IN THE SUPREME COURT OF BRITISH COLUMBIA

Date:
20130107

Docket: 44885

Registry:
Vernon

Between:

Marie Eleanor
Dakin

Plaintiff

And

Patrick Roth, Rory
Valecourt
and Matthew Schiffman

Defendants

–
and –

Docket: 45096

Registry:
Vernon

Between:

Marie Eleanor
Dakin

Plaintiff

And

Patricia Kate
Butt, Cariboo Collision Repairs Ltd.
and Matthew Schiffman

Defendants

– and –

Docket: 48939

Registry:
Vernon

Between:

Marie Eleanor
Dakin

Plaintiff

And

Ja’elle Leite and
Wolseley Industrial Products Group Inc.
Wolseley Groupe de Produits Industriels Inc.

Defendants

Before:
The Honourable Mr. Justice Cole

Reasons for Judgment

[1]            
This is a personal injury claim arising out of three separate
motor vehicle accidents in which the plaintiff was a passenger. The position of
the defendants is that although liability is admitted, the plaintiff is not a
credible witness and has failed to mitigate her damages, and therefore is only
entitled to a modest award.

[2]            
The plaintiff was 27 years of age at the date of trial. The first
motor vehicle accident took place on September 29, 2007 (“First Accident”) in
the Vancouver area, the second accident was on November 28, 2007 in the
Vancouver area (“Second Accident”), and the third accident took place on March
1, 2011 in Fort St. John (“Third Accident”).

[3]            
The plaintiff graduated from high school in 2003. She took a
course in esthetics the following year, and did manicures and pedicures for
friends and family as a side job for approximately one year. She played soccer,
volleyball, basketball, enjoyed boating, riding all-terrain vehicles,
snowboarding and socializing with her friends. She had various jobs after high
school, including working in sales in various stores and the baking department
of Buy-Low Foods, which required her to unload boxes weighing up to 80 pounds.

[4]            
In April 2006 and June 2007, she was involved in motor vehicle
accidents where she was the driver. They were single vehicle accidents. Her
injuries were minor in nature and were resolved after a few months following the
accident. In any event, they were resolved prior to the First Accident.

[5]            
The plaintiff, along with her boyfriend Mr. Schiffman, moved
to Coquitlam in the latter part of September 2007. Mr. Schiffman was
driving his vehicle, and came to a stop at a red light. At that point, they
were rear-ended “really hard”, driving their car forward four to five feet. The
plaintiff was in shock and was emotional. She developed soreness in her back
and neck. She saw a doctor the following day and felt that her injuries were
ten times worse, and she suffered from headaches on a continuing basis. It was
recommended that she take physiotherapy. She was also prescribed muscle
relaxers, sleep medications and anti-anxiety medication. She said she attended
physiotherapy two to three times per week following the accident until sometime
in January 2008. The physiotherapy records indicate that between October 17,
2007 and December 4, 2007, she only attended 11 physiotherapy treatments.

[6]            
She found she was in too much pain to look for employment, due to
her constant headaches and pain in her neck and back.

[7]            
In the Second Accident, Mr. Schiffman was driving a small
Toyota motor vehicle. He was driving down the road when they were struck on the
driver’s side of the vehicle. The plaintiff recalled being “jerked around” in
the car. The damage sustained in the accident rendered the vehicle inoperable. Ms. Dakin
described her injuries as an aggravation to the injuries she suffered from the
First Accident, specifically her mid-back pain, neck pain and headaches. The
pains became more intense. The headaches were present almost every day, and
sometimes they would last more than one day. She took medication, physiotherapy
was recommended, and the record shows that she attended two physiotherapy sessions.

[8]            
The plaintiff went to Vernon in December of 2007 to be with
family and then returned to the Vancouver area to search for work. She said the
physiotherapy treatments had been cut off by ICBC. She found employment with
Guess Clothing in Metrotown as a sales clerk. She worked 20-25 hours per week
at $8 per hour. Generally, after a day at work she felt tired, with soreness in
her back and neck. She continued to take sleeping pills, anti-anxiety
medication, and muscle relaxers to deal with her pain. During the period between
January and March 2008, the back pain became worse.

