COURT OF APPEAL FOR ONTARIO

CITATION: Hibberd v. William Osler Health Centre, 2010 ONCA 294

DATE: 2010-04-23

DOCKET: C50196

Blair and LaForme JJ.A., and Durno J. (ad hoc)

BETWEEN

Jennifer Hibberd

Appellant

and

William Osler Health Centre and Robert Alldis

Respondents

Counsel: Brian J.E. Brock and Roseanna R. Ansell-Vaughan, for the appellant Simon A. Clements and Cara Faith Zwibel, for the respondents

Heard: March 18, 2010

On appeal from the judgment of Justice L.A. Pattillo of the Superior Court of Justice, dated February 13, 2009, reported at 2009 CanLII 5785 (On S.C.).

H.S. LaForme J.A.:

INTRODUCTION

[1] The appellant, Dr. Hibberd, is a highly regarded paediatric dental surgeon. On May 26, 2003, she fell and broke her wrist in a corridor of the William Osler Health Centre, one of the respondents. Her wrist was placed in a cast for six weeks and she underwent physiotherapy for five months. The trial judge found the respondents liable for the wrist injury arising out of Dr. Hibberd’s fall and awarded her pecuniary and non-pecuniary damages.

[2] With respect to loss of income, the trial judge found that Dr. Hibberd’s revenue and net income dropped in 2003, as compared to 2002, as well as in 2007, as compared to 2006. On this analysis, the trial judge found that the income loss for Dr. Hibberd for 2003 was $132,246. He examined her 2007 loss and future loss somewhat differently.

[3] Dr. Hibberd made no claim for income loss in 2004, 2005, and 2006 because she was able to resume a full practice in those years and worked extensively. In 2006, however, she began to experience increasing pain and difficulties with her left wrist that became more prominent in 2007 and continued to the time of trial. As a result, she claimed a loss of income for this period as well as for future loss.

[4] While the trial judge found that a “large part of the drop [in Dr. Hibberd’s revenue in 2003] can be attributed to the impact of her injury on her ability to practice”, he did not come to a similar conclusion for the period following the end of 2006. Rather, the trial judge was of the view “that the increased pain which she has experienced and continues to experience has not resulted in an income loss to her”. Accordingly, he denied her loss of income claims for 2007 and for the future.

[5] Dr. Hibberd appeals from the judgment with respect to the award made for past and future loss of income. She does not appeal the trial judge’s assessment of her income loss for 2003 and states that the trial judge applied the correct approach in determining this loss.

ISSUES

[6] The core of Dr. Hibberd’s argument on appeal is that the trial judge erred in inexplicably using two different approaches to calculate her loss of income from 2007 to the time of trial, and to calculate her future loss of income. More specifically, Dr. Hibberd raises three separate arguments.

[7] First, Dr. Hibberd submits that the trial judge used the wrong approach to assess income loss for 2007. She argues that he should have approached this in the same fashion as he approached the claim for income loss for 2003, and as advanced by the experts.

[8] Second, Dr. Hibberd contends that the trial judge’s reasons for assessing the 2007 loss are insufficient to allow for appellate review. On this issue, the respondents fairly concede that while this was not a ground of appeal set out in Dr. Hibberd’s notice of appeal, they are not prejudiced by allowing it to be advanced. Given this, Dr. Hibberd was granted leave to argue the issue of inadequacy of reasons.

[9] Third, Dr. Hibberd contends that the trial judge erred by failing to apply the “real and substantial risk” test in considering future income loss. She says that he failed to consider early retirement as a factor that could result in a future loss, and erred in “speculating as to Dr. Hibberd’s likely age of retirement”.

[10] I would not give effect to any of these grounds of appeal and in the result I would dismiss the appeal. As I will make clear, the trial judge decided the issues of income loss for 2007 and future loss of income on the basis of causation and not on the manner of calculation. In doing so, it is my view that it was unnecessary for him to explain - beyond that which he did - his approach to calculating such loss. Furthermore, because the trial judge decided these issues in the manner he did, I find that his reasons adequately allow for appellate review.

[11] Finally, I am satisfied that the trial judge did apply the “real and substantial risk” test in considering future income loss.

ANALYSIS

(i) Loss of income for 2007 and future

[12] At the root of Dr. Hibberd’s submission is that at trial both parties’ experts agreed that the proper approach to calculating past income loss was to count the number of procedures performed during the relevant period when Dr. Hibberd was disabled and then compare that number to a period when Dr. Hibberd was not disabled. The average fee for a procedure would be multiplied by the number of procedures in order to generate a specific figure.

