Court File and Parties

Court File No.: CV-14-500951 Date: 2024-04-29 Ontario Superior Court of Justice

Between: Ruth Kidane, Plaintiff And: City of Toronto and Italian Walk of Fame Incorporated, Defendants

Counsel: Ruth Kidane, Self-represented Heather Paterson and Sam Zucchi, for the Defendant City of Toronto

Heard: March 27-31, April 3, 5, 6 and 11, and September 18, 2023

Reasons for Judgment

VERMETTE J.

[1] This case relates to a slip and fall that occurred on January 2, 2014 on a sidewalk on College Street in Toronto (“Fall”). The Plaintiff seeks damages in the total amount of $1,239,398.00, [1] composed of general damages in the amount of $150,000.00, damages for past and future loss of income and earning capacity in the amount of $1,039,398.00, and damages for future care costs in the amount of $50,000.00.

[2] Liability was admitted and the only issues at trial were causation and damages.

[3] Prior to the Fall, the Plaintiff had significant health issues, including chronic pain syndrome, fibromyalgia and depression, she was unemployed and she was receiving disability benefits. She did not adduce any expert medical evidence on the issue of causation, i.e., to establish the injuries that were caused by the Fall. In contrast, the Defendant did present expert evidence on the issue of causation.

[4] Applying a robust and pragmatic approach to causation, I find that the injuries sustained by the Plaintiff as a result of the Fall include a minor head injury/concussion, multiple soft tissue injuries, and low mood. However, I also find that the injuries caused by the Fall had healed or were resolved within one year, and that any injuries or symptoms experienced in 2015 and in the following years cannot be causally linked to the Fall based on the evidence before me. I conclude that Ms. Kidane would have experienced such later injuries and symptoms in any event, in the absence of the Fall, as a result of the debilitating effects of her pre-existing conditions and/or as a result of new occurrences that are unrelated to the Fall.

[5] I find that the Plaintiff is entitled to the following damages award: (1) $45,000.00 in general damages; (2) $4,000.00 for loss of income; and (3) $161.05 for out-of-pocket expenses, for a total of $49,161.05.

A. Factual Background

1. The parties and witnesses

[6] The Plaintiff, Ruth Kidane, is 66 years old. She was born in Eritrea. She spent a number of years in Italy to study. She obtained a teaching certificate in Italy in 1978. In 1981, she came to Canada and has been living in Toronto.

[7] The Defendant Italian Walk of Fame Incorporated was noted in default in July 2016 and did not participate in the trial. The Defendant City of Toronto (“City”) has admitted liability and does not argue contributory negligence. As a result, the only issues at trial were causation and damages. [2]

[8] Ms. Kidane testified at trial. In addition, she called the following witnesses: a. Diana Hughes, former director of the Waldorf Teacher Education program at the Rudolf Steiner Centre Toronto, where Ms. Kidane studied; b. Renato Rollo, a friend of Ms. Kidane; c. Mariella Bertelli, a friend of Ms. Kidane; d. Dr. Bob Adler, Ms. Kidane’s dentist; e. Rose Rinaldi, a friend of Ms. Kidane; f. Rocco Mastrangelo, Ms. Kidane’s landlord; g. Dr. Jennifer Black, Ms. Kidane’s family doctor; h. Dr. Alan Abelsohn, Ms. Kidane’s former family doctor; and i. Clover O’Brien, one of Ms. Kidane’s physiotherapists.

[9] The City called two witnesses: a. Dr. Joshua Muhlstock, medical expert in physiatry; and b. Luba Neuwirth, case presenting officer with respect to the Ontario Disability Support Program (“ODSP”).

2. Ms. Kidane’s health issues prior to 2014 and her application for Family Benefits Allowance

[10] Ms. Kidane had a motorcycle accident while she was living in Italy. Her evidence was that this accident created issues with her lumbar spine, which was “locked” in the L4-L5 segment. During her testimony, she talked about this condition causing her some discomfort and fatigue if she was sitting for a long time. She said that these issues created stress in her body and mind.

[11] Ms. Kidane’s last employment was with the Immigrant Women’s Centre. The last year that she worked full time was in 1995.

[12] Ms. Kidane moved into her current apartment in 1995. It is a two-room, one-bedroom apartment on College Street. It is accessed from street level by a 19-step staircase that leads directly into the apartment.

[13] In 1997, Ms. Kidane enrolled in the Waldorf Teacher Education program at the Rudolf Steiner Centre Toronto for the 1997-1998 academic year. She graduated in 1998.

[14] Also in 1997, Ms. Kidane applied to the Ministry of Community and Social Services for an allowance as a “permanently unemployable person”. Ms. Kidane was found to be “permanently unemployable” by a medical adjudicator on February 3, 1998.

[15] Dr. Tyrone Turner, a psychiatrist, and Dr. Abelsohn, Ms. Kidane’s family doctor at the time, assisted Ms. Kidane with her application.

[16] Dr. Abelsohn wrote on the application form that Ms. Kidane had major depression with anxiety, and that he did not expect sufficient improvement to take place in the mental condition of Ms. Kidane to allow her to return to any type of work or occupation.

[17] Ms. Kidane started receiving a Family Benefits Allowance in March 1998. Recipients of Family Benefits Allowances were later transferred to ODSP, which Ms. Kidane received until she was 65 years old. She is currently receiving Old Age Security Benefits.

[18] Sometime after graduating from the Rudolf Steiner Centre Toronto in 1998, Ms. Kidane started seeing Dr. Ling, who practiced traditional Chinese medicine, for her back issues. He gave her treatments – twice a week at first and then once a month and once every two months. According to Ms. Kidane, she went through a lot of “readjustments” during these treatments.

[19] Ms. Kidane had a bone scan on April 14, 1999. The report reads as follows:

BONE SCAN INDICATION: back pain The flow study, blood pool and static bone images of the spine and pelvis are normal. There is very mild increased activity in the interphalangeal joints of the fingers bilaterally in keeping with mild arthritis. The rest of the total body bone scan is normal.

[20] Ms. Kidane had a CT [Computed Tomography] Scan of the lumbar spine on December 23, 1999. The report reads as follows: Clinical history: Chronic pain of the entire spine, maximal in the lower back, both SI [sacroiliac] joints and both hips. Focus examination of the SI joints were obtained with one helical acquisition. There is very mild OA [osteoarthritis] changes seen within both SI joints. There is no other focal bone lesions.

[21] In 2001, Ms. Kidane’s doctor at the time, Dr. Haninec, prepared notes for ODSP. The first note stated that Ms. Kidane suffered from chronic pain syndrome secondary to fibromyalgia, degenerative disc disease (DDD) of the spine, and early osteoarthritis of the hips and sacroiliac joints. The note also stated the following: She suffers of variety of MSK [musculoskeletal] pain symptoms in the muscles, bones, joints of all the extremities and in the spine. She has been seen by the numerous orthopedic specialists and rheumatologists. She does not tolerate NSAID [non-steroidal anti-inflammatory drugs]. She would be benefited by physiotherapy, to rest on posturepedic mattress and to use an obus forme for sitting.

[22] The second note was written in support of Ms. Kidane’s request for physiotherapy. It repeated the same diagnoses as the first note. Dr. Haninec also wrote that Ms. Kidane wanted physiotherapy for her lower back, neck and right shoulder and hips.

[23] In 2004, Ms. Kidane found a lump in her breast. She later had a biopsy and it was found to be benign.

[24] Ms. Kidane had breast surgery in October 2008. The lump in her breast was removed. After the surgery, Ms. Kidane was told by the surgeon that the lump was cancerous.

[25] Dr. Abelsohn was Ms. Kidane’s family doctor in the 1990’s, but she later started seeing another doctor (Dr. Haninec). Dr. Abelsohn testified that Ms. Kidane had been diagnosed with chronic fatigue syndrome and fibromyalgia prior to 2012. His notes mention Ms. Kidane’s medical history, including chronic fatigue syndrome, fibromyalgia, mild psoriasis, depression, and chronic low back pain. Between 2011 and January 2014, Dr. Abelsohn only saw Ms. Kidane once, on May 27, 2013. His notes with respect to the May 27, 2013 appointment state, in part: Chronic fatigue: managing OK; has to go slowly; Body pain after any physical activity; stretches am daily; can ride bike no meds; deep tissue massage helpful psoriasis flared up

[26] The May 27, 2013 notes also state that Ms. Kidane reported living on debt, being on disability, but hoping to start a Montessori school soon.

