PETERBOROUGH COURT FILE NO.: CV-16-95-00

DATE: 20240108

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL TAYLOR AND KAREN YOUNG

Plaintiffs

– and –

PAMELA ZENTS

Defendant

Troy Lehman, Lara Fitzgerald-Husek, and Rayanna Hamadi, for the Plaintiffs

Stephen Baldwin, for the Defendant

HEARD: November 21-24, 2022; November 28-December 2, 2022; December 5-9, 2022; December 12-13, 2022; and February 13, 2023

REASONS FOR DECISION

CASULLO J.

INTRODUCTION

[1] On March 17, 2015 Pamela Zents rear-ended Paul Taylor at 80 km per hour while Mr. Taylor was at a full stop, waiting to turn left.

[2] As a result of the collision, Mr. Taylor submits he sustained serious injuries including a traumatic brain injury (“mTBI”), persistent postural perceptual dizziness (“3PD”), and Adjustment Disorder. The injuries have left Mr. Taylor with a combination of significant cognitive, physical, and emotional impairments.

[3] Despite returning to work for close two years following the collision, Mr. Taylor submits that his impairments have rendered him unemployable in his chosen career in the film and television industry.

[4] As a result of his injuries, Mr. Taylor seeks general damages for his pain and suffering, past and future income loss, and future care costs. His wife, Karen Young, seeks damages for her loss of care, guidance, and companionship.

[5] The defendant denies that Mr. Taylor sustained a concussion, or indeed any lasting injury in the collision. At worse there was a bump or laceration to his head. The defendant advances two theories in defending this claim. First, the injuries Mr. Taylor complains of are based solely on his assertion that he sustained a brain injury or concussion, but the evidence contradicts this. Second, Mr. Taylor’s credibility is suspect, based upon what the defence characterizes as serious and material inconsistencies in his self-reporting.

[6] Mr. Taylor’s credibility was a focal point during the trial. The defence made him out to be an exaggerator, a fabricator, and a mastermind who pulled the wool over not only his own treating physicians’ eyes, but also specialists in Toronto and at the Mayo Clinic in the United States.

[7] Mr. Baldwin plaintively asked in his closing argument: “[h]ow many categorical untruths must Paul Taylor commit? His credibility is beyond redemption.” For the following reasons, I am of the absolute contrary view. Mr. Taylor told no untruths, and his credibility is above reproach.

TRIAL PROCESS

[8] Lead counsel for the parties are at the pinnacle of the personal injury bar, and I am grateful to them, and their associates, for the seamless manner in which the trial flowed, as well as the tenor of mutual respect for the litigation process. In addition to joint books of documents and aides memoire, counsel were always prepared with briefs and statements of law on the procedural and evidentiary issues that arose during the trial.

[9] Counsel very helpfully provided written submissions to supplement their closing arguments, and I freely acknowledge culling certain portions thereof for use in these reasons.

Motions at Outset of Trial

[10] The plaintiff brought three motions. The first, on consent, was to amend the style of cause to remove the Smit defendants.

[11] The second was for leave to call more than three expert witnesses. While the defendant did not strenuously argue against leave, Mr. Baldwin argued that the evidence of Dr. Misener, a rehabilitation specialist, and Mr. Kumove, a vocational counsellor, both of whom opined on Mr. Taylor’s employability, was duplicative, and only one should be permitted.

[12] I ruled that the plaintiff could call both experts. While each had come to same conclusion – that Mr. Taylor was no longer employable – their areas of expertise were different, the considerations underlying their findings were distinct, and their evidence would not be unduly duplicative. Ultimately, however, only Dr. Misener was called to testify.

[13] The third motion was for a ruling that any mention of the plaintiff’s accident benefits settlement be inadmissible during the trial. Following oral argument, counsel agreed to hold this particular motion in abeyance until the settlement was raised during the trial itself.

Mid-Trial Rulings

[14] There were a number of mid-trial rulings. The first was a defence request to admit a letter from Mr. Taylor’s previous lawyer to Mr. Taylor’s accident benefits insurer. Two documents were attached to the letter, an OCF-1 and a Disability Certificate[1]. I ruled that their admission into evidence was not warranted, as the information was not relevant to the trial, and its admission would be highly prejudicial to Mr. Taylor.

[15] Another mid-trial ruling concerned Dr. Hamilton, Mr. Taylor’s treating neuropsychologist who, in preparation for trial, provided a medical legal report. While the defendant did not take issue with Dr. Hamilton’s qualifications, the objection was in respect of Dr. Hamilton wearing two hats at the trial.

[16] I ruled that Dr. Hamilton would be qualified as an expert. In support of this determination, I followed the direction of Perell J. in Wise v. Abbott, 2016 ONSC 7275, [2016] O.J. No. 6100, at para. 70, undertaking a factual enquiry to determine whether there was an actual partisan relationship between Mr. Taylor and Dr. Hamilton. I found there was none.

[17] The most consequential mid-trial ruling came on December 7, 2022, when, on day thirteen of the trial, I granted the plaintiff’s motion to strike the jury. I gave brief oral reasons, to be followed by written reasons, which will be released in due course.

EVIDENCE

[18] Over the course of this seventeen-day trial the parties provided a great deal of evidence and material through various lay and expert witnesses. On behalf of Mr. Taylor I heard from family members, co-workers, friends, and a director of photography who had hired Mr. Taylor before and after the collision. Mr. Taylor also called treating practitioners, three medical experts: Dr. Hamilton, Dr. Robinson, and Dr. Misener, as well as two damages experts: Ms. Ellen Lipkus (future care) and Mr. Gary Principe, (economic loss quantification).

[19] The defendant called two medical experts: Dr. Reznik and Dr. Jovanovski.

[20] While I have considered all of the evidence, material, and the law, in these reasons I will focus on the facts and law that I consider to be most directly relevant.

Mr. Paul Taylor – Overview

[21] At the time of the trial, Mr. Taylor was 55 years old. He was born and raised in Peterborough, and moved to Toronto after high school. He reconnected with his high school sweetheart, Ms. Young, after each of their first marriages had ended. He moved back to Peterborough where he and Ms. Taylor raised her two children, Maggie Young and Graham Young.

Mr. Taylor – Before the Collision

Employment

[22] Mr. Taylor had a long and successful career before the collision. From a young age he was captivated by photography. In 1989 he graduated from a four-year film course from York University. After working as a camera service representative for William F. White International, equipment supplier to the film and television industry, Mr. Taylor joined the film industry proper, with a view to working his way up to first camera assistant, more commonly referred to as a focus puller.

[23] A focus puller is responsible for keeping the camera focussed during the shot. This requires constant concentration, as the focus puller is continuously manipulating the camera lens, adjusting focus as the subject moves around the set. Focus pullers spend most of their day looking at a monitor with a focus remote, so dividing their attention between the subject and the monitor can be challenging.

[24] Mr. Taylor started out as a production assistant, and fifteen years later he achieved his goal of becoming a focus puller. He loved his job, referring to the film industry as “the military for creative people.” He worked on such films as Legends of the Fall and I, Robot, before finding his niche in filming commercials.

[25] The film industry does not resemble a typical nine-to-five, five-day-a-week form of employment. Most everyone who works in film and television is freelance. Focus pullers are hired by directors of photography (“DOP”). In the film industry, your reliability is your calling card. You move from job to job, building a network and a reputation as you go.

[26] Time is money on a set. The environment is hectic and fast paced, and DOPs do not take kindly to delays or mistakes. On average Mr. Taylor worked three-to-four days a week, but the hours were long – while a ten-hour day was the industry standard, most days ran twelve hours. Mr. Taylor would leave the house at 5:00 a.m. and drive to the set in Toronto. Often, he did not get home until after 9:00 p.m. There were times when he stayed in Toronto overnight, but before the collision he typically made it home to Peterborough after a shoot.

[27] The work was fast-paced, and Mr. Taylor was continuously called on to make split-second decisions about operating the camera. The job was also physically demanding, requiring repetitive heavy lifting of 50-plus pounds, moving cameras, film magazines, lens cases, and monitors. Focus pulling also meant prolonged standing, bending, climbing on ladders, squatting, and kneeling.

[28] Despite the long hours and intense conditions, Mr. Taylor thrived in the industry. Respected and well-liked, his identity was deeply intertwined with his persona: “Paul Taylor, the Film Guy.”

[29] Mr. Taylor averaged about $56,000 per year in the four years leading up to the crash.

Recreation and Activities

[30] Mr. Taylor’s irregular work schedule suited him, as he could spend time with Ms. Young and the kids on his days off. Before the collision Mr. Taylor was an engaged member of his family, always planning trips and activities.

[31] Mr. Taylor was physically active before the collision. He enjoyed hockey, swimming, running, and fishing. He cycled for fitness, and for a time was a member of the Peterborough Cycling Club. He road motorcycles and dirt bikes. He was also adept at fixing and maintaining them. He had a group of friends he would ride his motorcycle with. He and Graham bonded over dirt biking.

[32] Friends and family testified that Mr. Taylor was a happy man before the collision. He was variously described as kind, respectful, outgoing, energetic, and generous.

Housekeeping

[33] Mr. Taylor and Ms. Young shared in the family’s housekeeping tasks, including grocery shopping, meal preparation, cleaning, vacuuming, and laundry. Mr. Taylor was responsible for cutting grass and shovelling snow, and general home maintenance.

Pre-existing Medical Conditions

[34] Mr. Taylor was in good health and did not suffer from any chronic illness. He had never received disability benefits, had never been treated for psychiatric or psychological issues. Indeed, he did not even have a family doctor.

[35] Mr. Taylor believes he may have had two concussions while playing sports in high school, when he was slow to get up from being hit and had to sit out a shift. He described this as “getting his bell rung.” He experienced headache, dizziness, and sensitivity to light and noise. His symptoms eventually resolved.

[36] In his 20s Mr. Taylor tore the meniscus on his left knee. With surgery the tear healed, and while it caused him discomfort from time to time, it did not impede his functionality.

[37] The year before the collision Mr. Taylor re-injured his knee, and X-rays revealed early degenerative changes. The anti-inflammatory medications he was prescribed did their job, and he did not lose any time from work.

The Collision

[38] Mr. Taylor was off work the day of the collision. Ms. Young asked that he take some old furniture to the dump located on Base Line Road. It was a clear day in March, no snow or rain. The sky was blue, the roads were dry, and the promise of spring was in the air.

[39] Mr. Taylor drove his Honda Element along Bensfort Road, a two-lane highway with a maximum speed limit of 80 km per hour. He saw a red pickup truck stopped and waiting to turn left on to Base Line Road. Mr. Taylor stopped behind the red pickup truck. Just before the collision he looked into his rear-view mirror and saw a white car barrelling toward him, not slowing down. He recalled thinking the car was going to hit him, although he has no memory of actually being hit.

[40] There was no evidence of the defendant braking before she crashed into Mr. Taylor.

[41] The force of the collision propelled Mr. Taylor off the road and down an embankment into a ditch, about 130 feet away from the point of impact. His car rolled completely over and came to rest on its tires at the bottom of the ditch. The driver’s side airbag deployed.

[42] Photographs of his car depict a compressed roof on the driver’s side, and significant rear-end damage. The car was written off.

[43] Mr. Taylor remembers trying to steer through the collision as he was heading toward the ditch. He does not recall rolling over. His next memory is of someone banging on his window. That someone was Randy Ellis, whose independent and unbiased evidence is central to my determination of causation.

Mr. Taylor – After the Collision

Injuries

[44] Mr. Taylor said by the time the paramedics arrived he was pumped full of adrenaline and “felt like superman.” The ambulance call report (“ACR”) notes that he initially refused to be assessed, but later firefighters convinced him to let the paramedics check him out. The ACR notes Mr. Taylor said he had no loss of consciousness. There is a notation that he sustained a hematoma (bump) on his head, and contusion to “head/face/ears”. Mr. Taylor also declined transport to hospital.

[45] While he remembers speaking to the emergency crew at the scene, Mr. Taylor has no memory of declining an assessment, no memory of saying he did not lose consciousness, and no memory of saying he felt fine. He did recall asking if he needed stitches for the cut on the top right side of his head, which was beginning to swell. He was told he did not need stitches.

[46] Mr. Taylor testified that he had a memory of wanting to walk home after the collision. This despite the fact that home was 15 kilometers away, it was winter, and his feet were wet from the stream. Mr. Taylor called Ms. Young to pick him up. She did not answer her phone, so he called his dad to take him home. Mr. Taylor testified that he felt exhausted that night, and uncharacteristically went to bed after eating.

[47] The next morning Mr. Taylor awoke feeling like he had been “hit by a truck”. He described feeling “very out of it, confused and spacey.” He was worried about his expensive camara equipment the police would not let him take home the day before, so Mr. Taylor went to the lot where his car was stored and gathered his gear. He then went to the emergency room, where he was diagnosed with a concussion, given concussion protocol information, and discharged home.

[48] Mr. Taylor spent most of the next week in bed. He was in a mental fog. His memory and vision were “off”. He felt dizzy and sore all over. There was mental confusion, which Mr. Taylor described as feeling like he was drunk. He had blurred vision, light-headedness, and he felt like he was spinning even when completely still. He experienced ongoing headaches, and he slurred and forgot words.

[49] Mr. Taylor’s pre-existing left knee condition was aggravated from the force of the collision, and he sustained a new injury to his right knee.

[50] Mr. Taylor’s main and consistent complaints since the collision include dizziness, imbalance or unsteadiness, headaches, short term memory loss, word-finding difficulty, mood disorder, depression, double vision, sleep disturbance and low stamina.

[51] Mr. Taylor did everything within his power to get better. An abbreviated list of his efforts follows:

• He acquired a family doctor, Dr. Maltman;

• Dr. Maltman referred him to Dr. Krete, a physiatrist, in October 2015, in relation to the post-concussion syndrome. Dr. Krete diagnosed concussion, although he was not convinced concussion was the sole contributor to Mr. Taylor’s short-term memory issues. Dr. Krete reassured Mr. Taylor that he expected him to make a full and complete recovery;

• Physiotherapy;

• Occupational therapy commencing June 2015;

• Psychotherapy to treat his mood symptoms;

• Neurologic treatment at the Posture Clinic, a brain injury clinic, in Peterborough between 2016 and 2017. At the end of the treatment session, Dr. Horseman concluded Mr. Taylor had not achieved maximum health benefit, despite being compliant with the clinic’s intense and significant treatment protocol;

• In 2017 he was assessed by Dr. Rutka, Otolaryngologist, at the Multi-Disciplinary Neurology Clinic at the University of Toronto;

• Attending at Toronto General Hospital Balance Clinic;

• Attending at University Health Network’s Memory Clinic in Toronto on a number of occasions for post-concussive symptomology. In 2017 Mr. Taylor was still being reassured that despite being two years post-concussion, there was still room for improvement in his symptoms;

• He began seeing Dr. Hamilton, a psychologist practicing in the area of neuropsychology in February, 2017, and was still seeing her at the time of the trial;

• In 2018 Dr. Snaiderman of the Toronto Rehabilitation Institute conducted a neuropsychiatric assessment, diagnosing neurocognitive disorder secondary to traumatic brain injury. Dr. Snaiderman felt Mr. Taylor met the criteria for adjustment disorder with anxiety;

• In 2018, frustrated at what he perceived to be a lack of improvement, Mr. Taylor travelled to the Mayo Clinic in the United States. He consulted with Dr. Staab, a specialist in chronic dizziness and balance problems. It was Dr. Staab who made the 3PD diagnosis, which he found to be secondary to Mr. Taylor’s brain injury;

• Vestibular rehabilitation; and

• Saw a specialist in sleep medicine, who diagnosed severe sleep apnea. Mr. Taylor now uses a CPAP machine nightly.

[52] These efforts all from a man who had no family doctor prior to the collision.

[53] Mr. Taylor has been prescribed a number of medications in an effort to combat his dizziness and mood issues, including Cymbalta, Wellbutrin, Zoloft (Sertraline), testosterone injections, Effexor, Mirtazapine, Venlafaxine, Bupropion, and Duloxetine. Side effects from certain of these medications caused erectile dysfunction.

[54] In 2018 Mr. Taylor was approved for the CPP disability benefit.

Post Collision Employment and Activities

[55] Given his self-employed status, Mr. Taylor had to return to work in order to pay the bills. He had a job lined up that started less than a week later.

[56] Focus pulling is visually demanding – depth perception is a key skill, and Mr. Taylor struggled to keep up. What was once second nature had become a challenge.

[57] The demands of the job worsened Mr. Taylor’s symptoms. Visually, the lights, movements and patterns aggravated his spinning sensation. The longer he was required to remain upright, the worse his symptoms got. He tired easily, which impacted on his cognition. On the drive home to Peterborough he would have to pull over and rest, so he started staying at friends’ homes in the city more frequently than before the collision.

