IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110218

Docket: M118919

Registry:
New Westminster

Between:

Patricia Elizabeth
Anderson,
also known as Patricia Elizabeth Harris

Plaintiff

And

Nardip Minhas

Defendant

Before:
The Honourable Mr. Justice Bernard

Reasons for Judgment

A. Overview

[1]            
On April 24, 2007, the parties were involved in a low-impact motor
vehicle collision; the defendant “rear-ended” the plaintiff. He has admitted
his liability for this act.

[2]            
The principal issues in dispute relate to the extent of the personal
injuries caused by the defendant. The plaintiff claims that she sustained
whiplash injuries which evolved into fibromyalgia: the debilitating condition
which is the foundation for her significant damages claim. The essence of the
defendant’s position is that the plaintiff has failed to prove the necessary
causal link between the collision and fibromyalgia.

B. Evidentiary Synopsis

The Collision

[3]            
The collision occurred at approximately 8:00 a.m., at the intersection
of 88^th Avenue and Fraser Highway, in Surrey, B.C. The parties
were the sole occupants of their respective vehicles. The plaintiff, Ms Anderson,
was turning right onto Fraser Highway from 88th Avenue when her vehicle, a
Toyota Forerunner, was struck from behind by the defendant’s vehicle, a Honda
Civic. Ms Anderson and the defendant, Mr. Minhas, were travelling the
same route and, just prior to the collision, Mr. Minhas had stopped behind
Ms Anderson, to wait for her to move forward and merge onto Fraser
Highway. As Ms Anderson began to merge, Mr. Minhas followed; however,
Ms Anderson braked unexpectedly and the Civic’s front bumper struck the
trailer hitch of the Forerunner.

[4]            
Mr. Minhas estimated that he had moved forward approximately ten
feet from a stationary position when his vehicle struck the Forerunner. He
described the impact as minor; one which did not cause the Forerunner to be
pushed forward.

[5]            
After the collision the parties drove into a nearby parking lot to
inspect for damage and to exchange information. It was noted that the impact
caused no damage to the Forerunner and that the Civic sustained a small
circular indentation to its front bumper, where it came into contact with the protruding
metal ball of the trailer hitch. During the information exchange Ms Anderson
held her neck but made no verbal complaints. Mr. Minhas sustained no
personal injuries. Both parties continued on to their respective workplaces
after the short encounter.

[6]            
Ms Anderson testified that, at the time of the collision, she was
looking over her shoulder. She said that the impact forced her body forward and
back, during which her chest struck the steering wheel and her head struck the
headrest “hard”. She said that she felt and heard her neck “crack”. She said
that the force of the impact caused her cigarettes and cell-phone to fly out of
the centre console. She said she was immediately rendered “very dazed and
confused”. When questioned about whether she lost consciousness she said that
she could not say with certainty that she did not; however, she recalled
driving to the nearby parking lot at the suggestion of Mr. Minhas.

[7]            
Mr. Minhas testified that the plaintiff did not appear dazed or
confused during the information exchange.

[8]            
 Ms Anderson’s husband, Shane Anderson, testified that he spoke to Ms Anderson
shortly after the collision. He said that she informed him that she thought she
lost consciousness in the collision, and that her neck had cracked.

Collision Aftermath

[9]            
After the collision, Ms Anderson drove to the pet grooming shop
where she worked as a casual employee. She carried out her duties in the
morning, but she left work mid-afternoon to attend a nearby medical clinic
because her neck and upper back were sore and she felt disoriented and shaken.
She saw a clinic physician but nothing was prescribed for her. The next day she
attended to her family physician, Dr. Dang, and she complained to him of
having a sore back and neck. Dr. Dang recommended that Ms Anderson
relax for a few days, take physiotherapy, and use muscle-relaxant and
anti-inflammatory medications.

[10]        
Ms Anderson followed Dr. Dang’s advice but testified that
throughout the balance of 2007 and beyond, she “got worse”; developing lower
back pain, leg pain, hand pain, foot pain and numbness, pressure and pain on
the left side of her face, blurry vision, headaches, and generalized pain
throughout her body. She claims that most of these symptoms have not subsided
and that she is now significantly physically disabled by the effects of
fibromyalgia. More specifically, Ms Anderson said that within two weeks of
the collision she was suffering from leg pains; that within a month she was
suffering lower back pain; that during and after her physiotherapy treatments
she suffered hand pain; that she suffered pain and tingling down her legs and
into her feet within two months of the collision; that her health started to go
“dramatically downhill” in the fall of 2007; and, that her headaches began
approximately one year after the collision. She said that she did not report
these pains to her doctor until April 2008 because she thought and understood
she would recover merely with the passage of time.

[11]        
Ms Anderson has had little success with various prescribed
medicines to treat her symptoms. At present she claims to find some relief from
vitamin B12 injections.

Post-collision Health

[12]        
Sanjeev Bodwal is a physiotherapist who saw Ms Anderson on
May 7, 2007 (approximately two weeks after the collision). On this date Ms Anderson
complained of pain in her neck and mid-back. She reported that she was a
self-employed dog-groomer who had worked “on and off since the collision,
depending on her pain level”. She said that she was also suffering from sleep
disturbance, acid reflux, and an ulcer. He said that she described having “a
chronic lumbar spine problem since the age of 12 or 13” and chronic pain in her
left spine. (Ms Anderson denied that she told Mr. Bodwal that she had
a chronic back problem since the age of 13. She said that she was simply
relating what “a lady” had said to her when she was 13.)

[13]        
Ms Anderson saw Mr. Bodwal for ten sessions, which ended on
June 8, 2007. Ms Anderson progressed through these sessions as follows: on
May 7 she reported pain with all neck movements; on May 16 she reported that
her neck “felt good”; on May 18 she reported that she had “minimal” pain in her
neck, but still suffered with pain in her back; on May 22 Mr. Bodwal noted
90% improvement in the cervical spine and 60% improvement in the thoracic spine;
and, on May 24 Ms Anderson had no complaints. On June 8 Mr. Bodwal
noted that Ms Anderson’s pain was “back to pre-MVA levels” but that she
continued to have “chronic spinal problems since childhood”. Physiotherapy
concluded and Mr. Bodwal recommended core-strength training and exercise.

[14]        
In cross-examination, Mr. Bodwal agreed that while relapse was possible
“usually patients stay better once they are better”.

