2018 NBCA 13, 2018 NBCA 13

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 13-16-CA ROBERT DESPRES APPELLANT ROBERT DESPRES APPELANT - and - - et - MacDONALD CRANE SERVICE LTD. and ANDREW ST. PIERRE RESPONDENTS MacDONALD CRANE SERVICE LTD. et ANDREW ST. PIERRE INTIMÉS Despres v. MacDonald Crane Service Ltd. et al., 2018 NBCA 13 Despres c. MacDonald Crane Service Ltd. et autre, 2018 NBCA 13 CORAM: The Honourable Justice Richard The Honourable Justice Quigg The Honourable Justice Baird CORAM : l’honorable juge Richard l’honorable juge Quigg l’honorable juge Baird Appeal from decisions of the Court of Queen’s Bench: December 29, 2014 (Phase

I) September 30, 2015 (Phase II) February 2, 2016 (Phase III) Appel de décisions de la Cour du Banc de la Reine : le 29 décembre 2014 (première partie) le 30 septembre 2015 (deuxième partie) le 2 février 2016 (troisième partie) History of case: Decisions under appeal: 2014 NBQB 276 (Phase I) 2015 NBQB 186 (Phase II) 2016 NBQB 32 (Phase III) Historique de la cause : Décision frappée d’appel : 2014 NBBR 276 (première partie) 2015 NBBR 186 (deuxième partie) 2016 NBBR 32 (troisième partie) Appeal heard: February 22, 2017 Judgment rendered: March 1, 2018 Appel entendu : le 22 février 2017 Jugement rendu : le 1 mars 2018

Reasons for judgment by: The Honourable Justice Richard Concurred by: The Honourable Justice Quigg The Honourable Justice Baird Counsel at hearing: For the appellant: David G. Gauthier For the respondents: James M. Barry Motifs de jugement : l’honorable juge Richard Souscrivent aux motifs : l’honorable juge Quigg l’honorable juge Baird Avocats à l’audience : Pour l’appelant : David G. Gauthier Pour les intimés : James M. Barry THE COURT The appeal is allowed. The decision is varied to include an award for loss of earnings in the amount of $8,456 plus interest.

The amount involved to calculate the cost award made at trial is amended accordingly. Costs on appeal are awarded to the appellant in the amount of $2,500. LA COUR L’appel est accueilli. La décision est modifiée de façon à inclure l’octroi d’un montant pour perte de revenus, fixé à 8 456 $ plus l’intérêt. Le montant clé utilisé dans le calcul des dépens accordés au procès est modifié en conséquence. Des dépens de 2 500 $ en appel sont accordés à l’appelant. The judgment of the Court was delivered by RICHARD, J.A. I.

Introduction [ 1 ] For most of his life, Robert Despres experienced health, education and then employment struggles. During his best working year, he earned the modest sum of $13,334.00, qualifying him for employment insurance benefits of $4,292.00. On September 11, 2009, Mr. Despres injured his hand in a workplace accident. Because the injury arose out of the use of a motor vehicle – a crane – not owned or operated by his employer, Mr. Despres was able to receive workers’ compensation benefits and also pursue an action for damages. Against the owner and operator of the crane, Mr.

Despres claimed damages exceeding $1.7 million. Liability was disputed as was the quantum of damages, thus necessitating a trial in the Court of Queen’s Bench. [ 2 ] Following numerous days of trial during which the parties presented their evidence and arguments, the trial judge reserved his decision; however, a final decision did not issue as the parties had expected. Instead, the judge issued his Decision – Phase I, in which he posed a number of questions for further argument and following which he eventually admitted further evidence.

Again the decision was reserved, and once more the parties received a partial decision (Decision – Phase II) in which they were called upon to again return for further argument. Eventually, the parties received a final decision (Decision – Phase III). It issued almost two years and two months after the trial ended. In the final analysis, the trial judge attributed 90% of the liability to the owner and operator of the crane, with Mr. Despres bearing the balance of fault. In assessing damages, the trial judge found that Mr.

Despres had exaggerated the pain and disability which resulted from his injury, and had not made proper efforts toward rehabilitation and retraining. As a result, he ordered judgment to Mr. Despres in the total amount of $96,664.43. [ 3 ] Mr. Despres appeals the assessment of damages. He claims the judge’s decision is so tainted with error that a new trial must be ordered. I disagree. Despite the unorthodox route this case took toward resolution, the judge made a number of critical credibility and factual findings that are well anchored in the evidentiary record. While I find the judge erred by not allowing Mr.

Despres any damages at all for loss of earnings, I am of the view this Court can remedy the error by rendering the decision that ought to have been made. Considering the trial judge’s credibility and factual findings, the evidentiary record supports an award for loss of earnings, but it is limited to the sum lost between the date of the accident and the point when Mr. Despres is found to have failed to mitigate his damages. As for the other heads of damages, I find no error in the trial judge’s conclusions.

As a result, and for the reasons set out below, I would allow the appeal but only to the extent of correcting the judge’s failure to award damages for loss of earnings. II. Factual background [ 4 ] Robert Despres is a 39 year-old man, born and raised in Saint John. His youth was characterized by ill health and schooling difficulties. Among his health challenges were allergies and severe asthma, which he suffered since early childhood. He was known to be allergic to eggs, grass, pollen, animals, dust, penicillin and smoke.

He continuously battled asthma and often had to seek treatment at the Outpatient Department of one of the local hospitals where he was usually treated with Ventolin. Periodically, his condition required hospitalization. The following notations, taken from Mr. Despres’ medical records between 1992 and 2002, are particularly noteworthy: • In 1992, Mr.

Despres’ asthma was reported as being “usually out of control” and he had been using a “Ventolin puffer to excess.” On one visit to the doctor’s office, “he was using every accessory muscle of respiration” and “was too short of breath to carry on a very good conversation.” • Despite his asthmatic condition, Mr. Despres smoked cigarettes. In January 1997, he informed a pediatrician he was no longer smoking. The physician noted that “[c]ompliance is always a problem with him when it comes to taking a puffer other than his Ventolin.” • In December 1998, a respirologist reported that Mr.

Despres was taking Ventolin two to four times per day and that he was “not that faithful to take his medications as well as he smokes […] a pack per day for the last 6-7 years […] He also smokes marijuana.” The specialist was of the view that Mr. Despres “needs to stop smoking […] should also refrain from smoking marijuana [and] needs to use inhaled steroids more regularly.” • X-rays taken in 1999 showed pulmonary marking at the base of both lungs, a condition that was said to be chronic. • An outpatient hospital visit in 2000 reveals Mr.

Despres had taken 4-5 Valium and drank 1.5 pints of whisky but was suspected of having taken LSD or other hallucinogens. During a separate visit that same year, when Mr. Despres was complaining of extreme pain in his chest and lower back, it is noted he was smoking one pack of cigarettes per day. Radiological studies that year continued to show a chronic lung disease. • In 2001, Mr. Despres was admitted for treatment at the Ridgewood Addiction Services Treatment Center for the treatment of “Alcohol/Marijuana/ Valium/Gambling abuse.” • As of 2002, Mr.

Despres was still smoking contrary to medical advice, with his physician noting he could not or would not quit. • No medical attention was sought after May 2002 until February 2007, when Mr. Despres complained of stomach pain, diarrhea and occasional red streaking blood in the toilet after bowel movements. He was diagnosed with a thyroid problem and prescribed medication. He was initially not diligent in taking the prescribed medication. By the end of 2007, his condition had improved but he continued to be prescribed medication. • In October 2008, Mr.

Despres was complaining of pain in his right arm since he had begun physical labour intensive employment. Carpal tunnel syndrome was suspected. A neurologist confirmed this condition in February 2009. In May that year, Mr. Despres’ asthma symptoms were increasing and he was using lots of Ventolin. He was suffering from increased headaches and mild photophobia that lasted 2-3 hours. He was reporting being under lots of stress as he was unemployed, was experiencing money issues and his girlfriend was pregnant. He continued to be on medication for hypothyroidism.

That month, he underwent a surgical procedure to treat the carpal tunnel syndrome but, post-operation, he complained of significant pain as well as stiffness in his wrist and fingers. This was treated with physiotherapy. He was assessed as being able to return to work by mid-July. • As of 2009, Mr. Despres was still smoking a pack of cigarettes per day.

