Calahasen v. Northland School Division No. 61, 2012 ABQB 611

Court of Queen ’ s Bench of Alberta Citation: Calahasen v. Northland School Division No. 61, 2012 ABQB 611 Date: 20121009 Docket: 0504 00080 Registry: Grande Prairie Between: Joseph Calahasen and Her Majesty the Queen In Right of Alberta Plaintiffs - and - Northland School Division No. 61, Earl Auger, Dustin Cardinal, Joseph Cardinal, Candace Cardinal, John Doe AKA “ Puff ” John Doe 1, John Doe 2, Jane Doe 1 and Jane Doe 2 Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A. G.

Park _______________________________________________________ Judgment [ 1 ] The intriguing issues arising in this assessment of damages against two of the named Defendants, Dustin Cardinal and Earl Auger, relate to a proper recompense to be awarded to the Plaintiff (Calahasen) as a result of their senseless assault on his person. [ 2 ] Calahasen left his home in Grouard, in the Province of Alberta in the early morning hours of February 9, 2003 to confront a group of people who were throwing rocks and discharging pellet guns at the home. Once outside a larger group of people materialized.

This group seized him and threw him to the ground. He believed 15 to 20 people began to punch, kick and strike at him with baseball bats. He was able to identify two of the assailants. The two were the Defendant, Dustin Cardinal (Cardinal), and the Defendant, Earl Auger (Auger).

[ 3 ] Cardinal was charged and convicted of criminal assault upon Calahasen. Auger was charged with criminal assault upon Calahasen but the Crown eventually entered a stay of proceedings on those charges. Despite the stay of proceedings entered against him, Auger has chosen not to file a Statement of Defence in this action, as did Cardinal, and both of them have been noted in default. [ 4 ] The Northland School Division No. 61, Joseph Cardinal and Candace Cardinal reached a settlement of damages with Calahasen.

Calahasen now agrees that any damages awarded against Cardinal and Auger be reduced by the funds received pursuant to the settlement agreements executed between him and the Northland School Division No. 61, Joseph Cardinal and Candace Cardinal. [ 5 ] Calahasen was 40 years of age at the date of the assault, having been born on October 20, 1962. He and his wife lived in the home at the time with their four children, now aged between 19 years and 24 years.

The home had been provided to them for a residence (teacherage) as a result of his wife’s employment with the Northland School Division No. 61. [ 6 ] Prior to October 2001, Calahasen, too, was employed with the Northland School Division No. 61 as a security guard, janitor and occasional substitute teacher. He volunteered in the community by coaching children. In October of 2001 he was assaulted in his employment as a security guard and he left his employment.

Since then he has not returned to work with the Northland School Division No. 61. [ 7 ] Due to limited employment opportunities in Grouard, Calahasen decided to upgrade his education. As a result in January of 2003 he enrolled at the Northern Lakes College with the hope of attaining a Computer Technician Certificate and working in that field of endeavour until his retirement. [ 8 ] However the assault of February 2003 ruined his educational hopes and his desire and ability to hold any type of meaningful employment.

His doctors advised him that he should not try to undertake any type of job which would be too physically demanding or would require tasks involving memory or extended mental concentration. [ 9 ] Since the 2003 assault he did obtain employment for 2 or 3 days at Falher Alfalfa, but he was not able to maintain that employments due to the injuries incurred. [ 10 ] As a result Calahasen is currently receiving Canada Pension Plan benefits as he is deemed not to be employable. [ 11 ] His Affidavit, filed in support of this assessment, disclosed he had worked all his life and did not expect to retire at an early age.

He could not indicate when he intended to retire but believed it likely that he would have continued working to age 65 or past 65 depending upon his employment. [ 12 ] The injuries incurred as a result of the 2003 assault have prevented his participation in sports such as fastball, floor hockey and in various outdoor activities. Prior to the assault he described himself as a physically active individual who enjoyed sports and outdoor activities. Further the injuries have prevented him from completing outdoor household physical tasks which were undertaken almost solely by him prior to the 2003 assault.

In addition his evidence disclosed his inability to perform the 50% of the household chores with his wife as he did prior to the assault. [ 13 ] The 2003 assault caused multiple injuries to Calahasen. Dr.

Vu, his family physician, described the injuries in a medical-legal letter of June 30, 2010 to Calahasen’s Counsel as follows: “Unfortunately he sustained significant facial and brain injury from the assault including basal skull fractures, brain contussion and facial fractures which included compound fracture of the nose, nasal ethmoid fracture, orbital floor fracture and multiple fracture of left zygomatic complex.

The patient underwent surgery on February 13 th , 2003 involving exploration of the orbital floor with reduction of the fractures, open reduction and internal fixation of zygomatic complex fracture using multiple plates and debridement and closed

reduction of the nose fracture. He experienced double vision for two years, because his left eye was lower than the right eye due to the orbital floor fracture of the left eye. He underwent surgery on March 2 nd , 2005 with Dr. Martin Giuffre to correct his dyplopia. The surgery on March 2 nd , 2005 involved exploration of the orbital floor with release of scar tissue, removal of a previously inserted malar plate with four screws; insertion of a medpor surgical implant orbital rim only graft. His dyplopia improved after the surgery.

He also had cognitive assessment on July 2005 by Occupational Therapist at High Prairie Hospital. His assessment showed that Mr. Calahasen has few difficulties with higher processing skills but significant difficulty with attention and subsequently short term memory. In

summary, the patient sustained a traumatic brain injury and facial deformity as a result of his physical assault on February 9 th , 2003 in Grouard. He suffered cognitive impairment including short term memory loss, difficulty with calculation and attention, as a result of this assault. He also experiences constant facial pain, especially with cold weather due to his facial fractures. He also experiences blurry vision and watery eyes from this assault. His brain injury and facial injury has been a life changing experience for him. He is not able to work. He has been on long term disability since 2003.

Currently he is taking Tylenol #4 on a regular basis to control his facial pain.” [ 14 ] In addition to the eye surgery Calahasen underwent further surgery to try to correct his facial deformities. Despite these surgeries he finds he still experiences blurred vision and, disappointingly, notes his face remains misshapen. [ 15 ] Both he and his health care providers report he has suffered and continues to suffer from depression, post traumatic stress disorder (PTSD), and post concussion syndrome. Calahasen has sought treatment from psychologist, Paul McGaffey in Grande Prairie.