3. Ms. Kidane’s project to open a daycare business

[27] Ms. Kidane testified that she had the idea of opening a daycare business in 1995 or 1996. As stated above, she then decided to enroll in the Waldorf Teacher Education program at the Rudolf Steiner Centre Toronto for the 1997-1998 academic year. During the program, she was focused on early childhood. She graduated in 1998.

[28] Ms. Kidane’s evidence was that her daycare business was delayed by a number of issues over the years, including issues that she had with her landlord in 1998 and the following years. She had hearings related to these issues and she stated that she was unable to focus on her business during that time. Ms. Kidane also stated that seeking treatment for her back issues delayed her daycare business, and that she was unable to focus on her business while she was dealing with the health issues related to the lump in her breast in 2004.

[29] Thus, there was no progress in Ms. Kidane’s plan to open a daycare business until 2005 because, according to her, she had a lot of things to overcome. In 2005 or 2006, she started to get her home ready.

[30] Sometime in 2006, Ms. Kidane asked Mr. Mastrangelo, her landlord, for permission to start a daycare with five preschool children in her apartment for two years. By that time, her relationship with her landlord had gone back to normal. Her landlord provided his consent.

[31] Ms. Kidane did not start her daycare business in 2006 or in the next few years. Despite this, she did not ask her landlord to “renew” his permission. She did not think that it was necessary as she saw her landlord’s permission as a continuous one, for any two years.

[32] Mr. Mastrangelo testified that the permission he gave in 2006 never “expired”. He said that he did not think that he and Ms. Kidane had discussed a start date with respect to the proposed daycare. Mr. Mastrangelo stated that a year or two after Ms. Kidane asked for his permission for the daycare, they had another discussion during which Ms. Kidane told him that she had fallen ill and would not start the daycare at that time. According to Mr. Mastrangelo, Ms. Kidane told him about some of her health issues in the past and expressed regularly that she was not well. Mr. Mastrangelo’s understanding was that Ms. Kidane was “in pain everywhere”.

[33] Mr. Mastrangelo testified that he expected that Ms. Kidane would update him on her plans and that she would let him know if the daycare was going to happen. Mr. Mastrangelo does not recall Ms. Kidane telling him in late 2013 that she was going to open a daycare in March 2014.

[34] On June 21, 2006, Ms. Kidane sent a letter to ODSP to request an internal review with respect to the reduction of her special diet allowance. Her letter included the following paragraphs: After the conventional medicine has failed to diagnose me in the first place I looked at the other options of the alternative medicine, and the Traditional Chinese Medicine has finally sorted out that the main issue was OSTEOARTHRITIS which then was confirmed by CT SCANS, (after long ordeal that took two years). And since it affects my entire spine from which all the organs and their functions depend on. And the two hips, the extremities, the sacroiliac joints, affect greatly my mobility. I have to keep particularly the back warm at all the time, keep a gentle mobility of the vertebrae. […]

[35] In 2007, Ms. Kidane’s mother had a stroke and Ms. Kidane went back to Eritrea for one month.

[36] Ms. Kidane prepared registration forms for her proposed daycare business in 2007. In 2007 or 2008, she put hand-made posters/flyers in her neighbourhood regarding her proposed business. Following inquiries based on the posters/flyers, Ms. Kidane interviewed three families in 2008. No one raised any issues regarding the size of her apartment. One family filled out a registration form prior to her breast surgery, but then she suspended her project.

[37] On June 30, 2011, Ms. Kidane contacted ODSP to obtain an Employment Support application for self-employment. However, Ms. Kidane’s ODSP file does not contain any completed form.

[38] At some point prior to 2012, dolls handmade by Ms. Kidane were displayed at the Spadina-Bloor branch of the Toronto Public Library. The display included a note stating that Ms. Kidane had “made these dolls for the home-based kindergarten that I am about to start.”

[39] On September 18, 2012, Ms. Kidane contacted ODSP again to obtain an Employment Support application for self-employment. However, Ms. Kidane’s ODSP file does not contain any completed form.

[40] On September 26, 2012, Ms. Kidane obtained a master business licence for a daycare with the business name “Isis Kinder Home’. The business address was her apartment’s address.

[41] In the spring of 2013, Ms. Kidane had a friend prepare a website for her daycare business, with pictures of the day care space and text providing information on the services that she was proposing to offer. At about the same time, Ms. Kidane also prepared a flyer with the help of another friend and business cards. The flyer and the website indicated that the daycare had space for five children aged 2 to 5 years. The website stated that the fee per child was $250 per week.

[42] The website went live in November 2013 approximately, before Ms. Kidane put an ad on Kijiji, as discussed below. Ms. Kidane thinks that her website was active for approximately one year. Ms. Kidane was planning to distribute the flyers in January 2014, but they were never distributed.

[43] In the fall of 2013, Ms. Kidane contacted Diana Hughes at the Rudolf Steiner Centre Toronto to share with Ms. Hughes her plans for opening her home daycare. Ms. Hughes remembers Ms. Kidane’s enthusiasm for this project and Ms. Hughes was happy to encourage her.

[44] At some point, the light went off in the hallway leading to Ms. Kidane’s apartment. Ms. Kidane advised her landlord of the issue. Mr. Mastrangelo sent an electrician who did some electrical rewiring in October 2013. Ms. Kidane’s and Mr. Mastrangelo’s respective evidence diverges with respect to how long the repairs took and the scope of the work. Ms. Kidane stated that she was without light in her hallway for more than a year. Mr. Mastrangelo did not remember when Ms. Kidane asked him to call an electrician, but he thinks that he did so the same week that she asked. He said that if the work to be done had been major, he would remember. He believes that the necessary work would have been done the same day or the following day.

[45] On November 13, 2013, Ms. Kidane put an ad on Kijiji for one week with respect to her proposed daycare. The ad was posted only for one week in November 2013. Ms. Kidane was planning to post the ad again in January 2014.

[46] In December 2013, Ms. Kidane was contacted by a woman who had seen her website, Ms. Netta Tal. Ms. Kidane’s understanding is that Ms. Tal saw the ad on Kijiji, which brought her to Ms. Kidane’s website.

[47] On December 5, 2013, Ms. Tal sent the following e-mail to Ms. Kidane: Hello, My name is netta [sic]. I have two sons (4, 2) and I liked what I saw on your website. do you have availble [sic] place at your home? can we arrange a meeting? thank you, Netta

[48] Ms. Kidane responded as follows: Good Day Netta, Thank you for taking the time to visit the website and contacting me. Yes I have opening for 5 children as I am completing the preparatory stage by next Tuesday December 10. You can call me at (416) […] and we can arrange a meeting. Looking forward to see […] you and take care until then. Ruth.

[49] Ms. Kidane testified that the completion of “the preparatory stage” mentioned in her e-mail referred to the fact that she had to paint following the work done by the electrician.

[50] Ms. Kidane subsequently spoke with Ms. Tal. Ms. Kidane’s understanding is that Ms. Tal was interested in the Waldorf pedagogy. Ms. Tal’s husband was doing his Ph.D. at the University of Toronto. According to Ms. Kidane, one of the boys was going to start with her in February 2014. The family had a subsidy for daycare.

[51] On December 7, 2013, Ms. Tal sent a follow-up e-mail to Ms. Kidane: Hey Ruth, I’ll be happy to talk with you again. Netta

[52] On December 12, 2013, Ms. Kidane obtained a letter from the Toronto Police Service confirming that a search of the National Criminal Records depository had not identified any records for Ms. Kidane. In December 2013, Ms. Kidane also completed First Aid and CPR (cardiopulmonary resuscitation) training with St. John Ambulance.

[53] Ms. Kidane stated that Ms. Tal came to her home in December 2013 with her father. When Ms. Kidane saw Ms. Tal for the first time, she told her that she needed at least two children before starting her daycare business. Another issue discussed with Ms. Tal was the fact that Ms. Kidane was not licenced to accept subsidies. Ms. Kidane stated that she had to sort out that issue, as reflected in her subsequent e-mails with Ms. Tal after the Fall.

4. The Fall

[54] The Fall in issue in this action occurred on January 2, 2014. At the time, Ms. Kidane was 56 years old. She slipped and fell on a decorative marble tile which was part of the Italian Walk on Fame on College Street and was covered with snow.

[55] At trial, Ms. Kidane stated that she fell backwards, hitting her tailbone, then feeling pain in her back, and then hitting her head and right shoulder. She was able to get up on her own.

