IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131104

Docket: M138130

Registry:
New Westminster

Between:

Patsy Ann Visona

Plaintiff

And

Herbert Anderson
Stewart and Roger Paul Visona

Defendants

Before:
The Honourable Mr. Justice Jenkins

Reasons for Judgment

[1]            
The plaintiff, Ms. Visona, claims damages arising from a low-impact
collision which occurred on November 23, 2009 in Surrey, B.C. (“the accident”).
Liability is admitted and only causation and the extent of various heads of
damage were in issue at trial. Ms. Visona seeks damages for pain and suffering,
special damages, and damages for loss of past and future income.

I.                
Facts

A.             
The Accident

[2]            
Both Ms. Visona and the defendant owner and operator of the other
vehicle, Mr. Stewart, testified as to the collision and events following it.

[3]            
At the time of the accident, the plaintiff was in the front passenger
seat of a very large 2008 Dodge Ram pickup truck owned and driven by her
husband. Ms. Visona’s husband at the time of the accident, Roger, did not
testify at the trial. Mr. and Ms. Visona separated in April 2010, and
subsequently divorced.

[4]            
The impact of the collision was slight. The left front bumper of the defendant’s
vehicle, a Mazda, struck the left front tire of Mr. Visona’s pickup truck. The
only apparent damage to Mr. Stewart’s vehicle was a smudge mark on the left
front bumper. The only apparent damage to the Visona vehicle was a smudge mark
on the outside of the front left tire.

[5]            
Ms. Visona testified that the Visona vehicle was travelling at 50 km/h
at the time of the accident. However, that estimate appears to err on the high
side considering the minimal damage to both vehicles. Mr. Stewart, who admitted
responsibility for the accident and was somewhat embarrassed at what had
occurred, estimated he had been travelling at 40 km/h immediately before he
applied the brakes in his vehicle. He testified that he then skidded several
feet before his left front bumper impacted with the front left tire of Mr.
Visona’s truck.

[6]            
Ms. Visona testified that despite securing herself with a shoulder and
lap seat belt, she was “tossed in the truck” and when she went to move she soon
felt neck and back pain. She believed that her right shoulder may have hit the
passenger-side door and her outer left knee may have come in contact with the
hard plastic console in the truck. Ms. Visona did not recall back pain
immediately following the accident.

[7]            
She further testified that her husband soon called for an ambulance, and
after the fire and ambulance attendants arrived, they secured her on a
backboard, affixed a neck collar, and took her to Langley Memorial Hospital.

[8]            
Mr. Stewart stated that at the time of impact, his car was “hardly
moving”, and that there was no “physical impact”. He testified that he was not
thrown in the accident and that neither he nor his wife, who was in the front passenger
seat, suffered any injuries.

[9]            
Mr. Stewart stated he pulled his Mazda to the side of the road and went
over to the driver of the truck, Mr. Visona, to ask if everyone was okay. Both
Mr. Stewart and Mr. Visona looked at the damage, which appeared to be minimal.
Mr. Stewart asked Mr. Visona about Ms. Visona’s condition and Mr. Visona
responded that she was “having a hissy fit”.

[10]        
Mr. Stewart testified that there was no mention of any injuries at the
accident scene in his exchange with Mr. Visona. Mr. Stewart stated that they
exchanged information and a fireman told Mr. Stewart he could leave. It was
only much later that Mr. Stewart says he learned that an ambulance had been
called for Ms. Visona, which surprised him.

B.             
Ms. Visona’s Background

[11]        
 At the time of the accident, Ms. Visona was 42 years old. She is the
mother of two children who were 11 and 20 years of age at the time. Also at the
time of the accident, Ms. Visona was living with her husband and two children
in Surrey. She was not working at that time as Ms. Visona testified that she
and her husband had agreed that she should spend more time raising her
children, especially since the youngest child had been the victim of bullying
and needed more guidance from her mother.

[12]        
Ms. Visona has a grade 11 education. For many years, including the time
when her children were young, Ms. Visona worked at several jobs including
retail work in clothing and jewelry stores, office administration, and
part-time work at Costco. Prior to the accident she had last worked as an
assistant manager at “Gymboree”, a children’s clothing store in Surrey. Ms.
Visona stated that after quitting the Gymboree position, she sought work near
Guildford Mall in Surrey but as of November 2009, she had no prospects for work
save for a possibility of employment at a “Bowring” store at Guildford Mall. It
is clear from the evidence that Ms. Visona’s search for employment in the fall
of 2009 was not aggressive. She also stated in evidence that it was not a
matter of “economic necessity” for her to work since Mr. Visona had good
employment with Costco and that it had become more important for her to stay
home with her children.

