lawn care for life. He estimated the annual cost to be $2,150 and said that Ms. Addy should be compensated for 50 per cent of that amount, on the understanding that Mr. Boudreau would be responsible for the other 50 per cent.

[326] Mr. Moore understood that Ms. Addy was playing volleyball one night/week instead of two nights as she had previously. He believed she was playing in a recreational league. He understood that she had returned to running but was unable to run at the same level because of headaches due to the cardiovascular expenditure. He said he understood that she had tried to return to snowboarding but did not try it again because the snow caused visual problems.

[327] Mr. Moore agreed that working and caring for children require a great deal of energy. He said that Ms. Addy’s limited energy was his concern, and that she had little energy left for other activities.

Impression of Mr. Moore’s evidence

[328] I found Mr. Moore’s assessment of Ms. Addy to have been thorough and his evidence to have been detailed, fair and balanced.

Dr. Hope

[329] Dr. Hope was a litigation expert called by Mr. Goulet.

[330] Dr. Hope is a neuropsychologist.

[331] Dr. Hope was qualified as an expert in neuropsychology and clinical neuropsychology capable of giving expert evidence within his area of expertise.

[332] Dr. Hope assessed Ms. Addy on May 8, 2021.

[333] Dr. Hope’s opinion was that Ms. Addy did not suffer from any cognitive or psychological impairment as a result of the incident of September 18, 2015.

Impression of Dr. Hope’s evidence

[334] For several reasons, I place little weight on Dr. Hope’s opinions.

[335] Dr. Hope did not fare well under cross-examination.

[336] Dr. Hope agreed that it would be “very fair” to say that he had left out information when he was asked in chief whether Ms. Addy was reporting any psychological problems with depression or anxiety. In chief, he had said that Ms. Addy had reported that she was overall a pretty happy person. He agreed that he had not mentioned that she had also reported that she felt sad and down at times or that she had told him that she had had “some dark thoughts” in the year after her injury. Dr. Hope agreed that he had not asked Ms. Addy for more information about these “dark thoughts” or how she had overcome them.

[337] Dr. Hope did not have an in-depth knowledge of Ms. Addy’s treatment history. He estimated that his interview of Ms. Addy had lasted about 48 minutes. Ms. Addy had completed an intake form in which she indicated that she had undergone psychotherapy and chiropractic treatment which had been effective and chronic pain treatment which had not been effective. Dr. Hope said he had not asked any questions about the chiropractic or the chronic pain treatment. Although Dr. Hope said that his notes indicated that the psychotherapy had included high performance neurofeedback, and that Ms. Addy had told him that it had been effective, he did not know in what respect it had been effective, what symptoms it had helped with or for how long it had provided relief.

[338] Dr. Hope had noted that Ms. Addy had said that work aggravated the pain in her head but could not say what aspects of her work worsened her pain. He could not recall the nature of her work. Referring to his report (which he is entirely entitled to do), Dr. Hope recalled that Ms. Addy had worked for Ontario Medical Supplies and said that she provided medical supplies to clients. He said that he knew that driving caused her problems, but he could not say what it was about driving that had aggravated her symptoms.

[339] In his evidence in chief, Dr. Hope said that the only conclusion he had come to in respect of the validity of the result of his neuropsychological testing was that he could not rule out the possibility that there had been inadequate effort at times. Dr. Hope said he generally accepted Ms. Addy’s test results as valid but that it was possible that Ms. Addy could have done better. On cross-examination, Dr. Hope agreed that, in his report, he had said that his conclusions in respect of Ms. Addy’s psychological status had to be reviewed with caution, not because of a possible lack of effort, but because of the possible impact of her tendency to deny minor shortcomings. He agreed that the interpretative report for the test in question indicated that Ms. Addy also might be under-reporting symptoms because of a tendency to present as being more well-adjusted than she actually is. Dr. Hope had not mentioned the tendency to under-report, for either reason, in his evidence in chief. He said that it had been in his report and apologised if he had not mentioned it in this oral evidence.

[340] In his evidence in chief, Dr. Hope said that Ms. Addy had “failed” a memory malingering test. On cross-examination, he agreed that her score was a “caution” and not a “fail.”

[341] Dr. Hope had no rough notes of his interview with Ms. Addy. He produced a document which he described as being his notes. It was not a complete report, but it was neatly formatted and consisted of full sentences and paragraphs with correct punctuation and spelling. Dr. Hope insisted that the document represented the notes that he took while he was meeting with Ms. Addy. Ms. Addy’s lawyer urged me not to accept Dr. Hope’s evidence in this regard. I do not. I find that the document Dr. Hope produced may have been an edited version of the notes he took when he was meeting with Ms. Addy but could not have been the document that was prepared during the 48 minutes Dr. Hope was with Ms. Addy.

[342] All of these issues forced me to doubt whether Dr. Hope truly appreciated, in this case, that his duty is to provide evidence that was fair, objective and non-partisan prevailed over any obligation he may have owed to the party by whom he was engaged. For this reason, I place little weight on his opinion that Ms. Addy did not suffer from any cognitive or psychological issues as a result of the bocce ball incident.

[343] That said I do not reject all of Dr. Hope’s evidence. Ms. Addy’s lawyer was critical of Dr. Hope for stating in his report that Ms. Addy was taking the amitriptyline for sleep, when she had indicated on her intake form that she was taking it for sleep and headaches. In my view, Dr. Hope cannot be faulted for this. This reference to amitriptyline being taken for sleep was in the context of a paragraph of his report in which he was discussing her sleep, not her headaches. Although Dr. Hope agreed with Ms. Addy’s lawyer’s suggestion that he had not indicated anywhere in his report that Ms. Addy was being treated for post-traumatic headaches with amitriptyline, in fact, he had. Dr. Hope had referenced a clinical note dated March 1, 2016 in which Dr. Allart had said that Ms. Addy’s headaches had increased in the past month, especially during storms or weather changes or emotional instability and that Dr. Allart had prescribed amitriptyline. In the next paragraph of his report, Dr. Hope referred to a clinical note dated June 20, 2016, in which Dr. Allart had written that Ms. Addy had been taking amitriptyline for five weeks and had noticed a marked difference and was no longer getting headaches. It cannot fairly be suggested that Dr. Hope was attempting to hide the fact that Ms. Addy was taking amitriptyline for headaches as well as for sleep. In his cross-examination, Dr. Hope agreed that it was being used for depressive symptoms as well.

