) ) PAUL TAYLOR v. KAREN YOUNG, 2024 ONSC 166

CITATION : Taylor v. Zents, 2024 ONSC 166 PETERBOROUGH COURT FILE NO.: CV-16-95-00 DATE: 20240108 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) PAUL TAYLOR AND KAREN YOUNG Plaintiffs – and – PAMELA ZENTS Defendant ) ) ) ) ) ) ) ) ) Troy Lehman, Lara Fitzgerald-Husek, and Rayanna Hamadi, for the Plaintiffs Stephen Baldwin, for the Defendant ) ) )))) HEARD: November 21-24, 2022; November 28-December 2, 2022; December 5-9, 2022; December 12-13, 2022; and February 13, 2023 REASONS FOR DECISION CASULLO J. INTRODUCTION [ 1 ] On March 17, 2015 Pamela Zents rear-ended Paul Taylor at 80 km per hour while Mr.

Taylor was at a full stop, waiting to turn left. [ 2 ] As a result of the collision, Mr. Taylor submits he sustained serious injuries including a traumatic brain injury (“mTBI”), persistent postural perceptual dizziness (“3PD”), and Adjustment Disorder. The injuries have left Mr. Taylor with a combination of significant cognitive, physical, and emotional impairments. [ 3 ] Despite returning to work for close two years following the collision, Mr. Taylor submits that his impairments have rendered him unemployable in his chosen career in the film and television industry. [ 4 ] As a result of his injuries, Mr.

Taylor seeks general damages for his pain and suffering, past and future income loss, and future care costs. His wife, Karen Young, seeks damages for her loss of care, guidance, and companionship. [ 5 ] The defendant denies that Mr. Taylor sustained a concussion, or indeed any lasting injury in the collision. At worse there was a bump or laceration to his head. The defendant advances two theories in defending this claim. First, the injuries Mr. Taylor complains of are based solely on his assertion that he sustained a brain injury or concussion, but the evidence contradicts this. Second, Mr.

Taylor’s credibility is suspect, based upon what the defence characterizes as serious and material inconsistencies in his self- reporting. [ 6 ] Mr. Taylor’s credibility was a focal point during the trial. The defence made him out to be an exaggerator, a fabricator, and a mastermind who pulled the wool over not only his own treating physicians’ eyes, but also specialists in Toronto and at the Mayo Clinic in the United States. [ 7 ] Mr. Baldwin plaintively asked in his closing argument: “[h]ow many categorical untruths must Paul Taylor commit?

His credibility is beyond redemption.” For the following reasons, I am of the absolute contrary view. Mr. Taylor told no untruths, and his credibility is above reproach. TRIAL PROCESS [ 8 ] Lead counsel for the parties are at the pinnacle of the personal injury bar, and I am grateful to them, and their associates, for the seamless manner in which the trial flowed, as well as the tenor of mutual respect for the litigation process.

In addition to joint books of documents and aides memoire, counsel were always prepared with briefs and statements of law on the procedural and evidentiary issues that arose during the trial.

[ 9 ] Counsel very helpfully provided written submissions to supplement their closing arguments, and I freely acknowledge culling certain portions thereof for use in these reasons. Motions at Outset of Trial [ 10 ] The plaintiff brought three motions. The first, on consent, was to amend the style of cause to remove the Smit defendants. [ 11 ] The second was for leave to call more than three expert witnesses. While the defendant did not strenuously argue against leave, Mr. Baldwin argued that the evidence of Dr. Misener, a rehabilitation specialist, and Mr.

Kumove, a vocational counsellor, both of whom opined on Mr. Taylor’s employability, was duplicative, and only one should be permitted. [ 12 ] I ruled that the plaintiff could call both experts. While each had come to same conclusion – that Mr. Taylor was no longer employable – their areas of expertise were different, the considerations underlying their findings were distinct, and their evidence would not be unduly duplicative. Ultimately, however, only Dr.

Misener was called to testify. [ 13 ] The third motion was for a ruling that any mention of the plaintiff’s accident benefits settlement be inadmissible during the trial. Following oral argument, counsel agreed to hold this particular motion in abeyance until the settlement was raised during the trial itself. Mid-Trial Rulings [ 14 ] There were a number of mid-trial rulings. The first was a defence request to admit a letter from Mr. Taylor’s previous lawyer to Mr. Taylor’s accident benefits insurer. Two documents were attached to the letter, an OCF-1 and a Disability Certificate [1] .

I ruled that their admission into evidence was not warranted, as the information was not relevant to the trial, and its admission would be highly prejudicial to Mr. Taylor. [ 15 ] Another mid-trial ruling concerned Dr. Hamilton, Mr. Taylor’s treating neuropsychologist who, in preparation for trial, provided a medical legal report. While the defendant did not take issue with Dr. Hamilton’s qualifications, the objection was in respect of Dr. Hamilton wearing two hats at the trial. [ 16 ] I ruled that Dr. Hamilton would be qualified as an expert.

In support of this determination, I followed the direction of Perell J. in Wise v. Abbott , 2016 ONSC 7275 , [2016] O.J. No. 6100, at para. 70 , undertaking a factual enquiry to determine whether there was an actual partisan relationship between Mr. Taylor and Dr. Hamilton. I found there was none. [ 17 ] The most consequential mid-trial ruling came on December 7, 2022, when, on day thirteen of the trial, I granted the plaintiff’s motion to strike the jury. I gave brief oral reasons, to be followed by written reasons, which will be released in due course.

EVIDENCE [ 18 ] Over the course of this seventeen-day trial the parties provided a great deal of evidence and material through various lay and expert witnesses. On behalf of Mr. Taylor I heard from family members, co-workers, friends, and a director of photography who had hired Mr. Taylor before and after the collision. Mr. Taylor also called treating practitioners, three medical experts: Dr. Hamilton, Dr. Robinson, and Dr. Misener, as well as two damages experts: Ms. Ellen Lipkus (future care) and Mr. Gary Principe, (economic loss quantification). [ 19 ] The defendant called two medical experts: Dr.

Reznik and Dr. Jovanovski. [ 20 ] While I have considered all of the evidence, material, and the law, in these reasons I will focus on the facts and law that I consider to be most directly relevant. Mr. Paul Taylor – Overview [ 21 ] At the time of the trial, Mr. Taylor was 55 years old. He was born and raised in Peterborough, and moved to Toronto after high school. He reconnected with his high school sweetheart, Ms. Young, after each of their first marriages had ended. He moved back to Peterborough where he and Ms. Taylor raised her two children, Maggie Young and Graham Young. Mr.

Taylor – Before the Collision Employment [ 22 ] Mr. Taylor had a long and successful career before the collision. From a young age he was captivated by photography. In 1989 he graduated from a four-year film course from York University. After working as a camera service representative for William F. White International, equipment supplier to the film and television industry, Mr. Taylor joined the film industry proper, with a view to working his way up to first camera assistant, more commonly referred to as a focus puller. [ 23 ] A focus puller is responsible for keeping the camera focussed during the shot.

This requires constant concentration, as the focus puller is continuously manipulating the camera lens, adjusting focus as the subject moves around the set. Focus pullers spend most of their day looking at a monitor with a focus remote, so dividing their attention between the subject and the monitor can be challenging. [ 24 ] Mr. Taylor started out as a production assistant, and fifteen years later he achieved his goal of becoming a focus puller.

He loved his job, referring to the film industry as “the military for creative people.” He worked on such films as Legends of the Fall and I, Robot , before finding his niche in filming commercials. [ 25 ] The film industry does not resemble a typical nine-to-five, five-day-a-week form of employment. Most everyone who works

in film and television is freelance. Focus pullers are hired by directors of photography (“DOP”). In the film industry, your reliability is your calling card. You move from job to job, building a network and a reputation as you go. [ 26 ] Time is money on a set. The environment is hectic and fast paced, and DOPs do not take kindly to delays or mistakes. On average Mr. Taylor worked three-to-four days a week, but the hours were long – while a ten-hour day was the industry standard, most days ran twelve hours. Mr. Taylor would leave the house at 5:00 a.m. and drive to the set in Toronto.

Often, he did not get home until after 9:00 p.m. There were times when he stayed in Toronto overnight, but before the collision he typically made it home to Peterborough after a shoot. [ 27 ] The work was fast-paced, and Mr. Taylor was continuously called on to make split-second decisions about operating the camera. The job was also physically demanding, requiring repetitive heavy lifting of 50-plus pounds, moving cameras, film magazines, lens cases, and monitors.

