Kulla v. Chiu

2024 BCSC 687 Kulla v. Chiu

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Kulla v. Chiu, 2024 BCSC 687 Date: 20240425 Docket: M170667 Registry: New Westminster Between: Eduard Kulla Plaintiff And Ming Chiu and Ming's Recycling Company Ltd., Defendants Before: The Honourable Justice Funt Reasons for Judgment The Plaintiff, appearing in person: E. Kulla Counsel for the Defendants, Ming Chiu and Ming's Recycling Company Ltd.: J.P. Adrian S. Thorpe Place and Dates of Trial: New Westminster, B.C. September 25-29 October 3-6, 10-11, and 13, 2023 Written Submissions of the Plaintiff: October 23, 2023 Written Submissions of the Defendants: October 30, 2023 Place and Date of Judgment: New Westminster, B.C. April 25, 2024 Table of Contents 1. introduction.. 3 2. balance of probabilities. 5 3. credibility. 5 4. the plaintiff's background.. 7 a) Generally. 7 b) Immigration Aspects. 8 5. motor vehicle accidents. 10 a) The December 27, 2011 MVA. 10 b) The February 27, 2012 MVA. 10 c) The June 28, 2014 MVA (the Subject MVA) 11 d) The February 3, 2017 MVA. 12 e) The January 9, 2020 MVA. 12 6. The plaintiff's credibility. 13 a) Explanation for Not Reporting Income. 13 b) Financial Difficulties. 15 c) Psychological State. 16 d) Understated Post-June 28, 2014 MVA Income. 19 e) Physical Mobility. 21 f) Conclusion on the Plaintiff's Credibility. 22 7. expert medical evidence. 22 a) Generally. 22 b) Dr. John B. Armstrong.

26 c) Dr. Parham Daneshvar 28 d) Dr. William Neufeld. 32 e) Dr. Andrew Travlos. 34 8. damages. 35 a) Non-pecuniary Damages. 35 b) Mitigation. 38 c) Other Heads of Damages. 39 9. conclusion.. 39 10. costs. 39 1. introduction [1] The plaintiff's claim arises from a four-vehicle collision on June 28, 2014 (the "June 28, 2014 MVA"). [2] While stopped at a controlled intersection, the vehicle the plaintiff was driving was rear-ended with considerable force by the vehicle driven by the defendant, Mr. Chiu. The plaintiff's vehicle then collided with a vehicle stopped immediately ahead of his vehicle, which, in turn, collided with the vehicle ahead of it. With the forces engaged, the plaintiff's driver's side airbag deployed. [3] The defendants have admitted liability. [4] The plaintiff's notice of civil claim also included two further defendants. On July 23, 2015, the plaintiff withdrew his claim as against these two defendants. I have amended the style of cause of this action accordingly. [5] The plaintiff has been involved in four other motor vehicle accidents. [6] As a result of the June 28, 2014 MVA, the plaintiff says that he suffered various physical and mental injuries, including: a) headaches (and migraines); b) permanent left neck injury; c) permanent left shoulder injury; d) change of left eye vision; e) permanent lower back injury; f) left arm muscle atrophy; g) difficulty

urinating; h) post-traumatic stress disorder; i) major depressive disorder; j) vertigo; and k) concussion. [7] The plaintiff seeks the following damages: Non-pecuniary: $260,000 to $300,000 Past income loss: $1,126,278 Future loss of income-earning capacity: $1,690,000 Real estate investment loss: $930,417 to $955,417 Repayment of a Canada Emergency Business Loan: $60,000 Loss of housekeeping capacity: $50,000 Cost of future care: $61,400 Special damages: $6,665 Loss of contract (before taxes): $32,550 Total: $4,217,310 to $4,282,310 [8] In his cost of future care claim, the plaintiff does not include a specific amount for Botox treatments. [9] I have separated the plaintiff's claim for loss of a contract in the amount of $32,550 (before taxes) from his claim for special damages. [10] The plaintiff also seeks further amounts for live-in care of $29,250 annually (based on an average rate). He also seeks compensation for further assistance by his spouse, Margerita Drita, of $6,240 annually before trial and $7,280 annually after trial until the age of 72. He also seeks $25,000 for Ms. Drita to compensate her for the management of the damages award. [11] The defendants say that the plaintiff should be awarded $40,000 to $60,000 in non-pecuniary damages, without any further award. [12] Where there is little or no objective evidence of continuing injury, a plaintiff's credibility is

of particular importance in satisfying the plaintiff's burden of proof. [13] For the reasons that follow, the plaintiff is awarded $60,000 in non-pecuniary damages, without any further award. 2. balance of probabilities [14] In F.H. v. McDougall, 2008 SCC 53, Justice Rothstein, writing for the Supreme Court of Canada, stated: [49] In the result, I would reaffirm that in civil cases there is only one standard of proof and that is proof on a balance of probabilities. In all civil cases, the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred. [15] In F.H., Justice Rothstein also stated that "evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test": para. 46. 3. credibility [16] In Bradshaw v. Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, leave to appeal to SCC ref'd, [2012] S.C.C.A. No. 392, Justice Dillon described the assessment of credibility: [186] Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), 59 S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination of various factors such as the ability and opportunity to observe events, the

firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness' evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct and cross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie, and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont. H.C.); [[Faryna] v. Chorny, [1952] 2 D.L.R. [354] (B.C.C.A.)] [[Faryna]]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as a whole and shown to be in existence at the time ([Faryna] at para. 356). [17] In the context of claims concerning personal injuries, in Karim v. Li, 2015 BCSC 498, Justice Abrioux (as he then was) stated: [89] In addition, the following principles should be taken into account by the trier of fact: · no one can expect compensation in the absence of convincing evidence that complaints of pain are true reflections of a continuing injury: Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.); · every injured person has a different understanding of his or her own complaints and injuries and it falls to judges to translate injuries to damages: Price at

397; · where there is little or no objective evidence of continuing injury and where complaints of pain persist for long periods extending beyond the expected resolution, the court should be exceedingly careful to assess assertions in light of the surrounding circumstances including the medical evidence: Price at 399; Tai v. De Busscher, 2007 BCCA 371 at para. 41; · it is the doctor's function to take the patient's complaints at face value and offer an opinion based on them and it is for the court to assess credibility. If there is a medical or other reason for the doctor to suspect the plaintiff's complaints are not genuine, are inconsistent with the clinical picture or are inconsistent with the known course of such an injury, the court must be told of that. But it is not the doctor's job to conduct an investigation beyond the confines of the examining room: Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff'd 2012 BCCA 114; and · in the absence of objective signs of injury, the court's reliance on the medical profession must proceed from the facts it finds, and must seek congruence between those facts and the advice offered by the medical witnesses as to the possible medical consequences and the potential duration of the injuries: Fan (Guardian ad litem of) v. Chana, 2009 BCSC 1127 at para. 73, aff'd 2011 BCCA 516. See also Buttar v. Brennan, 2012 BCSC 531 at paras.

