Jones v Stepanenko, 2016 ABQB 295

Court of Queen ’ s Bench of Alberta Citation: Jones v Stepanenko, 2016 ABQB 295 Date: 20160527 Docket: 1001 14809 Registry: Calgary Between: Jessica Jones Plaintiff - and - Jelena Stepanenko, Nikolajs Stepanenko and Honda Canada Finance Inc. Defendants _______________________________________________________ Oral Reasons for Judgment of the Honourable Madam Justice K.M. Eidsvik _______________________________________________________ Introduction [ 1 ] The Plaintiff, Jessica Jones, seeks compensation for the injuries she suffered in severe rear and front end collisions on August 18, 2009.

The Defendants Stepanenkos (the Defendants) admit liability for the collisions. The action against the Defendant Honda Canada Finance Inc. was discontinued before trial.

The Collisions [ 2 ] Ms. Jones was a 19 year old nursing student, about to enter 2 nd year at Mount Royal College in Calgary, on August 18, 2009. She was stopped at a red light in her 2003 Honda Civic at about 6:30 pm. She noticed a vehicle approaching her quickly in her rear view mirror and then she was rear ended by a SUV driven by the Defendant Jelena Stepanenko (with the consent of the owner, the Defendant Nikolajs Stepanenko). The collision pushed her car into the car ahead of her. [ 3 ] The damages to the vehicles were substantial. Ms. Jones’ car was a write off.

The back end was completely pushed in to the point that the trunk was virtually gone. There was front end damage and the interior dash of the car was cracked and pushed in. Her driver’s seat had shifted forward and appeared to be broken. The Defendants’ car suffered almost $12,000 damage. [ 4 ] Ms. Jones does not remember the impact. She recalled that the back window was smashed into a million smithereens. She got out of the car and then noticed that the front end of her car also had damages to it and the fellow in the car ahead of her was yelling at her.

It was then she realised that she had been pushed into the car ahead. [ 5 ] Ms. Jones was in shock. Emergency personnel including the EMS, police and fire trucks started arriving. She was not in immediate pain because of the shock. She declined help from the EMS because of concern over the cost of transportation. Instead she called her parents to come and pick her up. She was home around 8:30 – 9:00 pm. At home that night a headache started. She had an abrasion on her nose and sore knees and wrist from hitting the steering wheel and dash. She went to bed but had trouble sleeping.

She went to her doctor and a physiotherapist the next day. Issues [ 6 ] The Plaintiff seeks damages for pain and suffering, loss of pre-trial income, loss of earning capacity, special damages, loss of housekeeping capacity and cost of future care.

She argues that the following award should be made (plus pre-judgement interest and costs): • Pain and suffering - $60,000 to $90,000 • Loss of income - $ 5,576.79 + $12,827.00 • Loss of earning capacity - $125,000 • Specials - $7,779.86 • Loss of housekeeping capacity - $25,000 • Cost of future care - $36,500 • Total : $272,683.65 - $302,683.65 [ 7 ] The Defendants initially opened the trial with the position that the “cap” applied (pursuant to the Minor Injury Regulations Alta Reg 123/2004 ) to the pain and suffering components of the claim, that after a short period of time, the Plaintiff had recovered from her injuries, and any remaining issues, such as fibromyalgia, are not caused by these collisions.

The total award the Defendants initially argued for was between $66,000 and $96,000. [ 8 ] After the trial evidence was closed, the Defendants amended their argument. They accepted that the cap does not apply and that Ms. Jones is suffering from fibromyalgia and chronic pain caused by the collisions. They argued that she is managing well in the circumstances and that her award should be in the range of the less serious chronic pain cases.

As such the award should be: • Pain and suffering - $20,000 to $50,000 • Loss of income - $5,576.79 (agreed) + $5,000 • Loss of earning capacity - $25,000 to $50,000 • Specials - $7,779.86 (agreed) • Loss of housekeeping - $0 (or a low general damages award) • Cost of future care - $7,500 • Total - $70,856.65 - $125,856.65 [ 9 ] In order to assess the quantum of the Plaintiff’s claim I shall review the evidence on her pre-existing medical history, her injuries and treatment, and her education and work history. I shall then discuss the various headings of damages and my findings.

Pre-existing medical history [ 10 ] Ms. Jones was a healthy 19 year old at the time of the collisions. She, her mother, Rorie Jones, and her general physician, Dr. Graham, who had treated her from birth, gave evidence about her medical history. All gave their evidence in a very matter of fact, straightforward way and were not challenged in the slightest in cross-examination. Their evidence was very credible, consistent, and reliable.

[ 11 ] Ms. Jones testified that she had suffered from some headaches early during puberty in 2003 – 2004. They were treated with Advil. A CT scan was ordered by Dr. Graham and it was normal. They were not “significant” according to Dr. Graham, and she did not complain of them again for years prior to the collisions. [ 12 ] In 2005 Ms. Jones suffered from some “fatigue”. She was having some teenage conflict with her parents, was staying up too late talking with her friends on the phone, and was mildly depressed. She was assessed and diagnosed with ADD and prescribed some medication.

The situation improved thereafter – she “got back on track” as described by her mother. [ 13 ] Importantly, there is no history of other injuries or accidents that caused her neck or back pain. She had not attended on a physiotherapist, chiropractor or massage therapist. [ 14 ] Mrs. Rorie Jones described her daughter pre-accident as an active, high energy, fun, “zip zooming around” type of person. She was involved in ballet, dance, soccer, martial arts snowboarding, tubing and wakeboarding growing up. Collision injuries 2009 [ 15 ] The next day after the collisions, August 19, 2009, Ms.

Jones said that “everything was in pain”: her head was pounding, her neck, back, left shoulder, right hip, left jaw and right wrist were also very sore. She had an abrasion on her face and bruised and swollen knees from hitting the dash of the car. She described her pain later that day as 9 out of 10. [ 16 ] Ms. Jones was first assessed by Dr. Graham’s locum, Dr. Glover, the day after the accident. The examination revealed decreased range of motion of the neck and lumber spine and pain. Dr. Glover prescribed anti-inflammatories, muscles relaxants and physiotherapy. [ 17 ] Ms.

