IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150420

Docket: M139260

Registry:
New Westminster

Between:

Shalini Gupta

Plaintiff

And

John Doe and / or
Jane Doe and

Insurance
Corporation of British Columbia

Defendants

– and –

Docket: M149192

Registry:
New Westminster

Between:

Shalini Gupta

Plaintiff

And

Roberto Mantelli
and Blaak’s Enterprises Ltd. doing business as

White Rock Sports

Defendants

– and –

Docket: M159081

Registry:
New Westminster

Between:

Shalini Gupta

Plaintiff

And

Rinki Gera and
Pankaj Kataria

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

Introduction

[1]            
The plaintiff, Mrs. Gupta, claims damages arising from injuries suffered
in three motor vehicle accidents. Liability has been admitted by all of the
defendants in each of the three actions.

[2]            
The most significant head of damage claimed by the plaintiff is for her
loss of past and future income which the plaintiff submits should be assessed
in a “capital asset fashion”. In assessing the plaintiff’s claims for loss of
income, one important finding of fact will be the change in her career path
from employment at Scotiabank to opening a business in late 2011 as a Kumon
franchisee. Kumon is an after-school mathematics and reading program for
children. The plaintiff submits that due to the injuries resulting from the
accidents, she could not continue in her career with the bank which would have
been more lucrative than operating the Kumon franchise.

[3]            
The defence submits that the plaintiff was intending to change careers
in any event of the accidents and that her income to date and in the future is
likely to exceed what the plaintiff would have earned at the bank. The defence
has challenged the credibility of the plaintiff regarding the reason behind her
change in careers.

Background

The Accidents

[4]            
I will refer to the accidents by reference to the year in which each
respective accident took place, ie. the 2009 MVA, the 2011 MVA and the 2014
MVA. The 2014 MVA was very minor but is alleged to have aggravated the injuries
suffered by the plaintiff in the 2011 MVA.

The 2009 MVA

[5]            
On December 22, 2009, the plaintiff was driving her van in Surrey with
the intention of dropping off her two children at their school when she was hit
from behind by an unidentified vehicle, which was immediately driven from the
accident site after the plaintiff had pulled her van off the road. The
plaintiff’s vehicle was considered a total loss although her insurer continued
to deny liability for the accident until shortly before trial in October 2014.
The purported reason for denying liability for the 2009 MVA was an allegation
of fraud. Upon finally admitting liability, the insurer paid the total property
loss of the plaintiff for the value of the vehicle.

The 2011 MVA

[6]            
The 2011 MVA occurred on March 11, 2011 and was by far the most
significant in terms of damage and injuries to the plaintiff. On that day the
plaintiff’s husband was driving a Honda Odyssey van on Highway #1 in Burnaby
with the plaintiff in the front passenger seat and their two children and a
friend’s children in the back seats. They were intending to take the children
to a Vancouver Giants’ hockey game. The Honda was driving westbound in the HOV
lane when the Honda was hit on the right side by a vehicle which had suddenly
changed lanes into the HOV lane. The right front of the Honda was struck by the
other vehicle. The plaintiff’s knee hit the dashboard and an air bag deployed, striking
the plaintiff in her chest and causing swelling. After the accident the
plaintiff remained in her seat until the ambulance arrived. The emergency
personnel had to force open the front passenger door. They placed the plaintiff
in a neck collar. The plaintiff was then taken to Burnaby General Hospital, as
was her husband.

The 2014 MVA

[7]            
On January 17, 2014 the plaintiff was driving a mini-van approaching the
driveway to her home which was located in a cul-de-sac. A neighbour was
meanwhile backing out of a nearby driveway and backed into the plaintiff’s
vehicle, striking the driver’s side in a t-bone fashion. Ambulance personnel
did not attend.

The Plaintiff Prior to the Accidents

[8]            
The plaintiff was 36 years old at the time of the 2009 MVA and is
currently 41 years old. She was born in India and obtained a Bachelor of
Science degree in 1995 and a Bachelor of Education degree in 1997, both in
India. The plaintiff was married in 1998 to Sanjay Gupta, who had obtained
degrees in mechanical and marine engineering. The couple arrived in Canada in August
of 2000 and settled in Surrey for one year. At first, the degrees earned by the
plaintiff’s husband were not recognized in Canada; however, he passed
qualifying exams later in 2000. The plaintiff was not in the workforce during
her early years in Canada.

[9]            
Two children were born to this couple, a daughter in 2001 and a son in
2003. The family soon moved to Nanaimo and Mr. Gupta obtained employment with
B.C. Ferries as a chief engineer earning “in the high $100,000s”. In addition
to raising the children, the plaintiff did some part-time work at a local
Boston Pizza and at a Hudson’s Bay store in Nanaimo and took an accounting
course at Malaspina College.

[10]        
The plaintiff became of the opinion that Nanaimo was too small for her
and lacked career opportunities for her, so the family decided to move back to
Surrey in 2007. The plaintiff was of the opinion that it was her “time to
pursue a career” and her opportunities would be better in the Surrey area. She
testified that she did not plan to become a teacher in spite of having earned
an education degree in India. The reason for not pursuing teaching
opportunities was the long wait anticipated for teaching positions. In 2008, Mr.
Gupta secured employment with Transport Canada (at a significantly lower
salary) and moved over to Surrey in advance of the family. Their home in
Nanaimo sold in 2009, which is when the plaintiff and her children moved to
Surrey to join her husband.

