IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130704

Docket: M64701

Registry:
Nanaimo

Between:

Mark Edward Maddex

Plaintiff

And

Spencer Daniel
Sigouin and

Coastal Drain
Cleaning Service

Defendants

Before:
The Honourable Mr. Justice Williams
(appearing via teleconference)

Oral Reasons for Judgment

[1]            
THE COURT:  The plaintiff, Mark Edward Maddex, brings this action
seeking to recover damages sustained as a consequence of a motor vehicle
accident in which he was struck by an automobile owned by the defendant Coastal
Drain Cleaning Service and driven by the defendant Spencer Daniel Sigouin.

Background

[2]            
The plaintiff is a member of the RCMP. At the relevant time, he was
stationed at the Oceanside detachment located in Parksville, British Columbia.

[3]            
On the morning of March 20, 2010, he was on duty and operating a marked
RCMP vehicle. The vehicle was equipped with emergency lights and a siren. The
plaintiff says that the vehicle’s mirrors were adjusted to suit him and that he
checked that all of the equipment was properly operational when he commenced
his shift that day.

[4]            
The plaintiff and another RCMP member had been dispatched to attend a
call at a location north of Qualicum. After concluding their involvement,
Mr. Maddex and the other officer headed back to their detachment in
Parksville. Each was driving his own police car. The other officer, Constable
Kerr, was travelling some distance ahead of the plaintiff.

[5]            
They were travelling southbound on Highway 19A known as the Old Island
Highway. The road is generally a two-lane configuration, but there is a portion
near Baylis Road where the highway widens so that there are two lanes
northbound and two lanes southbound. At the intersection with Baylis Road and
in that immediate area, there is a fifth lane that is a left-turn bay for
southbound traffic intending to turn left. For northbound traffic, there is a
similar left-turn bay. The two are on the same alignment.

[6]            
As the plaintiff entered into the four-lane portion of the roadway, he
was travelling in the number 2 lane, that is numbering from the edge of the
road. Put another way, he was travelling in the passing lane for southbound
traffic. He testified that he was established in that lane and travelling at a
speed of approximately 80 kilometres per hour. He had his radar set turned
on such that he was able to monitor the speed of oncoming traffic. His
testimony was that he believed there was no traffic following behind him that
was, in his words, uncomfortably close, which he defined as within 10 or 15 car
lengths. That was significant to him, as it would be relevant in the event he
was required to make an emergency U-turn.

[7]            
Mr. Maddex noted on his speed monitoring device that an oncoming
northbound pickup truck was passing another vehicle and was travelling at a
speed indicated as 126 kilometres per hour. The posted speed limit in this
area is 80 kilometres per hour.

[8]            
Mr. Maddex decided to stop the speeding pickup truck. He activated
the emergency lights on his police vehicle. He testified that he was hopeful
that the oncoming vehicle would see the lights and would pull over in response
and thus there would be no need for pursuit. He also applied the brakes of the
police vehicle, slowing and preparing to make a U-turn so that he would be
travelling northbound on the highway.

[9]            
He said that the speeding truck passed by him, as did another northbound
vehicle, the one which had been overtaken by the speeding truck. He also
observed a third northbound vehicle and paused to be satisfied that that
vehicle would yield to him. His testimony was that more than five seconds had
elapsed between the activation of the emergency lights and this point. When he
saw that the third oncoming vehicle was going to yield, he continued to slow
and commenced a U-turn with the intention of turning to pursue the speeding
pickup truck. On my understanding of the evidence, he was still travelling in
the number 2 lane. He initiated his left-turn into the U-turn from that lane.
His testimony is that he braked in a controlled manner and over an extended
period of time; that is, there was no sudden braking on his part.

[10]        
The defendant Mr. Sigouin is a plumber. On this date, he was
travelling on the same highway returning from a service call. He was driving a
full-sized commercial van which was towing a trailer. He, too, was southbound
and travelling in the number 2 lane, that is, the passing lane. The van did not
have windows all around, only the front windshield, the side windows in the
front doors, and a small back window. While the trailer was equipped with
brakes, those were not connected and operational at the time. Mr. Sigouin
knew that to be the case.

