McIntyre v. Docherty, 2009 ONCA 448

McIntyre v. Docherty et al. [Indexed as: McIntyre v. Docherty]

97 O.R. (3d) 189

Court of Appeal for Ontario,

Lang, Rouleau and Watt JJ.A.

May 29, 2009

Damages -- Personal injuries -- Housekeeping losses -- Plaintiff able to undertake most of her housekeeping responsibilities after accident but with reduced efficiency because of pain -- Family members providing some housekeeping services -- Jury awarding plaintiff $5,000 for past housekeeping inefficiency damages, $10,400 for past lost housekeeping capacity and $44,535 for future lost housekeeping capacity -- Defendants' appeal dismissed -- Trial judge erring in encouraging jury to separate inefficiency damages from balance of non-pecuniary award for pain and suffering and loss of amenities of life -- Creation of separate heading for one particular component of global award for non-pecuniary damages inappropriate -- Trial judge also erring in instructing jury to calculate award for past lost housekeeping by first determining whole of plaintiff's housekeeping losses using substitute homemaker approach and then deducting amount of award for inefficiency damages -- Global award of damages nevertheless not unreasonable.

The plaintiff was injured in a motor vehicle accident. Before the accident, she did the bulk of the housework in her household and took pride in doing so. After the accident, she could undertake most of her housekeeping responsibilities but with reduced efficiency because of pain. For the balance of those responsibilities, she relied on family members. The jury awarded the plaintiff damages in the amount of $5,000 for past housekeeping inefficiency, $10,400 for past lost housekeeping capacity and $44,535 for future lost housekeeping capacity. The defendants appealed.

Held, the appeal should be dismissed.

The trial judge erroneously encouraged the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. It is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. Moreover, it is unnecessary to divide non-pecuniary damages into sub-categories. Further, the trial judge erred in instructing the jury to calculate the award for past lost housekeeping by first deducting the whole of the [page190] plaintiff's housekeeping losses using a substitute homemaker approach and then deducting from that the amount of the non- pecuniary award for inefficiency damages. The trial judge did not err in putting future housekeeping costs to the jury in the absence of evidence that the plaintiff had a firm intention to employ a homemaker in the future. It is unnecessary for a plaintiff to satisfy the court of a firm intention to employ third-party help. Rather, it is for the plaintiff to decide whether she will employ a homemaker or whether she will struggle with her housekeeping and spend the damage award on luxuries that would otherwise be unavailable.

Despite the errors in the trial judge's charge to the jury, the global award was not unreasonable.

APPEAL by the defendants from the judgment of Rogin J. of the Superior Court of Justice dated May 17, 2007 for an award of damages for housekeeping losses.

Cases referred to Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, [1978] S.C.J. No. 6, 83 D.L.R. (3d) 452, 19 N.R. 50, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, [1978] 1 A.C.W.S. 218; Daly v. General Steam Navigation Co., [1980] 3 All E.R. 696 (C.A.), affg [1979] 1 Lloyd's Rep. 257 (Q.B. (Adm. Ct.)); Fobel v. Dean, 1991 CanLII 3965 (SK CA), [1991] S.J. No. 374, 83 D.L.R. (4th) 385, [1991] 6 W.W.R. 408, 93 Sask. R. 103, 9 C.C.L.T. (2d) 87, 28 A.C.W.S. (3d) 1026 (C.A.) [Leave to appeal to S.C.C. refused [1992] 1 S.C.R. vii, [1991] S.C.C.A. No. 433, 87 D.L.R. (4th) vii, 138 N.R. 404n, [1992] 2 W.W.R. lxxii, 97 Sask. R. 240n], consd

Other cases referred to Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8, 83 D.L.R. (3d) 609, 19 N.R. 1, 3 C.C.L.T. 272, [1978] 1 A.C.W.S. 231; Boucher v. Doiron, [2000] N.B.J. No. 382, 2000 NBCA 18, 230 N.B.R. (2d) 247, 100 A.C.W.S. (3d) 245; British Transport Commission v. Gourley, [1956] A.C. 185, [1955] 3 All E.R. 796, [1956] 2 W.L.R. 41, 2 Lloyd's Rep. 475, 34 A.T.C. 305 (H.L.); Cairns v. Harris, 1994 CanLII 3388 (PE SCAD), [1994] P.E.I.J. No. 25, 117 Nfld. & P.E.I.R. 216, 47 A.C.W.S. (3d) 63 (C.A.), affg 1993 CanLII 2892 (PE SCTD), [1993] P.E.I.J. No. 37, 105 Nfld. & P.E.I.R. 43, 39 A.C.W.S. (3d) 455 (S.C.); Dziver v. Smith (1983), 1983 CanLII 1920 (ON CA), 41 O.R. (2d) 385, [1983] O.J. No. 2992, 146 D.L.R. (3d) 314, 19 A.C.W.S. (2d) 325 (C.A.); Hartwick v. MacIntyre (1982), 1982 CanLII 2213 (ON CA), 35 O.R. (2d) 119, [1982] O.J. No. 3114, 131 D.L.R. (3d) 333, 25 C.P.C. 54, 26 R.F.L. (2d) 11 (C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, 2002 SCC 33, 211 D.L.R. (4th) 577, 286 N.R. 1, [2002] 7 W.W.R. 1, J.E. 2002-617, 219 Sask. R. 1, 10 C.C.L.T. (3d) 157, 30 M.P.L.R. (3d) 1, 112 A.C.W.S. (3d) 991; Hunter v. Manning, 1993 CanLII 9078 (SK QB), [1993] S.J. No. 697, [1993] 5 W.W.R. 738, 108 Sask. R. 26, 39 A.C.W.S. (3d) 788 (Q.B.); Knoblauch v. Biwer Estate, 1992 CanLII 8045 (SK QB), [1992] S.J. No. 402, [1992] 5 W.W.R. 725, 104 Sask. R. 31, 34 A.C.W.S. (3d) 1104 (Q.B.); Kroeker v. Jansen, 1995 CanLII 761 (BC CA), [1995] B.C.J. No. 724, 123 D.L.R. (4th) 652, [1995] 6 W.W.R. 5, 58 B.C.A.C. 1, 4 B.C.L.R. (3d) 178, 24 C.C.L.T. (2d) 113, 54 A.C.W.S. (3d) 898 (C.A.) [Leave to appeal to S.C.C. refused [1995] S.C.C.A. No. 263]; Ligate v. Abick (1996), 1996 CanLII 4006 (ON CA), 28 O.R. (3d) 1, [1996] O.J. No. 1244, 134 D.L.R. (4th) 538, 89 O.A.C. 355, [1996] G.S.T.C. 30, 4 G.T.C. 6131, 20 M.V.R. (3d) 75, 62 A.C.W.S. (3d) 486 (C.A.); Lyne v. McClarty, [2003] M.J. No. 29, 2003 MBCA 18, [2003] 5 W.W.R. 598, 170 Man. R. (2d) 161, 17 C.C.L.T. (3d) 230, 119 A.C.W.S. (3d) 1030; MacLean v. MacDonald, [2002] N.S.J. No. 76, 2002 NSCA 30, 211 D.L.R. (4th) 474, 201 N.S.R. (2d) 237, 11 C.C.L.T. (3d) 57, 43 E.T.R. (2d) 233, 112 A.C.W.S. (3d) 280 (C.A.); Mayes v. Ferguson, 1992 CanLII 7957 (SK QB), [1992] S.J. No. 124, 102 Sask. R. 250, 32 A.C.W.S. (3d) 250 (Q.B.); McCallum v. Ritter, 1990 CanLII 7823 (SK CA), [1990] S.J. No. 316, 83 Sask. R. 303, 72 D.L.R. (4th) 49, [1990] 5 W.W.R. 660, 21 A.C.W.S. (3d) 981 (C.A.); Stehelin v. Rock, [1993] Y.J. No. 198 (S.C.); Thornton v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267, [1978] S.C.J. No. 7, 83 D.L.R. (3d) 480, 19 N.R. 552, [1978] 1 W.W.R. 607, 3 C.C.L.T. 257, [1978] 1 A.C.W.S. 219; Vykysaly v. Jablowski (1992), 1992 CanLII 7683 (ON SC), 8 O.R. (3d) 181, [1992] O.J. No. 233, 31 A.C.W.S. (3d) 688 (Gen. Div.) [page191]