Jones attended physiotherapy the same day. She was assessed and treated by Fooziah Ostawari. Ms. Ostawari testified at trial. She is a 1998 physiotherapy grad and has had a lot of training and experience in trauma, especially involving the TMJ, brain and chronic muscular skeletal pain. [ 18 ] On examination August 19, 2009 Ms. Ostewari indicated in her report: “client sitting in a forward posture position with head tilted forward and unable to move head.”(her notes added that she couldn’t turn her neck to the left). She noted bruises and severe range of motion restrictions in the shoulder, neck, back and hip.

She also noted a deviation to the left of her TMJ. As a result of the multi-site injuries, she assessed Ms. Jones with a “WAD 3” injury, outside of the Minor Injury protocol. She said the WAD 3 diagnosis was “obvious”. [ 19 ] She also suggested further diagnostic tests including an ultrasound of the left shoulder and right hip which was done on August 20, 2009. The hip ultrasound showed no evidence of soft tissue disruptions or fluid accumulations. “Presumably there has been stretching of fascial planes and muscles causing pain.” On the shoulder there were some signs of impingement but no tears.

An MRI was recommended. [ 20 ] An MRI was performed privately on August 31, 2009 on the left shoulder and both hips. The MRI confirmed that there were no tears. The radiologist noted that there was some bursitis in the left shoulder (inflammation) but otherwise it was unremarkable. [ 21 ] Over the next few months Ms. Jones attended physiotherapy two times a week and then once a week (21 times) and returned to her G.P. four times. The bruises dissipated after the first few weeks and her right hip, left shoulder and TMJ pain improved a lot. Her neck, back and headache pain continued.

An exercise strengthening program was recommended by her physiotherapist under the supervision of Panther Physio, and followed up with, over several months from December through to February 2010. [ 22 ] Dr. Graham had advised Ms. Jones to discontinue her retail job after the accident but continue with her nursing studies. Her studies included working on a geriatric unit 2 days a week. By November, Dr. Graham gave her the OK to return to retail work but for less hours a week (4). By December, Dr. Graham noted that Ms.

Jones continued to complain of significant neck and back pain along with headaches so a return to physio was discussed. Physiotherapy was recommenced after she finished her strengthening program – this time with a new physiotherapist because both Ms. Jones and Ms. Ostewari were concerned that her pain condition may be permanent. 2010 [ 23 ] In the spring of 2010 Ms. Jones was working two days a week at the Rockyview unit 93 doing “medical teaching”. She started another round of physiotherapy with Ms. Cecelia Hughes. On March 25, 2010, physiotherapist Hughes did an assessment of Ms.

Jones and noted that she had continued restricted range of motion of her neck (50% range bilaterally) and on lumber spine flexion. There were trigger points in her trapezii and scalene muscles in the cervical spine and increased tone from C 2-4. She also had left hip and lumber spine issues. [ 24 ] Treatment consisted of needling, spinal mobilisations, soft tissue massage, motor control retraining of the core and extremity musculature and postural education. [ 25 ] Ms. Jones achieved some improvement with this physiotherapy.

By June 2010, after 9 attendances, her spinal pain had diminished, her headaches were less frequent (2-3 times weekly) and her hip pain had resolved. Further, her semester was over and she was only working “casual” 20 hours a week and had discontinued her job at Roots. Dr. John Bauman Defence IME [ 26 ] Ms. Jones was seen by Dr. John Bauman, an orthopedic surgeon, for an independent medical examination on June 14, 2010. He indicated in his report that Ms. Jones “continues to be troubled” by “stiffness” in her upper back, upper trapezii and low back areas.

He found that she had a “full range of motion”. He noted that her left hip was stiff. He noted that she complained of numbness and tingling in her legs after prolonged standing. He also noted the complaints of headaches three times a week which can last for hours and disrupt her sleep. [ 27 ] On examination Dr. Bauman opined that Ms. Jones’ cervical spine showed no deformity, there was no tenderness or muscle spasm and that her cervical range of motion was full. He noted that she expressed some discomfort at the extreme of extension. He also noted tenderness in both upper trapezii.

He testified that he didn’t use any tools to measure Ms. Jones’ neck because she had not complained of pain in it. The full range of motion noted was based on his experience. [ 28 ] Dr. Bauman did use tools to measure Ms. Jones dorso lumbar spine because she complained of problems there. She had “excellent” range of motion there according to him. He did note that when she arched backwards she had some pain. [ 29 ] Dr. Bauman diagnosed her with a “minor dorso lumbar strain with contusion strain of her left shoulder and right hip area”.

He didn’t mention the neck or headaches in his diagnosis in his report despite the findings he made earlier in his report because of the lack of complaints to her neck, and headaches were outside his expertise. He found “no evidence of ongoing injury”. He clarified that this meant no “objective” signs of injury and he agreed that Ms. Jones still had symptoms. Later he indicated that she had recovered from the collisions other than some “minimal ongoing subjective symptoms” which would “pass with the passage of time”.

He clarified at trial that he felt that her prognosis was “excellent” for full recovery considering the lack of objective signs and her youth. [ 30 ] On cross-examination he agreed that he had not been provided with or seen Dr. Graham’s treatment notes. In particular the note that on June 16, 2010 where the Plaintiff was complaining of “continued upper back and neck pain”.

He agreed that his examination was simply a “snap shot” of where she was on June 14. [ 31 ] On being cross-examined about the lack of including “headaches” in his diagnosis he pointed out that he did not do so because they were not orthopaedic issues. He also agreed that “no injury” meant that she had no “orthopaedic injury” and totally agrees that she could still have been suffering from pain. [ 32 ] Dr. Bauman did not agree that ongoing physiotherapy was needed. In his view, even if it might reduce the pain, it was of no further value if the pain simply returned. [ 33 ] I note that Dr.

Esmail, an orthopaedic surgeon, who was called as a witness for the Plaintiff, opined that “no evidence of ongoing injury” should be read from the perspective of an orthopedic surgeon in the sense that if there are no fractures or areas requiring surgery, there is no injury. In his view, this does not rule out ongoing injury to the soft tissue muscles. [ 34 ] As a result of this independent medical, Ms. Jones’

section B insurer cut off her

section B benefits. [ 35 ] Ms. Jones testified that she agreed that in June 2010 she had some improvement in her symptoms. However, that in the fall, when she returned to school, and 3 days a week of clinical training, although they were lighter placements than others, her pain and troubles increased to the point that she had to start going to physiotherapy again. Dr. Graham confirmed these issues in a visit September 29, 2010 and indicated that she preferred that the Plaintiff treat with physiotherapy over heavy medication. [ 36 ] Her physiotherapist, Ms. Hughes’ report, also confirms this evidence.

