Jackson v Cooper, 2022 ABKB 609

Court of King’s Bench of Alberta Citation: Jackson v Cooper, 2022 ABKB 609 Date: 20220909 Docket: 1703 20132 Registry: Edmonton Between: Papa Jackson Plaintiff - and - Julie Cooper and Tower Financial Inc. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice M. Kraus _______________________________________________________ I. Introduction [ 1 ] The Plaintiff, Papa Jackson, seeks an assessment of damages arising from a motor vehicle accident in Edmonton, Alberta on October 21, 2015. [ 2 ] Liability is not an issue.

The Defendants admit 100% liability for the motor vehicle accident. [ 3 ] The motor vehicle accident took place at approximately 7:15 p.m. when Mr. Jackson was driving home from work. The Defendant driver admits that she accelerated after a stop sign at a T-intersection and that the front passenger side of the Defendant

vehicle struck (side impact) the rear passenger door of the Plaintiff vehicle. The Plaintiff vehicle was spun and faced the opposite direction after the collision. [ 4 ] The damage to the Plaintiff vehicle was assessed and the Plaintiff vehicle was eventually deemed a total loss. [ 5 ] Mr. Jackson states that he did not see the Defendant vehicle but, after the collision, he was confused and had noise in his ears. After exchanging information with the Defendant driver, Mr. Jackson went to the police station that evening but was told that they were closing and to come back the next morning.

He came back the next morning and reported the motor vehicle accident to the police. [ 6 ] As a result of the motor vehicle accident, Mr. Jackson sustained injuries to his neck, shoulders, back, chest, and ribs. At the trial, the Plaintiff called 10 ordinary witnesses (including 5 treatment providers) and 3 expert witnesses. The Defendants called 2 expert witnesses. II.

Issues [ 7 ] The parties agree that the Plaintiff sustained a past loss of income, including wages and overtime, in the total sum of $3,680, as a direct result of the motor vehicle accident. [ 8 ] The parties also agree that the Plaintiff incurred $1,367.89 in out-of-pocket expenses arising from the motor vehicle accident, including treatment, medications, parking, and mileage. [ 9 ] The following issues remain to be decided: (

a) Does the Minor Injury Regulation , Alta Reg 123/2004 [ MIR ] cap the recovery of the Plaintiff for general damages for pain, suffering, and loss of enjoyment of life? (

b) If not, what are the general damages for pain, suffering, and loss of enjoyment of life? (

c) What are the damages for past and future loss of earning capacity/competitive advantage? (

d) What are the damages for past loss of housekeeping capacity? (

e) What are the damages for future cost of care (including loss of housekeeping services)? and (

f) What is the pre-judgment interest on general damages? [ 10 ] I will discuss each issue in turn. III. Treatment

Summary [ 11 ] Mr. Jackson was born on May 26, 1984, in Ghana. Mr. Jackson immigrated to Canada in 2011. At the time of the motor vehicle accident, he was 31 years old and residing in Calgary with his wife, Sophia Yeboah, while commuting weekly to Edmonton for work. [ 12 ] At the time of the accident, Mr. Jackson did not have a family physician and was not familiar with the health care system and auto insurance system in Alberta. Aside from some postural irregularities, Mr.

Jackson had no pre-existing injuries or conditions prior to the motor vehicle accident and did not sustain any other injuries after the motor vehicle accident. [ 13 ] On October 23, 2015, two days after the motor vehicle accident, Mr. Jackson felt pain all over, including his neck and upper back, and attended as a walk-in patient with a family physician, Dr. Perkash Maheshwari. Dr. Maheshwari noted that Mr. Jackson looked well, showed no bruises or swelling, and had a full range of motion and a normal gait. He found mild pain of the paraspinal muscle and upper back muscle. He diagnosed Mr.

Jackson as having general symptoms, which he described as a soft tissue strain or sprain. Dr. Maheshwari prescribed diclo gel and advised that Mr. Jackson could take over the counter Tylenol. The treatment plan was physiotherapy and massage therapy. Mr. Jackson did not follow up with Dr. Maheshwari. [ 14 ] On October 31, 2015, Mr. Jackson attended with chiropractor Dr. Daniel Muller for an assessment at Glow Health & Vitality. Dr. Muller found “pain in palpation throughout compassion testing substance”. Dr. Muller diagnosed Mr.

Jackson with partial inflammation and spasms in C1 and C2 left (neck), T1 left, T4 to T8 right (upper back), and T11 to L3 left (lower back). The diagnosis was a sprain 1, strain 1, and WAD II. [ 15 ] On November 2, 2015, Mr. Jackson was also assessed at LifeMark Millwoods, Edmonton as having injuries to the lower neck, shoulder, and back around the ribs, primary to the neck and secondary to the shoulders. A referral was made to Calgary LifeMark for treatment for WAD 2 lateral sprain. Home exercises were recommended. He was also provided a cervical hot pack. [ 16 ] Mr. Jackson was pre-approved coverage by the

section B insurer for one assessment fee and 21 treatments within 90 days from the date of the motor vehicle accident under the Diagnostic and Treatment Protocols Regulation , Alta Reg 116/2014 for sprain 1, strain 1, and a whiplash Associated Disorder Grade II injury. The treatments could be physiotherapy, chiropractic care, massage therapy, acupuncture, and occupational therapy. [ 17 ] Dr. Muller treated Mr. Jackson four times in Calgary on November 7, 14, 21, and 28, 2015 and then the file was transferred to Edmonton, because Mr. Jackson and Ms. Yeboah moved to Edmonton from Calgary. The treatment plan was to have chiropractic

adjustments, massage therapy and/or physiotherapy as indicated, home care stretching, and orthopedic support. Mr. Jackson also attended Glow for massage therapy on October 26 and November 14. Mr. Jackson stated at trial that the massage therapy was helpful but not the chiropractic treatment. [ 18 ] After moving to Edmonton, Mr. Jackson attended with Dr. Terry Mcleod, chiropractor, on December 12, 16, and 23, 2015 and on January 13, 2016. Dr. Mcleod was not called as a witness at trial. Plaintiff counsel advised that they exhausted efforts to locate him and could not locate him.

As such, I will not draw any adverse inference from Dr. Mcleod’s nonappearance at trial. Instead, Dr. Mcleod’s medical chart is in the Agreed Book of Exhibits as evidence of any diagnosis, symptoms, treatment recommendations, and treatment he provided. [ 19 ] Notably, in his concluding report (Form AB 4) dated January 29, 2016, Dr. Mcleod described his initial assessment as a “cervical strain-thoracic strain” with “right sided rib pain at the T8 and T7 level”. The functional goal was improved mobility and the progress made towards that goal was “improved significantly”. Dr.

Mcleod’s chart states that the reason for discharge was “full recovery” and that the patient was working full time and had no work or training restrictions. His prognosis was described as “good.” [ 20 ] On February 7, 2016, Mr. Jackson attended as a walk-in patient with Dr. Adel Belhaj, family physician. Mr. Jackson reported that he felt better after physiotherapy and had no more neck or shoulder pain. Dr. Belhaj noted that Mr. Jackson “generally looks well and stable”. However, Mr. Jackson complained of bilateral chest pain, and musculoskeletal chest pain with tenderness on both sides of the 7 th to 9 th ribs.

He was diagnosed as having symptoms involving nervous and musculoskeletal systems. Dr. Belhaj’s treatment plan was to prescribe an inflammatory, arthotec, for Mr. Jackson. Mr. Jackson did not follow up with Dr. Belhaj. [ 21 ] On March 3, 2016, Mr. Jackson returned to physiotherapy and was assessed at LifeMark by Ms. Julie Spindler, physiotherapist. Subsequently, he attended LifeMark for 8 treatments between March 3 and May 6, 2016. [ 22 ] Ms. Spindler diagnosed Mr. Jackson with whiplash associated disorder (WAD II) along T6-10 and ribs 7-11, mostly at ribs 8/9.

She indicated that he had tenderness on palpation along lateral and posterior aspects of ribs 7-11, mostly at ribs 8/9. Mr. Jackson’s pain was 4-5/10 along the ribs bilaterally, and he experienced pain when running, sleeping, twisting, walking on uneven surfaces, and with prolonged sitting. He reported that this continued to impact his normal activities. The treatment plan was education, pain management, manual therapy, home exercise program, modalities, strengthening, and stretching. [ 23 ] In her concluding report, dated May 6, 2016, Ms. Spindler reported that the “client reports no remaining symptoms.

His range of motion is full and pain free and strength within normal limits. There is no tenderness on palpation. Client reports no remaining functional limitations.” His functional goals were to decrease pain, improve pain free range of motion, and improve functional activities. His progress toward goals “improved significantly”. The reason for the discharge was “full recovery”, and Ms. Spindler commented that “client reports all symptoms have resolved and objective testing within normal limits. Client is discharged with a home exercise program for maintenance.” Ms. Spindler confirmed that Mr.