[15]        
Norman Dang is Ms Anderson’s family physician. He examined Ms Anderson
on April 25, 2007, one day after the collision. Ms Anderson complained of
neck pain radiating to her mid-back. Dr. Dang diagnosed neck and back
strain, prescribed medication and recommended physiotherapy. Dr. Dang saw Ms Anderson,
again, on April 30, May 14, July 13 and July 27, 2007. In this period Ms Anderson
reported abdominal pain, bilateral leg cramps, and calf pain, but Dr. Dang
attributed only her neck and back complaints to the collision. For example, on
July 27 he believed her complaints of leg pains and cramps were related to work.
He noted: “She indicated that she was working a lot.”

[16]        
Dr. Dang next saw Ms Anderson about various physical pains and
complaints (other than gastroesophegeal reflux disease, (“GERD”)) on April 24,
2008 (one year after the collision). At this visit she reported neck, mid-back,
and lower back pain, hand stiffness, weak legs, and a lack of energy. On April
30, 2008, she complained of bilateral dysesthesia (“like being stung by a bee”)
in her gluteal and anterior-to-posterior legs. A CT scan of her lumbar spine
showed a small disc protrusion and minimal disc bulge.

[17]        
By July 9, 2008, Ms Anderson was complaining to Dr. Dang of
suffering from hot flashes, neck and upper back pain, right forearm throbbing
pain, and low energy. In September 2008 Ms Anderson reported swollen
hands, bilateral blurry vision and headaches, difficulty in standing for more
than five minutes, increased pain all over her legs, back and arms, and
“worsening mental slowness with reduced memory and concentration”. In December
2008 Ms Anderson reported left-side facial discomfort and a burning left
eye. Ms Anderson was referred to a neurologist, an ophthalmologist, and a
rheumatologist.

[18]        
In cross-examination, Dr. Dang said that he was quite certain that Ms Anderson
did not, until July 2008, inform him that her head and neck cracked in the
collision. This information that caused him to order an MRI, which he did not
do until July 2008. Of Ms Anderson’s myriad complaints Dr. Dang attributed
only her neck and upper back pains to the collision “because they were not
there in a persistent way prior to the motor vehicle accident”. He added that
this diagnosis pertained to a 1.5 month period immediately post-collision;
more specifically, he said “I can’t, based on the physiotherapist’s report,
attribute these pains to the motor vehicle accident after that period.”

[19]        
Alan Yorke is a rheumatologist who examined Ms Anderson in
January 2009. Dr. Yorke was the first to diagnose Ms Anderson with
fibromyalgia. On examination he found Ms Anderson to have full and
pain-free range of motion in her neck, with some increased pain at the
suprascapular area; however, he also found positive pain responses to 12
pressure points – enough to support a fibromyalgia diagnosis. He noted that Ms Anderson’s
history of “atypical chest pain”, GERD, and L4-5 disc protrusion was “most
useful”. He said that lack of restful sleep may compound a motor vehicle
accident injury and lead to fibromyalgia. Dr. Yorke noted that Ms Anderson
did not suffer from rheumatoid arthritis. He recommended a medication called
Tradozone to help Ms Anderson sleep. When Ms Anderson said she did
not wish to take this drug, Chamomile tea and over-the-counter sleep aids were
recommended.

[20]        
In cross-examination, Dr. Yorke agreed that he examined Ms Anderson
only once; that the examination took 30 minutes; and, that it was not “a
detailed medical assessment”. He agreed that his report was incorrect when it
stated that Ms Anderson was “well” before the collision; in this regard he
said “the records show that this was not the case”. He agreed that the records
revealed similar neck and upper back pains prior to the collision, and he
opined that the disc protrusion could have been the cause of Ms Anderson’s
pre-accident back pain, because if it had been caused by the collision then he
would have expected immediate symptoms.

[21]        
In relation to the medical condition known as fibromyalgia, Dr. Yorke
stated: that the medical community does not know what causes it, but noted that
some common triggers are sleep deprivation, psycho-social stress, and physical
trauma; that the symptoms are musculoskeletal pains in the four quarters of the
body which are not otherwise explained; that fibromyalgia often develops slowly
after an event because of continued sleep disruption; and that whiplash causes
internal swelling of muscles which may result in sleep deprivation.

[22]        
In relation to a causal link between the collision and Ms Anderson’s
fibromyalgia, Dr. Yorke said:

I can’t say that the fibromyalgia
was from the MVA, or that Ms Anderson’s symptoms in the fall are from the
MVA – a firm diagnosis was not made until January 2009. It is a reasonable
expectation that fibromyalgia symptoms will arise within six months [if the MVA
is the cause].

[23]        
Rhonda Shuckett is a rheumatologist who examined Ms Anderson
on May 24, 2010. She diagnosed Ms Anderson with fibromyalgia. Dr. Shuckett
found that Ms Anderson had “sleep challenges” and a positive pain response
in 16 fibromyalgia tenderness points. She said it was her experience that
it was not unusual for patients to evolve into fibromyalgia after a motor
vehicle accident trauma; more precisely, she said “patients descend into
fibromyalgia from deconditioning and lack of sleep in the aftermath”.

[24]        
In addition to fibromyalgia, Dr. Shuckett also diagnosed
(1) neck and upper back injury; (2) cervicogenic headaches; (3) bilateral
shoulder tendonitis; and (4) mechanical low back pain.

[25]        
As for a causal link between the collision and Ms Anderson’s
diagnoses, Dr. Shuckett said:

Her diagnoses are the types of diagnoses that can be linked
to a motor vehicle accident. Her symptoms came on soon after the subject MVA.
It must be recognized that she had a L shoulder/shoulder girdle problem with pain
taking her off work before the subject MVA. She was not working leading to the
subject MVA although she says her L shoulder girdle symptoms had regressed
shortly before the subject MVA. Her L shoulder girdle symptoms would have
rendered her more susceptible to L neck and shoulder girdle pain following the
subject MVA. It should be noted that she underwent a neck Xray March 30, 2007
some month before the subject MVA so it seems her doctor was wanting to r/o
neck changes on Xray (which was normal); the L trapezius pain could have been
referred from the neck. She had a remote "whiplash" while play
fighting with a friend but this was about 8 years later [ago] and I do
not implicate this old injury in her post MVA symptoms. She says her low back
was sensitive to pressure by touch before the subject MVA and she did have a
low back Xray the day before the subject MVA which makes one wonder if she had
some low back symptoms at that time. She says she just wondered about her back
and requested an Xray because at age 13 she was told her back would collapse on
her. Her low back Xray and sacroiliac joints were said to be normal the day
before the subject MVA.