She indicates in her report: “On attendance in September 30, 2010 she was back at school and on clinical placement. At this time her low back pain had resolved and her symptoms localised to the neck and mid back. As the months progressed her symptoms fluctuated depending on the demands from working on clinical placement and prolonged hours sitting/studying which increased her spinal stiffness and the frequency of her headaches”. Ms. Jones attended 7 physiotherapy sessions that fall. Dr. Myron Stelmaschuk Defence IME [ 37 ] Dr.

Myron Stelmaschuk, a medical doctor, performed a Certified Independent Medical Examination on November 22, 2010 on behalf of the Defendant. He graduated from medical school in 1995 and did some general surgery and then orthopaedic training for 2 ½ years but decided that he didn’t want to continue in those fields. He worked for 7-8 years triaging trauma patients at the Foothills and Peter Lougheed hospitals. He now works as a consultant for LifeMart Health and deals with workplace injuries, mainly for WCB claims. He never worked in a family practice.

He was qualified to give evidence in the area of musculoskeletal injury. [ 38 ] Dr. Stemelschuk listed in his report that “current symptoms” included neck pain, low back pain, left hip pain that were not severe, significant shoulder pain, neck and trapezeii musculature pain and mid back pain. He noted that “any activity such as physical activities and prolonged studies such as looking down in flexion for a long time exacerbate her symptoms.

Prolonged sitting in poor chairs in school also exacerbates her symptoms.” He noted that she had no neurological complaints in the upper or lower extremities but did report significant headaches. She had restricted her recreational activities and that yoga also exacerbated her neck, mid and low back problems. [ 39 ] On examination Dr. Stelmaschuk noted that there were “no pain behaviours”. He noted that there was full range of motion of the neck and back but with pain on neck right rotation, flexion and extension, and back flexion and extension (with more pain on extension).

He noted that her pain assessment had gone from 10/10 at the time of the accident to 6/10 on examination. [ 40 ] In the forms, Ms. Jones noted that her “occupation” was a “sales associate/key holder” and that she was doing casual nursing. Her job duties however referred only to her Roots job and the forms filled out by her employer suggested that she had a “sedentary” job with no heavy lifting. [ 41 ] Dr. Stelmaschuk diagnosed that Ms. Jones suffered a strain/sprain to the cervical thoracic and lumbar spine, and to her right shoulder and left hip.

He opined that she had “ongoing musculoskeletal pain secondary to this”. He agreed that these problems were linked to the collisions.

[ 42 ] Despite his findings, Dr. Stelmaschuk considered that Ms. Jones suffered a “minor injury” under the Minor Injury Regulatios and that there was no “serious impairment”. In his view she did not have any disability since she was able to do all of her activities of daily living and had been able to complete her nursing degree. He also opined that the fact that she had some symptoms 3-6 months post- accident “did not remove her from protocol”. He didn’t explain how this was possible. It became clear later that he did follow the “protocol” when providing his opinion. [ 43 ] He felt that the initial treatment Ms.

Jones had was good but he suggested more active treatment thereafter. (He didn’t seem to be aware that Ms. Jones had had active treatment and supervised exercise program earlier in the same year.) [ 44 ] On cross examination, Dr. Stelmaschuk agreed that Ms. Jones was suffering from “chronic pain” in that her symptoms had continued past 6 months. He also agreed that fibromyalgia is not a “minor injury”. [ 45 ] With respect to his opinion that she did not suffer from a “serious impairment” he testified that he based this decision on the medical model – NOT the

definitions in the Regulations. Further, in his view, if one suffers from a strain or sprain, this cannot lead to disability and therefore cannot be a “serious impairment”. “As long as you can do it” is his bar. As a result, he admitted that in his 15 years of assessing strains and sprains (note the legislation came in 12 years ago…) he has NEVER found someone who has suffered a “serious impairment”. When the legal

interpretation of the Regulation definition was put to him he noted that he was aware of this but that this has not changed the way he does his “certified medical examination”. 2011 [ 46 ] In early 2011 Ms. Jones continued with physiotherapy and anti-inflammatories to control her pain. She attended on her GP who noted that in addition to the neck pain she was suffering from, she had some fatigue and mild mood issues. She prescribed Cepralex which Ms. Jones took for a few months. Dr. Salim Esmail Plaintiff IME [ 47 ] Ms. Jones was assessed on June 22, 2011 by Dr.

Esmail, an orthopaedic surgeon who has spent a lot of his career working with the rehabilitation of patients who are injured but don’t need surgery. He noted that Ms. Jones was complaining of headaches, neck and back pain and some numbness in her legs, which he thought was a new symptom (he may not have been aware of Dr. Bauman’s report at that time which noted these problems in June 2010).

He also noted that she had restricted her recreational activities such as water sports and that she gets neck and back pain doing her nursing clinical work and a lot of fatigue by the end of the day. [ 48 ] On examination he noted that there was no tendency on her part to exaggerate her clinical complaints.

This finding is consistent with all of the medical professionals. [ 49 ] On examination of the range of motion in her neck and back he used an inclinometer and determined that there was some reduced range of motion especially in her neck but also in her lumbar spine. [ 50 ] He noted that the “neck disability index” indicated that Ms. Jones had a perception of “severe disability” related to neck pain. [ 51 ] Dr. Esmail diagnosed that Ms.

Jones suffered from post-traumatic sprain/strain injury, cervical spine, cervicogenic headaches, possible zygapophyseal joint injury, cervical spine (micro damage not able to be seen on diagnostic tests), post-traumatic lumbar spine dysfunction and possible discogenic injury to the lumbar spine, again not able to be seen on ex-ray. [ 52 ] Dr. Esmail outlined research that has been done on monkeys that show the micro-trauma to the zygapophyseal joints in monkeys subjected to whiplash injuries on autopsy, whereas the MRI was normal.

He opined that 45% of people who complain of neck pain have damage to these joints. [ 53 ] Dr. Esmail suggested that Ms. Jones continue with the anti-inflammatories to control the pain and remarked that she has difficulty doing some of the heaviest activities of daily living as well as some activities in nursing that are required of her. Her condition had not yet stabilised and her prognosis was guarded. [ 54 ] I found Dr. Esmail’s opinion and report very helpful. His views were not shaken on cross-examination and I accept them as accurately depicting Ms.