• In addition, Mr. Despres’ medical records reveal numerous miscellaneous ailments/injuries, including eye problems, twice having to seek treatment after being assaulted once in 1997 and again in 2000, a broken collar bone, back pain and an arm injury. [ 5 ] Mr. Despres had a below-average attitude toward school throughout much of his youth. He repeated grade six, was given a social promotion after grade seven and repeated grade eight before being given another social promotion to level four courses in grade 10.

He dropped out of school after completing only the first half of the 1996-97 year. [ 6 ] After leaving school, Mr. Despres joined the workforce. His work history is irregular.

Over the years, his employment earnings and social program benefits were as follows: Year Source Earnings 1996 T4 $1,165 1997 T4 Social assistance $1,912 $2,505 1998 T4 Social assistance $3,505 $3,739 1999 T4 $2,072 2000 T4 Employment insurance $4,673 $1,316 2001 T4 Employment insurance $3,094 $752 2002 T4 $659 2003 T4 Employment insurance $6,171 $445 2004 T4 Employment insurance $2,489 $1,412 2005 T4 Employment insurance $2,424 $1,156 2006 T4, including $3,932 from Manpower Services $9,295 2007 T4 Employment insurance $13,334 $4,292 2008 T4, including $5,834 with Black Seal Paving and $5,980 through Manpower Services Employment insurance $11,814 $2,829 2009 T4 Employment insurance $645 $6,298 [ 7 ] On September 11, 2009, Mr.

Despres, employed by Manpower Services, was working as a labourer at the construction site of the Château Saint John hotel. He was into the third day of a temporary job helping move furniture into the new hotel. Since the elevators were not working, a mobile crane was lifting the furniture to window openings of the upper floors. The furniture was lifted in a large “bucket,” described as being approximately 15-feet long, 5-feet wide and 6-feet tall, that had an open end from where the furniture could be unloaded once the bucket was aligned with a window opening. [ 8 ] Mr.

Despres’ job required him to help unload furniture from the delivery truck, help load the bucket, walk up the hotel’s stairs to help unload the bucket, and then move the furniture to various rooms. At one point, Mr. Despres was allowed to ride in the bucket instead of having to climb the stairs to the upper floor. During one of these rides, the bucket somehow struck the building at

a time when Mr. Despres had his right hand outside the bucket. Mr. Despres’ hand got caught between the edge of the bucket and thebuilding, causing injury to the hand. [9] Since the injury to Mr. Despres’ hand occurred while he was in the course of employment, he became entitledto benefits under the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13; however, because Mr. Despres was injured in an accidentinvolving the use of a motor vehicle, the owner and operator of the crane did not benefit from the usual protection afforded by the Act: s.11(1.1). [10] Mr.

Despres received workers’ compensation benefits and also commenced an action to recover damages forthe injury to his hand, which he alleged resulted in a complex regional pain syndrome developing in his hand. Mr. Despres claimedlosses under several heads of damages. [11] The owner of the crane, MacDonald Crane Service Ltd., and the crane’s operator, Andrew St-Pierre, deniedliability for the accident. According to them, Mr. Despres insisted on travelling up to the upper floors in the bucket despite repeatedwarnings. They claim it was Mr. Despres’ own negligence that caused his injury.

The defendants joined Celaca Resources Inc. as a thirdparty in the action. This company was alleged to have been the supplier of furniture and equipment to the Château Saint John and to havecontracted with Manpower Services for the provision of workers; however, the third party claim was eventually discontinued. [12] On November 17, 2014, the trial of Mr. Despres’ action against the owner and operator of the crane began.Evidence was led by one or the other of the parties on November 17-21, 24, 25 and 28 and on December 8, 2014.

On this last day, theparties presented their closing arguments, following which the trial judge reserved his decision. [13] A “decision” was delivered on December 29, 2014: 2014 NBQB 276, [2014] N.B.J. No. 334 (QL). Althoughthe trial had not been bifurcated, what the judge released is titled “Decision, Phase One.” The judge began with an overview of theclaim, noting it exceeded $1.7 million, including $320,298 for the present value of the future cost of four grams of marijuana per day forpain relief. The overview continues with a

summary of Mr. Despres’ pre-accident situation, including a timeline that includes thehighlights of his medical records and of his pre-accident earnings. Upon concluding this timeline, the judge continued as follows: Before considering the other evidence and making findings regarding credibility, I request further submissions from counsel on theseissues: (

a) Apart from the [Thyroid Stimulating Hormone] report of greater than 60.0 on April 20, 2007, are there any other reports of TSHresults in the evidence? (

b) Are there any other TSH reports anywhere? (

c) Is Dr. Raju's file in the evidence? (

d) Where in the evidence are the records of a pharmacy of the actual prescriptions filled or provided to the plaintiff since 2006? (

e) Absent the TSH reports, the file of Dr. Raju and the pharmacy records, is the applicable rule that the court “must presume that suchevidence would adversely affect” the plaintiff's case? See Lévesque v. Comeau, [1970] S.C.R. 1010, . (

f) Given the plaintiff's history of non-compliance with the advice of some physicians and his reluctance to follow-up regardingeducation on hypothyroidism, is it reasonable to assume that he actually took the prescribed Synthroid? (

g) Absent repeatedly healthy TSH results and a physician's detailed evidence confirming that the plaintiff's hyperthyroidism has beenproperly managed since 2007, as of immediately before the accident on September 11, 2009 what inferences if any could have beendrawn then about the plaintiff's health and employability? (

h) What inferences if any can be drawn from the plaintiff's failure to return to work with Black Seal Paving in the summer of 2009? (

i) As of immediately before the accident what inferences if any can be drawn from his history regarding his continued employabilityas a labourer? Counsel will be heard on these issues and on any motions to reopen the trial as soon as convenient. The discretion of a trial judge topermit further evidence to be adduced after the close of a trial is reviewed in Daly v. Petro-Canada, (NB QB), 162

N.B.R.(2d) 142, beginning at para 12. [paras. 66-67] [14] The decision to which the judge referred as authority to permit further evidence after the close of a trial is oneof his own: Daly et al. v. Petro-Canada et al. (1995), (NB KB), 162 N.B.R. (2d) 142, [1995] N.B.J. No. 258(Q.B.)(QL). In Daly, this same judge delivered an initial decision in an action dismissing certain claims, but, with respect to a counter-claim, the judge indicated he required further oral argument before deciding he matter.

During the presentation of further arguments,“counsel for Petro-Canada informally requested leave to reopen the case” causing the matter to be adjourned pending a formal motion.The motion was opposed. This led to the ruling upon which the judge relied in the present case to proceed as he did. More will be said onthis later in these reasons. [15] On January 21, 2015, the trial resumed. Before then, counsel for Mr. Despres filed a supplementary book ofdocuments. Counsel for the defendants did not oppose the admission of these documents.

At that point, the judge, who had “studied” thedocuments before they were admitted, noted they were “apparently incomplete.” During the ensuing discussion, counsel for Mr. Despresreminded the judge that “[o]ne of the realities of […] litigation is that the parties […] are privy to issues, documents, potential evidencewhich don’t evolve to become issues” and argued the medication for the hypothyroid condition was such an issue.

The judge replied,stating he had picked up on the absence of evidence regarding the thyroid condition, adding it struck him “as mighty strange that therearen’t more TSH reports over the years.” He said when he analyzed the list of medications provided, “it looks as if [Mr. Despres] haspurchased medications for less than half the time they were prescribed.” Mr. Despres’ counsel replied there was a two-and-a-half-yeargap in the list provided. He explained the pharmacy from which Mr.

Despres purchased his medication had closed, which resulted in Mr.Despres going to various other pharmacies from which he did not have records. Counsel observed that none of the parties identified thismatter as an issue, but offered that, if the court felt it was an issue, he requested an opportunity to canvass the various other pharmaciesto obtain their records. At that point, the judge referred to evidence that Mr.

Despres would often refuse dinner invitations from hismother stating he was tired and wanted to stay in bed and that he was “cranky on cold days,” adding “those symptoms like fatigue andsensitivity to cold […] are red flags for thyroid problems.” The judge continued: “You may not know that and I have limited ability totake notice of that.” The discussion continued with counsel arguing the evidence revealed Mr.

