10/30/2008 9:27pm, #21
1) The style stuff reeks of bullshido.
Mo Woye Fat Kung Fu
Is a martial arts style brought back from China to be taught exclusively at MAFC by Sifu - Sensei Christopher Gerlitz and his staff of martial Arts professionals.
3) Based on the feud between him and Mike Miles (who is either legit or a prolific faker), it sounds like somebody needs to get Mr. Gerlitz a T-shirt.
10/30/2008 9:32pm, #22
- Join Date
- Mar 2006
[Here's more of the court case - I can only post so much at one time 'cause of the system]
2. Defendant’s Experts
(a) Dr. James Powell
 Dr. James Powell is an orthopaedic surgeon with a focus on orthopaedic trauma. He conducted an independent medical examination of Mr. Gerlitz on November 4 and November 18, 2005. At the time of the examination, Mr. Gerlitz was reporting low back pain as his predominant problem. He said the pain occasionally radiated into his legs. He reported that he had experienced no back pain prior to the accident, but at the time of examination he said he had a baseline of low back pain that he reported at a 2/10 where 10 is the worst pain he had suffered from. He said that with activity, the pain would increase to a 6/10.
 On examination, Dr. Powell noted that Mr. Gerlitz was a fit-looking individual. He noted a full range of motion in the cervical spine. On lumbar spine examination, he found tenderness over the L3-4, L4-5 and L5-S1 facets on the left side. He found a full range of motion in his spine, though he noted that Mr. Gerlitz had a “loss of normal spine rhythm” and that he reported pain with flexion and extension of his spine. He found no evidence of any neurological problems.
 In summary, Dr. Powell concluded that Mr. Gerlitz was injured in the August 10, 2001 accident, that he had an ongoing permanent impairment of his function which was partial and permanent. He felt that Mr. Gerlitz was at maximum medical improvement at that time, and that though he had functioned as an elite athlete prior to the accident, he was no longer able to teach or to train in martial arts at his prior level. At trial, Dr. Powell elaborated on this somewhat, saying that while Mr. Gerlitz’s performance level may have declined from his prior elite-athlete level, he still had a greater athletic ability than the average person.
 In his report, Dr. Powell wrote that he felt that his physical findings were consistent with probable facet dysfunction as part of a whiplash-associated disorder. He assigned a 5% whole person impairment rating for his loss of function, but said at trial that he took into account, in assigning this figure, wear and tear on Mr. Gerlitz’s spine that pre-dated the accident. Dr. Powell felt that Mr. Gerlitz would continue to experience ongoing difficulty with low back pain. He said at trial that he determined that there was no new treatment modality that could be undertaken that would likely improve Mr. Gerlitz’s condition.
 At trial, Dr. Powell was referred to the treatment records of Dr. Hankins another chiropractor, Dr. Dwight McLellan, as well as a physician, Dr. Darshan Brar, which had not been provided to him when he wrote his report. Dr. Powell noted that when he conducted his assessment, he had been left with the impression that Mr. Gerlitz had suffered no low back pain prior to the motor vehicle accident, but the records of Dr. McLellan, Dr. Hankins and Dr. Brar indicate that he sought medical treatment for low back pain before the accident. Dr. Powell said that his impairment rating was based on the understanding that there was no low back pain prior to the accident. He said that he was troubled by the fact that this prior medical history had not been disclosed to him at the time of the assessment. Asked to give a revised impairment rating with regard to the treatment notes of Dr. McLellan, Dr. Hankins and Dr. Brar, Dr. Powell said that he really did not know if there was an increase in Mr. Gerlitz’s pain following the accident that would result in the assignment of any numerical value impairment rating.
(b) Dr. David McDougall
 An independent medical examination by Dr. McDougall of Mr. Gerlitz was commissioned by Bri Just of ING Western Union Insurance. Dr. McDougall is a specialist in Occupational Medicine and he works with Viewpoint Medical Assessment Services as an independent medical examiner.
 Dr. McDougall examined Mr. Gerlitz on June 24, 2002. At that time, Mr. Gerlitz described his symptoms as pain and tightness in his low back, with pressure in both hips and in the groin area, radiating to the back of both buttocks. He also complained of a paracervical spine neck pain in both the right and left side, radiating down to the thoracic area. He also indicated that he suffered from left and right shoulder “pulling.”
 On examination, Dr. McDougall noted that Mr. Gerlitz’s cervical spine showed a full range of motion, but he complained of tightness in the upper dorsal and lower cervical spine, both right and left, radiating to his shoulders. He also complained of stiffness and tightness in the mid to low back. The spine itself was normal to inspection and palpation.