McGaffey provided his diagnosis of Calahasen in an exhibit filed in this assessment, being a psychological-legal report to Calahasen’s Counsel, dated August 31, 2010. [ 16 ] McGaffey believed from his own assessment of Calahasen and the documents he reviewed, as listed in his report, that Calahasen:

a) suffered a moderate-severe traumatic brain injury (TBI).

b) continues to experience the negative consequences of the TBI in that he suffers from physical illness, depression and cognitive impairment, short term memory loss, calculation difficulty and attention difficulty.

c) suffered the attack directly in his role as guardian for the community school.

d) has his ability to heal distorted by his cultural identity and not by any lack of effort on his part.

e) the subsequent eight-year delay of intensive treatment for Calahasen has resulted in a significant further injury. [ 17 ] McGaffey believed that Calahasen is not a malingerer. Further he opined Calahasen’s inconsistency of behaviour and statements since the TBI reflects real change in brain capabilities. [ 18 ] McGaffey noted Calahasen met the criteria for a diagnosis of complex-PTSD by the time he left home as a young boy - some years before the 2003 attack. However McGaffey believed the 2003 attack catapulted this complex-PTSD from a manageable state into a severe disorder.

In summation McGaffey found due to the aboriginal cultural-effects experienced by Calahasen prior to the 2003 attack, the traumatic injuries magnified the pre-existing complex-PTSD into a formal long term disability which has proven to be a life changing experience.

[ 19 ] McGaffey’s diagnosis stated at p. 14: 1) Traumatic Brain Injury with Frontal, Temporal, and hidden Cerebellar insults. 2) Severe PTSD, with flashbacks, sleep-deprivation, chronic agitation, and panic attacks. 3) Moderately severe attention dysfunction, with dissociative episodes KNOWS. 4) Retarded function with moderately severe cognitive delay, due to TBI + related pain, & to prescription overuse - not primarily due to clinical depression. 5) Impairment of complex memory function, with some intact basic memory skills. 6) Acute exacerbation of culturally derived Complex PTSD. [ 20 ] McGaffey recommended a five year treatment plan for Calahasen at a minimum cost of $183,000.00.

Those recommendations included: 1. Relocate Calahasen away from the community where this trauma occurred; 2. Assist Calahasen urgently to rebuild his ability to sleep; 3. Assist Calahasen in all areas of pain management - most urgent is extensive dental work; 4. Set up and guide a family Healing Circle; 5. Gift, and work with a traditional Healer and Pipecarrier; 6. Travel to sessions with psychiatrist, pain clinic, therapeutic massage, physiotherapy, occupational therapy, psychotherapy; 7. Private psychotherapy; 8. Mindfulness-Based Stress Reduction (MBSR) training; 9.

Formal cognitive rehabilitation including balance training & Brain Fitness training utilizing a computer, and continuing neurobehavioral assessment (essential to guide rehabilitation); 10. Refer Calahasen to a DriveAble assessment in Peace River so that reaction time and visual scanning are assessed directly and then can be included within cognitive rehabilitation; 11. Refer Calahasen to neurologist Dr. Witt in Edmonton for extended EEG assessment of cortical irritability.

This is recommended to rule out the possibility that subtle seizure activity, known to occur with some TBI, is not using up Calahasen's energy; 12. Formal, independent, cognitive re-assessment is recommended after five years treatment; 13. In a spirit of extravagant hope, the only operating model for restoring Calahasen with his hometown community is the Tsuu T'ina Peacemaking Court (unique to Alberta, begun in the year 2000). [ 21 ] Provided as an exhibit in this damage assessment application was a neuropsychological examination and report by Dr. John F. Keegan, a clinical neuropsychologist in Edmonton, Alberta.

It was dated October 18, 2010 and was a rebuttal report requested by one of the defence Counsel representing Defendants other than Cardinal and Auger.

[ 22 ] Dr. Keegan holds a PHD in Clinical Neuropsychology. He is a Registered Psychologist. The report was his attempt to integrate history, behavioural observations and test results in order to render an opinion respecting Calahasen’s current functioning in certain areas and overall. [ 23 ] Keegan noted Calahasen did not complete junior high school but obtained a Grade 12 equivalent education at a community college. He observed Calahasen is currently receiving Canada Pension Plan disability benefits. [ 24 ] On his

interpretation of Calahasen’s medical records he formed the belief Calahasen suffered a mild traumatic brain injury which will ultimately result in a full neurological recovery. Keegan noted that there would be short term mild cognitive sequelae. [ 25 ] Keegan referenced McGaffey’s report which found:

a) traumatic brain injury with frontal, temporal and hidden cerebellar insults.

b) severe PTSD, moderately severe cognitive delay impairment of memory and exacerbation of culturally deprived complex PTSD. [ 26 ] Keegan differed from McGaffey’s

interpretation of a CT scan of July 22, 2006 which McGaffey suggested demonstrated lateral temporal lobe contusions on the left side and a left subdural hematoma of about 2 to 3 mm. However Keegan suggested that Calahasen likely sustained a significant brain injury subsequent to the 2003 assault. In this connection Keegan referenced a CT scan report and an MRI, both in 2004, which demonstrated no identifiable intracranial abnormality. As a result Keegan believed the 2006 noted intracranial abnormalities were likely acquired after 2004.

He further opined these abnormalities complicate the assertions made regarding brain injury sequelae and potential dysfunction arising subsequent to the 2003 assault. [ 27 ] In Keegan’s opinion the medical records suggest Calahasen possessed ongoing emotional adjustment problems at the time of the assault. Calahasen would be especially vulnerable from an emotional standpoint. Keegan believed the assault exacerbated Calahasen’s ongoing emotional adjustment problems. [ 28 ] Further he opined Calahasen’s self-reporting on his symptoms of PTSD is not credible and likely exaggerated.

In this connection Keegan found Calahasen reporting a number of symptoms consistent with a somatization disorder, PTSD and a major depressive disorder. Still Keegan noted Calahasen does suffer from the presence of PTSD. However Keegan questioned whether the PTSD was directly caused by the attack or rather was it caused by another stressor.

