AFFIDAVIT OF JAMES HUNTER QB No. 2764 of A.D., 1990

AFFIDAVIT
I, James Hunter, of the City of Saskatoon, in the Province of Saskatchewan, MAKE OATH AND SAY AS FOLLOWS:

1. I am the Plaintiff in Queen's Bench No. 3369 of A.D., 1987, Plaintiff by Counter Claim in Queen's Bench No. 2764 of A.D., 1990 and as such, have personal knowledge of the facts and matters hereinafter deposed to.

2. Mr. Holgate filed three Claims asking for the same relief from Siemens Transport for wrongful dismissal, Manning for personal injury and Eldorado for defamation. At the same time he filed the Claim against Eldorado, Mr. Holgate, amended the Claim against Siemens to include punitive damages.

3. On or about November 1989, I was informed by Mr. Holgate that Siemens Transport was refusing to sign a Joint Request for Trial claiming that the Defendant, S.G.I.(Lenard Manning), was liable for the relief as claimed. Mr. Holgate said that he would be filing a Motion asking that Siemens Transport sign a Joint Request for Trial. I asked him countless times over the next approximately 6 months about the motion and was never told that he did not file the Motion. I was told that: it takes time, that there was some difficulty with it, that he was busy. Just before I requested a statement of account from him in May of 1990, I again asked about the Siemens Motion that he was going to file and was told that he would not file it unless I paid the disbursements to date. I told him that I had no way of paying the disbursements and this was not a part of our agreement. I asked him why he did not ask for disbursements in November, 1989 instead of doing nothing but lying to me for 6 months. I do not believe that he ever intended to proceed with a Motion. In November, 1989 the plaintiff requested that I allow him to take out a second mortgage on my home and I refused. Mr. Holgate then asked about other assets. I told Mr. Holgate that I behind in mortgage payments again and was trying to sell the house and that I had sold most of my assets to live on over the past 3 years. At the time of the accident I was about three years away from paying off my home with no other liability with the exception of a judgement order. I sold this house and used part of the money as a down payment on a house with less than half the monthly expenses as the previous one. I used the remainder of the money and the small amount I made from bookkeeping to pay the monthly expenses.

4. On or about December 6, 1989 I told Mr. Holgate that I wanted to proceed with the defamation case by myself as there was no activity on his part. Mr. Holgate agreed to this and said that he could go back on record at a later date if needed and he filed a Notice of Withdrawal. I filed a Notice of Motion returnable on March 20, 1990, asking for an Order that a date be set for a pretrial conference. I filed the motion because Mr. Holgate told me that the defendant Eldorado had canceled the discovery of August 14, 1989 and again on September 6, 1989, and would not provide undertakings to him. I have attached the affidavit of Garry Young filed in opposition to my motion to this my affidavit and marked it Exhibit "A". Mr. Young has in paragraph 2 and 3 stated that it took Mr. Holgate over 2 months to return a Notice of Change of Solicitors to him. In paragraph 6, Mr. Young says "Mr. Holgate telephoned me and indicated that Mr. Hunter would not, for the time being, be proceeding with his suit against the Defendant. Accordingly, he indicated that he did not "wish me to proceed with the Discovery of Mr. Hunter on September 6." Mr. Young has in a letter marked Exhibit "E" attached to his affidavit stated, "I wish to indicate that I was under the understanding that there was very little likelihood of your proceeding with the lawsuit against Eldorado Resources Ltd." In a letter marked Exhibit "I" attached to his affidavit Mr. Young says "Earlier delays with respect to this matter occurred because of your apparent indecision as to whether you would be proceeding against Eldorado." I called Mr. Young and apologized to him for my Motion. I told him that I was not aware that it was Mr. Holgate holding up the proceedings and would withdraw my motion. At the discovery I was asked for medical reports as I expected. I expected that they would refuse to sign a Joint Request for Trial claiming that Siemens Transport and S.G.I. were responsible, as the relief asked for was also claimed from them.