[58] Mr. Taylor did not consider not working – his primary focus was to get back to his old, normal life. His work defined him. He took every job that came his way. As he explained to the court, once you start turning down work, DOPs will simply call someone else, and eventually your name fades from memory.

[59] Mr. Taylor did not tell the DOPs who hired him about his injuries. But he did tell his second camera assistants. He testified that without their help, he would have failed at his job. His difficulty on the job was corroborated by his co-workers, who witnessed his struggles first-hand. His struggles were also corroborated in the clinical notes and records of his treating practitioners, including his family doctor (in 2015, 2016 and 2017), his occupational therapists (“OTs”), and his neurologist.

[60] Mr. Taylor made some major mistakes. The first was at a shoot at Elora Gorge. This was a big assignment, and the footage of stunt workers jumping into the Gorge had to be captured in one take. And it was. But, in a moment of confusion, Mr. Taylor accidentally deleted the footage, a $40,000 mistake. He was fired from that job.

[61] Another involved a shoot where Mr. Taylor had to stand on a ladder that was up 17’ in the air to operate the camera, which was affixed to a crane. He lost his balance and grabbed the crane to support himself, causing the crane to topple into the pool below, narrowly missing the talent.

[62] A third incident saw Mr. Taylor leaving $70,000 worth of equipment behind on a bus that was part of a particular shoot.

[63] Mr. Taylor did not make these kinds of errors before the collision. These incidents were demoralizing to him, as they did not reflect the professional standards he held himself to.

[64] The final straw was a shoot in April 2017 for the new Lincoln Continental. The camera was being operated from a hood mount that was affixed to the trunk, and the subject of the shoot was the driver inside the car. Mr. Taylor neglected to lock the camera on to the hood mount. If he had not noticed this mistake before the car accelerated, the camera would have crashed through the windshield, seriously injuring the driver.

[65] Mr. Taylor described this shoot as the job that “broke him.” While he had always trusted he would get better, more than two years later he had to admit he was not. He was overtaxing himself, stubbornly pushing to keep going. And as he drove home at the end of that day, perseverating about what might have happened, Mr. Taylor missed a stop sign and almost collided with another car. It was then that Mr. Taylor realized he had to stop working, a decision that was endorsed by his occupational therapist and neurologist.

[66] Mr. Taylor believes he is no longer employable. He certainly does not feel competent to meet the exacting standards of the film industry. He volunteered for a time at a local bike shop but even this undemanding job tired him out, and he would have to rest in his car on breaks.

[67] On the advice of his doctors Mr. Taylor tries to do the things he used to enjoy. But he finds it challenging to even motivate himself to be active. The few times he tried cycling he overexerted himself. Dirt biking made his symptoms worse - road vibrations increased his spinning sensation and affected his balance.

[68] Mr. Taylor feels less smart, less attentive, and less “on the ball” than he was before the collision. He is unproductive, spending parts of the day lying around the house. He is now quick to anger. He no longer likes to socialize – it is hard for him to follow a conversation if there is other noise in the background.

[69] Mr. Taylor does not contribute to the family dynamic as he once did. In clear emotional distress while on the witness stand, he described that his once equal relationship with his wife has shifted. She is now his caretaker, tasked with keeping him safe.

Lay Witnesses – Family and Friends

Ms. Karen Taylor

[70] Mr. Taylor’s wife, Karen Young, is an education assistant. She works from 7:45 to 3:15, and has summers off, which dovetailed well with Mr. Taylor’s flexible schedule.

[71] She described Mr. Taylor before the collision as intelligent and interested in current affairs. He was an inherently decent human being, kind and respectful, and their lifestyles were in sync. Mr. Taylor was full of energy, and was fun to be around. It was meaningful to Ms. Young that he leapt into their family life willingly, and he was wonderful to her kids.

[72] Mr. Taylor had a good memory before the crash, and almost never went to the doctor. He slept well and did not have sleep apnea. After the collision she asked her family physician, Dr. Maltman, to take him on as a patient.

[73] Ms. Young recalled that the night of the collision, Mr. Taylor came home “all fired up”. He told her he was in a collision but provided no details beyond getting hit from behind. She had no idea he was hit by someone going at full speed, that he was pushed down an embankment, or that the car rolled. In fact, she did not fully understand the extent of the collision until she saw a picture of the car in the newspaper. And it was not until she actually saw the car when they went to retrieve it that she realized the roof was pushed in.

[74] From her vantage point, Mr. Taylor post-collision has less energy and less zest for life. He no longer engages with the kids, he is irritable and short-tempered, like he is on a “hair trigger.” He is mostly silent during mealtimes. He has gained over 20 pounds and is noticeably heavier.

[75] In the aftermath of the collision he put on a brave face, saying he was fine when he clearly wasn’t. After two years their relationship became strained, as Mr. Taylor withdrew further away. He also slept more than she had ever known him to.

[76] Although he was compliant with all of his treatment, attending appointments and doing what he was told to do, he was getting frustrated with his lack of progress. Together they researched his most significant challenges – memory and brain fog and the spinning sensation. This online research led them to Dr. Staab at the Mayo Clinic. They decided to go even though the visit was not covered by OHIP, as they were desperate to find a cure, or at least an answer.

[77] With medication she saw Mr. Taylor’s balance improve, and the frequency of his headaches lessen somewhat.

[78] They now have separate bedrooms given his erratic sleep schedule. A side effect of Sertraline, the medication that provides him the greatest relief, causes sexual dysfunction, which has created a break in the fabric of their intimacy.

[79] Mr. Taylor’s obligations to his ailing father, Doug, are also creating a strain. Doug is in poor health, suffering from dementia. He does not want to move into a retirement home, so the burden of ensuring he can remain in his own home falls to Mr. Taylor. While a housekeeper does the cleaning, and Ms. Young helps when she can, Mr. Taylor sees Doug almost daily, taking him to appointments, buying his groceries, providing some companionship. She can see Mr. Taylor’s frustration when he returns home after helping his father.

[80] Ms. Young testified that the change in Mr. Taylor’s personality has affected their marriage. Given his poor memory, she has to employ strategies, such as making him lists, so he can simply stay on track. Much as Mr. Taylor described, she feels that she is more his caretaker than his partner in life.

[81] Ms. Young described herself as lonely in her marriage now.

Ms. Maggie Young

[82] Maggie Young has known Mr. Taylor since she was five. She has positive memories of summer vacations, swimming, and Mr. Taylor always encouraging her and her brother to take pictures. Before the collision Mr. Taylor was laid back and easy-going, rarely raising his voice. She recalls he and her mother having a very positive relationship.

[83] The biggest change Maggie Young sees in Mr. Taylor post-collision is his cognition. He can’t seem to remember anything, despite all the work Ms. Young does to help with this (keeping a calendar for each of them, writing everything down, reminding him). He is also distracted and can only focus on one thing at a time, which makes socializing difficult.

[84] She sees the strain his injuries have had on their marriage and thinks that her mother feels abandoned.

Mr. Graham Young

[85] Graham Young recalled Mr. Taylor as being energetic and “super friendly” before the collision. They enjoyed dirt biking together. They would make a full day of it, heading out in the morning with lunch and a water cooler, and not returning until dinner.

[86] He said Mr. Taylor worked hard as his job and was very proud of his work. He loved sharing stories of his days on the set with the family.

[87] When he got home from work, Mr. Taylor would interact with everyone; now he simply comes home and sleeps. If the kids did not make the effort to interact, they could go a full day without talking to him.

[88] Graham Young can see his mother’s frustration, in that Mr. Taylor does not pay attention to her and is too tired and “spinny” to do anything fun with her.

Ms. Sheri Fox

[89] Ms. Fox, a high school teacher, is a close friend of Mr. Taylor and Ms. Young. She has known Ms. Young for over 30 years, and Mr. Taylor for over 20 years.

[90] Ms. Fox described Mr. Taylor before the collision as someone with good social skills who was fun, interesting, and able to talk about global events. He was affectionate and devoted to Ms. Young. He was engaged in the kids’ lives, connecting with Graham Young over sports, and taking Maggie Young to her activities and getting to know her friends. In her words, Mr. Taylor was a “good guy.”

[91] Mr. Taylor is no longer the confident man he once was. He is easily exhausted, which frustrates him. In a social setting the littlest thing can set him off. She recounted one occasion when they were all at a restaurant, and Mr. Taylor suddenly left without saying why. Ms. Fox later found out that he felt slighted when they were asked to change tables, behaviour she had never seen Mr. Taylor display before.

[92] Ms. Fox described how one never knows what version of Mr. Taylor they will get: the terse Mr. Taylor; the good Mr. Taylor who wants to tell a story (although his stories now ramble); the funny Mr. Taylor (whose sense of humour now runs to the inappropriate); or the over-the-top Mr. Taylor (whom Ms. Young may need to reign in).

[93] Ms. Fox sees the toll Mr. Taylor’s injuries from the collision have had on Ms. Young. Her friend is now clearly unhappy in many ways.

Mr. Roy Smith

[94] Mr. Smith met Mr. Taylor in Ohio in 2010 or 2012. They became friends and would go to one another’s parties and family gatherings. They shared a love of motorcycles and would go on long rides together – weeklong trips to Vermont and back, for example.

[95] Before the collision Mr. Taylor was fit and well-dressed. He was fun in social settings, had a good sense of humour, and got along with everyone. Since the collision Mr. Smith sees a complete change in him, both in personality and appearance. For example, he will leave group settings abruptly. He can be blunt and miserable in social settings. His is now quick to anger, but Mr. Smith knows the signs, and will do what he can to redirect Mr. Taylor. In terms of appearance, Mr. Taylor is now unkempt, untidy, and overweight.

Lay Witnesses – Work Colleagues

Mr. Adam Quinn

[96] Mr. Quinn has been in the film business for years, starting off as a production assistant, and working his way up to focus puller. Mr. Quinn described focus pulling as a labour-intensive job, often necessitating an extra pair of hands. Mr. Taylor would at times hire Mr. Quinn to be the second assistant, and vice versa. The two would run into each other on the sets of multi-camera events such as major motion picture films, or large sporting events. He estimated that he and Mr. Taylor had worked together over 100 times before the collision.

[97] Their jobs were exciting, working with movie stars, athletes, shooting in cool and exotic locations. Camera work is fast-paced, and a focus puller must be dialed-in to succeed in the field. It was also mentally demanding and required hyper-concentration and laser focus. Focus pullers had to get it right 100% of the time.

[98] Mr. Quinn spoke highly of Mr. Taylor. He learned part of his skill from him. He referred to him as a “pit bull,” with the passion necessary to survive on a set for the long days. Mr. Taylor would never say no to work and was always the quintessential professional on the set.

[99] Mr. Quinn and Mr. Taylor had a shared love riding, both motorcycles and bicycles, and would often ride together. They also went to industry social events together.

[100] Mr. Quinn worked with Mr. Taylor ten or twelve times after the collision as well. He noticed that Mr. Taylor was lacking in focus and not always present, often just staring into the distance.

[101] He also saw Mr. Taylor do things that were contrary to industry protocol. For example, he was not properly handling the “digital media cards” containing the footage that was shot.

[102] Industry standard is to take the card out of the camera and immediately hand it over to your second assistant. This ensures the focus puller doesn’t accidentally put the card back in the camera and film over it. The card should also be wrapped up in tape and properly identified when removed. Mr. Quinn observed Mr. Taylor not following these industry protocols. He told Mr. Dametto, Mr. Taylor’s second camera assistant, to make sure that he, and not Mr. Taylor, handled the cards upon removal. He did so because he considered Mr. Taylor a friend and wanted to protect him. Mr. Quinn described the film business as a small community, where reputation is everything. News of big mistakes travels like wildfire.

[103] Despite considering Mr. Taylor a friend, Mr. Quinn eventually stopped referring him to out-of-town DOPs. The quality of his work had decreased, and any mistakes he made on set could reflect back on and harm Mr. Quinn’s reputation.

Mr. Alex Dametto

[104] Mr. Dametto met Mr. Taylor in mid-2012, when Mr. Taylor was one of the first focus pullers to hire him as a second camera assistant. Mr. Taylor took him under his wing, and Mr. Dametto started worked with almost exclusively with Mr. Taylor in 2013, averaging three to five days a week. This arrangement continued into 2014.

[105] Mr. Dametto learned a lot about his craft from Mr. Taylor. Focus pullers not only run the camera department, but they have to be in tune with what is happening on the set 100% of the time. There is a slim margin for error, and if hand-eye coordination is off, and the subject is out of focus, another take is necessary. This is obvious to everyone on set. Takes are always evolving, and if you are not paying attention, the take can be ruined. Mr. Dametto called Mr. Taylor a “wizard” at his craft.

[106] Focus pulling requires a good memory in order to remember details from take to take.

[107] Before the collision Mr. Taylor had a strong work ethic. He was calm, collected and concentrated. He had a cool demeanor – quiet, focussed and tuned in – and did not show any lack of confidence. Time is of the essence on a film set, and Mr. Taylor was able to do what he needed to get the job done quickly. He always wanted to work, and the type of shoot did not matter to him. He was energetic and could handle being thrown right into the shoot at the start of the day. He was always able to keep up, and that included lugging the camera boxes weighing between 50lbs to 100 lbs. He got along with people very well before the collision.

[108] Mr. Dametto worked almost daily with Mr. Taylor in the four to six months after the collision as well. In terms of the changes he noticed, he said there was general confusion at any given time. Mr. Taylor would get a look on his face like he was completely lost in the moment. And he would forget instructions.

[109] Lens changes are difficult – the focus puller needs to remember what lens the director called for. Mr. Taylor was now forgetting what lens was requested, and Mr. Dametto took it upon himself to cover him when he could. In fact, Mr. Dametto covered for Mr. Taylor on numerous tasks. For example, Mr. Taylor took the media card out of the camera and put it back in deleting all the footage they had just shot of a stunt. From that point onward, Mr. Dametto took control of the media cards. Mr. Taylor never made a mistake like that prior to the collision.

[110] Mr. Taylor had difficulty with lights after the collision. He would more often than not put a big black towel or blackout material over his head to block out the lights from the set when looking into the monitor.

[111] Mr. Dametto recalled Mr. Taylor being called out numerous times on set for not being able to follow the action in a shot. Mr. Dametto recounted one instance where, on a Budweiser commercial, in the midst of a big party shot, the camera was supposed to push-in to focus on the can of beer. Mr. Taylor kept getting it wrong, and the director kept yelling “Paul Taylor, soft, Paul Taylor, soft!” It took about twenty takes to get the shot right. Being unable to lock on a subject and focus was not something Mr. Taylor had trouble with before the collision.

[112] Physically, Mr. Taylor was no longer able to lift and carry the camera equipment, and Mr. Dametto looked after most of this. Mr. Taylor would complain that his knees were bothering him. He had obvious difficulty changing positions or getting up from sitting. These were not afflictions Mr. Taylor suffered from before the collision.

[113] Mr. Dametto noticed a decrease in Mr. Taylor’s stamina as well. There was generally an hour lunch break on set. Before he was injured, Mr. Taylor would remain on set during lunch, socializing with the crew. After the collision, Mr. Taylor would sleep in his car over the lunch break. Mr. Taylor also stayed in the city more often after the collision, at hotels as well as Mr. Dametto’s home. He was often “wiped out” at the end of a day, and too tired to attempt the drive home to Peterborough.

Mr. James Gardner

[114] Mr. Gardner, a DOP, has worked in the film industry for over fifty years. His evidence in respect of the pressure on film shoots coincided with that of Mr. Taylor, Mr. Quinn, and Mr. Dametto. Mr. Gardner described the film industry as a harsh business, with “no room for passengers.” There was also no room for accommodation.

[115] DOPs hire focus pullers directly. Mr. Gardner described the skill set he required in a focus puller – very good concentration, with a feel for being able to get their hands to do what their brain is telling them to do, all with a goal to making the picture perfect. Attention to detail is extremely important, as is confidence and good judgment.

[116] Mr. Gardner estimated he hired Mr. Taylor upwards of 50 times, starting in 2009. He described Mr. Taylor as conscientious, hard working, and dependable – one of the top three focus pullers on Mr. Gardner’s go-to list.

[117] Mr. Gardner also hired Mr. Taylor after the collision. He had heard from another focus puller that Mr. Taylor had been injured and wanted to help him get back on his feet. However, on the first day Mr. Gardner hired him, he immediately saw that Mr. Taylor was not himself. His brain was not as quick or as sharp as it used to be. He took too long to change lenses, had trouble finding his focus marks, and made uncharacteristic errors.

[118] Not sure whether his first day back was a good or bad day, Mr. Gardner gave him the benefit of the doubt and hired him again. But Mr. Taylor’s skills never improved, and after a few more assignments Mr. Gardner eventually stopped calling him.

Credibility of Lay Witnesses – Family, Friends, and Co-Workers

[119] It is my duty to assess both the credibility and the reliability of each witness. Credibility and reliability are two different, but related considerations. Credibility focuses on a witness’s veracity; reliability is concerned with the accuracy of the witness’s testimony, and their ability to accurately observe, recall, and recount events in issue: R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214, at para. 41.

