2023 MBKB 134, 2023 MBKB 134

Date: 20230914 Docket: CI 17-01-10982 (Winnipeg Centre) Indexed as: Parres v. Rossington and Ross Industries Ltd. Cited as: 2023 MBKB 134 COURT OF KING'S BENCH OF MANITOBA B E T W E E N: JAMES RICHARD BRENT PARRES, ) Thomas G. Frohlinger, K.

C) Jeffrey D.H. King plaintiff, ) for the plaintiff ) -and- ) ) RAY ROSSINGTON, PAUL ROSSINGTON and ) Kevin T. Williams, K.C. ROSS INDUSTRIES LTD., ) Simon Q.K. Garfinkel ) for the defendants defendants. ) ) Judgment Delivered: ) September 14, 2023 KROFT J. I. INTRODUCTION [ 1 ] The plaintiff, James Parres, alleges he was injured on November 1, 2015 while removing items from a storage building located on property owned by the defendant, Ross Industries Ltd. (Ross Industries). According to Mr. Parres, he fell to the ground when the stairs, leading to the building’s entrance, tipped over with him on them.

He was 74 years old at the time. [ 2 ] On October 27, 2017, Mr. Parres filed a handwritten statement of claim on his own behalf. On December 8, 2017, Ross Industries filed a statement of defence. Subsequently, Mr. Parres retained counsel. On February 19, 2019, an amended statement of claim was filed by consent, and on April 4, 2019, a statement of defence to the amended statement of claim was filed. [ 3 ] Liability and damages are in issue. [ 4 ] The controlling mind of Ross Industries is the defendant, Ray Rossington. Prior to trial, Mr. Parres discontinued his claim against Mr.

Rossington and the other personal defendant, Paul Rossington. II. THRESHOLD ISSUE – LIMITATION PERIOD [ 5 ] It was not until Mr. Parres filed his amended statement of claim that he specifically mentioned The Occupiers’ Liability Act , C.C.S.M c. O8 (the OLA ). Because more than four years had passed since the accident and the amendment, Ross Industries pleaded in its defence to the amended statement of claim that Mr. Parres is barred by The Limitations Act , C.C.S.M. c.

L150 , from raising and relying on the OLA . [ 6 ] I disagree with Ross Industries’ position. [ 7 ] Despite there being no reference to the OLA in the original statement of claim, the guts of an OLA claim are present. For example, the statement of claim alleges, among other things, Ross Industries owns the property, exercised control there over (evidenced

in part by its ability to dictate who could enter the property and having taken responsibility for improvements thereto) and failed to safelyattach the stairs to the storage building thereby creating a “booby trap”. In other words, the original statement of claim identifies therelevant premises and alleges Ross Industries was an occupier who failed to take sufficient care to see that Mr. Parres would bereasonably safe on those premises. Adding the OLA reference to the amended statement of claim merely elucidated facts alreadypleaded. (See Neufeld v.

Royal Fork Buffet, No. 1, (MB KB) at paras. 7 - 8) [8] No prejudice or surprise to Ross Industries arose from the elucidation. In fact, in its original statement of defence RossIndustries specifically denied liability under the OLA despite no mention of that legislation in Mr. Parres’ pleading. [9] Mr. Parres is not barred from claiming under the OLA. III. LIABILITY Facts [10] Much of the material evidence surrounding the accident is not contested. Where it is, I will say so and make findings as necessary. [11] At the time of the accident, Mr. Parres resided in Thunder Bay, Ontario.

He was and is a Geologist, making a living identifyingmineral deposits and determining whether and how to extract them. Aspects of his profession are physically demanding, involving suchthings as staking claims, extracting heavy mineral cores, clearing paths in remote areas and hauling equipment.[1] [12] On November 1, 2015, Mr. Parres attended Ross Industries’ property near Flin Flon, Manitoba. The property was previously owned by Mr. Parres’ father (through his company A.L. Parres Ltd., for which Mr.Parres had worked in the past), who also was engaged in mineral exploration.

