IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101222

Docket: M94690

Registry:
New Westminster

Between:

Stanley You Won
Lee aka Stanley Lee

Plaintiff

And:

Ruth Eleanor
Jarvie and Rosana Ng

Defendants

Before:
The Honourable Mr. Justice G.R.J. Gaul

Reasons for Judgment

Introduction

[1]            
In 2004, the plaintiff Stanley Lee was a 27-year old recent graduate
from Simon Fraser University. Mr. Lee was single, living on his own and working
as a clerk at Overwaitea Save-on-Foods in Coquitlam, British Columbia.

[2]            
In the fall of 2004, Mr. Lee was in the midst of applying to join
the Royal Canadian Mounted Police ("RCMP"). He had completed the
interview process and was awaiting the results of his reference checks. The
final step to becoming a member of the RCMP was successfully completing the
intensive 24-week Cadet Training Program (“CTP”) at the RCMP’s academy in
Regina, Saskatchewan, commonly referred to as “Depot”.

[3]            
While waiting to hear if he would be accepted into CTP at Depot, Mr. Lee
continued to work at Overwaitea Save-on-Foods. He also began doing volunteer
work at the local RCMP detachment.

[4]            
On the afternoon of 13 September 2004, Mr. Lee was involved in a
motor vehicle accident that necessitated him being taken to the hospital where
he was examined and discharged within a few hours.

[5]            
Mr. Lee began feeling stiffness and pain shortly
after the accident. The situation was concerning to Mr. Lee as he had yet
to hear from the RCMP regarding CTP and he feared that the physical effects he
was feeling from the accident might thwart his ability to attend Depot and
successfully complete the training.

[6]            
In late October 2004, Mr. Lee was informed that he
had been chosen for the RCMP’s CTP. On or about 1 November 2004, Mr. Lee
arrived in Regina and began his training at Depot.

[7]            
The training was intensive, rigorous and both
physically and mentally demanding. Nevertheless, Mr. Lee was successful
and on 25 April 2005 he graduated from Depot. Within a few days he was deployed
and on his way to the RCMP detachment in Burnaby, British Columbia.

[8]            
At the time of this trial, Mr. Lee was a full-time
regular member of the RCMP, holding the rank of Constable, stationed at
Burnaby.

Issues

[9]            
Liability for the accident is not in issue as it is an accepted fact
that Ms. Jarvie’s driving caused the collision. The task at hand in this
action is determining the type and quantum of damages or compensation Mr. Lee
is entitled to as a result of the accident.

[10]        
Mr. Lee claims he has suffered significant and
life-altering injuries from the accident that will likely affect him for the
rest of his life. He consequently seeks an award of damages, both general and
special, in addition to an award for past loss of income and opportunities. Mr.
Lee also seeks compensation for the loss of housekeeping capacity, the
diminishment of future earning capacity and the cost for future care.

[11]        
The defence questions the authenticity of Mr. Lee’s
claim and argues the nature and duration of the injuries he suffered as a
result of the accident are far less than he asserts. In advancing this position,
the defence argues Mr. Lee’s evidence is unreliable and at times
incredible. Consequently, the defence urges me to give little weight to Mr.
Lee’s evidence. Moreover, the defence points to a number of intervening events
that it maintains undermines Mr. Lee’s claim that the pain and discomfort
he has felt since the September 2004 accident were caused solely by that
accident.

Evidence

 Stanley You Won Lee

[12]        
The evidentiary foundation of this action rests principally on the
evidence of Mr. Lee. Given the defence’s vigorous challenge to the general
reliability and credibility of Mr. Lee’s evidence, it is necessary to
consider his testimony in some detail.

  Evidence in
Chief

[13]        
On 13 September 2004, Mr. Lee was driving his 1996 Honda Civic CX
eastbound on Como Lake Avenue in Burnaby, B.C., en route to the RCMP
fitness facility in Coquitlam. The vehicular traffic on the road at the time
was heavy and students from a local secondary school were just getting out of
school.

[14]        
At one point the number of cars on the road was so dense that the traffic
came to a standstill. While he was stopped in this heavy traffic, Mr. Lee
looked in his rear-view mirror and saw Ms. Jarvie’s vehicle approaching.
Mr. Lee immediately concluded Ms. Jarvie’s vehicle was not going to
stop and therefore he braced for the collision.

[15]        
Ms. Jarvie’s vehicle collided with the rear of Mr. Lee’s
vehicle propelling it forward into the rear of Ms. Ng’s vehicle. The force
of the collision triggered the airbags in Mr. Lee’s vehicle to deploy.

[16]        
Mr. Lee lost consciousness momentarily after the impact. When he
regained consciousness he remembers being in shock and being angry. He exited
his vehicle via the passenger side door and observed significant damage to the
front of his vehicle. He also had a brief conversation with Ms. Jarvie about
the accident that had just occurred.

[17]        
Initially Mr. Lee was unable to estimate the speed of Ms. Jarvie’s
vehicle. However, with the passage of time and the experience he claimed to
have accumulated as a police officer, he asserted that he was able to say Ms. Jarvie’s
vehicle was travelling at a speed greater than 50 kilometres an hour when it
struck his car.

[18]        
Mr. Lee recalls feeling some numbness but no pain
immediately following the accident. It was only when the paramedics who had
arrived on the scene began assessing him that Mr. Lee began to feel some
pain in his throat, neck, shoulders and upper back.

[19]        
Mr. Lee was transported to a local hospital in Port Moody where he
was examined by a physician in the emergency department. Although he had
difficulty speaking, Mr. Lee was able to inform the doctor that he felt
pain in his shoulders, neck, and back. He also noticed an abrasion to his left
knee.

[20]        
The emergency room physician provided Mr. Lee with
non-prescription anti-inflammatory and analgesic medications to address Mr. Lee’s
pain and discomfort. After approximately two hours at the hospital, Mr. Lee
was discharged and driven home by his father.

[21]        
Mr. Lee saw his long-time family physician, Dr. Angela Lee,
on 14 September 2004. There is no familial relationship between Dr. Lee
and Mr. Lee. Mr. Lee complained of feeling numbness in his throat and
pain in his back, shoulders and neck. He was also experiencing headaches. Dr. Lee
informed Mr. Lee that he should continue using analgesic medications to
treat his pain and should also begin massage therapy.

[22]        
Over the next couple of days, Mr. Lee was not able to drive a
vehicle because he could not comfortably move his neck from side to side and he
continued to feel pain in his shoulders and back.

[23]        
A week or so after the accident, Mr. Lee began massage therapy.

[24]        
Mr. Lee returned to see Dr. Lee on seven occasions over the
next 13 months. At his appointment on 20 September 2004, Mr. Lee requested
a referral to a personal trainer so that he could maintain or regain his
physical condition. Dr. Lee provided the referral and within a few days Mr. Lee
began seeing a personal trainer/kinesiologist. Mr. Lee participated in
approximately seven training and conditioning sessions with his personal
trainer.

[25]        
Mr. Lee was absent from work at Save-on-Foods for one and a half
weeks. When he returned to work in or around the end of September 2004, he
performed light duties and worked reduced hours. By mid-October, Mr. Lee
had returned to his previous full-time duties.

[26]        
Around this same time, Mr. Lee was contacted by the RCMP and
informed that he had been chosen for CTP and could start his training at Depot
in the beginning of November 2004.

[27]        
Mr. Lee’s lifelong dream was to become a member of
the RCMP. His father had been a member of the Royal Hong Kong Police and Mr. Lee
wished to emulate his father’s career. Mr. Lee was happy he was about to
embark upon his chosen career path; however he was apprehensive about his ability
to complete CTP, given the residual pain he continued to experience from the
motor vehicle accident.

[28]        
Notwithstanding a fervent effort to regain his physical
conditioning after the accident, Mr. Lee noticed no improvement in his
condition in the days leading up to the commencement of his RCMP training.

[29]        
Upon his arrival at Depot in the first week of November,
Mr. Lee was frightened of disclosing to his instructors or troop-mates the
fact that he was suffering from discomfort and pain in his mid and upper back
and shoulder blades. He feared his training period would be extended or, worse,
he would be sent home only to have to re-start his training at a later time
when he was healthier. Notwithstanding this fear, Mr. Lee did, at some
point during his time at Depot, tell his principal supervisor and facilitator,
Corporal Guy Ouellette, about the pain and discomfort he was experiencing as a
result of the motor vehicle accident. Corporal Ouellette was sympathetic
towards Mr. Lee’s condition and accommodated Mr. Lee’s needs without
any further issue.

[30]        
In the first six months after the accident Mr. Lee
tried a number of medications to address his pain and found that ibuprofen was
the only medication that relieved his symptoms. Mr. Lee claimed he was
constantly in pain during his time at Depot and that for some activities such
as polishing his boots over an extended period of time, standing at attention
on parade or engaging in firearms practice, the pain was “excruciating” rising
to 7 or 8 on a scale of 1 to 10, with 10 being the most severe pain imaginable.

[31]        
To deal with his physical pains and associated headaches, Mr. Lee
estimated he consumed a minimum of six to eight ibuprofen pills per day, seven days
per week, during his RCMP training in Regina.

[32]        
Mr. Lee claimed the discomfort in his back and shoulders contributed
to his failing a portion of his driving test at Depot. He also asserted the
pain impeded him from properly handling the standard issue firearm and as a
result he required remedial coaching from his RCMP instructors.

[33]        
At some point during his time at Depot, Mr. Lee hurt his ankle
during martial arts training. Mr. Lee was able to resume his normal
routine at Depot within two or three weeks of suffering this injury.

[34]        
Mr. Lee maintains that it was a struggle for him to pass the CTP
and that the principal reason was because of his motor vehicle accident injuries.
Mr. Lee described how he thought of quitting the RCMP as follows:

Q:        And why were you experiencing thoughts of
quitting?

A:         Emotionally I
wasn’t ready to endure this because I felt that I’d been robbed, I’d been taken
away something that I had. I was embarrassed to go in front of a class and
minimally passing everything in a – – in a benchmark. I see my troop mates
passing a lot of the required core training with flying colours, meaning it was
easy for them. I was like that, My Lord, before that. …

[35]        
Mr. Lee’s evidence-in-chief left the clear
impression that he was always on the cusp of failing an exercise, project or
course and was constantly at risk of being expelled from the CTP.

[36]        
Notwithstanding his physical and emotional challenges,
Mr. Lee completed the CTP. On 25 April 2005 he graduated from Depot and shortly
thereafter he began his duties as a Constable, Level 3, with the RCMP in
Burnaby, B.C.

[37]        
While on duty on 31 May 2005, Mr. Lee was a passenger in
a police vehicle that was involved in a motor vehicle accident. According to
Mr. Lee, he suffered no injuries in this accident.

[38]        
Mr. Lee remained as a uniformed officer in general duties until
December 2005, when he transferred to plain clothes duties with the
Burnaby RCMP’s Marijuana Enforcement Team, also known as the “Green Team”. He
remained with the Green Team for six months and then returned to general duties
in the summer of 2006.

[39]        
During his time with the Green Team, Mr. Lee would often be engaged
in static observations of locations from an unmarked police car. These periods
of sitting in a motor vehicle would last from a few hours to a full 12-hour
shift. At the end of these observation periods, Mr. Lee would have pain in
his back, neck and shoulders prompting him to take ibuprofen.

[40]        
In or around August 2006, Mr. Lee returned to general duties and
shortly thereafter he joined the RCMP’s Neighbourhood Liaison Unit (“NLU”) in
Burnaby. Mr. Lee transferred back to a special drug target unit with the
RCMP in September 2008. At the commencement of the trial of this action, Mr. Lee
was still a member of that section.

[41]        
Prior to the accident of September 2004, Mr. Lee
enjoyed running and playing basketball and volleyball. He would also work out
on weights at the gym. These activities have been curtailed since Mr. Lee
started working with the RCMP in the spring of 2005 and he attributes this
reduction in activity to the injuries he suffered in the 2004 motor vehicle
accident. Mr. Lee has found himself with less energy than he used to have
prior to that accident and because of this he says he is unable to be as active
as he once was.

[42]        
According to Mr. Lee, his injuries from the 2004 motor
vehicle accident prohibited him from assisting his parents around their home in
2007 when his father was terminally ill, caused him to gain 30 pounds, and compelled
him to purchase a condominium instead of a house.

[43]        
Mr. Lee maintains that his physical condition has not improved
since the 2004 accident. His testimony on this point is unequivocally clear:

Q:        And after September 13th, 2004, did you ever
experience at any waking moment of your consciousness no pain?

A:         I’m sorry?

Q:        Did you ever experience a pain-free state
following the collision?

A:         Before the accident?

Q:        After the collision.

A:         After?

Q:        Did you ever experience a pain-free state?

A:         No. No, My Lord. There’s never a day that I
don’t feel pain.

Q:        And is that true to this very day?

A:         Yes, My Lord.

…

Q:        In the last 24 months, has your overall health
and pain gotten better or worse?

A:         It hasn’t – – My Lord, it hasn’t gotten
better. It – – it’s still the same. I feel the same.

Q:        Have your injuries improved at all since the
collision?

A:         No,
My Lord.

[44]        
As for what the future holds, Mr. Lee painted a somewhat sombre
picture. While he is overjoyed by the fact that he and his girlfriend, Claudia
Moreno, have recently married, and that together with Ms. Moreno’s child
from a previous relationship they have started living together as a family, Mr.
Lee is concerned with what the future holds for them. Mr. Lee
says he is uncertain about how long he will remain with the RCMP. His dreams of
becoming a member of the RCMP’s Emergency Response Team (“ERT”), Canine Team or
Air Marshall Unit have been dashed on account of the constant pain and
discomfort he feels. The long policing career that he had envisaged is now in
doubt because he is not sure he can continue to manage the pain and maintain
the level of physical fitness required by the RCMP. Mr. Lee is also
worried he may not be able to be the husband and father he wants to be, on
account of the physical limitations his injuries have placed on him.

[45]        
In summary, Mr. Lee’s evidence portrays a young
man in the fall of 2004 with no physical ailments or limitations looking
forward to embarking upon a successful career in law enforcement with the RCMP.
However, since the accident of 14 September 2004, he has not enjoyed a day
where he has been pain-free. Furthermore, he has needed to take a significant
amount of non-prescription medication on a regular basis to manage his physical
discomfort and there is no foreseeable end to this need. He claims the pain
affected his performance at Depot and that he had to struggle and rely upon
supplementary coaching and assistance from his instructors to pass the CTP. Mr. Lee
says the pain relating to his injuries has not improved and maintains that the
residual effects of the 2004 accident continue to negatively impact his
personal and social life as well as his performance as a regular member of the
RCMP.