[11]        
Mr. Sigouin was travelling behind the police car driven by the
plaintiff. The exact distance between the vehicles cannot be precisely discerned
from all of the evidence. Significantly, at some point, Mr. Sigouin
noticed that the police vehicle in front of him had activated its emergency
lights and was braking. He said that he was only approximately three car
lengths behind when he recognized what was occurring with the slowing police
car and, in the result, he was too close to be able to stop his vehicle without
coming into collision with the rear of the police vehicle. His testimony is
that he was travelling at approximately 80 kilometres per hour when he was
about three lengths behind the police vehicle.

[12]        
In order to avoid colliding with the police car, Mr. Sigouin swung
his vehicle into the left-turn lane in an attempt to go around the left side of
the police car. Travelling in that lane, he proceeded into the intersection,
and once he had crossed the Baylis Road allowance, he would have, in fact, been
in the northbound left-turn lane. My understanding is that, as he was making
that maneuver, he was continuing to brake.

[13]        
As Mr. Sigouin pulled into that left-turn lane, the plaintiff
initiated his left turn to effect his U-turn. The van struck the driver’s side
doors of the police cruiser in the northbound left-turn lane of the highway.

[14]        
Fortunately, the collision occurred at a fairly low velocity. However,
Mr. Maddex did incur some injuries, the details of which will be discussed
later.

Issues

[15]        
There are two issues to be determined:

1.       There
is the matter of liability. The plaintiff says that the collision was entirely
the responsibility of the defendants. The defendants say that the plaintiff was
wholly at fault. Alternatively, the defendants say that if there was some fault
on the part of Mr. Sigouin, it is no more than 25 percent and
liability should be allocated accordingly.

2.       The
plaintiff’s damages, general (that is, non-pecuniary) must be assessed. Other
than non-pecuniary damages, his only other claim is for special damages. The
parties have agreed upon the quantum of those.

Discussion

[16]        
I will note at the very outset that I found both the plaintiff and
Mr. Sigouin to be essentially credible witnesses. I detected no deliberate
attempt to take positions known to be wrong or incorrect or to be untruthful.
Each of them presented as reasonable and sincere. As we know, witnesses
sometimes have conflicting views of matters and events.

[17]        
Because the plaintiff was engaged in police duties and was operating an
emergency vehicle with his emergency lights on at the time of the collision, he
contends that certain provisions of the Motor Vehicle Act, R.S.B.C.
1996, c. 318, and the Emergency Driving Regulation, B.C. Reg. 133/98, provide
specific privileges to emergency vehicles and that they have application to
this matter.

[18]        
Part 3 of the Motor Vehicle Act requires that all drivers follow
traffic rules in general, and generally sets out the obligations and
restrictions that apply to persons operating motor vehicles on roadways. Included
within Part 3 is s. 122, which provides as follows:

Exemption for emergency vehicles

122 (1) Despite anything in this Part, but subject to
subsections (2) and (4), a driver of an emergency vehicle may do the
following:

(a) exceed the speed limit;

(b) proceed past a red traffic
control signal or stop sign without stopping;

(c) disregard rules and traffic
control devices governing direction of movement or turning in specified
directions;

(d) stop or stand.

(2) The driver of an emergency vehicle must not exercise the
privileges granted by subsection (1) except in accordance with the regulations.

(4) The driver of an emergency vehicle exercising a privilege
granted by subsection (1) must drive with due regard for safety, having regard
to all the circumstances of the case, including the following:

(a) the nature, condition and use
of the highway;

(b) the amount of traffic that is
on, or might reasonably be expected to be on, the highway;

(c) the nature of the use being made of the emergency
vehicle at the time.

[19]        
The Emergency Vehicle Driving Regulation is also relevant to the
matter at hand. I am going to make reference here to only certain specific
components. In the definition section, there are three definitions of
relevance:

"emergency light" means a flashing red or
blue light;

"emergency siren" means an audible siren, signal
bell or exhaust whistle;

"pursuit" means the driving of an emergency
vehicle by a peace officer while exercising the privileges granted by section
122(1) of the Motor Vehicle Act for the purpose of apprehending another
person who refuses to stop as directed by a peace officer and attempts to evade
apprehension.

Application

2          This regulation establishes the circumstances and
conditions that apply to the exercise of the privileges granted by section 122
(1) of the Motor Vehicle Act.