[56] Ms. Kidane did not seek medical attention on January 2, 2014. After the Fall, Ms. Kidane went home. On her way back home, she stopped at her landlord’s business to pay her rent. Ms. Kidane stated that she was in pain and holding the crown of her head. After dropping off her rent cheque, she went to her apartment upstairs. In the evening, she had a telephone conversation with a friend who is a nurse. When Ms. Kidane went to bed, she had pain in her neck and her upper chest. She put a towel under her neck as she could not use a regular pillow. That night, she only slept two hours.

[57] In the morning, she reached out for a cup and felt pain in her neck and right ear.

[58] On January 3, 2014 at 5:40 p.m., Ms. Kidane called Telehealth Ontario. She was told to go to the hospital. Telehealth Ontario’s call report includes the following information, among others: Protocols ----- fall Mechanism of injury: ----- fell on sidewalk Onset ----- x24 hrs Location: ----- initial impact on tailbone, then whole back and back of head Characteristics of Injury: ----- intermittent headache at site of impact 7/10 on pain scale; intermittent pain in lower back 8/10 on pain scale; constant right shoulder pain 8/10 on pain scale; intermittent left leg pain near the pubic bone 5-6/10 on pain scale; intermittent cramp behind right knee and up 4-5/10 on pain scale, intermittent right rib pain 6-7/10 on pain scale Pain/Severity: ----- see above Activity level: ----- unable to do household chores/take garbage out Relieving factors: ----- applying heat with effect

[59] Later that day, the husband of one of Ms. Kidane’s friends picked up Ms. Kidane and drove her to Mount Sinai Hospital. Ms. Kidane saw a triage nurse in the emergency department at 7:23 p.m. The triage nurse wrote in the “Subjective Assessment” section of the emergency record that Ms. Kidane reported having hit the back of her head, with no loss of consciousness. Ms. Kidane complained about pain in her tailbone, shoulder and back and about having a headache and nausea. Ms. Kidane confirmed at trial that this was an accurate list of her complaints.

[60] Ms. Kidane saw a doctor after 8 p.m. The emergency record states that Ms. Kidane advised the doctor that she slipped and fell on her bum and then hit the back of her head. The doctor’s conclusion was that Ms. Kidane had a mini head injury and contusion.

[61] Ms. Kidane underwent both a CT scan of the brain and a lumbar spine X-ray while at the hospital. The lumbar spine X-ray showed no fracture, but mild degenerative change at the facets and moderate degenerative disc disease at L4-L5. The CT scan of the brain showed no fracture, no soft tissue swelling and no acute intracranial hemorrhage.

[62] Ms. Kidane was discharged and sent home at 9:05 p.m. She was given Tylenol for pain and told to wake up every 2 hours and to follow up with her family doctor.

5. Ms. Kidane’s health issues in 2014 and 2015

[63] The office of Dr. Abelsohn was closed in early January 2014. Ms. Kidane called his office on the first day that it was open to make an appointment. She saw Dr. Abelsohn on January 13, 2014. She subsequently decided to find a new family doctor who was closer to her home.

[64] Dr. Abelsohn’s notes with respect to the January 13, 2014 appointment state that Ms. Kidane had sustained a fall with multiple strains and that she reported feeling pain in the head, coccyx area, right shoulder, right ribs, elbow and pelvic area. The notes also state that she was unable to do housework like vacuuming and mopping. Dr. Abelsohn did not see Ms. Kidane again after the January 13, 2014 appointment.

[65] Dr. Jennifer Black became Ms. Kidane’s new family doctor. However, she saw Ms. Kidane for the first time more than two months after the Fall, on March 18, 2014. Before this first appointment, Ms. Kidane completed an intake form with her medical history on which she mentioned secondary depression, psoriasis, osteoarthritis (sacroiliac, L4/L4 [sic], hips), and lumpectomy. She also mentioned a family history of type 2 diabetes, among other things.

[66] On March 12, 2014, while Ms. Kidane was taking the garbage out, she experienced shoulder pain and a visual blur. She went to see an optometrist during the day. In the middle of the night, she woke up and vomited twice. She took a taxi and went to Toronto Western Hospital, where she arrived between 3:30 and 4:00 a.m. She was given Tylenol and an injection in her right shoulder, and she was discharged at 8:25 a.m. No imaging was done. The diagnosis was a post-concussion headache. Ms. Kidane was told to follow up with her family doctor in the next two or three days to consider a referral to a neurology/concussion specialist. She was prescribed Naproxen. The doctor also recommended that she rest for two days and then return to her activities.

[67] Ms. Kidane commenced this action against the City on March 26, 2014.

[68] Dr. Picard, a neurologist, saw Ms. Kidane on April 2, 2014. He wrote in his reporting letter that he could not “see any clear evidence of peripheral neuropathy, radiculopathy or myelopathy” and he did not make arrangements to see Ms. Kidane again.

[69] On April 25, 2014, Dr. Black gave a physiotherapy referral to Ms. Kidane for post-traumatic pain, mainly neck, back, face and shoulders.

[70] Pursuant to Dr. Black’s physiotherapy referral, Ms. Kidane attended at St. George Physiotherapy Clinic on May 13, 2014. The intake/assessment form includes the history provided by Ms. Kidane at that time, including a reference to her being set up to open a pre-school and being delayed because of her accident.

[71] Ms. Kidane attended a number of physiotherapy sessions at St. George Physiotherapy Clinic for post-traumatic neck pain in May and June 2014. The discharge summary dated June 27, 2014 indicates that Ms. Kidane had reported some improvement. It was recommended that she continue with an exercise program.

[72] On May 28, 2014, Ms. Kidane saw her dentist, Dr. Adler. She complained of head, facial and neck pain, as well as nausea and vomiting when her head was tipped forward. During his examination, Dr. Adler noted moderate to severe pain on palpation or percussion of most frontal and lateral head, face and neck muscles and bones. He also noted that one tooth was sensitive to percussion and that the gum adjacent to Ms. Kidane’s upper left back teeth were more sensitive to probe than normal. However, Ms. Kidane’s bite pattern was normal. Dr. Adler recommended to Ms. Kidane that she apply heat to her face, and he referred her to the Wasser Pain Management Centre at Mount Sinai Hospital for examination and treatment.

[73] During his testimony, Dr. Adler expressed the view that Ms. Kidane’s jaw was not dislocated when he saw her on May 28, 2014. He stated that if one’s jaw is dislocated, one cannot close their mouth, and this was not the case for Ms. Kidane.

[74] On August 5, 2014, Ms. Kidane had a psychiatric consultation at the Community Mental Health Program at Toronto Western Hospital. She was diagnosed with somatic symptom disorder with predominant pain.

[75] In September 2014, Ms. Kidane started a new round of physiotherapy sessions with respect to her shoulders and neck. The discharge summary dated October 21, 2014 indicates that Ms. Kidane had reported some improvement. It was recommended that she continue with a home exercise program and that she attend weekly strengthening classes.

[76] Dr. Black sent Ms. Kidane for numerous tests in 2014 and 2015, including the following: a. CT head and neck on September 25, 2014: Generally unremarkable. b. Bilateral hip X-ray on December 11, 2014: No evidence of significant abnormality in the pelvis or either hip region. c. Chest X-ray on December 11, 2014: Mild issues are flagged, but Dr. Black stated that it was not possible to compare Ms. Kidane’s condition before and after the Fall without imaging from before the Fall. d. Bilateral ribs X-ray on December 11, 2014: No fracture and no significant abnormality. e. Thyroid ultrasound on December 11, 2014: Suspicion of mild thyroid hypervascularity. Dr. Black stated that nothing in the report could explain the cause of Ms. Kidane’s pain. f. Upper back and neck ultrasound on December 11, 2014: No definite abnormality detected. g. MRI [Magnetic Resonance Imaging] of the cervical spine on April 1, 2015: No evidence of acute or chronic injury involving the cervical spine, and no soft tissue abnormality. h. Right shoulder X-ray on November 3, 2015: No bony abnormality demonstrated and no arthritic change. i. Right shoulder ultrasound on November 3, 2015: Normal study.

[77] On November 27, 2014, Ms. Kidane saw Dr. Picard again at the Wasser Pain Management Centre at Mount Sinai Hospital. He internally referred Ms. Kidane to Dr. Gordon “for a second opinion regarding her diagnosis and management.”

[78] In December 2014, Ms. Kidane started a new round of physiotherapy sessions with respect to thoracic pain and stiffness. The discharge summary dated January 30, 2015 indicates that Ms. Kidane had reported some improvement. It was recommended that she continue with a home exercise program.