23-25. [18] In Le v. Milburn, [1987] B.C.J. No. 2690 (S.C.), Justice Southin (as she then was) described the difficulty the trier of fact faces where there is significant exaggeration or deception (at para. 2): When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. In this case there has been some deliberate falsehood and some exaggeration. 4. the plaintiff's background a) Generally [19] The plaintiff is currently 58 years old. [20] In early 2004, the plaintiff moved to Canada. He was born and raised in Albania. Prior to coming to Canada, he attended a military academy in Tirana, Albania's capital, for six years. After that, he obtained a Bachelor's degree in biochemistry from an Albanian university. He then worked as a teacher for a period of time. [21] Ms. Drita is also from Albania. Their relationship developed into marriage in Canada. They married in November 2012 after living together since 2005. They have a 15-year-old daughter. [22] After moving to Canada, the plaintiff first considered improving his English language skills in the hopes of obtaining a further degree from the

University of British Columbia so that he could teach biochemistry. However, he concluded that there was not a significant demand for biochemistry teachers. [23] The plaintiff chose to become a home painter instead. Over time, he expanded his trade to include painting commercial buildings. [24] In 2011, he incorporated his business as Alb Eagle Painting and Renovation Ltd. ("Alb Eagle"). [25] In 2013, the plaintiff says that he started to undertake siding and flooring work with the goal of developing skills to become a general contractor. [26] In 2014, prior to the June 28, 2014 MVA, the plaintiff says that he expected a series of significant contracts that would have continued until 2020. He says that the first contract (the "First Contract") was to start in mid-July 2014. The plaintiff says that the project manager had suggested to him that he could ensure that the plaintiff's bid for the First Contract would be approved if he agreed to pay him a 10% kickback. The plaintiff agreed to this kickback scheme. [27] The plaintiff testified that he told the project manager that he could not "do the job" because of the June 28, 2014 MVA. [28] In January 2015, the plaintiff incorporated Sky Eagle Painting & Renovation Ltd. ("Sky Eagle") to undertake his business activities. In incorporating Sky Eagle, the plaintiff explained that in reference to the business undertaken by Alb Eagle,

it would be easier for him "if something [was] wrong in my taxes" by separating the past from the future. [29] In October 2015, the plaintiff started a further job (the "Second Contract"). Through Sky Eagle, he obtained the Second Contract through the same project manager for the First Contract. He also engaged in the same 10% kickback scheme. [30] This Second Contract resulted in litigation. On January 12, 2016, the plaintiff and Sky Eagle sued the owner for $25,000. [31] In April 2018, the plaintiff incorporated Clas 5 Painters Ltd. ("Clas 5") to undertake his business activities. The plaintiff testified that Sky Eagle was dissolved because "I didn't pay in time taxes and stuff". [32] In August 2020, the plaintiff says that he stopped working due to his injuries from the June 28, 2014 MVA other than for some "small things" for "some friends". b) Immigration Aspects [33] On January 12, 2010, the plaintiff was indicted on three counts related to the production of marihuana. On October 27, 2010, he was convicted on Count 1, which reads: Eduard KULLA and Margerita DRITA, from the 21st day of July, 2009 to the 22nd day of July, 2009, inclusive, at or near the City of Pitt Meadows, in the Province of British Columbia, did unlawfully produce a controlled substance, to wit: Cannabis (marihuana), contrary to Section 7(1) of the Controlled Drugs and Substances Act. [34] The Crown

dropped the charges as against Ms. Drita. [35] On February 21, 2011, the plaintiff received a one-year conditional sentence. Three of the conditions read: Condition 7: You are to complete 35 hours of Community Work Service to the satisfaction of your Supervisor. Condition 11: For the first 3 months, you will be under house arrest except for attending employment, seeking employment, medical emergencies, or any appointments with your Supervisor, performing Community Work Service Hours, attending religious services and you may also be away from your residence to attend any personal business or exercise for 2 hours each day or with the prior written permission of your Supervisor. Condition 12: For the following 3 months you are to abide by a curfew between the hours of 9 pm - 5 am daily, except for the purpose of employment, seeking employment, or medical emergencies or with the prior written permission of your Supervisor. [36] The plaintiff fulfilled the conditions of the conditional sentence order. [37] In November 2011, our immigration authorities challenged the plaintiff's admissibility to Canada as a result of the conviction. In his written submissions, the plaintiff says that the immigration authorities had misinterpreted s. 36(1) of the Immigration and Refugee Protection Act, S.C. 2011, c. 27 [IRPA] to challenge his admissibility to Canada based on "serious criminality". He

says that although the "anxiety and dealing with the Immigration" had caused him "some trouble", it did not prevent him from undertaking his daily life or business, or from enjoying his leisure activities. He further says that he was "fully confident" that there had been a "misinterpretation". [38] In Tran v. Canada (Public Safety and Emergency Preparedness), 2017 SCC 50, the Supreme Court of Canada considered the interpretation of s. 36(1) of the IRPA on facts remarkedly similar to those at bar. The appellant, Mr. Tran, was a permanent resident who had been convicted of the production of a controlled substance (marihuana) under the Controlled Drugs and Substances Act, S.C. 1996, c.

19. He received a one-year conditional sentence. The immigration authorities were of the view that Mr. Tran was inadmissible to Canada under s. 36(1)(a) of the IRPA based on "serious criminality". [39] After several proceedings, the matter was heard by the Federal Court of Appeal: Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237. Mr. Tran was unsuccessful before the Federal Court of Appeal. He then appealed to the Supreme Court of Canada. [40] On October 19, 2017, after the matter had been under reserve for over nine months, the Supreme Court of Canada held that Mr. Tran's conviction did not fall within s. 36(1) of the IRPA. Accordingly, Mr. Tran's conviction should not affect his admissibility into Canada. [41] A few months later, in February 2018, the immigration authorities evidently followed the Supreme Court of Canada's ruling in Tran with respect to the plaintiff's immigration status. At that time, the plaintiff says his permanent resident status was reinstated. 5. motor vehicle accidents a) The December 27, 2011 MVA [42] On December 27, 2011, the plaintiff was driving his pick-up truck downhill on a slippery road when he lost control and his truck flipped over. The truck was written off because the top of the cab "was bended". [43] The plaintiff testified that he was wearing a seat belt and was not driving "fast". [44] The plaintiff did not lose

consciousness or go to a hospital. After this accident, he reported a painful neck, left shoulder, lower back, and some pain in his left thigh. His range of motion was not affected. [45] The next MVA occurred two months later. b) The February 27, 2012 MVA [46] On February 27, 2012, the vehicle the plaintiff was driving was stopped at a red light when it was rear-ended. There was $2,100 in damage to his vehicle. [47] The plaintiff did not lose consciousness or go to a hospital. As his family doctor, Dr. Ho, noted on March 2, 2012, the plaintiff reported "dizziness and headache and neck pain, painful, tender, stiff". He also had left shoulder and low back pain. He was diagnosed with a back sprain. In an October 18, 2012 visit to Dr. Ho, he described "feeling grinding inside his left shoulder". [48] There was no evidence that the plaintiff was unable to work shortly after this accident. The symptoms continued with the plaintiff admitting left shoulder pain and back pain "through February to May of 2013". [49] The plaintiff says that he settled the February 27, 2012 MVA for $5,000 (without lawyers involved). [50] In his written submissions, the plaintiff says that before the June 28, 2014 MVA, he was "physically and mentally perfectly fit". Specifically, he says that the injuries from the December 27, 2011 MVA and the February 27, 2012 MVA were minor and that he "was completely