Jackson did not return for follow up. [ 24 ] At trial, Ms. Spindler acknowledged that it would be possible for Mr. Jackson to have a recurrence of symptoms and to need more treatment after his discharge. Ms. Spindler explained that in her concluding report, she did not check the box marked “resolved” under “progress towards goals”, because there was a risk that Mr. Jackson’s symptoms would recur, as they did after discharge from Mcleod Chiropractic Clinic. [ 25 ] Mr. Jackson did not seek any follow up treatment from any treatment provider after his discharge from physiotherapy on May 6, 2016. Mr.

Jackson’s insurance company advised him that it was closing its file. This was 7 months after the motor vehicle accident. IV. Experts [ 26 ] In 2020, Mr. Jackson was assessed by the two medical experts called at trial, the Plaintiff’s expert (a family and emergency room physician with a practice in chronic pain) and the Defendants’ expert (an orthopedic surgeon). Both experts diagnosed Mr. Jackson with soft tissue injuries and, more specifically, chronic thoracic myofascial pain. The experts do not agree on the causation or impairment rating of those injuries. 1. Dr.

Boucher [ 27 ] The Plaintiff’s medical expert was Dr. Michael Boucher. Dr. Boucher was qualified as an an expert in musculoskeletal injuries, soft-tissue injuries, and chronic pain management, including the psychological aspects of chronic pain. [ 28 ] Dr. Boucher is familiar with and understands the Minor Injury Regulation and the Diagnostic and Treatment Protocols Regulation . He has received his master’s level certification from the American Board of Independent Medical Evaluators and has also been certified in Alberta to perform certified examinations. [ 29 ] Dr. Boucher assessed Mr.

Jackson on March 3, 2020 and diagnosed Mr. Jackson with the following: 1. Cervical myofascial strain (WAD II injury) with chronic myofascial pain; 2. Thoracic myofascial strain with chronic myofascial pain; 3. Lateral chest wall/rib contusion, predominately on the left side; 4. Query adjustment disorder with depressed mood and anxiety (with predominant pain); and 5. Sexual dysfunction/loss of libido.

[ 30 ] Dr. Boucher’s expert opinion evidence was that his diagnosis related directly to injuries sustained in the motor vehicle accident. Dr. Boucher’s opinion is based on the subjective complaints of Mr. Jackson, his review of Mr. Jackson’s medical records, and a thorough examination of Mr. Jackson. [ 31 ] It bears saying that Dr. Boucher’s expert report was prepared using the 6 th edition of the AMA Guidelines. However, with respect to his opinion about Mr. Jackson’s Whole Person Impairment, Dr. Boucher used the 4 th edition of the AMA Guidelines. [ 32 ] Under the 4 th edition of the AMA Guidelines, Dr.

Boucher’s opinion was 10% Whole Person Impairment: Cervical Spine 5% and Thoracic Spine 5%. In cross examination, Dr. Boucher conceded that the Whole Person Impairment under the 6 th edition of the AMA Guidelines would be 4-6%. [ 33 ] The Defendants argue that Dr. Boucher chose to use the out-of-date 4 th edition of the AMA Guidelines with respect to Whole Person Impairment specifically in order to assess an exaggerated impairment rating. I agree with the Defendants. Consequently, I do not accept Dr. Boucher’s opinion under the 4 th edition of the AMA Guidelines about Whole Person Impairment.

Other than this issue, I note Dr. Boucher was an objective and impartial witness. 2. Dr. Panaro [ 34 ] The Defendant’s medical expert was Dr. Carlo Panaro. Dr. Panaro was qualified as an expert in orthopaedic surgery. Dr. Panaro assessed Mr. Jackson on November 18, 2020. [ 35 ] Based on his review of the medical records and assessment of Mr. Jackson, Dr. Panaro stated that Mr. Jackson sustained a soft tissue strain to his bilateral shoulders, neck, back, and left posterior ribs as a result of the accident.

However, in his opinion, the soft tissue injuries would have “recovered” long ago as soft tissue muscle sprains and strains typically resolve within 3 months. [ 36 ] At the time of the assessment, Dr. Panaro diagnosed Mr. Jackson with chronic mild myofascial pain in the mid thoracic area predominately on the left side. Dr. Panaro’s opinion is that the chronic mild myofascial pain is not attributable to the motor vehicle accident. Dr. Panaro did not provide an opinion on the cause of Mr. Jackson’s assessed chronic myofascial pain. [ 37 ] Mr. Jackson did not report his left sided neck pain to Dr.

Panaro, even though he had reported it to Dr. Boucher. As a result, Dr. Panaro did not complete a full examination of Mr. Jackson’s cervical spine. Based on what he did assess, Dr. Panaro assessed Mr. Jackson’s Whole Person Impairment at 0%. [ 38 ] On cross-examination, Plaintiff’s counsel challenged the limitations of Dr. Panaro’s expertise and the quality of his assessment. I note the following: (

a) Dr. Panaro is not qualified to perform certified examinations under the MIR and the Diagnostic and Treatment Protocol Regulations . (

b) Contrary to his Report, the video recording of Dr. Panaro’s assessment reveals that Dr. Panaro did not conduct a TMJ exam, did not perform a full cranial nerve examination, and did not conduct a complete cervical spine examination. (

c) Contrary to his Report, Dr. Panaro admitted in cross-examination that soft tissue sprains and strains do not always heal within three months of sustaining injuries and people who remain symptomatic at three months can have symptoms in the long term. 3. Other Experts [ 39 ] In addition to the two doctors, Mr. Jackson was also assessed by two occupational therapists. The Plaintiff’s occupational therapist, Lisa Huskins, was qualified as an expert to provide opinion evidence about functional ability evaluation and care needs, including housekeeping and loss of housekeeping capacity.

Scott Fitzgerald, physical therapist, assisted with the assessment but did not testify. [ 40 ] The Defendant’s occupational therapist, Connie Erker, was qualified to provide opinion evidence with respect to Mr. Jackson’s functional capacity and his need for housekeeping services, cost of future care, and future care needs. [ 41 ] The Plaintiff’s expert, Kelly Rathje, was also qualified as an expert to provide opinion evidence about the quantification of pecuniary damages. Ms. Rathje’s calculations are based upon the report prepared by Ms. Huskins. V. Analysis (

a) Does the Minor Injury Regulation cap the recovery of the Plaintiff for general damages for pain and suffering and loss of enjoyment of life? [ 42 ] The Defendants argue that Mr. Jackson sustained minor injuries as that term is defined by the Minor Injury Regulation . The Plaintiff argues that his injuries are not minor. [ 43 ] The MIR sets a cap on non-pecuniary loss for all minor injuries. In 2015, when the accident occurred, the minor injury amount was set at $4,892. The MIR does not cap other heads of damages. [ 44 ] As the accident occurred in 2015, the version of the MIR that was in force on that date governs. With that in mind, the MIR defines a minor injury as follows:

“minor injury”, in respect of an accident, means (

i) a sprain, (ii) a strain, or (iii) a WAD injury caused by that accident that does not result in a serious impairment; (s 1(1)(h)). [ 45 ] As this definition suggests, to determine whether an injury is minor requires a determination of whether an injury is a sprain, strain, or WAD injury and, then, whether the injury results in a serious impairment: MIR , s 4(1).

In other words, an individual who is diagnosed with a sprain, strain, or WAD I/II injury may fall outside the MIR cap if their injury results in “serious impairment” of their physical or cognitive function. [ 46 ] Sprain, strain, and WAD injury are all defined terms under the MIR : “sprain” means an injury to one or more tendons or ligaments, or to both; “strain” means an injury to one or more muscles; “WAD injury” means a whiplash-associated disorder other than one that exhibits one or both of the following: objective, demonstrable, definable and clinically relevant neurological signs; a fracture to or a dislocation of the spine. (ss 1(1)(k), (l), n)). [ 47 ] Under the MIR , the determination of whether an injury is a sprain, strain, or WAD injury must be based on an individual assessment of the claimant in accordance with the diagnostic protocols established under the Diagnostic and Treatment Protocols Regulation : s 4(2). [ 48 ] The term “serious impairment” is defined under section 1(1) (

j) of the MIR : “serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function (

i) that results in a substantial inability to perform the (

A) essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession, (

B) essential tasks of the claimant’s training or education … , or (

C) normal activities of the claimant’s daily living, (ii) that has been ongoing since the accident, and (iii) that is expected not to improve substantially; [ 49 ] Under the MIR , the determination of whether a sprain, strain or WAD injury results in a serious impairment must take into account the claimant’s pre-existing medical history and the matters listed in s 1(j)(

i) that relate to the claimant: s 4(3). Moreover, the sprain, strain, or WAD injury must be the primary factor contributing to an impairment for the injury to result in a serious impairment: MIR , s 3. [ 50 ] In Sparrowhawk v Zapoltinsky , 2012 ABQB 34 [ Sparrowhawk ], Justice Shelley articulated five analytical steps to determine if there has been a serious impairment under the MIR : 1. Is a physical or cognitive function impaired? 2. Is the sprain, strain, or WAD injury "the primary factor contributing to the impairment"? 3. Does the impairment cause substantial inability to perform: a. Essential work tasks, b.