Despres was taking his thyroidmedication. [16] In the course of these discussions, the trial judge stated he would “pass to counsel copies of [the judge’s] draftnotes in analyzing” the document that had just then been admitted into evidence. He referred counsel to the third page where he notedMr. Despres appeared to be off the medication “for 43 of 76 months.” Counsel replied that this was explained by the missing prescriptionrecords. The judge responded: “Not quite.

No, it’s a little more complicated than that.” He went on to discuss THS test results, of whichthere were few in the evidentiary record, adding: “I didn’t understand that. And it may be because the test is missing or because thephysician can judge it some other way, but I thought those tests were the key.” [17] Mr.

Despres’ counsel reiterated that this was not an issue the parties had identified; however, if it remained aquestion for the court, he would seek leave to call further evidence, to which the judge replied: “It’s a problem,” then adding, “I amuncomfortable with this.” Counsel then sought leave to adduce into evidence any “further test results [that] might be available on theTSH, in addition to recalling Dr. Ashfield.” The judge continued: And then maybe there is somebody else. Maybe Dr. Raju or somebody else who might be able to assist. But I can’t deal with thecomplexities of this situation on broad strokes.

I need to get into the details, and I need clarification, and I can’t jump to conclusionswithout an evidentiary basis. [18] The judge then invited Mr. Despres’ counsel to consider further evidence on the question why Mr. Despreshad not returned to work for Black Seal Paving in the summer of 2009, the same business where his father was employed, where thisemployment resulted in one of his best-earning years. The judge observed the failure to explain why Mr.

Despres had not returned to thatemployment constituted a “loose end” that provided strength to the defence argument the claim was “out of proportion to the evidence.” [19] The trial judge informed counsel there were two ways to seek leave to reopen the case: “One is by consent andanother is by motion.” After hearing from counsel for the defendants, the judge suggested the matter be left for counsel to discuss and todetermine the matters where agreement might be reached and then “arrange a suitable date with the Clerk for a motion to reopen.” [20] On May 27, 2015, the parties returned to court.

At that time, counsel tendered further documents which wereadmitted by consent. Some of the documents were duplicates of other exhibits, but they included portions both counsel initiallyconsidered irrelevant to any of the issues raised in the proceeding. The documents also included the “missing” pharmacy records.

[21] Mr. Despres’ counsel then sought leave to call further evidence. The proffered evidence would have consistedof further testimony by Mr. Despres as well as one or two individuals from Black Seal Paving. This motion was opposed. The trial judgepointed out the record on the motion did not specifically set out what the further evidence was meant to address. Mr. Despres’ counselargued as follows: In addition to a lot of other items, such as prescriptions, which we are going to deal with separately and that's really a paper matter.

Butthe court is coming forth, and the court is saying effectively I have questions with these issues, I will hear you on this. From theplaintiff's perspective, we are not making this motion in the conventional sense that we identify some part of the defence case that wedidn't address, or we didn't address something in our plaintiff's case, that's not why we are here. We are here because the plaintiffproceeds, the court has a question. So then that leads me to examine the basis upon which the court might be doing this or might consideraccepting further evidence.

And I go to the Daley v PetroCan case. […] And I see in the Daley v PetroCan case that there are certain principles of law enunciated there that are not in the same vein as the lawquoted by my friend, because on the one side, the court would say it's a more conservative, more formed based approach and you mustsatisfy the two or three criteria that are outlined in the various cases, but as I read this court's case in Daley v PetroCan, and in particularcomments about the inherent jurisdiction of the court to permit further evidence – [22] Counsel submitted that, in the Daly case, the court held it had the discretionary power to reopen a case for thejudge’s own satisfaction or where justice requires it.

He argued this was a situation where the case was being reopened for thesatisfaction of the judge, not because counsel had any particular further evidence that had been overlooked during trial.

The viva voceevidence sought to be adduced would be meant to address the concerns raised in paragraph 66 of the judge’s “Decision, Phase One.” Thejudge expressed concern about the vague nature of the testimony that was sought to be presented as further evidence, prompting Mr.Despres’ counsel to reply: It is vague, Justice, because when we -- we completed our case and from our point of view, we presented to the court the evidence wehad.

And this individual is not unlike a lot of individuals in Saint John, and the employment record is sporadic, and uncertain and itmakes it difficult to forecast where he may be employed in the future, but he -- that is the plaintiff that we are dealing with.

And whenwe closed our case, we did not -- it's not like we are looking back -- […] -- and having identified some mistake we made, but we are addressing the concerns of the court, as the court saying effectively I think Iwould like to hear some more evidence, because the court identifies that perhaps because of the Synthroid issue that employability isbeing questioned, but I think that we have dealt with or we will deal with in the records. So I don’t have any concrete -- I don’t haveanything concrete to say to the court I would call this witness who will say A, B or C.

I don’t have that. [23] After hearing argument on the motion, the judge ruled as follows: Thank you.

Following the completion of the trial of this matter and the release of the decision, phase one, on December 29th 2014, anotice of motion dated the 12th of May 2015, the plaintiff applies by motion for an Order to permit the plaintiff to read further viva voceevidence from himself and two officers of Black Seal Paving, “related to the plaintiff’s ability to work at the time leading up to the injuryof September 11, 2009.” The plaintiff is not able to offer anything specific about what such extra evidence might detail. It sounds as if it would be vaguegeneralities.

Without specifics, in my view, this proposed extra evidence is not like the specific missing evidence that was allowed to beintroduced late in cases such as the Daley and Petro-Canada, , 162 N.B.R. 2nd, 142. For these reasons the motion isdismissed. [24] The matter was then adjourned to enable counsel to file further written argument regarding the newdocumentary evidence that had been admitted by consent, following which the hearing would resume on July 24, 2015, for further oralargument. The hearing ended with this:

Is there anything else that you counsel need to discuss between yourselves? If so, you know, please feel free. This has been now -- well we are coming up to six years since the date of the accident. I am embarrassed by that in a way. And for people like Mr. Despres and his family, this must be a nightmare to have this matter extending for so long. And especially with these extra issues like say the type of medication he takes to relieve his pain, it has the risk of becoming a sort of fun case for Court of Appeal judges to work on next year.

It might be a little more, you know, novel issues for them to sink their teeth into. Maybe the year after next, I don’t know. It takes a long time . If there is something you folks can do to get your heads together, don’t let me discourage you. When I think of how it’s going to take more time and more money to write up further briefs, don’t let me discourage any further discussions between you. There may be some solution. Thank you all. [Emphasis added.] [ 25 ] On July 24, 2015, the trial again resumed for further arguments. Mr.

Despres’ counsel addressed some of the issues raised in the defendants’ written argument, such as Mr. Despres’ attendance for counselling and his pre-accident future earning capacity.

Following this, he turned his attention to the thyroid issue, stating that “ the plaintiff concludes, and I think the defendant agrees that it's simply with this new information there is really no evidence that he is noncompliant, and I think that would remove it as a factor of employability going forward, because though he may initially have been noncompliant, that's a number of years ago and the evidence is that he is now compliant.” At this point, the judge interrupted to note: “I would feel better about that thyroidism -- hypothyroidism if there were a steady pattern of healthy TSH reports.” To this, counsel replied the results between 2009 and 2014 suggested the thyroid issue was being managed and would not impair Mr.

Despres’ ability to function, adding, “nor does the defence advance that argument.” [ 26 ] In reply, defence counsel primarily argued Mr. Despres had a history of non-compliance with medical advice and suggested this fact had a significant impact on both his pre and post-accident earning potential.

On the question of the TSH reports, defence counsel had nothing to add, stating the defence was not taking any position on the matter. [ 27 ] Following the submissions, the trial judge reserved his decision. [ 28 ] On September 30, 2015, the judge issued what is titled “Decision, Phase Two.” The judge cautioned the reader this “decision” must be read as a continuation of his “Decision, Phase One.” In the second phase of the decision, the judge began with a review of the additional evidence regarding Mr. Despres’ pre-accident situation.

The first medical report reviewed, dated August 2, 2007, revealed that, a few months prior, Mr. Despres had consulted his family physician complaining of weight gain. Test results revealed a THS greater than 60, and Mr. Despres was then prescribed Synthroid. By August 2007, Mr. Despres was reporting the medication made him feel better, he had lost some of the weight and he was working full-time. He was, however, complaining of epigastric pain and discomfort. The examining physician agreed with the prescribed medication for treatment of the hypothyroid state. He ordered immediate THS testing.