In fact, the storage building where the accident occurredwas built by Mr. Parres’ father in the 1960s. The sale of the lot, where the storage building is located, occurred in or around July 2009 aspart of the winding up of Mr. Parres’ father’s affairs. The winding up was shepherded by Mr. Parres’ sister, Beverley Borgstrom of FlinFlon.[2] According to Mr. Rossington, over the years he enjoyed good relations with Ms. Borgstrom and Mr. Parres’ father. Because ofthat, for a significant period of time, Mr. Rossington did not insist that Ms. Borgstrom remove her father’s things from the storagebuilding.

It was not until 2015 that Mr. Rossington finally required the Parres family to complete the removal. It was to complete thistask that Mr. Parres attended the property on November 1, 2015. Ms. Borgstrom’s son-in-law, Joseph Lies, attended with Mr. Parres toassist. [13] Consistent with past practice, Mr. Rossington neither received nor required notice of Mr. Parres’ attendance. He did not evenlearn of Mr. Parres’ fall until well after the incident. Mr.

Parres was no stranger to the property or the steps from which he fell,admitting, when pressed on cross-examination, that it was his practice to attend the storage building whenever he would visit Flin Flon. He acknowledged at least three visits between 2014 and 2015. [14] The entrance to the storage building is accessed by a small set of stairs comprised of five wooden treads supported by a steelframe. There is no top landing nor are there any railings. The height from the top stair to the ground is approximately four and a halffeet. In 2015, the stairs were not old or rotten. They had been built by Mr.

Rossington to replace the previously worn out deck andstairs. [15] Mr. Rossington concedes the stairs were not bolted to the building. According to Mr. Rossington, the stairs were not intended tobe a permanent fix because he was considering tearing the entire building down. [16] At the time of the accident, Mr. Parres and Mr. Lies had almost completed emptying the contents of the storage building. Mr.Parres estimates he and Mr. Lies had gone in and out of the building 30 times using the same set of stairs (i.e. a combined 60 trips up anddown the stairs). According to Mr.

Parres, it was when he took his last step out of the storage building that he suddenly felt no supportunder his foot and fell to the ground. He described himself as flying through the air and landing on his back and neck. His firstrecollections after the fall were of laying on the ground holding maps, experiencing some confusion and confirming for himself no boneswere broken. The steps were tipped over to the side. [17] Mr. Parres asked Mr. Lies to help him up and together the two men placed the stairs back up against the building. It was thenMr. Parres noticed the stairs had not been fastened in place.

Thereafter, he and Mr. Lies removed the remaining items from the storagebuilding and departed the site. [18] While in Flin Flon, Mr. Parres stayed with Ms. Borgstrom. The morning after the accident, Mr. Parres and Ms. Borgstromreturned to the building where Mr. Parres took some measurements and found his keys on the ground near where he fell. Mr. Parres left Flin Flon by vehicle on November 3, 2015, and arrived home in Thunder Bay on November 4, 2015. [19] Mr. Lies’ recollection of attending the storage building was similar to Mr.

Parres’, with the qualification that he did not witnessthe tipping of the steps or the fall and, to him, Mr. Parres did not appear hurt immediately following the incident. The Law [20] The plaintiff substantially relies on the OLA. For the OLA duty to apply, a defendant must be an “occupier” and the plaintiff must have been injured on “premises”, as defined in the OLA. (See

section 1 of theOLA.) I am satisfied Ross Industries and the storage building meet those

definitions. In terms of “occupier”, Ross Industries, controlledby Mr. Rossington, had at a minimum, responsibility for the conditions of the relevant portion of the premises and control over thepeople permitted to enter thereon. Evidence of these facts includes Ross Industries’ ownership of the storage building and the lot it is on,its ability and right to control access to the premises and, at least in respect of the stairs, the fact Mr. Rossington took steps to remove thepreviously unsafe structure with the stairs that were in place at the time of Mr. Parres’ accident. In terms of “premises” the storage

building clearly constitutes a structure on land owned by Ross Industries. [21] The duty owed by an occupier is articulated in section 3(1) of the OLA. When that statutory duty and the cases interpreting it are considered, the following principles emerge: • An occupier must take reasonable care, taking all the circumstances of the case into account, to make the premises reasonablysafe; • What constitutes reasonable care will be specific to each fact situation; • The duty does not render the occupier a guarantor of the safety of persons on the premises.