5. In May 1990 I received from Mr. Holgate a promissory note for $5000.00 to sign, instructions in regards to Siemens Transport, instructions in regards to S.G.I., agreements on the terms upon which fees and disbursements were to be paid with respect to Siemens and S.G.I. I have attached and marked them Exhibits "B", "C", "D", and "E" respectively. I did not sign them. I felt that Mr. Holgate was in trouble with the cases, I knew from my doctor that he had not paid for disbursements. I felt that if I signed I would have $5000.00 but in doing so I was giving Mr. Holgate what he wanted and he made that clear in the two instructions. He intended to bail out at my expense. He was in trouble within one year with my cases and unable to proceed because of a lack of experience and money. He did little or nothing for the following two years. I believe that he has taken cases that he is not qualified to take to trial with the intention of settling them for his own benefit.

6. In the S.G.I. file held by Mr. Holgates is a letter to D. Buhler at S.G.I. from Mr. Holgate, dated June 22, 1989. Mr. Holgate says " I have your letters of January 6, 1989 and September 12, 1988. I apologize for not replying to these." Mr. Holgate had not answered two letters from S.G.I. and had apologised for this over 9 months after he received the first letter.

7. In the Siemens file held by Mr. Holgates is a letter to Mr. Holgate from the lawyer for Siemens Transport. The lawyer is saying that they had not heard from Mr. Holgate "for some time" and is asking if I intend to proceed with my claim. The letter goes on asking for undertakings. The undertakings were not supplied and they reopened the discovery to obtain them.

8. I met David Kaiser through a mutual interest in old English motor bikes and asked him to handle the sale of my house for me. I also told Mr. Kaiser about the three cases and he suggested that I continue with them. Mr. Kaiser asked Mr. Holgate to send him the files so he could look them over. Mr. Holgate was in agreement if the files were returned to him. I had no money to pay Mr. Kaiser but he had admired an old English bike that I had in storage. I did not see any point in keeping a bike that I am unable to ride and I granted a security interest in my bike to Mr. Kaiser. I have attached the security interest agreement dated September 20, 1990 to this affidavit and marked it Exhibit "F".

9. After the house was sold I was informed by Mr. Kaiser that Mr. Holgate had served him with a Garnishee Summons in the amount of $5425.48. Mr. Kaiser sent the total amount of $5569.42 from the sale of my house to the Court Registrar. Mr. Kaiser gave me a copy of Mr. Holgate's Statement of Claim and I filed a Statement of Defence and Counter Claim. I filed a Notice of Motion and affidavit asking for an order under Rule 173 that the Claim be struck out. On October 29, 1990 I asked for and received from Mr. Holgate at his office the Affidavit of Mr. Holgate dated October 29, 1990 hereto attached to this my affidavit and marked Exhibit "G". I believe that Mr. Holgate gave Justice Kyle a different affidavit in court on October 30. In paragraph 3 of Exhibit "G" Mr. Holgate admits that he asked for the same relief in each of the actions. My Motion was heard by Justice L.A. Kyle and although I did not fully understand the proceedings he ordered Mr. Holgate to file the material from the three cases and postponed the motion until November 1, 1990. On November 1, Justice Kyle was going to dismiss Mr. Holgate's Claim and Mr. Holgate stated "but he owes me for the disbursements." Justice Kyle agreed and did not dismiss his claim. He ordered all of my money returned to me. The same day I paid Mr. Holgate $1225.00 being the amount he claimed I owed for the disbursements. I have attached the receipt numbered T34 and marked it Exhibit "H". It is dated November 1 and says - payment of all disbursements re: Siemens, Eldorado and S.G.I.(Manning) and is signed by Mr. Holgate. I asked Mr. Holgate for my files and he refused to give them to me saying that he would only give me what I had paid for. There was no dispute in respect to my owing Mr. Holgate for the disbursements in the Statement of Defence or my affidavit. In paragraph 6 of my affidavit dated October 25, 1990, hereto attached and marked Exhibit "I" I stated, "the plaintiff is entitled to disbursements as he agreed to in the letters only.". Mr. Holgate said to Justice Kyle on November 1 "but he owes me for the disbursements." Within the past month I received a phone call from Mr. Laing and he said that if I paid Mr. Holgate $1000.00 he would withdraw his claim and return the files to me. On one occasion when I saw Mr. Kaiser in respect to the files he suggested that I pay something to Mr. Holgate and indicated that he felt sorry for him. With the payment to Mr. Holgate of the disbursements Mr. Holgate ceased to have any claim against me. If he did not agree with the decision of Justice Kyle he should have appealed to the court, not to his fellow lawyers. I say that I have paid Mr. Holgate in full and it is not a up to the lawyers to decide that I owe him $1000.00. The decision was made by Justice Kyle on November 1, 1990.