Focus pulling also meant prolonged standing, bending, climbing on ladders, squatting, and kneeling. [ 28 ] Despite the long hours and intense conditions, Mr. Taylor thrived in the industry. Respected and well-liked, his identity was deeply intertwined with his persona: “Paul Taylor, the Film Guy.” [ 29 ] Mr. Taylor averaged about $56,000 per year in the four years leading up to the crash. Recreation and Activities [ 30 ] Mr. Taylor’s irregular work

schedule suited him, as he could spend time with Ms. Young and the kids on his days off. Before the collision Mr. Taylor was an engaged member of his family, always planning trips and activities. [ 31 ] Mr. Taylor was physically active before the collision. He enjoyed hockey, swimming, running, and fishing. He cycled for fitness, and for a time was a member of the Peterborough Cycling Club. He road motorcycles and dirt bikes. He was also adept at fixing and maintaining them. He had a group of friends he would ride his motorcycle with.

He and Graham bonded over dirt biking. [ 32 ] Friends and family testified that Mr. Taylor was a happy man before the collision. He was variously described as kind, respectful, outgoing, energetic, and generous. Housekeeping [ 33 ] Mr. Taylor and Ms. Young shared in the family’s housekeeping tasks, including grocery shopping, meal preparation, cleaning, vacuuming, and laundry. Mr. Taylor was responsible for cutting grass and shovelling snow, and general home maintenance. Pre-existing Medical Conditions [ 34 ] Mr. Taylor was in good health and did not suffer from any chronic illness.

He had never received disability benefits, had never been treated for psychiatric or psychological issues. Indeed, he did not even have a family doctor. [ 35 ] Mr. Taylor believes he may have had two concussions while playing sports in high school, when he was slow to get up from being hit and had to sit out a shift. He described this as “getting his bell rung.” He experienced headache, dizziness, and sensitivity to light and noise. His symptoms eventually resolved. [ 36 ] In his 20s Mr. Taylor tore the meniscus on his left knee.

With surgery the tear healed, and while it caused him discomfort from time to time, it did not impede his functionality. [ 37 ] The year before the collision Mr. Taylor re-injured his knee, and X-rays revealed early degenerative changes. The anti- inflammatory medications he was prescribed did their job, and he did not lose any time from work. The Collision [ 38 ] Mr. Taylor was off work the day of the collision. Ms. Young asked that he take some old furniture to the dump located on Base Line Road. It was a clear day in March, no snow or rain.

The sky was blue, the roads were dry, and the promise of spring was in the air. [ 39 ] Mr. Taylor drove his Honda Element along Bensfort Road, a two-lane highway with a maximum speed limit of 80 km per hour. He saw a red pickup truck stopped and waiting to turn left on to Base Line Road. Mr. Taylor stopped behind the red pickup truck. Just before the collision he looked into his rear-view mirror and saw a white car barrelling toward him, not slowing down.

He recalled thinking the car was going to hit him, although he has no memory of actually being hit. [ 40 ] There was no evidence of the defendant braking before she crashed into Mr. Taylor. [ 41 ] The force of the collision propelled Mr. Taylor off the road and down an embankment into a ditch, about 130 feet away from the point of impact. His car rolled completely over and came to rest on its tires at the bottom of the ditch. The driver’s side airbag deployed. [ 42 ] Photographs of his car depict a compressed roof on the driver’s side, and significant rear-end damage. The car was written off. [ 43 ] Mr.

Taylor remembers trying to steer through the collision as he was heading toward the ditch. He does not recall rolling over. His next memory is of someone banging on his window. That someone was Randy Ellis, whose independent and unbiased evidence is central to my determination of causation.

Mr. Taylor – After the Collision Injuries [ 44 ] Mr. Taylor said by the time the paramedics arrived he was pumped full of adrenaline and “felt like superman.” The ambulance call report (“ACR”) notes that he initially refused to be assessed, but later firefighters convinced him to let the paramedics check him out. The ACR notes Mr. Taylor said he had no loss of consciousness. There is a notation that he sustained a hematoma (bump) on his head, and contusion to “head/face/ears”. Mr. Taylor also declined transport to hospital. [ 45 ] While he remembers speaking to the emergency crew at the scene, Mr.

Taylor has no memory of declining an assessment, no memory of saying he did not lose consciousness, and no memory of saying he felt fine. He did recall asking if he needed stitches for the cut on the top right side of his head, which was beginning to swell. He was told he did not need stitches. [ 46 ] Mr. Taylor testified that he had a memory of wanting to walk home after the collision. This despite the fact that home was 15 kilometers away, it was winter, and his feet were wet from the stream. Mr. Taylor called Ms. Young to pick him up. She did not answer her phone, so he called his dad to take him home. Mr.

Taylor testified that he felt exhausted that night, and uncharacteristically went to bed after eating. [ 47 ] The next morning Mr. Taylor awoke feeling like he had been “hit by a truck”. He described feeling “very out of it, confused and spacey.” He was worried about his expensive camara equipment the police would not let him take home the day before, so Mr. Taylor went to the lot where his car was stored and gathered his gear. He then went to the emergency room, where he was diagnosed with a concussion, given concussion protocol information, and discharged home. [ 48 ] Mr.

Taylor spent most of the next week in bed. He was in a mental fog. His memory and vision were “off”. He felt dizzy and sore all over. There was mental confusion, which Mr. Taylor described as feeling like he was drunk. He had blurred vision, light- headedness, and he felt like he was spinning even when completely still. He experienced ongoing headaches, and he slurred and forgot words. [ 49 ] Mr. Taylor’s pre-existing left knee condition was aggravated from the force of the collision, and he sustained a new injury to his right knee. Treatment [ 50 ] Mr.

Taylor’s main and consistent complaints since the collision include dizziness, imbalance or unsteadiness, headaches, short term memory loss, word-finding difficulty, mood disorder, depression, double vision, sleep disturbance and low stamina. [ 51 ] Mr. Taylor did everything within his power to get better. An abbreviated list of his efforts follows: • He acquired a family doctor, Dr. Maltman; • Dr. Maltman referred him to Dr. Krete, a physiatrist, in October 2015, in relation to the post-concussion syndrome. Dr. Krete diagnosed concussion, although he was not convinced concussion was the sole contributor to Mr.

Taylor’s short-term memory issues. Dr. Krete reassured Mr. Taylor that he expected him to make a full and complete recovery; • Physiotherapy; • Occupational therapy commencing June 2015; • Psychotherapy to treat his mood symptoms; • Neurologic treatment at the Posture Clinic, a brain injury clinic, in Peterborough between 2016 and 2017. At the end of the treatment session, Dr. Horseman concluded Mr. Taylor had not achieved maximum health benefit, despite being compliant with the clinic’s intense and significant treatment protocol; • In 2017 he was assessed by Dr.

Rutka, Otolaryngologist, at the Multi-Disciplinary Neurology Clinic at the University of Toronto; • Attending at Toronto General Hospital Balance Clinic; • Attending at University Health Network’s Memory Clinic in Toronto on a number of occasions for post-concussive symptomology. In 2017 Mr. Taylor was still being reassured that despite being two years post-concussion, there was still room for improvement in his symptoms; • He began seeing Dr. Hamilton, a psychologist practicing in the area of neuropsychology in February, 2017, and was still seeing her at the time of the trial; • In 2018 Dr.

Snaiderman of the Toronto Rehabilitation Institute conducted a neuropsychiatric assessment, diagnosing neurocognitive disorder secondary to traumatic brain injury. Dr. Snaiderman felt Mr. Taylor met the criteria for adjustment disorder with anxiety; • In 2018, frustrated at what he perceived to be a lack of improvement, Mr. Taylor travelled to the Mayo Clinic in the United States. He consulted with Dr. Staab, a specialist in chronic dizziness and balance problems. It was Dr. Staab who made the 3PD diagnosis, which he found to be secondary to Mr. Taylor’s brain injury; • Vestibular rehabilitation; and

• Saw a specialist in sleep medicine, who diagnosed severe sleep apnea. Mr. Taylor now uses a CPAP machine nightly. [ 52 ] These efforts all from a man who had no family doctor prior to the collision. [ 53 ] Mr. Taylor has been prescribed a number of medications in an effort to combat his dizziness and mood issues, including Cymbalta, Wellbutrin, Zoloft (Sertraline), testosterone injections, Effexor, Mirtazapine, Venlafaxine, Bupropion, and Duloxetine. Side effects from certain of these medications caused erectile dysfunction. [ 54 ] In 2018 Mr. Taylor was approved for the CPP disability benefit.

Post Collision Employment and Activities [ 55 ] Given his self-employed status, Mr. Taylor had to return to work in order to pay the bills. He had a job lined up that started less than a week later. [ 56 ] Focus pulling is visually demanding – depth perception is a key skill, and Mr. Taylor struggled to keep up. What was once second nature had become a challenge. [ 57 ] The demands of the job worsened Mr. Taylor’s symptoms. Visually, the lights, movements and patterns aggravated his spinning sensation. The longer he was required to remain upright, the worse his symptoms got.