Because Calahasen’s history demonstrated that he experienced significant trauma before the 2003 attack, Keegan opined a diagnosis of the PTSD caused only by the 2003 attack, might be in error. [ 29 ] The overall impression of Keegan was that Calahasen demonstrated significant evidence of cognitive impairment which was quite disproportionate to any brain injury suffered in February of 2003. Keegan observed Calahasen reported significant post-traumatic stress and Keegan noted those self-reports must be viewed with caution since it is clear that Calahasen over-reported symptomology in the area. [ 30 ] In

summary Keegan expressed this view as set out at p. 22 of his October 18, 2010 report: “Overall, it is my view that Mr. Calahasen is not a reliable historian, nor could disability be established on the basis of either his self- report or performance of cognitive tests. I (sic) believe the medical records indicate ongoing anxiety problems and psychopathology related to aggression prior to the assault in question. That is, in the absence of that event, he would likely have psychological problems and anxiety and probably demonstrate cognitive impairment.

There is no substantive medical evidence that would support the contention that cognitive symptoms at this point are a consequence of brain injury suffered in February of 2003.

Another brain injury likely occurred subsequent to the 2003 head injury, and I suspect this due to the medical report dictated by Dr. Pope in 2006 identifying a subdural hematoma at that time. Given his history of fighting, it is possible that he had a head injury in a fight or some other accident that he has not reported, but that CT scan result is certainly not indicative of an old injury, especially in light of other evidence indicating normal imaging on two instances prior to the 2006 CT scan.

It has been suggested that all the trauma has related to the 2003 incident, but if he had another brain injury in 2006, there may also be significant psychological trauma associated with that. Clearly, we will need to get to the bottom of what occurred in 2006 and why Mr. Calahasen had a CT scan. I am definitely of the opinion that cognitive symptoms identified at this point are not due to a 2003 brain injury. Cognitive symptomatology could be related to ongoing psychopathology and psychological difficulties. It would certainly be my view that a significant assault would be contributory to that.

It would, in fact, be my view that if it is demonstrated that this assault occurred as reported, it would be materially significant in affecting Mr. Calahasen from an emotional standpoint. .... A suggestion made by Mr. McGaffey that Mr. Calahasen has brain damage in a variety of explicit areas is not supported by the clinical data or the medical history. The contention that his psychological state would be exacerbated by this assault is, in fact, supportable. In general, it is my view that his wife seemed to be a credible reporter.

One must keep in mind that she apparently has her own psychological issues, which might bear upon her approach to filling out these questionaires. At this point, it is my view that if Mr. Calahasen does have a bona fide problem, it is likely of psychological origin and not due to brain dysfunction. In an attempt to cry for help, he exaggerates his difficulties. In spite of this, I believe it is likely that he has difficulties. I will say, however, that he likely had difficulties of a psychological nature prior to the event in question related to persistent anxiety and fighting.

I do not believe his fighting was simply a consequence of his work. Repeated incidents noted in his medical chart suggest to me significant adjustment issues that were ongoing prior to the incident in question.” [ 31 ] At the request of the same defence counsel Dr. Keegan reviewed McGaffey’s report in a further report dated October 18, 2010 as well. He noted McGaffey had not obtained doctoral level status.

He further noted a deficiency of evidence in McGaffey’s academic background which would indicate McGaffey did not have the kind of clinical background and training and clinical psychology as he, Keegan, possessed. As such Keegan was suspicious of McGaffey’s understanding of clinical psychology. [ 32 ] Keegan observed McGaffey conducted minimal psychological testing and McGaffey provided no evidence that any measures were conducted to evaluate response bias of any kind. [ 33 ] In addition Keegan advised he had absolutely no faith in McGaffey’s psychometric evaluation of brain function.

Keegan’s observations noted a failure by McGaffey to perform psychometric testing to evaluate McGaffey’s suggestion that Calahasen is not malingering. [ 34 ] Keegan noted the lack of evidence provided by McGaffey to support McGaffey’s claim of damage to Calahasen’s prefrontal cerebellar amygdale memory storage centers. Rather Keegan advised McGaffey speculated such damage existed.

Finally Keegan noted, if such damage existed, there is the evidence from the 2006 imaging to suggest an intervening brain injury might have occurred. [ 35 ] Keegan opined McGaffey speculated when he advised Calahasen had an ongoing complex (PTSD) prior to the February 2003 attack and which complex PTSD was magnified by the February 2003 attack such that it changed from a difficulty to disability. [ 36 ] Keegan was critical of McGaffey’s suggestion that the behavioural dysfunction, including neurologically generated agitation, sleep deprivation and moderately severe memory dysfunction have their etiology in the traumatic brain injury.

Keegan opined that suggestion was implausible and inconsistent with the current understanding of the consequence of mild traumatic brain injuries. Keegan further noted localization of a frontal syndrome goes beyond McGaffey’s available data. [ 37 ] Keegan did not agree with McGaffey’s opinion that Calahasen suffered moderately severe attentional dysfunction attributable to the brain injury. Keegan did not attribute retarded function with moderately severe cognitive delay to brain injury. Rather Keegan

believed Calahasen’s premorbid vulnerabilities would be particularly affected by the trauma which, in turn, exacerbated Calahasen’s pre- existing emotional maladjustment problems. Finally Keegan indicated he did not accept McGaffey’s understanding of Calahasen’s condition and he did not support McGaffey’s recommendations for treatment. [ 38 ] In that both expert reports were provided in written form and in the absence of viva voce evidence it is difficult to assess the respective findings in each report.

Evidence provided in examinations-in-chief and subsequent cross-examination would assist in establishing the levels of each expert’s expertise, methodology and opinions. [ 39 ] However I do note that much of McGaffey’s expert opinion centered on self-reporting from Calahasen. Without the ability to observe Calahasen’s evidence in examination-in-chief and perhaps under cross-examination. I cannot establish the facts upon which McGaffey, in particular, finds, interprets and relies upon in his expert opinion.