[344] With respect to headaches, Dr. Hope had noted that Ms. Addy had rated her headache pain as a 2 to 3 out of 10, with 10 being the most extreme pain. Although he agreed that he had not specifically documented that Ms. Addy rated her worst headache as a 3, he said that his standard practice was to discuss with patients a range from best to worst, so in this case, Ms. Addy’s headache pain would start at a 2 and, if aggravated, would become a 3. Dr. Hope said that Ms. Addy reported that her headaches were quite mild and that her most troubling symptom was fatigue after work.

Dr. Lapointe

[345] Dr. Lapointe was a litigation expert called by the defendant.

[346] Dr. Lapointe is an ophthalmologist.

[347] Dr. Lapointe was qualified as an ophthalmologist with a subspecialty in visual rehabilitation capable of doing neuro-ophthalmological assessments and giving opinion evidence within her area of expertise.

[348] Dr. Lapointe assessed Ms. Addy in April 2021. Dr. Lapointe concluded that Ms. Addy had no abnormal ophthalmological findings and no on-going vision issues as a result of being struck by the bocce ball. She said that Ms. Addy would not have vision problems in the future as a result of the bocce ball incident and that she did not require any vision treatment.

[349] Dr. Lapointe said that Ms. Addy reported having a headache “24/7” at a pain intensity of a 2/10. Dr. Lapointe said that people often present to ophthalmologists with headaches but that, for a diagnosis, they should be referred to a neurologist.

Impression of Dr. Lapointe’s evidence

[350] Ms. Addy’s counsel cross-examined Dr. Lapointe both rigorously and vigorously and urged me to exclude Dr. Lapointe’s evidence or to give it no weight. Ms. Addy’s counsel argued that Dr. Lapointe could not be cross-examined on her interview of Ms. Addy because she had not saved her original interview notes. He argued that Dr. Lapointe gave opinions that were not within her area of expertise and that were helpful to the defendant’s position. He argued that Dr. Lapointe was argumentative and not credible.

[351] I do not propose to analyse Dr. Lapointe’s evidence in detail. Ms. Addy does not claim to have suffered eye damage as a result of being hit by the bocce ball and does not claim damages for future treatment for her eyes. Dr. Lapointe’s opinions do not meet the threshold requirements for admissibility: they are neither relevant nor necessary. (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 19, citing R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 20 – 25.) I exclude Dr. Lapointe’s evidence on this basis.

[352] One further observation: By now, it should be apparent that expert witnesses who fail to maintain their interview notes do so at their peril. Even if the notes are very rough (Rolley v. MacDonnell, 2018 ONSC 6517) or in “franglais”, as Dr. Lapointe described hers, they may strengthen the witness’s opinion by supporting its foundation. If these notes are not available, and particularly if the expert has taken active steps to destroy them, their absence from the expert’s file is a factor a court may consider in reaching the opposite conclusion (Bruff-Murphy v. Gunawardena, 2017 ONCA 502.)

ASSESSMENT OF DAMAGES

[353] Ms. Addy seeks four heads of damages:

1. General damages

2. Future care costs

3. Loss of income (past and future) and

4. Out of pocket expenses

General damages

[354] Ms. Addy argues that her general damages should be assessed at $250,000.

[355] The defendant argues that for an injury such as that of Ms. Addy, described by the defendant as a mild concussion with minimal treatment, an award in the $40,000 to $50,000 range would be appropriate.

[356] I find that the consequences to Ms. Addy of being hit on the head by the bocce ball were life-altering, although in subtle ways. Ms. Addy described her injury as being “invisible”. It is not an injury that will always be obvious on the surface.

[357] As a result of being hit with the bocce ball on September 18, 2015, Ms. Addy suffered a mild traumatic brain injury. This diagnosis was made by the Ottawa Hospital on September 19, 2015 and confirmed by Ms. Addy’s family doctor, Dr. Allart. The neuropsychological experts, Dr. Moustgaard and Dr. Hope agreed with this diagnosis. Unlike most people who suffer MTBIs, Ms. Addy did not recover completely. Ms. Addy continued and continues to suffer from fatigue, headaches and insomnia.

[358] Dr. Allart said that there is no doubt that the hit from the bocce ball caused Ms. Addy’s symptoms. Dr. Allart said that the symptoms have persisted, with varying intensity, since Ms. Addy was struck. Dr. Allart expected Ms. Addy to require amitriptyline indefinitely. I accept Dr. Allart’s evidence. Dr. Allart’s evidence about the cause of Ms. Addy’s on-going symptoms was confirmed by the notes of Ms. Addy’s current family doctor, Dr. Nasim, who in February 2020 assessed Ms. Addy with the “lingering sequelae of head injury which response (sic) to amitriptyline” and more than one year later in May 2021 with “low-grade insomnia and headaches reminiscent of lingering postconcussion syndrome.”

[359] Ms. Addy has also been diagnosed with a mild neurocognitive disorder as a result of the brain injury. The identified symptoms include deficits with sustained attention and processing speed.

[360] Ms. Addy was diagnosed in March 2021 with a major depressive disorder, moderate, single episode, although, as I have explained, I question the duration and effects of this episode. That said, I accept that Ms. Addy has experienced sadness and loss because of her symptoms and because of not having the same ability to engage in sports and other athletic and social activities which had been a focal point of her life in the past.