[120] The defendant labels the lay witnesses as “oath-helpers.” In other words, while they were expressly called upon to comment on their observations of Mr. Taylor, their implicit purpose was to corroborate Mr. Taylor’s testimony. They were unilaterally selected by Mr. Taylor to provide information that was helpful to him. As such, they are biased in favour of Mr. Taylor, and their evidence is of no utility to the court in determining the issues I must decide in this trial.

[121] By all accounts oath-helpers originated in the Norman period, when one who was required to prove his assertions in court swore a solemn oath to the truth of his declarations. Those he brought to court who testified an oath as to his truthfulness were called oath-helpers. For example, if the man was charged with murder, the oath-helpers swore that he was not guilty of the crime charged.

[122] The Supreme Court of Canada in R. v. Marquard 1993 37 (SCC), [1993] 4 S.C.R. 223 has stated the more modern principle that, where the sole purpose of evidence is to bolster the complainant's credibility, the evidence will be excluded on the basis that it contravenes the rule against oath-helping. On the other hand, such evidence may be admitted where it relates to matters in issue other than credibility.

[123] In no manner does the evidence of these lay witnesses amount to oath-helping. I do not find their nefarious purpose to be corroboration of Mr. Taylor’s evidence. They were lay witnesses in their truest form, chosen to provide testimony based on their direct observations and personal dealings with Mr. Taylor on three different and important planes: familial, workplace, and social. In other words, they provided their personal knowledge of Mr. Taylor, as he was before the collision, and how he presented afterwards.

[124] I note that much consternation was raised in respect of Mr. Dametto who, according to Mr. Baldwin, wholly departed from his will-say statement. By the defendant’s count, Mr. Dametto described for the court twelve distinct instances of Mr. Taylor’s challenges at work that were not in his statement.

[125] Pursuant to r. 31.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a party must disclose not only the names and addresses of persons having knowledge of the matters in issue in the action, but also a summary of the substance of their evidence: Dionisopoulos v. Provias, 1990 6642 (ON SC), [1990] O.J. No. 30, at para. 14.

[126] As Lauwers J. held in Davies v. Clarington (Municipality), 2010 ONSC 6103, [2010] O.J. No. 4900, at para. 26, “any such summary must contain a fair bit of detail addressing the normal journalistic questions related to the person and the relevant knowledge that he or she possesses, being: “who, what, where, when, why and how”. I have reviewed Mr. Dametto’s will-say statement. At six pages long, it more than adequately addressed the journalistic questions. The fact that further detail was provided at trial has no bearing on Mr. Dametto’s reliability.

[127] The defendant also took issue with the evidence of Mr. Quinn, who told the court that a novice focus puller might earn $70,000 per year in 2018, and an established focus puller such as Mr. Taylor could earn upwards of $150,000 per year. This evidence differed from Mr. Taylor’s, whose revenue before the collision averaged in the mid-$60,000 range. To this I have two comments. First, Mr. Taylor was not working in 2018, and he gave no evidence as to what his earning potential might be in that year. Second, freelance contractors negotiate their own pay rate. That Mr. Quinn’s vision of what a focus puller could earn differed from Mr. Taylor’s is of no consequence. It certainly does not raise to the level of “blatant exaggeration” as suggested by the defendant.

[128] Finally, the defendant took issue with Maggie Young’s comment to the effect that she did not know it was “common knowledge” that Mr. Taylor had taken on the role of caregiver to his father, so she did not mention it. According to the defendant, this was a deliberate attempt to suppress evidence about Mr. Taylor’s level of functionality. I do not make this inference as urged by the defendant. Maggie has not lived at home for a number of years, and there is no evidence to suggest she thought providing this information would be detrimental to Mr. Taylor’s case.

Conclusion on Lay Witness’ Credibility

[129] I find that all of these witnesses were credible, and all of their evidence was reliable. They were each of them honest and balanced, and did their best to be truthful. They did not embellish their evidence, nor did they exaggerate.

[130] The fact that some of Mr. Taylor’s work colleagues could not recall the date of his collision, or how long he continued to work after the collision, does not detract from their credibility or reliability. The absence of this level of information makes their evidence seem uncontrived. Had they been able to recite dates and times with ease, their evidence would have appeared coached and rehearsed.

Lay Witnesses – Collision Scene

Police Constable Gary Blackman

[131] PC Blackman is a police collision reconstruction officer. By happenstance he was in the area when he got the call to attend the collision, and arrived within minutes to what he described as a “chaotic scene.”

[132] Based on his observations he authored a Collision Reconstruction Report, in which he concluded that the collision was a direct result of the actions of Ms. Zents.

[133] PC Blackman has an independent recollection of the collision scene, and of examining the cars involved. He remembered Ms. Zents’ car as being full of blood. He recalled that both vehicles came to a stop at the bottom of a gulley, in a ditch. As PC Blackman described it, the cars were “partially submerged in running flood water.” Once Ms. Zents’ car was brought up from the water, a cell phone was found on the floor on the driver’s side.

[134] PC Blackman described Mr. Taylor’s car as having considerable exterior damage. It was evident that the car was rear-ended. It was also evident that the car had become airborne and landed hard on its roof. He estimated that it had rolled at least once, if not twice.

[135] During cross-examination PC Blackman was taken to his Collision Reconstruction Report, and in particular the Incident Synopsis, where he concluded that Ms. Zents had received a serious head injury, and the other two drivers, Mr. Taylor and Ms. Smit (driver of the red truck Mr. Taylor was stopped behind) were not injured.

[136] He agreed that Mr. Taylor’s seatbelt worked as intended, restraining Mr. Taylor and locking him in to prevent forward movement as his car careened down the incline. In PC Blackman’s view, however, in a rear-end collision the car is pushed forward but the occupants remain stationary, which is the equivalent of the occupants moving backward. And occupants can hit their head even when wearing their seat belts.

[137] PC Blackman was also taken to the Basis for Analysis section of his report, in which he identified the information he relied upon to come to his conclusions, including the witness statements of Mr. Taylor and Randy Ellis. These statements did not mention any injury to Mr. Taylor.

[138] This line of questioning was intended to show that Mr. Taylor did not report any injury to those who assessed him at the scene, further underscoring the defence theory that Mr. Taylor is manufacturing injury for financial gain.

[139] However, PC Blackman’s duty was to determine how the collision happened, not injury. It was clear that Ms. Zents was seriously injured: blood was splattered throughout the cabin of her car – the windshield, the driver’s door and window, the driver’s airbag, entre console, left side of the passenger seat and the rear seatback of the driver’s seat. She was transported to Peterborough Regional Health Centre, and later airlifted to St. Michael’s Hospital in Toronto. It was obvious that Mr. Taylor was not physically injured in anything approaching the level of Ms. Zents.

[140] In redirect, PC Blackman said that when he drafted his report, he had no firsthand knowledge of Mr. Taylor. He was unaware he went to the Hospital the following day. Nor did he did review Mr. Taylor’s medical records when he drafted his report, although he knew that the paramedics documented a haematoma.

Mr. Randy Ellis

[141] Mr. Ellis was as independent a witness as one can find, a bystander who watched the collision unfold before his eyes. He remembered each detail clearly. He testified he was driving north on Bensfort Road, slowing to turn right onto Base Line Road. He saw the red pick up truck, stopped and waiting to turn left onto Base Line Road, and he saw Mr. Taylor’s Honda Element stopped behind the red truck. Mr. Ellis was just about to make his right turn when he noticed a car driving toward the Element at full speed. He said the car did not slow down before impact, and the driver took no evasive action, with the exception of perhaps swerving to the left just before impact.

[142] Mr. Ellis saw the Element roll into the ditch. He described the ditch as about eight feet high, with quite a gully full of water at the bottom.

[143] Mr. Ellis threw his truck into park and ran down to the vehicles, which had come to rest at the bottom of the ditch. He went to Ms. Zents’ car first. He pulled the door open and tried talking to her, but she was unresponsive. He realized there was nothing he could do to assist her.

[144] Next he ran over to the Element. He could see significant rear end damage, and that the roof had caved in. Mr. Ellis estimates that maybe three minutes had passed between impact and getting to Mr. Taylor’s vehicle.

[145] He pulled open the door to the Element and asked Mr. Taylor if he was alright. Mr. Taylor did not acknowledge him at first. Mr. Ellis asked again if he was okay. Mr. Ellis said it felt like Mr. Taylor did not even know why he (Mr. Ellis) was there at this car door. Indeed, Mr. Taylor appeared angry, because when Mr. Ellis pulled the car door open, some camera equipment fell out into the swamp.

[146] Mr. Ellis described Mr. Taylor as disoriented. He was also physically shaking in his seat. Mr. Ellis asked Mr. Taylor if he knew he was in an accident. It took a while for Mr. Taylor to answer, but he eventually said he knew he was in an accident, and that he thought he was alright.

[147] Their entire interaction lasted between 30 and 45 seconds.

[148] In cross-examination, Mr. Baldwin took Mr. Ellis to his police statement, placing particular emphasis on Mr. Ellis’ comment that Mr. Taylor “he was shaking, but fine.”

[149] Much like with PC Blackman, relying on this comment to support a lack of causation between the collision and Mr. Taylor’s current complaints misses the mark. Compared with Ms. Zents, Mr. Ellis might well have described Mr. Taylor as “fine.” He could respond to Mr. Ellis, albeit slowly. The interior cabin of his vehicle was not splattered with blood. Indeed, Mr. Taylor even described himself as “fine.”

[150] Mr. Ellis’ evidence that Mr. Taylor was dazed and disoriented is not overshadowed by his statement to police that Mr. Taylor appeared “fine.” While not trained to identify a head injury, as the first person to reach Mr. Taylor, Mr. Ellis’ description of his presentation in the immediate aftermath of the collision – disoriented, slow to respond, shaking – is the best evidence before the court. By the time the paramedics assessed Mr. Taylor twenty-seven minutes after the collision, Mr. Taylor did not appear to be dazed or disoriented.

Conclusion on Lay Witness’ Credibility – At the Scene

[151] Much like the evidence of the first group of lay witnesses, neither the credibility, nor the reliability, of the lay witnesses at the scene was impaired by cross-examination.

Medical Witnesses – Treating Practitioners

Dr. Aidan Cunniffe

[152] Dr. Cunniffe testified, although he acknowledged that he had no independent memory of seeing Mr. Taylor in the emergency room.

[153] Dr. Cunniffe took the court through the physician’s page of the hospital chart – the handwritten record of his assessment of Mr. Taylor the day following the collision. His notes indicate as follows:

• Yesterday at 4:15, driver, restrained, car stopped, rear ended, not struck by other cars, side airbags deployed, he felt well after event;

• No loss of consciousness;

• No neurologic symptoms (weakness or loss of function in extremities) or paresthesia (pins and needles in extremities);

• Very mild headache;

• Nausea;

• No vomiting;

• He came to ER as thinks he is concussed;

• He feels “spacey”;

• Gait normal;

• Trace of photophobia; and

• Had sustained concussions previously.

[154] Dr. Cunniffe’s physical examination of Mr. Taylor revealed no areas of concern. On the basis of the history provided, Dr. Cunniffe diagnosed Mr. Taylor with a concussion.

[155] In cross-examination Dr. Cunniffe was asked about the symptoms one would present with they had sustained a concussion. Dr. Cunniffe explained that symptoms could be present at the moment of injury, but not always. For example, headache is a symptom. But he clarified that he would not make a distinction between a headache immediately after an injury, and a headache that came on later.

[156] Dr. Cunniffe agreed that he did not find objective signs of a concussion when he assessed Mr. Taylor, and his diagnosis was based on the information provided by Mr. Taylor.

[157] The intent of this line of questioning, of course, was to suggest that Mr. Taylor influenced Dr. Cunniffe to diagnose a concussion. I was not so persuaded. Dr. Cunniffe is a trained emergency room physician, experienced in assessing the injured after trauma. Based on Mr. Taylor’s descriptors – spacey, headaches, photophobia, inability to focus – Dr. Cunniffe was well-equipped to make his diagnosis.

Dr. Craig Maltman

[158] As noted previously, Mr. Taylor began seeing Dr. Maltman about three weeks after the collision; he remains his family doctor to date. He assessed Mr. Taylor a number of times over the years, and referred him to specialists, all with a view to helping Mr. Taylor recover from his concussion.

[159] Although a family physician, Dr. Maltman has experience diagnosing concussions. As a family practitioner in Tennessee, he was the team physician for Tennessee Tech University’s football team, conducting annual physicals for the players, and attending home games. During games he would have occasion to diagnose players with suspected or confirmed head injuries.

[160] Back in Canada, Dr. Maltman opened a family practice in Peterborough. He was the team physician for the Peterborough Petes hockey team, again conducting annual physicals for the players, and attending home games to be on hand for injuries, including suspected head injuries.

[161] Dr. Maltman told the court that in his view, a concussion is a traumatic brain injury, with symptoms including headache, dizziness, nausea, memory loss, fogginess. Concussion is the syndrome that develops as a result of a traumatic brain injury.

[162] At Mr. Taylor’s first visit on April 7, 2015, he reported that he was still not 100% focussed, he felt foggy, and he had back pain and knee pain. He felt things were not as “sharp”, he had difficulty processing information, and suffered from dizziness. He denied headaches.

[163] At this visit Dr. Maltman diagnosed Mr. Taylor with concussion, chronic knee pain, and thoracic spine pain, all collision related.

[164] When Mr. Taylor’s symptoms persisted, Dr. Maltman diagnosed him with post-concussive syndrome, meaning his concussion symptoms were persistent and prolonged.

[165] Dr. Maltman diagnosed Mr. Taylor with patellofemoral syndrome (knee pain). He also queried depression, given Mr. Taylor’s depressed mood, hopelessness, sleep issues, and anxiety.

[166] Dr. Maltman testified that Mr. Taylor repeatedly complained of mental fogginess, difficulty with memory, and chronic dizziness. This was in line with Dr. Staab’s diagnosis of 3PD, a diagnosis Dr. Maltman was not familiar with.

[167] Dr. Maltman saw Mr. Taylor regularly between 2015 and 2018, and less frequently thereafter. Mr. Taylor complained primarily about his cognitive issues and, to a lesser degree, his knee issues. As time went on, the focus became less about knee pain, and more about his persistent cognitive issues (memory loss, word-finding difficulty, inability to focus, vision trouble, balance issues). Indeed, the last recorded knee complaint in Dr. Maltman’s clinical records was April 7, 2016.

[168] Mr. Taylor worried about his mental health. Dr. Maltman testified that most patients who sustain a traumatic brain injury are at high risk for mental health issues, as the changes they experience in themselves, and their lives, beget depression.

[169] Dr. Maltman explained that treatment for post-concussion syndrome varies depending on the person. In Mr. Taylor’s case, there were numerous consultations and medication trials at the outset, so he saw him fairly intensely, both to adjust or change medication, and to monitor his progression.

[170] Dr. Maltman referred Mr. Taylor to Dr. Krete in 2015, who confirmed the diagnosis of concussion.

[171] Around this time Mr. Taylor began to see Dr. Telka, a psychologist, to assist with his mental health issues, again on Dr. Maltman’s recommendation.

[172] In late 2016 Dr. Maltman started referring Mr. Taylor to specialists in Toronto. He underwent a cognitive assessment at the Memory Clinic at Toronto Western Hospital, where Dr. Tartaglia diagnosed him with post-concussion syndrome.

[173] Dr. Tartaglia referred Mr. Taylor to Dr. Snaiderman, neurologist, who diagnosed Mr. Taylor with mild neurocognitive disorder, secondary to traumatic brain injury. According to Dr. Snaiderman’s consult report, Mr. Taylor presented with executive dysfunction, and met the criteria for adjustment disorder with anxiety. Dr. Maltman described an adjustment disorder as persistent symptoms after a traumatic or significant incident.

[174] But as often happens, eventually Mr. Taylor stabilized. He stopped seeing Dr. Maltman as often because there was nothing more Dr. Maltman could offer. Mr. Taylor’s condition had plateaued, becoming “what it was going to be.”

[175] Dr. Maltman testified that, given the length of time that has elapsed since the collision, Mr. Taylor will likely continue to have symptoms.

[176] In cross-examination, Dr. Maltman was asked whether his allegiance was to his patients. Dr. Maltman answered in the affirmative. Dr. Maltman also agreed that medical experts review all the information before them and look for consistencies or inconsistencies in order to test the veracity of complaints being made by a patient.

[177] When asked whether he accepted the veracity of symptoms based on a patient’s reporting of them, Dr. Maltman agreed he would. He also agreed that these symptoms would be managed based on the patient’s self-reporting. However, if the symptoms were not consistent with the patient’s presentation, then they are questioned. Dr. Maltman also confirmed that assessing whether a patient is malingering is part of a physician’s assessment.