Pursuit by police

3(1)      To engage in or continue a pursuit, a peace officer
must

(a)        have an emergency light
and siren activated, and

(b)        have reasonable grounds
to believe that

(i)         the driver or a
passenger in the vehicle being or [about] to be pursued has committed, is
committing or is about to commit an offence, and

(ii)        the seriousness of the
offence and the need for immediate apprehension outweigh the risk to the safety
of members of the public that may be created by the pursuit.

Emergency response by peace officer

4(1)      A peace officer operating an emergency vehicle for
purposes other than pursuit may exercise the privileges granted by section
122(1) of the Motor Vehicle Act if

(a)        the peace officer has
reasonable grounds to believe that the risk of harm to members of the public
from the exercise of those privileges is less than the risk of harm to members
of the public should those privileges not be exercised, and

(b)        the peace officer
operates the following emergency equipment, as applicable:

(i)         in the exercise of
privileges described in section 122(1)(a) to (c) of the Motor Vehicle Act,
an emergency light and siren;

(ii)        in the exercise of
privileges described in section 122(1)(d) of the Act, an emergency
light or an emergency light and siren.

(2)        Having determined that there are reasonable grounds
referred to in subsection (1)(a), the peace officer referred to in subsection
(1) may, in the following circumstances, exercise any of the privileges granted
by section 122(1) of the Motor Vehicle Act without operating an emergency
light and siren or by operating an emergency light alone:

(a)        the peace officer is
responding to an incident and has reasonable grounds to believe that an offence
has been, is being or is about to be committed and that the risk of harm to
members of the public entailed in operating an emergency siren or an emergency
light and siren, as the case may be, outweighs the risk of harm to members of
the public entailed in not operating them;

(b)        the peace officer is engaged in the lawful
execution of his or her duty other than as described in paragraph (a) or
section 3 and has reasonable grounds to believe that it is safe to operate the
emergency vehicle without operating an emergency siren or an emergency light
and siren, as the case may be.

[20]        
That is the extent of the statutory quotation.

[21]        
With that backdrop, let me return to the facts of the matter at bar. As
described, the plaintiff was southbound in lane number 2 operating a marked
police vehicle. Mr. Sigouin was following in the same lane at
approximately 80 kilometres per hour or slightly in excess of that. The
plaintiff detected the northbound speeder and decided that he was going to stop
the driver and take enforcement action. The first step that he took was to turn
on all of the emergency lights of his vehicle, including an overhead light bar,
a light bar situated inside the vehicle on the rear shelf or deck and visible
through the rear passenger window, as well as strobe lights located at the
corners of the vehicle and in the vehicle’s side-view mirrors. It is unclear on
the evidence at what precise point the emergency lights were activated. I conclude
that it was probably several seconds before the collision.

[22]        
The event occurred near midday when road conditions were good and there
were no lighting or visibility problems.

[23]        
At no time did the plaintiff activate his police vehicle’s siren.

[24]        
To be clear, his intention was to make a U-turn at the intersection and
then to follow and apprehend the speeder.

[25]        
I would observe that the rear-turn signals of the police car were of
quite limited utility in these particular circumstances. While they were
flashing to indicate an emergency vehicle that was engaged in some emergency or
hazardous activity, there was no meaningful signal being displayed of any
intent to turn to the left.

[26]        
With respect to situational awareness, it is evident that the plaintiff
was focused on the oncoming speeder and other traffic approaching from the
south. However, I am satisfied that he was not properly aware of the fact that
the defendant was following behind him as closely as he was. He should have
been cognizant of that both by observations in his mirrors and by making a
shoulder check before starting his turn.

[27]        
If the plaintiff had been aware of the defendant’s presence and
proximity, I am sure he would not have initiated the left-turn as he did.

[28]        
Insofar as the application of s. 122 and the related Regulation
are of concern, it is my finding that the plaintiff was engaged in the initial
step or stage of a pursuit as defined by the Regulation. He had
determined that the driver of the oncoming pickup truck was in violation of the
Motor Vehicle Act, speeding or excessive speeding, and the plaintiff intended
to turn around for the purpose of apprehending or stopping that motorist.
Accordingly, s. 3 of the Regulation has application to the matter
at bar.

[29]        
It is of significance to this matter that the plaintiff had his
emergency lights engaged, but was not sounding his siren. As a careful
examination of the Regulation makes apparent, where the operator of the
emergency vehicle is performing certain functions, namely, stopping or
standing, it is sufficient to display emergency lights and it is not necessary
that the siren be sounded. For otherwise illegal maneuvers, to fall within the
protection of the legislation, it is necessary that both the lights be engaged
and the siren activated.

