Samples of Judgments

Mr. Nordin disagreed with Mr. Smith’s opinion that Mr. Primeau is capable of sedentary or light strength work, noting that he is not aware of any jobs that are open to Mr. Primeau given that he can use only one hand and cannot maintain static body postures (sitting and standing), for long periods.

I found Mr. Nordin to be knowledgeable in his area of expertise, balanced in his approach, and careful in arriving at his conclusions. I consider his opinion to be reliable and have placed considerable weight on it. Where there is a conflict, I prefer Mr. Nordin’s opinion to that of Mr. Smith.

Although Mr. Nordin was unaware of the plaintiff’s pre-existing medical-conditions, I accept his opinion that the plaintiff is not competitively employable as a cement mixer driver. I further accept his opinion that the plaintiff has no realistic chance of obtaining employment, given his age, limited education and physical limitations.”

I prefer the opinions of Mr. Nordin over those of Ms. Cameron.

Mr. Nordin was qualified to give expert opinion evidence as a vocational rehabilitation consultant. He reviewed relevant medical, counselling and treatment records, expert reports, tax returns and educational transcripts. He interviewed and tested Ms. Dubitz on October 16, 2018. He prepared a report dated December 4, 2018.

In Mr. Nordin’s opinion, the accident has negatively impacted Ms. Dubitz’s competitive employability. Specifically, Mr. Nordin questions whether Ms. Dubitz will be able to again achieve full-time employment in an administrative capacity. If Ms. Dubitz works in an administrative environment in the future, the available information suggests to Mr. Nordin that she may be limited to part-time employment. She could also pursue entry level options such as her past work with the Village but Mr. Nordin notes that such positions mostly pay less than administrative positions. In Mr. Nordin’s vocational opinion, “Ms. Dubitz’s competitive employability may remain compromised on a long-term basis.”

Mr. Nordin explained in his testimony that “competitive employability” means that a person can do her job like others without special accommodations such as special equipment, frequent breaks or more time to complete tasks. Mr. Nordin noted that Ms. Dubitz’s competitive employability has been negatively affected by her physical limitations, cognitive difficulties and anxiety.

The plaintiff relies on the expert report and testimony of Derek Nordin, whom I qualified as an expert to give opinion evidence in the field of vocational rehabilitation. His expert report is dated June 14, 2016. He based his estimation of her pre-accident earning potential on three categories of drivers, only two of which are possibly relevant: transport truck and heavy duty equipment operators. He was a credible and reliable witness.

In Mr. Nordin’s opinion, Ms. Wilhelmson is not competitively employable. He acknowledged that a functional capacity evaluation identified she was capable of light work but that “does not really fully address her competitiveness for employment”. In his opinion that conclusion was a “gross exaggeration” because it focussed on discrete physical skills (such as lifting an object), but does not address in an overall fashion her physical condition, nor her psychological status. Further, the categories of “less than light (sedentary)” to “light work” (as identified by National Household Survey Estimates of Employment, the NHS) represent less than 50% of occupations in today’s economy.

In my view, Mr. Nordin’s opinions are based on facts and assumption that most closely match the evidence I have heard about Ms. Wilhelmson’s capabilities and I therefore place a lot of weight on his evidence.

Dr. Bishop’s opinion, Mr. Nordin’s opinion and Ms. Iceton’s are similar. Ms. Iceton testified that “this is the tip of the iceberg”, this is what he does in a “structure setting, not in the more difficult dynamic outside world”. Mr. Nordin stated that the pressure of the work world are significantly higher than an academic environment, and that Stirling’s academic accomplishments are not necessarily a good prognostic indicator of his ability to meet the ongoing demands of a competitively employed engineer, or other related high cognitive demand employment.

From the reports and the testimony, it is readily apparent that the plaintiff’s future earning capacity has been greatly reduced.  Prior to the accident, the plaintiff was a strong man who enjoyed hard physical work and the associated camaraderie.  The experts make clear that the plaintiff’s other occupational opportunities are very limited.  He will not be able to sustain heavy physical work on a regular basis.  He has very poor English language skills.  Mr. Nordin scored the plaintiff’s English level abilities at Grade 3 and Grade 1 for reading and spelling respectively.  His mathematical abilities were also low (approximately Grade 4).
Independent of his language limitations, the plaintiff’s problem solving abilities were also determined by Mr. Nordin to be low.

It is particularly difficult to assess future loss of income in a case like this. Mr. Gravelle is a young man. His interests could change. While cooking is seen by Mr. Nordin as unlikely because of the prolonged standing required, there may be work options where breaks could be taken. Given Mr. Gravelle’s interest in cooking, one cannot rule out that type of work. It may well be, from Mr. Gravelle’s point of view, worth the trouble. Nonetheless, it is clear that higher paid labouring jobs are not likely available to the plaintiff. He has sustained a loss. Balancing all of the factors, it is reasonable to assess damages based on a future loss of income to age 70. Mr. Gravelle is certainly able to work in a number of occupations. Other occupations which are likely more lucrative are foreclosed to him. My assessment of an appropriate award is $290,000.

Mr. Andrusko suggests that based on the four factors noted by Finch J. (as he then was) in Brown, he has established a real and substantial possibility of a loss of future earning capacity.  I agree.  Mr. Andrusko has established a real and substantial possibility of a future event leading to an income loss based on his evidence and the evidence of Mr. Stanway and Mr. Higgins, and based on the reports of Dr. Filbey and Mr. Nordin, all of which I accept.

Dr. Anton, Mr. Nordin, Dr. Anderson and other experts who testified also expressed concern whether the plaintiff would be able to hold onto jobs…Furthermore, vocational counsellor Mr. Nordin cited his experience working with hundreds of brain-injured clients.  He said that many are able to perform relatively well at school or even in a university setting, but not in a competitive work situation…Mr. Nordin commented on the statistically lower rates of employment that people with disabilities experience, his experience of employer’s reluctance to hire people with brain injuries, and his experience that people with brain injuries have difficulty maintaining employment.

The only vocational expert to testify at trial was Mr. Derek Nordin of the Vocational Consulting Group, on behalf of the plaintiff.  Mr. Nordin clearly explained why there will be no jobs available to an individual such as Eric. Mr. Nordin states that to the extent such areas are problematic for Eric, they would further negatively impact his opportunities for employment.  Based on Mr. Nordin’s analysis, Eric will not be competitively employable…The “sad reality” as envisaged by Dr. Hahn, Dr. Kaushansky and Ms. Duke is clearly borne out in the analysis of Mr. Nordin.