[178] Dr. Maltman was taken to the MRI performed on Mr. Taylor’s brain on May 10, 2016, which concluded that no acute intercranial processes were seen, although sinus disease was noted. When asked whether this confirmed his (Dr. Maltman’s) diagnosis of concussion or brain injury, Mr. Maltman said that the objective of an MRI is to look at the structure of the brain, not necessarily the function of the brain. An MRI does not question a diagnosis of concussion or brain injury, but it can rule out causes such as intercranial bleeds or stroke as the origin of the symptoms being complained of.

Dr. Jeffrey Staab

[179] Dr. Staab is a professor and chair of the Department of Psychiatry and Psychology at the Mayo Clinic in Rochester, Minnesota. Dr. Staab’s resume is impressive and reads like a small novel. He has authored scientific articles, serves on editorial boards, and holds various leadership positions. Dr. Staab has a special interest in persistent postural-perceptual dizziness, or 3PD, which is what led Mr. Taylor to travel to the Mayo Clinic. Dr. Staab said this was not unusual – many international patients find him over the internet.

[180] Mr. Taylor’s visit followed the normal course. He first met with a Dr. Mohammed, who conducted a clinical interview. Mr. Taylor then met with other specialists who performed a number of medical evaluations. Once these investigations were complete, Dr. Staab reviewed the results with Mr. Taylor and provided his diagnosis. In Mr. Taylor’s case, there was no evidence of brain damage or nervous system structural damage. But there was a finding of post-concussion syndrome, which led to the diagnosis of 3PD.

[181] During cross-examination Dr. Staab was taken to Dr. Mohammed’s intake notes, specially the note where Mr. Taylor reported fluid leaking from his ear for a few days following the collision. This was the first time this symptom was introduced at the trial. It would not be the last.

[182] When asked whether fluid leading from an ear was an important piece of the 3PD diagnosis, Dr. Staab replied that it could be, but it was unlikely to cause ongoing dizziness. Mr. Baldwin suggested that fluid coming out of one’s ear would surely cause that person to go to a doctor. Dr. Staab disagreed – in his experience, people tolerate all manner of symptoms they do not share doctors.

[183] Mr. Baldwin then took Dr. Staab to the Diagnostic and Statistical Manual of Mental Disorder[2] (“DSM”), specifically the section that states malingering should be strongly suspected if any combination of the following is noted:

• The medical/legal context of presentation (whether a lawyer makes the referral to the clinician);

• Whether there is a marked discrepancy between the person’s described injury and the objective findings; and

• Lack of compliance with prescribed treatment regimes.

[184] Mr. Lehman objected when Mr. Baldwin then began questioning Dr. Staab on malingering, submitting that to ask his opinion on malingering would be to take Dr. Staab beyond his capacity as a participant expert. Mr. Taylor had called Dr. Staab for the limited purpose of introducing Mr. Taylor’s diagnosis of 3PD related to post-concussive syndrome. I overruled the objection, holding that Dr. Staab’s position as a participant expert did not mean that the scope of the cross-examination should be impermissibly circumscribed. However, Mr. Baldwin was not permitted to ask Dr. Staab’s opinion on whether Mr. Taylor was malingering.

[185] Dr. Staab confirmed that if the three factors were present, he would question the confidence of his diagnosis.

[186] The thrust of this cross-examination appeared to suggest that Mr. Taylor researched symptoms of 3PD on the internet, found that fluid leaking from an ear was a symptom, and adopted it as his own to ensure a favourable diagnosis.

Mr. Colin Newman

[187] Mr. Newman was Mr. Taylor’s occupational therapist (“OT”) from 2016 until 2020 when funding for treatment ended. The role of an OT is to devise strategies aimed at restoring the client to their previous function in terms of their activities of daily living, including self care, housekeeping, work, etc. – essentially, any activity that is important to them.

[188] OTs focus on symptoms and levels of function, they do not make diagnoses. Mr. Newman was informed of Mr. Taylor’s injuries and challenges by Mr. Taylor, as well as by his review of the medical records.

[189] Mr. Newman had an independent recollection of treating Mr. Taylor. He recalled how he felt he was no longer contributing to the family as he did before the collision. He also recalled how Mr. Taylor worried that Ms. Young was taking on more of a caregiver role than that of a wife. He also recalled that Mr. Taylor was focussed on recovery, willing to try anything to get better.

[190] At his first assessment, Mr. Newman noted that Mr. Taylor was “most limited in work by the changes he is experiencing with cognition.”

[191] At his second assessment, Mr. Newman summarized Mr. Taylor’s struggles thusly:

Mr. Taylor reported that he is trying hard to reach pre-accident work function. Unfortunately, he reports having difficulty keeping up. He stated that long and sporadic hours increase his post-concussion symptoms to the point that he feels “inebriated.” He often reports feelings of dizziness, nausea, headaches, clouded focus and fatigue. These symptoms make it difficult for him to complete pre-accident work demands.

[192] To get a better idea of his work environment, Mr. Newman joined Mr. Taylor on the set of a Subaru commercial shoot. This was Mr. Newman’s first time ever on a shoot of any kind, and that day stood out to him. Upon arrival he found the scene to be disorganized, with the director continually changing his mind, requiring Mr. Taylor to adapt and make changes on the fly. He thought Mr. Taylor handled this well at first, but after a change in location, he noticed Mr. Taylor’s symptoms increasing. The terrain was rough and bumpy, and Mr. Taylor started to feel dizzy while he was shooting from a truck. By lunchtime, Mr. Taylor was fatigued.

[193] Mr. Newman spoke with Mr. Taylor’s co-workers, who said that post-collision Mr. Taylor tired more easily, had to take frequent breaks, had reduced stamina, and his crew now helped to carry his equipment. Mr. Taylor was noticeably different after the collision.

[194] Mr. Newman felt that Mr. Taylor’s insistence on continuing to work was detrimental to both his physical and mental health and was relieved when Mr. Taylor decided to stop working.

[195] Mr. Newman was aggressively challenged in cross-examination on certain of the personal observations he recounted during examination-in-chief, as these were from six years ago, and not recorded in his notes. It was put to him that, pursuant to the professional obligations set out by his governing college, any observations he made were to be included in his records. His failure to do so was in blatant disregard of his duties. Mr. Newman disagreed.

[196] In redirect Mr. Newman confirmed that he was not required to include every single observation he made. It was more important to document treatment goals, which Mr. Newman did do.

Credibility of Treatment Providers

[197] The testimony of the treatment providers remained largely unchallenged on cross-examination. Their evidence was of assistance in painting a picture of Mr Taylor’s life and work challenges following the collision.

Medical Experts

[198] Five medical professionals were called to give expert opinions. With the exception of Dr. Hamilton, their qualifications were recognized on consent. The evidence of the two remaining expert witnesses, Ms. Lipkus and Mr. Principe, will be addressed in the damages section of this decision.

Dr. Joanna Hamilton

[199] Dr. Hamilton is a registered psychologist, with a practice in clinical neuropsychology. She has worked in the field of cognition for over 30 years.

[200] Dr. Hamilton began treating Mr. Taylor in February of 2017, and remained his psychologist at the time of the trial. Because funding had run out, Mr. Taylor was personally paying for his treatment sessions.

[201] In late 2018 Dr. Hamilton was retained by Mr. Taylor’s law firm to conduct a medical legal evaluation of Mr. Taylor. Dr. Hamilton concluded that Mr. Taylor sustained a head injury in the 2015 collision.

[202] Mr. Taylor sought to tender Dr. Hamilton as both a treating practitioner and a medical legal expert.

[203] Mr. Baldwin objected. While he did not object to Dr. Hamilton’s qualifications, he did object to Dr. Hamilton testifying while wearing both hats. In his submission, it was not possible for Dr. Hamilton to assess Mr. Taylor with an open mind in 2018, because by that time she had been paid to treat him over 25 times, and her treatments were premised on the assumption that the collision was the cause of his injuries. A voir dire ensued.

[204] Mr. Baldwin fleshed out his objection more clearly, and submitted she should not be qualified to give expert testimony for the following reasons:

• Dr. Hamilton’s obligation to Mr. Taylor as her patient was in conflict with her duty to the Court to be impartial;

• Dr. Hamilton had pre-judged her opinion; and

• Dr. Hamilton had a financial interest in the outcome.

[205] During an aggressive cross-examination on her qualifications, it was put to Dr. Hamilton that she was in a blatant conflict of her competing duties and financial interests. She disagreed.

[206] Dr. Hamilton was asked whether, if she had concluded Mr. Taylor was not injured as a result of the collision, she would return the money she had earned from treating him. She was also questioned on whether she had a pecuniary interest in finding Mr. Taylor was injured as a result of the collision. I found this line of questioning distasteful, as it appeared designed to turn the jury against Dr. Hamilton.

[207] Despite the tenor of the questions, Dr. Hamilton carefully considered each one, pausing to consider before answering, and making concessions where appropriate. She appeared neutral and objective. In particular, she handled the financial questions with dignity. Her response, that she would have to seriously consider what she would do if she indeed found that Mr. Taylor was not injured in the collision, was credible and believable.

[208] Three times Dr. Hamilton was asked whether she would like to reconsider her ability to provide an impartial opinion as a medical legal expert. Three times the courtroom fell silent. Three times, after pausing to consider the question, Dr. Hamilton remained steadfast in her opinion that she could remain objective and fair.

[209] The reality is there was nothing untoward about Dr. Hamilton appearing in a dual capacity. As Morissette J. held in Doxtater v. Farrish, 2014 ONSC 4224, [2014] O.J. No. 3411 at para. 54:

It must be said that, treating physicians can indeed serve as a very useful source of expert evidence at trial, providing that the basics of admissible expert evidence are met. Dr. Newell’s evidence was certainly relevant and necessary. As to her qualifications, she is a physiatrist who has specialized in brain injury rehabilitation for many years.

[210] I held that Dr. Hamilton was capable and competent of providing both forms of evidence – as a treating practitioner, and as a Rule 53 litigation expert. The basics of admissible expert evidence were met – Dr. Hamilton delivered a Form 53, swearing that her evidence would be fair and impartial.

[211] I saw nothing in her report to suggest Dr. Hamilton was biased. She arrived at her diagnosis and conclusions in a fair and even-handed manner. Her prior treatment of Mr. Taylor did not taint her objectivity as a litigation expert. Nothing in her report hinted at advocacy, and I detected no agenda to uphold her earlier findings. Further, I was not satisfied that by signing Mr. Taylor’s CPP application, Dr. Hamilton had already formed an opinion.

[212] Accordingly, Dr. Hamilton was qualified to give opinion evidence on brain injury, cognitive and behavioural impairment, and psychological impairment.

[213] Dr. Hamilton explained the mechanics of a brain injury to the jury. She described how the brain sits in fluid inside the skull. The fluid acts as a cushion for the brain, protecting it against less forceful kinds of impact. But when significant force is applied, such as a rear-end collision, the brain will move forward and backward inside the skull. It can bump up against inside of the skull, or be pushed back. In rollovers, the brain can even twist around inside the fluid. In essence, when the right amount of force is applied, the brain is physically jostled inside the skull.

[214] Dr. Hamilton described how Mr. Taylor had difficulty managing his anger – he was frustrated by the loss of his identity. His anger stemmed from the changes to his relationships, the lawsuit, his frustration with the legal system, and his inability to do his job. Dr. Hamilton provided cognitive behavioural therapy, and suggested mindfulness approaches. She found him to be earnest in his compliance with her recommendations.

[215] Mr. Taylor continually reported feeling “drunk”, “spinny”, and “off-balance.”

[216] Dr. Hamilton described Mr. Taylor as an under-reporter. He minimized his challenges and had trouble explaining his psychological issues. He did not like to admit there was anything wrong with him.

[217] Dr. Hamilton said that in terms of traumatic brain injury, severities range from mild to very severe (ie: those left in a vegetative state). The degree of severity is determined by looking at (a) loss of consciousness; (b) length of post-traumatic amnesia; and (c) neurological signs. Only one of these three factors is necessary to diagnose a brain injury. Dr. Hamilton testified that “mild” does not connote mild long-term impacts.

[218] The fact that there was no documented loss of consciousness to either the paramedics at the scene or at the Hospital did not raise alarm bells to Dr. Hamilton. In her experience most people are initially unaware they sustained a loss of consciousness.

[219] Mr. Taylor also did not report a period of amnesia on the day of the accident, but in clinical interviews he consistently reported a brief loss of memory, which raised some concern to her.

[220] Dr. Hamilton was firmly of the view that there were signs of an alteration in Mr. Taylor’s mental state immediately following the collision. For example, telling the paramedics that a car coming out of the intersection caused the collision, which is clearly not what happened. This signified confusion in Dr. Hamilton’s view.

[221] The next day at the hospital, Mr. Taylor accurately reported he was injured in a rear-end collision. At the hospital he also described a feeling of being spacey, described a mild headache, and that he was a little sensitive to light.[3]

[222] When Dr. Hamilton put these clues together, the diagnosis that made the most sense was an mTBI. There was an alteration of his mental state at the scene, although not specifically identified as a state of confusion.

[223] When Mr. Ellis’ evidence about Mr. Taylor appearing disoriented and slow to respond was put to Dr. Hamilton, she said that suggested even more strongly that Mr. Taylor was confused at the scene, further raising the level of confidence in her diagnosis.

[224] The bump to Mr. Taylor’s head, documented in the ACR, is also indicative of an injury to his head. If there is an injury to the head, then one has to consider whether there has been a concomitant injury to the brain. In this case, the bump, in conjunction with the dynamics of the collision – a hit from behind, being launched forward and spun counterclockwise, becoming airborne and rolling over before hitting the ground – allowed Dr. Hamilton to safely conclude this was a forceful collision. Dr. Hamilton was quick to add she was not qualified to speak about the physical dynamics of force.

[225] The mild headache Mr. Taylor reported at the emergency room demonstrated that there was something going on with his head and his brain. The fact that he did not report a headache at the scene is likely explained by his description of feeling “full of adrenaline.” Some symptoms unfold later, as Mr. Taylor’s headaches. Light sensitivity is another common symptom after a concussion.

[226] In her view, a clean MRI is also expected – this simply explains that Mr. Taylor did not sustain structural damage to his brain.

Neuropsychological Testing

[227] The goal of administering the neuropsychological testing was to understand how Mr. Taylor’s brain was functioning – his cognitive ability, what came easily to him, where he was experiencing challenges. There are verbal question and answers, paper and pencil questions, and computer questions.

[228] Dr. Hamilton also obtained information from Mr. Taylor’s co-workers. All of them noted that his personality, as well as his ability to work, had changed since the collision. He had difficulty coping with distractions, remembering directions from the DOP, and multi-tasking. They noticed increased fatigue and light sensitivity – Mr. Taylor would often put a dark blanket over him and the camera to keep out the harsh lights from the set. Their information was particularly important to Dr. Hamilton, given Mr. Taylor’s tendency to underreport.

[229] Dr. Hamilton reviewed Mr. Taylor’s clinical notes and records, as well as reports from other medical practitioners who had seen Mr. Taylor. She interviewed Mr. Taylor, and had both he and his wife complete questionnaires, as well.

[230] The neuropsychological assessment itself lasted just over ten hours. However, given Mr. Taylor’s challenges with fatigue, this was split into three days in order to allow Mr. Taylor to perform to the best of his ability. During testing he was cooperative but not talkative. He presented as depressed, and his effect was flat, or void of emotional expression.

[231] Dr. Hamilton described how, when considering whether someone has sustained an mTBI, a neuropsychologist will look at characteristics of injury itself – was there a loss of consciousness, or a period of amnesia, or a period of altered mental state (confusion or disorientation). Afterwards, were there symptoms and neurologic signs (ie: headaches or seizures). She relies on the American Congress of Rehabilitation Medicine’s Diagnostic Criteria, one of the most widely used guidelines for concussion.

[232] These guidelines confirm that symptoms may not be immediately evident on the day of the injury. For example, the injured person may not even be aware they are exhibiting symptoms at the beginning.

[233] To interpret her test results, Dr. Hamilton needed a baseline to which she could compare Mr. Taylor’s current presentation. Historical information she found to be important included the fact that he had a university education, he had no pre-existing mental health issues, he was running his own company, and that he was engaged with his family and socially active before the collision. It was also important to learn he had possibly sustained two concussions playing sports when he was younger, one where he did not immediately get up after being hit.

[234] In addition to the standard neurological testing, Dr. Hamilton conducted tests designed to gauge exaggeration. These validity measures help determine whether someone is malingering. Malingering is something every practitioner must be mindful of. Validity measures are designed to root out those who are magnifying their symptoms – for example, when there could be monetary gain in the face of serious injury. Dr. Hamilton’s testing found that Mr. Taylor was not exaggerating his difficulties. He gave full effort, and she did not consider malingering to be a factor.

[235] Dr. Hamilton also reviewed the results of the other neurological assessments conducted on Mr. Taylor. No assessor – including the two hired by the defendant –suggested that Mr. Taylor was malingering.