He tired easily, which impacted on his cognition. On the drive home to Peterborough he would have to pull over and rest, so he started staying at friends’ homes in the city more frequently than before the collision. [ 58 ] Mr. Taylor did not consider not working – his primary focus was to get back to his old, normal life. His work defined him. He took every job that came his way. As he explained to the court, once you start turning down work, DOPs will simply call someone else, and eventually your name fades from memory. [ 59 ] Mr. Taylor did not tell the DOPs who hired him about his injuries.

But he did tell his second camera assistants. He testified that without their help, he would have failed at his job. His difficulty on the job was corroborated by his co-workers, who witnessed his struggles first-hand. His struggles were also corroborated in the clinical notes and records of his treating practitioners, including his family doctor (in 2015, 2016 and 2017), his occupational therapists (“OTs”), and his neurologist. [ 60 ] Mr. Taylor made some major mistakes. The first was at a shoot at Elora Gorge.

This was a big assignment, and the footage of stunt workers jumping into the Gorge had to be captured in one take. And it was. But, in a moment of confusion, Mr. Taylor accidentally deleted the footage, a $40,000 mistake. He was fired from that job. [ 61 ] Another involved a shoot where Mr. Taylor had to stand on a ladder that was up 17’ in the air to operate the camera, which was affixed to a crane. He lost his balance and grabbed the crane to support himself, causing the crane to topple into the pool below, narrowly missing the talent. [ 62 ] A third incident saw Mr.

Taylor leaving $70,000 worth of equipment behind on a bus that was part of a particular shoot. [ 63 ] Mr. Taylor did not make these kinds of errors before the collision. These incidents were demoralizing to him, as they did not reflect the professional standards he held himself to. [ 64 ] The final straw was a shoot in April 2017 for the new Lincoln Continental. The camera was being operated from a hood mount that was affixed to the trunk, and the subject of the shoot was the driver inside the car. Mr. Taylor neglected to lock the camera on to the hood mount.

If he had not noticed this mistake before the car accelerated, the camera would have crashed through the windshield, seriously injuring the driver. [ 65 ] Mr. Taylor described this shoot as the job that “broke him.” While he had always trusted he would get better, more than two years later he had to admit he was not. He was overtaxing himself, stubbornly pushing to keep going. And as he drove home at the end of that day, perseverating about what might have happened, Mr. Taylor missed a stop sign and almost collided with another car. It was then that Mr.

Taylor realized he had to stop working, a decision that was endorsed by his occupational therapist and neurologist. [ 66 ] Mr. Taylor believes he is no longer employable. He certainly does not feel competent to meet the exacting standards of the film industry. He volunteered for a time at a local bike shop but even this undemanding job tired him out, and he would have to rest in his car on breaks. [ 67 ] On the advice of his doctors Mr. Taylor tries to do the things he used to enjoy. But he finds it challenging to even motivate himself to be active. The few times he tried cycling he overexerted himself.

Dirt biking made his symptoms worse - road vibrations increased his spinning sensation and affected his balance. [ 68 ] Mr. Taylor feels less smart, less attentive, and less “on the ball” than he was before the collision. He is unproductive, spending parts of the day lying around the house. He is now quick to anger. He no longer likes to socialize – it is hard for him to follow a conversation if there is other noise in the background. [ 69 ] Mr. Taylor does not contribute to the family dynamic as he once did.

In clear emotional distress while on the witness stand, he described that his once equal relationship with his wife has shifted. She is now his caretaker, tasked with keeping him safe. Lay Witnesses – Family and Friends Ms. Karen Taylor [ 70 ] Mr. Taylor’s wife, Karen Young, is an education assistant. She works from 7:45 to 3:15, and has summers off, which

dovetailed well with Mr. Taylor’s flexible schedule. [ 71 ] She described Mr. Taylor before the collision as intelligent and interested in current affairs. He was an inherently decent human being, kind and respectful, and their lifestyles were in sync. Mr. Taylor was full of energy, and was fun to be around. It was meaningful to Ms. Young that he leapt into their family life willingly, and he was wonderful to her kids. [ 72 ] Mr. Taylor had a good memory before the crash, and almost never went to the doctor. He slept well and did not have sleep apnea. After the collision she asked her family physician, Dr.

Maltman, to take him on as a patient. [ 73 ] Ms. Young recalled that the night of the collision, Mr. Taylor came home “all fired up”. He told her he was in a collision but provided no details beyond getting hit from behind. She had no idea he was hit by someone going at full speed, that he was pushed down an embankment, or that the car rolled. In fact, she did not fully understand the extent of the collision until she saw a picture of the car in the newspaper. And it was not until she actually saw the car when they went to retrieve it that she realized the roof was pushed in. [ 74 ] From her vantage point, Mr.

Taylor post-collision has less energy and less zest for life. He no longer engages with the kids, he is irritable and short-tempered, like he is on a “hair trigger.” He is mostly silent during mealtimes. He has gained over 20 pounds and is noticeably heavier. [ 75 ] In the aftermath of the collision he put on a brave face, saying he was fine when he clearly wasn’t. After two years their relationship became strained, as Mr. Taylor withdrew further away.

He also slept more than she had ever known him to. [ 76 ] Although he was compliant with all of his treatment, attending appointments and doing what he was told to do, he was getting frustrated with his lack of progress. Together they researched his most significant challenges – memory and brain fog and the spinning sensation. This online research led them to Dr. Staab at the Mayo Clinic. They decided to go even though the visit was not covered by OHIP, as they were desperate to find a cure, or at least an answer. [ 77 ] With medication she saw Mr.

Taylor’s balance improve, and the frequency of his headaches lessen somewhat. [ 78 ] They now have separate bedrooms given his erratic sleep schedule. A side effect of Sertraline, the medication that provides him the greatest relief, causes sexual dysfunction, which has created a break in the fabric of their intimacy. [ 79 ] Mr. Taylor’s obligations to his ailing father, Doug, are also creating a strain. Doug is in poor health, suffering from dementia. He does not want to move into a retirement home, so the burden of ensuring he can remain in his own home falls to Mr. Taylor.

While a housekeeper does the cleaning, and Ms. Young helps when she can, Mr. Taylor sees Doug almost daily, taking him to appointments, buying his groceries, providing some companionship. She can see Mr. Taylor’s frustration when he returns home after helping his father. [ 80 ] Ms. Young testified that the change in Mr. Taylor’s personality has affected their marriage. Given his poor memory, she has to employ strategies, such as making him lists, so he can simply stay on track. Much as Mr. Taylor described, she feels that she is more his caretaker than his partner in life. [ 81 ] Ms.

Young described herself as lonely in her marriage now. Ms. Maggie Young [ 82 ] Maggie Young has known Mr. Taylor since she was five. She has positive memories of summer vacations, swimming, and Mr. Taylor always encouraging her and her brother to take pictures. Before the collision Mr. Taylor was laid back and easy-going, rarely raising his voice. She recalls he and her mother having a very positive relationship. [ 83 ] The biggest change Maggie Young sees in Mr. Taylor post-collision is his cognition. He can’t seem to remember anything, despite all the work Ms.

Young does to help with this (keeping a calendar for each of them, writing everything down, reminding him). He is also distracted and can only focus on one thing at a time, which makes socializing difficult. [ 84 ] She sees the strain his injuries have had on their marriage and thinks that her mother feels abandoned. Mr. Graham Young [ 85 ] Graham Young recalled Mr. Taylor as being energetic and “super friendly” before the collision. They enjoyed dirt biking together. They would make a full day of it, heading out in the morning with lunch and a water cooler, and not returning until dinner. [ 86 ] He said Mr.

Taylor worked hard as his job and was very proud of his work. He loved sharing stories of his days on the set with the family. [ 87 ] When he got home from work, Mr. Taylor would interact with everyone; now he simply comes home and sleeps. If the kids did not make the effort to interact, they could go a full day without talking to him. [ 88 ] Graham Young can see his mother’s frustration, in that Mr. Taylor does not pay attention to her and is too tired and “spinny” to do anything fun with her. Ms. Sheri Fox [ 89 ] Ms. Fox, a high school teacher, is a close friend of Mr. Taylor and Ms. Young. She has known Ms.

Young for over 30 years, and Mr. Taylor for over 20 years. [ 90 ] Ms. Fox described Mr. Taylor before the collision as someone with good social skills who was fun, interesting, and able to talk about global events. He was affectionate and devoted to Ms. Young. He was engaged in the kids’ lives, connecting with Graham

Young over sports, and taking Maggie Young to her activities and getting to know her friends. In her words, Mr. Taylor was a “good guy.” [ 91 ] Mr. Taylor is no longer the confident man he once was. He is easily exhausted, which frustrates him. In a social setting the littlest thing can set him off. She recounted one occasion when they were all at a restaurant, and Mr. Taylor suddenly left without saying why. Ms. Fox later found out that he felt slighted when they were asked to change tables, behaviour she had never seen Mr. Taylor display before. [ 92 ] Ms. Fox described how one never knows what version of Mr.