[79] On January 28, 2015, Ms. Kidane had a MRI of the brain which was largely unremarkable.

[80] On February 2, 2015, Ms. Kidane saw Dr. Chapnik in the Otolaryngology – Head and Neck Surgery department of Mount Sinai Hospital. He noted that his examination of Ms. Kidane “was unremarkable”. He also noted that the standard positional test had failed to produce vertigo.

[81] Dr. Chapnik saw Ms. Kidane again on May 21, 2015. He noted that her MRI of the head and cervical spine were both normal and that her balance testing was normal as well.

[82] On June 9, 2015, Ms. Kidane saw Dr. Mock at the Wasser Pain Management Centre. Dr. Mock noted the following in his report: Clinical examination revealed no evidence of facial swelling or asymmetry. There was tenderness to pressure over both masseter muscles, but more so on the right side. Pressure over the right temporomandibular joint elicited significant pain, both facially and via the ear. Intraorally, there was tenderness to pressure over the masseter muscles again, as well as more mild tender over the medial pterygoids, lateral pterygoids, and coronoid attachments of the masseters bilaterally. A reciprocal click was palpable emanating from both temporomandibular joints, early on the right side. Voluntary mandibular opening was limited to 2.5 cm; however, the mandible could be opened further with light pressure to 3.5 cm, but this elicited pain over the right temporomandibular joint. The range of lateral movement of the mandible was within normal limits; however, movement to the left produced pain over the right temporomandibular joint. There was no deviation of the mandible on opening. The patient had a functional occlusion, with heavily restored dentition. There certainly is evidence of internal derangement of both temporomandibular joints; however, the muscular or myofascial pain seemed to be more significant. As she is already planning to restart the physiotherapy, I gave her a note to give to the Physiotherapist to extend the treatment to the facial musculature. I have also ordered MR imaging of the temporomandibular joints. I suggested that the patient apply heat daily to the facial musculature and continue the Flexeril. She will be returning to our clinic for followup.

[83] In July 2015, Ms. Kidane started a new round of physiotherapy sessions with respect to her temporomandibular joints (“TMJ”). The discharge summary dated August 31, 2015 indicates that Ms. Kidane had reported that her pain had gone from 7 to 3 on a pain scale. It was recommended that she continue with a home exercise program and that she follow up with a doctor regarding a MRI.

[84] Dr. Gordon sent Ms. Kidane to do a MRI of the TMJ, which she did on August 28, 2015. The report refers to a “mild borderline anterior displacement” of both the right and left TMJ discs.

[85] Ms. Kidane believes that she dislocated her right shoulder as a result of the Fall, and that her dislocated shoulder was “fixed” by Dr. Ling in September 2015. However, there is no medical evidence of any dislocated shoulder. Dr. Ling, who is not a medical doctor, is retired, did not testify at trial, and his files and records were not produced.

[86] In October 2015, Ms. Kidane started a new round of physiotherapy sessions with respect to low back pain. The discharge summary dated November 16, 2015 indicates that Ms. Kidane had reported that her pain had gone from 6 to 3 on a pain scale. It was recommended that she continue with a home exercise program.

[87] On November 10, 2015, Ms. Kidane had a follow-up appointment with Dr. Mock at the Wasser Pain Management Centre. The last paragraph of Dr. Mock’s report to Dr. Black reads as follows: I discussed this further with the patient telling her that I did not feel she had a primary internal derangement of the [TMJ] but that her facial pain was muscular in origin and quite probably cervicogenic. I suggested she continue with her present course of treatment and that she could return to see me again should she see the necessity.

6. Ms. Kidane’s subsequent health issues

[88] In March 2016, Ms. Kidane saw an ophthalmologist because of pain around her right eye.

[89] On March 2, 2016, Ms. Kidane saw Dr. Gordon again at the Wasser Pain Management Centre. His report mentions a number of complaints by Ms. Kidane, including TMJ pain, neck pain and lower back pain, as well as dizziness, nausea and ear pain that she experienced for a few days on a trip to Montreal. She had a follow-up appointment with Dr. Gordon on July 4, 2016. Dr. Gordon’s report notes that Ms. Kidane had described “75% improvement in her symptoms with attendance of shiatsu massage twice a week.”

[90] On September 7, 2016, Ms. Kidane had another appointment with Dr. Mock at the Wasser Pain Management Centre. Dr. Mock saw Ms. Kidane at the request of Dr. Gordon. Dr. Mock wrote the following, in part, in his report: Overall, based on her early reassessment she feels considerably better. She is still having the treatment as previously described. The patient notes she still gets significant bouts of dizziness, often associated with rapid body, or more importantly, head movement. For this reason she is avoiding some activities. She reports clenching her teeth recently and feeling a subsequent grittiness in her mouth. This was about two weeks ago. As well, she has noted some sensitivity to cold drinks more recently.

[91] At trial, Ms. Kidane acknowledged that there had been an improvement in her condition, which she attributed to the Shiatsu treatments that she was receiving.

[92] Dr. Mock also provided Ms. Kidane with instructions to give to her dentist with respect to the construction of a “stabilizing bite appliance”. Dr. Adler followed Dr. Mock’s recommendation and had a nightguard prepared for Ms. Kidane. Dr. Adler stated that a nightguard often reduced face pain. The nightguard was delivered to Ms. Kidane and adjusted on November 21, 2016. Dr. Adler testified that Ms. Kidane eventually “chewed through” the nightguard and, as a result, Dr. Adler referred her again to the pain clinic.

[93] Dr. Adler testified that grinding one’s teeth can cause cracks in teeth and in fillings, and muscles to become tender. He stated that grinders often complain of headaches in the morning.

[94] On February 10, 2017, Ms. Kidane had a bilateral knee X-ray, and an X-ray of her left shoulder. The report for the X-ray of the left shoulder states that no evidence of any left rotator cuff tear, osteoarthritis, calcific tendinitis or other significant bony, soft tissue or joint abnormality was detected radiographically in the left shoulder region. Dr. Muhlstock reviewed the report for the bilateral knee X-ray at trial, and his evidence was that it was a normal knee X-ray for someone of the age of Ms. Kidane.

[95] On March 15, 2018, Ms. Kidane had an MRI of the cervical, thoracic and sacral spine. The report notes that it was normal. Some mild degenerative changes were noted.

[96] On March 4, 2020, Ms. Kidane had a CT scan of her head and neck. The report discusses her nasal septum.

[97] At trial, Ms. Kidane referred to a number of other tests and consultations with doctors. Not all of the tests and consultations referred to at trial are mentioned in these reasons because many of them have no apparent connection to the Fall.

7. Ms. Kidane’s project for a daycare business after the Fall

[98] On January 5, 2014, three days after the Fall, Ms. Kidane sent the following e-mail to Ms. Tal regarding the issue of subsidies: I contacted the agency that same day we spoke. I am still waiting to be called re: the procedure, if I do not hear from them by Tuesday I will call them again. And will let you Know soon after. Take care until then. Ruth

[99] On January 13, 2014, Ms. Tal sent the following e-mail to Ms. Kidane: Hello Ruth, how are you? do you have any kids coming to you? do you have answer from the subsidy? I still want to put Yona at your place, for part time. pls let me know if there is such possibility, and also about the doll that I want to learn from you how to do it. thank you, netta

[100] On January 14, 2014, Ms. Tal sent the following e-mail to Ms. Kidane: Hello dear Ruth, I have found 3 more moms that want to do dolls, so we need a time, materials and cost of the workshop so I can invite them. (maybe I’ll find more). How much you were thinking to take for your work? we need to add the materials. If we can set a date tmw it will be great. Tnx, Netta

[101] On January 20, 2014, Ms. Tal forwarded to Ms. Kidane an e-mail that she had sent to a number of other parents. Her e-mail read as follows: Dear all, I have talked with Ruth and we set a date – next Tuesday, at 9:30 at her home on Clinton and College. we are going to make a pajama doll which is good for young children, ages 1-3. it takes the whole morning and noon and we can finish by the pick up time of our kids. we can be up to 5 parents a session with 5 toddlers. she’ll provide home made pizza and hot drinks. the rest we can bring ourselves. the cost include the materials is 60$ per person. pls let me know if you’re interested by tmw evening. for those of you who wanted to meet on the weekend pls let me know as well. the waldorf dolls are more complicated and it takes around 3-4 meeting and cost 120$ so that […] [The end of the e-mail is missing.]