Statutes referred to Family Law Act, R.S.O. 1990, c. F.3, s. 61 [as am.] Family Law Reform Act, 1978, S.O. 1978, c. 2 [rep.], s. 69(3)

Authorities referred to Adjin-Tettey, Elizabeth, "Contemporary Approaches to Compensating Female Tort Victims for Incapacity to Work" (2000), 38 Alta. L. Rev. 504 Brooks, Kim, "Valuing Women's Work in the Home: A Defining Moment" (2005), 17:1 C.J.W.L. 177 Cassels, Jamie, "Damages for Lost Earning Capacity: Women and Children Last!" (1992), 71 Can. Bar Rev. 445 Cooper-Stephenson, Ken, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996) Graycar, Regina, "Compensation for Loss of Capacity to Work in the Home" (1985), 10 Sydney L. Rev. 528 Graycar, Regina, "Hoovering as a Hobby and Other Stories: Gendered Assesments of Personal Injury Damages" (1997), 3 U.B.C. L. Rev. 17

Jennifer L. McGill, for appellants. Alan L. Rachlin, for respondent.

The judgment of the court was delivered by

LANG J.A.: --

I. Introduction

1The primary issue in this appeal involves damages for housekeeping losses in a personal injury action. In this case, the jury awarded the respondent, Claudia McIntyre, damages that included an award for "past housekeeping inefficiency" and for past and future "lost housekeeping capacity". While courts in this and other jurisdictions have allowed damages for housekeeping losses, this case presents an opportunity for this court to consider certain aspects of such awards.

2For the reasons that follow, I would dismiss the appeal.

II. Background

3On April 23, 2000, the respondent was a passenger in a vehicle driven by Alan McIntyre, with whom she was living and whom she subsequently married. The McIntyre vehicle collided with a car driven by the appellant, Shaun Docherty, and owned by the appellant, James Docherty. As a result of the accident, Ms. McIntyre suffers from chronic pain, fibromyalgia, depression and anxiety. In the ensuing action, her claim against her husband [page192] was dismissed. The appellants admitted liability. Damages were the only issue at trial.

4Before the accident, the respondent intended to pursue a career as a bookkeeper. She worked on a full-time basis at various jobs, earning between $7.50 and $14.00 hourly. In addition to her work outside the home, the respondent, whose family members described her as a "clean freak" or a "neat freak", did the bulk of the housework. Her housekeeping included all the cooking, vacuuming, dishwashing, cleaning, laundry, bed-making and gardening. Her husband assisted with other tasks, such as taking out the garbage, cleaning windows and heavier chores.

5After the accident, the respondent experienced pain daily. At trial, the respondent testified that, if she paced herself carefully, with pain, she could undertake most of her housekeeping responsibilities. ¹ For the balance of those responsibilities, the respondent relied on gratuitous housekeeping provided by her family, including her husband, mother and two sisters.

6Although the respondent returned to employment in 2003, initially on a part-time and later on a full-time basis, she found that her level of pain precluded full-time employment. After her first maternity leave in 2003, the respondent returned to seasonal employment with H&R Block. In 2005, she had a second child. In 2006, to accommodate their increasing needs, the McIntyre family moved to a larger home.

7At trial, the respondent estimated that she could work outside the home a maximum of 15 to 16 hours weekly. She proposed starting a home-based business that would provide her with the flexibility to maximize the hours she could devote to income-earning activity.

8At trial, the medical experts disagreed about the respondent's prognosis. The respondent's experts testified to the effect that she was already doing more than she should. In contrast, the appellants' expert testified that the respondent was largely independent in housekeeping ² and that she was able to return to full-time employment. [page193]

9To facilitate a return to full-time work, the appellants' expert recommended a course of Oxycontin, a long-acting opioid analgesic. The experts expressed some disagreement regarding Oxycontin's potential side effects, including its effect of dulling concentration. Two of the respondent's experts also expressed concern about the risk of addiction, while the appellants' expert testified addiction was not a significant risk. At trial, the appellants did not question the respondent about the possibility of treatment with Oxycontin.

10An economist, Dr. Michael Charette, provided expert evidence for the respondent regarding the number of hours women on average, spend doing productive household activities and the value of such services. To take into account the respondent's post-accident life initially without and later with children, Dr. Charette averaged the general statistics for two families with two spouses working full-time, both with and without children. In his opinion, a woman in such a position would spend 1,278 hours annually on household activities, including cleaning, cooking, laundry, home maintenance, shopping and child care. With that figure, Dr. Charette provided the jury with calculations valuing the respondent's housekeeping losses assuming the respondent suffered different degrees of impairment. Based on the evidence, including Dr. Charette's opinion, counsel for the respondent claimed a past housekeeping loss of $41,000 and a future housekeeping loss of $179,500.