Jones’ condition at that time. 2012 [ 55 ] Physiotherapist Hughes noted that in February 2012, Ms. Jones continued to experience daily headaches varying in intensity from 7-8/10 and back pain at 5/10. She had worked an 8 hour shift for 11 days (at the time she was working in a medical psychiatric unit that was very physically demanding). Her benefits ran out however and she had to discontinue physio. Dr. Maryana Apel Plaintiff IME [ 56 ] Ms. Jones was seen for an independent medical assessment, arranged by her lawyer, by Dr. Apel on February 15, 2012. Dr.

Apel is a specialist in the rehabilitation area and has a background in neurology. She treats people with chronic pain and is recognised as an expert in her field. Dr. Apel is a certified examiner for the purposes of the Minor Injury Regulations (like Dr. Stelmaschuk). [ 57 ] Dr. Apel noted Ms. Jones’ initial complaints after the accident and indicated that she was told that they had improved by about 50 – 60% but that any improvement had plateaued about a year ago [2011]. Ms.

Jones’ complaints at the time were neck and upper back ache, occasional lower back pain, intermittent numbness in her lower legs, and left shoulder pain. [ 58 ] Range of motion of Ms. Jones’ neck was measured with an inclinometer, like Dr. Esmail did. She opined that using this instrument helps determine more accurately if there are any deficits. The ranges noted were a slight improvement from Dr. Esmail’s

measurements. Again pain was noted in back extension but otherwise was normal. [ 59 ] It was noted, like the other medical examiners, that the effort provided throughout was “impeccable” and there was no emotional lability noted. [ 60 ] Pain was elicited at fibromyalgia tender points – Ms. Jones had 12 of 18 such points. Dr. Apel diagnosed Ms. Jones with fibromyalgia. She explained that fibromyalgia is a chronic pain condition which initially was designated by different names such as fibrositis, myositis and myofascial pain.

Eventually certain criteria were established by the American College of Rheumatology to provide physicians with consistent tools to diagnose the condition. The criteria developed in 1993 had objective and subjective criteria – the objective being the tender points and the subjective being the experience of pain for more than 6 months and a certain element of fatigue, tiredness and unrestorative sleep. [ 61 ] In 2010, an easier to use, but perhaps not as robust criteria was developed by having a patient fill out a questionnaire and then determine if the criteria is fulfilled. [ 62 ] Dr.

Apel uses both types of criteria. [ 63 ] Dr. Apel pointed out that fibromyalgia can exist in conjunction with myofascial pain – which has a different set of criteria and is diagnosed by muscular trigger points. Many patients, like Ms. Jones, can have both. [ 64 ] Dr. Apel opined that there is no longer any controversy over the fact that fibromyalgia can be caused by trauma. It can also be idiopathic (no particular cause) or secondary to other disease processes like MS or Parkinson’s disease. The key to determining if it is post-traumatic is to rule out any pre-existing red flags like fatigue or pain. [ 65 ] Dr.

Apel noted that there was controversy surrounding the possibility that fibromyalgia could be caused by trauma over 20 years ago but that debate is over. Even the WCB accepts that it can be post-traumatic. She also relies on the literature in the area and her 20 year personal experience treating fibromyalgia patients. [ 66 ] In her view, fibromyalgia or chronic pain does not fit the criteria of “minor injury” under the Regulations.

It is not a “strain or sprain” and interestingly she pointed out that Alberta Health Services has different codes with different prognosis for fibromyalgia and myofascial pain compared to strain and sprain. [ 67 ] Dr. Apel noted that fibromyalgia can be “controlled” but not cured. It waxes and wanes in intensity. She noted that according to the Quebec Task Force, the majority of people with whiplash recover, 80% within 1 year and 90% within 2 years. If the patient doesn’t recover the pain may actually get worse and more widespread. A patient will perceive pain all of the time. [ 68 ] Dr.

Apel explained that from a scientific point of view, fibromyalgia is not a disease of the muscle, but a disease of how the brain processes pain. If someone has chronic pain from trauma, and it doesn’t get better, it’s conceivable, in Dr. Apel’s view, that the brain will start to feel and let through more responses to sensations as pain. [ 69 ] In Ms. Jones situation, Dr. Apel noted that she had initial pain in a number of areas (left upper arm, left knee and shin, wrist, neck headache and back) which has become more confluent and chronic.

She had improved from her initial injuries but was not maximally improved in 2012 when Dr. Apel saw her. [ 70 ] Dr. Apel opined that Ms. Jones had fibromyalgia caused by the accident after reviewing her pre-accident history very carefully. She noted that sometimes patients can already have many symptoms of fibromyalgia pre-trauma that are not diagnosed. However, in Ms. Jones case there was nothing in her view that could have supported a diagnosis of fibromyalgia pre- accident.

In that regard she noted that had some emotional problems for a while and some fatigue but neither were long lasting and had been controlled well before the accident. There was no history of pain complaints, other trauma or other red flags. Ms. Jones had been healthy both physically and emotionally and was carrying on an active life. She also relied heavily on the opinion of Dr. Graham who confirmed no pre-existing issues of note. [ 71 ] Her opinion was not shaken on cross-examination on this issue. [ 72 ] Dr. Apel also felt that Ms. Jones suffered from myofascial pain syndrome.

In this case the trigger points are more focal, versus the more general fibromyalgia tender points. In particular, she had trigger points in her S.I. joints. Ms. Jones also had headaches that were attributable to the myofascial pain discomfort and possibly to overuse of her anti-inflammatory medication. She opined that the myofascial pain in her view was caused by the accident. [ 73 ] Dr. Apel discussed Ms. Jones’ nursing career and how it would be affected by the issues she diagnosed. Dr.

Apel noted that she was previously an RN and very familiar with the expectations, duties and physical requirements of the nursing position. In Ms. Jones’ case she felt that she could continue nursing but the type of nursing would be limited. In particular, she needed to have a position that did not have a significant number of night shifts (because working different shifts leads to poor sleep which exacerbates fibromyalgia pain), where she could work at a controlled pace, change ergonomically, and have less physical demands.

So, for instance, a manager or clinical nursing position would work, but a surgical unit would not since there are heavy physical demands moving patients. [ 74 ] In terms of treatment, she indicated massage, exercise (preferable) and possibly Botox injections were all helpful. Maintaining a healthy lifestyle is key and core strengthening exercises. “Be happy” (perhaps good advice for us all) and not to medicalise or let the diagnosis run your life, was her best advice. [ 75 ] In terms of prognosis, Dr. Apel indicated that Ms. Jones’ problems would come and go depending on the way her life went.