Indeed I do agree with Keegan that in certain areas McGaffey relies upon Calahasen’s self-reporting and as a consequence McGaffey engages in speculation. Examples of such speculation include McGaffey’s observation at p. 3 of his report that the February 2003 attack related directly to Calahasen’s role as guardian for his community school. There was also a lack of evidence to demonstrate McGaffey’s belief that Calahasen’s cultural identity distorts his attempts to heal (p. 3 of the report).

Further I am concerned about the lack of an evidentiary foundation provided by McGaffey in his report when he set out at p. 4: “The job Joe hired himself into was that of a peacekeeper in the middle of an embattled community, and even worse, within a culture systematically disconnected from their traditional ways of keeping people safe.

In short, the tough love requirements of his job meant that he had to handle an unreasonable level of tension; Joe required, but did not get, specialized stress-environment training.” .... “His employer may have put Joe in harm’s way (Joe’s willingness to earn extra money is not an ethical excuse).” [ 40 ] Such statements lead to an inference they are speculative in nature and are based on Calahasen’s self-reporting. Other areas of concern centred on McGaffey’s historical characterization of Calahasen’s community, Grouard, as being bitter and violent. Again no evidence was provided to support this opinion.

Further McGaffey related Calahasen’s injuries were in some measure caused by cultural effects. He further related Calahasen’s paranoid and avoidant personality features are shared by those who were likewise raised by parent figures shaped by residential school experience. I am troubled by the lack of evidence provided by McGaffey when he makes such apparently sweeping generalized statements.

It would appear that he used various books, publications and pamphlets, as cited in his report, to demonstrate persuasively his avowed view that Calahasen’s injuries are defined by a consideration of aboriginal cultural standards. Indeed McGaffey sets out on p. 2 of his report in part the following: Intent In this report, I work to quantify Joe Calahasen's cognitive and psychological damages directly attributable to the attack of 9 February 2003. I have considered a lifespan dataset on which to base judgment regarding Mr.

Calahasen's injuries, including real-world complications such as those described Heartsong (Rupert Ross, 2009). In other words, this report does not take an exclusively normative stance, as neuropsychologists are conventionally asked to do, because the only "norms" available are majority-culture norms, which are not relevant in this case. Defining injury from a published-norms point of view does not allow consideration of aboriginal culture standards, nor the experiences of the subset of Canadian Indians who have suffered traumatic brain injury (TBI).

In addition, without a lifespan consideration, psychologists and psychiatrists often define Canadian Indian injury unrealistically, excluding possible effects of the intergenerational trauma that has become their norm over the last two generations. Since Federal acknowledgment of this wrong, such exclusion is indefensible in Canada. [ 41 ] As indicated I found McGaffey’s report to be a very subjective report based on certain speculations. [ 42 ] However there are common grounds to be found in the expert reports of McGaffey and Keegan.

It is clear that Calahasen suffered the following ongoing effects attributable to the attack: 1) Mild to moderate traumatic brain injury with complications (with Dr. Keegan suggesting an expectation of a full neurological recovery).

2) Ongoing depression, irritability and anxiety. 3) Post traumatic stress disorder (Dr. Keegan could not rule out a PTSD although he questioned its cause or stressor). 4) Post concussion syndrome (although Dr. Keegan expected short-term mild cognitive sequelea). 5) Significant facial fractures, deformities and disfigurement. 6) Basal skull fractures. 7) Dyplopia. 8) Shortened attention span due to cognitive impairment. (Dr. Keegan believed the demonstrated cognitive impairment is quite disproportionate to the brain injury suffered in the February 2003 assault. Rather Dr.

Keegan attributed a subsequent brain injury in 2006 provided significant psychological trauma and ongoing psychopathological and psychological difficulties.) 9) Short term memory difficulties due to cognitive impairment. 10) Calculation difficulties due to cognitive impairment. 11) Ongoing facial pain and sensory changes in face, back and legs. 12) Ongoing blurry vision and watery eyes. 13) Migraine headaches. 14) Ongoing lower back, hip, leg and forearm pain. 15) Decreased senses (touch, taste and smell). 16) Ongoing dizziness. 17) Ongoing balance problems. 18) Fatigue. 19) Decrease in appetite.

20) Reduced sexual activity. 21) Gait changes. 22) Decreased gross motor coordination. 23) Speech difficulties. 24) Exacerbation of emotional anxiety and stress difficulties which were present at the time of the attack. [ 43 ] It is common ground, despite the differing psychological reports of McGaffey and Keegan, that on the evidence Calahasen’s difficulties included an inability to participate in many of the daily activities he enjoyed prior to the assault. His life enjoyment is reduced. He has become reclusive. His sleep is interrupted frequently with nightmares involving the February 2003 events.

His life is one of frustration with his present condition and his concern he has become a burden to his wife, specifically, and to his family, generally. He notes his family, too suffers from deep emotional trauma which has prevented his wife from returning to work. Calahasen believes his two daughters suffer from depression and post traumatic stress disorder. He notes his sons suffer from a lack of trust due to their hatred spawned by the events of that night. In summation Calahasen believes his family was totally destroyed by the assault. [ 44 ] At the request of Calahasen, Dr.

Christopher Bruce of Economica prepared an expert opinion report detailing Calahasen’s loss of income based on three different scenarios. Dr. Bruce provided his understanding of the facts in the case and made what he believed to be appropriate assumptions to provide estimates of Calahasen’s pre-trial and future losses of income. These estimates were based on an assumed settlement date of this action, being December 1, 2010. On that date Calahasen was 48.12 years of age. [ 45 ] Dr.

Bruce noted Calahasen was prevented from returning to his janitorial employment at the Northland School in Grouard, Alberta as a result of an earlier stabbing incident at the school. Consequently Calahasen applied to Northern Lakes College in January 2003 for academic upgrading with the intention of pursuing a computer technician (information technology) certificate. Dr. Bruce set out Calahasen’s average income for the 1998-2001 period at $16,573.00 in 2010 dollars and the 1999-2001 period at $19,963.00 in 2010 dollars.

The year of 2002 was excluded due to Calahasen being stabbed and not able to return to work. [ 46 ] Dr.

Bruce assumed once Calahasen obtained a computer technician certificate, the average of the past income would likely not reflect the future potential. [ 47 ] Each of the 3 contemplated alternative scenarios quantifying Calahasen’s potential without incident income were set out on the following respective assumptions: Scenario #1 Assumption Calahasen would have completed his academic upgrading by June 27, 2003 and a further assumption the computer certificate program would be completed and employment found as a computer technician by January 2005.