The mere fact a person sustains aninjury on premises does not necessarily mean the occupier failed to take reasonable steps; • The duty imposed on the occupier does not absolve a person entering the premises of their duty to take reasonable care. (Seesection 3(1) of the OLA; Adams v. Manitoba Lotteries Corp., 2009 MBQB 48 at paras. 19, 20 and 24; Lebedynski v. Westfair Foods Ltd., 2000 MBQB 144 at para. 9; Hunter v. Anderson, 2010 BCSC 1037 at paras. 204and 213; and Anderson v. Anderson, (MB KB) at paras. 26-28); and • Although

section 4 of the OLA contemplates agreements whereby a person can restrict or modify the duty of care owed by theoccupier, for that waiver to exist the evidence must establish that the injured person not only had knowledge of the risk of the specificharm but that they essentially bargained away their right to sue for injuries incurred as a result of the defendant’s conduct. (SeeLitwinenko v. Beaver Lumber Company, (ON SC) at paras. 9, 14 and 15). Decision - Liability [22] I find Ross Industries breached its duty under the OLA. It is clear to me Mr.

Rossington understood the need for and responsibility to provide stair access to the storage building. In fact, he replaced the oldcompromised stairs and deck with new stairs. It is also clear that until 2015, he permitted the Parres family members to access thestorage building and knew they were doing so from time to time. While I do not doubt Mr. Rossington’s generosity, it remains a fact thatthe stairs he installed were not fastened to the building or the ground, other than by their own weight. There is no evidence thatinstalling stairs in this fashion was safe or appropriate.

Practically speaking, I am satisfied the stairs would not have tipped over, but forthe failure to secure them.[3] Causation is established. I pause to note that while I heard some evidence that, more generally, the stairswere not to code (e.g. no railings, no landing), I am not satisfied causation is attributable to anything other than the failure to properlysecure them. [23] I was referred to a number of cases where the occupier avoided liability because the defect was latent and imperceptible to bothoccupier and visitor. That is not the situation here. Mr.

Rossington knew the stairs were not affixed to the building or the ground. Mr.Parres did not. When assessing liability, I considered the fact Mr. Parres was familiar with the stairs from prior visits and, on the day ofthe accident, traversed them approximately 60 times without incident. Because causation in this case attaches to the failure to secure thesteps, and because there is no evidence of the stairs wobbling prior to collapse, it is not reasonable to suggest Mr. Parres ought to haveknown about Mr.

Rossington’s omission or to believe that because the stairs did not tip immediately, they were somehow safer than ifthey had collapsed right away. No suggestion was made that Mr. Parres was using the stairs in a manner for which they were not intended. Ross Industries cannotescape liability because of Mr. Rossington’s belief (which I accept) the new stairs were only temporary, pending his decision whether or not to tear down thestorage building, or the suggestion the stairs should be considered akin to a step ladder.

To sum up, and in the words of the OLA, Mr.Rossington did not take reasonable care, taking all the circumstances of the case into account, to make the premises reasonably safe. [24] Should any responsibility be assigned to Mr. Parres? Not in this case. The evidence does not establish a failure on Mr. Parres’ part to exercise reasonable care in the circumstances. Also, the evidence doesnot establish Mr. Parres explicitly (or implicitly) waived the right to hold Ross Industries responsible for injury, thereby entitling Ross Industries to rely on

section 4 of theOLA. [25] I conclude this

section by saying I do not doubt Mr. Rossington felt he was assisting the Parres family by permitting access to thestorage building. Unfortunately, good intentions do not diminish the legal obligations created by

section 3 of the OLA. IV. DAMAGES Facts [26] At the time of the accident, Mr. Parres was in good health, although he was seeing a chiropractor regularly for pre-existing lowerback pain. Mr. Parres alleges the accident caused additional medical conditions. Evidence pertaining to these conditions was tenderedthrough, among other things, Mr. Parres’ testimony, a series of handwritten letters from Mr. Parres to Mr.