It will be costly and time consuming to control her issues but she was not going to die from them.

[ 76 ] I accept Dr. Apel’s opinion with respect to Ms. Jones’ condition, its cause, and prognosis both in terms of her physical health but also with respect to Ms. Jones’ nursing career. Her examination and subsequent report were thorough, concise, and very helpful to the Court. [ 77 ] In April 2012, Ms. Jones graduated from nursing and started work at a walk in clinic which she hoped would be less physically demanding.

She later found a position in Unit 37 at the Peter Lougheed Hospital in the inpatient psychiatric unit which was less physically demanding than her last work on unit 43 and wherein she was able to make much more in salary than she had at the walk in clinic. She started there casually in July 2012 and moved to full time permanent in September 2012. 2013 Dr. Anthony Russell Defence IME [ 78 ] Ms. Jones was examined by Dr. Anthony Russell, a rheumatologist, on behalf of the Defendants on March 20, 2013. Ms.

Jones’ complaints were fairly similar to those she’d made to other medical professionals: pain all over, constant headaches, neck and back pain, poor sleep, but a relatively good mood. On examination he found that all movements of her neck and back were full. He noted that she was tender in most of the “so-called” fibromyalgia tender points. He opined that Ms. Jones had fibromyalgia. She might have had a WAD II type injury but these “settled” by March 2010 and will be classified as a minor injury in terms of the Minor Injury Regulations . [ 79 ] Dr. Russell has written about fibromyalgia.

In his papers he has opined that in his view on the evidence, fibromyalgia cannot be caused by trauma. He also pointed to other literature that in his view confirms that trauma is not related to fibromyalgia. He noted that often people will already have fibromyalgia but then it will be recognised after a very stressful event or trigger. In Ms. Jones case he felt that her syndrome was not a direct reflection of the collisions given that there was fatigue in her pre-existing history. He feels that she already had fibromyalgia that was not diagnosed and was only recognised after the accident. [ 80 ] Dr.

Russell’s opinions were seriously compromised in cross-examination. Firstly, with respect to his opinion that Ms. Jones’ WAD II type injuries had “settled by March 2010” he was referred to Dr. Graham’s notes of March 19, 2010 wherein there were complaints of neck and upper back pain, headaches, occasional radiation into right arm and a referral to physiotherapy, as well as the Ms. Hughes’ note of March 25, 2010 where Ms. Jones was complaining of constant pain (10 out of 10), headaches, the need to take medication to get to sleep etc. Dr. Russell conceded that Ms.

Jones WAD II issues were not “settled” at that time. He was not sure why he thought that they had – suggesting that he must have read it somewhere. [ 81 ] Secondly, with respect to his views that Ms. Jones had fibromyalgia because of pre-existing fatigue issues he was again taken to Dr. Graham’s pre-collision treatment notes where there were only a couple of vague entries about fatigue and that a diagnosis of ADD was made around that same period.

He conceded that he would have to rule out that the problems noted were not because of teenage issues, over cell phone use, over texting etc. before coming to a conclusion that Ms. Jones had fibromyalgia pre-accident. He agreed ultimately that there was little in the notes to suggest that Ms. Jones had fibromyalgia pre-accident. [ 82 ] Finally, with respect to his opinion that fibromyalgia cannot be causally linked to trauma, he agreed that what he meant was that data in the scientific field was not sufficient in his view, from a scientific point of view, to link trauma with fibromyalgia.

He conceded that many in his field believe that there can be a link, indeed that it is a “widely held belief”. He agreed that this belief is held by, amongst others, the American College of Rheumatology, the Canadian Rheumatology Association (of which he was once the President) and the University of Alberta chronic pain clinic. He disagrees with them all on this point. Having said that, he agreed that his views are based on epidemiological findings – and cannot be traced to individuals. [ 83 ] In this regard he agreed that there is no definitive study that trauma cannot cause fibromyalgia.

Further, he agreed that he has seen incidents where after a motor vehicle accident, fibromyalgia did develop – he gave an example of a patient that had a terrible accident, suffered from PTSD, and because of this, he developed fibromyalgia. He placed more emphasis on the intervening event of PTSD however. [ 84 ] Ultimately, in Ms. Jones’ case he felt that the intervening events may have been the stress of going into nursing, the fact that nobody could find a cause for her ongoing issues, and possibly the sleep deprivation issue. When pushed, Dr.

Russell conceded that if the motor vehicle collisions had not happened, she may have had fibromyalgia, but she would not be suffering from it . He agreed that the fibromyalgia would not have otherwise elevated to a significant clinical level. Or in other words, the motor vehicle accident was a necessary factor for the fibromyalgia to have developed clinically. Dr. Esmail – 2 nd visit [ 85 ] Dr. Esmail had a follow up appointment with Ms. Jones on June 26, 2013, approximately 2 years after the first visit.

He noted that she was complaining of basically the same problems but that she had moved to a less physically demanding nursing position so that she had been able to maintain her employment (in June 2011, the last time he had seen her, she had been nursing in a surgical ward and was having problems there). [ 86 ] On examination, Ms. Jones’ pain complaints were still present but less severe. Her range of motion in her neck and back had improved to almost normal limits. Her neck pain had improved from severe to moderate and the disability rating improved from 44% vs 68% showing moderate disability.

Her back disability index also showed moderate disability with activities of daily living (44%). He added that housekeeping duties were difficult because of the pain. [ 87 ] He concluded that her condition had become chronic – he testified that it was a mild but consistent chronic pain that has persisted and will likely continue into the foreseeable future. He opined that Ms. Jones will have ups and downs but will be symptomatic. He recommended lighter nursing jobs. He noted that Ms. Jones was controlling her pain by the use of Motrin and hot yoga. He stated

that modified activities and lifestyle will be necessary. [ 88 ] He was not aware that she had been diagnosed with fibromyalgia – this is a diagnosis that is not used by orthopaedic surgeons. In his view, myofascial pain and fibromyalgia are similar disorders. Normally he diagnosis “chronic pain” in situations where this is present. On cross-examination he indicated that he can differentiate fibromyalgia from myofascial pain if the fibromyalgia is severe. He also noted that patients can have a combination of both myofascial pain and fibromyalgia. 2014 [ 89 ] Ms.