[13]        
Exhibit 1 at trial was an agreed statement of facts, which was basically
a summary of Ms. Visona’s employment history both before and after the
accident. That document showed earnings of between $6,668 and $11,888 annually
from 2006 to 2008 and $2,930 in 2009 up to the date of the accident on November
23, 2009. Ms. Visona also received employment insurance benefits in 2008 and
2009.

[14]        
Ms. Visona testified that in January 2009, she slipped on black ice in
Surrey, fell forward, and injured the inside of her left knee and her right
hand. She testified that she did not suffer any back pain as a result of the
fall. She also stated she had suffered some minor back pain which had gone away
prior to the accident.

C.             
Ms. Visona’s Description of the Pain and Suffering Arising from the
Accident

[15]        
Immediately following the accident, Ms. Visona complained of the
injuries described above. Ms. Visona’s evidence was that she was suffering pain
in her lower back into her buttocks near her “upper tailbone” when she was
discharged from Langley Memorial Hospital on the day of the accident.

[16]        
Ms. Visona testified that she suffered headaches starting shortly after
the accident which “were almost always there at first”, and for which she took
Tylenol and was prescribed other medicine by her family doctor, Dr. Jackson.

[17]        
Ms. Visona moved to Edmonton on April 13, 2010, following her separation
from her husband. She stated that the headaches continued through April 2010,
but the severity of the pain lessened over time. She also testified that she has
continued to suffer from headaches two or three times a month, for which she
takes Tylenol.

[18]        
Ms. Visona described the neck pain on the day of the accident as
“unbelievable, even in a collar”, and stated that the pain was “burning,
throbbing, went to the base of her skull and into her shoulders with the right
side a bit worse”. For treatment she applied ice and heat, and was prescribed
further medicine. Throughout 2010, Ms. Visona described neck pain lasting eight
to 10 hours per day, especially during cooler weather. Presently, she stated
she has neck pain symptoms averaging five times per month in her back and up to
the base of her skull, for which she applies heat.

[19]        
Ms. Visona also described pain in her shoulders and arms lasting until
June 2012, which was aggravated by cold weather. She stated that although she
no longer notices that pain, she sleeps only on her right side due to low back
and hip pain on her left side, so her right upper arm is tender each morning.

[20]        
Ms. Visona described upper back pain from the top of her shoulders down,
that initially was throbbing most of the day. She stated that lifting
aggravated the pain and that she was unable to walk her dog as the dog pulling
on the leash aggravated the pain. The pain in her upper back eased somewhat by
April 2010, but the pain continued to be aggravated if she did any lifting or made
quick movements. By June 2012, Ms. Visona had upper back problems “once in a
while, once every two months between the shoulder blades” that was “not
severe.” From November 2012 to date, Ms. Visona stated that upper back pain has
diminished in all respects.

[21]        
Ms. Visona also described pain in her lower back to her tailbone and left
hip. She stated at trial that the small of her back “burned, ached and throbbed
for days after the accident – all day” and affected her activities. Ms. Visona
gave evidence that her lower back pain lessened in severity in 2010, was
aggravated by activity, and was always present. She has found the pain more
severe of late in her new position with Paris Jewelers in Edmonton. She tries
to avoid too much sitting at work and elsewhere in order to lessen the pain.

[22]        
By far the most significant pain Ms. Visona is still experiencing is in
what she describes as her tailbone. This area of pain is also the most
controversial. The defendants’ position is that any pain in what she describes
as her tailbone was not caused by the November 23, 2009 accident. Ms. Visona
stated in evidence that the pain in her tailbone has increased over time,
especially since June of 2012, and that she experiences pain “every day, all
day”. She testified that the pain worsened whenever she sat on hard surfaces
and that the pain feels like a “pit bull has me on the side of my hip and won’t
let go some days”.

[23]        
Ms. Visona also testified that the pain she has suffered left her
depressed and contributed to the breakup of her marriage. She stated that “we
should still be together – I’ve loved him and will for the rest of my life and
but for the accident we would not have split up”. She also explained how her
daughter describes her as grumpy and moody. She has neither sought counselling
for her depression nor taken any medicine for depression.

