Executive summary: Key legal and evidentiary issues

• Liability for the motor vehicle accident was admitted by the defendants, narrowing the dispute to the extent of injuries and quantum of damages.

• Whether the plaintiff sustained a mild traumatic brain injury (MTBI) was contested, with competing expert opinions from neurologist Dr. Cameron (supporting MTBI) and psychiatrist Dr. Riar (initially denying, later conceding it was possible).

• Credibility and reliability of the plaintiff's testimony were challenged due to discrepancies between her trial evidence, examination for discovery answers, and reports to medical professionals.

• The plaintiff's chronic low back and coccyx/pelvic pain was accepted as a permanent partial disability caused by the accident, with ongoing psychological effects including anxiety and depression.

• Significant disagreement arose over the appropriate method for assessing future loss of earning capacity, with the plaintiff advocating the earnings approach and the defendants favouring the capital asset approach.

• Future cost of care and loss of housekeeping capacity were contested, particularly the duration of physiotherapy funding and whether a separate pecuniary award for housekeeping was warranted.

The facts of the case

On February 5, 2021, Emilie Moise, then 30 years old, was riding her 500cc Honda Rebel motorcycle northbound on Hemlock Street in Vancouver shortly after 5:00 p.m. At the intersection with West 8th Avenue, the defendant Rajnesh Ram, driving a taxi owned by Black Top and Checker Cabs Ltd., was stopped at a stop sign on the cross street. The taxi proceeded into the intersection and struck Ms. Moise on her left side, throwing her approximately 10 to 12 feet off the motorcycle. She landed on her head and right hip on the pavement. Ambulance attendants found her lying on her side on the ground with her spine stabilized by a bystander, complaining of numbness on her entire right side. She was transported to Vancouver General Hospital and discharged shortly before midnight that evening.

The plaintiff before the accident

Ms. Moise was born in 1990 and raised in Ontario. She was an avid athlete throughout her life, participating in skiing, snowboarding, soccer, volleyball, basketball, Olympic weightlifting, and cross-fit. She completed a four-year advanced diploma in business administration in materials and operations management from Algonquin College. In 2015, she moved to Vancouver and began working for Canada Post as a letter carrier, a physically demanding outdoor role she loved. Over more than five years at Canada Post, her income rose from approximately $45,000 to $50,000 annually. She had applied for five different positions at Canada Post more geared to her education, including positions in sales, management and health and safety. She was interviewed for two of those positions but was not hired for either of them. She described herself as testing the waters and preparing herself to move into management and higher paying positions, motivated significantly by the prospect of building a pension.

Injuries and treatment

Shortly after the accident, Ms. Moise experienced pretty bad neck pain, pain in her right shoulder, right elbow bruising, severe pain in her right hip and coccyx/pelvis area, and pain in her mid to lower back. She partially tore her right hip flexor. She began physiotherapy two to three months post-accident, twice a week. After a year, she added counselling and pelvic floor specialist treatment. Roughly two and a half years after the accident, she started active rehabilitation with a kinesiologist. At the time of trial, she continued to see a kinesiologist and pelvic floor specialist regularly. She had done no weightlifting since the accident, and no volleyball or basketball. She tried soccer, but it aggravated everything, and she had to quit after the second game. Her headaches, light sensitivity, and cognitive difficulties improved substantially over time, though intermittent neck pain, anxiety, and depression persisted.

The plaintiff's post-accident employment

Ms. Moise's work history after the accident reflected her struggle to find sustainable employment compatible with her physical limitations. She returned to Canada Post on a gradual return to work in approximately June 2021, working three days a week, two to four hours a day, on light modified duties inside sorting mail, sorting and collating flyers, and doing address change cards. She found the work difficult due to the loud environment, warehouse lighting, and repetitive motions aggravating her lower back. She did that until January 2022, then went on long-term leave before leaving Canada Post. She subsequently worked at Parallel 49 microbrewery doing purchasing in March and April 2022, as a bouncer at the Red Room nightclub from May or June 2022 until late summer that year, as a commission-based financial assistant at Vancouver Auto Credit before leaving that job in January 2023, then returned to the Red Room from January to the end of November 2023. In December 2023, she began working as a patrol officer and first aid responder at UBC for higher pay, guaranteed steady hours, and a pension, earning $26.30 per hour. She worked there for twelve months from December 2023 to December 2024. Her UBC security manager, Glenn MacNeill, testified that Ms. Moise was good at her work and her performance was good. However, Ms. Moise found the physical demands of the job, particularly the walking, difficult to sustain with her chronic pain. She wrote a letter of resignation in early December 2024, explaining she had tried various positions over the four years but was struggling physically and mentally. She moved back to Ontario in November 2024 to live in a house owned by her father, with plans to work alongside her father in a project manager role in buying houses, renovating them, and either renting them out or reselling them.