I believe that the subject MVA materially contributed to all
her diagnoses although I will discuss fibromyalgia separately below. Her
diagnoses are the sorts of conditions that can occur in the aftermath of an
MVA. However, I believe that there were predisposing symptoms which rendered
her more susceptible to effects of the MVA, namely her L shoulder girdle and shoulder
symptoms that had her off work and some pre existing low back tenderness which
she reports to me. The current conditions are, I feel, materially contributed
to by the subject MVA as well as pre MVA factors.

She was tried on anti depressants after the MVA and I cannot
rule out psychosocial issues contributing to her pain and particularly her
fibromyalgia syndrome. Psychosocial factors are not unusual in patients with
chronic pain.

Fibromyalgia post traumatic
injury is a debated topic. There are a number of published papers in the
medical literature which support a relationship between injury and fibromyalgia
syndrome. However there are some which counter this association. In my
extensive experience dealing with fibromyalgia I find it not unusual for it to
emerge in the aftermath of an injury. Theories of what co-factors may underlie
evolution to fibromyalgia syndrome post injury include regional areas of pain
leading to pain referral, sleep disturbance, deconditioning and psychosocial
issues; I believe all of these issues are factors in her. Thus, I believe the
MVA significantly materially contributed to her fibromyalgia syndrome although
some pre MVA factors such as her pre MVA pains may have been operative here.

[26]        
In cross-examination, Dr. Shuckett agreed that a patient’s history
– specifically, the accuracy of any pre-existing symptoms – is key to the
validity of a diagnosis. In this vein, Dr. Shuckett agreed: that Ms Anderson
did not inform her that she suffered from neck pain prior to the collision; that
Ms Anderson did not inform her that she had attended to an emergency ward
for leg pains within a month prior to the collision; that despite learning from
Ms Anderson that she had been informed, at age 13, that her spine
would eventually collapse, Dr. Shuckett made no further inquiries because Ms Anderson
said she was not suffering from back pain; that a physiotherapist’s comment
indicating that Ms Anderson had returned to pre-accident pain levels as of
June 8, 2007, was noteworthy (albeit not noted) and contrary to Ms Anderson’s
claim that she had experienced no post-accident improvement; and, that an
11-month gap in visits to Dr. Dang was noteworthy (“one would like to see
more continuity”).

[27]        
Dr. Shuckett said that she did not review Ms Anderson’s
medical records until after the examination, in Ms Anderson’s absence (as
is her practice with all patients); accordingly, she had no opportunity to
question Ms Anderson about any inconsistent or additional information
provided. She did not elect to contact Ms Anderson thereafter.

[28]        
Notwithstanding the foregoing, Dr. Shuckett defended her opinion
regarding causation, with the following comments scattered throughout her
cross-examination:

Having read these comments and Dr. Telfer’s
report, I say that [Ms Anderson] had some chronic problems which could
have put her at greater risk; however, I still believe that the MVA materially
contributed to the fibromyalgia. Material contribution simply means it played
some potential role. It is true that I do not know what caused the
fibromyalgia. I can’t say with certainty that the MVA played a role in the
symptoms which developed in 2008. The injury may have placed her at greater
risk; but, it is multi-factorial. It is challenging to ascertain possibility
vs. probability. I believe the MVA has materially contributed; but,
fibromyalgia can happen spontaneously. I can’t say it is the sole causing
factor. Stress can be a significant contributing factor. Poor sleep, alone, can
bring it on. Psycho-social stressors can play a role.

[29]        
In relation to the biomechanics of the collision, Dr. Shuckett
stated that she was unable to say anything about the nature and effect of the
impact upon Ms Anderson because she was not a biomechanical engineer;
nonetheless, she testified that all aspects of the collision were germane to
her assessment and opinion (hence, the full documentation of such in her
report). When questioned about the relevance of the circumstances of the
collision to her causation opinion, she was unable to articulate a helpful
response. She conceded that most persons in low-impact “rear-ender” collisions
do not develop fibromyalgia in the aftermath.

Pre-collision Health

[30]        
Ms Anderson testified that prior to the collision she suffered from
the common “everyday aches and pains” caused by daily activities. She added
that she had a specific problem with her left shoulder which made it difficult
for her to hold dogs while she groomed them.

[31]        
Hospital records showed that on March 21, 2007, Ms Anderson
attended to the emergency ward of the Langley Memorial Hospital for pains in
her right calf. In cross-examination about this visit, Ms Anderson said
she could not recall it.

[32]        
Medical records showed that on April 23, 2007 (one day prior to the
collision), Ms Anderson sought medical advice about her back and what
effect it might have on bearing children, as she was contemplating pregnancy.

[33]        
Norman Dang summarized Ms Anderson’s pre-collision health as
follows:

Prior to this MVA, Ms Anderson had past episodes of
neck, back, and chest pain. She complained of her shoulder feeling loose and
grinding during her September 18, 2006 office visit. She mentioned that she had
a previous whiplash type injury from horseplay several years prior and she had
been tight in the upper trapezius since but she had no persisting neck pain.
One day prior to her MVA she was reviewed, concerning her shoulder assessment,
by Dr. Tim King, sports medicine. She noted her pain in her legs and
recurrent leg swelling. She was tender in her lower thoracic and upper lumbar
spine area. XR lumbar spine was ordered on that visit.

. . . She had various neck and
shoulder musculoskeletal complaints prior to the MVA, and she had a small L4-5
disc protrusion, documented on CT May 27, 2008.

[34]        
In cross-examination, Dr. Dang agreed that Ms Anderson suffered
from “ongoing chest-wall pain” prior to the collision.

[35]        
Charles Telfer is an orthopaedic surgeon who saw Ms Anderson
on March 30, 2007 (approximately three weeks prior to the collision),
about a complaint of “pain in her neck going into her left scapular shoulder”
for the past four years. He reported that Ms Anderson said that she was
having ongoing trouble with discomfort in the base of her neck, bilaterally,
but predominately to the left, radiating in towards the scapula and upper arm,
without distal radiation, numbness, tingling, or other neurological symptoms.