As for the stomach problems, the physician stated as follows: The patient has to absolutely discontinue smoking, as he already has evidence of asthmatic bronchitis at age 29 and will progress with marked limitation in his respiratory function if he continues to smoke. As well, it is aggravating his severe heartburn, indigestion and reflux. GERD [which the trial judge stated meant, “Gastroesophagael reflux disease”] - moderately severe, aggravated by cigarettes.

I will book him for an endoscopy for further evaluation. [para. 70 of Decision- Phase II) [ 29 ] A November 2007 report recommending the continued use of Synthroid, states Mr. Despres should discontinue cigarettes. Mr. Despres underwent a gastroscopy on December 21 that same year. In the Procedure Report, the physician notes Mr. Despres “continues to smoke heavily, aggravating the problem.” The procedure revealed a hiatal hernia and reflux for which Prevacid was to be continued for three months. Mr.

Despres was also “[c]ounselled regarding stopping smoking.” [ 30 ] After reviewing this additional evidence, the trial judge made findings regarding Mr. Despres’ hypothyroidism condition. He held “prescriptions of Synthroid were effective in reducing his TSH result to 0.49, within normal limits, within one week of the accident” (para. 73 of Decision – Phase II ).

After reviewing the additional evidence, the judge concluded as follows: From the limited TSH results and the pharmacy records for the plaintiff's purchases of Synthroid, his hypothyroidism was under control at the date of the accident and has been under control since mid-2012.

[para. 77 of Decision – Phase II] [ 31 ] The trial judge’s analysis then turned to credibility issues. He began by setting out the governing principles for assessing credibility and drawing inferences. He then made factual findings regarding Mr. Despres’ pre-accident situation, the relevant ones of which are summarized below: • Mr. Despres was working various temporary labour-intensive jobs over the years before the accident, many through a private employment agency but he received very little work in 2009. The placement agency perceived a problem with Mr.

Despres’ attitude but the judge rejected this and concluded it more likely that his performance was limited by health and fitness issues. • Following employment with Black Seal Paving in 2008, Mr. Despres experienced carpal tunnel problems for which he underwent a release procedure on his right wrist in May 2009. He was cleared to return to work as of July 12, 2009. Because of his inability to work until then, Mr. Despres only earned $317.00 during the first eight months of 2009. • Mr.

Despres’ “actual earnings in the summer months before the accident, his poor education and lack of even a driver's licence as well as his increasingly complicated medical history and rejections by previous employers indicate that he was becoming less employable” (para. 86 of Decision – Phase II) . [ 32 ] To these findings, the judge applied the law to the effect that “[t]he primary basis for assessment of loss of earnings is “what he would have earned but for the accident” (para. 87 of Decision – Phase II). The evidence did not persuade him that immediately prior to the accident Mr. Despres was healthy and fit.

As a result, the judge concluded he could not consider Mr. Despres “a typical unskilled labourer, with the potential earnings that might be indicated by Statistics Canada” (para. 88 of Decision – Phase II). In his view, Mr. Despres “knew or ought to have known that to become really employable he must learn new skills that would equip him to do lighter work than he had been doing” (para. 89 of Decision – Phase II). [ 33 ] The judge then turned to the question of liability. His review of the evidence on this point led him to conclude Mr.

Despres should be assessed 10% of the liability for his contributory negligence, with the owner and operator of the crane bearing the balance. Since the attribution and apportionment of liability are not the subject of appeal, it is not necessary to review that portion of the trial judge’s decision. [ 34 ] The judge then considered the injuries Mr. Despres suffered in the accident and the treatments he received. The highlights are as follows: • In the accident, Mr. Despres suffered a crush injury to his right thumb.

He was immediately taken to the hospital where X-ray examination revealed that the joint compartments of his right hand were relatively well maintained with no evidence of an acute displacement fracture. • About a week later, Mr. Despres was experiencing ongoing pain and much swelling, and was unable to flex his thumb. He was prescribed Tylenol 3 and put off work for a week. A week later, physiotherapy was prescribed because his hand was still painful. Mr. Despres presented as very angry. By October 1, 2009, Mr. Despres had not yet been administered physiotherapy and was experiencing ongoing swelling and pain.

He was put off work for another two weeks. However, his condition had not improved much by October 16 even though by then he was being treated with physiotherapy three times per week. The Tylenol 3 prescription was renewed and Arthrotec, an arthritis medication, was added. Mr. Despres was referred to Dr. Geoff Cook, a plastic surgeon. • By October 30, Mr. Despres’ hand was in a splint and on November 19 he was continuing to experience pain and disability. As he wanted a second opinion, he was referred to Dr. Donald Lalonde, a plastic surgeon.

He had not been taking many Tylenol 3s and felt the Arthrotec was not helping. • Dr. Lalonde saw Mr. Despres on December 7, 2009. He believed Mr. Despres might be developing a complex regional pain syndrome. Mr. Despres’ entire thumb was very sensitive and sweaty. The surgeon recommended urgent treatment in the form of a guanethidine block or, failing that, a stellate ganglion block, in order to try to stop the condition.

Physiotherapy was discontinued. • “ After years of referrals and assorted treatments the plaintiff still complain[ed] of constant severe pain and inability to use his right thumb or hand for anything” (para. 108 of Decision – Phase II). Treatments included nerve blocks, Botox injections and rehabilitation efforts by the Workers’ Rehabilitation Centre. • Over a year post accident, plastic surgeon Dr. William A. Cook reported Mr.

Despres remained “in extreme distress and pain that is constantly present in the range of 8-9/10 and with a hand that is not usable because of the pain and extreme sweating” (para. 115 of Decision – Phase II). By then, Mr. Despres had declined counselling, declined medication for depression and was not taking prescribed medication for the pain. He was reporting the use of marijuana three times a day, which he was claiming brought the pain to a more tolerable level of 7/10.

He was also reporting “gastrointestinal symptoms up to 75% of the time, weakness, headache and dizziness or lightheadedness up to 100% of the time, and fatigue, sleep difficulties, problems with concentration and memory, anxiety, depression

and irritability 100% of the time” (para. 115 of Decision – Phase II). • By July 2011, Mr. Despres remained disabled and depressed, yet refused to take medication for either pain or depression. He continued using marijuana and wanted to try to increase its use. He was prescribed Nabilone, which the judge describes as a “pot pill” (para. 120 of Decision – Phase II). • On August 23, 2011, Mr. Despres was taken by ambulance to the Emergency Department of the hospital for treatment, reporting he had been assaulted in a parking lot.

He appears to have suffered a seizure while at the hospital, although he was discharged and left the hospital on foot about an hour and a half later. A CT scan of the head revealed no post-traumatic sequele and CT examination of the chest, abdomen and pelvis was normal. • On September 29, 2011, the Nabilone prescription was renewed. According to an October 7 note, this substance helps decrease his pain from 10/10 to 8/10 for 3 to 4 hours per day with no side effects. Mr. Despres was reporting he was also smoking pot.

The prescription for Nabilone was renewed on that date and again on December 23. • In December 2011, Mr. Despres developed a skin rash for which he was referred to a dermatologist. He continued to be followed for this condition into 2012. He also developed a condition with his right ear. • Although there was no question Mr. Despres was genuinely suffering from a complex regional pain syndrome, ongoing efforts at the Workers’ Rehabilitation Centre were proving fruitless as Mr.

Despres was demonstrating a low level of physical effort such that there could be no confidence in the test results in trying to assess his functional performance. It was reported that he was “ very much entrenched in the sick role […] seemed to be in a place where he has accepted where he is and there seems to be minimal motivation for [him] to continue to seek out better coping strategies” (para. 134 of Decision – Phase II). • By June 2012, Mr. Despres was smoking about 7-8 joints of marijuana per day, which he claimed would reduce his pain from 10/10 to 8/10.