[30]        
The plaintiff advances the submission that the activity which he was
engaged in at the time of the event was “stopping or standing”. That is, to my
mind, not tenable.

[31]        
I understanding stopping or standing to be where the emergency vehicle
is stopped or parked in some unconventional or extraordinary location in the
course of performing some act related to the emergency function, for example,
stopping on the travelled portion of the roadway, but being there in a passive
or non-moving state.

[32]        
A police vehicle may also be protected under the legislation despite not
engaging the siren if there was an operational need for stealth or where the
officer reasonably believed it is safe to operate without the siren or the
lights and siren. The plaintiff did not offer testimony that would have brought
this provision into issue. Nor, in my view, do the circumstances support a
finding that this exception applies in the matter at bar.

[33]        
In short, then, the Regulation requires that the emergency
vehicle have both the emergency light and siren activated while engaged in any
of the dynamic activities that are set out in s. 122(1). The plaintiff had
not activated his siren in performing this maneuver.

[34]        
In the result, I conclude that the circumstances at bar do not permit
the plaintiff to bring himself within those special privileges or protection
afforded by s. 122 of the Motor Vehicle Act and the Regulation.

[35]        
That, however, is not the end of the matter.

[36]        
Section 177 of the Motor Vehicle Act sets out the steps a driver
must take to yield to an emergency vehicle. It says this:

On the immediate approach of an
emergency vehicle giving an audible signal by a bell, siren or exhaust whistle,
and showing a visible flashing red light, except when otherwise directed by a
peace officer, a driver must yield the right of way, and immediately drive to a
position parallel to and as close as possible to the nearest edge or curb of
the roadway, clear of an intersection, and stop and remain in that position
until the emergency vehicle has passed.

[37]        
While that provision, construed carefully, appears to impose that
obligation where the emergency vehicle is approaching from either ahead or
behind, the notion that a similar yielding response would be given in a
situation where a driver is proceeding along a highway and comes up behind such
a vehicle seems obvious.

[38]        
In all driving situations, the standard of care imposed is that of a
prudent driver acting in compliance with the applicable motor vehicle
legislation. In the present case, the defendant Mr. Sigouin did not meet
that standard. Despite the fact that the police car did not have his siren
activated, this standard would appear to require that Mr. Sigouin would
react safely to other cars on the road.

[39]        
Precisely why Mr. Sigouin did not pull over safely is unclear. The
best explanation that can be gleaned from the evidence is that he was not
paying sufficient attention to the circumstances as he drove along and, when he
became aware of the situation, that is, that the police car travelling ahead of
him in his own lane was displaying emergency lights and slowing markedly, he
was unable to react in a safe way. He was driving a fairly heavily-loaded
commercial van and he was towing a trailer which was not equipped with
operating brakes. His visibility to the rear and to the right were limited. In
order to avoid coming into collision with the police car, he executed what was
basically an emergency maneuver. He swung out to the left and into the
left-turn bay in order to pass.

[40]        
Section 162 of the Motor Vehicle Act requires that a driver must
allow a following distance that is reasonable and prudent with regard to the
other vehicles on the road and the condition of the highway. Section 144
requires that drivers operate their vehicles with due care and attention and
with reasonable consideration for other persons using the highway.

[41]        
Those too are standards of care that are imposed upon motor vehicle
drivers. Those are standards that Mr. Sigouin in this case failed to meet.

[42]        
I find that he was not driving with sufficient care and attention and
thus he found himself too close to react safely. That seems attributable to a
combination of following too closely and a degree of inattention.

Conclusions Respecting Liability

[43]        
It is my conclusion that Mr. Sigouin was not paying sufficient
attention as he was driving and that he was positioned too close behind the
police car, taking into account the speed and the limited maneuverability of
his vehicle. By the time he recognized the necessity to react to the police car
slowing in his lane, it was too late to safely slow down behind that vehicle.
As a result, he was forced into an emergency maneuver which entailed passing
the police vehicle. He did not believe it was safe to pass on the right and so
he elected to pass on the left which necessitated him moving into the left-turn
bay to get past the police car. It is clear that he did not see the flashing
emergency lights and react to them in a timely and responsive way. My
conclusion that he was not paying sufficient attention is buttressed by the
fact that the vehicle he evidently failed to notice was a prominently marked
police car displaying flashing lights. It is clear from the evidence that
Mr. Sigouin knew that this was a police car because he testified that he
made that observation a short time earlier and that he took measures to situate
himself so that he was travelling behind that car.