  Cross-Examination

[46]        
Mr. Lee was vigorously cross-examined by counsel for the defendants.
By “vigorous” I do not mean the questioning was improper or disrespectful of
the witness. I find the extensive cross-examination of Mr. Lee successfully
revealed a number of significant and illuminating facts that, but for their
disclosure, the court would have been left with an inaccurate impression and
understanding of Mr. Lee’s situation and condition.

[47]        
Mr. Lee was questioned about the contents of a typical day at Depot.
In doing so, the following passage from an RCMP recruiting document was put to Mr. Lee:

The onset of cadet training can
be overwhelming. In addition to the educational and skill aspects of the Cadet
Training Program, the physical demands of a typical training day can pose
difficulties to the unfit cadet. A training day may include marching on
parade at 6:15 a.m., “doubling” from class to class (double time marching; similar
to a jog), or sparring in Police Defence Tactics (PDT),
marching/running/performing push-ups in drill, running 6.5 km and climbing 9
flights of stairs – all before noon! This same troop will be expected to eat lunch
very quickly, perform in the noon parade and subsequently stay alert for a
classroom lecture and a firearms training session in the afternoon. Missing the
bus and having to run out to the firearms range, meeting an instructor to
practice the Physical Ability Requirement Evaluation (PARE) test after classes
and fitting in a weight workout after supper may further compound the activity
of the day.

[48]        
Mr. Lee agreed that this description of a typical day at Depot was
a minimum and that the training was often much more rigorous.

[49]        
Mr. Lee also acknowledged that during his time at Depot he had a
number of injuries that required medical attention.

[50]        
Mr. Lee confirmed that in early December 2004, he
slipped on black ice while “doubling” (marching at a quick pace) at Depot. He fell
backwards and struck his head on the ground. Mr. Lee denied that he hit the
ground hard or that he suffered any injuries from the fall. Notwithstanding
this denial of injuries, Mr. Lee agreed that he requested and obtained two days
of light duties and exemption from physical activities as a result of his fall.

[51]        
In early April 2005, while attempting to free himself
from a headlock during a ground fighting exercise, Mr. Lee sprained his
right ankle. The sprain was sufficiently serious that Mr. Lee requested
and was granted seven days of light duties followed by an additional ten-day
extension.

[52]        
Mr. Lee sought special dispensation from his RCMP trainers to
reduce his work load on account of these two incidents and he agreed that he
never sought such consideration on account of any residual pain or discomfort
he felt from any injury he suffered in the motor vehicle accident of September
2004.

[53]        
Cross-examination of Mr. Lee also provided further
important details of the motor vehicle accident that occurred on 31 May 2005.
Mr. Lee confirmed that he was the passenger in a police vehicle that was
proceeding eastbound on Parker Avenue in Burnaby. When the driver of Mr. Lee’s
police vehicle attempted to turn left onto Delta Avenue, the vehicle was struck
on the passenger side by an on-coming car proceeding westbound on Parker
Avenue. Mr. Lee disagreed with the suggestion that the amount of damage to
the police vehicle was more than $13,000. Mr. Lee instead insisted that
the amount of damage was closer to $9,000. Mr. Lee arrived at that figure based
upon the police accident investigation report, an RCMP document that Mr. Lee
was able to access but was not disclosed to the defence. Mr. Lee also
denied that he complained to Dr. Lee of any injuries resulting from this
accident or that he told her that his vehicle or the other vehicle had been
written off as a total loss.

[54]        
Mr. Lee agreed that shortly after his arrival at Depot he took on,
in addition to his regular cadet duties, the duties of the Administrative Right
Marker for his troop. He confirmed that these supplemental responsibilities
included organizing the daily plans for his troop, being aware of class changes
and organizing extracurricular troop practices and activities.

[55]        
When shown the following excerpt from an 11 February 2005 CTP
Progress Report relating to his training at Depot, Mr. Lee agreed that its
contents were accurate:

PERSONAL
EFFECTIVENESS/FLEXIBILITY

Cadet LEE is very serious about
his training in the Cadet Training Program. He has adapted well to the demands
placed on him by training. He is self generated, well organized and a team
player who concerns himself with the ability of the entire troop, not simply
himself. His assignments are always professionally done and on time. He
volunteered to march with his troop on Remembrance Day. He was instrumental in
the liaison with his little brother’s troop upon their arrival at Depot. Cadet
LEE recognizes and perseveres to achieve success in all areas of training.
He continues to complete more than the required fitness competencies to
improve his fitness level.

INTERPERSONAL
SKILLS/RELATIONS

Cadet LEE received a “Superior”
rating for his participation and delivery of a group presentation on Child
Abuse. He communicates well in his learning team and when called upon to
present information to the class as a whole. He is well thought of by his troop
mates and facilitators for his honest, straight forward approach to interaction
within the troop. He has been called upon to mitigate disputes between troop
mates, seeking alternative strategies for resolution. Cadet LEE exhibits
respect and compassion for all members of his troop.

MOTIVATION

Cadet LEE is extremely motivated
to successfully complete the Cadet Training Program. He committed extra time
and practise to minor deficiencies in Firearms Training and now performs at a
professional level. He has completed all extra IIM assignments given by
facilitators. He consistently works hard to perform at his maximum ability
regardless of the task assigned.

[56]        
Mr. Lee also confirmed the accuracy of his final progress report dated
22 April 2005, which included the following observations:

Cadet LEE commended training in
the CTP on November 1st, 2004 and has now successfully completed 24 weeks of
training. He has obtained at least a professional standing within all areas of
training.

LEADERSHIP

Cadet LEE continued to
demonstrate that he wishes to take on a leader role. He accepted the role of
the Administrative Right Marker for Troop 21 and fulfilled the duties as Right
Marker on occasion. This involves organizing the daily plans for the troop,
being aware of class changes, organizing extra curricular troop practises and
activities. He seeks out additional information from more senior troops to
assist the smooth functioning of his own troop. He is a positive role model who
provides constant emotional and motivational support to others.

PERSONAL
EFFECTIVENESS/FLEXIBILITY

Cadet LEE maintained a mature
and methodical approach to the Cadet Training Program. He is a self generated
team player who puts the needs of others ahead of his own. His assignments are
always professionally done and on time. Cadet LEE recognized and persevered to
achieve success in all areas of training. This was very evident in Firearms in
which early struggles resulted in a commitment by Cadet LEE to spend additional
time on that skill. The end result was earning his cross pistols and Cross
Rifles. He volunteered to do extra ground fighting to assist a fellow troop
mate complete his PDT requirement.

INTERPERSONAL
SKILLS/RELATIONS

Throughout training Cadet LEE
remained very interactive during classroom sessions, interacting sensitively
with others for the benefit of all. He communicates well in all types of
oratory. He is well thought of by his troop mates and facilitators for his
honest, straight forward approach. Cadet LEE exhibits respect and compassion
for all members of his troop, and has been called upon to facilitate
resolutions between same.

MOTIVATION

Cadet LEE was extremely motivated to successfully complete
the Cadet Training Program. His perseverance in the skill areas of FTU and PDU
demonstrated his commitment to performing at his optimum level. He continued to
complete more than the required fitness competencies and improved his fitness
level, shaving considerable time off his PARE.

Stan will
require normal supervision during the Cadet Field Training Program as he
continues to learn and develop his skills as a police officer. It is felt that
he will function independently at the conclusion of the CFTP.

[57]        
During the course of his cross-examination, Mr. Lee was questioned
at length on the extent of the physical activities he engaged in at Depot. In
particular, Mr. Lee was asked about the RCMP’s Physical Ability
Requirement Evaluation (“PARE”).

[58]        
The PARE is a job-related physical ability test which is designed to
simulate a critical incident where a police officer chases, controls and
apprehends a suspect. The test involves nine physical activities: walking,
pushing, pulling, carrying, lifting, vaulting, jumping, climbing and running. The
PARE is divided into three distinct sections: the obstacle course; the
push/pull station; and the torso bag carry. The first two sections must be
completed within a designated amount of time.

[59]        
One of the RCMP documents entered at trial was a public document
explaining the PARE. Mr. Lee agreed that the following portion of the
document accurately described the PARE:

  1.  Obstacle Course – Foot
Chase

The first
section of PARE consists of an obstacle run which the participant negotiates
six times. The course is laid out in the following manner (see diagram for
course layout).

5-ft mat
jump

From the start
marker, follow the arrow to the second marker, turn right and jump over the
5-foot mat. The participant is assigned a five second penalty each time s/he
touches any part of the mat.

Stairs

On landing, the
participant turns left around the next marker and proceeds towards the stairs.
The participant must run up and down the stairs, touching at least one step on
the way up, the top platform, and one step on the way down. The participant
then proceeds towards the next marker and runs back to the stairs going up and
down again.

18-in hurdles

Upon landing,
the participant then moves to the next marker, turns left, jumps over the 18‑inch
hurdles en route to the next marker. If the participant knocks over a hurdle,
s/he is assigned a two-second penalty.

Vault jump

The participant
then runs around the left side of the marker and turns right heading towards
the start marker. Before reaching the start marker, the participant must vault
over a 3-ft high railing. Participants must land in control on both feet on the
opposite side of the vault, then fall on either their stomach (stomach, chest,
hips on the ground) or back (both shoulder blades down on the ground),
alternating front or back on each lap. After each controlled fall the
participant must get up without assistance and proceed around the start marker
to complete the lap.

The participant
must complete six laps before starting the next section.

2.  Push/Pull
Section (physical control)

Upon finishing
the obstacle run, the participant moves immediately to the push/pull station,
which consists of a specific push/pull unit. The participant may perform this
activity in the order s/he chooses, push first and then pull, or vice versa.
Since the push is more difficult to perform, it is recommended to do this
activity first.

Push
Activity

Upon reaching
the push/pull unit, the participant grasps the handles and pushes the weight
(70 lbs for applicants or 80 lbs for members) off the base of the machine, then
moves right or left completing a 180^o arc. Six arcs must be
completed. If the participant allows the weight to touch the base, the
particular arc must be repeated.

Controlled
Palls

Once the push
activity is completed, the weight is lowered with control The participant then
moves away from the unit about 2 feet and performs a controlled fall on the
front executing a push-up like movement The participant then comes to a
standing ready position and executes a second fall, this time on the
back, shoulder blades on the ground A sit-up like manoeuvre is required to come
back up to the standing ready position This sequence, front and back falls, is
repeated until the participant has completed 2 front falls and 2 back fails.

Pull Activity

Once the
sequence of falls is completed, the participant grasps the rope and pulls so
the weight plates lift off the base of the machine and then moves right or left
Six arcs are completed without allowing the weight to touch the base If the
weight touches the base, that particular arc must be repeated.

3.  Torso Bag Carry (carry to safety)

The weight carry
section of PARE is a pass/fail activity, it is not timed The participant must
be able to pick up a weight (80 lbs for applicants or 100 lbs for members), and
carry it over a distance of 50 feet This activity should begin 1-2 minutes
after completion of the timed part of the test Participants failing the
weight-carry section fail PARE.

[60]        
An RCMP training DVD that visually depicts the various components of the
PARE was played in court during Mr. Lee’s cross-examination. The DVD
became an exhibit at trial. Mr. Lee agreed that the DVD illustrated the basic
nature of the constituent elements of the PARE.

[61]        
Given Mr. Lee’s description of the PARE and having seen the DVD, it
is abundantly clear to me that the PARE is a very rigorous and physically
demanding test. I also have no hesitancy in concluding that one must be in exceptionally
good physical condition to complete the evaluation within the allotted time.

[62]        
Mr. Lee confirmed that prior to the accident of September 2004, he
had practiced all of the components of the PARE, and that on the two occasions
he attempted to complete the entire evaluation he successfully did so in 3:45
seconds.

[63]        
Mr. Lee also confirmed that he successfully completed the PARE
during his first week at Depot and that he did so on two or three other
occasions prior to graduation. A document entitled “Personnel Interview Report
Data Update” dated 25 April 2005 and prepared by Sgt. D. N. Abel, Mr.
Lee’s Career Manager at Depot, was shown to Mr. Lee during
cross-examination. A copy of the document had apparently been sent to Mr. Lee
when he was in Depot; however, Mr. Lee could not confirm he received or saw it.
The document included the following observations regarding Mr. Lee:

He [Mr. Lee] continues to
complete more than the required fitness competencies and has completed all IIMs
assigned by the facilitators.

[64]        
Mr. Lee agreed with the accuracy of this statement; however, he
added that every cadet did more than the required fitness competencies.

[65]        
The same report indicates that Mr. Lee completed the PARE in 3:33
seconds. Mr. Lee maintained that he was never told by his instructors how
long it took him to complete the PARE, and insisted that all he knew is that he
passed the test. However, he noted that on account of the training and
techniques taught at Depot, it was easy for a candidate to reduce their
original PARE time by 15 seconds or so.

[66]        
Mr. Lee was questioned about the contents of various reports
authored by his superiors at the Burnaby RCMP detachment relating to his
development and progress as a police officer. Mr. Lee agreed that all of
his assessments were positive and often he was given a grade of “professional”
or “superior”.

[67]        
In October 2005, Mr. Lee successfully completed the “Field Coaching
Program”, and was consequently promoted to Constable, Level 2.

[68]        
Mr. Lee’s first year performance evaluation dated 15 July 2006, included
the following observations from his RCMP supervisor:

LEADERSHIP

Cst. LEE is a well respected
member of his Watch, and his inherent enthusiasm helps to energize those around
him to maintain a positive outlook themselves. Cst. LEE was sought out by the
Burnaby Detachment Drug Section as their choice for a Green Team secondment,
and by all accounts he quickly became a positive influence in his new role. It
is Cst. LEE’s leadership qualities and his drive for self-improvement that
enables him to achieve success in his various duties.

[69]        
In April 2007, Mr. Lee was promoted to Constable, Level 1.

[70]        
Mr. Lee confirmed that since beginning work at the Burnaby RCMP
detachment he has not had to have any of his duties modified because of his
injuries.

[71]        
In addition to eliciting important facts that have placed Mr. Lee’s
claim in a more fulsome context, counsel for the defendants was also able to
expose a number of contradictions and inconsistencies in Mr. Lee’s
evidence, of which I will address but a few.