Essential facets of training or education, or c. "Normal activities of the claimant's daily living"? 4. Has the impairment has been "ongoing since the accident"? and 5. Is the impairment not expected to "improve substantially"?

(at para 96). [ 51 ] In this matter, the parties agreed that Mr. Jackson’s injuries were sprains, strains, or WAD injuries. However, both Dr. Boucher and Dr. Panaro agreed that Mr. Jackson continues to suffer chronic myofascial pain.

Chronic myofascial pain is not a strain, sprain, or WAD injury under the MIR : Morrow v Zhang , 2009 ABCA 215 at para 85 ; McLean v Parmar , 2015 ABQB 62 at paras 60-62 . [ 52 ] I note that the MIR was amended in 2020 so that a minor injury includes a strain, sprain, or WAD injury, as well as any clinically associated sequelae of a strain, sprain, or WAD injury, whether physical or psychological: s 1(1)(h). However, the 2020 amended MIR is explicit that this amendment does not apply to any injury that occurred before November 1, 2020. Accordingly, I find that the MIR , as it existed in 2015, does not apply to Mr.

Jackson’s chronic myofascial pain. [ 53 ] Since the parties argued the issue of whether Mr. Jackson experienced a serious impairment, I will also consider that issue, following the five analytic steps set out by Justice Shelley. As part of that analysis, I will discuss whether the motor vehicle accident was the cause of Mr. Jackson’s chronic pain. 1. Physical or Cognitive Impairment [ 54 ] The Plaintiff gave evidence that he has suffered injuries to his neck and back and that as a result he continues to experience pain. As mentioned, both Dr. Boucher and Dr.

Panaro agreed that the Plaintiff continues to suffer chronic myofascial pain. [ 55 ] The Defendants dispute the extent to which Mr. Jackson’s injuries persist and whether his injuries are the cause of his ongoing pain. However, the Defendants do not seriously contest that Mr. Jackson has a physical or cognitive impairment, namely chronic pain. Accordingly, I find that this initial requirement has been made out. 2. Primary Factor [ 56 ] The Defendants argue that Mr. Jackson’s chronic pain is not causally connected to the accident. The Plaintiff takes the position that the accident caused Mr.

Jackson’s injuries, as well as his ongoing pain. [ 57 ] Dr. Boucher concluded that the accident was the cause of Mr.

Jackson’s chronic pain: Given the [psychological impairment and chronic pain] and my experience in assessing and managing individuals who have been injured and developed chronic pain, and based on my understanding of the medical evidence, I would conclude that he has an impairment that, was directly (physically and psychologically) or indirectly (psychosocial aspects due to pain and pain related limitations, the use of medications, change in lifestyle, financial stress, relationships, etc.) sustained because of the subject motor vehicle collision in question. [ 58 ] The Defendants’ expert, Dr.

Panaro, also diagnosed Mr. Jackson with chronic mild myofascial pain in the mid thoracic area, predominately on the left side. However, Dr. Panaro did not think the accident was the cause of the chronic pain. He did not provide an opinion on the cause of Mr. Jackson’s assessed chronic myofascial pain. [ 59 ] With respect to the causation of Mr. Jackson’ ongoing chronic myofascial pain, Dr. Boucher’s opinion is that the chronic myofascial pain was caused by the injuries sustained in the motor vehicle accident, whereas Dr.

Panaro’s opinion is that the chronic myofascial pain was not caused by the injuries sustained in the motor vehicle accident. I prefer Dr. Boucher’s evidence on this point because I find Mr. Jackson to be a credible witness, and, therefore, Mr. Jackson’s subjective complaints underlying Dr. Boucher’s opinion are validated. [ 60 ] Relying on Dr. Boucher’s opinion, I conclude on a balance of probabilities that the motor vehicle accident is the primary factor contributing to Mr. Jackson’s ongoing pain. 3.

Substantial Inability [ 61 ] The Plaintiff argues that he has a substantial inability to engage in normal activities of daily living, including: 1. Performing part-time work; 2. Performing employment with physical labour components; 3. Doing his pre-accident household chores ; 4. Sporting and leisure activities that he enjoyed doing prior to the accident; 5. Physical relations with his wife; and 6. Caring for and playing with his children. [ 62 ] The Defendants argue that the Plaintiff’s injuries have not resulted in a substantial inability to perform any of these tasks.

More specifically, the Defendants argue that the Plaintiff is able to perform all of the essential tasks of his regular employment, given that he has only missed a nominal amount of overtime right after the accident and, since then, has worked in his chosen field without interruption. [ 63 ] The Defendants argue further that the medical evidence shows Mr. Jackson is able to perform all of his activities of daily living, including housework. The Defendants argue there is nothing to prevent Mr. Jackson from playing soccer, and he has not proven that his injuries prevent him from doing so.

Finally, the Defendants argue that Mr. Jackson is now more than 5 years older than he was

at the time of the accident, so it makes sense he cannot play with his children with the same vigour that he used to play with his friend’s children. [ 64 ] With respect to the first point, I agree with the Defendants that Mr. Jackson does not have a substantial inability to perform the essential tasks of his regular employment under s 1(j)(i)(

A) of the MIR . Indeed, he missed only a nominal amount of time from work as a result of the injuries sustained in the motor vehicle accident and has successfully found work with five different employers since the motor vehicle accident. [ 65 ] Mr. Jackson gave evidence that his injuries prevented him from taking on extra part-time work as a labourer at a warehouse. However, at the time of the accident, Mr. Jackson’s regular employment did not include any such part-time work or any work with a physical component.

So, any impact on his ability to engage in this type of work cannot be considered a serious impairment to the essential tasks of his regular employment. [ 66 ] That said, I do not agree with the Defendants that Mr. Jackson is able to perform his activities of daily living without impairment, per s 1(j)(i)(

C) of the MIR . In Sparrowhawk , Justice Shelley considered the meaning of the term substantial inability with respect to a normal activity of daily living.

She concluded that a substantial inability exists where an injury: 1. prevents an injured person from engaging in a “normal activity of daily living”, 2. impedes an injured person’s engaging in a “normal activity of daily living” to a degree that is non-trivial for that person, [or] 3. does not impede an injured person from engaging in a “normal activity of daily living” but that activity is associated with pain or other discomforting effects such that engaging in the activity diminishes the injured person’s enjoyment of life. (at para 113). [ 67 ] In this case, Mr.

Jackson reported that he had difficulty or was functionally limited in performing normal activities of his daily living since the motor vehicle accident. [ 68 ] According to Mr. Jackson’s testimony, he experienced pain and discomfort when commuting between Edmonton and Calgary, and this was a factor that prompted him and Ms. Yeboah to move from Calgary to Edmonton. [ 69 ] Mr. Jackson said he also performed more household chores prior to the motor vehicle accident. However, as a result of the injuries sustained in the motor vehicle accident, Mr.

Jackson could not perform his household chores to the same quality, for the same duration, or without pain, as he could prior to the motor vehicle accident. [ 70 ] Additionally, Mr. Jackson gave evidence that he was an avid and active soccer player prior to the motor vehicle accident. However, he has not returned to playing soccer, because he is scared of being injured. He also played ping pong, basketball, and ran before the motor vehicle accident, which he now cannot enjoy as he did prior to the motor vehicle accident. [ 71 ] According to Mr. Jackson, his injuries have also affected his family life. Mr.

Jackson can no longer engage in some intimate positions with his wife, and the frequency of their sexual activity has diminished. Mr. Jackson also has two young children, born in March 2017 and April 2019, but he is limited in how he can play with them. He also says he cannot play with his friend’s children in the same physical manner as he did prior to the motor vehicle accident. [ 72 ] Cumulatively, I find that the effect of Mr. Jackson’s injuries on performing the normal activities of daily living have diminished his enjoyment of his life, because I accept Mr.

Jackson’s evidence about his impairment to perform normal activities of daily living and that these normal activities of daily living are associated with pain, functional limitation, or other discomforting effects such that there has been a diminishment to the enjoyment of Mr. Jackson’s life . [ 73 ] At trial, Mr. Jackson stated that performing household chores causes him pain and aggravates his injuries. His evidence was corroborated by Ms. Yeboah, as well as his friends. Mr. Jackson’s evidence about the impacts on his family life were also corroborated by Ms. Yeboah and his friends, and I accept Mr.

