BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia personal injury lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims.

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Chronic Pain Cases’ Category

$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

March 25th, 2015

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.

In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:

[3]             The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131]     The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135]     In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.


$90,000 For Lingering Soft Tissue Injuries Leading to Chronic Pain Disorder

February 6th, 2015

Adding to this site’s archived cases addressing non-pecuniary damages for chronic pain, reasons for judgement were released today dealing with such a condition following a motor vehicle collision.

In today’s case (Roth v. Hes) the Plaintiff was involved in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained soft tissue injuries which led to a chronic pain condition.  In assessing non-pecuniary damages at $90,000 Mr. Justice Bowden provided the following reasons:

[82]         The plaintiff is a 40-year-old woman and suffered soft tissue injuries primarily in her back and shoulder area. She continues to suffer from chronic pain disorder and experiences sleeping difficulties. She has a pre-accident history of lower back and right knee pain complaints which would likely have continued even if the accident had not occurred.

[83]         The plaintiff’s lifestyle has suffered as a result of the accident. While I consider her to be far from totally disabled, she has lost the enjoyment of working on her and her husband’s hobby farm and the lifestyle that it provided to her. To some extent, as stated by Dr. Laidlow, this has resulted from the plaintiff becoming overly protective in relation to her injuries. With continuing appropriate rehabilitation and treatment I expect that the plaintiff’s condition will improve and she will gradually return to some of her hobbies around her property.

[84]         I do not accept the plaintiff’s argument that the garden and animals cared for by her and her husband were more than a hobby. It matters not that the garden and animals provided some food for them. The use of their property by the plaintiff and her husband was simply a hobby and I so find.

[85]         Before the accident the plaintiff enjoyed a number of outdoor activities. Since the accident she has not been able to participate in physically demanding activities like motorcycle riding, archery and hiking. There is the prospect that she may find less physically demanding but enjoyable hobbies.

[86]         The plaintiff has been unable to perform a number of household chores that she could before the accident. Her social life has been impacted by the accident as she has been unable to entertain guests for dinner parties as she did in the past. She and her husband have also not enjoyed the intimacy they experienced before the accident.

[87]         Both parties provided me with a number of cases dealing with similar facts that supported the amount of damages that they consider to be appropriate. In the end however, each case must be decided on its own facts.

[88]         Considering the factors enumerated in Stapley, I find $90,000 to be an appropriate award of non-pecuniary damages.


$90,000 Non-Pecuniary Assessment For Chronic Myofascial Pain

January 30th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for partly disabling chronic myofascial pain symptoms following a collision.

In today’s case (Camilleri v. Bergen) the Plaintiff was injured in a 2011 collision.  The Defendant admitted fault.  The Plaintiff suffered from chronic myofascial pain symptoms which were not expected to improve.  In assessing non-pecuniary damages at $90,000 Madam Justice Loo provided the following reasons:

[74]        As discussed above, Ms. Camilleri now suffers from chronic myofascial pain as a result of the accident. She is unlikely to recover and, at best, she may mitigate some of her symptoms. I can do no better than to summarize her symptoms as set out in Dr. Dost’s report. She complains of:

1.   Constant cervical or neck pain that radiates to the interscapular region, left shoulder and diffusely down her arm to her third and fifth fingers;

2.   Constant thoracolumbar or back pain, without radicular symptoms, but with numbness and tingling;

3.   Headaches almost daily. About four days a week she has a dull headache, occipital pressure, and some nausea. Three days a week her headaches are quite severe and radiate to her left eye with pressure, pounding, nausea, and light and noise sensitivity;

4.   Sleep disruption secondary to pain;

5.   Altered mood;

6.   Light-headedness (a faint-like sensation that occurs early in the morning);

7.   Increased tinnitus;

8.   Increased blurred vision requiring stronger prescription glasses; and

9.   Difficulties with memory, processing speed, multitasking, attention and recall.

[75]        Her symptoms are not likely to improve. The evidence suggests that she can only learn to cope with her symptoms with psychiatric or psychological counselling, a physiatrist to deal with the physical complaints, and possibly a pain clinic to help her deal with her pain.