[9]            
Mr. Schiffman said that when he met the plaintiff around
June of 2007, he found her to be very active and full of life and not suffering
from any physical problems. He described the First Accident as knocking his
vehicle forward 4-5 feet when it was stopped at a stop light. Between the First
and Second Accident he describes the plaintiff as not being very active. She had
lots of anxiety.

[10]        
He described the pain and physical limitations of the plaintiff
and described how the relationship ended in part because of these physical
limitations including neck and back pain, anxiety and depression. They
separated in February 2008.

[11]        
She returned to Vernon to live with her mother.  She found that
the termination of her relationship and moving back to Vernon made her feel
depressed.

[12]        
The plaintiff found work in Vernon preparing food for a
restaurant on an on-call basis, and working at the local hospital preparing and
serving food to patients. She worked at the restaurant 5 days per week and 4-6
hours per day. At the end of the shift, she would feel sore and have a headache.
She earned between $9 and $10 per hour.

[13]        
At the hospital, she earned approximately $16 per hour. She was
initially on call at the hospital, working approximately 2 shifts per week for approximately
8 hours per day. The work was more physical than the restaurant work and she
suffered from a sore neck and headaches from the work.

[14]        
Between March 28, 2008 and March 4, 2009, she attended physiotherapy
on 31 occasions. She said that she attended 2-3 times per week, but over that
period of time, which was approximately 48 weeks, she did not average even one
session per week.

[15]        
Her physiotherapist recommended a kinesiologist, Mr. Tim
Cooper.

[16]        
Mr. Cooper gave evidence that the situation with the
plaintiff was somewhat unusual because he was contacted by the insurance
company who told him he was permitted to have six sessions with her, after
which she was given a three-month gym pass. This was not a program designed by
him, but by the insurance company. He said the ideal program would involve 8-12
weeks of supervision. The plaintiff in fact only received 5 scheduled sessions,
two of which were the assessment and a reassessment. Mr. Cooper requested
that the insurance company provide additional sessions for the plaintiff due to
her chronic pain; that request was denied. He said he 2was not surprised Ms. Dakin
did not return to the gym after the supervised sessions.

[17]        
The plaintiff’s evidence was that she did not return to the gym
because she was working full-time, had no energy, and her pain increased at the
end of the day.

[18]        
In October 2008, the plaintiff moved to Rutland, near Kelowna,
British Columbia.  She found work with Roots Clothing at $10/hour and was
promoted to assistant manager at a salary of $30,000 per year. She said she
could not perform the heavy lifting and had other employees perform those duties
for her. In October 2009, the plaintiff moved to Fort St. John. She was still
having ongoing back and neck pains as well as headaches two to three times a
week in addition to having problems with sleep due to pain and anxiety.

[19]        
In Fort St. John, the plaintiff moved in with her friend Brenda
Thompson and Brenda’s family. Ms. Dakin immediately found work as a server
at a restaurant called Casey’s Pub working split shifts in the afternoons and
evenings. She felt sore following her work at the pub and had constant
headaches.

[20]        
In March 2011, she applied for a position as an airport security
screener. She was ultimately hired and commenced working at the airport. Her
work involved checking tickets, operating the x-ray machine and searching
baggage.

[21]        
Just prior to commencing work at the airport, she was involved in
the Third Accident on March 1, 2011. The car in which she was a passenger was
rear-ended. The collision caused her to be pushed forward then backward in the
seat. Her neck and back problems were still ongoing at the time. The accident intensified
the pain in her neck and back and her headaches became more frequent. She was
prescribed muscle relaxants by her doctor, and was referred to a
physiotherapist.

[22]        
She commenced physiotherapy on April 6, 2011. Between that date
and October 17, 2012, she attended physiotherapy 46 times. She continues with
her physiotherapy and does home-based exercises with light weights and an
elliptical trainer.

[23]        
The plaintiff found the work at Casey’s Pub more difficult,
especially carrying trays with drinks and food. She left the job at Casey’s
Pub. She also left the airport job as it proved difficult to lift heavy
luggage.

[24]        
The work at the airport was 12-15 hours per shift. She worked
until October 2011, and then found a job with Marlin Travel. In July 2012, she
was terminated from her work with Marlin Travel. Even though that job did not
require any lifting, she experienced neck and back pain along with headaches.