[24]        
Ms. Visona’s evidence regarding her depression and blaming the accident for
the breakup of her marriage is simply not credible, especially in light of the
comments of Dr. Helper, the expert in physical medicine and rehabilitation
called by Ms. Visona. In his March 10, 2010 report, Dr. Helper stated at page
9:

7. Emotional State: Premorbidly,
Patsy describes herself as being well with no history of depression or anxiety.
Currently, she describes a sense of loss in self-worth without her ability to
work.

Also,
in his June 25, 2012 report, Dr. Helper stated, at page 8:

7.
Emotional State: Good. No concerns of depression or anxiety.

D.             
Medical Evidence regarding Ms. Visona’s Injuries

[25]        
The defendants accept that Ms. Visona suffered soft-tissue injuries to
her neck, back and left hip as a result of the accident and that Ms. Visona
suffered a bruise from the impact of the left side of her left knee on the
centre console of the Dodge Ram truck.

[26]        
According to Dr. Street’s report for the defendants dated July 12, 2012,
the cervical CT scan taken at Langley Memorial Hospital on the day of the
accident indicated an “unremarkable examination” which evidenced no cervical
spine damage or compression of the spinal cord.

[27]        
In her January 2011 report, Ms. Visona’s family doctor, Dr. Jackson,
stated, at p. 3:

I last saw Mrs. Visona on April 6, 2010. She was still
experiencing pain as noted above, and her exam remained unchanged. I also felt
that she had mechanical neck and back pain, and right shoulder strain. I agreed
with Dr. Helper’s recommendations for treatment.

Mrs. Visona’s complaints arose
from her MVA. She had not previously been troubled by neck, back or shoulder
pain. She still had significant symptoms when I last saw her, which had been
present for over four months. Because of the length of time she had her neck
and back symptoms, without significant improvement, I feel that her prognosis
for complete recovery would be guarded. I cannot comment further on this
however as I have not seen her since she moved to Edmonton.

Dr. Jackson’s assessment of mechanical neck and back pain
are consistent with Dr. Street’s interpretation of the CT scan.

[28]        
Both Dr. Helper and Dr. Street refer to a period of general lower back
pain Ms. Visona experienced. In his July 18, 2012 report, Dr. Street stated, at
p. 8:

Ms. Visona’s low lumbosacral or
coccygeal pain was more diffuse in the weeks and months following the accident
and in months immediately prior to my assessment had become more localized to
the coccyx. It is probable that she had a mild soft tissue injury, or sprain,
to her low back secondary to the motor vehicle accident. It appears that those
symptoms have completely resolved. By her own admission, the disabling symptom
which Ms. Visona continues to suffer from is focal coccygeal pain.

[29]        
Regarding the effect and duration of the soft-tissue injuries on Ms.
Visona’s functional status or activities of daily living, in his March 10, 2010
report Dr. Helper stated, at p. 8:

Premorbidly, she performed
approximately 50% of the housework split with her husband. She participated in
all basic housework duties. Currently, she is participating at a slightly
lessened level. Some of the more physical activities such as lifting the vacuum
cleaner up and down the stairs and lifting heavy laundry baskets are too
difficult for her at the current time and has her husband do it. Otherwise, she
participates in housekeeping to the best she can. Her overall participation has
dropped from 50:50 to approximately 40:60.

At p. 10 of the same report,
Dr. Helper stated, regarding Ms. Visona’s vocational capabilities:

Patsy describes her vocational participation as a source of
satisfaction, rather than an economic necessity. If this is correct, attempting
to work in her current pain state would likely be less satisfying. I do
recommend that Patsy return to the workforce as soon as she is able to tolerate
the demands of her desired position. I would expect her to be able to work
after a 50% improvement from her current level of neck and low-back pain.

Dr. Helper also stated at p. 10
of the same report:

Using my own experience as a frame of reference, I believe
Patsy Visona is performing below expectations for the average patient with her
injuries in the categories of:

1. Recreational: I believe an increase in activity will
result in benefit to all of her spinal complaints. I do suggest Patsy undergo a
course of active rehab to guide her through the early stages of her return to
recreational activity. I agree that an attempt to return to swimming is a good
idea.