[102] Despite her accident, Ms. Kidane conducted a doll-making workshop over two days at the end of January 2014. Four parents attended the workshop. At trial, Ms. Kidane stated that she was in a lot of pain. She said that she had prepared the patterns for the dolls before the accident. I do not accept her evidence on this point as it is inconsistent with the e-mails above which show that the plan to have a workshop with multiple parents in attendance did not crystallize until after the Fall.

[103] Ms. Kidane testified that on the second day of the workshop, she told Ms. Tal that she could not go ahead with the daycare. According to Ms. Kidane, Ms. Tal, her husband and her children came to visit her in late spring or early summer 2014. Ms. Kidane’s understanding is that Ms. Tal and her family were going to be in Toronto for four years. Ms. Tal and her family no longer live in Canada.

[104] On May 12, 2014, a person named Morgan Cowie sent the following e-mail to Ms. Kidane through her website: hello! Hope you are well. we are looking for a home daycare spot for our younger son starting in August or September. He will be two in December 2014. he is a lovely kid and i’d love to meet you if you think you might have a spot for him. looking forward to hearing from you! warmly, morgan

[105] Ms. Kidane responded as follows on an unknown date: Hello Morgan, Sorry for not replaying [sic] earlier I just opened my e-mail now. Thank you for inquiring, I am planning to start advertizing [sic] in a few weeks for September. Will be glad to meet with you, if you are still interested and please let me know when will be good time to call you. Have a good day. Ruth Kidane

[106] On May 27, 2014, Ms. Cowie wrote the following: Hi Ruth, Thanks for your reply! Can you call me next Monday around 4pm? My number is […]. I’ll look forward to hearing from you. Warmly, Morgan

[107] According to Ms. Kidane, she had started to do physiotherapy at that time and she was hopeful to start her daycare in September 2014. Ms. Kidane stated that she later called Ms. Cowie and advised her that she would not be in a position to open her daycare in September 2014.

[108] Ms. Kidane eventually cancelled her website. The only people who contacted her through the website were Ms. Tal and Ms. Cowie. She did not receive inquiries from any other parents.

[109] On September 8, 2022, Ms. Kidane’s landlord, Rocco Mastrangelo, wrote the following letter at the request of Ms. Kidane: To whom it may concern: With this letter I confirm that Ruth Kidane has been a tenant Of [sic] my family and I, since January 1995 to this date. We have rented to her one of the two apartments above our business on […] College Street. Sometime in 2006 Ruth had asked me for permission to allow her to start her work with 5 preschool children at the apartment where she occupies, for the duration of two years. Indicating that she would move in to a house after that period, for which I agreed and gave her my consent. On [sic] October 2013 as the hallway in her apartment needed an electrical rewiring I also sent an electrician to do the Required [sic] works.

[110] Mr. Mastrangelo confirmed the contents of his letter at trial.

8. Ms. Kidane’s evidence regarding her proposed daycare business

[111] Ms. Kidane had not prepared a budget or business plan for her proposed daycare before the Fall. There were also no completed registration forms before the Fall.

[112] Ms. Kidane stated that she was planning to run her daycare business by herself in her apartment. As stated above, her apartment is a one-bedroom apartment with two different large rooms. She noted that a licence is not required for a daycare with only five children.

[113] There are nineteen steps to go up to Ms. Kidane’s apartment. There is no door at the top of the stairs, but Ms. Kidane installed a wooden gate to prevent children from going into the stairs. Ms. Kidane stated that she would have had to install a system to be able to open the door of her apartment from upstairs, and that she would have put this in place before opening her daycare. She had not purchased such a system or discussed it with her landlord prior to the Fall.

[114] Ms. Kidane testified that she was planning to use the pool of supply teachers to be replaced if she was sick. However, she had no commitment in writing that supply teachers could replace her in the event she was sick.

[115] Ms. Kidane’s plan was to run her daycare business for two years in her apartment, and then buy a house, west of where she currently lives. She stated that the downpayment for the purchase of the house would have come from the business income as she has no significant savings. Ms. Kidane said that she would have been able to save money for the downpayment and that there were people who would have been willing to lend her money.

[116] Ms. Kidane prepared a chart for the purposes of the litigation with respect to her expected income and expenses for her proposed daycare business. The chart did not exist prior to the Fall. Some of the figures in her chart come from information that she found online (e.g., average price of a two-bedroom house in Toronto) or that she obtained from friends or others (e.g., mortgage and land transfer tax figures) or that she estimated based on information obtained (e.g., utilities expenses were estimated based on information provided by a friend). The chart shows income figures before taxes.

[117] Ms. Kidane’s rent is deducted in full as a business expense in her chart. Ms. Kidane also testified that her personal expenses, including food, were all covered by the amounts in the chart.

[118] At some point, Ms. Kidane spoke with someone at State Farm with respect to obtaining liability insurance for a daycare with five children. There was no insurance in place in December 2013. Someone from the insurance company had to come to her apartment to see the proposed location of the daycare business. Ms. Kidane stated that she was planning to arrange for someone to come in January 2014. She also stated that she was told on the phone that liability insurance for a daycare with five children would cost $10 per month. Ms. Kidane said that the person to whom she spoke no longer works at State Farm (now Desjardins).

[119] Ms. Kidane testified that she had consulted with a business development agency and that she would have had access to the services of an accountant for free for a year.

[120] Ms. Kidane has had a number of roommates over the years, usually university students. She had roommates almost on a continuous basis from September 2014 to August 2020. The last year that she had a roommate was in 2020, and she then made the decision not to find another roommate because of the COVID-19 pandemic. Ms. Kidane initially asked her roommates to pay her $450 monthly and she later increased the amount to $500. Ms. Kidane’s monthly rent is $825.20. ODSP only gave her $300 monthly for rent.

9. Out-of-pocket expenses

[121] Ms. Kidane gave evidence about numerous receipts in support of her case. They include: a. various pharmacy receipts for prescriptions, topical creams and unknown purchases in 2014, 2015, 2016, 2019 and 2023; b. various taxi receipts in 2014, 2015, 2016, 2017, 2019, and 2020. Some of the taxi receipts related to trips to the vegetables store (in July and September 2014), medical appointments, physiotherapy appointments and to her former lawyer’s office. However, Ms. Kidane often could not remember what the taxi trips related to; c. various receipts for: a trolley for groceries and a laundry basket with wheels purchased in October 2014; magic bag pads purchased in December 2015; windows cleaning in December 2016; a ring cushion purchased in December 2016; a soft cervical collar and a memory foam cervical pillow purchased in July 2016; an obusforme backrest purchased in August 2016; diabetic socks purchased in October 2019; and a pedal leg exerciser purchased in July 2021; d. receipts for physiotherapy exercise classes in September, October and December 2014; e. receipts of Registered Shiatsu Health Practitioner in April, May, June and July 2016; and f. receipt of optometrist in March 2014.

[122] During her testimony and submissions, Ms. Kidane clarified that she had been reimbursed for some of the expenses reflected in the receipts, including the diabetic socks and the optometrist.

10. Expert evidence of Dr. Muhlstock

[123] The Defendant adduced the evidence of Dr. Joshua Muhlstock, who was qualified as a medical expert in physiatry. Dr. Muhlstock has been a physician for more than 16 years. He has received specialist certification by the Royal College of Physicians and Surgeons of Canada in physical medicine and rehabilitation. His outpatient practice includes the evaluation and treatment of injuries that are work-related and those sustained in motor vehicle accidents, as well as neuromusculoskeletal conditions and electromyography, chronic pain, sport medicine, and injection therapy.

[124] Dr. Muhlstock met with Ms. Kidane on January 20, 2020 to conduct a physiatry assessment. He also reviewed the medical records that had been produced in the litigation at the time. He performed a head-to-toe examination.

[125] Dr. Muhlstock made the following findings with respect to Ms. Kidane’s physical examination in his expert report (which he adopted during his testimony): Ms. Kidane was pleasant during the evaluation. She was self-limited with regard to her range of motion, with discrepancy/inconsistencies noted informally. Fairly diffuse tenderness was reported, which would be consistent with her pre-existing diagnosis of chronic pain syndrome. Poor effort with collapsing or giving-way was demonstrated throughout all strength testing. Non-physiologic sensory loss was reported. There was no evidence of swelling, inflammation or muscle wasting. In summary, based on the assessment today, there are no objective clinical findings of any incident-related physical impairment.

