On November 20, 2015, the plaintiff was involved in a low impact side swipe type collision with a City of Calgary bus. She suffered mild whiplash to her neck and upper back area which she admitted resolved relatively quickly with physiotherapy and would be capped by the Minor Injury Regulation. The disagreement at trial between her and the City was over whether the soft tissue injury to her right foot (primarily the heel area) would be capped by the Minor Injury Regulation as well.

The plaintiff’s treatment after the Accident was primarily focused on her right foot which included 29 physiotherapy sessions, 16 shockwave therapy sessions and 7 IMS physiotherapy sessions. Over the course of her treatment, she was diagnosed with Achilles tendinopathy, plantar fasciitis and bone spurs in her Achilles. However, by January 2020, she would go months without noticing pain in her right foot but testified it would aggravate with certain activities (such as standing for long periods of time). One of the issues at trial was whether her Achilles tendinopathy, plantar fasciitis and Achilles bone spurs were attributable to the Accident. 

The City called Dr. Ian Le (an orthopaedic surgeon specializing in foot and ankle injuries) as their expert at trial. The plaintiff relied on her treatment providers as her witnesses. Dr. Le only reviewed her medical records (rather than perform an in-person examination) but expressed doubt that the circumstances of the Accident could lead to the plaintiff’s right foot injuries testifying that patients with Achilles tendinopathy or planta fasciitis have a slow and progressive onset of symptoms (with risk factors such as age and obesity). Dr. Le was also unable to detects any clear diagnosis to explain the plaintiff’s foot pain and found there was a complete absence of diagnostic imaging studies that would support a diagnosis of Achilles tendinopathy or planta fasciitis.

The City also took the position that the plaintiff’s foot injury was resolved within a year of the Accident because a bone scan completed on October 12, 2016, was negative for any indications of injury. The plaintiff sought limited treatment after this date but she explained this was because she believed she had plateaued. The City further pointed to the fact that the plaintiff continued to work after the Accident as evidence that her daily activities were not impacted by her right foot pain.

The Court commented it was unable to determine exactly what caused the plaintiff’s symptoms as both sides’ medical witnesses had their weaknesses: the plaintiff’s treatment providers did not review her medical records (largely relying on subjective complaints and in-person clinical examinations) and Dr. Le did not perform an in-person clinical examination relying on medical records to formulate their opinion. 

With that said, the Court concluded that since the Accident the plaintiff has suffered from an injury and associated symptoms that were diagnosed initially as attributable to Achilles tendinopathy and plantar fasciitis. These symptoms “impaired her ability to do without limitation and without pain her ordinary activities of life and occupation”. 

Thus, the plaintiff’s right foot injury was not capped by the Minor Injury Regulation as it impaired her daily functioning. While she was able to work (as a family law lawyer) after the Accident, the Court accepted she pushed through the pain but that it impacted her normal activities of daily living. The Court also pointed to her treatment record and frequency which exceeded the 21 therapy visits contemplated for usual cases under the Minor Injury Regulation.

Relying on prior case law that assessed chronic soft-tissue foot injuries, the Court awarded the plaintiff $40,000 in general damages while noting she continues to face pain in her right foot which limits the type and duration of her activities. She also occasionally uses a cane as a walking aid. It should be noted the plaintiff was seeking between $100,000 and $145,000 for her general damages. The City submitted her foot injury should be capped by the Minor Injury Regulation or, alternatively, be assessed in the range of $31,500 to $48,503.

There were no other heads of damages sought by the plaintiff but she did (unsuccessfully) seek punitive damages against the City on the basis of failing to provide their driver’s full driving abstract in a timely manner and for failing to adequately investigate prior complaints against the defendant driver. However, the Court confirmed punitive damages are very much the exception and the threshold was not met in this case.