healed" before the subject June 28, 2014 MVA. [51] In his written submissions, he also says that since 2010, he had been experiencing anxiety as a result of a family dispute in Albania. He had been prescribed three drugs to address this anxiety. He says that by early 2014, the family issue in Albania had resolved and he was "just about to ask the doctor how to start reducing the medications". c) The June 28, 2014 MVA (the Subject MVA) [52] As described above, the June 28, 2014 MVA involved a rear-end collision of considerable force. [53] The plaintiff testified that he "blacked-out" briefly until his passenger shook his right shoulder. A passerby helped the plaintiff to the curbside. The police and an ambulance crew attended at the scene. [54] The plaintiff was transported by ambulance to Burnaby General Hospital. Imaging was undertaken. The plaintiff says that the hospital doctor told him that he had not suffered from any broken bones or apparent brain injury and, specifically, that there was no "bleeding on the brain". The hospital doctor recommended that the plaintiff have someone take him home and then follow-up with his family doctor, which he did. d) The February 3, 2017 MVA [55] On February 3, 2017, the plaintiff was a passenger in a car driven by Ms. Drita. [56] The plaintiff testified that the roads were icy, and that their car slid into a light post. As a result of

the accident, the plaintiff says that his June 28, 2014 MVA injuries were aggravated for "some months" before being in the "same stage as before" the February 3, 2017 MVA. e) The January 9, 2020 MVA [57] If the plaintiff's testimony were to be accepted as true, the January 9, 2020 MVA was not a true accident. [58] The plaintiff says that he had previously attended an independent psychiatric examination at the request of the defendants involved in the June 28, 2014 MVA and that he had experienced difficulties with obtaining a copy of a report of that independent psychiatric examination from the defendants. With this frustration, coupled with the recent death of a friend after a short illness, he drank heavily and attempted "to kill himself". Using his brother's pick-up truck as a "weapon", and intending to drive into a power pole, he hit something causing his vehicle to lose its right front wheel, and then collided with a car parked on the side of the road. [59] The plaintiff describes the impact as a "huge one". The photographs of the pick-up truck serve to confirm the plaintiff's description. The pick-up truck was a write-off. [60] With respect to the January 9, 2020 MVA, the plaintiff told his treating psychologist, Dr. Rachel Lunt, as she records in her clinical notes: In addition, Eduard stated he was involved in another MVA in January 2020 where he blacked out while driving. He noted a number of stressors leading to the incident including his dog dying, his daughter being seriously ill, and the death of a friend. He stated he believes the blackout was stress induced. [61] In his written submissions, the plaintiff says that he "quickly recovered" to his pre-collision condition.

6. The plaintiff's credibility [62] I found the plaintiff generally not credible for a variety of reasons, which I set forth below. a) Explanation for Not Reporting Income [63] In his examination-in-chief, the plaintiff acknowledged that he had not reported all of his income in his tax returns from when he started to work as a painter in 2004 until 2014. He explained that the "main source of receiving money was always cash jobs" and that the "concept of taxes" was not known in Albania. [64] In this regard, the plaintiff testified: THE COURT: Mm-hmm. A So we don't know the concept of taxes. THE COURT: Mm-hmm. A There is no tax. The name "tax" is -- I can't recall the name "tax". THE COURT: Mm-hmm. A Because it's not applied anywhere. Everything looks like you deserve it because the government is like giving to you like generously. THE COURT: Mm-hmm. A So let's say my father was working in forestry engineering [phonetic]. THE COURT: Mm-hmm. A It wasn't owned by the government. THE COURT: Mm-hmm. A So when he got his payment, there is no tax. Just that is your payment. From 1990, the Communist -- I mean, the regime fall down, luckily -- THE COURT: Mm-hmm. A -- but still a transition, as everywhere in Eastern Europe, it happened on those times. THE COURT: Mm-hmm. A Unfortunately, because we been most Stalinist country -- THE COURT: Mm-hmm. A -- has taken more time to get from a

dictatorship into a democratic country. THE COURT: Mm-hmm. A You can't build democratic institutions within a night. THE COURT: Mm-hmm. A As they say, the Rome is not built within a night. THE COURT: Mm-hmm. A So actually until 2013 -- THE COURT: Mm-hmm. A -- Albanians, they don't have concept of taxes, even as a concept. THE COURT: Mm-hmm. A The new government who come in power in 2013, and still in power, start applying taxes with wealthy people, because they go right away to a worker, he doesn't know what they're talking about. THE COURT: Mm-hmm. A He doesn't know. So that strikes me, and even today, I don't really know how the taxes function. Now I have better idea, of course, but when I start knowing that, hey, this different now, the taxes is very important for a democratic country, I start to know when I get contracts, written contracts on new developments, new construction, there I can see that everything comes on cheque and no payment -- as I used to go to a homeowner, for example, says 2005 or 2008 or 2009 or 2011, for example, or 2012 -- THE COURT: Hmm. A -- you know what rid of the taxes and whatever you can cheapen -- THE COURT: Mm-hmm. A -- on the price, and I have no clue how taxes works. To me was kind of, hey, if you want to pay the taxes, then pay the taxes. If you're going to put the taxes [indiscernible]. That was kind of mainly. No one explained me to the

taxes. And actually until I got new construction, I have no clue what the taxes mean exactly. That was -- that is my main issue even today. I don't really understand how it works, but today I know that it's very important. [65] The plaintiff is an intelligent individual. [66] I reject the plaintiff's explanation for not reporting his cash income for tax purposes. An intelligent immigrant undertaking a business would realize that cash income would need to be reported for income tax purposes, certainly by no later than the filing of one's first Canadian income tax return. The first income tax return that I have for the plaintiff in the exhibited documents is his 2009 return. [67] I cannot accept as true that, for about ten years, the plaintiff had "no clue" that tax would be exigible on cash income. [68] To justify his significant claim for past and future loss of income-earning capacity, the plaintiff is financially motivated to proffer an explanation supporting his claim that he had higher income before the June 28, 2014 MVA than that reported to base and maximize his claim. [69] In sum, the plaintiff's explanation for not reporting income is a deliberate falsehood. b) Financial Difficulties [70] In his examination-in-chief, the plaintiff testified that he started to experience financial difficulties "some months after" the June 28, 2014 MVA and that he had not had such