[361] I find that Ms. Addy had no serious health issues before September 18, 2015. Dr. Allart had referred Ms. Addy to the Ottawa Hospital for a sleep study after a partner told Ms. Addy she snored and stopped breathing at night. The intake form indicated that Ms. Addy had a history of insomnia, morning headaches and not feeling refreshed in the morning. Ms. Addy underwent the study in May 2015. The results were unremarkable. Ms. Addy denied suffering from insomnia or having morning headaches before she was hit with the bocce ball and said she did not recall complaining about either at the time she underwent the sleep study. The evidence has not satisfied me that Ms. Addy had any problems of note with either insomnia or morning headaches before September 18, 2015.

[362] Ms. Addy was hit in the head by a volleyball on two separate occasions after she resumed playing volleyball, once in May 2016 and once in February 2017. On both occasions, her headaches and other symptoms were exacerbated but not for an extended period of time. There was no suggestion in the evidence that these incidents had any long-term effects.

[363] I find that as a result of the MTBI, Ms. Addy suffers from fatigue, low-grade headaches and low-grade insomnia. Ms. Addy is back at work, but her productivity target is lower than that of her colleagues. She has returned to many of her pre-injury activities, but not with the same frequency or at the same level. She returned to volleyball, for example, but in a recreational rather than a competitive level and she played once/week rather than twice. She returned to running but not with the same intensity as before she was injured. She snowboards and rides a motorcycle, but she has to pace herself and she pays a price through the currency of exacerbated symptoms if she over-exerts herself.

[364] Since the bocce ball incident, Ms. Addy met the man she plans to spend the rest of her life with. They had a baby daughter in January 2020. Ms. Addy finds that during the week, work and caring for their daughter leave her with little energy for her partner and other activities. Her partner does most of the housework and prepares meals. Ms. Addy rests up on the weekends.

[365] It is a fundamental principle of tort law that an injured person should be compensated for the full amount of [their] loss, but no more. This is implicit in the principles governing the recovery of damages for personal injury set out in the Supreme Court of Canada’s trilogy of Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, Thornton v. Prince George School Board, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267, and Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287. In the trilogy, the Supreme Court affirmed that the purpose of awarding damages in tort is to put the injured person in the same position as they would have been in had the tort not been committed, in so far as money can do so. The plaintiff is to be given damages for the full measure of their loss as best that can be calculated. But they are not entitled to turn an injury into a windfall. In each case the task of the Court is to determine as nearly as possible the plaintiff's actual loss. With respect to non-pecuniary damages, the task is necessarily imprecise, and resort must often be had to conventional figures. The award is to serve the purpose or function of restoring the plaintiff as nearly as possible to their pre-accident state or alternatively, where this cannot be done, providing substitutes for what had been lost: Ratych v. Bloomer, 1990 CanLII 97 (SCC), [1990] 1 SCR 940 at 963.

[366] Ms. Addy’s counsel filed a list of cases described as involving plaintiffs with injuries reasonably analogous to hers. The range of awards for general damages was from $175,000 to $225,000, the equivalent of $207,101.48 to $263,397.13, adjusted for inflation.

[367] As the defendant’s counsel observed, these cases involve plaintiffs with injuries more serious than those suffered by Ms. Addy. Most of these cases involve plaintiffs who were unable to work because of their injuries. The case I consider to be most similar, Watkins v. Dormuth, 2014 BCSC 543 involved a plaintiff with a mild traumatic brain injury and painful physical injuries who was unable to work. The award for general damages was $175,000. In Sirna v. Smolinski, 2007 BCSC 967, in which the award was $200,000, the plaintiff suffered soft tissue injuries as well as a mild traumatic brain injury. Significantly, the plaintiff was unable to work for more than one year after the accident and was not expected to be able to work either in her chosen field or full-time, due to cognitive limitations and fatigue. In Kean v. Porter, 2008 BCSC 1594, the plaintiff had a fractured sternum, associated sternal and rib cartilage separations and a mild traumatic brain injury. Pre-existing chronic depression was exacerbated. He was unable to return to work. He was awarded $180,000.

[368] In a recent Ottawa case, Higashi v. Chiarot, 2021 ONSC 8201, the plaintiff was awarded $225,000. The plaintiff returned to work for about five years after her accident but was then unable to continue to work. The accident had left the plaintiff with permanent cognitive, psychological and physical impairments. The plaintiff was found to be sad and to no longer enjoy life the way she used to. She was easily fatigued and suffered from chronic pain. She had headaches, balance issues, noise and light sensitivities, word finding issues, slower thought processing and short-term memory problems. She suffered from chronic pain in the back, neck and jaw, post-traumatic stress disorder and adjustment disorder with primary depressed mood. The plaintiff was unable to sustain a full day of testimony in court. She requested several breaks. She stuttered, had difficulty articulating her thoughts and was emotional. She would go off on tangents and was repetitive. The judge noted that “[t]here were many body movements, especially at the neck level.”

[369] I consider a case more analogous to Ms. Addy’s situation to be Braks v. Dundeal Canada (GP) Inc., 2022 ONSC 3978. At the time of her injury, which was a fall, the plaintiff was 35 years old and engaged to be married. She had an eight-year-old daughter. She was employed full-time at a financial institution. She was found to have suffered a minor traumatic brain injury and multiple soft tissue injuries including to her neck. The plaintiff’s soft tissue injuries resolved but her neck pain was chronic. The plaintiff continued to suffer from migraines, serious headaches, and symptoms related to migraine headaches. She was diagnosed with chronic pain. She took medication daily to alleviate her symptoms but still had headaches at least twice a week, if not more, and daily neck pain, which affected her sleep and activities. She was unable to handle the demands of her job as a result of her injury, was terminated by her employer and found less demanding work. She was diagnosed with depression. The plaintiff managed her pain and depression with medication, which she takes daily. The plaintiff had acquired a number of devices to help her sleep and function at work.

[370] In Braks, at para. 161, A.P. Ramsay J. considered and summarized the following cases, which she noted included awards for general 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.

[371] In Braks, A.P. Ramsay J. awarded the plaintiff general damages of $115,000.