[36]        
Upon examination, Dr. Telfer concluded that Ms Anderson did
not have any shoulder pathology and he specifically ruled out bursitis; rather,
he opined that she likely suffered from soft-tissue discomfort and cervical
spine-related discomfort. He noted more pain symptoms to the left side of the
neck than to the right, radiating to the scapula. He found mild decreased range
of motion in her neck and a little tenderness in her trapezius.

[37]        
Dr. Telfer believed that Ms Anderson was wrongly describing
her pain as emanating from the shoulder; he noted “she was pointing to the side
of her neck, not her shoulder”. He said that Ms Anderson attributed the
neck injury to a “rough‑housing” incident during which her head snapped
back in a whiplash-type of mechanism: “She immediately developed lots of
muscle spasm on both sides of her neck into her shoulder areas and since that
time has had ongoing trouble.”

[38]        
Ms Anderson reported to Dr. Telfer that she had quit her dog-grooming
job because of her pain; however, Dr. Telfer found no physiological reason
for Ms Anderson not working. He said that she could manage her mild
soft-tissue discomfort with over-the-counter medications, stretching, and
strengthening exercises.

[39]        
In cross-examination, Dr. Telfer agreed that Ms Anderson was
probably more susceptible to a neck injury because of her prior neck injury.

[40]        
Natalie Wade is a registered massage therapist who first saw Ms Anderson
on December 15, 2006. On this date Ms Anderson reported the following: (1) “can’t
carry a purse; (2) “hard time breathing”; (3) “uses anti-inflammatory
gel/cream”; (4) “pain travels from left neck to left back”; (5) “whiplash
three-to-four years ago”; (6) “neck-brace as a child”; and, (7) “bursitis”.
Ms Wade performed six massage treatments upon Ms Anderson, ending on
January 4, 2007. During these treatments Ms Wade said that she felt neck
tenderness in Ms Anderson, noted that her pelvis was in paradox (the two
sides going in opposite directions), observed that Ms Anderson’s right hip
protruded more than the left hip, and believed that she had spondylolysis (one
vertebra more inward than the others, causing ligamental strain around it) at
T12 of her spine. In her December 30 treatment session, Ms Anderson
reported incidents of lost vision, dizziness, and difficulty in breathing.

[41]        
Sanjeev Bodwal, physiotherapist, first treated Ms Anderson
on September 25, 2006 (seven months prior to the collision). On this
date Ms Anderson sought treatment for “pain and grinding in the left
shoulder”. She reported that she was “off work, currently”; that she had
suffered from chest pain since the age of 12; and, that she had, at some time
in the past, torn the left-side neck muscles while playing.

[42]        
Mr. Bodwal’s first observations were that Ms Anderson’s left
shoulder blade was elevated and her head was forward. He found full range of
motion in the neck, but pain in flexion, abduction, and extension.

[43]        
Ms Anderson had eight therapy sessions with Mr. Bodwal, ending
on October 25, 2006. At the September 28 session, Ms Anderson
complained of pain behind one of her eyes, in addition to left-side neck pain.
On October 20 she complained of “pinching” in the left upper back, and on
October 25 she reported “limited participation in normal activities” and
experiencing a “popping/rubbing” feeling.

Personal History; Employment and Leisure Pursuits

[44]        
Ms Anderson is 29 years of age. She married Shane Anderson in
November 2007, about six months after the collision. She and her husband
reside in Surrey, B.C. Ms Anderson is the step-mother to her husband’s two
teenage children. In December 2007, Mr. Anderson injured his back and now
collects a disability pension.

[45]        
Ms Anderson left high school before completing grade 11. Her
primary gainful employment (albeit casual and part-time) has been as a pet
groomer. In 2004 she earned $7,976; in 2005 she earned $7,609; and, in 2006 she
earned $136. In explanation for her very low income in 2006, Ms Anderson
said she was a self-employed pet groomer, but “barely did anything” work-wise,
in 2006.

[46]        
Ms Anderson testified that she has, since the date of the
collision, been unable to work as a pet groomer; more precisely, she said “I
don’t have the strength to lift and hold a dog.” When she was questioned about
a job resume (prepared in 2009) which claimed that she worked at Langley Dog
Grooming in the years 2006‑2008, Ms Anderson explained that this was
a “typo” – that it should have read ”2004‑2005”. (The resume also stated
that Ms Anderson completed grade 11; an admitted falsehood.)

[47]        
Vicki Danaz owned Langley Dog Grooming in 2007. She was Ms Anderson’s
employer at the time of the collision. She testified that Ms Anderson was
a casual worker who was paid mostly in cash. She recalled Ms Anderson
working on the day of the collision. In relation to the employment period prior
to the collision, Ms Danaz said that Ms Anderson complained about
back, neck and shoulder pains, and that these complaints persisted in the post-collision
period. Ms Danaz testified that Ms Anderson continued to work for her
throughout 2007, as a casual employee doing pet grooming. She recalled that Ms Anderson
quit in early January 2008 because she was contemplating pregnancy and wanted
employment which would entitle her to maternity leave benefits.

[48]        
Trina Harris is Vicki Danaz’s adult daughter (and Ms Anderson’s
sister-in-law). In 2007 Ms Harris worked at Waggin’ Tails, a pet grooming
salon owned by Ms Danaz’s then husband. Ms Harris testified that Ms Anderson
worked throughout 2007 as a casual employee at both Waggin’ Tails and Langley
Pet Grooming. She estimated that Ms Anderson worked a total of 20-30 hours
per week “fairly consistently” throughout 2007.

[49]        
Ms Harris recalled Ms Anderson on the day of the collision:
she said “she was a little shaken up, spoke to ICBC, and left about 2:30 p.m.”
She testified that Ms Anderson continued to work for both pet grooming
salons throughout the remainder of 2007. Her recollection was that Ms Anderson
“took the summer off” and returned to work in September. She specifically
recalled that she attended Ms Anderson’s wedding in November 2007, that Ms Anderson
worked during the busy 2007 Christmas season; and, that Ms Anderson quit
in early 2008.

[50]        
Ms Harris said that Ms Anderson’s post-collision work
complaints were no greater than those prior to the collision, when she often
complained of a sore back, neck, and wrist, and of having pneumonia.
Ms Harris did not observe Ms Anderson having greater difficulty
performing her job after the collision.

[51]        
In cross-examination, Ms Harris agreed that she and Ms Anderson
“got into a fight” when Ms Anderson quit; however, she asserted that her
evidence was truthful, that she had no interest in the outcome of the trial,
and that she was upset when she learned that she might have to testify against
her sister-in-law.