As a result it was assumed from February 2003 to January 2005 this entire period of educational upgrading would have provided Calahasen with minimal employment income. Scenario #2 Assumption of earnings consistent with the past income of the 1999-2001 average. Scenario #3 Assumption of earning consistent with the past income of the 1998-2001 average.

[ 48 ] In scenario 1, Dr. Bruce used a Statistics Canada table derived from the 2006 census for average incomes in 2005 for male computer technicians in varying age groups in Alberta. Dr. Bruce adjusted the average incomes in those groups for the year 2005 by 24.98% to reflect the average income amounts in 2010 dollars. [ 49 ] Dr. Bruce made the following assumptions and projections at p. 6 of his expert report: “We assumed that Mr. Calahasen’s income in 2005 would have been consistent with the 20-24 year age category figure, or $24,354 in 2005 dollars ($30,438 in 2010 dollars). To project what Mr.

Calahasen’s annual income would have been over his work-life, we assumed he would have experienced income growth consistent with that of the income figures shown in the above table, assuming that the average income figures shown represent the average for the midpoint of the corresponding age group. However, we assume that he would have been 21 years “behind” the census data.

For example, we assume that at his age 48, he would have earned the income of an average 27- year-old (shown by the 25-29 year age category), or $37,384 (in 2010 dollars); at his age 53, he would have earned the income of an average 32-year-old (shown by the 30-34 year age category), or $50,111 (in 2010 dollars); and so forth. [ 50 ] In Dr. Bruce’s second scenario he assumed Calahasen would have continued to earn income consistent with his 1999-2001 income or $19,963.00 in 2010 dollars, starting August 1, 2003. In estimating Calahasen’s income over the pre-trial period Dr.

Bruce applied wage inflation for the industrial aggregate group. In a table set out at p. 7 of his report Dr. Bruce presented an estimate of Calahasen’s future without incident income path for the “1999-2001" average income scenario. He assumed no future increases other than economy-wide productivity (assumed to be 1% per year) and inflation. [ 51 ] In the third scenario Dr. Bruce assumed Calahasen would have continued to earn income consistent with his 1998-2001 income or $16,573.00 in 2010 dollars, starting August 1, 2003. In estimating Calahasen’s income over the pre-trial period Dr.

Bruce applied wage inflation for the industrial aggregate group. In a table set out at p. 8 of his report Dr. Bruce presented an estimate of Calahasen’s future without incident income path for the “1999-2001" average income scenario. Again he assumed no future increases other than economy-wide productivity (assumed to be 1% per year) and inflation. [ 52 ] Dr. Bruce employed a fringe benefits contingency of 3% in the “computer technician” scenario in that he assumed Calahasen would have received a modest benefits package in that occupation.

The fringe benefits included life, health, dental and disability insurance, health spending account and an employer funded pension plan. In the remaining two scenarios no fringe benefits contingency was included. [ 53 ] A 3% negative contingency for disabling injuries or illness was incorporated by Dr. Bruce. [ 54 ] Despite the overall median retirement age for males being 62 in the 1997-2001 period, Dr.

Bruce considered without incident retirement ages of 62 through 65 in his calculations on the assumption Calahasen may have retired later than age 62 due to commencing his career as a computer technician at age 43 in 2005. [ 55 ] Dr. Bruce assumed Calahasen will remain competitively unemployable for the remainder of his working life. This assumption was based on the understanding that since the attack Calahasen has not engaged in any meaningful employment. [ 56 ] In Table 7 of his report Dr.

Bruce calculated Calahasen’s estimated pre-trial loss of income, inclusive of pre-judgment interest, from February 10, 2003 to November 30, 2010 for each of the three scenarios. Scenario 1 provided a loss of $209,920.00; scenario 2 provided a loss of $135,208.00; and scenario 3 provided a loss of $111,979.00. [ 57 ] In calculating the estimated present value of future loss of income for Calahasen, Dr. Bruce incorporated assumptions concerning the discount rate which Calahasen will earn on his investments. At p. 12 of his report Dr.

Bruce stated: The discount rate reflects the real interest rate (the nominal rate net of inflation) that a plaintiff can expect to earn on his investments if he places his money in “risk-free” investment vehicles, such as GICs or Government of Canada bonds. These rates reflect the return that can be earned by an unsophisticated investor, net of any fees.

Dr. Bruce assumed a sliding real discount rate between 1.8% for that portion of Calahasen’s award held for 1 year and 3% for that portion of Calahasen’s award for 15 years. The rates were based on the returns available to purchasers of Government of Canada bonds of various terms. Finally Dr. Bruce incorporated a mortality contingency based on Statistics Canada’s 2000-2002 Life Tables. [ 58 ] In a table presented at p. 14 of his report Dr. Bruce summarized the estimates of Calahasen’s without incident future income streams and his potential future loss of income in each of the 3 scenarios.

Each scenario set out assumed retirement ages of 62 to 65 inclusive and each assumed retirement age revealed a future loss of income. There were 12 final figures presented which ranged from a low future loss of income based on the 1998-2001 average income with an assumed retirement age of 62 ($192,299.00) to a high future loss of income based on an employment as a computer technician with an assumed retirement age of 65 ($649,895.00). [ 59 ] Dr.

Bruce proceeded to employ a multiplier approach in which Calahasen’s potential future with incident income was calculated by multiplying an assumed constant annual income by a constant (a multiplier). Using the multiplier and employing Calahasen’s age at the assumed date of settlement (48.12); an assumed retirement age of 65; the discount rate and mortality assumptions, Dr. Bruce calculated the present discounted value of Calahasen’s potential future loss. For example Dr.

Bruce found using the 1999-2001 average income; and the pre-trial loss of income $135,208.00; (scenario 2) and assuming Calahasen retired at age 65, the future loss of income would amount to $269,087.00. Combining the pre-trial loss of income and the future loss of income Dr. Bruce found a total loss of income for Calahasen of $404,294.00 in this scenario. [ 60 ] In his expert report Dr.