[72]        
First, there is Mr. Lee’s estimate of the speed Ms. Jarvie’s
vehicle was travelling when it struck his vehicle. In his examination-in-chief,
Mr. Lee was asked whether he had any idea how fast Ms. Jarvie’s
vehicle was travelling when it struck his car. Mr. Lee’s response was:

My Lord, when I was looking in the
rear-view mirror, the individual inside the vehicle, SUV, was travelling at a
fast pace. At that time, with no experience in traffic, I do not know. Refreshing
back from with the experience I’ve gained as a member, as a police officer
doing traffic fatalities, as well as traffic accidents, the speed right now
that I can still remember in jogging my memory is they were going above 50
kilometres an hour on Como Lake Avenue.

[73]        
When Mr. Lee was asked by his counsel how he had used his memory
and skills to make the assessment of speed, Mr. Lee responded:

Usually, My Lord, it was – –
there was no signs of slowing down (sic). And there was no honk. And there was
no screeching of tires. That was my assessment at that time, that that vehicle
was travelling more than 50 kilometres an hour.

[74]        
During cross-examination, Mr. Lee was questioned with respect to
the answers he gave during his examination for discovery on 15 March 2007. More
particularly, at his examination for discovery Mr. Lee was asked and
answered the following questions:

Q:        Did you see this other vehicle that rear-ended
you at any time before the impact?

A:         Yes, I did.

Q:        What did you see?  What did you observe?

A:         I observed a person talking on the phone and
continually
drive (sic).

Q:        Any idea of the speed of that vehicle?

A:         No.

Q:        It’s hard to judge in a rear-view mirror.

A:         I know.

[75]        
When, during the course of the cross-examination, it was suggested to
him that he did not know how fast Ms. Jarvie’s vehicle was going, Mr. Lee
responded:

My Lord, I thought that I wasn’t
able to use my experience after the accident. That’s why I answered, no, I
don’t know the speed based on that I wasn’t a police officer from September 13th
till now. So with the knowledge of what I had after the accident and no knowledge
of the police experience, I don’t know the speed. With the experience, what
I’ve obtained as a police officer from – – from April 25th, 2005, until now, I
can use my experience as a police officer. But no, I do not know the speed at
that time.

[76]        
The second area of contradictory evidence from Mr. Lee relates to
the PARE exam he completed at Depot and the importance of successfully finishing
the test in the time allotted. In cross-examination, counsel for the defendants
suggested to Mr. Lee that a cadet at Depot must complete the PARE in less
than four minutes. Mr. Lee responded that this was “not entirely
correct” and added:

If the time frame is about five
or 10 seconds above four minutes, they will not preclude that individual from
passing the whole graduation process.

[77]        
This response conflicted with the following evidence Mr. Lee gave
at his examination for discovery:

Q:        And I think the four minutes is required for
members applying for specialized duties and cadets?

A:         No, a
member who wants to become a Mountie, you have to do it under four minutes.

…

Q:        Okay. So you would have – you would have had a
time less than or equal to four minutes before you graduated?

A:         That’s correct.

Q:        Okay.

A:         Nothing over. So
nothing over 0:04:01. 0:04:01 means you fail. Four minutes and – 0:03:59 means
you pass.

[78]        
The third area of inconsistency in Mr. Lee’s evidence relates to
the amount of medication he claims to need to manage the pain associated with his
motor vehicle accident injuries. In his examination-in-chief, Mr. Lee
claimed he takes four to six ibuprofen pills whenever he is working a day shift
to manage the headaches and pain he feels in his neck, shoulders and back and
more if he is working night shift. The amount of medication he needs to take
has changed over time, depending upon the nature of the particular work he is
doing; however, in general there has not been a significant change. The
following portion of Mr. Lee’s evidence on cross-examination has left me with
some doubt as to the reliability of his claim regarding the amount of
medication he needs to manage his pain:

Q:        During your direct
examination you gave evidence about the frequency to which you take medications
such as Advil.

A:         Yes.

Q:        And I’m suggesting to you
that after your graduation from Depot in April 2005, up to at least the time of
your examination for discovery, on March 15, 2007, you had not taken any Advil
or Tylenol for problems related to the accident.

A:         Not true.

Q:        I’m going to ask you again to
turn to page 49 of your discovery transcript, please. And we’ll start at page
— sorry, page 49,   question 324:

Q:        Have
you taken any drugs or medication since the accident?

A:         No.

Q:        What
about even just Advils or Tylenols?

A:         Oh,
Advils and Tylenols, yes.

Q:        Okay.
When is the last time you’ve taken a medication like Advil or Tylenol?

A:         Oh,
I think it’s because I had a cold in December, so …

Q:        Okay.
I meant for — for reasons related to any problems for the accident?

A:         I
don’t recall.

Q:        Okay.

A:         I
would have to say my last time for  — specifically because of the accident is during
my — is during training my back would — my back was hurting a lot, causes a lot
of tension in my neck, I would take an Advil before I go to bed.

Q:        Is
this when you’re in Depot?

A:         Yes.

 So at your examination for
discovery you were asked those questions?

A:         Yes.

Q:        And you gave those answers?

A:         Yes.

Q:        And those answers were true?

A:         Yes. But I still take Advils
and Tylenols whenever I have problems with my back or neck.

Q:        And you didn’t take any medications
relating to headaches after the accident?

A:         Not true.

Q:        And this will be
question 229. I’ll be covering pages 34 to 35. Question 229:

Q:        Okay.
And when did you first experience a headache after the accident?

A:         I
think when I was lying on the medical doctor’s bed at Eagle Ridge I felt really
— like it was like — I just remember it was just like a sharp pain in my neck
that causes a lot — lot of pain in my head. But that doctor said it’s normal,
so I don’t know, after an accident. Since then I had continuous headaches.

Q:        How
often do you have headaches?

A:         At
least once a day.

Q:        Do
you take anything for them?

A:         No, I don’t like pills.

 Actually, I’ll just stop
there. So at your examination for discovery, were you asked those questions?

A:         Yes.

Q:        And did you give those
answers?

A:         Yes.

Q:        And were those answers true?

A:         Yes.
And, My Lordship, I thought it meant any specific pills for the headache. I
still did take Advils and Tylenol.

[79]        
I am also satisfied that Mr. Lee gave widely varying reports about his use
of medications to others. Specifically, Mr. Lee told:

·       his
physiatrist in 2005 and again in 2007 that he was taking no medication;

·       an
occupational therapist that he was taking approximately two ibuprofen per week,
as needed;

·       another
occupational therapist that he was taking the occasional Advil; and

·       the
defendants’ consulting orthopaedic surgeon he was taking “medication
infrequently”.

[80]        
I note in passing that Mr. Lee also told one of his occupational
therapists that while he was at Depot he needed to take one or two capsules of
Advil during the day and every night. This evidence contradicts Mr. Lee’s
evidence that he needed to take six to eight pills per day during his time at
Depot.

[81]        
While I am hesitant to find Mr. Lee fabricated his evidence on this
point, I do find him to be an unreliable and inaccurate historian with respect
to the amount and frequency of medication he has been taking.

[82]        
The fourth area of Mr. Lee’s evidence that the defence attacks
relates to his involvement in physical altercations while on duty as a police
officer. In cross-examination, Mr. Lee was asked and answered the
following questions:

Q:        And as a police officer service, you’re often
involved in physical confrontations or altercations with people?

A:         Yes, My Lord.

Q:        And how often would those have occurred while
on your job?

A:         Depends. In the course of my career right
now, My Lord, I only had I think just one so far, physical confrontation, My
Lord.

Q:        Would you not have been involved in several
physical confrontations?

A:         My Lord, I just
answered one so far in the course of my career.

[83]        
After this series of questions and answers, the following extracts from Mr. Lee’s
examination for discovery were put to him:

Q:        Okay. Do you have any restriction in mobility
of your arms because of your shoulder?

A:         Restrictions with my arm because of my
effects on my shoulder (sic)?

Q:        Yes.

A:         Right now I can say no, but sometimes when
I’m at work when I’m dealing with an uncooperative, resistant, or combative
individual, yes.

Q:        What happens then?

A:         That’s when the fight is on. The – – I would
have to use a lot more of my muscles, more specifically my upper body mass. And
when that person is fighting with me it causes a lot – – a lot of pain with my
shoulders and my neck and my trapezoid muscles.

Q:        These physical altercations, how often would
they occur on the job?

A:         Oh, gosh, I
don’t know. It just depends. Sometimes never.

…

Q:        So it’s coming up to your two-year
anniversary?

A:         Yes.

Q:        Do you have any idea approximately how many
physical altercations you have been involved in since being at Burnaby detachment?

A:         Unable to count.

Q:        Is it several?

A:         Several. You can
use the word several.

[84]        
Mr. Lee agreed that he had given these answers at his examination
for discovery and that they were truthful. He further explained at trial:

My Lord, when I said one
altercation, it’s actually the one altercation I had with one individual. My
colleagues are my family and they are my – – soul, my foundation in my career. If
one person asks for assistance, he assists. But by the time we get there, the
fight with the colleague is over. So I’m basically assisting them. I count that
as several because we deal with that every day. The question Mr. Urquhart
has requested me to answer was based on am I –had I ever had an
altercation? Yes, I had. How many? One time, a real fight, My Lord.

[85]        
Mr. Lee was questioned about the cause of his reduction in social
activities. He asserted in his evidence-in-chief that the cause of him no
longer playing recreational sports and engaging in other social activities such
as dancing was his injuries. However in cross-examination, he acknowledged that
the reduction was not only because of the injuries, it was also because of his
busy work schedule. The following is the relevant portion of Mr. Lee’s
cross-examination:

Q:        And as well, up to the time of your
examination for discovery of March 15, 2007, your social activities
have not been directly affected because of your injuries from the accident; is that
correct?

A:         You mean social activities like my
entertainment outside of work?

Q:        Yes.

A:         Has it affected me? Yes, it has.

Q:        But it wasn’t — it was not your
injuries that affected your social activities, it was your tight schedule that
affected your social activities up to that time?

A:         It’s all factors, My Lordship, it’s the
scheduling of my work. At the same time, on my days off I’m no longer
the same individual before the accident. The injuries I sustained, I need these
days off to recover. So because of that, I stay home and do my — I just rest
and go to do my sessions with my workout just to relieve the pain.

Q:        Okay. If we can again go to your examination
for discovery, please, transcript page 43. And I want to go from page 43 to 44,
and I’m going to start at question 286:

Q:        Okay. In the Statement
of Claim paragraph 12 it’s alleged that your social activities have been
affected by the accident; is that the case?

A:         Social activities.

Q:        Yes.

A:         Can you define
social activities?

Q:        I was hoping you
could because your counsel said that in your Statement of Claim.

MR. ELGEE:  It’s a —  again,
a standard terminology in the Statement of Claim.

MR. URQUHART:  I think the
words maybe just speak for themselves.

Q:        I take it you’re socially
Involved, friendships and —

A:         Okay. So you’re
saying entertainment-wise, friendships. Okay. So you defined that.

Q:        Well, yeah, I’m
relying — because it’s your lawyers that have said your social activities —
have used those words — have been affected.

A:         Okay.

Q:        Yeah.

A:         So after the
accident has my social activities affected (sic)?

Q:        Yes.

A:         Yes.

Q:        How so?

A:         Well, because of
the disability of things I wasn’t able to do much with my friends or family. I
was very — my family’s very important to me, and I wasn’t able to engage in
any family functions. Or my volunteers who volunteer with me at the detachment weren’t
able to do our usual functions, like going to volunteer at the detachment and continuing
with your friendship and — or going to any entertainment such as a —
go out and have a drink with a friend, unable to do that.

Q:        Okay. And are you
able to do all your social   activities now?

A:         Not as much, no.

Q:        And why not?

A:         Due to tight
schedules.

Q:        It’s not because of
injuries from the accident; it’s just because you’re busy now?

A:         It’s busy now, yes.

 So at your examination for discovery were
you asked those questions?

A:         Yes.

Q:        And you gave those answers?

A:         Yes.

Q:        And those answers were true?

A:         Yes. But, My
Lordship, it says it’s busy now. I’m busy now, during that timeframe in my
schedule, on the day of the discovery.

[86]        
In great measure I agree with the submission of the
defence that Mr. Lee’s evidence shifted during the course of his testimony
and at times contradicted what he had said previously at his examination for
discovery. On occasion I also found myself simply disbelieving Mr. Lee. An
example of this is what Mr. Lee had to say about the speed of Ms. Jarvie’s
vehicle prior to the collision. As I understand his evidence, Mr. Lee had
no idea of the speed of Ms. Jarvie’s vehicle on the day of the accident,
but four and one-half years later he could, given he is now a police officer
with some undefined and unexplained experience in traffic accidents and traffic
fatalities, “refresh” his memory by means of this police experience, recreate
the few seconds where he looked into his rear-view mirror and saw Ms. Jarvie’s
vehicle approaching and provide what he maintained was an accurate estimate of
the speed of her vehicle. This testimony stretches the boundaries of belief
beyond their limits. I also found Mr. Lee’s evidence contradictory
regarding what he said and who he told at Depot about his physical injuries. At
one point in his evidence Mr. Lee stated he told no one at Depot about
those injuries because he was afraid that disclosing them could result in him
being held-back for additional training or possibly expelled from the CTP. At
another point in his testimony Mr. Lee stated that he told his principal
counselor and his troop’s main facilitator about the pain he was suffering and
the difficulties they were causing him.

[87]        
In general, I found Mr. Lee to be less than forthright during his
evidence and on more than one occasion I found him to be deliberately evasive
in answering the question asked of him. The following portion of Mr. Lee’s cross-examination
about the fall he had at Depot while he was doubling is one example of what, in
my opinion, was Mr. Lee’s evasiveness :

Q:        The next entry, December 6th, 2004 says "09:50",
I take it that must be the time, 9:50 a.m.:

 While doubling fell hard on back of head on black
ice in Buffalo detachment area. Small haematoma occipital area. Very
superficial lacerations.

 End of quote. Now, does that describe what happened
to you on or about December 6, 2004?

A:         I do agree that I was doubling, which is
jogging, towards a section while on base, My Lord, and I do agree that I was
next to Buffalo detachment, and I hurt myself. But I do not agree that I fell
on my head, sir, or anything like that, My Lord.

Q:        So you’re not agreeing that you fell hard on
the back of your head?