[52]        
In late 2009 Ms Anderson was briefly employed as a dog groomer at
Ildy’s Dog Grooming Spa; however, Ms Anderson testified that she quit
this job within a month because of her pains: she said “I was going home everyday
crying, and cried on the way to work every morning.” Ms Anderson’s
employer, Ildyko Novak, testified that Ms Anderson was “always sick
with respiratory problems” but did not complain about pains.

[53]        
Prior to the collision Ms Anderson enjoyed “ATV-ing” with friends,
camping, “4×4-ing”, hiking, swimming, playing with her step-children, and going
on long walks with her husband. Since the collision she has been unable to
participate in most of these activities and her aches and pains have strained
her personal relationships. Ms Anderson’s husband corroborated her
testimony in relation to post-collision pain, the inability to participate in
activities and household chores, and the negative impact the collision has had
on their marital relationship. Mr. Anderson testified that he bought his
wife a motorcycle in 2009 in an attempt to re-introduce some fun into her life
and distract her from her pain.

The Future

[54]        
Ms Anderson is enrolled in a training course to qualify her as a
Resident Care Attendant: an occupation in which one works with persons needing,
inter alia, considerable physical assistance. Ms Anderson confirmed
that she was aware of the physical demands of this job when she chose it as a
new career. When questioned about why she would do so she said: “I know it
requires transferring patients from toilets to beds, etc., but I don’t know I
can’t do it until I try it.” Shane Anderson testified that when he discussed
his wife’s future job options, no consideration was given to ones less
physically demanding than care attendant to the infirm.

[55]        
Dr. Shuckett expressed reservations about whether Ms Anderson’s
fibromyalgia symptoms would regress in the future, given her view that they
have endured for three years. She commented that vitamin B12 injections
presently favoured by Ms Anderson are not a “well evidenced” form of
treatment; however, she noted that Ms Anderson seems to find some relief
with them. She thought Ms Anderson would have to “pace herself” in the
future. She professed to be unaware of the job description of a care aide;
however, she thought that assisting in the physical transfer of patients from
one spot to another “would likely be challenging for [Ms Anderson]”. She
added: “I cannot predict whether or not she will do full time work successfully
in her chosen field.”

C. Findings and Analysis

Whiplash

[56]        
The defendant has not suggested that Ms Anderson has fabricated a
whiplash injury, per se. Notwithstanding that Ms Anderson is an
admittedly poor historian, and that the impact from the collision was relatively
minor, I am satisfied the plaintiff has proved she sustained some degree of
whiplash injury, or re-injury, when the defendant’s vehicle collided with hers.
Whiplash injuries are a relatively common consequence of a “rear-ender”
collision, and Ms Anderson’s complaints and actions, proximate to the
collision, are consistent with having such an injury; in particular, she held
her neck at the scene of the collision, she sought immediate medical attention,
she made complaints consistent with a whiplash injury, she was diagnosed with
neck and back strain in the immediate aftermath of the collision; and she
underwent physiotherapy for whiplash.

[57]        
I am also satisfied that the plaintiff has proved that she suffered the
effects of her whiplash injury until, at least, June 8, 2007. There is no real
dispute in this regard. In this six-week post-collision period, Ms Anderson
attended ten physiotherapy sessions. Mr. Bodwal, the physiotherapist who
treated Ms Anderson reported that Ms Anderson responded to treatment
for whiplash.

[58]        
The period following June 8, 2007, is much more troublesome in relation
to proof by the plaintiff that she continued to suffer whiplash symptoms or
other ailments caused by the collision. In this regard, it is (a) the
state of the plaintiff’s pre‑collision health and (b) the
inconsistencies between the plaintiff’s testimony and other evidence which loom
large.

(a)      Pre-collision health

(i)       The
evidence establishes that Ms Anderson had many health complaints prior to
the collision; moreover, in the pre-collision period proximate to the
collision, she had experienced physical pains and symptoms well beyond the
“everyday aches and pains” to which she admitted.

(ii)      On
April 23, 2007 (one day prior to the collision), Ms Anderson attended to Dr. Dang
about her shoulder and back. On this visit Ms Anderson was sufficiently
concerned about her back that she asked if it might be an issue during a
pregnancy. At this visit she complained of pain in her legs and recurrent leg
swelling. Dr. Dang found that Ms Anderson was “tender in her lower
thoracic and upper lumbar spine area” and he ordered an X-ray of her lumbar
spine. Shortly prior to this doctor visit, Ms Anderson had twice (Feb. 13
and March 21, 2007) sought treatment at emergency wards; the latter for complaints
of pain in her right calf.

(iii)      On
March 30, 2007 (25 days prior to the collision), Ms Anderson saw Dr. Telfer
about ongoing neck, trapezium, and upper back pain; symptoms she attributed to
a rough-housing incident, four years earlier, in which she injured her neck.

(iv)     On
December 15, 2006 (approximately four months prior to the collision), Ms Anderson
reported various health problems and complaints to her massage therapist:
“can’t carry a purse”, “trouble breathing”, “pain traveling from left neck to
left back” and “bursitis”. As she had done with other health professionals, Ms Anderson
indicated a history of whiplash and childhood back problems. At her December
30, 2006 treatment, Ms Anderson reported incidents of lost vision,
dizziness, and difficulty in breathing. Ms Wade, the treating massage
therapist, noted that Ms Anderson’s pelvis was in paradox, her right hip
protruded, and she had spondylolysis in her back.

(v)      In
September and October 2006 physiotherapy sessions, Ms Anderson complained
of left-side neck pain, pinching in her left upper back, pain behind one of her
eyes, a “popping/rubbing feeling”, and limitations on participating in normal
activities. She reported that she had suffered chest pain since the age of 12
and had torn her neck muscles in a rough-housing incident [about four years
earlier]. Mr. Bodwal, the treating physiotherapist, noted that Ms Anderson’s
left shoulder and shoulder blade were elevated and that her head was forward.
He found neck pain with flexion, abduction, and extension.

(vi)     Ms Anderson
also reported aspects of her pre-collision health to Mr. Bodwal when he
treated her, again, in the post-collision period. On May 7, 2007, Ms Anderson
reported a pre-collision health history which included acid reflux, a stomach
ulcer, and chronic lumbar spine problems and pain since the age of 12.