Jackson’s evidence on both of these points. [ 74 ] I also accept that Mr. Jackson no longer players soccer due to the accident. The evidence showed that Mr. Jackson was not able to play basketball for more than 15 minutes without experiencing pain. I accept that he can no longer play high intensity sports without experiencing pain and that this represents a substantial inability to perform a normal activity of daily living: see McLean v Parmar at para 55 . [ 75 ] Finally, I rely on the evidence of Dr. Boucher, who agreed with Mr. Jackson’s self-assessment. Dr. Boucher testified that Mr.

Jackson’s physical injuries and associated psychological impairments developed into functionally chronic pain. The effect of the functionally chronic pain is that “while he can complete daily tasks, he does so with varying amounts of pain that interferes with his ability to complete the general activities of daily living, as well as interferes with his ability to perform his employment tasks and pre- collision activities”. [ 76 ] The Defendants argued that Mr. Jackson did not suffer from a substantial impairment, because Dr. Panaro’s evidence was that his Whole Person Impairment is 0%. This is in contrast to Dr.

Boucher’s assessment of 4-6% under the 6 th Edition of the AMA Guidelines. However, the issue of degree of Whole Person Impairment does not need to be decided, because the issue under the MIR is whether Mr. Jackson has suffered a substantial inability to perform the normal activities of daily living. I find that Mr. Jackson has suffered such a substantial inability, regardless of his degree of Whole Person Impairment. 4. Ongoing Since the Accident [ 77 ] The Plaintiff argues that his injuries have been ongoing since the accident and that his impairments have persisted over time,

even though the degree of dysfunction has varied since the accident. [ 78 ] The Defendants argue that Mr. Jackson’s injuries were resolved in May 2016 (7 months after the motor vehicle accident), when he was discharged from physiotherapy and after he was previously discharged from chiropractic care. Consistent with his injuries being resolved, Mr.

Jackson did not follow up with any treatment thereafter. [ 79 ] In Sparrowhawk , Justice Shelley discussed the meaning of the term ongoing in the context of the MIR : I conclude that the “ongoing” criterion in the definition of serious impairment does not mean “continual” or “uniform”, but rather that the impairment persists over time. The degree of dysfunction may be variable. That, again, is consistent with the direction of the

Interpretation Act , s. 10. ... Here, the objective of the legislation is only achieved where an impairment is “ongoing”, even when that impairment involves intermittent but persistent dysfunction. Minor injuries include “strains”, injuries to muscles. As muscles tire, “strain” related dysfunction can be expected to vary. (at paras 116-118). [ 80 ] At trial, Mr. Jackson testified that he continues to suffer ongoing chronic pain in his mid-thoracic area and ribs, especially on the left side. The Plaintiff’s expert, Dr. Boucher, also gave opinion evidence that Mr. Jackson’s injuries are chronic. Dr.

Boucher explains: As a direct result of the indexed motor vehicle collision, Mr. Jackson sustained injuries that have resulted in functionally limiting chronic pain. Chronic pain develops in individuals because of a physical and/or emotional insult, occurs in individuals with faulty coping mechanisms for managing emotional and physical pain, and often develops a course of its own, independent from physical injury. It is usual that chronic pain results in pain and disability that lasts considerably longer than anticipated when physical injuries would be typically healed.

Specific treatment for chronic pain is essential. Depression and anxiety commonly co-exist with chronic pain and influence its development and are often worsened as a chronic pain impulse, as is the situation here. Mr. Jackson’s mood continues to be compromised. I suspect that his perceived levels of physical pain may be related to his psychological impairment... The AMA Guides, 6th Edition (2007) , outlines the concept of chronic pain. Musculoskeletal injuries typically improve over a period of three months. When these injuries do not improve in that timeframe, they are consistent with chronic pain.

His symptoms of pain and associated limitations have now been present for nearly 4½ years. Based on my performing a history and physical examination and reviewing the mechanism of the collision, and reviewing the relevant documentation, it is my opinion that Mr. Jackson has a chronic condition, probably of permanent impairment. While I believe further recovery is possible, I doubt he will achieve his pre-collision level of function. [ 81 ] The Defendant’s expert, Dr. Panaro, provided an opinion that “soft tissue sprains and strains heal within 3 months of an injury”.

From his review of the medical records and his assessment of Mr. Jackson, Dr. Panaro found that Mr. Jackson fully recovered from the injuries he had sustained in the motor vehicle accident. [ 82 ] At trial, however, Dr. Panaro clarified his opinion to say that soft tissue injuries typically resolve within 3 months but some people continue to experience pain after 3 months. Also, Dr. Panaro stated that according to the American Medical Association, chronic pain is defined as pain that persists beyond the typical 3 to 6 months mark. [ 83 ] I have already found that Mr.

Jackson’ s chronic pain was caused by the motor vehicle accident, and, as such, I do not accept Dr. Panaro’s evidence that Mr. Jackson’s symptoms had resolved. On this point, I prefer the evidence of Dr. Boucher over that of Dr. Panaro. [ 84 ] The Defendants rely on the evidence of the physiotherapist, Ms. Spindler, who said that Mr. Jackson’s symptoms had resolved by April 2016. However, Ms. Spindler explained that there was a risk Mr. Jackson’s injuries would recur, as they did after Mr. Jackson was discharged from Mcleod Chiropractic Clinic.

That is why she did not check the box marked “resolved” under “progress towards goals” in the Concluding Report. [ 85 ] As well, the Defendants argue that I should not accept Mr. Jackson’s evidence about his ongoing pain, because Mr. Jackson’s evidence at trial contradicted the evidence he gave at questioning. They allege that his evidence was inconsistent and self-serving. I disagree. [ 86 ] Mr. Jackson explained that, after his discharge from physiotherapy in May 2016, he received advice that he could reasonably expect his symptoms to improve, his injuries to heal, and his pain to go away.

He stopped treatment, but his symptoms continued, although the “active pain” disappeared for a period of time. [ 87 ] Although he was not experiencing “active pain”, Mr. Jackson explained that he still had bouts of pain that he did not complain about but which he managed by avoiding or managing his activity: Q -- 2016 you had a period of time that was pain free? A I had a period if time which I wasn't feeling any active pain. Q Did you do some activities during that period of time that caused pain?

A No, I was scared although the active pain disappeared for a period of time and there were -- there was still treats of pain but I wasn't

making any complaining noise about it but I was scared to do something to risk my life, or risk me getting hurt. [ 88 ] At his Questioning for Discovery in December 2019, Mr. Jackson stated that his injuries resolved in December 2017 or January 2018 (about 2 years and 3 months after the motor vehicle accident). However, at trial, when asked about whether his injuries had resolved at that time, Mr. Jackson explained as follows: Q So, Mr. Jackson, at questioning we went through each of your injuries -- A M-hm.

Q -- and you told me that at the very latest it resolved completely by December 2017 or January 2018; correct? A Yeah. Q And today you're telling us a different story? A At that point in time resolved, as I mentioned, I see -- I don't know how, the word, like my -- let's assume this is a pipe, and if this is a pipe and it's leaking, and I wrap a tape around it, and it's leaking a little bit, I consider it as resolved. But has it been restored? No. Pipe is resolved, it is not leaking intensive as it used to but is it restored? No. Resolved, yes it is resolved. So at that point in time that is how I understood you.

Q So, Mr. Jackson, you are telling me you didn't understand my questions? A I understood you based on my own understanding of how the thing was resolved. Q And you have a different understanding of what resolved was. A I don't know whether is the basic understanding of resolution or something, but that is what I thought at that point in time. [ 89 ] Mr. Jackson’s explanation about “active pain”, his understanding of “resolution”, and his reporting of his ongoing chronic pain at trial is subjective. Mr. Jackson’s reporting is a reporting of his intermittent symptoms at different points in time.

He did not exaggerate. He is not a malingerer. I accept Mr. Jackson’s evidence, because I find Mr. Jackson to be a credible witness. [ 90 ] On a balance of probabilities, I find that Mr. Jackson’s injuries did not heal at some point in time prior to the trial and that Mr. Jackson’s symptoms reported at trial and chronic myofascial pain are ongoing. 5. No Substantial Improvement [ 91 ] The Defendants did not argue the issue of substantial improvement, given their position that Mr. Jackson’s injuries had resolved.

However, as this is a requirement under the MIR , I will still consider the issue. [ 92 ] In Sparrowhawk , Justice Shelley discussed the requirement under the MIR that for there to be serious impairment, the injury must not be expected to improve substantially. She explained: ... I conclude that “substantial improvement” does not mean “any improvement” but, rather, that the dysfunction cannot be expected to improve to such a degree that the “substantial inability” ( MIR , s. 1 (j)(i)) will cease. Substantial improvement is evaluated on a subjective basis specific to the injured individual.