[76]        Ms. Camilleri’s life has been affected dramatically and profoundly by the accident. Her symptoms have been a tremendous challenge for her both emotionally and physically. She was a very high energy person who was fully committed to her family and to her work. She was a leader in her field. I could not help but have the impression that Ms. Camilleri was so committed to her work and patients at the eating disorder clinic that she was more concerned about helping the patients and the community rather than making money. She could easily have made more money in private practice but she was committed to helping those who could not afford private care. She was so committed to her work that she increased her hours of work after the accident so that her patients would continue to have treatment despite the toll it has taken on her physical and emotional health.

[77]        Ms. Camilleri said that it has been emotionally challenging for her to be forced to step back into what she considers a lesser role in the treatment of the eating disordered. She enjoyed her volunteer positions, she enjoyed teaching, she enjoyed the continuing education opportunities with other health professionals, and she enjoyed research. Those are things she can no longer enjoy.

[78]        She was also a physically active person who enjoying skiing with her family, running, cycling, water-skiing, gardening, and she enjoyed sharing many of those activities with her husband and daughters. Those are things she can no longer enjoy. She no longer even travels.

[79]        I have no reason to doubt Ms. Camilleri’s evidence. There is no suggestion that she is anything other than a credible, straightforward witness who keeps doing her best in situations where others likely would have given up. But she has been forced to give up many of the things in life that she enjoyed…

[88]        I conclude that an appropriate award in this case for non-pecuniary damages is $90,000.


$120,000 Non-Pecuniary Assessment For Chronic PTSD and Soft Tissue Injuries

January 5th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and post traumatic stress disorder caused by two motor vehicle collisions.

In today’s case (Luis v. Marchiori) the Plaintiff was involved in two collisions, the first in 2008 and the second in 2011.  ICBC admitted fault for both defendants. The Plaintiff sustained chronic injuries and in valuing non-pecuniary damages at $120,000 Madam Justice Gray provided the following reasons:

[178]     I would summarize the significant factors as follows:

a)    Ms. Luis is 49 years old;

b)    In the accidents, Ms. Luis suffered predominantly soft-tissue injuries which have led to painful shoulder surgery, chronic disabling pain in her neck and right shoulder and lower back, moderate to severe major depression, PTSD, and significant weakness in her dominant right hand;

c)     Ms. Luis’s pain has been severe, particularly since the Second Accident, and it is unlikely that her pain or depression or PTSD or right hand weakness will resolve;

d)    As a result of the accidents, Ms. Luis is completely disabled from working and driving and is significantly disabled from personal care, home care, and personal activities; and

e)    Ms. Luis has suffered from the loss of her sense of well-being, the impairment of her relationships with her husband and children, and the loss of the social connections from work.

[179]     No two cases are alike. I have considered the cases cited by both counsel and Ms. Luis’s particular circumstances.

[180]     Ms. Luis is entitled to $120,000 for non-pecuniary damages.

 


$75,000 Non-Pecuniary Damages For Chronic Pain Following Three Collisions

December 10th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing fault and damages following a series of collisions.

In today’s case (Shinzay v. McKee) the Plaintiff was involved in three collisions.   The Defendants were found liable for each of these.  The Plaintiff suffered chronic soft tissue injuries which persisted to the time of trial and resulted in chronic pain symptoms which were expected to need continued management.  In assessing non-pecuniary damages at $75,000 Madam Justice Sharma provided the following reasons:

[93]         Based on all of the above, I make the following findings on the balance of probabilities:

a.               Mr. Shinzay continues to suffer pain that affects, but does not disable him;

b.               Mr. Shinzay will more likely than not require physiotherapy, massage therapy, and pain medication in the future to manage flare-ups of his pain;

c.               Mr. Shinzay needs to follow a conditioning program which will improve his pain management;

d.               Mr. Shinzay had a degenerative spinal condition that pre-existed the First Accident;

e.               The accidents caused Mr. Shinzay to suffer soft tissue injuries; and

f.                The accidents materially contributed to his pain because it trigged his pre-existing spinal degeneration to become symptomatic.