11The appellants did not call an expert economist opinion at trial. Instead, they took issue with the respondent's expert evidence. They also argued that any award for housekeeping losses should be restricted to non-pecuniary damages and that at least some of the respondent's limitations did not arise from the accident, but from other stressors, including her post-accident increased housekeeping workload.

III. The Trial

12After lengthy discussions with counsel about the proper approach to housekeeping losses, the trial judge instructed the jury that past housekeeping inefficiency damages relate to the respondent's inability to perform her housekeeping functions as well as she could before the accident. He told the jury that these damages, which were not capable of calculation, were more in the nature of general (non-pecuniary) damages ³ and advised [page194] that any award should be modest. The trial judge reminded the jury that the respondent's counsel suggested an "inefficiency" award between $10,000 and $15,000, while the appellants took the position that any award for this loss should simply be included as a component of general (non- pecuniary) damages.

13The trial judge explained to the jury that the respondent claimed $41,000 for past lost housekeeping as an "actual amount" for housekeeping that the respondent had performed pre-accident, but that since the accident had been performed for her by her family members. The trial judge referred to the respondent's statement that she could do about two-thirds of the housework, but not as well, and pointed to the Dr. Charette's economic evidence. In addition to other percentages, his report showed, if the jury found a 10 per cent housekeeping impairment, that would result in a past loss to the respondent of $12,524 and a 20 per cent impairment would result in a loss of $25,049. In accordance with the respondent's position, the trial judge instructed the jury that any award for past lost housekeeping was subject to a deduction of the amount of the award for past housekeeping inefficiency. The trial judge also explained to the jury the appellants' position that past housekeeping losses should simply be a component of general (non-pecuniary) damages.

14Regarding future lost housekeeping damages, the trial judge put the respondent's position to the jury that this award should be in the range of $179,500, as well as the appellants' position that the respondent should only receive a nominal award sufficient to provide her with a housekeeper one day a week for the next two or three years. He again referred to Dr. Charette's evidence and to the evidence about the respondent's prognosis as well as to evidence that her housekeeping responsibilities would decrease as her children grew older.

15After hearing counsel's objections to the charge, the trial judge re-charged the jury. In doing so, he explained the position of counsel for the respondent that housekeeping inefficiency damages should be a separate award from general (non-pecuniary) damages and that any such award would be deducted from the amount awarded for past lost housekeeping. The trial judge explained the appellants' position that general (non-pecuniary) damages, including any damages for housekeeping inefficiency and past lost housekeeping, should not exceed a total of $100,000.

16Several hours after the resumption of deliberations, the jury asked the trial judge to "explain the relationship between past housekeeping inefficiency damages and past lost housekeeping [page195] capacity". The trial judge observed that the jury's confusion was not surprising. In response to the question, he told the jury that the respondent should not be compensated twice. They could award a modest sum for past housekeeping inefficiency, but the amount of such an award was to be deducted from any award for past lost housekeeping. He reminded the jury that "past lost housekeeping" was the work the respondent could no longer do that her family did for her.

17The trial judge also informed the jury, in his initial charge, of the ranges proposed by the parties for non-pecuniary damages. He reminded the jury that the respondent proposed a range between $90,000 and $105,000 (plus inefficiency damages), and that the appellants suggested a range between $75,000 and $100,000.

18The jury awarded the respondent $569,646, comprised of the following amounts:

Non-Pecuniary General Damages $92,500.00

Past Loss of Earnings 69,611.00

Future Lost Earning Capacity 347,600.00

Past Housekeeping Inefficiency Damages 5,000.00

Past Lost Housekeeping Capacity 10,400.00 (respondent sought $41,000)

Future Lost Housekeeping Capacity 44,535.00 (respondent sought $179,500)

Taking into account prejudgment interest, and deductions for deductibles and collateral benefits, the respondent was awarded $510,975.88, plus costs.

IV. Issues

[19] The appellant raises the following issues on appeal: (a) Did the trial judge err in his charge regarding damages for housekeeping losses? (b) Did the trial judge err in his charge by failing to adequately review the appellants' position regarding the respondent's prognosis? (c) Should the jury verdict be set aside as unreasonable? [page196]

V. Analysis

A. Housekeeping losses

20To provide perspective regarding the housekeeping issues raised in this case, it is helpful to begin by examining the scenarios in which housekeeping losses arise, reviewing the parties' arguments on the facts of this case, and considering the current approach to the categorization of damages generally and housekeeping losses particularly. Arising from that examination, I will comment on some specific issues raised by the trial judge's charge in this case. I will then turn to consider the issues that arise regarding pecuniary and non- pecuniary housekeeping losses in the context of the three scenarios of pre-trial housekeeping left undone, pre-trial housekeeping performed inefficiently and pre-trial housekeeping undertaken by third parties.

(1) Lost housekeeping scenarios

21Different housekeeping losses may arise in different scenarios. In some households, the injured plaintiff may have been a full-time or sole homemaker whose work permitted a spouse or partner to maintain employment outside the home. In other households, the plaintiff may also have worked outside the home and shared responsibilities for housekeeping with other family members. In one-person households, the plaintiff may have been responsible for both housekeeping and outside employment.

22Whatever the household circumstances, an injured plaintiff will cope in one or more of the following three ways. First, the plaintiff may leave some or all of the housekeeping undone. Second, the plaintiff may perform some or all of the housekeeping functions, but with increased pain and decreased efficiency. Third, the plaintiff may rely on paid or unpaid third parties on a part or full-time basis to perform some or all of the housekeeping.

23In each of these scenarios, the plaintiff will suffer losses arising from the inability to do work that she or he previously undertook within the household.

(2) The parties' arguments about housekeeping

24In this case, the respondent's claim was argued on the basis of housekeeping performed inefficiently and housekeeping undertaken by third parties. The appellants do not take issue with the amount of the jury award of $5,000 for housekeeping inefficiency, but argue that it should have been included as part [page197] of non-pecuniary damages for pain and suffering, and not treated as a separate head of damages.

25The appellants challenge the $10,400 jury award for past lost housekeeping, arguing that any loss was non-pecuniary and that the respondent suffered no compensable pecuniary loss since her family members undertook the necessary housekeeping without compensation. The appellants also argue that past housekeeping losses are only compensated when the third party undertakes the function full-time and beyond the usual parameters of what would normally be undertaken by a family member or a friend. Finally, the appellants argue that an award for past housekeeping loss should not be available to the respondent because s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 ("FLA") provides for an exclusive compensatory scheme to compensate family members, and the family members in this case made no such claim.