[11]        
The Gupta family purchased a lot in Surrey on arrival in 2009 and hired
a contractor to build their house, in which the family continues to live.

[12]        
In September of 2009, the plaintiff obtained a part-time position for
three days a week as a teller at the Guildford branch of the Scotiabank. Her
knowledge of languages, including Hindi and Punjabi, was of value to many of
the persons banking at that branch of the bank. The plaintiff testified of the
satisfaction she received working at the bank and that she planned on taking
additional training in a Canadian Securities course, which could lead to a
position as a Personal Banking Officer. She stated that she was “keen to learn”
and also sought out becoming a head teller. The plaintiff had been working at
the bank for approximately three months before the 2009 MVA.

[13]        
Regarding her health, the plaintiff testified that she did have previous
back pain, especially during her pregnancies, and suffered occasional back pain
thereafter but had not received any treatment. The plaintiff also experienced
tendonitis and had a removable cast which she rarely wore. She did not wear the
cast to perform her work as a teller at the bank.

The Plaintiff Following the 2009 MVA

[14]        
Following the 2009 MVA the plaintiff attended upon her family doctor
once, on January 6, 2010, and missed one day of work according to her
employment records at the bank. During the balance of 2010 up to the time of
the 2011 MVA, ie. March 11, the plaintiff did not have any further
appointments with her family doctor relating to injuries suffered in the 2009
MVA.

[15]        
In September 2010 the family moved into their recently-completed home
and the plaintiff testified she was feeling “fine” at that time. She further
testified that she continued to work part-time at the bank, was involved in
raising her children and did the house chores. The part-time position with the
bank suited the plaintiff; she testified she “didn’t want full-time” as the
part-time work gave her flexibility for her time with her children and
housekeeping. Counsel for the plaintiff has submitted that the plaintiff
recovered “quickly and swiftly” from the 2009 MVA and was fully recovered
within one year.

[16]        
The evidence also disclosed that prior to the 2011 MVA, the plaintiff
was active socially and was especially involved in the activities of her
children.

[17]        
In accordance with her stated career goals, on February 27, 2011 the
plaintiff enrolled in an Investment Funds in Canada course through the Canadian
Securities Institute (“CSI”).

The Plaintiff Following the 2011 MVA

[18]        
Following the 2011 MVA the plaintiff was released from hospital at 3:00
a.m. the following morning. She testified that her back was hurting, possibly
from lying on a gurney for several hours, her chest was swollen, her left knee
hurt as did her left shoulder with pain going all the way down to her hand. She
was also suffering some neck pain. Prescriptions given to the plaintiff helped
control any pain she suffered but caused her to become sleepy. Physiotherapy
was prescribed and the plaintiff testified that she continued to obtain
physiotherapy treatment through the summer of 2011. She also testified to
suffering jaw pain after the 2011 MVA and saw a TMJ specialist in June of 2011.

[19]        
Mrs. Gupta missed twenty-seven days of work following the 2011 MVA,
returning in May. She testified that work was difficult due to her injuries, in
part due to the work station at which she worked when performing the duties of
a teller. The bank retained an ergonomic consultant to recommend adjustments to
her work station; however, she testified that she continued to find it
difficult to work due to her injuries. Ms. Gupta also testified that sitting
for lengthy periods of time, often required of tellers, exacerbated her pain.

[20]        
Two of the plaintiff’s witnesses were her superiors at the Scotiabank.
Ms. Nayani was a Customer Service Supervisor and was involved in hiring
Mrs. Gupta at the bank. Ms. Nayani testified that in 2010 the plaintiff
was considered as a “distinguished” employee and “exceeded expectations”.
Subsequently following the accident, the assessments were not as positive. Ms.
Nayani also testified that Mrs. Gupta said she saw herself as working full time
in a bank in the future, so she encouraged her not to resign from the bank in
November of 2011. She testified that Mrs. Gupta was not on the bank training
program and that she was not aware, until after Mrs. Gupta had resigned, that
Mrs. Gupta had purchased a Kumon franchise. Finally, Ms. Nayani testified that
between May and October 2011 Mrs. Gupta worked regular shifts and duties as
expected of her.

[21]        
The second witness from the bank was Debbie Germyn, who is Manager of
Customer Service at the Guildford branch. Ms. Germyn testified regarding the
classification of employees at the bank, salary expectations for full time
staff including Financial Advisors, the courses needed to advance through the
bank hierarchy in order to become a Personal Finance Planner and her assessment
of Mrs. Gupta being able to advance at the bank. Ms. Germyn was not aware of
Mrs. Gupta having started any of the four programs needed to advance to,
for example, the F5 level at which an employee would earn $50,000. Ms. Germyn
concluded that Ms. Gupta was an “average employee”, and noted that most
employees of the bank at the Financial Advisor level generally had university
training in the area or a background in finance, neither of which had been
achieved by Mrs. Gupta. Finally, Ms. Germyn testified that to be a
full-time teller, an employee must exceed all expectations and that Mrs. Gupta
was never on the training program to become a full-time teller. The bank also
only maintained one full-time teller and there were many part-time tellers.

[22]        
Regarding her home life, Ms. Gupta testified that she could no longer
perform housework due to her injuries, which included cooking and cleaning, and
that her husband and the children performed many of the housework duties that
she had undertaken prior to the 2011 MVA. Eventually, Ms. Gupta retained a
housekeeper to do the cleaning and other household duties.

