Diebold v. Economical Mutual Insurance Company, 2022 ONSC 5592

In this personal injury action arising from a motor vehicle accident, the parties moved under Rule 21 for a determination before trial as to the deductibility of an LTD settlement from any damages awarded for loss of income. The plaintiff agreed that LTD benefits paid under the policy were deductible from income loss, but argued that the settlement was not deductible because it followed litigation and was not necessarily all for LTD benefits (i.e. the settlement could have included costs or punitive damages). Justice Gibson rejected the plaintiff’s position and held that Economical was entitled to deduct the LTD settlement from any damages awarded for loss of income. A key factor in the analysis was that the minutes of settlement in the LTD proceeding stated that the settlement was a taxable LTD benefit. This suggested to Justice Gibson that the settlement was for income replacement rather than other claims.

Alison Braks v. Dundeal Canada (GP) Inc, 2022 ONSC 3978

The plaintiff was injured in a slip and fall at her work’s office tower while exiting an elevator. The floor was slippery due to a cleaning product being sprayed onto the elevator doors deflecting and landing on the granite floors. The occupier did not have a system or policy for cleaning floors after cleaning the elevator doors, and was found liable.

The plaintiff suffered a minor traumatic brain injury due to her fall. She was 36 years old when she was injured in 2012. She complained of ongoing headaches, migraines, blurred vision, face pain, jaw pain, tingling/numbness in the limbs, brain fog, neck pain, and back pain. She stopped working at Scotiabank and later found employment at the Canada Revenue Agency, but made less money. Following a trial, Justice Ramsay awarded the following:

  • General damages: $115,000
  • Past income loss: $173,400
  • Loss of earning capacity: $590,200, less 15% contingency
  • Out-of-Pocket: $10,000
  • Past loss of housekeeping: $15,000
  • Loss of housekeeping capacity: $0
  • OHIP subrogation: $9,380

Waller v. Brown, 2022 ONSC 3510

The plaintiff was injured in a motor vehicle accident in 2015. A judge-alone trial proceeded on damages only. The plaintiff was 46 at the time of the accident, and was 52 at the time of trial. She suffered chronic pain syndrome and became highly dependent on medications and alcohol to alleviate her pain. She attempted to work after the accident, but had to quit her job about one year after the accident because she could not maintain her work obligations. Justice Muszynski found that the plaintiff suffered a threshold injury as a result of the accident. Justice Muszynski accepted the plaintiff’s experts, and awarded: $100,000 for general damages (gross); $38,371 for past loss of income; $201,294 for housekeeping; and $3,700 for out of pocket expenses. The plaintiff was also awarded future income loss and future care expenses. Justice Muszynski requested the parties’ assistance in quantifying the damages. For future income loss, Justice Muszynski held that the plaintiff would work until mid-2027 when the plaintiff’s son finished university. The accounting experts had not provided a present value calculation for that date. The future care costs were a mix of one time fees and annual fees. The one time fees were $54,972.55. The recurring fees were around $800 per year, and around $2,750 every three to five years.

Girao v. Cunningham, 2021 ONSC 7530

The plaintiff was injured in a 2002 motor vehicle accident. The Court of Appeal overturned the decision on the first trial. At this second trial, the jury awarded the plaintiff $40,000 in general damages. No damages were awarded for future healthcare expenses. The defendant argued that the plaintiff’s injuries did not meet the threshold. Justice Chalmers agreed and the plaintiff was barred from recovering any general damages. Justice Chalmers accepted that the plaintiff suffered whiplash injuries that were permanent, but that the injuries were not serious and would not prevent the plaintiff from returning to her job. He rejected the plaintiff’s arguments that she suffered from psychological injuries and TMJ syndrome from the accident. The psychological injuries were caused by a sexual assault when the plaintiff was 18 years old. The TMJ syndrome was caused by the plaintiff grinding her teeth when she slept. Justice Chalmers accepted the opinions of defence experts Dr. Lipson (physiatrist), Dr. Gryfe (oral surgeon), and Dr. Finkel (psychiatrist).

Legree v. Origlieri, 2021 ONSC 7650

The 27 year old plaintiff suffered soft tissue injuries as a result of a rear-end motor vehicle accident in 2016. She went on to develop chronic pain and anxiety/adjustment disorder. After a 12-day judge-alone virtual trial, Justice Fowler Byrne concluded that the plaintiff satisfied the threshold, and that the plaintiff was entitled to: (1) gross general damages of $100,000; (2) future health care costs of $143,560.78; and $1,993.10 for out of pocket expenses. The claims for past and future income loss were dismissed. Justice Fowler Byrne preferred the plaintiff’s physiatrist, Dr. Friedlander, over the defendant’s physiatrist, Dr. Boucher. She also preferred the plaintiff’s neurologist, Dr. Basile, over the defendants’ neuropsychologist, Dr. Watson and neuroradiologist, Dr. Cheung. She also accepted the opinion of the plaintiff’s psychotherapist, Allan Walton.

