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Monday Morning Case Bites for July 6, 2020

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek & Steven Graham

Alderson v Wawanesa Life Insurance Company, 2020 ABCA 243
Application to Dismiss for Delay | Judicial Discretion

Balogun v Pandher, 2020 ABQB 386
Motor Vehicle Collision | Damages Assessment

Alderson v Wawanesa Life Insurance Company, 2020 ABCA 243

On appeal of a Judge’s decision not to dismiss for delay, the Alberta Court of Appeal declined to interfere noting that decisions on whether to dismiss a claim for inordinate delay are discretionary and entitled to deference.

Balogun v Pandher, 2020 ABQB 386

This was an assessment of damages arising out of a 2003 collision.   Although the Court concluded that the Plaintiff was honest and credible, the reliability of his memory was affected by the passage of time:

[2]               Although it was sometimes difficult to understand the relevancy of Mr. Balogun’s evidence I have no doubt that he is an honest man who has suffered greatly as a result of this car accident. I find his evidence credible but with the passage of time, the reliability of memory fades. This accident occurred many years ago and I will be relying heavily on the documented notes of Mr. Balogun’s treating physicians and rehab practitioners as well as other documentary evidence which do not have the frailties of human memory.

The Plaintiff was rear ended by a vehicle travelling 50 km/h, which propelled him into a vehicle ahead, and in turn propelled that vehicle into the vehicle ahead of it.   At the time of the collision he was 46 years old.   He attributed soft tissue injuries to his neck, shoulder and back, a concussion, TMJ disorder, sleep disorder, and left sided body pain as well as PTSD symptoms to the collision. Causation of a subsequently noted shoulder tear was in issue, and the Court accepted Dr. DiPersio’s evidence and concluded that causation on the tear was not made out. The Court awarded $80,000 in general damages on the following basis:

[40]           Here Mr. Balogun suffered a moderate whiplash injury that lasted several years in addition to other strain and headaches. He suffered and continues to suffer from a TMJ injury. Having reviewed the cases provided, I find that Mr. Balogun’s injuries fall closest to those occasioned in McLean v Parmar, 2015 ABQB 62 and Jones v Stepanenko, 2016 ABQB 295.

The Plaintiff’s income loss evidence was largely lacking. The Plaintiff’s overall position was that but-for the collision he would have made more money from his business. Given the lack of evidence tendered, the Court concluded that while he did have a nominal income loss for two weeks after the collision, he failed to produce sufficient evidence to establish that he would have earned more if not for the collision:

[60]           So while I have accepted there was a loss to Mr. Balogun, the evidence I have of what Mr. Balogun was making is from the corporate financial statements and Mr. Balogun’s evidence that he was charging his customers $200 per hour for his services. But this amount flows into his corporation, and as can be seen from the financial statements I do have, expenses from the Corporation are incurred and not all revenue is paid to Mr. Balogun.

[61]           The best evidence I have to calculate damages is the “income from officer” in the financial statements which is US$69,372. In 2000 the US-Canada exchange rate was approximately $1.5 Canadian to US. I accept that Mr. Balogun was making $69,372 x 1.5 = $104,058 Canadian per year. Applying a well recognized formula of 2,080 hours per year for a 40-hour workweek, this translates to an hourly wage of approximately $50 per hour.

[62]           Given this evidence, I am prepared to find that Mr. Balogun lost income for the period from the accident to May 28, 2003. Two weeks’ income at 40 hours per week at $50 per hour is $4,000 for lost income. With respect to the lost opportunity related to the “angel investor” I find that the evidence does not establish a loss.

The Plaintiff also sought $28,000 for a rental vehicle. The Court concluded that the amount claimed was unreasonable:

[66]           I find that Mr. Balogun is entitled to $7,647.29 for the rental cost of a replacement van. A claim of $28,000 is unreasonable. The claim of $11,212.60 as at February 25, 2004, was also not reasonable.

The Court also compensated the Plaintiff for time to attend treatments, because that took away from his ability to earn income:

[72]          With respect to Exhibit 11, I find that time Mr. Balogun spent prior to May 28, 2003, has already been compensated for through the loss of income claim. I accept the remainder of the amount claimed until June 24, 2003, which is 53 hours less 17.5 hours = 35.5 hours, ought to be compensated because the time spent in recovery was time spent away from earning income. The other hours claimed are for pursuing Mr. Balogun’s court claim or maintenance of the rental vehicle which is something he would have had to do with his own vehicle. For the remainder of Exhibit 11 I accept the 1.5 hours on August 25, 2003 for arranging a rental as time spent due to the accident, for a total of 37 hours which are compensable as time lost from pursuing income.

[73]          With respect to Exhibit 17, I accept that time taken for appointments was 107 hours until January 15, 2004, an additional 26 hours until February 2, 2004 (I deducted time for the joint appointment with Pauline and Ester), 22 hours to February 24, 2004, 34 hours to April 8, 2004, 41 hours to May 13, 2004, 29 hours to January 9, 2004, and 6.5 hours to the point of time of the shoulder surgery. After the shoulder surgery I find that most of the appointments claimed relate to the shoulder, other family members, or preparing for this action. I find that 20.5 hours post shoulder surgery were related to the accident – mostly appointments with respect to TMJ and non-shoulder health. Thus, the total number of hours is 245 which are compensable as time lost from pursuing income.

[74]           With respect to Exhibit 18, Mr. Balogun testified that he attended physiotherapy and in late 2003 he was advised by his physiotherapist to continue with his exercise at home, which he did diligently. The exhibit shows he spent 130 hours exercising which are compensable as time lost from pursuing income.

The Court awarded $5,000 in future care on the following basis:

[78]           Any claim for cost of future care must be medically justified and reasonable. There must be an evidentiary link drawn between the assessment of injury and the treatment recommended by a qualified health care professional: Sutherland v Encana Corp, 2014 ABQB 182 at paras 623 and 627.

[79]           I have found that most of Mr. Balogun’s accident-related injuries were resolved by 2007 when his shoulder tear and his degenerative spine issues were evolving. Further, I have accepted that Mr. Balogun’s TMJ injury was caused by the accident. Mr. Balogun’s evidence is that his TMJ issues continue.

[82]           At trial, the Defendant admitted Mr. Balogun needed a splint. The original splint was paid for by insurance at a cost of $1,450. Dr. Buck listed the cost of ongoing splint maintenance to be between $5,000 and $10,000. He provides the costs (which I find as a fact) plus gives his opinion on the frequency of maintenance. No contrary evidence was presented. Given the evidence, I accept that a splint is the prescribed method of treatment and there is an ongoing maintenance requirement. Given the cost of the original splint I am satisfied that $5,000 is a reasonable cost of the splint maintenance into the future.

In total, the Plaintiff’s claim was assessed as follows without any reductions to pre-judgment interest:

  • General damages – $80,000
  • Property damage – $5,550
  • Loss of income – 4,000 plus $20,600 for income lost due to time spent on appointments and rehab
  • Cost of vehicle rental – $7,647.29
  • Cost of future care – $5,915
  • Out of pocket expenses – $5,845.79