Taylor they will get: the terse Mr. Taylor; the good Mr. Taylor who wants to tell a story (although his stories now ramble); the funny Mr. Taylor (whose sense of humour now runs to the inappropriate); or the over-the-top Mr. Taylor (whom Ms. Young may need to reign in). [ 93 ] Ms. Fox sees the toll Mr. Taylor’s injuries from the collision have had on Ms. Young. Her friend is now clearly unhappy in many ways. Mr. Roy Smith [ 94 ] Mr. Smith met Mr. Taylor in Ohio in 2010 or 2012. They became friends and would go to one another’s parties and family gatherings.

They shared a love of motorcycles and would go on long rides together – weeklong trips to Vermont and back, for example. [ 95 ] Before the collision Mr. Taylor was fit and well-dressed. He was fun in social settings, had a good sense of humour, and got along with everyone. Since the collision Mr. Smith sees a complete change in him, both in personality and appearance. For example, he will leave group settings abruptly. He can be blunt and miserable in social settings. His is now quick to anger, but Mr. Smith knows the signs, and will do what he can to redirect Mr. Taylor. In terms of appearance, Mr.

Taylor is now unkempt, untidy, and overweight. Lay Witnesses – Work Colleagues Mr. Adam Quinn [ 96 ] Mr. Quinn has been in the film business for years, starting off as a production assistant, and working his way up to focus puller. Mr. Quinn described focus pulling as a labour-intensive job, often necessitating an extra pair of hands. Mr. Taylor would at times hire Mr. Quinn to be the second assistant, and vice versa. The two would run into each other on the sets of multi-camera events such as major motion picture films, or large sporting events. He estimated that he and Mr.

Taylor had worked together over 100 times before the collision. [ 97 ] Their jobs were exciting, working with movie stars, athletes, shooting in cool and exotic locations. Camera work is fast-paced, and a focus puller must be dialed-in to succeed in the field. It was also mentally demanding and required hyper-concentration and laser focus. Focus pullers had to get it right 100% of the time. [ 98 ] Mr. Quinn spoke highly of Mr. Taylor. He learned part of his skill from him. He referred to him as a “pit bull,” with the passion necessary to survive on a set for the long days. Mr.

Taylor would never say no to work and was always the quintessential professional on the set. [ 99 ] Mr. Quinn and Mr. Taylor had a shared love riding, both motorcycles and bicycles, and would often ride together. They also went to industry social events together. [ 100 ] Mr. Quinn worked with Mr. Taylor ten or twelve times after the collision as well. He noticed that Mr. Taylor was lacking in focus and not always present, often just staring into the distance. [ 101 ] He also saw Mr. Taylor do things that were contrary to industry protocol.

For example, he was not properly handling the “digital media cards” containing the footage that was shot. [ 102 ] Industry standard is to take the card out of the camera and immediately hand it over to your second assistant. This ensures the focus puller doesn’t accidentally put the card back in the camera and film over it. The card should also be wrapped up in tape and properly identified when removed. Mr. Quinn observed Mr. Taylor not following these industry protocols. He told Mr. Dametto, Mr. Taylor’s second camera assistant, to make sure that he, and not Mr. Taylor, handled the cards upon removal.

He did so because he considered Mr. Taylor a friend and wanted to protect him. Mr. Quinn described the film business as a small community, where reputation is everything. News of big mistakes travels like wildfire. [ 103 ] Despite considering Mr. Taylor a friend, Mr. Quinn eventually stopped referring him to out-of-town DOPs. The quality of his work had decreased, and any mistakes he made on set could reflect back on and harm Mr. Quinn’s reputation. Mr. Alex Dametto [ 104 ] Mr. Dametto met Mr. Taylor in mid-2012, when Mr. Taylor was one of the first focus pullers to hire him as a second camera assistant. Mr.

Taylor took him under his wing, and Mr. Dametto started worked with almost exclusively with Mr. Taylor in 2013, averaging three to five days a week. This arrangement continued into 2014. [ 105 ] Mr. Dametto learned a lot about his craft from Mr. Taylor. Focus pullers not only run the camera department, but they have to be in tune with what is happening on the set 100% of the time. There is a slim margin for error, and if hand-eye coordination is off, and the subject is out of focus, another take is necessary. This is obvious to everyone on set.

Takes are always evolving, and if you are not paying attention, the take can be ruined. Mr. Dametto called Mr. Taylor a “wizard” at his craft. [ 106 ] Focus pulling requires a good memory in order to remember details from take to take.

[107] Before the collision Mr. Taylor had a strong work ethic. He was calm, collected and concentrated. He had a cool demeanor –quiet, focussed and tuned in – and did not show any lack of confidence. Time is of the essence on a film set, and Mr. Taylor was able todo what he needed to get the job done quickly. He always wanted to work, and the type of shoot did not matter to him. He was energeticand could handle being thrown right into the shoot at the start of the day. He was always able to keep up, and that included lugging thecamera boxes weighing between 50lbs to 100 lbs.

He got along with people very well before the collision. [108] Mr. Dametto worked almost daily with Mr. Taylor in the four to six months after the collision as well. In terms of the changeshe noticed, he said there was general confusion at any given time. Mr. Taylor would get a look on his face like he was completely lost inthe moment. And he would forget instructions. [109] Lens changes are difficult – the focus puller needs to remember what lens the director called for. Mr. Taylor was nowforgetting what lens was requested, and Mr. Dametto took it upon himself to cover him when he could. In fact, Mr.

Dametto covered forMr. Taylor on numerous tasks. For example, Mr. Taylor took the media card out of the camera and put it back in deleting all the footagethey had just shot of a stunt. From that point onward, Mr. Dametto took control of the media cards. Mr. Taylor never made a mistakelike that prior to the collision. [110] Mr. Taylor had difficulty with lights after the collision. He would more often than not put a big black towel or blackout materialover his head to block out the lights from the set when looking into the monitor. [111] Mr. Dametto recalled Mr.

Taylor being called out numerous times on set for not being able to follow the action in a shot. Mr.Dametto recounted one instance where, on a Budweiser commercial, in the midst of a big party shot, the camera was supposed to push-into focus on the can of beer. Mr. Taylor kept getting it wrong, and the director kept yelling “Paul Taylor, soft, Paul Taylor, soft!” It tookabout twenty takes to get the shot right. Being unable to lock on a subject and focus was not something Mr. Taylor had trouble withbefore the collision. [112] Physically, Mr.

Taylor was no longer able to lift and carry the camera equipment, and Mr. Dametto looked after most of this.Mr. Taylor would complain that his knees were bothering him. He had obvious difficulty changing positions or getting up from sitting.These were not afflictions Mr. Taylor suffered from before the collision. [113] Mr. Dametto noticed a decrease in Mr. Taylor’s stamina as well. There was generally an hour lunch break on set. Before he wasinjured, Mr. Taylor would remain on set during lunch, socializing with the crew. After the collision, Mr. Taylor would sleep in his carover the lunch break. Mr.

Taylor also stayed in the city more often after the collision, at hotels as well as Mr. Dametto’s home. He wasoften “wiped out” at the end of a day, and too tired to attempt the drive home to Peterborough. Mr. James Gardner [114] Mr. Gardner, a DOP, has worked in the film industry for over fifty years. His evidence in respect of the pressure on film shootscoincided with that of Mr. Taylor, Mr. Quinn, and Mr. Dametto. Mr. Gardner described the film industry as a harsh business, with “noroom for passengers.” There was also no room for accommodation. [115] DOPs hire focus pullers directly. Mr.

Gardner described the skill set he required in a focus puller – very good concentration,with a feel for being able to get their hands to do what their brain is telling them to do, all with a goal to making the picture perfect.Attention to detail is extremely important, as is confidence and good judgment. [116] Mr. Gardner estimated he hired Mr. Taylor upwards of 50 times, starting in 2009. He described Mr. Taylor as conscientious,hard working, and dependable – one of the top three focus pullers on Mr. Gardner’s go-to list. [117] Mr. Gardner also hired Mr. Taylor after the collision.

He had heard from another focus puller that Mr. Taylor had been injuredand wanted to help him get back on his feet. However, on the first day Mr. Gardner hired him, he immediately saw that Mr. Taylor wasnot himself. His brain was not as quick or as sharp as it used to be. He took too long to change lenses, had trouble finding his focusmarks, and made uncharacteristic errors. [118] Not sure whether his first day back was a good or bad day, Mr. Gardner gave him the benefit of the doubt and hired him again.But Mr. Taylor’s skills never improved, and after a few more assignments Mr.

Gardner eventually stopped calling him. Credibility of Lay Witnesses – Family, Friends, and Co-Workers [119] It is my duty to assess both the credibility and the reliability of each witness. Credibility and reliability are two different, butrelated considerations. Credibility focuses on a witness’s veracity; reliability is concerned with the accuracy of the witness’s testimony,and their ability to accurately observe, recall, and recount events in issue: R. v. H.C., 2009 ONCA 56, [2009] O.J.