Unlike the Ontario legislation ( Ontario Regulation , s. 4.2(1)), the MIR has no requirement to evaluate the probability of “... substantial improvement when sustained by persons in similar circumstances”. (at paras 120-21). [ 93 ] Dr. Boucher provided an opinion that Mr. Jackson has reached maximum medical improvement as defined in the AMA Guides 6 th edition: “the point at which a condition has stabilized and is unlikely to change (improve or worsen substantially in the next year with or without treatment)”. I accept Dr. Boucher’s opinion and find that Mr.

Jackson’s dysfunction cannot be expected to improve to such a degree that the “substantial inability” will cease. 6. Conclusion [ 94 ] I find that, as a result of the motor vehicle accident, Mr. Jackson sustained a serious impairment, namely, an impairment of a physical or cognitive function, which has resulted in a substantial inability to perform the normal activities of his daily living, which has been ongoing since the motor vehicle accident, and which is not expected to improve substantially.

In any event, chronic myofascial pain is not the type of injury covered by the MIR as it existed at the time of the accident. [ 95 ] As such, the evidence viewed as a whole persuades me, on a balance of probabilities, that Mr. Jackson’s ongoing chronic myofascial pain is not a “minor injury” under the MIR . Consequently, Mr. Jackson’s general damages for pain, suffering, and loss of enjoyment of life are not capped under the MIR . (

b) General Damages - Pain and Suffering and Loss of Enjoyment of Life

[ 96 ] Having found that the MIR does not cap Mr. Jackson’s claim for general damages for pain and suffering and loss of enjoyment of life, Mr. Jackson’s claim for general damages needs to be assessed. [ 97 ] In Jones v Stepanenko , 2016 ABQB 295 ($80,000), a 19-year-old Plaintiff nursing student suffered soft tissue injuries to her neck, back, shoulder, knees, and hip, as well as pain in her left jaw as the result of a significant rear-end car accident in 2009. She also suffered severe headaches.

She diligently pursued physiotherapy, massage therapy, and exercise programs on a regular basis from the date of the accident up until the time of trial. These treatments helped to lessen some of her symptoms; however, her improvement plateaued around 2011. In 2012, she was diagnosed with fibromyalgia—a chronic pain condition. [ 98 ] The Plaintiff had to limit some of her nursing and recreational activities due to her pain. She could no longer snowboard or go on rigorous hikes.

She had to cut down on hours at her nursing job and ultimately changed to a more sedentary job as an addictions counsellor to help alleviate her symptoms. At the time of trial, she was still actively managing her chronic pain condition, which the court accepted would continue into the future with certain amounts of waxing and waning. The court awarded $80,000 in general damages. [ 99 ] In Stevenson v Thompson , 2017 ABQB 451 ($75,000), a 45-year-old Plaintiff sustained mild to moderate WAD injuries to her neck, back, and arm and cervicogenic headaches as the result of a car accident in 2008.

Prior to the accident she struggled with a hyperthyroid condition, depression, anxiety, and stress. These pre-existing conditions amplified the pain she subjectively experienced as a result of the accident—pain that the Court ultimately found was exaggerated. [ 100 ] She underwent chiropractic, acupuncture, and massage therapy treatments until her improvement plateaued in 2012. She was diagnosed with chronic pain in 2011.

The Plaintiff and her husband agreed that her physical limitations curtailed her physical, social, sexual, and domestic activities and negatively impacted her quality of life. [ 101 ] At the date of trial, she was continuing with regular acupuncture and occasional chiropractic treatment to help manage her pain. However, she never followed medical advice to engage in an exercise or physiotherapy program. It was accepted that her symptoms of chronic regional myofascial pain syndrome in her neck, upper back, and right lumbar spine would continue into the future with “attendant peaks and valleys”.

The court assessed $75,000 in general damages but reduced the award by 20% to account for the Plaintiff’s failure to mitigate by following treatment plans. [ 102 ] In Smith v Obuck , 2019 ABQB 593 ($70,000), an 18-year-old Plaintiff sustained soft tissue injuries as a result of a car accident in 2007. Prior to the accident he worked a labor-intensive landscaping job and was active in sports. He was in good health at the time of the accident. [ 103 ] After the accident he developed back, shoulder, and neck pain. He attended physiotherapy which helped alleviate most of his pain, but he plateaued after 12 sessions.

He had 158 chiropractic treatments between 2010 and 2018. He was assessed as having a whole person impairment rating of 3% at a 2015 IME, which was not expected to improve. His symptoms never fully resolved over the 11 years between the accident and trial, during which he developed depression and was diagnosed with chronic myofascial back pain. [ 104 ] This impairment limited his ability to take on heavier work positions and participate in recreational athletics. The Plaintiff abandoned his chosen career path of being a heavy equipment operator due to his chronic back pain.

The court awarded $70,000 in general damages. [ 105 ] In Petz v Duguay , 2017 ABQB 90 ($50,000), a 44-year-old Plaintiff suffered soft tissue injuries as a result of a car accident in 2004. She was diagnosed with WAD I and a lumbar strain, which was accepted to have caused her disabling pain for a period of time. The Plaintiff alleged that she continued to suffer from debilitating chronic pain at the date of trial.

However, the court found that she was not a credible witness and thus discounted her evidence and the expert evidence that relied on her subjective reports of pain. [ 106 ] The court determined that she had recovered from her accident-related injuries by 2008. The court awarded $50,000 in general damages. [ 107 ] In Bumstead v Dufresne , 2015 ABQB 787 ($50,000), a 43-year-old Plaintiff sustained soft tissue injuries to his back as a result of a car accident in 2005. He was diagnosed with a WAD II lumbar strain, which caused him moderate-severe pain in his mid and lower back.

He received chiropractic and physiotherapy treatments intermittently for three years following the accident but did not report improving overall. [ 108 ] Although the Plaintiff claimed that his pain was chronic and that it made him unable to work in any capacity, he was found to not be a credible witness.

Surveillance video showed the Plaintiff engaging in extended physical activities which contradicted his narrative of symptoms and disability. [ 109 ] The court determined that the Plaintiff’s complaints of ongoing debilitating pain could not be attributed to the Defendant beyond two and a half years after the accident. The court awarded $50,000 in general damages. [ 110 ] In Pfob v Bakalik , 2003 ABQB 819 ($42,000), a 45-year-old Plaintiff sustained multiple short and long-term injuries as a result of a car accident in 1998. He suffered a low back injury which resolved within 5 months of the accident.

However, he continued to suffer ongoing strain due to whiplash to the neck, shoulders, and upper back; myofascial pain syndrome; headaches and dizziness; mild depression; and anxiety. He attended over 300 chiropractic treatments to help with the pain in his neck. [ 111 ] The Plaintiff could not exert himself like he used to before the accident. He gave up his second job and stopped lifting weights. Activities like changing a tire or throwing a frisbee could cause a flare-up of painful, debilitating symptoms.

The Court accepted that he suffered chronic pain (causing sometimes continuous and sometimes intermittent problems) and was expected to have it continue into the future. He was awarded $42,000 in general damages. [ 112 ] In Ly v Gilbert , [2001] AJ No 1779, 2001 CarswellAlta 1524 ($25,000), two 36-year-old Plaintiffs sustained whiplash injuries

to their neck and lumbar spines as a result of a car accident in 1998. [113] The female Plaintiff was unable to work her job as an installer on an assembly line for three weeks following the accident.When she returned to work it was on lighter duties. She suffered headaches and acute pain in her neck and back for approximately a year.She continued to have occasional non-limiting back pain and neck stiffness. Between the accident and date of trial she had underwentapproximately 86 chiropractic treatments and 27 massage treatments.

She was awarded $20,000 in general damages. [114] The male Plaintiff was unable to work for one week following the accident. He suffered neck, back, shoulder, and head painwhich substantially resolved within a year. He continued to have some ongoing back problems which were found to be variable andlargely work-related. He attended 86 chiropractic and 24 massage treatments. The male Plaintiff was never prescribed a permanentimpairment rating—any loss of range of motion that he suffered was minimal.

He was awarded $25,000 in general damages. [115] In Sluth v Kostyniuk, 2004 ABQB 917 ($20,000), a 21-year-old Plaintiff was struck by a car while crossing the street in 2000.He suffered soft tissue injuries to the neck, shoulder, and back that were mild in severity. He missed two weeks of work as a shophandfor an oilfield company after the accident. The Plaintiff attended 33 chiropractic treatments and 10 visits to an orthopaedic specialist. Itwas found that his mild whiplash injury resolved within 18 months.

Damages were assessed at $20,000. [116] The accident also aggravated a pre-existing disc herniation, leading to chronic low back pain and a future potential diskherniation. It was accepted that the continuous low-level pain and discomfort would restrict his work and recreational activities for mostof his life. An additional $20,000 was added for the disc aggravation for a total of $40,000 in general damages. [117] In this case, Mr. Jackson seeks $75,000. The Defendants state that if the MIR does not apply, the general damages should be$20,000.