10. I Continued with the three cases. I contacted S.G.I and they had not been told about the other cases by Mr. Holgate. I asked Mr. Kaiser in September 1991 to act on my behalf with respect to S.G.I. I had only received from Mr. Holgate the disbursements that I paid for and did not think that Mr. Kaiser would need anything else in the files as Mr. Holgate had done nothing else. In September 1991 at my discovery by S.G.I. Mr. Stevenson showed me a document that S.G.I. received from Mr. Holgate in March 1990. The document titled - loss assessment of James Hunter - claimed a total loss of $145,395.00. I was not told of this document by Mr. Holgate. I find it hard to believe that five years after the accident I am having the Defendant enter exhibits supplied to them by my attorney that are untrue, confusing and nothing more than a desperate attempt to obtain money from the Defendant by a broke attorney. Someone should ask Mr. Buhler from S.G.I. if he made an offer to Mr. Holgate to settle prior to Mr. Holgate offering me $5000.00 and a request to sign instructions giving him full power to settle the claim for any amount under $15,000 that appears reasonable to him. I can not prove that an offer was made between March and May of 1990, but if it was I would be safe in saying that it is not legal work that Mr. Holgate does.

11. After the discovery Mr. Kaiser asked me for the Siemens and Eldorado material. He informed me that a claim for punitive damages was not worth anything. Also that any money received from U.I.C. had to be paid back from money received from Siemens Transport and amending the claim against Siemens Transport to include punitive damages was a waste of time. He told me to expect a pretrial hearing within about three months. He asked me to see my doctor for a checkup and to let the doctor know that he would be writing him a letter re: a legal medical report. Four days later on September 16 I had this done. On October 16 1991 Dr. Bayly ask me "where is the letter from your lawyer." It took me another four days to get Mr. Kaiser on the phone to ask him to write the letter. Dr. Bayly received the letter dated October 23. If it takes over a month to write a letter, there was not going to be a pretrial hearing within 3 months!

12. In January 1992 I asked Mr. Kaiser how he was making out and he said he was having difficulty with Mr. Gillis (Siemens). I received the same answer to the same question over four years ago from Mr. Holgate. I asked for and received a bill for $2646.38 from Mr. Kaiser. I want to make it clear that I believe that Mr. Kaiser has done his best with a difficult situation. He had to work without the files from Mr. Holgate and put up with the likes of the loss assessment popping up. He has been honest and straight forward with me. The security interest agreement exhibit "F " states that "in respect of legal fees and disbursements owing or in the future to be owed by me to the said David J. Kaiser". Mr. Kaiser has to take the motor bike as full payment of his bill - there is nothing else. If Mr. Kaiser is inclined to feel sorry for Mr. Holgate he can let him ride the bike on alternate weekends.

13. Three years prior to the car accident I was having trouble with my back while driving. I consulted a doctor and he told me I had a mild scoliosis and that I possibly had it all my life and was now giving me problems as I was getting older.