No. 214, at para. 41. [120] The defendant labels the lay witnesses as “oath-helpers.” In other words, while they were expressly called upon to comment ontheir observations of Mr. Taylor, their implicit purpose was to corroborate Mr. Taylor’s testimony. They were unilaterally selected byMr. Taylor to provide information that was helpful to him. As such, they are biased in favour of Mr.

Taylor, and their evidence is of noutility to the court in determining the issues I must decide in this trial. [121] By all accounts oath-helpers originated in the Norman period, when one who was required to prove his assertions in court sworea solemn oath to the truth of his declarations. Those he brought to court who testified an oath as to his truthfulness were called oath-helpers. For example, if the man was charged with murder, the oath-helpers swore that he was not guilty of the crime charged. [122] The Supreme Court of Canada in R. v.

Marquard (SCC), [1993] 4 S.C.R. 223 has stated the more modernprinciple that, where the sole purpose of evidence is to bolster the complainant's credibility, the evidence will be excluded on the basisthat it contravenes the rule against oath-helping. On the other hand, such evidence may be admitted where it relates to matters in issueother than credibility.

[123] In no manner does the evidence of these lay witnesses amount to oath-helping. I do not find their nefarious purpose to becorroboration of Mr. Taylor’s evidence. They were lay witnesses in their truest form, chosen to provide testimony based on their directobservations and personal dealings with Mr. Taylor on three different and important planes: familial, workplace, and social. In otherwords, they provided their personal knowledge of Mr. Taylor, as he was before the collision, and how he presented afterwards. [124] I note that much consternation was raised in respect of Mr. Dametto who, according to Mr.

Baldwin, wholly departed from hiswill-say statement. By the defendant’s count, Mr. Dametto described for the court twelve distinct instances of Mr. Taylor’s challenges atwork that were not in his statement. [125] Pursuant to r. 31.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a party must disclose not only the names andaddresses of persons having knowledge of the matters in issue in the action, but also a

summary of the substance of their evidence:Dionisopoulos v. Provias, (ON SC), [1990] O.J. No. 30, at para. 14. [126] As Lauwers J. held in Davies v. Clarington (Municipality), 2010 ONSC 6103, [2010] O.J. No. 4900, at para. 26, “any suchsummary must contain a fair bit of detail addressing the normal journalistic questions related to the person and the relevant knowledgethat he or she possesses, being: “who, what, where, when, why and how”. I have reviewed Mr. Dametto’s will-say statement. At sixpages long, it more than adequately addressed the journalistic questions.

The fact that further detail was provided at trial has no bearingon Mr. Dametto’s reliability. [127] The defendant also took issue with the evidence of Mr. Quinn, who told the court that a novice focus puller might earn $70,000per year in 2018, and an established focus puller such as Mr. Taylor could earn upwards of $150,000 per year. This evidence differedfrom Mr. Taylor’s, whose revenue before the collision averaged in the mid-$60,000 range. To this I have two comments. First, Mr.Taylor was not working in 2018, and he gave no evidence as to what his earning potential might be in that year.

Second, freelancecontractors negotiate their own pay rate. That Mr. Quinn’s vision of what a focus puller could earn differed from Mr. Taylor’s is of noconsequence. It certainly does not raise to the level of “blatant exaggeration” as suggested by the defendant. [128] Finally, the defendant took issue with Maggie Young’s comment to the effect that she did not know it was “commonknowledge” that Mr. Taylor had taken on the role of caregiver to his father, so she did not mention it. According to the defendant, thiswas a deliberate attempt to suppress evidence about Mr. Taylor’s level of functionality.

I do not make this inference as urged by thedefendant. Maggie has not lived at home for a number of years, and there is no evidence to suggest she thought providing thisinformation would be detrimental to Mr. Taylor’s case. Conclusion on Lay Witness’ Credibility [129] I find that all of these witnesses were credible, and all of their evidence was reliable. They were each of them honest andbalanced, and did their best to be truthful. They did not embellish their evidence, nor did they exaggerate. [130] The fact that some of Mr.

Taylor’s work colleagues could not recall the date of his collision, or how long he continued to workafter the collision, does not detract from their credibility or reliability. The absence of this level of information makes their evidenceseem uncontrived. Had they been able to recite dates and times with ease, their evidence would have appeared coached and rehearsed. Lay Witnesses – Collision Scene Police Constable Gary Blackman [131] PC Blackman is a police collision reconstruction officer.

By happenstance he was in the area when he got the call to attend thecollision, and arrived within minutes to what he described as a “chaotic scene.” [132] Based on his observations he authored a Collision Reconstruction Report, in which he concluded that the collision was a directresult of the actions of Ms. Zents. [133] PC Blackman has an independent recollection of the collision scene, and of examining the cars involved. He remembered Ms.Zents’ car as being full of blood. He recalled that both vehicles came to a stop at the bottom of a gulley, in a ditch.

As PC Blackmandescribed it, the cars were “partially submerged in running flood water.” Once Ms. Zents’ car was brought up from the water, a cellphone was found on the floor on the driver’s side. [134] PC Blackman described Mr. Taylor’s car as having considerable exterior damage. It was evident that the car was rear-ended. Itwas also evident that the car had become airborne and landed hard on its roof.

He estimated that it had rolled at least once, if not twice. [135] During cross-examination PC Blackman was taken to his Collision Reconstruction Report, and in particular the IncidentSynopsis, where he concluded that Ms. Zents had received a serious head injury, and the other two drivers, Mr. Taylor and Ms. Smit(driver of the red truck Mr. Taylor was stopped behind) were not injured. [136] He agreed that Mr. Taylor’s seatbelt worked as intended, restraining Mr. Taylor and locking him in to prevent forwardmovement as his car careened down the incline.

In PC Blackman’s view, however, in a rear-end collision the car is pushed forward butthe occupants remain stationary, which is the equivalent of the occupants moving backward. And occupants can hit their head even whenwearing their seat belts. [137] PC Blackman was also taken to the Basis for Analysis

section of his report, in which he identified the information he reliedupon to come to his conclusions, including the witness statements of Mr. Taylor and Randy Ellis. These statements did not mention anyinjury to Mr. Taylor. [138] This line of questioning was intended to show that Mr. Taylor did not report any injury to those who assessed him at the scene,further underscoring the defence theory that Mr. Taylor is manufacturing injury for financial gain.

[ 139 ] However, PC Blackman’s duty was to determine how the collision happened, not injury. It was clear that Ms. Zents was seriously injured: blood was splattered throughout the cabin of her car – the windshield, the driver’s door and window, the driver’s airbag, entre console, left side of the passenger seat and the rear seatback of the driver’s seat. She was transported to Peterborough Regional Health Centre, and later airlifted to St. Michael’s Hospital in Toronto. It was obvious that Mr. Taylor was not physically injured in anything approaching the level of Ms.

Zents. [ 140 ] In redirect, PC Blackman said that when he drafted his report, he had no firsthand knowledge of Mr. Taylor. He was unaware he went to the Hospital the following day. Nor did he did review Mr. Taylor’s medical records when he drafted his report, although he knew that the paramedics documented a haematoma. Mr. Randy Ellis [ 141 ] Mr. Ellis was as independent a witness as one can find, a bystander who watched the collision unfold before his eyes. He remembered each detail clearly. He testified he was driving north on Bensfort Road, slowing to turn right onto Base Line Road.

He saw the red pick up truck, stopped and waiting to turn left onto Base Line Road, and he saw Mr. Taylor’s Honda Element stopped behind the red truck. Mr. Ellis was just about to make his right turn when he noticed a car driving toward the Element at full speed. He said the car did not slow down before impact, and the driver took no evasive action, with the exception of perhaps swerving to the left just before impact. [ 142 ] Mr. Ellis saw the Element roll into the ditch. He described the ditch as about eight feet high, with quite a gully full of water at the bottom. [ 143 ] Mr.

Ellis threw his truck into park and ran down to the vehicles, which had come to rest at the bottom of the ditch. He went to Ms. Zents’ car first. He pulled the door open and tried talking to her, but she was unresponsive. He realized there was nothing he could do to assist her. [ 144 ] Next he ran over to the Element. He could see significant rear end damage, and that the roof had caved in. Mr. Ellis estimates that maybe three minutes had passed between impact and getting to Mr. Taylor’s vehicle. [ 145 ] He pulled open the door to the Element and asked Mr. Taylor if he was alright. Mr.

Taylor did not acknowledge him at first. Mr. Ellis asked again if he was okay. Mr. Ellis said it felt like Mr. Taylor did not even know why he (Mr. Ellis) was there at this car door. Indeed, Mr. Taylor appeared angry, because when Mr. Ellis pulled the car door open, some camera equipment fell out into the swamp. [ 146 ] Mr. Ellis described Mr. Taylor as disoriented. He was also physically shaking in his seat. Mr. Ellis asked Mr. Taylor if he knew he was in an accident. It took a while for Mr.