[30]        
Ms. Visona began to look for work in summer 2010 and secured employment
in Edmonton in October 2010 for the first time since the accident. Since this
time, Ms. Visona has not missed any work due to the injuries she says she sustained
in the accident.

[31]        
Also informative regarding the extent and duration of the injuries are Dr.
Helper’s statements in his June 25, 2012 report at p. 7 where he stated:

1.     ADLs/Activities
of Daily Living: For the most part, Ms. Visona has no limitations with her
activities of daily living. The one thing she cannot do is sit in a bathtub due
to tailbone pain; she showers instead. Otherwise, her ADLs are not limited by
her musculoskeletal complaints.

2.     IADLs/Instrumental
Activities of Daily Living: Ms. Visona has now returned to full function
with driving, housework, yardwork, and grocery shopping.

3.    
Vocational:  In April of 2011, she obtained a new job at
International Clothiers. This is a managerial position. She had no limitations
with her function in this position. In February of 2012, she applied for and
got a new job with Paris Jewellers. The reason for the vocational change was
due to improved pay. She is currently an associate training to be an assistant
manager. She anticipates no limitations with her vocational participation. With
regard to her position as a manager at the International Clothiers Company
(previous job), she states that she was required to do some physical labour
with lifting activities. She states that the lifting activities actually felt
beneficial for her musculosketetal complaints. She felt that she gained
strength through this activity.

[32]        
Based on the statements above and Ms. Visona’s evidence at trial, her
suffering and the effects of the soft tissue injuries likely lasted no longer
than two years from the date of the accident. In making this determination, I
am not taking into account the “tailbone” injury which Ms. Visona claims was
caused by the November 23, 2009 accident. The evidence supports a finding that
Ms. Visona continued suffering from her tailbone injury long after the
soft-tissue injuries appear to have healed. I am considering the tailbone
injury separately because on the evidence of the nature and severity of the
accident, all of the medical practitioners’ evidence and Ms. Visona’s evidence,
I find it unlikely that her tailbone injury was caused by the accident.

[33]        
The facts which lead me to conclude that the “tailbone” or “coccyx”[1]
injury was not caused by the accident include the following:

a)    Ms. Visona’s
evidence was clear that the tailbone pain is the most disabling and painful
injury she suffered as a result of the accident. Dr. Jackson’s January 2011
report reviews the injuries claimed to have been suffered by Ms. Visona, but
makes no mention of the tailbone or coccyx pain. Considering Dr. Jackson attended
upon Ms. Visona two days after the accident and on other occasions up to March
of 2010, one would expect a reference to this claimed injury.

b)    It was not until
Dr. Helper’s June 2012 report that he opined that there had been an injury to
the sacroiliac joint. In his March 2010 report, Dr. Helper concluded that the
plaintiff had suffered discogenic pain or a soft-tissue injury to the lower
back. During the trial there was evidence of other incidents including a
further motor vehicle “near-miss” which exacerbated Ms. Visona’s injuries, a
July 2010 motor vehicle accident which resulted in injuries to her back, a slip
at a Safeway in January 2011, and a fall in November 2011 when Ms. Visona fell
and her face hit the ground. It is quite possible that one or more of these
subsequent events could have caused or contributed to the tailbone injury, which
was reported in the June 2012 report of Dr. Helper.

c)     I have
referred earlier in these reasons to the minimal impact of the November 23,
2009 collision. On cross-examination, Dr. Helper stated that an injury to the coccyx
is likely to be the result of a direct blow to the coccyx or lower spine, and
it is less likely that an injury to the coccyx would be caused to a person in a
well-padded seat while belted in an automobile. In other words, it is unlikely
that a direct significant impact to the coccyx could have occurred in the
circumstances of this case while Ms. Visona was seated in the Dodge Ram truck.

d)   
In his report of April 13, 2013, Dr. Street stated, at p. 5:

As Dr. Helper himself stated, in point 3 on page 3 of his
report of June 25, 2012, “the only way to clarify this diagnosis is to undergo
diagnostic testing”. I would absolutely agree with this assertion by Dr.
Helper. I am not aware that Ms. Visona underwent any such diagnostic testing.
No records have been made available to me to indicate that Ms. Visona has
undergone diagnostic injections of either her sacroiliac joints or her coccyx.