A:         No, My Lord.

Q:        So you’re denying telling this nurse or
whoever at the RCMP clinic on December 6th, 2004 that you fell hard on the back
of your head on black ice; is that correct?

A:         My Lord, again, I don’t want to put words
into other person’s opinions. I’m not denying, but I do remember hurting myself.
I slipped, I first landed on my hands and then I went through my buttocks, and
then my head did have a superficial cut. It states here "superficial
cut" and I remember that.

THE COURT:  Okay. I think, Mr. Lee, that the question is
do you deny telling the nurse or the doctor –

A:         No, I do not deny that.

THE COURT:  I think it will be Important that I
just finish this, and Mr. Urquhart, if I mis-frame your question, you’ll let
— you’ll let the court know.

MR. URQUHART:       Yes, My Lord.

THE COURT:  The question, Mr. Lee, is do you deny telling
the nurse on this date, December 6th, that while doubling you fell hard on the
back of your head on black ice in Buffalo detachment?

A:         I do not deny that I hurt myself, My Lord.

MR. URQUHART:

Q:        But in terms of the mechanics of how you fell,
do you deny falling hard on the back of your head on the black ice?

A:         Yes, My Lord. I don’t recall falling that
hard on — on the black ice.

Q:        Do you deny falling on the back of your head
on black ice?

A:         I’m sorry, can you repeat the question?

Q:        I’ve taken the word "hard" out. Do
you accept the description that you fell on the back of your head on black ice?

A:         I accept that, yes.

Q:        So then you were able to withstand a fall on
the back of your head on ice and not aggravate your mid-back and upper back
injuries?

A:         Can you repeat the question, please?

Q:        Okay. You were able to withstand a fall on the
ice on the back of your head and not aggravate your mid-back and upper back
injuries from the accident?

A:         That’s correct. My Lord, can I explain?

THE COURT:  Yes.

A:         My Lord, again,
this document is written by a doctor or nurse, not from me. Did I attend on December
6th, 2004 at 09:50?  Possibly, I do not recall the exact date and time. I do
recall the injury. I did went to a doctor that day. But as for the ice part, I
think it’s misunderstood, our communication with the nurse and myself. But there
was a lot of snow there, too, as well. So there was a factor I did not injure
myself. Hands first, buttocks, and then I landed. Was the reason why there’s
the black ice that I fell?  Possibly, I do not know. I’m not a mechanic or I’m
not an engineer, My lord. But I do recall landing in soft — soft snow and then
landing on — on –just landing on my hands, buttocks and then the head,
receiving a superficial cut.

[88]        
Another example of what I view as Mr. Lee being less than candid in
his evidence relates to a holiday he took to Costa Rica in 2007. The following
portion of Mr. Lee’s cross-examination illustrates the point:

Q:        So as of March 12, 2007 you had in the
planning stages a trip to the Dominican Republic?

A:         Yes.

Q:        And when did you eventually go on that trip?

A:         I believe May of 2007.

Q:        Now, I just want to have you now look at your
examination for discovery transcript, please, at page 45. And I’m going to ask
you to turn to page 45, and I want to remind you that this discovery was
conducted on March 15, 2007.

A:         Yes.

Q:        Three days after that notation made by Sue
Bates, Registered Nurse, that you acknowledged that you had planned a trip to
the Dominican Republic. Do you follow me there?

A:         Yes, we were thinking about it, yes.

Q:        Let’s start with question 300, please:

Q:        Have you been on any
holidays or trips since the accident?

A:         No.

Q:        Okay. Unless Depot
is a holiday. I guess it’s not.

A:         That’s not a
holiday. It’s more of a depression area.

Q:        Okay. And the reason
why you’ve not taken many holidays or trips, is that due to the accident
injuries?

A:         It’s A, I don’t
think I’m ready to go on a vacation, and B, is because you know it’s personal
reasons. I’m just not taking vacation yet.

 End of quote. Now, at your examination for discovery you were asked those questions?

A:         Yes.

Q:        And you gave those answers?

A:         Yes.

Q:        And those answers were true?

A:         Yes.

Q:        And yet you did have planned, just three days
before that discovery, a trip to the Dominican Republic that you took in May
2007?

A:         Yes, it was, My
Lordship. It wasn’t that I have already attended Dominican Republic. We were
thinking about attending Dominican Republic, and I know that at the travel
clinic is sometimes a waiting list and I wanted to do some research on what
kind of vaccination that I need in order to go one day to the Dominican
Republic. So that is why maybe I contacted Health Services of RCMP and see if
they covered the cost of going to a travel clinic, because it’s not covered by
B.C. Medical and I want to make sure that the – how much it will cost and what
would be covered under my plan with Blue Cross or with the help of the health
benefit with RCMP. That is the reason why.

[89]        
It was only on account of detailed and probing cross-examination that a
number of important and salient facts relating to Mr. Lee’s claim were
disclosed or clarified. These details placed Mr. Lee’s claim in a markedly
different light to the one based solely on what he said in his examination-in-chief.
This, in conjunction with the inconsistencies or contradictions that were
exposed in Mr. Lee’s evidence, compels me to approach his evidence with
caution and scepticism. In general, I am not satisfied with Mr. Lee’s evidence.
Unless I have indicated otherwise in these reasons, where there is a conflict
between Mr. Lee’s evidence and that of another witness, I have given
greater weight to the evidence of the other witness.

 Claudia Moreno

[90]        
Ms. Moreno met Mr. Lee in November 2005 and in March 2006 they
began dating. When the trial of this matter began in November 2008, the couple
were engaged to be married and that event took place in July 2009.

[91]        
Ms. Moreno testified that since she and Mr. Lee became a
couple, she has often had to give him massages, concentrating on his head,
back, shoulders and neck.

[92]        
Ms. Moreno noted that Mr. Lee takes ibuprofen
on a daily basis and that his pain symptoms seem not to have to have improved
over time. She was, however, not able to say how many pills Mr. Lee
consumes on a daily basis.

[93]        
 Ms. Moreno described how Mr. Lee’s inability
to play with her four-year old son has caused stress on their relationship and
how she is worried about his ability to care for their family. According to Ms. Moreno,
Mr. Lee helps around the house by doing such chores as putting away dishes
and making lunches, but that she has to do most of the cleaning because he
wants to rest all of the time.

 Eliza Lee

[94]        
Ms. Lee is Mr. Lee’s older sister. She testified that she and
her brother have a close sibling relationship. In the fall of 2004, Ms. Lee
would see her brother perhaps once per month at family dinners.

[95]        
Ms. Lee explained how, prior to her brother’s September 2004 motor
vehicle accident, he was a fit, confident and socially engaging young man.
According to Ms. Lee all of that changed after the accident and practically
overnight Mr. Lee became “an old man”. Ms. Lee described how Mr. Lee
appeared haggard and had become stressed about attending Depot and how his
posture took on a pronounced slouch. In her view, Mr. Lee had become a
very serious and withdrawn individual.

[96]        
Ms. Lee attributed all of the changes in her
brother’s appearance and attitude solely to the September 2004 motor vehicle
accident.

  Lai Ting Lee

[97]        
Mrs. Lee is Mr. Lee’s mother. Mrs. Lee and her husband
immigrated to Canada from Hong Kong in 1968.

[98]        
Mrs. Lee testified that her husband had been a
member of the Hong Kong Police for five years prior to their immigration to
Canada.

[99]        
After Mr. Lee’s motor vehicle accident in September 2004 and in the days
leading up to his departure for Depot in November, Mrs. Lee observed her son to
always be in pain. This conclusion was based on his facial expressions and his
requests for massages. Mr. Lee did not live with his mother at this point and
the evidence of Mrs. Lee is unclear on how often she saw her son during this
time period.

[100]     Mrs. Lee
did see her son when he returned home during a holiday leave from Depot in
December 2004. She also saw him when she and her husband travelled to Regina to
witness their son’s graduation from Depot in April 2005.

[101]     Mrs. Lee
testified that she knew her son was always in pain and that he would try to
hide that fact from her and his terminally ill father because he wanted to
spare them the worry.

[102]     I find Mrs. Lee’s
evidence is based primarily on speculation and supposition. While it is perhaps
understandable that Mrs. Lee might think her son would try to shield his pain
from them, from an evidentiary point of view such testimony is of little value
and I find it is indicative of her trying to assist her son’s claim. In general
I found Mrs. Lee’s evidence of little assistance in trying this case.

  Scott Pennykid

[103]     Mr. Pennykid
has been a friend of Mr. Lee’s for over eight years. They met at Simon
Fraser University and would often attend the gym together, go to movies or go
running together.

[104]     Mr. Pennykid
testified that Mr. Lee was very fit in the days preceding the September
2004 motor vehicle accident. The two of them attended the gym regularly where
they would both complete a total body workout.

[105]     Since Mr. Lee’s
motor vehicle accident in September 2004, Mr. Pennykid has noticed that
his friend is not as easy-going and is more melancholy. They have not gone to
the gym or gone running together since the accident; however they have
participated in some recreational activities and have gone to movies.

 Chris Larsen

[106]     Mr. Larsen
has been a member of the RCMP for approximately eight years and is presently
stationed in Surrey, British Columbia, with the Major Crime Section.

[107]     Mr. Larsen
worked on a daily basis with Mr. Lee at the Burnaby RCMP’s NLU from April
2006 to April 2008.

[108]     Mr. Larsen
described the RCMP’s uniform, including the general issue ballistics vest and
utility belt. Although he had never actually weighed the items, he estimated
they weighed in total approximately 10 – 12 pounds. Mr. Larsen explained
that at the outset of his shift work, he would not find the items heavy;
however at the end of the shift it was a relief to take them off.

[109]     Mr. Larsen
did not recall ever seeing or thinking Mr. Lee was suffering from physical
pain or discomfort and he always felt Mr. Lee was capable of performing
his duties. He described Mr. Lee as a quiet person who kept things to
himself.

[110]     Mr. Larsen
explained that during his two years on the NLU with Mr. Lee, they were
involved in numerous incidents of high speed driving, as well as physical
altercations and foot chases. All of these activities were physically demanding
and stressful.

[111]     It is
noteworthy that Mr. Larsen never had any concerns about Mr. Lee’s
physical ability to perform his duties. In fact, Mr. Larsen acknowledged
that if he thought Mr. Lee had any physical limitations he would have been
concerned. Moreover, Mr. Larsen never observed anything that suggested Mr. Lee
was suffering from any pain or discomfort during the high speed driving,
physical altercations or foot chases that he and Mr. Larsen were involved in.

[112]     In Mr.
Larsen’s view, paid overtime was generally available with the Burnaby RCMP for those
members who wanted it. However, Mr. Larsen possessed no data or records to accurately
quantify the amount of overtime available.

[113]     Mr. Larsen
provided a general description of what he believed the salary scale was for RCMP
members. This information was derived from knowing his own salary and from
conversations he had had with other officers. Mr. Larsen admitted he had no
records confirming the RCMP’s official pay scale. Moreover he agreed there had
been recent changes to the scale and that he was not certain of the exact salary
figures per rank.

[114]     Finally, Mr. Larsen
described his understanding of the RCMP’s pension plan. In doing so he again
acknowledged that his information came from casual conversations with work
colleagues and that he had not confirmed his understanding of the plan with
anyone in a managerial position.

[115]     Although I
found Mr. Larsen’s evidence about his dealings with and observations of Mr. Lee
to be credible and reliable, he was in no position and had no fact-based
ability to opine on the overtime opportunities for RCMP members in Burnaby, the
various pay scales within the RCMP and the pension plan for RCMP members. These
portions of Mr. Larsen’s evidence were to a large extent based on what colleagues
had told him and therefore of no assistance to the court.

Expert Opinions – Medical

 Dr. Angela
Lee

[116]     Dr. Lee
is a general physician with a specialty in family medicine. Dr. Lee has been Mr. Lee’s
family doctor since 1983.

[117]     Dr. Lee
testified and gave expert opinion evidence in the area of diagnosis, prognosis
and treatment of soft tissue injuries. She also authored an expert medical-legal
report dated 6 November 2005 that was entered into evidence.

[118]     Dr. Lee
saw Mr. Lee in her office on 14 September 2004. At the time, she recorded
in her clinical notes that Mr. Lee complained of pain in his neck,
shoulder, back and right knee. Upon examining Mr. Lee, Dr. Lee
observed spasms along his bilateral trapezius muscles and a decreased range of
motion in his neck. Dr. Lee diagnosed soft tissue injuries and requested
that Mr. Lee continue taking analgesic medication as needed. She also
suggested a trial of massage therapy.

[119]    
Dr. Lee’s written medical-legal report references the fact that she
saw Mr. Lee on 17, 20 and 27 September 2004, 4 and 19 October 2004, 5 May
2005 and 13 October 2005. The following paragraphs from Dr. Lee’s report
reflect her observations and conclusions as of 6 November 2005 relating to Mr. Lee’s
physical condition:

When I reassessed the patient, he complained of persistent
neck and back pain. He still demonstrated spasm along the trapezius muscles. Therefore,
he was asked to begin rehabilitation with a kinesiologist for muscle
strengthening and conditioning. The patient returned to work with modified
duties.

The rehabilitation with the kinesiologist proved beneficial
for the patient. Unfortunately, when I saw him in May 2005, he complained of
exacerbation of his neck and back discomfort, mainly affecting his mid back. There
was pain with palpation along the lower trapezii and rhomboid muscles.
Mr. Lee complained that the pain was worse with every physical activity. At
this point, Mr. Lee was working as a police officer in the RCMP. His work
can be quite physical, therefore he was asked to attend further massage therapy
as needed.

Mr. Lee’s symptoms and injuries are a direct consequence
of the accident in which he was involved on September 13, 2004. He was unable
to perform activities that required pushing, pulling, lifting and bending. He
was able, fortunately, to return to work with modified duties in customer
service. Eventually, by the middle of October 2004, Mr. Lee returned to
full duties.

…

When I assessed the patient, he stated that he is at
approximately seventy-five to eighty percent of his previous physical activity
level. He still continues to have mid back pain that would radiate into his
neck …

…

Mr. Lee still remains
partially disabled and has not returned to his previous state of physical
health prior to the accident. He can do his regular work as an officer, but with
resulting discomfort. He will be unable, however, to work in a job that
requires constant heavy lifting, pushing, pulling or bending in a fixed
position for prolonged periods … Fortunately, Mr. Lee has no significant
medical illnesses and because of his excellent state of health prior to the
accident, I am confident he will continue to improve.