[126] Dr. Muhlstock opined that as a result of the Fall, Ms. Kidane likely sustained a possible concussion without loss of consciousness, as well as multiple soft tissue injuries to the cervical spine (whiplash associated disorder, level II), the upper back and shoulder girdles, the thoracic and lumbosacral spines, the pelvis and hip girdle/coccyx and the right upper extremity. However, given the length of time that has elapsed since the Fall, Dr. Muhlstock’s view is that any soft tissue or musculoskeletal injuries sustained would have since healed or resolved from a physiologic perspective. As stated above, he found that there were no objective clinical findings of any incident-related physical impairment that continue to exist at this time. Dr. Muhlstock testified that soft tissue injuries normally heal within three months.

[127] Dr. Muhlstock stated that Ms. Kidane’s pre-existing condition may have served to prolong her recovery from soft tissue injuries sustained in the Fall. However his opinion is that Ms. Kidane’s “current complaints and physical condition are much more likely related to her pre-incident conditions as opposed to any minor soft tissue injuries sustained in the subject incident.”

[128] No other medical expert testified at trial.

B. Positions of the Parties

1. Position of Ms. Kidane

[129] Ms. Kidane submits that she suffered the following injuries as a result of the Fall: a. Head injury/concussion: Ms. Kidane states that she felt immediate head pain and headache following the Fall, and that she continues to suffer from symptoms and impairments from her head injury, including dizziness, vertigo and nausea. b. Dislocation of TMJ: Ms. Kidane states that the injury to her TMJ caused immediate pain and stiffness in her jaw and face, and that she continues to experience pain and sensitivity in these areas. She further states that she clenches and grinds her teeth due to the injury, and that she has related pain to her right eye, right inner ear and nose. She also refers to the deviation of her right nostril and takes the position that it was the result of traumatic injury. c. Chipped teeth and bitten tongue. d. Whiplash injury: Ms. Kidane states that she experienced significant neck pain and stiffness following the Fall, and that she continues to experience this on a daily basis. e. Dislocation of right shoulder and pain in right elbow: Ms. Kidane states that she was in extreme pain and had limited use of her right shoulder for weeks following the Fall. With respect to her elbow, she states that she suffered pain and stiffness. According to Ms. Kidane, she continues to experience pain and to have reduced ability to use her right shoulder and arm. She argues that the injury to her right shoulder caused secondary injuries to her left shoulder and arm due to overuse. f. Right leg and knee: Ms. Kidane states that she had difficulty walking and standing for a period of time following the Fall, and that she continues to suffer from reduced strength and stability in her right leg and knee. g. Mental and emotional harm: Ms. Kidane notes that her life changed as a result of the Fall. She states that she is in pain, she is no longer able to take care of herself like she used to, and that she experiences depression, low mood, sadness and loss of hope. She also states that it impacts her that her future plans have changed so drastically.

[130] Ms. Kidane argues that before the Fall, she was generally in good health. She submits that despite having a history of back pain and depression symptoms, she was functioning independently and entering a more positive chapter of her life. Her position is that the pain and symptoms that she is now experiencing are a direct result of the Fall. She states that although she was a vulnerable person in light of her physical and emotional history, the evidence is clear that the Fall was the primary cause and primary material contributor to her current cognitive and physical disabilities.

[131] Ms. Kidane submits that she has been unable to work as a result of the Fall and that she has suffered a loss of income, a loss of earning capacity and a loss of competitive advantage. She points out that at the time of the Fall, she was in the process of starting her own daycare business in her apartment. She argues that there was a real and substantial likelihood that she would have started accepting clients and youth into her business in early 2014. She states that her intention was to operate her business in her apartment for the first two years to establish her business and to grow her customer base in the community. After the first two years, she intended to move her business to a house and hire an assistant, and to continue to work until at least age 70. Ms. Kidane asserts that her projected lost income for the period 2014-2023 is $1,039,398.00.

[132] Ms. Kidane argues that due to the Fall and her resulting injuries, she has required and will continue to require assistance, and has incurred and will continue to incur care expenses. She submits that there is a real and substantial risk that she will require future care for her mental and physical injuries. She seeks damages in the amount of $50,000.00 for future care costs.

[133] Ms. Kidane refers to a number of cases in support of her position on the appropriate range for general damages. She submits that the appropriate range for general damages in this case is $100,000 to $150,000 in relation to the following injuries caused by the Fall: a. chronic headaches and cognitive deficits, including memory impairments and reduced concentration; b. dizziness and nausea; c. chronic jaw and mouth pain and sensitivity; d. permanent disfigurement of her tongue; e. chronic pain around her right eye, right inner ear and nose; f. chronic neck and shoulder pain, with stiffness and reduced range of motion; g. chronic right leg and knee pain and stiffness; and h. depression and low mood.

2. Position of the City

[134] The City’s position is that as a result of the Fall, Ms. Kidane sustained a temporary exacerbation of her pre-existing injuries. The City argues that any ongoing complains are related to Ms. Kidane’s pre-incident conditions and not the minor soft tissue injuries she sustained in the Fall. Any soft tissue injuries she sustained in the accident would have long since healed or resolved.

[135] The City argues that Ms. Kidane did not adduce any substantive evidence of the following: a. a causal connection between the Fall and her claim that she dislocated her TMJ; b. injuries to her tongue causing permanent disfigurement; c. a causal connection between the Fall and her deviated septum; d. a dislocation of her right shoulder as a result of the Fall; and e. the allegation that an injury to her right shoulder caused her left shoulder to become stiff from overcompensation.

[136] The City points out that Ms. Kidane did not offer any medical evidence that contradicted Dr. Muhlstock’s opinions and findings.

[137] The City submits that a defendant should only be liable for the injuries caused as a result of the incident, and is not obligated to compensate the plaintiff for any pre-existing condition which the plaintiff would have experienced anyway. It argues that where a plaintiff has a pre-existing condition, they should not be put in a better position simply because of the accident.

[138] With respect to the claim for loss of income, the City states that a plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. The City points out that the measure of compensation for future economic loss depends, in part, on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to her had not occurred. The greater this possibility, the lower the award for future pecuniary loss.

[139] The City argues that Ms. Kidane has not established a real and substantial risk of pecuniary loss and that there should be no damages awarded for future loss of income. The City states that Ms. Kidane’s claim that she would have earned $1,039,398 in income over ten years is entirely speculative and relies on “a daisy chain of assumptions”. The City points out that Ms. Kidane’s self-prepared assessment of what her projected income loss was is not based on any historical or comparative financial information, is highly speculative, does not include supporting documentation to justify the amounts claimed, was prepared without any expert input, and does not incorporate the usual and necessary contingencies, deductions and tax or other calculations necessary to estimate a loss of income claim.

[140] The City submits that based on the length of time that Ms. Kidane had been planning to open a daycare prior to the Fall without much progress, and the number of outstanding items/concerns remaining at the time of the Fall that still needed to be resolved, there was little prospect of the daycare opening in 2014 to full capacity. The City argues that Ms. Kidane was only a few steps closer to opening her daycare in 2013 than she was when she first began working towards the idea in 1998. It points out that over many years, Ms. Kidane would make incremental steps forward and then things would stall again. According to the City, Ms. Kidane was not ready to start her business at the time of the Fall.

[141] In the alternative, the City’s position is that if there is an award for loss of income, Ms. Kidane’s ODSP benefits ought to be deducted from the total amount awarded. Further, any alleged loss of income would have to be discounted by the amount that Ms. Kidane received in rent from the roommates she took on because she could not have had a roommate if she operated the daycare out of her apartment.

[142] The City states that Ms. Kidane’s claim for out-of-pocket expenses are not supported by any medical foundation and/or were not incurred as a result of the Fall. The City submits that the appropriate amount for out-of-pocket expenses is $1,800.82 instead of $2,677.55.

[143] With respect to future care costs, the City argues that entitlement to compensation for such costs requires medical justification. The City submits that Ms. Kidane failed to provide any evidence regarding the necessity of ongoing care, and any evidence supporting her claim for $50,000 in future care costs. The City’s position is that no damages should be awarded under this heading.

[144] The City submits that Ms. Kidane’s pre-existing medical condition serves to limit her general damages. It points out that Ms. Kidane suffered injuries relating to a previous motorcycle accident and was still experiencing long-term symptoms and limitations as at the date of the Fall. The City notes that Ms. Kidane complained of a number of other ailments – such as lower back pain and chronic fatigue – which predated the Fall.

