ELZBIETA TERESA CWIK v. WLADYSLAW CWIK, 2003 ABQB 284

Cwik v. Dhya Transport Ltd., 2003 ABQB 284 Date: 2003 03 28 Action No. 9803 14459 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON BETWEEN: ELZBIETA TERESA CWIK and WLADYSLAW CWIK Plaintiffs - and - DHYA TRANSPORT LTD. and GURMAIL SINGH PANDHER Defendants _______________________________________________________ REASONS FOR JUDGMENT of the HONOURABLE MR. JUSTICE E. S. LEFSRUD _______________________________________________________ APPEARANCES: Douglas N. Skovberg for the Plaintiffs Katherine E. Onook for the Defendants

[ 1 ] This action resulted from a motor vehicle accident which occurred on September 3, 1996 (“the Accident”).

At that time, the Plaintiff Elzbieta Teresa Cwik (Cwik) was lawfully operating an automobile owned by her husband, the Plaintiff Wladyslaw Cwik, in an easterly direction at the intersection of 118 Avenue and 97 Street in the City of Edmonton in the Province of Alberta, when it was struck by a southbound tractor-trailer unit operated by the Defendant Gurmail Singh Pandher with the consent and permission of its owner, the Defendant Dhya Transport Ltd. [ 2 ] At the outset, counsel provided me with an agreed exhibit binder which contained inter alia Statements of Agreed Facts, experts’ reports, copies of Cwik’s income tax and benefit returns for the years 1994 to 2001 inclusive, and information as to her earnings for the calendar year 2002.

Counsel also provided a

summary of Cwik’s income for the said years which discloses, under the heading “Gross Business”, the income generated by Cwik during the period. The

summary is reproduced below and will be referred to later. ELIZABETH CWIK

SUMMARY OF INCOME YEAR GROSS BUSINESS T4's NET BUSINESS TOTAL 1994 $ 777.00 $3,989.00 1995 $19,278.00 $1,634.00 $1,634.00 1996 $14,694.00 $374.00 $374.00 1997 $26,743.00 $544.00 $544.00 1998 $58,610.00 $10,526.00 $10,526.00 1999 $62,147.00 $11,997.00 $11,997.00 2000 $90,104.00 $37,712.00 $37,712.00 2001 $125,572.00 $60,955.00 $60,955.00 2002 $146,537.00 $70,000.00 (est) $70,000.00 (est) TOTAL $197,731.00 [ 3 ] The Agreed Statement of Facts was of particular assistance in that: firstly, the Defendants admitted liability; secondly, the Defendants accepted that, in consequence of her injuries, Cwik sustained a loss of income; and thirdly, the parties confirmed that apart from a determination of Cwik’s loss of income, the other issues have been resolved as follows: General Damages $ 16,000.00 Loss of Housekeeping Capacity $ 2,000.00

Special Damages $ 2,342.00 Loss of Consortium (Mr. Cwik) $ 1,000.00 Total $ 21,342.00 [ 4 ] In a Supplemental Agreed Statement of Facts, the parties also confirmed that: 1. On December 5, 1996, Cwik showed two residential properties she had listed for sale to an individual she assumed to be a prospective purchaser; 2.

Between the date of the accident and March 1997, Cwik attempted to work part time and she returned to work full time in April 1997. [ 5 ] As to her claim for an ongoing loss of income, Cwik states that as a result of the accident, she sustained a performance delay or setback in her career, such that, if there had been no accident, she would have achieved a higher income at an earlier time.

She submits that her alleged performance delay resulted from the fact that while she was off work she lost irretrievable contacts thereby suffering a one to three year delay in reaching higher income levels. [ 6 ] Although the Defendants admit that Cwik suffered a loss of income as a result of the accident, they submit that she has failed to prove her loss and, therefore at most, should only be awarded a nominal amount.

Evidence [ 7 ] The Plaintiff Wladyslaw Cwik gave evidence about Cwik’s yearly earnings because he had either prepared her tax returns or organized the information to be provided to their accountant. [ 8 ] Wladyslaw Cwik testified that Cwik worked very little between September 1996 and April 1997.

He testified that she spent more time at home. [ 9 ] On cross-examination, Wladyslaw Cwik testified that Cwik had also been off work for a time in June of 1995, and that they had taken a month long vacation in Europe during the summer of 1996. [ 10 ] Cwik testified that in October 1994 she commenced work with a company then known as Metro City and which now operates under the firm name and style of Century 21. She also confirmed that she was involved in a motor vehicle accident in June of 1995 and as a result thereof suffered a whiplash type of injury.

However, she stated that in spite of the injury she continued to work full-time. Finally, she also testified that while she travelled in Europe during the month of July 1996, other real state agents assisted her clients. [ 11 ] She testified that she suffered considerable injuries as a result of the Accident, including severe pain in her neck and back and extreme dizziness. She was afraid of going out, as she had suffered a fall at home.