14. After the car accident in September 1986 I kept working, I did a lot less work but I kept working. I consulted my doctor and with medication I continued to get worse. I consulted my chiropractor and with his help I was able to keep working. I did leg exercises and my back got worse. I did back exercises and my hips, legs and feet got worse. It was the same with my neck, shoulders, arms and hands. If I overexercised I could not get out of bed the next day. All in all, it was not a good winter. The doctor said take it easy and gave me medication to relax muscles and help me sleep.

15. In the spring of 1987 I was fired from my job with Siemens Transport. I attended back classes through the chiropractor and the Y.M.C.A. to learn how and what exercises to do. I started walking and my legs were stronger but the pain was worse. It was the same with my arms and back. The more I did the stronger I became but I was in more pain the next day. I would take the medication the next day and I was back to where I started. My legs were stronger but I continued to have muscle seizures and spasms that set me back. My doctor said it was the scoliosis and referred me to a surgeon. The chiropractor said it was the car accident. I thought what the hell does a chiropractor know and I requested a referral to a rheumatologist as I thought it had to be some form of arthritis.

16. When I saw the rheumatologist in September, 1987 I did not tell her about the car accident as I thought it had to be arthritis and the doctor did not tell her as he thought it was scoliosis. The "puzzling condition" would have been discovered here if the rheumatologist had been told of the car accident. The rheumatologist thought it was degenerative arthritis. She wanted me to see a surgeon to see if some decompression could be done. I believe I had an appointment with the surgeon in under a month's time and I almost didn't go. The following week the doctor asked me what I thought of her and I told him that I thought she was wrong. Two months before I had seen the doctor I was walking knee deep up current in the Saskatchewan River. I joined a health club and enlisted the help of a massage therapist to show me how to do a full range of exercises in the pool. I improved and what I mean by improving is that when I had a setback it took me less time and pain to get back to where I had been. I stopped taking medications that relaxed muscles. I started massage therapy twice a week and started lifting weights. I was at the health club from 3 to 6 hours per day. By the time I saw the surgeon I had improved. I told him what I was doing at the club and he advised me to continue. I asked him if the pain could be related to the car accident and he said "what car accident". In the spring the doctor put me on a medication called prednisone and I painted the outside of my home by myself in three days. He would not leave me on prednisone but I had five days without pain. S.G.I stopped paying for the massage therapist and health club and I used the river. By mid summer I could walk up river against the current in waist deep water. I tried to get into the W.C.B. rehabilitation centre in Regina but they did not accept non W.C.B cases. I contacted Dr. Huang at the Shaughnessy Hospital in Vancouver in hopes of attending his pain centre. The hospital costs alone were over $2000.00 and that ended my thinking about Vancouver. The doctor again prescribed prednisone pills with instructions to only take 1 pill a day. This had no effect. I took ten pills a day over the next ten days and drove a transport truck to Calgary and back putting $300.00 cash in my pocket. I used some of this money to pay a three month membership at the health club. I could not afford the massage therapist.

17. I met a women with scoliosis who had a spinal cord implant done by a surgeon in Regina. She described former symptoms that were the same as I was experiencing. I saw her doctor and he referred me to the surgeon in Regina. I told my doctor about the referral and he asked me to request a copy of his report be sent to him. I wrote to the surgeon in Regina explaining who my doctor was if he needed medical information and x-rays. The chiropractor, Dr. Osiowy, said in a medical report dated May 4, 1989, "I would think that the prognosis is not very good for this gentleman. I say this due to the fact that he has suffered from chronic pain for such a long time now. I am certain that Mr. Hunter will suffer permanent disability and I would rate him objectively at perhaps 50 to 60 percent without much promise for improvement above this percentage." Dr. Osiowy is wrong. If this was true then I would not have been able to walk up river, waist-deep, in the current of the Saskatchewan river almost daily for two months. In November 1989 I saw the surgeon in Regina. He asked me for my file and x-rays. He got upset when I told him that I do not walk around with my files and x-rays in my back pocket. He had none of my history or x-rays nor had he contacted my doctor to obtain them. Eight months I waited for this.