(b)      Inconsistencies

(i)       Ms Anderson
testified that her symptoms worsened, rather than improved, during the course
of her physiotherapy. This was contrary to the testimony of the physiotherapist.
In the immediate post-collision period Ms Anderson said she developed
lower back, leg, and hand pain but did not mention it because she thought “it
was part of getting better”. Mr. Bodwal testified that Ms Anderson
responded positively to therapy and that she had, by June 8, recovered to her
pre-collision state. When questioned about Mr. Bodwal’s records, Ms Anderson
did not deny that she had told Mr. Bodwal that she was “significantly
better”; rather, she said that it was not true – that she said it because she
“wanted the pain to stop”. She was unable to explain how misleading the
physiotherapist about her recovery would have helped stop her pain.

(ii)      Ms Anderson
testified that since the collision she has been unable to work. This is contrary
to the testimony of Ms Danaz and Ms Harris who said that Ms Anderson
worked as a pet groomer for Langley Dog Grooming and Waggin’ Tails throughout
2007. It was also contrary to the notations of Mr. Bodwal, Dr. Dang,
and a physician named Marcia Prest in clinical visits in the 2007
post-collision period of 2007. In relation to the doctors’ notes Ms Anderson
explained that each must have misunderstood her. Finally, Ms Anderson’s
own work resume reported that she worked at Langley Dog Grooming from 2006 to 2008,
and her explanation that both dates were typographical errors was less than
convincing.

(iii)      On Ms Anderson’s
first visit to Dr. Dang after the collision, Dr. Dang made note of
the collision circumstances as related by Ms Anderson. In relation to the
impact he noted that she was rear-ended; that her head struck the headrest; and
that there was no loss of consciousness. At trial Ms Anderson
testified to a much more dramatic event; one in which her chest struck the
steering wheel, her head struck the headrest “hard”; her head and neck cracked,
and she may have lost consciousness. Dr. Dang testified that Ms Anderson
first advised him that she experienced a cracking sensation in her head and
neck one year after the collision. Ms Anderson agreed that she did
not “mention” the head and neck cracking to Dr. Dang until this time, and
she offered no reasonable explanation for such a significant omission. It is
noteworthy that if Mr. Anderson’s testimony is correct then Ms Anderson
was well aware of the cracking and her suspected loss of consciousness
immediately after the collision, yet she failed to mention it to her doctor the
next day, or at any time in the ensuing year.

(iv)     Ms Anderson
claims that there was no hiatus in her symptoms after the collision, despite a
lengthy gap between doctor visits (from July 14, 2007, to February 25,
2008). On February 25, 2008, she saw Dr. Dang only for GERD complaints. On
April 24, 2008, she complained of neck and back pain and other symptoms. In her
testimony Ms Anderson claimed that she developed back, leg and hand pain,
and tingling in her feet within two months of the collision. She said that the
onset of “entire body” pain started very soon after the collision; however, she
was unable to be specific about the timing and explained that she did not
report it because she thought it would “go away” – that it was “all part of
getting better”.

[59]        
Where the evidence of Ms Anderson is at variation with that of the
aforementioned health professionals, I accept their testimony as accurate and
truthful. As previously noted, the plaintiff concedes that Ms Anderson is
a poor historian; moreover, there is considerable consistency among the medical
professionals in relation to Ms Anderson’s pre-collision health.

[60]        
I am satisfied that the reliable evidence establishes that at the time
of the collision Ms Anderson was suffering from: (a) chronic back
problems; (b) chronic neck and back pain; (c) chronic chest pain with
attendant breathing difficulties; and (d) periodic severe leg pains. It also
shows that Ms Anderson had relatively recent incidents of leg swelling,
blurry vision, and dizziness, and a history of GERD and a stomach ulcer.

[61]        
In relation to the question of whether Ms Anderson continued to
work after the collision, the preponderant evidence is that she did so, and in
a similar fashion to before the collision. Her employer and a co-worker gave
convincing testimony in this regard; moreover, Ms Anderson’s own
statements to various medical professionals and in her employment resume suggested
that this was so.

[62]        
In relation to the collision’s immediate effect upon her, I find Ms Anderson’s
trial version quite troubling. It is inconsistent with the account she gave the
day following the collision to her family physician; in particular, she did not
report that her head and neck cracked or that she thought she might have lost
consciousness. Shane Anderson’s testimony that Ms Anderson said these
very things to him on the day of the collision is similarly vexing; it
suggests, regrettably, that he may be stretching the truth to assist his wife
in her claim. I am satisfied that the impact from this very minor collision was
relatively slight: consistent with the version Ms Anderson related to her
physician the day following the collision and not with that given at trial.

Fibromyalgia

[63]        
It falls to the plaintiff to prove not only that she has fibromyalgia,
but also that it was caused by the collision. In relation to the former, I am
so satisfied.

[64]        
The plaintiff tendered the opinions of two rheumatologists, Drs. Yorke
and Shuckett, who examined Ms Anderson and tested her for fibromyalgia.
Each formed the opinion that Ms Anderson has this unfortunate medical
condition. No evidence of a contrary expert opinion was tendered. A diagnosis
of fibromyalgia is well within the expertise of Drs. Yorke and Shuckett;
there was no suggestion otherwise. On January 28, 2009, Dr. Yorke tested Ms Anderson
and found “a total fibromyalgia positive score of 12/18 (a minimum of 11
responses are required to support the diagnosis)”. Dr. Shuckett examined Ms Anderson
on May 24, 2010, and found “she had 16-18 out of 18 painful fibromyalgia
tender points distributed in all four quadrants of the body”.

[65]        
The more challenging evidentiary hurdle for the plaintiff is proof of a
causal link between her fibromyalgia and the defendant’s negligent act. In this
regard, I must conclude that the plaintiff has failed.

[66]        
Dr. Yorke did not address the cause of the plaintiff’s fibromyalgia
in his report, and in his testimony he was unable to say that Ms Anderson’s
fibromyalgia was caused by the collision. In relation to the cause(s) of
fibromyalgia, generally, Dr. Yorke said that the medical community does
not know what causes it. He said that in cases where trauma is the suspected
cause, it is reasonable to expect that symptoms of fibromyalgia will develop
within six months. Dr. Yorke was questioned about the cause of Ms Anderson’s
fibromyalgia, as follows:

Q:        You
believe that she recovered from her accident injuries within two-to-three
months?

A:         She
was substantially better two-to-three months afterwards, yes.