[44]        
As for the plaintiff, he initiated a turn, essentially a U-turn, from
the number 2 lane. He satisfied himself that could be done safely with respect
to the oncoming traffic. However, he appears not to have appreciated that his
maneuver could not be safely executed because there was another vehicle
following fairly close behind him.

[45]        
Further, he initiated his maneuver not from the left-turn bay, but
rather from the number 2 lane, a position which made it less apparent that he
was going to turn left.

[46]        
I accept that the plaintiff was displaying his emergency lights and it
would be apparent to any other motorist that he was engaged in some sort of
official emergent duties on the roadway. As I indicated earlier, other drivers
are expected to yield to such vehicles.

[47]        
However, it is abundantly clear from the legislation that displaying
emergency equipment, whether lights or lights and siren, does not afford a
shield of invincibility or absolute right. Even when an emergency vehicle has
that equipment fully deployed, there is an overriding obligation on the
operator of the emergency vehicle to ensure that any driving activity be
conducted in a safe fashion vis-à-vis other persons on the roadway.

[48]        
In the present case, that required the plaintiff to be sure that his
U-turn could be executed in safety. He ought to have been aware of the fact
that the defendant’s vehicle was following him, fairly close behind; he ought
to have checked behind him.

[49]        
It is evident that he did not do so.

[50]        
In the circumstances, I find that both of the drivers, the plaintiff and
the defendant Mr. Sigouin, were negligent in this collision.

[51]        
As for allocation of fault, I find each to be similarly responsible, and
I apportion liability equally, that is, 50 percent for each of them.

Damages

[52]        
The plaintiff seeks to recover damages under two heads, non-pecuniary
and special damages.

[53]        
The parties have agreed with respect to special damages and the quantum
thereof.

[54]        
As for the non-pecuniary damages, the plaintiff conceded, quite fairly,
that the physical injuries which he sustained were relatively minor and
resolved within a short period of time.

[55]        
He also testified as to having experienced some emotional trauma from
the event and testified that he sought counselling. He met with a counsellor on
one occasion and found that she provided him with tools or coping strategies
that have been useful for him. Any lingering effect in this regard is fairly
minimal.

[56]        
The principal injury he sustained is tinnitus. That was described by the
plaintiff in his testimony. He also tendered a medical-legal report of his
general practitioner, who testified at trial. Additionally, the plaintiff was
examined by Dr. Desmond Bell. He is an otologist who specializes in the
medical and surgical treatment of ear diseases. He has provided a report which
is dated February 22, 2013. I find that to be a clear and succinct description
of the plaintiff’s condition and prognosis.

[57]        
Dr. Bell concludes that the accident caused a condition of tinnitus
which is relatively mild. He believes that the condition is likely permanent,
but should be less bothersome with the passage of time. He says that the
condition should not interfere with the plaintiff’s present or future job or
activities as he gradually becomes used to it. He opines that there is no
vocational disability associated with the condition. At one point in his
opinion, he described the condition as a nuisance, observing that it should not
interfere with the ability to perform the job or participate in recreational or
social activity.

[58]        
In his report, Dr. Bell says this:

To put the tinnitus in
perspective I offered the following explanation. I reassured him that it was a
mild and benign symptom and would do him no harm. Rather than become worse with
time it will almost certainly become less noticeable. It is a common symptom
affecting approximately 15% of people over the age of 45. It is aggravated by
noise exposure which, for him, is a practical consideration. He needs to be
careful to use sound protection when doing his annual recalibration tests. He
will notice that he does not hear the tinnitus when he is in “mentally
preoccupied” or when there is noise around. From a practical point of view it
is uncommon to be in a perfectly silent environment. The use of his earplugs
(to get his daytime sleep) does create a silent atmosphere, which is why he
notices the tinnitus more at that time. It would be helpful if he could learn
to sleep without using these earplugs as he would be less aware of the
tinnitus. It is also important that he not “focus on it” and tries to regard it
as a minor nuisance. If he can adopt this attitude over time he will
effectively “become inured to it”. There is no effective medical or surgical
treatment to remove it and his tinnitus is not severe enough to justify the use
of maskers. The best treatment is a thorough explanation as to the causation as
well as reassurance that it is benign and harmless.