[13] Indeed, the trial judge adopted this approach for the period in 2003 and agreed with Dr. Hibberd’s expert that the proper comparator time period was 2002. He looked at Dr. Hibberd’s loss of income stemming directly from her inability to perform, as well as indirect losses stemming from the impact of her unavailability on the work completed by hygienists, from which she also earns income. He then accepted the estimate of income loss in 2003 provided by Dr. Hibberd’s expert witness.

[14] The trial judge then addressed the situation in 2007. He noted that both revenue and net income decreased in 2007 as compared to 2006. He also alludes to the calculations by the experts of both parties that show a decrease in both net income and general revenues and the net loss of income.[^1] Nevertheless, while the trial judge accepted that Dr. Hibberd’s wrist pain increased toward the end of 2006, he found that this was not the cause of her income loss in 2007. He based this conclusion on his findings that Dr. Hibberd had adequately accommodated her practice to her pain and that her loss of income was not attributable to her wrist injury. To challenge his conclusion, the appellant must demonstrate that the trial judge erred in making these findings. In my view, he made no such error.

[15] On the evidence the trial judge accepted, he found that:

• Dr. Hibberd made modifications in her practice, including having her assistant steady the patients’ heads during procedures. • There was no reduction in the number of patients that Dr. Hibberd was able to see in the first half of 2007 as compared to the same period in 2006. • The number of non-hygiene patients that Dr. Hibberd saw in the first half of 2007 increased as compared to the figure for the same period in 2006. • The extended absence of her associate. • Dr. Hibberd stopped taking public health patients for reasons unrelated to her wrist. • Dr. Hibberd took more vacation days in 2007 than she did in previous years.

[16] He found that while no single factor was determinative, all of them together more than accounted for the decrease in Dr. Hibberd’s income in 2007. He then makes the critical conclusion at para. 153, that he was “unable to find that Dr. Hibberd’s loss of income for 2007 as compared with 2006 was attributable to the injury to her wrist”. In my view, this conclusion on causation was one he was entitled to reach, and was amply supported by the evidence.

[17] In sum, there was no error in the trial judge’s approach to or calculation of Dr. Hibberd’s 2007 income loss. He simply found that Dr. Hibberd’s wrist injury was not the cause in fact of any decline in her income in this period. There is no reason that I can discern, nor has one been advanced, that prohibited the trial judge from making such a finding.

[18] For the same reasons, the trial judge then went on to find that there was no future annual income loss attributable to Dr. Hibberd’s wrist injury. He therefore rejected her claims for future loss of income going forward to retirement. Specifically, at para. 160, he concluded:

Because I have determined that Dr. Hibberd did not suffer an income loss in 2007 resulting from her injury, I am unable to accept the submission that she will suffer any annual income loss in the future, let alone one of $114,724.00 for each year until her retirement, whenever that may be.

[19] Again, this was a finding he was entitled to make, which was sufficiently supported by the evidence. And, relying on the same analysis I undertook in connection with Dr. Hibberd’s 2007 loss of income, I again find he made no error in respect of her future loss of income.

[20] As a result, I conclude that there is no merit to this ground of appeal.

(ii) Sufficiency of reasons

[21] I can deal briefly with the sufficiency of the trial judge’s reasons. Simply put, given that the trial judge decided the issues of loss of income for 2007 and the future on the basis of causation and not calculation, I find that his reasons more than adequately allow for appellate review. I would, therefore, reject this ground of appeal.

(iii) Real and substantial risk

[22] Dr. Hibberd contends that the trial judge ignored his obligation to determine if there was a “real and substantial risk” of Dr. Hibberd sustaining a future income loss. She argues that rather than undertaking this required analysis, the trial judge simply concluded that “because” he found no loss of income in the year 2007, Dr. Hibberd did not have a future loss of income. Specifically, as I noted earlier, she argues that the trial judge failed to consider early retirement as a factor, and “speculated as to Dr. Hibberd’s likely age of retirement”.

[23] I disagree. The trial judge in fact did consider early retirement as a factor that could result in a future loss, and he did not speculate as to Dr. Hibberd’s likely age of retirement. Indeed, as set out in the trial judge’s reasons, cited at para. 18 above, he expressly concluded that there was no basis for finding any annual income loss in the future until retirement “whenever that may be”. There was, therefore, no need to consider the age at which Dr. Hibberd would likely retire. His reasons more than demonstrate this.