 Dr. McDougall’s impression, based on his examination of Mr. Gerlitz and a review of his medical records, was that Mr. Gerlitz was not, as of June 24, 2002, at maximum medical improvement. He felt that the consequences of the accident were consistent with a Whiplash Associated Disorder Type I injury, and that since the accident Mr. Gerlitz had degenerated into a deconditioned high performance athlete with weight gain and inactivity. He recommended a more aggressive and active rehabilitation program with the goal of returning him to normal function, rather than simply alleviating symptoms. He felt that there was no medical reason to restrict Mr. Gerlitz from teaching martial arts at that time, though he did not recommend that Mr. Gerlitz return to 100% of his formal activities immediately.
 Dr. McDougall predicted no permanent clinical impairment or functional disability. He recommended that Mr. Gerlitz gradually reintroduce teaching martial arts over six to eight weeks and that he should institute a more aggressive physical training program. He recommended that Mr. Gerlitz should minimize any prescription medication. He predicted a full recovery.
IV. Economic Experts
Plaintiff’s Expert: Cara Brown
 Ms. Brown was retained by Mr. Gerlitz to prepare a report quantifying the impact of the accident and the resulting disability upon Mr. Gerlitz’s earning capacity. Her report is detailed and voluminous. She was qualified as an expert in the field of labour economics.
 Ms. Brown’s report indicates that, at the time of the accident, Mr. Gerlitz was the primary instructor and sole owner and shareholder of MAFC. Mr. Gerlitz had attended university for approximately four years, studying physical education but without obtaining a university degree. He has extensive training in martial arts. He opened MAFC in 1997. He had plans to expand the business with the launch of the Injury Institute, which would provide functional capacity assessments, chiropractic and other injury treatment. Ms. Brown based her assessment on the proposition that, as a result of his injuries, Mr. Gerlitz was unable to teach classes at MAFC for a period of at least one year, resulting in the cancellation of classes and a loss of members. She also based her assessment on the proposition that the accident delayed Mr. Gerlitz’s plans to expand MAFC with the addition of a weight training facility and the establishment of the Injury Institute. Mr. Gerlitz had intended to commence the necessary renovations to the MAFC facilities directly following the signing of the lease for new premises, which occurred on the day of the accident. He planned to complete those renovations in 45 to 60 days. Instead, renovations continued throughout 2004, although weight-training memberships became available at the end of 2003.
 Ms. Brown’s assessment begins with an overview of Mr. Gerlitz’s without-incident earning path. Mr. Gerlitz recorded essentially no income on his personal income tax returns for the period of 1994 - 2000, and only $18,191 for 2001 prior to the August 10 date of the accident. Mr. Gerlitz indicated to Ms. Brown that, while he was not earning income over this period, he was receiving payments from MAFC in the form of repayment of shareholder’s loans. Consequently, Mr. Gerlitz’s personal income tax returns are not particularly helpful in assessing his ability to earn prior to the accident.
 The total revenues of MAFC amounted to $24,827, $86,393, $115,634, $119,567 and $159,509 for 1997 to 2001, respectively. MAFC recorded a net loss in 1997, and net income for the years 1998 to 2001 was $15,404. The company posted a loss again in 1999 and 2000, a net income of $5,091 in 2001, and losses in 2002 and 2003.. In 2004, MAFC posted a net income of $34,167, rising to $218,199 in 2005. According to Ms. Brown’s report, the substantial increase in 2005 is the result of the completion of renovations on the weight training facility and the subsequent increase in memberships sold.
 According to Ms. Brown, some of the expenses recorded on the MAFC financial statements were incurred as a result of the accident. Mr. Gerlitz hired employees to help him with administrative duties. The expenses associated with hiring an assistant for administrative duties, as well as an instructor coordinator, are recorded as $10,787 in 2001, $40,323 in 2002, $102,128 in 2003, $22,829 in 2004 and $33,213 in 2005. Ms. Brown felt that these amounts might be understated because Mr. Gerlitz was also forced to hire additional instructors over this period, in particular in 2002, but in cross-examination it appeared that she relied entirely upon Mr. Gerlitz’s own reporting in determining that these costs were incurred as a result of the accident. She further stated that the business lost members as a result of Mr. Gerlitz’s absence as an instructor, and lost the ability to fully utilize the new premises he leased immediately before the accident and as such suffered a further, unquantified, loss because the additional expenses could not be offset by additional revenue from the expansion of the business.