[145] The City argues that the cases relied upon by Ms. Kidane in support of her claim for general damages of $150,000.00 are factually distinguishable and/or involve injuries which are much more severe than those supported by the evidence in this case. The City submits that the evidence at trial only supports that Ms. Kidane experienced a mild concussion and soft tissue damage. She did not require surgery and she had many pre-existing conditions. According to the City, a more reasonable assessment of general damages would be between $45,000 and $55,000. The City refers to a number of cases in support of its position.

C. Discussion

[146] I will first review briefly the legal principles applicable to causation issues. I will then make some comments with respect to Ms. Kidane’s evidence. I will next turn to the injuries that Ms. Kidane would not have sustained “but for” the Fall and the duration of these injuries. Finally, I will discuss each of the heads of damages claimed, i.e., general damages, future care costs, out-of-pocket expenses and loss of income.

1. General principles regarding causation

[147] In light of Ms. Kidane’s significant health issues prior to the Fall and the breadth of the injuries/losses that she attributes to the Fall, this case raises significant causation issues.

[148] In order to make a defendant liable for a loss, the plaintiff must establish that the defendant’s negligence caused the loss in question, i.e., causation must be established. See Clements v. Clements, 2012 SCC 32 at para. 6 (“Clements”).

[149] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the plaintiff would not have suffered the loss. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, the plaintiff’s action against the defendant fails. See Clements at paras. 8 and 46 (1).

[150] A judge applying the “but for” causation test is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused the loss. Scientific proof of causation is not required. See Clements at paras. 9 and 46 (1).

[151] The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm. It is sufficient if the defendant’s negligence was a cause of the harm. See Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 19 (“Athey”).

[152] The tortfeasor must take their victim as the tortfeasor finds them and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person. While the defendant is liable for the injuries caused, even if they are extreme, the defendant needs not compensate the plaintiff for any debilitating effects of a pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage. If there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award, consistent with the general rule that the plaintiff must be returned to the position they would have been in, with all of its attendant risks and shortcomings, and not a better position. See Athey at paras. 34-35.

[153] Hypothetical events – such as how the plaintiff’s life would have proceeded without the tortious injury – or future events need not be proven on a balance of probabilities. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation. See Athey at para. 27.

2. Evidence of Ms. Kidane

[154] Before discussing the injuries suffered by Ms. Kidane as a result of the Fall, I wish to make a few comments regarding Ms. Kidane’s evidence.

[155] At trial, Ms. Kidane showed a tendency to blame anything and everything on the Fall, and to minimize or deny her pre-existing medical issues. For example: a. Ms. Kidane appeared to suggest during the trial that her diabetes issues were caused by the Fall. However, Ms. Kidane has a family history of type 2 diabetes and there is no evidence linking her diabetes to the Fall. Further, the record before me includes a report to Dr. Black from the West Toronto Diabetes Education Program dated December 3, 2015 stating that Ms. Kidane was seen for an initial nutritional assessment and that the main concerns were her excessive intake of carbohydrates and frequent consumption of sweets. b. Ms. Kidane also appeared to suggest during the trial that she had foot issues that were caused by the Fall, and she relied on an assessment report in this regard. However, based on the same assessment report, Dr. Muhlstock attributed Ms. Kidane’s foot issues to the fact that she has a bunion. There is no evidence that Ms. Kidane’s bunion was caused by the Fall. c. Ms. Kidane argued at trial that issues that arose with respect to her nose in 2020-2023 were caused by the Fall, even though they occurred more than six years after the Fall and there is no evidence connecting them to the Fall. d. Ms. Kidane’s evidence at trial was that most of her health issues had been dealt with before the Fall and she was “doing quite well”. However: (a) she was happy to continue to receive ODSP and to rely on various medical conditions over the years to obtain various benefits (physiotherapy, special diet allowance, etc.); (b) approximately six months before the Fall, she complained to Dr. Abelsohn that she had to go slowly and that she had body pain after any physical activity; and (c) she had complained to her landlord that she was in pain everywhere.

[156] Ms. Kidane also had a tendency to rely on parts of medical records while ignoring other parts of the same record, to interpret medical records without having the expertise to do so, and/or to provide an interpretation of certain records that was not supported by their contents.

[157] I also accept Dr. Muhlstock’s evidence regarding observations that he made during his assessment of Ms. Kidane with respect to poor efforts and discrepancies/inconsistencies. For instance, Dr. Muhlstock noted that after he examined Ms. Kidane’s neck and took measurements, he saw her rotate her neck significantly more when she was distracted.

[158] In addition, I find that Ms. Kidane’s evidence regarding the extent of her injuries is undermined by the fact that she was able to host a doll-making workshop over two days at the end of January 2014, which was attended by four parents, including Ms. Tal. No doubt in order to attenuate the fact that she was able to host such a workshop despite her alleged injuries and pain, Ms. Kidane testified at trial that she had prepared the patterns for the dolls prior to the Fall. As stated above, I do not accept her evidence on this point, which is inconsistent with the e-mails that she exchanged with Ms. Tal. There is no discussion in the e-mails about a workshop with a number of parents until after the Fall. Thus, Ms. Kidane would not have had anything to prepare for a workshop before the Fall.

[159] I also note that in her e-mail responding to Ms. Cowie’s e-mail dated May 12, 2014, i.e., more than four months after the Fall, Ms. Kidane expressed an intention to start her daycare business in September 2014.

[160] While, as discussed below, I accept that Ms. Kidane was injured as a result of the Fall, it is my view that her evidence about her injuries must be approached with some caution in light of the above.

[161] I also approach with caution the statements made by Ms. Kidane to various medical practitioners over the years blaming the Fall for her various medical issues. While these statements are recorded in a number of medical reports/records as information provided by Ms. Kidane, the statements linking Ms. Kidane’s complaints to the Fall are not validated by the various medical practitioners. I also note that the statements are not always consistent. Further, as set out above, the numerous tests done by Ms. Kidane over the years were generally unremarkable.

[162] Finally, I give very little weight to the evidence given at trial by Ms. Kidane’s friends regarding her medical and physical condition prior to the Fall compared to her condition after the Fall. None of them knew the extent of her prior diagnoses and they were all very unclear on the timeline.

3. Injuries that Ms. Kidane would not have sustained “but for” the Fall

[163] Based on the evidence before me, including the evidence of Ms. Kidane and Dr. Muhlstock, the medical records generally, and more particularly the medical records related to her Fall (notably the Telehealth Ontario record, the emergency department record and Dr. Abelsohn’s notes of the January 13, 2014 appointment), I conclude that Ms. Kidane suffered the following injuries as a result of the Fall: a. minor head injury/concussion, including headaches, dizziness and nausea; b. soft tissue injuries to her neck, shoulders, back, right arm (including her right elbow), right leg and knee, right rib cage, and pelvis and hip girdle; and c. low mood.

[164] I also conclude that there is no evidence supporting a causal link between the Fall and the following injuries alleged by Ms. Kidane in her closing submissions: a. Cognitive deficits: The evidence before me does not establish that Ms. Kidane is suffering from cognitive deficits, or that any such cognitive deficits were caused by the Fall. b. Dislocation of TMJ and general mouth pain: There is no evidence that Ms. Kidane complained of pain in her jaw or mouth after the Fall or reasonably soon thereafter. The evidence is that she hit the back of her head when she fell, not any other parts of her head or face. Further, the first time that she went to see her dentist after the Fall was at the end of May 2014, i.e., almost five months after the Fall. Dr. Adler’s evidence was that Ms. Kidane’s jaw was not dislocated at that time because she was able to close her mouth. While he noted that Ms. Kidane was experiencing facial, mouth and neck pain, among other things, there is no evidence before me that would allow me to infer causation between these issues and the Fall, especially since there are potential other causes, including Ms. Kidane grinding her teeth. I also note that there is no evidence before me that but for the Fall, Ms. Kidane would not be grinding her teeth. c. Chipped teeth and disfigurement of the tongue: There is no evidence before me of injuries to Ms. Kidane’s tongue. The statements in paragraph b. above generally apply to the alleged injuries of chipped teeth and disfigurement of the tongue. There is no evidence that Ms. Kidane complained of issues with her teeth and tongue after the Fall or reasonably soon thereafter. The evidence is that she hit the back of her head when she fell, not any other parts of her head or face. Further, the first time that she went to see her dentist after the Fall was at the end of May 2014, i.e., almost five months after the Fall. d. Right eye, right inner ear and nose: For reasons similar to the reasons stated above in paragraphs b. and c., there is no evidence before me that would allow me to infer causation between these issues and the Fall. e. Dislocation of shoulder: There is no evidence that Ms. Kidane dislocated her shoulder as a result of the Fall or at any other time. She was examined by numerous doctors over the years and there is no record of a dislocated shoulder anywhere. Ms. Kidane relies on hearsay evidence from Dr. Ling, who practiced traditional Chinese medicine and is not a medical doctor. Dr. Ling did not testify at trial and, as stated above, his files and records were not produced.