[372] A recurring theme in Ms. Addy’s trial was the extent to which she had always identified herself as an athletic, active and energetic person. When she moved to new cities as a child and a teenager, she made friends through sports. When she started at uOttawa, she gravitated toward the sports centre and the pub where the athletes congregated; they were her people. Ms. Addy’s best friend, Ms. St-Aubin was an athlete. They ran and participated in outdoor activities together. Unlike their other friends, they could keep up with each other. Ms. Addy returned to playing volleyball, running, riding a motorcycle and snowboarding following her injury, but none of it comes easily to her anymore. She has to budget her energy. Ms. Addy never liked to show signs of weakness but has now been observed by some friends and colleagues as being fatigued and tearful at times and as having limitations. Ms. Addy lost part of her identity on September 18, 2015. The court cannot return that identity to Ms. Addy, as much as it might like to be empowered to do so. The court can attempt to assess compensation to provide her “with reasonable solace” for her misfortune, “solace” in this sense, referring to physical arrangements which can make her life more endurable rather than solace in the sense of sympathy. Money is awarded because it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way. (Andrews, supra, at p. 262.)

[373] Having carefully considered all of the evidence, whether I have specifically referred to it or not, and having reviewed the case law, I conclude that $125,000 is an appropriate award for general damages in this case.

Future care costs

[374] The goal of a future care award is to assist an injured plaintiff with their physical and psychological condition. The award must be reasonable and supported by the medical evidence. The standard of real and substantial risk applies to future care expenses. The test for determining the appropriate award for future care costs is an objective one, based on medical evidence. To prove a claim for future care costs, the following conditions apply: (a) there must be medical justification for the claims; (b) the award must be fair and moderate; and (c) the claims must be reasonably necessary, having in mind personal circumstances: see Gray v. Macklin (2000), 4 C.C.L.T. (3d) 13 [2000] O.J. No 4603 at para. 213. (Higashi, supra, at paras. 244 and 246.)

[375] Dr. Moustgaard recommended that Ms. Addy undergo psychological therapy “for the long term.” Dr. Moustgaard said Ms. Addy’s struggles to manage work, childcare and her relationship were was making her feel guilty and sad. Dr. Moustgaard also said that a worsening of mood can affect an individual’s cognitive abilities.

[376] Dr. Moustgaard recommended counselling at a rate of 18 sessions in the first year and 10 sessions every year thereafter. Dr. Moustgaard also recommended Ms. Addy have access to additional psychological therapy in crisis situation at a rate of five sessions every five years for life. She said that at times, issues will come up.

[377] I consider Dr. Moustgaard’s recommendations to be reasonable. I note that Dr. Hope said that although he did not see evidence of a significant psychological impairment that would require treatment, he could not rule out the potential benefit of therapy for Ms. Addy.

[378] Ms. Addy’s counsel requested compensation for counselling for Ms. Addy’s entire life expectancy. Given that Dr. Moustgaard connected the need for counselling, at least in part, with Ms. Addy’s struggles to balance her work and her home life, I consider compensation to age 65 is reasonable. Sixty-five is the age Ms. Addy’s economic loss expert said would be the anticipated retirement for a female in the sales industry by the time Ms. Addy is 65 in 2050.

[379] Dr. Moustgaard said counseling would cost from $200/hour to $225/hour. I accept Ms. Addy’s evidence that, assuming a cost of $212.50/hour, the counselling recommended by Dr. Moustgaard, to age 65, would cost $57,032.84 and award her this amount.

[380] Mr. Moore recommended that Ms. Addy meet with an occupational therapist to discuss how she might adapt to her current limitations. He recommended eight meetings at a cost of $390/visit (three hours, including travel time and report preparation at $130/hour.) Dr. Moustgaard did not weigh in on the specifics but also said that intervention by an occupational therapist would be helpful. I consider Mr. Moore’s recommendation to be reasonable and award Ms. Addy $3,120 for occupational therapy.

[381] Mr. Moore also recommended that Ms. Addy have assistance with housekeeping and home maintenance for seven hours/month for life. I consider the recommendation that Ms. Addy have assistance with housekeeping and home maintenance to be reasonable; because of her injury, she goes to bed around 8:30 or 9 p.m. most nights, whereas before she was injured, she went to bed around 11 p.m. She has effectively lost two or more hours of productive time each day. I would divide the cost by two to take into account that Mr. Boudreau could be expected to do half of the work. I would only continue this service to age 65, in the expectation that, by that time, Ms. Addy would be retired and would have time to complete these tasks herself or would be paying for assistance regardless of her injury. I accept Mr. Moore’s estimate of the cost of this service at $47.50/hour. I award Ms. Addy 50 per cent of the amount she has calculated for this service to age 65: $53,364.52.

[382] I accept Mr. Moore’s recommendation for assistance for snow removal and lawn care, but to age 65, on the theory that Ms. Addy would be hiring someone to provide these services for her by that age regardless of her injury. I accept Mr. Moore’s evidence that, assuming the cost would be divided with Mr. Boudreau, the cost of snow removal would be $7,356.01 and the cost of lawn care would be $21,399.31 and award Ms. Addy these amounts.

[383] The total award for future care costs is $142,272.68.

[384] This amount shall be subject to a gross-up in accordance with Rule 53.09(2) of the Rules of Civil Procedure, to be calculated by Ms. Addy’s economic loss expert, Mr. Sherman.

Loss of income

[385] Unlike past events, hypothetical events, such as how a plaintiff’s life would have proceeded absent a tortious injury, need not be proven on the balance of probabilities. Instead, hypothetical events must be “given weight according to their relative likelihood”: Athey, at para. 27; MacLeod v. Marshall, 2019 ONCA 842, 148 O.R. (3d) 727, at paras. 17-18. (West v. Knowles, 2021 ONCA 296, at para. 72.)

[386] The assessment of past income loss falls into this category to the extent that it involves consideration of a hypothetical situation. “With respect to past facts, the standard of proof in the balance of probabilities. With respect to hypothetical events, both past and future, the standard of proof is a “real and substantial possibility.” (West, supra, citing Gao v. Dietrich, 2018 BCCA 372, at para. 34.)