difficulties in the past. [71] In October 2013, the plaintiff and Ms. Drita borrowed $25,000 from a private lender on a one-year term at a 12% interest rate, securing the loan by a mortgage on their home. I am satisfied that if the plaintiff did not have at least a reasonable degree of financial difficulty, he would have obtained a similar loan at a lower interest rate. [72] On cross-examination, the plaintiff acknowledged that on January 18, 2014, the Bank of Montreal ("BMO") had sued him to recover an unpaid credit card bill of approximately $5,200. [73] In his January 31, 2014 reply to BMO's claim, he stated: I am in bankruptcy process. It may take a couple of weeks to complete the process. [74] In his cross-examination, the plaintiff further explained that "it was just a mislead". It does not redound to the plaintiff's credibility that he was willing to mislead in an attempt to defeat BMO's claim. [75] After an overnight break in the plaintiff's cross-examination, he acknowledged experiencing financial difficulties in 2013 and early 2014. [76] In sum, the plaintiff was financially motivated to deny or downplay his financial difficulties prior to the June 28, 2014 MVA to support his significant claim for past and future loss of income-earning capacity. Accordingly, I find that the plaintiff did not "resist the influence of interest to modify his recollection" in this

regard. c) Psychological State [77] As noted, the plaintiff says that by early 2014, the family issue in Albania had resolved and he was "just about to ask the doctor how to start reducing the medications". He attributes his current psychological state of major depressive disorder to the June 28, 2014 MVA. [78] In August 2011, Dr. Ho diagnosed the plaintiff with depression and prescribed Effexor (Venlafaxine). [79] Dr. Man Wai Kwan, a psychiatrist, treated the plaintiff before and after the June 28, 2014 MVA. On August 7, 2012, Dr. Kwan prescribed the plaintiff the following medications: a) Trazadone (50 mg); b) Diazepam (2 mg); and c) Venlafaxine (37.5 mg). [80] Dr. Kwan's June 12, 2014 clinical notes (his last notes before the June 28, 2014 MVA) read (in part): Full function - remission Rx renewed [81] Dr. Kwan's post-June 28, 2014 MVA clinical notes read (in part): May 12, 2016 Stressed, Immigration trouble. Lost permanent residence. August 31, 2016 Did not get deported. Lawyer Robin Bayer re-opened case with immigration. No decision Anxious re: status. January 12, 2017 Trouble with immigration alleges illegal action by immigration spending big $ on lawyer Wrote to Prime Minister allege government of Canada forced his first wife to divorce him allege immigration threatened wife and daughter 8 y.o. [82] On January 28, 2015, the plaintiff sued his cousin, Mr. Agron Vuksani, seeking $25,000 in damages plus filing and service fees. The plaintiff's notice of claim reads (in part): Falls statement at CIC letter (Vancouver) Disclosing fake documents in order to jeopardise my immigration status in Canada. Documents disclosed at CBSA office Vancouver.

1. Emocional & stress suffering 2. Leagal cost (I was in need of to hire a lawyer in order to deal with his fake documents & allegations. [verbatim] [83] In the notice of claim, the plaintiff says that the foregoing occurred on October 22, 2012. He says that he did not sue Mr. Vuksani earlier because "the Immigration didn't disclose right away to me". [84] The plaintiff's claim against Mr. Vuksani shows that the plaintiff was concerned about his immigration status and that putting his status in jeopardy caused him "Emo[t]ional & stress suffering" for which he sought damages. [85] The plaintiff's stress associated with his immigration status is a probable cause of his depression not being in remission at times after the June 28, 2014 MVA. In his January 28, 2015 claim against Mr. Vuksani, the plaintiff sought monetary damages for the "emotional and stress suffering" Mr. Vuksani caused him by jeopardizing his immigration status. [86] In sum, both Dr. Kwan's clinical notes and the plaintiff's claim against Mr. Vuksani show that the plaintiff downplayed his stress associated with the Canadian immigration authorities' challenge to his immigration status and his remaining in Canada. [87] I also find that the plaintiff's current assertion that he was "just about to ask the doctor how to start reducing the medications" shortly before the June 28, 2014 MVA to be a falsehood. [88] In

cross-examination, the plaintiff was referred to his May 16, 2018 examination for discovery transcript where he testified that he was in "very good health" before the June 28, 2014 MVA, subject to two issues: hypertension and depression. [89] With respect to the second issue, depression, he said: And the second thing I have was fighting with depression, which I was taking those three medications in order to help. [90] As noted above, the three medications related to depression were Diazepam, Venlafaxine, and Trazadone. [91] In his cross-examination, however, the plaintiff attempted to resile from his testimony on the examination for discovery that he had both anxiety and depression prior to the June 28, 2014 MVA. In this regard, during his cross-examination at trial, he testified: Q And then at line 150 -- or question 153, Ms. Stone asks you [as read in]: And to clarify, and was that depression and anxiety? And you answered: Yeah. Correct? A Well, the answer -- I'm not contesting my answer. Q Okay, so -- and it's true, you were suffering from depression and anxiety, correct? A Well -- Q Before the accident? A The anxiety, yes. But the discovery was pretty on the way of conversation, so there is no -- I mean, there is no much time to really think and make hundred percent precise, I just continue the conversation, but I say that I did suffer from my -- I did have some -- to some

degree the anxiety. [92] I reject the plaintiff's explanation that any reference to depression in his May 16, 2018 examination for discovery was "pretty on the way of conversation". Rather, I find that the plaintiff wished to downplay his depression before the June 28, 2014 MVA at trial in order to enhance his claim. In sum, at trial, he did not have the "ability to resist the influence of interest to modify his recollection". d) Understated Post-June 28, 2014 MVA Income [93] Mr. Ronald J. Tidball, CPA, CBV, was qualified to give opinion evidence with respect to accounting, business loss, valuation, and income loss measurement. [94] In his August 18, 2023 report, Mr. Tidball describes that the plaintiff withdrew funds from Clas 5 without significant subsequent repayments. In this regard, he stated in his report: The running balance of amounts withdrawn from a corporation by a shareholder, but not repaid or reported as personal income, are known to accountants as debit balances. The debit balances are in the shareholder loan account of Clas 5 per the T2 corporate income tax returns were as per Schedule 1. The Plaintiff did not report the withdrawals as income on his 2018 to 2021 T1 personal income tax returns. The total amount of the unreported debit balance as at December 31, 2021 was $299,585. [95] The relevant portion of Schedule 1 in Mr. Tidball's report reads: Shareholder

loan debit balances in Clas 5 Beginning Ending Withdrawal 2018 - 63,413 63,413 Per T2 Unreported personal income of $63,413. 2019 63,413 110,094 46,681 Per T2 Unreported personal income of $46,681. 2020 110,094 299,585 189,491 Per T2 Unreported personal income of $189,491. 2021 299,585 242,879 (56,706) Per T2 Source of repayment of cash unknown. [96] The key relevant statutory provisions are ss. 15(2) and 15(2.6) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) [ITA]. [97] From the plaintiff's cross-examination of Mr. Tidball, I understand the plaintiff to be suggesting that he withdrew those amounts from Clas 5 to pay for expenses. [98] If that were the case, it would have been in the plaintiff's financial interest to have had Clas 5 claim such payments as expenses, thereby serving to reduce its taxable income. The overall available income of Clas 5 and the plaintiff would have also been reduced. [99] Considering the payments occurred over a three-year period with a partial repayment in the fourth year, I cannot accept that the debit balances as calculated by Mr. Tidball are in error. Rather than causing Clas 5 to declare and pay a dividend to himself or to pay a salary to himself, the plaintiff withdrew the funds as advances (or loans) made by Clas 5 to himself. As a result, the plaintiff's income was disguised (unless reported under s. 15(2) of the ITA). [100] In sum,