10/30/2008 9:46pm, #23
- Join Date
- Mar 2006
 Ms. Brown looked to the MAFC client list and pointed out that the company lost members as a result of the accident. The membership of 337 in July 2001 dropped to 159 by January 2002, and further still to 129 in July 2002 before starting to recover. Membership rose again to by January 2003, to 295 by January 2004 and up to 388 and 557 in July 2004 and January 2005, respectively. This total figures can be further broken down into “program members”, who took classes at MAFC, and “weight training only” members. When so categorized, the figures indicate that the number of program members never fully recovered, and the increase in memberships beginning in January 2004 reflects the addition of 91 weight training only members, that figure rising to 171 and 285 in July 2004 and January 2005, respectively. Ms. Brown estimated a loss of revenue as a result of the loss in program memberships of $5040, $76,020, $54,810 and $25,830 for the years 2001 to 2005. She stated that this was a conservative estimate because she assumed that the number of program members would have remained consistent at 272, the 2005 figure which she assumed to reflect the “equilibrium number of members.”
 Based on the foregoing assumptions, according to Ms. Brown, Mr. Gerlitz’s total potential without accident income from MAFC was $39,109 in 2001, $65,901 in 2002, $68,896 in 2003, $91,592 in 2004 and $388,446 in 2005. For the purposes of her calculation of future losses from MAFC alone, Ms. Brown elected to use the average 2001 - 2005 income of $131,000 and the average 2004 - 2005 income of $240,000, as well as the 2005 income of $388,446.
 Ms. Brown also assessed the issue of potential lost income from the Injury Institute. She noted that Mr. Gerlitz leased premises adjacent to MAFC and that he had originally anticipated an opening for the business in 2002, and that as a result of his injury, Mr. Gerlitz was not able to open the facility until the fall of 2003, and then only to a limited extent. Rather than relying upon Mr. Gerlitz’s business plan for the Injury Institute, which forecast very substantial income immediately, Ms. Brown looked to statistical benchmarks for health practitioners, and her two alternative scenarios forecast an annual net income of $14,000 in 2006, rising to a peak of $47,500, or alternatively rising to a peak of $95,500. Ms. Brown felt these estimates to be conservative because they forecast a loss beginning in 2006 rather than 2002, and because they do not account for the advantage the Injury Institute may have obtained as a result of being an addition to an existing established business.
 The second stage of Ms. Brown’s assessment considers Mr. Gerlitz’s with-accident career path. Having reviewed medical documentation and Ms. Sackschewsky’s functional capacity evaluation, she proceeded on the basis that Mr. Gerlitz remains unable to instruct classes at MAFC to the extent he did prior to the incident, and that he had not been able to develop the Injury Institute to the extent that he had originally intended. She notes that it can be difficult to assess the effect of disability in a booming economy, where real income may rise notwithstanding the disability because of external factors. To assess the effect of disability, Ms. Brown utilizes the Health and Activity Limitation Survey (HALS) and the Participation and Activity Limitation Survey (PALS) databases, which have been compiled by Statistics Canada. These surveys assessed the effects of various degrees of disability upon a number of factors pertinent to the assessment of lost income, including unemployment, participation rate, hours worked per week and average employment income.
 After a thorough review of the HALS and PALS statistics, Ms. Brown applied reductions of 10%, 15%, 18% and 23% top Mr. Gerlitz’s without-incident income, to calculate his loss. These reductions are consistent with HALS and PALS data for mild or moderate impairments.
 Finally, Ms. Brown considered a number of contingencies and explained the economic assumptions underlying her projection of future loss of income. As Mr. Gerlitz is self-employed, she did not attribute any fringe benefits to his earnings, nor did she include an unemployment contingency. She did not attribute and real or nominal wage growth to MAFC earnings, though some wage growth is effectively built in to the calculation of income for the Injury Institute. Based on retirement data for self-employed individuals, she assumed Mr. Gerlitz would work to age 65. She calculated pre-judgment interest rates at 6.25%, 5.25%, 4.5%, 3.75%, 3.4% and 3.5% for the years 2001 to 2–6, respectively. Ms. Brown applied a discount rate of 3%.
 Based upon the foregoing, Ms. Brown quantified the loss of income associated with her various scenarios for Mr. Gerlitz. Assuming a without-incident annual income from MAFC of $131,000, the loss ranges from $664,000 to $980,500, depending on the effect of the disability on income (mild at 10%, to moderate at 23%). An annual income from MAFC of $240,000 yields a pre-trial and future loss in the range of $866,500 to $1,446,500. An annual income from MAFC of $388,500 yields a pre-trial and future loss of $1,143,000 to $2,082,000. Ms. Brown calculated pre-trial and future losses from the Injury Institute as ranging from $44,000 to $101,500, or as $65,000 to $149,000, depending upon whether earnings would peak at $47,500 or $95,500.
 Ms. Brown revisited these calculations at the request of counsel for Mr. Gerlitz, who asked her to assume that his planned expansion to MAFC would have been completed in 2002 had the accident not occurred. While not changing the figures for the Injury Institute, this would raise the most conservative estimate of loss from MAFC to $818,482, and the least conservative estimate to $3,143,082.