[387] Where a plaintiff establishes that there is a real and substantial possibility the tortious act caused economic loss, damages are assessed by conducting the following analysis: (1) what economic opportunities the plaintiff might have had, had the tortious act not taken place; (2) what further income the plaintiff could have earned, if any; and (3) the chance that the plaintiff would have earned that additional amount, after taking into account the various contingencies. (MacLeod v. Marshall, 2019 ONCA 842, at para. 23.)

[388] In quantifying the financial loss, the trier of fact must assess the chance that what the plaintiff says would have happened, would indeed have happened. In such cases, the plaintiff is entitled to compensation, but commensurate with the percentage chance that the plaintiff would have earned that income but for the defendant's actions. Damages are commensurate with the value of the chance of earning that income. (MacLeod, supra, at para. 24.)

[389] In assessing economic loss damages, the trier of fact must: (1) determine what the economic opportunities the plaintiff might have had, had the tortious act not taken place; (2) decide what the monetary value is of those possible opportunities, had the tortious act not taken place; (3) estimate the chance that the plaintiff would have earned the sum(s) claimed, had the tortious act not taken place; and (4) quantify damages commensurate with the chance that that opportunity would have materialized. Compensation is limited to the degree of probability that the defendant was responsible for the loss. (MacLeod, supra, at para. 25.)[^7]

Past loss of income

The plaintiff’s position

[390] Ms. Addy argues past loss of income should be assessed at $325,000.

The defendant’s position

[391] The defendant argues that Ms. Addy’s past loss of income is about $30,000, representing income she loss during from September 18, 2015 to the end of 2015, when she resumed full-time employment.

Past loss of income - analysis

[392] Past loss of income is income Ms. Addy lost from September 18, 2015 to the date of the trial.

[393] Ms. Addy argues that she lost income because she was unable to work at all for about six weeks after she was hit by the bocce ball and that she then worked only part-time until the end of 2015.

[394] Ms. Addy also argues that, because of her injury, she was subsequently unable to earn the income she otherwise would have earned up to the date of the trial.

[395] Ms. Addy argues that if she had not been injured on September 18, 2015, her income would have continued to increase each year until it matched that of Mr. Bilz.

[396] Mr. Bilz said that it takes eight to 10 years for a sales consultant to maximize their income. He said at that point, there will be a plateau, because a consultant can only see so many clients in a day and for clients who are hospitalized or living in long-term care, typically meetings can only be scheduled 9 a.m. and noon and 1 p.m. and 4 p.m. Mr. Bilz said that the plateau is about $200,000 to $230,000.

[397] There was evidence that, from time to time, the provincial government made changes in the funding for assistive devices. I am satisfied that this did not have a significant impact on the compensation of mobility sales associates.

[398] Ms. Addy’s assessment of her past loss of income is $325,000, a figure is based on the assumption that in the years following the bocce ball incident, up to the date of the trial, her income would have increased by 10 per cent per year and that in 2022, she would have been earning $185,000.

[399] This calculation was performed by the income loss expert retained by Ms. Addy, Darrell Sherman.

[400] Mr. Sherman assumed that Ms. Addy’s income loss did not begin until 2016. This is correct, in my view, because Ms. Addy’s commissions were not paid until three to six months after she did the work associated with a sale. Mr. Sherman assumed that Ms. Addy had no income loss in 2020, the year she was on maternity leave.

[401] I am satisfied that there is a real and substantial possibility that Ms. Addy suffered economic loss as a result of the bocce ball incident, both because of the lost work time and because of the effect her injuries had on her ability to earn income.

[402] I find that the evidence supports Ms. Sherman’s assumption that, as long as Ms. Addy continued to work for OMS, her income would have continued to increase until it plateaued. The defendant suggested that Mr. Bilz was an outlier in terms of income, but Mr. Bilz’s evidence was that he and another OMS consultant, whom I will call “X”, had comparable sales numbers and that each year, one of them would be just ahead of the other. Mr. Bilz said another OMS consultant, “Y” was just behind them.

[403] There was evidence that Ms. Addy was performing very well in her job. Mr. Bilz said Ms. Addy had the exact skill set required for the job and that her bilingualism was an asset. Mr. Bilz said that Ms. Addy’s income was gradually increasing and that she was on the path to earning the maximum income. Ms. Addy’s annual income increased dramatically in the four years she worked as a consultant before she was hit with the bocce ball. In 2012, she earned $59,984, in 2013, she earned $76, 359, in 2014, she earned $83,282 and in 2015, she earned $110,578.

[404] Mr. Sherman assumed that, if Ms. Addy had not been injured, her income would have increased by 10 per cent each year before the trial, except for 2020, when she was on maternity leave. On the basis of this formula, she would have earned $185,000 in 2022.

[405] Mr. Sherman then subtracted what Ms. Addy earned from January 1, 2016 to January 24, 2022 (the first day of the trial) and concluded that her past loss of income was $324,782.

[406] I agree with Mr. Sherman’s approach for the years 2015 to 2020, but I disagree with his approach to 2021 and the first 24 days of 2022.

[407] Ms. Addy was on maternity leave for most of 2020, and Mr. Sherman has properly assumed she had no loss of income that year.

[408] In 2021, however, she was no longer working for OMS. She had begun to work for her new employer, Good Access. I do not, therefore, accept Mr. Sherman’s assumption that Ms. Addy would have earned 10 per cent more in 2021 than she earned in 2019, an assumption I would have accepted had Ms. Addy remained employed by OMS.

[409] Ms. Addy cannot argue that the break in her income trajectory was attributable to her injury. I find that her departure from OMS to join Good Access was not attributable to her injury. I find that Ms. Addy’s decision to move from OMS to Good Access was at most only very peripherally related to her injury. Although I accept that problems relating to a change in commission tracking software at OMS would have been a more significant obstacle for Ms. Addy than for other sales consultants at OMS, that was not the reason she gave for leaving OMS. Ms. Addy said that she left OMS because it had gone corporate and she wanted to work for a smaller organization, that had less red tape, where there is trust and transparency in respect of sales figures and where she would have a more direct pipeline to management. The lawyer’s letter sent to OMS on February 8, 2021 on behalf of Ms. Addy did not suggest that her departure was in any way related to her injury. Two other consultants, “Y” and “X” left OMS to join Good Access around the same time, one in 2020 and 2021.