[120]    
In 2007, Dr. Lee referred Mr. Lee for exercise therapy with his
kinesiologist because he was again complaining of pain and discomfort in his
back.

[121]    
I found Dr. Lee’s evidence of some assistance in determining what Mr. Lee
told her during his appointments with her; however, aside from that, I found a
number of aspects of her medical-legal opinion troubling. While Dr. Lee
makes reference to the follow-up appointments she had with Mr. Lee,
nowhere in her report does she record what Mr. Lee told her or what her
observations of him were. These important facts were only disclosed on
cross-examination and only when her attention was drawn to her clinical records
for those dates. In particular, Dr. Lee omitted to include in her report
the following observations that were recorded in her clinical records:

·      
On 27 September 2004, Dr. Lee observed that Mr. Lee’s
neck was “better”. With a casualness that was disconcerting, Dr. Lee
explained her decision to leave this observation out of her report by claiming
she could not foresee what information the court would need to know and that if
a lawyer had any questions regarding her report she could always prepare an
addendum.

·      
On 4 October 2004, Dr. Lee observed that Mr. Lee
continued to feel pain on palpation but was improving and exercising very well.

·      
On 19 October 2004, Mr. Lee told Dr. Lee that he “feels
better”, is “not disabled anymore”, and is “able to go train with RCMP.”
Dr. Lee also observed that Mr. Lee had full range of movement in his
upper and mid back.

·       On
2 June 2005, Mr. Lee attended Dr. Lee’s office on account of a motor
vehicle accident he had on 31 May 2005. Dr. Lee recorded that Mr. Lee complained
of injuries from that accident that were similar to those of the 2004 accident,
more particularly headaches and sore bilateral shoulders. Mr. Lee also
described how the force of the collision resulted in the other vehicle being
“totalled”.

[122]    
Dr. Lee also omitted to reference in her report that on 19 October
2004, she prepared a medical note for Mr. Lee indicating the following
opinion:

Dear Sir / Madam, Mr. Lee
is physically fit to undergo the RCMP training program. He is healthy. There
are no contraindications. Thank you.

[123]     It is disturbing
that Dr. Lee would provide this medical opinion to the RCMP yet would make
no reference to it in her medical-legal report for the court.

[124]     Mr. Lee
denies telling Dr. Lee that he was injured in the May 2005 accident. Dr.
Lee has a record that clearly conflicts with Mr. Lee’s evidence. I do not doubt
the accuracy of Dr. Lee’s records and therefore reject Mr. Lee’s evidence
on this point.

[125]     In summary,
I accept that Dr. Lee’s clinical notes correctly reflect the observations she
made of Mr. Lee at their various appointments and accurately record what Mr.
Lee reported to her concerning his situation and condition. Aside from this, I
reject the balance of Dr. Lee’s evidence and specifically her conclusions about
the cause of Mr. Lee’s physical symptoms.

[126]     In general,
Dr. Lee’s testimony left me with the impression that she was more of an
advocate for Mr. Lee than an impartial medical expert witness. Dr. Lee
testified that she purposely omitted from her report some of the important
facts and information that were elicited from her during cross-examination
because she thought they were irrelevant. It is incomprehensible how a doctor
who authors a medical-legal report proffering an opinion relating to the
injuries a patient has allegedly suffered in a motor vehicle accident would not
make at least a passing reference to the fact that the patient had been in a
subsequent motor vehicle accident and had made complaints of injuries resulting
from that second accident. In my opinion, this serious omission is fatal to
Dr. Lee’s opinion evidence.

  Dr. Petar
Kokan

[127]     Dr. Kokan
is a semi-retired general physician with a specialty in orthopaedic surgery. At
Mr. Lee’s request, Dr. Kokan prepared a medical-legal report dated 20 June
2008, and gave expert opinion evidence in the general area of orthopaedics, the
diagnosis and prognosis of musculoskeletal injuries and the ability of someone
who has suffered such injuries to remain in a given occupation.

[128]     Dr. Kokan
examined Mr. Lee during a 60-minute interview on 20 June 2008. By
this time, Mr. Lee had been an active member of the RCMP for approximately three
and one-quarter years.

[129]     In
preparing his medical-legal report, Dr. Kokan relied upon the information Mr. Lee
provided him about the September 2004 motor vehicle accident and his history of
the pain and discomfort. Dr. Kohan also reviewed and considered a number
of documents prior to completing his report. Those documents included the November
2006 medical-legal report from Dr. Lee, her clinical records regarding Mr. Lee
from 14 September 2004 to 5 May 2005 and three medical-legal
reports from a physiatrist, Dr. Cecil Hershler. Dr. Kokan also reviewed a
January 2007 Functional Capacity Evaluation (“FCE”) of Mr. Lee authored by Gary
Worthington-White and a report from Mr. Lee’s kinesiologist dated 27 September 2004.

[130]    
During his interview with Mr. Lee, Dr. Kokan recorded that Mr. Lee
complained of pain in his mid-upper back and neck that could spread into his
neck and shoulders giving him headaches. Mr. Lee provided Dr. Kokan with a
detailed personal medical history, including a description of the
September 2004 motor vehicle accident. Mr. Lee also told Dr. Kokan about
his time at Depot and the struggle he had to complete the CTP. Under the
heading “Past History”, Dr. Kokan notes:

He [Mr. Lee] told me he was
always in good health. He was never involved in a car accident before, had no
work or sports related injuries.

[131]     From the
materials he reviewed and his examination of Mr. Lee, Dr. Kokan concluded that
Mr. Lee suffered a Grade 2 sprain of the cervical, dorsal and lumbar spines, as
well as a sprain of the temporomandibular joint. Although he acknowledged
during his testimony that he was not a neurologist, Dr. Kokan offered the
opinion that Mr. Lee may have possibly suffered a mild brain concussion.

[132]     Dr. Kokan
found that Mr. Lee suffered from “residual chronic myofascial pain in the neck,
upper and mid back.” Mr. Lee also suffered from a “residual disorder of the
temporomandibular joint.” Dr. Kokan attributed all of Mr. Lee’s ailments to the
September 2004 motor vehicle accident.

[133]     Dr. Kokan
provided two specific opinions: one relating to the cause of Mr. Lee’s
pain, and another on Mr. Lee’s ability to remain in his chosen profession.

[134]    
With respect to the cause of Mr. Lee’s complaints of chronic pain, Dr. Kokan
concluded:

The current chronic neck and
back pain is solely a result of that car accident [13 September 2004]. There is
no documented history of pre-existing muscle-skeletal problems. The current
symptoms he is complaining of can be traced back to the accident in question.

[135]     During the
course of the cross-examination of Dr. Kokan, it became patently clear that he
was only given a portion of Mr. Lee’s medical history. For reasons that remain
unknown, the clinical records of Dr. Lee that were given to Dr. Kokan
ended with her notes of Mr. Lee’s 5 May 2005 appointment. Had the records of
Mr. Lee’s next visit to Dr. Lee on 2 June 2005 been included in the materials
sent to Dr. Kokan, he would have noticed that Mr. Lee had been in a second
motor vehicle accident in May 2005 with resulting complaints similar to those
from the September 2004 accident. Dr. Kokan confirmed that Mr. Lee made no reference
of this 2005 accident during their meeting and I can only conclude that the
reason Dr. Kokan was kept in the dark with respect to this important fact
was because Mr. Lee did not want it to unfavourably influence Dr. Kokan’s
medical opinion.

[136]     The
strength of Dr. Kokan’s medical opinion also suffers from the fact that he was
not aware that Mr. Lee had fallen and struck his head at Depot within the first
month of his arrival in November 2004, and had suffered another injury trying
to free himself from a headlock during a martial arts exercise.

[137]     Dr. Kokan
agreed in cross-examination that all of these missing facts were important and he
would have liked to have known of them prior to providing his medical opinion. Dr. Kokan
agreed that had he known of these facts in advance, he might have formulated a different
opinion and come to different conclusions.

[138]     Dr. Kokan
also agreed that Mr. Lee’s back pain may have been caused by the fact that he
was now working as a police officer and in doing so he wore a uniform that
included body armour, a sidearm and a utility belt.

[139]     I find
that much like Dr. Lee’s evidence regarding the origins of Mr. Lee’s
pains, I cannot rely on Dr. Kokan’s medical opinion. The fact that Dr. Kokan
formulated his medical opinion based upon a seriously incomplete medical
history of Mr. Lee is fatal to the opinion and renders it of little value.

[140]    
Dr. Kokan’s expert opinion on Mr. Lee’s ability to remain with the RCMP
and to advance through the ranks, was expressed as follows:

In spite of chronic pain Mr. Lee finds himself in at this
time, there is no medical contraindication to him being active as a police
officer and I believe he will be able to carry on these duties in spite of pain
he has. He appears motivated to excel in his work.

However, I believe that the
chronic pain will interfere with his plan for advanced studies and advancement
in his chosen profession.

[141]     I find Dr.
Kokan’s evidence in this area suffered from a serious internal inconsistency. Dr.
Kokan was questioned on the usefulness of FCEs such as the two prepared for Mr.
Lee in this case. In Dr. Kokan’s opinion the reports were of little value in
predicting Mr. Lee’s capacity to continue working as a police officer in the
future. Dr. Kokan’s principal critique of the FCEs was that they did not
realistically or accurately reflect what Mr. Lee could do as a police officer. In
Dr. Kokan’s words, the first FCE on Mr. Lee, authored by Mr.
Worthington-White, “does not come close to assessing the patient’s functioning
at a personal, professional, or occupational level.” Dr. Kokan was particularly
critical of the fact that the FCEs where completed without any examination of
Mr. Lee’s actual work environment and conditions. In Dr. Kokan’s opinion,
a person performing an FCE should spend at least a half day with the patient to
observe him or her in their actual work environment. Having articulated these
concerns about the frailties of Mr. Lee’s FCEs and having expressed his views
about the factual foundation necessary for such opinions, Dr. Kokan proffered
his opinion that Mr. Lee’s ability to advance within the ranks of the RCMP will
be hindered by his chronic pain, without observing Mr. Lee in his work
environment. In other words, Dr. Kokan’s criticism of the opinions expressed in
Mr. Lee’s FCEs is equally applicable to his own opinion in this area. The
strength of Dr. Kokan’s opinion is also seriously weakened by the fact that he
failed to obtain information regarding the physical requirements for any of the
other positions within the RCMP that Mr. Lee aspired to, such as becoming a
member of the ERT, Canine Team or Air Marshall Unit.

[142]     On both
the issue of causation as well as the issue of Mr. Lee’s ability to remain
working as a police officer, I find the frailties of Dr. Kokan’s evidence
renders it of little assistance in this case.

 Dr. Cecil
Hershler

[143]     Dr. Hershler
is a general physician with a specialty in physical medicine and rehabilitation.
Dr. Hershler prepared a medical-legal report dated 28 June 2005, as well as addenda
dated 19 June 2006 and 11 June 2007 respectively. Dr. Hershler testified and
gave expert opinion evidence in the general area of physiatry and more
specifically the diagnosis and prognosis of musculoskeletal injuries.

[144]      Dr.
Hershler’s medical-legal report of 28 June 2005 was based principally upon an
interview and examination of Mr. Lee conducted on the same date. Dr. Hershler
had no clinical records from Dr. Lee and consequently he acknowledged that he
relied principally upon the medical history and description of events given to
him by Mr. Lee in formulating his medical-legal opinions.

[145]    
Dr. Hershler noted in his report the following description Mr. Lee
provided of his time and training at Depot:

This [CTP] was an intensive
program that involved daily exercise and study in temperatures that were
sometimes -48 to -52 centigrade. As a result of the increased exercise levels,
his pain increased significantly and even affected sleep. Never-the-less, he
did not take medication and simply forced himself to complete tasks.

[146]    
Dr. Hershler also recorded that Mr. Lee advised him of the following:

Since then [graduating from
Depot] his pain symptoms have not resolved. … He avoids medications so as to
keep his head clear ….

[147]     With
respect to Mr. Lee’s own perception of his physical condition, Dr. Hershler
recorded that Mr. Lee felt he was “only at 70% of his pre-accident level.” Dr.
Hershler agreed that in his opinion this indicated that within nine months of
the motor vehicle accident of September 2004 Mr. Lee was 70% improved. Dr. Hershler
also noted that Mr. Lee did not complain of headaches.

[148]     In
examining Mr. Lee, Dr. Hershler noted Mr. Lee had “… full shoulder movements,
intact shoulder girdle strength and strong hand grips.” Mr. Lee also had fluid
and pain free movements of the spine. The focus of Mr. Lee’s complaint was
the sharp pain he felt on palpation of the trapezius muscle.

[149]     Based upon
his examination and the history provided by Mr. Lee, Dr. Hershler
diagnosed Mr. Lee with chronic soft tissue injuries, primarily in the trapezius
muscle. Dr. Hershler further concluded that the muscle injury was caused by the
September 2004 motor vehicle accident.

[150]    
According to Dr. Hershler’s June 2005 report, the prognosis of a full
recovery for Mr. Lee was a guarded one. In Dr. Hershler’s opinion:

… for the next few years,
Stanley will probably be limited by pain which will impact his career decisions.
Any career choice in the RCMP will demand a certain physical assessment which
will be demanding.

[151]    
In preparation of his first addendum, Dr. Hershler met with Mr. Lee on
19 June 2006 and also reviewed the medical-legal report of Dr. Lee dated
6 November 2005. During the course of their meeting, Mr. Lee informed
Dr. Hershler of the following:

On a daily basis, he is aware of an annoying tightness in his
neck, shoulders and upper back. … He still goes to a gym two to four times a
week to maintain strength and conditioning in the upper back and has found that
exercise relieves the tightness for at most a day. Stress, cold weather,
sitting in one position in front of a computer or writing notes all increase
the tightness. He has no other medical issue and is not on medication.

…

Currently he feels that he has
made about 10% further improvement over the past year (from 70 to 80%).

[152]     Dr.
Hershler confirmed his earlier diagnosis that Mr. Lee suffers from a chronic
muscle injury caused by the 2004 motor vehicle accident. Moreover, he opined
that it was unlikely that Mr. Lee’s symptoms would disappear in the foreseeable
future.