He continued to be prescribed pot pills, this time Cesamet. By August 21, 2012, he was reporting smoking 8-10 joints a day – about one every 2 hours and also taking the pot pills. He wanted to apply for the medical marijuana program so he was given the required forms by a physiatrist who considered him “fully disabled from retraining and/or engaging in gainful employment” (paras. 137- 138 of Decision – Phase II). • In November 2012, Mr. Despres was still experiencing a rash and now had an infected cystic area at the base of his penis for which an antibiotic was prescribed.

He presented to his family physician as very angry and suicidal but continued to refuse antidepressants. He did consult a psychologist who helped him. • Mr. Despres was assessed by a group of three physicians working for Canadian Health Solutions. These three physicians, Dr. Geoff Cook, Dr. Michael Barry and Dr. David A. Elias, produced a report dated December 17, 2012, from which the trial judge quoted at length. The report notes Mr. Despres is “extremely protective of [ his] right hand”, thereby limiting full physical examination. Mr.

Despres reports consistent 10/10 pain in his hand that is “steadily worsening.” He meets both the objective and subjective criteria for complex regional pain syndrome, although the objective criteria were marginal. Observance of Mr. Despres’ activities taken from video surveillance, however, “shows a level of physical activity significantly higher than what was both reported and displayed by the client clinically. Functional assessment from the video showed excellent fine motor control of all digits of the right hand and lifting objects that would be in keeping with at least a light physical demand.” Thus, Mr.

Despres “would appear to be functional to at least a light physical demand load and all attempts should be made to return him to employment.” The following statement is particularly damaging for Mr. Despres: However, subjective client reports of pain and disability are not supported by objective findings, are discordant with observed function over time, and in fact are contradicted by video surveillance reviewed as part of the assessment. This would indicate that Mr.

Despres is misrepresenting his condition, possibly for secondary gain purposes. [para. 141 of Decision – Phase II] • With respect to the use of medical marijuana as treatment for Mr. Despres’ condition, the Canadian Health Solutions’ report notes that such a drug “would be considered to be fourth-line treatment for neuropathic pain following exhaustion of more standard treatments or as an adjunct to other medical treatment.” Its use could interfere with Mr.

Despres’ “overall functioning, motivation and ability to function safely in the workplace.” Thus, “[o]ngoing use of marijuana as part of the long-term treatment plan for this medical condition should not be supported” (para. 141 of Decision – Phase II). • In January 2013, Mr. Despres experienced a recurrence of his groin abscess. By May of that year, it had been drained and was healing well. By then the counselling had been helping and he was feeling happier. His wife was pregnant again. However, by June there appeared to be a yeasty look to a rash in his groin area. Mr.

Despres was noted as doing well and attending counselling. He needed to reapply for medical marijuana. • A May 7, 2013 report by neurologist Dr. David B. King commented on video surveillance of Mr. Despres. According to Dr. King’s observations of what the surveillance had revealed, Mr. Despres “is capable of using his right hand for, at the very least, light activities.” Dr. King says that “[b]ased on this video surveillance, it doesn’t appear that he is severely disabled with this problem,” adding that “certainly he is not as bad as he implies during his functional capacity.

He certainly claims to be more disabled than appears in these videos.” Dr. King confirmed his earlier diagnosis of “a complex regional pain syndrome of relatively mild degree with retained functions” (para. 144 of Decision – Phase II). • An assessment by Dr. W. Edwin Smith, a psychiatrist, dated October 16, 2013, reported as follows:

I am writing to summarize our assessment of Robert Despres. As you know, we are concerned about the complexity of his therapy contract because he lacks sophistication in several important areas of coping skill acquisition. He has also had his illness, pain and disability behaviour rewarded to the point where alternatives are terrifying for him. His anger appears to substitute for any real awareness of fear. This combination likely represents a somatoform [body, distinguished from the mind type] pain disorder.

He also shows narcissistic [excessive self-absorption and little regard for others] and histrionic [excessively dramatic] personality traits. [para. 146 of Decision – Phase II] • Mr. Despres continued to suffer from and receive treatment for asthma, at times requiring treatment at the Emergency Room. He also continued to take the Synthroid for his hypothyroidism. From time to time, he was treated for rashes on various parts of his body. • On September 19, 2014, physiatrist Dr. M. Patricia Forgeron, wrote as follows: In

summary, Mr. Despres is a 36-year-old gentleman who sustained a crush injury to the right thumb on September 11, 2009. In my opinion, the carpal tunnel release [on May 27, 2009] was in relatively close proximity [three and one half-months] to the crush injury on September 11, 2009, and would have perhaps predisposed him for developing CRPS following the crush injury. Nonetheless, I maintain my diagnostic opinion of CRPS type-1 from a work-related crush injury. Mr.

Despres is in a substantial amount of pain which has affected his quality of life, and an inability to provide for his two children, ages 9 months and five years. In my opinion, he is unable to return to gainful employment in a labour type environment. He has difficulty managing his pain on a daily basis. It is my understanding he did receive vocational counselling and/or assessment through WorkSafeNB but was not deemed capable [for] retraining.

He is permanently disabled in my opinion. [para. 153 of Decision – Phase II] [ 35 ] After reviewing the salient portions of the medical records and reports, the trial judge made certain critical findings regarding Mr. Despres’ condition. These significantly impacted on the assessment of damages. In particular, the trial judge found as follows: • Mr. Despres had limited employment before the accident for reasons that predate that incident. His pre-accident future employment prospects were speculative and not real. • Surveillance videos taken in 2012 and 2014 show Mr.

Despres using his right hand and thumb more than he says he can. These “videos as well as the Workers’ Rehabilitation Centre Discharge

Summary of February 11, 2010, are powerful evidence that [Mr. Despres] has exaggerated the effect that the accident has had upon him. He has resisted and refused rehabilitation for lighter work” and this is “why he was not deemed capable for retraining” (para. 156 of Decision – Phase II). • The judge concludes: “by exaggerating his symptoms as well as resisting and refusing rehabilitation [Mr.

Despres] has attempted to portray himself as permanently disabled” (para. 157 of Decision – Phase II). [ 36 ] The judge then went on to list and then comment upon a number of health issues, other than the injury to his hand, that afflicted Mr. Despres over the years.

In the end, the judge reached the following conclusion: After considering all the evidence and despite the plaintiff’s exaggerations of his pain and incapacity, I find that the accident of September 11, 2009 caused the plaintiff to suffer pain and discomfort in his right thumb and hand that evolved into a Reflex Sympathetic Dystrophy or Chronic Regional Pain Syndrome initially of moderate degree, now of mild degree. [para. 165 of Decision – Phase II] [ 37 ] The trial judge then focused his analysis on the question of medication and concluded that Mr.

Despres’ decision not “to take narcotics for pain relief should not be held against him in assessing his damages” (para. 166 of Decision – Phase II). This is so because it would have likely led to addiction. However, the trial judge did not reach the same conclusion regarding Mr. Despres’ refusal to take antidepressants. He pointed to several medical reports in which the use of antidepressants was recommended and refused. [ 38 ] As for the use of marijuana, the trial judge observed that Mr. Despres was using this drug before the accident even though a respirologist had advised him to refrain from smoking it.

That drug is also listed as one of the reasons Mr. Despres was admitted to an addiction treatment facility in 2001. The judge noted Mr. Despres’ testimony to the effect he had stopped using it for years but had then resumed using it after the accident because it gave him some relief. He also considered the fact Mr. Despres’ family physician had prescribed Nabilone or Cesamet, since these gave him temporary relief from pain. At the time of trial, WorkSafeNB was

funding Mr. Despres’ prescription for “four grams of dry marijuana for each day, enough for him to smoke seven to nine joints a day” because he claimed this temporarily relieved the otherwise constant pain (para. 172 of Decision – Phase II). [ 39 ] The judge rejected as unreasonable Mr. Despres’ claim for medical marijuana. He noted Mr. Despres had a long history of asthma and that, beginning in 1997, many physicians tried to discourage him from smoking. The trial judge preferred “the view of Dr.

Lalonde to the effect that he would not prescribe marijuana to be smoked as well as the opinion against its use in the Canadian Health Solutions report.” This report also observed marijuana use results in side effects negatively interfering with one’s motivation and ability to function (para. 173 of Decision – Phase II). [ 40 ] Although he found the claim for medical marijuana to be unreasonable, the trial judge did not immediately reject the claim for the amounts already paid for the substance.