Rossington, chiropractic andmedical records, testimony from one medical doctor, and expert testimony from a biomechanical engineer[4]. [27] I begin with the letters – a series of handwritten correspondence from Mr. Parres to Mr. Rossington informing Mr. Rossington ofMr. Parres’ intention to seek compensation for his injuries, including through litigation if necessary. Throughout the correspondence,

Mr. Parres chronicles the injuries he attributes to the November 1, 2015 fall. [ 28 ] In a December 22, 2015 letter to Mr. Rossington, Mr. Parres reports that since returning to Thunder Bay, his shoulder and right elbow have been in excruciating pain, rendering it almost impossible to close his right hand. In that context, Mr. Parres also advises he has been attending his chiropractor. In a March 14, 2016 letter to Mr. Rossington, Mr.

Parres reports that when he returns to Canada from wintering in Texas, he intends to seek medical advice for injuries caused by the November 1, 2015 accident, including having no strength in his right elbow, pain in both shoulders, severe lower back pain, two bones sticking out of his sternum, and a concussion from landing on his head. [ 29 ] In a September 1, 2016 letter to Mr. Rossington, Mr. Parres states he cannot work for more than an hour or play his guitar for more than 15 minutes at a time without feeling shoulder pain. In the same letter, after referencing the cost of legal action, Mr.

Parres proposes that Mr. Rossington pay a settlement of $3,000 per year for five years, provided he fully recovers in that time period. As Mr. Rossington did not respond to the proposal (or any of the letters for that matter), on September 15, 2016, Mr. Parres withdrew it and advised he was awaiting X-ray and MRI results before proceeding further. In an October 25, 2016 letter to Mr. Rossington, Mr. Parres reports that various scans showed severe spine damage, torn biceps and that the shoulder pain in both shoulders is the result of the spine damage. He again refers to litigation. [ 30 ] At trial, Mr.

Parres’ direct evidence about his physical well-being was not identical to, but not inconsistent with, the content of his letters to Mr. Rossington. When asked about his current health status, Mr. Parres referred to not having full use of his shoulder and left arm and to not being able to sleep on his left side. He also testified his condition interferes with day-to-day activities such as dressing, playing guitar, interacting with grandchildren and driving to Texas. He continues to work, albeit requires a helper when it comes to carrying heavy core samples and cutting through the bush.

He was taking no prescription medication, relying instead on over the counter pain medication, such as Aleve and Tylenol. [ 31 ] Turning to the medical evidence, apart from the physician referenced at paragraph 41 herein, Mr. Parres called no medical witnesses. That said, certain records were tendered and relied on by the parties. [ 32 ] In terms of chiropractic records, the focus at trial was on notes of Dr. Aaron Rogalski, of the Thunder Bay Chiropractic & Family Wellness Clinic. Mr. Parres had been seeing Dr. Rogalski approximately every two weeks prior to the accident to manage lower back pain.

It was a coincidence that Mr. Parres had an appointment with Dr. Rogalski on November 5, 2015, the day after he drove home to Thunder Bay from Flin Flon. Despite the severity with which Mr. Parres describes his injuries in his letters to Mr. Rossington, there is no reference in Dr. Rogalski’s November 5, 2015 notes to the accident or injuries resulting therefrom. The same is true for Dr. Rogalski’s November 26, 2015 notes. The first reference in Dr. Rogalski’s records to any complaint from Mr. Parres in respect of a fall from stairs appears in notes dated March 23, 2016 pertaining to Mr.

Parres’ first chiropractic appointment after returning from Texas. [ 33 ] The March 23, 2016 notes show Mr. Parres reported neck, shoulder, rib and upper extremity pain resulting from “a fall >4ft. onto some structure” (during cross-examination Mr. Parres insisted the fall reference is to the November 1, 2015 fall and the word “structure” refers to the ground). Mr. Parres also reported he was stunned, temporarily unable to move, felt immediate pain all over his body (especially his rib cage) and had multiple contusions to his torso, arms and head. In terms of Dr. Rogalski’s physical examination of Mr.