[98]         As already noted, I find Mr. Shinzay has not exaggerated his symptoms. His resilience for work should not be mistaken for a sign that his injuries were mild. In particular, the Second and Third Accidents required emergency personnel to extract him and he was taken away on a stretcher.

[99]         Overall, I find that Mr. Shinzay’s circumstances justify an award at the moderate level of the appropriate range. Among the cases referred to me, I discuss below the most helpful ones because of the similarity of some of the facts or circumstances to this case. These cases identify a range of $60,000 (the defendants’ assessment) to $90,000 (the plaintiff proposed $100,000)..

[100]     In these circumstances, I find $75,000 to be an appropriate award.


$75,000 Non-Pecuniary Assessment For Chronic and Disabling Neck and Back Injury

November 25th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and largely disabling neck and back injuries.

In this week’s case (Mandra v. Lu) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The Plaintiff suffered chronic neck and back injuries as a result which disabled him from is occupation as a millwright and challenged him in lighter vocational options.  In assessing non-pecuniary damages at $75,000 Madam Justice Duncan provided the following reasons:

[121]     Mr. Mandra was 53 years of age when the accident occurred. He was transformed from a happy, healthy and hardworking man to one who lives in constant chronic pain. His lower, mid and upper back hurt on an ongoing basis. He has neck pain, headaches and pain in his legs. He is nervous, forgetful, miserable and depressed. Treatment and medication have not helped and there is no prognosis for improvement except as described by Dr. Helper and only in relation to his lumbar pain. Compendiously his pain is severe and chronic and disables him from the type of work he used to do. He was formerly employed as a millwright, a heavy duty job, but now has a hard time sitting or standing for prolonged periods and lacks the necessary physicality to work as he once did. The injuries render him unemployable in his past career as a millwright and only very marginally employable in lighter occupations, particularly given his challenges with English. The injuries have affected his social life and his relationship with his wife. He is not as active as he once was. He has suffered psychologically.

[122]     Balancing all these factors, I award the plaintiff $75,000 for non-pecuniary damages.


$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

September 24th, 2014

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.

In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.  


$120,000 Non-Pecuniary Assessment for Chronic Soft Tissue and Post Concussive Injury

August 13th, 2014

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.

In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009.  The Defendant was found fully at fault.  The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms.  In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons:

196]     On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident:

          1.       Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much;

          2.       Chronic intermittent pain;

          3.       Migraines (aural), under control;

          4.       Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period;

          5.       PTSD (resolved by the time of trial);

          6.       Nightmares, transitory and resolved;

          7.       MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems;

          8.       Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and

          9.       Adjustment disorder, largely in remission.

I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction.

[197]     It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling.

[198]     Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates.

[199]     While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well…

[212]     I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.

 


$120,000 Non Pecuniary Assessment For Chronic Myofacial Pain Syndrome

June 16th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.

In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision.  She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete.  She sustained soft tissue injuries which impacted her education and training.  Her symptoms lingered to the time of trial and were expected to continue.  The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:

[182]     In summary, and having taken into account all the evidence, I make the following findings:

·       Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.

·       Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.

·       Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.

·       Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.

·       Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.

·       Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.

·       As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.

[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.

 


Excessive Drug Use Linked To Collision Related Injuries, Non-Pecuniary Loss Assessed at $100,000

May 23rd, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.

In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle.  The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain.  Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life.  At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries.  In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:

[77]         Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.

[78]         ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.

[79]         ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.

[80]         This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.

[81]         Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…

[91]         On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…

[97]         From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.

 


 

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