[23]        
Regarding the Investment Funds in Canada course, the plaintiff was
unable to complete the same due to pain caused by the 2011 MVA. She testified
that she found it difficult to concentrate, the course was difficult and she
needed more time to study. She testified that in May and June of 2011 she was
having difficulty concentrating and she was able to concentrate for 1 to 2
hours at most, unlike prior to the 2011 MVA when she could concentrate for 5 or
6 hours at a time. Further, she stated that she was often dizzy, had pain in
her left shoulder and arm and later in her right arm which made it difficult to
complete her work. She was unable to get an extension to be able to finish the
course. She testified she became demoralized and stressed out as a result of
the pain and frustration at not being able to complete the course.

[24]        
Mrs. Gupta continued to state that her husband suggested she consider
obtaining a Kumon franchise. Both Mr. and Mrs. Gupta testified that considering
the hours and the fact that Mrs. Gupta would be able to work from home and at
the Kumon franchise location, such work would be more compatible to her
injuries. Unlike her employment with the bank, Mrs. Gupta would be more mobile
and not required to sit for long stretches of time.

[25]        
Mrs. Gupta advised the Court that around this time, in October 2011, she
took a two or three week unpaid leave. On October 14, 2011, she sent an email
to one of her superiors at the bank stating, “As per doctor’s advice, I will be
taking 2 weeks off from Oct. 17^th to Oct 31^st, 2011”.

[26]        
The response from Ms. Nayani at the bank included the following:

…Anyways, the reason I was
calling is that I had to show your email requesting a medical leave to Debbie.
Initially I had told her that you were taking vacations and she was ok with it,
but your email mentioned that you were requesting a medical leave, which
changes everything. For a medical leave, we need a doctor’s letter and we have
to put you under STIP, and I remember you saying that you do not want to go on
STIP. The second option is the one you had talked to me about which is vacation
time and since you are in Nanaimo, it makes sense that you take vacations.
Since you have already requested a medical leave for 2 weeks, the 3^rd
option would be to take a leave of absence without pay, which will have to be
approved by Diane

[27]        
On November 3, 2011, Mrs. Gupta delivered a notice of resignation to the
bank effective November 17, 2011. In her resignation letter she stated:

I had to take this decision
because of my current state of health due to severe pain as a result of an
involvement in a motor vehicle accident encumbers me from discharging my duties
and providing the bank with the quality of service I have been giving in the
past.

Also in her letter of resignation Mrs. Gupta suggested
working fewer hours; however, she was not able to negotiate an agreement with
the bank to work fewer hours than in her previous part-time schedule.

[28]        
It is the evidence of Mrs. Gupta that only after she had resigned from
the bank did she make a decision to pursue a Kumon franchise. She testified
that it was not until November of 2011 that a Kumon franchise became available
when the owner of the franchise in Surrey near Scott Road and Nordel Way
decided to sell. As the plaintiff’s claim for loss of income and loss of future
income rests on her submission that she was not able to continue with her
position at Scotiabank because of her injuries and, hence, lost opportunities
of advancement, it is necessary for me to review how and when the plaintiff
came to be a Kumon franchisee.

Pursuing a Kumon Franchise

[29]        
Mrs. Gupta’s children had both been attending Kumon learning centres
prior to 2011 and so she was familiar with the programs offered and the nature
of the business. Mrs. Gupta testified that she first inquired into purchasing a
Kumon franchise in May of 2011, after having returned to work at the bank following
the 2011 MVA and finding she was unable to cope due to her injuries as outlined
above.

[30]        
Mr. Omar Haji, a former franchise manager for Kumon, testified for the
defence at trial and was the franchise recruiter for Western Canada. Inquiries
to purchase a franchise would come to Mr. Haji’s attention. On January 4, 2011,
Mr. Haji recorded an incoming call from Mrs. Gupta, who he understood to
be a parent of an existing Kumon student. He also recorded the name “Arlene”
who was the Kumon instructor working with the Gupta children. The record made
by Mr. Haji for the January 4, 2011 phone call was:

Arlene’s parent – child(ren) attended for 5 years?

Works p/t at Scotia Bank – is interested in Langley.

Was told that we have a
candidate in training.

Mr. Hoji testified that the information in this record
came from Mrs. Gupta.

[31]        
After January 4, 2011 Mrs. Gupta was entered in a “campaign mail” list
and, according to Mr. Hoji’s testimony, would have self-reported her email
address to Kumon for that purpose.

[32]        
On January 14, 2011 a Kumon franchise information package was sent to
Mrs. Gupta. On April 8, 2011, Mr. Haji sent to Mrs. Gupta admission passes to
the National Franchise Business Opportunity Show in Vancouver. His email also
stated that “if you wish to opt out of future emails from Kumon Math and
Reading, please let me know through email . . . “, however, Mrs. Gupta did not
opt out.

[33]        
On May 11, 2011 Mr. Haji made an entry in his records as follows:

Surrey-Guildford Parent 5/11 2011

Shalini has been having problems with her hotmail account so
we substituted her Yahoo account today. Now she has the latest information
package and we have scheduled next Tuesday as a KFS and pre-testing day.

Originally, she was interested
in Langley…  but she might be okay for North Delta. She works W-S at Scotia
Bank and wants to own her own business. She has friends who own Kumon Centres
(unverified) and says that she has about $50k to invest – could be more if she
asks husband, etc… Unfortunately, Shalini had a car accident March 11^th
and is a little bit sore and shaken. Husband works for Transport Canada.