26In support of this position, the appellants rely on Vykysaly v. Jablowski (1992), 1992 CanLII 7683 (ON SC), 8 O.R. (3d) 181, [1992] O.J. No. 233 (Gen. Div.), where Somers J. denied the plaintiff any award for housekeeping losses, noting the availability of compensation under the FLA, his finding that housework was not the plaintiff's "major economic contribution to this family" and his view that domestic tasks should be shared equally.

27Finally, the appellants challenge the jury's $44,535 award for future lost housekeeping. They argue that this award was not available in the absence of evidence that the respondent would in fact retain housekeepers. As well, the appellants argue that the respondent's expert economic evidence was inadequate to support the award because it addressed statistical averages without considering the actual needs of the plaintiff.

28The respondent argues that all the housekeeping awards were supported by the evidence and were in accord with the reasoning of the Saskatchewan Court of Appeal in Fobel v. Dean, 1991 CanLII 3965 (SK CA), [1991] S.J. No. 374, 83 D.L.R. (4th) 385 (C.A.), leave to appeal to S.C.C. refused [1992] 1 S.C.R. vii, [1991] S.C.C.A. No. 433, which should be adopted by this court.

(3) Categorization of damages

29In view of the issues raised, it is helpful to be mindful of the basic principles that underpin the assessment of personal injury damages. The bedrock principle is that damages serve the purpose of putting the plaintiff in the position she or he would have been in but for the injury.

30To achieve this result, damages are categorized under separate headings. This categorization provides a logical framework to [page198] assist in focusing attention on the nature and components of the claim, both for the purposes of the trial judge and jury, and also for the purpose of facilitating appellate review: see Andrews v. Grand & Toy Alberta Ltd., 1978 CanLII 1 (SCC), [1978] 2 S.C.R. 229, [1978] S.C.J. No. 6, at pp. 235-36 S.C.R.

31Damages are initially categorized as either special or general. Special damages generally compensate a plaintiff for pre-trial pecuniary out-of-pocket or "positive" losses. In contrast, general damages compensate for "negative" losses, which can include both pecuniary and non-pecuniary losses.

32Pecuniary damages are generally assessed on the basis of calculable losses for items such as the plaintiff's prospective loss of earnings and profits and costs of future care, as well as other expenses. In contrast, non-pecuniary damages cannot be arithmetically calculated because they compensate the plaintiff for intangible losses arising from physical and psychological pain and suffering as well as from any loss of amenities or expectations of life. As Dickson J., writing for the court in Andrews, observed, at p. 264 S.C.R., the components of non- pecuniary damages necessarily "overlap and merge at the edges and in practice", making it appropriate to arrive at a composite award for all non-pecuniary losses. Accordingly, rarely will non-pecuniary damages be broken down into their components.

[33] Traditionally, the various categories of damages include: (1) special damages (readily calculable pecuniary losses to trial) (2) general damages (a) pecuniary damages (i) loss of future income or profits (ii) costs of future care (b) non-pecuniary damages

34Absent from this categorization is any reference to housekeeping losses. This is so because, historically, there was no recognition that any loss of housekeeping was suffered personally by the plaintiff. Instead of a direct claim by the injured plaintiff for lost housekeeping, a claim was made by the injured wife's husband for loss of consortium or servitium. Claims for loss of consortium, based on the antiquated theory that it was the husband's interests that were damaged as a result of the wife's injuries, were abolished by s. 69(3) of the Family Law Reform Act, 1978, S.O. 1978, c. 2. [page199]

35I now turn to a review of the seminal English and Canadian decisions that initially categorized housekeeping losses for the purpose of the assessment of damages.

(4) Review of case law

(i) The English position: Daly v. General Steam Navigation Co.

36The trial judge in Daly v. General Steam Navigation Co., [1979] 1 Lloyd's Rep. 257 (Q.B. (Adm. Ct.)), recognized, at p. 265, that Mrs. Daly was entitled to housekeeping damages because she "is just as much disabled from doing her unpaid job as an employed person is disabled from doing his paid one". Thus, Daly recognized that housekeeping losses are personal to the injured party.

37The Court of Appeal agreed with this principle and addressed the quantification of housekeeping damages: [1980] 3 All E.R. 696 (C.A.). In the Court of Appeal's view, at p. 701, the proper measure of future lost housekeeping is the cost of employing replacement domestic assistance. ⁴ The court further observed that the replacement cost approach applies whether the plaintiff will actually employ a housekeeper or whether she or he opts to struggle with the housekeeping and spend the award on otherwise unavailable luxuries.

38The trial judge awarded Mrs. Daly [pound] 8,000 in non- pecuniary damages. He observed that, apart from the limited help she received from members of her family, Mrs. Daly had not been able to employ a substitute housekeeper to the extent that she needed. Since her sister-in-law was paid [pound] 633 for housework performed while Mrs. Daly was in the hospital, the trial judge included this amount in his award for special damages. In the trial judge's view, the balance of Mrs. Daly's past housekeeping loss should be compensated in a manner similar to a claim for past loss of earnings. Using this approach, and based on the number of hours that Mrs. Daly needed a replacement housekeeper each week before trial, the trial judge awarded pre-trial pecuniary damages of [pound] 2,691. He also awarded damages for future lost housekeeping in the amount of [pound] 8,736.

39While the appeal court upheld the special damages for the sister-in-law's substitute housework, it disagreed with the trial court's award of pecuniary damages for past housekeeping [page200] inefficiency. In the appeal court's view, since Mrs. Daly did not hire a substitute housekeeper, she suffered no pecuniary loss. Indeed, Bridge L.J. said that as a matter of "practical reality", Mrs. Daly was "unable to say that she has incurred the cost of employing the labour" she needed, apart from the sister-in-law's assistance. What Mrs. Daly did, he said, was "manage as best she could" with some help provided by her husband and daughter. Consistent with the trial judge's reasoning, he specifically rejected the argument of Mrs. Daly's counsel that the trial judge's pecuniary award of [pound] 2,691 was an evaluation of the actual work performed by the husband and daughter.