[236] The testing showed Mr. Taylor had difficulty with hand-eye coordination, speed of processing, visual processing difficulty, memory challenges, and executive functioning skills (tasks such as starting an activity and following through, decision making, planning, and organizing). Mr. Taylor can learn things, but has difficulty recalling information. He has difficult planning and prioritizing. His visual and spatial awareness was compromised.

Dr. Hamilton’s Conclusions

[237] Dr. Hamilton found that as a result of the collision Mr. Taylor sustained an mTBI and/or a concussion (she uses these terms interchangeably), persistent post-concussive symptoms, and an Adjustment Disorder which at times presented as depression, and at other times as anxiety.

[238] Dr. Hamilton described Mr. Taylor’s diagnoses as “multifactorial”. He was not debilitated solely by his mTBI. There was an overlay of chronic fatigue (a symptom of mTBI), depression, mood swings, dizziness and 3PD. There was no evidence of any of these issues before the collision. In her opinion his presentation stemmed from the collision.

[239] In terms of outcome, Dr. Hamilton described how the vast majority of those who sustain an mTBI go on to recover completely, but there remained a small minority who do not. This minority cohort present with persistent symptoms, including challenges with mood, challenges with sleep, and physical symptoms, all of which impact on attention, concentration, and memory. Mental fatigue is a challenge for those who present with these post-concussive symptoms.

[240] Dr. Hamilton explained that there is an interplay between mTBI and psychological diagnoses. When one sustains a brain injury, their daily life is impacted, which can cause an adjustment disorder to develop. That disorder then feeds into how that person is able to cope, how they process information, even how they sleep.

[241] Dr. Hamilton does not believe Mr. Taylor can return to work in the film industry, or to any other job, for that matter. He will constantly be challenged to maintain a competitive work pace. While he may start the day well-intentioned and energetic, he cannot sustain his output because he fatigues easily. Dr. Hamilton’s prognosis for his eventual return to his previous life and level of function was guarded. In her view, Mr. Taylor will never return to the roles he embodied before the collision.

[242] But not returning to the film industry is problematic for Mr. Taylor, because his identity was so deeply integrated with being a focus puller.

[243] By August of 2020, Dr. Hamilton felt Mr. Taylor was making some headway. He started recognizing his loss, referring to himself as “Paul Taylor 2.0.” But Mr. Taylor is a work in progress. Hard on the heels of acknowledging his new self, by December 2020 Mr. Taylor described how he felt he was letting his family down by not being able to fix himself. By 2022 he was “disgusted with himself.”

[244] Dr. Hamilton believes Mr. Taylor’s impairments are permanent. He is “muddling through life, demoralized, and frustrated.” His mood fluctuations are one of Dr. Hamilton’s main concerns. In her view, this can be managed and improved by further cognitive behavioural therapy. A rehabilitation support worker would also be of assistance, guiding Mr. Taylor to ensure he does the hard work he needs to outside of his counselling sessions, something he cannot do on his own accord.

[245] Mr. Baldwin asked Dr. Hamilton the same question he asked Dr. Staab – whether her diagnosis might be affected if any of the three factors that underpin a suspicion of malingering (medical legal context, inconsistency in reporting, and not following treatment recommendations) were present.

[246] Dr. Hamilton answered in the affirmative. To arrive at a confident diagnosis, a medical practitioner must look at consistency in reporting of symptoms over time. If there are discrepancies, one might question whether a patient is malingering. But in her view, these discrepancies must be significant and “marked.”

[247] She also agreed that non-compliance with prescribed treatment recommendations is something that must be considered when making a diagnosis.

[248] Mr. Baldwin noted that Dr. Hamilton came to treat Mr. Taylor because he was referred to her by his OT, and that Mr. Taylor’s OT was retained by his first personal injury lawyer. Dr. Hamilton agreed, but clarified that the OTs referred Mr. Taylor to her because they were concerned about him. However, thus began the flavour of Mr. Baldwin’s cross-examination – that Mr. Taylor’s true motivation in this lawsuit was financial gain.

[249] Further questioning suggested that Dr. Hamilton simply “assumed” Mr. Taylor’s diagnosis of concussion based on what Mr. Taylor reported about the collision. Dr. Hamilton clarified that her opinion was not based solely on what Mr. Taylor told her; she also relied on the medical information she was provided with at that time, including reports from Drs. Braganza and Tartaglia.

[250] Dr. Hamilton fairly conceded that she was not asked to conduct an independent analysis. The thrust of this line of questioning was that Dr. Hamilton simply accepted Mr. Taylor’s self-reported symptoms to conclude that he sustained a concussion in the collision. This theory became a consistent thread, woven throughout the defendant’s case.

[251] Dr. Hamilton confirmed that had there been information before her to suggest Mr. Taylor did not have a concussion, she would have been prepared to change her opinion. But that information never presented itself.

[252] Referencing his examination for discovery, Mr. Baldwin suggested it was Mr. Taylor’s evidence that he recalled the following specific facts:

• Travelling on Bensfort Road;

• Seeing a car in his rear-view mirror travelling too quickly for his comfort;

• Realizing at the last moment there was going to be a rear-end collision;

• The collision itself;

• Being pushed forward;

• Going into the ditch;

• His car landing on its wheels;

• Looking out his windshield and seeing a person in a white car who was badly injured;

• A man coming and knocking on his car;

• Getting out his car;

• Walking up the embankment;

• Giving a police statement while sitting in the police car; as well as

• Everything before and everything after the collision.

[253] Dr. Hamilton was asked whether she agreed there was nothing in this recounting of Mr. Taylor’s evidence to indicate he sustained amnesia. She agreed but noted that that the presumptions being put to her differed from the description of the collision Mr. Taylor had given, not just to her, but to the many practitioners he had seen over the years.

[254] At this juncture Mr. Baldwin suggested that Dr. Hamilton was trying to make Mr. Taylor’s evidence, and the evidence of every other witness, fit together to support her conclusion that he sustained an mTBI. Dr. Hamilton disagreed.

[255] Dr. Hamilton agreed there was nothing in the above recounting of Mr. Taylor’s evidence to indicate Mr. Taylor sustained a loss of consciousness.

[256] Dr. Hamilton also agreed with Mr. Baldwin’s suggestion that she could not diagnose a concussion if the facts at trial were in accord with this interpretation of the evidence.

[257] Mr. Lehman objected to these propositions being put to Dr. Hamilton as if they were a true recounting of Mr. Taylor’s evidence. In his view they were not. Mr. Lehman said Mr. Baldwin was of course entitled to put propositions before Dr. Hamilton, but these facts should not be dressed-up as Mr. Taylor’s evidence.

[258] Mr. Baldwin explained that he had been careful to couch his questions with “if” and “if the jury finds as fact,” given that the final factual determinations of what occurred rested with the jury. Cross-examination continued.

[259] Mr. Baldwin took Dr. Hamilton to her 2018 report, and put this proposition to her: by 2018, Mr. Taylor was well-versed in the symptoms of concussion, and his reporting in the three years had changed to support a diagnosis of concussion. For example, her report indicated that Mr. Taylor told her he did not recall the impact, he lost consciousness, and had a brief episode of loss of memory. These were clear inconsistencies in reporting over time.

[260] Dr. Hamilton provided a logical explanation as to why each of these propositions did not equate to a marked discrepancy, or even discrepancy simpliciter. For example, when Mr. Taylor said he had a loss of consciousness, he could mean lack of memory. However, Mr. Baldwin persisted, framing the question to get the answer he was looking for. Because Dr. Hamilton took her duty to the court seriously, she had to agree they were discrepancies, despite clearly not believing that to be the case.

[261] She was asked whether Mr. Taylor’s report of hitting his head on the doorframe was a discrepancy. Dr. Hamilton said no, as Mr. Taylor obviously hit his head on something.

[262] She was asked whether Mr. Taylor’s reporting of headaches to doctors was inconsistent. Again, Dr. Hamilton explained why she did not think these were discrepancies in reporting. Mr. Taylor had always reported he had headaches, they just varied in degree. She was asked the same question again, in such a way that she had to agree these were discrepancies. But she would not agree they were marked.

[263] I pause here to note that Mr. Taylor did tell Dr. John, the neurologist he saw on behalf of his accident benefits carrier in August of 2015, that he had severe, debilitating headaches for two weeks following the collision. Mr. Baldwin suggested this was a marked discrepancy, given that debilitating headaches were not reported to any other doctor. However, apart from his hospital attendance the day after the collision, Mr. Taylor did not see a practitioner to whom he could report the headaches during that two-week period. He did not start seeing Dr. Maltman until three weeks post-collision.

[264] Mr. Baldwin then referenced Mr. Taylor’s visit to the Mayo Clinic in 2018, where he reported that he had fluid leaking from his ear for several days following the collision. Dr. Hamilton was asked whether this was marked discrepancy. Given that he had never reported this to her, she agreed it was. Dr. Hamilton also agreed this was a serious symptom that many people would be concerned about.

[265] It was put to Dr. Hamilton that the Mayo Clinic records reference Mr. Taylor experiencing dizziness and vomiting. Dr. Hamilton agreed that Mr. Taylor had never reported vomiting to her, but she had a notation in her records where he had noted vomiting to another practitioner.

[266] Dr. Hamilton was asked point blank whether, based on what Mr. Baldwin characterized as inconsistent reporting in respect of Mr. Taylor’s loss of consciousness, blacking out, severe debilitating headaches, fluid leaking, and vomiting, there was finally evidence of a marked departure in reporting. Dr. Hamilton reluctantly agreed that these were inconsistencies, and that they were marked.

[267] Mr. Baldwin noted this was now strike two. The first strike was that her diagnosis was made in a medical/legal context, the second strike being Mr. Taylor’s discrepancies in reporting.

[268] Mr. Baldwin then turned to the third consideration for malingering in the DSM – failure to follow treatment recommendations. Specifically, the fact that Mr. Taylor told her he took Wellbutrin when he did not. Dr. Hamilton agreed he did not take Wellbutrin. Dr. Hamilton was then asked, given there were now three out of three strikes established, whether she would start to question the confidence of her diagnosis that Mr. Taylor sustained an mTBI. She paused to consider the question, then agreed she might start wondering about it.

[269] At this precise juncture in the trial it occurred to me that Mr. Baldwin might have run afoul of the rule in Browne v. Dunn, [1893] J.C.J. No. 5. To wit, for the second time in the trial the issue of fluid leaking from Mr. Taylor’s ear was posed as an inconsistency in reporting. However, this purported inconsistency was never put to Mr. Taylor in cross-examination. I expressed my concerns to counsel following the afternoon break and asked for submissions on the issue the following day.

[270] The next day, in the absence of the jury, Mr. Lehman brought his motion to strike the jury, based on a breach of the rule in Browne v. Dunne.

[271] The following morning, December 7, 2022, I dismissed the jury.

[272] Dr. Hamilton returned to the stand for redirect. Mr. Lehman asked whether, if the propositions put to her by Mr. Baldwin were different, her concession that there were marked discrepancies would change. Dr. Hamilton agreed it would.

[273] Dr. Hamilton was taken to specific propositions. For example, Mr. Baldwin’s suggestion that Mr. Taylor reported in discovery that he remembered his car landing on its wheels. But his discovery evidence was not that he recalled the car landing on its wheels, he simply stated that the car landed on its wheels. Dr. Hamilton said that Mr. Taylor has learned things that happened the collision, so this example would simply mean he came to know how his car landed, not that he remembered it landing in this manner.

[274] Another example was Mr. Taylor reporting a loss of consciousness to Dr. John, which Mr. Baldwin suggested was inconsistent with what Mr. Taylor told Dr. Cunniffe the day after the collision. Dr. Hamilton explained how this was not an inconsistency in her view. Much depended on how the question was put to Mr. Taylor. Reporting a gap in memory could be Mr. Taylor’s way of saying a loss of consciousness. Lay people do not inherently know the difference between a loss of consciousness and a gap in memory. She did not believe Mr. Taylor attempted to mislead anyone.

[275] Similarly, Dr. Hamilton confirmed there was no inconsistency in Mr. Taylor’s reporting of headaches. There was nothing uncommon about someone leaving the hospital with a mild headache, and that headache becoming much worse later. This is entirely reasonable and not inconsistent. Further, and much for the same reasons I outline above, if Mr. Taylor was experiencing severe headaches for a couple of weeks after the collision, he was not seeing a practitioner during this period he could report the headaches to.

[276] Dr. Hamilton did not stray into the role of advocate for Mr. Taylor. She was thoughtful on cross-examination, did not rush to answer before considering the question that was posed. A prime example of Dr. Hamilton’s balanced approach was when Mr. Baldwin put to her examples of what he said were Mr. Taylor’s inconsistencies in reporting. Although the propositions as framed were different from what she understood Mr. Taylor’s reporting to be, she conceded that if these were indeed true, then the confidence of her diagnosis would be impacted.

Dr. Dale Robinson

[277] Dr. Robinson is a practicing neurologist with wide-ranging experience in brain injury. He was qualified as an expert in neurology, qualified to give opinion evidence within the scope of a neurologist relating to brain injury, diagnosis, prognosis, the nature of Mr. Taylor’s neurological impairments, the cause of Mr. Taylor’s neurological impairments, the impact of Mr. Taylor’s neurological impairments on his ability to earn a livelihood, his enjoyment of his activities of daily living, his ability to care for himself in his home, and his ability to engage in housekeeping and home maintenance.

[278] Dr. Robinson is retained by both plaintiffs and defendants. He estimates that over the last five years he has been retained by plaintiffs about 60% of the time, and by defendants about 40% of the time.

[279] Dr. Robinson assessed Mr. Taylor in October of 2020, over five years post-collision. Mr. Taylor described the collision – he was waiting to turn left when he was struck from behind. Mr. Taylor remembered his car starting to tip, and his next memory was of the car on its wheels in the ditch. He had a bump on his head that was starting to bleed, and he described feeling “out of it”, but also “high on adrenaline” and “like Superman”.

[280] Mr. Taylor got out of his car and walked up the embankment to speak with the driver of the pickup truck he had stopped behind, because Mr. Taylor thought that was the vehicle that had hit him.

[281] Mr. Taylor went to bed early that night, and awoke feeling dazed and confused, with a headache and stiff all over. He was diagnosed with a concussion at the hospital.

[282] In the days following the collision Mr. Taylor reported resting at home with headaches multiple times per day, slurring of words, forgetting words, and difficulty with memory and concentration.

[283] Dr. Robinson concluded that given the mechanism of the collision, the reported transient amnesia, followed by altered sensorium, Mr. Taylor sustained an mTBI in the collision. This has developed into post-concussive syndrome with challenges in three spheres – physical, cognitive, and psycho-emotional.

[284] When he asked Mr. Taylor to list his injuries in terms of most to least problematic, Mr. Taylor put cognitive dysfunction at the top of the list, followed by dizziness and 3PD, knee pain (exacerbation of pre-existing left knee problems, and new right knee pain), altered mood, irregular sleep, and headaches. Mr. Taylor felt he was not the same person he was intellectually, socially, or functionally.

[285] Dr. Robinson found that Mr. Taylor’s impairment substantially interfered with his ability to engage in his previous line of work in the film industry.

[286] Dr. Robinson explained how one does not have to hit their head to sustain an mTBI. In a whiplash scenario, where there is linear and back and forth movement, the brain can spin and turn in the skull, hitting ridges of bones and causing injury. The majority of those who sustain a concussion recover, but between 10-20% never do, going on to develop persistent post-concussive symptoms.

[287] Dr. Robinson described how one can sustain an mTBI without losing consciousness. For example, being dazed, confused, or stunned at the scene. Or having a period of amnesia, or a gap in memory. One can have amnesia or a gap in memory without a loss of consciousness.

[288] While only one of the three indicators – loss of consciousness, confusion, or amnesia – need be present to diagnose an mTBI, Mr. Taylor presented with two of the three. And Dr. Robinson thought it was possible Mr. Taylor may also have sustained a loss of consciousness in the three minutes it took Mr. Ellis to get to his car – there is simply no way of knowing this.

[289] Dr. Robinson concluded that Mr. Taylor sustained a permanent and serious impairment in the collision.

[290] Dr. Robinson was cross-examined on what Mr. Baldwin characterized as Mr. Taylor’s inconsistencies in reporting. For example, five months after the collision he reported to Dr. John that he ‘blacked out’ after the collision, yet he told paramedics at the scene, staff at the hospital, and Dr. Maltman, that he did not sustain a loss of consciousness. This was not a discrepancy to Dr. Robinson. In modern parlance, ‘blacking out’ could simply mean someone was not aware.

[291] Dr. Robinson said he could not speak to Mr. Taylor’s credibility, and if he were purposefully misrepresenting himself that would be troubling. Dr. Robinson readily acknowledged there was some discrepancy in reporting, the fluid leaking out of his ear, for example. However, in Dr. Robinson’s experience symptoms can be variable, and one cannot assume variability is part of a devious plot for financial gain. None of the inconsistencies raised by Mr. Baldwin caused Dr. Robinson any concern, and he remained confident in his diagnosis.