Haji v. Infinity Health Centre, 2021 ONSC 5077

The plaintiff was a physiotherapist at the defendant’s clinic. In the course of work, she was shocked by a frayed plug on an electrical adjustable bed. She alleged that she suffered chronic pain, concussion, headaches, neck pain, sleep difficulties, and poor concentration due to the incident. She sued the defendant for damages and her parents commenced FLA claims. The defendant admitted liability.

Discovery evidence revealed that: the plaintiff went shopping in a mall and various big box stores during Christmas time in the weeks following the incident; she traveled to Banff with her boyfriend within a couple of months of the incident; she attended a fireworks and light display at a Zoo on the Calgary trip; she vacationed internationally once a year on average following the incident where she went out for meals and attended an NFL game. Surveillance captured the plaintiff participating in a five-kilometer obstacle course, walking her dog, wearing headphones, walking with family, and jogging for 40 minutes.

Despite this evidence, Justice Chalmers accepted the evidence of the plaintiff’s treating chronic pain expert that she suffered injuries from the electrical shock that resulted in long-term concussion symptoms, headaches, and migraines. The plaintiffs were awarded damages totaling $742,822.73, comprised of: general damages of $100,000.00; FLA damages of $60,000.00; past loss of income of $375,000.00; future care costs of $159,443.14; special damages of $24,489.35, and subrogated claims of $23,890.24.

Moore v. 7595611 Canada Corp., 2021 ONCA 459

The plaintiffs’ daughter was severely injured in a fire. The plaintiffs ultimately had to made the decision to remove her from life support given that she did not have brain activity. The plaintiffs sued the landlord of their daughter’s apartment for damages. At trial the jury awarded $250,000 in damages to each the mother and father for loss of care, guidance, and companionship; $250,000 to each of the mother and father for mental distress; and future care costs to each the mother and father of more than $150,000 (the total award was in excess of $1.3 million).

The landlord appealed on a number of grounds, including on the quantum of damages. The Court of Appeal dismissed the landlord’s appeal. With respect to damages, the Court of Appeal accepted that the quantum was supported by clear, expert evidence, and also detailed trial evidence from the parents. Based on the evidentiary foundation laid at trial, there was no basis on which to interfere with the damages awarded.

Barker v. Barker, 2021 ONSC 158

In the case of Barker v. Barker, Justice Morgan outlines the harm suffered by the 28 plaintiffs who were patients at the Oak Ridge Division of the Penetanguishene Mental Health Centre from the mid-1960s until the early 1980s. The plaintiffs brought an action against the individual physicians as well as the Government of Ontario for breach of fiduciary duty.

Justice Morgan proceeded with the second phase of the trial on the basis that the three impugned programs carried on in the Social Therapy Unit (“STU”) of the Oak Ridge Division of the Penetanguishene Mental Health Center caused each of the plaintiffs harm in one degree or another.

This article summarizes Justice Morgan’s analysis of general damages and damages caps in the context of institutional claims and unique types of harm.

As this was not a class action, there was no aggregating of damages or imposition of a collective award; rather, the damages assessment had to conform with the specific, individual holdings set out in the first phase of the trial. At the conclusion of the first phase of the trial, Justice Morgan employed a graded scale of harms caused by the STU programs to the plaintiffs, qualifying them as either short term or long term and any of mild, moderate, or substantial. This was provided as a guide to the damages phase of the trial, but the gradations of harm do not reflect any externally established standards or Justice Morgan’s subjective response to any individual plaintiff. Accordingly, it was the reported cases dealing with comparable situations, together with the expert evidence, that set the parameters of the damage awards to be applied to the individual plaintiffs in accordance with their personal histories. The Court of Appeal has made it clear in Mulroy v. Aqua Scene (1982), 36 OR (2d) 653, at para 15 (Ont CA), that in arriving at a quantum of damages, trial judges are to avoid the pitfall of approving “large differences in awards to individuals who do not differ greatly.”

Justice Morgan stated that in a case like this, any quantification of damages, especially for non-pecuniary losses, will entail an element of arbitrariness since compensating for lost years and psychological suffering is not mathematically calculable. At the time same, the quantification must not be out of line with existing caselaw. It cannot be so high or so low as to be considered disproportionate. As the Supreme Court of Canada stated in Andrews v. Grand & Toy, [1978] 2 SCR 229, 261, “the award must be fair and reasonable, fairness being gauged by earlier decisions.”