I am mindful that the quantum of damages in each historical case needs to be increased to reflect the rate of inflation to thepresent date. [118] I conclude that, although Mr. Jackson received treatment for his injuries for only 7 months after the motor vehicle accident andwas able to continue full-time employment, he has sustained a significant and ongoing negative impact on his normal activities of dailyliving and his enjoyment of life. Given Mr. Jackson’s injuries and the impact that it has had on his life, his general damages for pain,suffering, and loss of enjoyment of life are assessed at $55,000. (

c) Past and Future Loss of Earning Capacity/Loss of CompetitiveAdvantage [119] Mr. Jackson seeks $80,000 for his past and future loss of earning capacity/loss of competitive advantage. Due to his injuries,Mr. Jackson is no longer able to perform physical labour and has lost the ability to supplement his income by working in a warehouse. [120] The Defendants submit that Mr. Jackson has not suffered any past or future loss of earning capacity.

Alternatively, if he hassuffered a past loss, it is $10,660 based on what he would have earned if he had worked in a warehouse for the 6 months followingSeptember 2020 for 20 hours per week at $20.49 per hour. [121] An award based on a loss of earning capacity compensates individuals for the loss of a capital asset, the capacity to earn: MB vBritish Columbia, 2003 SCC 53.

Loss of earning capacity is sometimes framed as a loss of competitive advantage: Sutherland v EncanaCorp, 2014 ABQB 182 [Sutherland]. [122] The test for loss of earning capacity is set out in Smith v Obuck at para 420: The test is whether there is a real and substantial possibility the Plaintiff has been rendered less capable of earning an income from manysources of employment, is less marketable to potential employers, and is less able to take advantage of opportunities that may becomeavailable: Chisholm v Lindsay, 2015 ABCA 179, 600 AR 311. [123] The burden of proof and the method to determine damages for the loss of earning capacity is explained in Adeshina v Litwiniuk& Company, 2010 ABQB 80 at paras 521-22: The plaintiff has the burden of proving future loss of earning capacity on a simple probabilities basis, namely was there a real andsubstantial possibility of the loss and not mere speculation: Olson, Palpal-Latoc v.

Berstad, 2004 ABCA 92, add’l reasons 2004 ABCA212, leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 186; Byron v. Larson, 2004 ABCA 398, 357 A.R. 201; Lowe v. Larue, 2000ABCA 28, 250 A.R. 220. The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian adlitem of) v. Riley Estate (1995), (BC CA), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff's earningcapacity as a capital asset has been established, that impairment must be valued.

The valuation may involve a comparison of theplaintiff’s likely future both without and then with the accident. As a starting point, a trial judge may determine the present value of thedifference between the amounts earned under those two scenarios. But if this is done, it is not to be the end of the inquiry: Ryder v.Paquette, (sub nom. Ryder (Guardian ad litem of) v. Jubbal), [1995] B.C.J. No. 644 (C.A.).

The overall fairness and reasonableness ofthe award must be considered taking into account all of the evidence. [124] In determining whether a reasonable chance of loss is established, a court will take into account the plaintiff’s subjectivecircumstances (including educational and vocational realms, as well as social circumstances): Sutherland at para 580; Chisholm vLindsay, 2012 ABQB 81. [125] In this case, Mr.

Jackson argues that the injuries sustained in the motor vehicle accident prevented him from pursuing part timeemployment in the past to supplement his income and that his ongoing chronic pain prevents him from similar opportunities in the future.

[126] The Defendants argue that the reduction to Mr. Jackson’s wages by Shell Canada Energy was triggered by the COVIDpandemic and that Mr. Jackson did not suffer a loss of earning capacity as a result of the injuries sustained in the motor vehicle accident. In the alternative, the Defendants argue that Mr. Jackson’s loss of earning capacity should be limited to the loss of earning capacityduring the 6 month period when his wages were reduced by Shell Canada Energy and when he did not work in a warehouse job tosupplement his income. [127] From November 2019 to the spring of 2021, Mr.

Jackson was contracted for employment with Shell Canada Energy. InOctober 2020, during the COVID pandemic, Shell Canada Energy reduced the wages of all contractors, including Mr. Jackson. Mr.Jackson’s wages were reduced by 20% from $65 per hour to $52 per hour and then increased by 7% in March or April 2021. [128] At the time, between October 2020 and April 2021, Mr. Jackson was supporting Ms. Yeboah and their two young children. Dueto the decrease in his income, Mr. Jackson sought new higher paying employment. Mr.

Jackson also considered part time employment tosupplement his income, including working part time at a warehouse. His intention was to work a maximum of 10 hours each day of theweekend. [129] Mr. Jackson’s evidence was that he complained to his friend about his finances. His friend encouraged Mr. Jackson to apply ata warehouse where he worked and earned $20.49 per hour. The warehouse job involved frequent lifting. Mr. Jackson’s friend offered tospeak with the employer and thought that Mr. Jackson would be hired right away if he applied for the job.

However, although Mr.Jackson wanted to earn extra money to supplement his income, Mr. Jackson decided to not apply for the warehouse job because he wasconcerned that he could not lift heavy objects without aggravating his injuries. At some point, Mr. Jackson did apply for a part timewarehouse job with Amazon but received no response. [130] There is no evidence that Mr. Jackson cannot continue to be employed and earn income in the future in his chosen field ofemployment as a contract specialist or contract manager. The medical experts and occupational therapists all agreed that Mr.

Jacksoncould perform all of his essential duties in his chosen field of employment as a contract specialist. In fact, he has worked uninterrupted asa contract specialist or contract manager with 6 different employers since the accident. [131] Further, Mr. Jackson’s chosen field of employment is better paying than part time warehouse employment. Mr. Jackson’sincome was $69,493 in 2015, $74,430 in 2016, $141,676 in 2017, $103,928 in 2018, $83,159 in 2019, and $51,698 in 2020. [132] In the extraordinary circumstances of the COVID pandemic when Mr.

Jackson’s wages were reduced, it was reasonable for himto seek other employment opportunities to supplement his income. In all the circumstances, I find that Mr. Jackson’s loss of past earningcapacity is limited to a period of 6 months when he could have worked 20 hours per week at $20.49 per hour for a total of $10,660. [133] In my view, it would be speculative to envisage scenarios in which Mr. Jackson would be suffering a loss of earning capacity inthe future, because there are no restrictions on Mr. Jackson’s ability to earn income in his chosen field of employment.

As such, Mr.Jackson has not proven on a balance of probabilities that he has suffered a loss of future earning capacity. (

d) Past Loss of Housekeeping Capacity [134] Mr. Jackson claims past loss of housekeeping capacity in the sum of $25,000 for a loss of more than 5.5 years from the date ofthe motor vehicle accident. [135] The Defendants argue that Mr. Jackson did not suffer any loss of housekeeping capacity past August 2016, so his compensationshould be only $3,750.

In the alternative, if there is a loss of past housekeeping capacity beyond 2016, it should be valued at $8,750,which is 20% of the amount claimed by the Plaintiff. [136] Damages to compensate for loss of housekeeping are calculated based on the incapacity of an injured person to completehousekeeping and household tasks that they had previously completed: Malinowski v Schneider, 2010 ABQB 734 at para 351.

A claimfor housekeeping should still be allowed where another family member has taken on more of the work or where the services used tovalue the award were never actually purchased: Sutherland at para 602, citing Thibert v Zaw-Tun, 2006 ABQB 423 at para 251[Thibert].

However, if a plaintiff can still complete the same housekeeping activities, albeit more slowly or with pain and discomfort,that loss is to be compensated as part of non-pecuniary damages: Thibert at paras 253-56. [137] A claim for loss of housekeeping capacity must be supported by evidence of the scope and value of the loss: Dushynski vRumsey, 2003 ABCA 164 at para 14.

In Tat v Ellis, 1999 ABCA 12 at para 31, the Alberta Court of Appeal adopted the comments ofJustice Picard (as she then was) in McLaren v Schwalbe (1994), (AB KB), 16 Alta LR (3d) 108 (QB) at 135-36: It is true that the characterization of the functions of the claimant in each case is not easy. There must be evidence by the claimant oflifestyle, duties and responsibilities, standards, the nature of the family unit and, in some cases, goals and aspirations. This evidence mustbe as precise as possible while recognizing that a "job description" analysis alone is inappropriate ...

The challenge for the court is to balance the common knowledge of the critical role played by the homemaker with the evidence in thecase. Experts called to deal with this evidence, such as labour economists and home economists, can provide great assistance but theirevidence should not become the adjudication.