the plaintiff has not furnished "sufficiently clear, convincing and cogent" evidence with respect to his post-June 28, 2014 MVA income. e) Physical Mobility [101] At trial, the defendants played surveillance videos taken of the plaintiff in 2022 and 2023. [102] Generally, the videos showed the plaintiff walking, standing, bending, reaching, sitting, and getting in and out of his large pick-up truck, all without any noticeable difference from what one would expect of a typical man of his age in reasonably good physical shape. [103] One of the surveillance videos (Exhibit #56) showed the plaintiff, on the morning of October 19, 2022 at around 9:00 a.m., placing an aluminum extension ladder (20 ft. when extended) and some smaller items, including a small plastic vacuum cleaner, into the cargo bed of his pick-up truck, without difficulty. [104] Later that morning, the plaintiff is shown at a mid-fifties single storey, stucco-sided, single family residence. There, he extends the ladder and places it against the eaves of the home. He climbs the ladder so that he is at waist height with the eaves. [105] At 10:11:37 a.m., he is shown standing on the ladder reaching to his right with the vacuum hose in his right hand to clean the eaves. His reach is such that his left foot is well in the air with his left hand holding onto the top of the ladder's right rail. [106] On June 28, 2023, the

plaintiff is shown leaving an electronics store carrying two large shopping bags in his arms, which he then places in the front passenger seat of his pick-up truck, all without any apparent difficulty. [107] In examination-in-chief, the plaintiff testified that his vertigo was "quite often" after the June 28, 2014 MVA and then "after that it's more rare but it's not going away". He testified: THE WITNESS: I would like to talk something about the vertigo. THE COURT: Yes. THE WITNESS: Unfortunately since the accident, 2014, I am suffering from vertigo. So in certain moments or certain points it strikes me. It's something which I never experienced before in my life. And initially I was kind of -- THE COURT: Pardon me? THE WITNESS: Initially I was kind of shock. [108] The plaintiff's movements in the surveillance video are inconsistent with his pleaded permanent injuries and vertigo. f) Conclusion on the Plaintiff's Credibility [109] In sum, I find that the plaintiff has practiced to deceive "by deliberate falsehood or gross exaggeration" to further his claim. 7. expert medical evidence a) Generally [110] The evidence and opinions of several of the plaintiff's medical experts were not necessarily reliable because these experts were not provided all of Dr. Ho's clinical notes. In particular, Dr. Ho's earlier clinical notes of the plaintiff from December 15, 2008 to May 24, 2012 were

not provided on a timely basis. Further, the evidence and opinions of all of the medical experts were not necessarily reliable as a result of the plaintiff's general lack of credibility. [111] When the plaintiff was cross-examined with respect to Dr. Ho's earlier clinical notes, he testified (in part): Q Yeah. I'm going to suggest to you those are the doctor's initials. A Oh, yes, okay. Q And have nothing to do really with the information in there. So let's go back to "left arm - painful times 9 months", do you agree -- do you agree now that that's what that reference -- that refers to? A Yes, I do. Q Okay. So you came into Dr. Ho's office in October 2nd, 2009, and you told him, look, my left arm is painful, it's been like that for nine months, do you agree with that? A Yeah, I agree. Q Okay. And below that it says "left leg", and then it says " - pain", and so I'm going to suggest to you that what you did is you came into Dr. Ho's office, and you said to him, look, my left leg has been painful as well, or words to that effect, do you agree with that? A Yes, I do. Q Okay. And then it says "low back - painful", do you agree that you also complained that your low back was painful in -- A Yes, I do. Q Okay. And then there's a line below it that -- there's an arrow pointing to an "L" with a circle around it, and "SI", do you see that? A I lost it, sorry. Q Okay, we're right below

"painful", remember we were at low back? A One more time, please. Q Sure. Right here. Below this, so we've got a -- we've got the arrow pointing to the right, and then we have an "L" with a circle around it, and then we have a capital S and a capital I. A Yeah. Q All right? A Yes. Q And then we have another arrow with another "L" with a circle around it, and "leg", do you agree with that? A Yes. Q Okay. So I'm going to suggest to you that on further questioning, what you told Dr. Ho was that your left SI joint or sacroiliac joint was painful as well, and it was going into your left leg, it was going down your left leg, do you agree with that? A Yes, I do. Q Okay. And then below that it says "full ROM"? A Full? Q "Full ROM". The line below that says full -- A Oh, yeah. Q Yeah, and I'm going to suggest to you "ROM" is an acronym for range of motion, which means even though you had pain there, you were able to move your leg in a complete range of motion, do you agree with that? A Perhaps. Q Okay. And then below that it says "neck", right? A Yeah. Q And then there's a line saying "painful", the neck is painful too? A Yes. Q And below that it says "tender", and then it says "full ROM", which again is full range of motion? A Okay. Q Do you agree with that? A Yes. And further: Q So I'm going to suggest to you that when you went in there, into Dr. Ho's on October 7th, 2009, you also

told him your neck was painful, and when he touched it, it was tender and it hurt, is that correct? A Yes, it is. Q Okay. And he also recommended you have an X‑ray of your lumbar spine, do you agree with that? A Oh, yeah. Q Okay. And that you have a left shoulder X‑ray too? A Okay. Q Do you agree that he -- that he did that? A Yes. Q Okay. And finally, I'm -- it says down there, "tendonitis", it's the second line from the bottom. A Yeah, I see that. Q Okay. Do you know what tendonitis is? A No. Q It's an inflammation of the tendon. A Okay. Q So it's next to -- it's below "shoulder", and I'm going to suggest to you that what he told you was you're suffering from tendonitis of your shoulder, of your left shoulder. And he recommended that you take some Celebrex, which is a medication known as a nonsteroidal anti‑inflammatory, it's to -- A Okay. Q -- to reduce swelling and pain ‑‑ A Okay. Q -- in soft tissues. Do you agree with that ‑‑ A Yes. Q -- that that's what he told you? A Yes, I do. Q Okay. Now, I'm going to take you to the next page now, and you can see the date stamp there in the far left column, it's December 30th, 2009, okay? A Yes. Q And it says -- and it says in the top, the very top line "E. Kulla"? A Yes. Q Okay. So below that, it says "pain in low back", you agree with that? A Yes. Q Okay. So you went in on December 30th, 2009 and complained to Dr. Ho of pain in