[24] The trial judge then considered the medical evidence that Dr. Hibberd may have some difficulties with her wrist in the future. He found, at para. 161, that this “evidence indicates … that Dr. Hibberd may have some future problems in relation to her wrist injury, which may in turn impact on her practice and ability to earn income”. And, at para. 162 he went on to observe that:

The courts have noted that the task of determining whether the plaintiff will suffer future pecuniary loss and if so, the amount of such loss, is, by its very nature, a speculative exercise. To be entitled to such compensation, a plaintiff must establish on the evidence that there is a “real and substantial risk” that future pecuniary loss will occur.

[25] The trial judge’s analysis of the evidence led him to conclude that the possible complications for Dr. Hibberd in the future are carpal tunnel syndrome, tendonitis, the rupture of her ECRL tendon and osteoarthritis. Because of this he held that it was “necessary to determine whether there is a “real and substantial risk” that Dr Hibberd will suffer pecuniary loss from some or all of the possible future complications and, if so, the amount of such loss”. Clearly, he was aware of the test and its application.

[26] The trial judge then reviewed the evidence with respect to each possible complication in turn. With respect to carpal tunnel syndrome, the trial judge found that there was no evidence to establish a real and substantial risk. Although he found that Dr. Hibberd had suffered and would continue to suffer from tendonitis, he concluded – based on his earlier findings with respect to Dr. Hibberd’s ability to accommodate her practice to her injuries - that this would not prevent her from working or even reduce the amount of work she could perform.

[27] Similarly, after a thorough review of the evidence, the trial judge found that there was a real and substantial risk that Dr. Hibberd would develop osteoarthritis in her left wrist as a result of her injury. However, he held that there was no evidence as to how this would impact on her practice. Although the trial judge does mention the possibility of the arthritis developing after Dr. Hibberd reaches the age of 60, I read this as simply part of his overall analysis, which sought to demonstrate the lack of evidence establishing when or how arthritis could develop and what effect it would have on Dr. Hibberd’s practice. He went on to hold that making any assessment of pecuniary loss was therefore purely speculative and refused to award damages with respect to this contingency. In my view, he was not in error in doing so because purely speculative claims will not give rise to compensation: see Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at para. 27.

[28] In contrast, the trial judge did find that the evidence established the possibility that because of her wrist injury, Dr. Hibberd could rupture her left ECRL tendon at some point in the future. Further, having regard to the evidence in respect of both the treatment and prognosis if the ECRL tendon does rupture at some point in the future, it was the view of the trial judge that there is a real and substantial risk that she would suffer some amount of pecuniary loss as a result.

[29] The trial judge then went on to determine the amount of pecuniary loss which Dr. Hibberd might suffer. In doing so he held that it was necessary to assess the degree of risk to Dr. Hibberd, including an assessment of both the general and specific contingencies which apply. This was the correct approach: see Graham v. Rourke (1990), 1990 CanLII 7005 (ON CA), 75 O.R. (2d) 622 (Ont. C.A.) at paras. 42 to 47. And, finally at para. 189, after a full analysis, the trial judge concluded that:

Considering the above noted contingencies, and in particular the issue of whether a rupture will occur at all, it is my view that the proper assessment of Dr. Hibberd’s future pecuniary loss resulting from a potential rupture of her ECRL tendon is $100,000

[30] In sum, the trial judge based this award on his findings regarding the severity and likelihood of the risks that would materialize. In doing so, he addressed each risk proposed by the plaintiff in turn, analyzing the possibility that the condition would materialize and its likely effect on Dr. Hubberd’s revenue. In my view, he properly considered whether her wrist injury gave rise to a “real and substantial risk” of future income loss. I would reject this ground of appeal.

DISPOSITION

[31] For all of the above reasons, I would dismiss the appeal. I would award the respondents their costs of the appeal in the aggregate amount of $20,000 inclusive of disbursements and GST.

RELEASED:

“HSL” “H.S. LaForme J.A.”

“APR 23 2010” “I agree R.A. Blair J.A.”

“I agree B. Durno J.”

[^1]: The appellant and respondent’s experts estimated the loss of income in 2007 as $110,854.00 and $88,400.00 respectively. The trial judge observed that her 2007 general revenues declined by $83,482.00 and her net income declined by $79,877.00: paras. 136 and 137 of the trial judge’s reasons.