It would appear that both Dr. Helper and I have provided
leading diagnoses that require diagnostic testing for clarification. As these
diagnostic tests have not been performed to date, then I believe neither of us
can be firm on our diagnosis as to the source of Ms. Visona’s low back pain.
Consequently, without a clear diagnosis as to the source of the pain, I believe
that it is very difficult then to opine on either causation or prognosis.

On p. 6 of the same report Dr.
Street summarized the conclusions reached by him and Dr. Helper and stated:

In summary, it appears to me that Dr. Helper and I have very
similar opinions with regard to most of Ms. Visona’s complaints apart from that
of her low back pain. Dr. Helper and I have provided differing leading
diagnoses with regard to the low back pain. We have both stated that our
respective diagnoses can only be clarified with the use of advanced diagnostic
testing. We have both observed that, to date, these diagnostic tests have not
been performed.

The leading diagnoses provided by both Dr. Helper and I are
fraught with clinical lack of reliability and, as such are very dependent on the
advanced diagnostic testing for crystallization of the diagnosis.

I conclude from these passages that neither Dr. Helper nor
Dr. Street is able to provide a conclusive opinion without the diagnostic
testing both stated would likely be determinative as to the cause of Ms.
Visona’s low back and tailbone pain.

[34]        
The conclusion I have arrived at is thus supported by the absence of any
mention of tailbone pain by Ms. Visona in Dr. Jackson’s January 2011 report
which covered Dr. Jackson’s  appointments with Ms. Visona up to March 2010, the
lack of diagnosis of sacroiliac pain in Dr. Helper’s March 2010 report, the
evidence of the minimal impact of the vehicles and lack of any direct impact in
the area of Ms. Visona’s lower back, the possibility of other incidents having
caused or contributed to the lower back pain, and the lack of conclusive
diagnosis by the experts.

[35]        
The Court of Appeal’s decision in Cahoon v. Brideaux, 2010 BCCA
228, is instructive regarding the assessment damages for a minimal impact
collision. Particularly instructive is the following excerpt from the decision
of Smith, J.A.:

[83]      Here, the respondents did not argue that Mrs.
Cahoon could not have been injured in the collision. Rather, they conceded she
suffered some injury but submitted that she was exaggerating her injuries and
that she had not proven that all of the injuries and losses of which she
complained were caused by the collision. The burden of proof of these matters
lay with Mrs. Cahoon – the respondents did not bear the burden of proving that
the injuries she claimed were not caused by the collision.

[84]      The evidence of automobile damage was relevant to
the question whether Mrs. Cahoon suffered the injuries she claimed as a result
of the collision. In R. v. Watson (1996), 108 C.C.C. (3d) 310 at 323-24
(Ont. C.A.), Doherty J.A. explained relevance as follows:

. . Relevance . . . requires a
determination of whether as a matter of human experience and logic the
existence of “Fact A” makes the existence or non-existence of “Fact B” more
probable than it would be without the existence of “Fact A”. If it does then
“Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact
in issue or is relevant to a material fact in issue in the litigation then
“Fact A” is relevant and prima facie admissible.

[85]      Human experience and
logic, qualities for which juries are particularly valued, are the essence of
common sense. They suggest there is a relationship between the force of an
impact between two vehicles and the resulting damage to the vehicles. Thus,
evidence of minimal damage makes it more likely the force of the impact was
minimal (Fact A). Human experience and logic also suggest there is a relationship
between force exerted on the human body and injury caused by the force. Thus,
evidence of minimal force applied to the human body tends to make it more
probable that the resulting injury would not be serious (Fact B). It follows
that the evidence of vehicle damage was relevant on this issue and the trial
judge did not err in instructing the jury that they could use it as
circumstantial evidence.

[36]        
It is abundantly clear in this case that there was minimal impact
between the two vehicles. Even Ms. Visona stated in cross-examination that she
had no recollection of the sound of the impact and “our car moved south a
little bit, a few inches”. The clear evidence of very minimal impact of the
vehicles thus justifies consideration of the impact in an assessment of
damages.

[37]        
Accordingly, considering all of the evidence relating to causation of
Ms. Visona’s low back pain, I find on a balance of probabilities that the
sacroiliac mediate pain, or the diagnosis of coccydynia, to use the words of
Dr. Street, was not caused by the November 23, 2009 motor vehicle accident.
Therefore, the only injuries suffered by Ms. Visona as a result of the November
23, 2009 accident are the soft-tissue injuries to her neck, back and left hip
as well as a bruise to the left side of her knee.