Taylor to answer, but he eventually said he knew he was in an accident, and that he thought he was alright. [ 147 ] Their entire interaction lasted between 30 and 45 seconds. [ 148 ] In cross-examination, Mr. Baldwin took Mr. Ellis to his police statement, placing particular emphasis on Mr. Ellis’ comment that Mr. Taylor “he was shaking, but fine.” [ 149 ] Much like with PC Blackman, relying on this comment to support a lack of causation between the collision and Mr. Taylor’s current complaints misses the mark. Compared with Ms. Zents, Mr. Ellis might well have described Mr.

Taylor as “fine.” He could respond to Mr. Ellis, albeit slowly. The interior cabin of his vehicle was not splattered with blood. Indeed, Mr. Taylor even described himself as “fine.” [ 150 ] Mr. Ellis’ evidence that Mr. Taylor was dazed and disoriented is not overshadowed by his statement to police that Mr. Taylor appeared “fine.” While not trained to identify a head injury, as the first person to reach Mr. Taylor, Mr. Ellis’ description of his presentation in the immediate aftermath of the collision – disoriented, slow to respond, shaking – is the best evidence before the court.

By the time the paramedics assessed Mr. Taylor twenty-seven minutes after the collision, Mr. Taylor did not appear to be dazed or disoriented. Conclusion on Lay Witness’ Credibility – At the Scene [ 151 ] Much like the evidence of the first group of lay witnesses, neither the credibility, nor the reliability, of the lay witnesses at the scene was impaired by cross-examination. Medical Witnesses – Treating Practitioners Dr. Aidan Cunniffe [ 152 ] Dr. Cunniffe testified, although he acknowledged that he had no independent memory of seeing Mr. Taylor in the emergency room. [ 153 ] Dr.

Cunniffe took the court through the physician’s page of the hospital chart – the handwritten record of his assessment of Mr. Taylor the day following the collision. His notes indicate as follows: • Yesterday at 4:15, driver, restrained, car stopped, rear ended, not struck by other cars, side airbags deployed, he felt well after event; • No loss of consciousness; • No neurologic symptoms (weakness or loss of function in extremities) or paresthesia (pins and needles in extremities);

• Very mild headache; • Nausea; • No vomiting; • He came to ER as thinks he is concussed; • He feels “spacey”; • Gait normal; • Trace of photophobia; and • Had sustained concussions previously. [ 154 ] Dr. Cunniffe’s physical examination of Mr. Taylor revealed no areas of concern. On the basis of the history provided, Dr. Cunniffe diagnosed Mr. Taylor with a concussion. [ 155 ] In cross-examination Dr. Cunniffe was asked about the symptoms one would present with they had sustained a concussion. Dr. Cunniffe explained that symptoms could be present at the moment of injury, but not always.

For example, headache is a symptom. But he clarified that he would not make a distinction between a headache immediately after an injury, and a headache that came on later. [ 156 ] Dr. Cunniffe agreed that he did not find objective signs of a concussion when he assessed Mr. Taylor, and his diagnosis was based on the information provided by Mr. Taylor. [ 157 ] The intent of this line of questioning, of course, was to suggest that Mr. Taylor influenced Dr. Cunniffe to diagnose a concussion. I was not so persuaded. Dr. Cunniffe is a trained emergency room physician, experienced in assessing the injured after trauma.

Based on Mr. Taylor’s descriptors – spacey, headaches, photophobia, inability to focus – Dr. Cunniffe was well-equipped to make his diagnosis. Dr. Craig Maltman [ 158 ] As noted previously, Mr. Taylor began seeing Dr. Maltman about three weeks after the collision; he remains his family doctor to date. He assessed Mr. Taylor a number of times over the years, and referred him to specialists, all with a view to helping Mr. Taylor recover from his concussion. [ 159 ] Although a family physician, Dr. Maltman has experience diagnosing concussions.

As a family practitioner in Tennessee, he was the team physician for Tennessee Tech University’s football team, conducting annual physicals for the players, and attending home games. During games he would have occasion to diagnose players with suspected or confirmed head injuries. [ 160 ] Back in Canada, Dr. Maltman opened a family practice in Peterborough. He was the team physician for the Peterborough Petes hockey team, again conducting annual physicals for the players, and attending home games to be on hand for injuries, including suspected head injuries. [ 161 ] Dr.

Maltman told the court that in his view, a concussion is a traumatic brain injury, with symptoms including headache, dizziness, nausea, memory loss, fogginess. Concussion is the syndrome that develops as a result of a traumatic brain injury. [ 162 ] At Mr. Taylor’s first visit on April 7, 2015, he reported that he was still not 100% focussed, he felt foggy, and he had back pain and knee pain. He felt things were not as “sharp”, he had difficulty processing information, and suffered from dizziness. He denied headaches. [ 163 ] At this visit Dr. Maltman diagnosed Mr.

Taylor with concussion, chronic knee pain, and thoracic spine pain, all collision related. [ 164 ] When Mr. Taylor’s symptoms persisted, Dr. Maltman diagnosed him with post-concussive syndrome, meaning his concussion symptoms were persistent and prolonged. [ 165 ] Dr. Maltman diagnosed Mr. Taylor with patellofemoral syndrome (knee pain). He also queried depression, given Mr. Taylor’s depressed mood, hopelessness, sleep issues, and anxiety. [ 166 ] Dr. Maltman testified that Mr. Taylor repeatedly complained of mental fogginess, difficulty with memory, and chronic dizziness. This was in line with Dr.

Staab’s diagnosis of 3PD, a diagnosis Dr. Maltman was not familiar with. [ 167 ] Dr. Maltman saw Mr. Taylor regularly between 2015 and 2018, and less frequently thereafter. Mr. Taylor complained primarily about his cognitive issues and, to a lesser degree, his knee issues. As time went on, the focus became less about knee pain, and more about his persistent cognitive issues (memory loss, word-finding difficulty, inability to focus, vision trouble, balance issues). Indeed, the last recorded knee complaint in Dr. Maltman’s clinical records was April 7, 2016. [ 168 ] Mr. Taylor worried about his mental health. Dr.

Maltman testified that most patients who sustain a traumatic brain injury are at high risk for mental health issues, as the changes they experience in themselves, and their lives, beget depression. [ 169 ] Dr. Maltman explained that treatment for post-concussion syndrome varies depending on the person. In Mr. Taylor’s case, there were numerous consultations and medication trials at the outset, so he saw him fairly intensely, both to adjust or change medication, and to monitor his progression.

[ 170 ] Dr. Maltman referred Mr. Taylor to Dr. Krete in 2015, who confirmed the diagnosis of concussion. [ 171 ] Around this time Mr. Taylor began to see Dr. Telka, a psychologist, to assist with his mental health issues, again on Dr. Maltman’s recommendation. [ 172 ] In late 2016 Dr. Maltman started referring Mr. Taylor to specialists in Toronto. He underwent a cognitive assessment at the Memory Clinic at Toronto Western Hospital, where Dr. Tartaglia diagnosed him with post-concussion syndrome. [ 173 ] Dr. Tartaglia referred Mr. Taylor to Dr. Snaiderman, neurologist, who diagnosed Mr.

Taylor with mild neurocognitive disorder, secondary to traumatic brain injury. According to Dr. Snaiderman’s consult report, Mr. Taylor presented with executive dysfunction, and met the criteria for adjustment disorder with anxiety. Dr. Maltman described an adjustment disorder as persistent symptoms after a traumatic or significant incident. [ 174 ] But as often happens, eventually Mr. Taylor stabilized. He stopped seeing Dr. Maltman as often because there was nothing more Dr. Maltman could offer. Mr. Taylor’s condition had plateaued, becoming “what it was going to be.” [ 175 ] Dr.

Maltman testified that, given the length of time that has elapsed since the collision, Mr. Taylor will likely continue to have symptoms. [ 176 ] In cross-examination, Dr. Maltman was asked whether his allegiance was to his patients. Dr. Maltman answered in the affirmative. Dr. Maltman also agreed that medical experts review all the information before them and look for consistencies or inconsistencies in order to test the veracity of complaints being made by a patient. [ 177 ] When asked whether he accepted the veracity of symptoms based on a patient’s reporting of them, Dr. Maltman agreed he would.