The court must exercise its discretion here as in all damage assessment. [138] The Plaintiff argues that, as a result of the injuries sustained in the motor vehicle accident, he has been unable to performhousekeeping chores the way he did prior to the motor vehicle accident. [139] Prior to the motor vehicle accident, Mr. Jackson estimated that he did 60% of the household chores and Ms. Yeboah did 40%.Mr. Jackson performed most of the heavy household work, including washing the dishes, cleaning the bathroom and kitchen, mopping,

vacuuming, sweeping, laundry, and garbage removal. Immediately after the motor vehicle accident, Ms. Yeboah performed 100% of thehousehold chores, then 75%, and, by 2019, she was performing 60% of the household chores, and Mr. Jackson was performing 40% ofthe household chores. [140] At trial, Mr. Jackson stated that the household chores cause him pain and aggravate his injuries. The household chores take himmuch longer to complete, he requires breaks, and he cannot complete the household chores to the same quality standard as before themotor vehicle accident. As mentioned, I find Mr. Jackson to be credible.

I accept his evidence about performing household chores. Hisevidence is also corroborated by Ms. Yeboah, friends of the family, and the Plaintiff’s occupational therapist expert, Lisa Huskins. [141] In coming to a damages award, I am mindful that compensating the performance of household chores with pain and discomfortis part of the compensation for non-pecuniary damages for pain and suffering and loss of enjoyment of life: Thibert. [142] Nevertheless, as a result of the injuries sustained in the motor vehicle accident, Mr. Jackson’s family has re-structured theperformance of household chores such that Mr.

Jackson went from performing 60% of the household chores prior to the motor vehicleaccident to performing 40% of the household chores since 2019. Some of the household chores that were previously performed by Mr.Jackson have been performed by Ms. Yeboah since 2019. [143] In other words, as argued by the Defendants, based upon Mr. Jackson’s own evidence, there is a deficit of 20% in the past lossof his housekeeping capacity. I note that this 20% deficit is from 2019 to the date of trial. The deficit was higher immediately after themotor vehicle accident up to 2019.

Accordingly, I accept the Plaintiff’s argument that Mr. Jackson’s loss of housekeeping capacityextended past August 2016. However, I accept the Defendant’s argument that Mr. Jackson has only experienced a deficit of 20% since2019. [144] In my view, recognizing that for a period of time after the motor vehicle accident Mr. Jackson performed none and then 25% ofthe household chores, before performing 40% of the household chores since 2019, the appropriate quantum for Mr. Jackson’s past lossof housekeeping capacity is $10,000. (

e) Future Cost of Care (Including Loss of Housekeeping Services) [145] Mr. Jackson seeks damages of $109,596 for cost of future care, including loss of housekeeping services, as calculated by thePlaintiff’s expert, Kelly Rathje. [146] The Defendants argue that if the Court is inclined to consider an award for future costs of care and/or future loss ofhousekeeping, the award should be limited to $23,313.99 ($19,544 for cost of future care and $3,769.99 for loss of housekeepingservices).

In coming to this number, the Defendants rely upon their expert, Connie Erker. [147] Damages for future cost of care are awarded to compensate disabled plaintiffs for reasonable expenses which, but-for theaccident, they would not have incurred. They are meant to aid in rehabilitating the plaintiff to their pre-accident position of health andemotional well-being: Andrews v Grand & Toy Alberta Ltd, (SCC), [1978] 2 SCR 229 at 241-42 [Andrews]. [148] A Plaintiff’s claim for cost of care must be reasonable, legitimate, and justifiable: Andrews at 242-44.

Damages are awarded onthe basis of objective, evidence-based opinion that goes to the medical justification for and reasonableness of the expense: Sutherland atpara 625, citing Krangle (Guardian ad litem of) v Brisco, 2002 SCC 9. Although every item claimed need not be specifically endorsedby a physician, an evidentiary link between the recommended care and the plaintiff’s medical needs is required: Sutherland at para 627. [149] The Plaintiff claims cost of future care as recommended by Ms. Huskins for treatment and medication and for householdmaintenance. The claims were responded to by Ms. Erker. Both Ms.

Erker and Ms. Huskins, as occupational therapists, do not engage ina diagnosis of the medical condition of a patient and instead rely upon medical experts to determine the diagnosis and causation. 1. Treatment and Medication [150] With respect to treatment, Ms. Huskins recommended initial physiotherapy treatments, hydrotherapy, and kinesiology/apersonal trainer followed by life-long physiotherapy treatments and a gym pass. Ms. Rathje calculated the total cost to be $43,033. [151] In response, Ms.

Erker agrees with the recommendation for initial physiotherapy (calculated at a cost of $5,150), albeit withfewer lifelong annual visits to allow for possible flareups during Mr. Jackson’s lifetime. However, as an alternative to physiotherapy,Ms. Erker recommends an interdisciplinary chronic pain clinic program which typically runs for 6-8 weeks at a cost of $1000 to $1500per week. In my view, this alternative to physiotherapy is reasonable for Mr. Jackson. If he attends an intensive program, he may be ableto find some relief and heal. If so, he may not need lifelong physiotherapy.

I value the cost of the interdisciplinary chronic pain programat $12,000. [152] With respect to hydrotherapy, kinesiology, a personal trainer, and a gym membership, I agree with Ms. Erker that this expenseis not necessary as Mr. Jackson demonstrated capacity in his evaluation for up to medium handling, and he can perform home exercises. [153] With respect to his occupation, Mr. Jackson’s employment as a contract specialist is largely sedentary. Both Ms. Huskins andMs. Erker recommend an ergonomic assessment and ergonomic chair. The chair will need replacement throughout Mr. Jackson’sworking life. Ms.

Rathje calculated the cost to be $2,230. I accept this calculation. [154] With respect to medication, Ms. Rathje calculated the cost of a lifetime supply of tiger balm to be $820. I accept this calculation 2. Household Maintenance [155] With respect to future cost of care for household maintenance, Mr. Jackson claims amounts for snow removal, regular cleaning,

seasonal cleaning, and a self-propelled lawn mower. Based on the assumption that Mr. Jackson will move into a house from an apartment at age 39, Ms. Rathje calculates the future loss of household services to be $64,563. [ 156 ] The Defendants submit that Mr. Jackson has not sustained a future loss of housekeeping capacity. In the alternative, they argue that, based on the evidence and Ms. Erker’s opinion, the future loss of housekeeping capacity is $3,769.99. [ 157 ] The difference between the opinions of Ms. Huskin and Ms. Erker for the future loss of housekeeping services is largely twofold. First, Ms.

Huskin’s opinion is based on Mr. Jackson being a homeowner whereas Ms. Erker assumes that Mr. Jackson will remain in an apartment. Second, Ms. Huskin assumes that Mr. Jackson will need replacement help for regular cleaning whereas Ms. Erker assumes that Mr. Jackson will need replacement help only with heavy seasonal cleaning. [ 158 ] First, with respect to the issue of whether Mr. Jackson will be in a house or an apartment, Mr. Jackson’s evidence was that he and Ms. Yeboah were going to purchase a home in 2020. They negotiated with a builder, agreed upon a price, and were pre-approved for a mortgage.

Unfortunately, at this time, Mr. Jackson’s wages were reduced due to the pandemic, and the financial uncertainty made them decide to not purchase a home at that time. [ 159 ] In my view, it is reasonable to assume Mr. Jackson and Ms. Yeboah will purchase a home and, therefore, that the loss of future cost of care for housekeeping services should be based on Mr. Jackson and his family living in a house. Mr. Jackson has continued with his employment as a contract administrator and has demonstrated the ability to earn a reasonable income. He and Ms.

Yeboah have two children and a desire to live in their own home. [ 160 ] Second, with respect to whether Mr. Jackson needs replacement help for regular cleaning or only help with heavy seasonal cleaning, I prefer the evidence of Ms. Erker over that of Ms. Huskin. [ 161 ] Ms. Erker’s opinion is that Mr. Jackson does not require household replacement for typical household tasks, based on her assessment that Mr. Jackson demonstrated an overall capacity for medium handling. Instead, he requires household replacement for seasonal cleaning tasks which often involve heavier handling. Ms.

Erker considers 4 hours at $35 per hour, twice per year to be reasonable for a total of $280 per year. The midpoint of Ms. Huskins’ estimated cost for seasonal cleaning is $260 per year. Based upon Ms. Huskins’ midpoint value, Ms. Rathje calculates the present value cost to be $6,087. I accept this calculation. [ 162 ] The Defendants ask me to reduce the cost of household replacement for seasonal cleaning tasks by half to reflect that the seasonal cleaning would be done by two persons (Mr. Jackson and Ms. Yeboah), but I decline to do so, as I am satisfied that Mr.

Jackson would have done the heavy lifting for seasonal cleaning but for the motor vehicle accident. [ 163 ] In addition to the seasonal cleaning household replacement, Ms. Huskins recommends a self-propelled lawn mower at a cost of $512, as valued by Ms. Rathje. I accept this cost. [ 164 ] Ms. Erker recommends that an electric snow shovel be used for snow cleaning at a cost of $159. I accept this cost. However, I am not persuaded on a balance of probabilities that an electric snow shovel is enough to compensate Mr. Jackson for snow removal. In addition, Mr.