[34]        
On May 17, 2011, Mr. Hoji sent an email to Arlene, the Kumon instructor
for Mrs. Gupta’s children, in which he stated:

Subject:  Application Received and KFS 5/17

Parent notification form sent to
Arlene – Hi Arlene, today, Shalini Gupta came to the office and submitted her
application and resume to become a franchisee. She has just started her math
and reading testing as I am writing this email. I found out through
conversation that Shalini had her children in Kumon at Nanaimo originally but
today attends your centre. I will give Shalini a Parent Notification Form today
so that she can approach you to discuss her goals. Shalini works p/t at Scotia
Bank but she is interested in taking over a centre, perhaps North Delta or
White Rock are possible opportunities. She originally went online to inquire
about Kumon opportunities in January of this year but was involved in a car
accident. She took a few months out and then we started to talk this month. If
you have any questions about Shalini, please don’t hesitate to ask me. Thanks
Arlene, Kind regards, Omar Haji.

On the same day, Mrs. Gupta completed the Franchisee
Application math test.

[35]        
Also on May 17, 2011, Mr. Hoji sent an email to Mr. and Mrs. Gupta
enclosing forms for “Parent Notification”, a “Financial Reality Quick Check”
and other documentation supporting an application for a Kumon franchise. The
requested forms were, according to Mr. Haji, received from the Guptas on May 19
and 23, 2011.

[36]        
Mr. Haji left Kumon in June of 2011.

[37]        
Exhibit 17 at trial included an email from Leslie Keelty, who was a
field consultant at Kumon. In her role she supported instructors and ensured
that operations at franchises were run correctly. In the email which was sent
on October 24, 2014, ie. during the trial, to an investigator for ICBC, Ms.
Keelty stated that “Shalini Gupta was sent the invitation to new instructor
training on June 13, 2011”, and that the franchise agreement was signed on
either October 31 or November 7, 2011.

[38]        
On June 23, 2011, Mr. Gupta signed a cheque on the couple’s joint
account in an amount of $500 payable to Kumon regarding “Kumon Franchise
Training”. On June 28, 2011, Mr. Gupta issued a further cheque to Kumon North
Delta in an amount of $4,000 as a “deposit for letter of intent” to “Svensson
Learning Services”. Svensson Learning Services and Kumon North Delta were the
then owners of the North Delta franchise.

[39]        
On September 14, 2011, Gupta Learning Services Inc. was incorporated in
British Columbia. Mrs. Gupta was the sole director of the new company.

[40]        
On October 25, 2011, Mr. Gupta deposited $50,000 which sum was then sent
by an official cheque of Coast Capital Savings to Svensson Learning Services
Inc.

[41]        
Between October 17 and 21, 2011, Mrs. Gupta travelled to New Jersey for
Kumon training. The time of the Kumon training in New Jersey coincided with the
time which Mrs. Gupta had requested from Scotiabank for medical leave.

[42]        
On December 1, 2011, Gupta Learning Services Inc. closed the purchase of
the North Delta Kumon franchise and has been operating the franchise ever
since.

[43]        
Mrs. Gupta’s T4 income in the years 2009 to 2013, as evidenced by her
income tax assessments was as follows:

·       2009 
$4,965

·       2010 
$19,440

·       2011             $16,264

·       2012             $19,000

·       2013             $13,000

2010 was the only year in which Ms. Gupta worked at the
Scotiabank for the entire year. 2009 and 2011 represented years in which Mrs.
Gupta worked at the bank for part of the year. 2012 and 2013 represent years in
which Mrs. Gupta was paid salary from Gupta Learning Services Inc.

[44]        
Mrs. Gupta was cross-examined on amounts of personal expenses that were
paid by her company, including cell phone costs, meals and entertainment,
automotive expenses and costs of a home office which would have to be added to
her income for the years since she commenced operation of the Kumon franchise.

[45]        
In 2014, Mrs. Gupta’s monthly payments to herself increased to $2,000
per month or $24,000 of T4 income per year, not considering personal expenses
now being paid by her company. Mr. Turnbull, an accountant and business
evaluator called as a witness by the plaintiff, agreed that based upon the
financial statements of the company, the business is growing and becoming more
profitable. The net income of Gupta Learning Services Inc. increased by $21,418
between 2012 and 2013. I agree it is clear the company is growing in
profitability.

Medical Evidence of the Plaintiff’s Injuries

[46]        
The expert medical evidence tendered by the plaintiff at trial was that
of her family doctor, Dr. Nayar, and a specialist in chronic pain, Dr. John
Armstrong. Dr. Armstrong was qualified as an expert in the field of
“expert complex non-cancer chronic pain, able to diagnose and prognose future
care for musculo-skeletal injuries”. Dr. Erik Calvert, an orthopaedic surgeon, was
retained by the defence and prepared a medical-legal report. Both Dr. Armstrong
and Dr. Calvert were cross-examined at trial.

[47]        
Regarding injuries suffered in the 2009 MVA, Dr. Nayar only attended on
the plaintiff once in early 2010 as a result of the accident and reported that
the plaintiff’s neck and shoulder symptoms resolved after a “few months”.