Bruce provided a multiplier of 19.105 to be employed by the Court to determine the present value of a given annual cost for future care from Calahasen’s age at the assumed date of settlement, (48.12), for the rest of Calahasen’s life. [ 61 ] Next Dr. Bruce provided a multiplier of 18.035 to be employed by the Court to determine the present value of the future costs of household services. Dr.

Bruce advised this multiplier approach can only be used to estimate the present value of a stream of future annual constant costs (except for inflation) from the assumed date of settlement until Calahasen reached 80 years of age when it was assumed household services would no longer be required. [ 62 ] Finally Dr.

Bruce provided a table to be used to determine judgment interest applied to special damages and a table to be used to apply inflation adjustment factors for non-pecuniary damages. [ 63 ] A rebuttal report as requested by one of the defence counsel representing Defendants other then Cardinal and Auger was prepared on October 22, 2010 by Darren Benning, President of PETA Consulting Ltd.

It provided a series of past and future income loss multipliers applicable to Calahasen using the date of the attack, Calahasen’s date of birth and a reference date for calculation purposes of December 6, 2010 (the assumed settlement of this action). [ 64 ] Benning provided a very detailed and researched report dealing with Calahasen’s income over the 1998-2006 period. It included his T4 earnings, social assistance payments, other income, WCB Benefits; EI Benefits, RRSP Income and CPP Benefits.

From this Benning estimated Calahasen’s annual average earnings between January 1, 1998 and the date of the attack as $17,874.00. Benning assumed if Calahasen worked to age 65, and using those annual earnings of $17,784.00 that Calahasen’s present value of total past without incident earnings would amount to $135,824.00. Similarly Benning estimated Calahasen’s total future without incident earnings would amount to $216,704.00. Combining the two amounts it can be determined Calahasen’s total losses would be $351,528.00. [ 65 ] Benning offered critical comments in a further report of October 22, 2010 on Dr.

Bruce’s estimates of pecuniary damages. Two comments make particular sense. They are stated as follows at p. 2 of Benning’s October 22, 2010 report: “With regards to the estimates of earnings assuming that Mr. Calahasen would have completed training as a Computer Technician, we note that while the Census earnings values for all Alberta males in this occupation may be applicable if it was assumed that Mr. Calahasen would have left Grouard and been willing to work in the larger metropolitan centres (i.e. Calgary and Edmonton), these earnings may be an overstatement of Mr.

Calahasen's earnings had he chosen to remain in Grouard or the Slave Lake area. For example, data from the 2006 Census indicates that natives living on reserves earn less than those living off-reserve. One of the contributing factors to this discrepancy is that natives living in larger metropolitan centres have more economic opportunities than those living in remote, rural communities.

In this regard, we also note that the average on-reserve native male aged 40-64 years earned about $24,499, with a complete high school education (expressed in year 2010 dollars). This earnings value is in excess of Mr. Calahasen's average pre-accident earnings, which we estimate to be about $17,784, in 20l0 dollars. As such, prior to the accident, Mr. Calahasen was earning less than the average earnings (contingency adjusted) of native males living on-reserve with a high school diploma. Therefore, if Mr.

Calahasen upgraded his education and remained living in Grouard, he may not have the same opportunities as the average Alberta Computer Technician, as suggested by Economica. In this regard, we note that the average Alberta native male with PSNU training and living on-reserve earned $26,858 on average. [ 66 ] Calahasen deposed in his Affidavit that since the assault he has been unable to complete many household activities which he carried out prior to the assault.

He indicated he performed all outdoor activities and shared 50% of the household chores with his wife prior to the assault. [ 67 ] Ashley Saastad, an Occupational Therapist, provided an occupational therapy report dated July 5, 2010 respecting Calahasen’s physical capabilities. She opined on his functional capacity and gave a future cost of care assessment. [ 68 ] In his Affidavit Calahasen noted certain of Saastad’s recommendations have not been pursued by him due to his indigent circumstances.

However Calahasen noted he and his health care providers believe the recommendations set out by Saastad would assist him in his rehabilitation and daily life. [ 69 ] Saastad summarized her functional capacity evaluation of Calahasen at p. 26 of her report.

She believed he continues to be restricted in the following: - Moderate restriction in whole body endurance - Restricted to lifting or material handling in the light physical demands of work with some ability in the higher, medium level - Moderate restriction in attention and concentration - Severe restriction in short term memory - Moderate restriction in logical reasoning - Minor restriction with mood and affect regulation and aggression regulation - Moderate restriction with task initiation, completion, and distractibility - Severe restriction in multi-tasking - Moderate restriction with planning and sequencing and organization - Moderate restriction with problem solving and decision making - Moderate restriction with route finding and navigation. [ 70 ] Saastad set out a cost of future care report based on her assessment of Calahasen’s abilities and limitations and her review of the medical reports of his treating medical professionals and therapist.

It was a needs based approach which sought to maximize his independence; prevent his functional deterioration; and to provide replacement services for those tasks which he is unable to do. The report recognized Calahasen is safely able to work within a light level of work as long as his cognitive deficits are recognized in that level. [ 71 ] In addition Calahasen seeks damages for travel costs to and from medical attendances from his home. Finally he seeks interest pursuant to the Judgment Interest Act , R.S.A. 2000 c. J-1 and costs and disbursements pursuant to

Schedule C of the Alberta Rules of Court . Reasons

[72] It must be noted at the outset that Cardinal and Auger are not bound by any settlement agreement of damages between thePlaintiff, Calahasen, and the Defendants, the Northland School Division No. 61, Joseph Cardinal and Candace Cardinal.

Rather anydamages awarded against Cardinal and Auger will be reduced by the funds received under that settlement agreement. [73] I find Calahasen’s injuries suffered at the hands of Cardinal and Auger are as set out at para. 41 of these Reasons. [74] Further it is observed that Calahasen suffers ongoing difficulties as found at para. 42 of these Reasons and as furthersummarized in Saastad’s Functional Capacity Evaluation Report at her p. 26. [75] Calahasen has suffered serious physical, emotional, psychological and cognitive injuries.

Some of the injuries are permanent.His psychological and emotional problems are ongoing at this date. I do recognize that the assault exacerbated his emotional difficultiesinvolving anxieties and stress which were present at the time of the attack. It is evident Calahasen has suffered significant painimmediately after the attack and continues to suffer pain as a result of these injuries. His enjoyment and quality of life have been severelycompromised. As well his family has suffered in immeasurable ways.