[25]        
In August 2012 she started to work as a server at Jackfish
Dundees Pub in Fort St. John. She continued to work there as of the time of
trial. She works 20-30 hours over 4-6 days per week. Following her shifts, her
neck and back are sore more so than before the shifts. The headaches are frequent,
and she often feels exhausted as a result of the pain.

[26]        
Prior to the Third Accident, while in Fort St. John, she obtained
forms to apply for a program to enter the field of Early Childhood Education. She
obtained the forms for the program just prior to the Third Accident. She said
that the application required a physician to sign a statement saying she could
lift 50 pounds, but when she took the application to her doctor, he told her
that he could not certify that fact. In cross-examination, the plaintiff
admitted that there was nothing in the application form that specified a 50
pound lifting capacity. The plaintiff responded that perhaps the physician told
her that he could not sign it because 50 pounds was the weight of many of the
children she would be working with, but the fact is there is no evidence whatsoever
that she attended a doctor during this period of time for this purpose.

[27]        
The plaintiff does not actively participate in many of the
activities in which her friends engage in the north such as shooting or hunting.
She continues to socialize, but does so less than before the accidents. She
continues to have pain in her neck almost every day as well as in her back. She
continues to have headaches and relies on anti-anxiety and sleep medication. She
describes her anxiety as being so severe that it causes her to become dizzy and
to suffer from depression.

[28]        
Brenda Thompson said that she had known the plaintiff for nine
years but saw her frequently between 2003 and 2006. She described the plaintiff
as being kind of high spirited and full of life. As previously noted, when the
plaintiff moved to Fort St. John, she moved in with Ms. Thompson. Ms. Thompson
noted that Ms. Dakin appeared to be in pain, taking medication and was not
“up”. She appeared tired. She did not socialize as much and did not participate
in tobogganing and bowling.

[29]        
Ms. Thompson was driving the car during the Third Accident on
March 1, 2011. The plaintiff was a passenger. They were stopped at a pedestrian
crossing and were rear-ended. She was jarred forward and then backwards and had
a sore neck and shoulder. Damage to the back bumper of the car totalled $1,300.
She described the plaintiff as in a lot more pain after the accident, and anxious
when driving or being a passenger in a car.

[30]        
The plaintiff moved out of the Thompson home in April/May of 2011.
They still see each other. Ms. Thompson describes the plaintiff as
complaining of a sore neck and back and having headaches after working.

PHYSIOTHERAPISTS

[31]        
Ms. Sheila Branscombe gave expert evidence as an
occupational therapist qualified to give opinion evidence in functional
capacity and cost of care. She was of the view that:

Ms. Dakin was found to be
physically capable of work in the “medium” range of demands. “Medium” is defined
as handling weights of 20 to 50lbs up to 1/3 of the working day or weights of
up to 25 lbs frequently. Ms. Dakin is able to lift 25lbs which is just
within the medium range. In order to avoid functionally limiting pain, Ms. Dakin
should work within the “light to medium” range of physical demands.

She also states:

Mrs. Dakin displayed signs
of pain/discomfort when performing tasks that required neck and mid back
muscles. Her mid back pain and discomfort reached functionally limiting levels
during FCE testing.

[32]        
With respect to the reliability testing, she states:

Overall, Mrs. Dakin’s
subjective reports of pain/limitations were found to be reliable/accurate with
the exception that Mrs. Dakin was found to have a slight tendency to underrate
her pain when using the Functional Pain Scale, and overrate her pain when using
an undefined pain scale. She also has a heightened perception of her disability.

[33]        
At page 6 of her report she states:

Overall, Ms. Dakin did not
respond positively to any of the placebo tests given, increasing the
reliability of her self reports.

[34]        
In her summary, Ms. Branscombe stated:

Disability was found to be
related primarily to pain involving the mid back and neck. Overall test
findings, in combination with clinical observations, identified Ms. Dakin’s
subjective reports of pain and associated disability to be overall reasonable. However,
like many individuals with ongoing pain, Ms. Dakin has reduced her overall
activity level to assist in managing her pain, thus producing a greater
perception of disability. Additionally she has not maintained her participation
in an exercise [program] which was recommended to reduce pain.

[35]        
Ms. Arlana Taylor, a physiotherapist, provided a rebuttal
report and gave evidence at trial. Ms. Taylor was most critical of Ms. Branscombe’s
assessment of the plaintiff, saying that Ms. Branscombe should have
employed more objective tests.