[153]     Dr.
Hershler’s last addendum was prepared following a meeting with and examination
of Mr. Lee on 11 June 2007. Dr. Hershler also had the opportunity to review the
first FCE of Mr. Lee as well as the clinical records of Dr. Lee from 14 September
2004 to 21 August 2006. Once again, during the course of his meeting with Dr.
Hershler, Mr. Lee confirmed that he was not taking any medications, including ibuprofen
or any analgesics.

[154]     Dr.
Hershler’s diagnosis of a chronic muscle injury and his guarded prognosis for
Mr. Lee remained unchanged from 2006. In Dr. Hershler’s opinion Mr. Lee’s
injuries had reduced his ability to exercise and consequently Mr. Lee had
become de-conditioned and over-weight. Furthermore, Dr. Hershler was of the
view that Mr. Lee’s symptoms would not resolve themselves of their own
accord in the foreseeable future.

[155]    
In his 2007 addendum, Dr. Hershler provided the following additional
opinion regarding Mr. Lee’s future work prospects:

DIAGNOSIS:

The diagnosis is as stated in
the previous Medical Legal Opinions dated June 28, 2005 and June 19, 2006. The
history and physical findings are consistent with chronic muscle injury. It is
my opinion that this chronic muscle injury (in the trapezii) was caused by the
motor vehicle accident on September 13, 2004.

PROGNOSIS:

The prognosis for recovery and resolution of pain in the
affected muscle structures is extremely guarded. Although almost three years
have elapsed since the accident, Stanley continues to be affected by pain that
affects his ability to sit in police vehicles or to wear a heavy uniform. It
also affects his ability to sleep. The pain has reduced his exercise capacity,
and, as a result, he has become deconditioned and over-weight ….

Given the length of time that has elapsed since the accident,
it is unlikely that Stanley’s pain symptoms will resolve of their own accord in
the foreseeable future. It is more likely than not that he will have to deal
with chronic pain on an ongoing basis.

…

Stanley has lost the opportunity to look for other employment
options within the RCMP because he is not in optimal physical condition. This
has led to frustration and even depression in mood. This situation will remain
a problem for him, due to the chronicity of his pain.

…The persistence of the pain
and its effects on Stanley’s ability to do physical tasks will likely force him
to eventually shorten his hours or work less.

[156]     Cross-examination
of Dr. Hershler exposed a number of troubling aspects of his evidence.

[157]     The first
point of concern relates to the lack of any reference to Mr. Lee’s motor
vehicle accident in May 2005 in any of Dr. Hershler’s reports. Dr. Hershler
confirmed that Mr. Lee did not tell him about this accident or about any
injuries resulting from it. This omission on the part of Mr. Lee reflects
negatively on him and not Dr. Hershler. However, in preparation for his second
and last addendum, Dr. Hershler had the records of Dr. Lee, and more particularly
her records of Mr. Lee’s appointment on 2 June 2005 where he informed her
of his motor vehicle accident two days earlier and the pain he was suffering
from it. Dr. Hershler provided no satisfactory explanation for not referring to
the May 2005 accident in his last addendum. I can only conclude that he was not
aware of that event, notwithstanding what was contained in Dr. Lee’s clinical
records. Dr. Hershler confirmed that if Mr. Lee suffered injuries such as
those described in Dr. Lee’s clinical records for 2 June 2005, then this
fact could prompt him to alter his opinion with respect to the September 2004
motor vehicle accident being the sole cause of Mr. Lee’s chronic pain.

[158]     The second
point relates to his conclusion in 2007 that Mr. Lee’s physical fitness had
deteriorated and that he had become “deconditioned” as a result of his injuries.
These opinions were based on what Mr. Lee told Dr. Hershler and what
Dr. Hershler read in Mr. Lee’s first FCE. Dr. Hershler did not have
Mr. Lee perform any physical fitness tests to confirm the opinion that Mr. Lee
was “deconditioned”; he simply accepted Mr. Lee’s word and adopted the opinion contained
in the first FCE. Mr. Lee performed arduous physical fitness tests during his
two FCEs and they both resulted in findings that he was in good physical
condition. The first FCE found Mr. Lee was “highly functional from a
physical point of view” and the second FCE found Mr. Lee was “at a very
good level of fitness” with an “above average level of aerobic fitness” and in
general “a very functional young man.” I find Dr. Hershler’s acceptance of
Mr. Lee’s reporting without any genuine attempt at verification and his willingness
to incorporate Mr. Lee’s unsubstantiated opinions into his own medical-legal
opinion was unwise and potentially misleading.

[159]     Dr.
Hershler’s preparedness to opine of Mr. Lee’s future employment prospects with
the RCMP is equally concerning. According to Dr. Hershler, a number of
employment opportunities with the RCMP have been foreclosed to Mr. Lee because
“he is not in optimal physical condition.” I find Dr. Hershler had little to no
factual foundation to offer such an opinion as he made no effort to discover
what the physical requirement criteria were for other positions within the
RCMP.

[160]     The fourth
and final point relates to his recommendation that Mr. Lee undergo Pulsed
Electromagnetic Field Therapy, also known as Pulsed Signal Therapy (“PST”). Dr.
Hershler has a personal interest in this type of therapy as he is the principal
provider of it in British Columbia. It is not a widely accepted medical
practice and there continues to be debate in the medical field about the
therapy’s usefulness. I find Dr. Hershler was not as candid as he should have
been when responding to questions about the existence of medical studies and reviews
regarding PST. Although Dr. Hershler denied knowing of any published studies,
later in his cross-examination he agreed that he was aware of one authored by
the University of British Columbia’s Centre for Health Services and Policy
Research – BC Office of Health Technology Assessment, dated December 2001and
entitled “Pulsed Signal Therapy for Musculoskeletal Conditions.” Dr. Hershler admitted
that he had become aware of the report after it was published when someone told
him about it. Dr. Hershler was critical of the report’s findings and the fact
that he was not given an opportunity to comment on it prior to its publication.

[161]     I accept
the observations Dr. Hershler made of Mr. Lee’s condition and the notations he recorded
of what Mr. Lee told him. However, much like the evidence of Dr. Lee, I find
Dr. Hershler’s opinion evidence to be lacking. The evidentiary foundation to
Dr. Hershler’s opinion relating to the causation of Mr. Lee’s pain is
seriously compromised by the fact that no consideration was given to the fact
that Mr. Lee suffered injuries in a May 2005 motor vehicle accident that were
similar to those he attributed to the September 2004 motor vehicle accident. In
general I found Dr. Hershler’s opinions in the present case to have an
insufficient and questionable evidentiary foundation and consequently I have
given them limited weight.

  Dr. Olli
Matti Sovio

[162]     Dr. Sovio is
a general physician who specializes in orthopaedic surgery. At the request of
the defendants, Dr. Sovio prepared a written medical-legal report dated 2
September 2007 and gave expert opinion evidence at trial in the area of
diagnosing and treating of musculoskeletal soft tissue injuries and a patient’s
ability to remain in a given employment.

[163]     Dr. Sovio
testified that 25% of his practice involves patients with work-related injuries.
He explained that, in addition to creating a treatment plan, one of the
questions in these types of cases is when and to what degree the patient can
return to work.

[164]     Dr. Sovio
is a member of the board of directors of the Abbotsford Police Foundation and
very familiar with the physical requirements for police work including the RCMP’s
PARE. Two of his sons are police officers and he has treated and assessed
hundreds of police officers with respect to their physical ability to return to
work.

[165]     Dr. Sovio
met with and examined Mr. Lee for approximately an hour on 30 August 2007.
He also reviewed some of Dr. Lee’s clinical records as well as the records of
Mr. Lee’s kinesiologist.

[166]    
In his medical-legal report, Dr. Sovio recorded:

Currently on direct questioning
the patient states that he still sometimes has headaches but these headaches
occur about once a week when his neck is sore. He doesn’t take a whole lot of
medication although he does take Tylenol at times for his headache.

[167]    
Dr. Sovio’s prognosis for Mr. Lee was a positive one. He also opined
that Mr. Lee should not be limited in his ability to function in the
future. Dr. Sovio concluded:

The patient had some discomfort on palpation of the
periscapular areas but nothing of any major significance as far as the neck was
concerned … The patient’s injuries appear to have been soft tissue in nature …

I do not feel that he will be limited in the future as far as
his ability to function is concerned. I do expect, given time, his subjective
soft tissue symptoms to subside and I do feel that an exercise program will be
helpful in solving these problems and I encourage him to continue on with the
exercise program that he is currently doing.

I do not feel that any further
investigation is warranted nor do I feel that any formal treatment is warranted.
I think the patient can be safely reassured that nothing significant will arise
in the future and he can look towards resolution of his symptoms.

[168]     I found
Dr. Sovio’s opinion evidence unbiased, credible and persuasive.  Consequently,
I have placed an increased amount of weight on it in analyzing Mr. Lee’s
case.

Expert Opinions – Non Medical

 Stephen Le

[169]     At all
material times, Mr. Le was a personal physical fitness trainer and registered kinesiologist
in British Columbia.

[170]     In
September 2004, Dr. Lee referred Mr. Lee to Mr. Le for the development and
implementation of a treatment and exercise therapy program.

[171]    
Mr. Lee first met with Mr. Le on 24 September 2004. Mr. Le’s written
report dated 27 September 2004 was entered into evidence. In this report, Mr.
Le notes the following:

Client’s Subjective Reports

Currently, Mr. Lee reports of
rhomboid and trapezius pain. Pain is intermittent in both areas. In general,
the client feels de-conditioned. He would like to resume to his normal
activities routine including working full time, working out at the gym, and
running.

Activities of Daily Living

Mr. Lee is able to do all chores
at home. He is on a graduated return-to-work program designed by Dr. Lee. Mr.
Lee is attending the gym 3 times per week.

Range of Motion

Mr. Lee demonstrates ideal range
of motion in all directions in his neck and low back regions upon observation.

[172]     The
rehabilitation plan created for Mr. Lee consisted of one and one-half hour
training sessions three times per week for four weeks.

[173]    
Mr. Lee’s rehabilitation program concluded in October 2004. In his
Discharge Report dated 19 October 2004, Mr. Le made the following observations:

Client’s Subjective Reports

Mr. Lee reports there is no more
pain in the rhomboid and trapezius regions. He feels stronger and has more
endurance. He is now able to resume his normal workout routine. Ms. (sic) Lee
is moving to Regina next week to start his RCMP program for 6 months. He will
continue with his exercise routine there.

Activity of Daily Living

The client reports that he has
no problems with ADLs. Mr. Lee returned to work full time and full duties.

Program

… He is now able to resume all
his exercises. Mr. Lee is able to run 1.5 miles in 11 minutes and 6 seconds. Mr.
Lee demonstrated excellent exercise techniques and follow through.

Range of Motion

Mr. Lee demonstrates ideal range
of motion in all directions in his neck and low back regions upon observation.

Conclusion / Recommendation

Mr. Lee was motivated and
pleasant to work with. Mr. Lee’s symptoms appear to be resolving very well. It
is recommended that he continue with his exercise routine on a regular and
disciplined basis to gain and maintain optimum benefits.

[174]     Mr. Le testified
that Mr. Lee was discharged from the treatment program because he had successfully
completed it and his physical condition was better.

[175]     Mr. Lee
disagreed with much of Mr. Le’s evidence. In particular, he denied telling Mr.
Le that he “felt no more pain in the rhomboid and trapezius regions.” He also claimed
not to recall ever telling Mr. Le that he was “able to resume his normal
workout routine” or that he had “returned to work full-time and full duties.”

[176]     Mr. Le is
no longer a kinesiologist. In or around 2007, he changed professions and became
a Notary Public. During his testimony, Mr. Le noted that he had some
recollection of Mr. Lee and his exercise program; however he candidly
acknowledged that he had little independent recollection of the details of any
conversations he had with Mr. Lee during their sessions. The reports of Mr. Le
that were entered into evidence are what Mr. Le relied upon to testify about
the contents of what Mr. Lee told him during their sessions together.

[177]     I found
Mr. Le to be a credible and unbiased witness. According to Mr. Le, his reports
accurately record what Mr. Lee told him. I have no reason to doubt Mr. Le’s
evidence or the accuracy of his notes. I have accepted Mr. Le’s evidence over
that of Mr. Lee.

 Gary
Worthington-White

[178]     Mr. Worthington-White
is an occupational therapist and certified work capacity evaluator. Mr.
Worthington-White prepared an expert report dated 5 January 2007 and provided
expert opinion evidence in the area of occupational therapy and FCEs.

[179]     Mr. Lee
met with Mr. Worthington-White on 19 December 2006. For approximately six hours,
Mr. Worthington-White had Mr. Lee perform a variety of physical tests as part
of a comprehensive assessment of his functional capacity.

[180]     In his
report, Mr. Worthington-White records that Mr. Lee claimed to be taking
approximately two Advil or Tylenol per week and that there had been no
“significant subsequent unrelated medical history” following the accident in
question.

[181]     Based on
his interpretation of the results of Mr. Lee’s FCE, Mr. Worthington-White provided
the following opinions and observations of Mr. Lee’s physical condition and
future employment prospects:

MUSCULOSKELETAL REVIEW / FITNESS TESTING

Functional range of movement was
within normal limits …. Mr. Lee presents with some mild cardiovascular
deconditioning. His back fitness rates as excellent.

GENERAL MOBILITY / WORK
POSTURES

Mr. Lee presents as functional
for: fast and slow paced stair climbing, balancing on level surfaces and /or
ladder climbing. He presents as capable of low level work involving kneeling,
crouching or crawling.

LIFTING, CARRYING, PUSHING AND PULLING

Mr. Lee is capable of SEDENTARY,
LIGHT, MEDIUM AND HEAVY strength work per the DOT [Dictionary of Occupational
Titles]. According to the NOC [National Occupation Classification] criteria, he
presents as capable of LIMITED, LIGHT, MEDIUM AND HEAVY strength work. While
Mr. Lee was observed to have performed HEAVY strength lifting/carrying, as well
as job simulation activities requiring heavy strength push/pull forces,
frequent handling or exposure to such weight or forces resulted in aggravation
of his symptoms and he presented with tolerance limitations for such activity. He
is therefore not well suited for activity/positions requiring exposure to HEAVY
strength work on a repetitive or frequent basis.

SITTING, STANDING AND WALKING

While no significant limitations were noted with basic
sitting, prolonged seated postures did result in some mild increases in
reported and observed neck and upper back pain.

No significant functional
limitations presented with standing or walking.