She testified that she took some calls at home, but couldn’t really do anything because she was unable to show homes. [ 12 ] She conjectures that she may have lost 8 to 10 transactions during the period. She also testified that she received about

$2,090.00 in

Section B benefits, but had to pay $1,500.00 back. In any event, it is agreed that $590.00 should be deducted from any award granted. [ 13 ] Counsel for the Defendants cross-examined Cwik with respect to her injuries following the 1995 accident, utilizing letters and reports prepared by various doctors that she had consulted. Cwik denied the statements made in those documents to the effect that her ability to work was impaired by her injuries resulting from that accident. [ 14 ] William Soreg was the owner and manager of the Century 21 office at which Cwik worked between October 1997 and March 2001.

He testified that when he bought the business he checked the records and even at that time could tell that Cwik was an “up and comer.” His opinion was based on her sales records from October 1994, when she started, to October 1997. He said she has continued to do very well, and classifies her as above average. [ 15 ] With respect to real estate trends in general, he testified that 1994 was a very challenging year. There was some recovery by 1997 and the market grew 5-6% from there.

In recent years, the growth has been 11-13%, reflecting an increase in volume as well as price. [ 16 ] He testified that when he sold the business and returned to selling real estate full-time, it took him about a year and a half to get up to speed. He stated that he now completes about 1.5-2.5 deals a month. [ 17 ] On cross-examination, Soreg confirmed that he had no knowledge of exactly what Cwik sold or listed in 1996 and 1997. [ 18 ] Douglas Conway was qualified as an expert in vocational counselling and employability assessment. He met with Cwik on April 9, 2002.

Based on her advice to him that she lost many contacts as a result of the accident, he concluded that she was delayed in her career, likely by a duration of one to three years. He did not review any documentation which would have revealed her actual performance. [ 19 ] Christopher John Bruce was qualified as an expert economist specializing in quantifying loss of income. He calculated the dollar figures for loss of income based on the assumption of a 1, 2 or 3 year delay in career. His report relies entirely on Douglas Conway’s conclusion that Cwik experienced a 1 to 3 year delay in her career.

Discussion [ 20 ] Bruce’s report relies entirely on Conway’s report, and in turn Conway’s report relies entirely on Cwik’s advice to him. At trial Cwik’s testimony was less than satisfactory. In particular, I was not provided with particulars as to:

a) what listings she had or clients she was representing at the time of the accident and whether she lost all those listings and clients;

b) any information as to whether she closed any transactions during that time, other than the one she remembers closing immediately following the accident;

c) what kind of contacts she had, how she would have maintained them if she had been working, and how she lost them;

d) what she tried to do to maintain contacts within her limitations;

e) how many house deals she completed in each year before and after the accident;

f) how many house deals she normally completed in the winter months; and

g) what sales were for average and above average realtors for each of the years in question. [ 21 ] Bruce’s calculations are questionable for other reasons. He calculates that Cwik could have attained her 2002 level of sales in 2001, 2000 or even 1999 while disregarding the fact that the real estate market in 2002 was far more lucrative than it was in 1999. In addition, neither Conway nor Bruce took into consideration the fact that at the time of the accident Cwik’s real estate career was basically in its infancy. [ 22 ] I have read Lee v. Kwok , [1995] B.C.J. No. 410 (B.C.S.C.) .

In that case, in the absence of expert evidence, Smith J. gave an award for delayed earnings to a realtor who was off work for 6 months due to injuries from a motor vehicle accident. While I have expert evidence before me, I am unable to accept it because of the Plaintiff’s failure to independently establish the assumptions underlying those expert reports. I refer to the following statement by Sopinka J. in R. v.

Lavallee , 1990 CanLII 95 (SCC) , [1990] 4 W.W.R. 1 , at 37 (S.C.C.) : Where...the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information.

The lack of such proof will, consistent with Abbey , have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. [ 23 ] I am not satisfied, on the evidence before me, that Cwik’s injuries resulting from the Accident caused her to lose contacts which she otherwise would have maintained, such that she experienced a delay in earnings. Firstly, she was not completely out of the market, as there is evidence indicating that she showed houses on two occasions and did conduct some phone calls from home.

Secondly, the time period in question, September 1996-April 1997, consisted of the winter months, in which the real estate market is slow. While there was no evidence before me to this effect, I take judicial notice of the basic facts that fewer people move during the winter months and there are fewer listings. Thirdly, Cwik failed to bring forward any evidence to support the claim that she lost contacts and suffered a delay in earnings.

If that were the case, she could easily have given evidence as to the number of transactions completed before and after the accident, the number of listings that went to other realtors during her absence, and particulars as to those contacts that she actually lost. [ 24 ] At this point I am left with the task of determining Cwik’s loss of income during the period from September 1996 to April 1997, a period which was affected by the aftermath of a previous accident, travelling and the time of the year.

In addition, it is my view that at the time Cwik was still in the process of becoming an accomplished realtor. [ 25 ] A

summary of income for 1995, 1996 and 1997 has been of very little assistance to me by reason of the fact that various other factors are involved during that period. All things considered, I estimate Cwik’s loss of income during the period to be $8,500.00. Accordingly, I award Cwik judgment in that amount from which, I understand, that in relation to

Section B benefits, the sum of $590.00 is to be deducted from the said judgment. [ 26 ] Costs may be spoken to if required. HEARD on the 10 th day of February 2003. DATED at Edmonton, Alberta this 28 th day of March 2003.

__________________________ J.C.Q.B.A.