[410] I do not, therefore, accept the assumption that Ms. Addy’s loss of income after 2020 should be based on her income trajectory at OMS. I find that Ms. Addy would not have earned 10 per cent more in 2021 (at her new job at Good Access) than she did in 2019 (when she was working at OMS), as Mr. Sherman assumed.

[411] Ms. Addy earned $79,000 at Good Access in 2021.[^8] She was starting in a new position and had to learn all of its systems and programs. Mr. Grenier sent out announcements about Ms. Addy’s change of companies to various occupational therapists’ organizations and nursing and retirement homes. Ms. Addy said that her referral sources returned to her, but it took a while.

[412] I find that, even if she had not been injured, Ms. Addy could have expected to have a significant drop in income from 2019 to 2021, because of her transition to a new and smaller employer. I note that “X”, who left OMS and joined Good Access in January 2021, had T4 income of $113,281 in 2021. Mr. Bilz said that “X” had alternated with him as OMS’s top biller. Mr. Bilz said the top consultants at OMS could expect to earn from $200,000/year to $230,000/year at OMS. This suggests that “X” had a drop in income of $90,000 to $120,000 in the first year that they worked at Good Access after leaving OMS. Further, “X” had earned considerably more at OMS than Ms. Addy did. Another consultant, “Y” who left OMS for Good Access earned $81,359 in 2020 and $129,221 in 2021. Mr. Bilz said that “Y” had earned just less than he and “X” had earned at OMS. “Y” joined Good Access around February 2020. “Y”’s 2020 income may not be reflective of 12 months of employment. Nonetheless, if “Y” was earning just under $200,000/year to $230,000/year at OMS, even if the $81,359 did not reflect a full year of work, “Y” also earned considerably less in their first years at Good Access than they had earned at OMS.

[413] I find that Ms. Addy had no loss of income for 2021.

[414] Using Mr. Sherman’s numbers, I find that Ms. Addy’s loss of income for 2016 to 2019 was as follows:

YEAR	LOSS OF INCOME (DIFFERENCE BETWEEN ASSUMED ANNUAL INCREASE OF 10 PER CENT AND ACTUAL EARNINGS)
2016	$58,721
2017	$48,826
2018	$52,167
2019	$66,879
2020	$0.00 - Maternity leave
2021	$0.00 – No loss of income
2022 (January 1 to 24, 2022)	$1500*
TOTAL PAST LOSS OF INCOME	$228,093

*Ms. Addy said her 2022 income was expected to be in the $90,000 to $100,000 range. As I find, later in these reasons, that if she had not been injured, Ms. Addy would have earned $120,000 in 2020, I have estimated her loss from January 1 to January 24, 2022 at $1500.

Conclusion with respect to past loss of income

[415] I assess Ms. Addy’s past loss of income at $228,093.

Future loss of income

Ms. Addy’s position

[416] Ms. Addy argues that future loss of income should be assessed at between $3.6 to $4.5 million.

The defendant’s position

[417] The defendant argues that Ms. Addy is working full-time, that her income is in the same range as the other consultants at Good Access and that she has no loss of future income.

Future loss of income – analysis

[418] To assess Ms. Addy’s future loss of income, Mr. Sherman prepared several scenarios. In one scenario, he assumed that Ms. Addy’s post-trial annual income would be $185,000, in another, he assumed it would be $200,000 and in another he assumed it would $225,000. Mr. Sherman calculated Ms. Addy’s income loss, based on each of these three scenarios, on the assumption that she would have continued to work full-time until age 65, when she would retire, and, alternatively, on the basis that she would have continued to work full-time for five years and then would have worked part-time until retirement at 65. From each of these scenarios, he subtracted Ms. Addy’s expected annual income, which he assumed would be $94,406, the average of her actual income from 2016 to 2019, adjusted to 2022 dollars.

[419] Assuming an annual income of $185,000 and full-time work until age 65, Mr. Sherman calculated Ms. Addy’s future loss of income to be $2,469,303, the lowest loss figure in his scenarios. Assuming an annual income of $225,000 and full-time work for five years followed by part-time work until age 65, Mr. Sherman calculated Ms. Addy’s future loss of income to be $4,496,584, the highest loss figure in his scenarios.

[420] Mr. Sherman’s scenarios are of little assistance to me, because they are based on the earnings of sales consultants at OMS, where Ms. Addy no longer works. There is no evidence that sales consultants working at Good Access are expected to earn annual incomes of $185,000 to $225,000.

[421] Mr. Grenier said he expected his top consultants to earn $140,000 to $160,000 in 2022 with “a little bit” of growth in the future. Mr. Grenier said that the company had managed its growth carefully and hoped to grow for two more years.

[422] As Ms. Addy now works for Good Access, not OMS, in light of Mr. Grenier’s evidence, I cannot assume that Ms. Addy’s income would have been $185,000 to $225,000. Given Ms. Addy’s pre-injury performance and the evidence about how highly regarded she was, I can assume that, if she had not been injured, in time, Ms. Addy’s income at Good Access would have matched that of the other more senior consultants at Good Access.

[423] With respect to expected income, Ms. Addy is not expected to earn income at the level of the other Good Access consultants. Her target is in the $90,000 to $100,000. Ms. Addy is being accommodated because of her injury. Mr. Grenier does not expect Ms. Addy to match the numbers of the other consultants.