Jackson should be compensated for future loss of household services for snow removal. Regular snow removal in Alberta requires heavy lifting from time to time. I do not accept the regular snow removal cleaning proposed by Ms. Huskins at $1,043 per year until 2059 for a total of $21,440, because Mr. Jackson can manage medium handling but needs help with heavy snowfall. Accordingly, I value the replacement cost for snow removal to be $10,000. [ 165 ] In total, I find that Mr. Jackson is entitled to damages for loss of household service in the sum of $31,808. (

f) Pre-judgment Interest on Non-Pecuniary Damages [ 166 ] Pre-judgment interest is normally calculated in accordance with the Judgment Interest Act , RSA 2000, c J-1 . However, the Insurance (Enhancing Driver Affordability and Care) Amendment Act , 2020 , SA 2020, c 36 [ Insurance Amendment Act ] came into force on December 9, 2020.

It modified the calculation of pre-judgment interest for motor vehicle accident claims by adding s 585.2(2) to the Insurance Act , RSA 2000, c I-3 . [ 167 ] In this case, the parties disagree over whether pre-judgment interest for the period prior to December 9, 2020 should be calculated according to the Judgment Interest Act or according to s 585.2 of the Insurance Act . Effectively, this is a question of whether s 585.2 applies prior to its enactment.

Notably, there is no transitional provision in the Insurance Amendment Act . [ 168 ] The Plaintiff argues that pre-judgment interest is substantive and not procedural, so the presumption against retroactivity applies to s 585.2, such that it does not apply prior to December 9, 2020.

The Plaintiff further argues that it would take direct language to displace this presumption, and no such language exists in the Insurance Amendment Act . [ 169 ] By contrast, the Defendants argue that the presumption against retroactivity does not apply, because, even though the accident took place in 2015, the law is being applied now.

The Defendants also argue that the presumption against retrospectivity does not apply to s 585.2, because the Insurance Act is aimed at protecting the public. [ 170 ] In order to determine which presumptions apply to this case, I will break the discussion into four parts: 1) the correct terminology; 2) whether pre-judgment interest is procedural or substantive; 3) whether pre-judgment interest is a vested right; and 4) whether the amendments to the Insurance Act were for the protection of the public. Then, I will consider s 585.2 of the Insurance Act to determine if the applicable presumptions are displaced by an

interpretation of the provision itself. 1. Terminology [ 171 ] The parties rely on a series of common law presumptions about whether legislation is retroactive, retrospective, or immediate.

These words are frequently misused in the case law, so it is important to be clear about their respective

definitions. In Épiciers UnisMétro-Richelieu Inc, division Éconogros v Collin, 2004 SCC 59, [2004] 3 SCR 257 [Épiciers Unis], the Supreme Court set out thebasic

definitions of each of these three terms. [172] According to the Supreme Court, if facts are ongoing at the time the legislation is passed, the legislation has immediateapplication: ibid at 280-81. Put differently, this means that legislation is immediate if it applies to any facts that arise after it comes intoforce. This includes any factual situation that starts before the legislation comes into force and continues after that date. [173] By contrast, if legislation modifies the past legal effects of past facts, it is retroactive: ibid.

More simply put, this means that if afact situation occurred entirely before the legislation was enacted, then the legislation would need to be retroactive to apply to it. [174] Finally, according to the Supreme Court in Épiciers Unis, if facts are in the past, but the legal effects of those facts are stilloccurring when the legislation comes into force, the legislation is retrospective: ibid. This means that retrospective legislation applies tolegal effects that occur after the legislation comes into force, even if the underlying facts occurred prior to the legislation.

As ProfessorDriedger explains, a retrospective statute operates for the future only, but it imposes new results in respect of a past event: EA Driedger,“Statutes: Retroactive, Retrospective Reflections” (1978) 56 Can Bar Rev 264 at 268-69. 2. Substantive versus Procedural [175] The Plaintiff argues that pre-judgment interest is a substantive and not a procedural right, which invokes the presumptionagainst retroactivity.

For this position, the Plaintiff relies on Gosche v Boucher, 2009 ABQB 277 [Gosche] and Somers v Fournier(2002), (ON CA), 60 OR (3d) 225 (CA)[Somers]. [176] The Defendants did not argue that pre-judgment interest is a procedural right.

Instead, they relied on Cobb v Long, 2017 ONCA717, where the Ontario Court of Appeal found it was not necessary to determine if pre-judgment interest is a substantive or proceduralright, because a contextual analysis of the provision in question determined its application. [177] I agree with the Plaintiff that it is necessary in this case to consider whether pre-judgment interest is procedural or substantive.In Cobb v Long, the Court did not need to decide which presumption applied, because it was able to interpret the provision in questionbased on its context.

In that case, the legislative history made it clear that the provision was intended to apply retroactively: at para 96. [178] In this case, there is no comparable legislative history to give context to the

interpretation of s 585.2. Moreover, as I will discussbelow, it is unclear from s 585.2 whether the Legislature intended it to apply retroactively or not. Accordingly, it is necessary in this caseto decide whether pre-judgment interest is substantive or procedural to determine which presumption applies. [179] In law, it is generally accepted that a substantive provision attracts the presumption against retroactivity, whereas a proceduralprovision is presumed to apply retroactively: R v Chouhan, 2021 SCC 26 at para 91; R v Dineley, 2012 SCC 58 at para 10, Angus v SunAlliance Insurance Co, (SCC), [1988] 2 SCR 256; see also Gustavson Drilling

(1964) Ltd v Canada (Minister ofNational Revenue), (SCC), [1977] 1 SCR 271 [Gustavson Drilling]. [180] In R v Chouhan, the Supreme Court elaborated on the difference between procedural and substantive provisions. According tothe Court, procedural provisions depend on litigation to become operable, and they alter the method by which a litigant conducts anaction, establishes a dissent, or asserts a right: at para 92.

Conversely, a substantive provision has a direct implication on an individual’slegal situation by attaching new consequences to past acts or by changing the substantive content of a right, defence, or cause of action:ibid. [181] Put another way, “substantive law ‘creates rights and obligations and is concerned with the ends which the administration ofjustice seeks to attain, whereas procedural law is the vehicle providing the means and instruments by which those ends are attained’”:ibid at para 94, citing Sutt v Sutt, (ON CA), [1969] 1 OR 169 (CA). [182] With respect to pre-judgment interest, I agree with the Plaintiff that Somers is the strongest persuasive authority on whetherpre-judgment interest is procedural or substantive.

In that case, the Ontario Court of Appeal held that modern theories of pre-judgmentinterest see it as compensatory rather than punitive, since it compensates the Plaintiff for the delay from when the right to damages aroseto the date the judgment is awarded: at para 23. In this sense, the Court held that pre-judgment interest is different from costs awards,which are entirely in the discretion of the Court and do not relate to the substance of an action: at para 30. [183] In Gosche, Veit J followed Somers and held that in Alberta pre-judgment interest is a statutory and substantive right.

Sheacknowledged that, while the amount can be varied or displaced based on statutory factors, the entitlement to pre-judgment interest is nota matter of judicial discretion. It exists independently of a judge choosing to grant or award it: at para 3. [184] In response to these cases, the Defendants argue that this Court should follow Cobb v Long and reject the application of Somersoutside of its specific context of conflict of laws: see Cobb v Long at para 93.

However, I would point out that the test applied in Somersis exactly the same as the one endorsed by the Supreme Court in Chouhan: Somers at para 14, Chouhan at para 94, citing Sutt v Sutt.As such, I do not think that the specific context of that case affects the law that was applied or undermines the precedential value of itscareful analysis. [185] With this in mind, I agree that pre-judgment interest is a substantive right. Pre-judgment interest recognizes the value of thedamages award and, specifically, the use the money could have been put to had it been paid at the time the claim arose.

As such, it goesto the substance of the cause of action asserted and, even though it is only awarded after a judgment has been given, there is no sense inwhich pre-judgment interest governs the manner in which a litigant asserts a cause of action so as to make it procedural. Accordingly, Iconclude that pre-judgment interest is a substantive right, and the presumption against retroactivity applies. 3. Vested Rights

[186] The Defendants argue that pre-judgment interest is not a vested right and, instead, that it only crystalizes after the trial judge hasgiven a decision. The Plaintiff did not seriously contest this position, and I agree with the Defendants that pre-judgment interest is not avested right. [187] The Supreme Court of Canada defined what is meant by a “vested right” in Dikranian v Quebec (AG), 2005 SCC 73, [2005] 3SCR 530 [Dikranian].

Specifically, for a right to be vested, it must meet two criteria: (1) the individual's legal (juridical) situation must be tangible and concrete rather than general and abstract; and (2) this legal situation must have been sufficiently constituted at the time of

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