He also agreed that these symptoms would be managed based on the patient’s self-reporting. However, if the symptoms were not consistent with the patient’s presentation, then they are questioned. Dr. Maltman also confirmed that assessing whether a patient is malingering is part of a physician’s assessment. [ 178 ] Dr. Maltman was taken to the MRI performed on Mr. Taylor’s brain on May 10, 2016, which concluded that no acute intercranial processes were seen, although sinus disease was noted. When asked whether this confirmed his (Dr. Maltman’

s) diagnosis of concussion or brain injury, Mr. Maltman said that the objective of an MRI is to look at the structure of the brain, not necessarily the function of the brain. An MRI does not question a diagnosis of concussion or brain injury, but it can rule out causes such as intercranial bleeds or stroke as the origin of the symptoms being complained of. Dr. Jeffrey Staab [ 179 ] Dr. Staab is a professor and chair of the Department of Psychiatry and Psychology at the Mayo Clinic in Rochester, Minnesota. Dr. Staab’s resume is impressive and reads like a small novel.

He has authored scientific articles, serves on editorial boards, and holds various leadership positions. Dr. Staab has a special interest in persistent postural-perceptual dizziness, or 3PD, which is what led Mr. Taylor to travel to the Mayo Clinic. Dr. Staab said this was not unusual – many international patients find him over the internet. [ 180 ] Mr. Taylor’s visit followed the normal course. He first met with a Dr. Mohammed, who conducted a clinical interview. Mr. Taylor then met with other specialists who performed a number of medical evaluations. Once these investigations were complete, Dr.

Staab reviewed the results with Mr. Taylor and provided his diagnosis. In Mr. Taylor’s case, there was no evidence of brain damage or nervous system structural damage. But there was a finding of post-concussion syndrome, which led to the diagnosis of 3PD. [ 181 ] During cross-examination Dr. Staab was taken to Dr. Mohammed’s intake notes, specially the note where Mr. Taylor reported fluid leaking from his ear for a few days following the collision. This was the first time this symptom was introduced at the trial.

It would not be the last. [ 182 ] When asked whether fluid leading from an ear was an important piece of the 3PD diagnosis, Dr. Staab replied that it could be, but it was unlikely to cause ongoing dizziness. Mr. Baldwin suggested that fluid coming out of one’s ear would surely cause that person to go to a doctor. Dr. Staab disagreed – in his experience, people tolerate all manner of symptoms they do not share doctors. [ 183 ] Mr. Baldwin then took Dr. Staab to the Diagnostic and Statistical Manual of Mental Disorder [2] (“DSM”), specifically the

section that states malingering should be strongly suspected if any combination of the following is noted: • The medical/legal context of presentation (whether a lawyer makes the referral to the clinician); • Whether there is a marked discrepancy between the person’s described injury and the objective findings; and • Lack of compliance with prescribed treatment regimes. [ 184 ] Mr. Lehman objected when Mr. Baldwin then began questioning Dr. Staab on malingering, submitting that to ask his opinion on malingering would be to take Dr. Staab beyond his capacity as a participant expert. Mr. Taylor had called Dr.

Staab for the limited purpose of introducing Mr. Taylor’s diagnosis of 3PD related to post-concussive syndrome. I overruled the objection, holding that Dr. Staab’s position as a participant expert did not mean that the scope of the cross-examination should be impermissibly circumscribed. However, Mr. Baldwin was not permitted to ask Dr. Staab’s opinion on whether Mr. Taylor was malingering. [ 185 ] Dr. Staab confirmed that if the three factors were present, he would question the confidence of his diagnosis. [ 186 ] The thrust of this cross-examination appeared to suggest that Mr.

Taylor researched symptoms of 3PD on the internet, found that fluid leaking from an ear was a symptom, and adopted it as his own to ensure a favourable diagnosis. Mr. Colin Newman

[ 187 ] Mr. Newman was Mr. Taylor’s occupational therapist (“OT”) from 2016 until 2020 when funding for treatment ended. The role of an OT is to devise strategies aimed at restoring the client to their previous function in terms of their activities of daily living, including self care, housekeeping, work, etc. – essentially, any activity that is important to them. [ 188 ] OTs focus on symptoms and levels of function, they do not make diagnoses. Mr. Newman was informed of Mr. Taylor’s injuries and challenges by Mr. Taylor, as well as by his review of the medical records. [ 189 ] Mr.

Newman had an independent recollection of treating Mr. Taylor. He recalled how he felt he was no longer contributing to the family as he did before the collision. He also recalled how Mr. Taylor worried that Ms. Young was taking on more of a caregiver role than that of a wife. He also recalled that Mr. Taylor was focussed on recovery, willing to try anything to get better. [ 190 ] At his first assessment, Mr. Newman noted that Mr. Taylor was “most limited in work by the changes he is experiencing with cognition.” [ 191 ] At his second assessment, Mr. Newman summarized Mr. Taylor’s struggles thusly: Mr.

Taylor reported that he is trying hard to reach pre-accident work function. Unfortunately, he reports having difficulty keeping up. He stated that long and sporadic hours increase his post-concussion symptoms to the point that he feels “inebriated.” He often reports feelings of dizziness, nausea, headaches, clouded focus and fatigue. These symptoms make it difficult for him to complete pre-accident work demands. [ 192 ] To get a better idea of his work environment, Mr. Newman joined Mr. Taylor on the set of a Subaru commercial shoot. This was Mr.

Newman’s first time ever on a shoot of any kind, and that day stood out to him. Upon arrival he found the scene to be disorganized, with the director continually changing his mind, requiring Mr. Taylor to adapt and make changes on the fly. He thought Mr. Taylor handled this well at first, but after a change in location, he noticed Mr. Taylor’s symptoms increasing. The terrain was rough and bumpy, and Mr. Taylor started to feel dizzy while he was shooting from a truck. By lunchtime, Mr. Taylor was fatigued. [ 193 ] Mr. Newman spoke with Mr. Taylor’s co-workers, who said that post-collision Mr.

Taylor tired more easily, had to take frequent breaks, had reduced stamina, and his crew now helped to carry his equipment. Mr. Taylor was noticeably different after the collision. [ 194 ] Mr. Newman felt that Mr. Taylor’s insistence on continuing to work was detrimental to both his physical and mental health and was relieved when Mr. Taylor decided to stop working. [ 195 ] Mr. Newman was aggressively challenged in cross-examination on certain of the personal observations he recounted during examination-in-chief, as these were from six years ago, and not recorded in his notes.

It was put to him that, pursuant to the professional obligations set out by his governing college, any observations he made were to be included in his records. His failure to do so was in blatant disregard of his duties. Mr. Newman disagreed. [ 196 ] In redirect Mr. Newman confirmed that he was not required to include every single observation he made. It was more important to document treatment goals, which Mr. Newman did do. Credibility of Treatment Providers [ 197 ] The testimony of the treatment providers remained largely unchallenged on cross-examination.

Their evidence was of assistance in painting a picture of Mr Taylor’s life and work challenges following the collision. Medical Experts [ 198 ] Five medical professionals were called to give expert opinions. With the exception of Dr. Hamilton, their qualifications were recognized on consent. The evidence of the two remaining expert witnesses, Ms. Lipkus and Mr. Principe, will be addressed in the damages

section of this decision. Dr. Joanna Hamilton [ 199 ] Dr. Hamilton is a registered psychologist, with a practice in clinical neuropsychology. She has worked in the field of cognition for over 30 years. [ 200 ] Dr. Hamilton began treating Mr. Taylor in February of 2017, and remained his psychologist at the time of the trial. Because funding had run out, Mr. Taylor was personally paying for his treatment sessions. [ 201 ] In late 2018 Dr. Hamilton was retained by Mr. Taylor’s law firm to conduct a medical legal evaluation of Mr. Taylor. Dr. Hamilton concluded that Mr.

Taylor sustained a head injury in the 2015 collision. [ 202 ] Mr. Taylor sought to tender Dr. Hamilton as both a treating practitioner and a medical legal expert. [ 203 ] Mr. Baldwin objected. While he did not object to Dr. Hamilton’s qualifications, he did object to Dr. Hamilton testifying while wearing both hats. In his submission, it was not possible for Dr. Hamilton to assess Mr. Taylor with an open mind in 2018, because by that time she had been paid to treat him over 25 times, and her treatments were premised on the assumption that the collision was the cause of his injuries. A voir dire ensued. [ 204 ] Mr.

Baldwin fleshed out his objection more clearly, and submitted she should not be qualified to give expert testimony for the following reasons:

• Dr. Hamilton’s obligation to Mr. Taylor as her patient was in conflict with her duty to the Court to be impartial; • Dr. Hamilton had pre-judged her opinion; and • Dr. Hamilton had a financial interest in the outcome. [ 205 ] During an aggressive cross-examination on her qualifications, it was put to Dr. Hamilton that she was in a blatant conflict of her competing duties and financial interests. She disagreed. [ 206 ] Dr. Hamilton was asked whether, if she had concluded Mr. Taylor was not injured as a result of the collision, she would return the money she had earned from treating him.