[36]        
Ms. Taylor makes some very critical statements of Ms. Branscombe.
For example, she states:

It appears that Mrs. Branscombe
may be looking to assist Ms. Dakin’s reports of pain with certain
activities (as given in the interview) without objective findings to support
this during the FCE.

[37]        
On cross-examination Ms. Taylor was unable to explain what
she meant by “looking to assist”, but kept repeating that Ms. Branscombe
should have performed more objective testing.

[38]        
What is most disturbing about Ms. Taylor’s report is that
she describes what she says are discrepancies in Ms. Dakin’s reports to
various medical professionals at various points in time. She then lists
approximately 1½ pages of these discrepancies and states that it was
appropriate for her to make these comments as they were relevant in assessing a
client’s reliability. When questioned why she also did not highlight the
consistencies within the plaintiff’s reports to other medical professionals,
she could not provide a rational answer. I am satisfied that the only reason
she provided discrepancies in the plaintiff’s reports to other medical professionals
was to attack the plaintiff’s credibility. Her evidence was not fair, balanced or
objective, I am satisfied that Ms. Taylor was more of an advocate on
behalf of a client. I therefore reject her evidence.

MEDICAL EXAMINATIONS

[39]        
Dr. Giantomaso, a specialist in physical medicine and
rehabilitation filed a report dated March 23, 2012 (date of assessment March
16, 2012) and a follow up report dated August 2, 2012 (date of assessment July
31, 2012). Dr. Giantomaso did not give evidence at the trial, save and except
for filing his report.

[40]        
On his initial report he diagnosed:

1.       Cervical WAD-II injury.
Chronic.

2.       Thoracic sprain/strain
injury, grade I-II. Chronic.

3.       Lumbar sprain/strain
injury grade I-II. Chronic.

[41]        
His diagnosis was that the Second Accident exacerbated the
previously existing injuries of Ms. Dakin, as did the Third Accident. Based
on his examination, he was of the opinion that she has experienced daily
chronic pain essentially from the September 29, 2007 motor vehicle accident to
the present. and her prognosis was permanent injury and incomplete recovery. He
finds that the plaintiff would benefit from an active kinesiology program to
get her back on track as far as conditioning is concerned, and that her future
vocational options are limited. He also found that:

Retraining may be very beneficial
in the future as currently she is qualified for only positions that would
require work of a very sedentary nature, without the ability to change
positions or for flexibility in her work schedule, unless she is employed by a
very understanding employer.

[42]        
He was of the view that a referral to a chronic pain specialist
would be helpful as would vocational retraining.

[43]        
Dr. Duncan Laidlow gave evidence. He was qualified to give
opinion evidence with respect to physical medicine and rehabilitation. His
report was dated July 14, 2012. The date of his examination was December 16,
2011. He was of the opinion that Ms. Dakin had a whiplash-associated
disorder Type II and needs to be set up with a good exercise program in the
community that she would undertake on her own. He was of the view that if she
carried out such a program for a year, she could expect to restore her range of
motion and improve her strength. He was of the view that she could work as a
travel agent assistant or work in retail as she has done in the past. He also
stated at page 15:

She has an interest in getting
into early childhood education, but the main problem with that might be the
fact that she would have to lift children on a fairly frequent basis. This
would probably be difficult for her at the moment, but I would anticipate that
she will be capable of doing that after about a year of rehabilitation, as
suggested.

He also stated that:

The fact that she has had so many
motor vehicle accidents and so many musculoligamentous injuries makes it likely
that she will have some mild mechanical pain in the neck and upper back area
and lower back into the future, but I do not feel that there is any indication
this will be the forerunner of further problems, beyond what we have already
seen, down the road.

[44]        
Dr. Giantomaso in his reply to Dr. Laidlow’s report
stated that:

As Dr. Laidlow has only
suggested exercise as an ongoing treatment, Ms. Dakin is limited in her
possible modailities for treatment in the future. The likelihood of complete
resolution of pain almost five years after an initial accident with ongoing
suggestion of pain throughout her history, is very poor. In fact, most studies
have shown that the resolution of chronic pain lasting more than two years is
usually less than 5%.

[45]        
On cross-examination, Dr. Laidlow agreed that the problems
of anxiety and depression are comorbid, thus complicating and prolonging
recovery. He also agreed that overall treatment for anxiety and depression needs
to be taken into consideration and dealt with.