 Employing the most conservative assumptions, using Ms. Brown’s methodology, Mr. Gerlitz’s loss of income, past and future, would amount to $711,500. If one assumes the highest income projected by Ms. Brown, together with the most severe disability, the future lost income amounts to $3,292,082.
Defendant’s Expert: Darren Benning
 Darren Benning is currently the President of PETA Consultants Ltd. He prepared a report in rebuttal to Ms. Brown. In it, he raises several questions with respect to Ms. Brown’s methodology and estimates. Mr. Benning was qualified as an expert economist with a speciality in the assessment of damages. He said that he assumed, for the purpose of his analysis, that, as a result of the accident, Mr. Gerlitz was impaired and unable to teach martial arts classes.
 Mr. Benning notes that, while Ms. Brown has estimated a loss of revenue as a result of a decreased number of MAFC memberships sold, MAFC’s total revenues actually increased over the 2001 - 2002 time period, from $159,509 to $185,653. He points out that it is somewhat unusual to see the revenues rise, given that program memberships were presumably the primary source of revenue for MAFC. This pattern of higher revenue persists into 2003, increasing to $195,163. Mr. Benning points out that, based on Ms. Brown’s without-accident assumption of 272 program members, at $70 per membership, total revenues from memberships would amount to $171,360 per year, which is actually less than MAFC’s total revenues of $185,653 and $195,163 in 2001 and 2002, respectively. This was explained by Ms. Brown as a consequence of the conservatism of her approach and the renting out of portions of his premises over this period, but Mr. Benning pointed out that he had been provided with no documentation that would illuminate what MAFC earned in rental income.
 Mr. Benning also took issue with the increased expenses associated with hiring workers to replace Mr. Gerlitz, pointing out that it was unclear whether the costs associated with hiring an instructor coordinator and a manager could be solely attributed to the accident, and did not arise in part as a result of Mr. Gerlitz’s commitment to his expansion plans and increased need for someone to take on administrative tasks. Moreover, in his report Mr. Benning notes that Mr. Gerlitz was medically cleared to return to full administrative work by 2003, though the most significant cost for replacement workers is also recorded in 2003, in the amounts of $58,950 for a manager and $43,178 for an instructor coordinator. Mr. Benning also found this problematic because the instructor coordinator at this time was Ms. Gerlitz. Ms. Brown said that she was satisfied by Mr. Gerlitz’s explanation that these expenses were additional and would not have been incurred but for the accident, and that because Mr. Gerlitz was specially trained, he would not have left instructing for administrative work (thereby having to pay instructors) but for the accident. But that begs the question of whether, in that scenario, Mr. Gerlitz would have had to hire someone to do the administrative work he took on himself.
 With respect to the future income claim, Mr. Benning suggested that the HALS and PALS disability data may not be applicable to Mr. Gerlitz if he does not meet the criteria used to determine a mild or moderate disability. Moreover, he questioned whether it was appropriate to apply the disability reductions to business income in the manner Ms. Brown did, pointing out that some of the projected income from MAFC and the Injury Institute would in essence be derived from returns on capital rather than employment. He pointed out that if Mr. Gerlitz has suffered a reduction in his earning capacity, it would relate to his ability to teach high-level martial arts courses, not to the management and expansion of his business operations.
 With respect to Injury Institute income, Mr. Benning noted that MAFC financial statements included expenses for Injury Assessment and Rehabilitation, which suggest that certain Injury Institute income and expenses may be included in the MAFC financial statements. If that is the case, a separate accounting for Injury Institute income and expenses may amount to double counting.
 Finally, with respect to the revised report provided by Ms. Brown, which assumed additional income as a result of a completed MAFC expansion as of January 1, 2002, Mr. Benning pointed out that Ms. Brown’s estimate was based on income from 2004 and 2005, not on MAFC’s performance in late 2003 and 2004, when the expansion actually opened. He further pointed out that it was unusual to assume the accident caused a significant delay in renovations that would have yielded significant income when it was open to Mr. Gerlitz to hire a third party to complete the renovations.
10/30/2008 9:54pm, #24
- Join Date
- Mar 2006
1. Causation and Extent of Injury
 This was a low-impact collision. I accept Mr. Lee’s evidence that he had stopped behind Mr. Gerlitz at the intersection, took his foot of the brake, did not step on the gas, and essentially rolled into Mr. Gertliz’s vehicle. I accept the opinion of Mr MacInnis that Mr. Lee’s
2002 Subaru would most likely have reached a speed not exceeding 4.5 km/h before it struck Mr. Gerlitz’s vehicle. I accept Mr. Gerlitz’s evidence that he was reaching for papers on the floor of the passenger side of the vehicle when he was struck from behind. Mr. Gerlitz was not well positioned when the impact occurred, which accounts for the fact that he suffered any injury at all, considering the low level of impact.