Parres, the March 23, 2016 notes state Mr. Parres displayed, among other things, lack of motion of and pain in his thoracic spine, tenderness of ribcage, and pain in both shoulders. As for the diagnosis, Dr. Rogalski notes “cervical sprain/strain with vertebral subluxation”, “rib fracture”, “bilateral shoulder sprain/strain with associated myofasciitis”, and “thoracic sprain/strain”. [ 34 ] It is relevant that on cross-examination, Mr. Parres conceded that shortly before returning to Thunder Bay from Texas, he was struck by a tree limb. He further admitted the references in Dr.

Rogalski’s March 23, 2016 notes to pain, rib fracture, bruises and abrasions related to the tree limb incident, not the November 1, 2015 fall. Also during cross-examination, Mr. Parres acknowledged that at no time between November 1, 2015 and March 23, 2016 did he attend any emergency department, medical clinic or family doctor in respect of the fall. Moreover, and contrary to what Mr. Parres writes in his handwritten letter to Mr. Rossington dated March 14, 2016, apart from a brief exchange with a chiropractor in the course of shopping at a Sam’s Club store in Texas, Mr.

Parres did not seek out chiropractic treatment while away for the winter. In further reference to the letter, Mr. Parres admitted he was wrong in reporting bones were sticking out of his sternum, testifying instead that the bones were sticking out of his lower back – something only his wife could notice. The protrusions were never detected by his chiropractor and Mr. Parres cannot say if the protrusions had anything to do with the fall from the stairs. Mr. Parres admitted he was not diagnosed with a concussion. [ 35 ] Mr. Parres stopped seeing Dr.

Rogalski after March 31, 2016, resuming chiropractic treatments in April, 2018 with Dr. Alan Cranton, D.C., at Thunder Bay Wellness Centre. Dr. Cranton’s patient information form asks the question, “Have you ever been involved in any motor vehicle accident … minor or major?” Mr. Parres answered that on November 1, 2015, he fell from stairs resulting in 10 seconds of unconsciousness and torn biceps. Also in Dr. Canton’s notes is a May 30, 2018 reference to Mr. Parres aggravating his shoulder pain by pulling himself onto a truck bed. [ 36 ] On cross-examination, Mr. Parres was shown a letter from him to Dr.

Cranton, dated September 19, 2018, asking Dr. Cranton to evaluate the treatments received by Mr. Parres since April 2018. The letter includes the following remarks by Mr. Parres: According to your diagnosis, it is apparent that I have had a spinal condition for a number of years. Whether the fall off the steps in Flin Flon on November 1, 2015, did any additional damage to my spine may be hard to assess? The painful rotator cuff injury to my left shoulder and the detached biceps tear on my right shoulder/arm, are definitely as a result of the 4 meter fall off the steps.

Landing on my neck and shoulder after spinning 180 O , due to my momentum, certainly was an extreme shock to my whole body.

You have treated my injuries for a number of months. I have no idea when or if the lawsuit with the owner of the building will proceed. The steps leading into the building were never attached to the building and gave way when I stopped onto them. [ 37 ] There is no written response from Dr. Cranton in evidence, nor was Dr. Cranton called as a witness at trial. [ 38 ] I now turn from chiropractic care to physician care. The first relevant record of Mr. Parres visiting a physician is dated September 14, 2016, more than 10 months following the accident. [5] The physician was Dr.

Eugene Sacevich of The Port Arthur Health Centre. Dr. Sacevich’s examination notes indicate no localized tenderness, good range of movement and no impingement on the tendons of the rotator cuff. In respect of the cervical spine, Dr. Sacevich’s notes refer to significant degenerative disease, impaired range of motion and restricted extension and rotation. Dr. Sacevich ordered X-rays and an MRI, and for the first time since the fall from the stairs, Mr. Parres was prescribed some pain medication. [ 39 ] Mr. Parres saw Dr. Sacevich again on October 24, 2016 to review the X-ray and scan results.