Q:        Okay,
and the flare-up of complaints months later is – you cannot attribute that to
the accident?

A:         Um, I don’t know why her
complaints began later. There may have been other circumstances in her life.
There may be other events that – that are attributable to that worsening; but,
no, I don’t attribute those to the accident.

[67]        
Dr. Shuckett specifically addressed causation in her report, and
wrote: “I believe the MVA significantly materially contributed to [Ms Anderson’s]
fibromyalgia syndrome, although some pre MVA factors such as her pre MVA pains
may have been operative here.” In cross-examination, Dr. Shuckett said
that her words “materially contributed” meant “played some potential role”.

[68]        
Dr. Shuckett testified that a patient’s history is key to the
diagnosis, and she described Ms Anderson as “a clear and bright
historian”; however, when several apparent inconsistencies and omissions in Ms Anderson’s
stated history were brought to Dr. Shuckett’s attention, she agreed that
they were relevant and noteworthy. Dr. Shuckett then revised her
description of Ms Anderson to one of “pretty fluent historian, whether
everything was correct or not”. Dr. Shuckett stated that it was her
practice not to read medical histories until after her examination. In this
instance, Dr. Shuckett failed, post-examination, to identify relevant
inconsistencies and accepted Ms Anderson’s selective oral history as the
primary foundation for her reported opinions. For example, Dr. Shuckett
agreed that Ms Anderson did not inform her that she had neck or back pain
before the collision; or, that she had leg pains the day before the collision;
or, that she had attended to the emergency ward in relation to leg pain within
the month prior to the collision.

[69]        
Dr. Shuckett agreed that it was noteworthy that Ms Anderson’s
physiotherapy records for June 8, 2007, stated she was “back to pre-MVA levels”
whereas Ms Anderson informed her that she had experienced no improvement
with physiotherapy. She was not aware of this inconsistency when she wrote her
report. Dr. Shuckett knew that Ms Anderson was told, at age 13,
that her spine would eventually collapse; however, Dr. Shuckett did not
question this rather alarming historical prognosis. Similarly surprising was Dr. Shuckett’s
failure to question Ms Anderson’s plans to become a care aide, given her
diagnosis and prognosis. When Dr. Shuckett’s attention was drawn to the
protracted gap in doctor visits in 2007-2008, Dr. Shuckett agreed that it
was noteworthy and said “one would like to see more continuity”.

[70]        
In addition to the foregoing which, collectively, significantly
undermines Dr. Shuckett’s opinions, she was unable to articulate why she
believed that the collision, given its very minor nature, “significantly
materially contributed” to Ms Anderson’s fibromyalgia. On the one hand she
asserted that it was “very important to document all aspects of the MVA”; on
the other, she said “I can’t say anything about the importance of impact – I am
not a biomechanical engineer.”

Test for causation

[71]        
The test for causation is succinctly stated in Resurfice Corp. v.
Hanke, [2007] S.C.J. No. 7, by McLachlin C.J.C., delivering the
judgment of the Court:

[21]      First, the basic test
for determining causation remains the "but for" test. This applies to
multi-cause injuries. The plaintiff bears the burden of showing that "but
for" the negligent act or omission of each defendant, the injury would not
have occurred. Having done this, contributory negligence may be apportioned, as
permitted by statute.

22        This fundamental rule
has never been displaced and remains the primary test for causation in
negligence actions. As stated in Athey v. Leonati, at para. 14, per
Major J., "[t]he general, but not conclusive, test for causation is the
‘but for’ test, which requires the plaintiff to show that the injury would not
have occurred but for the negligence of the defendant." Similarly, as I
noted in Blackwater v. Plint, at para. 78, "[t]he rules of
causation consider generally whether ‘but for’ the defendant’s acts, the
plaintiff’s damages would have been incurred on a balance of
probabilities."

23        The "but
for" test recognizes that compensation for negligent conduct should only
be made "where a substantial connection between the injury and defendant’s
conduct" is present. It ensures that a defendant will not be held liable
for the plaintiff’s injuries where they "may very well be due to factors
unconnected to the defendant and not the fault of anyone": Snell v.
Farrell, at p. 327, per Sopinka J.

24        However, in special
circumstances, the law has recognized exceptions to the basic "but
for" test, and applied a "material contribution" test. Broadly
speaking, the cases in which the "material contribution" test is
properly applied involve two requirements.

25        First, it must be
impossible for the plaintiff to prove that the defendant’s negligence caused
the plaintiff’s injury using the "but for" test. The impossibility
must be due to factors that are outside of the plaintiff’s control; for example,
current limits of scientific knowledge. Second, it must be clear that the
defendant breached a duty of care owed to the plaintiff, thereby exposing the
plaintiff to an unreasonable risk of injury, and the plaintiff must have
suffered that form of injury. In other words, the plaintiff’s injury must fall
within the ambit of the risk created by the defendant’s breach. In those
exceptional cases where these two requirements are satisfied, liability may be
imposed, even though the "but for" test is not satisfied, because it
would offend basic notions of fairness and justice to deny liability by
applying a "but for" approach.

26        These two requirements
are helpful in defining the situations in which an exception to the "but
for" approach ought to be permitted. Without dealing exhaustively with the
jurisprudence, a few examples may assist in demonstrating the twin principles
just asserted.

27        One situation
requiring an exception to the "but for" test is the situation where
it is impossible to say which of two tortious sources caused the injury, as
where two shots are carelessly fired at the victim, but it is impossible to say
which shot injured him: Cook v. Lewis, [1951] S.C.R. 830. Provided that
it is established that each of the defendants carelessly or negligently created
an unreasonable risk of that type of injury that the plaintiff in fact suffered
(i.e. carelessly or negligently fired a shot that could have caused the
injury), a material contribution test may be appropriately applied.

28        A second situation requiring
an exception to the "but for" test may be where it is impossible to
prove what a particular person in the causal chain would have done had the
defendant not committed a negligent act or omission, thus breaking the
"but for" chain of causation. For example, although there was no need
to rely on the "material contribution" test in Walker Estate v.
York Finch Hospital, this Court indicated that it could be used where it
was impossible to prove that the donor whose tainted blood infected the
plaintiff would not have given blood if the defendant had properly warned him
against donating blood. Once again, the impossibility of establishing causation
and the element of injury-related risk created by the defendant are central.