[292] Dr. Robinson said that the common symptoms of a brain injury were loss of consciousness, nausea or vomiting, seeing stars, blacking out, memory gap, confusion. When it was put to him that Mr. Taylor did not report any of these symptoms to paramedics at the scene, Dr. Robinson said it was not uncommon for these symptoms to be missed both at the scene, and at the hospital.

[293] Mr. Baldwin suggested that Dr. Robinson’s mTBI diagnosis could only be based on Mr. Taylor’s self-reporting, as there was no objective evidence of a brain injury. Specifically, all four neurological evaluations had been normal, and no MRI had disclosed injury to Mr. Taylor’s brain. Dr. Robinson disagreed, reminding the court that a diagnostic test is not required to diagnose an mTBI, and normal neurological examinations are common.

[294] In redirect Dr. Robinson confirmed that the bump on Mr. Taylor’s head was an objective symptom of a brain injury, as was the evidence at the scene, including the mechanics of the collision, Mr. Taylor’s altered sensorium, and Mr. Ellis’ description of Mr. Taylor’s confusion and disorientation.

[295] Dr. Robinson confirmed that it was very common for someone who sustained an mTBI to have clear CAT scans and MRIs. When an MRI detects brain damage, the diagnoses moves from uncomplicated brain injury to complicated brain injury.

[296] Dr. Robinson was an excellent witness. He was passionate about concussions and strove to ensure the court understood the nuances in functionality that accompany an mTBI. Rather than evoking advocacy, his enthusiasm showed genuine consideration for the search for truth. His evidence was untainted by cross-examination.

Dr. Douglas Misener

[297] Dr. Misener is the director of the READ Clinic. While the facility is almost exclusively treatment-based, medical legal assessments make up about 10%of Dr. Misener’s practice, split 60% plaintiff and 40% defence.

[298] Dr. Misener was qualified as an expert in psychology, with a specialization in rehabilitation, vocational and clinical psychology, and employability. He treats those who are suffering from injury or disease as it relates to their daily lives, including employability.

[299] Dr. Misener conducted a vocational assessment of Mr. Taylor on May 16 and 23, 2017, during which he considered, inter alia, Mr. Taylor’s post-injury adjustment, his emotional and psychological function, his pain perceptions, and his potential for both retraining and returning to his work in the film industry.

[300] Dr. Misener believes that a work/life balance is extremely important. When the balance is off, it can lead to a decrease in work performance, causing additional strain on the injured person’s personal life. Many injured persons walk a fine line between work, activities of daily living, leisure, and recreation. Pain on a daily basis will wear an individual down both mentally and emotionally. Fatigue is one of the most common complaints people present with after a head injury.

[301] During testing Mr. Taylor had a perfect “response distortion and validity” measure, meaning he gave consistent effort, his presentation was forthright, and he was not being anything less than diligent in his effort and focus in response to the assessment.

[302] Mr. Taylor was unique in that he loved his job. In Dr. Misener’s experience this is a rarity. Dr. Misener explained that when someone finds their employment niche, or their “dream job”, they are incentivized to work, they work hard, and they stay employed for a longer period of time.

[303] Dr. Misener described Mr. Taylor as a “life learner” because he continued to educate himself after university – a very positive trait. But for the collision, Dr. Misener opined that Mr. Taylor would likely have continued on his work path until the normal age of retirement – 65-67 years of age.

[304] However, Mr. Taylor’s ability to perform was compromised following the collision. Visual stimuli exacerbated his dizziness, nausea, and balance. Mr. Taylor felt unsteady on his feet and “spinny.” He made cognitive errors, forgot things, lost equipment, all of which caused him to question his capability. The long drive to and from Peterborough, once second nature, became challenging. For example, Mr. Taylor found it hard to gauge the speed of oncoming traffic. He became hypervigilant when driving, adding another level of distress.

[305] Mr. Taylor also suffered from knee pain – new pain to his right knee, and an exacerbation of his pre-collision left knee pain. This made the physical demands of his job, including the repetitive heavy lifting, difficult to sustain.

[306] Dr. Misener found it significant that Mr. Taylor returned to work for such a long period of time before finally giving up. Continuing to work, perhaps to his detriment, was a boon to Mr. Taylor’s credibility in the doctor’s eyes. In a similar finding to Dr. Hamilton, Dr. Misener said Mr. Taylor presented as someone who was inclined to limit his reports of functionality – he is an underreporter. This is reflected in those who want to normalize their lives and get back to the pre-morbid levels of functionality.

[307] Dr. Misener found that Mr. Taylor sustained a serious, likely permanent impairment of important physical function, within the context of an mTBI, as well as post-concussive syndrome, visual difficulties and problems with dizziness and balance. He is vocationally impaired from returning to his past job and does not possess an abundance of transferrable skills. Even if he were to find another job, given his cognitive inefficiencies he would be prone to making errors, and he would need frequent breaks to manage his fatigue. This would not be sustainable in a real-world workplace scenario.

[308] During cross-examination Dr. Misener confirmed that his findings were based on his assumption that Mr. Taylor sustained a concussion in the subject collision. When asked whether, if presented with inconsistencies, this would detract from the reliability of his conclusions, Dr. Misener gave a qualified yes, as to him that was nuanced question. He would want to know what the inconsistency was, and why it existed, as in his view Mr. Taylor had been consistent throughout his reporting of the collision and its aftermath.

[309] Dr. Misener was taken to the transcript of Mr. Taylor’s examination for discovery, which was held on December 15, 2016, just months before Mr. Taylor stopped working. When asked what age he wanted to work to, Mr. Taylor answered 65. He was then asked whether, “all things being equal”, he would expect to be working until age 65. Mr. Taylor said yes.

[310] Dr. Misener was asked whether Mr. Taylor’s answers were inconsistent with the challenges Mr. Taylor reported to him four months later, particularly given that Mr. Taylor did not mention any impairments or disability at his examination for discovery. Dr. Misener said this was not an inconsistency for two reasons. First, Mr. Taylor was not specifically asked whether he was struggling at work. Second, Mr. Taylor had a great need to present himself as intact. In December 2016 he may still have been hopeful that he could continue working. Dr. Misener was satisfied that Mr. Taylor was telling the truth, as he believed it to be, at his examination for discovery.

[311] Dr. Misener agreed that if 2016 was Mr. Taylor’s highest revenue generating year ever, it would suggest someone who is fully engaged in his employment. Dr. Misener disagreed that this too was inconsistent with Mr. Taylor’s history. Dr. Misener was confident Mr. Taylor’s reporting was reliable, and he had no concerns about the data he collected from him.

[312] Dr. Misener was questioned on a portion of his report that read “[f]orced early retirement occurs in this business because of a lack of energy or physical problems like back backs, bad knees, etc.” When asked whether this was something that Mr. Taylor reported, Dr. Misener said it did not sound like something a patient would say. The more likely source was the report’s co-author, Dr. Sheer, who had experience in the film industry, and was sharing his years of experience.

[313] Dr. Misener identified post-traumatic orthopaedic pain as an impediment to Mr. Taylor’s return to the film industry, as his knee complaints had developed into chronic pain. When cross-examined on this, Dr. Misener clarified that orthopaedic pain was not an isolated line item – Mr. Taylor’s inability to work was a combination of all of Mr. Taylor’s impairments: including dizziness, headaches, mood disorder, lack of sleep, and knee pain, all of which contributed to the diagnosis of chronic pain. During re-direct Dr. Misener clarified that Mr. Taylor’s pre-existing knee problems had not impaired his ability to work before the collision.

[314] The defendant submits Dr. Misener found that Mr. Taylor was disabled from working due to chronic, unremitting, orthopaedic pain, exacerbated by physical activity negatively effecting mood and cognition. Given that Mr. Taylor did not complain of chronic pain at trial, that could only mean that Mr. Taylor’s symptoms and disabilities were caused not by the collision, but by his pre-existing degenerative knee condition.

[315] However, it was clear to me that Dr. Misener never opined that knee pain alone caused Mr. Taylor to leave work. It was a combination of impairments, primarily stemming from the mTBI, that rendered Mr. Taylor unemployable.

[316] Dr. Misener was a forthright and measured witness, and his evidence withstood cross-examination.

Dr. Lawrie Reznek

[317] Dr. Reznek, psychiatrist, was qualified as an expert neuropsychiatrist in the diagnosis and implications of mental and psychological disorders including brain injury. Dr. Reznek was retained to conduct a medical legal assessment of Mr. Taylor, which he carried out on June 4, 2018.

[318] Mr. Taylor described his complaints at the time of the assessment as dizziness, feeling drunk and unsteady, visual problems (loss of depth perception), fatigue, short term memory problems, and mood complaints.

[319] Dr. Reznek confirmed his sworn duty to provide objective non-partisan opinion, with the goal of assisting the court in arriving at a decision.

[320] Dr. Reznek was asked about the development of the various versions of the DSM. He described how every five to ten years the American Psychiatric Association reviews research that has accumulated since the last edition, to determine whether the definitions in the DSM should be refined, narrowed, or broadened. Dr. Reznek expressed concern about following the DMS-5, as its definitions were broadened too greatly, and at times unfairly.

[321] Dr. Reznek explained the criteria necessary to diagnose an mTBI. The first most obvious criteria is a blow to head or sudden deceleration or acceleration. Second is the presence of either a loss of consciousness, or dazed consciousness. Dr. Reznek described “dazed” as being punch-drunk – someone who has been hit on the head a few times but are still on their feet appearing confused and disoriented. The third criteria is the existence of post-traumatic amnesia – losing memory after the blow to the head.

[322] To arrive at his diagnosis, Dr. Reznek looked at a number of criterion. First, he took a history of the collision from Mr. Taylor. What stood out to Dr. Reznek was that nowhere in Mr. Taylor’s account does he describe a loss of consciousness or dazed consciousness; neither does he reference any post-traumatic amnesia. These criterion are critically important when Dr. Reznek is trying to make a diagnosis of a post-concussional disorder.

[323] Dr. Reznek also looks at past medical history. Mr. Taylor told him about his concussion when he was younger, and his prior knee injury. Dr. Reznek also considers social history and work history, and by all appearances Mr. Taylor lived a fairly conventional life up to the collision.

[324] The information contained in the ACR is also important to Dr. Reznek’s diagnosis. ACRs document how traumatized one is by the collision, and record any loss of consciousness or dazed consciousness, or post-traumatic amnesia. In this case the ACR recorded no loss of consciousness but indicated Mr. Taylor sustained a small bump on his head. Mr. Taylor told the attendants he felt fine. The attendants reported Mr. Taylor was not in any obvious distress, he was alert to person, place, and time and, at 15 out of 15, his Glasgow Coma Scale (“GCS”) was normal. In Dr. Reznek’s opinion, there was nothing in the ACR to suggest concussion or mTBI. When asked to clarify, Dr. Reznek said there was no recording of either a loss of consciousness or dazed consciousness, or post-traumatic amnesia.

[325] Dr. Reznek was asked whether the bump on the head might contribute to the diagnosis of mTBI. He said it is a factor, but the other necessary criteria were not present – acceleration or deceleration of the brain, loss of consciousness/dazed consciousness, or post-traumatic amnesia.

[326] Dr. Reznek also considered the emergency room records, where Mr. Taylor complained of feeling spaced out and dazed, confused, with difficulty processing things. To Dr. Reznek, these symptoms do not necessarily equate to being concussed. Mr. Taylor also told the doctor that he did not lose consciousness, and he thought he was concussed. Dr. Reznek concluded that the emergency room doctor was persuaded to make a diagnosis of concussion.

[327] When I questioned what he meant by persuaded, Dr. Reznek said that in the absence of any of the criteria to diagnose a concussion, a concussion should not have been diagnosed. Thus, it was likely that Mr. Taylor persuaded Dr. Cunniffe to diagnose concussion, despite the lack of evidence in the record to warrant that diagnosis.

[328] Dr. Reznek found no evidence that Mr. Taylor suffered from Adjustment Disorder, Generalized Anxiety Disorder, Post-Traumatic Stress Disorder, Pain Disorder, or Cognitive Disorder, all as defined in the DSM-4-TR. The latter four findings were irrelevant given that Mr. Taylor was not claiming he suffered from any of them.

[329] Dr. Reznek concluded that Mr. Taylor did not sustain a serious permanent impairment of an important mental or psychological function as a result of the subject collision. From a psychiatric point of view, Mr. Taylor could return to his work as a camera focus puller, or any other job for which he may suited by reason of education, training or experience, nor is he substantially unable to perform his pre-collision activities.

[330] In cross-examination Dr. Reznek estimated that since 2017, conducting medical legal assessments has comprised 50% of his practice. He is contacted by both plaintiff and defence lawyers, and thinks the split is 85% defence and 15% plaintiff, revised from 75%-25% after being presented with the fact that of the 38 reported cases on in which he testified as an expert, he was retained by defence on 37 of them.

[331] Dr. Reznek had some memory of assessing Mr. Taylor back in 2018. He was struck by a few things – the paucity of psychiatric symptoms, and the fact that Mr. Taylor did well on the validity testing.

[332] Dr. Reznek did not believe it was important to obtain collateral information from those who knew Mr. Taylor before and after the collision, because most of these people have a vested interest in Mr. Taylor’s winning the lawsuit. He preferred to rely on medical practitioners who had conducted assessments on Mr. Taylor, as well as his own assessments, versus relying on, for example, information from a spouse. Dr. Reznek conceded that co-workers would not have a vested interest.

[333] Dr. Reznek agreed there was nothing in his report about how Mr. Taylor was functioning outside of work hours during the two years he worked after the collision, where the evidence showed he had little energy beyond working. Dr. Reznek agreed this would be important information to have in respect of Mr. Taylor’s work/life balance, which is central to employability. He also agreed he did not ask for this information, either from Mr. Taylor or Mr. Baldwin. However, because Mr. Taylor did not meet the diagnostic criteria for Adjustment Disorder, for example, Dr. Reznek did not feel he needed more information.

[334] Dr. Reznek testified that Mr. Taylor specifically told him he was managing to do his job. From this, Dr. Reznek inferred there were no impediments to his returning to work. When asked to take the court to that portion of his report where he noted that Mr. Taylor reported this, Dr. Reznek could not do so.

[335] Dr. Reznek agreed that he concluded Mr. Taylor was not impaired from working without information from those who actually saw Mr. Taylor trying to perform his job – his co-workers, for example.

[336] Dr. Reznek was asked to explain why he used the DSM-4-TR diagnostic criteria, released in 2000, to assess Mr. Taylor instead of the more recent DSM-5 criteria, released in 2013. Dr. Reznek said he was skeptical of the DSM-5, as the decisions that go into the updated versions are more political than research-based. For example, the decision to expand the definition of a major depressive disorder to include bereavement was “psychiatric imperialism.” This was contrary to the evidence he gave in-chief, that the manuals are updated based on accumulated research.

[337] Dr. Reznek’s sworn duty to provide objective and non-partisan evidence to the court was severely compromised. Dr. Reznek’s report ignored information in his possession that was helpful to Mr. Taylor and, by definition, harmful to his client. For example, while Dr. Maltman’s clinical notes and records contain numerous references to Mr. Taylor’s depression and challenges at work, these were neither considered nor included in Dr. Reznek’s report.

[338] Another example is the six diagnostic criteria for adjustment disorder set out in the DSM-4-TR. Dr. Reznek found that Mr. Taylor met only four of these (B, C, E, and F). He did not meet Criterion A: the development of emotional or behavioural symptoms within three months of the disabling event (in this case, the collision). Yet Mr. Taylor’s first OT, Mavis Kusi, clearly documented that Mr. Taylor was exhibiting these affective symptoms in her report dated June 19, 2015, based on assessments conducted on June 3, 2015 and June 10, 2015. This was within the first three months of the collision.

[339] Dr. Reznek had the benefit of Ms. Kusi’s report when he conducted his assessment. However, the only reference he chose to include in his report was Ms. Kusi’s observation that Mr. Taylor was “independent with self-care tasks.” At this point in his cross-examination Dr. Reznek admitted this was crucial information to the diagnosis that he missed. He agreed that Mr. Taylor in fact did meet Criterion A for adjustment disorder.

[340] Dr. Reznek testified that he had an independent recollection of asking Mr. Taylor whether he suffered from any mood or anxiety symptoms in the first three months following the collision, and Mr. Taylor answering yes. Yet, Dr. Reznek purposefully left this relevant information out of his report. When asked why, he explained that the medical documentation is a more reliable indicator as to when symptoms began, as people will use a “retrospectiscope” (hindsight bias) and calibrate the onset of their symptoms to a time that is more favourable to them. If Dr. Reznek’s testing did not disclose any malingering or symptom magnification on Mr. Taylor’s behalf, Mr. Taylor’s subjective information as to when his symptoms began should have been considered.