Jones returned to physiotherapy treatment on April 2, 2014 with Ms. Hughes. She had a flare up in her condition – in her neck, shoulders, mid and low back and persistent headaches. Her range of motion was limited by pain. She underwent massage and a stretching regime and exercise program and proper posture were emphasised. Ms. Hughes felt that because of the chronicity of the symptoms Ms. Jones would require intermittent physiotherapy and massage. [ 90 ] In July 2014 she bought a house and moved in with her boyfriend. He testified that he had been dating Ms.

Jones for 3 years before they moved in together at her parents’ house. He noticed that Ms. Jones would come home from work in pain. She would do stretches to try and alleviate the pain. He noticed that she would be in more pain if she had several days on in a row. She would also attend massages to help when this happened. [ 91 ] He and Ms. Jones had a discussion about cutting back on her hours at work to see if that would help. Accordingly in October 2014 Ms. Jones started working part-time hours (a .53 FTE position).

He noticed that her quality of life and their relationship improved after she started working part-time. She also had more time to take treatments and work out. He and she like walking their dogs together and going to the mountains – although Ms. Jones still cannot snowboard or go on any strenuous hikes. 2015 [ 92 ] Ms. Jones worked part-time throughout 2015 and continued going to massage therapy every two to three weeks. She noticed that she had time to recover, she no longer had several long shifts in a row and she was able to take better care of herself. [ 93 ] In mid-year Ms.

Jones attended on a naturopath for a few visits. She changed GPs in the fall to Dr. Kennedy who changed her medication to help with breakthrough pain. She also tried to help Ms. Jones with improving her sleep hygiene. 2016 [ 94 ] Ms. Jones returned to her original physiotherapist for another round to help control her pain. She went to see her dentist and was fitted with a night guard with the hope of helping her headaches. She continued with massage, stretching, spin classes, hot yoga and gym work outs. [ 95 ] She also changed jobs to something more sedentary – working as an addictions counsellor.

She had to change unions and is paid about the same on an hourly basis but does not have the opportunity for any extra shifts. She works more regular hours. However, the position is temporary and ends in November. She is not sure if she’ll return to her nursing job or seek something else. She does not want the pain to control her life and keeps trying to manage her issues and have a good quality of life. Quantum claims Pain and Suffering [ 96 ] The pain and suffering award is made to compensate Ms. Jones for the injuries suffered as a result of the motor vehicle collisions of August 18, 2009.

The Plaintiff’s counsel argues that this award should reflect the initial significant trauma, the severe pain suffered by Ms. Jones in the first year or so to her neck, back, shoulder, hip, knees, wrist, jaw with resultant severe headaches, and then for the chronic condition of pain that has been diagnosed variably as fibromyalgia, myofascial pain disorder, and chronic pain disorder. [ 97 ] The Plaintiff argues that all of these injuries and subsequent pain conditions are caused by the accident.

There are no pre- existing or post-accident intervening events to detract from this finding. [ 98 ] The Plaintiff’s counsel pointed to many recent similar cases to support his submission that the range of this award should be between $60,000 and $90,000.

More specifically, on the high end of the range, and cases where the injuries were more significant, are Williams v O’Leary , 2011 ABQB 229 ($145,000 award for a fractured heal, depression and fibromyalgia), and Russell v Turcotte 2009 ABQB 19 ($115, 000 award for significant chronic pain). [ 99 ] He suggests that the cases more on point with this one are: Kaboly-Zadeh v Murchison 2014 BCSC 1968 (a licensed practical nurse who suffered from similar soft tissue injuries that kept her off work, but with a better recovery and no fibromyalgia was awarded $60,000); Chisolm v Lindsay 2012 ABQB 81 (a teacher suffered from chronic fatigue, post-traumatic stress disorder, a mild traumatic brain injury, all with similar but perhaps more serious sequelae to Ms.

Jones was awarded $90,000); and McLean v Parmar 2015 ABQB 62 (where the Plaintiff suffered some similar injuries and results but also had PTSD and depression, and injuries had “recovered” 2 1/2 years post impact was awarded $60,000) . [ 100 ] The Defendants’ counsel, to his credit, acknowledged that the evidence did not support an argument that but for the accident Ms. Jones would not have suffered from fibromyalgia, and as a result the cap does not apply to this pain and suffering award. He argues instead that the lower end of the chronic pain case awards should apply.

He provided cases that were very dated and mostly from out of

the jurisdiction. He agreed in argument that they were not particularly applicable. The one Alberta case he proposed was Lawrence vSmith (1991) (AB KB), 124 AR 288 with somewhat similar injuries that lasted only 18 months where an award of$25,000 was made - $44,424 in today’s dollars with inflation. [101] In my view, Ms. Jones suffered from a significant impact that caused her debilitating soft tissue injuries to her neck, back,shoulder, jaw and hip; contusions and lacerations to her face, and both knees; and severe headaches. [102] She followed a course of treatment in an exemplary manner.

She was lucky to have excellent health care initially from hergeneral physician, Dr. Graham, and her physiotherapist, Ms. Ostawari. She followed their advice, which included medication,physiotherapy and withdrawal from her part-time job but not nursing courses for the first period of time. Soon after she was involved inactive treatment by way of an exercise program. She made significant strides towards recovery in the first year but was still sufferingfrom pain and headaches when seen by Dr. Bauman in June 2010, one year post accident. [103] I accept that the treatment notes of Dr. Graham and physiotherapist, Ms.

Hughes, and the evidence of Ms. Jones, who I found tobe credible and understated, properly reflect that in June 2010 she was still suffering from pain in her neck, upper and lower back, andsignificant headaches (although not as severe as they had been in the immediate period post-accident). I reject Dr. Bauman’s opinion thatat this time “there was no evidence of ongoing injury”. On the stand even Dr. Bauman conceded that this meant no “objective” injury andthat it did not mean that Ms.

Jones could have been still suffering from pain and headaches that are outside his realm of expertise. [104] I note that this concession by Dr. Bauman is a little late for Ms. Jones. Because of his “no injury” opinion, her

section Bbenefits were cut off. Dr. Bauman may well have been using his orthopaedic way of assessing the Plaintiff’s injuries but he appears tohave forgotten his audience when he is asked to what amounts to an important medical legal assessment. I would hope that in the futurehe will make his reports more clear and perhaps suggest assessments by other medical professionals outside his field, like in painmanagement and headache management here, to the extent that he does not feel qualified to opine on them. [105] This brings me to Dr. Stelmaschuck’s report, prepared later in 2010 that Ms.

