The Lawyers Weekly - April 20, 2012

inal offenders”. This provision called upon
judges to use a different method of analysis
in determining a fit sentence for Aboriginal
offenders. Section 718.2(e) directed senten-
cing judges to pay particular attention to
the circumstances of Aboriginal offenders.
When sentencing an Aboriginal offender, a
judge had to consider: (a) the unique sys-
temic or background factors which may
have played a part in bringing the particu-
lar Aboriginal offender before the courts;
and (b) the types of sentencing procedures
and sanctions which could be appropriate
in the circumstances for the offender
because of his or her particular Aboriginal
heritage or connection. In the case of
Ipeelee, the courts erred in concluding that
rehabilitation was not a relevant sentencing
objective. As a result of this error, the courts
below gave only attenuated consideration
to Ipeelee’s circumstances as an Aboriginal
offender. Taking into account the relevant
sentencing principles, the fact that this was
Ipeelee’s first breach of his LTSO and that
he pleaded guilty to the offence, the court
substituted a sentence of one year’s
imprisonment. For the Ladue case, the
judgment of the Court of Appeal was well
founded. A sentence of one year of imprison-
ment adequately reflected the principles
and objectives of sentencing set out in the
Criminal Code.

DAMAGES

TYPES OF DAMAGES – General damages – For personal injuries – Calculation – Cost of future care – Special damages – Past loss of income – Nonpecuniary loss.

Appeal by the plaintiff, Wahl, from an
award of damages for injuries he sustained
in a motor vehicle accident on June 22,
2006. The defendant, Sidhu, admitted lia-
bility. At the time of the accident, Wahl was
driving a pickup truck owned by his
employer. He was transporting two large
tires weighing approximately 1,200 pounds
each. Sidhu failed to stop at a red light. Due
to the force of the resulting collision, one of
the tires broke through the back of the
pickup cab, likely hitting Wahl in the head.
The trial judge found that the accident
caused Wahl both physical and psycho-
logical injuries, including “medium tissue”
injuries, depression, post-traumatic stress,
and anxiety. He also found that it aggravated
Wahl’s pre-existing shoulder injury. How-
ever, he cut off damages at June 2009, find-
ing that Wahl would have been completely
recovered by that time had he mitigated his
damages by attending a pain clinic and
undergoing a needle test on his right shoul-
der. The trial judge also held that the symp-
toms that continued after this date should
have been overcome by Wahl through his
own motivation, and were therefore not
causally connected to the accident. The trial
judge awarded Wahl total damages of

$165,233, consisting of $65,000 for nonpecuniary damages; $78,000 for past wage loss; $12,233 for special damages; and $10,000 for the cost of future care. On appeal, Wahl argued that the trial judge erred in finding that he would have been completely recovered by June 2009.

HELD: Appeal allowed. The trial judge erred in limiting damages to June 2009 on the basis that Wahl failed to mitigate his damages. Implicit in that finding was that the injuries Wahl sustained in the accident were ongoing to the date of trial. Otherwise, if Wahl’s symptoms after June 2009 were not causally connected to the accident, it would have been unnecessary for the trial judge to consider Sidhu’s defence of failure to mitigate. However, the trial judge’s reasons in certain passages suggested that causation was not in fact established for symptoms experienced by Wahl post-June 2009. Thus his reasons contained irreconcilable findings on the issue of causation. The finding that causation was not established for symptoms experienced after this date dem-

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