18. I started having continuous muscles spasm in my shoulders and neck. I changed doctors when he suggested that I take valium and muscle relaxants to relieve them. He wrote a letter to my new doctor at the University Hospital wishing him success in the management of this somewhat "puzzling condition". I attended a back class at the University Hospital that included relaxation exercises and this helped. I returned to see the rheumatologist Dr. Markland in May, 1990. She expressed a concern that she was not told of the car accident when I saw her in September, 1987. Dr. Markland says in a medical report dated May 30. 1990 "My final opinion in this man is that he has had a whiplash. He does have a pre-existing scoliosis. He has intermittent thoracic outlet syndrome which I do feel is related to both his scoliosis and intermittent muscle spasm. Tension and fibrositis noted since his whiplash. This is not of serious consequences. That is he will not lose the neurovascular supply to his arm on a permanent basis. He has a degree of fibromyalgia and the treatments for this are multiple. None of them are wholly successful. They include medications, education and a vigorous exercise regime which must be done on a regular basis and generally life-long."

19. In June, 1990 I saw Dr. Spooner at the University Hospital with seized muscles and pain as a result of taking medication that kept me out of the river and from doing my exercises. He told me that the pain was caused by fibromyalgia as a result of the car accident and that he had similar patients all taking medication. I was not going to be one of them and I again changed doctors.

20. In October, 1990 I went on prednisone to enable me to quickly file a motion to keep my lawyer from taking the last money I had.

21. The spring of 1991 I started peddling an old style one speed bike around town. I would peddle as hard as I could into the wind until the pain stopped me, hang onto a power pole until the pain eased and let the wind blow me home. My legs continued to peddle the bike all night, and every night for the next two months. I advanced to the paved grid roads around town within a month where I would have to let the bike coast to a stop in the ditch. Sort of like-peddle till you drop. By the end of summer I could ride the bike until I got bored. I gain in summer and lose in winter.


22. The cure is not in a bottle of pills, it is 23 kilometers east of where I live in a health club. I do not have the bus fare to get there Never mind the cost of the club and massage therapist.

23. Dr. Reilly in a letter dated November 23, 1987 said "he should continue doing the type of activities and exercises that he has been doing up until now." Dr. Bayly, in a medical report dated December 2, 1991 says, "It is my opinion that James falls into the category of fibrositis fibromyalgia. This typically is a person with some obsessional personality characteristics, is a busy, tired, happy, person yet suffering from pain and stiffness and complaining of insomnia. This classification of fibromyalgia is thought to give the muscle spasm and the pain. In summary, Mr. Hunter has suffered a soft tissue injury as a result of his motor vehicle accident, since that time he has had a long history of being reviewed by a number of physicians, a number of treatment modalities have been tried and he is still left with residual pain and discomfort and disability. It is my opinion that he is most likely suffering from fibrositis fibromyalgia and that this, although not as serious in the sense of creating neurological disturbances, is none the less a very debilitating condition which has manifested its symptoms as we have described above. I do believe that the prognosis is good, and that the medical literature indicates that this condition although tends to be chronic, does slowly regress with time. A review of the initial x-rays and his subsequent x-rays reveal that there is no bone damage, there is no indication for orthopedic or neurosurgical intervention, physiotherapy and medication are the main stay of his treatment and he will undoubtedly continue these for years to come. I do believe that as one continues to work and exercise these painful muscles, the muscles will strengthen and the demineralization noted in his bone will reverse, and the bones will be stronger and consequently he will eventually have less discomfort. The old saying with no pain no gain certainly applies, and Mr. Hunter needs to continue to be active and do as much as his condition will allow. We now have a great deal of evidence that indicates people who continue to exercise and keep active in spite of their pain do, in the long term, much better. Dr. Bayly says that "physiotherapy and medication are the main stay of his treatment and he will undoubtedly continue these for years to come." In case no one has noticed its been over five years since the accident. If I could have done for my legs in the winter what I did in summer my legs would not be "much better", I would be able to ski again now. I no longer need physiotherapy on a regular bases. Over the past 5 years I have learned the how, what, when, why and where to exercise. With the exception of prednisone I have been medication free for the past year. After five years I have a doctor that does not have a pill bottle in his hand, and that is half the battle. I have some facts here from the MCIC records. The first year after the accident I had forty two chiropractic treatments. The second eighteen, the third twelve, the forth ten and the fifth one.