II.              
Damages

A.             
Assessment of Non-Pecuniary Damages for Pain and Suffering

[38]        
As a result of the November 23, 2009 accident, Ms. Visona suffered
soft-tissue injuries to her neck, back and left hip, and a bruise to the left
side of her knee. Based on my finding above that Ms. Visona suffered from these
injuries for a period of at most two years, the authorities quoted by the
defence are more applicable in assessing damages for pain and suffering. In
contrast, the submissions from counsel for Ms. Visona took into account ongoing
low back pain almost four years after the accident, and emotional
considerations such as the breakup of Ms. Visona’s marriage and difficulties in
her relationship with her daughter, neither of which can be related to the November
23, 2009 accident.

[39]        
Awards of damages for pain and suffering from other cases act as a guide
but are not determinative as to appropriate compensation for the injuries. I
agree that each case must be considered on its own merits, and consideration of
an individual’s situation makes the assessment of damages a very subjective
task. The decisions referred to which are of some assistance are Mr. Justice
Verhoeven’s decision in Carter v. Zhan, 2012 BCSC 595, and Madam Justice
Maisonville’s decision in Vela v. MacKenzie, 2012 BCSC 438. In those
cases, the learned judges awarded non-pecuniary damages of $35,000 and $27,000,
respectively.

[40]        
I find, in light of all of the evidence, that Ms. Visona is entitled to non-pecuniary
damages of $30,000.

B.             
Loss of Income to Trial

[41]        
Based on her assessments of Ms. Visona only up to early March 2010, Dr. Jackson
concluded in her January 2011 report that Ms. Visona’s injuries would have
precluded her from working at the time Dr. Jackson was seeing Ms. Visona after
the accident.

[42]        
Ms. Visona testified that she was not working at the time of the
accident as a matter of choice as she and her husband decided it was more
important for Ms. Visona to be at home helping their daughter than to be
in the workforce. Contrary to this, Ms. Visona also testified that on the day
of the accident she was intending to apply for a job at Guildford Mall in
Surrey.

[43]        
In 2009, up to the time of the accident in November, Ms. Visona had
earned $2,930 and received employment insurance proceeds of $3,523.

[44]        
I find that, at the time of the accident, Ms. Visona was not working as
a result of her and her husband’s decision that she withdraw from the workforce
to spend more time with their daughter. I also find that Ms. Visona was not
seriously considering returning to the workforce in November 2009 or soon
thereafter. Ms. Visona likely could have found work at some point in time
prior to September of 2010. However, the nature of work, whether part-time or
full-time and the amount of wages, is speculative. I therefore find past loss
of income in the amount of $1,500.

[45]        
Ms. Visona also claims lost income from not being able to continue with
her July 2012 promotion to administrative assistant with her current employer,
Paris Jewelers, an assignment which had increased her pay. As I find that most
the injuries suffered in the accident had been overcome within two years and
that the continued low back pain was not caused by the accident, I dismiss any
claim by Ms. Visona for loss of income in 2012 relating to this accident.

C.             
Loss of Capacity to Earn Income

[46]        
The leading case in B.C. on the loss of future earning capacity is the
Court of Appeal decision in Perren v. Lalari, 2010 BCCA 140. The court
stated:

[32]      A plaintiff must always
prove… that there is a real and substantial possibility of a future event
leading to an income loss. If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings approach,
as in Steenblok, or as a capital asset approach, as in Brown.

[47]        
As stated above, Ms. Visona has fully recovered from the injuries
suffered in the November 23, 2009 accident. On the evidence before me, there is
no possibility of a future event leading to a loss of income that could be
related in any way to the accident. Accordingly, Ms. Visona’s claim for future
income loss is dismissed.

D.             
Special Damages

[48]        
The parties have agreed that Ms. Visona is entitled to $1,049.25 in
special damages. I order payment of special damages in that amount.

III.            
Costs

[49]        
The defendants have been generally successful in this action and in that
case I would typically order costs on Scale B in the cause to the defendants.
However, there may be factors of which I am not aware. Therefore, if the
parties wish to make submissions as to costs to me in writing, they are free to
do so if those submissions are received by November 22, 2013.

“Jenkins J.”