40In the result, the court concluded that the only loss Mrs. Daly suffered as a result of "managing the best she could" was in the nature of increased pain and suffering or the loss of an amenity of life, which was properly compensated as part of non-pecuniary rather than pecuniary damages. ⁵

41Nonetheless, Bridge L.J. tested the trial judge's global award by observing that the trial judge could not have been faulted had he, in addition to damages for future housekeeping losses, awarded Mrs. Daly non-pecuniary damages of [pound] 10,000 (instead of the "rather parsimonious" amount of [pound] 8,000) and an additional [pound] 930 in special or pecuniary damages relating to her husband's lost earnings, which were incurred because the husband took time from his part-time employment to perform housework. ⁶

42However, since the appeal court was not asked to increase the damages, Bridge L.J. upheld the trial award by removing the trial judge's [pound] 2,691 in pecuniary damages for past housekeeping losses and adding the same amount to the trial judge's [pound] 8,000 non-pecuniary award. In this way, the total non-pecuniary award became [pound] 10,691. However, from the ú10,691 figure, Bridge L.J. deducted the [pound] 930 in special damages relating to the husband's lost earnings. By doing so, he ensured that Mrs. Daly would not receive double recovery for that amount. In my view, Bridge L.J.'s method of calculation was not meant to establish a principled approach to calculating housekeeping damages, but rather to explain why he would uphold the global award. [page201]

43Accordingly, Daly concluded that both housework left undone because there was no substitute housekeeper and housework performed by the plaintiff inefficiently are properly compensated in non-pecuniary damages. However, housework actually performed by another at a cost, such as that performed by the husband and the sister-in-law, is compensated as part of special damages.

(ii) The Canadian position

44In McCallum v. Ritter, 1990 CanLII 7823 (SK CA), [1990] S.J. No. 316, 72 D.L.R. (4th) 49 (C.A.), the Saskatchewan Court of Appeal confirmed the distinction between a non-pecuniary award for a plaintiff's personal discomfort in performing housekeeping and a pecuniary award for a plaintiff seeking compensation for the notional costs of a third person who actually performed the role of a substitute homemaker on an unpaid basis.

45A year later, the Saskatchewan Court of Appeal revisited the quantification of housekeeping damages in the seminal decision of Fobel v. Dean. In that case, there was evidence that Mrs. Fobel was able to perform approximately 30 per cent of her housekeeping responsibilities in the period before trial with "diminished efficiency, pain and discomfort". The balance of her housekeeping tasks remained undone. The trial judge awarded Mrs. Fobel a total of $60,000 in non-pecuniary damages, which included damages for past loss of housekeeping.

46Writing for the majority of the Court of Appeal, Vancise J.A. observed that, in the absence of replacement labour, it is wrong to evaluate a plaintiff's past lost housekeeping by reference to replacement value. In his view, where there is no replacement labour, the loss is properly compensated as a component of general non-pecuniary damages. However, in determining the proper amount of this component of non- pecuniary damages, Vancise J.A. reasoned, at p. 401 D.L.R., that replacement cost is a relevant factor. In addition, to allow for proper appellate review, he stipulated that a trial judge ought to set out separately the amount of non-pecuniary damages that relate to this loss from the other non-pecuniary damages.

47In the result, the Court of Appeal allocated $45,000 for Mrs. Fobel's general pain and suffering and loss of amenities, and a separate amount of $15,000 for her non-pecuniary housekeeping damages.

48In addition, Vancise J.A. approached the pecuniary damage claim for future lost housekeeping by applying a replacement cost approach using a combination of the substitute homemaker and catalogue of services approaches that has been [page202] widely accepted by Canadian courts. ⁷ This combined approach, which is not challenged in this case, catalogues the plaintiff's housekeeping functions and then allocates those functions between direct labour (such as cooking and cleaning) and household management. Each category is then quantified based on "the community's fair market salary of each occupation and totalled to arrive at a weekly salary". Applying this approach, Vancise J.A. awarded the plaintiff approximately $80,000 for her pecuniary loss of future housekeeping.

49With some variation, Fobel has been considered and applied in numerous cases in different provinces. However, rather than treating replacement cost as merely one factor in determining the amount of the non-pecuniary loss, as a practical matter many cases appear to rely heavily or exclusively on replacement cost: see, for example, Stehelin v. Rock, [1993] Y.J. No. 198 (S.C.); Boucher v. Doiron, 2000 NBCA 18, [2000] N.B.J. No. 382, 230 N.B.R. (2d) 247 (C.A.); Mayes v. Ferguson, 1992 CanLII 7957 (SK QB), [1992] S.J. No. 124, 102 Sask. R. 250 (Q.B.); Hunter v. Manning, 1993 CanLII 9078 (SK QB), [1993] S.J. No. 697, 108 Sask. R. 26 (Q.B.); and Knoblauch v. Biwer Estate, 1992 CanLII 8045 (SK QB), [1992] S.J. No. 402, 104 Sask. R. 31 (Q.B.). This result appears to be inconsistent with the approach taken in Daly that the loss is non-pecuniary and, when there has been no replacement housekeeper, that replacement cost is not an appropriate measure of damages.

50In addition, the cases following Fobel appear to have developed an unnecessarily complex approach to the evaluation of non-pecuniary and pecuniary housekeeping losses. In Cairns v. Harris, 1993 CanLII 2892 (PE SCTD), [1993] P.E.I.J. No. 37, 105 Nfld. & P.E.I.R. 43 (S.C.), the trial judge calculated the non-pecuniary damages, as well as the future loss award, on the basis of replacement value.

51In upholding the trial judge's award on appeal, Carruthers C.J.P.E.I. considered a hypothetical plaintiff who, pre-trial, had undertaken some household tasks with difficulty and relied on some substitute help for others: 1994 CanLII 3388 (PE SCAD), [1994] P.E.I.J. No. 25, 117 Nfld. & P.E.I.R. 216 (C.A.), at para. 42. Carruthers C.J.P.E.I. expressed the view that, in this situation, a trial judge should first "determine the amount of compensation he would have awarded to the victim on the basis that she did not employ any substitute performance at all". Second, the trial judge will "determine the value of the substitute performance" and award that amount as special damages. Finally, the trial judge will [page203] "reduce the amount [she or he] would have awarded to the victim if there had been no substitute performance" by the amount of the special damages. The resulting damages will be classified as non-pecuniary damages.

52While such an approach may reach a logical result in the end, in my view, the approach is unnecessarily complex, particularly in the context of a jury trial, which continues to be a common way of litigating personal injury claims in Ontario.

53I turn to consider whether this complexity is necessary in the light of the jury instructions on these issues given in this case.

(5) The charge in this case

54The trial judge's charge and re-charges to the jury in this case reflected the case law I have just reviewed. As a result, in my view, the instructions misled the jury in two ways. First, the instructions unnecessarily subdivided non- pecuniary damages into two categories. Second, undue complexity and confusion was injected into the instructions by requiring the jury to deduct a non-pecuniary award from a pecuniary award.