 I accept Dr. Powell’s assessment of a 5% impairment, taking that as the lowest degree of impairment that could be assessed and, in Dr. Powell’s words, giving Mr. Gerlitz the benefit of the doubt with respect to his self-reporting. Dr. Schiffman’s notes indicate that Mr. Gerlitz was improving by October, 2001. Dr. McDougall felt that Mr. Gerlitz had not reached maximum medical improvement by June 24, 2002, but his prognosis was good, and Dr. McDougall diagnosed a WAD-I, essentially a low-grade whiplash injury, complicated somewhat by the fact that Mr. Gerlitz had become “deconditioned” at the time of his assessment.
 In short, it is my view that the accident was a low-impact collision that caused a whiplash-type injury in the mild to moderate range. An injury like this might have a very minor impact on most individuals, but as a martial arts instructor, Mr. Gerlitz was both more attuned and sensitive to his own physical condition and more reliant upon a higher than average degree of function. Mr. Gerlitz was affected more significantly than many other people would have been by what amounted to a relatively minor injury.
 The burden of proof with respect to damages varies depending on whether the loss occurred in the past or is anticipated to occur in the future. Past losses are proved on a balance of probabilities; future losses must be proved on a simple probabilities basis: Athey v. Leonati, 1996 CanLII 183 (S.C.C.),  3 S.C.R. 458, at para. 27.
(a) Impact of Injury on Mr. Gerlitz’s Income and Income Earning Capacity
 It was Dr. Schiffman’s view that Mr. Gerlitz might not, in the wake of the injury, be able to return to work as a martial arts instructor. Dr. Powell’s view was that the 5% impairment he assigned to Mr. Gerlitz meant that it would affect Mr. Gerlitz’s ability to teach martial arts, but not his ability to run his business. Dr. McDougall went further and predicted no clinical impairment or functional disability and recommended that Mr. Gerlitz pursue a more aggressive rehabilitation program. The most that can be taken from Ms. Sackschewsky’s report is that Mr. Gerlitz was unable, at that time and possibly in the future, to work as a martial arts fitness instructor. At present, Mr. Gerlitz does, in fact, engage in martial arts fitness instruction, though not in the capacity that he did prior to the accident.
 I accept that Mr. Gerlitz has not returned to his pre-accident condition, and that he may never do so. However, in my view the evidence establishes only a very minor degree of long-term impairment, and impairments will not translate into an ongoing loss of income in every case. The PALS and HALS statistics, and the manner in which Ms. Brown has applied them to Mr. Gerlitz, are problematic in this case. Mr. Gerlitz’s place in the HALS/PALS framework has been determined solely on the basis of his own self-reporting on a questionnaire. Moreover, I do not believe that the approach taken by Ms. Brown to assess Mr. Gerlitz’s future losses is appropriate in view of the fact that his income is earned as the owner of the MAFC and Injury Institute businesses as much as it is from actually teaching classes. The use of statistics such as the PALS and HALS may be appropriate as a supplement, or in the absence of evidence of how this particular injury has affected this particular plaintiff. In the present case, I do not find the statistics helpful. Mr. Gerlitz runs a very profitable enterprise. I accept that he no longer earns income from teaching high-impact martial arts classes in the manner he did before the accident. In this sense, he can no longer do what he did in the past. He now earns more through his ownership and management of MAFC and the Injury Institute. He has effectively replaced teaching lessons in high-impact martial arts with running a very successful martial arts and fitness business, to his material gain. It does not appear sensible to me to apply a disability percentage to Mr. Gerlitz’s future income, when that income is now derived not so much from teaching classes but essentially from his investment of capital and administrative and management expertise as owner of MAFC and the Injury Institute.
 Nor do I accept the proposition that Mr. Gerlitz’s inability to teach martial arts at his former capacity represents the ongoing loss of a capital asset that would otherwise be yielding income now and in the future, in view of his commitments to managing MAFC and the Injury Institute. Mr. Gerlitz works very long hours in his current capacity, managing his enterprises. More time spent teaching martial arts would mean less time devoted to managing his company, and likely the need to hire someone to replace him. It is apparent from the performance of MAFC and the Injury Institute before and after the accident that Mr. Gerlitz’s time is very profitably spent managing his companies. I simply do not accept that if Mr. Gerlitz was devoting more of his time to teaching martial arts, as in the past, he would be earning more income.