[48]        
Dr. Nayar attended upon the plaintiff on 11 occasions in 2011 and on
seven occasions in 2012 for injuries apparently related to the 2011 MVA. He
diagnosed Mrs. Gupta with whiplash injury to the neck and left shoulder, soft
tissue injuries to the chest and knees, a minor head injury and acute spasm of
the trapezius. In 2011 Dr. Nayar referred Mrs. Gupta to an orthopaedic surgeon,
Dr. Yu, who also diagnosed soft tissue injuries to her neck and shoulder. An
MRI of Mrs. Gupta’s left shoulder was normal.

[49]        
There was no diagnosis by any of the physicians testifying in this case of
any structural or mechanical dysfunction in Mrs. Gupta’s left shoulder, spine
or pelvis. However, Dr. Armstrong came to a conclusion in his report that Mrs.
Gupta is suffering from “chronic axial myofacial disorder, a soft tissue
disorder involving primarily her TMJs, neck, shoulders, back and pelvic girdle”
which condition is allegedly “perpetuated by sacroiliac joint dysfunction
causing SPR instability and misalignment”. “SPR” is a reference to the
spinopelvic ring, which by definition, would relate to Mrs. Gupta’s spine.
Spinopelvic ring dysfunction, or SPRD, is a condition that was allegedly
identified by a Dr. Schamberger, which is a controversial diagnosis not
generally accepted in the realm of orthopaedic medicine.

[50]        
Dr. Calvert for the defence testified that SPRD is not recognized in
orthopaedic medicine as a condition or disorder, although he had been made
familiar with the writings of Dr. Schamberger referred to by Dr. Armstrong.

[51]        
As Dr. Calvert was called as a witness for the plaintiff and his
evidence regarding SPRD contradicts that of Dr. Armstrong, the contradiction
leaves me in serious doubt as to the opinions of Dr. Armstrong on that issue.
Even if SPRD was a recognized orthopaedic condition, a diagnosis to that effect
is not consistent with the plaintiff’s complaints or of any of the diagnoses by
the other experts at trial. I note that Dr. Yu, an orthopaedic surgeon to whom
Dr. Nayar referred the plaintiff and who attended upon the plaintiff on two
occasions, did not diagnose the plaintiff as having any spinal or pelvic issues
as promoted by Dr. Armstrong. As there has been no finding of any disorder or
injury to Mrs. Gupta’s spine as a result of any of the accidents, I do not
accept the opinion of Dr. Armstrong regarding SPRD.

[52]        
Considering all of the medical evidence, I accept that Mrs. Gupta has
suffered soft tissue injuries to her neck and left shoulder, primarily caused
by the 2011 MVA. There is no evidence of a rotator cuff tear in the left
shoulder or of any neurological damage in her left shoulder or arm. The
injuries suffered in the 2014 MVA were very minimal but likely exacerbated, in
a minor way, the injuries suffered in the 2011 MVA, as evidenced by Dr.
Calvert’s report of July 29, 2014:

After a week she was back to
baseline and no new symptoms have been experienced as a result of the 2014
accident.

[53]        
The plaintiff claims that she has been suffering mood disorders and
depression following the 2011 MVA in particular, and that she continues to
suffer from depression. Dr. Nayar did opine that Mrs. Gupta was diagnosed with
depression; however, Dr. Nayar also testified under cross-examination that
Mrs. Gupta suffered prior depression and anxiety. It is not clear from the
evidence of Dr. Nayar that any depression that may be suffered by the plaintiff
is related to the accidents. Also, Dr. Armstrong, as an internist and a specialist
in neuromuscular disorders was not qualified to diagnose depression, but did
recommend that Mrs. Gupta attend on a clinical psychologist, which I
understand has not occurred. Considering all of the above, I conclude that if
Mrs. Gupta has suffered from depression as a result of the accidents, any such
depression has been of the mild variety and has not significantly impacted her
lifestyle.

[54]        
I also find, based upon all of the evidence, that Mrs. Gupta has
exaggerated the extent of the pain and the effect of the pain on the mood
disorders she has experienced as a result of the injuries she has suffered in
the accidents. As well, I find that in other aspects of her evidence, she has
not been truthful. Included in the evidence leading me to these conclusions is
the following:

·      
Mrs. Gupta’s evidence emphasized that she was unable to continue
to work at the bank after the 2011 MVA because the long hours of sitting and
other tasks required of her were too difficult in light of her injuries. She
testified that the bank position was her “dream job” and that were it not for
the accidents, especially the 2011 MVA, she would have continued her career at
the bank, possibly going on to become a Personal Banking Officer or head teller.
She also testified that she first began to consider owning a Kumon franchise
commencing in July or August 2011, then May of 2011 after the 2011 MVA. In
fact, the evidence shows Mrs. Gupta had begun as early as January of 2011 to
work down the path of owning a Kumon franchise. In January 2011 Mrs. Gupta was
in communication with Kumon and was expressing interest in a specific franchise.
She was knowledgeable of Kumon’s operations and that her education degree from
India could be of use to her in pursuing a Kumon franchise. The evidence also shows
that aside from enrolling in the Investment Funds in Canada course in February
2011, Mrs. Gupta had not taken any other steps towards furthering her stated
career goals at the bank. Ms. Nayani and Ms. Germyn both testified that Mrs.
Gupta was not enrolled in any of the bank’s training programs. The evidence
clearly contradicts her statements that she always wanted to remain with the
bank as a career.