[46]        
Dr. Laidlow has stated that he was optimistic that an active
exercise program would be of some benefit to improving functional and
diminishing pain for Ms. Dakin, but he based that opinion on his “clinical
practice” and the literature. He admitted on cross-examination that with
respect to someone who has had chronic pain for five years and been in multiple
motor vehicle accidents, there is no literature to support that contention.

[47]        
I prefer Dr. Giantomaso’s opinion that the chance of
resolution of chronic pain that lasted more than two years is less than 5%. I
prefer Dr. Giantomaso’s opinion because he has based it on most recent
studies although I do not at all diminish the fact that Dr. Laidlow is a
highly qualified specialist. I am satisfied from the medical evidence that the
plaintiff needs an active rehabilitation program and her prognosis of
significant recovery is poor.

CREDIBILITY OF THE PLAINTIFF

[48]        
The defendant points out numerous inconsistencies in the
plaintiff’s testimony. One example is that in March 2012, Dr. Giantomaso
stated that “[s]tanding and walking are better tolerated and are generally
unlimited.” In Ms. Branscombe’s report of April 20, 2012, the defendants
say that the plaintiff advised Ms. Branscombe “that walking was limited to
10 minutes”. This, I am satisfied, is an unfair characterization of what is
contained in Ms. Branscombe’s report. Ms. Branscombe states at page
24 of her report concerning the plaintiff’s walking, she was able to “manage a
rural path for about 10 minutes”.

[49]        
The defendants point out that the plaintiff received Flexeril
pills on September 22, 2011. When she attended her examination for discovery
eight months later, she was advised that she had been taking around four of
those pills per week.

[50]        
In examination for discovery, she also said that she would take
one, sometimes two, but never more than two pills and then said that when she
takes two pills she was referring to anti-depressant medication.

[51]        
The plaintiff has given contradictory evidence with respect to
her attendance at physiotherapy. She said she attended physiotherapy two or
three times a week in Vernon, but that is not consistent with her records. She also
advised Dr. Apel in her March 24, 2009 report that she was attending
weekly physiotherapy treatments for over a month, which the records do not
support.

[52]        
The defence also pointed out that in her examination for
discovery in May 2012, she advised that her lower back pain was resolved by
July 2008. On direct-examination, she claimed her low back pain continues at
the present time. On a fair reading of her examination for discovery, however,
when asked about lower back pain resolved in July of 2008, she said “Yeah, it
may be”.

[53]        
The plaintiff argues that she is a poor historian with a poor
memory and that when she was cross-examined about the gap in physiotherapy
treatments in Fort St. John between April 2011 and December 2011, she could not
give an explanation other than perhaps it was not covered by ICBC. The
receipts, however, suggest that she did undergo physiotherapy during that
period of time.

[54]        
All of the medical professionals that attended upon the plaintiff
did not have any issue with her truth or sincerity. I am satisfied that she was
an honest witness that suffered from a poor memory. However, she also appeared
to be careless when she gave her evidence and appeared to rush her answers in
cross-examination in order to “get the trial over with”. I am also satisfied
that she has exaggerated some of her injuries.

[55]        
The defendants have entered into evidence photos posted on the
plaintiff’s Facebook between 2007 and 2009, which the defendants say are
inconsistent with her physical limitations.

[56]        
I do not place much weight on those photographs. They are staged,
at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie
v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook
photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking
compensation for what she has lost, not what she can still do.” I agree.

[57]        
The defendants claim that the plaintiff has not mitigated the
damages by not completing the ICBC-funded kinesiology program. They say she
should have attended the gym in Kelowna where she purchased a gym pass after
both doctors that examined her recommended that she engage in physical
reactivation programs. I am satisfied that the kinesiology program was not a
proper one for the plaintiff as it was designed based on the amount of money
ICBC was willing to pay. I accept Mr. Cooper’s view that the program was
not property designed for her. When considering the number of physiotherapy
treatments she has had over the years and the amount spent on medication, I am
not satisfied that the defendants have proved that the plaintiff failed to
mitigate her losses. There is no medical evidence to support the argument that
the completion of the kinesiology program would have lessened the pain she
would have suffered in her neck and back.