General Damages [76] Counsel for Calahasen submitted an appropriate award for general damages would be in the range of $125,000.00 to$150,000.00. That is not an unreasonable submission. In my opinion taking into consideration his injuries and ongoing disabilities asuitable award for general damages for Calahasen is a sum of $135,000.00 and he is awarded that amount against Cardinal and Auger ona joint and several basis. Punitive Damages [77] Calahasen seeks an award for punitive or exemplary damages in the range of $25,000.00 to $50,000.00.

The conduct ofCardinal and Auger towards Calahasen was vicious and outrageous. Their conduct must be punished. This punishment reflects society’scondemnation of their behaviour. In addition it is hoped such punishment might invoke the concepts of general and specific deterrence toCardinal and Auger, and possibly other persons, to prevent engaging in such callous behaviour in the future. In assessing the wrongdoingof Cardinal and Auger there are factors which enter into an assessment of an award for punitive damages.

These factors promote theprinciples of rationality and proportionality in arriving at the quantum of the award. The factors include: 1) the blameworthiness of Cardinal and Auger. 2) the degree of vulnerability of Calahasen. 3) the degree to which the misconduct was directed at Calahasen. 4) the need for deterrence. 5) other sanctions levied against Cardinal and Auger. See Whiten v. Pilot Insurance Co., (2002), 2002 SCC 18 , 209 D.L.R. (4th) 257 S.C.C.

[ 78 ] In the case at bar it has been established Cardinal and Auger were blameworthy in directing their conduct towards the vulnerable Calahasen. In my view an appropriate award for punitive damages is $35,000.00 and I award that amount against Cardinal and Auger on a joint and several basis. Past Loss of Earnings [ 79 ] Calahasen submitted his claim for past loss of earnings receive an award in the range of $135,000.00 to $209,000.00 pursuant to the expert opinion of Dr.

Bruce. [ 80 ] It is most difficult to calculate loss of income without hearing the viva voce evidence, both in examination in chief and subsequent cross examination, of each expert. However I have had the benefit to read fully the expert reports of Dr. Bruce and Benning. [ 81 ] I prefer the report of Benning over Dr. Bruce in this head of damages. I note that Dr. Bruce excluded the year 2002, from his estimate of Calahasen’s average pre-incident earnings on the basis that Calahasen had been injured in 2002 and was unable to work. However Benning noted Calahasen reported his T4 earnings in 2002.

Using the T4 reported earnings is a more detailed and thorough approach. Further Benning in estimating Calahasen’s pre-accident earnings, employed all sources of Calahasen’s income to the date of the assault. Dr. Bruce did not. Dr. Bruce employed a Statistics Canada table in his scenario 1 and restricted Calahasen’s income average to the years 1999-2001 in his scenario 2, and restricted Calahasen’s income average to the years 1998-2001 in his scenario 3. Dr. Bruce’s estimate is not as thorough as Benning’s estimate.

In that Benning employed a more detailed approach, I intend on using his estimate for Calahasen’s annual average earnings between January 1, 1998 and the date of the assault. That estimate amounts to $17,874.00 annually. Accordingly $134,824.00 is Calahasen’s present value of total past without incident earnings as set out in Benning’s table at p. 6 of his report. That amount of $134,824.00 assumed Calahasen would work until age 65. [ 82 ] I find based on Calahasen’s Affidavit evidence that he did not plan for early retirement and that he will work to age 65.

I note that sum of $134,824.00 almost compares to the sum of $135,208.00 using Dr. Bruce’s second scenario of the 1999-2001 average income. Accordingly I award Calahasen the sum of $134,824.00 as the present value of his past loss of earnings. Future Loss of Earning Capacity [ 83 ] I find Calahasen would likely have obtained his computer technician designation and he would have worked until his 65 th birthday. In calculating Calahasen’s future loss of earning capacity I prefer Benning’s approach over the approach of Dr. Bruce respecting the estimates of average earnings for a computer technician. Dr.

Bruce used earnings of the average computer technician in Alberta. However I rely on Benning’s comments set out earlier in these Reasons and as found at p. 2 of Benning’s report of October 22, 2010. [ 84 ] I saw no evidence that Calahasen intended to move away from his aboriginal reserve and go to a larger non-aboriginal population centre in order to ply a trade of computer technician. In this sense I will use Benning’s average income level of $26,858.00 for Calahasen as an average Alberta native male with PSNU training.

I further use Benning’s analysis of survival rates; discount rates; real interest rate; and productivity rate as set out and explained at ps. 3, 4, 5 and 6 of his report of October 22, 2010. Applying $26,858.00 as Calahasen’s assumed earnings as a computer technician living on the aboriginal reserve and using Benning’s actuarial multiplier to age 65 of 12.124 (Table 1 of Benning’s report), Calahasen’s present value of total future loss of earning capacity will amount to $325, 262.00.

He is awarded that sum. [ 85 ] As a result Calahasen’s award of total loss of income is $460,086.00 and he will have judgment for that amount against Cardinal and Auger jointly and severally. Future Cost of Care [ 86 ] Calahasen claims damages based on present day values for future cost of care. In support of this head of damages he relies on the exhibit report of Ashley Saastad. Saastad’s recommendations start at p. 28 of her report and continue to p. 35 of her report. She reached the following conclusion at p. 35:

“CONCLUSION Mr. Joseph Calahasen sustained several facial lacerations to the face and head, bruising and abrasions to the body, fracture of the left zygomatic arch, left maxillary sinus, and complete opacification of the left maxillary atrum, and significant soft tissue swelling over the left temporal area as well as cortical contusions involving the cerebral cortex underlying the vertex, resulting in surgical repair, as a result of the assault on February 9, 2003.

His self-reported limitations include pain in face, migraines, pain in lower back, hips, legs, and forearms, decreased senses (touch, taste, and smell), anxiety, photophobia, difficulty with near vision, difficulty with memory and processing skills, as well as route finding. These symptoms coupled with clinical observations and results of the FCE are consistent with the medical reports reviewed. Mr. Calahasen is currently not working. As a result of the assault he is unable to complete most instrumental activities of daily living.