She was also questioned on whether she had a pecuniary interest in finding Mr. Taylor was injured as a result of the collision. I found this line of questioning distasteful, as it appeared designed to turn the jury against Dr. Hamilton. [ 207 ] Despite the tenor of the questions, Dr. Hamilton carefully considered each one, pausing to consider before answering, and making concessions where appropriate. She appeared neutral and objective. In particular, she handled the financial questions with dignity. Her response, that she would have to seriously consider what she would do if she indeed found that Mr.

Taylor was not injured in the collision, was credible and believable. [ 208 ] Three times Dr. Hamilton was asked whether she would like to reconsider her ability to provide an impartial opinion as a medical legal expert. Three times the courtroom fell silent. Three times, after pausing to consider the question, Dr. Hamilton remained steadfast in her opinion that she could remain objective and fair. [ 209 ] The reality is there was nothing untoward about Dr. Hamilton appearing in a dual capacity. As Morissette J. held in Doxtater v. Farrish , 2014 ONSC 4224 , [2014] O.J.

No. 3411 at para. 54 : It must be said that, treating physicians can indeed serve as a very useful source of expert evidence at trial, providing that the basics of admissible expert evidence are met. Dr . Newell’s evidence was certainly relevant and necessary. As to her qualifications, she is a physiatrist who has specialized in brain injury rehabilitation for many years. [ 210 ] I held that Dr. Hamilton was capable and competent of providing both forms of evidence – as a treating practitioner, and as a Rule 53 litigation expert. The basics of admissible expert evidence were met – Dr.

Hamilton delivered a Form 53, swearing that her evidence would be fair and impartial. [ 211 ] I saw nothing in her report to suggest Dr. Hamilton was biased. She arrived at her diagnosis and conclusions in a fair and even- handed manner. Her prior treatment of Mr. Taylor did not taint her objectivity as a litigation expert. Nothing in her report hinted at advocacy, and I detected no agenda to uphold her earlier findings. Further, I was not satisfied that by signing Mr. Taylor’s CPP application, Dr. Hamilton had already formed an opinion. [ 212 ] Accordingly, Dr.

Hamilton was qualified to give opinion evidence on brain injury, cognitive and behavioural impairment, and psychological impairment. [ 213 ] Dr. Hamilton explained the mechanics of a brain injury to the jury. She described how the brain sits in fluid inside the skull. The fluid acts as a cushion for the brain, protecting it against less forceful kinds of impact. But when significant force is applied, such as a rear-end collision, the brain will move forward and backward inside the skull. It can bump up against inside of the skull, or be pushed back. In rollovers, the brain can even twist around inside the fluid.

In essence, when the right amount of force is applied, the brain is physically jostled inside the skull. [ 214 ] Dr. Hamilton described how Mr. Taylor had difficulty managing his anger – he was frustrated by the loss of his identity. His anger stemmed from the changes to his relationships, the lawsuit, his frustration with the legal system, and his inability to do his job. Dr. Hamilton provided cognitive behavioural therapy, and suggested mindfulness approaches. She found him to be earnest in his compliance with her recommendations. [ 215 ] Mr.

Taylor continually reported feeling “drunk”, “spinny”, and “off-balance.” [ 216 ] Dr. Hamilton described Mr. Taylor as an under-reporter. He minimized his challenges and had trouble explaining his psychological issues. He did not like to admit there was anything wrong with him. [ 217 ] Dr. Hamilton said that in terms of traumatic brain injury, severities range from mild to very severe (ie: those left in a vegetative state). The degree of severity is determined by looking at (

a) loss of consciousness; (

b) length of post-traumatic amnesia; and (

c) neurological signs. Only one of these three factors is necessary to diagnose a brain injury. Dr. Hamilton testified that “mild” does not connote mild long-term impacts. [ 218 ] The fact that there was no documented loss of consciousness to either the paramedics at the scene or at the Hospital did not raise alarm bells to Dr. Hamilton. In her experience most people are initially unaware they sustained a loss of consciousness. [ 219 ] Mr.

Taylor also did not report a period of amnesia on the day of the accident, but in clinical interviews he consistently reported a brief loss of memory, which raised some concern to her. [ 220 ] Dr. Hamilton was firmly of the view that there were signs of an alteration in Mr. Taylor’s mental state immediately following the collision. For example, telling the paramedics that a car coming out of the intersection caused the collision, which is clearly not what happened. This signified confusion in Dr. Hamilton’s view.

[ 221 ] The next day at the hospital, Mr. Taylor accurately reported he was injured in a rear-end collision. At the hospital he also described a feeling of being spacey, described a mild headache, and that he was a little sensitive to light. [3] [ 222 ] When Dr. Hamilton put these clues together, the diagnosis that made the most sense was an mTBI. There was an alteration of his mental state at the scene, although not specifically identified as a state of confusion. [ 223 ] When Mr. Ellis’ evidence about Mr. Taylor appearing disoriented and slow to respond was put to Dr.

Hamilton, she said that suggested even more strongly that Mr. Taylor was confused at the scene, further raising the level of confidence in her diagnosis. [ 224 ] The bump to Mr. Taylor’s head, documented in the ACR, is also indicative of an injury to his head. If there is an injury to the head, then one has to consider whether there has been a concomitant injury to the brain. In this case, the bump, in conjunction with the dynamics of the collision – a hit from behind, being launched forward and spun counterclockwise, becoming airborne and rolling over before hitting the ground – allowed Dr.

Hamilton to safely conclude this was a forceful collision. Dr. Hamilton was quick to add she was not qualified to speak about the physical dynamics of force. [ 225 ] The mild headache Mr. Taylor reported at the emergency room demonstrated that there was something going on with his head and his brain. The fact that he did not report a headache at the scene is likely explained by his description of feeling “full of adrenaline.” Some symptoms unfold later, as Mr. Taylor’s headaches.

Light sensitivity is another common symptom after a concussion. [ 226 ] In her view, a clean MRI is also expected – this simply explains that Mr. Taylor did not sustain structural damage to his brain. Neuropsychological Testing [ 227 ] The goal of administering the neuropsychological testing was to understand how Mr. Taylor’s brain was functioning – his cognitive ability, what came easily to him, where he was experiencing challenges. There are verbal question and answers, paper and pencil questions, and computer questions. [ 228 ] Dr. Hamilton also obtained information from Mr. Taylor’s co-workers.

All of them noted that his personality, as well as his ability to work, had changed since the collision. He had difficulty coping with distractions, remembering directions from the DOP, and multi-tasking. They noticed increased fatigue and light sensitivity – Mr. Taylor would often put a dark blanket over him and the camera to keep out the harsh lights from the set. Their information was particularly important to Dr. Hamilton, given Mr. Taylor’s tendency to underreport. [ 229 ] Dr. Hamilton reviewed Mr. Taylor’s clinical notes and records, as well as reports from other medical practitioners who had seen Mr.

Taylor. She interviewed Mr. Taylor, and had both he and his wife complete questionnaires, as well. [ 230 ] The neuropsychological assessment itself lasted just over ten hours. However, given Mr. Taylor’s challenges with fatigue, this was split into three days in order to allow Mr. Taylor to perform to the best of his ability. During testing he was cooperative but not talkative. He presented as depressed, and his effect was flat, or void of emotional expression. [ 231 ] Dr.

Hamilton described how, when considering whether someone has sustained an mTBI, a neuropsychologist will look at characteristics of injury itself – was there a loss of consciousness, or a period of amnesia, or a period of altered mental state (confusion or disorientation). Afterwards, were there symptoms and neurologic signs (ie: headaches or seizures). She relies on the American Congress of Rehabilitation Medicine’s Diagnostic Criteria, one of the most widely used guidelines for concussion. [ 232 ] These guidelines confirm that symptoms may not be immediately evident on the day of the injury.

For example, the injured person may not even be aware they are exhibiting symptoms at the beginning. [ 233 ] To interpret her test results, Dr. Hamilton needed a baseline to which she could compare Mr. Taylor’s current presentation. Historical information she found to be important included the fact that he had a university education, he had no pre-existing mental health issues, he was running his own company, and that he was engaged with his family and socially active before the collision.

It was also important to learn he had possibly sustained two concussions playing sports when he was younger, one where he did not immediately get up after being hit. [ 234 ] In addition to the standard neurological testing, Dr. Hamilton conducted tests designed to gauge exaggeration. These validity measures help determine whether someone is malingering. Malingering is something every practitioner must be mindful of. Validity measures are designed to root out those who are magnifying their symptoms – for example, when there could be monetary gain in the face of serious injury. Dr. Hamilton’s testing found that Mr.

Taylor was not exaggerating his difficulties. He gave full effort, and she did not consider malingering to be a factor. [ 235 ] Dr. Hamilton also reviewed the results of the other neurological assessments conducted on Mr. Taylor. No assessor – including the two hired by the defendant –suggested that Mr. Taylor was malingering. [ 236 ] The testing showed Mr. Taylor had difficulty with hand-eye coordination, speed of processing, visual processing difficulty, memory challenges, and e

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