WORK ENDURANCE

Mr. Lee is currently capable of full time LIMITED, LIGHT,
MEDIUM and occasional HEAVY strength work provided the physical demands are in
keeping with the restrictions noted in this report.

…

Based on the results of work capacity testing, Mr. Lee does
present as physically capable of performing the basic demands of his position
as a general duties constable.

…

In terms of the future Mr. Lee reported he would like to have
applied for ERT or Air Marshall undercover work, however he is unsure of his
ability to perform these positions as the training and actual duties can
reportedly involve prolonged periods of heavy physical activity. The identified
tolerance limitations to heavy strength work or production of prolonged periods
of high force exertion may therefore compromise his employability in terms of
his ability to access all possible positions in the force.

…

With the exception of the 2.4 km
run, testing did show that Mr. Lee demonstrated the base physical abilities required
of the PARE …. Mr. Lee did however present with some mild cardiovascular
deconditioning …

[182]     I found Mr.
Worthington-White’s evidence of assistance in comparing Mr. Lee’s present physical
condition vis-à-vis
the requirements associated with being a police officer. As I understood the
evidence, Mr. Lee met or at times exceeded the physical requirements for being
a police officer. Moreover, Mr. Lee was highly functional from a physical point
of view, notwithstanding the fact that he reported feeling pain and discomfort
after sitting for a prolonged period of time (e.g. 90 minutes) or had to
physically exert himself for an extended period of time.

[183]     With
respect to Mr. Lee’s ability to continue and progress as a police officer, I
found Mr. Worthington-White’s evidence less helpful. Mr. Worthington-White did
not observe Mr. Lee in his work environment (e.g. a police vehicle), nor did he
make any enquiries or obtain any information about the physical requirements
for becoming a member of the ERT or any of the other positions within the RCMP
Mr. Lee was interested in. In my opinion, it is impossible to opine on whether
someone has the capacity to perform a job without first knowing what that job
entails.

 Lila Quastel

[184]     Ms.
Quastel is a registered occupational therapist and registered member of the
College of Occupational Therapists of British Columbia. Ms. Quastel prepared an
expert report dated 23 October 2008 and provided expert opinion evidence in the
area of occupational therapy, FCEs and future care costs.

[185]     During the
course of two six-hour periods on 16 and 17 July 2008, Ms. Quastel had Mr.
Lee perform a multitude of tests designed to evaluate his physical fitness,
work tolerances, vocational aptitudes and vocational interests.

[186]     At the
outset of the evaluation, Mr. Lee provided Ms. Quastel with a summary of his
medical history. In particular I have taken note of the fact that Mr. Lee told
Ms. Quastel:

·      
He needed to take one to two capsules of Advil during the day and
every night during his CTP at Depot;

·      
Three or four times per week he has headaches associated with his
neck and back pain and that these headaches last 10 to 15 minutes;

·      
While on duty in uniform, he carries 45 pounds of body armour and
equipment and that he develops back pain when he must climb stairs wearing this
equipment; and

·      
He estimates he is 75-80% better than he was immediately post-accident.

[187]    
In her expert report, Ms. Quastel offered the following observations and
opinions:

Mr. Lee was found on physical fitness testing to have full
range of motion in all joints, but he reported pain on neck extension. He has
normal plus (5+/5) muscle strength in all 4 limbs, and adequate upper limb
power to do an excellent level of push-ups. He has very good to excellent trunk
muscle power, including his abdominal muscles. He is at a very good level of
fitness. He is approximately 9.5 kg (21 lbs) overweight. Mr. Lee feels that he
needs the extra weight for his job. He is a solid-looking man who, by
observation, does not look overweight.

…

Mr. Lee was found on work and physical tolerance testing to
be limited by pain for sustained sitting and sustained standing. He can sit for
long periods if he can take breaks every three quarters of an hour ….

…

Test results indicate that Mr. Lee is capable of work in all
the strength categories, including the heavy category, but he has limitations
within the heavy category. For example, he is normally capable of negotiating
stairs, but when he does so with his 45 lbs of gear he develops neck and back
pain.

…

… Mr. Lee meets the physical activity requirements of an
RCMP officer for many duties of that occupation, but not all. He has neck
and/or back pain for the heavier tasks and there is concern about his capacity
and stamina for those moments when he has to interact with, or control or chase
dangerous or belligerent suspects.

…

… He has been fulfilling his duties in the RCMP for the
past 3 years despite his ongoing chronic pain. His best solution would be to
negotiate postings with lighter duties than those entailed in general duty
constable work.

Mr. Lee has suffered the loss of
occupational choices because of the injuries he sustained in the MVA on
September 13, 2004. The Physical Capacity Test results indicate that before the
accident he could have worked in occupations in all physical activity
categories, including the heavy category, providing of course that he was
otherwise qualified. He can still do some tasks in the heavy category, but with
an increase in his pain. He could have pre-accident worked in sedentary
occupations, for which he was otherwise qualified, but he now has limitations
for sustained sitting. He has suffered the loss of choice of the heavier or
more arduous postings within the RCMP, and he is not able to accept over-time
work which means a loss of potential additional income.

[188]     I have
accepted Ms. Quastel’s conclusions regarding Mr. Lee’s level of fitness;
however I have done so with some caution because I found her to have been disconcertingly
evasive in answering many questions on cross-examination. For example, Ms.
Quastel took pains to avoid a question relating to whether Mr. Lee’s
recorded heart rate during the various tests could be used as an interpretative
tool. The question was a simple one and it took the court’s intervention to get
a straight answer from Ms. Quastel.

[189]     With
respect to Ms. Quastel’s evidence about Mr. Lee’s future employment prospects
with the RCMP or elsewhere, I find it suffers the same deficiencies as that of
Mr. Worthington-White. Ms. Quastel acknowledged in cross-examination that
she took no steps to determine any of the physical fitness criteria for any
other positions within the RCMP. I can only repeat the views I expressed
earlier, that before offering an opinion about someone’s ability to perform a
job it would seem reasonable and necessary to first find out the criteria for
that job, including its physical requirements. Having failed to do so, I find little
value in Ms. Quastel’s opinions regarding Mr. Lee’s ability to perform other
positions within the RCMP.

  Darren Benning

[190]     Mr.
Benning is an economist and president of PETA Consultants Ltd. Mr. Benning
prepared a written report dated 27 June 2008 and gave expert opinion evidence
on the calculation of Mr. Lee’s past and future income loss.

[191]      Evidence of
this nature can be useful to the court in determining a plaintiff’s net past
wage loss and assessing the value of any future wage loss. However, as with all
expert evidence, if the factual underpinnings or assumptions of the opinion are
shown to be invalid or faulty, then the opinion itself is of little value.

[192]     In
cross-examination Mr. Benning acknowledged that his opinions were reliant upon information
provided to him by Mr. Lee. Surprisingly, this information included the number
of overtime opportunities Mr. Lee claimed he lost on account of the injuries he
suffered in the 2004 accident. I say “surprisingly” because, in his evidence
before me, Mr. Lee testified that he could not estimate the amount of overtime
he had lost.

[193]     Although I
have no difficulty accepting Mr. Benning’s methodology, I do doubt the
usefulness of his evidence given its questionable factual foundation.

  Christopher Cooke

[194]     Mr. Cooke
is a vocational consultant with The Work Evaluation and Research Center, Inc. Mr.
Cooke prepared an expert report dated 29 January 2009 that was admitted into
evidence as rebuttal evidence and more specifically in response to the reports
of Mr. Worthington-White and Ms. Quastel.

[195]     Mr. Cooke’s
report addressed methodological deficiencies he claimed were present in Mr.
Worthington-White’s report and Ms. Quastel’s report. Mr. Cooke was particularly
critical of their opinions regarding Mr. Lee’s future employment prospects.

[196]     Given that
I have only accepted the opinions of Mr. Worthington-White and Ms. Quastel
regarding Mr. Lee’s level of physical fitness and have rejected their opinions
about Mr. Lee’s ability to remain working as a police officer, there is no need
for me to have recourse to the evidence of Mr. Cooke.

Causation

[197]     Mr. Lee submits
that the headaches he suffers from and the pain he feels in his neck, shoulders
and back are solely attributable to the 13 September 2004 motor vehicle
accident. He acknowledges that he was in a subsequent accident in 2005, however,
he maintains that he suffered no injuries in that accident and therefore it should
have no consequential effect on the court’s determination of the appropriate quantum
of damages to award.

[198]     In the
alternative, Mr. Lee argues that if he did suffer injuries in the May 2005 accident,
they were of such a minor nature and they resolved themselves so quickly that
he did not even recall them.

[199]     The
defendants accept that Mr. Lee suffered injuries in the accident of September
2004. However they submit that any pain Mr. Lee suffers today is more likely
the result of the 2005 motor vehicle accident or the nature of his work (i.e. working
long hours and having to wear heavy accessories to his uniform) or both.

[200]     I am
unpersuaded that the pain and discomfort Mr. Lee continues to complain of
originates exclusively from the 2004 accident. I accept that he suffered some compensatory
injuries as a result of that accident; however the facts of this case lead me
to believe that the injuries associated with the accident resolved themselves
to a great extent within 12 to 24 months. In my opinion, the pain and
discomfort Mr. Lee continues to complain of is principally because of the
physical nature of his work as well as some minor residual effects from the May
2005 accident and to a lesser degree the September 2004 accident.

Assessment and
Determination of Damages

Non-Pecuniary Damages

[201]     Mr. Lee
maintains that, given the nature and extent of the injuries he suffered, an
award of non-pecuniary damages in the range of $90,000 to $130,000 would be
appropriate. In support of this position, he relies upon the following
authorities: Izony v. Weidlich, 2006 BCSC 1315; Kuskis v. Tin,
2008 BCSC 862; Parfitt v. Mayes, 2006 BCSC 125; Heppner v. Zia,
2008 BCSC 782; Klein v. Dowhy, 2007 BCSC 1151; Foran v. Nguyen,
2006 BCSC 605; Prince-Wright v. Copeman, 2005 BCSC 1306; Stone v.
Ellerman, 2007 BCSC 969, reversed 2009 BCCA 1234; Stapley v. Hajslet,
2006 BCCA 34; Boynton v. Farough, [1997] B.C.J. No. 1879 (S.C.)
(QL); and Unger v. Singh, 2000 BCCA 94.

[202]     The
defendants argue that the injuries of Mr. Lee have been exaggerated and
are not of the magnitude he describes. According to the defendants, the injuries suffered as a result of the accident must have resolved
themselves to a great degree by the time Mr. Lee attended Depot or at some
time during his training there. If Mr. Lee does suffer from chronic pain,
then it is just as likely that it is rooted in the accident of May 2005. For
these reasons the defendants submit that the appropriate award for
non-pecuniary damages would be in the range of $20,000. In support of this
position, the defendants rely upon the following authorities: McAvena
v. Kabatoff, 2003 BCSC 629; Densch v. Kirkpatrick, 2007 BCSC 277; Yount
v. Prospect Electric Ltd. et al., 2005 BCSC 322; Schulmeister v.
Furmanak, 2004 BCSC 1484; Bartel v. Reid, 2004 BCSC 831.

[203]     I am not
satisfied that the injuries resulting from the September 2004 motor vehicle
accident were as significant or as chronic as claimed by Mr. Lee. Moreover,
I am not satisfied that they are uniquely attributable to the accident in
question.

[204]     The story
told by Mr. Lee of the physical effects the 2004 accident have had on him
is markedly out of synch with the fact that he successfully completed the
rigorous training at the RCMP Depot with the accolades he did and has, since
joining the Force, been a productive and valued member who has been promoted
twice.

[205]     As I have
noted previously in these reasons, I found Mr. Lee’s evidence to be less
than satisfactory. He reported inconsistent pain levels to the various health care providers who assessed and treated him. He also
provided wildly different descriptions of his need to take pain medications. These,
along with other inconsistencies in his evidence, have contributed to my
doubting the reliability of much of his evidence. I am also gravely concerned
by the fact that Mr. Lee failed to mention his May 2005 motor vehicle accident
to any of the health care professionals who treated him. Uniformly these
professionals testified that this was an important fact that they would have
liked to have known prior to formulating their respective opinions about Mr.
Lee’s condition.

[206]     I reject Mr.
Lee’s assertion that his injuries have impeded his performance and progress at
work. The evidence of Mr. Larsen indicates, contrary to the evidence of Mr. Lee,
that Mr. Lee was quite able to perform all of the duties of a police
officer, including foot chases and physical altercations, without exhibiting
any signs of pain or discomfort. It is simply incredible that during these
physically intense activities Mr. Lee suffered pain and discomfort at the
levels he describes yet never once complained or made any comments to his RCMP partner
of two years. The evidence of Mr. Worthington-White and Ms. Quastel also
confirm that Mr. Lee’s physical fitness meets or exceeds the requirements for a
police officer.

[207]     In
summary, I am satisfied Mr. Lee suffered soft tissue injuries to his neck,
shoulders and back as a result of his car accident on 13 September 2004.
I also accept that Mr. Lee felt some residual discomfort during his time
at Depot; however, it was not as pronounced or regular as he would have the court
believe. By the time Mr. Lee arrived at the Burnaby Detachment of the RCMP
in April 2005, it is clear he was fully capable of performing his duties
without any accommodation from his employer on account of his injuries. I
accept that Mr. Lee may well have felt tired and sore at the end of a work
day; that is not surprising given the physical nature of his work. However I
cannot attribute the cause of those aches and pains or his occasional need to
take medication to address them solely to the injuries he suffered in the September
2004 accident.

[208]     I assess
Mr. Lee’s non-pecuniary damages at $40,000.

Loss of Housekeeping Capacity

[209]     I accept
that for a reasonably short period of time after the September 2004 accident Mr. Lee
had difficulty completing household chores because of the pain and discomfort
he felt in his back and shoulders.

[210]     Mr. Lee
claims he should receive between $10,000 and $12,000 as compensation for his
loss of housekeeping capacity. In support of this claim, Mr. Lee relies
upon Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652 (B.C.C.A.) and Stone
v. Ellerman, 2007 BCSC 969. I note for the sake of completeness that for
reasons unrelated to this issue our Court of Appeal overturned the Stone
decision and returned the matter for a retrial: Stone v. Ellerman, 2009
BCCA 294.

[211]    
Mr. Lee acknowledged in cross-examination that he does not have any
restrictions in his ability to move his arms because of any pain or discomfort
he may have in his shoulders. Moreover, at his examination for discovery, Mr. Lee
was asked the following questions and gave the following answers:

Q:        Were your — was your ability to do household
chores affected by the accident?