PAST LOSS OF WAGES

[58]        
The plaintiff says that she was just about to begin looking for
employment at the time of the First accident. She claims that as a result of
her injuries from the First Accident she was unable to work, but ultimately did
receive some medical employment insurance. She claimed a loss of $3,000 for
past loss of earnings. I am satisfied that but for the accident she would have
found some employment and I assess the amount of $2,000.

NON-PECUNIARY DAMAGES

[59]        
The plaintiff says that considering her young age (22 at the time
of the First Accident), the nature and extent of her injuries, the fact that
her pain is now chronic, the change of lifestyle caused by the accidents, and the
impairment of her physical abilities, a range of damages from $60,000 to
$75,000 is proper. She relies upon the following authorities:

Kardum v. Asadi-Moghadam,
2011 BCSC 1566

Tarzwell v. Ewashina,
2011 BCSC 1464

Guthrie v. Narayan, 2012
BCSC 734

Kilian v. Valentin, 2012
BCSC 1434

[60]        
The defendants argue that the appropriate range of damages was
between $30,000 and $35,000 and rely upon:

Hsu v. Williams, 2011
BCSC 1412

Bradley v. Groves, 2009
BCSC 1882

Nisbit v. Pare, 2007
BCSC 1173

[61]        
I am satisfied based on the two reports of Dr. Giantomaso
that the plaintiff has chronic pain and there is only about a 5% chance that the
pain will be resolved. I do take into account the fact that the plaintiff is
suffering from anxiety and depression but these heads of damages were not
pleaded and I consequently assess non-pecuniary damages at $45,000.

LOSS OF FUTURE EARNING CAPACITY

[62]        
Our Court of Appeal in Perren v. Lalari, 2010 BCCA 140,
summarizes the two approaches the Courts have taken in the assessment of future
loss of earning capacity. Madam Justice Garson at para. 12 states:

One is what was later called by
Finch J.A. in Pallos the ‘real possibility’ approach. Such an approach
may be appropriate where a demonstrated pecuniary loss is quantifiable in a
measurable way; however, even where the loss is assessable in a measurable way
(as it was in Steenblok), it remains a loss of capacity that is being
compensated. The other approach is more appropriate where the loss, though
proven, is not measurable in a pecuniary way. An obvious example of the Brown
approach is a young person whose career path is uncertain.

[63]        
Here there has been no attempt to quantify the pecuniary loss
that the plaintiff says she has suffered and because of her young age and the
fact that her career path is uncertain, the appropriate approach is an
assessment of the capital loss that the plaintiff has suffered.

[64]        
I accept the evidence of Dr. Giantomaso that “her future
vocational options are limited” and that she is “currently qualified for only
positions that would require work of a very sedentary nature”. Furthermore, I
accept that because her pain has been chronic for over two years, there is only
a 5% chance that the pain will be resolved.

[65]        
I also accept the evidence of the physiotherapist, Ms. Branscombe
that “in order to avoid functionally limiting pain Ms. Dakin should work
within the ‘light to medium’ range of physical demands.”

[66]        
I am satisfied, because of this evidence, that there is a real
and substantial possibility that the plaintiff will suffer pecuniary loss in
the future and that she has been rendered less capable overall of earning
income in all types of employment and has lost the ability to take advantage of
all job opportunities which might have otherwise been open to her had she not
been injured. I therefore assess her loss of future earning capacity at
$50,000.

COST OF FUTURE CARE

[67]        
I am satisfied that the plaintiff will require some medication. The
defendants, however, are not liable for medication relating to anxiety or
depression. The plaintiff will require an exercise program with a kinesiologist
on an expanded program as recommended by Mr. Cooper. She will also require
some modest occupational therapy. I do not consider that she needs any new
equipment to help with home maintenance and yard work that she does not already
have. I assess the present day costs of future care at $10,000.

SPECIAL DAMAGES

[68]        
Special damages claimed by the plaintiff amount to $2,976.51. The
cost of medication for anxiety and depression must be taken out of those
damages and one must look rather critically at the fact that her costs of taxis
are somewhat suspicious when one considers the relatively short distance that
she had to travel. At the end of the day, I am satisfied that $1,000 in special
damages is fair to both parties.

SUMMARY

[69]        
In summary, I award the following:

The
Honourable Mr. Justice F.W. Cole