[424] I do not accept Dr. Moustgaard’s opinion Ms. Addy should reduce her work hours to 15/week from 40/week. Dr. Moustgaard said this level of work would allow Ms. Addy to achieve work/life balance. While working only 15 hours/week may be an appealing scenario for a person juggling childcare, a relationship and work inside and outside the home, this was an unrealistic and impractical recommendation, in my view, particularly as Dr. Moustgaard understood that Ms. Addy was the primary income earner in her family.[^9] I question whether, in these circumstances, a treating health professional, as opposed to a litigation expert, would have told a patient who was believed to be the primary income earner in a family that she should cut her work hours by 85 per cent. In a litigation context, there is a potential source of replacement income; in the real lives of most people, there is not. There was no evidence that Ms. Addy’s family physicians or her social worker had recommended that she cut back her work hours. In fairness to Dr. Moustgaard, I have already noted that she assessed Ms. Addy at a time when Ms. Addy was in a challenging transitional period in her life, was dealing with several stressors and was also not taking the amitriptyline which provides significant relief for her headache symptoms.

[425] Further, with the exception of her pregnancy leave, Ms. Addy has been working full-time since January 2016, about three and a half months after her accident. Ms. Addy loves her work and finds it fulfilling. She is good at it.

[426] Dr. Moustgaard’s opinion is also at odds with Ms. Addy’s mother’s impression of her daughter’s life. Ms. Marchand said that it is not easy to be a full-time mother and a full-time employee, but that Ms. Addy enjoys a good family life “and it seems to be balanced.” Ms. Marchand said that Ms. Addy makes Blake her priority and that she goes to bed early to re-energize. Ms. Marchand said the time that had been particularly tough for Ms. Addy was when she had been required to stop taking her medication because of her pregnancy. (As I noted above, when Dr. Moustgaard assessed Ms. Addy, Ms. Addy had yet to resume taking amitriptyline because she was still breast feeding.) On cross-examination, Ms. Marchand confirmed that it is hard to be a full-time mother and a full-time employee. She said she has been there. She said it doesn’t mean a person can’t do it. She said it is hard work for everybody and that, in a family, the energy spent on work has to be allocated and discussed and shared.

[427] Dr. Moustgaard’s opinion was also at odds with Mr. Moore’s assessment, which categorized Ms. Addy’s work-related impairment as “mild”. Mr. Moore found that Ms. Addy lost about three or four work hours/week due to reduced tolerance.

[428] I have already noted that Mr. Moore said that Ms. Addy’s employer’s willingness of accommodate her reduced capacity has enabled her to continue working and said that she appears to be functioning with these accommodations. Mr. Moore said that Ms. Addy was at maximum capacity but did not recommend that Ms. Addy stop working full-time.

[429] While it is true that Ms. Addy is now earning income in the same range as the income she earned before she was injured, I do not accept the defendant’s position that she has suffered no future loss of income. This position ignores the steady increases in Ms. Addy’s earnings from 2012 to 2015 and Mr. Bilz’s evidence that mobility sales consultants tend to reach their maximum earnings after eight to 10 years in the role.

[430] Ms. Addy’s current colleagues, “X” and “Y”, with whom she previously worked at OMS, have more experience in the field than she does. It may have taken her a little time to match their earnings at Good Access, but there is no reason to believe that, if she had not been injured, she would not have done so. Mr. Grenier said that Ms. Addy, “X” and “Y” have the same compensation arrangement, other than Ms. Addy’s target being lower. Ms. Addy began to work for Good Access in February 2021; she had started to work as a sales consultant in 2012. When she joined Good Access, she had nine years’ experience; Mr. Bilz said it took eight to 10 years for consultants to reach maximum income.

[431] Based on all of the evidence, I find that a likely scenario is that, had she not been injured, Ms. Addy’s income at Good Access would have been in the $120,000 range in 2022, in the $135,000 range in 2023 and the $150,000 range in 2024, where it would plateau until she retired at 65, which Mr. Sherman says will be the likely retirement age for females working in sales in 2050, when Ms. Addy will turn 65.

[432] As Ms. Addy’s actual income is expected to remain around its current level of $100,000, this represents a $18,500[^10] loss for 2022, a $35,000 loss for 2023 and a $50,000 loss for 2024 and each year going forward to age 65.

[433] I have considered general and specific contingencies and the likelihood that this scenario will actually play out. I note that, despite all having family obligations, Mr. Bilz, “X” and “Y” have all worked as mobility sales consultants for many years. Nonetheless, I find that the 16-year age difference between Ms. Addy and Mr. Boudreau is a factor that could have affected the length of her career, regardless of her injury. I have concluded that it is a realistic possibility that Ms. Addy would not have worked to age 65 and would have chosen to leave the workforce earlier to spend more retirement years with Mr. Boudreau. While there was little evidence at trial about the family’s financial situation and how feasible this would have been, there was evidence that Ms. Addy’s employment is not her only source of income in that she owns two rental properties.

[434] While I have not accepted Dr. Moustgaard’s opinion that Ms. Addy should not work full-time, I am mindful of Mr. Moore’s view that Ms. Addy requires the accommodation she is currently receiving at Good Access in order to continue to work at her current level. If the accommodation were to end, this could have an impact on Ms. Addy’s ability to continue to work on a full-time basis. There was no evidence to suggest that this accommodation would be withdrawn, however. Mr. Grenier hired Ms. Addy knowing about her injury, clearly values her and is dedicated to making the employment arrangement work. I have concluded that the elimination of the accommodation falls into the category of “speculation” rather than that of a realistic possibility.

[435] Having considered the specific contingency of potential early retirement and general contingencies applicable to everyone, I apply a 20 per cent deduction to Ms. Addy’s award for future loss of income.

[436] I direct Mr. Sherman to calculate the present value of this award, based on my conclusions that Ms. Addy’s future income loss is $18,500 for 2022, $35,000 for 2023 and $50,000 for each year from 2024 until she reaches age 65, less 20 per cent.

[437] Mr. Sherman shall also calculate the applicable a gross-up in accordance with Rule 53.09(2) of the Rules of Civil Procedure.

Out of pocket expenses

[438] Ms. Addy argues her out-of-pocket expenses, for rehabilitation and other services should be assessed at $23,733. This amount includes the subrogated claim of Ontario’s Health Insurance Plan in the amount of $606.35.

[439] The defendant admits the OHIP claim but contests the balance of the expenses on the basis that the various therapies were not undertaken as a result of referrals from a physician or were of questionable benefit.