[59]        
It is my conclusion that the injuries that were suffered by the
plaintiff consisted of relatively minor soft tissue injuries which resolved in
short order. He also experienced some psychological distress which was
addressed by counselling. Finally, he now suffers from the tinnitus condition
as described. That has caused him some discomfort and distress in his everyday
life, particularly with respect to his ability to sleep and when listening to TV
and recorded music. The indications are that the effect is not acute and that
the condition will lessen with the passage of time. It does not meaningfully
interfere with his work or his recreational and social activities.

[60]        
The plaintiff’s counsel has provided a number of cases, decisions of
this Court and the Court of Appeal, dealing with an appropriate quantum of
damages where the plaintiff sustained an injury resulting in tinnitus. Three of
those cases are White v. Nuraney, 2000 BCCA 536, Yang v. Chan, 2012
BCSC 1753 and Wagner v. Narang, 2003 BCSC 1750.

[61]        
The plaintiff relies upon the decision of Justice Braidwood in White
v. Nuraney. In that judgment, there appears to be discussion of a range of
damages for tinnitus conditions. Justice Braidwood said this:

It is somewhat difficult to
pinpoint an exact “range” for tinnitus awards, since plaintiffs always suffer
the injury in conjunction with other (often more serious) injuries. However,
the range for non-pecuniary damages seems to extend from $20,000 to $90,000
depending on whether there are other injuries present. Perhaps the bottom end
of this range, when adjusted for inflation, is now in the neighbourhood of
$35,000. At any rate, the jury award in this case of $55,000 is not
“inordinately low” and, following the traditional test, this Court cannot
interfere with it.

[62]        
That was a decision in 2003. In the submission of the plaintiff, the
bottom of the range once adjusted for inflation is in the approximate amount of
$42,785.

[63]        
The plaintiff also relies on Yang v. Chan where a 58-year-old
plaintiff was found to be suffering from tinnitus unlikely to resolve along
with soft tissue injuries that affected him for six months. The court awarded
damages there of $60,000.

[64]        
Additionally, the plaintiff relies upon the decision in Wagner v.
Narang where a 48-year-old plaintiff suffered from post-traumatic stress
syndrome of a mild to moderate severity for approximately two years. In
addition, there were soft tissue injuries which took some time to resolve and
which left a condition of some chronic pain. There, non-pecuniary damages of
$70,000 were awarded. I note that was a 2012 decision.

[65]        
The defendants in this matter urge a different view. Counsel note that
the plaintiff has not received physiotherapy or other treatment as a result of
the incident, no medications were prescribed, and there is no indication that
the plaintiff was required to pay any number of visits to his family doctor as
a consequence of the injuries.

[66]        
In the submission of the defendants, the range of non-pecuniary damages
is properly between $10,000 and $20,000.

[67]        
Quantifying an appropriate award of damages entails a number of
considerations starting with the actual injuries sustained and taking into
account a range of factors which deal with the manner in which the injuries
affected and continue to affect the plaintiff. A non-exhaustive list of those
considerations was set out in Stapley v. Hejslet, 2006 BCCA 34 at para.
46, and I have taken those into consideration here.

[68]        
Although there may be some dispute as to whether there is a clearly
recognized range of damages for a plaintiff who incurred a condition of
tinnitus, I am satisfied that there is an established basis upon which this
condition has been recognized and its seriousness is reflected in awards in similar
situations.

[69]        
It is my view that the awards in Yang and in Wagner are
not particularly useful in determining the correct quantum in the matter at
bar. In each of those, in addition to the tinnitus, there were other
significant injuries and effects that are not present in this case.

[70]        
In my view, an appropriate quantum of non-pecuniary damages in the
present matter is $42,000.

[71]        
In addition, special damages in the amount of $392.69 are awarded to the
plaintiff.

[72]        
Those awards of damages are, of course, subject to the finding of
contributory negligence which has been made.

[73]        
In the final analysis, the plaintiff is entitled to recover the sum of
$21,186.35.

[74]        
There were no submissions made with respect to costs. In the absence of
anything of which I am unaware, the plaintiff is entitled to recover his costs.
In the event there are matters not known to me which impact upon that issue and
counsel are not able to agree, arrangements should be made to have the matter
brought back before me.

“The
Honourable Mr. Justice Williams”