[341] Likewise, Dr. Reznek found that Mr. Taylor did not meet Criterion D for Adjustment Disorder: that the symptoms in Criterion B[4] and Criterion C[5] have their onset following head trauma. Once again, documented medical information pointed to Mr. Taylor meeting this criterion was excluded from Dr. Reznek’s report.

[342] Dr. Reznek concluded Mr. Taylor did not sustain an mTBI. Although he hit his head, he did not sustain a loss of consciousness, he did not have post-traumatic amnesia, there no depression of his GCS, and there was no evidence of brain damage on any MRI. Dr. Reznek’s finding is flawed in two respects. First, a depressed GCS is not one of the four recognized factors that are considered when diagnosing an mTBI. Further, Dr. Reznek could not adequately explain why he left out Mr. Taylor’s symptoms of disorientation or confusion at the scene, which is one of the four recognized factors for diagnosing an mTBI.

[343] Mr. Reznek was clearly an advocate for his client. Despite being retained for the sole purpose of opining on the psychiatric consequences of the collision, Dr. Reznek took it upon himself to also provide his opinion on the outcomes of mTBI. In his view, even if Mr. Taylor did sustain an mTBI, the literature suggests there should be no lasting cognitive sequalae, as the majority of those who sustain an mTBI go on to recover within three to twelve months. The literature he referenced is a 2004 report authored by Linda Carroll et al. entitled “Prognosis for Mild Traumatic Brain Injury – Results of the WHO Collaborating Centre Task Force on Mild Traumatic Brain Injury.” Dr. Reznek went on to state, twice, that the only reliable factor as to why the minority do not recover is their involvement in litigation.

[344] When it was put to him that the medical profession had come a long way in respect of assessing and treating concussions since 2004, the year of the Carroll report, Dr. Reznek said that in his opinion the medical profession had gone backwards in respect of concussions, certainly in Canada.

[345] Dr. Reznek does not agree with the modern diagnostic criteria for mTBI as set out in the DSM-5, being an injury to the brain (either a blow to the head, or other rapid movement/displacement of brain), along with one or more of the following four symptoms: loss of consciousness, posttraumatic amnesia, disorientation/confusion, or neurological signs. He testified that the definition is misleading, incorrect, and inaccurate. One needs to sustain two or more of the four symptoms, and one of two must be post-traumatic amnesia.

[346] The arrogance with which this opinion was communicated smacked of the very partisanship Dr. Reznek had earlier descried and showed a deep-seated bias that perhaps Dr. Reznek is not even aware of. It is certainly open counsel to retain an expert with views that run contrary to generally accepted standards of medical practice. But this is done at their clients’ peril. In this case, Dr. Reznek’s opinion in no way assisted the court.

Dr. Diana Jovanovski

[347] Dr. Jovanovski is a neuropsychologist who saw Mr. Taylor in 2021. She was qualified as an expert in psychology and neuropsychology. Dr. Jovanovski estimated that in the past three to four years, about 90% of her referrals have been from insurers and defence law firms.

[348] Dr. Jovanovski conducted a clinical interview with Mr. Taylor which lasted for about an hour. During this interview she obtained, inter alia, details about the collision, the treatment Mr. Taylor received both in the immediate aftermath of the collision, and afterward, his personal, education, and work histories, and his present complaints. She also met with Ms. Young, but preferred the objective data over Ms. Young’s subjective reporting, as in her view spouses and friends have a financial interest in the outcome.

[349] During the clinical interview Mr. Taylor reported that for three days after the collision, he woke up in the morning with fluid leaking out of his ears and a wet pillow, which he thought was caused by his car rolling in the stream. Mr. Taylor reported that his biggest challenges were dizziness, feeling drunk, and impaired short-term memory.

[350] Over the course of his neuropsychological assessment, Mr. Taylor underwent a number of tests. Some were purely cognitive, and some were designed to see if he was performing to his true capacity. He passed three performance validity measures but obtained mixed results on a fourth. In light of this, Dr. Jovanovski was of the view that Mr. Taylor’s test results might not reflect his actual cognitive functioning and may indeed underestimate his abilities in certain domains.

[351] Testing revealed no evidence of post-collision decline in Mr. Taylor’s intellectual functioning. His neurocognitive profile revealed largely normal functioning across the domains evaluated, with scores ranging from Average to Superior. In respect of physical impairment, on the affective scales Mr. Taylor reported “low” levels of depression and “very low” levels of anxiety.

[352] His test scores were consistent with expectations of the normal population. The testing did not find that Mr. Taylor’s self-reported challenges with memory, attention, processing speed were borne out. Nor did the testing support his self-reported difficulty with low mood, depression, irritability, or anger.

[353] Dr. Jovanovski testified that any cognitive weaknesses uncovered in her assessments were not attributable to the collision. She explained that after an mTBI, cognition is expected to improve or stabilize. Mr. Taylor’s cognition declined and fluctuated over time, based on the results of previous neurological testing. If Mr. Taylor’s short-term memory problems and executive functioning had indeed worsened, as he reported to one neurologist in 2018, then that decline would be caused by secondary factors such as physical or emotional issues.

[354] Based on the details of the collision provided by Mr. Taylor, and the documentation contained in the ACR, Dr. Jovanovski found “no objective evidence that a traumatic brain injury was sustained, given the absence of documentation from medical professionals at the time of the accident that would be considered consistent with a traumatic brain injury (e.g., noted loss or alteration of consciousness, period of post-traumatic amnesia or depressed GCS scores, or presence of acute intercranial injury on neuroimaging).”

[355] Dr. Jovanovski was asked about Mr. Taylor’s report of an adrenaline rush after the collision. In her view, adrenaline is inconsistent with a concussion.

[356] Dr. Jovanovski did concede, based on Mr. Taylor’s reporting to her and other medical professionals that (a) he may have briefly lost consciousness and (b) there might be some brief gaps in his recollection of post-collision events, that there was a slight possibility Mr. Taylor sustained, “at worst, an uncomplicated mild traumatic brain injury (mild concussion) in the subject accident.”

[357] Dr. Jovanovski then went on to state that, based on cumulative research, neuropsychological test scores should be similar to normal controls within three months of a mild brain injury. There is a minority cohort of people who sustain an mTBI who experience prolonged cognitive difficulties, or post-concussive syndrome. These symptoms include headaches, dizziness, vertigo, nausea, fatigue, and poor concentration. However, in her view these symptoms are non-specific, and can be present even in the absence of a brain injury. She suggested that these symptoms generally related to psychological variables or involvement in litigation.

[358] Dr. Jovanovski concluded that there was no valid, objective evidence of a neurocognitive disorder or impairment. If Mr. Taylor was experiencing cognitive difficulties, these were due to secondary, non-organic factors such as reported visual and vestibular issues, emotional issues, sleep issues, and low energy/fatigue. Accordingly, Mr. Taylor did not sustain a permanent, serious impairment in the collision.

[359] During cross-examination Dr. Jovanovski agreed that the diagnostic criteria for a brain injury was an impact to the head, or rapid movement within the skull, with one or more of a loss of consciousness, post-traumatic amnesia, confusion, or neurological signs. She also agreed that there was evidence of a head strike, so the first criteria was met.

[360] Mr. Lehman then took Dr. Jovanovski to Mr. Ellis’ evidence: he knocked on Mr. Taylor’s car window and got no response, he opened his car door and Mr. Taylor did not acknowledge him right away, and Mr. Taylor appeared disoriented. When asked whether this could be evidence of confusion, Dr. Jovanovski did not agree; variously suggesting that Mr. Taylor could not see or hear Mr. Ellis.

[361] When pressed, Dr. Jovanovski said Mr. Ellis’ evidence was subjective, and he was not professionally trained to assess confusion or disorientation. She thought his evidence appeared to be hearsay. She said that if Mr. Taylor was disoriented or confused, he may just have been in shock, which does not qualify as disorientation or confusion. It took a mountain of effort on Mr. Lehman’s behalf before Dr. Jovanovski conceded that Mr. Ellis’ evidence could equate to confusion or disorientation. To be fair, Dr. Jovanovski did testify that a concussion could not be ruled out based on Mr. Ellis’ description.

[362] Dr. Jovanovski was asked whether Mr. Taylor’s inaccurate description to the paramedics of how the collision happened – reporting that someone came out from an intersection and hit him, when there was no question Mr. Taylor was rear-ended – was consistent with confusion. Dr. Jovanovski did not see this as an inaccurate description of the collision, as in her view the two descriptions did not conflict.

[363] When asked whether Mr. Taylor considering walking the 15 kms home after the collision, with soaking feet, was evidence of confusion, Dr. Jovanovski again said no. It appeared that Mr. Taylor felt fine, he was alert and oriented, with a GSC of 15 out of 15. To Dr. Jovanovski, walking 15 kms, if he was healthy and fit and had no other option, would not be irrational.

[364] Mr. Lehman then took Dr. Jovanovski to her report, in which she noted Mr. Taylor’s reported gap in memory between his car rolling and the man banging on his car. She was asked whether, if Mr. Ellis’ estimate that it took him three minutes to get to Mr. Taylor was accurate, the gap in memory would be indicative of post-traumatic amnesia. Despite repeated questioning, Dr. Jovanovski would not agree. She insisted Mr. Ellis’ information was subjective, and inconsistent with what Mr. Taylor reported to the paramedics. In her view, the information provided by Mr. Taylor to the paramedics at the scene was the most accurate evidence. If Mr. Taylor did not remember anything during those three minutes, it did not necessarily mean he had amnesia – it could simply be that nothing eventful happened during that time.

[365] Dr. Jovanovski found it difficult to answer a question without qualifying it. For example, Mr. Lehman went through a list of doctors, asking Dr. Jovanovski to confirm with a yes or no whether they had diagnosed Mr. Taylor with concussion. When it came to Dr. Krete, instead of answering yes or no, Dr. Jovanovski reminded Mr. Lehman that Dr. Krete said he did not think concussion was the sole cause of Mr. Taylor’s complaints. When asked again to simply answer whether Dr. Krete diagnosed a concussion, Dr. Jovanovski agreed that Dr. Krete “referenced” concussion, but noted he was not convinced concussion was the sole cause of Mr. Taylor’s memory issues.

[366] Even simple questions were difficult for Dr. Jovanovski to answer. When asked to confirm that her report she opined a minority of people who sustain an mTBI do not recover, Dr. Jovanovski did not answer with a yes or no. Instead, she launched into a diatribe about how those who continue to experience “so called” post-concussive syndrome[6] well beyond the expected recovery period are not experiencing these symptoms in relation to a brain injury. Instead, there were psychosocial factors at play, such as pre-existing medical conditions, psychiatric issues, or negative injury perception. However, in her professional opinion, the single most stable predictor as to whether someone will continue to experience post-concussive symptoms beyond the expected recovery period is their involvement in compensation-related litigation.

[367] Dr. Jovanovski agreed she would defer to Dr. Staab’s diagnosis of 3PD given his expertise. She immediately qualified even this answer, questioning Dr. Staab’s diagnosis in light of what she said was Mr. Taylor’s inconsistent reporting. For example, her review of Mr. Taylor’s clinical records showed that Mr. Taylor did not complain of dizziness until at least a month after the collision. When Mr. Lehman pointed out that Mr. Taylor reported dizziness at his first appointment with Dr. Maltman, Dr. Jovanovski had to walk back from her answer.

[368] Without prompting Dr. Jovanovski then added that Mr. Taylor also did not complain about visual issues until well after the collision, and that was also an inconsistency. When Mr. Lehman reminded her that Mr. Taylor reported photophobia to the emergency room doctor, Dr. Jovanovski said that visual issues and photophobia were not the same.

[369] Dr. Jovanovski’s conclusion that Mr. Taylor did not sustain any neurocognitive deficit was made in a vacuum, based only on her clinical findings. She did not seek out information on Mr. Taylor’s pre- and post-morbid performance at work, reiterating that anyone who knew or worked with Mr. Taylor would be biased in his favour.

[370] However, in order to understand Mr. Taylor’s post-morbid function, it was imperative that Dr. Jovanovski understood the specifics of what being a focus puller entailed. This is particularly so given that Mr. Taylor was high functioning before the collision. His test scores, despite some being in the low average (9th percentile), might still represent a significant change in Mr. Taylor’s function. Dr. Jovanovski chose to overlook this important area of consideration, maintaining that her clinical observations were all she was required to consider. In her opinion, someone can only be cognitively impaired if they are testing in the first or second percentile, and Mr. Taylor had no scores in this range.

[371] Dr. Jovanovski recorded average and low average scores, as did Dr. Hamilton, in attention and processing speed, but she concluded that Mr. Taylor was not cognitively impaired.

[372] Dr. Jovanovski was the wrong kind of expert. She was recalcitrant. She refused to fairly acknowledge even obvious propositions that did not fit her view of the case. Virtually every answer was accompanied by an explanation or qualification. As Stinson J. held in Conn (Litigation Guardian of) v. Darcel, 2013 ONSC 5080, [2013] O.J. No. 3588, at para. 120, an expert who “often offered additional information that was not sought by the questioner, but was (in his view) supportive of [his client’s] case … assumed the role of advocate.”

[373] Where there is a difference in the opinions between Dr. Hamilton and Dr. Jovanovski, I prefer and accept the evidence of Dr. Hamilton. As his treatment provider, Dr. Hamilton had a depth of insight into Mr. Taylor’s challenges that Dr. Jovanovski could not have plumbed in her one-hour clinical interview. Further, and more importantly, Dr. Jovanovski very clearly crossed the line into the role of advocate for the defence.

ASSESSMENT AND FINDINGS

Credibility and Reliability – Mr. Taylor

[374] In making my findings, I must assess the credibility of Mr. Taylor.

[375] The majority of Mr. Taylor’s injuries are not capable of objective determination. That is to be expected in brain injury cases. His treating practitioners, and the experts, all rely upon Mr. Taylor’s reports of his symptoms. Mr. Taylor’s reliability, particularly concerning the nature and extent of his injuries and their effect on his ability to function, is critical to his claim.

[376] I accept Mr. Taylor’s evidence about their timing, severity, and persistence of his injuries.

[377] I do not accept that the inconsistencies as defined by the defendant taint Mr. Taylor’s credibility or reliability. Mr. Taylor testified candidly to his cognitive challenges, symptoms he maintains persist to this day. It was clear during his testimony that he struggled with the rigours of a trial. He often had to ask for a question to be repeated. At times, after he began to answer, he lost his train of thought.

[378] During cross-examination Mr. Taylor was at times defiant and resigned. He exploded in anger at one point, slamming his fist on the stand in frustration. Court recessed to allow Mr. Taylor time to regain his composure. He apologized for his outburst once back on the stand.

[379] I find Mr. Taylor’s testimony was forthright, in both direct and cross-examination. He did not overstate or embellish his evidence. His presentation was indeed flat. In my view he presented himself with sincerity. While there were inconsistencies in his evidence, I find they were minor in nature. Take, for example, the Wellbutrin prescription. Mr. Taylor testified that he was initially prescribed Wellbutrin in 2017 to help quell his dizziness, but it did not make a difference. After cycling through a variety of other drugs he settled on Sertraline, which helped to alleviate his symptoms.

[380] In 2020 he was again prescribed Wellbutrin. He filled the prescription but decided against taking it given its previous lack of effectiveness. This explanation satisfied me that Mr. Taylor was not pulling the wool over anyone’s eyes in respect of his compliance with treatment recommendations. Mr. Taylor may very well have told Dr. Hamilton he was taking Wellbutrin. But this one transgression does not move the needle in terms of reducing Mr. Taylor’s credibility.

[381] The fluid leaking from the ear – the “Perry Mason” moment as coined by Mr. Lehman – was also not an inconsistency. The defendant’s theory, that leaking fluid is a symptom Mr. Taylor appropriated from his online research, in the hopes of securing a 3PD diagnosis from Dr. Staab, is not borne out. First, Mr. Taylor had already been diagnosed with 3PD by Dr. Gerretson in 2017. Dr. Gerretson’s treatment recommendations, while followed, were not effective. Hence, Mr. Taylor’s visit to the Mayo Clinic. Second, if the fluid leak was just to secure a diagnosis, why tell Dr. Jovanovski? She was hired by the defendant to assess him, not treat him, and there would be no diagnosis forthcoming.

[382] I concede it is puzzling that, given the panoply of practitioners Mr. Taylor saw over the years, he only reported this symptom to two of them. This was clearly a symptom that did not cause Mr. Taylor any particular concern. Recall, he is an underreporter. And both Dr. Robinson and Dr. Staab said there were any number of reasons why someone might not report a symptom. Nothing turns on his scant reporting of this symptom.