·      
I also find that Mrs. Gupta was deceitful in her discussions with
the bank as to her intentions. In October of 2011, Mrs. Gupta sought medical
leave and eventually took vacation time to attend a Kumon training course in
New Jersey which she clearly did not wish to disclose to the bank. To seek
medical leave for a period of time and then leave to fly across the continent
to take a training course for another business opportunity was to mislead her
superiors at the bank.

·      
Mrs. Gupta at first testified that she had seen Dr. Nayan on
seven occasions after the 2009 MVA and prior to the 2011 MVA for injuries suffered
in the 2009 MVA. She eventually agreed that she had only seen Dr. Nayar once
for that purpose following the 2009 MVA.

·      
The defendant in the 2014 MVA, Ms. Gera, a neighbour to the Gupta
family, testified as to several well-attended parties and other social
gatherings Mrs. Gupta hosted at her house in 2014 (she estimated 5 or 6
events). She testified that she also saw Mrs. Gupta “bending over”, sweeping
out her garage, regularly playing with her small dog and doing other activities
that would have been inconsistent with the severity of her injuries as
described by Mrs. Gupta at the time. Mrs. Gupta denied doing these activities.
Ms. Gera was a straightforward witness and I find that Mrs. Gupta’s credibility
regarding the nature and extent of her injuries was impacted by Ms. Gera’s
statements.

[55]        
Both Dr. Nayar and Dr. Calvert testified that exercise including core
strengthening and a planned exercise program would reduce Mrs. Gupta’s symptoms
and discomfort, increase her functioning and also likely improve her mood
disorders. While her testimony indicated she may have done some exercises at
home, she did not execute a planned training program or follow the other
exercise recommendations. The same medical experts also agreed that Mrs. Gupta
has not sought out treatment for her mood disorders as had been recommended by
Dr. Nayar in particular and also by Dr. Calvert. The treatment would
include anti-depressants and counselling. Mrs. Gupta has not sought out
counselling and is not partaking of anti-depressants. As well, even though Mrs.
Gupta had been referred to physiotherapy by Dr. Nayar at an early stage, it was
only in 2014 that she attended for physiotherapy sessions. I conclude that Mrs.
Gupta has failed to mitigate via adequate and planned physical exercise,
physiotherapy and counselling so as to alleviate her conditions. There has not
been an adequate explanation from Mrs. Gupta as to why she has failed to
follow the advice of Drs. Nayar and Calvert in this respect.

The Claims of the Plaintiff

Past Income Loss

[56]        
Over the years 2011 to 2014 the plaintiff claims $50,000 as a fair
assessment of her past income loss based upon calculations performed by Mr.
Turnbull. Mr. Turnbull has based his calculations on the assumption of the
plaintiff having completed the Investment Funds in Canada course by February
2012 and “on her way to being a successful PBO [Personal Banking Officer]” as
per the written submissions of counsel for the plaintiff. The claim is for
wages lost up to the date of commencement of the trial in October 2014.

[57]        
The evidence discloses that after the 2009 MVA Mrs. Gupta missed one day
of work due to the accident and after the 2011 MVA missed a total of 27 work
days. The defence admits that Mrs. Gupta is entitled to be compensated for the
28 lost work days for the first two accidents.

[58]        
The issue of whether she is entitled to further compensation for income
allegedly lost as a result of not being able to pursue her career goals at the
bank on account of her injuries is more contentious.

[59]        
At the heart of any expert opinion are the assumptions upon which the
opinion is based, which assumptions are usually described in an instructing
letter from the plaintiff’s counsel and, hopefully, in the evidence. At para. 9
of his report on past wage loss, Mr. Turnbull stated:

I understand that absent the
accidents Ms. Gupta had intended to pursue a career in the banking industry but
that it is now expected that she will be unable to return to her pre-accidents
employment

[60]        
I find that on a balance of probabilities, Mrs. Gupta did not intend to
pursue a long term career with the bank as evidenced by the following:

a)    Mrs. Gupta
worked for the Scotiabank for a period of just over two years as a part-time
teller. Her stated career goals at the bank were contingent on her being
promoted through the bank’s positions. However, I conclude on the evidence
before me that even if she had stayed at the bank and the accidents had not
occurred, it is unlikely she would have been promoted through these positions.
A condition precedent to advancement to the positions contemplated by the
plaintiff at the bank was completion of certain prescribed CSI courses, none of
which had been completed by the plaintiff by the time she left the bank in
November of 2011. As well, additional courses over and above that which the
plaintiff failed to complete would have been required, the plaintiff’s
evaluations would have to have been exceptional and most employees entering
into a more senior positions at the bank were university trained in finance,
none of which conditions had been satisfied by the plaintiff. Although she
definitely had some successes during her tenure at the bank, her supervisor
testified she was an “average employee”. Another consideration for advancement
was that the plaintiff only had experience as a part-time teller and the
opportunities for advancement from that position were not widespread, according
to the witnesses from the bank.

b)    As discussed
earlier in these reasons, I find that Mrs. Gupta had long intended to enter
into business and as of January 2011, had already begun the process of seeking
out a Kumon franchise as her business enterprise. By May 2011 Mrs. Gupta had
completed the franchisee application, the math and reading test and financial
information forms in support of an application for a franchise. In June 2011,
Mrs. and Mr. Gupta had paid a total of $4,500 in deposits towards a franchise
and Mrs. Gupta had been invited to new instructor training. Also, by posting
deposits in June 2011, it had to have been apparent to the plaintiff and her
husband that a franchise would become available for purchase.

c)     Even if I
am wrong in finding that Mrs. Gupta never intended to remain with the bank and
did not intend to enter into a Kumon franchise agreement, I find that with the
benefits she has received through Gupta Learning Services Inc. in addition to
her draws or wages, Mrs. Gupta has earned an amount which is very close to or
more likely exceeds what she would have earned with the bank had she continued
to work for the bank.