The X-ray showed no fracture or dislocation; however, there was severe osteoarthritis, most notably in Mr. Parres’ right shoulder. On cross-examination, Mr. Parres conceded that nothing in Dr. Sacevich’s notes connects the November 1, 2015 accident to the condition of his shoulder and spine. It was put to Mr. Parres that his October 25, 2016 letter to Mr. Rossington was misleading by suggesting the “severe damage to [his] spine” and “torn biceps muscle from shoulder on right arm” are results of the fall from the stairs. Mr.

Parres responded, and I paraphrase, “that is what I understood to be the case”. [ 40 ] The next relevant notation by Dr. Sacevich is December 21, 2017. The reason for the visit is stated to be: “[left] shoulder pain”, “persisting since injury a year ago” and “fell and landed on his shoulder”. On cross-examination it was suggested to Mr. Parres that the fall referenced by Dr. Sacevich was not the November 1, 2015 fall given that two years, not one , had passed since that time. Mr. Parres denied this suggestion. Dr.

Sacevich did not testify at trial. [ 41 ] As mentioned earlier, one treating physician did testify - Dr. Tracy Wilson, an Orthopedic Surgeon practicing with Big Thunder Orthopedic Associates. Mr. Parres was referred to Dr. Wilson by Ericka Reszitnyk, a Nurse Practitioner at Northwest Community Health Centre, Thunder Bay. [ 42 ] Dr. Wilson first saw Mr. Parres on August 29, 2018. On that occasion, Mr. Parres reported he had long standing right shoulder pain that began following a hockey injury several years prior.

He also reported left shoulder pain, which he traced to the November 1, 2015 fall, was under control until one day in Texas when he reached over to pick up a chair. Dr. Wilson recorded further that with some massage and chiropractic treatment, the pain improved until July 2018, when Mr. Parres fell on both hands and wrists while hauling brush into a trailer bed. [ 43 ] Dr. Wilson’s diagnosis is set out in her letter to Ms. Reszitnyk, dated September 13, 2018. She concludes Mr.

Parres has chronic bilateral massive rotator cuff tears (likely irreparable), which have become symptomatic more in the left shoulder than in the right shoulder. She attributes his condition to having sustained recurring injuries over time. As for Mr. Parres’ cervical spine, Dr. Wilson observed cervical spondylosis (degeneration of the spine). [ 44 ] Mr. Parres saw Dr. Wilson again on October 25, 2018 because of continued pain in his left shoulder. In her reporting letter to Ms. Reszitnyk, Dr. Wilson notes despite the pain in the left shoulder, Mr.

Parres had more damage in the right rotator cuff, which she attributed to a long standing rotator cuff injury. During the October 25, 2018 visit, Dr. Wilson administered a steroid and Marcaine injection to Mr. Parres. [ 45 ] Mr. Parres visited Dr. Wilson a third time on January 15, 2019. In her reporting letter to Ms. Reszitnyk, dated January 23, 2019, Dr. Wilson indicates there were cuff tears prior to the accident, which were then enlarged by the fall. She also notes Mr. Parres’ pain and range of motion had improved and the course of treatment should stay the same. [ 46 ] At trial, Dr.

Wilson spoke of a further visit from Mr. Parres, during which she observed Mr. Parres’ condition to be good or better than it was in January 23, 2019. Surgery was not recommended due to Mr. Parres’ age and because he was otherwise active. [ 47 ] During cross-examination, Dr. Wilson testified, among other things, that: • Mr. Parres’ arthritic condition most likely was the product of progressive tearing over a period of six to eight years, not the result of a single event; • The injuries sustained by Mr. Parres when he was struck by the tree branch in Texas, likely aggravated the torn rotator cuff; • Because Dr.