[440] Ms. Addy seeks $4,596.99 for massage therapy. Ms. Addy said that the therapy was intended to loosen the tension she felt in her neck when her headaches intensified, or she felt stressed. She said that it would help to relieve headaches for a period of time. She said she had had massage therapy before she was injured but that the post-injury massage was focused on her upper back, neck and shoulder area.

[441] Ms. Addy seeks $2,730.83 for chiropractic treatment. Ms. Addy said that her partner, Mr. Boudreau recommended it. She said the chiropractic adjustments were intended to promote blood flow to the brain, which would reduce pressure and headaches. She said these treatments reduced tightness in her neck and the intensity of headaches.

[442] Ms. Addy seeks $3,513.00 for vision therapy. Dr. Allart referred Ms. Addy for this therapy at Ms. Addy’s request. Dr. Allart said that she would not have initiated a vision therapy consultation, but she also would not refuse to provide a referral. Dr. Allart said that if the patient feels that it is helping her, she would consider it reasonable to undergo, even though there was not a lot of scientific evidence to support it.

[443] Ms. Addy seeks $400 for neurologic physiotherapy, which had been suggested by Mr. Moore.

[444] She seeks $9,645 for neurofeedback therapy with Ms. Wood. Dr. Allart said she had not seen a lot of evidence to support this therapy and Dr. Moustgaard said that the reviews were mixed and that she would not recommend it for brain injury rehabilitation for that reason and because it is really expensive. Ms. Addy said that she felt that the therapy gave her at least temporary relief.

[445] Ms. Addy also seeks $1,673.80 for housecleaning and $567.83 for dog walking, all expenses incurred following the incident of September 18, 2015.

[446] Dr. Allart said that, in her view, Ms. Addy had pursued reasonable therapies. Dr. Allart said that if a therapy was not harmful or invasive and the patient feels that it is providing relief, she would consider the therapy to be reasonable. Dr. Allart said that it is reasonable for patients to look for treatments that may help them because so much about the brain is still unknown and there are few evidence-based treatments for concussions. Dr. Allart described the brain as the “final frontier” of medicine and added that “we are navigating in a dark room here.”

[447] The expenses for which Ms. Addy seeks reimbursement are expenses she paid for herself. I find that Ms. Addy would not have incurred these expenses unless she felt she required the service, in the case of the dog walker and the house cleaners or hoped that the service would improve her condition or make her feel better, in the case of the various therapies.

[448] I allow Ms. Addy’s claim for out-of-pocket expenses and award her $23,733.80.

FINAL DISPOSITION

[449] In conclusion, I find the defendant Mr. Goulet 100 per cent responsible for Ms. Addy’s injuries and award Ms. Addy damages in the following amounts:

• For general damages: $125,000;

• For future care costs: $142,272.68, subject to a gross-up;

• For past loss of income: $228,093;

• For future loss of income: $18,500 for 2022, $35,000 for 2023 and $50,000 for each year from 2024 until she reaches age 65, less 20 per cent, subject to a gross-up;

• For out-of-pocket expenses: $23,733.80.

[450] If counsel are unable to agree on the amount of the gross-up, costs or interest, they may request a brief hearing with me through the trial coordinator to discuss the matters which need to be addressed and to discuss a timetable for written and/or oral submissions.

[451] I wish to thank counsel sincerely for the civil, cooperative, efficient and highly skilled manner in which they conducted this trial.

Justice H.J. Williams

Released: February 24, 2023

COURT FILE NO.: CV-17-73585

DATE: 2023/02/24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

EMILIE ADDY

Applicant

– and –

PIERRE GOULET, LOCAL PUBLIC EATERY (LANSDOWNE PARK), LANSDOWNE RETAIL GP INC., LANSDOWNE RETAIL LIMITED PARTNERSHIP

Respondents

REASONS FOR DECISION

Justice H.J. Williams

Released: February 24, 2023

[^1]: I accept Mr. Goulet’s evidence that he is 5’7” tall and that, at its highest point, the ball was about a foot above his head. [^2]: Evidence of “remedial measures”, steps taken following an incident to prevent it from happening again, cannot be used as an admission of liability. Such measures may be used as evidence of steps that may have been reasonable to prevent injury in the circumstances and whether reasonable care was taken. (Sandhu v. Wellington Place Apartments, 2008 ONCA 215, at para. 63.) Although Ms. Addy’s counsel argued that there was no evidence that the installation of the sign was a “remedial measure”, Ms. Conn’s long tenure and familiarity with the company that owned and operated Local combined with the timing of the installation of the sign persuades me that her guess was correct, and that the sign was such a measure. [^3]: This means a series of interconnected things or events. [^4]: Ms. Addy believed a bocce ball weighed about eight pounds, but said that, without inspecting one, she could not dispute that they typically weigh two pounds. Ms. Conn said she believed bocce balls weigh from one to two pounds. The plaintiff’s expert neuropsychologist, Dr. Moustgaard, did some research and concluded that they weigh two pounds. I am satisfied that a typical bocce ball weighs around two pounds. [^5]: Source: Income and loss calculations prepared by Darrell Sherman, Caselines, p. A762. [^6]: Ms. Addy said this number was inflated and that she believed that OMS owed her $50,000 to $60,000. [^7]: In these excerpts from MacLeod, which was a case of historical sexual abuse, I have replaced the words “sexual abuse” with the words “tortious act”. [^8]: Ms. Addy started working at Good Access in February 2021 and worked for 11 months. The annual equivalent of the $79,000 she earned in 11 months is about $86,000. [^9]: Dr. Moustgaard said that this was what she was told, but that she had no further information about Mr. Boudreau’s employment status. Mr. Boudreau’s evidence was that he works in sales and that with the exception of a month or two, he has been employed on a full-time basis since Ms. Addy was injured and had just started a new job in January 2022. There was no evidence about Mr. Boudreau’s income. [^10]: The $18,500 is $20,000 ($120,000 minus $100,000)minus the $1,500 I have attributed to past loss of income for the period January 1 to 24, 2022.