[383] The collision occurred over seven years ago. Since then, Mr. Taylor has struggled with multiple symptoms arising from his injuries, including those arising from his mTBI. He is foggy. He is cognitively impaired. In my opinion, there were no major inconsistencies, and the minor inconsistencies are understandable. When viewed through the lens of the evidence as a whole, they are not material. I find Mr. Taylor to be a credible and reliable witness. I am not surprised that on an index of response distortion and faking administered by Dr. Misener, Mr. Taylor garnered a perfectly valid protocol.

[384] Mr. Taylor’s evidence was corroborated by the evidence of the lay witnesses. They all gave clear and corroborating evidence that prior to the collision Mr. Taylor lived a full, productive, and useful life. Mr. Taylor’s very identity was closely linked to his chosen career – he found fulfillment as “Paul Taylor, the Film Guy.”

Liability

[385] Liability was not seriously contested. There is no dispute that Mr. Taylor was rear-ended by Ms. Zents as he was stopped on Bensfort Road, there to be seen if Ms. Zents had been paying attention. I am satisfied that Ms. Zents is 100% liable for the collision.

Causation

[386] Mr. Taylor is required to establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to his injuries.

[387] The test for causation is the “but for” test articulated by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32, [2012] S.C.J. No. 32, at para. 8, as:

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.

[388] With the exception of Dr. Reznek, there was consensus amongst the experts on the diagnostic criteria for mTBI. Drs. Hamilton, Robinson and Jovanovski accepted the following definition as established in the DSM-5:

An impact to the head or other mechanisms of rapid movement or displacement of the brain within the skull, with one or more of the following:

• loss of consciousness;

• posttraumatic amnesia;

• disorientation/confusion; or

• neurological signs

[389] The following doctors diagnosed Mr. Taylor with concussion: Dr. Cunniffe (emergency room doctor), Dr. Maltman (family doctor), Dr. Krete (physiatrist specializing in brain injury), Dr. John (neurologist), Dr. Braganza (psychologist) Dr. Tyndel (neurologist), and Dr. Tartaglia (neurologist).

[390] Mr. Taylor was rear-ended by a car travelling 80 km per hour that took no evasive measures. The collision was violent and exposed Mr. Taylor’s brain to injury:

• The impact propelled his car 100 feet forward, spinning counter clockwise until it fell into a gulley;

• As the car headed downward into the gully it became airborne and came down hard on its roof;

• The car rolled once and possibly twice; and

• The car’s roof was crushed in.

[391] Given the violent nature of the collision, I have no hesitation in finding that the first part of the diagnostic criteria for mTBI is met. Not only did Mr. Taylor strike his head, but his brain was also exposed to being displaced within his skull.

[392] Mr. Ellis, the only person to witness Mr. Taylor’s presentation immediately after the collision, testified that Mr. Taylor was disoriented and confused within three minutes of the collision. Dr. Hamilton, Dr. Robinson, and Dr. Reznek all agreed that Mr. Ellis’ depiction of Mr. Taylor was descriptive of confusion and disorientation. Dr. Jovanovski did as well, albeit begrudgingly. I have no hesitation in finding that Mr. Taylor exhibited confusion and disorientation in the immediate aftermath of the collision.

[393] Additionally, I find that the gap in Mr. Taylor’s memory, from the time his car started down the gully, to when Mr. Ellis got to his car, is evidence of post-traumatic amnesia. Dr. Robinson, Dr. Hamilton, Dr. Reznek and Dr. Jovanovski all agreed that the memory gap constitutes amnesia sufficient to make an mTBI diagnosis.

[394] Accordingly, there is overwhelming evidence in this case that Mr. Taylor suffered an mTBI as a direct result of the collision: there was an impact to his head, his brain was subjected to rapid movement or displacement inside his skull, and he experienced both confusion at the scene and post-traumatic amnesia.

[395] Drs. Hamilton, Robinson, Reznek and Jovanovski testified that a small minority of those who sustain an mTBI go on to have long-standing impairments. While not everyone agreed with the appropriate terminology, the most commonly used phrase is post-concussion syndrome. Mr. Taylor has been diagnosed with post-concussion syndrome by, inter alia, Dr. Maltman, Dr. Hamilton, Dr. Tartaglia, and Dr. Snaiderman. I find that Mr. Taylor’s ongoing impairments have developed into post-concussion syndrome.

[396] Mr. Taylor also sustained an exacerbation of his pre-existing left knee injury in the collision, and a new injury to his right knee. However, these injuries on their own did not disable Mr. Taylor from continuing to work, they were simply another aggravating factor, compounding Mr. Taylor’s post-concussion syndrome, visual difficulties, and dizziness/balance challenges.

[397] In considering all of the evidence, Mr. Taylor has affirmatively proven, on a balance of probabilities, that the collision March 17, 2015, caused the lasting injuries Mr. Taylor suffers from.

[398] Mr. Taylor has also satisfied me that he is unemployable. I agree with Dr. Misener and Dr. Hamilton that Mr. Taylor will not succeed in the real world. Operating in the film industry is an “all or nothing” proposition. Focus pulling is not an occupation that can be modified to accommodate Mr. Taylor’s impairments, nor can it be done part-time.

Threshold

[399] In light of the tenor of my reasons thus far, I need not spend a significant amount of time on the threshold issue. Drs. Hamilton, Maltman and Misener have all opined that Mr. Taylor’s impairments are permanent and serious. I agree. Mr. Taylor’s impairments have been continuous since the collision and are predicted to last into the indefinite future.

[400] The combination of his impairments have impacted all facets of Mr. Taylor’s life. He has been frustrated in his chosen career path. It is not hyperbole to suggest he has been cut down in his prime. Having worked in his chosen field his entire adult life, Mr. Taylor was at the pinnacle of his career. “Paul Taylor, the Film Guy” is now “Paul Taylor 2.0”. Not the version of himself he had cultivated through years of hard work, professionalism, and dedication.

[401] The changes in Mr. Taylor’s physical and emotional condition since the collision are significant. Before the collision he had no health concerns, his physical ability was unrestricted, and he had no psychological issues. Now, he suffers from a constellation of symptoms attributable to post-concussion syndrome, including adjustment disorder, brain fog, chronic pain, cognitive difficulties, memory loss, and dizziness.

[402] Mr. Taylor’s injuries have caused significant impairments to his marital life and familial relationships. Most importantly to Mr. Taylor, he is no longer an equal partner in his marriage. He now needs to be cared for and watched out over. Difficult to accept for man who lived life to the fullest before the collision.

DAMAGES

General Damages

[403] Mr. Taylor seeks between $220,000 and $250,000 for pain and suffering and loss of enjoyment of life. In support of his claim, Mr. Taylor provides the following cases as suitable comparators.

[404] In a decision very much on all fours with the case at bar, the plaintiff in Young v. Anderson, 2008 BCSC 1306, [2008] B.C.J. No. 1847, worked in the film industry, and sustained an mTBI in a collision. He suffered from personality changes, cognitive defects, chronic pain, headaches, dizziness, vestibular issues, insomnia. Mr. Young had become socially withdrawn and was found to be unemployable in his chosen career. In 2008 Mr. Young was awarded $200,000, or $268,647 in 2023 dollars.

[405] In Graul v. Kansal, 2022 ONSC 1958, [2022] O.J. No. 1709, the plaintiff sustained an mTBI, which affected his hearing, his sight and his balance. Inter alia, he suffered from post-concussion syndrome, difficulty multi-tasking, impaired concentration, sleep difficulties and confusion. Mr. Graul was rendered unemployable after the collision. Mr. Graul was awarded $225,000.

[406] In Rolley v. MacDonell, 2018 ONSC 6517, [2018] O.J. No. 5734, the plaintiff sustained an mTBI and suffered from adjustment disorder, recurrence of major depression, post-traumatic vision syndrome, somatic symptom disorder and post-traumatic headaches. He was awarded $190,000.

[407] The defendant submits that Mr. Taylor’s subjective reporting is so strained beyond credible relief that any discussion about damages is moot. Thus I am left without any suitable comparator decisions from the defence perspective.

[408] In Graul, at para. 557, Lemon, J. reviewed the applicable principles in assessing general damages:

The principles related to fixing personal injury damages are well known. I am to assess an amount to restore Mr. Graul to the position he would have enjoyed but for the accident, to the extent that money can do so. No such amount can be perfect compensation but must be reasonable and fair to both parties. The award must be consistent with other decisions involving similar injuries. It cannot be based on sympathy for the plaintiff nor retribution to the defendants. There can be no dispute that such an award will have to be arbitrary and be decided on the circumstances of each individual, both in terms of physical and psychological suffering: Andrews v. Grand and Toy Alberta Ltd., 1978 1 (SCC), [1978] 2 S.C.R. 229, at p. 261.

[409] Having regard to the evidence and the authorities advanced by Mr. Taylor, I find that an appropriate award of general damages is $250,000.

Loss of Earning Capacity

[410] Mr. Taylor retained Gary Principe, accountant, to provide an opinion on his income loss to November 21, 2022, after the deduction of collateral benefits; the present value of the future loss of income/earning capacity of Mr. Taylor; and the present value of the future cost of care needs as outlined by Ms. Ellen Lipkus.

[411] Mr. Principe was qualified to give opinion evidence on the quantification of Mr. Taylor’s economic damages.

[412] As outlined above, while Mr. Taylor returned to work after the collision, he took every job he was offered. However, he was ultimately forced to leave given his increasing inability to meet the demands of his fast-paced job. He does not have the transferrable skills necessary to integrate into any other form of remunerative employment. I find that but for the collision, Mr. Taylor would have continued to work until retirement.

[413] Mr. Taylor was 47 years old at the time of the collision, earning an average annual income of $55,689. In 2021, the average retirement age for all males was 64.9 years; the average retirement age for self-employed males was 68.5. Accordingly, Mr. Principe provided two scenarios to outline the income Mr. Taylor could have expected to earn but for the collision. Scenario One assumes retirement age at 68, Scenario Two assumes retirement at age 65. Both scenarios were adjusted to reflect 70% of loss of income to November 21, 2022.

[414] Mr. Taylor seeks recovery under Scenario Two, the lower of the two. According to Mr. Principe, Mr. Taylor’s past income loss would be $185,000. This must then be reduced by $130,000 to reflect Mr. Taylor’s settlement of his past and future income replacement benefit through his accident benefits carrier. Thus, Mr. Taylor’s past income loss is $55,000.

[415] Mr. Principe testified that adjusting for inflation, Mr. Taylor would be earning $64,046 annually. Using a present value factor of 9.5180, the present value of Mr. Taylor’s future income loss is $609,590.

[416] Mr. Principe helpfully provided a template to calculate Mr. Taylor’s future income losses if I were to determine he was capable of returning to the workforce in some capacity. I do not foresee this coming to pass, as the evidence strongly suggests Mr. Taylor is incapable of any competitive employment in a real-world scenario.

[417] Mr. Principe’s assumptions and calculations were not impacted by cross-examination.

[418] While I believe that the evidence supports recovery under Scenario One, I award Mr. Taylor his income losses as requested, being $55,000 for past income loss and $609,590 for future income loss.

Future Cost of Care

[419] Long before the trial, Mr. Taylor had used up the entirety of his $50,000 allotment for medical and rehabilitation benefits through his accident benefits insurer. Since then, he has continued to pay for his treatment sessions with Dr. Hamilton (which occur less frequently than required given his financial constraints). He also funded the cost of the three-day assessment at the Mayo Clinic, which totalled $13,473.60 USD.

[420] Ms. Ellen Lipkus, an experienced OT and future care planner, was retained to assess the future care needs Mr. Taylor will require as a result of the injuries he sustained in the collision. Ms. Lipkus was qualified as an expert capable of giving opinion evidence with respect to Mr. Taylor’s future care needs.

[421] Ms. Lipkus conducted a thorough assessment of Mr. Taylor, and consulted with both Dr. Maltman and Dr. Hamilton. Her report was refreshing in the realm of future cost of care reports, and she did not overstate Mr. Taylor’s needs. If anything, I find Ms. Lipkus was overly conservative. Despite a pointed cross-examination her evidence withstood scrutiny, with concessions made where appropriate.

[422] Ms. Lipkus provided a Table of Costs containing her recommendations, and Mr. Principe calculated the present value of Mr. Taylor’s future cost of care needs.

[423] I will not do an in-depth analysis of each line item recommended by Ms. Lipkus. Suffice it to say, I find her recommendations are valid and reasonable and will assist Mr. Taylor in leading a more meaningful and productive life. They are designed to allow Mr. Taylor to cope with life on a daily basis, in a manner that will be more disciplined rather than the haphazard approach he appears to have adopted. The recommendations will also remove some of the burden Ms. Young has been carrying.

[424] The recommendations include case management (given the multidisciplinary approach she advocates for, a case manager is integral to ensure a coordinated approach to care), a replacement CPAP machine, psychological and family counselling (self explanatory), physical activation (important to help motivate Mr. Taylor), occupational therapy (to integrate Mr. Taylor into the community as opposed to returning to work), rehabilitation support worker (to implement the strategies recommended by the OT), and handyman services (to compensate for Mr. Taylor’s balance issues – for example, he is unsafe on ladders). Notably absent is a recommendation for housekeeping services, as Ms. Lipkus is of the view Mr. Taylor is able to carry out these tasks and should be encouraged to continue. This consideration elevates Ms. Lipkus’ credibility exponentially.

[425] The future care recommendations total $105,688, and I award Mr. Taylor this full amount.

Family Law Act Claim

[426] Pursuant to s. 61(2)(d) of the Family Law Act, R.S.O. 1990, c. F.3, Ms. Young seeks damages for the loss of care, companionship, and guidance she previously enjoyed with Mr. Taylor. If this award is less than $75,000, then the statutory deductible of $22,183.63 will apply.

[427] In Rolley, the plaintiff’s wife also lost the husband she knew to his cognitive impairments and his increased levels of frustration. Like Mr Taylor, Mr. Rolley was no longer the husband he used to be. Ms. Rolley was awarded $65,000 in 2018, or $74,548.84 inflation adjusted to 2022.

[428] An appropriate award for loss of care, guidance, and companionship was recently considered by Mitchell, J. in Morris v. Prince, 2023 ONSC 3922, [2023] O.J. No. 3070. There, the plaintiff sustained a brain injury that negatively affected the manner in which he interacted with his spouse. Mitchell, J. considered that the couple were still able to enjoy one another’s company on a day-to-day basis, and they remained in a loving, caring, and committed relationship at the time of the trial, when assessing the spouse’s damages at $70,000.

[429] Mr. Taylor and Ms. Young reconnected after their respective first marriages had ended. Their union represented a second chance at happiness for each of them, which they enjoyed for fifteen years. But Ms. Zents’ inattentiveness on March 15, 2017, has rocked their solid foundation, creating a future much different than the one they envisioned. While they remain committed to one another, their relationship is less joy-filled and more duty-filled.

[430] I am satisfied that in all the circumstances, Ms. Young is entitled to an award of $75,000.

CONCLUSION

[431] Mr. Taylor is entitled to the following damages;

(a) $250,000 for pain and suffering;

(b) $55,000 for past loss of income;

(c) $609,590 for future loss of income and earning capacity;

(d) $105,688 for future cost of care, less what remains of the accident benefits settlement for treatment;

(e) $13,473.60 USD for special damages for the cost of the Mayo Clinic;

(f) $75,000 to Karen Young for the loss of care, guidance, and companionship; and

(g) Applicable pre-judgment interest.

COSTS

[432] If the parties cannot agree on costs, the parties shall contact the trial coordinator to arrange a date for oral submissions. The hearing shall last one hour, 25 minutes for the plaintiff, 25 minutes for the defendant, and 10 minutes in reply if required.

[433] The parties will provide written submissions in advance of the hearing. The plaintiff fifteen days prior, the defendant ten days prior, and any reply from the plaintiff seven days prior. Written submission are limited to ten pages.

[434] If these Reasons contain any calculation errors, the parties may address this at the costs hearing.

Casullo J.

Released: January 8, 2024

[1] The attachments formed part of Mr. Taylor’s accident benefits claim.

[2] It was unclear what version of the DSM Dr. Staab was taken to – the DSM-4, the DSM-4-TR, or the DSM-5.

[3] I disagree with the defendant’s suggestion that Dr. Hamilton said headaches were a symptom of a brain injury. Dr. Hamilton clearly set out the precise diagnostic criteria used to arrive at a concussion diagnosis and did not expand it to include headaches to ensure Mr. Taylor fit within the diagnostic parameters.

[4] Evidence from neuropsychological testing or quantified cognitive assessment of difficulty in attention (concentrating, shifting focus of attention, performing simultaneous cognitive tasks) or memory (learning or recording information).

[5] Three or more of the following occur shortly after the trauma and last at least three months: becoming easily fatigued, disordered sleep, headache, vertigo or dizziness, irritability or aggression on little or no provocation, anxiety, depression of affective lability, changes in personality, apathy or lack of spontaneity.

[6] Dr. Jovanovski explained to the court that this is a controversial diagnosis, and one which those who are aware of the literature stay away from.