[165] Thus, I conclude that the injuries that Ms. Kidane would not have sustained but for the Fall are a minor head injury/concussion, soft tissue injuries to various parts of her body, and low mood.

4. Duration of injuries

[166] The next question is how long the injuries caused by the Fall lasted. On this point, I accept Dr. Muhlstock’s evidence that any soft tissue or musculoskeletal injuries sustained by Ms. Kidane as a result of the Fall would have since healed, but that her pre-existing condition may have served to prolong her recovery from soft tissue injuries sustained in the Fall.

[167] In light of: a. Dr. Muhlstock’s evidence that soft tissue injuries normally heal within three months; b. Ms. Kidane’s pre-existing medical issues, including depression, chronic pain syndrome, chronic fatigue, chronic low back pain and body pain more generally; c. Dr. Muhlstock’s evidence that Ms. Kidane’s pre-existing condition may have served to prolong her recovery from soft tissue injuries sustained in the Fall; d. the requirement to take a robust and pragmatic approach to determining causation; e. the fact that scientific proof of causation is not required; and f. the medical evidence that was available at trial, as well as Ms. Kidane’s evidence, I find that the injuries caused by the Fall took up to one year (i.e., four times longer than usual) to heal or resolve. In my view, any injuries or symptoms experienced in 2015 and in the following years cannot be causally linked to the Fall based on the evidence before me. I conclude that Ms. Kidane would have experienced such injuries and symptoms in any event, in the absence of the Fall, as a result of the debilitating effects of her pre-existing conditions and/or as a result of new occurrences that are unrelated to the Fall.

[168] Thus, I accept Dr. Muhlstock’s opinion that Ms. Kidane’s “current complaints and physical condition are much more likely related to her pre-incident conditions as opposed to any minor soft tissue injuries sustained in the subject incident.” I note that the medical records are consistent with this conclusion. The medical records in 2015 and in the following years do not support any physical impairments related to the Fall, and the pain and symptoms that Ms. Kidane complained about were consistent with her prior diagnoses of chronic pain syndrome and fibromyalgia.

5. Claim for general damages

[169] In light of my findings that the injuries suffered by Ms. Kidane as a result of the Fall would have resolved within a year and that any injuries or symptoms experienced in 2015 and in the following years cannot be causally linked to the Fall, the cases relied upon by Ms. Kidane in support of her position on the issue of general damages are factually distinguishable.

[170] After considering the cases cited by the parties, their similarities and differences with the case at bar, as well as the date on which they were decided, I conclude that the appropriate award of general damages in this case is $45,000.00.

6. Claim for future care costs

[171] Given my conclusion that any injuries or symptoms experienced in 2015 and in the following years cannot be causally linked to the Fall, there is no basis for an award for future care costs. In any event, Ms. Kidane did not adduce evidence supporting such an award.

7. Claim for out-of-pocket expenses

[172] As for out-of-pocket expenses, the expenses that were incurred by Ms. Kidane in 2014 for which there was some evidence connecting them to Ms. Kidane’s injuries total $161.05, more specifically: $78.30 for prescription drugs, $12.75 for taxis and $70.00 for physiotherapy exercise classes.

8. Claim for loss of income

[173] Given that Ms. Kidane’s allegation that she would have earned income from a daycare business is a hypothetical possibility, she is only required to establish a real and substantial risk of future pecuniary loss: see Graham v. Rourke (“Graham”).

[174] A plaintiff who establishes a real and substantial risk of future pecuniary loss is not necessarily entitled to the full measure of that potential loss. Compensation for future loss is not an all-or-nothing proposition. Entitlement to compensation will depend in part on the degree of risk established. The greater the risk of loss, the greater will be the compensation. The measure of compensation for future economic loss will also depend on the possibility, if any, that a plaintiff would have suffered some or all of those projected losses even if the wrong done to the plaintiff had not occurred. The greater this possibility, the lower the award for future pecuniary loss. See Graham.

[175] In this case, I am satisfied that the evidence establishes a real and substantial possibility that Ms. Kidane would have started a daycare business in 2014. Ms. Kidane’s evidence on this point is confirmed by a number of sources, including a number of witnesses.

[176] Given my finding that the injuries suffered by Ms. Kidane as a result of the Fall would have resolved within a year and that any injuries or symptoms experienced in 2015 and in the following years cannot be linked to the Fall, Ms. Kidane is only entitled to damages for loss of income for 2014.

[177] With respect to the calculation of such damages, I do not accept a number of the assumptions on which Ms. Kidane’s claim is based: a. I do not accept that Ms. Kidane would have been ready to start her business in March 2014. Her progress was extremely slow over the years, and she still had a number of issues to deal with before she could start, including: advertising her daycare business, interviewing families, finding someone to replace her if she was sick or could not work on a particular day, have a system installed to open the door of her apartment from upstairs, obtaining insurance, and making arrangements to be able to accept subsidies. In my view, May 2014 is a more realistic start date. b. I do not accept that Ms. Kidane would have had five children registered (i.e., be at maximal capacity) right from the beginning. The fact that her prior advertisement “campaigns” generated limited interest (three families in 2008 after putting flyers in the neighborhood and one family in 2013 after putting an ad on Kijiji) shows that a longer period of advertisement would have been required. In my view, Ms. Kidane may have been able to start with two children in May 2024, with an increase to four or five children in the fall. c. Ms. Kidane’s calculations in her chart do not include all appropriate deductions, contingencies and expenses and/or some expenses appear to be understated (i.e., insurance costs). I also note that Ms. Kidane assumes that she will earn income in relation to five children for 52 weeks of the year, without taking into account holidays and vacations.

[178] Further, I agree with the City’s submission that had Ms. Kidane operated a daycare in her apartment from May to December 2014, she would not have been able to have a roommate starting in September 2014. Therefore, the rent received from her roommate – $1,800 ($450 x 4 months) – must be deducted.

[179] I also agree with the City that Ms. Kidane’s ODSP benefits have to be deducted. See M.B. v. British Columbia, 2003 SCC 53 at paras. 28, 31, 33, 43, and Barker v. Barker, 2021 ONSC 158 at paras. 121-124. In 2013, Ms. Kidane received $14,648.00 in ODSP payments, which amounts to approximately $1,220.67 per month. These benefits must be deducted from the income that Ms. Kidane alleges she would have earned. The appropriate deduction in the event Ms. Kidane had operated a daycare business during eight months in 2014 is $9,765.36 ($1,220.67 x 8).

[180] Based on the changed assumptions above regarding the start of the business and the number of children involved and Ms. Kidane’s evidence that she would have charged $250 per child per week, I find that Ms. Kidane would have earned a gross income of approximately $27,000.00 in 2014. After deducting the rent received from her roommate, her ODSP payments and her rent for 8 months ($6,601.60), this leaves $8,833.04. After deducting other expenses identified by Ms Kidane in her chart (including hydro, phone, website, internet, insurance, food, arts and craft supplies, and assessment fee by the North American Waldorf Association), there is a real issue as to whether there would be anything left given the fact that Ms. Kidane’s calculations do not include all appropriate deductions, contingencies and expenses. In light of the foregoing, the only real and substantial risk of future pecuniary loss that I am prepared to find is in the amount of $4,000.00.

D. Conclusion

[181] Accordingly, the City is ordered to pay to Ms. Kidane $45,000.00 in general damages, $4,000.00 for loss of income and $161.05 for out-of-pocket expenses, i.e., a total of $49,161.05.

[182] If costs cannot be agreed upon, Ms. Kidane shall deliver submissions of not more than four pages (double-spaced), excluding the bill of costs, by May 13, 2024. The City shall deliver its responding submissions (with the same page limit) by May 27, 2024. Ms. Kidane may deliver reply submissions of not more than two pages (double-spaced) by June 10, 2024. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines. I ask that counsel for the City assist with uploading Ms. Kidane’s costs submissions onto CaseLines.

Vermette J. Released: April 29, 2024

Footnotes

[1] This amount is in excess of the amount sought in the Statement of Claim which is $1 million.

[2] The City has resolved the subrogated claim brought on behalf of OHIP.