 I appreciate that future losses may be proved on a simple probabilities basis. There is no evidence which I accept that there is a probability that Mr. Gerlitz’s injuries will result in a future loss of income.
 I accept that, for a period of time after the accident, Mr. Gerlitz was unable to teach martial arts classes, and I accept that, for a period of time after the accident, MAFC lost members as a result. I also accept that it was reasonable, for a period of time after the accident, for Mr. Gerlitz to pay someone to replace him. Mr. Gerlitz should be compensated for the income lost over this time, and expenses that he can prove were incurred as a result of the injury. By the beginning of 2003, at the latest, Mr. Gerlitz had successfully redirected his energies. Changing the focus of MAFC from high-impact martial arts and fighting to weight training and other forms of fitness training of broader appeal was a mitigation strategy that succeeded very well.
 I do not accept the proposition that Mr. Gerlitz’s injuries resulted in a startup delay for the Injury Institute. I do not believe that Mr. Gerlitz’s plans for the Injury Institute were well formed, if formed at all, at the time of the accident. I note, in this regard, that when Mr. Gerlitz had discussions with Dr. Hankins about the Injury Institute, as late as late summer, or early fall, of 2002, he did not provide him with, or point to, the business plan that Mr. Gerlitz says he had prepared prior to the accident. In fact, Dr. Hankins was never provided with the business plan. I note that the business plan is undated, and I note that the plan itself appears to describe aspects of MAFC that were not in place prior to the accident. I do not believe that the “yoga, meditation and energy work” that are described in the business plan describe elements of programs available at MAFC prior to the accident as Mr. Gerlitz testified. This is more descriptive of aspects of programs that Ms. Gerlitz brought to MAFC. In my view, the plan for the Injury Institute came together after the accident, and more likely, after Mr. Gerlitz met Ms. Sackschewsky and saw the potential to bring their respective disciplines together. For this reason, and because the implementation of the business plan for the Injury Institute should not, in my view, have been affected by the injury suffered by Mr. Gerlitz, I find that Mr. Gerlitz has suffered no past or future loss of income arising out of the Injury Institute.
 In the result, I would assess a past loss of income, arising from a loss of memberships in MAFC in the years 2001 and 2002, in the amount of $40,000. Ms. Brown’s report assessed the loss from membership sales over this period in the amount of $81,060, but in my view it is appropriate to apply a significant discount to this figure to account for Mr. Gerlitz’s mitigation by renting out a portion of his premises. In this regard, it is important to reiterate that MAFC gross revenues actually rose over this period, despite what appears to have been a decline in membership sales. The only explanation offered for a rise in revenue at the same time as a decline in membership sales was rental income though, unfortunately, that income was not documented.
 After 2002, I find that Mr. Gerlitz’s efforts were directed at management of MAFC and the Injury Institute, and the new business model that he implemented with the help of Ms. Gerlitz had begun to pay off. I do not accept that Mr. Gerlitz suffered further economic losses at that point. Nor do I accept that costs for an instructor coordinator or administrator are appropriately claimed as damages after 2002. At that point, Mr. Gerlitz was in the process of a significant expansion and the evidence does not satisfy me that these are incremental expenses due to the accident, as opposed to ordinary expenses associated with running an increasingly large and successful enterprise.
 I note that Ms. Cooper’s invoices as introduced into evidence by Mr. Gerlitz are dated from August 13, 2001, two days after the accident and on the very day that Mr. Gerlitz first saw his family doctor. I find it unlikely, in view of the timing, that Ms. Cooper was hired for the sole purpose of assisting Mr. Gerlitz because of his injuries. Ms. Cooper was not called to give evidence that would support this element of the claim. I accept that Mr. Gerlitz was limited in the work he could do at MAFC for a period and that some of Ms. Cooper’s work was incremental as a result of Mr. Gerlitz’s injury. However, the timing of the invoices raises some doubt that all this expense could be attributed to the accident.
 Ms. Brown’s report indicates that $40,323 was paid by Mr. Gerlitz as an incremental expense for management fees for 2002. Aside from the MAFC financial statements, there is no supporting documentation for the bulk of this claim for 2002. On the whole, the medical evidence suggests that Mr. Gerlitz was able to resume full management responsibilities, if not high-impact martial arts training, by the middle of the year 2002. I do not accept that the entire $40,323 expense for management fees for 2002, or the $13,437.75 claimed for 2001, is incremental as a result of the accident. Unfortunately, in the absence of evidence from Ms. Cooper or better documentation, there is an element of arbitrariness to the deduction to be made. In view of my conclusion that Mr. Gerlitz was medically able to resume management of his business by the middle of 2002, I allow $28,000 in management expenses for the year 2002. The total sum for lost business income plus additional expenses, therefore, is $68,000.