your lower back, correct? A Okay. Q You agree with that? A Yes. Q Okay. And then there is "emergency", do you see that? Do you agree with that? A What is call -- well, just show me, please. Q It's right underneath the line. Right there. A Oh, okay. Q And I'm going to suggest to you that that says "emergency". A I can't read it, but I can -- I have no way to contest it. I mean, I don't have any reason to contest it. Q And I'm going to suggest to you that you told Dr. Ho that you had gone to the emergency department for treatment of the pain in your low back, do you agree with that? A I can't recall it. Q Okay. A But if it's that, I will agree, but I can't recall it. Q Okay. So you don't recall that? A No. Q You can't agree, okay. And -- A I'm not contesting the reading in here, I just can't recall it myself. [112] In sum, as early as 2009, when the plaintiff met with Dr. Ho, he addressed his physical complaints consistent with the physical injuries for which he now seeks compensation. [113] Without Dr. Ho's December 15, 2008 to May 24, 2012 clinical notes, a medical expert would not have all the relevant clinical notes to consider fully possible causes of the plaintiff's pleaded physical injuries, particularly with the benefit of a longitudinal view. [114] The soundness of an expert's opinion depends on the reliability and the completeness of all relevant information being

provided to the expert so that the expert's expertise and experience may be best used to consider the matter at hand with an inquisitive mind. b) Dr. John B. Armstrong [115] Dr. John Armstrong, M.D., Ph.D., is a medical doctor specializing in neurology and neuroscience who was qualified to provide opinion evidence with respect to complex chronic pain. He was called by the plaintiff. [116] In his November 13, 2018 report (November 5, 2018 assessment date), Dr. Armstrong opined on the causation of the June 28, 2014 MVA and the February 3, 2017 MVA: (94) In my opinion, the forces applied in [the June 28, 2014 MVA] to the soft tissues of his spinal axis/para-axis and SPR [spinopelvic ring] were probably sufficient to have overloaded and injured these structures (a) causing an acute axial and para-axial myofascial disorder and (b) initiating sacroiliac joint dysfunction that led to SPR instability and misalignment. The myofascial disorder became chronic owing primarily to the perpetuating effects of the accompanying, unresolved soft tissue injuries to his sacroiliac joints and SPR dysfunction which led to the development of SPRD [spinopelvic ring distortion] and the malalignment syndrome, the latter with its additional complications as described. Other factors related to his injuries and contributing in a material way to his chronic pain disorder include increased emotional

distress, cognitive and social distress, his involuntary cognitive distortions and depleted coping skills, his pain avoidance behaviors, and his incomplete understanding of and insight into his condition which had not been explained to him or adequately treated. When I saw Mr. Kulla, it was my medical opinion that, absent [the June 28, 2014 MVA], he would not have developed a complex chronic pain disorder with complications as described. It is my opinion that [the February 3, 2017 MVA] had had a lasting, deleterious effect on his overall condition. [My emphasis.] [117] Unfortunately, until the morning Dr. Armstrong testified, he had not been provided with Dr. Ho's December 15, 2008 to May 24, 2012 clinical notes. There was no explanation as to why Dr. Armstrong was not provided with a copy of Dr. Ho's clinical notes. [118] After taking a quick look at Dr. Ho's December 15, 2008 to May 24, 2012 clinical notes, Dr. Armstrong readily acknowledged that they "would have been very helpful, absolutely". [119] Of particular note, Dr. Ho's October 7, 2009 clinical notes read (in part): Low back - painful -->

L SI --> Ⓛ leg full ROM [120] With respect to these clinical notes, Dr. Armstrong testified that SI was a reference to the "sacroiliac joint". [121] I have not relied on Dr. Armstrong's opinion that the June 28, 2014 MVA initiated "sacroiliac joint dysfunction that led to SPR [spinopelvic ring] instability and misalignment", given that Dr. Ho had identified sacroiliac joint concerns in 2009 (my emphasis). As Dr. Armstrong was not provided with Dr. Ho's clinical notes on a timely basis, I find that he was unable to formulate a reliable, considered opinion for the Court. Combined with the plaintiff's general unreliability, this fact does not provide a sufficient basis to support a finding that the June 28, 2014 MVA caused any sacroiliac joint dysfunction or related SPR instability and misalignment. [122] To the extent that the plaintiff has sacroiliac joint dysfunction or related SPR instability and misalignment, this was not evident as symptomatic in the 2022 and 2023 surveillance videos. c) Dr. Parham Daneshvar [123] Dr. Parham Daneshvar is a medical doctor specializing in orthopaedic surgery who was qualified to provide opinion evidence with respect to musculoskeletal matters, including injuries. He was called by the plaintiff. [124] In his September 17, 2018 report (September 14, 2018 assessment date), Dr. Daneshvar opined: Given that Mr. Kulla denies having any shoulder pain

prior to [the June 28, 2014 MVA], it is more likely than not that [the June 28, 2014 MVA] was the cause of his left should pain. With the diagnosis of subacromial impingement and chronic shoulder pain, in the absence of obvious acute injuries such as fracture or acute tendon ruptures, it is impossible to show absolute cause and effect. However, any soft tissue injury to the shoulder can lead to inflammation and pain which in turn causes dyskinesia (improper movements). Dyskinesia and ongoing weakness in periscapular and rotator cuff muscles can lead to abnormal stresses in the subacromial space causing impingement type symptom. [125] In preparing his September 17, 2018 report, Dr. Daneshvar did not have Dr. Ho's December 15, 2008 to May 24, 2012 clinical notes. These clinical notes include: October 7, 2009 Left arm - painful x 9 mos Ⓛ SI à Ⓛ leg Ⓛ Shoulder X-ray △ Tendonitis November 1, 2011 △ depression February 11, 2012 Ⓛ Shoulder - painful February 25, 2012 Ⓛ Shoulder - painful - along the Ⓛ arm March 2, 2012 Ⓛ Shoulder - painful March 10, 2012 Ⓛ Shoulder - painful, tender - full ROM March 24, 2012 Ⓛ Shoulder - painful - full ROM April 5, 2012 Ⓛ Shoulder - painful - full ROM April 19, 2012 Ⓛ Shoulder - painful April 26, 2012 Ⓛ Shoulder - painful - tender May 3, 2012 Ⓛ Shoulder - painful May 7, 2012 left Shoulder - painful [126] At the time of preparing his report, Dr.