24. Dr. Osiowy says in his report that he treated me "in a symptomatic role." He is wrong again. He is the only doctor that has helped. This winter I have not had a left side hip or calf seizure, this means that I will not be needing the power pole to hold on to this coming spring and it takes the permanent out of permanent disability. I need the services of a massage therapist, a pool, a weight room, the means to get to them and an assurance that payment for them will not be stopped again just when I am starting to improve. After five years of pain I should not have to wait for the ice to melt off the river. Over the past 5 years I have selfeducated myself in the use and operation of computers, bookkeeping, and inventory control and I am turning down employment because I can not do it. I am not just saying I can not do it, I tried. I know that I am not going to be able to sit working at a computer eight hours a day, or bookkeeping or counting nuts and bolts but if you combine the knowledge of the above with my past experience, attitude and commitment then the selfemployment opportunities are endless.

25. There is no doubt in my mind that I am in this pain solely as a result of the car accident. I do not believe that it can be argued that the fibrositis fibromyalgia is a result of the scoliosis, or from any other cause other than the car accident. I had a mild scoliosis before the accident and I have a mild scoliosis now, the only difference being that after the accident it took me longer to get it under control and it is harder now to keep it that way. If after three months at the health club, I can supply a physician's progress report to S.G.I. showing a marked improvement then who cares what caused it. I have worked at this pain for the past five years only to find myself unable to continue because of a lack of funds. I have a referral for physiotherapy at the health spa in Manitou Beach from Dr. Bayly dated January 17, 1992. I have attached it marked exhibit "J" it is no good to me if I can not afford to continue to get there.

26. The Eldorado and Siemens case were ready for preliminary hearings three years ago. Siemens wants the cases consolidated for trial purposes or be heard at the same time or successively. In November 1991 S.G.I. stated that they will oppose any such application. Sounds like another year or two. How long am I expected to wait? I will not be forced by circumstance to settle because the lawyers have found a way to further delay.

27. I have had no income since March 1988 with the exception of a small amount earned though bookkeeping. I have supported myself by selling my assets and borrowing from friends and family. Two years ago in a unrelated case, Mr. Stevenson had made a fair offer to settle but because of my circumstances I could not accept and Judgement was awarded. The Sheriff placed a lien on everything and a seizure of goods notice, hereto attached and marked Exhibit "K" on any money payable to me from S.G.I. I intend to apply for disability benefits from the Canada Pension Plan. When I apply the money will go to pay the judgement order. I need this lien taken off the disability benefits. I can get by on the money from the disability pension but it is not enough to pay for the therapy and health club. I am suggesting that payment be guaranteed out of the final settlement for the lien, the costs for the health club and the lien taken off the disability benefits.

28. I have a lot of goals for my future and that is the purpose of this application. I have got a good start on reaching them but have been held back by my choice in doctors and lawyers. I am tired of the obstacles in my way. I have asked both of my past lawyers to approach S.G.I. about funding for the health club and transportation costs to the health spa at Manitou without results. It will not be my disability that keeps me from reaching these goals. It will be these endless court cases as they are the only permanency that I can see. The important facts of this case I have underlined in my affidavit. One of my goals is to be back working within two years. I am a truck driver and I do not know if I have made it clear what I am saying here so will make it clear to all who do not understand. GET THE HELL OUT OF MY WAY!!

29. I can not go on a larger dosage of prednisone, or take it over a longer period of time because of the side effects to people with a pre-existing condition of scoliosis. I started on prednisone on February 5 as a result of cross-country skiing till I drop. I will be back to the pain by February 25. If this motion is postponed it will be difficult for me to attend.
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