(b) General Damages
 The purpose of general damages is not to restore Mr. Gerlitz to his pre-accident condition. An award of general damages is made to compensate for loss of pleasure and enjoyment of life. In coming to the appropriate award, the Court must take account of a number of factors, including the limits imposed by the Supreme Court, public policy, the severity and duration of the injuries, the degree of impairment the injuries have imposed, the prognosis and potential for treatment and the effect of the injuries on the plaintiff’s day to day life.
 No two plaintiffs suffer identical injuries, but prior decisions are valuable and should be taken into account in determining the appropriate scale of general damages.
 As a result of the accident, Mr. Gerlitz no longer teaches martial arts at his former capacity. This was obviously a meaningful and emotionally rewarding aspect of Mr. Gerlitz’s life. I accept that Mr. Gerlitz continues to suffer from flare-ups, though from the medical evidence and the evidence concerning the severity of impact, it is difficult to accept the proposition that he suffers from ongoing, disabling pain.
 I have reviewed the authorities provided to me by the parties. Mr. Gerlitz relies upon Henhoeffer v. Lin,  A.J. No. 501 (Q.B.), Lynne v. Taylor 2004 ABQB 494 (CanLII), (2004), 39 Alta. L.R. (4th) 82 (Q.B.), Sluth v. Kostyniuk, 2004 ABQB 917 (CanLII), 2004 ABQB 917, and Dyck v. Wilkinson, 2004 ABQB 731 (CanLII), 2004 ABQB 731. The Defendants rely upon Pettipas v. Klingbeil.  A.J. No. 165 (Q.B.), Faltous v. McKinley,  A.J. No.1414 (Q.B.), and Hanson v. Heuchert,  A.J. No. 53 (Q.B.).
 The injuries suffered by the plaintiff in Henhoeffer are not thoroughly described in that judgment, though it appears they were whiplash-type injuries of a mild to moderate nature, resulting in some permanent impairment and an inability on the part of the plaintiff to return to his occupation as an upholsterer and limitations on his employability. Lutz J. awarded $45,000 in general damages. The award in Lynne was $60,000. The plaintiff in that case suffered an exacerbation of a pre-existing shoulder injury and a hip injury, as well as upper back, neck and lower back pain, and an aggravation of a pre-existing jaw injury. In Sluth, Rooke J. assessed damages on the basis of a soft tissue injury mild in severity but of differing lengths, with most complaints resolved within 18 months, but with residual, ongoing low back pain as the result of a herniated disc. Rooke J. awarded $40,000 in general damages, noting that, but for the herniated disc, he would have awarded $20,000. In Dyck, Rooke J. awarded $30,000 in general damages after finding that the plaintiff suffered a moderate cervical and lumbar back strain, and some bursitis of the hip, that essentially resolved within 18 months of the accident, though he also found that the plaintiff would have some continuing discomfort periodically in the future.
 Not surprisingly, the cases cited by the Defendants suggest a lower range for general damages. In Pettipas, Hutchinson J. found that the male plaintiff suffered severe headaches, a stiff neck and sore left shoulder in the wake of the accident, but that he should have recovered from his injuries within 18 months, and he awarded $14,000. Wittmann A.C.J. awarded $18,000 in Faltous, where the plaintiff was found to have suffered a mild soft tissue injury involving his shoulder, neck and index finger on his left hand that had largely resolved within two and a half years. In Hanson, the plaintiff suffered a mild to moderate whiplash injury with periodic neck pain that persisted to the date of trial, though her injuries never resulted in a loss of work. The award in that case was $18,000.
 These prior authorities are helpful, but the assessment of damages must follow a principled approach that considers the plaintiff’s individual situation. While the injury suffered by Mr. Gerlitz is not a severe one, and on all of the evidence appears to be most appropriately categorized as a whiplash in the mild to moderate range, I find that it has had a disproportionate effect upon him because it has, to some extent, limited his ability to pursue what has quite clearly been his lifelong interest in high-impact martial arts. Taking this into account, noting that Dr. Powell assessed a 5% impairment (though noting, also, Dr. Powell’s caveats with respect to Mr. Gerlitz’s pre-accident condition), and noting the deconditioning that followed the accident (which I do not find to have been a failure to mitigate) and Mr. Gerlitz’s attendant distress, it is my view that general damages in the amount of $35,000 are appropriate. I emphasize that what weighs most heavily in assigning this significant figure is the fact that Mr. Gerlitz has dedicated much of his life to practising martial arts, and the consensus view that Mr. Gerlitz is now somewhat restricted in doing so as he has done in the past.
(c) Special Damages
 Mr. Gerlitz submitted a list of receipts in respect of special damages in the total sum of $1,099.46. Counsel for the Defendants did not take issue with the sum claimed and Mr. Gerlitz is awarded $1,099.46.