[72]        
Recently, the “but for” test was re-affirmed in Clements (Litigation
guardian of) v. Clements, 2010 BCCA 581. Frankel J.A., delivering the
judgment of the court said:

47        Although the
discussion of the material-contribution test in Resurfice Corp. is obiter
dicta—the appeal was allowed on the basis that the Court of Appeal should
not have interfered with the finding of the trial judge that the manner in
which the plaintiff was injured was not reasonably foreseeable—the Supreme
Court of Canada clearly intended to provide guidance with respect to the issue
of causation. Accordingly, what it said must be accepted as authoritative in
that regard: Reilly v. Canada (Attorney General), 2008 BCCA 167,
77 B.C.L.R. (4^th) 230 at paras. 69, 70, applying R. v. Henry,
2005 SCC 76, [2005] 3 S.C.R. 609.

48        However, I do not read
Resurfice Corp. as supporting resort to the material-contribution test
whenever a defendant’s negligence has materially increased a plaintiff’s risk
of injury and it is impossible for the plaintiff to prove that that negligence
was a factual cause of the injury. To do so would substantially alter the
existing law and would have the effect of displacing but-for as the primary
test for determining causation. It is only in exceptional circumstances that
resort to the material-contribution test will, as a matter of policy, be
appropriate.

49        It is important to
keep in mind that in Resurfice Corp., the Court was not purporting to
change the law but, rather, was reaffirming existing principles. This is
evinced by the fact that McLachlin C.J. referred to two of the Court’s previous
decisions as examples of when the material-contribution test could properly be
used to find causation.

[73]        
Having regard to the foregoing and the issues raised by the
circumstances herein, I must conclude that the case at bar is not one for which
the “but for” test is unworkable, and for which resort to the “material
contribution” is appropriate, as if it were available as a mere alternative if
proof of causation failed on application of the “but for” test.

[74]        
Applying, then, the “but for” test, I conclude that the evidence falls
far short of proving, on a balance of probabilities, that but for the
negligence of the defendant, Ms Anderson would not have developed
fibromyalgia. In reaching this conclusion I take into account, inter
alia, the absence of convincing medical opinion in this regard, the minor
nature of the collision, the absence of credible evidence of a temporal nexus
between the collision and the onset of symptoms, the reliable evidence of the
plaintiff’s return to her pre-collision state within two months of the
collision, the chronic and acute pre-collision health complaints of the
plaintiff, and the significant hiatus in doctor visits in a critical
post-collision period.

D. Damages

[75]        
The plaintiff suffered a whiplash injury in the collision. The evidence
suggests that it was most likely an exacerbation of an existing complaint.
Shortly after the injury she began a course of physiotherapy. Reliable evidence
in this regard shows that she responded well to treatment and was substantially
recovered within six weeks. The defendant submits that the injuries, or any
exacerbation of a pre-existing injury, attributable to the defendant were fully
resolved within three months, at most. I agree. A generous view of the evidence
establishes, at most, a three-month period to full recovery to Ms Anderson’s
pre-collision state. The plaintiff’s losses must be assessed accordingly.

Non-pecuniary

[76]        
The defendant submits that the appropriate range for non-pecuniary
damages is $2,000 to $5,000. In support of this position, the defendant cites: Kain
v. Kirkman, [2006] B.C.J. No. 3084 (BCSC), ($6,000); Mohammed v.
Rai, [2005] B.C.J. No. 3166 (BCSC), ($3,000 and $5,000); Bagasbas
v. Atwal, [2009] B.C.J. No. 758 (BCSC), ($3,500); Knauff v. Gower,
[2005] B.C.J. No. 2296 (BCPC), ($1,500); and, Siddoo v. Michael,
[2006] B.C.J. No. 77 (BCPC), ($1,500).

[77]        
The plaintiff submits that the appropriate range is $40,000 to $90,000,
and cited several cases in support thereof; however, her position rested upon a
trial finding that the defendant caused Ms Anderson’s fibromyalgia and
such was not the outcome.

[78]        
In assessing the non-pecuniary damages for Ms Anderson, I am unable
to distinguish her losses from the ordinary sort of losses most suffer from a
minor whiplash injury. I am, however, satisfied that the plaintiff was more
fragile than many others would have been at the time of the collision and that,
therefore, her post-collision aches and pains may well have been greater than those
experienced by an otherwise strong and healthy person. I am satisfied that Ms Anderson’s
life was negatively affected by the injury, or re-injury, and that during the
three-month recovery period her relationships suffered to some degree, she
endured some pain and discomfort, she lost some sleep, she opted out of some
leisure and sport activities, and she was put to various inconveniences. For
this three-month period of pain and suffering, with due regard to the cases
cited, I assess her damages at $6,000. Any lost homemaking capacity in this
period is subsumed into this award.

Special

[79]        
The plaintiff claims $206.91 for various medications, $120 for
physiotherapy “user fees”, and $49.90 for a Guildford gym pass. The
defendant opposes these claims, other than the physiotherapy user fees, on the
basis that they are unrelated to the injury caused by the collision.

[80]        
In proof of the pharmaceuticals claim the plaintiff tendered a pharmacy
invoice; however, for the three-month period in question (April 24-July 24,
2007) the only pharmaceuticals purchased were birth control pills. Similarly,
the record of payments for a gym pass shows no payments related to the period
in question – they do not commence until August 17, 2007. The evidence does
not, therefore, support the opposed claims. Special damages are fixed at $120.

Past Income Loss

[81]        
The plaintiff has failed to prove that she suffered income loss in the
three-month period in question. In relation to post-collision employment, the
evidence of Ms Anderson is unreliable. It is inconsistent with her resume
and her statements to several medical professionals, and contrary to the
testimony of Ms Danaz and Ms Harris, who said that Ms Anderson’s
employment was unaffected by the collision. For these reasons, the claim for past
income loss is dismissed.

Future Losses/Costs

[82]        
These claims were premised upon Ms Anderson proving that
fibromyalgia, which rendered her partially disabled, was caused by the
defendant. For reasons given, she has failed to do so. The evidence establishes
that Ms Anderson returned to her pre-collision state (albeit a compromised
one) within three months of the collision; accordingly, these claims are
dismissed.

E. Disposition

[83]        
The plaintiff’s claims for non-pecuniary damages ($6,000) and special
damages ($120) are allowed; the remaining damages claims are dismissed. If the
parties are unable to resolve the issue of costs then they may submit written
argument.

“The Honourable Mr. Justice
Bernard”