[61]        
For the reasons set out above, the claim of the plaintiff for past
income loss is limited to the 28 days of lost work admitted by the defence
which sum, I leave to the parties to calculate, such calculations not being
before me. If agreement cannot be reached, the parties may set down an
application for a determination of the quantum of past income loss based upon
28 days of lost work.

Future Income Loss

[62]        
The reasons as to why I have rejected the submissions of the plaintiff
for her past income loss apply equally to the loss of future income. The
evidence before me on the income of the plaintiff is that she is now earning
more than she had been while a part-time teller at the bank, her business is
growing and likely to become more profitable and I find it very unlikely that
the plaintiff intended to continue employment with the bank and/or that it was
likely she would be promoted in the future to the positions contemplated by her
in her claim. Accordingly, the claim for future income loss is rejected and the
calculations undertaken and assumptions made by Mr. Turnbull in his report are
not based upon the evidence.

Non-Pecuniary Damages

[63]        
An award of non-pecuniary damages must reflect not just the extent of
injuries suffered by the plaintiff but the impact the injuries have had on the
life of the plaintiff. The factors to consider when assessing non-pecuniary
damages were summarized by Madam Justice Kirkpatrick in the often quoted
decision of Stapley v. Hejslet, 2006 BCCA 34:

[46]      The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

a)     age of the
plaintiff;

b)     nature of
the injury;

c)     severity
and duration of pain;

d)     disability;

e)     emotional
suffering;

f)       loss
or impairment of life;

I would add the following factors,
although they may arguably be subsumed in the above list:

g)     impairment
of family, marital and social relationships;

h)     impairment
of physical and mental abilities;

i)       loss
of lifestyle; and

j)      
the plaintiff’s stoicism (as a factor that should not, generally
speaking, penalize the plaintiff).

[64]        
The plaintiff submits in written submissions that of the factors
mentioned in Stapley, “the most important… is the change in the
projection of her career and working life. She went from secure employment with
the bank with the intention to start full-time and advance into personal
banking, to opening her own business to juggle her injuries, chronic pain and
to keep her busy”. Later, the plaintiff’s submissions state that a factor is
“she has also lost what she perceived as her dream job” which the plaintiff
submits plays a role in the loss of enjoyment of life and career satisfaction.

[65]        
The plaintiff submits that the award for non-pecuniary damages should be
in the range of $100,000 to $140,000. The principal authority on behalf of the
plaintiff is Debou v. Bessener, 2014 BCSC 1766 in which the plaintiff
was a very experienced trial lawyer. His injuries had a profound impact on his
ability to practice law so he was awarded $140,000 in non-pecuniary damages. I
do not agree with the submission of the plaintiff that the injuries suffered by
Mrs. Gupta are “strikingly similar” to those suffered by Mr. Debou. I am not
satisfied on the evidence that the accidents, particularly the 2011 MVA,
impacted the plaintiff’s work in any material way. There was an impact
following the 2011 MVA which caused the plaintiff pain and suffering when
having to sit for lengthy spells; however, accommodations were made for her by
the bank and her condition improved during the time she remained at the bank. I
also have found that the change in careers by Mrs. Gupta was of her own
choosing and was not related to any difficulties she experienced while working at
the bank. As well, as stated previously in these reasons, I have concerns
regarding the credibility of the plaintiff and find that she has exaggerated
the extent of her injuries.

[66]        
Other authorities cited by the plaintiff include the following cases in
which the awards ranged between $100,000 and $130,000:

a)    Yungen v.
FHA, 2012 BCSC 933;

b)    Ashcroft v.
Dhaliwal, 2008 BCCA 352;

c)     Bjornson
v. Field, 2007 BCSC 1860;

d)    Love v. Pai, 2003
BCSC 900; and

e)    Morena v.
Dhillon, 2014 BCSC 141.

[67]        
In the cases submitted by the plaintiff, credibility of the plaintiff
was not a significant issue as it is in the case before me. In Morena, the
plaintiff suffered severe depression and Madam Justice Arnold-Bailey stated at
para. 130:

 . . . . Her emotional suffering
is great due to her great sadness and regret that she is not able to make the
contributions to her family life that she did prior to the accident. Her
relationships with family and friends have been negatively affected although
her family remains intact. The best evidence is that she is fully disabled from
work except for the one hour a day as a lunch supervisor she currently performs
during the school year

The plaintiff in Morena was awarded $130,000 in
non-pecuniary damages but as set out in the quotation above, her lifestyle and
prospects in life were dramatically different than is the case with Mrs. Gupta.
Unlike Ms. Morena, Mrs. Gupta is operating a growing and increasingly
profitable business, still has strong relationships with family and friends (it
was apparent from several witnesses that Mrs. Gupta was popular with her
employees and others) and has credibility issues.

[68]        
The principal issue for the Court of Appeal in the Ashcroft decision
was whether the plaintiff was seeking double recovery as a result of the
settlement of one of two claims for injuries. The analysis of the Court of
Appeal in this decision is therefore not relevant to the case at bar.