55Regarding the first issue, the charge appeared to encourage the jury to separate inefficiency damages from the balance of the non-pecuniary award for pain and suffering and loss of the amenities of life. In my view, it is generally inappropriate to create a separate heading for one particular component of a global award for non-pecuniary damages. Such a compartmentalization is both artificial and contrary to the Andrews instruction that non-pecuniary damages should be assessed globally due to the overlapping nature of the various components. Moreover, it is unnecessary to divide non-pecuniary losses into sub-categories. Juries across Canada have long demonstrated their ability to incorporate a variety of losses into a global award for non-pecuniary damages. As is evident from the questions posed during its deliberations, an instruction to compartmentalize can only cause confusion for the jury and, in my view, is not necessary for the purpose of appellate review.

56Regarding the second issue, I cannot agree that the jury should calculate the award for past lost housekeeping by first determining the whole of the plaintiff's housekeeping losses using a substitute homemaker approach and then deducting from that the amount of the non-pecuniary award for inefficiency damages. This methodology appears to be based on a variation on the calculation by the Court of Appeal in Daly.

57However, as I have explained, the deduction at the appellate level in that case simply remedied the approach of the trial [page204] judge in order to take the husband-related housework into account. Daly does not stand for the general principle that pecuniary damages intended to compensate the plaintiff for the work performed by third parties should be deducted from the plaintiff's non-pecuniary intangible losses for increased pain and suffering or, conversely, that such non- pecuniary losses should be deducted from the pecuniary damages intended to compensate the plaintiff for the work performed by third parties. As explained below, while pecuniary and non-pecuniary losses are often interdependent, each are assessed separately without any arithmetical deduction.

58Finally, regarding the charge to the jury, the appellants argue that the trial judge erred in putting future housekeeping costs to the jury in the absence of evidence that the respondent had a firm intention to employ a homemaker in the future. I would not accept this argument. I agree with the observation of Bridge L.J., at p. 701 of Daly, that it is unnecessary for the plaintiff to satisfy the court of a firm intention to employ third-party help. Rather, it is for the plaintiff to decide whether she will employ a homemaker or whether she will struggle with her housekeeping and spend the damage award on luxuries that would otherwise be unavailable. Similarly, in my view a plaintiff is entitled to a pecuniary award for future loss whether the replacement labour is full- time or part-time.

(6) Framework for housekeeping losses

59In order to provide guidance for future cases, I now turn to consider the nature of the damages that arise in each of the scenarios of housekeeping losses outlined above in para. 21. I approach the scenarios mindful that pecuniary and non- pecuniary losses are often interdependent, so that a plaintiff's pecuniary award for a particular loss may have an impact on the non-pecuniary award in relation to the same loss.

60At the same time, I observe that a plaintiff may not be fully compensated by a pecuniary award for past housekeeping losses, even one that provides for the complete costs of a notional or substitute homemaker. Despite such a pecuniary award, for complete compensation, the plaintiff may additionally require recognition in the non-pecuniary award of her or his loss of self-worth resulting from the inability to contribute personally to the well-being of the household.

61I also observe that, while I specifically address the non-pecuniary aspects of the loss under pre-trial losses for work undone, those observations apply to all types of housekeeping losses. [page205]

(i) Pre-trial: Work left undone

62Where the injured plaintiff is unable to perform some or all housekeeping tasks, and where a third party does not do the work in the injured person's stead, work will be left undone. In that situation, the injured plaintiff will experience two sorts of intangible losses compensable in an award of non- pecuniary damages.

63First, the modern law of damages recognizes that work, whether employment outside the home or housekeeping inside the home, provides a human being with an important sense of purpose and contribution, the loss of which is a loss personal to the plaintiff. This is because a plaintiff's pre-accident housekeeping would have contributed to her or his sense of identity in the same way that an income-earning plaintiff would perceive her or his earnings to be a valuable contribution to the family's financial health. Loss of either type of contribution diminishes one's sense of identity. Second, where work is left undone, the plaintiff will be forced to live with the loss of the amenity of an orderly and functioning home. In both cases, because the losses are intangible in nature, they are compensable within the award for non-pecuniary damages.

64Recognizing this, the Saskatchewan Court of Appeal in Fobel held that, in the absence of replacement labour, the loss is properly compensated as a component of non-pecuniary damages. However, as explained above, while Vancise J.A. stated that one relevant factor is the replacement value of the undone housekeeping, some post-Fobel courts have relied heavily on replacement value or used it as the sole factor in assessing such damages.

65By taking this approach, the cases are effectively using a pecuniary measure to determine a non-pecuniary loss, which blurs the distinction between the two types of losses. In those cases, the approach likely developed because it was perceived to achieve a measure of fair compensation for past housekeeping losses. It was also a convenient measure, since courts were often already looking at replacement cost to measure pecuniary losses involving future substitute housekeeping. Nonetheless, the use of an arithmetical yardstick does not conform to the traditional distinction between the calculable nature of a pecuniary loss and the intangible nature of a non-pecuniary loss.

66If the use of replacement value is not appropriate in assessing a non-pecuniary award, the corollary question arises whether an injured plaintiff ought to be entitled to a separate [page206] pecuniary award for the value of work undone, either instead of or in addition to the award for non-pecuniary damages.

67The current approach denying a separate pecuniary award for housekeeping may mean that unpaid work is unjustifiably treated differently than paid work. In the case of paid work, the plaintiff will make a claim for the pre-trial income she or he would have earned but for the accident. ⁸ Such a claim is one for a pecuniary loss, or special damages, since it is calculable with a reasonable degree of certainty based on the available evidence. As I have observed, in contrast, unpaid housekeeping left undone is often recognized only as a non-pecuniary loss on the basis that the only loss is the intangible one arising from the loss of the amenity of an orderly household and a loss of a sense of contribution.

68However, an argument can be made to support a pecuniary award on the basis that it is consistent and fair to compensate the loss of "unpaid" work on the same basis as "paid" employment and that it is unfair to relegate "unpaid" undone housekeeping, in this case past lost housekeeping, to the homogeneous basket of non-pecuniary damages. ⁹ Non-pecuniary damages are restricted both by the cap imposed on them by the Supreme Court of Canada ¹⁰ and by the Andrews admonition that such awards must be modest.

69It can also be argued that a pecuniary award would achieve a measure of recognition for the economic value of unpaid housekeeping. The denial of such an award may be seen to unfairly diminish the contribution of those responsible for the bulk of housekeeping, still largely women, and to perpetuate inequalities that society has worked hard to overcome. ¹¹ [page207]

70On the other hand, treating undone housekeeping on the same basis as lost wages arguably does not conform to the traditional view or current Canadian case law regarding the nature of a "pecuniary" loss during the pre-trial period: see MacLean v. MacDonald, 2002 NSCA 30, [2002] N.S.J. No. 76, 201 N.S.R. (2d) 237 (C.A.) and British Transport Commission v. Gourley, [1956] A.C. 185, [1955] 3 All E.R. 796 (H.L.). This is because lost wages are clearly a pecuniary loss that is ascertainable at the time of trial. However, an unpaid homemaker does not suffer a loss of wages, but rather the loss of the benefit of having done the housekeeping, including the personal intangibles such as the sense of purpose and contribution referred to earlier, as well as the loss of the amenity of an organized household.