Wilson did not treat Mr. Parres over an extended time period, she cannot determine the extent to which various events (e.g. fall from stairs, tree branch, reaching for a chair, hockey injury, and fall while loading brush onto a truck) contributed to the overall condition of the rotator cuff or prognosis; • In regard to Dr. Rogalski’s November 5, 2015 chiropractic note, Dr. Wilson saw no reference to the fall from the stairs or to any shoulder or neck injury. Typically, if a rotator cuff is injured, there will be pain; • In regard to Dr.

Rogalski’s March 23, 2016 chiropractic note, the references to rib fractures, abrasions and bruising suggest Mr. Parres suffered a significant injury in March 2016. Dr. Wilson did not have Dr. Rogalski’s notes at the time she prepared her reporting letters to Ms. Reszitnyk; and • In respect of the right long head biceps tendon tear referenced in Dr. Wilson’s January 23, 2019 letter, she cannot say if that injury is attributable to the November 1, 2015 fall.

Decision-Damages [48] Mr. Parres seeks general damages in the $65,000 – $90,000 range. He also seeks damages for the cost of past medical care of$7,266.85 and aggravated damages (in an amount determined by the Court). In support of his general damages claim, Mr. Parres relies on a number of personal injury cases where, according to Mr. Parres, the plaintiff’s injuries were comparable to hisown. In support of the past medical costs, Mr. Parres relies on a

summary prepared by counsel (at my instruction) tendered at trial asExhibit A[6]. [49] In terms of general damages, the evidence does not support the amount claimed. [50] I have significant credibility concerns in regards to Mr. Parres’ representation of the seriousness of the injury. In more than oneinstance, the injuries described in his hand written letters to Mr. Rossington and relied upon in court, do not line up with reality. Surly ifhe were injured to the extent represented in the correspondence, he would have mentioned the injury to Dr.

Rogalski on November 5, 2015, or at one of his other pre-Texas appointments. I also findincongruous the fact that despite his descriptions of his injuries, Mr. Parres did not consult a medical doctor until September 2016. Mr. Parres’ credibility is undermined as well by what I perceive to be an attempt by him to blend the consequences ofthe November 1, 2015 fall with the significant injuries he sustained from being struck by a tree branch in Texas (not to mention theinjuries from hockey, reaching for the chair, the fall while loading brush onto the truck).

Finally, given his continued (though tempered)ability to work in the bush and travel, I have concern Mr. Parres has exaggerated the impact of the November 1, 2015 fall. [51] In addition to my credibility concerns, the damage award claimed by Mr. Parres is not supported by the medical evidence. Dr.Rogalski, Dr. Sacevich and Dr. Cranton were not called to testify to elaborate on their notes. As for Dr. Wilson, the evidence elicitedduring cross-examination, summarized in the paragraph 47 herein, significantly undermines Mr. Parres’ position.

The evidence does notestablish with sufficient certainty that his medical condition is attributable, in law or equity, to the November 1, 2015 fall to the extentalleged[7]. [52] Despite my concerns, I am satisfied that the fall occurred and, relying on the evidence of Dr. Wilson, that Mr. Parres’ pre-existing rotator cuff injury was aggravated to some extent by the November 1, 2015 fall. Unfortunately, I have not been provided thetools to determine by how much. In all of the circumstances, I am prepared to make a relatively modest general damages award of$8,500. [53] As to Mr.

Parres’ claim for the costs of past medical care, I award nothing. The information as tendered is not admissible. My concern in this regard was raised at trial. Having said that, and in the interests ofequity, I am prepared to assume Mr. Parres incurred some medical costs related to the November 1, 2015 fall, and have factored that into my assessment of generaldamages. [54] As for aggravated damages, they are not justified by the evidence. Reprehensible or outrageous conduct on the part of RossIndustries has not been established. (See Whiten v.

Pilot Insurance Co., 2002 SCC 18 at para. 116.) CONCLUSION [55] To summarize, I find Ross Industries breached its duty to Mr. Parres under the OLA. [56] Mr. Parres is entitled to general damages in the amount of $8,500. [57] Costs may be spoken to if counsel cannot agree to the amount. ________________________ J.