[69]        
In Yungen, there was clear evidence that the plaintiff suffered
from depression, which was accepted by the court. Dr. Caille, a physiatrist,
also provided clear evidence that the depression and anxiety of the plaintiff
would not have been experienced but for the accident. Again, there did not
appear to be credibility issues in those cases.

[70]        
The defence submits that the non-pecuniary damages to which the
plaintiff is entitled is in the range of $35,000 to $50,000, less a deduction
for the plaintiff’s failure to mitigate. Authorities submitted by the defence
include:

a)    Hsu v.
Williams, 2011 BCSC 1412 in which the injuries and effect on the
plaintiff’s lifestyle were roughly similar to the case at bar and damages were
reduced by one-third for failure of the plaintiff to follow specialist’s
recommendations. The plaintiff was awarded non-pecuniary damages of $20,000.

b)    Yang v.
Fitzsimmons, 2014 BCSC 838, in which the court found “the credibility of
the plaintiff leaves much to be desired”, the plaintiff was awarded $35,000 in
non-pecuniary damages. The plaintiff in that case was also found to have failed
to mitigate.

c)     Sharifi
v. Chaklader, 2012 BCSC 685 in which Mr. Justice Willcock (as he then was)
found at para. 98, “I can place little weight upon the plaintiff’s own evidence”,
“and concluded at para. 102, “In light of her failure to follow medical advice…
I cannot find Ms. Sharifi has met the burden upon her of establishing that her
injury is chronic or that it will worsen or further affect her ability to earn
income. I accept the evidence that she has not suffered a neurological, bony,
or joint injury…” He assessed non-pecuniary damages at $50,000.

[71]        
I find the authorities submitted by the defence to be much more in line
with the facts and circumstances of the case at bar than those authorities
submitted by the plaintiff. Considering all of the injuries suffered by the
plaintiff and the effect of the same upon her life, I award the sum of $45,000
in non-pecuniary damages, which sum is to be reduced by one-third due to a
failure to mitigate, leaving a net award of $30,000.

Cost of Future Care

[72]        
The plaintiff claims a shopping list of future care items and therapy
including physiotherapy, a sacral belt, a senior physical therapist, a local
physiotherapist, costs of a gym to age 75, psychiatric sessions, a pain clinic
and a pedometer all as recommended by Dr. Armstrong.

[73]        
Some of the items and sessions recommended relate to the SPRD discussed
by Dr. Armstrong and rejected by Dr. Calvert, including the sacral belt and the
physical therapist sessions. I disallow those items following my findings
regarding SPRD above.

[74]        
I concur that one year of physiotherapy will be of assistance to the
plaintiff as would a gym membership, but only for one year as well. The
estimated costs of these claims, ie. $2,340 for physiotherapy and $1,871 for a
gym membership for one year are reasonable and are awarded to the plaintiff.
Ongoing gym membership to age 75 is not justified as the membership is intended
for the plaintiff to strengthen her core, not to help her maintain her core
throughout her lifetime.

[75]        
Psychiatry sessions for one year could also assist the plaintiff and
accelerate improvement in her mood. I award $3,000 for the cost of the same.

[76]        
The cost of a pain clinic, ie. $14,450 is not justified as Dr. Calvert
referred to such a cost as a last resort and hence there is no likelihood,
based on a balance of probabilities, that such a clinic would be necessary.

[77]        
A pedometer is not justified, especially for every 5 years.

[78]        
The plaintiff had previously claimed for the cost of a supervised weight
loss program although there was no evidence in support of the same. This claim
is disallowed.

Loss of Future Housekeeping Capacity

[79]        
The plaintiff and her husband own a 5,000 sq.ft. home in Surrey and
currently employ a housekeeper as Mrs. Gupta claims she is unable to perform
all the housekeeping duties due to her injuries. However, if Mrs. Gupta were to
be working full time, as she testified was her plan if she continued to work
for the bank had the accidents not occurred, she would need a housekeeper to be
able to assist in maintaining the house in any event. Also, none of the medical
evidence addresses this claim and so there is no evidence to justify the same
in any event.

Special Damages

[80]        
The plaintiff claims a total of $4,508.90 in special damages including
the cost of travel to medical attendances, medication, physiotherapy, and
various other expenses.

[81]        
Regarding mileage costs for attending medical and therapy appointments,
not all of the appointments listed by the plaintiff relate to injuries that
were incurred in the accidents. The claim is for a sum of $950 at $.52 per km.
I award one-half of those costs or $475.

[82]        
The cost of medication at $104 is awarded to the plaintiff, which
excludes the cost of her thyroid medicine.

[83]        
The cost of physiotherapy at $861 is awarded to the plaintiff.

[84]        
Miscellaneous expenses of a hit and run advertisement, MRI scans, a
physio ball and mat are allowed, totalling $2,203. The enrollment fee for the
CSI course is not allowed.

Summary of Award

[85]        
In summary, the plaintiff is entitled to the following relief:

a)    Non-pecuniary
damages: $30,000;

b)    Past
income loss: limited to the 28 days of lost work and to be calculated by the
parties;

c)     Cost
of future care: $7,211;

d)    Special
damages: $3,643.

Costs

[86]        
There are no doubt factors of which I am not aware and so I will not
make an award of costs at this time. I invite submissions in writing to be
received by the court no later than 30 days from the date of issuance of these
reasons for judgment.

“Jenkins J.”