Instead, he observed as follows: However his claim for medical marijuana already prescribed and paid for may have to be covered by the defendants because of s. 10 (13) (

a) of the Workers’ Compensation Act, R.S.N.B 1973, c. W-13 : “10(13) Where an action is brought by a worker, his dependents or the commission, an award for damages shall include (

a) medical aid provided under this Part ...”. Counsel have not fully addressed that point. Before finalizing this decision I request further submissions. [paras. 177-178 of Decision – Phase II] [ 41 ] The judge then turned his analysis to the claim for: (1) loss of valuable services; (2) cost of future care; and (3) loss of earnings. He noted the evidence offered to support damages for loss of valuable services and future care was based on Mr. Despres’ “exaggerated descriptions of his condition and disability” (para. 179 of Decision – Phase II).

Because the video surveillance and other inconsistencies convinced him the situation was not as Mr. Despres described it, the judge held the claim for loss of valuable services had not been proven. With respect to future care, the judge acknowledged Mr. Despres needs future medical care and counselling, but held “he has not proven that those needs are because of the accident” (para. 179 of Decision – Phase II). As for future loss of earnings, the trial judge refered to the two-step process articulated by this Court in Abu-Bakare v.

Vincent , 2003 NBCA 42 , 259 N.B.R. (2d) 66 , per Drapeau C.J.N.B., and concluded as follows: The plaintiff’s earning capacity was very modest before the accident. As noted, for the first eight months of 2009 his earnings were only $319.00. Accordingly the possibility that he will have a future loss of earning capacity because of the accident strikes me as speculative.

Thus I must find that his claim for a future loss of earnings has not been proven. [para. 181 of Decision – Phase II] [ 42 ] In light of these findings, the judge invited “further submissions of counsel regarding special damages, general damages and costs” (para. 183 of Decision – Phase II). [ 43 ] Thus began the process that would lead to phase three of the decision. The parties filed further written submissions and, on January 22, 2016, returned to court to present further oral arguments. At that time, more documents were admitted into evidence.

Most of these documents were admitted with the consent of all parties, but one was the subject of argument before the judge ruled it should be admitted. This latter document is a decision, dated April 11, 2014, rendered by the Appeals Tribunal then established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14. [ 44 ] Regarding the

interpretation to be given to s. 10(13) of the Workers’ Compensation Act , Mr. Despres’ counsel argued it could either (1) be interpreted as a right of indemnity pursuant to which WorkSafeNB was entitled to be reimbursed upon mere proof of payment for medical aid, or (2) be interpreted as a right of subrogation, in which case the reasonableness of the expense would have to be demonstrated. [ 45 ] While he argued in favour of the indemnity approach, Mr. Despres’ counsel fulfilled his ethical obligation and

brought to the trial judge’s attention to the only case he found on point: Fundytus v. Insurance Corporation of British Columbia , [1989] B.C.J. No. 755 (B.C.S.C.) (QL) , which held that a similar provision in British Columbia did not give rise to a right of indemnity. [ 46 ] For its part, counsel for the defendants argued the Fundytus case should apply and the reasonableness of the expenses funded under the Workers’ Compensation Act should have to be proven. [ 47 ] In light of the factual findings the court made in its Decision – Phase II, which did not accord with Mr. Despres’ view of the case, Mr.

Despres’ counsel declined the opportunity to present further arguments. As for counsel for the defendants, they argued the maximum award for general non-pecuniary damages should be $50,000. [ 48 ] On February 1, 2016, the trial judge issued “Phase III” of his decision: 2016 NBQB 32 , [2016] N.B.J. No. 24 (QL) . He reviewed the jurisprudence in support of the arguments regarding general non-pecuniary damages and, in the result, he awarded Mr. Despres non-pecuniary damages of $50,000. The trial judge then turned to the special damages that had been paid by WorkSafeNB.

While these totalled $74,036.26, the judge noted two items were challenged: (1) the costs incurred for medical marijuana in the amount of $16,631.34; and (2) the cost of care in the amount of $5,390.61. [ 49 ] The trial judge considered principles of statutory

interpretation and came to the conclusion that s . 10(13)(

a) of the Workers’ Compensation Act should be interpreted as giving rise to a claim for medical aid but not giving rise to a right of indemnity. In other words, the judge came to the same conclusion as the British Columbia Supreme Court in Fundytus . In Phase II of his decision the claim for medical marijuana to be smoked was disallowed. As for the claim for cost of care, the judge recognized “the importance of taking all reasonable measures to help rehabilitate” Mr. Despres and he allowed the claim for $5,390.61 (para. 202 of Decision – Phase III). [ 50 ] In sum, the judge awarded Mr.

Despres the following amounts for the injury suffered in the accident: General damages $50,000.00 Special damages 57,404.92 107,404.92 Less 10% for contributory negligence 10,740.49 Total damages $96,664.43 [ 51 ] The Decision – Phase III concludes by (1) adjusting the amount owing under the judgment to account for advance payments and (2) awarding Mr. Despres costs on scale 5 under the Rules of Court . III. Issues on Appeal [ 52 ] Mr. Despres appeals the assessment of damages. He does not appeal the apportionment of liability. MacDonald Crane and Andrew St.

Pierre have neither cross-appealed nor filed a Notice of Contention. Mr. Despres seeks to have the trial judge’s three decisions set aside and a new trial ordered. He does not ask this Court to vary the judgment. Mr. Despres’ Notice of Appeal lists 15 grounds of appeal; however, he subsequently filed a Supplementary Notice of Appeal, in which the grounds were consolidated and restated as follows: 1. The Trial Judge erred in determining that the Appellant was losing his ability to do labour work prior to the accident in question, due to deteriorating health. 2.

The Trial Judge erred in determining that the cost of medical marijuana was unreasonable, because he arrived at that decision using irrelevant factors. 3. The Trial Judge erred in determining the Appellant was not entitled to damages for past and future wage loss.

4. The Trial Judge erred in determining that the Appellant was not entitled to damages for cost of care and loss of valuable services. 5. The Trial Judge erred in his award for general damages for pain and suffering, as it was premised on misapprehension of the evidence. IV. Analysis [ 53 ] Before addressing the grounds of appeal, which I will do in the order they were listed, I make two necessary observations. The first concerns the relief sought, while the second relates to an overarching argument of unfairness resulting from the trial judge’s unorthodox approach to adjudication. A. The relief sought [ 54 ] Mr.

Despres’ appeal is governed by Rule 62 of the Rules of Court , of which Rule 62.05 requires the commencement of an appeal by issuing a Notice of Appeal (Form 62B), which sets out the grounds of appeal as well as the relief sought. Form 62B provides the necessary flexibility for relief to be sought in the alternative. As stated above, in his Notice of Appeal Mr. Despres seeks to have the trial decisions set aside and a new trial ordered. He does not ask this Court to reverse or vary any aspect of the decision. The request for a new trial was reiterated at the hearing of the appeal. Mr.

Despres’ counsel argued the decision was not transparent and contained so many errors on factual conclusions that it could not be relied upon. [ 55 ] While it is true that a Notice of Appeal must set out the relief sought, I am of the view this Court is not constrained in its powers by the relief specifically sought in a Notice of Appeal. The powers of the Court are set out in Rule 62.21.

Rule 62.21(1) provides that “[t]he Court of Appeal may draw inferences of fact, render any decision and make any order which ought to have been made, and may make such further or other order as the case may require.” This broad power is not limited to instances where a Notice of Appeal seeks the variation of a decision. It is available in every instance.

Similarly, Rule 62.21(7), which provides the basis upon which the Court of Appeal may order a new trial or hearing, or Rule 62.21(10), which gives the Court of Appeal the power to refer a question back to the court appealed from, do not limit the availability of those powers to instances where such relief is specifically sought. I therefore conclude that the entire array of powers conferred by Rule 62.21 is available to us notwithstanding the relief specified in the Notice of Appeal. [ 56 ] With this in mind, and for the reasons set out below, I conclude it is not in the interests of justice to order a new trial.

In my view, the trial judge’s credibility findings were not the result of palpable and overriding errors. While there were errors of fact and of mixed law and fact, these can be remedied where necessary by varying the trial judge’s decision. In fact, considering the full evidentiary record at our disposal, it would be contrary to those interests to require the parties to start again either from the beginning or even to undergo a new trial on one or more of the contentious issues. B. Rendering a decision in various phases [ 57 ] While not raised as a specific ground of appeal, it was obvious in oral argument Mr.