71Some may also argue on a related point that awarding pecuniary damages for undone pre-trial housekeeping would raise questions about the possible extension of compensation for other types of unpaid work on the basis of an imputed salary. As well, it may require the trier of fact to conceptualize a situation that did not occur. If a loss of income is imputed to a plaintiff for unpaid housekeeping, the assessment of the non- pecuniary damages would then be based on the hypothetical assumption that the homemaker had completed the housekeeping or had hired someone to do so, rather than on the homemaker's evidence of her actual pre-trial pain and suffering. As well, issues of mitigation may arise.

72However, these important issues, relating to how to put the plaintiff back in the same position she or he would have been in but for the accident, must be left for another day. In this case, the respondent's claim was not based on housekeeping undone but on housekeeping the respondent testified that she performed inefficiently or was done by her family members. In the absence of a claim by the plaintiff for work undone, it is unnecessary to come to a conclusion regarding the factors that ought to be considered in assessing non-pecuniary damages and whether undone work can give rise to a separate claim for pecuniary damages. These issues may arise on the facts of a future case [page208] where the court will have the benefit of a full factual foundation and complete legal argument.

(ii) Pre-trial: Work done by the plaintiff with difficulty

73Turning to the second scenario, a plaintiff may continue to undertake housekeeping, but may experience pain or difficulty in doing so, as did the plaintiff in this case. She or he may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If a plaintiff thus works "inefficiently", her or his non-pecuniary award would be increased to reflect any increased pain and suffering. To the extent the plaintiff's inefficiency also results in a less clean and organized household, this is the loss of an amenity that the award for non-pecuniary damages would also take into account.

74These aspects of the non-pecuniary award will be assessed in a manner similar to the assessment of non-pecuniary losses for a plaintiff who faces increased pain and suffering in performing income-earning tasks. In determining the significance of the components of the loss, the court will consider the evidence about the plaintiff's pre-accident and pre-trial housekeeping, the particulars of any increased pain and suffering and diminishment in housekeeping, and the impact of any reduction in the standard of housekeeping on the plaintiff.

(iii) Pre-trial: Work done by third parties

75The law is well established that where a plaintiff incurs a pre-trial out-of-pocket loss by hiring a replacement homemaker, the plaintiff may claim the reasonable replacement cost of that homemaker as special damages. ¹² Similarly, if there is evidence that the plaintiff agreed or was otherwise obliged to compensate a third party for services rendered pre-trial, the plaintiff may claim that amount as special damages. [page209]

76In this case, the respondent seeks compensation for the gratuitous work done by her family members. However, the respondent failed to plead or lead sufficient evidence to support such a claim. Neither the family members nor the respondent provided any particulars of the time the family members spent assisting the respondent as a result of her injuries during the pre-trial period, which was seven years. Rather, respondent's counsel presented the case in terms of percentage impairments, which blurred the evidence relating to past housekeeping inefficiency and the work she was unable to do that was being done by others. ¹³

77The respondent also presented economic evidence as to the average number of hours of productive household activities someone in the respondent's situation would perform. The difficulty is that, even assuming the jury accepted that the statistics were appropriate for the respondent's situation, the statistical evidence was not linked to the respondent's evidence regarding her degree of incapacity in a way that would have allowed the jury to quantify the hours of work performed on her behalf by family members. While Dr. Charette gave evidence that the average would be 3.5 hours per day, that number included all productive household activities, including all housework, home maintenance, gardening and child care. Although the respondent gave evidence as to the percentage of housework and the percentage of gardening she could do, her percentages related to sub-components of the 3.5 hour figure. [page210]

78To avoid this type of confusion in future cases where different scenarios of housekeeping losses arise, it will be helpful if the jury can be specifically instructed regarding the types of loss at issue and the evidence in support of that loss.

79In view of the conclusion regarding the insufficiency of the evidentiary foundation for a pecuniary award, it is unnecessary to address the appellants' argument concerning s. 61 of the FLA. ¹⁴

(7) The housekeeping damages awarded in this case

80In addition to amounts related to loss of earnings, the jury in this case awarded the plaintiff $5,000 for past housekeeping inefficiency damages, $10,400 for past lost housekeeping and $44,535 for future lost housekeeping for a total of $59,935 in housekeeping losses.

81The focus of the appeal did not challenge the amounts of the individual housekeeping awards, but rather the underlying legal principles. These principles included whether inefficiency damages should be a sub-heading of non-pecuniary damages, whether the respondent was entitled to an award for work performed by her family members and whether damages could be awarded for a future loss in the absence of evidence that the respondent firmly intended to hire a housekeeper. I have already dealt with each of these arguments.

82In doing so, I have indicated that issue can be taken fairly with the categorization of certain aspects of the individual housekeeping awards in this case. However, when viewed globally, and bearing in mind the lack of differentiation between inefficiency and third-party damages at trial, the total pecuniary and non-pecuniary housekeeping award of $59,935 was supported by the evidence. That evidence included the extent of the respondent's pain and suffering in performing housekeeping tasks, evidence relating to her high housekeeping standards and the impact of her injuries on those standards, evidence regarding her loss of ability to do tasks she previously enjoyed, such as gardening, and evidence about the impact of her pain on her relationships with others, all of which contributed to her lack of well being.

83I am mindful of the admonition that a civil jury verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and [page211] acting judicially could have arrived at the result: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31, at para. 30.

84In this case, I would not interfere with the jury's award of damages.

B. Failure to put the appellants' position to the jury

85The appellants' next ground of appeal rests on their argument that the trial judge failed to adequately put their position to the jury. In particular, the appellants argue that the trial judge failed to put the position to the jury that the respondent's presentation was aggravated by factors unrelated to the accident, including this litigation, the respondent's litigation against her insurer, the stress of raising two children and moving into a larger home and the respondent's failure to embark on a course of opioid medication.

86After the appellants' objection at trial, the trial judge gave two reasons for refusing to re-charge the jury. First, trial counsel had not asked the plaintiff about the impact of these factors during her testimony. Second, the jury had heard expert evidence about the impact of the factors on the respondent, and the opinion of the appellants' expert about the respondent's ability to return to full-time work in short order. In addition, the jury would have been alive to the expert evidence about opioid medication. The trial judge referenced the expert opinion in his charge and also instructed the jury about trial counsel's "compromise position" that the respondent could take as long as two to three years to return to full-time employment.