His current limitations include that of activities involving multiple step instructions, route finding, a high level of judgment or fast processing speed, as well as short term memory. FCE functional demands identify that Mr. Calahasen is safely able to work within a light level of work. However one must take into account his cognitive deficits even if the task only involves a light level of work. This evaluation was completed in Mr. Calahasen's home on June 28, 2010. I believe this report to be an accurate reflection of his abilities and limitations.

His physical and cognitive deficits prevent him from completing his customary roles (including paid and unpaid work) and enjoying activities he did prior to the accident. It is reasonable to provide him with the supports and services he requires to increase his functional activity level and to complete the tasks he is no longer able to do. His reported limitations and abilities were consistent with the medical reports reviewed and the results of this evaluation.” [ 87 ] Attached to her report is a “blue sky”

schedule of costs which sets out a number of items and their associated purpose and present day costs. Needless to state I am not in agreement with all of her proposed future cost of care items. However I will reference all items in the schedule. I will determine the cost as provided in the

schedule for those items I find necessary in order to assist Calahasen in his future care due to his present disabilities. Conversely I will list and provide reasons for those items in the

schedule which I believe are not necessary or superfluous for his future care. Item Number Description Total Cost 1.1 Multidisciplinary Pain Clinic $20, 679.15 1.4 Occupational Therapy $21,840.00 1.6.1 Psychiatrist No Cost 1.7 Dental Exam $177.20 1.8 Optometrist 15 yearly exams between ages 50 to 65 at a cost of $120.00 per exam. After age 65 Alberta Health Care plans will cover the yearly cost for Calahasen as a senior $1,800.00 1.9 Personal Trainer $2,665.00 2.1 Brain Injury Support Group No Cost

3.1 Rehabilitation or Support Worker - Allowed 9 hours for 48 weeks including 1 hour per travel time for 15 years at $25.00 per hour $162,000.00 3.1 Rehabilitation or Support Worker - Mileage - Round Trip (High Prairie to Grouard) 66 km X 51¢ per km = $33.66 per trip X 3 trips per week $72,705.60 4.3 Home and Yard Maintenance Allowed 4.2 hours per week for 52 weeks per year at $32.00 per hour cost for 15 years to age 65 $104,832.00 5.1 Electronic Organizer (3G iPhone) One every 5 years from 50 years of age to age 75 Present Day Cost $550.00 $2,750.00 5.2 Consumable Memory Tools $80.00 per year from 50 years of age to age 75 $2,000.00 5.3 Folding Treadmill $2,066.00 5.4 Free Weights $50.00 5.5 Sunglasses $50.00 per pair annually from 50 years of age to age 75 $1,250.00 5.6 Stove Guard $359.95 TOTAL: $395,174.90 [ 88 ] I disallowed the unknown expense for further treatment by a neuropsychologist to identify the extent of Calahasen’s injury and present specific impairment.

I reached that conclusion based upon the thorough assessment and final opinion rendered by Dr. Keegan. Dr. Keegan identified the extent of Calahasen’s injury and Calahasen’s specific impairments. In my view there is no necessity for a further assessment as posed by Saastad. Finally, respecting Saastad’s concern that such an assessment will be helpful to determine if Calahasen will be able to be gainfully employed in the future, it must be noted both economists assumed he is competitively unemployable in calculating his future loss of income.

I awarded him a future loss of income based upon that assumption. [ 89 ] Similarly I disallowed the expense of a vocational counsellor to assist in determining if Calahasen can find a suitable career. I used the economists’ assumption he is competitively unemployable and provided him a future loss of income based on that assumption.

I would reckon his occupational therapist or his rehabilitation or support worker would provide him guidance in finding a suitable career if he is employable on a full time or a part time basis in the future. [ 90 ] I disallowed the recommendation for a recreational therapist to spend 12 hours with Calahasen to identify some positive recreation activities or hobbies. Such a recommendation would come some 9 years after the attack and would seem to have a limited value at the present time.

Further it would be hoped Calahasen can determine his own recreational activities and hobbies himself with the assistance of his family, friends, occupational therapist, psychiatrist, personal trainer and rehabilitation worker. [ 91 ] Finally the need for a clinical psychologist was not allowed due to Dr. Keegan’s expert opinion and the assistance to be provided to Calahasen through the services of his psychiatrist, occupational therapist, rehabilitation worker and his other health care

providers. [ 92 ] Calahasen’s claim for future loss of housekeeping capacity was decided in the award for future cost of care compiled by Saastad. [ 93 ] Past loss of housekeeping capacity is calculated from the date of the attack until Calahasen reached 50 years of age. Calahasen’s Counsel submitted Calahasen should receive an award based on 4.2 hours per week for 52 weeks at $25.00 per hour. Using those figures as a basis for calculation for a 9 ½ year period from the approximate date of his return home after the attack to October 20, 2012 (his 50 th birthday) would equate to $51,870.00.

I award him that amount. I further note there is authority that an award for general damages encompasses a claim for past loss of housekeeping capacity. I do not follow that line of authority in this case due to the special circumstances involved here. [ 94 ] Calahasen is awarded $7,690.00 representing his travel costs for medical attendances to and from his home in Grouard as based on para. 42 of his Affidavit. [ 95 ] Calahasen is awarded interest pursuant to the Judgment Interest Act , R.S.A. 2000 c. J-1 save and except for the award based on past and future loss of earnings.

The experts made an allowance for pre-judgment interest in their opinions and which opinions I relied upon in reaching my award in that area. [ 96 ] Calahasen is awarded his taxable costs and disbursements pursuant to

Schedule C of the Alberta Rules of Court . [ 97 ] Finally it must be recognized again that the total damages award of $1,084,820.90 against Cardinal and Auger on a joint and several basis is reduced by the funds received pursuant to the settlement agreements between Calahasen and the Northland School Division No. 61 and Candace Cardinal and Joseph Cardinal. Heard on the 6 th day of February, 2012. Dated at the City of Calgary, Alberta this 2 nd day of October, 2012. A.G. Park J.C.Q.B.A. Appearances: Owen A. Lewis of Kay McVey, Smith & Carlstrom LLP for the Plaintiffs