Despres considered the manner in which this trial was conducted as constituting an overarching error that should lead to a new trial. [ 58 ] The trial judge’s approach to decision-making was to render a decision in three phases with invitations for further argument between phases. While unorthodox, this approach does not by itself raise a fairness concern.

While such an approach ought to be the exception rather than the norm, since it creates delays and increases costs, there is nothing that prevents a trial judge from seeking further argument on a given point if the judge is of the view the matter has not already been fully canvassed. [ 59 ] However, Mr. Despres’ counsel pointed out that this was not a simple invitation for counsel to present further argument. As stated earlier, in issuing phase one of his decision, the trial judge set out nine questions regarding which he was seeking further arguments.

In addition, he stated counsel would be heard “on any motions to reopen the trial” and pointed to his own decision in Daly case as the governing authority. In essence, the trial judge was communicating to counsel he wanted to hear further evidence on the subject matter of the questions he had set out.

[60] With respect, Daly is not the governing authority for proceeding as the trial judge did in this case. Rather, themodern governing authority in instances where the reopening of the evidentiary portion of a trial is requested is 671122 Ontario Ltd. v.Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983, in which Major J., for the Supreme Court, accepted a two-part testtaken from Scott et al. v. Cook et al., (ON SC), [1970] 2 O.R. 769 (H.C.).

The Court must consider: (1) if the newevidence, if presented at trial, would probably have changed the result; and (2) whether the evidence could have been obtained beforetrial by the exercise of reasonable diligence.

In recognizing this test, the Supreme Court went on to say as follows: Further, the case law dictates that the trial judge must exercise his discretion to reopen the trial “sparingly and with the greatest care” sothat “fraud and abuse of the Court’s processes” do not result (see Clayton, supra, at p. 295, cited in Scott, at p. 774). [para. 61] [Emphasis Added] [61] Sagaz was considered in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670, [2015] O.J.

No. 5178 (QL), inwhich Lauwers J.A., for the Court, examined the decision and concluded as follows: […]properly understood, the test in Sagaz goes beyond the two questions of whether the new evidence, if presented at trial, wouldprobably have changed the result, and whether the evidence could have been obtained before trial by the exercise of reasonablediligence.

It includes considerations of finality, the apparent cogency of the evidence, delay, fairness and prejudice […] [para. 20] [62] I agree with this analysis and add that these factors must be considered in light of the caution the SupremeCourt issued that the exercise of discretion to reopen a trial must be exercised “sparingly and with the greatest care,” or, stateddifferently, with much restraint. [63] On the question of restraint, the Supreme Court’s decision in Sagaz did not establish new law. Indeed, in NewBrunswick, this point had previously been expressly recognized. In Workers’ Compensation Board (N.B.) v.

Atlantic Speedy PropaneLtd. et al. (1989), (NB CA), 96 N.B.R. (2d) 108, [1989] N.B.J. No. 246 (QL), Stratton C.J.N.B. had stated as follows: While there is no express provision in the Rules of Court empowering a trial judge to receive further evidence, it has been held he has adiscretionary power to do so either (

a) for his own satisfaction or (

b) where justice requires it. But leave to receive further evidenceshould not be granted except for the most compelling reasons: see Workmen’s Compensation Board et al. v. McCarthy et al. (1981), (NB KB), 37 N.B.R. (2d) 185 […] (N.B.Q.B.T.D.); (1983), (NB CA), 42 N.B.R. (2d) 160 […](N.B.C.A.). [para. 14] [Emphasis Added.] [64] In Daly, the trial judge acknowledged Chief Justice Stratton’s statement in Atlantic Speedy Propane; however,he did not accept that this was the expression of a “firm legal rule” (para. 21). Rather, the trial judge embarked upon a lengthy analysis inan attempt to discredit this principle.

He suggested the concept of requiring restraint, as opposed to what he considered to be anunfettered discretion to allow a case to be reopened, would be putting form before substance. [65] With respect, on this point, the judge’s analysis of Daly, and his conclusion, are wrong . Both the SupremeCourt in Sagaz – to which the judge did not refer in Daly – and this Court in Atlantic Speedy Propane caution judges to be restrained inallowing cases to be reopened.

It simply was not open for the trial judge to disregard this principle. [66] What Daly ignores is that, in our system of justice, form and substance work hand in hand. Except in particularinstances, such as small claims matters, civil trials in New Brunswick are conducted in an adversarial process along well-establishedprocedures, including the one pursuant to which the issues requiring adjudication are defined by the pleadings. As Drapeau C.J.N.B.stated in Local 772 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the UnitedStates and Canada v.

The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the UnitedStates and Canada and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the UnitedStates and Canada, Local 325 and Hughes and Wood, 2013 NBCA 33, 404 N.B.R. (2d) 332, “[c]ivil litigation does not bring into playthe ‘commission of inquiry’ model in which one or more commissioners embark on a ‘voyage of discovery armed only with very generalterms of reference’” (para. 42).

[ 67 ] The adversarial process is one pursuant to which each party presents their evidence to prove or disprove what has been alleged in the pleadings. The role of the trial judge is to ensure the proceedings are conducted fairly, properly and according to law, which include the rules governing procedure. The judge’s role is to listen to the testimony, assess all the evidence, make assessments of credibility and findings of fact, apply the law to the facts and make an ultimate determination on the merits, keeping in mind throughout the applicable burdens of proof.

If a party making an assertion and having the burden of proving it fails to meet that onus, the role of the judge is generally to dismiss the claim asserted. It is not the role of the judge to enter the fray and take on the role of counsel. The judge is not an investigator. He or she must be, and must be seen to be, an impartial arbiter deciding matters on the basis of the evidence the parties have adduced in a trial conducted in accordance with established procedure and principle.

While established principle includes allowing a trial to be reopened for compelling reasons, sparingly and with great care, when the governing test has been met, a judge should not, under the guise of wanting to do justice, enter the fray and direct the evidence that ought to be adduced. As Lord Wilberforce put it in Air Canada v. Secretary of State for Trade , [1983] 2 A.C. 394, [1983] 1 All E.R. 910 : In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties – a duty reflected by the word ‘fairly’ in the rule.

There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done. [p. 438] [ 68 ] The present case illustrates why, in a case where parties are represented by counsel, the decision to adduce evidence is best left to counsel.

Counsel for Mr. Despres decided not to pursue certain evidence related to the TSH test results because counsel for the defendants had not raised Mr. Despres’ thyroid condition as relevant to the assessment of damages. Among the evidence not pursued were pharmacy records, which would have required counsel to canvass all pharmacies Mr. Despres used after the one in the local Zellers had closed. When the trial judge raised the matter, counsel felt obliged to gather the evidence and present it to the Court. Yet, in the final analysis, Mr.

Despres’ thyroid condition, including the TSH test results and the medication he was taking for the condition, was found to have no relevance whatsoever in the determination of damages. This is exactly what counsel had initially determined. Nevertheless, counsel had to unnecessarily spend time and money gathering these documents in order to satisfy the judge’s inkling the information might somehow be relevant. [ 69 ] All this said, it is not surprising counsel did not raise the trial judge’s approach as a discrete ground of appeal.

While unconventional, the approach did not, of itself, have any effect on the ultimate decision because the information gathered at the instigation of the judge, between phases one and two, did not affect the ultimate assessment of damages. Perhaps credit ought to be given to defence counsel who did not pursue untenable positions on some of the matters the trial judge raised. In any event, in the circumstances of this particular case, I am unable to give effect to any suggestion this unorthodox approach justifies appellate intervention. C. The grounds of appeal

(1) Deteriorating pre-accident employment capacity [ 70 ] The first ground of appeal alleges error in the trial judge’s determination that, prior to the accident of September 11, 2009, Mr. Despres was losing his ability to do labour work on account of deteriorating health. Mr. Despres claims there was no evidence to support this finding. [ 71 ] Mr.

Despres also disputes the trial judge’s finding that “[t]he plaintiff’s actual earnings in the summer months before the accident, his poor education and lack of even a driver’s licence as well as his increasingly complicated medical history and rejections by previous employers indicate that he was becoming less employable” (para. 86 of Decision – Phase II). [ 72 ] Mr.