A:         At that time I was living in a basement suite.
I wasn’t able to do any household chores. Luckily, I had my mom, and my
landlord was great. So she came down and helped me out, too.

Q:        Okay. But now you have no problem doing the
household chores, is that right?

A:         I’m doing pretty
good. I can do it myself.

[212]     At trial, Mr. Lee
supplemented his response by adding that he still had pain when he did
household chores.

[213]     I am not
satisfied that Mr. Lee has made out his claim for any loss of housekeeping
capacity. In any event I find the award I have made for non-pecuniary damages
is sufficient to address any compensation Mr. Lee may be entitled to for
any such loss and consequently I find that a separate award of damages under
this heading, distinct from general damages, is unwarranted in this case.

Past Loss of Income and
Opportunities

[214]    
In Rowe v. Bobell Express Ltd., 2005 BCCA 141, Smith J.A.
explained the concept of “past loss of income” as:

… a claim for the loss of the
value of the work that the injured plaintiff would have performed but was
unable to perform because of the injury.

[215]     Mr. Lee
asserts that he is entitled to between $92,000 and $107,000 under this heading
of his claim. In advancing this position he has divided his claim into two
categories:  loss of actual wages he would have earned and loss of potential
wages he could have earned.

[216]     The
defendants have not disputed that in the fall of 2004, Mr. Lee was earning
$22.56 per hour working full-time at Save-On Foods. Nor have the defendants
contested the fact that as a result of the accident, Mr. Lee was absent from
work between 13 September 2004 and 24 September 2004 and therefore lost the
income he would have earned during that period of time. Beginning on or about
24 September 2004, Mr. Lee began a gradual return to work where he initially
performed light duties for a reduced number of hours. Mr. Lee was back working
full‑time by 5 October 2004.

[217]     There is
no evidence from the employer indicating what rate of pay Mr. Lee earned
while he was working at Save-On Foods. Notwithstanding this lack of evidence,
the defendants accept that Mr. Lee lost 71 hours of work on account of
being away from work between 13 September and 5 October 2004 and that his
rate of pay would have been $22.56. Consequently, the defendants accept that
under the heading of “past loss of income”, Mr. Lee is entitled to an award of
$1,601.76.

[218]     Mr. Lee
also claims that he could have worked at Save-On Foods on a part‑time
basis after he had returned from Depot and had started working as a regular
member of the RCMP in May 2005. He asserts that he would have worked a minimum
of eight, four hour shifts per month at the hourly rate of at least $22.56. However,
he maintains that the injuries he suffered in the accident prohibited him from
doing so.

[219]     No
evidence from Save-On Foods was presented supporting Mr. Lee’s claim that he
would have been given these part-time hours at the hourly rate he asserts. All
that I have with respect to this aspect of Mr. Lee’s claim is his testimony. I
find this evidence is insufficient to persuade me of the validity of the claim
and therefore I reject it.

[220]    
Finally, Mr. Lee submits that he lost lucrative opportunities for
overtime hours with the RCMP on account of his injuries. While Mr. Larsen
confirmed that overtime hours were generally available at the Burnaby RCMP
Detachment, he was unable to quantify those hours in any manner and was in no position
to say at what rate Mr. Lee would have been paid had he chosen to perform
any of them.

[221]    
I find the following portion of Mr. Lee’s evidence in chief
addresses this issue conclusively:

Q:        Do you have any idea how much overtime
opportunities you missed?

A:         No. My Lord.

[222]     Without a
persuasive evidentiary foundation of the overtime hours that were or would
likely have been available and what Mr. Lee’s rate of pay would have been for
those hours, any award under this facet of the claim would be speculative. I
will not engage in such speculation.

[223]     I note
that Mr. Benning provided calculations of what Mr. Lee’s past lost income could
have been on account his missed overtime opportunities with the RCMP. However
those calculations were based upon lost overtime figures Mr. Lee provided to
Mr. Benning. While Mr. Lee may well have given Mr. Benning these figures, they
were not in evidence before me as Mr. Lee testified he had no idea how much
overtime he had lost.

[224]     In my
opinion, no factual foundation was presented that would allow me to determine
or even estimate how much overtime with the RCMP Mr. Lee may have lost. In
such circumstances, I find Mr. Benning’s opinion in this area to be of no
assistance.

[225]     For past loss of actual income, I award Mr. Lee $1,650.

Diminishment of Future
Earning Capacity

[226]    
In order to make an award for loss of future earning capacity, the court
must be satisfied there is a real and substantial possibility that the injuries
Mr. Lee suffered in the September 2004 motor vehicle accident will impact his
ability to earn income in the future: Moore v. Cabral, 2006 BCSC 920.

[227]    
In advancing his claim under this heading, Mr. Lee relies upon the oft
cited principles articulated in Brown v. Golaiy, [1985] B.C.J. No. 31
(S.C.), quoted with approval in Pallos v. Insurance Corporation of British
Columbia (1995), 100 B.C.L.R. (2d) 260 at para. 24:

[24]      In addition to those cases cited by counsel, I
would also refer to Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393
(C.A.). There Mr. Justice Taggart quoted with approval from Brown v. Golaiy
(supra) as follows (at p. 399):

The means by which the value of the
lost, or impaired, asset is to be assessed varies of course from case to case. Some
of the considerations to take into account in making that assessment include
whether:

 1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

 2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

 3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

 4.         The plaintiff is
less valuable to himself as a person capable of earning income in a competitive
labour market.

[228]    
Mr. Lee also cites the following observations of Southin J.A. at p. 59
in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.), in support of
his claim:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest of
his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
ability.

[229]     The
defendants argue that a condition precedent to an award for loss of earning
capacity is a finding, based upon uncontradicted medical evidence of a
permanent partial physical disability, that could have a negative impact rely
upon Mr. Lee’s ability to work and earn an income: Pallos v. Insurance
Corp. of British Columbia (1995), 100 B.C.L.R. (2d) 260 (C.A.).

[230]    
In advocating their approach to the question of loss of earning
capacity, the defendants rely on Steward v. Berezan, 2007 BCCA 150, and
particularly the following observations of Donald J.A. at paras. 16 – 18:

[16]      The judge appears to have lifted the phraseology
“it is impossible to say …” from the judgment of Southin J.A. in Palmer v.
Goodall (1991), 53 B.C.L.R. (2d) 44 at 59 quoted in Parypa v. Wickware,
169 D.L.R. (4th) 661, 1999 BCCA 88:

[63]      This passage makes clear
the principle that it is not the lost earnings themselves that must be
compensated, but the loss of earning capacity as a capital asset that requires
compensation. There are several cases in this court which confirm that the
capital asset approach is correct: Earnshaw v. Despins (1990), 45
B.C.L.R. (2d) 380; Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44; and Kwei
v. Boisclair (1991), 60 B.C.L.R. (2d) 393. The significance of compensating
earning capacity as a capital asset as opposed to projected future earnings is
seen in the following passage from Palmer, supra, at 59:

Because it is impairment that is
being redressed, even a plaintiff who is apparently going to be able to earn as
much as he could have earned if not injured or who, with retraining, on the
balance of probabilities will be able to do so, is entitled to some
compensation for the impairment. He is entitled to it because for the rest
of his life some occupations will be closed to him and it is impossible to say
that over his working life the impairment will not harm his income earning
capacity.

 [Emphasis
added]

[17]      But the language in question there was used in the
context of appellate review and, with respect, it cannot be transposed to an
original analysis at the trial level. The claimant bears the onus to prove at
trial a substantial possibility of a future event leading to an income loss,
and the court must then award compensation on an estimation of the chance that
the event will occur: Parypa [paragraph] 65.

[18]      When the record is
examined according to that approach, I cannot see the basis for a substantial
possibility giving rise to compensation for diminished earning capacity. There
being no other realistic alternative occupation that would be impaired by the
plaintiff’s accident injuries, the claim for future loss must fail.

[231]     I have used
and applied the analytical framework suggested in Brown v. Golaiy, supra,
to the case at bar and I find Mr. Lee has failed to persuade me that his
claim for loss of earning capacity is well-founded.

[232]     Contrary to his assertion that he struggled mightily to complete the
CTP at Depot, the evidence indicates he sought out and took on additional tasks
and responsibilities and notwithstanding these additional burdens, graduated
with glowing references. Moreover, the evidence regarding his performance as a
regular member of the RCMP has been equally positive. All of the reports
on Mr. Lee indicate that he is a valued member who is performing well. On
25 April 2007, Mr. Lee was promoted in rank to a Constable, Level 1. In my
opinion, this indicates that any residual pain or discomfort Mr. Lee
experiences is not impeding his progress within the RCMP and is unlikely to in
the future.

[233]      I am not
satisfied that the nature of the pain associated with his injuries is such that
Mr. Lee has been rendered less capable of earning an income. It is clear on the
evidence, including Mr. Lee’s own evidence, that his physical condition and
symptoms have improved 70% to 80% since the accident. Mr. Lee’s performance
reviews, while at Depot and during his first years as an RCMP officer, are
stellar. Mr. Lee is seen as a future leader who is presently able to
complete all tasks assigned to him in a professional and timely manner. The
evidence clearly does not support Mr. Lee’s claim that he is less marketable or
attractive as a potential employee. On the contrary, based on the previously
mentioned performance reviews I can only conclude that Mr. Lee’s superiors with
the RCMP see him as a very valuable member of the Force and someone whose
career path is a positive one.

[234]     Mr. Lee
possesses a belief that he cannot meet the physical requirements to become a
member of the RCMP’s ERT, Canine Team or Air Marshall Unit. Various experts
have adopted Mr. Lee’s belief and have opined that Mr. Lee will likely not be
able to join those or other units of the RCMP. These opinions, like Mr. Lee’s
belief, are not founded in fact. There is no evidence before me indicating what
the physical criteria are for membership in these or any other unit of the RCMP.
This lack of evidence undermines the experts’ opinions. I reject the assertion
that Mr. Lee is no longer able to take advantage of all job opportunities.

[235]     As I am
not persuaded Mr. Lee has a permanent partial disability and I am not satisfied
that Mr. Lee’s progression within the RCMP is being or will likely be hindered
by what remains of his injuries, I reject his claim for loss of future earning
capacity.

[236]     There will
be no award for loss of future earning capacity.

Future Cost of Care

[237]     Mr. Lee
seeks an award of between $46,000 and $104,000 for the cost of his future care.

[238]      The
defendants argue there is no valid expert evidence to support this facet of Mr.
Lee’s claim and therefore the court should make no award.

[239]     A number
of the expert witnesses opined on what future care Mr. Lee would require on
account of his injuries. However, to a great extent these experts did not agree
on the nature and extent of the future care Mr. Lee will require.

[240]     In her
report dated November 2005, Dr. Lee “suggested” that Mr. Lee continue with
massage therapy and have the opportunity to re-visit with the kinesiologist for
“further optimization of his rehabilitation program.”

[241]     Dr. Kokan,
a witness presented on behalf of Mr. Lee, opined that Mr. Lee should
continue with his present exercise program of weights and stretching. Dr. Kokan
added that an occasional session with a kinesiologist would benefit Mr. Lee
and ensure that his rehabilitation program is responsive to his needs. With respect
to other forms of rehabilitative care, Dr. Kokan notes in his report dated
20 June 2008:

In my opinion, there is no
medical necessity to carry on with passive forms of treatment such as passive
physio, massage, pulse therapy, chiropractic and other similar treatments. These
modalities are useful for reducing pain levels in the acute stage of the
injury, but can be counterproductive if taken for prolonged time in the case of
chronic pain … Mr. Lee would benefit from being instructed in pain modifying
and relaxation techniques, by a professional therapist, which can be
subsequently self-administered. In addition he will continue taking Advil as
required.

[242]     In his
report of June 2005, Dr. Hershler recommended that Mr. Lee continue with
massage therapy and his fitness and strength training exercises. He also opines
that Mr. Lee might require PST if Mr. Lee’s symptoms did not improve. In his
June 2006 report, Dr. Hershler repeated his view that PST was a treatment
option for Mr. Lee. Dr. Hershler also recommended physiotherapy and
acupuncture. In his final report of June 2007, Dr. Hershler recommended that any
future care program for Mr. Lee include access to a kinesiologist or
physical trainer on a monthly basis, access to a fully-equipped gymnasium,
massage therapy, acupuncture, and PST.

[243]     Ms.
Quastel’s report of July 2008 recommended that Mr. Lee’s future care include a
multi-disciplinary chronic pain management program: massage therapy, physiotherapy,
an annual fitness centre membership, and the regular assistance of a
kinesiologist.

[244]     Dr.
Sovio’s opinion, expressed in his report of September 2007, is that Mr. Lee
requires no further formal treatment, apart from a regular exercise program.

[245]     In his
January 2009 report, Mr. Cooke agrees with the recommendation that Mr. Lee have
access to a quality fitness centre as well as the occasional advice of a
kinesiologist.

[246]     I am not
satisfied that any of the future care treatments beyond access to a quality
fitness facility and the occasional assistance and advice of a kinesiologist
are necessary in the case of Mr. Lee. I therefore award him $7,500 for cost of
future care.

Special Damages

[247]     Mr. Lee
seeks reimbursement for a number of out-of-pocket expenses he claims to have
incurred on account of his injuries from the September 2004 accident. The
defendants admit that Mr. Lee is entitled to be reimbursed for the $1,050 he
spent on medications, rental vehicles, physiotherapy and ambulance services.

[248]     Mr. Lee
also claims reimbursement of the $300 he paid professional furniture movers and
the $400 he paid cleaners to clean his rental property. Mr. Lee presented no
documentary evidence supporting these expenses and could not be specific with
respect to the actual amounts he paid. In light of the lack of evidence
supporting these claims, I reject them.

[249]     Subject to
any statutory deductions, Mr. Lee is entitled to $1,050 in Special Damages.

Summary

[250]     In
summary, subject to any statutory deductions, I award Mr. Lee the
following amounts:

 Non-pecuniary
damages:                       $40,000

 Loss of Past Income:                             $ 
1,650

 Future Care costs:                                $ 
7,500

 Special Damages: $ 
1,050

 Total:                                                    $50,200

[251]    
If counsel wish to speak to the issue of costs, they are to arrange a
mutually convenient date through the Registry.

                
“G.R.J. Gaul, J.”                      

The
Honourable Mr. Justice G.R.J. Gaul