Daneshvar did have Dr. Ho's clinical notes starting June 14, 2012. These clinical notes read (in part): June 14, 2012 Left shoulder - painful - tender - full ROM July 26, 2012 Ⓛ Shoulder - painful - full ROM August 9, 2012 Ⓛ Shoulder - painful - full ROM August 23, 2012 Ⓛ Shoulder - painful - full ROM October 18, 2012 Ⓛ Shoulder - painful X-ray Ⓛ shoulder - feeling grinding inside November 1, 2012 Ⓛ Shoulder - painful - tender - full ROM November 15, 2012 Ⓛ Shoulder - painful - full ROM December 11, 2012 Ⓛ Shoulder - some pain December 27, 2012 Ⓛ Shoulder - painful - full ROM January 10, 2013 Ⓛ Shoulder - painful - full ROM January 24, 2013 Ⓛ Shoulder - painful - full ROM February 7, 2013 Ⓛ Shoulder - painful - full ROM April 4, 2013 Ⓛ Shoulder - painful - tender - full ROM April 25, 2013 Ⓛ Shoulder - some pain - full ROM May 7, 2013 Ⓛ Shoulder - painful - full ROM [127] In his March 31, 2014 clinical notes, Dr. Kwan, the plaintiff's then psychiatrist refers to "muscle pain". [128] As Justice Abrioux describes in Karim, "it is the doctor's function to take the patient's complaints at face value and offer an opinion based on them": para. 89. [129] In cross-examination, Dr. Daneshvar agreed that if he had had Dr. Kwan's clinical notes before preparing his report, he would have asked the plaintiff where he was having muscle pain in March 31, 2014. [130] Considering that March 31,

2014 was only several months before the June 28, 2014 MVA, the location of the plaintiff's muscle pain was relevant and may have led Dr. Daneshvar to explore further lines of inquiry. [131] Given the long history of the plaintiff's left shoulder pain, the fact that the plaintiff had a financial motive to deny having any shoulder pain prior to the June 28, 2014 MVA, and the plaintiff's general lack of credibility, I find that Dr. Daneshvar's September 17, 2018 report is not "sufficiently clear, convincing and cogent" to satisfy me that the June 28, 2014 MVA caused any injury to the plaintiff beyond what human experience usually associates with a whiplash. The video surveillance evidence further supports my finding in this regard. d) Dr. William Neufeld [132] Dr. William Neufeld is a medical doctor specializing in physical disabilities and impairments. He was qualified to provide opinion evidence with respect to physical disabilities and impairment. He was called by the plaintiff. [133] Dr. Neufeld prepared a report dated November 8, 2018 (October 11, 2018 assessment date). [134] Dr. Neufeld made handwritten notes of his assessment of the plaintiff. He stated that he usually keeps his notes in a file but unfortunately could not locate those notes for trial. I am satisfied that the misplacement was a human error. Neither the plaintiff nor the defendants suggested otherwise. [135]

One of Dr. Neufeld's assumptions read: The supplied medical records and background documentation (see Appendix A) are assumed to be factually correct, accurate and complete. The document review is carried out in order to establish a chronology of events that includes medical interventions, investigations and specialist referrals, and medical and rehabilitation management. [My emphasis.] [136] Appendix A to Dr. Neufeld's report does not list Dr. Ho's clinical notes from before June 14, 2012. [137] Dr. Neufeld testified that he likely did not see Dr. Ho's earlier clinical notes. In analyzing matters, Dr. Neufeld stated that it would "have made a difference" to him if he knew of the plaintiff's past neck, left arm, and back complaints. [138] In sum, Dr. Neufeld would have benefitted from having Dr. Ho's earlier clinical notes to analyze matters with a complete longitudinal record. [139] Dr. Neufeld's key findings read: Impairment Findings (Physical, Cognitive and Emotional) The World Health Organization (WHO) has defined Impairment as "any loss or abnormality of psychological, physiological, or anatomical structure or function". Impairment denotes what is medically wrong with a body part, organ system, or function, and can only be determined by an appropriately trained and experienced medical practitioner.

70. This evaluation identified the following medical signs and symptoms of Impairment: · Mr. Kulla has developed a chronic pain syndrome with symptoms of chronic headache, neck pain, left shoulder pain, and low back pain radiating to his left leg with associated reduction in tolerance for physical activity. This condition is likely the result of central sensitization to pain stimuli arising from the injuries sustained in the June 28, 2014 motor vehicle collision. · Mr. Kulla's pre-existing major depressive disorder was worsened as a consequence of chronic pain with its negative impact on his physical activity tolerance leading to impairment of earning capacity, which in turn has had a negative impact on his self-image and emotional coping ability. Sleep disruption and fatigue related to depression further erodes his motivation to pursue exercise to improve his physical stamina which leads to deconditioning and even greater loss of his sense of well-being. · Mr. Kulla has developed a left shoulder impingement syndrome as diagnosed by Dr. Daneshvar as a consequence of injury to the tendons of his rotator cuff and biceps tendon sustained in the June 28, 2014 motor vehicle collision. His chronic inability to use this shoulder normally is evidenced by the presence of significant wasting of the muscles of his left upper arm and by the presence of loss of range of motion in his left

shoulder. · Mr. Kulla has developed radicular pain down his left leg with objective evidence of left hip flexor and left ankle dorsiflexion weakness suggestive of irritation of lumbar nerve roots related to the low back injury sustained in the June 28,2014 motor vehicle collision. Physical Abilities On the basis of the functional testing results, my interview and examination of Mr. Kulla, and my review of the records provided, I am of the opinion that Mr. Kulla, despite his chronic pain, is capable of Medium strength work as defined by the NOC (National Occupational Classification) with limitations on reaching above shoulder height with the left arm and with limitations on ladder and stair climbing. [140] As noted, the "supplied medical records and background documentation" did not include Dr. Ho's clinical records prepared before June 14, 2012. As may be seen above, Dr. Ho's clinical notes from December 15, 2008 were available. In addition to Dr. Ho's clinical notes relating to the plaintiff's neck, left shoulder, and left arm, his notes also covered back pain, dizziness, and the sacroiliac joint, among other things. [141] In my view, Dr. Neufeld should have had Dr. Ho's pre-June 14, 2012 clinical notes in order to have a sound grounding for his opinions. [142] The October 19, 2022 surveillance video also does not show the plaintiff having any limitations on "reaching above

shoulder height with the left arm" or with ladder climbing. [143] Dr. Neufeld's opinion with respect to the plaintiff's psychological state is beyond the scope of expertise for which he was qualified by the Court. [144] Finally, as with the other medical experts, Dr. Neufeld has accepted the plaintiff's complaints and descriptions at face value. e) Dr. Andrew Travlos [145] Dr. Andrew Travlos is a medical doctor specializing in physiatry who was qualified to give opinion evidence with respect to physiatry, including the diagnosis and treatment of musculoskeletal disorders, traumatic brain injuries, pain disorders, and spinal cord disorders. He was called by the defendants. [146] In his October 27, 2016 report (October 27, 2016 assessment date), Dr. Travlos noted the following regarding the plaintiff's pre-June 28, 2014 MVA symptoms: Mr. Kulla noted that he did have history of depression and was on treatment for that prior to the accident, but his situation was stable and he was still taking his medications. He stated that he had been involved in two motor vehicle accidents prior to this accident, following which he did have symptoms, but he stated that those symptoms went on to resolve. He denied any other issues of concern and noted that he was otherwise well and healthy. [147] Dr. Travlos opined: [ ] It is my opinion that Mr. Kulla was an emotionally vulnerable individual with