General Damages

As stated in Ward v. James [1965] 1 All ER 563 (CA), “the aim of the damages phase of the trial is to do what can be done to alleviate the disaster to the victim and to determine what it will cost to enable her to live as tolerably as may be in the circumstances.”

The starting point for quantification of non-pecuniary losses is Andrews. Justice Morgan stated that the amount of the award is to be tied to the given Plaintiff’s experience and needs. Where general damages are concerned, the amount is not adjusted to reflect the actions of the defendants, regardless of how egregious their conduct was.

General damages are to reflect what the Court in Andrews called a functional approach:

The … ‘functional’ approach, accepts the personal premise [valuation of the injury in terms of the loss of human happiness by the particular victim]…, but rather than attempting to set a value on lost happiness, it attempts to assess the compensation required to provide the injured person ‘with reasonable solace for his misfortune.’ ‘Solace’ in this sense is taken to mean physical arrangements which can make his life more endurable rather than ‘solace’ in the sense of
sympathy.

Further, the Supreme Court in Blackwater v. Plint, [2005] 3 SCR 3 outlined four factors that are relied on by plaintiff’s counsel as a foundation for individual damages claims. They are as
follows:

A) The age and vulnerability of the victim at the time of the events;
B) The frequency and severity of the wrongdoing;
C) The position of the defendant; and
D) The consequences for the victim.

It is important to find a range of compensation that is aimed at remedying the type of injuries that the plaintiffs have suffered, and not to borrow from damage awards aimed at remedying an altogether different type of injury or different type of interest infringed.

As stated in Stations de la vallée de St-Sauveur inc. v. M.A., 2010 QCCA 1509, at para 83, the goal is to locate horizontal comparisons not with the type of conduct for which the defendants are liable, but with the type and context of the suffering endured by the plaintiffs. The Court is to “treat like cases alike and unlike cases differently in this fact-driven exercise. This allows for comparisons between the seriousness of injuries, without the judge becoming a prisoner of past
findings by other courts, while at the same time giving full scope to a personalized analysis of each victim’s own situation.”

Justice Morgan stated that there should be uniformity to general damage awards for comparable cases and that trial courts do not have an unlimited scope to award general damages as they see fit. As the Court of
Appeal has warned, “damages awarded [that are] so inordinately high…call for this
Court’s interference.”

Finally, he emphasized that one must look beyond the procedurally unusual nature of the case to the substance of the claims to accurately determine general damages.

Damages Cap

Justice Morgan stated that the policy considerations underlying the damages cap for general damages do not apply because of the suis generis nature of the case. Unlike the ubiquitous nature of motor vehicle accidents, the social cost of a damages award in a unique case such as this is not the same as one in which the insurance industry must continuously spread losses throughout a society in which the vast majority of drivers are insured. Further, there is no concern for double compensation because there is no cost of care claim.

The appellate courts have repeatedly held that claims concerning breach of fiduciary duty and intentional wrongdoing are not limited by the cap established in Andrews. The policy reasons that arose in that case, are not present in fiduciary duty claims.

The unique context of the wrong, the intentionality of the wrongdoer, and the fact that there are few, if any, social costs or society-wide insurance implications to the claim, negate the rationale for a damages cap.

Sheldon v. Reyna, 2018 ONSC 5611

The Plaintiff was a senior engineer at Canada Post and 51 years old at the time of the MVA (she was rear-ended at about 30 km/h). The Plaintiff sustained soft tissue injuries leading to chronic pain, adjustment disorder, and somatic symptom disorder. The Plaintiff stopped working six years after the MVA due to her medical condition. The Defendant did not bring a threshold motion and admitted that the Plaintiff was entitled to receive non-pecuniary damages. Justice Williams awarded $100,000.00 in general damages, $394,800.32 in future income loss, out-of-pocket expenses of $19,655.37, around $150,000.00 in medical costs, and awards for attendant care and housekeeping to age 75.

K.M. v. Marson et al, 2018 ONSC 3493

In this case of historic sexual abuse, the plaintiff was sexually assaulted from 1978 to 1980 by his elementary school teacher. At the time of trial he was 51 years old. He led evidence that he suffered from serious mental health problems as a result of the abuse, including depression, PTSD, and anti-social behaviour. He had difficulty sustaining interdependent personal relationships and had difficulty maintaining employment. He was awarded damages in the total amount of $2,413,442.11 plus PJI.