87In my view, reading the charge as a whole in the context of the trial, it was evident to the jury that the appellants' and the respondent's experts took different positions regarding the cause, the extent and the duration of the respondent's injuries. In the circumstances of this case, the trial judge was not obliged to embark on a detailed examination of the underlying foundation for each expert opinion. I would not give effect to this ground of appeal.

88I conclude on this issue by noting that, in the appellants' factum, counsel argues that the trial judge appeared to support the respondent's position in both the "tone and manner of presentation" to the jury. This ground was not pursued in oral argument and I am unable to identify any foundation for this submission.

C. Unreasonable jury verdict

89Finally, the appellants argue, apart from the issue of the amount of the housekeeping damages, that the jury's verdict [page212] was unreasonable in view of the evidence regarding the respondent's potential rehabilitation, the beneficial effects of opioid medication and the use of general statistics by the respondent's expert economist.

90In this case, there was ample evidence regarding the respondent's prognosis and treatment, all of which would have been weighed by the jury during deliberations, to support the verdict. In addition, while the expert's evidence could not provide the necessary particulars regarding the time spent by the family members, it remained open to the jury to conclude on the basis of that and other evidence that the respondent was unable to fulfill a portion of her housekeeping responsibilities. Accordingly, I would not give effect to this ground of appeal.

VI. Result

91In the result, I would dismiss the appeal.

VII. Costs

92I would award costs to the respondent fixed in the amount of $17,000, inclusive of disbursements and the Goods and Services Tax.

Appeal dismissed.

Notes

Footnotes

1. 1Thus, the plaintiff is said to perform housework "inefficiently", which explains the nomenclature "inefficiency damages" to describe this particular sub-category of damages.
2. 2In these reasons, I will use the term "housekeeping" to refer to the loss of hands-on services (such as cooking and cleaning) as well as to the loss of household management services: see Fobel v. Dean, infra.
3. 3The references in the authorities and by the trial judge to "general" damages are often references to non-pecuniary damages for pain and suffering and other intangibles.
4. 4The parties on this appeal did not challenge the replacement cost approach as a measure of pecuniary homemaking losses.
5. 5In the Canadian context, see also Lyne v. McClarty, 2003 MBCA 18, [2003] M.J. No. 29, 170 Man. R. (2d) 161 (C.A.).
6. 6The claim for special damages in respect of Mr. Daly's loss of extra earnings was dropped before trial and therefore not dealt with by the trial judge.
7. 7See, also, Kroeker v. Jansen, 1995 CanLII 761 (BC CA), [1995] B.C.J. No. 724, 123 D.L.R. (4th) 652 (C.A.), leave to appeal S.C.C. refused [1995] S.C.C.A. No. 263.
8. 8Where an injured plaintiff can prove that she or he would have received a new position during the pre-trial period but for the accident, a court may compensate the plaintiff on the basis of the new salary: see Ligate v. Abick (1996), 1996 CanLII 4006 (ON CA), 28 O.R. (3d) 1, [1996] O.J. No. 1244 (C.A.).
9. 9Ken Cooper-Stephenson, in his Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996), expresses the opinion, at p. 522, that lost homemaking, whether past or future, is fundamentally pecuniary: "Lost capacity for homemaking seems fundamentally pecuniary, pre-trial as well as post-trial. The plaintiff was unable to carry out tasks the way she did before, and this has an economic value."
10. 10See Thornton v. Prince George School District No. 57, 1978 CanLII 12 (SCC), [1978] 2 S.C.R. 267, [1978] S.C.J. No. 7; Arnold v. Teno, 1978 CanLII 2 (SCC), [1978] 2 S.C.R. 287, [1978] S.C.J. No. 8; and Andrews.
11. 11For a general discussion of these issues, see: Regina Graycar, "Compensation for Loss of Capacity to Work in the Home" (1985), 10 Sydney L. Rev. 528; Jamie Cassels, "Damages for Lost Earning Capacity: Women and Children Last!" (1992), 71 Can. Bar Rev. 445; Regina Graycar, "Hoovering as a Hobby and Other Stories: Gendered Assessments of Personal Injury Damages" (1997), 3 U.B.C. L. Rev. 17; Elizabeth Adjin-Tettey, "Contemporary Approaches to Compensating Female Tort Victims for Incapacity to Work" (2000), 38 Alta. L. Rev. 504; Kim Brooks, "Valuing Women's Work in the Home: A Defining Moment" (2005), 17:1 C.J.W.L. 177.
12. 12Special damages could also include any expenditures for one-time housekeeping projects to maintain the home pending trial, as well as any reasonable expenditures for other pecuniary losses, such as the cost of order-in or restaurant meals, cleaning services, home repair, house maintenance and yard services. As well, while no such claim was made in this case, a pecuniary award related to past housekeeping losses may be included in a future housekeeping award in order to compensate a plaintiff for one-time catch-up costs to cover the expense of any housekeeping necessary to return the plaintiff's household to the condition it was in prior to the accident.
13. 13In discussions between the trial judge and counsel regarding the jury's question about the difference between the two types of past homemaking damages, the trial judge refers to the respondent's statement that she could do two-thirds of the housework but not as well. The trial judge says "the one-third is what she gets compensated for" in pecuniary damages. Mr. Rachlin explains that "the evidence I recall her giving, what I adduced from her was I was asking her what is the extent she thought her capacity to do work had changed. I understood the answer to encompass both [past housekeeping inefficiency damages and past lost housekeeping capacity.]" There was also a blurring between inefficiency and lost housekeeping in the expert evidence. For instance, Dr. Jasey suggested the respondent experienced a 50 per cent loss of capacity in homemaking on the basis that her endurance was reduced: she used to be able to work a full eight hours per day prior to the accident, and now she could only work up to four hours. Likewise, Dr. Merskey estimated that she would have a "100% loss on the heavy cleaning" and approximately a 50 per cent loss in terms of other housework, since what would have taken her one day would have to be spread over many more days. Dr. Clyne also gave a "ball park figure" of more than 50 per cent impairment, which Mr. Rachlin clarified took into account what the respondent could not do as well as efficiency issues.
14. 14See Hartwick v. MacIntyre (1982), 1982 CanLII 2213 (ON CA), 35 O.R. (2d) 119, [1982] O.J. No. 3114 (C.A.) and Dziver v. Smith (1983), 1983 CanLII 1920 (ON CA), 41 O.R. (2d) 385, [1983] O.J. No. 2992 (C.A.).