additional physical vulnerability to injury to his neck, back and left shoulder. It does, however, appear that he was in a better place directly leading up to the accident, but was still at risk of fluctuations and variations of his physical and emotional symptoms, even in the absence of the accident. [148] Considering that the plaintiff was willing to deceive "by deliberate falsehood or gross exaggeration" to further his claim, I have given little weight to Dr. Travlos's opinion other than the plaintiff's depression would have waxed and waned absent the June 28, 2014 MVA. [149] With respect to deception, I have also noted that Dr. Travlos states in the Preamble of his report (in part): Mr. Kulla did display some signs of non-organic presentation in that he began to show excessive limping, when formally assessed that was not present during observation. Additionally, he denied any changes whatsoever in his symptoms from the accident through to the present, a complaint that is not consistent with physiologic changes expected for pain. [150] In giving little weight to Dr. Travlos's opinion, I do not wish to be taken as critical of Dr. Travlos. He was simply not provided with reasonably reliable information by a plaintiff who was generally not credible and who had a financial motive to support his significant damages claim. 8. damages a) Non-pecuniary Damages [151] Given the

plaintiff's general lack of credibility, the financial motivation for him to tailor his evidence through falsehoods and exaggeration, and little or no objective evidence of continuing injury, his lack of credibility permeates almost all aspects of his claim. [152] With respect to the various medical reports, I found them to be of little assistance. As stated in Edmondson v. Payer, 2011 BCSC 118 at para. 77, aff'd 2012 BCCA 114, "the doctor's job is to take the patient's complaints at face value and offer an opinion based on them". [153] The June 28, 2014 MVA did not result in a clear, objective injury that could be determined independently of the plaintiff's credibility (e.g., a plaintiff has all ten fingers immediately before an accident and has seven fingers immediately after the accident). [154] Where there was some possible objective evidence of injury (e.g., possible injury to the sacroiliac joint), there were prior events, such as the December 27, 2011 MVA or the February 27, 2012 MVA, that may have caused the injury, or some other event that gave rise to Dr. Ho's October 7, 2009 clinical notes. [155] In Gordon v. Palmer, 78 B.C.L.R. (2d) 236 at 237-238, 1993 CanLII 1318 (S.C.), Justice Thackray (as he then was) stated: I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of

British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle. Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process. In the case at bar the limited amount of motor vehicle damage is not, in my opinion, the yardstick by which to measure the extent of the injuries suffered by the plaintiff. No evidence was called to substantiate the theory of "no physical damage: no injury". The plaintiff alleged serious back injuries and resultant damages. The extent will be decided on the evidence. [156] The defendants do not dispute that the June 28, 2014 MVA involved considerable physical forces since Mr. Chiu's vehicle rear-ended the plaintiff's vehicle at considerable speed. [157] Having regard to the considerable energy and forces involved, I find that it is highly unlikely the plaintiff would have survived the crash unhurt. There was no evidence that any of the first responders or his passenger viewed the plaintiff as having

survived unscathed. [158] In Price v. Kostryba, 70 B.C.L.R. 397 at 398, 1982 CanLII 36 (S.C.), Chief Justice McEachern stated: Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation. [ ] [159] In line with "human experience", I find that the plaintiff suffered whiplash-type injuries that resolved "within six months to a year or so". The plaintiff was not a credible witness who provided "sufficiently clear, convincing and cogent" evidence to support either a finding that his whiplash-type injuries did not resolve within the usual period of time, or a finding that there were other injuries not usually associated with a whiplash. [160] With respect to the plaintiff's depression, I do not find that the June 28, 2014 MVA either caused his depression or otherwise affected how it may have waxed and waned over the years (beyond the period of six months to a year of so) depending on the stress in his life at particular times, the effectiveness of treatment, and other factors (some of which are yet to be understood by modern medicine). [161] With respect to mental injury, I do not find that the plaintiff was a "changed man" as a result of the June 28, 2014 MVA: Saadati v. Moorhead, 2017 SCC 28 at para.

34. In particular, I have considered Ms. Drita's testimony. She was seemingly unaware of many aspects of the plaintiff's life before the June 28, 2014 MVA, including the degree and extent of his mental challenges. [162] In particular, with respect to the January 9, 2020 MVA (the last MVA), the plaintiff has not satisfied me that, on a balance of probabilities, it was a suicide attempt. If it were a suicide attempt, I am satisfied that the plaintiff would have told Dr. Lunt, his psychologist, that it was such. [163] In cross-examination, the plaintiff admitted that he was "very heavily intoxicated" at the time of the January 9, 2020 MVA. [164] In further cross-examination, when asked why he did not tell Dr. Lunt that the January 9, 2020 MVA was a suicide attempt, the plaintiff said that that was because "if the truth comes out, he would be singled out, because in Albania, people who kill themselves, they laughed at". [165] With the plaintiff's general lack of credibility, I find that he drank excessively, drove his brother's pick-up truck, and then crashed into a parked car before crashing again. There was no evidence that the plaintiff disliked his brother. If the plaintiff had intended to commit suicide, there was no apparent reason for him to use his brother's pick-up truck for that purpose since it would cause his brother financial harm. [166] In line with the defendants'

sensible and reasonable submissions of an award in the range of $40,000 to $60,000, I will award the plaintiff $60,000 in non-pecuniary damages, having regard to the fact that the collision was one involving considerable energy and forces. b) Mitigation [167] The defendants also submit that the plaintiff failed to mitigate by not following medical recommendations. [168] In Chiu v. Chiu, 2002 BCCA 618, our Court of Appeal set forth the test for the failure to mitigate: [57] The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146. [169] The defendants submit that the plaintiff's claim for non-pecuniary damages should be reduced by 15% if his injuries persisted past 2018. [170] I have found that the plaintiff's injuries resolved within six months to a year or so after the June 28, 2014 MVA, which is well before 2019. Accordingly, I will not reduce the $60,000 non-pecuniary award. c) Other Heads of Damages [171]

Given the plaintiff's general lack of credibility, including deliberate falsehoods and exaggerations, the plaintiff has not provided "sufficiently clear, convincing and cogent" evidence "to satisfy the balance of probabilities test" to establish these other heads of damages. [172] Despite the fact that I have accepted that the plaintiff suffered whiplash-type injuries, there are two problems with awarding damages for the First Contract (July 2014). First, with the plaintiff's general lack of credibility, the Court cannot reliably determine the profit that he would have otherwise realized. Second, and fundamentally more so, the Court cannot condone or acquiesce in awarding damages based on profits related to an illegal kickback scheme. [173] In Este v. Esteghamat-Adakani, 2017 BCSC 878, aff'd 2018 BCCA 290, leave to appeal to SCC ref'd, 38384 (14 March 2019), I stated: [35] In a civil context, I see no reason to depart from the principle that the reputation of the justice system, including that of the courts, "must be understood in the long term sense of maintaining the integrity of, and public confidence in, the justice system". [174] In short, the Court, having regard to the administration of justice, would not put the plaintiff's claim based on potential profits from a kickback scheme to a jury. In a judge-alone trial, the rule is no different. 9. conclusion [175] The Court awards the plaintiff $60,000 in damages. 10. costs [176] If the parties wish to address costs, I ask that they arrange through Supreme Court Scheduling a 9 a.m. 55-minute hearing before me (within 30 days of these reasons). "Funt J."