Despres acknowledges there was evidence he had health problems, but argues none of these had rendered him unemployable, except for the carpal tunnel syndrome; however, this condition was resolved by a surgical release on May 27, 2009, following which he was cleared to return to work as of July 12, 2009. It was the carpal tunnel problem that resulted in no earnings for the first part of 2009. Once the condition was addressed, he once again became employable. The fact he was working as a labourer at the time of accident is proof of his employability.

Moreover, his lack of a driver’s licence and poor education had not prevented him from earning some income in the past.

[ 73 ] Thus, Mr. Despres contests the judge’s conclusion that “[b]ecause of his poorly-controlled asthma and other medical and social issues before the accident his future employment ‘in a labour type environment’ was speculative, not real” (para. 154 of Decision – Phase II). [ 74 ] MacDonald Crane and Mr. St. Pierre reply by pointing to the evidence of Mr. Despres’ school records, his hospital chart, his medical and rehabilitation records as well as his employment history.

In particular, they direct the Court to the following portion of the testimony of Alexandra Cummings, who worked for the employment agency though which Mr. Despres had been placed in various temporary jobs over the years: He was definitely not one of my first calls just because based on past experiences I had with him, it is hard for him to work around certain people, people with strong personalities, his attitude kind of got in the way. So he would certainly not be my first call.

But, if I had to work my way down in a kind of determined it was a short … shorter term assignment and maybe not a lot of people at it, I would give him a call and give him a chance. [ 75 ] MacDonald Crane and Mr. St. Pierre also refer to psychiatric and psychological diagnoses of Mr. Despres having narcissistic and histrionic personality traits, which affect both his personal and work relationships. [ 76 ] In my view, the trial judge’s finding that Mr. Despres had no pre-accident employability is the result of a palpable and overriding error in the assessment of the evidence. The fact is, Mr.

Despres resumed employability once he recovered from the carpal tunnel surgery. He was gainfully employed the day of the accident. But for the accident, there is no evidentiary basis for concluding Mr. Despres would not have completed his current job and then gone on to obtain other employment. There was simply no evidence Mr. Despres had suddenly become totally and permanently unemployable on account of his pre-accident medical condition, his poor education, his failure to hold a driver’s licence or his personality traits.

The evidentiary record does not lend itself to such a conclusion. [ 77 ] The fact there is merit to this ground of appeal does not, however, necessarily mean we must interfere with the judge’s ultimate award of damages. It is the effect of the error on the assessment of damages that would give rise to appellate relief. Any such effect will be addressed below under the headings that relate to the other grounds of appeal. In sum, I am of the view the judge’s error led him to improperly deny Mr. Despres any amount at all for loss of earnings.

(2) Cost of medical marijuana [ 78 ] Mr. Despres points to British Columbia cases in which awards were made for the cost of medical marijuana. He also refers to Fasquel v. Boucher , 2011 NBQB 150 , 374 N.B.R. (2d) 339, in which the use of medical marijuana was mentioned in the course of a motion for an advance of special damages. Mr. Despres relies on these authorities to support his claim. I note there is no indication in Fasquel the judge was ruling on the validity of his claim.

In any event, no binding authority was brought to our attention on the question whether or not the use of marijuana might be considered a valid item of damages. This said, MacDonald Crane and Mr. St. Pierre did not argue the claim was devoid of merit in law. Instead, they submitted the use of marijuana was not appropriate in this particular case. As will be obvious from the reasons set out below, I agree with this contention. As a result, I say nothing regarding the cases to which Mr. Despres referred. [ 79 ] Mr.

Despres submits his need for marijuana is evidenced by the report and testimony of the physiatrist, Dr. Patricia Forgeron, who identified Mr. Despres as a candidate for inhaled medical marijuana. According to her, the relaxation properties of inhaled marijuana benefited Mr. Despres and, in her experience, these are not present in the pill version known as Nabilone. According to her testimony, the marijuana helps Mr. Despres relax and helps him with his pain. She stated she did not care how much he takes. [ 80 ] According to Mr.

Despres, his family doctor was also of the view marijuana was an indicated therapy to treat his pain. He adds that even Dr. King, who wrote a medical report for the defendants, testified that the use of this kind of drug was “probably justified.” However, Dr. King’s testimony is quoted out of context. Dr. King testified his report noted Mr. Despres was using marijuana and getting some relief.

He continued by stating that, in the report, he referred to a paper in which it is stated that marijuana “has been used commonly in treating chronic pain.” He quoted from the paper to make that point and to support the argument that “largely from […] the ethical side […] the use of this kind of drug and severe pain syndromes is probably justified and why it has a special category in reference to other drugs this

article questions.” Thus, Dr. King was not expressing his own view that medical marijuana was “probably justified.”

[ 81 ] On the other hand, both Dr. Lalonde and the authors of the Canadian Health Solutions report were of the view Mr. Despres should not be taking marijuana for the treatment of his condition. Dr. Lalonde testified that inhaled medical marijuana causes other serious medical conditions and that it was “not a good plan at all.” In the context of allowing that maybe the pill form of the drug might be indicated, Dr. Lalonde stated: “I am really not a marijuana expert.” In that context, this statement did not undermine Dr.

Lalonde’s opinion that inhaled marijuana was bad for one’s health, since he continued his testimony by reaffirming this very point. As for the Canadian Health Solutions assessment, it clearly recommended against the use of marijuana in Mr. Despres’ case. [ 82 ] Mr. Despres emphasizes that Workers’ Compensation Appeals Tribunal rejected the Canadian Health Solutions report on this point and ordered WorkSafeNB to fund Mr. Despres’ use of marijuana. This, because the substance provided him with effective pain management.

He claims that this indicates that marijuana was the only treatment that assisted him with pain management. [ 83 ] Mr. Despres submits because Dr. Lalonde qualified his opinion by recognizing he was not “a marijuana expert”, and as the Canadian Health Solutions report was rejected on this point by the Appeals Tribunal, it was not open for the trial judge to reject the opinions of those other expert witnesses who supported the continued use of marijuana.

He also submits the trial judge’s decision rejecting this head of damages was tainted by reliance on factors that should not have been considered in determining the issue. In particular, the trial judge noted Mr. Despres lives with his common-law wife and their two small children and the judge was concerned the children would be exposed to the effects of second-hand marijuana smoke. Rejecting as not credible Mr. Despres’ testimony he always went outside to smoke, the trial judge concluded the best way to protect the children was for Mr. Despres to stop smoking marijuana. [ 84 ] In reply, MacDonald Crane and Mr.

St. Pierre note the trial judge did not reject the use of medical marijuana in all cases, but rather held, in the present case, Mr. Despres’ “claim for medical marijuana to be smoked is not reasonable” (para. 176 of Decision – Phase II). Since the trial judge did not, as a matter of law, reject the use of medical marijuana, case law is of no assistance in assessing whether the trial judge made a palpable and overriding error in his determination. [ 85 ] At the hearing of the appeal, counsel for the respondents conceded a palpable factual error in the trial judge’s decision. The trial judge found Mr.

Despres smoked marijuana in the presence of his children. There was simply no evidence to support this finding. However, counsel for MacDonald Crane and Mr. St. Pierre argued the error was not overriding. The claim for medical marijuana was essentially rejected on the basis the trial judge accepted the evidence of Dr. Lalonde and the Canadian Health Solutions report, the latter of which made the point that the cognitive effects of the use of marijuana may interfere with overall functioning, motivation and ability to function safely in the workplace.

According to the respondents, it was open for the trial judge to take into consideration all the evidence and to accept the opinions of some experts over others. [ 86 ] I agree the trial judge made a palpable error in finding the second-hand smoke affected the children when there was simply no evidence the children were ever exposed to the substance. Nevertheless, I would not give effect to this ground of appeal.

In my view, the judge’s error did not have an overriding effect on his ultimate denial of the claim for the cost of medical marijuana. [ 87 ] The trial judge’s determination regarding the marijuana claim must be considered in light of his other findings, and specifically those that follow: Surveillance videos in 2012 and 2014 show the plaintiff using his right hand and thumb more than he says he can. (Ex. D-4) The surveillance videos as well as the Workers’ Rehabilitation Centre Discharge

Summary of February 11, 2

[…]