Jones was suffering from injuries that could beconsidered “minor injuries” under the Alberta Regulations. In the end it turns out that he was not referencing the Regulations at all (eventhough they appear, in part, in his report). Defence counsel again properly conceded in argument that Dr. Stelmeschuk’s findings in hisexamination of Ms. Jones, as described above, do not coordinate with a finding of a “minor injury”. [106] I would urge Dr. Stelmeschuk, and other doctors certified to do the Certified Medical Examinations under the Regulations, tohave the law explained to them on this point.

These medical legal reports are relied upon by insureds and injured parties and they need tobe as accurate an opinion as possible. It is not appropriate in the legal setting for which these reports are prepared to rely on

definitionsand tests of disability that do not coordinate with the

definitions set out by our Legislature in the Regulations. The financial consequencesare significant. [107] Returning to the assessment of the level of Ms. Jones’ injury sequela, I find that she diligently pursued all treatmentrecommended to her and took charge over her activities to also try and minimise her issues. I completely accept the assessments of Dr.Esmail and Dr. Apel, as described above. I was encouraged that Dr. Graham also had an opportunity to read Dr. Apel’s report and madesure that Ms. Jones stayed on the right track. [108] I accept more specifically that Ms.

Jones suffers from fibromyalgia, and that this condition was caused by the collisions. I donot accept Dr. Russell’s views that Ms. Jones had fibromyalgia pre-accident, even if it was in a latent non symptomatic form. Ms. Jonessuffered from some fatigue for a bit of time years before the collisions in question caused by her late nights and over use of cell phonesand texting typical of teenagers of the same age. She had no other indicia of fibromyalgia: no pain, no tender points, no other potentialtriggers, no “unrestorative sleep” or ongoing fatigue issues. [109] I accept Dr.

Apel’s opinion that the fibromyalgia was caused by the pain associated with the injuries caused by the collisions.Even Dr. Russell conceded that had it not been for the collisions Ms. Jones would not have otherwise have been symptomatic withfibromyalgia. It is unfortunate that it took cross-examination at trial to have Dr. Russell concede this point. As recognised by Defencecounsel, this concession is more than enough legally to make the causal link necessary for this personal injury case. [110] I accept that Ms.

Jones had to curtail the type of nursing and recreational activities that she did and will do in the future becauseof her pain issues. I highly commend Ms. Jones for all of the physical activity that she has done to help her condition and overall well-being. She had to grow up in a hurry to deal with her injuries and legal consequences from these collisions considering that she was only19 years old at the time of the collisions.

She is poised and mature about her situation. [111] I accept that her pain condition will continue into the future with a certain amount of waxing and waning of symptoms, such ashas occurred in the last couple of years. I am hopeful that Dr. Apel is correct that her condition overall may improve further, perhapsmore slowly now, over the future. [112] In terms of an award under this heading I am particularly influenced by the Chisolm and McLean cases. Her issues wereperhaps somewhat less severe than in Chisolm, but more so than in McLean. No two cases are alike.

In my view, a fair award for Ms.Jones’ pain and suffering is $80,000. Loss of income [113] The loss of income from Ms. Jones’ time off her retail position at Roots was agreed to be net $5,576.79. [114] Ms. Jones also claimed the difference in her income between full-time and part-time for the period between October 2014 andthe end of 2015.

The Plaintiff’s counsel argues that her full-time nursing annual income those years, using the income from 2013 withthe appropriate incremental steps up would have been $80,967 in 2014 and $83,416 in 2015 but that her actual income was $79,110 and$66,409 respectively, so there was a loss of $18,864, or $12,827 net of tax (at 32%).

[ 115 ] In argument, the Defendants’ counsel submitted that based on a loss of capacity rationale, the extra past loss should be $5000. [ 116 ] Ms. Jeannine Arbour was called by the Plaintiff to give evidence about the salary and career path of nurses in Alberta. Ms. Arbour is the manager of labour relations with the United Nurses of Alberta. Ms. Jones is a union member of this union. With respect to this issue she spoke of the average salary of a full-time nurse, once shift differentials and other bonus pay is added, to be in the $100,000 range.

She also discussed how salary gets stepped up if one is working full-time vs part-time (i.e. the step up occurs less frequently depending on the percentage of part-time – so for Ms. Jones it would take 2 years vs 1 year for an increase in base hourly wage). [ 117 ] The shift premium is $5/hour extra for night duties, $2.75 for evening work, $3.25 for weekend work and double for overtime. [ 118 ] Ms. Jones testified that during her time working full-time she did what she could to switch evening to day shifts and could not take on too many extra shifts.

Ultimately she made the decision to move to part-time work when a part-time “line” came open. I accept that her efforts to change shifts to daytime work and ultimately her move to part-time hours were occasioned because of the injuries she suffered in the collisions and her efforts to cope with her pain and manage her issues. I note that Dr.

Apel’s opinion was that she should try not to work odd shift hours, especially at night, because of her fibromyalgia and sleep issues. [ 119 ] Accordingly, the losses calculated by the Plaintiff’s counsel are conservative since they do not even include losses between the average $80,000 range she was making, and the $100,000 she could have made if she was not making the shift changes Ms. Jones testified to, and her failure to take on extra work as other nurses might, while she was working on unit 37 in 2012, 2013 and 2014 before she went part-time.

Further, the losses claimed for the part-time vs full-time work again assume this lower salary as her base. [ 120 ] Finally, it is possible to calculate a loss of income award here so I disagree with Defence counsel that an award based on a loss of capacity is necessary to be resorted to. [ 121 ] Accordingly, I have no hesitation in awarding the past loss of income as claimed, in the net amount of $5,576.79 as agreed, plus $12,827 for a total of $18, 403.79. Loss of Earning Capacity [ 122 ] Ms.

Jones claims a loss of earning capacity in the amount of $125,000 relying on the Chisolm case for authority for an award in that range. [ 123 ] The Defendants rely on the case of Pfob v Bakalik 2003 ABQB 819 ; affd 2004 ABCA 278 where $25,000 was awarded to a plaintiff who suffered from a loss of capacity to do heavier jobs as a result of soft tissue injuries ( I note that the Plaintiff was 45 years old in that case). In argument, the Defendants’ counsel submitted that a loss in the $25,000 to $50,000 range would be reasonable here. He pointed out that Ms.