Expert evidence and the MTBI debate

The question of whether Ms. Moise sustained a mild traumatic brain injury generated significant attention at trial. Dr. Donald Cameron, a neurologist, opined that Ms. Moise fulfilled the criteria to make a diagnosis of a mild traumatic brain injury at the time of the accident. He concluded, however, that as of the date of his assessment, she was not suffering with ongoing symptoms residual to the mild traumatic brain injury. Dr. Mitchell Spivak, a psychiatrist, found her account suggestive of her having sustained an MTBI and diagnosed major depressive disorder with anxious distress, with elements of post-traumatic stress disorder, including nightmares, flashbacks and vehicular avoidance and anxiety, that had partly resolved. On the defence side, Dr. Kulwant Riar's report stated that he did not believe Ms. Moise suffered any MTBI, but if she did, it was non-consequential and did not leave her with any post-injury symptomology. However, in cross-examination, he ultimately agreed that she could have suffered an MTBI. The Court attached little weight to this aspect of Dr. Riar's opinion, finding he appeared argumentative and reluctant to agree with relatively straightforward propositions, and he appeared selective in his diagnosis. Dr. Bas Masri, an orthopaedic surgeon for the defence, identified the ongoing pain symptoms caused by the accident as relating to the coccyx and the buttocks, as well as the low back, which he described as persistent myofascial pain as evidenced by muscular tenderness. His opinion was that from an orthopaedic point of view, Ms. Moise had no disability with reference to sedentary work.

Credibility and reliability findings

The defendants raised a number of discrepancies in Ms. Moise's evidence, including inconsistencies between her trial testimony and her examination for discovery on March 28, 2024, regarding headaches, neck problems, cognitive issues, and how frequently she rode her motorcycle post-accident. The Court acknowledged that some of Ms. Moise's evidence at trial suffered from reliability issues and that some of her answers at trial gave the appearance of exaggerating the negative effects of the accident, and downplaying some of the positive aspects of her recovery. Nevertheless, Justice Jones noted that given the passage of time, some inconsistency in the evidence of a witness is to be expected, and that the Court is not obliged to reject all of a witness's evidence simply because on some issues the witness is not credible or not reliable. On the key issues of the ongoing impact of Ms. Moise's physical injuries caused by the accident, there was little or no dispute that Ms. Moise continued to experience a partial disability as a result of low back and coccyx/pelvic pain, which affected her mental health in terms of anxiety and depression.

Assessment of damages

For non-pecuniary damages, the plaintiff sought $250,000, citing comparable cases, while the defendants proposed a range of $140,000 to $150,000. The Court found that the cases cited by the plaintiff — Roussin, Lines, Donaldson and Sirna — all involved plaintiffs with more significant injuries than Ms. Moise, and that the cases referenced by defence counsel could generally be described as involving plaintiffs whose injuries had impacted their lives to a lesser extent than Ms. Moise. Taking into account Ms. Moise's age, the nature and permanence of her chronic coccyx/pelvic and low back pain, the emotional toll including a negative impact on her personal relationship with her former partner, and the significant curtailment of her once-active lifestyle, the Court awarded $210,000, augmented by having considered the impact of the accident injuries on Ms. Moise's housekeeping capacity. The parties agreed on past loss of earning capacity at $27,461, based on an annual salary of $50,000 for the years 2021 to 2024, less long-term disability payments and her earnings from employment in those years. Special damages were agreed at $3,729. On the contested issue of future loss of earning capacity, the Court applied the earnings approach rather than the capital asset approach favoured by the defendants. The Court assessed her "without-accident" future earnings over three periods to age 62 at $1,716,266, reflecting a trajectory from $50,000 during 2025 to 2029, to $70,000 during 2030 to 2040, and to $108,396 during 2041 to 2053, based on evidence of Canada Post management salaries from vocational evaluator Derek Nordin. Her "with-accident" earnings were assessed at $1,132,376, using wage data from defence vocational evaluator Samantha Gallagher's report regarding sedentary and light physical jobs within Ms. Moise's capabilities. Future cost of care was awarded at $42,954, covering physiotherapy at $1,160 annually to age 62 ($25,125), active rehabilitation at $2,053, occupational therapy at $354, psychological counselling at $2,700, gym and pool membership at $488 annually to age 62 ($10,570), and Tylenol and Advil at $68 annually ($2,152). The Court declined to make a separate pecuniary award for housekeeping, finding that Ms. Moise had not proven on a balance of probabilities her claim for a pecuniary award for housekeeping services, as she had continued her housekeeping reasonably normally, albeit with some pain and difficulty.

The ruling and outcome

The Honourable Justice Jones awarded a total judgment of $868,034 in favour of the plaintiff, Emilie Moise, against the defendants Rajnesh Ram and Black Top and Checker Cabs Ltd. This amount comprised $210,000 in non-pecuniary damages, $27,461 in agreed past loss of earning capacity, $583,890 in future loss of earning capacity, $42,954 in future cost of care, and $3,729 in agreed special damages. The plaintiff was also entitled to her costs of the action from the defendants at Scale B, subject to any further submissions the parties may wish to make on costs.