 Mr. Gerlitz suffered a mild to moderate whiplash injury as a result of a low impact motor vehicle collision, which was the fault of the defendant, Tsai Hou Lee. Because of Mr. Gerlitz’s position in the vehicle at the time of the collision, and because of the nature of his occupation as a highly skilled martial arts trainer, the impact of this relatively minor incident was somewhat more significant than might otherwise have been expected. Consequently, he is awarded damages as follows:
General Damages: $35,000
Lost Income and increased business expenses: $68,000
Special Damages: $1,099.46.
 I trust that the parties are able to come to an agreement with respect to pre-judgment interest. In the event that the parties are unable to agree with respect to costs, they may bring the matter before me within 90 days of this judgment.
Heard from the 4th day of December, 2006 to the 14th day of December, 2006
Dated at the City of Calgary, Alberta this 25th day of July, 2007
4/23/2009 2:16pm, #25
- Join Date
- Apr 2009
this is a load of crap whatever christopher gerlitz says he made and teaches is a fraud and is a total rip. dont fall for it
4/23/2009 2:25pm, #26
5/01/2010 7:01pm, #27
- Join Date
- Apr 2010
- Calgary, Alberta
- Kung Fu
Christopher Gerlitz is a complete and utter fraud and a coward. He signs up students, has them complete numerous non-MA-related tasks in exchange for promised free membership renewals and cash payment, then skips out when it's time to pay the bill.
In my case, he not only failed to pay me for running his gym for a week, but when I asked about it he flipped out and kicked me out of the school. Cancelled my PREPAID membership 10 weeks early and refuses to reimburse me for my time.
Not to mention that every call I received while running the gym was from a creditor or former student with whom he did the exact same thing.
I, along with other former students, have consulted a lawyer and are proceeding to sue him for our membership dues and all other moneys owed.
MAFC is a joke and I'll be amazed if that loser hasn't run it into the ground in the next six months.
7/20/2010 12:11pm, #28
- Join Date
- Sep 2008
- Kung Fu
If you are a member of his gym, run away very fast and cancel your membership. But before you tell them that, cancel your credit card.
This man is that which he fears - a human reptile.
6/08/2011 10:07pm, #29
- Join Date
- Jun 2011
- Mo Woye Fat Kung Fu
I have been a student of Sensei Gerlitz for almost 3 years now. True, he is not God but he is the best damn teacher, particularly in the weapons I've had. He is old school. He welcomes all to his style of learning. We've had many...drug users(some that can't even remember the last 5 years of their life!), divorcee's, travelers from afar and the ego-maniac skeptics and yes...they have all been grateful for their teachings at the Dojo. Sensei Gerlitz teaches you to know your art, know your enemy and most importantly, know yourself. Many become good martial art students but few become masters because they cannot look at themselves. Instead they become bitter, uninformed, ungrateful and disrespectful students. I have seen all students who leave the Dojo, willingly or not, return humbled to Sensei Gerlitz. He holds no grudges, only guidance as any true Sensei would. The only way to know, is through experience. Those who cannot think for themselves, then please do not come to my Dojo. Those who can, I dare you! It is unfortunate we live in a society this is based on misery and people feel the need to post when they are pissed. I am humbled by this man and have personally learned more then what I paid for. What people fail to see in Sensei Gerlitz is his love of the art and the love of the student who wants to learn. After I joined the Dojo, I lost my job and Sensei Gerlitz still allowed me to train without paying my dues. He allowed me to train in his Dojo without paying for an entire year and has since, not asked me to pay for that year. Say what you will, but I have learned that only an empty cup can be filled.
6/08/2011 10:31pm, #30
Sensei Gerlitz teaches you to know your art, know your enemy and most importantly, know yourself. Many become good martial art students but few become masters because they cannot look at themselves. Instead they become bitter, uninformed, ungrateful and disrespectful students. I have seen all students who leave the Dojo, willingly or not, return humbled to Sensei Gerlitz. He holds no grudges, only guidance as any true Sensei would. The only way to know, is through experience. Those who cannot think for themselves, then please do not come to my Dojo. Those who can, I dare you! It is unfortunate we live in a society this is based on misery and people feel the need to post when they are pissed. I am humbled by this man and have personally learned more then what I paid for. What people fail to see in Sensei Gerlitz is his love of the art and the love of the student who wants to learn. After I joined the Dojo, I lost my job and Sensei Gerlitz still allowed me to train without paying my dues. He allowed me to train in his Dojo without paying for an entire year and has since, not asked me to pay for that year. Say what you will, but I have learned that only an empty cup can be filled.