Jones has been able to complete her nursing degree and work at many positions without too much trouble. Further that she is motivated to work full-time, as she is now, not part-time, at an hourly wage comparable to her nursing hourly wage. [ 124 ] In my view, Ms. Jones’ employment opportunities have been severely affected by her injuries and resultant chronic pain/fibromyalgia condition. This condition, as discussed by Dr. Apel, is manageable but it will cost money for treatment and time for the management of her symptoms. Further, her evidence was clear that Ms.

Jones should not work in the heavier duty nursing positions. Dr. Esmail agreed in this regard. Most telling though was Ms. Jones’ own evidence and experience that she has had over the last several years. She was able to do some positions but not others – she tried them and she knows. I accept her evidence. [ 125 ] Ms. Jones is now only 26 years old. She still has a long career ahead of her. She has already suffered financial losses because of her injuries and to her credit she has done what she can to mitigate those losses.

She is presently working as an addictions counsellor for now but that position will run out. She is paid about $40/hour which will average out to about $77,000 annual salary. That amount is close to her base rate of what she was making as a full-time nurse but still far from her potential $100,000 income. [ 126 ] Having said that, she may recover further as opined by Dr. Apel and considering her efforts this may come to pass. Further it is not clear how long she would have continued on in a more physical nursing position even if she was not injured.

These would be potential negative contingencies to consider. [ 127 ] I agree that a loss of capacity award is appropriate here. Her losses could amount to between $10,000 and $20,000/year over the next 30 or so years as a worst case scenario. (Note that you cannot just multiply these numbers without economic adjustments for inflation and interest etc. but I set them out to show the potential losses).

On the positive side she may recover further, and she may ultimately be able to move into other more remunerative positions with her training and increased experience where the fact that she is physically unable to do heavier work will matter less, thereby incurring more minimal losses, if any. [ 128 ] Overall, the claim made by the Plaintiff in the amount of $125,000 is conservative in my view, and accordingly I award the full amount as claimed. Loss of Housekeeping capacity [ 129 ] Ms. Jones was living with her parents in the basement when these collisions occurred. Her housekeeping duties were not significant.

Her mother took over cleaning Ms. Jones’ bathroom and area during the acute recovery phase. Thereafter, in 2013 she moved in with a friend and did not have too much difficulty doing the housekeeping in the small apartment. She then moved in with her boyfriend and his brother and again did not have many duties that she could not do until the brother moved out. Ultimately they hired Ms. Jones’ mother to help out as it was too much working and keeping the house clean. [ 130 ] The Plaintiff’s counsel conceded that even if Ms.

Jones had not been injured, considering her busy life, she and her boyfriend may well have hired help anyway. [ 131 ] The Defendants should pay for the economic loss because of the Plaintiff’s inability to do the heavier housework. There is no

question in my view that Ms. Jones was disabled in this regard, but her responsibilities were not very great, so her housekeeping losses were also not very acute until perhaps that last year or so. This may change in the future however especially if Ms. Jones has children. [ 132 ] There is evidence of an economic loss over the last seven years since the collisions. In the last while, the Plaintiff has been incurring about $200 a month in expenses ($2,400/year). Not all of this expense is associated with the collisions, and not all of the cleaning is for Ms.

Jones in that she lives with her boyfriend. [ 133 ] I agree that a more general award is appropriate in these circumstances. I will allow $5000 for past loss and $10,000 for the future loss of housekeeping award. Cost of Care and Special Damages [ 134 ] The Plaintiff acknowledges that much of her future care will involve maintaining an exercise regime. However, she seeks the cost of massage therapy, and the cost for some Botox therapy as recommended by Dr. Apel. The cost of the massage therapy, at about one time per month for 40 years would be about $32,500 present valued.

The Botox cost is about $4,000. [ 135 ] The Defendants point out that she may improve and not need as much massage. They are not opposed to some Botox therapy. They submit that an award in the amount of $7500 is more reasonable. [ 136 ] I note that the Plaintiff has treated with medication, physiotherapy, massage, and various exercise classes. Her specials to date, net of payments already made, are $7,779.86 which reflects, for the most part, treatment costs. Net of the MRI, which cost $1,540.00, her treatment costs have been more than $1000/year more or less.

Indeed lately she is only recovering $35 for her $100 physiotherapy treatment. Yet, again the Plaintiff is making a conservative claim in that she seeks only massage and Botox costs and nothing for potential future physiotherapy or medication costs. [ 137 ] Accordingly, I will allow the cost of care claim as calculated by the Plaintiff, $32,500 for massage (or physiotherapy as necessary) and $4,000 for Botox for a total of $36,500. I agree that Ms. Jones may improve but she has a long life ahead of her so the numbers add up. In addition there will be an award of $7,779.86 for special damages as agreed.

Conclusion and

summary of quantum of damages [ 138 ] In sum, Ms. Jones suffered from a serious soft tissue injury accompanied by various contusions, lacerations and resultant severe headaches and resultant chronic pain condition which includes fibromyalgia and myofascial pain disorder. She has required a significant amount of treatment in the form of aggressive physiotherapy, massage, various medications, and an exercise program. Ms. Jones’ career path in nursing was altered and her recreational lifestyle diminished.

She did all that could reasonably have been contemplated for her and yet unfortunately she developed a chronic pain condition and fibromyalgia which she will have to manage for the rest of her life. She has fought through her issues and as a result will be able to continue to develop her career. Through her perseverance she also maintains healthy relationships with the people who have stood by her, including her parents and boyfriend. [ 139 ] The collisions caused all of her injuries and conditions. She had no pre or post-accident events that account for any of these issues.

She was a credible witness and made reasonable claims for her injuries. As a result, as discussed above, I award her the following in damages: • Pain and suffering : $80,000 • Past loss of income: $18,403.79 • Loss of earning capacity: $125,000 • Loss of housekeeping capacity: $15,000 • Cost of future care: $36,500 • Special damages: $7,779.86 [ 140 ] The total award is $282,683.65 . In addition, she is awarded pre-judgement interest based on the Judgement Interest Act and its regulations on the pain and suffering, past loss of income, past housekeeping, and the special damages awards. Costs can be spoken to.

Heard between the 2 nd to the 11 th days of May, 2016. Dated at the City of Calgary, Alberta this 26 th day of May, 2016.

K.M. Eidsvik J.C.Q.B.A. Appearances: Simon Muller Austin Paladeau for the Plaintiff Bruce J. MacLeod for the Defendants